The Adversity of Adverse Possession- a time to re-look at the doctrine? SCI examines.

On 30th September 2011 in State of Haryana v. Mukesh Kumar & Ors., the Supreme Court of India handed down a judgement that could force a re-look at the colonial ‘relic‘ of adverse possession which has the effect of legally (read ‘with authority of law’) vesting the title of a property in a trespasser from a true owner.

The Court held that “the theory of adverse possession is … perceived by the general public as a dishonest way to obtain title to property… mistakes by landowners or negligence on their part should never transfer their property rights to a wrongdoer, who never paid valuable consideration for such an interest.”

Although,the Government can also acquire land by adverse possession, but “fairness dictates and commands that if the government can acquire title to private land through adverse possession, it should be able to lose title under the same circumstances”.

The Court then examined the historical exigencies that led to the creation of a right to title in a property by way of adverse possession. However, it said that position had changed in the U.S. and the U.K., with right to property being elevated to a human right.

In advising the Parliament to take a re-look at the outmoded doctrine, the Court made various important alternative observations:

1. The Parliament may consider abolishing the law of adverse possession or at least amending and making substantial changes in law in the larger public interest. And especially, if the governmental authorities, like the police try to use their might to acquite land using this doctrine, it is the most tragic – in the Supreme Court’s words – “a testament to the absurdity of the law and a black mark upon the justice system’s legitimacy“. Rather, the government should protect a citizen’s property and not ‘steal’ it.
2. The Parliament must either require the adverse possessors to compensate the owners at the prevalent market value, or abolish the ‘bad faith’ adverse possession, and maybe increase the period of possession to claim adversely from the current 12 years to 30 or 50 years.

Finally the Court held that:

“Adverse possession allows a trespasser – a person guilty of a tort, or even a crime, in the eyes of law – to gain legal title to land which he has illegally possessed for 12 years. How 12 years of illegality can suddenly be converted 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 Indian citizen would find reprehensible.

The doctrine of adverse possession has troubled a great many legal minds. We are clearly of the opinion that time has come for change.

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.”