Possession in Indian and British courts, and adverse possession

1. Finders: the British cases

• Armory v. Delamirie (1722): a chimney sweep’s boy found a jewel and took it to a goldsmith, who kept the stones. The finder has a title good against all but the true owner, and damages were measured by the value of the finest jewel that would fit the socket.
• Bridges v. Hawkesworth (1851): notes dropped on the public part of a shop belonged to the finder, not the shopkeeper, who did not know of them.
• Elwes v. Brigg Gas Co. (1886): a prehistoric boat buried in land belonged to the landowner, not the lessee who dug it up; things in the soil are possessed by the owner of the soil.
• South Staffordshire Water Co. v. Sharman (1896): rings found in the mud of a pool by a workman belonged to the landowner, who had control of the pool.
• Hannah v. Peel (1945): a soldier found a brooch in a house requisitioned from its owner, who had never occupied it; the finder won because the owner had never had possession of the house or knowledge of the brooch.
• Parker v. British Airways Board (Court of Appeal, 1982): a passenger found a gold bracelet in an executive lounge. Donaldson L.J. restated the rules: the occupier of a building has rights superior to a finder only if, before the finding, he manifested an intention to exercise control over the building and things in it. The Board had not, so the finder won. Things in or attached to land belong to the occupier; things on it depend on manifest control.

Analysis. These cases are inconsistent under Savigny or Salmond, because the landowner in Elwes and Sharman had no knowledge or specific intention. Harris’s functional view explains them: courts weigh the degree of control, the nature of the place, and the policy of rewarding honest finders against protecting occupiers.

2. Possession in English criminal law

• Warner v. Metropolitan Police Commissioner (House of Lords, 1969): a man carried a box he believed contained scent but which held amphetamine tablets. The Lords held he possessed the contents if he knew he had the box and had the opportunity to discover what was in it; a mistake as to quality does not negate possession, but a mistake as to the very nature of the thing may. Parliament then provided a statutory defence in the Misuse of Drugs Act, 1971.
• R. v. Boyesen (House of Lords, 1982): possession of a minute quantity of a drug is still possession if it is a usable thing.
• In theft, a shopkeeper possesses goods on his shelves; a servant who receives goods for his master has custody only.

3. Possession in Indian courts

• Superintendent & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, 1979 INSC 157. Sarkaria J. described possession as a polymorphous term with different meanings in different contexts, and said it is not possible to work out a completely logical and precise definition applicable to all situations. Possession implies physical control coupled with the animus, and in a criminal statute must be read in its context and in the light of the statute’s object.
• Conscious possession under the NDPS Act, 1985. Madan Lal v. State of Himachal Pradesh, 2003 INSC 404: possession means conscious possession; once possession is shown, the accused must account for it, and sections 35 and 54 raise presumptions of culpable mental state. Mohan Lal v. State of Rajasthan, 2015 INSC 334, reviewed the meaning of possession in criminal law at length, drawing on the jurists and on Bhunja, and held that possession must be understood with reference to the purpose of the statute, and that it includes constructive possession where the accused has power and intention to control the article.
• Settled possession. Rame Gowda v. M. Varadappa Naidu, 2003 INSC 718: even the true owner may not dispossess a person in settled possession except by due process of law; a possessor in settled possession may defend it against the owner. The possession must be effective, undisturbed and to the knowledge of the owner, for a sufficiently long period; a stray or casual act of possession is not enough. Poona Ram v. Moti Ram, 2019 INSC 101, restated the tests for settled possession.
• Possessory remedies: section 6 of the Specific Relief Act, 1963 allows a person dispossessed without his consent otherwise than in due course of law to recover possession by a suit within six months, without proving title; the BNSS (as section 145 of the CrPC did) allows a magistrate to maintain the party in actual possession where a land dispute threatens the peace.
• Possession and evidence: the presumption that the possessor is owner (section 110 of the Evidence Act, carried into the BSA) and the presumption of guilty knowledge from recent possession of stolen property.

4. Adverse possession

Adverse possession is possession by a person who is not the owner, held openly, continuously and hostilely to the owner for the statutory period, after which the owner’s right is extinguished. In India, Article 65 of the Schedule to the Limitation Act, 1963 gives 12 years for a suit for possession of immovable property based on title, running from when the defendant’s possession becomes adverse; Article 112 gives 30 years for suits by the Government; section 27 extinguishes the owner’s right at the end of the period. The classic requirements: nec vi, nec clam, nec precario (not by force, not secretly, not by permission), with animus to hold as owner.

• Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan, 2008 INSC 1075: the Court called the law of adverse possession harsh to true owners and asked Parliament to reconsider it, referring to the European Court’s decision in the Pye case.
• State of Haryana v. Mukesh Kumar, 2011 INSC 731: the State, as trustee of public property, cannot claim adverse possession against its own citizens; the Court repeated the call for review.
• Ravinder Kaur Grewal v. Manjit Kaur, 2019 INSC 930 (three judges): a person who has perfected title by adverse possession can sue as plaintiff for declaration and possession; adverse possession can be used as a sword, not only a shield. Earlier contrary decisions were overruled.
• Religious and deity property. In the Ayodhya judgment (M. Siddiq v. Mahant Suresh Das, 2019) the refusal to treat the land as a juristic person was partly motivated by the need to keep adverse possession available as a rule of repose.

England. In J.A. Pye (Oxford) Ltd. v. Graham (House of Lords, 2002) farmers who had grazed land after their licence expired acquired title to land worth millions; possession means factual control with an intention to possess, not an intention to own, and the paper owner’s intentions are irrelevant. The House expressed unease. In J.A. Pye (Oxford) Ltd. v. United Kingdom the European Court of Human Rights (Grand Chamber, 2007) held by majority that the old law did not violate Article 1 of Protocol 1, reversing a Chamber judgment. The Land Registration Act, 2002 had meanwhile changed the law for registered land: after 10 years the squatter may apply, the owner is notified and can object, and the squatter succeeds only in limited cases.

Justifications and critique. Adverse possession quiets stale claims, rewards use of land, protects reasonable reliance, and cures defects in title. Critics say it rewards wrongdoing, and in India it is used to grab public and evacuee land. The registered-land model (England) and the stricter judicial attitude in India respond to this critique.

How this is examined

For the 16-mark question: open with the functional nature of possession, then finders (British), criminal possession (Warner and the NDPS cases), Bhunja and Mohan Lal, settled possession, and close with adverse possession comparing Pye and Ravinder Kaur Grewal. A short note on adverse possession uses section 4.