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Adverse Possession : Origin, Development and Provisions in Modern Law

Introduction and Scope
Another word for adverse¯ is hostile or unfriendly, so what can adverse possession mean? In this research paper we shall be understanding what does adverse possession mean and in order to capture the definition of adverse possession in its true essence we shall be studying the law not only how it is today but also how it has evolved over the period of time and understand why it is called as adverse possession. In this paper we shall start by understanding the origin of this law, how it began and what is the concept or logic behind it starting from a historical perspective like how adverse possession in older times meant when land was captured by landlords and goons who stole the land of poor people and converted it to their own use.

These following rules go back Code of Hammurabi¯ which is not exactly but quite similar to the law of adverse possession and it is also followed till date, it reads:
If a chieftain or a man leave his house, garden, and field and hires it out, and someone else takes possession of his house, garden, and field and uses it for three years: if the first owner return and claims his house, garden, and field, it shall not be given to him, but he who has taken possession of it and used it shall continue to use it.¯[1]

The basic concept was given by the Privy Council in the year 1907 in the case of Perry v. Clissold[2] in which it was held that if a person is in possession of a land and he is looking after it and maintaining it and the rightful owner does not intervene in order to get the possession of his land back then after a certain time his right to that land is relinquished and the title is given to the person who is possessing it.

The following decision was also held in the case of Nair Service Society V. K.C. Alexander[3] and hence this applies till date and is the founding principle of adverse possession in modern law. If a person does not take any steps in order to get his land back from someone within 12 years then under article 65 of schedule 1 of Limitations Act his rights get extinguished. Under section 27 of the limitation act, there has to be an owner of the land and the person who possesses it and maintains the land is given the ownership of the immovable property.[4]

In this paper we shall be discuss the various aspects of adverse possession such as the acts amounting to it, the nature of possession, distinguish between actual and constructed possession by studying various important cases such as Karnataka Board of Wakf v. Government of India and ors[5] that has given guidelines for adverse possession. Apart from this we shall also be discussing the acts not amounting to adverse possession such as permissive possession that was explained in Thakur Kishan Singh V. Arvind Kumar[6] and when the possession is given as part performance to pursue to an agreement to sell as mention under the section 53 A of TOPA while studying the case of LRs Kachru and ors V. Mirza Abdul Gaffar and anr[7] and when the person is a co owner of the land. We shall be studying the development of the law in the modern law and various proofs that are required by studying the essentials. And lastly suggesting any changes and give recommendations[8]

Research questions:
  1. Did the concept of adverse possession¯ exist in the earlier times? If yes then how so?
  2. How has the adverse possession¯ developed from a concept to a law?
  3. What are the various acts amounting to adverse possession?
  4. What acts do not amount to adverse possession?
  5. What are some of the recommendations and suggestions regarding the laws on adverse possession?

Research objectives
  1. To understand adverse possession from a historic point of view.
  2. To know the various provisions and essentials of adverse possession
  3. To critically analyze the provisions of adverse possession and constitutionality

Research methodology
In order to research for this paper Doctrinal method of research of used as various books, online library, journal articles, case laws, legal search engines were used. Commentaries of various authors on the topic also helped in giving the research paper a further structure.

Literature Review
  1. Titles by Adverse Possession[9]:
    Following is a journal article published in Harvard Law Review and talks about adverse possession in a slightly creative manner comparing it with theft that how a person can own a piece of land that belongs to someone else without even paying for it. The author has also stated the rationale behind the law that is benefitting the community that can take care of the land. The article is very detailed yet basic, there should have been more information given to help the reader understand more complex issues that may arise with regard to this matter.
     
  2. Adverse possession of land[10]:
    The following article is published in The Cambridge Law Journal and talks about the adverse possession of land by using the example of a farmer who used a part of his landlords' property to grow crops. The article talks about a case that took place while the law was still developing and hence it captures the essence of this research paper too since it has been stated that the farmer is entitled to the property since he has maintained the land made sure its development take place properly. The article also cites various case laws such as Leigh v. jack and Direct supply v. Raftery in order to explain the reasoning for this example. A very informative article that gives further insight and application-based knowledge to the reader.
     
  3. The Morality of the Adverse Possession of Land[11]:
    The following article published in The Modern Law Review points to an interesting aspect of adverse possession. The article talks about people losing their share in the property even in cases where they have offered the land in good will, the area covered in this article is not really touched upon by many articles but it gives the example of a case in which land is offered in good will and the other person tries to misuse the land and convert it to his own. The article however only talks about one side and appears to be biased, there is no arguments or provisions given to argue from the other side.
     
  4.  Claim of Title in Adverse Possession[12]:
    The following is an article mentioned in The Yale Law Journal and talks about the adverse possession and its statutory provisions and claims that adverse possession is a universal right and marks a distinction between cases where claim of title is present or not and presents a debate on whether claim of title¯ should be an essential element or not. The article talks about why the person in possession of the property should be given the ownership and supported the existence of such remedy
     
  5. Adverse Possession of land: Morality and Motive[13]:
    Following is a journal article published in the Modern Law Review and the article questions certain things such as is the doctrine of adverse possession civil, and equated it with stealing of one's land. The article is against the concept of adverse possession and values morality more but the article could have been more fruitful if it mentioned several arguments in favor of adverse possession and then countered it instead of just mentioning the morality of the law since it is only one side of the coin
     
  6. Adverse Possession. What Constitutes Exclusive Possession[14]:
    Following is a journal article published in the Harvard Law Review and talks about the principle of exclusion of a property from the use of others in order to claim adverse possession. This is a test according to the author of this article that how can we understand if the adverse possession claimed or not, it was quite difficult to find any research gap in this article since it talks about a very specific essential of claiming adverse possession however if it talked about the essentials in a wider sense then that would have been much more knowledgeable.
     
  7. Titles by Adverse Possession[15]:
    The following journal article is published in the Harvard Law Review and starts of by talking about the overview of the doctrine of adverse possession as in discussing how it sounds like theft or robbery but it actually isn't, also the article supports and talks about the importance of this doctrine in the society to ensure the best use of resources however a brief insight on the other perspective on how it actually can be a means of theft would have not only made the article more knowledgeable but also strengthened the argument of the author.
     
  8. Real Property: Adverse Possession[16]:
    What Constitutes Adverse Possession of Land Used Periodically:
    Following is a journal article published in the Michigan Law Review and talks about the adverse possession and the basics of it that will also be incorporated in the study of this research paper. Something unique that this paper talks about is the stance of the government with respect to the concept of adverse possession, the government often incorporates this within their law and hence support it. The article could have been much more interesting if they pointed out the provision for claiming adverse possession on government land too because here we see a slightly contradicting stance of the government, following will also be discussed in the later part of the paper.

Origin of Adverse Possession
Tracing the exact origin of the concept of adverse possession as to during which period it actually started is not quite possible even many of the historians cannot be sure and precisely point when it actually began and say its origin is surrounded by a historical fog¯. As mentioned in the introduction to this paper that on papers the doctrine is found in the code of Hanurabi¯ which originated in approximately 2000 BCE[17].

It has been named after King Hammurabi who was the sixth King of the first Babylon Dynasty. The code consisted of 282 rules and out of them there were 3 rules that talked about the concept of adverse possession. The rule 30 dealt with a man who left his garden or house and someone else took the possession of the same and used the property for a period of 3 years after which the original owner came to claim it back then in such cases, he shall not be given it back.[18]

Among ancient Romans, it was believed that any person who possessed the land or in any way nurtured the spirit of the land has a greater right to be the title owner of that land. There is also a very famous saying that possession is nine-tenths of the law¯ and that saying also has its roots in these events marking the origin of adverse possession.

Talking about the English law, the mention of adverse possession is found in the Statute of Westminister in the year 1275 and under that code there were very little provisions for claiming the land after it has been possessed by someone in fact if we study the code in further detail then we will realize that laws in earlier England are one of the best examples of adverse property.[19]

It is from these laws that the concept of adverse of possession has evolved, the specifics of various essentials can vary but the concept stays the same that we must see the land and understand its value by seeing what it can produce and that it will only produce when the person who is possessing the land uses it and benefits the society, that person is held to be the owner of the land[20]. The author believes that adverse possession of land is still a part of law even after so many years because it is very valuable in in perpetuating the ownership of the land, gaining benefits and making sure the best use of land is made and because of these reasons this law has manage to exist for over 4000 years.[21]

Legal Provisions Established that Govern the Adverse Possession Laws in India
The laws on Adverse possession exist in various countries be it USA, UK Germany, Hungary, Denmark, Spain, France etc however the main variable is the limitation periods. In India the limitation period and the law of adverse possession is governed by Limitation Act 1963, and the provisions for the same can also be found in Section 27, article 64, article 65 of the schedule thereto.[22]

As per section 27 of the limitation act if a person fails to take back the possession of the land back withing the limitation period then it is said that he has lost his right of recovering the possession of the property. The duration of this period has been set to 12 years as per article 64 of the limitations act and it establishes that it is based on possession, not the title and the period starts from the day the plaintiff disposes the land[23]. The same limit of 12 years has also been prescribed by the article 65 of the limitations act dealing with immovable property and states that the period of 12 years starts from the day the plaintiff leaves the land in abeyance.

The law is based on the principle that there should be no case in which a land is left in abeyance and someone should be the owner of the land as mentioned above and the basic idea of these laws is that someone has to take action and be the owner of the land when it is not under use and hence when the rightful owner abandons the land for 12 years the possession may change hands as per section 27 of the limitations act. [24]

As we already may have understood by reading the various provisions that deal with adverse possession we also realize that there are a lot of grey areas when it comes to adverse possession as to which all acts shall amount to adverse possession and which all acts shall not amount to adverse possession.[25]

A Study of Case Laws that have Developed the Concept of Adverse Possession
We can understand what adverse possession is by reading the limitations act but it leaves a lot of scope of doubt as to what can be considered as adverse possession and what is not since the essential elements have not been given anywhere in detail in any act, the author of this paper is of the opinion that in India we just have the provision of adverse possession and the elements and essentials have developed and shaped through the various case laws and judgements.

In order to make an act amount to adverse possession there are 5 essential elements that needs to be fulfilled, firstly the possession should be open and notorious, it should be exclusive, it should be hostile or what we can say adverse, the statutory period as prescribed by limitation act must be fulfilled and the possession must be continuous and uninterrupted and it is essential to establish the following, we must also understand that adverse possession is not a pure question of law and the various facts must be established in the court.

Under the case of Mahesh Chand Sharma V. Raj Kumari Sharma[26] the court held that specifics of the case should be argued upon that shall be such as the date when the person came into the possession of the land, what was the nature of the possession it is also essential to take into consideration whether the factus of the possession was known to the other party and as we discussed under the limitations act for how long the possession continued and was it open and undisturbed.

It is essential to associate these 5 specific facts with the 5 essentials because the person pleading the adverse possession has got no equities in his favor and the burden of proof also lies on him since he is adversely taking the possession from the registered owner of the land hence he needs to clearly establish the following. Now we shall discuss each of these elements separately to understand the provisions in detail using appropriate case laws.

Firstly the possession must be open and notorious that means it should be clear that the person is in possession of the land and he should not be undetected nor he should make any efforts to remain undetected because there have been instances where people try to seek adverse possession and are making efforts to remain undetected on that property as it was also seen in the case of S.M Karim V. Bibi Sakina[27], D.N. Venkatarayappa V. State of Karnataka[28] and Parsinni V. Sukhi[29]. Hence it should be very clear that the person is possessing the property and as per these case laws the significance of Animus Possidendi has also been highlighted that means the intent of the person to possess the property and its interpretations also include the witting intention of excluding others to use the property as well. The possession should also be adverse or hostile in nature , a person cannot claim adverse possession after he has been allowed to stay on a land by the owner.

The interests of the person in the adverse possession play a key role in determining whether the possession is hostile or not. It is to be noted here that it is not necessary that the land owner has the actual knowledge of the adverse possession as it can be a case where a neighbor is having a part of his fence in the area of the land owner while the owner is not aware, it shall also be considered as hostile as he has no permission to do so and in such cases the real owner is expected to be aware. Under the case of Govindammal V. R.Perumal Chettiar[30] and ors it was held that it is necessary that there is a definite evidence to show the hostile interests however how it has to be proven depends upon the facts of the case. Another grey area in the law is that whether the person in adverse possession should inform the real owner or not?

There area various case laws that are contradicting to each other in this matter however what has been commonly accepted by the courts is that it is necessary that the person who is in the adverse possession must show prove that his possession was hostile to the real owner, it is not necessary that he directly communicates the same but it is necessary that it hostile enough that the real owner is capable of knowing the following was observed by the court in the case of Hemaji Waghaji Jat V. Bhikhabhai Khengarbhai[31] Harijan and ors relying on the judgement of T. Anjanappa V. Somalingappa[32].

It is also necessary that the possession is exclusive, that means the person who is seeking the adverse possession must not share his land with the public or the registered true owner of the property as it has also been mentioned while talking about the principal of Animus Possidendi that exclusion of others from using the land is also necessary. Merely possessing the land for the statutory limitation period and having hostile interests is not necessary to claim and Animus Possidendi must be proven as it was held in the case of Roop Singh V. Ram Singh[33]. Taking the 3 essentials into account that we studied in detail in this paragraph we can summarize it by taking a look at the guidelines given under the case of L.N Aswathama and another V. V.P. Prakash[34] where it was held that the possession must be actual meaning the possession must be physical, and exclusive and hostile to the true owner, under this case the court also observed that long and continuous possession would not amount to adverse possession if it was given by permission of the true owner or the element of Animus Possidendi was absent.

Another 2 essential elements of adverse possession that needs to be present to make the possession amounting to adverse possession is the limitation period established by statute and the element of uninterrupted possession that we are going to understand together. The property needs to be possessed for a period of 12 years at least as established by the limitations act and it should be continuous for example there can be a situation where a person adversely possesses a property during winters to seek shelter while satisfying all the other elements, in such cases the land is not in continuous possession and hence he is not entitled to claim the adverse possession. Also by reading the judgement of Ram Nagina Rai and ors V, Deo Kumar Rai[35] we get to know that the statutory period of limitations start from the day all the essential elements are fulfilled that means the first 3 elements discussed in the previous paragraph for a period of 12 years and during these 12 years the possession must be uninterrupted.

8.1 Acts not Amounting to Adverse Possession
In order to prove adverse possession coexistence of all the 5 elements is mandatory even if one of them is missing then the act shall not amount to adverse possession as it was held in the judgement of Ravinder Kaul Grewaland ors Vs Manjit Kaur and ors[36]. In some cases adverse possessions cannot be claimed for instance there is a tenant staying on a property, there can be two scenarios, first one being he is paying rent on time and staying with the consent of the owner the second one being he is neither paying his rent nor is he staying on the property with consent and even the owner of the property has not made reasonable efforts to evict him, reasonable efforts to evict him may include filing an eviction petition immediately.

In the first instance, as we can see that the intention of the person is not hostile since he is living with the consent and paying rent and hence, we cannot claim the adverse possession. However, in the second case the possession is hostile to the true owner and still he has not taken any precautions then after the exhaustion of the limitation period he can claim the adverse possession depending upon the facts.

There can be instances like a person allowing his family member to stay in his house in which also there can be various scenarios, if the family members have access to the area of the person claiming the adverse possession then he shall not be granted because it is necessary that others should not have access to it as it was seen in the case of Chhote Khan and ors V. Mal Khan and Ors[37] but the court in this case also observed that if there is some clear evidence of hostility among the members accompanied with exclusion of others from using the property then provided the 5 essentials are fulfilled the person may be allowed to seek adverse possession.

Also in instances when the possession is not absolute for example if a person is a casual user of a property in a sense that it makes him a casual trespasser, in such cases also he will not be able to seek adverse possession as it was held in the case of Ravinder Karu Grewal and ors V. Manjit Kaur and ors[38] that a casual user does not constitute to an adverse possession, in the same case the court also observed that the person whose property is under adverse possession is never remediless as he always can file an eviction notice and in case despite of the notices the person fails to evict the property, then adverse possession cannot be granted.

Except for these instances the Supreme court has also given guidelines of cases where adverse possession of property cannot be claimed under the limitations act that are if the person who's property is being claimed is a minor or if he is serving in the army.

Hence, after reading and going through various instances it should be pretty clear as to what kind of acts amount to adverse possession and what kind of acts are not. If all the 5 essentials of adverse possession are fulfilled then it amounts to adverse possession which is subjected to interpretation of various court judgements because due to very limited provisions there is a lot of grey area for that we rely on court judgements.

A critical Analysis of Adverse Possession and its constitutionality
The author believes that the provision of adverse possession is a violation of article 300A of the Indian Constitution as it is the individual right of a person to have control over his property, it is a basic human right to have access to his property whenever he wants to and adverse possession violates that basic human right, right to property has been termed as a human right under the judgement of Tukaram Kanna Joshi V. M.I.D.C [39]

Right to property is a persons constitutional right as per the judgement of Bishamber V. State of Uttar Pradesh[40] and the author believes it is a violation of the same. It is not quite possible for an individual to keep a check and prove the reasonable steps that they have taken to acquire their lands back, in order to support this argument the author would like to rely on the judgement of Vidya Devi V. State of Himachal Pradesh and ors[41], Vidya Devi was an 80 years old widow and owner of 3 hectares of land that she lost in the year 1967 to the government and granted her no compensation since it was taken under the provision of adverse possession, after not receiving any remedy in a lower court she approached the Supreme Court where Justice Indu Malhotra who presided over the judgement stated that this is a case of forceful expropriation of property¯ that the state disguised as adverse possession in the lower court.

Expropriation refers to when government claims land owned by people for benefit of public. Justice Indu Malhotra held this is a violation of basic human right with respect to property. The Supreme court under article 300A and 142 commanded the state to compensate Vidya Devi. Article 142 is the extraordinary power given to Supreme Court to pass any decree or order to enforce justice. The case of Vidya Devi is one of the many cases present and the author believes that in any case where article 142 is exercised we need to make sure reforms are introduced because enforcing of article 142 should not become a common practice since it can only be passed by a Supreme Court and every citizen is entitled to justice however not every citizen has enough resources to approach the Supreme Court.

The author believes that such laws are unjust and unfair because the limitation act only punishes the owner for not asserting his diligence over the property that he owns for 12 years and rewards the person with hostile interests. It sounds inappropriate to make a law that rewards a person with dishonest intention because the registered owner did not bother to evict him and the parliament should consider abolishing this law. We say that the limitation period for government land is 30 years but the same has not been mentioned under statutory provisions and if India is a welfare state where the government and a common man have the same right then why are there no provisions of claiming adverse possession over government land? Why only the land of common man is covered under the law? While not denying the need for provision for adverse possession of land, the period of 12 years is too short a period of 30 or 50 years would sound far more considerable.

Conclusion
Adverse possession is probably one of the oldest laws to ever exist if not in the legal sense then in real life, its origin can be traced to 4000 years back and we still practice it just it has evolved a lot over the time from the Code of Hammurabi¯ to The Limitation Act 1963¯ we have seen a lot of changes however the basic essence of the law remains the same that is the land belongs to the one who uses it and if the true owner fails to vacate him on time then he loses his possession forever.

We understood the law and legal provisions by reading the article 64 and article 65 of The Limitation Act and understood the 5 essentials that need to be fulfilled in order to claim the adverse possession of land and understood what kind of acts will be covered under adverse possession and covered the various grey areas through case laws, the author believes that this provision is very dynamic because it has been continuously evolving over time and right now also we are mostly dependent on court judgements and there are also clashes between judgements so definitely the provisions need reforms.

It is of utmost importance that human rights should be valued, no helpless person should be stripped off their property rights. While totally agreeing with the significance of having provisions of adverse possession it is also very important to understand the period of 12 years is very less in the opinion of the author because it is not always that people are not diligent but at times they are not in a state to get the adverse possession seeker evicted some of the examples of such instances can be when the person is residing in some other state or the person is too aged or suffering from any disease, these reasons should not be why a person is stripped off his right to own the property he has worked all his life for some of the reforms that the author can also suggest is changing the duration in the limitation act from adverse possession from 12 years to at least 30 years and add essentials making the hostile intention to seek adverse possession mandatory because this is a matter of clash among various court judgements as well.

End-Notes:
  1. Robert Stewart; De Soto Morrison, Emilio D. Mining Reports (1883)
  2. of Perry v. Clissold 1907 A.C. 73
  3. Nair Service Society V. K.C. Alexander AIR 1968 SC 1165
  4. Eugene Allen; Wermuth, William Charles Gilmore. Modern American Law (1921).
  5. Karnataka Board of Wakf v. Government of India and ors 2004 10 SCC 779
  6. Thakur Kishan Singh V. Arvind Kumar 1994 6 SCC 591
  7. LRs Kachru and ors V. Mirza Abdul Gaffar and anr 1996 1 SCC 639
  8. Joseph D. Sullivan. Selected Cases on Real Property (1921).
  9. Ballantine, H. Title by Adverse Possession, Harvard Law Review (1918)
  10. Goodman Michael, The Morality of Adverse Possession of Land, The Modern Law Review (1968)
  11. MacIntyre D. ,Adverse Possession of Land, The Cambridge Law Journal (1975)
  12. Ballantine, Henry Winthrop, Claim of Title in Adverse Possession, The Yale Law Journal, vol. 28, no. 3, (1919)
  13. Goodman, Michael J. Adverse Possession of Land. Morality and Motive, The Modern Law Review 33, no. 3 (1970)
  14. Adverse Possession. What Constitutes. Exclusive Possession. Harvard Law Review 24, no. 3 (1911)
  15. Ballantine, Henry W. Title by Adverse Possession. Harvard Law Review 32, no. 2 (1918): 135-59.
  16. Miller, George D. "Real Property: Adverse Possession: What Constitutes Adverse Possession of Land Used Periodically." Michigan Law Review 50, no. 3 (1952): 483-85. Accessed April 24, 2021. doi:10.2307/1284556.
  17. W. W. Davies. Codes of Hammurabi and Moses with Copious Comments, Index, and Bible References (1905).
  18. C.H.W. Johns. Babylonian and Assyrian Laws, Contracts and Letters (1904).
  19. William; Nash, Howard P., Editors Mack. Cyclopedia of Law and Procedure (1901-1912).
  20. Joseph Kinnicut Angell. Treatise on the Limitations of Actions at Law and Suits in Equity and Admiralty, A (1854).
  21. Tilghman E. Ballard, Editor; Ballard, Emerson E., Editor. Annual on the Law of Real Property (1892-1893).
  22. Eugene Allen; Wermuth Gilmore, William Charles, Editors. Modern American Law: A Systematic and Comprehensive Commentary on the Fundamental Principles of American Law (1929).
  23. Jno. A. Hutchinson. Land Titles in Virginia and West Virginia (1887).
  24. Kerns Wright. Ohio Real Property Titles: Practice, Outlines and Forms
  25. Gerald O.; Dykstra Dykstra, Lillian G. Business Law of Real Estate (1956).
  26. Mahesh Chand Sharma V. Raj Kumari Sharma 1996 AIR 869
  27. S.M Karim V. Bibi Sakina 1964 AIR 1254
  28. D.N. Venkatarayappa V. State of Karnataka AIR 1997 SC 2930
  29. Parsinni V. Sukhi (1993) 4 SCC 375
  30. Govindammal V. R.Perumal Chettiar and ors (2006) 11 SCC 600
  31. Hemaji Waghaji Jat V. Bhikhabhai Khengarbhai (2009) 16 SCC 512
  32. T. Anjanappa V. Somalingappa (2006) 7 SCC 570
  33. Roop Singh V. Ram Singh AIR 2000 SC 1485
  34. L.N Aswathama and another V. V.P. Prakash Jt 2009 (9) 527
  35. Ram Nagina Rai and ors V, Deo Kumar Rai 2018(10) Scale 630
  36. Ravinder Kaul Grewaland ors Vs Manjit Kaur and ors AIR 1982 SC 33
  37. Chhote Khan and ors V. Mal Khan and Ors AIR 1954 SC 575
  38. Ravinder Karu Grewal and ors V. Manjit Kaur and ors 2019(4) R.C.R.(Civil) 1
  39. Tukaram Kanna Joshi V. M.I.D.C AIR 2013 SC 565
  40. Bishamber V. State of Uttar Pradesh AIR 1982 SC 33
  41. Vidya Devi V. State of Himachal Pradesh and ors 2020SCCOnline SC 14

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