Adverse Possession: A Boon For An Illegal Trespasser?

History of Adverse Possession

The doctrine of adverse possession is a very old concept related to the ownership of property. The traces of adverse possession are found back in time about 2000 B.C. in the Code of Hammurabi, which is a Babylonian legal text. According to it, if a man leaves his house, field, or garden, and its possession is taken by someone else who uses it for three years, if the first owner returns and claims the possession, then it shall not be given the possession of the properties that he left.

In Rome, a possessor of the land who nurtures it gains a greater degree of “ownership” than the actual title holder. According to the Statute of Westminster 1275, the possession of the property was the prime evidence of ownership as land records were scarce due to illiteracy.

According to the Statute of Limitation, 1639, the period within which an owner could file for recovery of possession was 20 years. In India, this period is 12 years. The doctrine of adverse possession was borrowed from England. It was based on the belief that the person who possesses the land and makes it productive and useful for society, must hold the greatest degree of title to the land. This belief is based on the utilitarian philosophy that unused and idle land is a waste of resources as the society as whole benefits if the land is put to usage. It also helps in better administration as due to lack of pieces of evidence it becomes really difficult to affix a title holder to land, thus the person who possesses it is assumed to be the owner of the land. The law favours the person who has prior and better possession.

In Ravinder Kaur Grewal v. Manjit Kauri, it was held that the doctrine of adverse possession should not be confused with the equitable remedy of part performance as the right through adverse possession has been held to be a stronger one as the law.

Law of Limitation and Adverse Possession

The legal definition of adverse possession is not given in any statute. Adverse possession as a concept has been defined through various judgments. In India, the Indian Limitation Act, of 1963 governs the doctrine of adverse possession. Section 27 of the Act and Articles 64, 65, and 112 of the Schedule to the Act deal with the law of adverse possession. The law of limitation aims to extinguish the old claims by putting a limitation on the period in which a person can claim title to the land, and after the period is over, the claim is destroyed as equity does not help those who sleep over their rights.

Section 27 -Extinguishment of Right to Property: “At the determination of the period hereby limited to any person for instituting the suit for possession of any property, his right to such property shall be extinguished.” According to this Section, the cause of action to file a suit for possession comes to end after the limitation period is over. Not only the cause of action is lost, but the right of the title holder is also extinguished and passed to the possessor which means that the possessory rights convert into titular rights after the extinguishment of the period. This Section has to be read with Articles 64 and 65 of the Limitation Act.

Article 64: “For possession of immovable property based on previous possession and not on title, when the plaintiff in possession of the property has been dispossessed, the period of limitation is 12 years and this period commences from the date of dispossession.” It applies to the plaintiffs who possessed the property through other means like lease, mortgage, etc. that allowed possession and not through the title.

Article 65: “For possession of immovable property or any interest therein based on title, the period of limitation is 12 years and this period commences from the date when the possession of the defendant becomes adverse to the plaintiff.” It applies to the plaintiff who has been dispossessed from the property to which they held the due title.

Elements to be Proved to Claim Adverse Possession

Based on the above provisions and discussions, we draw out the following elements that need to be proved to claim adverse possession:

The date on which the possessor came into possession of the property.
The nature of possession
Whether the plaintiff knew about the possession
The duration of possession
Possession was undisturbed, open, and continued.

Example

A dispossessed B from the property. B has a limited time of 12 years (in India) to file a suit for claiming title to the property. B has the title to establish a claim before the expiry of the period of limitation till then A possesses the property against the rest of the world except B. After the expiry of the limitation period, A’s title to the land is perfected by the doctrine of adverse possession, not only against but also against B.

Arguments Against the Adverse Possession by the Supreme Court

In Hemaji Waghaji v. Bhikhabhai Khengarbhai, the Apex court said that the doctrine of adverse possession is a “windfall” for the person who is dishonest and who has taken possession of the property through illegal means. It is “irrational, illogical, and wholly disproportionate”. The doctrine of adverse possession is “extremely harsh” for the rightful owner of the property. Thus, there is an urgent need to review the law regarding adverse possession.

In State of Haryana v. Mukesh Kumar, the Apex court said that adverse possession is like theft, a trespasser who has taken possession of the property from the true owner in “certain conditions”, gets the title to the property with the authority of law. Law authorizes such thefts through the doctrine of adverse possession.

In Grewal v. Kaur, the Apex court said that adverse possession is a very old concept of law that is useful but is often criticized as it not only confers the rights of the wrongdoers but also protects them.

Arguments Against the Adverse Possession by the Law Commission of India

The Law Commission of India in its report on adverse possession said that there must be a distinction between the claims based on adverse possession. The protection must not be extended to a “dishonest trespasser” and to those who might have purchased the property from such a “dishonest trespasser”. It must be ensured that the possession that is originating through “dishonest” and “foul” means should not get the same recognition in law as the possession that is originating through honest and rightful means.

Conclusion

Based on the above discussion and analysis we can conclude that the law on adverse possession of property is pretty old and needs revision as it can also be seen in the obiter dictums of the Supreme Court judgments. It may be unfair to the true owner in certain situations but there is another angle to it i.e., the utilitarian philosophy. The judiciary while deciding on such matters must also look into the nature of possession, whether it is dishonest or genuine. It must be formulated into a legal provision for better, fair, and uniform administration of justice as the decision of the judiciary might vary in different judgments.