Holding

The appellant failed to establish title by adverse possession; the trial court’s decree was erroneous and the appeal is dismissed.

Summary

Hemaji Wagahaji Jat filed a suit seeking a permanent injunction and declaration of ownership of land in Yavarpura, claiming title by adverse possession. The trial court erroneously held that he had acquired ownership through adverse possession and decreed in his favour. The District Judge and the Gujarat High Court reversed that decision, finding that the appellant had neither pleaded nor proved the elements of adverse possession. The appellant appealed to the Supreme Court, contending that the lower courts erred. The Supreme Court held that the appellant failed to establish any claim of adverse possession, that the trial court’s decree was unsustainable, and that the findings of the first appellate court and the High Court were correct. Consequently, the appeal was dismissed with costs, and the Court suggested legislative reform of the law of adverse possession.

Issues considered

The appellant’s claim of ownership by adverse possession – whether the pleadings and evidence satisfy the legal requirements for adverse possession.
Whether the trial court erred in declaring the appellant the owner despite the absence of a specific adverse possession plea.
Whether the law of adverse possession, as applied, is consistent with principles of equity and human rights.

Legislation cited

Subjects

adverse possessiontransfer of property actpermanent injunctiontitlelimitationhuman rightsproperty lawcivil appealSupreme Court of India

Judgment

[2008) 13 S.C.R 818 ~-

A HEMAJI WAGHAJI JAT
v.
BHIKHABHAI KHENGARBHAI HARIJAN & OTHERS
(Civil Appeal No. 1196 of 2007) .....
SEPTEMBER 23, 2008 ~-
B
[DALVEER BHANDARI AND l-IARJIT SINGH BEDI, JJ.]

Land grabbing!Transfer of Property Act:
· . Adverse possession - Suit for declaration of permanent
c injunction to declare appellant as lawful owner and occupier in
respect of lands in question - Allowed by trial Court holding the
appellant lawful owner of the suit property by adverse posses-
sion - Reversed by first appellate Court - Affirmed by High
· Court__, Correctness of- Held: Appellant at no stage had set up
D the case of adverse possession ·- There was no pleading to "' .
that effect - No issues were framed, even then trial Court de-
creed the suit - Under the circumstances, first appellate Court
and High Court rightly held that thi~ appellant failed to establish
his title over the suit property by way of adverse possession -
E Hence, he is not entitled to the ownership of the property
Advef'Se possession - Equity - Held: A person pleading
adverse possession has no equities in his favour

Law of adverse possession - Lacunae - Suggestion to
F Central Government for makin'g suitable changes in law.
Right of property- Nature of- Held· It is now considered
to be not only a constitutional or statutory right but also a hu-
man right.
Appellant filed a suit for declaration of permanent in-
G
junction praying to hold and declare him as the lawful
owner in respect of certain land and to grant permanent
stay order restricting the respondents to enter into the •
said land. Trial Court held that the petitioner became
H 818
.-.I HEMA.JI WAGHAJI JAT v. BHIKHABHAI KHENGARBHAI 819
HARIJAN & OTHERS

owner of the suit property by adverse possession. Ag- A
grieved by the judgment of the trial Court, respondents
preferred an appeal, which was allowed by the first ap-
pellate Court. The appeal preferred thereagainst by the
-) appellant was dismissed by the High Court. Hence the
present appeal. 8
Dismissing the appeal, the Court
HELD: 1.1 The first appellate court and the High Court
have clearly held that the appellant has failed to establish
his title over the suit property. The appellant also failed to c
establish that he has perfected his title over the suit prop-
ertY by way of adverse possession. (Para - 10) [825-G]
1.2 In the case of Karnataka Board of Wakf vs. Govt. of
."' India, this Court observed that the plea of adverse pos-
session is not a pure question of law but a blended one D
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,
-t (c) whether the factum of possession was known to the
other party, (d) how long his possession has continued, E
and (e) his possession was open and undisturbed. A per-
son 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 estabJish all facts
necessary to establish his adverse possession. (Para - F
18) [829 B-D]
Secretary of State for India v. Debendra Lal Khan AIR
(1934) PC 23; P Lakshmi Reddy v. L. Lakshmi Reddy AIR
(1957) SC 314; S. M. Karim v. Bibi Sakina AIR (1964) SC 1254;
R. Chandevarappa & Others v. State of Karnataka & Others G
(1995) 6 SCC 309; D. N. Venkatarayappa and Another v. State
of Karnataka and Others (1997) 7 SCC 567; Md. Mohammad
Ali (Dead) By LRs. v. Jagadish Kalita & Others (2004) 1 SCC
271 and Karnataka Board of Wakf v. Govt. of India (2004) 1o
sec T79 - relied on. H
820 SUPREME COURT REPORTS [2008] 13 S.C.R. ~

A 1.3 In the case of P T Munichikkanna Reddy & Others
v. Revamma & Others*, this Court observed that the right
of property is now considered to be not only a constitu-
tional or statutory right but also a human right. In the said
case, this Court observed that "Human rights have been ~-

B historically considered in the realm of individual rights
such as, right to health, right to livelihood, right to shelter
and employment, etc. but now human rights are gaining
a multifaceted dimension. Right to property is also con-
sidered very much a part of the new dimension. There-
c fore, even claim of adverse pos!>ession has to be read in
that context. (Paras- 23) [831-H 832-A]
*P T Munichikkanna Reddy & Others v. Revamma &
Others (2007) 6 SCC 59; Saroop Singh v. Banta (2005) 8 SCC
330; M. Durai v. Muthu and Others (2007) 3 SCC 114; T
D Anjanappa & Others v. Somalingappa & Another (2006) 7 SCC ·- .
570 - relied on.
Beaulane Properties Ltd. v. Palmer (2005) 3 WLR 554
and JA Pye (Oxford) Ltd. v. United Kingdom (2005) 49 ERG
E
90 - referred to. ·-
2. In the instant case, the appellants at no stage had
set up the case of adverse possession, there was no plead-
ing to that effect, no issues were framed, but even then
the trial court decreed the suit on the ground of adverse
F possession. The trial court judgment being erroneous
and unsustainable was set aside by the first appellate
court. Both the first appellate court and the High Court
have categorically held that the appellant has miserably
failed to establish title to the suit land, therefore, he is not
entitled to the ownership. This Court endorsed the find-
G
ings of the first appellate court as upheld by the High
Court. (Para - 32) [835 E-F] ..
3.1 The law of adverse possession which ousts an
owner on the basis of inaction within limitation is irratio-
H nal, illogical and wholly disproportionate. The law as it
~ HEMAJI WAGHAJI JAT v. BHIKHABHAI KHENGARBHAI 821
HARIJAN & OTHERS

exists is extremely harsh for the true owner and a wind- A
fall for a dishonest person who had illegally taken pos-
session of the property of the true owner. The law ought
not to benefit a person who in a clandestine manner takes
~ possession of the property of the owner in contravention
of law. (Para - 34) [835-H 836-A-B] B
3.2 This Court fail to comprehend why the law should
place premium on dishonesty by legitimizing possession
of a rank trespasser and compelling the owner to loose
its possession only because of his inaction in taking back
the possession within limitation. There is an urgent need c
of fresh look regarding the law on adverse possession.
The Union of India to seriously consider and make suit-
-1 able changes in the law of adverse possession. (Paras -
' > ... 35 &36) [836-C 836-D]
D
Case Law Reference
AIR (1934) PC 23 Relied on Para - 12
AIR (1957) SC 314 Relied on. Para • 13
AIR (1964) SC 1254 Relied on Para -14
E
(1995) 6 sec 309 Relied on Para-15
(1997) 1 sec 567 Relied on Para - 16
(2004) 1 sec 211 Relied on Para - 17
(2004) 10 sec 119 Relied on Para - 18 F
(2001) s sec 59 ·Relied on Para - 22
c2005) a sec 330 Relied on Para - 19
(2001) 3 sec 114 Relied ori Para - 20
(2006) 1 sec 570 Relied on Para - 21 G
,,. (2005) 3 WLR 554 Referred to Para - 23
(2005) 49 ERG 90 Referred to Para - 23
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1196
of 2007 H
. 822 SUPREME COURT REPORTS [2008) 13 S.C.R. ~

A From the final Judgment/Order dated 27/12/2004 of the
High Court of Gujarat at Ahmed abad in Second Appeal No. 146
of 2004 ·
Raju Ramachandran, S. Prasad and Abhijit P. Medh for .....
the Appellant.
8
Aniruddha P. Mayee, Sanjeev Kumar Choudhary and
Rucha A. Ma1yee for the Respondents.
The Judgment of the Court was delivered by

c DALVl:ER BHANDARI, J. 1. This appeal is directed
against the judgment dated 27.12.2004 passed by the High
Court of Gujarat at Ahmedabad in Second Appeal No. 146 of
2004.
2. Brief facts of the case which are necessary to dispose
"" -
D of this appeal are as under:-
The appellant who has lost both before the Court of learned
District Judgei, Palanpur and the High Court has approached
this Court by way of special leave petition under Article 136 of
the Constitution.
E
3. The appellant (who was the plaintiff before the trial court)
filed a suit for declaration of permanent injunction with the fol-
lowing prayer:
"1) To hold and declare that the plaintiff is the lawful owner
F and occupier in respect of land of survey No. 66/3
admeasuring 6 Acre 11 Guntha situated in the
boundaries of village Yavarpura, Taluka Deesa.
2) That the defendants of this case themselves or their
agents, servants, family members do not cause or to
G
be caused hindrance in the possession and
occupation of the plaintiff in respect of land of survey ...
No. 66/3 admeasuring 7 Acre 10 Guntha in the
boundaries of village Yavarpura and also to grant
permanent stay order to the effect that they not forcibly
H
HEMAJI WAGHAJI JAT v. BHIKHABHAI KHENGARBHAI 823
HARIJAN & OTHERS [DALVEER BHANDARI, J.]

enter into the said land of survey No. 66/3 against A
the defendants and in favour of the plaintiff of this
case.
3) To grant any other relief which is deemed fit and
proper.
B
· 4) To award the entire cost of this suit on the
defendants."
The trial court framed the following issues: ·
"1. Whether the plaintiff has proved that he is the lawful c
owner of the disputed land?
2. Whether the plaintiff is entitled for permanent
injunction as prayed for?
3. What order and decree?"
D
The trial court held that in the year 1925 the land was pur-
chased for Rs. 75/- from Gama Bhai Gala Bhai by the appellant
and he is having possession of the same for the last 70 years.
The learned trial court in the same judgment has also held that
in 1960 the appellant forcibly took possession of the land in E
question and he has been in continuous possession till 1986,
which is proved from the register of right of cultivation. Thus, the
appellant became owner of the suit property by adverse pos-
session.
4. It may be significant to note that neither the appellant F
ever pleaded adverse possession nor an issue was framed by
the trial court with regard to the ownership of the respondents
by adverse possession. According to the appellant, there is no
basis for the finding of the ownership of the appellant on the
basis of adverse possession. G
5. The respondents being aggrieved by the said judgment
of the trial court dated 5 4.1986 preferred an appeal before the
learned District Judge. Palanpur. Gujarat. The learned District
Judge. after hearing the counsel for the parties and.perusing H
~-
824 SUPREME COURT REPORTS [2008) 13 S.C.R.

A the entire record of the case, came to the definite conclusion
that the appellant herein has failed to prove that the land in ques-
tion was purchased by him. •

6. The learned District Judge referred to in the case of B. ~-
N. Venkatarayapa v. State of Kamataka [(1998) 2 CLJ 414 S.C.]
B wherein it was held that in absence of crucial pleadings regard-
ing adverse possession and evidence to show that the petition-
ers have been in continuous and uninterrupted possession of
the lands in question claiming right, title and interest of the origi-
nal grantee, the petitioners cannot claim that they have perfected
c their title by adverse possession. The burden of proof lies on
the petitioners to show that they have title to and have been in
possession and he was dispossessed and discontinued his
possession wilthin 12 years from the date of filing his suit. Ad-
verse possession implies that it commenced in wrong and is .,. .
D maintained against right.
7. The learned District Judge further held as under:
"Thus, learned trial Judge has wrongly concluded that
plaintiff has proved his title and ownership of this suit land
E through Revenue record and also by adverse possession
and competent authority i.e. Special Secretary has also
dismissed the revision ~pplication of plaintiff and the
defendants' ownership was confirmed by the Special
Secretary and thus, the learned trial Judge has erred in
F holding that plaintiff is a owner and holding that the title
and also become owner through adverse possession.
Thus, this appeal deserves to be allowed and in these
circumstances and discussion as above, it appears that
learned trial Judge has committed error in decreeing the
suit in favour of plaintiff."
G
8. The appellant aggrieved by the said judgment of the
learned District Judge preferred an appeal under section 100
of the Code of Civil Procedure before the High Court. In the
impugned judgrnent, it has been held that the appellate court
H continues to be the final court on facts and law. The second
HEMAJI WAGHAJI JAT v. BHIKHABHAI KHENGARBHAI 825
HARIJAN & OTHERS [DALVEER BHANDARI, J.]
appeal to the High Court lies only when there is substantial ques- A
tion of law. The High Court relied on Santosh Hazari v.
Purushottam Tiwari (Dead) By LRs. AIR 2001 SC 565. The
relevant portion of the said judgment reads as under:
'The first appellate Court continues, as before, to be the
- ~
final court of facts; pure findings of fact remain immune B
from challenge before the High Court in Second Appeal.
Now the first appellate Court is also a final court of law in
the sense that its decision on a question of law even if
erroneous may not be vulnerable before the High Court in
Second Appeal because the jurisdiction of the High Court c
has now ceased to be available to correct the error of law
or the erroneous findings of the first appellate Court even
on questions of law unless such question of law be a
substantial one."
D
·" ·; 9. The High Court held that the respondents clearly estab-
lished their title over the suit property. The relevant portion of
the judgment of the High Court reads as under:
"The learned first appellate Judge has also discussed the
relevant entries as well as order passed by Oeputy E
Collector, Collector and Special Secretary in those
proceedings and on the basis of the same, the learned
first appellate Judge has reached to the finding that the
plaintiff has failed to establish title over the suit property."
The appeal filed by the appellant was dismissed by the F
High Court.
10. We have heard learned counsel for the parties at length
and perused the impugned judgment and judgments of the sub-
ordinate courts. The first appellate court and the High Court have
G
clearly held that the appellant has failed to establish his title over
the suit property. The appellant also failed to establish that he
y has perfected his title over the suit property by way of adverse
possession.
11. We deem it appropriate to deal with some important H
826 SUPREME COURT REPORTS [2008] 13 S.C.R

A cases decidecl by this court regarding the principle of adverse
possession.
12. In Secretary of State for India v. Oebendra Lal Khan
AIR 1934 PC 23, itwas observed that the ordinary classical
requirement of adverse possession is that it should be nee vi, ' -
B nee clam, nee precario and the possession required must be
adequate in continuity, in publicity and in extent to show that it is
possession adverse to the competitor.
13. This Court in P Lakshmi Reddy v. L. Lakshmi R~ddy
c AIR 1957 SC 314, while following the ratio of Debendra Lal
Khan's case (supra}, observed as under:
"But it is w.ell settled that in order to establish adverse
possessiCm of non-co-heir as against another it is not
enough tc show th.at one out of them is in sole. possession
D 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 i·s considered, in law,
as posse!>sion of all the co-heirs. When one co-heir is
E found to be in possession of the properties it is presumed
to be one :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 secrethostile animus
on hls own part in derogation of the other co-heirs· title. It
F 1s a settlecl rule of law that as between co-heirs there must
be evidence of open assertion of hostile title. coupled with
exclus\ve possession and enjoyment by one of them to be
knowledge~ of the other so as to constitute ouster."
The court further observed thus.
G
"The burde'n of making out ouster is on the person claiming
to disp.lac:1~ the lawful title of a co-heir by .his adverse
y
possession."
14. In S.M Karim v. Bibi $akina AIR 1964 SC 1254,
H Hidayatullah, J. speaking for the court observed as under:-
HEMAJI WAGHAJI JAT v. BHIKHABHAI KHENGARBHAI 827
--4 HARIJAN & OTHERS [DALVEER BHANDARI, J.]

"Adverse possession must be adequate in continuity, in A
publicity and extent and a plea is required at the least to
'
show when possession becomes adverse so that the
starting point of limitation against the party affected can
· be. found. There is no evidence· here when possession
-~ . became adverse, if it at all did and a rriere suggestion in a
the...;elief
' clause that .
there was an uninterrupted .
. possession for "several 12 years" or that the plaintiff had
acquired "an absolute title was not enough to raise such
a plea. Long possession is not necessarily adverse
possession and the prayer clause is not a substitute for a c
plea."

15, The facts of R. Chandevarappa & Others v. State of
Karnataka & Others (1995)6 sec 309 are simiiar to the case
at hand. In this case, this court observed as under:-
. -~
'The question then is whether the appellanthas perfected
D
his title by adverse possession. It is seen that a contention
was raised before the Assistant Commissioner that the
appellant having remained in possession from 1968, he
perfected his title by adverse possession. But the crucial
.facts to constitute adverse possession have not been ·E
pleaded. Admittedly the appellant came into possession
by a derivative title from the original grantee. It is seen that
the original grantee has no right to alienate the land.
Therefore, having come into possession under colour of
. title from original grantee, if the appellant intends to plead F
adverse possession as against the State, he rnust disclaim
·his title and plead his hostile claim to the knowledge of the
State and that the State had not taken ahy action thereon
within the prescribed period. Thereby, the appellant's
possession would become. adverse No such stand was G
taken nor evidence has been adduced in this behalf. The
counsel in fairness, despite his research, is unable to
-. bring to our notice any such plea having been taken by the
appellant."
H
828 SUPREME COURT REPORTS [2008] 13 S.C.R.

A 16. In D. N. Venkatarayappa and Another v. State of
Karnataka and Others (1997) 7 SCC 567 this court observed
as under:-
'Therefore, in the absence of crucial pleadings, which
constitute adverse possession and evidence to show that
B the petitioners have been in continuous and uninterrupted
posses~sion of the lands in question claiming right, title
and inteirest in the lands in question hostile to the right, title
and intmest of the original grantees, the petitioners cannot
claim that they have perfected their title by adverse
c possession."
17. In Md. Mohammad Ali (Dead) Py LRs. v. Jagadish
Kalita & Ot/1ers (2004) 1 SCC 271, paras 21-22, this Court
observed as. under:
D "21. For the purpose of proving adverse possession/ouster,
the defendant must also prove animus possidendi.
22. ,, .. We may further observe that in a proper case the
court may have to construe the entire pleadings so as to
come to a conclusion as to whether the proper plea of
E adverne possession has been raised in the written
statement or not which can also be gathered from the
cumulative effect of the averments made therein."
18. In Karnataka Board of Wakf v. Govt. of India (2004)
F 10 SCC 779 at para 11, th'is court observed as under:-
"In the eye of the law, an owner would be deemed to be in
posSE!SSion of a property so long as there is no intrusion.
Non-use of the property by the owner even for a long time
won't affect his title. But the position will be altered when
G anotr.er person takes possession of the property and
asserts a right over it. Adverse possession is a hostile
possession by clearly asserting hostile title in denial of the
title of the true owner. It is a well-settled principle that a
party claiming adverse possession must prove that his
H poss,ession is "nee vi, nee clam, nee precario", that is,
HEMA.JI WAGHAJI JAT v. BHIKHABHAI KHENGARBHAI 829
HARIJAN & OTHERS [DALVEER BHANDARI, J.]
peaceful, open and continuous. The possession must be A
adequate in continuity, in publicity and ih extent to show
that their possession is adverse to the true owner. It must
start with a wrongful disposition of. the rightful owner and
be actual, visible, exclusive, hostile and continued over
the statutory period." CB ,
The court further observed that plea of adverse posses-
sion 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) wh~ther the tac.tum of posses- C
sion was known to the other party, (d) how long his possession
has continued, and (e) his possession was open and undis-
turbed. A person pleading adverse possession has no equities
in his favour. Since he is trying to defeat the rig~ts of.the true.
owner, it is for him to clearly plead and establish all facts neces~, D
sary to establish his adverse possession.
19. In Saroop Singh v. Banto (2005) 8 SCC 330 this Court
observed:
"29. In terms of Article 65 the starting point of limitation E
does not commence from the date when the right of
ownership arJses to the plaintiff but commence;; from the
date the defendant's possession becomes adverse. (See
Vasantiben Prahladji Nayak v. Somnath Mu/jibhai Nayak
(2004) 3 ·sec 376) F
30. 'Animus possidendi' is one of the ingredients of
adverse possession. Unless the person possessing the
.l;md has a requisite animus the period for prescription
does not commence. As in the inst€:lnt case, the appellant
categorically states that his possession is not adverse as G
that of true owner, the logical corollary is that he did not
have the requisite animus. (See Md. Mohammad Ali
(Dead) by LRs. v. Jagdish Kalita and Others (2004) 1
sec 211r
H
830 SUPREME COURT REPORTS [2008] 13 S.C.R.

A 20. This principle has been reiterated later in the case of
M. Durai 1~ Muthu and Others (2007) 3 SCC 114 para 7. This
Court observed as under:
''. .. In terms of Articles 142 and 144 of the old Limitation
Act, the plaintiff was bound to prove his title as also
B poss.ession within twelve years preceding the date of
insti1ution of the suit under the Limitation Act, 1963, once
the plaintiff proves his title, the burden shifts to the
defendant to establish that he has perfected his title by
adverse possession."
c
21. This court had an occasion to examine the concept of
adverse possession in T. Anjanappa & Others v.
Somalingappa & Another ((2006) 7 SCC 570]. The court ob-
served that a person who bases his title on adverse posses-
sion must show by clear and unequivocal evidence that his title
D was hosti~e to the real owner and amounted to denial of his title ' "
to the property claimed. The court further observed that the clas-
sical requirements of acquisition of title by adverse possession
are that s1Jch possession in denial of the true owner's title must
be peaceful, open and continuous. The possession must be
E 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 in-
forming the real owner of the termer's hostile action.
F 22. In a relatively recent case in P T. Munichikkanna
Reddy & Others v. Revamma & Others (2007) 6 SCC 59] this
court again had an occasion to deal with the concept of ad-
verse possession in detail. The court also examined the legal
position in various countries particularly in English and Ameri-
.G can system. We deem it appropriate to reproduce relevant pas-
sages in extenso. Th~ court dealing with adverse possession
in paras !5 and 6 observed as under:-
y
"5. Adverse possession in one sense is based on the
theory or presumption that the owner has abandoned the
H property to the adverse possessor on the acquiescence
HEMAJI WAGHAJI JAT v. BHIKHABHAI KHENGARBHAI 831
._,. HARIJAN & OTHERS [DALVEER BHANDARI, J.]

of the owner to the hostile acts and claims of the person A
in possession. It follows that sound qualities of a typical
adverse possession lie in it being open, continuous and
hostile. [See Downing v. Bird 100 So. 2d 57 (Fla. 1958),
Arkansas Commemorative Commission v. City of Little
> "
Rock 227 Ark. 1085: 303 S.W.2d 569 (1957); Monnot v. 8
Murphy 207 N.Y. 240, 100 N.E. 742 (1913); City of Rock
Springs v. Sturm 39 Wyo. 494, 273 P. 908, 97 A.LR. 1
(1929).)
6. Efficacy of adverse possession law in most jurisdictions
depend on strong limitation statutes by operation of which c
right to access the court expires through effluxion of time.
j As against rights of the paper-owner, in the context of
' adverse possession, there evolves a set of competing
rights in favour of the adverse possessor who has, for a
j ~
long period of time, cared for the land, developed it, as D
"'!
against the owner of the property who has ignored the
I property. Modern statutes of limitation operate, as a rule,
-(
not only to cut off one's right to bring an action for the
recovery of property that has been in the adverse
possession of another for a specified time, but also to E
.vest the possessor with title. The intention of such statutes
· . is not to punish one who neglects to assert rights, but to
protect those who have maintained the possession of
property for the time specified by the statute under claim
. " of right or color of title. (See American Jurisprudence, Vol. F
3, 2d, Page 81). It is important to keep in mind while
studying the American notion of Adverse Possession,
especially in the backdrop of Limitation Statutes, that
the intention to dispossess can not be given a complete
go by. Simple application of Limitation shall not be G -
enough by itself for the success of an adverse possession
claim."
'O'. 23. There is another aspect of the matter, which needs to
be carefully comprehended. According to Revamma's case,
the right of property is now considered to be not only a constitu- H
832 SUPREME COURT REPORTS (2008] 13 S.C.R.

A tional or ~;tatutory right but also a human right. In the said case,
this Court observed that "Human rights have been historically
considered in the realm of individual rights such as, right to
health, ri!Jht to livelihood, right to shelter and employment, etc.
but now human rights are gaining a multifaceted dimension.
B Right to property is also considered very much a part of the new -' •
dimension. Therefore, even claim of adverse possession has
to be read in that context. The activist approach of the English
Courts is quite visible from the judgments of Beau/ane Proper-
ties Ltd. ~'. Palmer (2005) 3 WLR 554 and JA Pye (Oxford) Ltd.
C v. United Kingdom (2005) 49 ERG 90. The Court herein tried
to read the human rights position in the context of adverse pos-
session. But what is commendable is that the· dimensions of
human ri!Jhts have widened so much that now property dispute
issues am also being raised within the contours of human rights."
D 24. With the expanding jurisprudence of the European
1'
..
Court of Human Rights, the Court has taken an unkind view to
the concE!pt of adverse possession in the recent judgment of
JA Pye (Oxford) Ltd. v. United Kingdom (supra) which con-
cerned the loss of ownership of land by virtue of adverse pos-
E session.
25. In the said case, "the applicant company was the reg-
istered owner of a plot of 23 hectares of agricultural land. The
owners of a property adjacent to the land, Mr. and Mrs. Graham
("the Grahams") occupied the land under a grazing agreement.
F After a brief exchange of documents in December 1983 a char-
tered surveyor acting for the applicants wrote to the Grahams
noting tha1t the grazing agreement was about to expire and re-
quiring them to vacate the land."
G 26. The Grahams continued to use the whole of the dis-
puted land for farming without the permission of the applicants
from Sep:tember 1998 till 1999. ln.1997, Mr. Graham moved
the Local Land Registry against the applicant on the ground
that he had obtained title by adverse possession. The Grahams
H challenged the applicant company's claims under the Limita-
HEMA.JI WAGHAJI JAT v. BHIKHABHAI KHENGARBHAI 833
HARIJAN & OTHERS [DALVEER BHANDARI, J.]
., tibn Act, 191:!0 ("the 1980 Act") which provides that a person A
-i
_cannot bring an action to recoverany land after the expiration of
12 years of adverse possession by another.
' ~ --27. The judgment was pronounced in favour of JA Pye
(Of,.ford) Ltd: v. Graham 2000 Ch. 676 : (2000) 3 WLR 242.
The Court held in favour of the Grahams but went on to observe B
{

the irony in •law of adverse possession. The Court observed
1
that the law ·which provides to oust an owner on the basis of
inaction cif 12 years is "illogical and disproportionate". The ef-
feet of such law would "seem draconian to the owner" and "a
windfall for the squatter''. c
28. The court expressed its astonishment on the prevalent
law ousting an owner for not taking action within limitation is
....... illogical.
29. The applicant company aggrieved by the said judg- D
ment filed an appeal and the Court of Appeal reversed the High
Court decision. The Grahams then appealed to the House of
Lords, which, allowed their appeal and restored the order of the
High Court. · -
30. The House of Lords in JA Pye (Oxford) Ltd. v; G;a- E
ham (2003) 1 AC 419 observed that the Grahams had posses-
sion·of the land in'the ordinary sense of the word, and, there-
fore, the applicant company had been dispossessed of it within
the·meaning of the Limitation Act of 1980.
F
31. We deem it proper.!o reproduce the relevant portion
of the judgment in Revamma's case (supra):
"51. Thereafter the applicants moved the European
Commission of Human Rights (ECHR) alleging that the
United Kingdom law on adverse possession, by which G
they lost land to a neighbour, operated in violation of Article
1 of Protocol 1 to the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the
·. · Convention").
H
834 SUPREME COURT REPORTS [2008] 13 S.C.R.

A 52. It was contended by the applicants that they had been
deprived of their land by the operation of the domestic law
on adverse possession which is in contravention with
Article 1 of Protocol 1 to the Convention for the Protection
of Human Rights and Fundamental Freedoms ("the
B Convention"), which reads as under:
"Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall
be deprived of his possessions except in the public
interest and subject to the conditions provided for by
c law and by the general principles of international law.
The preceding provisions shall not, however, in any
way impair the right of a State to enforce such laws
as it deems necessary to control the use of property
in accordance with the general interest or to secure
D
the payment of taxes or other contributions or
penalties."
This Court in Revamma's case (supra) also mentioned
that th1:! European Council of Human Rights importantly laid down
E three-pronged test to judge the interference of the Government
with the right of "peaceful enjoyment of property".
~i3. In Beyeler v. Italy [GC] No.33202 of 1996 § § 108-14
ECHR 2000-1, it was held that the "interference" should
comply with the principle of lawfulness and pursue a
F legitimate aim (public interest) by means reasonably
proportionate to the aim sought to be realised.
The Court observed:
"54. The question nevertheless remains whether, even
G having regard to the lack of care and inadvertence on the
part of the applicants and their advisers, the deprivation
of their title to the registered land and the transfer of
beneficial ownership to those in unauthorised possession
struck a fair balance with any legitimate public interest
H served.
. ...;, HEMAJI WAGHAJI JAT v. BHIKHABHAI KHENGARBHAI 835
HARIJAN & OTHERS [DALVEER BHANDARI, J.]

In these circumstances, the Court concludes that the A
application of the provisions of the 1925 and 1980Acts to
deprive the applicant companies of their title to the
registered land imposed on them an individual and
> ) excessive burden and upset the fair balance between the
demands of the public interest on' the one hand and the B
applicants' right to the peaceful enjoyment of· their
possessions on the other.
There has therefore been a violation of Article 1 of Protocol
1."
c
55. The question of the application of Article 41 was
referred for the Grand Chamber Hearing of the ECHR.
This case sets the field of adverse possession and its

. .,,.
interface with the right to peaceful enjoyment in all its
complexity.
D
56. Therefore it will have to be kept in mind the courts
around the world are taking an unkind view towards
statutes of limitation overriding property rights."
32. Reverting to the facts of this case, admittedly, the ap-
pellants at no stage had set up the case of adverse posses- E
sion, there was no pleading to that effect, no issues were framed,
but even then the trial court decreed the suit on the ground of
adverse possession. The trial court judgment being erroneous
and unsustainable was set aside by the first appellate court.
Both the first appellate court and the High Court have categori- F
cally held that the appellant has miserably failed to establish
title to the suit land, therefore, he is not entitled to the owner-
ship. We endorse the findings of the first appellate court upheld
by the High court.
G
33. Consequently, the appeal being devoid of any merit is
accordingly dismissed with costs, which is quantified at
Rs.25,000/-.
34. Before parting with this case, we deem it appropriate
to observe that the law of adverse possession which ousts an H
836 SUPREME COURT REPORTS [2008] 13 S.C.R.

A owner on the basis of inaction within limitation is irrational, il-
logical and wholly disproportionate. The law as it exists is ex-
tremely 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 benefit a persqn who in a
s clandestine manner takes possession of the property of the
owner in contravention of law. This in substance would mean
that the law gives seal of approval to the illegal action or activi-
ties of a rank trespasser or who had wrongfully taken posses-
sion of the property of the true owner.
C 35. We fail to comprehend why the law should place pre-
mium on dishonesty by legitimizing possession of a rank tres-
passer and compelling the owner to loose its possession only
because of his inaction in taking back the possession within
limitation.
D
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 judg-
ment be sent to the Secretary, Ministry of Law and Justice, De-
E partment of Legal Affairs, Government of India for taking appro-
priate steps in accordance with law.
S.K.S. Appeal dismissed.