Ayodhya Verdict: Adverse Possession and the Doctrine of Lost Grant

Ayodhya Verdict: Adverse Possession and the Doctrine of Lost Grant

Aditya AK

Nearly a month after it reserved judgment, a Constitution Bench of the Supreme Court today pronounced its verdict in the Ayodhya dispute.

While many arguments made in the cases pertained to history and archaeology, a few legal questions were posed to the Bench. Two of these – adverse possession and the doctrine of lost grant – were raised by the Uttar Pradesh Sunni Central Waqf Board in its suit filed in 1961.

As the dust settles after today’s pronouncement of the Ayodhya verdict, we take a look at how the Supreme Court decided these two issues.

Adverse Possession

The Muslim parties claimed that even if there existed a Hindu temple on the disputed site, the Mosque was built by Babur over 400 years ago, and that Muslims have been enjoying possession over the land since. It was argued that such long, exclusive and continuous possession would extinguish the right, title and interest of the temple and of the Hindu public.

As per the Court, possession is said to be adverse if:

  • It is peaceful, open, and continuous 
  • the character of the possession is adequate in continuity and in the public because the possession has to be to the knowledge of the true owner in order for it to be adverse.

At the outset, the Bench noted that the plea of adverse possession was a subsidiary contention. Moreover, it was noted that the Muslim parties had argued this topic with “ambivalence”, which the Court puts down to the fact that any claim of adverse possession against the Hindus or the temple would amount to an acceptance of their holding the title to the land.

“The plaintiffs have failed to adopt a clear stand evidently because they are conscious of the fact that in pleading adverse possession, they must necessarily carry the burden of acknowledging the title of the person or the entity against whom the plea of adverse possession has not been adequately set up in the pleadings and as noted above, has not been put-forth with any certitude in the course of the submissions.”

Apart from stating that the Muslims have been in long exclusive and continuous possession beginning from the time when the Mosque was built and until it was desecrated, there was no evidence to back the claim of adverse possession, the Court held. It was also highlighted no records are available with respect to possession for the period between 1528 and 1860. 

The Court further refers to incidents that took place in 1856-7 and 1949, when communal riots between Hindus and Muslims and the placing of the idols in the Mosque took place. These incidents alone are evidence that the possession of the land by Muslims cannot be regarded as continuous. This would not meet the standard required to prove adverse possession, the Court held.


“The evidence in the records indicate that Hindus, post the setting up of the railing have, in any event, been in possession of the outer courtyard. On this basis alone, the plea of adverse possession set up by the plaintiffs in respect of the entirety of the area represented by the letters A B C D must fail.”

Doctrine of Lost Grant

An allied argument put forth by the Muslim parties, related to the claim of continuous possession of the disputed land, was the doctrine of lost grant.

Under this doctrine, a long, continuous use or possession points to a legal presumption that the right to use was previously conveyed to the user and that the instrument of conveyance has been lost. 

The Court noted that enjoyment since the time of legal memory is to be viewed as an indication that the right claimed had been conferred on the claimant by a grant. Further, the onus of proving continued and uninterrupted enjoyment of property through long use is on the plaintiff.

The only conclusive evidence for the doctrine to apply is that possession must be uninterrupted for a sufficient length of time. The Court also noted that in the absence of defined persons to whom the grant was made, there will be no presumption of lost grant.

In the Ayodhya case, the Bench noted that the plaintiffs in Suit 4 did not provide any evidence to support the application of the doctrine of lost grant. It also pointed out how the pleas of adverse possession and lost grant were contradictory.

“In fact, the alternate plea of adverse possession is destructive of a valid legal basis to apply the doctrine of lost grant as a rule of evidence. Adverse possession postulates the vesting of title in one person and the existence of a long continued and uninterrupted possession of another, to the knowledge of and in a manner hostile to, the true title holder. The plea of adverse possession would lead to an inference against the application of the doctrine of lost grant as a plea of adverse possession is premised in title vesting in someone other than the alleged grantee.”

Thus, it was held that the doctrine of lost grant does not apply to the Ayodhya dispute.

[Read the Judgment]

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