Proprietary rights in land in India : Historical Background

By : Ritik Singh Jadoun & Huzaifa Aslam, Students, Faculty of Law, Aligarh Muslim University, Aligarh 


The term land is used for ground or soil ,whether covered by buildings or water , crops or left vacant, desert or forests. As per UP Revenue Code, ‘Land’ refers to any land used for the purposes connected  with agriculture, horticulture, animal husbandry or related purposes. But going through Transfer of Property Act , we find that Land means  any fixed portion of the earth including everything upon the surface of land ( subsoil, mud, river, ponds, etc.) , everything below the surface of land ( minerals, mines, groundwater, etc.) and anything above the surface of the land ( space). 

Historical background:

 “Occupation Theory” is considered as the origin of proprietary rights in land . According to this theory, things which are not already the subject of property, become the property of the first occupant.  

Manu says , “ A field is his who clears it of jungle, game is his who has first pierced it.” ( Manusmriti, IX-44 )

The same theory was also  prevalent in different parts of world at that time. It  looks similar to the doctrine of  “ occupatio” which is in use in Rome during seventeenth and eighteenth centuries.  According to Sandar’s Justinian , “ Wild beast, birds, fishes and all animals which live either in the sea, the air, or on the earth, so soon as they are taken by anyone, immediately become, by the law of nations, the property of the captor, for natural reason gives to the first occupant, that which had no previous owner”.  

Prophet Muhammad says, “Whoever cultivates waste lands does thereby acquire property in them.” 

According to Abu Hanifa.,“The mere cultivation of waste land is not enough to create a real right in the cultivator the permission of the state is necessary for the acquisition of proprietary right.”  

According to Maine, “Occupancy ripens into ownership because there is no better claimant to the object and because all things were presumed to be somebody’s property.” 

Development of propriety rights :

Hindu Period:

The Hindu sages and jurists said, and emphasized  repeatedly, that the sovereign (i.e. State) was not the proprietor of soil. It was only  entitled to a share of the usufruct of the lands in the occupation of his subjects, not because he was the owner but because a share was payable to him as the price for the protection afforded to life, liberty and property. 

Narada says, “The one-sixth of the produce was the fees of sovereign for the protection of subjects.” ( Narad Smriti, XVIII-48 )

Pareshar says, ‘The sovereign receive taxes and therefore, he should protect his subjects from thieves, robbers, etc.  

So according to Hindu Shastras , State is not the proprietor of land, entitle to use only and distribute it, and also he cannot make a gift of his kingdoms 

Jimutvahana  says, “By conquest and other means a king acquiring a kingdom has no other rights over his subjects then that of collecting taxes.”  

Individual ownership in arable land was recognized.  

The cultivated land belongs to individual while waste belongs to the whole village as common land. 

Cultivation of land during this period was strongly insisted upon and penalties were prescribed for non- cultivation.  

If possession has been held of a land by three generation successively, in due course, the fourth shall keep it as his even without a title. 

Vyasa said, “If the land of one is possessed by another for 20 years, his right to sue for possession ceases. 

This way of giving rights in land is also recognized by some of the judges of the Calcutta High Court in case of  Thakurani Dasi versus Biswesar Mukherjee ( 1865, 3 W R 29)

 Charles Turner, the then Chief Justice of Madras in a case said :

“ According to what may be termed The Hindu common law, a right to the possession of land is acquired by the first person who makes a beneficial use of the soil .The crown is entitled to assess the occupier with revenue, and if a person who has occupied land omits to use it and the claim of the Crown to revenue is consequently affected, the sovereign is entitle to take major for the protection of the revenue”. ( ILR 1886, 9 Mad at p. 179)

Revenue System:

 Generally, the revenue was fixed as 1\6th of the whole produce which was taken from the villagers by the ‘gramadhipati’.  He was considered as the head of the village and responsible person to collect revenue from the villagers and also impose the revenue on those individuals on the basis of their conditions, the quality and area of the land under their occupation.  The payment of the land revenue  was regarded as the joint responsibility of the permanent cultivators of the village.  Gramdhipati was responsible for both the payment of the land  revenue and its equitable distribution among the cultivators.

Muslim Period:

There is no clear line of division between Hindu and Muslim period, both overlaps with each other.  

The principle of Muslim government was that, If the Imam conquered a country by force of arms he was at liberty to divide it among the Muslims or his soldiers or he might leave it in the hands of Original proprietors exacting from them a capitation tax called the 'Jezya' and importing a tribute upon their lands known as the ‘Khiraj'. 

In India, however no conquered land was distributed among the Muslims. Small portions might have been given to soldiers as jagirs but these were generally waste lands.  

Justice Field in his book “Land Holding” observes, That the ownership of soil was not in the sovereign is proved by a variety of arguments. Some remarkables are, Emperors purchased land when they wanted it eg. Aurangzeb purchased land in Hundi Palan etc., Akbar for Akbarabad and Allahabad forts, Shahjahan purchased for Shahjahanabad. So, the sovereign has only a right of property in the tribute or revenue,but he who has a tribute from the land has no property in the land.  

Revenue, system :-  

Villagers → Headmen → Rajas / Zamindars →  Emperor /King 

Kings share was 1/3rd of gross produce, by Aurangzeb, it was ½nd of produce.  

Todermal settlement abolished arbitrary taxes, and imposed revenue according to the capacity of Sand and uniform measures of bigha . All intermediaries had their fix shares in that Revenue System.

British Period:

The Britishers in India started with the assumption that all the soil belong in absolute property to the sovereign and that all private property in land existed, by his sufferrence .The existence of private property in land which was the fundamental principle of ancient period and even of Mughal rule in India was entirely ignored. As per their idea the British government in 1793 transferred in perpetuity a vast and then unmeasured quantity of land to a class of men who were and are known as Zamindars and the property in the soil was formally declared to be vested in them.  This lead to foundation of Zamindari system in India which was abolished after Independence. 


From the advent of society, land is considered as the essential part of life as it is used to build houses, grow crops and to live life happily. This land is considered as a belonging of cultivator from ancient time. Person who clears the forest become the owner of it, is the prevailing principle behind the proprietary rights in land. But with the rise of colonialism in India,  this principle got changed and land is considered as a  part and parcel of State or Sovereign and this principle is still prevalent in most parts of world. So, it can be summarized that proprietary rigts in land remains dynamic through the ages and still going on.


1. Uttar Pradesh Revenue Code, 2006