NATIONAL LAW UNIVERSITY ODISHA

Semester VII: Transfer of Property & Easement Act Project

TOPIC: EXAMINING THE DOCTRINE OF ADVERSE POSSESSION

SUBMITTED TO:
DR. DOLLY JABBAL
(ASSOCIATE PROFESSOR OF LAW, NLUO)
MS. SHENOY RUJITHA T.R.
(ASSISTANT PROFESSOR OF LAW, NLUO)

SUBMITTED BY:
TANAY MISHRA
(2016/BBA/050)

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 TABLE OF CONTENTS

Introduction .......................................................................................................................... 3

Synopsis................................................................................................................................ 4

[I]. Abstract .................................................................................................................. 4

[II]. Hypothesis .............................................................................................................. 4

[III]. Research Questions ................................................................................................. 4

[IV]. Chapterization......................................................................................................... 4

Adverse Possession ............................................................................................................... 5

[I]. History of Adverse Possession ................................................................................ 5

[II]. India’s Position on Adverse Possession ................................................................... 6

[III]. Essentials of Adverse Possession ............................................................................ 7

Justifications for Adverse Possession .................................................................................... 9

Justifications against Adverse Possessions .......................................................................... 12

Conclusion .......................................................................................................................... 16

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 INTRODUCTION

Adverse Possession is the right over a piece of property that accrues to a person because of
his/her continuous and uninterrupted usage of the property. The duration of the time when the
right over the land is acquired by the adverse possessor varies from country to country. The
ownership rights which pass through the adverse possessor as a result of his possession is due
to the rule of prescription.1 Prescription is a type of easement which gives the right to use the
property of another.
The word ‘property’ signifies a bundle of rights which are supposed be ensured by the state.
The basic idea behind the concept of private property is that it cannot be taken away from its
owner without his/her consent. How can anyone possibly call anything their property if law
permits any third party to take their property away from them? But that is the basic principle
governing the law of adverse possession.2
The researcher’s endeavour in this project work will be to address the question of whether the
doctrine of adverse possession needs to be abolished or not. This is necessary as the doctrine
serves as the biggest exception to the fundamental right of property and seems more anomalous
than equitable. The researcher will attempt to answer if the law of adverse possession serves
public interest or goes against it, especially in the Indian context.

The researcher will begin the project work with a brief history of adverse possession followed
by India’s position on the same. Then, the basic essentials of adverse possession will be
discussed. After this, the researcher will put forward reasons which have given over centuries
to justify the concept of adverse possession. These justifications will be weighed against the
criticisms of adverse possession which have been evinced by many courts and eminent
thinkers. The researcher will conclude the project work by proposing a set of reforms to this
doctrine.

1
T. P. S. Harsha, Adverse Possession through Prescription, Concept Note, Submitted in 2015.
2
Jeffery Evans Stake, The Uneasy Case for Adverse Possession, pp. 2420, 89 Geo. L.J. 2419 2000-2001.

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 SYNOPSIS

[I]. ABSTRACT
Adverse Possession is the right over a piece of property that accrues to a person because of
his/her continuous and uninterrupted usage of the property. The duration of the time when the
right over the land is acquired by the adverse possessor varies from country to country. The
ownership rights which pass through the adverse possessor as a result of his possession is due
to the rule of prescription. The researcher’s endeavour in the project work will be to address
the question of whether the doctrine of adverse possession needs to be abolished or not. This
is necessary as the doctrine serves as the biggest exception to the fundamental right of property
and seems more anomalous than equitable. The researcher will attempt to answer if the law of
adverse possession serves public interest or goes against it, especially in the Indian context.

[II]. HYPOTHESIS
The justification for the law of adverse possession shall be weighed against the criticisms of
adverse possession which have been evinced by many courts and eminent thinkers.

[III]. RESEARCH QUESTIONS

1. Whether the doctrine of adverse possession justified in India law?
2. Does the Indian law on adverse possession requires changes in it?

[IV]. CHAPTERIZATION
1. History of adverse possession
2. India’s position on adverse possession
3. Basic essentials of adverse possession
4. Justification for Adverse possession
5. Justification against adverse possession
6. Proposals for Reform

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 ADVERSE POSSESSION

[I]. HISTORY OF ADVERSE POSSESSION

The concept of adverse possession is very ancient. It appears in a portion of the Code of
Hammurabi, some 2000 years BCE (Before Christian Era). The law states “If a chieftain or a
man leaves his house, garden, and field 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.”3 Under Roman law, a person, who in fact, had no title, could acquire
title over a property by destroying rights of the owner by the operation of usucapio. This was
decreed by the XII tables (449 BC) which entitled ownership of movable property after one
year of uninterrupted possession and if immovable property after two years.4 This was subject
to certain conditions. After that, Emperor Justinian (527-565) made considerable changes in
law of adverse possession. By this time, usucapio of immovable property had already become
obsolete and its place had been taken by longi temporis possessio where long term prescription
of property did not give any proprietary rights to the adverse possessor but barred the remedy
of the actual owner.5

In England, it was the common law courts which developed the doctrine of adverse possession
in between 1623 and 1833. This doctrine allowed a person to ouster of a true owner of the
property which was clearly not in the latter’s interest. 6 It created a lot of problems as only the
remedy of the owner was extinguished, not his rights. This, for all practical purposes, rendered
the property unmarketable.7 To rectify this, the Real Property Limitation Act of 1833 was
enacted which extinguished all the rights of the original owner after the statutory time period
and created proprietary interest in the adverse possessor.8 The purpose of development of this
rule was stated to be for public good by making transfer and alienation of land to be easier,
more consistent and cheaper.9 This rule substituted the doctrine of ‘adverse possession’ with
‘possession’. The Real Property Limitation Act which was passed in 1874 further reduced the

3
Code of Hammurabi, c. 1789 BCE, translated by L. W. King, available at
http://www.fordham.edu/halsall/ancient/hamcode.html.
4
USUCAPION IN ROMAN LAW, 6 Law Coach 69 1926 1928, available at http://heinonline.org/HOL/License.
5
Id.
6
Beaulane Prop. Ltd. v. Palmer, [2005] 4 All E.R. 461, ¶ 70.
7
Id at ¶ 72.
8
Id. at ¶ 76.
9
Id. at ¶ 69.

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statutory time period of adverse possession from twenty to twelve years. 10 The English Court
of Appeal again revived the doctrine of adverse possession in 1879. The court held that
possession of the property has to be averse to rights of the owner to oust the owner from his
property.11 The concept of adverse possession was statutorily recognized in the Limitation Act
of 1939 and 1980 which affirmed time period of adverse possession to be twelve years. The
current England law position on doctrine of adverse position is governed by Land Registration
Act 2002 which has abolished the effect of all the previous statutes. 12

[II]. INDIA’S POSITION ON ADVERSE POSSESSION

The legal position of law of adverse possession was summarized by the Privy Council in Perry
vs. Clissold13 “It cannot be disputed that a person in possession of land in the assumed
character of owner and exercising peaceably the ordinary rights of ownership has a perfectly
good title against all the world but the rightful owner. And if the rightful owner does not come
forward and assert his title by the process of law within the period prescribed by the provisions
of the statute of Limitation applicable to the case, his right is forever extinguished and the
possessory owner acquires an absolute title.” This statement was accepted by the Indian
Supreme Court and adverse possession was judicially recognized.14

In India, the law of adverse possession is governed by Indian Limitation Act, 1963. Under
Article 65 of the Act,15 an owner of the property is required to file a suit with twelve years for
possession of any immovable property or any interest in such a property. Similarly, Article 64
of the Act16 prescribes a limitation period for suit to get a possessory right in a property. Both
of these Articles have to be read with Section 27 of the Act which deals with extinguishment
of right to property. It reads “At the determination of the period hereby limited to any person
for instituting the suit for possession of any property, his right to such property shall be

10
Susan Lorde Martin, Adverse Possession: Practical Realities and an Unjust Enrichment Standard, Real Estate
Law Journal 37(2), 2008 available
atttp://alsb.roundtablelive.org/Resources/Documents/NP%202008%20Martin.pdf.
11
Leigh v. Jack, (1879) Ex. D. 264.
12
Susan Lorde Martin, Adverse Possession: Practical Realities and an Unjust Enrichment Standard, Real Estate
Law Journal 37(2), 2008 available at
http://alsb.roundtablelive.org/Resources/Documents/NP%202008%20Martin.pdf.
13
(1907) AC 73, at 79.
14
Nair Service Society Ltd. vs. K.C. Alexander, AIR 1968 SC 1165.
15
Article 65, Indian Limitation Act, 1963.
16
Article 64, Indian Limitation Act, 1963.

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 extinguished.”17 Therefore, if a suit is not filed within twelve years, the owner will lose both
his rights for recovery of his property as well as its ownership.18

[III]. ESSENTIALS OF ADVERSE POSSESSION

To establish ownership rights and oust the real owner from the property under adverse
possession, five elements must be fulfilled by the adverse possessor. The possession of the
possessor must be (a) hostile or adverse, (b) actual (as to part of the land), (c) visible, notorious
and exclusive, (d) continuous for the statutory period, and (e) under claim or colour of title.19
The statutory time period against the real owner starts running only when the possession of the
land becomes adverse to him by someone else’s position.20 No limitation time can start
accruing unless it is favour of someone.21

‘Hostile’ possession signifies that the adverse possessor’s possession is not derived from
owner’s consent or authority. For example, a tenant cannot claim adverse possession from his
landlord as the former’s right to possession is derived from the landlord.22 By ‘actual’
possession, it means that the property should be utilized by the adverse possessor as if it would
be put to use by the rightful owner.23 ‘Visible and notorious’ possession signifies that actions
of the possessor should be open to public who start to believe that possessor is the actual
owner.24 For being ‘exclusive’, the possessor should not share the possession of the property
with the rightful owner.25 Possession will be considered to be ‘continuous’ if the possessor
doesn’t abandon the land and no one interrupts his/her possession. 26 The last element of ‘claim
of title’ has different meanings and consequences in different jurisdictions. Whereas in some
states it acts to reduce the limitation period, in others it demonstrates the actual possession of
the land.27

17
Section 27, Indian Limitation Act, 1908.
18
Consultation Paper-cum-Questionnaire on Adverse Possession of Land/Immovable Property, 20th Law
Commission of India, available at http://lawcommissionofindia.nic.in/reports/Adverse%20Possession.pdf.
19
Henry Winthrop Ballantine, Claim of Title in Adverse Possession, The Yale Law Journal 28(3), 1919, pp. 219
available at http://www.jstor.org/stable/787566.
20
E H BURN & J H CARTWRIGHT, CHERSHIRE AND BURN’S MODERN LAW OF REAL PROPERTY 1131 (Oxford
University Press 18th ed., 2011).
21
Moses v. Lovegrove, [1952] 2 QB 533.
22
A. JAMES CASNER, AMERICAN LAW OF PROPERTY 722-723 (Little Brown and Company, 1952).
23
Id. at 765.
24
Marengo Cave Co. v. Ross, 10 N.E.2d 917 (Ind. 1937).
25
WILLIAM B. STOEBUCK & DALE A. WHITMAN, THE LAW OF PROPERTY 859 (Hornbook Series 3rd
ed. 2000).
26
Id.
27
Van Valkenburgh v. Lutz, 106 N.E.2d 28 (N.Y. 1952).

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All the five elements talk about the type and nature of possession which gives right to a person
to adversely own the property. Therefore, it is important to understand how possession gives a
right to person to claim property rights in a land. This can be credited to the development of
common law. Common law developed the doctrine of the estate – the so called ‘owner’ of the
land was not the absolute owner of the land but rather, held an estate in the land. The owner of
an estate had a right to possession of the property for a certain period of time. There were
various kinds of estates such as ‘fee in simple’ where the estate owner could exercise
proprietary rights over the property as long as he had heirs or successors. The ‘ownership’ of
the land is still based on the doctrine of the estate, which is inextricably linked to the concept
of right to possession of land. This led the common law to take the view that taking possession
of land amounted to acquisition to the title of the land. Possession was the root of the title. 28 It
has also been reiterated again and again that possession constitutes nine points in law.29

28
E H BURN & J H CARTWRIGHT, CHERSHIRE AND BURN’S MODERN LAW OF REAL PROPERTY 1126 (Oxford
University Press 18th ed., 2011).
29
Corp. of Kingston-upon-Hull v. Horner, 98 Eng. Rep. 807, 815 (K.B. 1774).

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 JUSTIFICATIONS FOR ADVERSE POSSESSION

Though statutory limitation in each jurisdiction is different, the doctrine of adverse possession
has been recognized by almost all the legal regimes. 30 At first instance, title by adverse
possession sounds like acquiring title by theft or stealing, an archaic method of acquiring land
without paying for it. The doctrine demonstrates a strange instance of converting a wrong into
a right which is contrary to one of the most fundamental axioms of the law.31
"For true it is, that neither fraud nor might Can make a title where there wanteth right."32
Despite this, the doctrine of adverse possession has been present in common law for a long
time now. Therefore, it becomes imperative to understand justifications behind its existence.
According to the jurist Henry W. Ballantine, the great purpose of adverse possession “is
automatically to quiet all titles which are openly and consistently asserted, to provide proof of
meritorious titles and correct errors in conveyancing”. 33
This means that the adverse
possession doctrine makes ownership more settled and certain. It is good to have quieted titles
because they facilitate market transfers, reduce disincentives to investment, make it easier to
obtain credit from lenders, and help owners feel more secure. 34 More often or not, a purchaser
or lender buys and gives loans respectively because he/she believes that the person possessing
the land owns it. If adverse possession is done away with, the buyers and lenders won’t feel
safe investing. A situation lasting for a long period creates certain expectations in the minds of
people and it would not be right to let down those people’s trust.35 Further, adverse possession
also increases chances of the lender getting repaid.36

Another theory which attempts to justify adverse possession is the ‘sleeping theory’.37
According to this theory, wrongdoers are those people who sleep on their rights and don’t act
upon them. As a consequence, they are penalized by losing their property rights. The law takes

30
Consultation Paper-cum-Questionnaire on Adverse Possession of Land/Immovable Property, 20th Law
Commission of India, available at http://lawcommissionofindia.nic.in/reports/Adverse%20Possession.pdf.
31
Henry W. Ballantine, Title by Adverse Possession, Harvard Law Review 32(2), 1918), pp. 135, available at
http://www.jstor.org/stable/1327641.
32
Quoted in Altham's case, 8 Coke Rep. I53, 77 Engl. reprint, 707.
33
Henry W. Ballantine, Title by Adverse Possession, Harvard Law Review 32(2), 1918), pp. 135, available at
http://www.jstor.org/stable/1327641.
34
Jeffery Evans Stake, The Uneasy Case for Adverse Possession, pp. 2441, 89 Geo. L.J. 2419 2000-2001.
35
Consultation Paper-cum-Questionnaire on Adverse Possession of Land/Immovable Property, 20th Law
Commission of India, available at http://lawcommissionofindia.nic.in/reports/Adverse%20Possession.pdf.
36
Jeffery Evans Stake, The Uneasy Case for Adverse Possession, pp. 2441, 89 Geo. L.J. 2419 2000-2001.
37
Id, at 2434.

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away rights from those people who don’t use their land as they no longer have a right to own
it.38
Adverse possession could be also viewed as an instrument of social policy for changing
behaviour of the owner towards their own land. The doctrine incentivizes the lazy owners to
put their land into production. Otherwise, they will lose it to an adverse possessor who values
the property more.39 It is also said that the doctrine of adverse possession stimulates monitoring
of the property by the owner. By doing this, the owner of the property will have a greater chance
of receiving notifications if someone wants to buy that property from him at a good price.40
Another justification for the law of adverse possession is captured in the quote that the
possession is “nine points of the law”.41
The final and a very celebrated justification for adverse possession is in the quotation -"The
true explanation of title by prescription seems to me to be that man, like a tree in the cleft of a
rock, gradually shapes his roots to his surroundings, and when the roots have grown to a
certain size, can't be displaced without cutting at his life.”42
One interpretation of this theory is provided by Prof. Margaret Radin. Her theory states that if
an adverse possessor invests in a land for some time, he/she develops attachment to the land
that becomes critical to the person’s identity. If we then take the property from the adverse
possessor, then we will be depriving the person from him/herself.43 However, this interpretation
has majorly two problems. First, on what basis can it be said that the adverse possessor’s
attachment to the property is more than the attachment of the rightful owner. Second, if the
person actually attaches himself to the property, how does the doctrine of adverse possession
allow taking of the property with the subsequent adverse possessors? 44
The second interpretation of this statement is provided by Judge Richard Posner. His
interpretation is based on ‘diminishing marginal utility of income’. He says that losing of
property will be deprivation of wealth for the adverse possessor and gain of property will be
accumulation of wealth for the rightful owner. If we consider both of their wealth is based on
that property, the combined utility would be greater if the adverse possessor was allowed to

38
Jeffery Evans Stake, The Uneasy Case for Adverse Possession, pp. 2434-35, 89 Geo. L.J. 2419 2000-2001.
39
Id.
40
Id.
41
Corp. of Kingston-upon-Hull v. Horner, 98 Eng. Rep. 807, 815 (K.B. 1774).
42
Letter from Oliver Wendell Holmes to William James (Apr. 1, 1907), in THE MIND AND FAITH OF JUSTICE
HOLMES: His SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS 417, 417-18 (Max Lerner ed.,
1943).
43
Margaret Jane Radin, Time, Possession, and Alienation, 64 WASH. U. L.Q. 739, 741-42, 745 (1986).
44
Jeffery Evans Stake, The Uneasy Case for Adverse Possession, pp. 2456, 89 Geo. L.J. 2419 2000-2001.

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keep the property.45 This interpretation assumes that the adverse possessor is always poorer
than the rightful owner. It is based on the logic that if the possessor in fact had the means to
acquire some property, he wouldn’t have taken possession of someone else’s property. Briefly,
as marginal utility decreases by rise in income/wealth, combined wealth of both adverse
possessor and rightful owner will be greater if the adverse possessor has the property as long
as he is poorer.46 However, most disputes under adverse possession are boundary disputes and
there, the assumption of the adverse possessor being poorer falls flat. Another big assumption
which this theory makes is that marginal utility of both the adverse possessor and the rightful
owner is based on similar considerations, which is very improbable.47
The newest interpretation of this statement is the ‘loss-aversion’ theory which basically states
that a human always prefers to not to give up a thing rather acquiring something new. This is
because people get attached to the property they utilize and have more affinity towards it
Therefore, the loss to the society will be greater if the adverse possessor loses the property as
not only does, he loses the property but also himself as he is attached to the property.48

In the Indian context, eliminating the doctrine of adverse possession can be very troublesome.
It can trigger practical problems and affect those who are bona fide owners of certain land but
don’t have land titles. This is especially in the case of rural areas where most agriculturist
families have been in the possession of their land for a long time by means of purchase,
inheritance, gift and other instruments but without acquiring any formal title deeds. Due to lack
of an adequate legal regime where land titles can be registered and the careless manner by
which land records are maintained by the government, it is difficult for people to learn who is
really owner of the property. The populace in these areas have been living in their ancestral
houses and working on their lands from time immemorial, with a reasonable belief that they
and their ancestors were, in fact, the actual owners of the land. If adverse possession is taken
away, even the legitimate owners of the property who have just depended on the element of
possession as basis of their ownership will suffer.49 Therefore, it is said that possession is nine
points in law.

45
RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 89 (Wolters Kluwer 5th ed., 1998).
46
Jeffery Evans Stake, The Uneasy Case for Adverse Possession, pp. 2457, 89 Geo. L.J. 2419 2000-2001.
47
Jeffery Evans Stake, The Uneasy Case for Adverse Possession, pp. 2457, 89 Geo. L.J. 2419 2000-2001.
48
Jeffery Evans Stake, The Uneasy Case for Adverse Possession, pp. 2455 – 2466, 89 Geo. L.J. 2419 2000-2001.
49
Consultation Paper-cum-Questionnaire on Adverse Possession of Land/Immovable Property, 20th Law
Commission of India, available at http://lawcommissionofindia.nic.in/reports/Adverse%20Possession.pdf.

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 JUSTIFICATIONS AGAINST ADVERSE POSSESSIONS

The concept of adverse possession also has its fair share of critiques. First, though sleeping
theory might have conformed to social norms before, it goes against them today. This theory
is hard to accept as an adequate justification for adverse possession. Just because a person
leaves his land untended or if he refrains from doing something shouldn’t make him culpable
or guilty. He has not behaved appallingly and does not deserve to lose his rights.50

Second, the reasoning that land should always be put to productive use is a need of the past. In
the current kind of market, the ‘highest and best use’ of a piece of property may be to just hold
it and wait for a better opportunity with better prospects. 51 It is often desirable now that the
land should not always be put to productive usage.52 For example, the US government paid
farmers to not grow certain plants on certain lands. 53 There are legislations which prohibit
destruction of historic buildings even though it is profitable.54 Moreover, an argument can also
be made that ‘highest and best use’ should emphasize environmental consequences. 55 The
judiciary has allowed petitions of NGOs and other activist groups not allowing development
activities to accomplish environmental safety.56 As it can be seen, even law has recognized that
productivity might not be the best thing for the society in all the cases. Further, it can be the
case that the titled owner who is not currently utilizing his land is being civic-minded and
responsible and should not be punished by giving an advantage to a trespasser.57 In any case,
an owner of the property has the right to enjoy the property the way he/she wants and it should
be left to them on how they are doing it. The freedom of not using the property is included in
this right. Leaving the land idle may serve the beneficial purpose of holding it until its best use
becomes clear.58

50
Jeffery Evans Stake, The Uneasy Case for Adverse Possession, pp. 2435, 89 Geo. L.J. 2419 2000-2001.
51
First RepublicBank v. United States, 1988 WL 159147.
52
John G. Sprankling, The Antiwilderness Bias in American Property Law, 63 U. Cn. L. REV. 519, 526, 539-40
(1996).
53
11 NEIL E. HARL, AGRICULTURAL LAW § 91.03[l][c]-[d], at 91-24 to 91-26 (1991).
54
Penn. Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978).
55
Stephen Sussna, The Concept of Highest and Best Use under the Takings Theory, 21 URB. LAW. 113, 115
(1989).
56
Madden v. Nature Conservancy, 823 F. Supp. 815 (1992).
57
SUSAN LORDE MARTIN, ADVERSE POSSESSION: PRACTICAL REALITIES AND AN UNJUST ENRICHMENT
STANDARD, Real Estate Law Journal 37(2), 2008 available at
http://alsb.roundtablelive.org/Resources/Documents/NP%202008%20Martin.pdf.
58
Jeffery Evans Stake, The Uneasy Case for Adverse Possession, pp. 2435-2436, 89 Geo. L.J. 2419 2000-2001.

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Other problem with adverse possession is that it prohibits the owner from letting anyone use
his/her land. Even if the rightful owner doesn’t have a problem with a person using his property,
the law mandates him to stop him. Otherwise, he will lose the property to the possessor. Though
it is possible to have a lease or easement agreement with this possessor, it might create some
rights in the latter’s favour which is not desirable. This will prevent the optimal use of land.
Either the rightful owner can exclude the possessor and strain his relations with the person or
he can give up his property right.59 In the case of Hayward and Another v. Chaloner,60 the
claimant, a village rector had an oral tenancy of the land with the defendants but no rent had
been paid for more than twelve years as the latter did not want to take money from the church.
The rector claimed a small piece of land used as an addition to the garden by adverse
possession. Though the judges had to accept the claim, they were very critical of the concept
of adverse possession. Lord Denning said: "All I would say is that, if the law does penalize
good nature in this way, the sooner it is changed the better",61 while Russell L.J. observed,
"the generous indulgence of the plaintiffs and their predecessors in title, loyal churchmen all,
having resulted in a free accretion at their expense to the lands of the church." 62

Further, this doctrine also necessitates the owner to visit his land again and again so as to not
lose control over it. This can be seen as nothing but a waste of resources. 63 In some countries,
legal scholars have requested for abolition of adverse possession describing it as legalized land
theft and a means of unjust enrichment. Further, it has also been pointed out that law of adverse
possession is very uncertain and courts have often given conflicting interpretations to
expressions like adverse, hostile, actual and open possession.64

The doctrine was challenged in the European Court of Human Rights in the case of JA Pye
(Oxford) Ltd. v. United Kingdom.65 The Court, in this case, tried to read the human rights
position in the context of adverse possession. It observed that the law which ousts an owner on
the basis of his non-action for twelve years is "illogical and disproportionate" and effect of

59
Id. at 2432.
60
[1967] 3 All E.R. 122.
61
Id.
62
Id.
63
Jeffry M. Netter et al., An Economic Analysis of Adverse Possession Statutes, 6 INT'L REv. L. & EcON. 217,
220 (1986).
64
Consultation Paper-cum-Questionnaire on Adverse Possession of Land/Immovable Property, 20th Law
Commission of India, available at http://lawcommissionofindia.nic.in/reports/Adverse%20Possession.pdf.
65
(2005) 49 ERG 90.

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such a law seems “draconian to the owner" and "a windfall for the squatter".66 However, under
the appeal, the Grand Chamber of the ECHR held that the existence of a limitation period for
actions for recovery of land pursues a legitimate objective and a fair balance required by Article
1, Protocol No. 1 to the Convention67 was not upset by the law dealing with adverse
possession.68

The Supreme Court of India in Hemaji Waghaji vs. Bhikhabhai Khengarbhai69 has also taken
a critical view of this doctrine. In this case, the court described the law of adverse possession
as “irrational, illogical and wholly disproportionate and extremely harsh for the true owner”
and “a windfall for dishonest person who had illegally taken possession of the property”. The
court further went on to say that law should not confer benefit on those people who take
possession of property in contravention of the law. This would basically mean that the legal
system is giving a stamp of approval to those actions which are inherently illegal. 70 It
recommended the Union of India to taka fresh look into the doctrine and make suitable changes
accordingly.71

Even in the case of State of Haryana v. Mukesh Kumar,72 the doctrine of adverse possession
was subject to a lot of criticism. In this case, Haryana police had pleaded adverse possession
with respect to some land which was rejected due to lack of evidence. The court described the
law as ‘archaic’ which needed a serious relook in the interests of the society. The judge said,
“Adverse possession allows a trespasser – a person guilty of a tort, or even a crime, in the eye
of the 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.” 73 It was further observed
by the Court that if the law has to be retained, it should allow the rightful owner to at least
recover compensation from the adverse possessor. 74 The government should also consider not

66
Id.
67
Article 1 of Protocol 1 of the European Convention on Human Rights.
68
Consultation Paper-cum-Questionnaire on Adverse Possession of Land/Immovable Property, 20th Law
Commission of India, available at http://lawcommissionofindia.nic.in/reports/Adverse%20Possession.pdf.
69
AIR 2009 SC 103.
70
Hemaji Waghaji vs. Bhikhabhai Khengarbhai, AIR 2009 SC 103, para. 34-36.
71
Id.
72
2011(10) SCC 404.
73
Id.
74
Id. at paragraph 41.

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allowing pleas of ‘bad faith’ adverse possession, that is, adverse possession which is achieved
through intentional trespassing.75 Another proposal suggest by the Apex court was to increase
the statutory time period to thirty to fifty years, so as to make sure that only those people who
are intimately connected to property get ownership and only those who don’t care about their
property lose it.76

75
Id. at paragraph 40.
76
Consultation Paper-cum-Questionnaire on Adverse Possession of Land/Immovable Property, 20th Law
Commission of India, available at http://lawcommissionofindia.nic.in/reports/Adverse%20Possession.pdf.

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 CONCLUSION

The doctrine of Adverse Possession is the right over a piece of property that accrues to a person
because of his/her continuous and uninterrupted usage of the property.
After discussing both justifications for and against the doctrine of adverse possession, we have
come to a conclusion that there is a serious need in the law to change the doctrine. Therefore,
we propose a set of recommendations which can be enacted in the country.
1. As majority of the population resides in rural areas and most of these people don’t have
land title over these properties, the immediate abolition of adverse possession may have
counter-productive consequences. Government should mandate every owner to register
their properties and provide them with land titles, so that their ownership becomes
certain. When everyone has secure land titles, then adverse possession can be abolished
completely.
2. If the government is planning to keep the doctrine, it should make suitable alterations
to the same. In this regard, Land Registration Act 2002 of UK can be of great help. In
the new system, a person adversely occupying the property won’t automatically become
the proprietor after the end of the limitation period. In the UK system, an adverse
possessor has to apply for ownership after ten years of possession. The real owner of
the property then will be notified about this and only if he doesn’t object, then the
property will be transferred to the adverse possessor. If the real owner doesn’t evict the
possessor within next two years after this event, the possessor can apply again and get
the property transferred on his name.77 This system can be implemented in our country
majorly for two reasons: i) It incentivizes people to register their property and ii) it
protects those owners who are not aware that their property has been adversely taken.
3. Reiterating the reforms suggested in the case of State of Haryana v. Mukesh Kumar,78
the government should abolish ‘bad faith’ adverse possession. Further, as most of the
disputes under adverse possession are boundary disputes, it is very improbable that the
adverse possessor will be very poor and won’t have assets to pay the rightful owner.
Therefore, at least in these cases, there can be a provision for compensation to rightful
owner who was wrongfully ousted from his property. Lastly, limitation period for
extinguishment of rights should be raised to at least thirty years.

77
Section 97, Schedule 6, Land Registration Act, 2002.
78
2011(10) SCC 404.

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