Adverse Possession and the Ayodhya Judgment

This blog is inscribed by Abhimanu Jangra.

Spanning forty-one days of arguments, the Ayodhya /Ram Janambhumi case rests as the second-longest hearing in the history of Supreme Court of India. This historical case consists of twenty-one appeals against the Allahabad High Court judgment and is titled as M Siddiq (D) Through LRs v. Mahant Suresh Das &Ors C.A. No. 10866-67 of 2010. Adverse Possession was one of the major defences put forth by the Muslim parties in order to claim their right to the disputed site. Therefore, it is imperative to understand the meaning of this term.

What Is Adverse Possession?

The plea of adverse possession is a powerful tool in a trespasser’s quiver that can vest the title of the property in his favour despite not being the real owner and without possessing any legal instrument that can assert his title. If the titleholder of the land chooses to do nothing and sit idle for a definite period of time, the squatter or trespasser will acquire a better title on the land than his. It is for this reason an owner of a property has to remain vigil, especially when he has given his property to some other person to stay, without transferring the title.

Time Limit under the Limitation Act, 1963-

The Limitation Act, 1963 deals with the law of Adverse Possession in India. Section 27 and Article 64, 65 & 112 of the said Act deals with the doctrine of adverse possession. For the sake of brevity, it is not necessary to layout the relevant provisions verbatim.

Art. 65 prescribes that if the real owner fails to claim his stake over the property for 12 years, the title of the property will vest on the illegal occupant. However, if the property in question turns out to be government property, Art. 112 sets out the time limit for 30 years.

It is pertinent to note that both Art. 64 and 65 set out a limit of 12 years for adverse possession but there is a stark difference between the two. Art. 64 only deals with the right to possession over the property whereas Art. 65 deals with the complete transfer of title over the property.

Furthermore, in terms of Article 65, the starting point of limitation does not commence from the date when the right of ownership arises to the titleholder but it commences from the date when the trespasser’s possession became adverse[1]. Long possession is not necessarily adverse possession[2].

Essential Ingredients of Adverse Possession:-

For successfully claiming the title by adverse possession, there are certain requirements, besides the time period, which need to be meted out. In Karnataka Board of Waqf v. GOI[3], the Hon’ble Apex Court held that a person who claims adverse possession should show:-

  1. on what date he came into possession
  2. what was the nature of his possession i.e. whether the possession was hostile or adverse to the true titleholder
  3. whether the factum of possession was known to the other party
  4. how long his possession has continued and
  5. Whether his possession was exclusive, public knowledge, peaceful and consistent.

However, the titleholder does not lose his good title if he has given his premises to some other person out of love and affection or out of charity even if the statutory time limit of 12 years has passed. This is for the reason that such possession has to be adverse to the original owner to the extent of denying the original owner’s rights over the property and assertion of his title.

The Law of Adverse Possession with the Vicissitudes of Time

In recent times, the Supreme Court has taken an unkind view to the law of adverse possession in India because it strips away the title from the rightful owner into the hands of an illegal occupant. In Hemaji Waghaji v Bhikhabhai Khengarbhai[4], the apex court observed that that “the law of adverse possession which ousts an owner based on inaction within limitation is irrational, illogical and wholly disproportionate and there is an urgent need of fresh look regarding the law on adverse possession. We recommend the Union of India to seriously consider and make suitable changes in the law of adverse possession.”

The court has further read down the law in Dagadabai by Lrs v. Abbas @ Gulab Rustom Pinjari[5] while holding that it is equally well-settled that the person raising the plea of adverse possession must necessarily first admit the ownership of the true owner over the property to the knowledge of the true owner and secondly, the true owner has to be made a party to the suit.

However, in Ravinder Kaur Grewal vs Manjit Kaur[6], the apex court took a contrary view and enlarged its scope by holding that not only can adverse possession be used as a shield by the defendant but also as a sword by the plaintiff. It was held that “Law of adverse possession does not qualify only a defendant for the acquisition of title by way of adverse possession; it may be perfected by a person who is filing a suit.”

Role of Adverse Possession In Ayodhya Judgment:-

The suit instituted by the Sunni Central Waqf Board (i.e. Suit No.4) on 18 December 1961 on behalf of the entire Muslim community, contained a substitute plea that “the Muslims by virtue of their long, exclusive and continuous possession commencing from the construction of the mosque and ensuing until its desecration (when Hindu idols were placed inside the inner courtyard of the disputed cite on 23 December 1949) perfected their title by Adverse possession.” This substitute or alternate claim was to be pursued in the event the Court established that there was an underlying temple which was demolished to give way for the construction of the mosque.

It is relevant to mention here that a grill-brick wall was erected by the British Administration in 1856-57 following communal violence between Hindus and Muslims and in order to further stop the people from two different faiths from clashing with each other. This effectively resulted in the formation of the inner and outer courtyard. The Sunni Central Waqf Board raised the plea of adverse possession for the entire disputed property. The court, at the outset, rejected this claim to the outer courtyard because the evidence clearly indicated that the Hindus were not only in the possession of the outer courtyard but also continued worshipping in it even after the erection of the wall.

Secondly, in so far the inner courtyard is concerned; the possession by the Muslims could not be called open, peaceful, and continuous. This is clear from the court’s observation that “the evidentiary record indicates acts of individuals in trying to set up idols and perform puja both within and outside the precincts of the inner courtyard. Even after the setting up of the Ramchabutra, pilgrims used to pay obeisance and make offerings while standing at the iron railing which divided the inner and outer courtyards. There is no evidence to the contrary by the Muslims to indicate that their possession of the disputed structure of the mosque was exclusive and that the offering of namaz was exclusionary of the Hindus.”

Furthermore, there were several instances when Muslims were obstructed in offering worship at the mosque which is evidenced by numerous proceedings as well as communal riots of 1857 and 1934.

Thus, in view of the evidence adduced, the court held that the claim by the Muslims cannot be regarded as meeting the threshold to prove a case of adverse possession. Hence, the plea of adverse possession failed.

[1] Saroop Singh v. Banto (2005) 8 SCC 330

[2] S.M. Karim v. Mst. BibiSakina (1964) AIR 1254

[3] (2004) 10 SCC 779

[4](2009) 16 SCC 517

[5] 2017(5) Scale

[6] (2019) 8 SCC 729

3 Replies to “Adverse Possession and the Ayodhya Judgment”

  1. It was useful atleast for clearing the basics of Adverse possession.
    This piece is so easy to understand.
    I loved it.

    But I have some questions being a lae student.
    1 . If the Waqf Board filed the suit on behalf of Muslim Community , haven’t they breached Article 14 (Equality ) as religion can’t be used a base alone .
    2. The ground which has been taken by the honorable court to lay that Adverse possession can’t be claimed by the Waqf Board were the two riots of 1857& 1934. Riots as a ground can be misused in later period of time. What’s your opinion?
    3. As per the doctrine of Adverse Possession explained in Ravindra Kaur Grewal case , it can be used as a Sword for plaintiff, then what’s your opinion on why this sword failed?

    If the writer finds it appropriate to answer , I’ll be happy to get some light on these questions.

    1. First of all, I apologize for replying late and at the same time, I am glad you liked it.

      1. I fail to see how Sunni Waqf Board has breached Art. 14 by representing the whole community. The Board acted in the representative capacity solely for the purpose of this suit.
      2. The Supreme Court mentioned the riots of 1857 & 1934 just to show that the possession of the inner courtyard, if any, by the Muslims was not peaceful which is an essential ingredient to prove the adverse possession. The relevance of these two incidents ceased when the Ayodhya Verdict was delivered. So, to say that the communal disharmony of 1857 & 1934 can be misused at some later period of time, is out of the question.
      3. Firstly, the plea of adverse possession was not raised as a sword but as a shield by the Waqf Board. To answer why this defense failed, divide the timeline into three parts:- before 1857, 1857 to 1934 & 1934 to 1949 (first suit was instituted in 1949). For the time period of ‘before 1857’, the Muslims failed to adduce a single shred of evidence of offering namaz. For 1857 to 1934, the evidence was not credible and thus, rejected by the court. For 1934 to 1949, the Muslims offered only Friday Prayers in the inner courtyard and even then the Hindus continued to offer prayers by standing near the railing dividing the two courtyards. Thus, two crucial ingredients of the adverse possession (peacefulness, continuity) could not be proved.

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