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2023 (8) TMI 1470
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....e undisputed. The case put forward by the Respondents, (claimants of adverse possession) Hereafter referred as Claimants. against which the present appeal stands filed, is that Joseph had acquired title to the land of which he had been in possession and in continued enjoyment of, since 1940. 3. The Tahsildar, District Thodupuzha, issued notice to the claimants for unauthorised occupation of Government land on 20th February 1982, and thus began the long-standing litigation that is before us. Joseph-the original occupier passed away on 9th August 1982. The Assistant Collector, Idukki, vide order dated 11th March 1983 dismissed the appeal filed against the order of the Tahsildar. 4. Legal representatives of the claimants filed a suit for injunction on 14th April 1983. The Court of the Munsiff allowed the suit on 31st July 1987 and on remand, vide order dated 16th December, 1989 from an appeal filed by the State, on the ground of the non-opportunity of production of evidence as also cross-examination of the witnesses for the State, confirmed its original decree with a judgement and order dated 21st July 1990. First Appeal 5. The question, the Court in its wisdom framed for its....
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.... of quasi-judicial authorities to follow the procedure for amendment of cause title with the same rigidness as observed by the Civil Court and that those seeking to be impleaded owed a duty to satisfy the Court as to what became of their application for impleadment. Just because the order has been presumably passed against a person no longer in the world of living, does not give the representatives of the Plaintiffs (Respondents herein) to treat the same as nullity. 5.5. In such terms, the judgment and decree passed by the Trial Court dated 21st July, 1990 was set aside vide judgment and order dated 3rd April, 1995. Second Appeal-The Impugned Judgment 6. The learned Court below in its judgement dated 5th August, 2009 examined the decisions that led to the appeal before it and held that the lower Appellate Court's approach stating that the suit was barred by virtue of the Act was not a good law, as the suit filed by the Respondents herein was a suit for declaration of perfected title by virtue of adverse possession and not, a challenge against the notice issued by the Tahsildar. The second aspect on which the High Court differs with the lower Appellate Court was on the point ....
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....ing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. ... 14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the f....
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....Procedure. 12. We have hitherto observed that the instant litigation has continued for a considerable period of time, i.e., four decades. Prudence would not be served by sending this matter back to the court below for consideration in light of the above discussion and, therefore, with an aim to put an end to the matter, this Court proceeds to examine the claim of adverse possession on its own merits, as is so argued across the bar. 13. Thus, this Court is required to consider as to whether the claimants have perfected their title over the property, subject matter of dispute, by adverse possession. 14. It is contended by the State that a question of adverse possession does not arise, on two grounds - one, that the land is undisputedly Government land and two, that the Respondents had possession of such land only for a period of 15 years which is less than required period of 30 years, after which adverse possession could be claimed against the State. Further, it is submitted that Section 20 of the Act bars any suit or other legal proceedings against the Government in respect of any action taken by it under this Act in respect of unauthorised occupation of land, and, since the noti....
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....a permanent injunction against any proceedings in respect of eviction and also possession and title of the land in question. The third ground i.e., the disputed property being a Government property, is the only ground that is met. The same is an undisputed fact. 19. However, the primary requirement of the civil suit being in connection with an action taken by the Government, remains unmet and therefore, on the basis of the third ground alone, the bar enshrined in this Section cannot be applied to the present case. Whether or not the Respondents herein have any right over the above stated Government land is a question that is required to be considered independently. 20. The principle of adverse possession has been defined by the Privy Council in Perry v. Clissold [1907] A.C. 73 in the following terms: It cannot be disputed that a person in possession of land in the assumed character of the owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of L....
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....iddiq (D) through L.Rs. v. Mahant Suresh Das and Ors. (2020) 1SCC 1 (five-Judge Bench) reiterated this principle as under - 748. A person who sets up a plea of adverse possession must establish both possession which is peaceful, open and continuous - possession which meets the requirement of being 'nec vi nec claim and nec precario'. To substantiate a plea of adverse possession, the character of the possession must be 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. These requirements have to be duly established first by adequate pleadings and second by leading sufficient evidence. 21.2 The person claiming adverse possession must show clear and cogent evidence substantiate such claim; This Court in Thakur Kishan Singh v. Arvind Kumar (1994) 6 SCC 591 (two-Judge Bench) held that - 5. A possession of a co-owner or of a licensee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in c....
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....ent of the possession... (b) In Des Raj and Ors. v. Bhagat Ram (2007) 9 SCC 641 (two- Judge Bench) this Court observed - 21. In a case of this nature, where long and continuous possession of the Plaintiff-Respondent stands admitted, the only question which arose for consideration by the courts below was as to whether the Plaintiff had been in possession of the properties in hostile declaration of his title vis-à-vis his co- owners and they were in know thereof. (c) This Court in L.N. Aswathama v. P. Prakash (2009) 13 SCC 229 (two- Judge Bench) had observed that permissive possession or possession in the absence of Animus possidendi would not constitute the claim of adverse possession. (d) It was also held in the case of Chatti Konati Rao v. Palle Venkata Subba Rao (2010) 14 SCC 316 (two-Judge Bench) - 15. Animus possidendi as is well known is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, ....
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....y involves destruction of right/title of the State to immovable property and conferring upon a third-party encroacher title where he had none. Further, in Mandal Revenue Officer v. Goundla Venkaiah (2010) 2 SCC 461 (two-Judge Bench) it was stated: ...It is our considered view that where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, the court is duty-bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/title of the State to immovable property and give an upper hand to the encroachers, unauthorised occupants or land grabbers. 21.8 A plea of adverse possession must be pleaded with proper particulars, such as, when the possession became adverse. The court is not to travel beyond pleading to give any relief, in other words, the plea must stand on its own two feet. This Court has held this in the case of V. Rajeshwari v. T.C. Saravanabava (2004) 1 SCC 551 (two-Judge Bench): ...A plea not properly raised in the pleadings or in issues at the stage of the trial, would not be permitted to be raised for the first time at the stage ....
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....e of adverse possession. 21.10 Burden of proof rests on the person claiming adverse possession. This Court, in P.T. Munichikkanna Reddy v. Revamma (2007) 6 SCC 59 (two-Judge Bench), it held that initially the burden lied on the landowner to prove his title and title. Thereafter it shifts on the other party to prove title by adverse possession. It was observed: 34. The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the Plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned: once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession.... The Court reiterated this principle in the case of Janata Dal Party v. Indian National Congress (2014) 16 SCC 731 (two-Judge Bench): ...the entire burden of proving that the possession is adverse to that of the Plaintiffs, is on the Defendant... 21.11 The State cannot claim the land o....
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.... of title of the true owner, the burden is always on the person who asserts such a claim to prove by clear and unequivocal evidence that his possession was hostile to the real owner and in deciding such claim, the courts must have regard to the animus of the person doing those acts. (Emphasis supplied) 24. The claimants via a claim of adverse possession seek to be declared the owners, by lapse of time of land belonging to the government. When faced with this situation, it is clear that the Court is required to consider this question "more seriously". The first part of burden of proof as discussed in Revamma (supra) is undoubtedly met with since the subject land being Government land, was never in dispute. The burden of proof once shifted, it was for the claimants to prove their possession to be openly hostile to the rights of the government. 25. By way of evidence adduced, nothing, save in except testimonies of villagers, has been brought on record. A perusal of such evidence also shows no decisive statements being made and instead, on the basis of the estimated age of trees on such land, is the length of possession of the Respondents being calculated. 26. On separate analysis....
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.... is also a matter on record that such proceedings stood concluded by the appropriate authority (Tehsildar). By order dated 24th February, 1982 the appropriate authority (Tehsildar) had passed an order directing the claimant to not only vacate the land but also to pay compensation amounting to Rs. 354/-; these facts were never referred to in the plaint. 31. The Assistant Collector, Idduki, unequivocally stated the reason for non-assignment of land to the claimants, for the same being set out for a public purpose. Noticeably, the order passed by the Tehsildar or the Assistant Collector was never ever subjected to challenge by the claimants either by resorting to the mechanism provided under the Act nor in the suit, the subject matter of consideration. 32. It is for the first time in the written statement that the factum of passing the order under The Act was brought to the notice of the Civil Court which fact was neither refuted to nor explained by way of replication. 33. That apart, joint reading of the testimonies of PW1 (Brajeetha), PW3 (Cherian) and PW4 (Narayanan), do not in any manner establish the factum of the claimant having ever claimed the possession hostile to that of ....