MOHARRAM THE MONTH OF MOURN NOT THE MONTH OF CELEBRATION

The Mourning of Muharram is an important period of mourning in Islam (Shia Islam), taking place in Muharram which is the first month of the Islamic calendar. It is also called the Remembrance of Muharram. Many of the events associated with the remembrance take place in congregation halls known as Hussainia.

The event marks the anniversary of the Battle of Karbala when Imam Hussain Ibn Ali (as), the grandson of the Islamic prophet Muhammad, and a Shia Imam, was killed by the forces of the second Umayyad caliph Yazid (L). The event is marked by arranging 'majalis' (gatherings) to review Islamic teachings and to commemorate Imam Hussain's sacrifice. The mourning reaches its climax on the tenth day, known as Ashura, on which the forces of Yazid killed the 72 individuals who fought, including Imam Hussain, his family and supporters. The women and children left living were made prisoners and transported to Yazid's court in Damascus.

Meaning of Term Azadari

The words Azadari which mean mourning and lamentation; and Majalis-e Aza have been exclusively used in connection with the remembrance ceremonies for the martyrdom of Imam Hussain. Majalis-e Aza, also known as Aza-e-Hussain, includes mourning congregations, lamentations, matam and all such actions which express the emotions of grief and above all, repulsion against what Yazid stood for.

The term majalis has both a grammatical meaning and a meaning which relates to Aza-e-Hussain. In its technical sense, a majalis is a meeting, a session or a gathering.

Source: How Azadari Started

According to Shia sources, The Azadari of Muharram was started by the family of Muhammad (the Ahl-ul-Bayt) after the death of Muhammad's grandson Hussain ibn Ali (as) at the Battle of Karbala in 680 AD. Following the battle of Karbala, Muhammad's granddaughter Zaynab bint Ali and sister of Hussain, began mourning for the fallen and making speeches against Hussain ibn Ali's opponents: Ibn Ziyad and Yazid. News of Hussain ibn Ali's death was also spread by Imam Zain-ul-Abideen, who succeeded Hussain ibn Ali (as) as the Shia Imam, via sermons and speeches throughout Iraq, Syria and Hejaz.

Zainab and Zain-ul-Abideen informed the people that Yazid had martyred Imam Hussain and seventy-two of his companions including his six month old son Ali Asghar, and that their women and children were taken as prisoners to Syria. When word of mourning reached Yazid he decided to release the captive women and children from the prison in Damascus, out of fear of public revolt against his rule. He sent for Zain-ul-Abideen, informed him of the impending release and asked if he wished for anything further. Zain-ul-Abideen said he would consult with Zainab. She asked Yazid to provide a place where the people could mourn for Imam Hussain and others of Muhammad's household. A house was provided, and here Zaynab binte Ali held the first Majlis-e Aza of Hussain and started the Mourning of Muharram.

Event which leads to the Tragedy of Karbala

Muawiyah died on Rajab 22, 60 AH (680 CE). In violation of Islamic tradition and his own written agreement with Hasan ibn Ali, Muawiyah appointed his son Yazid as his successor, converting the caliphate into a dynasty. Few notables of the Islamic community were crucial to lending some legitimacy to this conversion of the caliphate into a dynasty even people like Said ibn Uthman and Ahnaf ibn Qais denounced his caliphate. Hussein ibn Ali was the most significant threat to this dynastic rule, since he was the only living grandson of the Islamic prophet Muhammad. Yazid instructed his Governor Walid in Medina to force Hussain ibn Ali to pledge allegiance to Yazid. Hussein refused it and uttered his famous words that "Anyone akin to me will never accept anyone akin to Yazid as a ruler." Hussein departed Medina on Rajab 28, 60 AH (680 CE), two days after Walid's attempt to force him to submit to Yazid rule. He stayed in Mecca from the beginnings of the month of Sha'aban and all of the months of Ramadan, Shawwal, as well as Dhu al-Qi'dah.

It is mainly during his stay in Mecca that he received many letters from Kufa assuring him their support and asking him to come over there and guide them. He answered their calls and sent Muslim ibn Aqeel, his cousin, to Kufa as his representative in an attempt to consider the exact situation and public opinion.

Hussain's representative to Kufa, Muslim ibn Aqeel was welcomed by the people of Kufa, and most of them swore allegiance to him. After this initial observation, Muslim ibn Aqeel wrote to Hussein ibn Ali that the situation in Kufa was favorable. However, after the arrival of the new Governor of Kufa, Ubayd Allah ibn Ziyad, the scenario changed. Muslim ibn Aqeel and his host, Hani ibn Urwa, were executed on Dhu al-Hijjah 9, 60AH (September 10, 680 CE) without any real resistance of the people. This shifted the loyalties of the people of Kufa, in favor of Yazid and against Hussain ibn Ali Hussein ibn Ali also discovered that Yazid had appointed `Amr ibn Sa`ad as the head of an army, ordering him to take charge of the pilgrimage caravans and to kill al Hussain ibn Ali wherever he could find him during Hajj, and hence decided to leave Mecca on 8th Dhu al-Hijjah 60 AH (12 September 680 AD), just a day before Hajj and was contented with Umrah, due to his concern about potential violation of the sanctity of the Kaaba.

He delivered a famous sermon at the Kaaba highlighting his reasons to leave, that he didn't want the sanctity of the Kaaba to be violated, since his opponents had crossed any norm of decency and were willing to violate all tenets of Islam.

When Hussein ibn Ali was making his mind to leave for Kufa, `Abd Allah ibn `Abbas and Abd Allah ibn al-Zubayr held a meeting with him and advised him not to move to Iraq, or, if he was determined to move, not to take women and children with him in this dangerous journey. Hussain ibn Ali, however, had resolved to go ahead with his plan. He gave a speech to people the day before his departure and said:

"... The death is a certainty for mankind, just like the trace of necklace on the neck of young girls. And I am enamored of my ancestors like eagerness of Jacob to Joseph ... Everyone, who is going to devote his blood for our sake and is prepared to meet Allah, must depart with us..."

On their way to Kufa, the small caravan received the news of the execution of Muslim ibn Aqeel and the indifference of the people of Kufa. Instead of turning back, Hussain decided to continue the journey and sent Qays ibn Musahir Al Saidawi as messenger to talk to the nobles of Kufa. The messenger was captured in the vicinity of Kufa but managed to tear the letter to pieces to hide names of its recipients. Just like Muslim ibn Aqeel, Qays ibn Musahir Al Saidawi was executed. 

Reference: Wikipedia…..

Regards,

Haider Ajaz (Advocate)

WILL

Introduction

Will is a legal declaration of the intention of a testator through testamentary instrument with respect to his property, which he desires to be carried into effect after his death. It includes codicil and every document in writing making a voluntary posthumous disposition of property. A Will is ambulatory which may be amended or revoked during the lifetime of the testator of the Will.

The Andhra Pradesh High Court held that contents of the Will must indicate that it is intended to come into effect after death of testator and that it is revocable at any time prior to his death and a document cannot be treated as a Will by a mere reading of the heading of it; [Mandakini Naik v G.K. Naik, 2004 (3) ALT 829 (AP HC)].

A legacy through the Will lapses where the legatee dies before the testator. For instance, A makes a bequest of certain property in favour of B. However, B dies before A. The bequest, then, cannot naturally take effect and the legacy is said to have lapsed.

A legatee is liable to the creditors. He is liable to refund the legacy that he has received, irrespective of whether the assets of the testator’s estate are sufficient or not at the time of death of the testator to pay both debts and the legacies, as well as irrespective of whether the payment of legacy by the executor is voluntary or not.

A great weight is given to the wordings of a Will. A full effect must be given which is main part of operative portion of a Will in the light of declared wish of the testator as well as other provision of the Will. The court in any way has to interpret the words in their both ordinary and grammatical sense and simultaneously to give weight if there is absurdity or inconsistency. Hence, the whole of words should be taken together without any surmise in the light of the intention of testator. Where the maker includes additional words or phrases then it shall mean additional meaning. In order to ascertain the very material purpose of the Will, the court has to go through each and every word used by the testator in a Will.

Necessity

Most of the people would like to dispose of their property according to their own wishes through a Will. A Will after death of person, reduces the confusion of sharing property amongst the family members and relatives.

In case a person dies without making a Will, he is said to have died intestate. His property shall be inherited to his legal heirs in accordance with the personal law applicable to him i.e. The Hindu Succession Act, 1956, The Indian Succession Act, 1925, un-codified law of Muslims,  Parsis etc.

Types of Wills:

1. Privileged and unprivileged Wills: Wills executed according to section 63 of the Indian Succession Act, 1925 are called unprivileged Wills and Wills executed according to section 66 of the Indian Succession Act, 1925 by a soldier or airman or mariner employed in an expedition or engaged in actual warfare are called privileged Wills.

2. Conditional or contingent Wills: A will may be expressed to take effect only in the event of the happening of some contingency or condition, and if the contingency does not happen or the condition fails, the Will is not legally enforceable. A conditional will is void if the condition imposed is unlawful.

3. Joint Wills: A joint Will is a testamentary instrument whereby two or more persons agree to make a conjoint Will. Where a Will is joint, and is intended to take effect after the death of both, it will not be enforceable during the lifetime of either. Joint Wills are revocable at anytime by either of the testators during their joint lives, or after death of one, by the survivor.

A Will executed by two or more testators as a single document duly executed by each testator disposing of his separate properties or his joint properties is not a single Will. It operates on the death of each and is in effect for two or more Wills, on the death of each testator, the legatee would become entitled to the properties of the testator who dies.

4. Mutual Wills: A Will is mutual when two testators confer upon each other reciprocal benefits by either of them constituting the other his legatee. But when the legatees are distinct from the testators, there can be no position for Mutual Wills.

5. Duplicate Wills: A testator, for the sake of safety, may make a Will in duplicate, one to be kept by him and the other to be deposited in the safe custody with a bank or executor or trustee. If the testator mutilates or destroys the one which is in his custody it is revocation of both.

6. Concurrent Wills: Generally, a man should leave only one Will at the time of his death. However, for the sake of convenience a testator may dispose of some properties in one country by one Will and the other properties in another country by a separate Will.

7. Sham Wills: If a document is deliberately executed with all due formalities purporting to be a Will, it will still be nullity if it can be shown that the testator did not intend it to have any testamentary operation, but was to have only some collateral object. One thing must be borne in mind that the intention to make the Will is essential for the validity of the Will.

8. Holograph Wills: Such Wills are written entirely in the handwriting of the testator.

What can be bequeathed in a Will

All properties, movable or immovable of which the testator is the owner and which are transferable can be disposed of by a Will. Property which is not legally transferable cannot be bequeathed. If a person has only a life-interest in a property, he cannot make a Will in respect of it. A Hindu governed by Mitakshara law can bequeath his interest in the joint family property to any person he desires by means of a Will. But a female Hindu, in all cases, is entitled to dispose of her property without any restriction. In case of leasehold property, so long as lease does not expire, the bequest is effective. If the lease expires during the lifetime of a testator, no bequest is made.

The testator has no right to bequeath all the assets to an institution or a trust leaving his family and dependants in poverty and deprivation. The member’s of the testator’s family are entitled to claim maintenance from the estate of the testator.

Who can make a Will

According to section 5 of the Indian Succession Act, 1925 every person of sound mind and not being a minor may dispose of his property by Will.

  

Proof and effect of Will

Probate is a certificate issued by court on the application of the executor appointed by a Will to the effect that the Will is valid. It is also the official evidence of the executor’s right to administer the estate of a deceased person.

Executor is a person to whom the execution of the last Will of a deceased person is, by the testator’s appointment, confided.

Letters of administration is granted when a person who had executed a legally valid Will dies without having named an executor and on application by one of the beneficiaries named in the Will. The procedure for grant of Letters of administration is more or less similar to that for the grant of probate.

To establish a right of an estate under the Will, a probate or Letters of administration granted by a competent court needs to be attached.

Execution of wills

Section 63 of the Indian Succession Act, 1925 provides that every testator other than a soldier or an airman or a mariner employed in an expedition or engaged in actual warfare must execute his Will according to the following rules:

He must sign or must affix his mark to the Will, or it must be signed by some other person in his presence and by his direction; and the signature or the mark of the testator, or the signature of the person signing for him, must be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. It is further provided that the Will must be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of such witnesses must sign the Will in the presence of the testator, but it is not necessary that more than one witness should be present at the same time. No particular form of attestation is necessary.

Applicability of Indian Evidence Act, 1872

The provisions of the Indian Evidence Act, 1872, apply to Wills as to other documents and the court may draw the presumption under it in deciding whether the Will has been properly attested or not.

The Executor

The executor is the most important person in the Will. Executor is defined in the Indian Succession Act, 1925, as a person to whom the execution of the last Will of a deceased person, is by the testator’s appointment confided. An executor is charged with the duty and conferred with the power to carry out the directions contained in the Will. He has to collect and realize the estate of the deceased, pay his debts and distribute the legacies.

The executor shall file the petition for obtaining probate of the Will. The court shall grant probate only to an executor who has been named in the Will.

The executor should not be minor. The executor should be younger than testator in age so that there is greater possibility of his outliving or surviving the testator.

Administrator

In case the deceased has not appointed an executor then the court shall appoint one. Also in case the executor is incapable of or refuses to act or has predeceased the testator or the executor dies after having proved the Will but before administering all the estates of the deceased, the court shall appoint an administrator at the instance of interested person or persons.

Registration of Will

Registration of a Will is purely an optional matter. It is not compulsory at all. No inference can be drawn by the Court or any authority about the genuineness of a Will on the ground of its non-registration. Nor a Will can be accepted as genuine by courts even though it has been registered.

--

Thanks to: 

M Ram Pavan Kumar (Th Lawyers Club India)

--

Haider Ajaz

Advocate

Can A Trespasser become Owner of Disputed Property by way of Adverse Possession : Supreme Court, 2011

CIVIL APPELLATE JURISDICTION

PETITION FOR SPECIAL LEAVE TO APPEAL (CIVIL) NO.28034/2011

(Arising out of CC 9038/2010)

State of Haryana …Petitioner

Versus

Mukesh Kumar & Ors. …Respondents

J U D G M E N T

Dalveer Bhandari, J.

1. People are often 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 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.

3. The government itself may acquire land by adverse 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.

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 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:

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 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, 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) 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 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 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 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
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 passed in civil suit no. 368 dated 9.3.91 is liable to
be set aside alleged? OPP
4. Whether the suit of the plaintiff is not maintainable in the present form? OPP
5. Whether the plaintiff has no locus-standi to file the present suit? OPP
6. Whether the plaintiff has no cause of action to file the present suit? OPP
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
deed dated 23.6.1990 registered on 3.7.1990? OPP
9. Whether defendants are entitled for possession of disputed property? OPP
10. Relief.
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 over the disputed property because the plaintiff 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 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 specific day when the alleged possession of State allegedly became 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 Court in 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 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 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 the plaintiff claiming ownership by way of adverse possession is not maintainable. Consequently, Issue No. 1 was decided against the plaintiff and Trial No. 4 was decided in favour of the defendants.

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 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, 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 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  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.

18. Issue No. 7 was not pressed and decided against the 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 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 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.”

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 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 the citizens.

21. Learned Additional District Judge also relied on other 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 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 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. 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 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 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.

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.

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.

27. The 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 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.

28. The citizens 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 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 Governmental Entities’. The
Article was written by Andrew Dickal. Historical background of adverse possession was discussed in that
article.

Historical background

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 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 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.

31. The concept of adverse possession was subsequently adopted in the United States. The doctrine was especially important in early American periods to cure the growing number of title disputes. The American version mirrored the English law, which is illustrated by most States adopting a twenty-year statue of limitations for adverse possession claims. As America has developed to the present date, property rights have become 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 the use of adverse possession 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, 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.

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 fromerupting. 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 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.

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 under:

24. In a relatively recent case in P.T.
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 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
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 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 494 : 273 P 908 : 97 ALR 1
(1929).)
6. Efficacy of adverse possession law in
most jurisdictions depends on strong
limitation statutes by operation of which right
to access the court 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 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 specified time, but
1
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 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 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 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 negative view towards the law of adverse possession. The English law 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. This Court in Revamma (supra) observed that to understand the true 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 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 against the owner of the property who has ignored the property.

36. 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 livelihood, right to shelter and employment etc. But now human rights are gaining a multi 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.

37. The changing attitude of the English Courts is quite visible from the judgment of Beaulane Properties Ltd. v. Palmer (2005) 3 WLR 554. The Court 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 the expanding jurisprudence of the European Courts of Human 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:-

26. With the expanding jurisprudence of the 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 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 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 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 1 challenged the 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 (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 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 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.
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 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) “51. Thereafter the applicants moved the European Commission of Human Rights (ECHR) alleging that the United Kingdom law on adverse possession, by which they lost land 2 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’).
52. It was contended by the applicants that they had been deprived of their land by the peration  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 Convention’), which reads as under: ‘Every natural or legal person is entitled to the peaceful enjoyment of his possession. No one shall 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. 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 the payment of taxes or other 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 property : (SCC p. 79, para 53)
“53. ... [In] Beyeler v. Italy [GC] No. 33202 of 1996 §§ 108-14 ECHR 2000-I, it was held
that the ‘interference’ should comply with the principle of lawfulness and pursue a legitimate
aim (public interest) by means reasonably proportionate to the aim sought to be realised.”2
The Court observed:(Revamma case 79-80, paras 54-56)
“54. ... ‘The question nevertheless remains whether, 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 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 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. 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 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.”

39. In Hemaji Waghaji Jat case, this Court ultimatelyobserved as under:

“32. Before parting with this case, we deem it
appropriate to observe that the law of adverse
possession which ousts an owner on the basis of
inaction within limitation is irrational, illogical and
wholly disproportionate. The law as it exists is
extremely harsh for the true owner and a windfall
for a dishonest person who had illegally taken
possession 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. 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.
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.”
Fifth Amendment of the U.S. Constitution – a
principle of a civilized society

40. Another important development in the protection 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 compensation for acquiring the property. There are primarily two situations when a landowner may obtain
compensation for land officially transferred to or 2 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’sconsent. 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, and the Fifth Amendment requires that the property owner be compensated for this loss.

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 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, 2 it is considered an inverse condemnation proceeding, because the landowner 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 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 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. 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.
2 While it may be indefensible to require all adverse possessors – some of whom may be poor – to pay market ates 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.

43. The Parliament must seriously consider at least to abolish “bad faith” adverse possession, i.e., adverse
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 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 question for a period of 30 to 50 years, rather than a mere 12. Such an extension would help to ensure that 2 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 ensure that only those claimants most intimately connected with the land acquire it, while only the most passive and unprotective owners lose title.

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 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.

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, 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 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 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 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 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 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 fortaking appropriate steps in accordance with law.

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 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 be deposited within four weeks 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.

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

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Haider Ajaz 
Advocate