Saji Koduvath, Advocate, Kottayam & Jojy George Koduvath

Contents in Nutshell

The 22^nd Law Commission, headed by former Chief Justice of Karnataka High Court, Ritu Raj Awasthi (Chairperson), and comprising of Justice (retired) K.T. Sankaran (Kerala High Court), Prof. (Dr.) Anand Paliwal, and Prof. D.P. Verma (Full-Time Members), observed in its 280^th Report that the law relating to adverse possession should be continued in its present form and that there was no justification for making any change thereto. This Report, on the subject “The Law on Adverse Possession”, was placed on 24^th May, 2023.

Background

The report of the Law Commission was called-for in the light of the Judgment of the Apex Court in Hemaji Waghaji  v. Bhikhabhai Khengarbhai, (2009) 16 SCC 517.

Hemaji Waghaji  v. Bhikhabhai Khengarbhai: It was held in this decision that the law of adverse possession was “irrational, illogical, and wholly disproportionate”. It was observed that the law should not place “a premium on dishonesty” and support the illegal action of a “rank trespasser” who had wrongfully taken possession of the true owner’s property and that there was a need to have a fresh look at the law of adverse possession, and required the Union of India to seriously consider the issue and make suitable changes, wherever necessary. The Supreme Court held as under:

• “34. 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 has illegally taken possession of the property of the true owner. The law ought not to benefit or give 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.
• 35. We fail to comprehend why the law should place premium on dishonesty by legitimizing possession of a rank trespasser and compelling the owner to lose its possession only because of his inaction in taking back the possession within limitation.
• 36. In our considered view, there is an urgent need of fresh look regarding the law on adverse possession. We recommend the Union of India to seriously consider and make suitable changes in the law of adverse possession. A copy of this judgment 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. “

Pursuant to this, a reference was made to the Law Commission by the Ministry of Law & Justice requesting the Commission to undertake a study in the matter and furnish a report on the same.

Read Blog: How to Plead Adverse Possession? Adverse Possession: An Evolving Concept.

Main Grounds of Recommendations of the Law Commission

The 22^nd Law Commission did not pursue the observations in Hemaji Waghaji; on the contrary, upholding the law on adverse possession, it emphasised that the present law ensures that ‘there is always an owner or claimant to the contentious land, and that it is precisely the reason why the law validates the claim of adverse possession made by the squatter’.

The assertions and remarks of the Law Commission (no change is required to be brought in the existing law on adverse possession) came, inter alia, in the following premises:

• 1. The concept of adverse possession is very old.
• 2. It is rooted in the idea that land must not be left vacant and there should always someone in charge of that property in the eyes of the law.
• 3. Burden of proof as to adverse possession is shifted (by the Limitation Act of 1963) on the person who claims it. The law on adverse possession underwent a significant change post the enactment of the Limitation Act of 1963. By virtue of the said change, the position of the true owner was fortified as he had to merely prove his title, while the burden of proof of adverse possession is shifted on the person claiming so.

Notable Observations of the Law Commission on Adverse Possession

The Law Commission made the following important and notable observations on adverse possession –

• “6.12. The Limitation Act applies to courts and not to quasi-judicial bodies or Tribunals. (See L.S. Synthetics Ltd. v. Fairgrowlh Financial Semices Ltd., AIR 2005 SC 1209) (2004) 11 SCC 456; M.P. Steel Corporation v. Commission of Central Excise (2015) 7 SCC 582. Generally speaking, the Limitation Act only bars the remedy but doesn’t destroy the right to which the remedy relates to. The exception to the general rule is contained in Section 27 of the Limitation Act, 1963.
• 6.13. Though the period of limitation prescribed in the Limitation Act precludes a plaintiff from bringing a suit which is barred by Limitation, there is no such limitation so far as any defence is concerned. The rationale behind the law of limitation is that it is founded on public policy. The concept of adverse possession is based on the legal maxim ‘Vigilantibus non dormientibus subvenit lex‘ which means that the law favours only the vigilant and not the sleepy – only the active citizen and not those who are dormant or in other words those who are not concerned about their rights.”
• 7.1. The Limitation Act is an Act of repose. “Adverse possession statutes, like other statutes of limitation, rest on a public policy that do not promote litigation and aim at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence.” (See: PT Munichikkanna Reddy and others v. Revamma, (2007) 6 SCC 59: AIR 2007 SC 1753)
• 7.2. Possession and adverse possession are not the same thing. The classical requirement of Adverse Possession is that the possession must be nec vi nec clam nec precario, i.e to say, the possession required must be adequate in continuity, in publicity and in extent. However, it is sufficient that the possession be overt and without any attempt at concealment so that the person against whom time is running out, if he exercises due vigilance, can be aware of what is happening. (See: Lakshmi Reddy v. Lakshmi Reddy AIR 1957 SC 314; Secretary of State for India v. Debandra Lal Khan AIR 1934 PC 23, Karnataka Board of Wakf v. Government of India and ors. (2004) l0 SCC 779; Ravinder Kaur Grewal v. Manjit Kaur (2019) 8 SCC 729; S.M. Karim v. Bibi Sakina (1964) 6 SCR 780: AIR 1964 SC 1254; Balkrishan v. Satyaprakash (2001) 2 SCC 498).
• 7.3. A person pleading adverse possession has no equities in his favour. “Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. “(See: PT Munichikkanna Reddy and others v. Revamma, (2007) 6 SCC 59: AIR 2007 SC 1753)
• 7.5. Possession must be open and without any attempt at concealment. It is, however, not necessary that possession must be so effective as to bring it to the specific knowledge of the owner (except ouster).^#
  • ^{#See: Notes under Caption: “Should the person who claims adverse possession necessarily know the true owner?}“
• 7 .ll. Mere continuance of unauthorised possession, for a period of more than twelve years is not enough.
  • “…. that mere termination of a licence of a licensee does not enable the licensee to claim adverse possession, unless and until he sets up a title hostile to that of the licensor after termination of his licence. It is not merely unauthorised possession on termination of his licence that enables the licensee to claim title by adverse possession but there must be some overt act on the part of the licensee to show that he is claiming adverse title. It is possible that the licensor may not file an action for the purpose of recovering possession of the premises from the licensee after terminating his licence but that by itself cannot enable the licensee to claim title by adverse possession. There must be some overt act on the part of the licensee indicating assertion of hostile title. Mere continuance of unauthorised possession even for a period of more than I2 years is not enough.” (Gaya Prasad Dikshit v. Dr. Nirmal Chander AIR 1984 SC 930: (1984)2 SCC 286)
  • “It is well recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity  and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner’s title must be peaceful, open and continuous. The  possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former’s hostile action. “(See T. Anjanappa  v. Somalingappa, (2006) 7 SCC 570.)”
• 7.12. As against co-owners, the co-owner who claims adverse possession has to plead and prove ouster also. The co-heir/co-owner in possession cannot render his possession adverse to the other co-heir/ co-owner not in possession merely by any secret hostile animus. It is well settled that in order to establish adverse possession of one co-owner as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir’s title. It is well settled that mere non-participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession. [See Coriea v. Appuhamy l9l2 AC 230; Lakshmi Reddy v. Lakshmi Reddy AIR 1957 SC 3 14; Maharajadhiraj of Burdwan Udaychand Mahatab Chand v. Subodh Gopal Bose and Others AIR 197l SC 376: (1970) 3 SCC 681; Shambhu Prasad Singh v. Phool Kumari and Others AIR l97l SC 1337: (1971) 2 SCC 28); Syed Shah Gulam Ghouse Mohiuddin and Others v. Syed Shah Ahmed Mohiuddin Qadri AlR 197l SC 2184:(1971) 1 SCC597; Bhubneshwar Prasad Narain Singh and Others v. Sidheshwar Mukherjee and Others AIR 1971 SC 2251: ( l97l ) I SCC 556; Mohd. Zainul Abudeen v. Syed Ahmed Mohideen and Others AIR 1990 SC 507: (1990) 1 SCC 345; Karbalai Begum v. Mohd Sayeed and Another AIR l98l SC 77: (1980) 4 SCC 396]
• 7.13. Permissive possession does not constitute adverse possession. A permissive possession cannot be converted into an adverse possession unless it is proved that the person in possession asserted an adverse title to the property to the knowledge of true owners for a period of twelve years or more. See State Bank of Travancore v. Arvindan Kunju Panicker and Others AIR 197l SC 996: (1972) 4 SCC 274.
• 7.14. Possession referable to a contract or to an agreement or to a mortgage cannot be adverse. When the commencement and continuance of possession is legal and proper, referable to a contract, it cannot be adverse. If a person has come into possession under colour of title, he can plead adverse possession only on disclaiming his title and pleading hostile claim to the knowledge of the title holder. See Padma Vithoba Chakkayya v. Mohd. Multani and Another AIR 1963 SC 70; Achal Reddy v. Ramakrtshna Reddiar and Others AIR 1990 SC 553: (1990) 4 SCC 706; Mool Chand Bakhru and Another v. Rohan and Others AIR 2002 SC 812: (2002) 2 SCC 612; Mohan Lal Kachru and Others v. Mirza Abdul Gaffar and Another AIR 1996 SC 910: (1996) I SCC 639; R. Chandevarappav. State of Karnataka (1995) 6 SCC 309
• 7.15. A question arose whether a person who has perfected title by adverse possession can file a suit for declaration of title. The Supreme Court in Gurudwara Sahib v. Gram Panchayat Village Sirthala (2014)1 SCC 669, State of Uttarakhand v. Mandir Sri Laxman Sidh Maharaj, (2017) 9 SCC 579  and Dharampal v. Punjab Wakf Board (2018) 11 SCC 449, held that adverse possession cannot be used as a sword but it can be used as a defence, i.e., as a shield. A three judge bench of the Supreme Court in Ravinder Kaur Grewal v. Manjit Kaur overruled these decisions and held that adverse possession can be used as a sword and a suit for declaration can be filed by a person who perfected the title by adverse possession. The Supreme Court held:
  • “The plea of acquisition of title by adverse possession can be taken by the plaintiff under Article 65 of the Limitation Act and there is no bar under the Limitation Act, 1963 to sue on the aforesaid basis in case of infringement of any rights of a plaintiff.”
• 7.16. Once title is acquired by prescription under Article 65 read with Section 27 of the Limitation Act, 1963, the person who has perfected title by adverse possession would get all the rights which the title holder of a land has.
• 7.17. The expression “title” would include the title acquired by the plaintiff by way of adverse possession. It was held in Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729 thus:
  • “58. ….Section 27 of the Limitation Act 1963 provides for extinguishment of right on the lapse of limitation fixed to institute a suit for possession of any property, the right to such property shall stand extinguished. The concept of adverse possession as evolved goes beyond it on completion of period and extinguishment of right confers the same right on the possessor, which has been extinguished and not more than that…. “
  • “Adverse possession is heritable and there can be tacking of adverse possession by two or more person as the right is transmissible. “In our opinion, it confers a perfected right which cannot be defeated on re-entry except as provided in Article 65 itself. Tacking is based on the fulfilment of certain conditions, tacking may be by possession by the purchaser, legatee or assignee, etc. so as to constitute continuity of possession, that person must be claiming through whom it is tacked, and would depend on the identity of the same property under the same right. Two distinct trespassers cannot tack their possession to constitute conferral of right by adverse possession for the prescribed period. “
• 7. 18. Once a suit for recovery of possession is instituted against the defendant in adverse possession, his adverse possession does not continue thereafter. In other words, the running of time for acquiring title by adverse possession gets arrested. (See Babu Khan and others v. Nazim Khan (dead) by LRs. and others (2001) 5 SCC 375: AIR 2001 SC 1740.)
• 8.7. The reasons for the change brought about by Articles 64 and 65 are seen in the 3rd Report of the Law Commission of India. The recommendation of the Law Commission was as follows:
  • “If the defendant want to defeat the right of the plaintiff he must establish the adverse possession for over twelve years which has the effect of extinguishing the title of the owner by operation of Section 28 of the Limitation Act (Section 27 of the 1963 Act), read with Art. 144. (Article 65 of the 1963 Act). If he fails to do so, there is no reason for non-suiting the plaintiff merely because he was not able to prove possession within twelve years….. In our opinion, Art. 142 must be restricted in its application only to suits based on possessory title. The plaintiff in such a suit seek protection of his previous possession which falls short of the statutory period of prescription, to recover possession from another trespasser. The plaintiff’s prior possession no doubt entitles him to protection against a trespasser though not against the true owner. The true owner’s entry would be a rightful entry and would interrupt adverse possession. But if the defendant trespasser is a person who wishes to oust the plaintiff who was himself a prior trespasser or a person who did not come into possession as a trespasser but continued to hold it as such, in order to enable the plaintiff to continue his wrongful possession without disturbance and to enable him to acquire a title by  adverse possession, the law must undoubtedly step in and give relief to the plaintiff. As against the true owner a person who is in possession for a length of time short of the statutory period is not entitled to any protection but the net result of the decisions under article 142 is that the true owner must prove that he has a subsisting title on the date of the suit. We, therefore, suggest that in order to avoid injustice and inequity to the true owner and to simplify the law, article 142 should be restricted to suits based on possessory title and the owner of the property should not lose his right to it unless the defendant in possession is able to establish adverse possession. Article 142, may, therefore, be amended as follows:
  • “For possession of immovable property based on possessory title when the plaintiff while in possession of the property has been dispossessed – l2 years from the date of dispossession. “ “
• 8.8. Pursuant to the opinion expressed by the Law Commission, the Parliament appropriately enacted Articles 64 and 65 in the 1963 Act.”

Crux of the Law Commission Report

The crux of the Report of the Law Commission is the answer to the following question:

• Why the law validates the claim of adverse possession made by a squatter?

It is answered by the Law Commission as under:

• “If no one has effective authority over a property, there arises a vacancy in the position of owner of that property. Such a vacancy results in destabilizing the other peoples’ relations with respect to that property. In such a circumstance, the law of adverse possession ensures that there is always someone in charge of that property in the eyes of the law, and hence no unsettling vacancies. This is precisely the reason why the law validates the claim of adverse possession made by the squatter only when the owner can be shown to have lost effective authority. This is also the rationale behind the owner being able to defeat the adverse possessor’s claims by showing that he continues to be in charge of the property. Ultimately, the concept of adverse possession addresses the law’s most pressing concern which is not who is owner but rather that the office of owner is filled instead of lying vacant.”

Questions posed by the 19^th Law Commission in the Consultation Paper

The 19^th Law Commission prepared a ‘Consultation Paper-cum-Questionnaire’ and after receiving the responses to the same, the Commission opined that the ‘present provisions afforded sufficient protection to the true owner of land and there was no need to make any amendments in the law’. 22^nd Law Commission pointed out that a final report on the subject could not be submitted the 19^th Law Commission. Bearing in mind “the relevance and importance of the subject and the fact that this reference had been pending since 2008”, the 22^nd Law Commission considered it expedient to deliberate afresh over the subject, under the Caption – “Regarding the Questions posed by the Law Commission in the Consultation Paper”. It reads as under:

• “10.10. There cannot be any justification for taking the view that adverse possession should not be made available to those who dishonestly enter the land with full consciousness that they were trespassing into another’s land. It is also not just and proper to deny the plea of adverse possession to a naked trespasser entering the land without good faith. Articles 64 and 65 of the Limitation Act do not make a distinction between a trespasser and a person who got possession on the discontinuance of possession by the owner. Under Article 65 of the Limitation Act of 1963, the date of dispossession of the owner is not relevant. The date of dispossession is relevant only under Article 64 of the 1963 Act. Under Article 65 of the 1963 Act, the owner who was dispossessed need prove his title only and he need not prove dispossession or discontinuance of possession since the thrust is on the proof of adverse possession. This itself is a sufficient protection for the owner (when compared with the 1908 Act) when he sues on title. There cannot also be any distinction between a trespasser and  bonafide purchaser from such trespasser. If the nature of dispossession is made a subject of enquiry  in a case, the owner of the land would be put to much prejudice and the required object of protecting the owner of the land would not be achieved. Such an enquiry would be a boon to the persons claiming adverse possession. Even if the entry into the land by the person claiming adverse possession was bonafide, so long as the owner sues for possession under Article 65, the owner would not be deprived of his right and he would not be put to plead or defend any fact other than title; and the person claiming adverse possession would not get any benefit based on any bonafides.
• 10.11. The Limitation Act, l963 does not contemplate any compensation being paid to a trespasser making improvements in the property. Making such a provision in the law would be detrimental to the interests of the owner. If a trespasser is to be paid compensation for the improvements made by him, that will result in depriving the legitimate rights of the true owner since he would be made liable to pay huge compensation for extensive improvements made by a powerful trespasser. That would result in defeating the legitimate rights of the owner to recover possession of his land.
• 10.12. There cannot also be any distinction between an owner who did not evince interest in the land or the other way about, since an owner who did not take care of his land at one point of time may do otherwise at a later point of time. The owner can sell the land to a person interested in the land for a good price. Sometimes, the legal representatives of the owner may be inclined to properly take care of the land and improve it.
• 10.13. It is also not advisable to make any provision for compensating the owner by the adverse possessor. After coming into wrongful possession, the adverse possessor may be interested to retain the land even after paying compensation to the owner. The process of fixing compensation may provide an opportunity to him to question the quantum of compensation and to protract the litigation to the prejudice of the owner who lost possession and who wants to recover possession of his land.
• 10.14. There is also no justification to enlarge the period of 12 years under Articles 64, 65, 111 or 112. Under the 1908 Act also, the period of limitation was l2 years for a suit under Article 142 (Article 64 of the 1963 Act) and Article 144 (Article 65 of the 1963 Act). The period of limitation under the 1908 Act was 60 years under Article 146A.  (Article 111 of the 1963 Act) and Article 149 (Article 112 of the 1963 Act) and it was reduced to 30 years, consequent on the policy decision to reduce the maximum period of 60 years for several articles to 30 years for all of them. Under the 1963 Act, the maximum period for any suit is not more than 30 years. 10.15′ The well settled principle over decades is that there can be adverse possession even in respect of the property belonging to the Government. When a private individual gets a period of 12 years under Articles 64 or 65 to file a suit for possession, the Government would get 30 years, in view of Article 112. The Government, with its machinery, would be able to protect their property in a better manner than the private individual. The Government cannot be extended with any premium for their laxity, if any, in bringing a suit for possession even within the larger period of 30 years. There is also no justification for abolition of adverse possession in relation to Govemment property. There cannot be any greater leniency in favour of the Government than that is provided under Article 112 of the Limitation Act, 1963.
• 10.15 …….
• 10.16. In respect of Non-Resident Indians, no special safeguard is required in the matter of adverse possession, for filing a suit under Article 64 or Article 65. There are ways and means for Non-Resident Indians to protect their property. The technological development, to a great extent, would be a beneficial factor in favour of them too.
• 10.17. Section I of the Limitation Act provides for the short title, extent and commencement. Sub section (2) of Section I of the Limitation Act was as follows: “It extends to the whole of India except, the State of Jammu and Kashmir.” The words “except the State of Jammu and Kashmir” were omitted by the Jammu and Kashmir Reorganisation Act, 2019 (34 of2019). Therefore, it is expedient to delete the words “including the Government of the State of Jammu and Kashmir” from Article 112.“

Recommendations of the Law Commission

Finally, the Law Commission recommended as under:

• “RECOMMENDATIONS
• 11.1. The Law Commission is of the considered view that there is no reason or justification to enlarge the period of limitation provided under Articles 64, 65, 111 or I12.
• 11.2. However, it is expedient to delete the words “including the Government of the State of Jammu and Kashmir” from Article I12, in view of the omission of the words “except the State of Jammu and Kashmir” from sub-section (2) of section I of the Limitation Act, 1963 by the Jammu and Kashmir Reorganisation Act, 2019 (34 of 2019).
• The commission recommends accordingly.”

Dissent Note

Ex-officio Members of the Commission,  Dr. Reeta Vasishta (Legislative Secretary) and Dr. Nitan Chandra (Law Secretary), placed a Dissent Note.

Consultation with other Ministries and Departments: The Ex-officio Members pointed out that the Commission has not consulted the relevant Ministries of the Government of India and States from where useful inputs could have been received; and they observed that it curtailed the benefit of broad-based deliberation.

Ground of Morality: The Ex-officio Members said that the report on adverse possession ‘formulated by Mr. Justice K.T. Sankaran of the Law Commission sought to justify adverse possession as a welfare law and on grounds of morality’. According to them, the morality ground propounded in the matter of adverse possession was not only contrary but ridiculous. The abolition of the law on adverse possession will neither hinder anybody’s right nor cause ‘negligence of land resources’. All the States have laws for providing land to the landless; and under these laws the poor could obtain proprietary rights in a manner authorised by law.

Adverse possession is Self-contradictory – For, it is to be ‘Peaceful & Hostile‘: It was pointed out that the law on adverse possession was riddled with self-contradictions – on requirements of the nature of possession, ‘to be peaceful as well as hostile and notorious‘.  It is successful only where it is peaceful, open and notorious. However, none of these characteristics is shared by coup d’etat because coup d’etat has to be necessarily violent and turbulent. The Supreme Court has underscored the contradictory nature of the law in certain cases and considered it irrational, illogical and disproportionate. The Ex-officio Members referred to the four judgements of Supreme Court that throw light on the tenuous, insidious and contradictory character of the claim of adverse possession:

• 1. Hemaji Waghaji v. Bhikhabhai Khengarbhai, 2009-16  SCC  1073;
• 2. Ram Nagina Rai v.  Deo Kumar Rai,  (2019) 13 SCC
• 3. Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8  SCC729;
• 4. State of Haryana v. Mukesh Kumar,  (2011l)10 SCC 404.

The Ex-officio Members further denoted –

• Because of the mere existence of such a law the true owners have been subjected to avoidable and expensive litigation running over generations by unscrupulous persons who are not averse to fraud and forgery.
• This has saddled the already over-burdened machinery of the courts with avoidable work to the misery of the litigants.
• If the law of adverse possession is struck off from the Limitation Act it will not hinder anybody’s right nor will it cause any neglect of land resources as has been argued in the Report.
• In an over-populous country like India where land is scarce, the law of adverse possession only promotes false claims under the colour of adverse possession which ultimately does not stand judicial scrutiny.
• To argue that adverse possession helps the poor and protects their rights in a welfare State and therefore such law of adverse possession cannot be abolished, holds no water since every State has a law for the settlement of government land with the poor which is the proper welfare legislation for the poor.
• To claim that adverse possession protects the rights of the poor ignores the abuse of the law by land mafias, builders and powerful interest groups who are not disqualified to claim adverse possession under the present law.
• It can be concluded that law of adverse possession serves no useful purpose considering the enactment of land laws in all the States for the welfare of the poor and the possibility of fraudulent claim of adverse possession as is established by large number of cases where courts have declined the claim of adverse possession.
• The sentiment of the Court needs to be appreciated when it took the unusual step of urging the Ministry of Law & Justice to review the Law of Adverse Possession considering its inherent contradictions and recognizing that the law places a premium on dishonesty.
• In several other countries, this law has been modified or abrogated.
• It therefore, needs to be appreciated that it is an appropriate moment to strike off this provision of adverse possession from the Law of Limitation.

‘Supplementary Note’ placed in response to the ‘Dissent-Note’

The Law Commission (Chairperson, the three Fulltime Members and the Member Secretary) affirmed its view in its ‘Report’ presented on 24^th May, 2023, in the ‘Supplementary Note’ placed in response to the ‘Dissent-Note’ filed by the Ex-officio Members. The Supplementary Note, inter alia, contained the following:

• The judgments of the Supreme Court in Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan, (2009) 16 SCC 517, and State of Haryana v. Mukesh Kumar, (2011) 10 SCC 404, were ‘based on an understanding of the concept of adverse possession that largely stems from the decision of the European Court of Human Rights (ECHR) in JA Pye (Oxford) Ltd. v. United Kingdom, (2005) 49 ERG 90’. However, in appeal, the Grand chamber of ECHR overruled this judgment.
• Articles 111 and 112 of the Schedule to the Limitation Act, 1963 provide for a maximum period of limitation of 30 years in case of claims of adverse possession against Government land. The constitutional validity of providing a longer period of limitation in favour of the Government had been upheld by the Constitution Bench of the Supreme Court in Nav Rattanmal v. State of Rajasthan, AIR 1961 SC 1704.
• The Supreme Court, in Ram Nagina Rai v. Deo Kumar Rai, (2019) 13 SCC 324, has taken into consideration the earlier judgments in the cases of Hemaji Waghaji  and Mukesh Kumar, but has not taken the view that the law of adverse possession requires review or re-examination.
• The judgment in Ram Nagina Rai was delivered in 2O18 while Mukesh Kumar was delivered in 2011. “Hence, it is impossibility that the former judgment could be considered in the latter”.^#
  • ^{# It was observed in the “dissent note” as under: “The significance of this observation was also underscored by the Court in a subsequent judgment, State of Haryana v. Mukesh Kumar. ”}

• In Ravinder Kaur Grewal v. Manjit Kaur (2019) 8 SCC 729, a three-Judges Bench of the Supreme Court reaffirmed the long-standing right of adverse possession, meaning thereby that even a suit can be filed to claim title on the basis of adverse possession. Some decisions of the Supreme Court to the contrary were overruled by this judgment.
• In the Report of the Commission, ‘Adverse Possession vis-a-vis Morality’ was included, for the Supreme Court, in Hemaji Waghaji, called the concept of adverse possession to be ‘immoral’. The Report sought to analyse and explain as to how, despite popular perception to the contrary, it can still be understood to be ‘moral’. Thus, the concept of adverse possession was not justified (independently) on the ground of morality.
• The concept of adverse possession is very much prevalent in almost all foreign jurisdictions, with the exception of the Canadian province of Alberta, where the social and geographical conditions are altogether different from India.

Should the person who claims adverse possession necessarily know the true owner?

There is difference of opinion.

It can be said – “The person who claims adverse possession must necessarily know the true owner, (for) then only it becomes ‘adverse’ as stated in Art. 65 of the Limitation Act.”

In Annasaheb Bapusaheb Patil v. Balwant, (1995) 2 SCC 543: AIR 1995 SC 895  (two-Judge Bench) our Apex Court held as under:

• “A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case.”

Report of the 22^nd Law Commission

But, in the Report of the 22^nd Law Commission it is stated as under:

• “7.5. Possession must be open and without any attempt at concealment. It is, however, not necessary that possession must be so effective as to bring it to the specific knowledge of the owner (except ouster).”

The Consultation Paper-cum-Questionnaire prepared by the 19^th Law Commission is attached to the Report of the 22^nd Law Commission, as “Annexure – 1”. Para 2.6 of the same reads as under:

• “2.6 It was clarified by a three-Judge Bench of the Supreme Court in Kshithish Chandra Bose v. Commissioner of Ranchi, AIR 1981 SC 707,
  • “All that the law requires is that the possession must be open and without any attempt at concealment. It is not necessary that the possession must be so effective so as to bring it to the specific knowledge of the owner. Such a requirement may be insisted on where an ouster of title is pleaded, but that is not the case here. “
• “It was also clarified in a series of decisions that while possession shall be open and exclusive and in assertion of one’s own right, the fact that the possessor did not know who the real owner was, will not make his possession any the less adverse. There are certain passing observations in some judgments of the Supreme Court rendered by two learned Judges that the plea of adverse possession is not available if the adverse possessor does not know who the true owner is; but, the law declared by the larger Bench decisions of the Supreme Court obviously prevails.“

Law Commission inappropriately relied on Kshithish Chandra Bose

It appears that the Law Commission inappropriately relied on the Three Judge Bench decision. On a careful reading of this decision, Kshithish Chandra Bose, it can be seen that this decision arose from a matter that emerged prior to 1963 Limitation Act, and when the 1908 Limitation Act reigned the field.

Under the 1908 Act, the true owner was bound to file suit for recovery within 12 years of losing possession; and it was immaterial – whether the trespasser ‘acquired’ right of ‘adverse‘ possession against the true owner, knowing him and bringing his attention to the ‘trespass’.

While narrating the facts, it is observed in Kshithish Chandra Bose, as under:

• “In the suit the plaintiff based his claim in respect of plot No. 1735, Ward No. I of Ranchi Municipality on the ground that he had acquired title to the land by virtue of a Hukumnama granted to him by the landlord as far back as 17th April, 1912 which is Exhibit 18. Apart from the question of title, the plaintiff further pleaded that even if the land belonged to the defendant municipality, he had acquired title by prescription by being in possession of the land to the knowledge of the municipality for more than 30 years, that is to say, from 1912 to 1957.”

Lmitn. Act, 1963 Brought-in Major Changes in Adv. Possession on ‘onus of proof’

Old Act of 1908 – Backdrop

• Under the old Act of 1908, the true owner was bound to file suit for recovery (from a trespasser) within 12 years of losing possession (to continue the property).
• In other words, under the old Act, the true owner would lose his right to recover the property if he failed to file a suit within the period of 12 years.
• Under the 1908 Act, it was immaterial – whether the trespasser ‘acquired’ right of adverse possession against the true owner; knowing him and bringing his attention to the ‘trespass’, or not (as required in 1963 Act).

New 1963 Act – Backdrop

• Under the new Limitation Act, 1963, the true owner will lose title only if the trespasser proves ‘adverse‘ possession for 12 years (Article 65). Therefore the true owner has no burden to show possession within 12 years (as required under the old Act).
• Under the 1963 Act, adverse possession arises, only ‘by the positive and hostile acts’ of the trespasser; and, mere possession is not sufficient (but, it must be ‘adverse’ to the true owner).
• The new Act casts onus on the trespasser to prove claims of title by ‘adverse’ possession (knowing him and bringing his attention to the ‘trespass’).
• If no adverse possession, mere possession of trespasser, however long, will not lose the right of the true owner (on the ground of limitation) to recover property, on the basis of his title [See: Government of Kerala v. Joseph, 2023 KHC OnLine 6764; Gaya Prasad Dikshit v. Dr. Nirmal Chander and Anr., (1984) 2 SCC 286, Thakur Kishan Singh v. Arvind Kumar, (1994) 6 SCC 591; Mallikarjunaiah v. Nanjaiah, (2019) 15 SCC 756].

From the above, it comes out that the person who claims adverse possession must necessarily know the true owner; and that the three-Judge Bench decision, Kshithish Chandra Bose v. Commissioner of Ranchi, AIR 1981 SC 707, cannot be used to support the plea that adverse possession is available even if the adverse possessor does not know who the true owner is.

Note: This article being an evaluation of the Law Commission Report, Dissent Note and Supplementary Note, the readers are requested to refer the original text of the Report, Dissent Note and Supplementary Note.