11/11/2019 Ayodhya Verdict: Adverse Possession and the Doctrine of Lost Grant

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Ayodhya Verdict: What the Supreme Court held on Adverse

Possession and the Doctrine of Lost Grant
Aditya AK November 10 2019

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11/11/2019 Ayodhya Verdict: Adverse Possession and the Doctrine of Lost Grant

Nearly a month after it reserved judgment, a Constitution Bench of the Supreme Court today
pronounced its verdict in the Ayodhya dispute.

While many arguments made in the cases pertained to history and archaeology, a few legal questions
were posed to the Bench. Two of these - adverse possession and the doctrine of lost grant - were
raised by the Uttar Pradesh Sunni Central Waqf Board in its suit led in 1961.

As the dust settles after today’s pronouncement of the Ayodhya verdict, we take a look at how the
Supreme Court decided these two issues.

Adverse Possession

The Muslim parties claimed that even if there existed a Hindu temple on the disputed site, the Mosque
was built by Babur over 400 years ago, and that Muslims have been enjoying possession over the land
since. It was argued that such long, exclusive and continuous possession would extinguish the right,
title and interest of the temple and of the Hindu public.

As per the Court, possession is said to be adverse if:

It is peaceful, open, and continuous 

the character of the possession is adequate in continuity and in the public because the possession
has to be to the knowledge of the true owner in order for it to be adverse.

At the outset, the Bench noted that the plea of adverse possession was a subsidiary contention.
Moreover, it was noted that the Muslim parties had argued this topic with “ambivalence”, which the
Court puts down to the fact that any claim of adverse possession against the Hindus or the temple
would amount to an acceptance of their holding the title to the land.

“The plainti s have failed to adopt a clear stand evidently because they are conscious of the fact that in
pleading adverse possession, they must necessarily carry the burden of acknowledging the title of the
person or the entity against whom the plea of adverse possession has not been adequately set up in the
pleadings and as noted above, has not been put-forth with any certitude in the course of the
submissions.”

Apart from stating that the Muslims have been in long exclusive and continuous possession beginning
from the time when the Mosque was built and until it was desecrated, there was no evidence to back
the claim of adverse possession, the Court held. It was also highlighted no records are available with
respect to possession for the period between 1528 and 1860. 

The Court further refers to incidents that took place in 1856-7 and 1949, when communal riots
between Hindus and Muslims and the placing of the idols in the Mosque took place. These incidents
alone are evidence that the possession of the land by Muslims cannot be regarded as continuous. This
would not meet the standard required to prove adverse possession, the Court held.

Further,

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11/11/2019 Ayodhya Verdict: Adverse Possession and the Doctrine of Lost Grant

“The evidence in the records indicate that Hindus, post the setting up of the railing have, in any event,
been in possession of the outer courtyard. On this basis alone, the plea of adverse possession set up by
the plainti s in respect of the entirety of the area represented by the letters A B C D must fail.”

Doctrine of Lost Grant

An allied argument put forth by the Muslim parties, related to the claim of continuous possession of
the disputed land, was the doctrine of lost grant.

Under this doctrine, a long, continuous use or possession points to a legal presumption that the right
to use was previously conveyed to the user and that the instrument of conveyance has been lost. 

The Court noted that enjoyment since the time of legal memory is to be viewed as an indication that
the right claimed had been conferred on the claimant by a grant. Further, the onus of proving
continued and uninterrupted enjoyment of property through long use is on the plainti .

The only conclusive evidence for the doctrine to apply is that possession must be uninterrupted for a
su cient length of time. The Court also noted that in the absence of de ned persons to whom the
grant was made, there will be no presumption of lost grant.

In the Ayodhya case, the Bench noted that the plainti s in Suit 4 did not provide any evidence to
support the application of the doctrine of lost grant. It also pointed out how the pleas of adverse
possession and lost grant were contradictory.

“In fact, the alternate plea of adverse possession is destructive of a valid legal basis to apply the
doctrine of lost grant as a rule of evidence. Adverse possession postulates the vesting of title in one
person and the existence of a long continued and uninterrupted possession of another, to the
knowledge of and in a manner hostile to, the true title holder. The plea of adverse possession would
lead to an inference against the application of the doctrine of lost grant as a plea of adverse possession
is premised in title vesting in someone other than the alleged grantee.”

Thus, it was held that the doctrine of lost grant does not apply to the Ayodhya dispute.

[Read the Judgment]

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11/11/2019 Ayodhya Verdict: Adverse Possession and the Doctrine of Lost Grant

Bar & Bench (www.barandbench.com)

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal Nos 10866 -10867 of 2010

M Siddiq (D) Thr Lrs ...Appellants

Versus

Mahant Suresh Das & Ors ...Respondents

WITH

Civil Appeal Nos 4768-4771/2011

WITH

Civil Appeal No 2636/2011

WITH

Civil Appeal No 821/2011

WITH

Civil Appeal No 4739/2011

WITH

Civil Appeal Nos 4905-4908/2011

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