Possession, Ownership, and Justice: A Philosophical Inquiry into the Civil Adjudication of Property Rights

Abstract

Ownership and possession, though often used interchangeably, are not identical. The two concepts may appear to move hand in hand, yet they diverge sharply in both their philosophical essence and legal interpretation. From antiquity to the contemporary world, the evolution of property, as an idea and as an institution has shaped how we or the Law perceive rights, duties, and justice.

These philosophical inquiries into ownership, possession, and property have not remained abstract; they have directly influenced the making of legal systems and the formulation of property laws that govern tangible and intangible, movable and immovable and various etc properties today.

However, the legal understanding of what it means to own, to possess, or to transfer property is as intricate as the philosophical foundations from which these ideas arose. The journey from moral entitlement to legal recognition, from “having” to “owning” to “what’s having and not owing”— is fraught with procedural and conceptual complexity.

This article seeks to explore that journey: tracing the historical and philosophical roots of ownership and possession, and examining how these concepts are reflected and reinterpreted within the Indian legal framework particularly through the Transfer of Property Act, 1882, and the Civil Procedure Code, 1908.

In doing so, it aims to bridge the gap between the philosophical notion of property and its legal realization bringing the two closer to a coherent understanding for a better and easier justice in the realm of civil adjudication and further tries to examines whether India’s system of civil adjudication truly upholds justice in property disputes, or merely formalizes ownership through procedure.

Property

The question of what property truly is has long resisted a clear or exhaustive answer. Even the Transfer of Property Act, 1882, while foundational to Indian property law, offers no explicit or comprehensive definition of the term.

Legally, property is often understood in a functional sense as a bundle of rights that a person exercises over a thing. These rights may include:

• The power to possess
• The power to use
• The power to enjoy
• The power to transfer
• The power to exclude others
• The power to destroy the object of ownership

In this sense, property is less about the physical object itself and more about the legal relationships and entitlements that a person holds in relation to it.

Philosophical Foundations of Property

However, the idea of property is not purely legal. Its origins are deeply philosophical and psychological. Different schools of thought have attempted to explain its essence: some view property as a psychological extension of the self, the human desire to control, own, and identify with external objects — while others treat it as a creation of law, a social construct developed to regulate relationships and prevent conflict over scarce resources.

Thus, property is at once a moral, psychological, and legal construct, born from human instinct, shaped by social necessity, and formalized through law. As we will delve further into What Property really is from perspective of various schools and thinkers.

Etymological Origins of the Word “Property”

The word Property finds its roots in the Latin word “Proprius[1]”, which is French equivalent of “proprete”, later adopted by English in 14th century, which mean “nature, quality or distinctive character” of individuals, things or class which later turned into “possession, land or own goods”, property also find it close links to “Propriety” “Proprietor” which evolved from same word.

This evolution is more merely linguistic but also philosophical which evolved with advents of various schools and thinker.

John Locke

John Locke is one of the most influential theorists of the 17th century. He was the major figure behind the idea of liberalism, a concept that has shaped and continues to shape modern politics. Locke, in his work :contentReference[oaicite:0]{index=0}, mentions his theory of property, which he explains as follows.

Labour Theory of Property

Locke, in the 5th chapter of his work, puts forward the idea of labour, where he argues that everything in this world exists naturally and that “no body has originally a private dominion” [2]. However, an individual must use his or her labour to make anything his or her property. By removing something from its natural state through labour, one annexes that thing—previously common to all in nature—to oneself due to that labour.

As Locke famously states:

“The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property.” [3]

Property and Self-Ownership

Locke argues in a very primal sense of property, relating it to the equivalence of one’s work and labour in bringing something as one’s own from what belongs to all. As he notes:

“Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself.” [4]

Furthering this idea, Locke uses everyday examples to explain appropriation. When a person picks acorns and eats them, at what point does such nourishment become his? He argues that the very act of picking them makes them his and his alone:

“He that is nourished by the acorns he picked up under an oak, or the apples he gathered from the trees in the wood, has certainly appropriated them to himself… and it is plain, if the first gathering made them not his, nothing else could.” [5]

Vesting and Divesting of Property

This idea of property involves simultaneous vesting and divesting. Through labour, one vests property in oneself while divesting it from the common stock—without the consent of all others. Locke argues that requiring universal consent would make survival impossible:

“If such a consent as that was necessary, man had starved, notwithstanding the plenty God had given him… The labour that was mine, removing them out of that common state they were in, hath fixed my property in them.” [6]

Common Resources and Individual Ownership

Locke’s idea of property is primal and tied to natural entitlement: one who labours owns the product of that labour. While all have equal rights to common resources, the one who acts acquires ownership. He illustrates this with the example of water:

“Though the water running in the fountain be every one’s, yet who can doubt, but that in the pitcher is his only who drew it out?” [7]

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Friedrich Hegel

:contentReference[oaicite:1]{index=1} is regarded as one of the greatest systematic thinkers in the history of philosophy. In his work :contentReference[oaicite:2]{index=2}, he explains concepts such as will, freedom, and right through a wide array of social institutions and classes.

Abstract Right and Free Will

Hegel begins with the idea of “abstract right,” arguing that such rights are abstract and exist in a state of negative actuality. These rights initially concede only to themselves, but when confronted by an external state of affairs, they move beyond abstraction and become expressions of individual will:

“The absolutely free will, at the stage when its concept is abstract, has the determinate character of immediacy… the inherently single will of a subject.” [8]

Externalisation of Will

After defining right and free will, Hegel explains that individuals must translate their will into the external world in order to exist as an Idea. What exists as abstract will must be embodied externally for determination:

“A person must translate his freedom into an external sphere in order to exist as Idea.” [9]

According to Hegel, external things are not free in themselves and lack personality. Therefore, a person may place such things under his will or right:

“This is the absolute right of appropriation which man has over all ‘things’.” [10]

Possession and Ownership

For Hegel, having power or will over something external constitutes possession, and possession forms the basis of ownership. As a free will, a person becomes an object to himself through possession:

“But I as free will am an object to myself in what I possess… this is the aspect which constitutes the category of property, the true and right factor in possession.” [11]

He also recognises forms of shared ownership, noting:

“Common property of such a nature that it may be owned by separate persons acquires the character of an inherently dissoluble partnership…” [12]

Property as the Embodiment of Personality

Hegel’s idea of property goes beyond labour. Property is an expression of free will and personality. Mere possession is insufficient unless one’s will over the object is recognised by others:

“Property is the embodiment of personality… The embodiment which my willing thereby attains involves its recognisability by others.” [13]

Although Hegel emphasises possession as a central aspect of property, he later clarifies that recognition by others is essential for ownership. Ultimately, Hegel grounds property in the philosophical essence of right, where an external thing that embodies one’s will becomes one’s property—both possessed and owned.

Jean-Jacques Rousseau

Rousseau was Genevan philosopher, who influenced the Age of Enlightenment with his ideas, his idea of General Will of people shaped the idea of Republicism. Rousseau unlike other thinker thought land as a reason of inequality in society.

Inequality: Natural and Man-Made

In his famous work A Discourse Upon the Origin and the Foundation of the Inequality Among Mankind, he defines two type of inequalities one that is natural and biological in nature and other which is manmade due to convention, political power, richness and privilege bestowed over man by man.

“I conceive two species of inequality among men; one which I call natural, or physical inequality, because it is established by nature, and consists in the difference of age, health, bodily strength, and the qualities of the mind, or of the soul; the other which may be termed moral, or political inequality, because it depends on a kind of convention, and is established, or at least authorized, by the common consent of mankind.”[14]

Property and the Origin of Civil Society

He goes into property in second part of this work, where he starts of with:

“THE first man who, having enclosed a piece of ground, bethought himself of saying This is mine, and found people simple enough to believe him, was the real founder of civil society.”[15]

Rousseau argues that with advent of civil state, man for self-preservation had to labour for procurement of food through agriculture, as the man procured harvest through his labour, he started claiming that just like the harvest and the land where the so harvest was grown was his too.

“The cultivation of the earth necessarily brought about its distribution; and property, once recognised, gave rise to the first rules of justice; for, to secure each man his own, it had to be possible for each to have something. Besides, as men began to look forward to the future, and all had something to lose, every one had reason to apprehend that reprisals would follow any injury he might do to another”[16]

From Natural State to Civil State

Rousseau argues in this historical timeline where man from a primal being turned into a more civil and intelligent being which gave advent, he says that man has transformed from man walking through forest with nothing to compare or separate as “There can be no injury, where there is no property” to but now the same has grown from this and due owing of land and fruits of there labour which they still didn’t knew how to protect, created a gap among these man, due a sincere gap of skill, led to separation, differentiation and inequality among them.

“In this state of affairs, equality might have been sustained, had the talents of individuals been equal, and had, for example, the use of iron and the consumption of commodities always exactly balanced each other; but, as there was nothing to preserve this balance, it was soon disturbed; the strongest did most work; the most skilful turned his labour to best account; the most ingenious devised methods of diminishing his labour: the husbandman wanted more iron, or the smith more corn, and, while both laboured equally, the one gained a great deal by his work, while the other could hardly support himself. Thus natural inequality unfolds itself insensibly with that of combination, and the difference between men, developed by their different circumstances, becomes more sensible and permanent in its effects, and begins to have an influence, in the same proportion, over the lot of individuals.”[17]

Influences on Rousseau’s Idea of Property

From this we understand Rousseau idea of property was influenced by Locke’s idea labour, with history and deep sense of societal inequality embedded in it, for him to own property is mere advent of man from his natural state to civil state with the increase in his intelligence, from owing nothing to owing because now the state has changed and change in reason of man, for him property to possess or own is nothing but mere nominal aspect of life that came with change of individuals, his idea is also influenced by the natural thinker who believed the concept of property is arbitrary, as all property was once res nullis which by taking possession became his who first did.

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Jeremy Bentham

Bentham was an English Philosopher and jurist; he is the founder of utilitarianism.

Property as a Creature of Law

Bentham defined property as a creature of law and state, he argued property doesn’t exist in isolation neither does it’s right to possess or own, the right and property both are creature of law, he famously said:

“Property and law are born together and die together. Before laws were made, there was no property; take away laws, and property ceases.”[18]

Bentham in his work another work Principles of the Civil Code, he argues:

“We shall see that there is no natural property—that property is entirely the creature of law.”[19]

Property, Expectation, and Utility

He argued the idea property is relation of usage which one intakes from its possession and such relation is one can all ownership but such has no form, colour or smell its artificial, and:

“It belongs not to physics, but to metaphysics: it is altogether a creature of the mind.”[20]

Further this relationship is mere expectation that is established to power to derive certain benefit from it, one can have a object and derive benefits still not own it, this can only happen due to law:

“But this expectation, this persuasion, can only be the work of the law. I can reckon upon the enjoyment of that which I regard as my own, only according to the promise of the law”

“Property and law are born and must die together. Before the laws, there was no property: take away the laws, all property ceases. With respect to property, security consists in no shock or derangement being given to the expectation which has been founded on the laws, of enjoying a certain portion of good. The legislator owes the greatest respect to these expectations to which he has given birth: when he does not interfere with them, he does all that is essential to the happiness of society; when he injures them, he always produces a proportionate sum of evil.”

Contemporary Relevance of Bentham’s Idea

His idea of property aligns with other idea of utility, that possession and ownership of such leads to maximum amount of happiness to maximum number of people and any evil so created is less than greater good. Bentham understood the nominal aspect of the idea of property and how alone having something can’t be said as ownership but rather the idea or this expectation which is established by law is what truly determine what property and Bentham’s idea of property is closest to the contemporary idea of property, possession and ownership we have, still evolving.

Legal Framework

Transfer of Property Act, 1882 (TPA)

Transfer of Property Act of 1882 is the substantive law dealing the transfer of property in India. It doesn’t define what property is but does define what immovable property is in Section 3 of the Act:

“Immovable property” does not include standing timber, growing crops or grass; [21]

This definition excludes what is not immovable property but doesn’t define or mention what it includes. The General Clauses Act of 1897 defines immovable property as:

“Immovable property shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth;” [22]

Components of Immovable Property

So, an immovable property includes:

• Land
• Benefit to arise out of land
• Things attached to earth, i.e.:

• Things embedded in earth
• Things attached to things embedded in earth
• Things rooted in earth except standing timber and growing grass

The Transfer of Property Act, 1882, mainly deals with immovable property, as major transfer of movable property is incorporated under the Sales of Goods Act of 1930. That’s why movable property is not defined here, though it is defined in:

• Section 3(36) of the General Clauses Act, 1897 as: “Movable property shall mean property of every description, except immovable property;” [23]
• Section 2(9) of the Registration Act, 1908 as: “Movable property includes standing timber, growing crops and grass, fruit upon and juice in trees, and property of every other description, except immovable property;” [24]

Thus, movable property includes standing timber, growing grass and crops, or anything that is not immovable as described above. This specification is necessary as every property has a specific procedure to follow under law. This gives a unique character to each property and each transfer.

Definition of Transfer of Property (Section 5)

Under Section 5 of the Act, Transfer of Property is defined as:

“In the following sections ‘transfer of property’ means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons; and ‘to transfer property’ is to perform such act. In this section ‘living person’ includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.” [25]

Essentials of Transfer of Property

The definition mentions these essentials which are required for Transfer of Property:

• Transfer of property is an act, which is to be performed; it doesn’t happen automatically.
• It is inter vivos; basically, such act is to be performed between two living beings.
• Conveyance of rights: in the transfer, the transferor performs the act of conveying by which a new title or interest is created in favour of the transferee.
• The transfer (conveyance of such right) may have immediate effect or in the future.
• The subject matter of such transfer is property, which has wide meaning consisting of all types of properties, e.g. movable, immovable, etc.
• The transfer is to any living person; that might be someone else, himself, or himself and someone else.

The transfer of property is a transaction where new interest is created. If prior interest exists between the parties of transfer, such transaction is not a transfer; such can be family settlement, compromise, or surrender, etc.

Civil Procedure Code (CPC)

The Civil Procedure Code of 1908 is the procedural law for civil cases. It deals with how court procedure works and how to use or apply the civil substantive law, and what due process to use.

Section 9: Jurisdiction of Civil Courts

“Courts to try all civil suits unless barred. — The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.” [26]

This section allows courts to try all civil cases until barred by law expressly or impliedly.

Section 15: Court of Lowest Competent Grade

“Every suit shall be instituted in the Court of the lowest grade competent to try it.” [27]

This section is not a jurisdictional limitation; rather, it allows one to file a suit in the lowest competent grade court. It is a procedural limitation, and any deliberate overvaluation or undervaluation for choosing a particular forum in the plaint must be corrected by the court.

Section 26: Institution of Suits

“Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. In every plaint, facts shall be proved by affidavit.” [28]

For institution of a suit, it requires presentation of a plaint to court following Order VI and VII. These three sections together form the golden triangle of CPC, which answers the question of how to and where to file a civil suit.

Jurisdiction in Immovable Property (Sections 16–18)

• Section 16 lays down that if a suit involves recovery, partition, foreclosure, sale, redemption, or any dispute or compensation concerning immovable property, it has to be filed in the court within whose local limits the property actually exists. The logic is simple: jurisdiction follows the property. The court closest to the property is in the best position to deal with the dispute and ensure its orders are properly enforced. [29]
• Section 17 extends this idea to cases where the property is spread across multiple jurisdictions. In such situations, the plaintiff has the discretion to file the suit in any of those courts. [30]
• Section 18 tackles situations where there’s uncertainty about which court has jurisdiction, for example, when it’s unclear under which boundary the property lies. In such cases, as long as there’s a reasonable ground for the confusion, any of the concerned courts can take up the matter, provided it records a formal statement acknowledging the uncertainty. Once that’s done, the decree it passes will hold full legal weight. If this isn’t done, higher courts can question jurisdiction, but only if it caused an actual failure of justice. [31]

Jurisdiction in Movable Property (Sections 19–20)

• Section 19 deals with suits seeking compensation for wrongs done to a person or movable property. If the wrongful act happens in one area but the defendant lives or conducts business in another, the plaintiff gets a choice. The suit can be filed either where the wrong took place or where the defendant resides, works, or runs their business. This provides flexibility to the plaintiff. [32]
• Section 20 covers every other type of suit that doesn’t fit under Sections 15 to 19. It states that such cases should be filed in the court where the defendant lives, works, or carries on business, or in the place where the cause of action arises. It acts as a fallback rule for jurisdiction when no other section applies. In Harshad Chiman Lal v. DLF Universal Ltd. (2005), it was held that Section 20 of the CPC is a residuary provision covering suits not falling under Sections 15 to 19. [33] [34]

Judicial Interpretation

K. Verma And Anr. v. Union of India And Anr [35]

This case revolved around the eviction of K.K. Verma, a displaced person who had been allotted a government flat as a dependent of an army officer. He occupied the premises under a monthly tenancy with the Union of India. The government later terminated his tenancy through a formal notice. Anticipating eviction, Verma filed a petition even before the notice was served. The Union subsequently issued another notice under Section 3 of the Government Premises (Eviction) Act, 1950, ordering him to vacate.

The central issue was the interpretation of Section 3 of the Act — particularly, whether a tenant whose tenancy had been lawfully created but later terminated could be treated as being in “unauthorized occupation” of government property.

Arguments Of The Parties

• The petitioner (Union of India) argued that once the tenancy ended, Verma’s continued possession became unauthorized and that Section 3 empowered eviction.
• The respondent countered that his initial entry and occupation were lawful, and thus, even after termination, his possession could not be equated with that of a trespasser — since his right originally stemmed from a valid legal title.

Court’s Findings

The Court agreed with the respondent. It drew a clear line between lawful possession that later lapses and possession that was unlawful from the very beginning. Section 3(b), it held, was meant for those who entered government property without authority — not for tenants whose contracts were simply terminated. Therefore, the notice of eviction issued under Section 3 was declared invalid.

In its reasoning, the Court emphasized that such statutes, carrying penal consequences, must be strictly interpreted in favor of the individual. It also reaffirmed that the government’s administrative power must stay within the bounds of law, without stretching legislative intent to cover situations it was never meant to.

The judgment thus became a significant marker in defining the limits of government authority over property and the protection of lawful occupants. It reflected a deeper balance — between state power and individual rights, between legal procedure and fairness.

In essence, the Court upheld that legality of possession cannot be retroactively erased simply because the tenancy ends; the shift from lawful to unlawful cannot happen without explicit legislative backing.

Significance Of The Decision

The significance of this case lies in that possession can exist independently of ownership and is merely physical fact not a legal status. The court observed that under Indian law, even a possession without rightful origin can become juridical if the owner “sleeps upon his rights” and makes no effort to remove the occupant. This principle protects those in possession from arbitrary dispossession, treating possession itself as a substantive right deserving legal protection.

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K. Dewan v. Delhi Development Authority (1993) [36]

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P. Chengalvaraya Naidu v. Jagannath (1994)

The Delhi High Court reaffirmed a crucial principle in property law — that ownership without possession is often an empty title when coupled with abandonment and inaction. The case arose from a dispute over an immovable property that once belonged to the appellant but had long been in the settled possession of the respondent.

The appellant, claiming ownership, sought recovery of the property on the ground that the respondent’s occupation was illegal. However, both the trial and first appellate courts dismissed the suit, finding that the appellant had abandoned the property and had allowed the respondent to occupy it without interference for years.

Contentions Before The High Court

• The appellant argued that ownership rights cannot lapse through mere non-use and that a true owner retains the right to reclaim possession from a trespasser at any time.
• The respondent countered that the appellant’s prolonged silence amounted to acquiescence and that equity and law both protect long-settled possession.

High Court’s Reasoning

The Court sided with the respondent, emphasizing that ownership alone is not an indefeasible right. Once a person abandons possession and allows another to occupy property peacefully for years, they cannot later invoke ownership as a sword. The doctrine of acquiescence and waiver bars such delayed claims — law, the Court remarked, “does not permit one to sleep over rights and wake up at convenience.”

Citing precedents like K.K. Dewan v. District Judge and K.K. Verma v. Union of India, the Court reinforced that possession itself is a substantive legal right, and settled possession must be respected even against ownership when accompanied by abandonment.

Final Outcome

In conclusion, the High Court dismissed the appeal, holding that the appellant, through prolonged neglect and inaction, had forfeited any claim to possession. The ruling stands as a reminder that property rights demand vigilance — ownership without assertion fades into irrelevance when weighed against long, undisturbed possession.

Overall Significance

The significance of this case is that ownership without active possession and protection may be insufficient to reclaim property after years of abandonment. This aligns with the doctrine of laches in equity: delay defeats equity. The judgment cited K.K. Verma for the proposition that mere ownership without possession does not automatically entitle one to disturb long-standing possession.

III. S.P. Chengalvaraya Naidu v. Jagannath (1994)[37]

Fraud Vitiates All Transactions

The Bombay High Court, in this case, drew a hard line between lawful ownership and fraudulent possession, holding that no legal right can arise from deceit. Once a transaction is proven fraudulent, it stands void from inception — it cannot be cured by subsequent transfers, nor legitimized by entries in public records. The Court reiterated the timeless maxim that “fraud vitiates every solemn act.”

Factual Background: Agricultural Land Dispute

The dispute concerned agricultural land allegedly sold to the petitioner through a series of sale deeds. The respondents contended that the vendors had no legal right to sell the property, rendering the entire chain of transactions void. Upon investigation, the revenue authorities found the sale deeds fraudulent and cancelled the corresponding mutation entries.

The petitioner challenged this before the High Court, arguing that his name in the record of rights gave him ownership status and that the authorities had acted beyond their jurisdiction.

Mutation Entries Do Not Create Title

The Court rejected these arguments outright. It clarified that mutation entries are merely fiscal records for assessing land revenue—they do not create or transfer title. More importantly, when the base transaction itself is fraudulent, no presumption of ownership can ever arise.

Fraud, the Court explained, strikes at the root of legality: it not only voids the act but also taints every subsequent proceeding built upon it.

Supreme Court Precedents on Fraud

Drawing from Supreme Court precedents like S.P. Chengalvaraya Naidu v. Jagannath (1994) and A.V. Papayya Sastry v. Government of A.P. (2007), the High Court reaffirmed that fraud nullifies everything—a fraudulent sale deed cannot give rise to title, nor can a fraudulent mutation entry be allowed to stand.

• Fraudulent sale deeds do not confer title
• Mutation entries cannot validate illegality
• Revenue authorities must cleanse public records

Revenue authorities, being custodians of public records, have both the right and duty to remove such tainted entries to preserve the integrity of land registers.

Sanctity of Public Records and Judicial Duty

In its reasoning, the Court emphasized that permitting fraudulent transactions to remain would corrupt the sanctity of public documentation and incentivize deceit. Title, it observed, must be rooted in legality and honesty; once that foundation collapses, everything built upon it must fall.

Accordingly, the writ petition was dismissed. The cancellation of mutation entries was upheld, and the Court reaffirmed that fraud is a complete nullifier—no right, equity, or presumption can survive its discovery.

Courts as Instruments of Justice

“The courts of law are meant for imparting justice between the parties.” This statement, though simple, reflects a jurisprudential philosophy that views law as an instrument of justice, not merely a technical system of rules. The judgment demonstrates that courts possess both legal consciousness and moral consciousness, and will not allow technical correctness to subvert ethical outcomes.

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T. Plantation Pvt. Ltd. v. State of Karnataka (2011)[38]

Land Acquisition by Panchayat

The case involved a group of farmers whose agricultural land was taken by the Panchayat for widening the Sulthan Bathery Bypass Road, with the assurance that they would receive compensation. After construction, the farmers were denied payment and moved to the Kerala High Court.

The Single Judge ruled in their favor, granting compensation at the market rate, but the Division Bench later overturned this, holding that the farmers failed to prove such an assurance.

Supreme Court Intervention

On appeal, the Supreme Court, led by Vikram Nath and Dinesh Maheshwari, JJ., restored the Single Judge’s order. The Court held that taking the farmers’ land without compensation was arbitrary, irrational, and violated Article 300A, which protects the right to property.

It ruled that the burden of proving voluntary surrender lay with the Panchayat, not the farmers—and since no document or agreement was produced, the High Court erred in its reasoning.

Interplay of Article 300A and Article 21

The Court further stated that non-payment of compensation for agricultural land also violates the right to livelihood under Article 21. It reaffirmed that under Article 300A, deprivation of property is valid only for a public purpose with payment of compensation.

Constitutional Philosophy and Property Rights

The judgment reflects the constitutional framers’ vision of balancing individual property rights with social welfare. The Court noted that compensation, though not explicitly mandated by Article 300A, is “an inbuilt part” of the provision.

Non-payment of adequate compensation would violate not only Article 300A but also Article 21 (right to livelihood).

This represents philosophical sophistication—the Court doesn’t merely apply Article 300A mechanically but interprets it through a constitutional lens that synthesizes multiple rights and doctrines to ensure fair and equitable treatment of property owners.

Sociological Perspective — Law, Inequality, and Power

Social Injustice

John Rawls was an American philosopher and one of the most influential thinkers of 20th century. In his work Theory of Justice, gives a critique how justice delayed is justice denied. In India, the chronic delay in judicial and administrative procedures does more than paralyze the justice system it entrenches social inequality.

When litigation drags for decades, those with lesser means bear the heaviest cost, as justice delayed often translates to justice denied. The affluent can afford to wait, to litigate endlessly, and to manipulate procedural loopholes, while the marginalized face economic and emotional exhaustion long before the verdict arrives.

This delay transforms justice from a right into a privilege — accessible only to those who can afford time and endurance.

Rawls and Justice as Fairness

This structural flaw stands in sharp contrast to John Rawls’s conception of “justice as fairness,” which demands that institutions distribute both opportunities and burdens in a manner consistent with equality and reciprocity.

Rawls’s difference principle asserts that inequalities are permissible only if they operate to the greatest advantage of the least advantaged members of society. [39] However, the Indian legal process, through its endemic delays, produces the opposite effect — it reinforces hierarchy, where procedural time itself becomes a commodity of privilege.

Systemic Injustice and the Basic Structure of Society

Rawls situates justice within the basic structure of society its political, legal, and economic institutions that regulate the distribution of rights, duties, and opportunities. [40]

If the basic structure malfunctions, it creates what Rawls calls “systemic injustice,” where citizens are formally equal under law but substantively unequal in access to it.

In the Indian context, procedural inefficiency violates both Rawls’s first principle of equal basic liberties and his second principle of fair equality of opportunity. [41]

• The right to a fair and speedy trial, though implicit under Article 21 of the Constitution
• The loss of meaning when the legal process itself becomes an obstacle

Thus, in a Rawlsian sense, delay is not a mere administrative failure it is a moral failure of the state’s institutional design. Justice, to be fair, must be timely. [42]

Amartya Sen and the Idea of Realized Justice

Another philosopher of Indian descent, proposed the idea of justice, where Amartya Sen’s The Idea of Justice departs from the conventional Rawlsian ideal of “transcendental institutionalism,” which measures justice by the design of perfect institutions.

Instead, Sen advances a realization-focused approach, arguing that justice must be assessed by its actual outcomes—how laws and institutions affect people’s lives in reality rather than how well they conform to ideal principles.

Justice, in Sen’s conception, lies not in the abstract pursuit of perfection but in the comparative reduction of manifest injustices. [43]

Niti and Nyaya: Institutional Rules Versus Lived Justice

Sen’s theory draws deeply from Indian philosophical traditions, particularly the distinction between “niti” (institutional propriety or formal rules) and “nyaya” (realized justice or lived experience). [44]

This distinction highlights that procedural correctness alone cannot guarantee justice; justice must also be experienced substantively in the everyday lives of individuals. [45]

As Sen notes, “The niti–nyaya distinction can make sense of some of the contrasts that are important in practical reasoning about justice.” [46]

The Realization-Focused Comparison Approach

Sen’s realization-focused comparison approach thus emphasizes practical reasoning—seeking to reduce injustices by comparing actual social arrangements rather than theorizing about a perfectly just society.

Justice [47] becomes a matter of tangible human outcomes, capabilities, and opportunities rather than institutional design. [48]

Civil Procedure Code, Delay, and Access to Justice

This framework is particularly relevant to the Civil Procedure Code (CPC) in India, where procedural legality (niti) often fails to yield substantive justice (nyaya) due to systemic delays and high litigation costs.

Even when rights are formally recognized, if access to remedies is obstructed, realized justice is denied. [49]

In Sen’s terms, the purpose of law is not merely to exist in formal validity but to ensure its effectiveness in lived reality—justice must be felt, not just declared. [50]

Thinker	Core Idea	Implication for Indian Legal System
John Rawls	Justice as Fairness	Delays undermine equal liberty and fair opportunity
Amartya Sen	Realization-Focused Justice	Procedural law must result in lived, substantive justice

Litigation Inequality: Wealth, Access, and Justice Delay

The Scale of the Problem

India’s judicial system is facing a crisis of delay that threatens the very foundation of justice delivery. As of 2025, more than 4.5 crore cases remain pending across all levels of the judiciary, with subordinate courts accounting for nearly 87% of this backlog. [51] Civil litigation, in particular, can take years—often decades—to reach final adjudication. Such delay is not merely administrative inefficiency; it represents a structural barrier to justice, one that disproportionately burdens the poor and vulnerable.

Indicator	Details
Total Pending Cases	More than 4.5 crore across all levels of the judiciary
Share of Subordinate Courts	Nearly 87% of the total backlog
Typical Duration of Civil Litigation	Several years, often extending into decades

The Cost Barrier

The Civil Procedure Code, 1908, originally intended to bring order and uniformity to civil adjudication, has become a labyrinth of technicalities. When combined with the endemic backlog, litigation turns into an economic endurance test. High legal fees, repeated adjournments, and prolonged proceedings render access to justice an elitist privilege rather than a constitutional right.

• High legal fees and recurring litigation expenses
• Repeated adjournments that extend case timelines
• Prolonged proceedings that favour financially stronger parties

For the wealthy, delay becomes a tactic; for the poor, it becomes a denial of remedy itself. Property disputes, instead of being contests of legal merit, often devolve into contests of financial survival. In this sense, inequality in wealth directly translates into inequality before the law, eroding the moral legitimacy of the justice system. [52]

Delay as a Form of Dispossession

Nowhere is this injustice more visible than in property litigation. Under Section 52 of the Transfer of Property Act, 1882, the doctrine of lis pendens prohibits transfer of property during litigation. [53] Yet, in practice, the real dispossession often occurs not through a judicial decree but through time itself.

For poor litigants—often informal possessors or tenants—years of delay mean losing effective control, use, and economic benefit of their property. The adage “justice delayed is justice denied” is not rhetorical here—it becomes justice undone. Delay functions as a silent expropriation, where the law’s slowness effectively transfers power and possession to those who can afford to wait.

Institutional Failures Compounding the Crisis

The Supreme Court, in Hussainara Khatoon v. State of Bihar [54] and Abdul Rehman Antulay v. R.S. Nayak [55], held that the right to a speedy trial is an essential part of Article 21 of the Constitution—the right to life and personal liberty. Yet, the procedural frameworks under the CPC, shaped for a different century, continue to perpetuate procedural stagnation.

• Judicial vacancies
• Poor court infrastructure
• Excessive procedural formalism

Even when mechanisms for expedited disposal exist, they are rarely invoked with the urgency justice demands.

The Paradox of Formal Equality and Real Inequality

The result is a paradox: a legal system that promises equality in theory but delivers privilege in practice. In Sen’s terms, this represents the triumph of niti (formal legality) over nyaya (realized justice). The poor may have the right to approach the court, but they are denied the capability to see that right realized. [56]

Urban vs. Rural Property: Formalism Collides with Social Reality

Urban informal settlements in India expose the sharp collision between the formal assumptions of the Civil Procedure Code (CPC) and the lived realities of the urban poor. The CPC’s jurisdictional structure under Sections 16–20 presumes clearly demarcated, document-backed ownership, yet slums function through de facto possession and extra-legal arrangements such as power-of-attorney transactions and informal sale deeds. [57]

Statutory Recognition Under the Slum Areas Act

The Slum Areas (Improvement and Clearance) Act, 1956 offers some statutory recognition, especially for “notified” slums, where eviction requires due process and notice. [58] But even this protection stops short of conferring ownership—residents gain a right against dispossession, not a right to the land itself. [59]

Hierarchy of Informality in Urban Slums

In practice, a hierarchy of informality exists:

• Identified slums operate outside the law but within administrative tolerance.
• Recognized slums depend on political patronage rather than legal tenure.
• Notified slums receive limited procedural protection without substantive title. [60]

Tenancy Disputes and Procedural Conflict

The tension between these de facto rights and de jure formalism is mirrored in tenancy disputes, where Section 19 of the Slum Act restricts a landlord’s powers under Section 106 of the Transfer of Property Act, 1882. [61] The Supreme Court in Jyoti Persad v. Administrator for the Union Territory of Delhi⁶ [62] confronted this clash, revealing how procedural safeguards can mutate into procedural paralysis when law collides with urban informality.

Urban–Rural Divide in Property Adjudication

Beyond the city, this formalism-versus-reality divide extends to the countryside. Rural disputes generally involve recorded agricultural lands within defined revenue limits—suitable for CPC adjudication—whereas urban property conflicts unfold in legally invisible spaces without formal boundaries or ownership. [63]

Economic Exclusion and Legal Invisibility

This invisibility compounds exclusion: banks reject informal dwellings as collateral, denying credit and deepening poverty. [64] Even when laws provide some protection, lack of legal literacy prevents slum residents from invoking them, rendering the CPC’s procedural framework meaningful only to those who can afford to understand and access it. [65]

The Philosophical Paradox of Property

Thus, the legal system, designed to deliver uniformity, ends up entrenching inequality. Locke’s idea that labor creates ownership, Rousseau’s warning that property institutionalizes inequality, and Hegel’s emphasis on recognition all converge in this paradox: the Indian legal order recognizes property only when the state already recognizes the person. [66] Bentham’s promise of law as a guarantor of security collapses when justice becomes a luxury of the formally titled. [67]

Conclusion

This paper sought to explore what property truly means — not merely as a legal right, but as a philosophical construct shaped by human will, morality, and power. It examined the origins of property, ownership, and possession, questioning whether these ideas are simply nominal legal rights or if they possess a deeper, abstract, almost Platonic dimension.

By engaging with thinkers such as Locke, Rousseau, and Bentham, we traced how the idea of property evolved from natural entitlement to a juridical creation of law. Locke saw it emerging from labour, Rousseau viewed it as the seed of inequality, and Bentham grounded it firmly within legal positivism. Yet beyond these theories, this paper attempted to show how such abstract philosophies have materialized into concrete legal structures that define contemporary notions of justice and fairness.

Through case analyses, we observed how ownership and possession can exist independently — a distinction that mirrors the philosophical divide between natural right and legal right. However, the true focus of this inquiry lies not in merely tracing the conceptual lineage of these ideas, but in understanding how their legal codification continues to reproduce inequality in the modern world. Drawing from Rawls’s and Sen’s notions of justice, this work questions whether our property laws genuinely embody fairness or simply reinforce privilege.

Niti vs. Nyaya: The Procedural Paradox

Ultimately, the inquiry reveals a deep paradox within India’s system: the meticulous procedural legality (niti) embodied by the Civil Procedure Code, 1908, is actively undermining realized justice (nyaya). The chronic judicial delay and high cost of litigation transform the law from a safeguard into a barrier. For the marginalized, the legal process does not uphold justice; it merely formalizes existing ownership or allows procedural inertia to become a tool for silent dispossession.

To move toward true justice, the system must recognize that a right delayed is a right denied. The path forward requires procedural reform that prioritizes speed and accessibility, ensuring that property rights are determined by legal merit and not by the litigant’s capacity to endure decades of financial and procedural exhaustion.

Toward a Reconciliation of Idea and Application

Ultimately, this paper does not claim a definitive conclusion but rather an evolving synthesis: the need to reconcile the abstract and the nominal — the philosophical idea of property and its procedural application. In Hegelian terms, the dialectic between will and reality must move toward coherence. Property must not exist merely as a function of wealth or status, but as an expression of individual will be regulated by law in a way that preserves equality. Only then can the concept of property transcend its material confines and approach true justice.

References

1. John Locke, Second Treatise of Government, Ch. V: “Of Property”, §§ 26–27, in Two Treatises of Government (Project Gutenberg eBook No. 7370), https://www.gutenberg.org/files/7370/7370-h/7370-h.htm#CHAPTER_V (last visited 1 Nov. 2025).
2. G. W. F. Hegel, Philosophy of Right (1820), §§ 34 & 41 (trans. H. B. Nisbet, Oxford University Press, 1952).
3. Jean-Jacques Rousseau, A Discourse Upon the Origin and the Foundation of the Inequality Among Mankind, “Introduction”, in The Social Contract and Discourses (Project Gutenberg eBook No. 11136, 2004), https://www.gutenberg.org/files/11136/11136-h/11136-h.htm (last visited 1 Nov. 2025).
4. Jeremy Bentham, Theory of Legislation (first published 1782; London: Kegan Paul, 1904).
5. Jeremy Bentham, Principles of the Civil Code, Part I, Ch. VIII: “Of Property”, in The Theory of Legislation (trans. Etienne Dumont, London: Kegan Paul, 1904), https://www.gutenberg.org/files/46801/46801-h/46801-h.htm#CHAPTER_VIII (last visited 1 Nov. 2025).
6. The Transfer of Property Act, 1882 (India).
7. The Code of Civil Procedure, 1908 (India).
8. Harshad Chiman Lal Modi v. DLF Universal Ltd., (2005) 7 SCC 791 (India).
9. K.T. Plantation Pvt. Ltd. v. State of Karnataka, (2011) 9 SCC 1 (India).
10. K.K. Dewan v. Delhi Development Authority, 1993 SCC OnLine Del 463 (India).
11. S.P. Chengalvaraya Naidu v. Jagannath, (1994) 1 SCC 1 (India).
12. Douglas Harper, “Etymology of Property,” Online Etymology Dictionary (n.d.), https://www.etymonline.com/word/property (accessed 31 Oct. 2025).
13. John Rawls, A Theory of Justice (Harvard University Press, 1971).
14. Amartya Sen, The Idea of Justice (Allen Lane, 2009).

End-Notes

1. Douglas Harper, “Etymology of property,” Online Etymology Dictionary (n.d.), https://www.etymonline.com/word/property (accessed 31 October 2025).
2. John Locke, Second Treatise of Government, Chapter V: “Of Property”, Sect. 26, in Two Treatises of Government (Project Gutenberg eBook #7370), https://www.gutenberg.org/files/7370/7370-h/7370-h.htm#CHAPTER_V
3. John Locke, Second Treatise of Government, Ch. V: “Of Property”, Sect. 27, in Two Treatises of Government (Project Gutenberg eBook No. 7370), https://www.gutenberg.org/files/7370/7370-h/7370-h.htm#CHAPTER_V
4. John Locke, Second Treatise of Government, Ch. V: “Of Property”, Sect. 27, in Two Treatises of Government (Project Gutenberg eBook No. 7370), https://www.gutenberg.org/files/7370/7370-h/7370-h.htm#CHAPTER_V
5. John Locke, Second Treatise of Government, Ch. V: “Of Property”, Sect. 28, in Two Treatises of Government (Project Gutenberg eBook No. 7370), https://www.gutenberg.org/files/7370/7370-h/7370-h.htm#CHAPTER_V
6. John Locke, Second Treatise of Government, Ch. V: “Of Property”, Sect. 28, in Two Treatises of Government (Project Gutenberg eBook No. 7370), https://www.gutenberg.org/files/7370/7370-h/7370-h.htm#CHAPTER_V
7. John Locke, Second Treatise of Government, Ch. V: “Of Property”, Sect. 29, in Two Treatises of Government (Project Gutenberg eBook No. 7370), https://www.gutenberg.org/files/7370/7370-h/7370-h.htm#CHAPTER_V
8. G.W.F. Hegel, Philosophy of Right (1820) §34: “The absolutely free will, when its concept is abstract, is an actuality contrasted with the real world.”
9. G.W.F. Hegel, Philosophy of Right (1820) §41: “Property”.
10. G.W.F. Hegel, Philosophy of Right (1820) §44: “Property”.
11. G.W.F. Hegel, Philosophy of Right (1820) §45: “Property”.
12. G.W.F. Hegel, Philosophy of Right (1820) §46: “Property”.
13. G.W.F. Hegel, Philosophy of Right (1820) §51: “Property”.
14. Jean-Jacques Rousseau, A Discourse Upon the Origin and the Foundation of the Inequality Among Mankind, “Introduction”, in The Social Contract and Discourses.
15. Jean-Jacques Rousseau, A Discourse Upon the Origin and the Foundation of the Inequality Among Mankind, “Second-Part”, in The Social Contract and Discourses.
16. Jean-Jacques Rousseau, A Discourse Upon the Origin and the Foundation of the Inequality Among Mankind, “Second-Part”, in The Social Contract and Discourses.
17. Jean-Jacques Rousseau, A Discourse Upon the Origin and the Foundation of the Inequality Among Mankind, “Second-Part”, in The Social Contract and Discourses.
18. Jeremy Bentham, Theory of Legislation.
19. Jeremy Bentham, Principles of the Civil Code, Part I, Ch. VIII “Of Property”, in The Theory of Legislation.
20. Jeremy Bentham, Principles of the Civil Code, Part I, Ch. VIII “Of Property”, in The Theory of Legislation.
21. The Transfer of Property Act, 1882, §3 (India).
22. The General Clause Act, 1897, §3(26) (India).
23. The General Clause Act, 1897, §3(36) (India).
24. The Registration Act, 1908, §2(9) (India).
25. The Transfer of Property Act, 1882, §5 (India).
26. The Civil Procedure Code, 1908, §9 (India).
27. The Civil Procedure Code, 1908, §15 (India).
28. The Civil Procedure Code, 1908, §26 (India).
29. The Civil Procedure Code, 1908, §16 (India).
30. The Civil Procedure Code, 1908, §17 (India).
31. The Civil Procedure Code, 1908, §18 (India).
32. The Civil Procedure Code, 1908, §19 (India).
33. Harshad Chiman Lal Modi v. DLF Universal Ltd., (2005) 7 SCC 791 (India).
34. The Civil Procedure Code, 1908, §20 (India).
35. K.K. Verma and Another v. Union of India and Another (1954).
36. K.K. Dewan v. Delhi Development Authority (1993).
37. S.P. Chengalvaraya Naidu v. Jagannath (1994).
38. K.T. Plantation Pvt. Ltd. v. State of Karnataka (2011).
39. John Rawls, A Theory of Justice (Harvard University Press, 1971), pp. 75–83.
40. Ibid., pp. 6–9.
41. John Rawls, Justice as Fairness: A Restatement (Harvard University Press, 2001), pp. 42–43.
42. Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1360.
43. Amartya Sen, The Idea of Justice (Harvard University Press, 2009), pp. 7–25.
44. Ibid., p. 20.
45. Ibid.
46. Ibid., pp. 21–23.
47. Ibid., pp. 26–30.
48. See Code of Civil Procedure, 1908; on delays and costs as impediments to access to justice, see Salem Advocate Bar Association (II) v. Union of India, (2005) 6 SCC 344.
49. Sen, The Idea of Justice, p. 25.
50. National Judicial Data Grid (NJDG), “Pending Cases Statistics – India,” accessed 2025.
51. Law Commission of India, Report No. 230: Reforms in the Judiciary – Some Suggestions (2009).
52. Transfer of Property Act, 1882, §52.
53. Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 98.
54. Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225.
55. Amartya Sen, The Idea of Justice (Harvard University Press, 2009), pp. 20–25.
56. Civil Procedure Code, 1908, §§16–20; Gautam Bhan, In the Public’s Interest: Evictions, Citizenship, and Inequality in Contemporary Delhi (University of Georgia Press, 2016).
57. Slum Areas (Improvement and Clearance) Act, 1956, §§10–11.
58. Ibid., §19.
59. Véronique Dupont, “Slum Demolition in Delhi Since the 1990s,” (2011) 43(28) Economic and Political Weekly 53.
60. Transfer of Property Act, 1882, §106; Slum Areas Act, §19(4).
61. Jyoti Persad v. Administrator for the Union Territory of Delhi, AIR 1961 SC 1602.
62. Civil Procedure Code, 1908, §§16–17.
63. Piyush Tiwari, “Housing Finance and Informal Property Markets in India,” Habitat International (2007).
64. Poorvi Joshi, “Legal Literacy among Slum Dwellers in Delhi,” Indian Journal of Social Work (2014).
65. John Locke, Second Treatise of Government, ch. V; Jean-Jacques Rousseau, Discourse on the Origin of Inequality (1755); G.W.F. Hegel, Philosophy of Right, §41.
66. Jeremy Bentham, Principles of the Civil Code (1782).

Written By: Mukesh Dosad, BBA. LL. B(H)