Briefly Noted: Supreme Court of India Trenchantly Criticizes the Doctrine of Adverse Possession

By Amitabh Tewari and Gayatri Chadha

The doctrine of adverse possession states that a person in possession of property for a certain period of time and subject to the requirements of law acquires a good title to the property, if the owner does not initiate any action within the prescribed limitation period. The Supreme Court of India, in the case of State of Haryana v. Mukesh Kumar [2011 (10) SCC 404], criticized the law of adverse possession by calling it an “archaic law” which needs to be re-examined to prevent injustice.

The State of Haryana, on behalf of Gurgaon’s Superintendent of Police, filed suit in the Court of the Civil Judge for declaratory judgment granting the State adverse possession of certain property adjoining a police station. The ground of the claim was that the police had been in possession of the property for approximately 55 years. The court, on considering various precedents, revenue records of the property and other documentary evidence, dismissed the government’s suit stating that the defendants were the true owners of the property. The court held, first, that the ostensible possession by the police was not for a continuous period of 55 years. Moreover, the court found that not only had the property been acquired recently but the acquisition had been affected by forceful means. The State of Haryana State appealed to the Additional District Judge and thereafter to the High Court. Both courts affirmed the decision of the Civil Judge. The State of Haryana then filed a special leave petition before the Supreme Court of India (equivalent to a petition to the U.S. Supreme Court for a writ of certiorari).

The Supreme Court dismissed the special leave petition on the grounds that it lacked merit. The Court noted that here the instrumentalities of the government, including the police, attempted to possess land adversely. “This, in our opinion, [is] a testament to the absurdity of the law and a black mark upon the justice system’s legitimacy. The Government should protect the property of a citizen – not steal it. And yet, as the law currently stands, they may do just that.”
If the protectors of law become the grabbers of the property (land and building), then, people will be left with no protection and there would be a total anarchy in the entire country.

It is indeed a very disturbing and dangerous trend. In our considered view, it must be arrested without further loss of time in the larger public interest. No Government Department, Public Undertaking, and much less the Police Department should be permitted to perfect the title of the land or building by invoking the provisions of adverse possession and grab the property of its own citizens in the manner that has been done in this case.
Noting the development of the doctrine in England and the U.S., the Court stated that the doctrine was now “baffling” and “illogical” in the Indian context because it gave sound title to persons illegally in possession of land for a period of 12 years.

The doctrine of adverse possession arose in an era where lands were vast particularly in the United States of America and documentation sparse in order to give quietus to the title of the possessor and prevent fanciful claims from erupting. The concept of adverse possession exits to cure potential or actual defects in real estate titles by putting a statute of limitation on possible litigation over ownership and possession. A landowner could be secure in title to his land; otherwise, long-lost heirs of any former owner, possessor or lien holder of centuries past could come forward with a legal claim on the property. Since independence of our country we have witnessed registered documents of title and more proper, if not perfect, entries of title in the government records. The situation having changed, the statute calls for a change.

In order to remedy the problem, the court suggested that Parliament should increase the time period from a mere 12 to 50 years and should abolish “bad faith” adverse possession. The court also stated that the adverse possessor should compensate the owner according to the prevalent market rate of the property.
The law of adverse possession, as it exists at present, is extremely harsh on the true owner and provides a windfall to a dishonest person who is in illegal possession of the property. The Court has called upon Parliament to take a “serious re-look” at this “archaic” and inequitable law and it is hoped that proposed legislation will soon be introduced in Parliament to amend it.

Amitabh Tewari and Gayatri Chadha are fifth year students at Government Law College, Mumbai University. They can each be reached at amitabh16tewari@gmail.com and gayatrichadha@gmail.com.

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