Landmark Supreme Court judgment on Theory of Adverse Possession
REPORTABLE IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
PETITION FOR SPECIAL LEAVE TO APPEAL (CIVIL) NO. 28034/2011
(Arising out of CC 9038/2010)
state of Haryana …Petitione
Versus Mukesh Kumar & Ors. …Respondents
J U D G M E N T
Dalveer Bhandari, J.
1. People are often astonished to learn that a trespasser may take the title of a building or land from the true owner in certain conditions and such theft is even authorized by law.
2. The theory of adverse possession is also perceiv ed by the general public as a dishonest way to obtain title to property. Property right advocates argue that mistakes by landowners or negligence on their part should never transfer their property rights to a 2 wrongdoer, who never paid valuable consideration fo r such an interest.
3. The government itself may acquire land by advers e possession. Fairness dictates and commands that if the government can acquire title to private land throug h adverse possession, it should be able to lose title under the same circumstances.
4. We have heard the learned counsel for the State of Haryana. We do not deem it appropriate to financia lly burden the respondents by issuing notice in this Sp ecial Leave Petition. A very vital question which arises for consideration in this petition is whether the State , which is in charge of protection of life, liberty and proper ty of the people can be permitted to grab the land and proper ty of its own citizens under the banner of the plea of advers e possession?
5. Brief facts, relevant to dispose of this Special Leave Petition are recapitulated as under:
6. The State of Haryana had filed a Civil Suit thro ugh the Superintendent of Police, Gurgaon, seeking a relief of declaration to the effect that it has acquired the rights of 3 ownership by way of adverse possession over land measuring 8 biswas comprising khewat no. 34, khata no. 56, khasra no. 3673/452 situated in the revenue est ate of Hidayatpur Chhavni, Haryana.
7. The other prayer in the suit was that the sale d eed dated 26 th March, 1990, mutation no. 3690 dated 22 nd November, 1990 as well as judgment and decree dated 19 th May, 1992, passed in Civil Suit No. 368 dated 9 th March, 1991 are liable to be set aside. As a consequentia l relief, it was also prayed that the defendants be perpetually restrained from interfering with the peaceful posse ssion of the plaintiff (petitioner herein) over the suit lan d. For the sake of convenience we are referring the petitioner as the plaintiff and the respondents as defendants.
8. In the written statement, the defendants raised a number of preliminary objections pertaining to esto ppel, cause of action and mis-joinder of necessary partie s. It was specifically denied that the plaintiff ever remaine d in possession of the suit property for the last 55 yea rs. It was submitted that the disputed property was still lyin g vacant. However, the plaintiff recently occupied it by usin g force and 4 thereafter have also raised a boundary wall of poli ce line. It was denied in the written statement that the plaint iff acquired right of ownership by way of adverse posse ssion qua property in question. The defendants prayed fo r dismissal of suit and by way of a counter claim als o prayed for a decree for possession qua suit property be pa ssed.
9. The Trial Court framed the following Issues in t he suit.
1. Whether plaintiffs have become owner of disputed property by way of adverse possession? OPP
2. Whether sale deed 26.3.1990 and mutation no. 3690 dated 22.11.90 are null and void as alleged? OPP
3. Whether judgment and decree dated 19.05.92 passed in civil suit no. 368 dated 9.3.91 is liable to be set aside alleged? OPP
4. Whether the suit of the plaintiff is not maintainab le in the present form? OPP
5. Whether the plaintiff has no locus-standi to file t he present suit? OPP
6. Whether the plaintiff has no cause of action to fil e the present suit? OPP
7. Whether the suit of the plaintiff is bad for mis- joinder of necessary parties? OPP
8. Whether defendants no. 1 to 4 are rightful owners o f disputed property on the basis of impugned sale deed dated 23.6.1990 registered on 3.7.1990? OPP 5
9. Whether defendants are entitled for possession of disputed property? OPP
10. Issue No. 1 which relates to adverse possession and issue No. 4 pertaining to maintainability were deci ded together. According to the Trial Court, the plaint iff has failed to prove the possession over the disputed pr operty because the plaintiff could not produce any documen tary evidence to prove this. On the contrary, revenue r ecords placed on the file shows that the defendants are th e owners in possession of disputed property. The Trial Cour t observed that possession of State, as claimed in th e plaint for a continuous period of 55 years, stood falsifie d by the documents issued by the officials of the State.
11. The Trial Court also observed that despite clai ming adverse possession, there was no pleading qua denia l of title of the defendants by the plaintiff, so much so that the specific day when the alleged possession of State a llegedly became adverse against the defendants has not been mentioned in order to establish the starting point of limitation could be ascertained. 6
12. The Trial Court relied on the judgment of this Court in S.M. Karim v. Mst. Bibi Sakina AIR 1964 SC 1254 wherein this Court has laid down that the adverse possession must be adequate in continuity, in publi city and extent and a plea is required at the least to show when possession becomes adverse. The Court also held tha t long possession is not necessarily adverse possession.
13. The Trial Court also relied on a decision of t he High Court of Punjab and Haryana in the case of Bhim Singh & Ors. v. Zile Singh & Ors., AIR 2006 P and H 195, wherein it was stated that no declaration can be so ught by a plaintiff with regard to the ownership on the basis of adverse possession.
14. The Trial Court came to specific conclusion tha t despite the fact that the possession of the plainti ff over the disputed land is admitted on behalf of defendants, Issue No. 1 stand decided against the plaintiff. It was held that the suit of the plaintiff claiming ownership by way of adverse possession is not maintainable. Consequently, Issu e No. 1 was decided against the plaintiff and Trial No. 4 w as decided in favour of the defendants. 7
15. The Trial Court decided Issue Nos. 2, 3, 5 and 6 together and came to the definite conclusion that t he plaintiff failed to prove its possession over the p roperty in question. It was also held that the plaintiff had no locus standi to challenge the validity of the impugned sale dee d, mutation as well as the judgment and decree because the plaintiff was neither the owner nor in possession o f the property in dispute. Consequently, the plaintiff h ad no right to say that the impugned sale deed dated 26 th March, 1990 was a sham transaction and the suit of mutation dat ed 22 nd November, 1990 and, thereafter, the judgment and de cree dated 19 th May, 1992 passed in Civil Suit No. 386 dated 9 th March, 1991 are liable to be set aside.
16. The Trial Court came to the conclusion that the plaintiff having no right or title in the suit prop erty has neither locus standi nor cause of action to file the present suit. Issue Nos. 2 and 3 were decided against the plaintiff, whereas, Issue Nos. 5 and 6 were decided in favour of the defendants.
17. Regarding Issue Nos. 8 and 9, the Trial Court o bserved that once it is held that defendant Nos. 1 to 4 are owners of 8 the disputed property, which is presently in posses sion of the plaintiff without any right, they (defendants) are entitled to its possession. Hence, Issue Nos. 8 and 9 were also decided in favour of the defendants.
18. Issue No. 7 was not pressed and decided against the defendants.
19. Regarding Issue No. 10 (relief) the Trial Court observed as under:
“ As a sequel to the findings of this court on the issues mentioned above, the suit of the plaintiff stands dismissed, however, counter claim filed by defendants is decreed with costs to the effect that they are entitled to possession of land measuring 8 biswas comprising of khewat no. 34 khata no. 56 khasa no. 3673/452 situated in revenue estate of Hidayatpur Chhavni village now the part of known as Patel Nagar, Gurgaon. Decree sheet be drawn accordingly. File be consigned to the record room after due compliance.”
20. The plaintiff, aggrieved by the judgment of the Trial Court filed an appeal (Civil Appeal No. 33) before the learned Additional District Judge, Gurgaon. Learned Additi onal District Judge while deciding the appeal, relied on the judgment of the Punjab & Haryana High Court delivere d in 9 the case of Food Corporation of India and Another v. Dayal Singh 1991 PLJ 425 , wherein it was observed that it does not behove the Government to take the plea of adverse possession against the citizens.
21. Learned Additional District Judge also relied o n other judgments of Punjab & Haryana High Court in the cases of Bhim Singh & Ors. (supra) and Kanak Ram & Ors. v. Chanan Singh & Ors. (2007) 146 PLR 498 wherein it was held that a person in adverse possession of immovab le property cannot file a suit for declaration claimin g ownership and such a suit was not maintainable.
22. Before parting with the judgment the learned Additional District Judge observed regarding conduc t of the plaintiff that the present suit was filed by State of Haryana by the then Superintendent of Police, Gurgaon on 11 th May, 1996. It was also observed by the learned Addition al District Judge that the Police department is for th e protection of the people and property of the citize ns and the police department had unnecessarily dragged the defendants in unnecessary litigation. The appeal w as dismissed with exemplary cost of Rs.25,000/-. 1
23. Unfortunately, despite serious strictures passe d by the Court, the State of Haryana did not learn a lesson and preferred a Second Appeal (RSA No. 3909 of 2008) be fore the High Court of Punjab and Haryana, Chandigarh aga inst the judgments and decrees of the two courts below.
24. The High Court, relying on the earlier judgments , observed that the welfare State which was responsib le for the protection of life and property of its citizens , was in the present case, itself trying to grab the land/proper ty of the defendants under the garb of plea of adverse posses sion and hence the action of the plaintiff is deplorable and disgraceful.
25. Unfortunately, the State of Haryana, is still n ot satisfied with the three strong judgments by three d ifferent forums given against the State and is still quite a nxious and keen to grab the property of the defendants in a cl andestine manner on the plea of adverse possession.
26. In a democracy, governed by rule of law, the ta sk of protecting life and property of the citizens is ent rusted to the police department of the government. In the in stant case, the suit has been filed through the Superinte ndent of 2 to a neighbour, operated in violation of Article 1 of Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’). 52 . It was contended by the applicants that they had been deprived of their land by the operation of the domestic law on adverse possession which is in contravention with Article 1 of Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’), which reads as under: ‘Every natural or legal person is entitled to the peaceful enjoyment of his possession. No one shall be deprived of his possession except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.’
” This Court in Revamma case also mentioned that the European Council of Human Rights importantly laid down three-pronged test to judge the interference of the Government with the right of “peaceful enjoyment of property”: (SCC p. 79, para 53) “
53 . … [In] Beyeler v. Italy [GC] No. 33202 of 1996 §§ 108-14 ECHR 2000-I, it was held that the ‘interference’ should comply with the principle of lawfulness and pursue a legitimate aim (public interest) by means reasonably proportionate to the aim sought to be realised.”
2 The Court observed:( Revamma case 79-80, paras 54-56) “
54 . … ‘The question nevertheless remains whether, even having regard to the lack of care and inadvertence on the part of the applicants and their advisers, the deprivation of their title to the registered land and the transfer of beneficial ownership to those in unauthorized possession struck a fair balance with any legitimate public interest served. In these circumstances, the Court concludes that the application of the provisions of the 1925 and 1980 Acts to deprive the applicant companies of their title to the registered land imposed on them an individual and excessive burden and upset the fair balance between the demands of the public interest on the one hand and the applicants’ right to the peaceful enjoyment of their possessions on the other. There has therefore been a violation of Article 1 of Protocol 1.’
55 . The question of the application of Article 41 was referred for the Grand Chamber Hearing of the ECHR. This case sets the field of adverse possession and its interface with the right to peaceful enjoyment in all its complexity.
56 . Therefore it will have to be kept in mind the courts around the world are taking an unkind view towards statutes of limitation overriding property rights.”
39. In Hemaji Waghaji Jat case , this Court ultimately observed as under: 2 “32. Before parting with this case, we deem it appropriate to observe that the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a r ank trespasser or who had wrongfully taken possession of the property of the true owner. 33. We fail to comprehend why the law should place premium on dishonesty by legitimising possession of a rank trespasser and compelling the owner to lose his possession only because of his inaction in taking back the possession within limitation.” Fifth Amendment of the U.S. Constitution – a principle of a civilized society
40. Another important development in the protection of property rights was the Fifth Amendment. James Madison was the drafter and key supporter for the F ifth Amendment. The Fifth Amendment states: “nor shall private property be taken for public use, without j ust compensation”. The main issue is to pay just compensation for acquiring the property. There are primarily two situations when a landowner may obtai n compensation for land officially transferred to or 2 depreciated by the government. First, an owner ma y be entitled to compensation when a governmental entity intentionally acquires private property through a f ormal condemnation proceeding and without the owner’s consent. The State’s power to take property is considered inherent through its eminent domain powe rs as a sovereign. Through the condemnation proceedin gs, the government obtains the necessary interest in th e land, and the Fifth Amendment requires that the property owner be compensated for this loss.
41. The second situation requiring compensation under Fifth Amendment occurs when the government has not officially acquired private property throug h a formal condemnation proceeding, but “nonetheless takes property by physically invading or appropriat ing it”. Under this scenario, the property owner, at t he point in which a “taking” has occurred, has the opt ion of filing a claim against the government actor to r ecover just compensation for the loss. When the landowner sues the government seeking compensation for a taki ng, 2 it is considered an inverse condemnation proceeding , because the landowner and not the government is bringing the cause of action.
42. We inherited this law of adverse possession fro m the British. The Parliament may consider abolishing th e law of adverse possession or at least amending and making substantial changes in law in the larger public int erest. The Government instrumentalities – including the po lice – in the instant case have attempted to possess land adversely. This, in our opinion, a testament to the absurdity of the law and a black mark upon the justice system ’s legitimacy. The Government should protect the prop erty of a citizen – not steal it. And yet, as the law curr ently stands, they may do just that. If this law is to be retaine d, according to the wisdom of the Parliament, then at least the law must require those who adversely possess land to compens ate title owners according to the prevalent market rate of the land or property in question. This alternative wou ld provide some semblance of justice to those who have done not hing other than sitting on their rights for the statutor y period, while allowing the adverse possessor to remain on p roperty. 2 While it may be indefensible to require all adverse possessors – some of whom may be poor – to pay mark et rates for the land they possess, perhaps some lesse r amount would be realistic in most of the cases. Th e Parliament may either fix a set range of rates or t o leave it to the judiciary with the option of choosing from w ithin a set range of rates so as to tailor the compensation to the equities of a given case.
43. The Parliament must seriously consider at least to abolish “bad faith” adverse possession, i.e., adver se possession achieved through intentional trespassing . Actually believing it to be their own could receive title through adverse possession sends a wrong signal to the society at large. Such a change would ensure that only those who had established attachments to the land t hrough honest means would be entitled to legal relief.
44. In case, the Parliament decides to retain the l aw of adverse possession, the Parliament might simply req uire adverse possession claimants to possess the propert y in question for a period of 30 to 50 years, rather tha n a mere 12. Such an extension would help to ensure that 2 successful claimants have lived on the land for gen erations, and are therefore less likely to be individually cu lpable for the trespass (although their forebears might). A lo nger statutory period would also decrease the frequency of adverse possession suits and ensure that only those claimants most intimately connected with the land a cquire it, while only the most passive and unprotective ow ners lose title.
45. Reverting to the facts of this case, if the Pol ice department of the State with all its might is bent upon taking possession of any land or building in a clan destine manner, then, perhaps no one would be able to effec tively prevent them.
46. It is our bounden duty and obligation to ascert ain the intention of the Parliament while interpreting the law. Law and Justice, more often than not, happily coincide only rarely we find serious conflict. The archaic law of adverse possession is one such. A serious re-look is absol utely imperative in the larger interest of the people.
47. Adverse possession allows a trespasser – a pers on guilty of a tort, or even a crime, in the eyes of l aw – to gain 2 legal title to land which he has illegally possesse d for 12 years. How 12 years of illegality can suddenly be c onverted to legal title is, logically and morally speaking, baffling. This outmoded law essentially asks the judiciary to place its stamp of approval upon conduct that the ordinary In dian citizen would find reprehensible.
48. The doctrine of adverse possession has troubled a great many legal minds. We are clearly of the opin ion that time has come for change.
49. 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.
50. It is indeed a very disturbing and dangerous tr end. In our considered view, it must be arrested without fu rther loss of time in the larger public interest. No Gov ernment Department, Public Undertaking, and much less the P olice Department should be permitted to perfect the title of the land or building by invoking the provisions of adve rse possession and grab the property of its own citizen s in the manner that has been done in this case. 2
51. In our considered view, there is an urgent need for a fresh look of the entire law on adverse possession. We recommend the Union of India to immediately conside r and seriously deliberate either abolition of the law of adverse possession and in the alternate to make suitable amendments in the law of adverse possession. A copy of this judgment be sent to the Secretary, Ministry of Law a nd Justice, Department of Legal Affairs, Government of India for taking appropriate steps in accordance with law.
52. This Special Leave Petition is dismissed with c osts of Rs.50,000/- (Rupees Fifty Thousand only) to be paid by the State of Haryana for filing a totally frivolous pet ition and unnecessarily wasting the time of the Court and demonstrating its evil design of grabbing the prope rties of lawful owners in a clandestine manner. The costs b e deposited within four weeks from the date of pronou ncement of this judgment. In this petition, we did not issu e notice to the defendants, therefore, we direct that the costs be deposited with the National Legal Services Authorit y for utilizing the same to enable the poor litigants to contest their cases.
53. This Special Leave Petition being devoid of any merit is accordingly dismissed.
(Dal veer Bhandari)
(Deep ak Verma)
September 30, 2011