Supreme Court of India Declares the Doctrine of Adverse Possession Archaic
April 21, 2016
Supreme Court of India Declares the Doctrine of Adverse Possession Archaic
State of Haryana vs Mukesh Kumar & Others
Dalveer Bhandari, Deepak Verma
September 30, 2011
Reported by Linda Awuor & Faith Wanjiku
The Petitioner had filed a civil suit seeking a relief of declaration to the effect that it had acquired the rights of ownership by way of adverse possession over land situated in the revenue estate of Hidayatpur Chhavni, Haryana. The other prayer in the suit was that the sale deed, mutation no. 3690 as well as judgment and decree passed in Civil Suit No. 368 were liable to be set aside. As a consequential relief, it was also prayed that the Respondents be perpetually restrained from interfering with the peaceful possession of the Petitioner over the suit land. It was specifically denied that the Petitioner ever remained in possession of the suit property for the last 55 years. It was submitted that the disputed property was still lying vacant. However, the Petitioner had recently occupied it by using force and thereafter also raised a boundary wall of police line.
i. Whether the Petitioner had acquired the rights of ownership by way of adverse possession.
- The concept of adverse possession was born in England around 1275 and was initially created to allow a person to claim right of seisin from his ancestry. Many felt that the original law that relied on seisin was difficult to establish, and around 1623 a statute of limitations was put into place that allowed for a person in possession of property for twenty years or more to acquire title to that property. The early English doctrine was designed to prevent legal disputes over property rights that were time consuming and costly. The doctrine was also created to prevent the waste of land by forcing owners to monitor their property or suffer the consequence of losing title.
- The concept of adverse possession was subsequently adopted in the United States. The doctrine was especially important in early American periods to cure the growing number of title disputes. The American version mirrored the English law, which was illustrated by most states adopting a twenty-year statute of limitations for adverse possession claims. As America developed to the present date, property rights became increasingly more important and land became limited. As a result, the time period to acquire land by adverse possession was reduced in some states to as little as five years, while in others, it remained as long as forty years. The United States also changed the traditional doctrine by preventing the use of adverse possession against property held by a governmental entity.
- The doctrine of adverse possession arose in an era where lands were vast particularly in the United States of America and documentation sparse in order to give quietus to the title of the possessor and prevent fanciful claims from erupting. The concept of adverse possession exited to cure potential or actual defects in real estate titles by putting a statute of limitation on possible litigation over ownership and possession. A landowner could be secure in title to his land; otherwise, long-lost heirs of any former owner, possessor or lien holder of centuries past could come forward with a legal claim on the property. Since independence of the country it witnessed registered documents of title and more proper, if not perfect, entries of title in the government records. The situation having changed, the statute called for a change.
- In Munichikkanna Reddy v. Revammathe concept of adverse possession was dealt with in detail. The legal position in various countries was also examined particularly in English and American systems. It was observed that adverse possession in one sense was based on the theory or presumption that the owner had abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It followed that sound qualities of a typical adverse possession lay in it being open, continuous and hostile.
- A person pleading adverse possession had no equities in his favour since he was trying to defeat the rights of the true owner. It was for him to clearly plead and establish all facts necessary to establish adverse possession. Though the law of adverse possession was gotten from the British, it was important to note that English Courts were taking a very negative view towards the law of adverse possession. The English law was amended and changed substantially to reflect the changes, particularly in light of the view that property was a human right adopted by the European Commission. Adverse possession was termed as a negative and consequential right effected only because somebody else’s positive right to access the Court was barred by operation of law. As against the rights of the paper-owner, in the context of adverse possession, there evolved a set of competing rights in favour of the adverse possessor who had, for a long period of time, cared for the land, developed it, as against the owner of the property who had ignored the property. That was stated in Taylor v. Twinberrow.
- In JA Pye (Oxford) Ltd. v. United Kingdom went on to observe the irony in law of adverse possession. It was observed that the law which provided to oust an owner on the basis of inaction of 12 years was illogical and disproportionate. The effect of such law would be draconian to the owner and a windfall for the squatter. The Supreme Court expressed its astonishment on the prevalent law that ousting an owner for not taking action within limitation was illogical. The Applicant Company aggrieved by the said judgment filed an appeal and the Court of Appeal reversed the High Court decision. The Appellant then appealed to the House of Lords, which, allowed their appeal and restored the order of the High Court.It was deemed appropriate to observe that the law of adverse possession which ousted an owner on the basis of inaction within limitation was irrational, illogical and wholly disproportionate. The law as it existed was 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 have benefited a person who in a clandestine manner took possession of the property of the owner in contravention of law. That in substance would have meant that the law gave seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner. The Supreme Court failed 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. That was stated in the Hemaji Waghaji Jat case.
- Another important development in the protection of property rights was the Fifth Amendment in the U.S. Constitution. James Madison was the drafter and key supporter for the Fifth Amendment. The Fifth Amendment stated that private property would not be taken for public use, without just compensation. The main issue was to pay just compensation for acquiring the property. There were primarily two situations when a landowner could obtain compensation for land officially transferred to or depreciated by the Government. First, an owner could be entitled to compensation when a governmental entity intentionally acquired private property through a formal condemnation proceeding and without the owner’s consent. The State’s power to take property was considered inherent through its eminent domain powers as a sovereign. Through the condemnation proceedings, the government obtained the necessary interest in the land, and the Fifth Amendment required that the property owner be compensated for the loss.
- The second situation requiring compensation under Fifth Amendment occurred when the Government had not officially acquired private property through a formal condemnation proceeding, but nonetheless took property by physically invading or appropriating it. Under that scenario, the property owner, at the point in which a taking had occurred, had the option of filing a claim against the Government actor to recover just compensation for the loss. When the landowner sued the Government seeking compensation for a taking, it was considered an inverse condemnation proceeding, because the landowner and not the government was bringing the cause of action.
- The law of adverse possession was inherited from the British. The Parliament could have considered abolishing the law of adverse possession or at least amending and making substantial changes in law in the larger public interest. The Government instrumentalities including the police in the instant case had attempted to possess land adversely. That, in the Court’s opinion, was a testament to the absurdity of the law and a black mark upon the justice system’s legitimacy. The Government should have protected the property of a citizen, not steal it. And yet, as the law currently stood, they could have done just that. If that law was to be retained, according to the wisdom of the Parliament, then at least the law had to require those who adversely possessed land to compensate title owners according to the prevalent market rate of the land or property in question. That alternative would have provided some semblance of justice to those who did nothing other than sitting on their rights for the statutory period, while allowing the adverse possessor to remain on property.
- While it may have been indefensible to require all adverse possessors, some of whom could have been poor, to pay market rates for the land they possessed, perhaps some lesser amount could have been realistic in most of the cases. The Parliament could either have fixed a set range of rates or left it to the judiciary with the option of choosing from within a set range of rates so as to have tailored the compensation to the equities of a given case. The Parliament could seriously have considered to at least abolish bad faith adverse possession, that is, adverse possession achieved through intentional trespassing. Believing it to be their own and thus could receive title through adverse possession sent a wrong signal to the society at large. Such a change could ensure that only those who had established attachments to the land through honest means would be entitled to legal relief.
- In case the Parliament decided to retain the law of adverse possession, the Parliament could have simply required adverse possession claimants to possess the property in question for a period of 30 to 50 years, rather than a mere 12. Such an extension could have helped to ensure that successful claimants had lived on the land for generations, and were therefore less likely to be individually culpable for the trespass (although their forebears might have). A longer statutory period could also have decreased the frequency of adverse possession suits and ensured that only those claimants most intimately connected with the land acquired it, while only the most passive and unprotective owners lost title.
- It was the Court’s bounden duty and obligation to ascertain the intention of the Parliament while interpreting the law. Law and Justice, more often than not, happily coincided only rarely we found serious conflict. The archaic law of adverse possession was one such. A serious re-look was absolutely imperative in the larger interest of the people. Adverse possession allowed 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 had illegally possessed for 12 years. How 12 years of illegality could suddenly be converted to legal title was, logically and morally speaking, baffling.
- The outmoded law essentially asked the Judiciary to place its stamp of approval upon conduct that the ordinary Indian citizen would find reprehensible. The doctrine of adverse possession had troubled a great many legal minds. The Court was clearly of the opinion that time had come for change. If the protectors of law became the grabbers of the property (land and building), then, people would be left with no protection and there would be a total anarchy in the entire country. It was indeed a very disturbing and dangerous trend. It had to be arrested without further loss of time in the larger public interest. No government department, public undertaking, and much less the Police Department could be permitted to perfect the title of the land or building by invoking the provisions of adverse possession and grab the property of its own citizens in the manner that had been done in the case.
- There was an urgent need for a fresh look of the entire law on adverse possession. The Supreme Court recommended the Union of India to immediately consider 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 the judgment was to be sent to the Secretary, Ministry of Law and Justice, Department of Legal Affairs, Government of India for taking appropriate steps in accordance with law.
Petition dismissed .Petitioner to bear costs.
Relevance to Kenyan Situation
The Kenyan position on adverse possession of land remains contentious. The Courts have found in its favour especially where it’s proved but still call for reforms. The Constitution of Kenya 2010 unlike the Repealed one in section 75(6) does not provide for adverse possession. However the Land Act No. 6 of 2012, Land Registration Act No. 3 of 2012 and the Limitation of Actions Act Chapter 22 Laws of Kenya, do.
Section 7(d) of the Land Act recognizes prescription as a method of acquiring title to land though it does not provide how this acquisition is to be realized. Section 28 (h) of the Land Registration Act too recognizes right to land acquired by virtue of any written law relating to the limitation of actions or other rights acquired by any written law. Section 38 of the Limitation of Actions Act provides for the procedure an adverse possessor is to follow in order to be registered as the new proprietor of the land in place of the registered owner.
However, Article 40(2(a) of the Constitution of Kenya 2010 provides that Parliament shall not enact a law that permits the State or any person to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description. Secondly in terms of section 107, the Government can compulsorily acquire private land and compensate the owner. Section 3(1) of the Trespass Act Chapter 294 Laws of Kenya provides that any person who without reasonable excuse enters, is or remains upon, or erects any structure on, or cultivates or tills, or grazes stock or permits stock to be on, private land without the consent of the occupier thereof shall be guilty of an offence. Part IX of the Land Act, provides for the establishment of settlement schemes to facilitate access to land, shelter and livelihood; settlement programs to provide for access to land to squatters, displaced persons and establishment of Land Settlement Fund to be applied in the provision of access to land for squatters and displaced persons.
In Mtana Lewa v Kahindi Ngala , it was held that acquisition of land by adverse possession was not inconsistent with Article 40 (2) (a) of the Constitution as the Constitution had to be read and interpreted in a holistic and purposive manner. However, K M’inoti JA termed it as extreme to an extent while Makhandia JA stated that it would be a proper recourse for the statutes to be carefully researched and developed to cover the mischief of unscrupulous squatters in the current state of affairs. Ouko JA, stated that reforms were required in the area which included reasonable compensation of the paper owner for loss of his land to the neighbour since in the case of squatters and displaced persons section 135 (3) (b) of the Land Act made provision for a fund to be used in purchasing private land to settle such class of people. He also stated that although the acquisition process under sections 7, 9, 13, 37 and 38 of the Limitation of Actions Act follows due process of the law, the most acceptable way of hearing the paper-owner was by a procedure, similar to that of the English Registration of Land Act 2002, where the paper owner was given notice on the 10th year, to decide his fate with regard to his ownership of the land as he may have only relapsed into a siesta but not gone to sleep. It was only when the owner failed to take advantage of the window could it be concluded safely that he had lost interest in the property.