Should the Government Prove Title in Recovery Suits

Saji Koduvath, Advocate, Kottayam.

Introspection.

            •➧ Governments’ rights and powers based on the doctrine, ‘Eminent Domain‘ (arises from:  dominium eminens or ‘supreme ownership’ – Wikipedia) are accepted by all democratic jurisdictions, including the UK, US, and India.  
            •➧ In a dispute between the State and a private individual over property ownership, the burden rests upon the private individual to affirmatively establish his title supported by valid and legally admissible documentary evidence. The State enjoys a presumption of ownership. It becomes even stronger when certain factors are present—such as the land’s proximity to forest areas, coastal zones, or other ecologically sensitive locations—and when foundational revenue documents, including the General Land Register and Settlement Register, indicate a strong likelihood that the property belongs to the Government.
            •➧ In such a dispute, if the private person fails to establish a valid title, it is not open to him to contend that the State has also failed to prove its title or discharge any burden. This is because the law recognises certain presumptions in favour of the State, particularly in cases involving land situated near forests, coastal areas, etc.
            •➧ Disputes may arise when a piece of land is recorded as Government property in revenue or other official records, while a private individual asserts ownership based on a title deed in his possession. In such cases, courts place significant reliance on foundational documents, such as the General Land Register and the Settlement Register, as well as the prior deeds of the claimant. And, it will consider whether the doctrine nemo dat quod non habet—one cannot give what one does not have—is to be applied.

Key Decisions

  • Usha Kapoor v. Govt.  of India, 2014-16 SCC 481: (The General Land Register maintained by the Cantonment Board under the Cantonment Act and the Rules framed thereunder is a public document and the entries therein are conclusive evidence of title and of the fact that the land is covered by an old grant. Followed: Union of India v. Ibrahim Uddin, 2012-8 SCC 148; Union of India v. Kamla Verma, 2010-13 SCC 511; Chief Executive Officer v. Surendra Kumar Vakil, AIR 1999 SC 2294.)
  • Union of India v. Ibrahim Uddin, 2012(8) SCC 148: (It is a settled legal position that the entries made in the General Land Register maintained under Cantonment Land Administration Rules are conclusive evidence of title. …… The appellate courts examined the title of Government instead of the plaintiff/respondent No. 1. The title of Government cannot be disputed. ….. The issue had been as to whether the plaintiff was the owner of the suit-land. Relied on in: Union of India v. Robert Zomawia Street, AIR 2014 SC 2721; 2014-6 SCC 707)
  • R. Hanumaiah v. Secretary to Govt of Karnataka, (2010) 5 SCC 203: (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.)
  • Government of Kerala v. Joseph, AIR 2023 SC 3988 (When the land subject to 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.)
  • Chief Executive Officer v. Surendra Kumar Vakil, AIR 1999 SC 2294; 1999-3 SCC 555: (Had there been any conveyance or lease, it should have come from their custody. The Regulations, as well as the General Land Register maintained under the Cantonment Land Administration Rules of 1925, which are old documents, clearly indicate that the land is held on an old grant.)
  • Ameer Hussain v. Deputy Director of Consolidation, 1978 RD 204, 1977 AWC 1: (It would be deemed that the disputed land vested in the State, and if the other side fails, in law,  it would be taken that the land was vested in the State. Quoted in Mohd.  Shafiq v. Asstt.  Director Of Consolidation, Lucknow, 2011- 9 ADJ 24.)
  • Pierce Lessley & Company Ltd. v. Violet Ouchterlong Waoshare, AIR 1969 SC 843: (Ultimate ownership by the State of all property within the jurisdiction of the State.)
  • Chotte Khan v. Muhammed Obedulla Khan, AIR 1953 Nag. 361: (The State is the ultimate owner of all property.)
  • Sahana Industries v. State of Kerala,, 2021 KHC OnLine 7110, Kerala High Court, Devan Ramachandran, J.: (If the Settlement Register shows this land to be Government land, then certainly, the petitioner is obliged to establish their title over the property through competent documents. (Followed in: Chitharanjan v. State of Kerala, WP(C) No. 25830/2010, 24.01. 2025, Harisankar V. Menon, J.)
  • The Secretary of State for India v. Chimanlal Jamnadas, (1942)44 BomLR 295, AIR 1942 Bom 161: “Even assuming that the lease be not held as proved, the plaintiffs had no title to the land as rightly held by the lower Court and as nobody else was its owner at the time when it was occupied by the plaintiffs’ ancestor, the presumption under Section 37 of the Land Revenue Code which was also applicable before its enactment was that Government were its owner at that date. If the plaintiffs claim to remain in possession merely on the strength of their long possession in the past, though without any rightful title in them, Government had the right to assert their ownership which had not been divested by the act of the plaintiffs’ ancestor, and they had a right of resumption so long as the plaintiffs had not proved any acquisition of right in them by adverse possession against the Government.”
  • Union of India v. Laxman Yadneshwar Sathe, 2018-4 AllMR 157: “As held by the Hon’ble Apex Court therefore in the case of R. Hanumaiah and Another v. Secretary to Government of Karnataka, Revenue Department and Others (supra), the west lands are presumed to be the Government lands. Rights, entitlement and presumptions of title lie in favour of the Government, distinguished from those of private parties. As held by this Court also, way back in the year 1941, in the case of The Secretary of State for India in Council v. Chimanlal, Jamnadas and Others (1942) Indian Law Reports 358), the Government is presumed to be the owner in case of lands which are not proved to be of a private party.”
  • Satpal Nahar v. Union of India (Sanjay Karol, Tarlok Singh Chauhan, JJ.), 2017 Supp HimLR 2994; ILR 2017-4 (HP) 196: “Even otherwise, it is settled that 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 UK/England Decisions

  • Field Common Ltd v Elmbridge Borough Council (2008): When a local authority encroached the land of the claimant for the construction of a road, and the claimant sued for trespass, it was held that the claimant (private landowner) had to show that the council encroached. Since the defendant council asserted right of way by prescription over that land, it was held that the burden was on the council to prove the elements required for prescription.
  • Delaware Mansions Limited & Others v Lord Mayor and Citizens of the City of Westminster [2001]: In the case of encroachment by tree roots from property owned by Westminster City Council into property of the claimant, it was found that the claimant had to prove that roots had encroached, the existence of damage caused by those roots (for example, damage to drains/walls etc.). The technical distinction between trees being “self‑sown” versus planted, was rejected.
  • Entick v Carrington [1765]: Government agents entered private property under warrant, seized documents. It was held that the claimant had to show that the defendants entered without lawful authority/beyond their legal power. It was also found that the defendants would have to show lawful authority (warrant, statutory power etc.) they had the burden  to show they were acting under law.

The US Decisions

  • United States v. Clarke, 445 U.S. 253 (1980): The US Supreme Court, while considering the burden of proof, made it clear that in ‘inverse condemnation’ the landowner must bring the claim, and that the landowner has the burden to demonstrate that a ‘taking’ in fact occurred. It is pointed out: “To accomplish a taking by seizure, on the other hand, a condemning authority need only occupy the land in question. Such a taking thus shifts to the landowner the burden to discover the encroachment and to take affirmative action to recover just compensation.”
  • Vaughn v. City of Muskogee, Oklahoma Civ. App., 2015: The Oklahoma Court of Civil Appeals held that in an ‘inverse condemnation’ proceeding, the landowner has the burden of proving that a taking has occurred, whether or not the government files an objection.
  • Fowler Irrevocable Trust 1992 v. City of Boulder (Colorado, 2001): The Colorado Supreme Court held that in an inverse condemnation action, the landowner has the burden to prove both (i) a ‘taking’ has occurred and (ii) the amount of compensation.

Will ‘Long Possession’ Invite Civil Suit by the State?

In Government of Andhra Pradesh v. Thummala Krishna Rao, AIR 1982 SC 1081, 1982 (2) SCC 134 (Y.V. Chandrachud,A. Varadarajan, Amarendra Nath Sen, JJ.), the Supreme Court found that the respondents and their predecessors had long possession;  and therefore, a Civil Court enquiry on title was required on two matters:

  • 1. whether the title was vested in the Government
  • 2. whether the title by adverse possession was perfected (by the private person) against the Government of Andhra Pradesh.

The Apex Court said it as under:

  • “The conspectus of facts in the instant case justifies the view that the question as to the title to the three plots cannot appropriately be decided in a summary inquiry contemplated by sections 6 and 7 of the Act. The long possession of the respondents and their predecessors-in- title of these plots raises a genuine dispute between them and the Government on the question of title, remembering especially that the property, admittedly, belonged originally to the family of Nawab Habibuddio from whom the respondents claim to have purchased it. The question as to whether the title to the property came to be vested in the Government as a result of acquisition and the further question whether the Nawab encroached upon that property thereafter and perfected his title by adverse possession must be decided in a properly constituted suit. May be that the Government may succeed in establishing its title to the property but until that is done, the respondents cannot be evicted summarily.”

Govt. of AP v. Thummala Krishna Rao: Critical Appreciation

As pointed out in V. Laxminarasamma VS A. Yadaiah (S.B. Sinha, A.K. Ganguly & R.M. Lodha, JJ.), 2009-5 SCC 478, the ‘long possession’ and ‘adverse possession’ were considered in Thummala Krishna Rao case for the following:

  • (i) A suit for possession filed by Osmania University was dismissed earlier on the premise that Habibuddin had perfected his title by adverse possession.
  • Thereafter Osmania University requested the Government of Andhra Pradesh to take steps for summary eviction

It is clear that the Government of AP need not have gone for a civil suit, if it was definite –

  • (i) the title of the disputed property vested with the Government and
  • (ii) there was no scope for an argument by the private person as regards adverse possession.

In V. Laxminarasamma v. A. Yadaiah (S.B. Sinha, A.K. Ganguly & R.M. Lodha, JJ.), 2009-5 SCC 478, in a Reference for determination of a question of adverse possession — whether it would come within the purview of the jurisdiction of Special Tribunal and/or Special Court constituted under the AP Land Grabbing (Prohibition) Act, 1982, noticing purported conflict in the decisions of two Division Benches — held as under:

  • 45. … We are not oblivious of a decision of this Court in Government of Andhra Pradesh v. Thummala Krishna Rao and Anr. [(1982) 2 SCC 134] wherein it was held that a question of title could not properly be decided in a summary enquiry contemplated by Sections 6 and 7 of the A.P. Land Encroachment Act, 1905. In that case, the principal question, which arose for consideration, was as to whether the property in question was in possession of the family of one Habibuddin for a long time and, thus, the same had not vested in the Government by reason of a land acquisition proceeding initiated for acquisition of the land for Osmania University. In that case, Osmania University filed a suit for possession which was dismissed on the premise that Habibuddin had perfected his title by adverse possession. Thereafter Osmania University requested the Government of Andhra Pradesh to take steps for summary eviction of the persons who are not in authorized occupation of the said plots. The observations made therein must be held to have been made in the aforementioned factual matrix.”
  • See also: Mandal Revenue Officer v. Goundla Venkaiah, AIR 2010 SC 744; 2010-2 SCC 461.

It is further clear from State of Rajasthan v. Padmavatidevi, 1995 Suppl(2) SCC 290, which observed as under:

  • “6. As noticed earlier, Section 91 of the Act prescribes a summary procedure for eviction of a person who is found to be in unauthorised occupation of Government land. The said provisions cannot be invoked in a case where the person in occupation raises bona fide dispute about his right to remain in occupation over the land. Dealing with similar provisions contained in Section 6of the Andhra Pradesh Land Encroachment Act, 1945, this Court in Govt. of A.P. v. Thummala Krishna Rao (1982) 2 SCC 134 : (1982) 3 SCR 500 has laid down that the summary remedy for eviction provided by Section 6 of the said Act could be resorted to by the Government only against persons who are in unauthorised occupation of any land which is the property of the Government and if the person in occupation has a bona fide claim to litigate he could not be ejected save by the due process of law and that the summary remedy prescribed by Section 6 was not the kind of legal process which is suited to an adjudication of complicated questions of title. For the same reasons, it can be said that summary remedy available under Section 91 of the Act is not the legal process which is suited for adjudication of complicated questions of title where the person sought to be evicted as an unauthorised occupant makes a bona fide claim regarding his right to be in possession. In such a case the proper course is to have the matter adjudicated by the ordinary courts of law.
  • 7. In the present case, Respondent 1 has put forward a bona fide claim about her right to remain in occupation over the land. The said claim raises questions involving applicability and interpretation of various laws and documents as well as investigation into disputed questions of fact involving recording of evidence. These matters could not be satisfactorily adjudicated in summary proceedings under Section 91 of the Act and can be more properly considered in regular proceedings in the appropriate forum.
  • 8. In view of the fact that these proceedings have been pending for the past 25 years, we were not disinclined to consider the claim of Respondent 1 that she is entitled to remain in occupation of the land.”
  • (Quoted in: Kaikhosrou (Chick) Kavasji Framji v. Union of India, AIR 2019 SC 1692; 2019 20 SCC 705)

The axioms, in the Government of AP v. Thummala Krishna Rao, on ‘long possession‘ and the scope of adjudication on ‘title by adverse possession‘ were not seen followed in subsequent pronouncements. Later decisions have clarified and reinforced certain key legal principles, including:

  • 1. 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 (R. Hanumaiah v. Secretary to Govt of Karnataka, (2010) 5 SCC 203).
  • 2. 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 (Government of Kerala v. Joseph, AIR 2023 SC 3988).

Part I

State is the Ultimate Owner: Escheat and Bona Vecantia – Incidents of Sovereignty

Our Apex Court, in Pierce Leslie and Co. Ltd. v. Violet Ouchterlong Waoshare,, AIR 1969 SC 843, appraised the principles of escheat in the Constitutional context (particularly, Article 296 of the Constitution) and held as under:

  • “In this country escheat is not based on artificial Rules of Common Law and is not an incident of feudal tenure. It is an incident of sovereignty and rests on the principle of ultimate ownership by the State of all property within its jurisdiction.”

Also read:

Article 296 of the Constitution

Article 296 of the Constitution of India, provides as under:

“Subject as hereinafter provided, any property in the territory of India which, if this Constitution had not come into operation, would have accrued to His Majesty or, as the case may be, to the Ruler of an Indian State by escheat or lapse, or as bona vacantia for want of a rightful owner, shall if it is property situate in a State, vest in such State, and shall, in any other case, vest in the Union.”

State is the Ultimate Owner of the Property – Recognised Long Back

In Pierce Leslie and Co. Ltd. v. Violet Ouchterlong Waoshare (supra) the Supreme Court relied on the Privy Council decision in 1860 in Collector of Massulipatnam v. Cavali Venata Narrainapeli, (1859-61) 8 MIR 500, where it was declared that the doctrine of bona vacantia or escheat was a part of the law in India. In Collector of Masulipatam v. Cavary Vancata Narrainappah it was observed as under:

  • “There can be, legally speaking, no unowned property, the law of escheat intervenes and prevails, and is adopted generally in all Courts of the Country alike. Private ownership not existing, the State must be owner as ultimate Lord.”

The same principle is iterated by Sinha, CJ, in in Chhote Khan v. Mohammad Obedulla Khan, AIR 1953 Nag 361, as under:

  • “The State Government is not in the position of the assignee interest of the proprietor, nor is it his successor in title, The State does not claim the proprietary interest, either through or under the outgoing proprietor. The State, as the ultimate owner of all property situate within its boundaries, naturally becomes, the owner of all property in villages, except those interests which have been recognized by the State as still vesting in or held by individuals in their rights as cultivators (‘malik-makbuza’ or otherwise) or as house-holders by virtue of being inhabitants of the village, or as having acquired by purchase or otherwise house-sites or buildings on house-sites.”

General Law of Universal Application

In Amir Hussain v. Deputy Director of Consolidation, 1978 RD 204, it had been noted as under:

  • “All important systems of Law provide for escheat to the Crown or Government of the property of a deceased person in the absence or failure of heirs.”

It is pointed out in Biswanath v. Prafulla Kumar Khan, AIR 1988 Cal 275, also that it is a General Law of universal application that ‘private ownership not existing, the State must be the owner as the ultimate Lord’.

Private Person to Prove his Title; State need not Prove Title

  • From Article 296 of the Constitution of India, it is clear that where a property:
    • is abandoned by all,
    • that has no rightful owner,
    • over which all claims raised are invalid, and
    • over which none can raise a valid claim
  • it vests with State.

Therefore, when a dispute comes as to the ownership of property between State and a ‘private person’, and the private person fails to prove his title, it is not Constitutional for him to argue that ‘the State also failed to prove its title and failed in discharging its burden’.

In Amir Hussain v. Deputy Director of Consolidation, 1978 RD 204, 1977 AWC 1, it observed as under:

  • “But, in a case where in proceedings under Section 9, the consolidator authorities reached at the conclusion that both the claimants had failed to prove their title, the necessary consequence of the finding was that the land had to be recognised as having vested in the State and in the Gaon Sabha. … To require a Gaon Sabha to file a claim at the commencement of the consolidation proceedings would be placing an impossible burden upon the Gaon Sabhabecause at that stage the Gaon Sabha could not possibly be in a position to know that the claim of the contending parties would be negatived and the land would be deemed to have vested in the State. In our opinion, the proper course in these cases is that if the authorities find that both the parties have failed to prove their title, and that in law the land has vested in the State under the Rule of escheat, they, in order to give effect to their findings, should direct the land to be recorded in the name of the Gaon Sabha.”
  • (Quoted in Mohd.  Shafiq v. Asstt.  Director Of Consolidation, Lucknow, 2011- 9 ADJ 24.)

In Vishwa Vijai Bharti v. Fakhrul Hasan, AIR 1976 SC 1485, it is held as to the presumption of correctness on revenue-records as under:

  • “It is true that the entries in the revenue record ought, generally, to be accepted at their face value and courts should not embark upon an appellate inquiry in to their correctness. But the presumption of correctness can apply only to genuine, not forged or fraudulent, entries. The distinction may be fine but it is real. The distinction is that one cannot challenge the correctness of what the entry is the revenue record states but the entry is open to the attack that it was Made fraudulently or surreptitiously. Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title.”

Revenue Settlement Registers of Travancore in 1910, Basic Record of Land matters

The Kerala High Court held in Mohandas v. Santhakumari Amma, 2018-3 KLT 606 as under:

  • “We notice that, a new survey and settlement was undertaken in the erstwhile Travancore State for the purpose of putting in place a sound Revenue administration. Accordingly, it appears that a complete survey and reassessment of the entire State ’embracing an accurate measurement, demarcation, mapping and valuation of properties of every description and a registration of titles, as the basis of a sound Revenue Administration’ was carried out. On the basis of such a statement a proclamation was issued by the Maharaja of Travancore on 14th Kumbhom 1061 corresponding to 24th February 1886.”

If Settlement Register says Government Land, Petitioner to Establish Title

In Vallikunnil Janaki Amma v. Sree Amruthamangalam Kshethram Moorthi, Kozhikode, 2014 (1) KHC 57, Kerala High Court, referring to the decision of the Apex Court in Sukhdev Singh v. Maharaja Bahadur of Gidhaur, AIR 1951 SC 288, observed as under:  

  • “Even though Ext. A2 is only an extract of the Settlement Register/ Adangal extract which may not by itself prove or confer title to a party in whose name the property stood registered, it can be accepted as evidence of title when there is no contra evidence. Admittedly it is adjacent to Amruthamangalam temple. The temple compound and this suit property which is adjacent to the temple are shown to be of Amruthamangalam Devaswom as per revenue record. In these circumstances, the contention that this property did not and does not belong to the temple/Devaswom cannot be sustained at all.” (Referred to in: Kunhimangalam Devaswam v. State of Kerala (2022 KHC OnLine 7354), 6 April, 2022, Anil K. Narendran, J. and Chitharanjan v. State of Kerala, WP(C) No, 25830/2010,24.01. 2025, Harisankar V. Menon, J.)

In Sahana Industries v. State of Kerala, in WP(C) 20520/2021 (2021 KHC OnLine 7110), Kerala High Court (Devan Ramachandran, J.) held (October 11, 2021) as under:

  • “… If the Settlement Register shows this land to be Government land, then certainly, the petitioner is obliged to establish their title over the property through competent documents”. (Referred to in: Chitharanjan v. State of Kerala, WP(C) No. 25830/2010, 24.01. 2025, Harisankar V. Menon, J.)

In Chitharanjan v. State of Kerala, WP(C) No. 25830/2010 (2025:KER:5422) 24.01. 2025 (Harisankar V. Menon, J.) it is pointed out as under:

  • “7. …. In the settlement register at Ext. R1(a), there is no dispute that the entire properties under old Survey No. 2211 having an extent in excess of 107 Acres are shown as “puramboke“….
  • 8…. As regards the petitioner in WP(C) No. 25830 of 2010 also, the title is traceable to some documents of the Attingal Sub Registry of the yeas 1959, 1957 and 1061. But, it is categorically found that even in these documents, there is no mention as to the receipt of pattayam with respect to the property in question.
  • 11. …. As already noticed, the settlement register describes the property as “Puramboke”. … In view of the discussions made above, I am of the opinion that the contentions raised by the learned Senior Government Pleader with respect to the malpractices committed, cannot be brushed aside.
  • 13….. However, I notice that WP(C) No.25830 of 2010 the entry with respect to the Settlement Register is to be considered at first, which admittedly is against the petitioner. The case of the State is that some foul play is carried out subsequently at the instance of those interested and therefore, the subsequent entries cannot be acted upon.
  • 14. On the other hand, the learned Government Pleader relied on Vallikunnil Janaki Amma and Ors. v. Sree Amruthamangalam Kshethram Moorthi, Kozhikode and Anr. [2014 (1) KHC 57], which laid down the principle with respect to the acceptability/relevance of the Settlement Register. As already noticed, I have found that the Settlement Register describes the property under old Survey No. 2211 as “Puramboke”. To the same effect is the judgment of a learned Single Judge in WP(C) No. 20520 of 2021 dated 11.10.2021. This Court further notices the judgment of the Apex Court in Suraj Bhan and Ors. v. Financial Commissioner and Ors. [(2007) 6 SCC 186] which held that mere entry in the revenue records does not confer title on a person. As already noticed, in view of the entries in the Settlement Register, the requirement of an appropriate assignment cannot be lost sight of.”

In Travancore Devaswom Board v. Mohanan Nair M.N.,  (2013) 3 KLT 132, (T.R. Ramachandran Nair, J ; A.V. Ramakrishna Pillai, J), it is observed as under:

  • “18. …. The land register as well as the settlement register will establish the plea of the Board that the property having an extent of 2.26 acres is Temple property. Thus, Section 27 of Act of 1950 is clearly attracted and the property is clearly Devaswom property.”
  • “51. As far as the property herein is concerned, the land register and the settlement register produced herein are relevant. The property having the entire extent of 2.26 acres is described as ”kavu” (holy grove) in the settlement register. In the land register also it is described as ”kshethram irippu sthalam” (property where the temple is situated). No other document or other evidence is there to prove the contrary. Therefore, these documents will definitely show that the item of property will fit in with the requirement of Section 3(1)(x) of the Act.”
  • “75. … Apart from that, in the light of Section 27 of the Travancore Cochin Hindu Religious Institutions Act and in the light of the settlement register and land register, the property is described as Temple puramboke and not Government puramboke. Further Government lands are covered by the exemption u/s 3(1)(x) of the Land Reforms Act and therefore he cannot claim any fixity of tenure. There is no claim by the Government here to the property.”

Part II

Presumptions in Favour of Govt. Lands

(a) There is a presumption in favour of Government – all lands which are not the property of any person or which are not vested in a local authority, belong to the Government.

(b) In order to 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.

(c) In Pierce Lessley & Company Ltd. v. Violet Ouchterlong Waoshare, AIR 1969 SC 843, it was held as under –

  • “In this country escheat is not based on artificial rules of common law; and is not an incident of feudal tenure.  It is incident sovereignty and rests on principle of ultimate ownership by the State of all property within the jurisdiction.”

(d) In Chotte Khan v. Muhammed Obedulla Khan, AIR 1953 Nag. 361, held

  • “the State is the ultimate owner of all property situate within its boundaries”.

(e) In Ameer Hussain v. Deputy Director of Consolidation, 1978 RD 204, 1977 AWC 1, it is held that it would be deemed that the disputed land vested in State and if the other side fails, in law,  it would be taken that the land was vested in State. (Followed in: Mohd. Shafiq v. Assistant Director of Consolidation, 2011-9 ADJ 24)

(f) In R. Hanumaiah v. Secretary to Government of Karnataka, Revenue Department, (2010) 5 SCC 203, it was 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. …”

(g) The law as to title of property is laid down in Union of India v. Ibrahim Uddin, 2012(8) SCC 148 as under –

  • “The appellate courts examined the title of Government instead 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 said courts did not realize 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.”

(h) In Government of Kerala v. Joseph, AIR 2023 SC 3988 – It was pointed out –

  • “When the land subject to proceedings wherein adverse possession has been claimed, belongs to 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.”

(i) In State of Kerala v. Pathrose Mathai, 1970 Ker LJ 517; 1969 KerLT 507, it was held as under:

  • “There is also no presumption that a person who enters Government land, improves the same & keeps possession, is exercising acts hostile to the title of the State. This is because it is not uncommon for persons to enter upon Government land & reclain and improve such land in the hope of ultimately getting registry or lease of such land.”

(j) In Union of India v. Robert Zomawia Street, AIR 2014 SC 2721; 2014-6 SCC 707, the High Court allowed the second appeal preferred by the plaintiff and decreed the plaintiff’s suit.  The Supreme Court reversed the decree. The Apex Court quoted para 19 of the High Court Judgment.  The following can be deduced from paragraph 19:

  • No evidence to prove the old grant by the State.
  • There can be no presumption of ownership in favour of the State.
  • The plaintiff had created a high degree of probability that he was the owner.
  • The onus to prove ownership had been shifted to the State.
  • Apart from admissions, no document to indicate the old grant.
  • The state miserably failed to discharge such onus.
  • The plaintiff was able to prove his title to the suit land.
  • The courts below put the onus of proving title wrongly upon the plaintiff.
  • The concurrent findings of the courts below were consequently perverse.
  • It could not have been sustained in law and are liable to be interfered with in the second appeal.

The Apex Court, while reversing the findings of the High Court, laid down the following –

  • 1. The entries made in the GLR maintained under the Cantonment Land Administration Rules are conclusive evidence of title.
  • 2. Relied on the following findings in Union of India v. Ibrahim Uddin, (2012) 8 SCC 148) –
    • The General Land Register and other documents maintained by the Cantonment Board under the Cantonment Act, 1924 and the Rules made thereunder were public documents.
    • 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 a settled legal position that the entries made in the General Land Register maintained under the Cantonment Land Administration Rules are conclusive evidence of title.
  • 3. Also relied on Union of India v. Kamla Verma (2010) 13 SCC 511, to emphasise that the documents under the GLR were conclusive evidence of title.
    • The land in question was originally permitted to be used by a civilian on an “old grant” basis.
    • This fact is reflected in the lease deed executed by the late Shri Roop Krishan Seth.
    • Even in the sale deed executed in favour of the respondent, it has been stated that the vendor was an “occupancy-holder of the land and trees of the aforesaid premises and owner of superstructure of the bungalow…”.
    • Even in the land register, the Government of India has been shown as a “landlord” and Shri Mohan Krishan Seth has been shown to have occupancy right, and his nature of right was shown to be of “old grant”.
  • 4. Also relied on Chief Executive Officer v. Surendra Kumar Vakil, (1999) 3 SCC 555
  • 5. The argument that the word “held” meant “to own with legal title” was rejected. Therefore, the plaintiff cannot be a tenant was not accepted.
  • 6. The GLR showed that the Government was the Landlord.
  • 7. The GLR provided for the ‘table’ of rent and the details of the property.
  • 8. It was not possible to accept the contentions – since the State failed to produce the actual grant documents and there was no explanation, (1) adverse inference had to be drawn against the State, and (2) the grant not being proved, the plaintiff’s suit deserved to be decreed.
  • 9. The GLR supported the defendants’ contention that the plaintiff held the land on an old grant basis.
  • 10. The plaintiff, on the other hand, has not produced any document to show the title of his predecessor-in-interest. Nemo dat quid non habet is the maxim, which means no one gives what he does not possess, aptly applied in the case.
  • 11. The classification of the land as B3 land also points towards the same conclusion.

The principles in Sec. 110 and 114 CANNOT be invoked –

It is held in the following decisions that the Principle ‘Possession Follows Title’ does not apply in the following situations-

  • The facts (on title/possession) are known (M.  Siddiq   v. Mahant Suresh Das, 2020-1 SCC 1)
  • There is evidence of independent possession/title (Bhavnagar Municipality v. Union of India, AIR 1990 SC 717).

As we find in M.  Siddiq  v. Mahant Suresh Das (Ayodhya Case), 2020-1 SCC 1, Section 110 or the principle ‘title follows possession‘ applies when the facts disclose no title in either of the disputants in which case, possession alone decides (presumption cannot be invoked when the facts are known). But, with respect to the principle ‘possession follows title‘, as we find in Anathula Sudhakar  v. Buchi Reddy, AIR 2008 SC 2033, if only title is proved by one party, then only the principle ‘possession follows title’ comes in.

It is equally important that both these principles on presumption, ‘possession follows title’ and ‘title follows possession’, cannot be invoked in cases where:

  • (i) the defendants do not claim title/possession to the suit property (Devasia @ Kutty v. Jose, 2014-4 KLJ 41; 2014-3 KLT(SN) 50).
  • (ii) the facts (on title/possession) are known (M.  Siddiq   v. Mahant Suresh Das, 2020-1 SCC 1), or
  • (iii) there is evidence of independent possession/title (Bhavnagar Municipality v.. Union of India, AIR 1990 SC 717).

Mutation will not confer ‘Title’ (only Presumption on Possession)

It is a settled proposition of law (i) that the mutation entry in revenue documents will not confer any right, title or interest in favour of any person and (ii) that the mutation in the revenue record is only for the fiscal purpose. Mutation is made mainly based on possession. After pointing out these legal propositions, it is observed in Jitendra Singh v. The State of Madhya Pradesh, 2021 SCC OnLine SC 802, as under:

  • “6. Right from 1997, the law is very clear. In the case of Balwant Singh v. Daulat Singh (D) By Lrs., reported in (1997) 7 SCC 137 , this Court had an occasion to consider the effect of mutation and it is observed and held that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. Similar view has been expressed in the series of decisions thereafter.
  • 6.1 In the case of Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186 , it is observed and held by this Court that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. Entries in the revenue records or jamabandi have only “fiscal purpose”, i.e., payment of land revenue, and no ownership is conferred on the basis of such entries. It is further observed that so far as the title of the property is concerned, it can only be decided by a competent civil court. Similar view has been expressed in the cases of Suman Verma v. Union of India, (2004) 12 SCC 58; Faqruddin v. Tajuddin (2008) 8 SCC 12; Rajinder Singh v. State of J&K, (2008) 9 SCC 368; Municipal Corporation, Aurangabad v. State of Maharashtra, (2015) 16 SCC 689; T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259; and Ajit Kaur v. Darshan Singh, (2019) 13 SCC 70.”

Revenue Records Not Confer Presumptive Value on Title

The Supreme Court in  Smt. Bhimabai Mahadeo Kambekar v. Arthur Import and Export Company (2019) and Commissioner, Bruhath Bangalore Mahanagra Palike v. Faraulla Khan (2021)observed that mutation in revenue records will not confer or lose title (Relied on Sawarni (Smt.) v. Inder Kaur (1996) 6 SCC 223, Balwant Singh & Anr. v. Daulat Singh (dead) by L.Rs. & Ors. (1997) 7 SCC 137,  Narasamma & Ors. v. State of Karnataka & Ors. (2009) 5 SCC 591).

As pointed out above, it is observed by the Apex Court in State of AP v. Star Bone Mill & Fertiliser Company, (2013) 9 SCC 319 that a revenue record is not a document of title; it merely raises a presumption in regard to possession (Quoted in M.  Siddiq   v. Mahant Suresh Das, 2020-1 SCC 1). The argument as to ownership based upon entries in the revenue records had been negated in Prahlad Pradhan  v. Sonu Kumhar,(2019) 10 SCC 259. It was held that the revenue record does not confer title to the property nor do they have any presumptive value on the title. (Quoted in Prabhagiya Van Adhikari Awadh Van Prabhag v. Arun Kumar Bhardwaj (SC): 2021)

Effect of Travancore Govt. Leases after Royal Pattom Proclamations of 1040 and 1061

Now a question arises: What is the impact of 1040 and 1061 (1886) Proclamations over the ‘Government Land Leases’ made after 1061 (1886)? Do such leased lands qualify as “estate” under Article 31A of the Constitution?

The legitimate answer is that the lands leased out (by the Government) after 1061 (1886) do not acquire the rights of ‘permanency of tenure’ or attain the ‘proprietary interest’ conferred by the Pattom Proclamations of 1040 and 1061. If such rights are axiomatically conferred as a matter of course, the result would be that the Government cannot ‘lease’ lands (after the Proclamations), for, the lease character would be lost at the moment it is made.

In Rev. Fr. Victor Fernandez v. Albert Fernandez (five Judge Bench), 1971 Ker LT 1, AIR 1971 Ker 168 (Per PT Raman Nayar, CJ, T Krishnamoorthy Iyer, P Unnikrishna Kurup, JJ.), concluded that the land covered by the Royal Proclamations of 1040 and 1061 were “estates” falling under Art. 31A of the Constitution. It was on the finding that the Proclamation “secured permanency of tenure”, and “proprietary interest” in the soil. It was observed as under:

  • “7. It is impossible to accept the contention advanced on behalf of the plaintiff in this case that,even after the Proclamation of 1040, the holders of these lands had no proprietary interest whatsoever in the soil and remained tenants in the strict sense of that term, with only the right of enjoyment, the only difference being that they secured permanency of tenure, the Government still remaining the full and absolute proprietor of the soil.”

Therefore, there is a clear difference between leases made before and after the Proclamations, and the rights conferred by the Proclamations do not apply to leases made after them.

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Book No. 3: Common Law of CLUBS and SOCIETIES in India

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