Adverse possession is a common law doctrine in India that permits a person­­ in unlawful possession of a land for a certain period of time, as detailed in this article, to claim ownership of that land. The concept behind the law of adverse possession is that land must not be left vacant and instead, be put to judicious use. A person in lawful possession of a property by virtue of a contract, employment or grant etc. e.g. a tenant, cannot claim to have adverse possession1.

It is unusual for a common law doctrine to undergo evolution like the way the concept of adverse possession has undergone in India.

Adverse Possession and Limitation Act, 1963

The concept of adverse possession is not defined in any statute. However, Articles 64, 65 and 110 of the Limitation Act, 1963 ("Act") provide for a limitation period of 12 years for filing suit for possession arising out of possessory or titular rights.

Article 111 provides for a limitation of 30 years, on an action for possession of public street or road from which a local authority has been dispossessed, and Article 112 also provides for a limitation of 30 years for any suit to be filed by the Central and state governments.

Section 27 of the Act provides for extinguishment of right to a property when the period for instituting a suit for possession of such property has expired. Therefore, once the period of 12 years in case of land belonging to private persons and 30 years in case of government / local authority is over, the original owners right to sue for possession of such land, extinguishes.

To set up a plea of adverse possession it must be shown that possession of a property is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuous. The possession must start with a wrongful disposition of the owner and be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner.2

Adverse possession a sword or a shield?

The Hon'ble Supreme Court, in a series of decisions in the cases of Gurdwara Sahib v. Gram Panchayat Village Sirthala3, State of Uttarakhand v. Mandir Sri Laxman Sidh Maharaj4and Dharampal v. Punjab Wakf Board.5 held that a person who has perfected title by adverse possession cannot use adverse possession to maintain a suit for declaration (as a sword) and can only use it as a defense in a suit (as a shield).

However, a three-judge bench of the Supreme Court in the case of Ravinder Kaur Grewal v. Manjit Kaur6 held that once the 12 year period of adverse possession is over, the person who acquires right, title and interest in the property by adverse possession, can use the same as a sword in a suit or as a shield as a defendant in a suit.The Court expressly overruled the judgments in the case of Gurdwara Sahib (supra), State of Uttarakhand (supra) and Dharampal (supra)

The Bench also observed that a 1963 decision of the Supreme Court taken in the case of Sarangadeva Periya Matam v. Ramaswami Gounder7 wherein a suit filed by a person claiming title through adverse possession was held to be maintainable, was not placed before the two-judge bench in the Gurdwara Sahib (supra) case.

Therefore, it is settled that a suit for declaration of title by a person in adverse possession of land is maintainable.

Supreme Court's recommendation for reconsideration of law of adverse possession

In 2009 and 2011, the Supreme Court had made recommendations for reconsideration / abolition of the law of adverse possession, following which an extensive review of the law of adverse possession was undertaken by the Law Commission of India.

First is the case ofHemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan and Others8wherein the Supreme Court held that the law regarding adverse possession was 'extremely harsh', gives a seal of approval to a trespasser and places a premium on dishonesty. The court observed that a fresh look of the law must be taken by the legislature and recommended the Union government to make suitable changes.

Thereafter, in the year 2011, in the case of State of Haryana v. Mukesh Kumar and Ors.9, the Supreme Court once again observed that the law of adverse possession, in its present form, is 'a black mark upon the justice system's legitimacy' and recommended that the parliament must abolish or at least make substantial changes to it in larger public interest. The court made various recommendations, including abolition of 'bad faith' adverse possession, increasing the time period from 12 to around 30-50 years, and compensation for land owners by the possession, as per prevalent market rate.

Even in Ravinder Kaur Grewal v. Manjit Kaur (supra) the Supreme Court recommended the legislature to carve an exception for properties dedicated to public cause from the purview of adverse possession.

In view of the decision in Hemaji Waghaji (supra) the Union ministry of law & justice referred the matter to the Law Commission of India with a request to furnish a report on the recommendations of Supreme Court therein.

Law Commission's recommendations and discordant notes by Ministry of Law & Justice

The 22nd Law Commission ("Law Commission"), pursuant to the recommendations in Hemaji Waghaji (supra), issued its 280th report in June 2023 titled 'The Law on Adverse Possession'.

Despite strong recommendations to modify / abolish the perfection of title by adverse possession by the Supreme Court in the case of Hemaji Waghaji (supra) and State of Haryana v. Mukesh Kumar and Ors (supra), the Law Commission concluded that "there is no justification for introducing any change in the law relating to adverse possession". The Law Commission observed / recommended that –

  1. There cannot be any 'greater leniency' than the 30 years period provided to governments / local authorities for filing suits for possession.
  2. No justification for abolition of adverse possession with respect to government property.
  3. There must always be an owner or claimant of contentious land.
  4. Not advisable to make any provision for compensation of the earlier owner, since it will lead to protraction of litigation.
  5. The apprehension qua properties dedicated for public cause is dispelled by article 111 of the Limitation Act, 1963 which provides for a period of 30 years compared to 12 years for properties owned by private persons.

However, two ex-officio members of the Commission, secretaries of department of legal affairs and legislative department respectively, in their dissent note stated that it is an appropriate time to strike off the provision for adverse possession. The dissent note inter alia provides for the following reasons for the abolition of the concept of adverse possession –

  1. There is a contradictory requirement of the nature of possession being peaceful as well as hostile and notorious.
  2. True owners are subject to expensive and avoidable litigation by unscrupulous persons.
  3. It promotes false claims under the colour of adverse possession.
  4. Since land is scarce, the concern regarding neglect of land resources should not exist.
  5. States already have laws that provide land for landless persons.
  6. The sentiment of Supreme Court, having taken the unusual step of urging the legislature to review the law on adverse possession, must be appreciated.
  7. Law of adverse possession has been either modified or abrogated in various countries.

Conclusion

The law on adverse possession has undergone some change over the past decades. The Supreme Court has evolved the law to permit use of adverse possession not only as a defense but also as a sword i.e. for filing of declaratory suits for title.

The Law Commission's report does recommend that no changes are required in the law of limitation. However, the dissent notes by ex-officio members indicate that the future of law of adverse possession hangs in the balance.

Footnotes

1. (2003) 1 SCC 488

2. Karnataka Board of Wakf v. Govt. of India [(2004) 10 SCC 779]

3. (2014) 1 SCC 669

4. (2017) 9 SCC 579

5. (2018) 11 SCC 449

6. (2019) 8 SCC 729

7. AIR 1966 SC 1603

8. (2009) 16 SCC 517

9. (2011) 10 SCC 404

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