History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.228
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.228
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According to Gaut. X. 39 a man becomes an owner by inheritance, purchase, partition, seizure ( appropriation of forest trees and other things which have no owner ) and finding ( i. e. appropriation of lost property the owner of which is unknown ). Gaut. (X. 40–41) adds that in the case of brāhmaṇas acceptance (of a thing donated) is an additional mode ( of becoming an owner ), that conquest in the case of a kṣatriya and gain ( by trade or labour ) in the case of a vaiśya or śūdra are also additional modes. Vas. 16. 16 mentions eight modes. Bṛ. ( quoted in V. P. p. 153, Aparārka p. 635, S. B. E. vol. 33 p. 309 v. 2 ) mentions seven modes of acquiring immovable property viz. by learning, purchase, mortgage, valour ( i. e. conquest ), through the wife ( as dowry ), inheritance ( from an ancestor ) and succession to an issueless kinsman. Nārada ( q. in Sm. C. II. p. 70 ) mentions the same except mortgage. None of these expressly says that long possession is by itself a source of ownership. Great divergence ⁴⁴⁹ has prevailed throughout the centuries among the sages and digests about the relation of title and possession and about the length of possession necessary for making a person secure in his right to property by reason of possession. Possession (*bhukti*) may be with title ( *sāgamā* ) or without title ( *anāgamā* ). Āgama means ' origin ' or ' source of title ' such as purchase or simply ' title '.⁴⁵⁰ Manu VIII. 200, Yāj. II. 27, Nār. IV. 84 employ that word in that sense.
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Vide Kāt. 317 (q. in Sm. C. II p. 73 and Par. M. III. p. 141). If property is held in one of the modes of acquiring ownership stated above and there is also possession, one's right to that property is indefeasible ( Nār. IV. 85, Bṛ. q. by Sm. C. II. p. 70, S. B. E. 33 pp. 309 and 312 v. 3 and 22 ), but possession without a clear title does not lead to (or ripen into) ownership⁴⁵¹ (with certain exceptions to be noted later on). Vyāsa and Pitāmaha⁴⁵² declare that possession in order to be valid must have five characteristics viz. it must have title behind it, must be of long standing, unbroken, free from protest (by another person) and in the presence (i. e. before the very eyes) of the opponent (q. in Mit. on Yāj. II. 27 and Aparārka p. 635). Even title, if not accompanied by some slight possession, has no strength, while title is stronger than possession not handed down hereditarily (Yāj. II. 27). Nār. IV. 85 states that possession becomes strong when backed by clear title. These passages present some difficulty and make title and possession depend on each other. Nār. IV. 77 states that even if there be a document or witnesses to support a man's title, when there is no enjoyment, particularly in the case of immovable property, there is no validity. All that is meant is that a transfer without possession though under a deed or before witnesses is risky and that title and possession lend support to each other as stated by Nār. IV. 84-86, Bṛ., Hārīta and Pitāmaha.⁴⁵³ Nār. (IV.
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86-87) declares that one who pleads mere possession and no title at all should be considered a thief on account of his putting forward the deceptive plea of possession (which even a thief can assert) and that the king should punish as a thief one who enjoys a property even for hundreds of years without title. All that this last verse means is that the person in possession must prove legal origin or such a long possession that there is no possibility of an inference that the possession of his ancestor originated is wrong. Delivery of possession was the principal mode of transferring ownership in ancient times in almost all systems of jurisprudence and so possession was given great weight as evidence of ownership.⁴⁵⁴ The Mit. on Yāj. II. 27 makes the position clear. In the case of a gift or sale there must be the cessation of the ownership of the transferor and the arising of the ownership of the transferee. This last occurs only when the transferee accepts the property and not otherwise. Acceptance is mental, vocal and physical (i. e. the acceptor makes a resolve to accept, says that he accepts and takes physical possession). These three may exist in the case of such movable articles as gold, clothes &c. But in the case of a field physical acceptance is not possible except by enjoying the fruits or profits thereof. Therefore in order to make a gift or sale perfect there must be some slight possession at least. In the absence of such possession mere title is weak.
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Title may succeed against the man in possession who has no title and who has not been in possession for the prescribed period (such as three generations). If the possessor proves possession for that period he will succeed against one who has bare title and no possession whatever. If it is known or proved that a man purchased from A but got no possession and that another purchased from A subsequently and got possession (but was not in continuous possession for the prescribed period) the prior title though without possession will prevail over the later one, acc. to Yāj. II. 23. But when it is doubtful as to which title is prior and which posterior the one with possession will prevail. Where the possession has been uninterruptedly with a man's ancestors for three generations he will succeed against one who has bare title. Therefore possession was not absolutely indispensable for transfer even acc. to the Mit. and other works, but title without possession was risky and so possession was insisted upon as it was 'nine points of law'. It follows, acc.
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to the Mit., that (1) when possession was comparatively of short duration and not supported by any title much weight was not attached to possession and title by itself would prevail against it, that (2) continuous possession for three generations (though there is nothing to show there was title to begin with) will prevail over a mere documentary title and that (3) a prior title with less than the 'possession for three generations (but with some possession) succeeds over a later title accompanied by possession. Long possession was assumed to have originated in legal title, although owing to lapse of time it was not possible to prove the origin.⁴⁵⁵ The main controversy has raged round the question of what is long possession. Yāj. II. 24 literally translated means 'loss of land results in twenty years when it is enjoyed by a stranger before the owner's very eyes and without any protest from him and loss of chattels (results under similar circumstances) in ten years'. Manu VIII. 147–148 and Nārada IV. 79–80 have two verses in common which mean 'If the owner of anything silently looks on (i. e. raises no protest) when it is being enjoyed in his presence for ten years by strangers he does not deserve to recover it (i.e. he loses the thing). When the owner is not an idiot nor a minor and his property is enjoyed within his sight then the property being lost by his conduct (*vyavahāra*) comes to belong to the enjoyer'. Gaut. XII. 34 has almost⁴⁵⁶ the same words as Manu VIII. 148.
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Śaṅkha (in V. R. p. 208) also refers to ten years. These passages apparently mean that at the end of 20 or 10 years' adverse possession by the wrongful possessor the ownership of the original owner is lost and the wrongful possessor becomes the owner. But there are several other smṛti passages where it is said that possession even for a hundred years originating in wrong cannot confer title and much longer periods are required for the loss of ownership and the acquisition of ownership by prescription. Vide Nār. IV. 86–87 cited (on p. 318 above). Nār. (IV. 89) himself says elsewhere that possession requires to be supported by title only during *smārtakāla* (during human memory), but in cases beyond human memory possession continued successively for three generations (or ancestors) is proof of ownership even in the absence of a document (or other title). Viṣṇu Dh. S. V. 187 is in similar⁴⁵⁷ terms. The Mit. on Yāj. (II. 27) says that *smārtakāla* is a period of 100 years, as the Veda declares that the span of a man's life is 100 years. For a hundred years it is possible for witnesses to depose to the origin of possession. So if there is possession for less than one hundred years, oral evidence can be adduced for establishing its origin, and title will have to be proved by the possessor and if no oral evidence is adduced to prove title, it is a case in which it may be held as certain that there was no title to begin with.
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Mere possession is not enumerated by sages like Gautama among the means of acquiring ownership. As the Sarasvatīvilāsa (p. 124) puts it, long uninterrupted possession only leads to an inference that it originated in title acquired by sale, gift or the like i. e. there arises a presumption of lawful origin⁴⁵⁸. Therefore in order to enable a man to rely on possession alone as proof of ownership it must extend uninterruptedly over 100 years (acc. to the Mit.). The Smṛticandrikā⁴⁵⁹ (II. p. 72) accepts this meaning, only requiring 105 years' possession instead of 100 years'. Acc. to a smṛti quoted by it each generation means 35 years and so when Nārada requires possession for three generations 105 years are meant (acc. to Sm. C.). Viṣṇu Dh. S. V. 187, Kāt. (327) also hold that continuous enjoyment for three generations makes the fourth generation owner of the land. Kāt. (321 q. by Mit. on Yāj. II. 27, Aparārka p. 636) states 'in cases falling within the memory of man it is desirable that possession must be accompanied with title (in order to be proof of ownership as to land); but in cases beyond the memory of man possession extending over three generations in succession (is independent proof of ownership), since there is no certainty that there was no title (to begin with)'. Vide also Bṛ. (in S. B. E. vol. 33 p. 313 verses 26-28). 'Three generations' is a vague expression.
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The great-grandfather, the grandfather and the father of a man may die in the space of ten years and if the great-grandfather took possession wrongfully and all died within ten years of the time of taking possession one after another, the fourth in descent might urge that there was possession for three generations and that he had become owner. Therefore Kāt. in another verse (318, q. by Aparārka p. 636 and V. P. p. 155) laid down that unbroken possession for three generations extending over sixty years becomes firm (independent means of proof of ownership). Thus *tripuruṣa-bhoga* or *pūrvakramāgata-bhoga* (in Yāj. II. 27) means the same thing as possession continuing from a time beyond human memory (*asmārta-kāla*) and is equal to 60 years acc. to Kāt., Vyāsa and a few other smṛti writers⁴⁶⁰. Nārada (q. by Aparārka p. 636) says that as regards possession one generation means twenty years, while Bṛ. (q. by Sm. C. II. p. 72) says it means thirty years. It will be noticed from the above that early authors like Gaut., Manu., Yāj. appear to lay down 20 years' adverse enjoyment of land as sufficient to create ownership, while other and comparatively later authors like Nār. and Kāt. require sixty years enjoyment. In order to remove this conflict and following the maxim that apparently conflicting texts should be reconciled as far as possible, the writers of commentaries and digests from Viśvarūpa and Medhātithi (on Manu VIII. 148) downwards proposed various interpretations of Yāj.
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II. 24 and similar texts. Some lay emphasis on possession and others on title. There are at least three explanations. Aparārka (pp. 631-632), Kullūka and Raghunandana take the literal sense and say that on 20 years' adverse possession there is loss of ownership (i. e. there is *svatvahāni*)⁴⁶¹. The 2nd explanation is that the meaning of Yāj. II. 24 is that after 20 years' enjoyment by a stranger, if the owner brings a suit and relies on a document in his favour, he runs the risk of being unable to prove his ownership barely on the strength of the document, since it is possible to argue that, even though he had a document, by his silence he acquiesced in the stranger taking possession and tacitly consented to it. Therefore all that Yāj. II. 24 means or recommends is that an owner should not be negligent (*upekṣā*) or should not remain silent when a stranger takes wrongful possession. This view was first started by Viśvarūpa among extant writers and it approaches the modern idea of requiring vigilance in the assertion of ones' rights⁴⁶²; that is there is only loss of the suit (*vyavahārahāni*). This view lays emphasis on a verse attributed to Nār. and the word *vyavahāra* in it and in Manu VIII. 148 and Nārada IV. 80, where the word means lawsuit also, the idea being that the sages declare only what would happen or be decided by the judges in a law court and do not intend to say that the decision would be just or righteous from the higher or the moralist's point.
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The third view is that of the Mit. (followed by the Vyavahāramayūkha, Mitramiśra and several others) which⁴⁶³ explains that the loss is not that of the ownership of the thing itself but of the produce of it (there is only '*phalahāni*') i. e. if without protest the owner allows a stranger to remain in possession before his very eyes for twenty years and then he brings a suit, he may succeed in getting back his land but he would lose his claim to the profits of the land. The Mit., the Vyavahāramātṛkā and V. P. (pp. 157-165) contain very elaborate discussions on Yāj. II. 24; but considerations of space forbid any further reference to them. The V. M.⁴⁶⁴ connects Yāj. II. 24 with the preceding verse (viz. that in mortgages, gifts and sales a prior transaction prevails over a later one) and remarks that this verse (Yāj. II. 24) says that if a person after a gift, sale, or mortgage to him allows the property to remain with the seller, donor or mortgagor, who subsequently transfers it to another with possession and the latter holds it for twenty years, then the first dealing though prior is of no avail (as it is not accompanied with possession for 20 years).
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Śrīkara (as stated in the Vyavahāramātṛkā) tried to reconcile the conflicting smṛti texts by holding that in twenty years the real owner lost ownership if he was present and did not protest while a stranger was in possession, but passages speaking about possession for three generations (or sixty years) applied only where the owner was absent. The Mit. and others point out that Yāj. II. 24 (who employs the words 'paśyataḥ' and 'abruvataḥ') conveys that if a stranger takes possession while the owner is absent or if the owner protests, then even 20 years' possession does not lead to the loss of anything. The text of Nār. IV. 87 quoted above (p. 318) shows that the sage held that possession for several hundred years even would not avail the possessor if it is certain or established that the possessor had no title at all to begin with or that his possession started wrongfully. This text is emphasized by those who favour title and want to discourage persons benefiting by their own wrongdoing. But there are other smṛti texts of a contrary tenor. For example, Nār. IV. 91 himself says 'whatever has been enjoyed even unlawfully for three generations (i. e. by three ancestors) including the father cannot be recovered by the owner from the person (who is the 4th in succession) because it has gone through three lives in succession';
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a text of Hārīta states 'what has been enjoyed by three prior ancestors without any title whatever cannot be recovered back (from the present holder, who is 4th), since it has descended successively through three generations'. These two are relied upon by those who hold long possession as leading to an inference of title (*tripuruṣa-bhuktivādinaḥ*, as Medhātithi on Manu VIII. 148 calls them). These like the Vyavahāra-tattva and Vivādacandra⁴⁶⁵ who rely solely on possession boldly say that long possession even originating in wrong leads to ownership. Medhātithi says 'there can be no memory of the origin of title when there has been possession for hundreds of years and (if title had to be proved for the origin of such possession) a king may resume villages enjoyed by ancient temples, brāhmaṇas and maṭhas; therefore ancient possession is evidence of ownership because it makes it extremely probable that the ancient possession originated in gift or the like'. The Mit. on Yāj. II. 27 (which is *svatvavādi*) refers to all the three views, refutes the first two and accepts the view of loss of profits. It does not literally interpret the texts of Hārīta and Nārada quoted above, takes them to be over-statements and intended to convey that continuous possession for over three generations cannot be interfered with even if there is no clear proof of the origin of title.
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In modern India under the Indian Limitation Act (IX of 1908) the tendency is to prescribe the very short period of twelve years for adverse possession in order to defeat a title, following the English Real Property Limitation Act of 1833 (3 and 4 William IV chap. 27), sec. 2 of which insisting on vigilance by every one about one's rights however prescribes the period of 20 years within which to bring an action for recovery of land. Modern case law has rather gone too far and sets a premium on wrongful possession by holding that it is not necessary that adverse possession should have been brought to the knowledge of the real owner⁴⁶⁶. Ancient Hindu lawyers put down the tendency to usurp another's property and placed many obstacles in the way of the wrongful possessor.