Government of Kerala v. Joseph – Law on Adverse Possession Against Government

Taken from: How to Plead Adverse Possession?Adverse Possession: An Evolving Concept

Saji Koduvath Advocate, Kottayam

PART I

Introduction

In Govt. of Kerala v. Joseph, AIR 2023 SC 3988, our Apex Court has emphasised (August 9, 2023), that the Courts have to consider the question of adverse possession “more seriously” when it is claimed on a land that belongs to the Government.

In this case, the judgment of the first appellate court which observed that ‘the title of the Government on land cannot be lost by placing reliance on “casual advertence” or on the basis of “scanty material” ’ was restored by the Apex Court. The Apex Court further held –

  • “When the land subject of proceedings wherein adverse possession has been claimed, belongs to the Government, the Court is duty-bound to act with greater seriousness, effectiveness, care and circumspection as it may lead to destruction of a right/title of the State to immovable property.”

Adverse Possession – Basic Ingredients

The Apex Court also alluded to the following often repeated the basic ingredients to attract the adverse possession, with reference to various previous earlier decisions including the Privy Council –

  • i. the possession must be open, clear, continuous and hostile to the claim or possession of the other party;
  • ii. all three classic requirements must coexist – nec vi (i.e., adequate in continuity); nec clam (i.e., adequate in publicity); and nec precario (i.e., adverse to a competitor), in denial of title and knowledge.

Decisions referred to in Govt. of Kerala v. Joseph

The decisions referred in this case (Govt. of Kerala v. Joseph) include the following –

  • 1.  Privy Council in Radhamoni Debi v. Collector of Khulna, ILR 27 Cal. 944; (1900) 27 Ind App 136 (PC); 1900 SCC OnLine PC 4 – The possession required must be adequate in continuity, in publicity, and in extent.
  • 2.  Privy Council in Perry v. Clissold, [1907] A.C. 73 – peaceably possessed land; rightful owner did not come forward and assert his title within the period of Limitation.
  • 3. Privy Council in Secy. of State for India in Council v. Debendra Lal Khan, (1933) 61 IA 78 : 1934 All LJ 153 (PC) – the possession must be overt and without any attempt at concealment so that the person against whom time is running, ought if he exercises due vigilance, to be aware of what is happening and if the rights of the Crown have been openly usurped it cannot be heard to plead that the fact was not brought to its notice.
  • 4. Privy Council in Council Maharaja Sri Chandra Nandi v. Baijnath Jugal Kishore, AIR 1935 PC 36 – possession should be overt and without any attempt at concealment, so that the person against whom time is running ought, if he exercises due vigilance, to be aware of what is happening.
  • 5. P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314, adverse possession should be nec vi, nec clam, nec precario — that is the possession must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. It must be with the required animus also.
  • 6. Gaya Prasad Dikshit v. Dr. Nirmal Chander (1984) 2 SCC 286 – on termination of licence there must be some overt act on the part of the licensee indicating assertion of hostile title. Mere continuance of unauthorised possession even for a period of more than 12 years is not enough. (also Thakur Kishan Singh v. Arvind Kumar (1994) 6 SCC 591; Mallikarjunaiah v. Nanjaiah (2019) 15 SCC 756).
  • 7 .Parsinni v. Sukhi (1993) 4 SCC 375 – possession must be ‘nec vi, nec clam, nec precario’ i.e. peaceful, open and continuous. The possession must be adequate, in continuity, in publicity and in extent to show that their possession is adverse to the true owner.
  • 8. Thakur Kishan Singh v. Arvind Kumar (1994) 6 SCC 591 – possession of a co-owner or of a licensee or of an agent or a permissive possession to become adverse must show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession.
  • 9. Annasaheb Bapusaheb Patil v. Balwant, (1995) 2 SCC 543 : AIR 1995 SC 895 – “15. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another’s title. One who holds possession on behalf of another, does not by mere denial of that other’s title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all.”
  • 10. Mohan Lal v. Mirza Abdul Gaffar, (1996) 1 SCC 639  – “4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period of his title by prescription nec vi, nec clam, nec precario. Since the appellant’s claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.”
  • 11. State of Rajasthan v. Harphool Singh  (2000) 5 SCC 652 –  “12. So far as the question of perfection of title by adverse possession and that too in respect of public property is concerned, the question requires to be considered more seriously and effectively for the reason that it ultimately involves destruction of right/title of the State to immovable property and conferring upon a third-party encroacher title where he had none.”  “When the property was a vacant land before the alleged construction was put up, to show open and hostile possession which could alone in law constitute adverse to the State, in this case, some concrete details of the nature of occupation with proper proof thereof would be absolutely necessary and mere vague assertions cannot by themselves be a substitute for such concrete proof required of open and hostile possession.”
  • 12.  Balkrishna v. Satyaprakash (2001) 2 SCC 498  – Mere passing of an order of ejectment neither causes his dispossession nor discontinuation of his possession.
  • 13. V. Rajeshwari v. T.C. Saravanabava, (2004) 1 SCC 551 – “…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 of appeal…” 
  • 14.  Karnataka Board of Wakf v. Govt. of India  (2004) 10 SCC 779  – there must be exclusive possession and the animus possidendi;  possession must be  “nec vi, nec clam, nec precario”, that is, peaceful, open and continuous. It must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful dispossession of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (This case was relied on in M. Venkatesh v. Bangalore Development Authority (2015) 17 SCC 1 ;  Ravinder Kaur Grewal v. Manjit Kaur (2019) 8 SCC 729 .
  • 15.  Annakili v. A. Vedanayagam  (2007) 14 SCC 308 – Possessor must have animus possidendi at the commencement of the possession and hold the land adverse to the title of the true owner and  continued for 12 years. Mere possession would not ripen into possessory title.
  • 16. P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59   – “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….”
  • 17. Des Raj and Others v. Bhagat Ram (2007) 9 SCC 641 (two- Judge Bench) this Court observed – possession must be in hostile declaration of his title vis-à-vis his co-owners and they were in know thereof.
  • 18.  L.N. Aswathama v. P. Prakash  (2009) 13 SCC 229 – permissive possession or possession in the absence of Animus possidendi would not constitute the claim of adverse possession.
  • 19.  Chatti Konati Rao v. Palle Venkata Subba Rao, (2010) 14 SCC 316 – Animus possidendi 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. The date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that possession was open and undisturbed – must be established. (Referred to in: Brijesh Kumar v. Shardabai, (2019) 9 SCC 369).
  • 20. Mandal Revenue Officer v. Goundla Venkaiah  (2010) 2 SCC 461 – “…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. State of Haryana v. Mukesh Kumar, (2011) 10 SCC 404 – The State cannot claim the land of its citizens by way of adverse possession.
  • 22.  Janata Dal Party v. Indian National Congress, (2014) 16 SCC 731 – “…the entire burden of proving that the possession is adverse to that of the plaintiffs, is on the defendant…”
  • 23.  State of Uttrakhand v. Mandir Sri Laxman Sidh Maharaj  (2017) 9 SCC 579 – “…The courts below also should have seen that courts can grant only that relief which is claimed by the plaintiff in the plaint and such relief can be granted only on the pleadings but not beyond it. In other words, courts cannot travel beyond the pleadings for granting any relief…” (Relied on in Dharampal (Dead) v. Punjab Wakf Board, (2018) 11 SCC 449)
  • 24.  M Siddiq (D) through LRs v. Mahant Suresh Das   (2020) 1 SCC 1 – possession must be peaceful, open and continuous; it must meet the requirement of being ‘nec vi nec claim and nec precario’. 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. There must be adequate pleadings and sufficient evidence.
  • 25. Narasamma v. A. Krishnappa, (2020) 15 SCC 21 (three-Judge Bench) – plea of adverse possession can be used not only as a shield by the defendant, but it can be used as a sword by the plaintiff. (Followed Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729).

PART II

Adverse Possession according to the Limitation Act of 1963 and of 1908

  • Under the (present) Limitation Act, 1963 (Article 65),  adverse possession arises, only ‘by the positive and hostile acts’ of the trespasser; and, the true owner will lose title only if the trespasser proves ‘adverse‘ possession for 12 years. Therefore, mere 12 years’ possession by trespasser is insufficient to bring home adverse possession.
  • The true owner, therefore, can bring the suit based on title even after 12 years (of losing possession), for recovery, and he will lose property only if the trespasser proves ‘adverse‘ possession.
    • Article 142 of the (repealed) Limitation Act, 1908, which dealt with Adverse Possession, did not put down the term ‘adverse’. Therefore, the true owners lost title, under this (1908) Act, if they failed to prove possession for 12 years; and they had the burden to show possession within 12 years.
    • Under the old Act of 1908, a true owner was bound to file suit for recovery (from a trespasser) within 12 years of losing possession (to continue the property).
    • Under the old Act of 1908, the trespasser was not required to bring the specific knowledge of the owner (knowing him). Such a requirement was insisted only where an ouster of title was needed (against co-owner or person in permissive possession).
  • The present Act of 1963 casts onus on the trespasser to prove claims of title by ‘adverse’ possession (knowing the true owner and bringing his attention to the ‘trespass’, making specific and required pleadings).
  • If no adverse possession, mere possession, of trespasser, howsoever long, will not lose the right of the true owner to recover property on the basis of his title. See:
    • Government of Kerala v. Joseph, AIR 2023 SC 3988;
    • Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 461,
    • Ram Nagina Rai v. Deo Kumar Rai, 2019-13 SCC 324,
    • Mallikarjunaiah v. Nanjaiah, 2019-15 SCC 756,  
    • T. Anjanappa v. Somalingappa, 2006-7 SCC 570,
    • Chatti Konati Rao v. Palle Venkata Subba  Rao, 2010-14 SCC 316;
    • Gaya Prasad Dikshit v. Dr. Nirmal Chander, 1984-2 SCC 286.

PT Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753, is an authoritative decision of the Supreme Court that discussed various views on adverse possession, in the light of Limitation Act, 1963. It is observed in this decision as under:

  • “Adverse possession in one sense is based on the theory or presumption that the owner has abandoned# the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile.”
  • “Thus, there must be intention to dispossess. And it needs to be open and hostile enough to bring the same to the knowledge and plaintiff has an opportunity to object.“

Period of Limitation against Government is 30 years

The limitation period for acquiring adverse possession against Government is 30 years. See Article 112 of the Limitation Act. Under the old Act of 1908 it was 60 years.

How to Plead Adverse Possession 

It is really a troublesome matter for the advocates. Karnataka Board of Wakaf v. Govt of India – AIR 2004 SC 2096; T. Anjanappa v. Somalingappa – [(2006) 7 SCC 570]; and PT Munichikkanna Reddy v. Revamma – AIR 2007 SC 1753, guide us in this field. It may be necessary to plead the following modules.

  • The claimant has been in ‘hostile and open, continuous uninterrupted as of right‘ possession of the land,
  • in denial of the title of the rightful owner,
  • adversely to the interest of the owner of the land,
  • started with wrongful dispossession of the rightful owner,
  • exercising absolute rights of ownership in respect of the land,
  •  on and from .. . .. (Specify date).

And, it is appropriate to plead ‘hostile and open’ possession as under:

  • Claimant’s acts were hostile enough to make the true owner aware of the adverse possession;
  • or, the claimant made the true owner knew as to his hostile acts or adverse possession (from the inception).

Modern propositions as to Adverse Possession

The 3 important modern propositions as to adverse possession (in India) are:

  • 1.  Mere ‘animus possidendi’, not enough; there must have animus to dispossess.
    • Note: ‘Wilful neglect element’ (that is, the owner has abandoned the property) is not given a go bye. Thus, there is a two-pronged enquiry – (i) animus to dispossess by the trespasser (ii) wilful neglect element by the true owner.
  • 2. Trespasser must know who the true owner is.
  • 3. Burden to plead and prove adverse possession is upon the defendant (trespasser).

Permissive Possession will not bring-forth Adverse Possession

Permissive possession, including that of a co-owner or of a licensee or of an agent, will not constitute the claim of adverse possession unless, the trespasser pleads and prove “ouster” (of title of true owner) with cogent evidence in a high degree and great vigor.

Our Apex Court, in P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314, following Debendra Lal Khan case, (1933-34) 61 IA 78 : AIR 1934 PC 23], observed as under :

  • “4. … But it is well-settled that in order to establish adverse possession of one coheir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir’s title. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. … the burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession.” (Quoted in: Hemaji Waghaji Jat v. Bhikabhai Khengarbhai Harijan, (2009) 16 SCC 517).
  • L.N. Aswathama v. P. Prakash  (2009) 13 SCC 229 – permissive possession or possession in the absence of Animus possidendi would not constitute the claim of adverse possession.
  • Thakur Kishan Singh v. Arvind Kumar (1994) 6 SCC 591 – possession of a co-owner or of a licensee or of an agent or a permissive possession to become adverse must show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession.

Dispossession and Ouster

Dispossession implies ouster; and, ouster implies dispossession. It is definite that “dispossession” is an important element in the 1963 Limitation Act to attract Adverse Possession.

In the old Act the requirement of ouster needed only in case of permissive possession (in other cases, the true owner lost right to recover property if he did not come forward within 12 years – See: Kshithish Chandra Bose v. Commissioner of Ranchi, AIR 1981 SC 707)).

Read Blog: Ouster & Dispossession in Adverse Possession

Degree of Proof on Title in a Civil Case is ‘High Degree of Probability‘

In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548: (2003) 8 SCC 752, the law is stated in the following terms :

  • “Being a civil case, the plaintiff cannot be expected to proof his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus on the defendant and if the defendant does not succeed in shifting back the onus, the plaintiff’s burden of proof can safely be deemed to have been discharged. …”

Is declaration necessary for claiming Adverse Possession by a Plaintiff?

Yes. Declaration is needed in the following circumstances:

  1. As Introductory/preliminary to grant (1) Injunction or (2) Recovery (Unnikrishnan v. Ponnu Ammal: AIR 1999 Ker 405
  2. When serious denial or cloud on title (or right): Anathula Sudahakar v. Buchi Reddi: AIR 2008 SC 2033
  3. Asserted title or civil right is not clear, simple and straight-forward; or, not well-established (lawful possession). (Eg. inchoate rights – started; but, not full-blown, until the such title is upheld by a competent court; like title on adverse possession.)
  4. Complicated or complex questions of fact and law to be ‘adjudicated’ (Anathula: 2008 SC 2033)
  5. Insurmountable obstacle – Md. Noorul Hoda v. Bibi Raifunnisa : (1996) 7 SCC 767
  6. Make clear what is doubtful – as to legal character and title. ILR 1970-2 (Del) 433: Eg. Suit by trespasser claiming adverse possession: Darshan Kumari v. Kaushalya Devi: 1990 JKLR 208; 1991 Kash LJ 1 (R.P. Sethi, J) for dispelling cloud: AIR 1953 (Gau) 162.

It appears, from the thrust of decisions, that such a declaration is not necessary when a defendant claims the right.

Title dispute on Forest Land

When title dispute was arisen as to title of land (Forest land or private land) and plantation produce, in  Aliakutty Paul v. State of Kerala, 1995-2 Ker LT 93, it is held as under:

  • “It is open to the petitioner to approach the civil court and claim a declaration of her title to the plantation produce kept stored in the godowns and stores of the Rosary Estate. As and when her title is declared, the petitioner would be entitled to take it away. Until then, it has necessarily to be preserved in safe custody.”

Should the person who claims adverse possession necessarily know the true owner?

There is difference of opinion.

It can be said – “The person who claims adverse possession must necessarily know the true owner, (for) then only it becomes ‘adverse’ as stated in Art. 65 of the Limitation Act.

In Annasaheb Bapusaheb Patil v. Balwant, (1995) 2 SCC 543: AIR 1995 SC 895  (two-Judge Bench) our Apex Court held as under:

  • “A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e possession was hostile to the real owner and amounted to a denial of his title to the property claimed.”

But, in the Report of the 22nd Law Commission (From 21st February, 2020 to 31st August, 2024) it is stated as under:

  • “7.5. Possession must be open and without any attempt at concealment. It is, however, not necessary that possession must be so effective as to bring it to the specific knowledge of the owner (except ouster).”

The Consultation Paper-cum-Questionnaire prepared by the 19th Law Commission is attached to the Report of the 22nd Law Commission, as “Annexure – 1”. Para 2.6 of the same reads as under:

  • “2.6 It was clarified by a three-Judge Bench of the Supreme Court in Kshithish Chandra Bose v. Commissioner of Ranchi, AIR 1981 SC 707,
    • “All that the law requires is that the possession must be open and without any attempt at concealment. It is not necessary that the possession must be so effective so as to bring it to the specific knowledge of the owner. Such a requirement may be insisted on where an ouster of title is pleaded, but that is not the case here. “
  • “It was also clarified in a series of decisions that while possession shall be open and exclusive and in assertion of one’s own right, the fact that the possessor did not know who the real owner was, will not make his possession any the less adverse. There are certain passing observations in some judgments of the Supreme Court rendered by two learned Judges that the plea of adverse possession is not available if the adverse possessor does not know who the true owner is; but, the law declared by the larger Bench decisions of the Supreme Court obviously prevails.“

It appears that the Law Commission inappropriately relied on the Three Judge Bench decision. On a careful reading of this decision, Kshithish Chandra Bose, it can be seen that this decision arose from a matter that emerged prior to 1963 Limitation Act, and when the 1908 Limitation Act reigned the field.

Under the 1908 Act, the true owner was bound to file suit for recovery within 12 years of losing possession. Therefore, it was immaterial – whether the trespasser ‘acquired’ right of ‘adverse‘ possession against the true owner; knowing him and bringing his attention to the ‘trespass’, or not (as required in 1963 Act). 

While narrating the facts, it is observed in Kshithish Chandra Bose, as under:

  • “In the suit the plaintiff based his claim in respect of plot No. 1735, Ward No. I of Ranchi Municipality on the ground that he had acquired title to the land by virtue of a Hukumnama granted to him by the landlord as far back as 17th April, 1912 which is Exhibit 18. Apart from the question of title, the plaintiff further pleaded that even if the land belonged to the defendant municipality, he had acquired title by prescription by being in possession of the land to the knowledge of the municipality for more than 30 years, that is to say, from 1912 to 1957.“

From the above, it comes out that the person who claims adverse possession must necessarily know the true owner; and that Kshithish Chandra Bose v. Commissioner of Ranchi, AIR 1981 SC 707, cannot be used to support  the plea that adverse possession is available even if the adverse possessor does not know who the true owner is.

Kerala High Court went wrong in K.T. Kurungottukandi Rarichakutty v. Aranda Rarichan, 2018-5 KHC 599

Kerala High Court also inappropriately relied on the Three Judge Bench decision of the Supreme Court which held in Kshitish Chandra Bose v. Commissioner of Ranchi, AIR 1981 SC 707, that the person who claims adverse possession adverse possession need not know the true owner.

Adverse Possession Against Government

  • There is presumption available in favour of the government – that is, all lands which are not the property of any person or which are not vested in a local authority, belong to the government.
  • All unoccupied lands are the property of the government, unless any person can establish his right or title to any such land.

In R. Hanumaiah v. Secretary to Government of Karnataka, Revenue Department, (2010) 5 SCC 203, it was observed that that the Suits for declaration of title against the government, though similar to suits for declaration of title against private individuals differ significantly in some aspects. The first difference is in regard to the presumption available in favour of the government. All lands which are not the property of any person or which are not vested in a local authority, belong to the government.

The Apex Court held as under:

  • “15. Suits for declaration of title against the government, though similar to suits for declaration of title against private individuals differ significantly in some aspects.
  • The first difference is in regard to the presumption available in favour of the government. All lands which are not the property of any person or which are not vested in a local authority, belong to the government. All unoccupied lands are the property of the government, unless any person can establish his right or title to any such land. This presumption available to the government, is not available to any person or individual.
  • The second difference is in regard to the period for which title and/or possession have to be established by a person suing for declaration of title. Establishing title/possession for a period exceeding twelve years may be adequate to establish title in a declaratory suit against any individual. On the other hand, title/possession for a period exceeding thirty years will have to be established to succeed in a declaratory suit for title against government. This follows from Article 112 of Limitation Act, 1963, which prescribes a longer period of thirty years as limitation in regard to suits by government as against the period of 12 years for suits by private individuals. The reason is obvious. Government properties are spread over the entire state and it is not always possible for the government to protect or safeguard its properties from encroachments. Many a time, its own officers who are expected to protect its properties and maintain proper records, either due to negligence or collusion, create entries in records to help private parties, to lay claim of ownership or possession against the government.
  • Any loss of government property is ultimately the loss to the community. Courts owe a duty to be vigilant to ensure that public property is not converted into private property by unscrupulous elements.
  • 16. Many civil courts deal with suits for declaration of title and injunction against government, in a casual manner, ignoring or overlooking the special features relating to government properties. Instances of such suits against government being routinely decreed, either ex parte or for want of proper contest, merely acting upon the oral assertions of plaintiffs or stray revenue entries are common. Whether the government contests the suit or not, before a suit for declaration of title against a government is decreed, the plaintiff should establish, either his title by producing the title deeds which satisfactorily trace title for a minimum period of thirty years prior to the date of the suit (except where title is claimed with reference to a grant or transfer by the government or a statutory development authority), or by establishing adverse possession for a period of more than thirty years.
  • In such suits, courts cannot, ignoring the presumptions available in favour of the government, grant declaratory or injunctive decrees against the government by relying upon one of the principles underlying pleadings that plaint averments which are not denied or traversed are deemed to have been accepted or admitted.
  • A court should necessarily seek an answer to the following question, before it grants a decree declaring title against the government :
    • whether the plaintiff has produced title deeds tracing the title for a period of more than thirty years; or
    • whether the plaintiff has established his adverse possession to the knowledge of the government for a period of more than thirty years, so as to convert his possession into title.
    • Incidental to that question, the court should also find out whether the plaintiff is recorded to be the owner or holder or occupant of the property in the revenue records or municipal records, for more than thirty years, and
    • what is the nature of possession claimed by the plaintiff, if he is in possession – authorized or unauthorized; permissive; casual and occasional; furtive and clandestine; open, continuous and hostile; deemed or implied (following a title).
  • 17. Mere temporary use or occupation without the animus to claim ownership or mere use at sufferance will not be sufficient to create any right adverse to the Government. In order to oust or defeat the title of the government, a claimant has to establish a clear title which is superior to or better than the title of the government or establish perfection of title by adverse possession for a period of more than thirty years with the knowledge of the government.
  • To claim adverse possession, the possession of the claimant must be actual, open and visible, hostile to the owner (and therefore necessarily with the knowledge of the owner) and continued during the entire period necessary to create a bar under the law of limitation. In short, it should be adequate in continuity, publicity and in extent. Mere vague or doubtful assertions that the claimant has been in adverse possession will not be sufficient. Unexplained stray or sporadic entries for a year or for a few years will not be sufficient and should be ignored.
  • As noticed above, many a time it is possible for a private citizen to get his name entered as the occupant of government land, with the help of collusive government servants. Only entries based on appropriate documents like grants, title deeds etc. or based upon actual verification of physical possession by an authority authorized to recognize such possession and make appropriate entries can be used against the government. By its very nature, a claim based on adverse possession requires clear and categorical pleadings and evidence, much more so, if it is against the government. Be that as it may.” (Quoted in: Bhagi Ram v. State of H P (2023 April 10), Nathu Ram v. D D A (2022 February 1.)

End Notes:

How to deal with Govt. property upon which title is claimed by plaintiffs is dealt with in Union of India v. Ibrahim Uddin: (2012) 8 SCC 148.

Facts, in a nutshell, were this –

  • Plaintiff Ibrahim Uddin filed the Suit for declaration that he was the owner of the suit property originally remained with the Maratha Government.
  • The ancestors of the plaintiff having close association with the Maratha Government, were made a grant in respect of the suit land in the year 1800.
  • The land was partitioned between the ancestors in 1819.
  • The Union of India claimed title over the suit land, thus the suit.
  • UoI averred that the land belonged to it, a part of which has been leased out to several persons for agriculture work and their lease has been renewed from time to time.
  • As they became unauthorised occupants, proceedings had been initiated in accordance with law and eviction order had been passed against the occupants/tenants.
  • The trial Court came to the conclusion that the plaintiff could not prove any kind of grant by the Maratha Government to his ancestors in 1800.
  • Plaintiff failed to prove the partition between his ancestors in 1819.
  • The lease deed alleged to have been executed in favour of the Military Estate Officer under the Union of India, was not successfully proved.
  • In view of the above, the suit was dismissed.

The Appeals –

  • The First Appeal was allowed on conclusion that Maratha Government had made the gift of land in favour of plaintiff’s forefathers which was subsequently partitioned.
  • The appellant UoI did not produce any document to show its title and failed to produce the original record, thus, adverse inference was drawn under Section 114 clause(g) of the Indian Evidence Act, 1872.
  • The registered partition deed stood duly proved and it was the proof of the title of the plaintiff.
  • In the appeal the Will executed by his maternal grandfather dated 1 . 3 . 1929 in his favour bequeathing the suit property was marked, under Order XLI Rule 27 CPC .
  • The First Appeal was allowed and the Second Appeal was dismissed. Hence, the appeal before the Supreme Court.

The Apex Court Findings –

  • It is not permissible to claim the relief of declaration without seeking consequential relief by virtue of the proviso of Section 34 of Specific Relief Act, 1963  (Relying on: Ram Saran v. Ganga Devi, AIR 1972 SC 2685, Vinay Krishna v. Keshav Chandra, AIR 1993 SC 957, Gian Kaur v. Raghubir Singh, (2011) 4 SCC 567).
  • There was nothing on record to prove the grant/gift by the Maratha Government in favour of ancestors of plaintiff/respondent No.1 in the year 1800.
  • A case not specifically pleaded can be considered by the court. The pleadings in substance contain the necessary averments to make out a particular case and issue has been framed on the point. In absence of pleadings, the court cannot make out a case not pleaded, suo motu (Bachhaj Nahar v. Nilima Mandal, AIR 2009 SC 1103 relied on). Hence the claim of title by virtue of the Will cannot be taken note of being not based on pleadings.
  • The Will had been executed prior to the birth of the plaintiff.  it could not have been taken into consideration without proper scrutiny of facts and, that too, without any pleading.
  • The alleged partition in the year 1819 even if had taken place, cannot be a proof of title.
  • Presumption under Section 90 of the Evidence Act in respect of 30 years’ old document coming from proper custody relates to the signature, execution and attestation of a document i.e. to its genuineness but it does not give rise to presumption of correctness of every statement contained in it.
  • The rent note produced by the UoI (allegedly executed by the forefathers of the plaintiff) did not prove anything. It could not be linked to prove the title. It was rejected observing as under:
    • “The rent note produced by the appellant/defendant No.1 before the court below does not prove anything in favour of the plaintiff/respondent. The same being a vague document is incapable of furnishing any information and, thus, is liable to be rejected. The said document does not make it clear as who has executed it and in whose favour the same stood executed. It does not bear any date as it cannot be ascertained when it was executed. The lease deed cannot be executed without the signature/thumb impression of the lessee. The said lease does not contain any signature/thumb impression of any lessee and also the tenure of the lease has not been mentioned therein. The rent has been mentioned as Rs.22/- without giving any detail as to whether it was per day, fortnightly, monthly, quarterly or yearly or for ever. More so, there is no reference to the said rent note in the pleadings contained in the plaint, therefore, it is just to be ignored.”
  • UoI produced the certified copies of the Extract from General Land Register prepared on 15.3.1948 in support of its case and denying title of the plaintiff.
  • The High Court rejected the same on the ground that the partition among the ancestors of the plaintiff had taken place prior to enactment of the Cantonment Land Administration Rules, 1925, though there is nothing on record to prove the said partition.
  • The General Land Register maintained under the Cantonment Act, 1924 and the Rules made thereunder are public documents and the certified copies of the same are admissible in evidence in view of the provisions of Section 65 read with Section 74 of the Evidence Act.
  • It is settled legal position that the entries made in General Land Register maintained under Cantonment Land Administration Rules is conclusive evidence of title.
    • (Vide: Chief Executive Officer v. Surendra Kumar Vakil, AIR 1999 SC 2294; and 
    • Union of India v. Kamla Verma, (2010) 13 SCC 511).
  • If the Will was ignored, there was nothing on record to show as how the plaintiff  could claim the title. The truth of contents of a document have to be proved like any other fact.
  • The Will in absence of any pleading could not be taken on record. More so, the Will was not proved in accordance with law i.e. Section 68 of the Evidence Act.
  • The court cannot travel beyond the pleadings as no party can lead the evidence on an issue/point not raised in the pleadings and in case, such evidence has been adduced or a finding of fact has been recorded by the Court, it is just to be ignored.
  • “The appellate courts (first appellate court as well as the High Court) examined the title of government instead of the plaintiff/respondent no.1. Such a course was not warranted. The title of government cannot be disputed. In any event possession of government for decades is not disputed. The plaintiff shifted the case from time to time but failed to prove his title.”
  • “The first appellate court as well as the High Court recorded a finding that the Union of India failed to prove its title over the suit land. The said courts did not realise that this was not the issue to be determined, rather the issue had been as to whether the plaintiff was the owner of the suit land.”

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