STATE OF HARYANAversusMUKESH KUMAR & ORS.

                [2011] 14 (ADDL.) S.C.R. 211


                    STATE OF HARYANA                               A
                               v.
                MUKESH KUMAR & ORS.
     (Special Leave Petition (Civil) No. 28034 of 2011)
                   SEPTEMBER 30, 2011
                                                                   B
   [OALVEER BHANDARI ANO OEEPAK VERMA, JJ.]

     Adverse possession:

      Property rights- Claim for, by way of adverse possession C
- Whether the State/Police Department, which is in charge of
protection of life, liberty and property of people can be
permitted to grab the land and property of its own citizens
under the banner of the plea of adverse possession - Held:
If the protectors of law become the grabbers of the property
 (land and building), then, people will be left with no protection D
and there would be total anarchy in the entire country - It is
indeed a very disturbing and dangerous trend and must be
arrested without further loss of time in the larger public interest
- No Government Department, Public Undertaking, and
much Jess the Police Department should be permitted to E
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 - There is an urgent need for a
fresh look on the entire Jaw of adverse possession - In the
instant case, .the suit was filed by State of Haryana through F
the Superintendent of Police seeking right of ownership by
adverse possession - Suit was dismissed by courts below -
Revenue records of the State revealed that the disputed
property stood in the name of the defendants - It is
unfortunate that the Superintendent of Police, a senior official G
of the Indian Police Service, made repeated attempts to grab
the property of the true owner by filing repeated appeals before
different forums claiming right of ownership by way of adverse
possession - Special Leave Petition dismissed with costs of
                               211                                  H
    212   SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.


A Rs.50,0001- to be paid by the State of Haryana for filing
  frivolous petition and unnecessarily wasting the time of the
  Court and demonstrating its evil design of grabbing the
  properties of lawful owners in a clandestine manner -
  Recommendation to Union of India to immediately consider
8 and seriously deliberate either abolition of the law of adverse
  possession and in the alternate to make suitable
  amendments in law of adverse possession - Need for
  legislation - Costs.

      Historical background of adverse possession -
C Discussed.

      Burden of proof - Held: 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
D plead and establish all facts neces~ "'TY to establish adverse
  possession - Equity.

       Right to property - Held: Is not only constitutional or
  statutory right but also a human right - Therefore, even claim
  of adverse possession has to be read in that context -
E Constitution of India, 1950.
        Protection of property rights - Fifth Amendment of the
    U.S. Constitution - a principle of a civilized society -
    Discussed.
F
      The State of Haryana filed a civil suit through the
  Superintendent of Police, Gurgaon, seeking a relief of
  declaration to the effect that it has acquired the rights of
  ownership by way of adverse possession over land
G measuring 8 biswas comprising khewat no. 34, khata no.
  56, khasra no. 3673/452 situated in the revenue estate of
  Hidayatpur Chhavni, Haryana.

      The trial court dismissed the suit. The first appellate
  court dismissed the appeal with exemplary cost of
H Rs.25000/- on the ground that the Police department is
 STATE OF HARYANA v. MUKESH KUMAR & ORS.                  213

for the protection of the people and property of the             A
citizens and the police department had unnecessarily
dragged the defendants in unnecessary litigation. The
High Court dismissed the appeal.

    The question which arose for consideration in the            8
instant special leave petition was whether the State,
which is in charge of protection of life, liberty and property
of the people can be permitted to grab the land and
property of its own citizens under the banner of the plea
of adverse possession.
                                                                 c
    Dismissing the special leave petition, the Court

     HELD: 1. In a democracy, governed by rule of law,
the task of protecting life and property of the citizens is
entrusted to the police department of the government. In         o
the instant case, the suit was filed through the
Superintendent of ,Police, Gurgaon, seeking right of
ownership by adverse possession. The revenue records
of the State revealed that the disputed property stood in
the name of the defendants. It is unfortunate that the           E
Superintendent of Police, a senior official of the Indian
Police Service, made repeated attempts to grab the
property of the true owner by filing repeated appeals
before different forums claiming right of ownership by
way of adverse possession. Such incidents would result           F
in citizens losing faith in the entire police administration
of the country and those responsible for the safety and
security of their life and property are on a spree of
grabbing the properties from the true owners in a
clandestine manner. [Paras 26-28] [226-F-H; 227-A-B]
                                                                 G
     2.1. Adverse possession - Historical background:
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        H
    214   SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R.


A 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. This early English doctrine was designed to
  prevent legal disputes over property rights that were time
s 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
c important in early American periods to cure the growing
  number of title disputes. The American version mirrored
  the English law, which is illustrated by most States
  adopting a twenty-year statute of limitations for adverse
  possession claims. As America has developed to the
  present date, property rights have become increasingly
0
  more important and land has become limited. As a result,
  the time period to acquire land by adverse possession
  has been reduced in some States to as little as five years,
  while in others, it has remained as long as forty years. The
E United States has also changed the traditional doctrine
  by preventing the use of adverse possession against
  property held by a governmental entity. During the
  colonial period, prior to the enactment of the Bill of
  Rights, property was frequently taken by States from
  private land owners without compensation. Initially,
F undeveloped tracts of land were the most common type
  of property acquired by the government, as they were
  sought for the installation of public road. Under the
  colonial system it was thought that benefits from the road
  would, in a newly opened country, always exceed the
G value of unimproved land. 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
H
 STATE OF HARYANA v. MUKESH KUMAR & ORS.                  215

erupting. The concept of adverse possession exists to            A
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         B
could come forward with a legal claim on the property.
Since independence our country have witnessed
registered documents of title and more proper, if not
perfect, entries of title in the. government records. The
situation having changed, the ~tatute calls for a change.        c
[Paras 30-33] [227-0-H; 228-A-F)

    Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan
and Others (2009) 16 sec 517 ..;. relied on.

    S.M. Karim v. Mst. Bibi Sakina AIR 1964 SC 1254; Bhim        D
Singh & Ors. v. Zile Singh & Ors., AIR 2006 P & H 195; Food
Corporation of India and Another v. Dayal Singh 1991 PLJ
425; Kanak Ram & Ors. v. Chanan Singh & Ors. (2007) 146
PLR 498 - referred to.            .
                                                                 E
    2.2. 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 adverse
possession. Though we got this law of adverse
possession from the British, it is important to note that F
these days English Courts are taking a very negative view
towards the law of adverse possession. The English ·1aw
was amended and changed substantially to reflect these
changes, particularly in light of the view that property is
a human right adopted by the European Commission. G
The right to property is now considered to be not only
constitutional or statutory right but also a human right.
Human rights have already been considered in realm of
individual rights such as right to health, right to
                                                                 H
    216   SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.


A livelihood, right to shelter and employment etc. But now
  human rights are gaining a mu!ti faceted dimension.
  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. [Paras 35, 36]
B [230-D-H; 231-A-D]

         Fairweather v. St. Marylebone Properly Co [1962] 2 WLR
    1020: [1962] 2 All ER 288; Taylor v. Twinberrow [1930] 2 K.B.
    16; Beaulane Properties Ltd. v. Palmer (2005) 3 WLR 554 -
    referred to.
c
    Fifth Amendment of the U.S. Constitution - a principle of
    a civilized society:

       3. Another important development in the protection
0 of property rights was the Fifth Amendment. James
  Madison was the drafter and key supporter for the Fifth
  Amendment. The Fifth Amendment states: "nor shall
  private property be taken for public use, without just
  compensation". The main issue is to pay just
E compensation for acquiring the property. There are
  primarily two situations when a landowner may obtain
  compensation for land officially transferred to or
  depreciated by the government. First, an owner may be
  entitled to compensation when a governmental entity
  intentionally acquires private property through a formal
F condemnation proceeding and without the owner's
  consent. The State's power to take property is considered
  inherent through its eminent domain powers as a
  sovereign. Through the condemnation proceedings, the
  government obtains the necessary interest in the land,
G and the Fifth Amendment requires that the property
  owner be compensated for this loss. The second
  situation requiring compensation under Fifth Amendment
  occurs when the government has not officially acquired
  private property through a formal condemnation
H proceeding, but "nonetheless takes property by
 STATE OF HARYANA v. MUKESH KUMAR & ORS.               217

 physically invading or appropriating it". Under this A
 scenario, the property owner, at the point in which a
 "taking" has occurred, has the option of filing a claim
against the government actor to rec~ver just
 compensation for the loss. When the landowner sues the
 government seeking compensation for a taking, it is B
 considered an inverse condemnation proceeding,
 because the landowner and not the government is
 bringing the cause of action. This law of adverse
 possession was inherited from the British. The
 Parliament may consider abolishing the law of adverse c
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 have attempted to possess land
 adversely. This is a testament to the absurdity of the law 0
 and a black mark upon the justice system'~ legitimacy.
 The Government should protect the propertY of a citizen
- not steal it. And yet, as the law currently stands, they
may do just that. If this law is to be retained, according
to the wisdom of the Parliament, then at least the law E
must require those who adversely possess land to
compensate title owners according fo the prevalent
market rate of the land or property in question. This
alternative would provide some semblance of justice to
those who have done nothing other than sitting on their
rights for the statutory period, while allowing the adverse F
possessor to remain on property. While it may be
 indefensible to require all adverse possessors - some of
whom may be poor - to pay market rates for the land they
 possess, perhaps some lesser amount would be realistic
in most of the cases. The Parliament may either fix a set G
range of rates or .to leave it to the judiciary with the option
 of choosing from within a set range of rates so as to tailor
 the compens~tion to the equities of a given case. The
 Parliament must seriously consider at least to abolish
."bad faith" adverse possession, i.e., adverse possession H
   218    SUPREME COURT REPORTS [2011] 14 (ADDL.} S.C.R.


A achieved through intentional trespassing. Actually.
  believing it to be their own could receive title through
  adverse possession sends a wrong signal to the society
  at large. Such a change would ensure that only those
  who had established attachments to the land through
s honest means would be entitled to legal relief. In case, the
  Parliament decides to retain the law of adverse
  possession, the Parliament might simply require adverse
  possession claimants to possess the property in
  question for a period of 30 to 50 years, rather than a mere
c 12. Such an extension would help to ensure that
  successful claimants have lived on the land for
  generations, and are therefore less likely to be
  individually culpable for the trespass (although their
  forebears might). A longer statutory period would also
  decrease the frequency of adverse possession suits and
0
  ensure that only those claimants most intimately
  connected with the land acquire it, while only the most
  passive and unprotective owners lose title. Reverting to
  the facts Clf this case, if the Police department of the State
  with all its might is bent upon taking possession of any
E land or building in a clandestine manner, then, perhaps
  no one would be able to effectively prevent them. It is our
  bounden duty and obligation to ascertain the ·intention of
  the Parlia~ent while interpreting the law. Law and
  Justice, more often than not, happily coincide only rarely
F we find serious conflict. The archaic law of adverse
  possession is one such. A serious re-look is absolutely
  imperative in the larger interest of the people. Adverse
  possession allows a trespasser - a person guilty of a tort,
  or even a crime, in the eyes of law - to gain legal title to
G land which he has illegally possessed for 12 years. How
  12 years of illegality can suddenly be converted to legal
  title is, logically and morally speaking, baffling. This
  outmoded law essentially asks the judiciary to place its
  stamp of approval upon conduct that the ordinary Indian
H
 STATE OF HARYANA v. MUKESH KUMAR & ORS.                219

citizen would find reprehensible. The doctrine of adverse      A
possession has troubled a great many legal minds. Time
has come for change. If the protectors of law become the
grabbers of the property (land and building), then, people
will be left with no protection and there would be a total
anarchy in the entire country. It is indeed a very             B
disturbing and dangerous trend. It must be arrested
without further loss of time in the larger public interest.
No Government Department, Public Undertaking, and
much less the Police Department should be permitted to
perfect the title of the land or building by invoking the      c
provisions of adverse possession and grab the property
of its own citizens in the manner that has been done in
this case. There is an urgent need for a fresh look of the
entire law on adverse possession. The Union of India is
recommended to immediately consider and seriously
                                                               0
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 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.     E
[Paras 40-51] [235-E-H; 236-A-H; 237-A-H; 238-A-F]

     4. This Special Leave Petition is dismissed with costs
of Rs.50,000/- (Rupees Fifty Thousand only) to be paid by
the State of Haryana for filing a totally frivolous petition   F
and unnecessarily wasting the time of the Court and
demonstrating its evil design of grabbing the properties
of lawful owners in a clandestine manner. The costs
should be deposited within four weeks from the date of
pronouncement of this judgment. In this petition, notice       G
was not issued to the defendants, therefore, the costs is
directed to be deposited with the National Legal Services
Authority for utilizing the same to enable the poor
litigants to contest their cases. [Para 52] [238-G-H; 239-
A-B]                                                           H
    220    SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.


A                        Case Law Reference:

          AIR 1964 SC 1254         referred to        Para 12

          AIR 2006 P and H 195 referred to            Para 13

          1991 PLJ 425             referred to        Para 20
B
          (2007) 146 PLR 498       referred to        Para 21

          (2009) 16 sec 517        relied on          Para 34, 38

          [1962) 2 WLR 1020        referred on        Para 35
c         (1930) 2 K.8. 16         referred to        Para 35

          (2005) 3 WLR 554         referred to        Para 37

       CIVIL APPELLATE JURISDICTION : Special Leave
D Petition (Civil) No. 28034 of 2011.
        From the Judgment and Order dated 17.03.2009 of the
    High Court of Punjab and Haryana at Chandigarh in RSA No.
    3909 of 2008.

E        Manjit Singh, AAG and Kamal Mohan Gupta for the
    Petitioner.

          The Judgment of the Court was delivered by

       DALVEER BHANDARI, J. 1. People are often
F astonished to learn that a trespasser may take the title of a
  building or land from the true owner in certain conditions and
  such theft is even authorized by law.

       2. The theory of adverse possession is also perceived by
G the general public as a dishonest way to obtain title to property.
  Property right advocates argue that mistakes by landowners or
  negligence on their part should never transfer their property
  rights to a wrongdoer, who never paid valuable consideration
  for such an interest.
H
  STATE OF HARYANA v. MUKESH KUMAR & ORS.                    221
            [DALVEER BHANDARI, J.]

     .3. The government itself may acquire land by adverse          A
possession. Fairness dictates and commands that if the
government can acquire title to private land through adverse
possession, it should be able to lose title under the same
circumstances.
                                                                    B
      4. We have heard the learned counsel· for the State of
Haryana. We do not deem it appropriate to financially burden
the respondents by issuing notice in this Special Leave Petition.
A very vital question which arises for consideration in this
petition is whether the State, which is in charge of protection     C
of life, liberty and property of the people can be permitted to
grab the land and property of its own citizens under the banner
of the plea of adverse possession?

     5. Brief facts, relevant to dispose of this Special Leave
Petition are recapitulated as under:                                D
     6. The State of Haryana had filed a Civil Suit through the
Superintendent of Police, Gurgaon, seeking a relief of
declaration to the effect that it has acquired the rights of
ownership by way of adverse possession over land measuring          E
8 biswas comprising khewat no. 34, khata no. 56, khasra no.
3673/452 situated in the revenue estate of Hidayatpur Chhavni,
Haryana.
     7. The other prayer in the suit was that the sale deed dated
26th March, 1990, mutation no. 3690 dated 22nd November,            F
1990 as well as judgment and decree dated 19th May, 1992,
passed in Civil Suit No. 368 dated 9th March, 1991 are liable
to be set aside. As a consequential relief, it was also prayed
that the defendants be perpetually restrained from interfering
with the peaceful possession of the plaintiff (petitioner herein)   G
over the suit land. For the sake of convenience we are referring
the petitioner as the plaintiff and the respondents as
defendants.
    8. In. the written statement, the defendants raised a number    H
    222        SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.


A of preliminary objections pertaining to estoppel. cause of action
  and mis-joinder of necessary parties. It was specifically denied
  that the plaintiff 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 plaintiff recently occupied it
B by using force and thereafter have also raised a boundary wall
  of police line. It was denied in the written statement that the
  plaintiff acquired right of ownership by way of adverse
  possession qua property in question. The defendants prayed
  for dismissal of suit and by way of a counter claim also prayed
c for a decree for possession qua suit property be passed.
          9. The Trial Court framed the following Issues in the suit.
           1.     Whether plaintiffs have become owner of disputed
                  property by way of adverse possession? OPP
D
           2.     Whether sale deed 26.3.1990 and mutation no.
                  3690 dated 22.11.90 are null and void as alleged?
                  OPP
          3.      Whether judgment and decree dated 19.05.92
E                 passed in civil suit no. 368 dated 9.3.91 is Tiable
                  to be set aside alleged? OPP
          4.      Whether the suit of the plaintiff is not maintainable
                  in the present form? OPP
F
          5.      Whether the plaintiff has no locus-standi to file the
                  present suit? OPP
          6.      Whether the plaintiff has no cause of action to
                  filethe present suit? OPP
G
          7.      Whether the suit of the plaintiff is bad for misjoinder
                  of necessary parties? OPP
          8.      Whether defendants no. 1 to 4 are rightful owners
                  of disputed property on the basis of impugned sale
H
  STATE OF HARYANA v. MUKESH KUMAR & ORS.                     223
            [DALVEER BHANDARI, J.]
                                               -~




            deed dated 23.6.1990 registered on 3.7.1990?              A
            OPP

      9.    Whether defendants are entitled for possession of
            disputed property? OPP

      10.   Relief.                                                   B

     10. Issue No. 1 which relates to adverse possession and
issue No. 4 pertaining to maintainability were decided together.
According to the Trial Court, the plaintiff has failed to prove the
possession ove1 the disputed property because the plaintiff           c
could not produce any documentary evidence to prove this. On
the contrary, revenue records placed on the file shows that the
defendants are the owners in possession of disputed property.
The Trial Court observed that possession of State, as claimed
in the plaint for a continuous period of 55 years, stood falsified    0
by the documents issued by the officials of the State.

      11. The Trial Court also observed that despite claiming
 adverse possession, there was no pleading qua denial of title
·of the defendants by the plaintiff, so much so that the spec'ific
 day when the alleged possession of State allegedly became            E
 adverse. against the defendants has not been mentioned in
 order to establish the starting point of limitation could be
 ascertained.

    12. The Trial Court relied on the judgment of this Gourt in       F
S.M. Karim v. Mst. Bibi Sakina AIR 1964 SC 1254 wherein this
Court has laid down that the adverse possession must be
adequate in continuity, in publicity and extent and a plea is
required at the least to show when possession becomes
adverse. The Court also held that long possession is not              G
necessarily adverse possession.
     13. The Trial Court also relied on a decision of the High
Court of Punjab and Haryana in the case of Bhim Singh & Ors.
v. Zile Singh & Ors., AIR 2006 P and H 195, wherein it was
stated that no declaration can be sought by a plaintiff with          H
    224 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.


A regard to the ownership on the basis of adverse possession.

       14. The Trial Court came to specific conclusion that
  despite the fact that the possession of the plaintiff over the
  disputed land is admitted on behalf of defendants, Issue No. 1
  stand decided against the plaintiff. It was held that the suit of
8
  the plaintiff claiming ownership by way of adverse possession
  is not maintainable. Consequently, Issue No. 1 was decided
  against the plaintiff ar.d Trial No. 4 was decided in favour of
  the defendants.

C       15. The Trial Court decided Issue Nos. 2, 3, 5 and 6
  together and came to the definite conclusion that the plaintiff
  failed to prove its possession over the property in question. It
  was also held that the plaintiff had no locus standi to challenge
  the validity of the impugned sale deed, mutation as well as the
D judgment and decree because the plaintiff was neither the
  owner nor in possession of the property in dispute.
  Consequently, the plaintiff had no right to say that the impugned
  sale deed dated 26th March, 1990 was a sham transaction and
  the suit of mutation dated 22nd November, 1990 and, thereafter,
E the judgment and decree dated 19th May, 1992 passed in Civil
  Suit No. 386 dated 9th March, 1991 are liable to be set aside.

       16. The Trial Court came to the conclusion that the plaintiff
  having no right or title in the suit property has neither locus
  standi nor cause of action to file the present suit. Issue Nos. 2
F and 3 were decided against the plaintiff, whereas, Issue Nos.
  5 and 6 were decided in favour of the defendants.
       17. Regarding Issue Nos. 8 and 9, the Trial Court observed
  that once it is held that defendant Nos. 1 to 4 are owners of
G the disputed property, which is presently in possession of the
  plaintiff without any right, they (defendants) are entitled to its
  possession. Hence, Issue Nos. 8 and 9 were also decided in
  favour of the defendants.

H
  STATE OF HARYANA v. MUKESH KUMAR & ORS.                     225
            [DALVEER BHANDARI, J.]
    18. Issue No. 7 was not pressed and decided against the           A
defendants.

    19. Regarding Issue No. 10 (relief) the Trial Court observed
as under:

           "As a sequel to the findings of this court on the issues   8
     mentioned above, the suit of the plaintiff stands dismissed,
     however, counter claim filed by defendants is decreed with
     costs to the effect that they are entitled to possession of
     land measuring 8 biswas comprising of khewat no. 34
     khata no. 56 khasa no. 3673/452 situated in revenue              C
     estate of Hidayatpur Chhavni village now the part of known
     as Patel Nagar, Gurgaon. Decree sheet be drawn
     accordingly. File be consigned to the record room after
     due. compliance."
                                                                      D
      20. The plaintiff, aggrieved by the judgment of the Trial
Court filed an appeal (Civil Appeal No. 33) before the learned
Additional District Judge, Gurgaon. Learned Additional District
Judge while deciding the appeal, relied on the judgment of the
Punjab &. Haryana High Court delivered in the case of Food            E
Corporation of India and Another v. Dayal Singh 1991 PLJ
425, wherein it was observed that it does not behove the
Government to take the plea of adverse possession against ~he
citizens.

      21. Learned Additional District Judge also relied on other      F
judgments of Punjab & Haryana High Court in the cases of
Bhim Singh & Ors. (supra) and Kanak Ram & Ors. v. Chanan
Singh & Ors. (2007) 146 PLR 498 wherein it was held that a
person in adverse possession of immovable property cannot
file a suit for declaration claiming ownership and such a suit        G
was not maintainable.

     22. Before parting with the judgment the learned Additional
District Judge observed regarding conduct of the plaintiff that
the present suit was filed by State of Haryana by the then            H
    226    SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.


A Superintendent of Police, Gurgaon on 11th May, 1996. It was
  also observed by the learned Additional District Judge that the
  Police department is for the protection of the people and
  property of the citizens and the police department had
  unnecessarily dragged the defendants in unnecessary litigation.
B The appeal was dismissed with exemplary cost of Rs.25,000/


      23. Unfortunately, despite serious strictures passed by the
  Court, the State of Haryana did not learn a lesson and preferred
  a Second Appeal (RSA No. 3909 of 2008) before the High
C Court of Punjab and Haryana, Chandigarh against the
  judgments and decrees of the two courts below.

       24. The High Court, relying on the earlier judgments,
  observed that the welfare State which was responsible for the
D protection of life and property of its citizens, was in the present
  case, itself trying to grab the land/property of the defendants
  under the garb of plea of adverse possession and hence the
  action of the plaintiff is deplorable and disgraceful.

E        25. Unfortunately, the State of Haryana, is still not satisfied
    with the three strong judgments by three different forums given
    against the State and is still quite anxious and keen to grab
    the property of the defendants in a clandestine manner on the
    plea of adverse possession.

F        26. In a democracy, governed by rule of law, the task of
    protecting life and property of the citizens is entrusted to the
    police department of the government. In the instant case, the
    suit has been filed through the Superintendent of Police,
    Gurgaon, seeking right of ownership by adverse possession.
G
       27. The revenue records of the State revealed that the
  disputed property stood in the name of the defendants. It is
  u·ntortunate that the Superintendent of Police, a senior official
  of the Indian Police Service, made repeated attempts to grab
H the property of the true owner by filing repeated appeals before
   STATE OF HARYANA v. MUKESH KUMAR & ORS.                       227
             [DALVEER BHANDARI, J.]
 different forums claiming right of ownership by way of adverse         A
 possession.

     28. The citiiells may lose faith in the entire police
administration of the country that those responsible for the
safety and security of their life and property are on a spree of
                                                                        8
grabing the properties from the true owners in a clandestine
manner.
                                      -
     29. A very informative and erudite Article was published
in Neveda Law Journal Spring 2007 with the title 'Making Sense
Out of Nonsense: A Response to Adverse Possession by                    C
Governmental Entities'. The Article was written by Andrew
Dickal. Historical background of adverse possession was
discussed in that article.

Historical background                                                   o
      30. 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 statue of limitations was put into place that        E
 allowed for a person in possession of property for twenty years
 or 01ore to acquire title to that property. This early
 Englishdoctrine 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              F
 forcing owners to monitor their property or suffer the
·consequence of losing title.

         31. The concept of adverse possession was subsequently
~dopted in the United States. The doctrine was especially               G
jmportant in early American periods to cure the growing number
 :>f title disputes. The American version mirrored the English law,
..vh.ich is illustrated by most States adopting a twenty-year statue
 :>f limitations for adverse possession claims. As America has
 ::leveloped to the present date, property rights have become
                                                                        H
    228   SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.


A   increasingly more important and land has become limited. As
    a result, the time period to acquire land by adverse possession
    has been reduced in some States to as little as five years, while
    in others, it has remained as long as forty years. The United
    States has also changed the traditional doctrine by preventing
B   the use of adverse pos.>ession against property held by a
    governmental entity.

       32. During the colonial period, prior to the enactment of
  the Bill of Rights, property was frequently taken by states from
  private land owners without compensation. Initially,
C undeveloped tracts of land were the most common type of
  property acquired by the government, as they were sought for
  the installation of public road. Under the colonial system it was
  thought that benefits from the road would, in a newly opened
  country, always exceed the value of unimproved land.
D
       33. 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
E erupting. The concept of adverse possession exits 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
F holder of centuries past could come forward with a legal claim
  on the property. Since independence of our country we have
  witnessed registered documents of title and more proper, if not
  perfect, entries of title in the government records. The situation
  having changed, the statute calls for a change.

G        34. In Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai
    Harijan and Others (2009) 16 SCC 517 (one of us Bhandari,
  J.}, this Court had an occasion to examine the English and
  American law on "adverse possession". The relevant paras of
  that judgment (Paras 24 and 26 to 29) are reproduced as
H under:
STATE OF HARYANA v. MUKESH KUMAR & ORS.                     229
          [DALVEER BHANDARI, J.]

       "24. In a relatively recent case in P. T.                   A
 Munichikkanna Reddy v. Revamma (2007) 6 SCC 59,
 this Court again had an occasion to deal with the concept
 of adverse possession in detail. The Court also examined
 the legal position in various countries particularly in English
 and American systems. We deem it appropriate to                   B
 reproduce relevant passages in extenso. The Court
 dealing with adverse possession in paras 5 and 6
 observed as under: (SCC pp. 66-67)

              "5. Adverse possession in one sense is based         C
        on the theory or presumption that the owner has
        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
        follows that sound qualities of a typical adverse
        possession lie in it being open, continuous and            D
        hostile. (See Downing v. Bird 100 So 2d 57 (Fla
        1958), Arkansas Commemorative Commission v.
        City of Little Rock 227, Ark 1085 : 303 SW 2d 569
        (1957); Monnot v. Murphy 207 NY 240 : 100 NE
        742 (1913); City of Rock Springs v. Sturm 39 Wyo           E
        494: 273 P 908 : 97 ALR 1 (1929).)

              6. Efficacy of adverse possession law inmost
        jurisdictions depends on strong limitation statutes
        by operation of which right to access the court F
        expires through efflux of time. 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
        long period of time, cared for the land, developed G
        it, as against the owner of the property who has
        ignored the 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 H
    230     SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.


A                specified time, but also to 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
8                claim of right or colour of title. (See American
                 Jurisprudence, Vol. 3, 2d, p. 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
c                dispossess cannot be given a complete go-by.
                 Simple application of limitation shall not be
                 enough by itself for the success of an adverse
                 possession claim."                  ·

          35. A person pleading adverse possession has no
D    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 adverse possession. Though we got
    this law of adverse possession from the British, it is important
    to note that these days English Courts are taking a very
E   negative view towards the law of adverse possession. The
    English law ~as amended and changed substantially to reflect
    these changes, particularly in light of the view that property is
    a human right adopted by the European Commission. This
    Court in Revamma (supra) observed that to understand the true
F   nature of adverse possession, Fairweather v. St Marylebone
    Property Co [1962) 2 WLR 1020: [1962) 2 All ER 288 can be
    considered where House of Lords referring to Taylor v.
    Twinberrow [1930) 2-K.B. 16 termed adverse possession as a
    negative and consequential right effected only because
G   somebody else's positive right to access the court is barred
    by operation of law. As against the 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 long period of time, cared for the land, developed it, as
H   against the owner of the property who has ignored the property.
 STATE OF HARYANA v. MUKESH KUMAR & ORS.                     231
           [DALVEER BHANDARI, J.]
     36. The right to property is now considered to be not only      A
constitutional or statutory right but also a human right. Human
rights have already been considered in 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 multi
faceted dimension. Right to property is also considered very         B
much a part of the new dimension. Therefore, even claim of
adverse possession has to be read in that context.

     37. The changing attitude of the English Coqrts is quite
visible from the judgment of Beau/ane Properties Ltd. v.             C
Palmer (2005) 3 WLR 554. The Gourt here tried to read the
human rights position in the context of adverse possession. But
what is commendable is that the dimension of human rights
have widened so much that now property dispute issues are
also being raised within the contours of human rights. With th~
expanding jurisprudence of the European Courts of Human              D
Rights, the Court has taken an unkind view to the concept of
adverse possession.

    38. Paragraphs from 26 to 29 of Hemaji Waghaji Jat
(supra) are set out as under:-                                       E

          26. With the expanding jurisprudence of Jhe
    European Court of Human Rights, the Court has taken an
    unkind view to the concept of adverse possession in the
    recent judgment of JA Pye (Oxford) Ltd. v. United
    Kingdom (2005) 49 ERG 90 which concerned the loss of             F
    ownership of land by virtue of adverse possession. In the
    said case, "the applicant company was the registered
    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           G
    agreement. After a brief exchange of documents in
    December 1983 a chartered surveyor acting for the
    applicants wrote to the Grahams noting that the grazing
    agreement was about to expire and requiring them to
    vacate the land." The Grahams continued to use the whole         H
    232     SUPREME COURT REPORTS [2011) 14 (ADDL.) S.C.R.


A         of the disputed land for farming without the permission of
          the applicants from September 1998 till 1999. In 1997, Mr
          Graham moved the Local Land Registry against the
          applicant on the ground that he had obtained title by
          adverse possession. The Grahams challenged the
B         applicant company's claims under the Limitation Act, 1980
          (the 1980 Act) which provides that a person cannot bring
          an action to recover any land after the expiration of 12
          years of adverse possession by another.

                  27. The judgment was pronounced in JA Pye
c          (Oxford) Ltd. v. Graham (2000) 3 WLR 242 : 2000 Ch 676.
           The Court held in favour of the Grahams but went on to
           observe the irony in law of adverse possession. The court
           observed that the law which provides to oust an owner on
           the basis of inaction of 12 years is "illogical and
D          disproportionate". The effect of such law would "seem
           draconian to the owner" and "a windfall for the squatter".
          The court expressed its astonishment on the prevalent law
          that ousting an owner for not taking action within limitation
          is illogical. The applicant company aggrieved by the said
E         judgment 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.

F           28. The House of Lords in JA Pye (Oxford) Ltd. v.
      Graham (2003) 1 AC 419: (2002) 3 WLR 221 : (2002) 3
      All ER 865 (HL), observed that the Grahams had
      possession of the land in the ordinary sense of the word,
      and, therefore, the applicant company had been
      dispossessed of it within the meaning of the Limitation Act
G
      of 1980.

            29. We deem it proper to reproduce the relevant
      portion of the judgment in P.T. Munichikkanna Reddy v.
      Revamma (2007) 6 SCC 59: (SCC p. 79, paras 51-52)
H
STATE OF HARYANA v. MUKESH KUMAR & ORS.                    233
          [DALVEER BHANDARI, J.]

               "51. Ther~after the applicants moved the            A
         European Commission of Human Rights (ECHR)
         alleging that the United Kingdom law on adverse
         possession, by which 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         8
         Fundamental Freedoms ('the Convention').

        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                   C
  contravention with Article 1 of Protocol 1 to the Convention
  for the Protection of Human Rights and Fundamental
  Freedoms fthe Convention'), which reads as under:

               'Every natural or legal person is entitled to the
         peaGeful eAjoymeRt of his pqssession. No one shall        D
         be deprived of his possession except in the public
         interest and subject to the conditions provided for
         by law and by the general principles of international
         law.
                                                                   E
              The preceding provisions shall not, however,
         in any way impair the right of a State to enforce
         such laws C!S it deems necessary to control the use
         of property !ri accordance with the general interest
         or to secure the payment of taxes or other                F
         contributions or penalties.' "

  This Court in Revamma case also mentioned that the
  European Council of Human Rights importantly laid down
  three-pronged test to judge the interference of the
  Government with the right of "peaceful enjoyment of              G
  property": (SCC p. 79! para 53) .

       "53 .... [In] Beye/er v, Italy [GG] No. 33?02of 1996
  §§ 108-14 ECHR 2000-1, it was held that the 'interference'
  should comply with the principle of lawfulness and pursue        H
    234     SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.


A         a legitimate aim (public interest) by means reasonably
          proportionate to the aim sought to be realised."

          The Court observed:(Revamma case 79-80, paras 54-56)

                "54 .... 'The question nevertheless remains whether,
B         even 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 unauthorized
          possession struck a fair balance with any legitimate public
c         interest served.

                In these circumstances, the Court concludes that the
          application of the provisions of the 1925 and 1980 Acts
          to deprive the applicant companies of their title to the
D         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
          applicants' right to the peaceful enjoyment of their
          possessions on the other.
E              There has therefore been a violation of Article 1 of
          Protocol 1.'

                 55. The question of the application of Article 41 was
          referred for the Grand Chamber Hearing of the ECHR. This
F         case sets the field of adverse possession and its interface
          with the right to peaceful enjoyment in all its complexity.

                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."
G
        39. In Hemaji Waghaji Jat case, this Court ultimately
    observed as under:

               "32. Before parting with this case, we deem it
H         appropriate to observe that the law of adverse possession
  STATE OF HARYANA v. MUKESH KUMAR & ORS.                       235
            [DALVEER BHANDARI, J.]
    'which ousts an owner on the basis of inaction within               A
     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 had illegally
     taken possession of the property of the true owner. The
     law ought not to benefit a person who in a clandestine             B
     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
     activities of a rank trespasser or who had wrongfully taken
     possession of the property of the true owner.                      c
          33. We fail 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."                                     D

Fifth Amendment of the U.S. Constitu~ion - a principle of
a civilized society

     40. Another important development in ~he protection of             E
 property rights was the Fifth Amendment. James Madison was
the drafter and key supporter for the Fifth Amendment. The Fifth
Amendment states: "nor shall private property be taken for
public use, without just compensation". The main issue is to pay
just compensation for acquiring the property. There are
primarily two situations when a landowner may obtain
                                                                        F
compensation for land officially transferred to or depreciated
by the government. First, an owner may be entitled to
compensation when a governmental entity intentionally acquires
private property through a formal condemnation proceeding
and without the owner's consent. The State's power to take              G
property is considered inherent through its eminent domain
powers as a sovereign. Through the condemnation
proceedings, the government obtains the necessary interest in
the land, and the Fifth Amendment requires that the property
owner be compensated for this loss.                                     H
    236    SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.


A       41. The second situation requiring compensation under
  Fifth Amendment occurs when the government has not officially
  acquired private property through a formal condemnation
  proceeding, but "nonetheless takes property by physically
  invading or appropriating it". Under this scenario, the property
B owner, at the point in which a "taking" has occurred, has the
  option of filing a claim against the government actor to recover
  just compensation for the loss. When the landowner sues the
  government seeking compensation for a taking, it is considered
  an inverse condemnation proceeding, because the landowner
c and not the government is bringing the cause of action.

          42. We inherited this law of adverse possession from the
    British. The Parliament may consider abolishing the law of
    adverse possession or at least amending and making
    substantial changes in law in the larger public interest. The
D   Government instrumentalities - including the police - in the
    instant case have attempted to possess land adversely. This,
    in our opinion, a testament to the absurdity of the law and a
    black mark upon the justice system's legitimacy. The
    Government should protect the property of a citizen - not steal
E   it. And yet, as the law currently stands, they may do just that. If
    this law is to be retained, according to the wisdom of the
    Parliament, then at least the law must require those who
    adversely possess land to compensate title owners according
    to the prevalent market rate of the land or property in question.
F   This alternative would provide some semblance of justice to
    those who have done nothing other than sitting on their rights
    for the statutory period, while allowing the adverse possessor
    to remain on property. While it may be indefensible to require
    all adverse possessors - some of whom may be poor - to pay
G   market rates for the land they possess, perhaps some lesser
    amount would be realistic in most of the cases. The Parliament
    may either fix a set range of rates or to leave it to the judiciary
    with the option of choosing from within a set range of rates so
    as to tailor the compensation to the equities of a given case.
H         43. The Parliament must seriously consider at least to
   STATE OF HARYANA v. MUKESH KUMAR & ORS.                       237
             [DALVEER BHANDARI, J.]
  abolish "bad faith" adverse possession, i.e., adverse                  A
  possession achieved through intentional trespassing. Actually
  believing it to be their own could receive title through adverse
. possession sends a wrong signal to the society at large. Such
  a change would ensure that only those who had established
  attachments to the land through honest means would be entitled.        B
  to legal relief.

     44. In case, the Parliament decides to retain the law of
 adverse possession, the Parliament might simply require
 adverse possession claimants to possess the property in                 C
 question for a period of 30 to 50 years, rather than a mere

       12. Such an extension would help to ensure that successful
 claimants have lived on the land for generations, and are
 therefore less likely to be individually culpable for the trespass
 (although their forebears might). A longer statutory period would       D
 also decrease the frequency of adverse possession suits and
 ensure that only those claimants most intimately connected with
 the land acquire it, while only the most passive and unprotective
 owners lose title.
                                                                         E
       45. Reverting to the facts of this case, if the Police
· department of the State with all its might is bent upon taking
  possession of any land or building in a clandestine manner,
  then, perhaps no one would be able to effectively prevent them.

      46. It is our bounden duty and obligation to ascertain the         F
 intention of the Parliament while interpreting the law. Law and
 Justice, more often than not, happily coincide only rarely we find
 serious conflict. The archaic law of adverse possession is one
 such. A serious re-look is absolutely imperative in the larger
 interest of the people.                                                 G

        47. Adverse possession allows 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 has illegally possessed for 12 years. How
 12 years of illegality can suddenly be converted to legal title is,     H
    238    SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.


A   logically and morally speaking, baffling. This outmoded law
    essentially asks the judiciary to place its stamp of approval upon
    conduct that the ordinary Indian citizen would find
    reprehensible.

        48. The doctrine of adverse possession has troubled a
8
    great many legal minds. We are clearly of the opinion that time
    has come for change.

       49. If the protectors of law become the grabbers of the
  property (land and building), then, people will be left with no
C protection and there would be a total anarchy in the entire
  country.

        50. It is indeed a very disturbing and dangerous trend. In
  our considered view, it must be arrested without further loss of
D time in the larger public interest. No Government Department,
  Public Undertaking, and much less the Police Department
  should 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 has been done
E in this case.

        51. In our considered view, there is an urgent need for a
  fresh look of the entire law on adverse possession. We
  recommend the Union of India to immediately consider and
  seriously deliberate either abolition of the law of adverse
F possession and in the alternate to make suitable amendments
  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.
G
       52. This Special Leave Petition is dismissed with costs
  of Rs.50,000/- (Rupees Fifty .Thousand only) to be paid by the
  State of Haryana for filing a totally frivolous petition and
  un11ecessarily wasting the time of the Court and demonstrating
H its evil design of grabbing the properties of lawful owners in a
  STATE OF HARYANA v. MUKESH kUMAR & ORS.                     239
            [DALVEER BHANDARI, J:]
clandestine manner. The costs be deposited within four weeks         A
from the date of pronouncement of this judgment. In this petition,
we did not issue notice to the defendants, therefore, we direct
that the costs be deposited with the National Legal Services
Authority for utilizing the same to enable the poor litigants to
contest their cases.                                                 B

     53. This Special Leave Petition being devoid of any merit
ls accordingly dismissed.

D.G.                        Special Leave Petition dismissed.