The Case Has Been in Court Since 1985 and the Land Is Being Used

The suit was filed in 1985 over four acres and a house near Karad, between two branches of a family that had until then been one. My grandfather was a defendant. My father inherited the position on his death, which is a sentence that ought to sound stranger than it does. There have been, by my uncle's count, eleven judges. Two of the original parties are alive.

Everyone I have ever described this to responds the same way, and the response is a description of failure: forty-one years, the courts are broken, this is a scandal. It is a scandal. Indian civil litigation is genuinely, indefensibly slow, and I am not going to write a defence of judicial delay.

But I have spent a long time with this particular case, because it is mine, and I have arrived somewhere I did not expect, and it is a question about what an unresolved thing is rather than about the courts.

Here is what has actually happened on those four acres since 1985.

They have been farmed continuously, by the branch of the family that lives there, who are not the branch with the stronger paper claim. The house has been occupied and maintained by them. The other branch — mine — has not attempted to take possession, has not been offered rent, and has not been paid anything. Twice, in 1998 and in 2016, a member of one branch has come to a wedding held by the other. The land has not been sold, because it cannot be, and it has not been divided, because nobody has agreed to divide it.

Nothing about this arrangement is legally recognised. And it has been stable for forty-one years, which is longer than most negotiated settlements I know of have lasted.

Now the observation that I keep returning to. If you had put these two families in a room in 1985 with a mediator, no achievable agreement would have looked like this. My branch would not have signed away the use of the land for four decades; the honour of the thing would not have permitted it. Their branch would not have accepted a formal tenancy, which would have named them as tenants of relatives. There was no signable document in that room. And yet, unsigned, the practical result has been that one branch uses the land and the other retains the claim, indefinitely, and both have got on with their lives.

The litigation is not what prevented a settlement. The litigation is the settlement. It is the instrument through which both branches can maintain, truthfully, that they have not conceded anything — which is the condition each of them needed — while the land is used by whoever is standing on it.

So the claim, and I hold it loosely: we treat unresolved disputes as deferred resolutions, as though the natural state of a disagreement is to end and any that has not ended is in a queue. Some of them are not in a queue. Some are functioning arrangements that no participant could have arrived at deliberately, because the arrangement requires that nobody has agreed to it. A stable disagreement is a different object from a deferred agreement, and it is not obvious to me that the first is always worse.

I want to sit with the objection now, because it is not a debating objection. It is the reason I have never said any of this at a family gathering.

The objection is that this is injustice with good manners. Somebody is being kept out of something that is theirs. If the paper claim is in fact stronger on my side, then for forty-one years my family has been deprived of property by the simple expedient of the other side not conceding, and I have written an essay describing that deprivation as a functioning arrangement. And the general form is worse: every long occupation in the world is stable, and stability is precisely what the party in possession has and the party out of possession does not. An argument that finds moral interest in unresolved disputes is an argument that will, in practice, always be available to whoever is currently standing on the land.

I think that objection is correct about a large class of cases and I cannot fully separate mine from that class. What I can say is where I think the distinction might sit, offered as a question rather than an answer.

In our case, neither branch is in a position to end it. My side could press for a decree and has not, for forty-one years, across three generations, with the means to do so. Their side could have sought to formalise possession and has not. What each of them is protecting is not the land — the land has been settled in practice since about 1990 — but the standing to say that they did not give it up. That is a symmetric interest, and both parties are paying for it in the same currency, which is time and the absence of a resolution they might have preferred.

The occupations that the objection is really about are not symmetric. One party has the land and wants the dispute to continue; the other has nothing and wants it to end and cannot make it end. In that configuration the delay is not an arrangement, it is a weapon, and describing it as a stable disagreement would be a lie told by the party it benefits.

I notice, writing that down, that it is a distinction I would very much like to be true, given who I am in this story, and that I have no way of verifying it from the inside. My uncle would say the same sentence about his branch and mean something different by it.

The hearing was in March. Nobody from my family went. My cousin, who is a lawyer and finds all of this embarrassing, told me that the matter was adjourned, and that when he asked the clerk what it had been adjourned for, the clerk said that one of the advocates had died and the party had not yet appointed another, and that this had happened before.

I asked him whether he thought it would ever end. He said yes, when the last person who remembers why it started dies, and that this is how most of them end, and that nobody calls that a judgment.