Abstract: Property law in India, and throughout the world, continues to be one of the most confusing arenas of legal practice, with the largest number of pending cases. Adverse possession is one such doctrine, and it remains a highly debated and controversial aspect of property law.
Adverse Possession allows individuals to acquire legal ownership of land by occupying it openly, continuously, and without the original owner’s consent for a prescribed period—12 years for private property and 30 years for government land under the Limitation Act, 1963. It often makes it hard to distinguish between rightful ownership and long-term possession. This paper delves into the evolution of the doctrine through landmark judgments and the reasoning used by courts in interpreting it. My main aim is to examine the ethical conflicts involved in the doctrine, while also understanding the philosophical foundations that have supported it. This paper discusses the ethical dilemmas by comparing perspectives and recent developments, which highlight the need for reform and change.
Keywords: Adverse Possession, Limitation Act, Ethical Conflict, Land rights, Property Law
Introduction:
The doctrine of adverse possession lets someone who doesn’t own a property gain ownership rights. They can do this by living on the land continuously and without the owner’s consent for a set period. In India this period is 12 years for private property and 30 years for government land under the Article 65 and Article 64 of the Limitation Act, 1963. Further Section 27 of the Limitation Act 1963, states that right of the original owner to recover back the possession of his property is extinguished after the limitation period is over.
This idea comes from the Latin saying “Vigilantibus non dormientibus jura subveniunt,” which means “the law helps those who stay alert, not those who ignore their rights.” The British brought this concept to India during their rule, and since then, it has evolved through key laws and court decisions.[1]
To this day, the concept of adverse possession remains one of the most controversial doctrines in property law, especially because it blurs the lines between legal title and factual possession. Understanding how and why courts continue to apply this doctrine requires not only a look at the law itself, but also the broader moral and philosophical foundations behind it.
Research Methodology:
This research uses a doctrinal methodology looking at laws, key landmark decisions and scholarly commentary on adverse possession in India and other parts of the world. It takes a close look at how this legal idea has changed over time paying special attention to the moral and philosophical debates around it. This research also brings in ideas from English law and what legal thinkers have to say, to give a full picture of the topic.
Review of Literature
Several Scholars have written a lot about adverse possession from many angles. Notable contributions include:
- Carol M. Rose’s “Possession as the Origin of Property” looks at basic ideas of ownership.
- Jeremy Bentham supports property right based on the theory of utilitarianism while placing importance on productive use of land.
- G.W.F. Hegel give reasons based on usefulness and personal identity.
- Waldron questions Locke’s idea that work creates property rights questioning its logical basis in “Two Worries About Mixing One’s Labour”.
- Amy Goymour and Michael Goodman talk about the moral problems and practical issues that come up with adverse possession in today’s legal systems. Even with all this research, we still need to figure out how to balance ethical worries especially in context of India.
The approach involved picking crucial Supreme Court and High Court rulings on adverse possession focusing on cases that moulded this doctrine and how it is understood in team. A comparative study was done to understand recent changes and cases like Best V Chief Land Registrar. These were analysed together to spot common themes and unsolved problems.
Evolution of the doctrine in India
The Court in Ravinder Kaur Grewal vs Manjit Kaur[2] held that simply owning a property on paper is not enough. If someone has openly lived on the land, taken care of it, and kept others out for a period of at least 12 years, according to Section 65 of the Limitation Act, then they can gain legal ownership of the land. The Court held that the ingredients for determining adverse possession are:
A) Wilful Neglect: The actual owner did not take any action for 12 years.
B) Intent of the Trespasser/Possessor: The trespasser or possessor must have truly intended to take the property for themselves. They should have acted as or represented themselves to be the real owner.
For someone to claim adverse possession, three classic requirements must all exist at the same time:
- The possession must be continuous and without interruption (nec vi).
- It must be open and obvious to everyone, not hidden (nec clam).
- It must be without the owner’s permission and against the owner’s interests (nec precario).
This means the possession should be visible, well-known, and peaceful, so that if the owner does not take care to notice, the law will still consider that the owner should have known about it if they had been diligent[3]
This kind of possession only qualifies as an adverse possession when it is continuous, public, and hostile to the true owner’s interests. The Court clarified that merely quietly residing on the land does not make the trespasser the owner; it must be clear and evident that the possessor is treating the property as their own. The burden of proof lies on the person who is claiming adverse possession.[4] He must show that their possession was open, peaceful, hostile, as against the interests of the original owner. This was emphasized in Karnataka Board of Wakf V. Government of India[5], where the court held that mere long-term possession or informal of that property is not enough and that there must be a clear denial of the true owner’s title. [6]
The Court in Grewal V Manjit Kaur also explained that adverse possession is not about encouraging people to take land by force or trickery. Instead, it recognizes those who have cared for and used the land openly and continuously for a long time. The law wants to make sure land is used productively and not wasted by owners who ignore it. If the true owner does nothing for many years, the person who looks after and improves the land should be rewarded with ownership. This helps avoid confusion about who owns the land, especially when records are old or unclear, and encourages people to develop and maintain property.
The Court addressed and acknowledged the criticism in Grewal V Kaur and said that the concept of adverse possession is rather old and is often condemned for rewarding wrongdoers. The Court stated that the law is meant to encourage the best and most productive use of land, applying the Labor Theory. The Court’s reasoning for the application of the doctrine was that it brings certainty and ends confusion over land titles. The Court emphasized that the aim of the principle is not to encourage people to steal land, but rather to recognize long-term care and control of the property, and to place accountability and responsibility on owners to protect their property rights within the prescribed time. The idea is that whoever makes use of the land has a greater claim over it, according to the principles of Locke and Bentham. Essentially, when the owner ignores the land, society benefits because the land is put to good use and not wasted by the possessor, who should then gain a better title. Another benefit is that when land is unoccupied for a long time, confusion arises over ownership, especially when records are unclear or old, which in turn encourages people to develop and take care of such land. Hence, if someone takes care of and develops such land for a long time and does so openly, they should become the legal owner.
This case further clarified that even after the limitation period is over, or after the death of the possessor, the original owner cannot reclaim the property, and the property shall pass on the possessor’s death since they hold a valid and full title. Another important development that was made Grewal was that the court held that title under article 65 of the Limitation Act 1963 included ownership acquired by adverse possession. This technically means that the person can claim ownership rights by adverse possession irrespective of whether they are bringing the suit or defending against another. The Court made it clear that the law does not stop someone who files a lawsuit from claiming ownership through adverse possession. This overrules earlier cases like Gurudwara Sahib v. Gram Panchayat, Sirthala,[7] which had said the opposite.
Philosophical Foundations and Ethical Critiques of Adverse Possession
Property rights are almost always contested, with multiple arguments that need to be considered before arriving at a standard conclusion. Carol M. Rose’s article, “Possession as the Origin of Property,” explores the deeply debated idea of ownership and how it begins. The paper explains three important theories: the labour theory, the consent theory, and the possession theory. However, I will focus mainly on the labour theory, which is most relevant to my paper. The labour theory, based on John Locke’s line of thought, is rooted in the idea that ownership is created when one mixes their labour with land or resources (even if unowned by that individual). Here, labour means the effort put into improving the land, such as cultivating crops or building structures. The obvious problem with this theory is the assumption that if somebody else already owns the land, to what extent does the new person’s labour create ownership, and what principles are to be used?
One of the main problems, as Carol M. Rose[8] points out, is that this theory assumes people naturally own their labour, but it does not really address the reasoning behind this. Hence, it leads to the question: does one really own their labour, and what is the reasoning behind this approach? Is it based on the idea that merely because you own your body, you also own your labour? This also gives rise to another question, which is even if we assume that someone owns their labour, that still does not explain how much land or resource that labour gives them the right to own. Philosopher Robert Nozick presents a humorous analogy: if you pour a can of tomato juice into the ocean, would that mean you end up owning the entire ocean? Hence, when applied in real-life situations, this principle does not always make sense and can sometimes lead to conclusions that are not supported by adequate logic.
Conflicting Views: Utility vs. Justice
This Criticism of Locke’s theory requires us to understand other ways philosophers have tried to explain to explain why people should have property rights especially Jeremy Bentham[9] and GWF Hegel who each look at the issue from very different perspectives. Jeremy Bentham advocated from utilitarianism which states that laws and property rights should be designed to bring the greatest good to the society at large. Bentham focused on who puts that resource to the best use than who originally owned it. While Hegel[10] believed property was an important part of a persons’ identity and freedom. He was opinion that if someone invests their time, effort and their personality into the land by living on that land and making it their own because it is an extension of themselves and their personality makes it an extension of themselves. He says that taking land away even if they do not have official papers would be like taking their personality away. So, while Bentham supports adverse possession because it helps society at large, Hegel supports it because it recognizes the possessor’s deep personal connection and contribution to the property. Together these theories show that adverse possession can be justified not just by practical benefits, but also by respecting the real-life bonds people form with the land they live and reside on.
Waldron in his article “Two Worries About Mixing One’s Labour”[11] critiques the idea that people will gain ownership over something by mixing their labour with it. He questions whether the labour theory is in fact logical and can justify private property rights. Waldron argues that Locke’s concept does not really make sense. Waldron points out that Locke offers other justifications for property such as people needing resources for their survival, moreover everyone is better off when property is private, and that people have the right to enjoy the fruits of their efforts and desert- but he focuses on the mixing labour argument.
Waldron, however, states that unlike mixing ingredients in cooking or baking, labour is an action, not a physical thing, so it makes no sense to say it can be literally mixed with an object. Waldron explains this isn’t just a confusing comparison but a mistake in logic. It tries to shift the ownership from the object of labour to the actual object itself without any real connection. He also points out that using other words like “joining” or “attaching” labour to objects doesn’t fix the issue because you cannot attach action to things the way Locke describes. According to him mixing labour theory isn’t really logical because it takes attention away from the real questions which focus on property rights.
Ethical Challenges and Logical Critiques
Critics argue that adverse possession allows someone to gain ownership of property simply by occupying it without the original and true owner’s consent or knowledge for a certain period (12 years in Indian law). This is seen as unfair and unethical for obvious reasons, such as disregarding the rights of the actual owner, causing the heirs of the actual owner to suffer, and ultimately resulting in someone losing their property without any fault or even awareness. The doctrine directly encourages people to make false claims of possession, which leads to unnecessary litigation, especially in countries like India. The doctrine fails to consider the consent or knowledge of the true owner and is a complete disregard for one’s constitutional right to property. For example, owners who may be absent due to genuine reasons like illness, old age, occupation, or family/inheritance issues may only discover their property rights after they have already been extinguished, without their involvement or mistake. The mere idea that a possessor would be able to have valid title due to them living on the land or making certain improvements to it seems highly equitable and dipropionate[12]. As Waldron states, the law here seems to allow a trespasser to benefit from their own wrong by granting them a valid title, while penalizing the true owner for not taking timely action, rather than addressing the wrongdoing of the possessor. This doctrine creates a burden on the owner to constantly defend and monitor their property to avoid losing it. This is a rather harsh and disproportionate punishment for innocent and vulnerable owners, especially minors, people with disabilities, or senior citizens.
Case Studies and Judicial Dilemmas: Real-World Challenges and suggestions for the way forward
Amy Goymour’s in her article “Squatters and the Criminal Law: Can Two Wrongs Make a Right?” looks at the complicated and the most contended question of whether one can become the legal owner of a property through adverse possession?[13] . The article refers to the case of Best v Chief Land Registrar, where Mr. Best found an empty house, thought it was abandoned, and moved in. He lived there and made many improvements over several years. After 10 years, he applied to become the official legal owner under the law of adverse possession. This law says that if you openly live in someone else’s property for a certain period (usually 10 years), and the real owner doesn’t object, you can become the legal owner. However, just before he applied, a new law made it a crime to squat or illegally occupy residential buildings. The problem was that, usually, the law allows someone to claim ownership by adverse possession even though they are technically trespassing, which is a civil wrong. However, just before Mr. Best applied, the new law made squatting a crime raising the question of whether someone can benefit from their actions if those actions are also criminal?
However, the legal rule of ex Turpi causa non oritur action states that one cannot benefit from his own wrong makes us question whether this rule should be applied in Mr Best from becoming the owner because he was breaking the law. The Court held that this new criminal law, which criminalised squatting, did not stop Mr. Best from making his civil claim to become the owner. The Judge held that the said principle of not benefiting from crime is a starting point but not an absolute point and that sometimes important policies like reasons behind adverse possession laws are of more significance The judge also noted that the new squatting rules were meant to get squatters out quickly, not to change the rules about adverse possession. This Judgement is important to understand the intention of the courts while deciding on matters of adverse possession: to discourage while still preserving the laws of adverse possessing working as intended.
To further support my argument, Micheal Goodman in his article “The Morality of Adverse Possession of Land”[14] where the author discusses a case where a village rector claimed ownership of a piece of land next to church cottages. For many years, no rent was paid because the landlords, who were church supporters, did not want to charge the church for the land that had been used and rented by the rector and previous rectors. The original owners filed a lawsuit to reclaim the land after the rector eventually attempted to sell it. The rector contended that the law granted him ownership because more than 12 years had gone by without rent. With the exception of one judge who had said that saying that the law meant the original owners lost their rights because the had no acted for so long the other judges had agreed with the rector. All the judges in the case felt uncomfortable with the outcome.
They thought it was unfair that the original owners lost their land simply because they were generous and did not ask for rent. One judge said that if the law penalises good nature in this way, then the sooner it is changed, the better. The article explains that, even though adverse possession can seem unfair in some cases, the law exists for good social reasons: it promotes the productive use of land rather than abandonment while also creating certainty about who owns the land. Most importantly it also attempts to avoid situations where someone can suddenly claim their ownership on land after ignoring it for several years and thus disrupting people who have been using it honestly.
The author analyses whether there is a need for the law to change, stating that the law should not be completely abolished because it serves a very useful purpose. However, he also acknowledges that there might be better rules to protect those who lose their land simply because they did not know someone else was using it. The author further acknowledges the need for reform because adverse possession can seem harsh, especially when it punishes kindness or inattention, it is an important rule for society. The law should be clear and fair, but not so strict that it causes more problems than it solves
Conclusion
There is a pressing need for a balanced approach to adverse possession laws in India—one that prevents misuse while still upholding the foundational purpose of the doctrine. While adverse possession serves an important role in ensuring productive land use and legal certainty, it should not come at the cost of justice, particularly for vulnerable individuals. The current framework risks unfairly stripping ownership from rightful title holders who, due to circumstances like old age, minority, mental incapacity, or complex family settlements, are unable to actively assert their rights. These situations demand clear legal exceptions, such as pausing the limitation period or allowing restoration of title where possession was gained through exploitation. Additionally, introducing a good faith requirement—where only those who genuinely believed they had a rightful claim to the land can benefit—would help distinguish between opportunistic squatters and sincere, long-term possessors. Such reforms would better align the law with both moral fairness and practical necessity, ensuring that adverse possession does not reward wrongdoing but instead functions as a just and reasonable legal remedy.
SAHASRA NELLORE
LAW STUDENT
OP JINDAL GLOBAL UNIVERSITY
[1] Editoral Team, Adverse Possession Law in India | Key Insights & Rules | LawCrust, LawCrust Global Consulting Company (Jan. 2, 2025), https://lawcrust.com/adverse-possession-india-law/.
[2] Ravinder Kaur Grewal vs Manjit Kaur on 7 August 2019 AIR 2019 SUPREME COURT 3827
[3]Adverse Possession in India: Law, Rights & Protection, (May 12, 2025), https://www.maheshwariandco.com/blog/adverse-possession-in-india/.
[4]Mr Law Officer, Limitation Act: Ravinder Kaur Grewal and Others v. Manjit Kaur and Others [(2019) SC], Civil Laws (Jan. 7, 2025), https://medium.com/civil-laws/limitation-act-ravinder-kaur-grewal-and-others-v-manjit-kaur-and-others-2019-sc-2f73c8ab9f75.
[5] Karnataka Board of Wakf versus Government of India and Others, (2004) 10 Supreme Court Cases 779
[6] What Is Adverse Possession Of Property Or Land in India?, Legalkart, https://www.legalkart.com/legal-blog/cannonicalLink (last visited Jun. 19, 2025).
[7] Gurudwara Sahib vs Gram Panchayat Village Sirthala & Anr on 16 September, 2013
[8] Carol Rose, Possession as the Origin of Property, Faculty Scholarship Series (1985), https://openyls.law.yale.edu/handle/20.500.13051/1093.
[9]Julia Driver, The History of Utilitarianism, in The Stanford Encyclopedia of Philosophy (Edward N. Zalta & Uri Nodelman eds., Winter 2022 ed. 2022), https://plato.stanford.edu/archives/win2022/entries/utilitarianism-history/.
[10] Dudley Knowles, Hegel on Property and Personality, 33 The Philosophical Quarterly 45 (1983), https://academic.oup.com/pq/article-lookup/doi/10.2307/2219203.
[11]Jeremy Waldron, Two Worries About Mixing One’s Labour, 33 The Philosophical Quarterly 37 (1983), https://academic.oup.com/pq/article-lookup/doi/10.2307/2219202.
[12] Pradeep Pradeep Kumar Mani, ADVERSE POSSESSION: A CRITIQUE, Uttarakhand Judicial & Legal
[13] Vol. 73 Amy Goymour, SQUATTERS AND THE CRIMINAL LAW: CAN TWO WRONGS MAKE A RIGHT (2014), https://www.jstor.org/stable/24693899.
[14] Michael Goodman, The Morality of Adverse Possession of Land Author(s): Source: , The Modern Law Review, Jan., 1968, Vol. 31, No. 1 (Jan., 1968), pp. 82-84 , https://www.jstor.org/stable/1092320