A. K. Sreekumar v. Director, Vigilance And Anti Corruption Bureau (K Babu, J.), 12 Dec, 2024 (Ker) considered whether selling the ‘Government-seats’ to private students after receiving huge capitation amount, and its misappropriation, by the members of a charitable society, attract the Prevention of Corruption Act.
The court found –
the allegations fall under ‘public duty’ (as defined in Section 2(b) of the Prevention of Corruption Act, 1988) to attract Section 13 of the Act; and
prior approval under Section 17A of the P.C. Act is not necessary for the court to invoke its provisions.
Facts of the case:
The petitioner alleged a conspiracy among the members of a charitable society registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955, which runs a college.
The suspected persons, in furtherance of their common intention, denied admission to eligible students in the Pharmacy College in the Government seats and sold the said seats to private students after receiving a huge capitation amount and misappropriated the amount so obtained to their credit causing wrongful loss to the society and wrongful monetary gain to them.
It is in violation of Section 5 read with Section 15 of the Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-Exploitative Fee & Other Measures to Ensure Equity & Excellence in Professional Education) Act, 2006.
Section 13 of the Prevention of Corruption Act, 1988 and Sections 406 and 409 of the Indian Penal Code.
The Vigilance and Anti-corruption Bureau (VACB) refused to take action on the complaint.
Thereon, the petitioner filed a complaint under Sections 190 and 200 of the Code of Criminal Procedure before the Court of Enquiry Commissioner and Special Judge, Kottayam, and prayed for conducting an inquiry under Section 202 or for a direction to conduct investigation under Section 156(3) Cr.P.C.
The Special Judge posted the matter for report from the VACB.
The VACB took the stand – approval under Section 17A of the Prevention of Corruption Act, 1988 from the competent authority is required.
The petitioner thereafter filed an application seeking investigation under Section 156(3) Cr.P.C.
The Special Court dismissed the prayer and adjourned the matter, instructing the petitioner/complainant to produce Section 17A approval under the PC Act.
The Vigilance submitted an application seeking prior approval from the competent authority.
The Government, by Ext.P5 decision, took the stand that no vigilance enquiry was to be conducted. The reason showed was that the allegations had already been referred to the Admission Supervisory Committee for Medical Education.
The petitioner challenged the legality of the order passed by the Government (Ext.P5).
Relevant legal Provisions
Section 2(b) of the P.C. Act defines ‘public duty’ as follows:-
“public duty” means a duty in the discharge of which the State, the public or the community at large has an interest.”
Section 2(c) defines ‘public servant’.
(c) “public servant” means,-
(i) … (to) (vii) ….
(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty;……”
Section 17A of the PC Act provides –
no police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under the PC Act without prior approval from appropriate authority.
Legal Issues
Whether the allegations attract a ‘public duty’ and
Whether prior approval under Section 17A P.C. Act is necessary.
Findings of Court:
1. “ ‘Public duty’ as defined in Section 2(b) of the PC Act, means a duty in the discharge of which the State, the public or the community at large has an interest. Thus a ‘public servant’ must be under the positive command of a State law or valid executive direction to discharge such a ‘public duty’. If a body or a corporation exercises a State function under the obligation of the existing laws, it is to be treated as a discharge of ‘public duty’.”
Rulings relied on
Karthikeya Varma v. Union of India, 2015 KHC 567 (distinguished).
Central Bureau of Investigation, Bank Securities and Fraud Cell v. Ramesh Gelli and Others [(2016) 3 SCC 788],
P.V.Narasimha Rao v. State (CBI/SPE) [(1998) 4 SCC 626],
Manish Trivedi v. State of Rajasthan [(2014) 14 SCC 420]
Modern Dental College & Research Centre v. State of Madhya Pradesh [(2016) 7 SCC 353],
K.Veeraswami v. Union of India [(1991) 3 SCC 655],
State of Gujarat v. Mansukhbhai Kanjibhai Shah (AIR 2020 SC 2203),
Subramanian Swamy v. Manmohan Singh [(2012) 3 SCC 64],
2. The approval under Section 17A of the PC Actarises only when the offence is relatable to any recommendation made or it is a decision taken by such public servant in discharge of his official functions or duties. So, this Court is of the view that prior approval, as provided in Section 17A, is not applicable (for investigation) in the present facts.
Rulings relied on
Sankarabhat and Others v. State of Kerala (2021 (5) KHC 248) and
Venugopal V. and Others v. State of Kerala and Another (2021 KHC 565)
Result:
Ext. P5 order (no vigilance enquiry be conducted, for the allegations had already been referred to the Admission Supervisory Committee for Medical Education) is quashed.
Respondent Nos.1 and 2 are directed to conduct a preliminary enquiry into the matter.
The relevant provision in the Limitation Act, 1963, that fixes the limitation period for a suit for declaration of title is Art. 58. It stipulates 3 years “when the right to sue first accrues”. For recovery, the limitation period is 12 years, under Art. 65, “when the possession of the defendant becomes adverse to the plaintiff”.
The Supreme Court decision, Mallavva v. Kalsammanavara Kalamma, 2024 INSC 1021, 2024 SCC OnLine SC 3846, JB Pardiwala and R. Mahadevan, JJ., considered – what is the period of limitation for a suit in which (both) declaration of title and recovery are sought for.
It is held that Article 65 would be the relevant provision (and the period of limitation would be 12 years); and not Article 58 (which stipulates 3 years as the period of limitation).
Mallavva v. Kalsammanavara Kalamma, 2024 INSC 1021, Facts, in Brief
The suit was (originally filed) for declaration of title, and injunction. The trial held that the plaintiff was the absolute owner. But the suit was dismissed for it was found that the plaintiff was not in possession, and she failed to seek ‘possession’.
The legal heirs of the plaintiff who filed the 1st Appeal amended the plaint to include a prayer for possession, alternatively.
The First Appellate Court reversed the judgment, and decreed the suit, allowing the First Appeal. It observed –
(i) When the suit is for possession based on title, once the title is established, unless the defendant proves adverse possession, the plaintiff cannot be non suited; and
(ii) the defendants, nowhere pleaded that they were in possession of the suit property, adverse to the interest of the plaintiff.
The defendants filed 2nd appeal before the High Court. The High Court dismissed the appeal. It observed –
The plaintiff is the absolute owner of the suit property, entitled for possession.
The case is not covered under Article 58 of the Limitation Act (which requirs filing suit within 3 years of cause of action).
The defendants had no case – they were in adverse possession.
Article 65 of the Limitation Act has to be applied (under which the defendant should have claimed adverse possession, to nonsuit plaintiff) and consequently, the suit of the plaintiff cannot be held as barred by limitation.
In other words, when the suit is based on title, the question of limitation does not arise, unless the defendant has pleading on adverse possession.
In such circumstances (the High Court being upheld the decree in favour of the plaintiff), the defendants came before the Apex Court.
Part I
Adverse Possession
In the factual situation of the case, the defendant mainly founded its argument in the Apex Court on ‘adverse possession’. The Apex Court (Mallavva v. Kalsammanavara Kalamma, Dec. 20, 2024: 2024 INSC 1021) found –
(i) the plaintiff has established her title and
(ii) the case raised by the defendant on adverse possession was not one pleaded or established.
Following legal assertions were placed by the Apex Court (referring its earlier decisions).
1. Suit-On-Title – Plaintiff Cannot Be Non-Suited, Unless Adverse Possession
Indira v. Arumugam, (1998) 1 SCC 614: If title is established in a suit-on-title (for possession) – plaintiff cannot be non-suited unless defendant proves adverse possession.
2. Limitation Article Applicable is – that provided For “Further Relief” (to Declaration)
C. Mohammad Yunus v. Syed Unnissa, AIR 1961 SC 808: In a suit for declaration with a “further relief” (injunction), the limitation would be governed by the Article governing the suit for such further relief. The suit for a declaration for a right cannot be held to be barred so long as Right to property subsists.
3. Mere Possession For A Long Period – No Adverse Possession
Government of Kerala v. Joseph, AIR 2023 SC 3988: Mere possession for a long period does not grant right of adverse possession.
The Supreme Court quoted from Government of Kerala v. Joseph which asserted the following legal assertions (referring the following decisions) –
(i). Some Overt Act ForAdverse Possession
Gaya Prasad Dikshit v. Dr. Nirmal Chander, (1984) 2 SCC 286: There must be some overt act on the part of the licensee indicating assertion of hostile title.
(ii). Title And Adverse Possession – Contradictory pleas
Annasaheb Bapusaheb Patil v. Balwant (1995) 2 SCC 543: Independent title and adverse possession – will stand as contradictory pleas.
(iii). If Permissive Possession, Disclaim That Right
Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639: Possession under the agreement – to bring-home plea of adverse possession, the claimant thereof should disclaim his right and plead and prove independent hostile adverse possession.
Sri Uttam Chand v. Nathu Ram, AIR 2020 SC 461, has reiterated this principle.
(iv). By Limitation Act, 1963, Onus On Claimant of Adverse Possession
P.T. Munichikkanna Reddy v. Revamma (2007) 6 SCC 59: Adverse Possession – In terms of Articles 142 and 144 of the Limitation Act, 1908, theburden of proof was on the plaintiff to show within 12 years, 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.
Reiterated this principle in Janata Dal Party v. Indian National Congress (2014) 16 SCC 731
Before the Apex Court, the defendant put forwarded an argument on ‘Multiple Causes of Action’ and claimed that the limitation begins to run from the limitation-period for declaration (3 years); and not from the limitation provided for ‘possession’ (12 years), for the law directs that the limitation-period starts ‘When Right To Sue First Accrued’. The defendants relied on (i) Khatri Hotels Private Limited v. Union of India, (2011) 9 SCC 126 and Rajpal Singh v. Saroj, (2022) 15 SCC 260.
Note: The argument was not accepted by the Apex Court.
These decisions were distinguished on the ground that the reliefs in this case (Mallarme v. Kalsammanavara Kalamma, 2024 INSC 1021) was ‘declaration and possession’; and not two “substantial” reliefs (such that came for consideration in Rajpal Singh v. Saroj, (2022) 15 SCC 260 – cancellation and recovery).
1. Multiple Causes of Action: When the ‘Right to Sue First Accrued‘
The plaintiff in Khatri Hotels Private Limited v. Union of India, (2011) 9 SCC 126, had encroached upon the Govt. land meant for road. A suit was filed by one co-owner in1990 for Injunction. It was dismissed. Despite the status quo order in that case, and without the sanction of the municipal authority, large scale construction (restaurant) was raised by the plaintiff/appellant, another co-owner, over the said land. After 10 years, appellant filed another suit for injunction against alleged threat of demolition or dispossession. It was held that the second suit was clearly barred by limitation. Finally, a third suit for declaration of title, mandatory and permanent injunction was filed by the plaintiff. The trial court dismissed the suit for it was (i) barred for limitation and (ii) filed indirectly challenging the notification by which village Kishangarh was urbanized, without specifically challenging the same, as the entries made in the revenue record are only pursuant to the said notification.
The Apex Court, in Mallavva v. Kalsammanavara Kalamma, 2024 INSC 1021, apprised this decision and pointed out –
In Khatri Hotels Private Limited v. Union of India, (2011) 9 SCC 126, it was observed that the legislature had designedly made a departure from the language of Article 120 of the Limitation Act, 1908, while enacting Article 58 of the Limitation Act. The Court noted that the word “first” has been used between the words “sue” and “accrued”.
Therefore, if a suit is based on multiple causes of action, the period of limitation would begin to run from the date when the right of sue first accrued.
In other words, successive violation of the right would not give rise to fresh cause and the suit would be liable to be dismissed if it was beyond the period of limitation counted from the day when the right to sue first accrued.
2. When a composite suit for cancellation (of the sale deed) and recovery sought for, substantive reliefof cancellation holds the field– Rajpal Singh v. Saroj, (2022)
In Rajpal Singh v. Saroj, (2022) 15 SCC 260, it is held – when a composite suit is filed for cancellation of the sale deed as well as for recovery of the possession, the limitation-period has to be computed with respect to the substantive reliefof cancellation of the sale deed (three years from the date of the knowledge of the sale deed).
Two reliefs were prayed for in Rajpal Singh v. Saroj, (2022) 15 SCC 260 – one for cancellation of the Sale Deed; and the second, for recovery of possession. The Court treated the relief for possession as consequential prayer and the relief for cancellation of Sale Deed as the substantive prayer.
Rajpal Singh v. Saroj, (2022) 15 SCC 260, was distinguished in Mallavva v. Kalsammanavara Kalamma, 2024 INSC 1021, observing as under:
“38. The dictum as laid in Rajpal Singh (supra) cannot be made applicable to the facts and circumstances of the case on hand. The reason is simple. Ordinarily when, a suit is filed for cancellation of Sale Deed and recovery of possession, the same would suggest that the title of the plaintiff has already been lost.
By seeking to get the Sale Deed set aside on the grounds as may have been urged in the plaint, the plaintiff could be said to be trying to regain his title over the suit property and recover the possession. In such circumstances, the period of limitation would be three years and not twelve years.”
Conclusion
This decision (Mallavva v. Kalsammanavara Kalamma, 2024 INSC 1021, 2024 SCC OnLine SC 3846) definitely says – when a suit is filed for declaration (primary relief) and consequential relief (injunction or recovery),
the determinative factor as to the period of limitation will be the “substantive prayer” (i.e., injunction or recovery; and not that of primary relief of declaration).
In this case our Apex Court particularly considered what is the relevant Article that applies to a suit for ‘declaration and recovery’: and it is authoritatively held –
(if the plaintiff could establish title) the relevant Article would be Article 65 (that lays down limitation as to adverse possession) and not Art. 58 (that lays down limitation as to declaration).
Suit for RECOVERY, on title, Against a Trespasser # Plaintiff has to succeed on the strength of his title. # If plaintiff shows high degree of probability, onus shifts. # Once the onus is on the defendant, it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff’s title. # Even if the defendant claims title as owner and fails to prove it, the plaintiff can win only if he establishes his title. # If the defendant establishes his right to continue possession (honouring title of the plaintiff) as lessee, licencee, mortgagee etc., the plaintiff will fail.
Suit for EVICTION of Tenants # Suit for eviction is filed against tenants or other persons in permissive possession. A finding of existence of relationship of landlord and tenant is a sine qua non for passing a decree for eviction.
Suit for possessionunder Sec. 6 of the Sp. Relf. Act – # If a person is dispossessed ‘otherwise than in due course of law’, he can recover the property under Sec. 6 of the Sp. Relf. Act, on the strength of his earlier possession. # In such a suit, though title is not perfected by adverse possession, one (plaintiff) in possession can eject a trespasser under Sec. 6 of the Sp. Relf. Act.
Suit For Eviction On Jural Relationship of Landlord and Tenant
When Courts “convert” suit for eviction into one for recovery of possession on title
Whether the Courts can convert the suit for eviction of the tenant (based on the ground of the jural relationship of landlord and tenant) into one for recovery of possession (based on the title of the plaintiff) is considered in the following two decisions of the Supreme Court:
Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693
Tribhuvanshankar v. Amrutlal, (2014) 2 SCC 788.
The Apex Court remanded the first case, a civil suit, and allowed to amend the plaint so as to claim the plea of adverse possession, invoking Article 142 of the Constitution of India with a view to do complete justice to the parties. In the latter case the suit was dismissed for it was filed under a special enactment (Accommodation Control Act), and it could not have been permitted to seek ‘recovery’ by an amendment.
In Abdul Waheed Khan v. Bhawani, AIR 1966 SC 1718, it was pointed out that unless jurisdiction was excluded, the civil court has jurisdiction entertain a suit based title.
Biswanath Agarwalla v. Sabitri Bera – Landlord can win the TITLE SUIT if he Proves his GENERAL TITLE
In Champa Lal Sharma v. Smt. Sunita Maitra, (1990) 1 BLJR 268, it was held as under:
“It, therefore, logically follows that a finding of existence of relationship of landlord and tenant is a sine qua non for passing a decree for eviction against a tenantexcept in a case, as mentioned hereinbefore** the plaintiff on payment of ad valorem Court fee may obtain a decree for eviction on the basis of his general title. (Quoted in: Radha Devi v. Ajay Kumar Sinha, 1998-2 BLJR 1061; Biswanath Agarwala v. Sabitri Bera 2009-15 SCC 693)
**Tenant challenges title of landlord; and no special law (e.g., BRC Act) bars to give such a relief.
Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693, was a Civil Suit for eviction of defendant after issuing notice under Section 106 of the Transfer of Property Act.
Following were the facts:
The defendant-tenant entered the suit shop in 1970.
Plaintiffs purchased the suit premises in 1980.
The plaintiffs served a notice on the defendant under Sec. 106, TP Act.
Plaintiffs instituted Suit for eviction claiming to be the owners and landlords.
Defendant denied the jural relationship and said that he had ever been a tenant.
He claimed independent title. He claimed to have an agreement for sale with the (original) owner.
The trial Court had dismissed the suit on the finding that the plaintiff had failed to establish the jural relationship of landlord and tenant. Still, it found –
that the plaintiffs proved to be the owner; and
the defendant had failed to prove independent title.
The First Appellate Court, relying on AIR 1984 ROC 78 (All.), page 35, and AIR 1984 All. 66 allowed the appeal and decreed the suit holding –
the plaintiffs are entitled to a decree for possession on the basis of their general title.
In the second appeal, it was found by the High Court –
the defendant was a trespasser and as such upheld the decree of eviction.
Hence the appeal before the Apex Court (Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693). The Supreme Court formulated the legal question to be considered as under:
“Whether a Civil Court can pass a decree on the ground that the defendant is a trespasser in a simple suit for eviction is the question involved in this appeal.”
The Plaintiffs- respondents contended as under:
i. Even in a suit for eviction, the plaintiffs would be entitled to obtain a decree for possession relying on or on the basis of his title.
ii. In a suit for eviction, it is for the defendant to show that he has a right to remain on the tenanted premises either as a permanent tenant or otherwise.
The Supreme Court allowed the appeal of the defendant on the following grounds:
no issue as to whether the defendant was a trespasser or not,
non-valuation of the relief of recovery of possession based on title (and non-payment of ad-valorem Court-fee)
lack of opportunityto the defendant to take a plausible plea of acquisition of indefeasible title by adverse possession.
However, it is held by the Apex Court, inter alia, as under:
“The landlord in a given case** although may not be able to prove the relationship of landlord and tenant, but in the event he proves his GENERAL TITLE, may obtain a decree on the basis thereof.”
**Tenant challenges title of landlord; and no special law (e.g., BRC Act) bars to give such a relief.
Nevertheless, the Apex Court allowed –
“The plaintiffs may file an application for grant of leave to amend their plaint so as to enable them to pray for a decree for eviction of the defendant on the ground that he is a trespasser.”
“For the aforementioned purpose, he shall pay the requisite Court-fee in terms of the provisions of the Court Fees Act, 1870.”
“The appellant-defendant would in such an event, be entitled to file his additional written statement” (to raise the plea of adverse possession).
“The learned Trial Judge shall frame an appropriate issue and the parties would be entitled to adduce any other or further evidence on such issue.”
The Apex Court pointed out –
The directions were given in exercise of the jurisdiction under Article 142 of the Constitution of India with a view to do complete justice to the parties.
Note:
Article 142 had been invoked for there was (i) no issue as to whether the defendant was a trespasser or not, (ii) non-valuation of the relief of recovery of possession based on title and (iii) lack of opportunity to defendant to take a plausible plea adverse possession; and
it would not have been needed if the plaintiff had sought for relief of recovery(on title), alternatively.
This decision is referred to in TribhuvanShankar v. Amrutlal (S.B. Sinha and Deepak Misra, JJ.), 2014-2 SCC 788.
The right of the plaintiff (landlord) to recover, on the basis of “GENERAL TITLE” is asserted by the Supreme Court (Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693) referring following decisions.
1. Radha Devi v. Ajay Kumar Sinha, 1998 (2) BLJR 1061. The Patna High Court accepted that a landlord is entitled to obtain a decree of eviction on the basis of his GENERAL TITLE, though he could not prove the relationship of landlord and tenant (when the tenant raised false claim of title).
2. Champa Lal Sharma v. Smt. Sunita Maitra, S.B. Sinha, J., (1990) 1 BLJR 268. It was held:
“It is also well settled that one such relationship is admitted or established, tenant would be estopped and precluded from challenging the title of the landlord and if he does so, under the general rule, make himself liable for eviction on that ground.
It, therefore, logically follows that a finding of existence of relationship of landlord and tenant is a sine qua non for passing a decree for eviction against a tenant except in a case, as mentioned hereinbefore the plaintiff on payment of ad valorem Court fee may obtain a decree for eviction on the basis of his GENERAL TITLE.”
3. Hajee Golam Hossain Ostagar v. Sheik Abu Bakkar, AIR 1936 Cal. 351. It was held – in a suit for ejectment, if the defendant claims the right to remain on a land permanently, he was ‘bound to show‘ the right ‘wherefore the onus would be on him‘.
Asserting Rights Against True Owner – Recovery ought to have Sought for
In Channappa v. Parvatewwa, 2026 INSC 343, our Apex Court held, while considering the second suit was barred under Order II rule 2 of the Code of Civil Procedure, as under:
“27. In the present case, Parvatewwa herself had pleaded in the earlier proceedings that Channappa was asserting rights over the suit properties on the basis of the adoption. The dispute as to the parties’ respective rights over the property was, therefore, already in existence at the time of institution of Suit – I. In such circumstances, the relief of declaration of title and the consequential relief relating to possession could and ought to have been claimedin the earlier proceedings.”
Payment of ad valorem court fee needed to obtain a decree on general title
In Anil Bansal v. Dinesh Kohli, ILR 2017-4 HP 524, it is held as under:
“22. It, therefore, logically follows that a finding of existence of relationship of landlord and tenant is a sine qua non for passing a decree for eviction against a tenant except in a case, as mentioned hereinbefore, the plaintiff on payment of ad valorem court fee may obtain a decree for eviction on the basis of his general title.”
Tribhuvanshankar v. Amrutlal, (2014) 2 SCC 788
It was a suit for eviction under the provisions of M.P. Accommodation Control Act.
The plaintiffs pleaded, in a nutshell, as under:
The defendant was a tenant under the earlier owner.
The rents were not paid by him.
The tenancy was terminated.
The defendant disputed the landlord and tenant relationship
The original owner sold the property without obtaining any sale consideration.
It was with the sole intention of obtaining possession by colluding with the plaintiff.
The trial Court dismissed the suit holding that –
The sale deed in favour of the plaintiff was without any consideration
The relationship of landlord and tenant between the parties was not established
The defendant had perfected title on adverse possession.
The first appellate Court held to the following effect –
The relationship of landlord and tenant was not established
The finding of the trial Court that the sale deed is not supported by consideration is neither justified nor correct
There was no clinching evidence to establish that the defendant had perfected his title by adverse possession.
In the second appeal, one of the substantial questions of law formulated was – whether a decree could be passed in favour of the plaintiff though such plaintiff fails to establish relationship of landlord and tenant?
The High Court had allowed the appeal and restored the decree and judgment of the trial Court. It was held –
Once the plaintiff had failed to establish the relationship of landlord and tenant which is a sine qua non in a suit for eviction, the plaintiff cannot be allowed tofall back on his title to seek eviction.
The Supreme Court distinguished Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693, pointing out that it was a Civil Suit and not one under Accommodation Control Act (or Rent Control Act). Dismissing the suit, the Apex Court held as under:
“On a seemly analysis of the principle stated in the aforesaid authorities,**it is quite vivid that there is a difference in exercise of jurisdiction when the civil court deals with a lis relating to eviction brought before it under the provisions of Transfer of Property Act and under any special enactment pertaining to eviction on specified grounds.”
**LIC v. India Automobiles & Co., (1990) 4 SCC 286, Dr. Ranbir Singh v. Asharfi Lal (1995) 6 SCC 580 and Rajendra Tiwary v. Basudeo Prasad (2002) 1 SCC 90.
Suit for ‘Recovery on Title’ (from Tenant): Failure to Prove Lease – Not Disentitle Relief
In Bandaru Venugopala Rao v. Allure Anasuya, 2024-2 And LT 605, followingBiswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693,it is held that in a suit for recovery on title, failure to prove lease would not disentitle relief to the plaintiff.
Following are the facts in Bandaru Venugopala Rao v. Allure Anasuya (supra).
Plaintiff claimed to be the title holder.
Plaintiff sent a lawyer’s notice to defendant terminating the lease.
In the reply defendant alleged title for himself.
Hence,the plaintiff sued for declaration of title and possession.
Defendant claimed that an agreement for sale was entered into by him with the prior owner and claimed rights under Sec. 53A TP Act.
Plaintiff failed to prove lease.
Still the suit on title claiming possession was decreed.
It was held that the failure to prove the lease, by itself, did not disentitle the plaintiff.
It is held as under:
“Even if plaintiff alleged that the possession of defendant No.1 is only as lessee and even if plaintiff failed to prove it that by itself does not disentitle a title holder from claiming possession. In Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693, the Hon’ble Supreme Court of India laid the law that in a case where the plaintiff sues for declaration of title and for recovery of possession alleging that the person in possession is a tenant, even if the plaintiff fails to prove such jural relationship of landlord and tenant he still is entitled for a decree for recovery of possession on proof of his GENERAL TITLE. Therefore, the contention of the appellant that on failure to prove the lease alleged by plaintiff, the suit ought to have been dismissed is a contention which lacks any legal basis. Therefore, point is answered against the appellant.”
Plaintiff in a suit against Tenant Failed to Prove Tenancy; Can he Win on Title
Plaintiff filed the suit, as landlord, for ejectment of a tenant. The plaintiff failed to establish the tenancy. Will he be entitled to a decree for possession on the basis of his title?
‘No’ was the argument for the defendant/appellant in Sri Venkateswara Oil Company, Tirupathi v. Guduru Jalaja Reddy, 2002-1 ALD 182; 2001-6 ALT 567. Following decisions were relied on.
Brahmanand v. Neki Puri, AIR 1965 SC 1506;
Bhagwari Prasad v. Chandramaul, AIR 1966 SC 735;
Sita Ram v. Radha Bai, AIR 1968 SC 534; and
Bibt Rehana Khatun V. Iqtidar Uddin Hasan, AIR 1943 All. 184
The argument was not accepted by the Andhra High Court pointing out that the parties, had known that title to the suit land was in dispute, and they adduced evidence in that regard. Following decisions were relied on by the Court –
Ponnia Pillai v. Pannai, AIR 1947 Mad. 282 (relying on Bala Mukund V. Dalu, 25 All. 498 (FB) and
Jagamohan Garnaik v. Sankar Samal, AIR 1990 Ori. 124.
Court is Entitled to Consider the Title set up by the Defendants also
In Ram Chandra Sakharam Mahajan Vs. Damodar Trimbak, AIR 2007 SC 2577, it is observed –
In a recovery on title suit, the burden is on the plaintiff to establish title.
Court is also entitled to consider the rival title set up by the defendants
But, weakness of defence to establish title, would not enable plaintiff to a decree.
The Apex Court held:
“The suit is for recovery of possession on the strength of title. Obviously, the burden is on the plaintiff to establish that title. No doubt in appreciating the case of title set up by the plaintiff, the Court is also entitled to consider the rival title set up by the defendants. But the weakness of the defenceor the failure of the defendants to establish the title set up by them, would not enable the plaintiff to a decree. There cannot be any demur to these propositions.”
“14. We find that the trial Court and the Appellate Court were not justified in refusing the amendment of the plaint sought for by the plaintiff. No doubt there had been delay in seeking amendment but that delay could have been compensated by awarding costs to the contesting defendants 1 to 9. Therefore, we are satisfied that the amendment sought for by the plaintiff ought to have been allowed. We are inclined to allow the amendment sought for, since it would enable the Court to pin-pointedly consider the real dispute between the parties and would enable it to render a decision more satisfactorily to its conscience. We, therefore, allow the amendment as sought for by the plaintiff at a belated stage. The amendment will be carried out by the plaintiff in the trial Court within three months from this date as per the practice followed in the trial Court. Obviously defendants 1 to 9 would have an opportunity to file an additional written statement to the amended plaint. They will be entitled to file an additional written statement within a period of four months from the date of this judgment.”
Document ex-facie reveals no title – specific declaration as to invalidity not necessary
The Supreme Court held in Kizhakke Vattakandiyil Madhavan v. Thiyyurkunnath Meethal Janaki (Aniruddha Bose & Sudhanshu DhuliaJJ.), 2024 3 KerHC 169; 2024-2 KerLT 789; 2024-4 SCR 383, held as under:
“If a document seeking to convey immovable property ex-facie reveals that the conveyer does not have the title over the same,specific declaration that the document is invalid would not be necessary. The Court can examine the title in the event any party to the proceeding sets up this defence. Chiruthey could not convey any property over which she did not have any right or title. Her right, if any, would stem from the second deed of lease (Exhibit A-1). We are conscious of the fact that no claim was made before any forum for invalidating the deed dated 14th July 1910 (Exhibit A-20).”
By proving a deed, title of the executing person is not automatically confirmed
The Supreme Court held in Kizhakke Vattakandiyil Madhavan v. Thiyyurkunnath Meethal Janaki (Aniruddha Bose & Sudhanshu DhuliaJJ.), 2024 3 KerHC 169; 2024-2 KerLT 789; 2024-4 SCR 383, also held as under:
“18. ….But it would be trite to repeat that even if subsistence of a deed is provedin evidence, the title of the executing person (in this case Chiruthey) does not automatically stand confirmed.. ….. … But in absence of proper title over the subject property, that lease deed even if she was its sole lessor would not have had been legally valid or enforceable. If right, title or interest in certain property is sought conveyed by a person by an instrument who herself does not possess any such form of entitlement on the subject being conveyed, even with a subsisting deed of conveyance on such property, the grantee on her successors-in-interest will not have legal right to enforce the right the latter may have derived from such an instrument.”
Plaintiff to Win Recovery Suit, on Strength of his Title
Following are the often cited decisions on this subject-
Moran Mar Basselios Catholics v. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526,
Brahma Nand Puri v. Neki Puri, AIR 1965 SC 1506,
City Municipal Council Bhalki v. Gurappa, 2016-2 SCC 200
Bajaranglal Shivchandrai Ruia v. Shashikant N. Ruia, (2004) 5 SCC 272
R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548: (2003) 8 SCC 752
Vijay Pullarwar v. Shri Hanuman Deostan, (2019) 11 SCC 718
A Plaintiff has to win the title-suit on his evidence; not on the weakness of the adversary.
In Kishan Chand v. Gautam Gaur Hitkarak Sabha, Kota (Vikram Nath, Sandeep Mehta, JJ.) 2026 INSC 448, it is observed:
“Even assuming that the defendant has failed to conclusively establish his title, the same would not enure to the benefit of the plaintiffs.”
See also:
Kishan Chand v. Gautam Gaur Hitkarak Sabha, Kota (Vikram Nath, Sandeep Mehta, JJ.) 2026 INSC 448
Baha Kartar Singh Bedi v. Dayal Das, AIR 1939 PC 201 (Referred to in: K. M. Paul v. K. Pradeep, ILR 2006-2 Ker 19),
Jagdish Narain v. Nawab Said Ahmed Khan, AIR 1946 PC 59 (Referred to in: Dinesh Jain v. Jeewanlal Lala, AIR 2013 MP 85)
Moran Mar Basselios Catholics v. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526 (ejectment suit must succeed on the strength of Plaintiffs’ own title)
Heera Devi v. Official Assignee Bombay, AIR 1958 SC 448.
Moran Mar Basselios Catholicos v. Thukalan Paulo Avira, AIR 1959 SC 31 (referred to in: Paturu Sundaraiah v. Suri Ranganayakamma, AIR 2022 AP 71),
P. Kishore Kumar Vs. Vittal K. Patkar, 2024-1 CTC 547; 2023-4 CurCC(SC) 278)
In Vijay Pullarwar v. Shri Hanuman Deostan, (2019) 11 SCC 718, the suit for possession instituted by the plaintiffs trust on the basis of title, was found to be devoid of merits; for, there was no reference in the registration application of the public trust under the BPT Act, 1950 or in schedule I, where to record the properties of the public trust that the suit property belonged to the trust. Our Apex Court held as under:
“Needless to observe that the plaintiffs/respondents were primarily obliged to establish their title in the suit house bearing No.878 in Circle No.3 where the Padukas of Saint Haridas Baba have been installed, as being the property of the plaintiff trust. The plaintiffs must succeed or fail on the title they establish; and if they fail to do so, they must fail to get the relief of possession irrespective of title of the defendant in the suit property (See: Brahma Nand Puri v. Naki Puri, (1965) 2 SCR 233 and Bajaranglal Shivchandrai Ruia v. Shashikant N. Ruia, (2004) 5 SCC 272).”
In Brahma Nand Puri v. Neki Puri, AIR 1965 SC 1506, the Apex Court held as under:
“The plaintiff’s suit being one for ejectment he has to succeed or fail on the file that he establishes and if he cannot succeed on the strength of his title his suit must fail notwithstanding that the defendant in possession has no title to the property… …”
If Title of Plaintiff is Nullity, Defendant Need Not file a Substantive Suit;
Plaintiff in ejection suit must succeed or fail on his title
If Plaintiff Shows Apparent Title, Defendant to Plead Defects Thereon
In Bajaranglal Shivchandrai Ruia v. Shashikant N. Ruia, AIR 2004 SC 2546, the defendants contended that the plaintiff’s title, on the basis of the alleged auction sale ‘was a nullity, as it was ultra vires the legal provisions and on the ground of lack of jurisdiction, non-service of demand notice on all the heirs and co-owners’. It was contended from the part of the (original) plaintiff that the sale proceedings could be challenged only by way of a substantive suit, and that the High Court was right in characterising the challenge to the suit by the defendant as a ‘backdoor method’. The Apex Court held as under:
“If the title claimed by the plaintiff was a nullity and wholly void, there was no need for any of the defendants including Bajranglal to challenge it by way of a substantive suit. They could always set up nullity of title as a defence in any proceeding taken against them based upon such title. If, in fact, the sale was a nullity, it was non est in the eye of law and all that defendant had to do was point this out. (See in this connection: Ajudh Raz and Ors. v. Moti S/o Mussadi, [1991] 3 SCC 136 and the opinion of the Full Bench of the Bombay High Court in Abdulla Mian v. Government of Bombay, (1942) 44 Bom LR 577.
In Vidyadhar v. Manikrao and Anr., [1999] 3 SCC 573, the plaintiff had filed a suit on the basis of a sale deed executed by D-2 in his favour and sought the relief of possession of the property from defendant no. 1 who was an absolute stranger to the sale deed. The question which arose was whether defendant No. l, who was in possession, could justify his possession by urging the nullity of sale transaction between the plaintiff and defendant No. 2. In these circumstances, this Court held (vide para 21):
‘The above decisions appear to be based on the principle that a person in his capacity as a defendant can raise any legitimate plea available to him under law to defeat the suit of the plaintiff. This would also include the plea that the sale deed by which the title to the property was intended to be conveyed to the plaintiff was void or fictitious or, for that matter, collusive and not intended to be acted upon. Thus, the whole question would depend upon the pleadings of the parties, the nature of the suit, the nature of the deed, the evidence led by the parties in the suit and other attending circumstances.’
Here, the plaintiffs suit is for ejection of the defendant and for possession of the suit property. She must succeed or fail on the title that she establishes. If she cannot succeed in proving her title, the suit must fail notwithstanding that the defendant in possession may or may not have title to the property. (See in this connection: Brahma Nand Puri v. Neki Puri, [1965] 2 SCR 233 at p. 237).
Appellant Bajranglal had sufficiently pleaded in his written statement the defects in the title of the plaintiff and it was, therefore, open for the learned Single Judge to go into this question and decide if the plaintiff had good title or not. …… In our view, the finding of the learned Single Judge that the plaintiff’s title was invalid and non est for contravention of the provisions of Section 206 of the BMC Act and the Regulations made thereunder, is fully justified and brooked no interference in appeal. ……. In our view, the principle in Vidyadhar’s case clearly applies to the case on hand.”
Suit on Title – Both Parties Claim Title – Plaintiff Shows High Probability, Onus Shifts
In a suit for recovery on title, where both plaintiff and defendant claim title, if plaintiff has been able to create a high degree of probability, he will Win, if the defendant fails to discharge his onus. 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 :
“29. In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored to him. However, as held in A. Raghavamma v. A. Chenchamma there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff’s title.” (Quoted in: Anil. Rishi vs. Gurbaksh Singh, (2006) 5 SCC 558; City Municipal. Council, Bhalki Vs. Gurappa, (2016) 2 SCC 200)
In Smriti Debbarma v. Prabha Ranjan Debbarma, 2023 SCC OnLine SC 9,it is held bu our Apex Court as under:
“31. The burden of proof
[See Paragraph 19 in Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558 where the expression ‘burden of proof’ is used in three ways, namely, (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter-evidence; and (iii) an indiscriminate use in which it may mean either, or both of the others.]
to establish a title in the present case lies upon the plaintiff as this burden lies on the party who asserts the existence of a particular state of things on the basis of which she claims relief [See Addagada Raghavamma and Another v. Addagada Chenchamma and Another, AIR 1964 SC 136.] This is mandated in terms of Sec. 101
[Sec. 101: Burden of Proof.- Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.]
of the Evidence Act, which states that burden on proving the fact rests with party who substantially asserts in the affirmative and not on the party which is denying it. This rule may not be universal and has exceptions,[See Ss. 103, 104 and 105 of the Evidence Act.] but in the factual background of the present case, the general principle is applicable. In terms of Sec. 102
[Sec. 102: On whom the burden of proof lies.- The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.]
of the Evidence Act, if both parties fail to adduce evidence, the suit must fail.[See Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558.] Onus of proof, no doubt shifts and the shifting is a continuous process in the evaluation of evidence, but this happens when in a suit for title and possession, the plaintiff has been able to create a high degree of probability to shift the onus on the defendant. In the absence of such evidence, the burden of proof lies on the plaintiff and can be discharged only when he is able to prove title.[See R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami V.P. Temple and Another, (2003) 8 SCC 752.] The weakness of the defence cannot be a justification to decree the suit. [See Union of India and Others v. Vasavi Cooperative Housing Society Limited and Others, (2014) 2 SCC 269.] The plaintiff could have succeeded in respect of the Schedule ‘A’ property if she had discharged the burden to prove the title to the Schedule ‘A’ property which squarely falls on her. This would be the true effect of Ss. 101 and 102 of the Evidence Act. [See Sebastiao Luis Fernandes (DEAD) Through LRs. And Others v. K.V.P. Shastri (DEAD) Through LRs. And Others, (2013) 15 SCC 161.]
Therefore, it follows that the plaintiff should have satisfied and discharged the burden under the provisions of the Evidence Act, failing which the suit would be liable to be dismissed.”
Burden of Proof General Principlesand Nuances of Sections 101 to 106
Our Apex Court in Mohd. Abdullah Azam Khan Vs. Nawab Kazim Ali Khan, 2023 KLT OnLine 1084(SC), authoritatively lays down the General principles as to Burden of Proof. It reads:
12.1. The legal scheme governing various aspects of ‘burden of proof’ in the Indian context, is contained in Sections 101 to 106 of the Indian Evidence Act.
12.2. As per Section 101 of the Indian Evidence Act, when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. This section is based on the rule, ei incumbit probatio qui dicit, non qui negat, which means that the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it, because a negative is usually incapable of proof. The burden of proving a fact always lies upon the person who asserts and until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. However, the above rule is subject to the general principle that things admitted need not be proved.
12.3. The question as to whether burden of proof has been discharged by a party to the lis or not, would depend upon the facts and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought on record so as to enable a Court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden of proof lies would still be liable to produce direct evidence, vide National Insurance Co. Ltd. vs. Rattani (2009) 2 SCC 75: AIR 2009 SC 1499.
12.4. Burden to prove documents lie on plaintiff alone as onus is always on the person asserting a proposition or fact which is not selfevident. This position is summarised in the observation to the effect that, an assertion that a man who is alive was born requires no proof; the onus, is not on the person making the assertion, because it is selfevident that he had been born. But to assert that he had been born on a certain date, if the date is material, requires proof; the onus is on the person making the assertion, vide Robins vs. National Trust & Co. Ltd. 1927 AC 515: 101 IC 903.
12.5. It is also to be noted at this juncture that there is an essential distinction between burden of proof and onus of proof. Burden of proof lies upon a person who has to prove the fact and it never shifts, onus of proof on the other hand, shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. For instance, In a suit for possession based on title,once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant, it is for the defendant to discharge his onus and in the absence thereof, the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiffs title, vide RVE Venkatachala Gounder vs. Arulmigu Viswesaraswami and VP Temple AIR 2003 SC 4548: (2003) 8 SCC 752.
12.6. In terms of section 102 of the Evidence Act, the initial burden to prove its claim is always on the plaintiff and if he discharges that burden and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff of the same.
12.7. Where, however, evidence has been led by the contesting parties, abstract considerations of onus are out of place and truth or otherwise must always be adjudged on the evidence led by the parties [Kalwa Devadattam vs. Union, AIR 1964 SC 880]
12.8. As per Section 103, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. This section amplifies the general rule in section 101 that the burden of proof lies on the person who asserts the affirmative of the issue. It lays down that if a person wishes the court to believe in the existence of a particular fact, the onus of proving that fact, is on him, unless the burden of proving it is cast by any law on any particular person.
12.9. Section 105 is an application of the rule in section 103. When parties to a dispute adduce evidence to substantiate their claim, onus becomes academic and divided, entailing each party to prove their respective plea.
12.10. Section 106 is an exception to the general rule laid down in Section 101, that the burden of proving a fact rest on the party who substantially asserts the affirmative of the issue. Section 106 is not intended to relieve any person of that duty or burden but states that when a fact to be proved is peculiarly within the knowledge of a party, it is for him to prove it. It applies to cases where the fact is especially within a party’s knowledge and to none else. The expression ‘especially’ used in Section 106 means facts that are eminently or exceptionally within one’s knowledge. This means a party having personal knowledge of certain facts has a duty to appear as a witness and if he does not go to the witness box, there is a strong presumption against him. In an Election Petition, the initial burden to prove determination of age of returned candidate lies on the petitioner, however, burden lies on the respondent to prove facts within his special knowledge. (Sushil Kumar vs. Rakesh Kumar [ (2003) 8 SCC 673) ].
12.11. The provisions of Section 106 are unambiguous and categorical in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. If he does so, he must be held to have discharged his burden but if he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106. [Source: Sarkar on Law of Evidence, 20th Edition, Volume 2.]
12.12. In Sushil Kumar vs. Rakesh Kumar (supra), the controversy was with regard to the improper acceptance of the nomination of the sole respondent therein on the premise that he was under qualified to contest the Bihar Legislative Assemble election from 181, Parbatta Constituency. In the said case, inter alia, the horoscope of the respondent therein and admission register of New St. Xaviers School, Boring Road, Patna and transfer certificate issued by Swami Vivekananda Vidyalaya, Mithapur, Patna, were produced as documents to prove that the successful candidate therein was not eligible to contest the said Assembly election. In the said case, Section 35 of the Indian Evidence Act was referred to and it was observed that the register maintained in terms of a statute or by a statutory authority in regular course of business would be a relevant fact and if such vital evidence had been produced, it would clinch the issue. It was observed that there is no reliable evidence on record to show that the date of birth was recorded in the school register on the basis of the statement of any responsible person and that the admission register or a transfer certificate issued by a primary school do not satisfy the requirements of Section 35 of the Evidence Act.
The Supreme Court in the case of Gian Chand and Bros v. Rattan Lal, (2013) 2 SCC 606, has held as under:
18. It is well-settled principle of law that a person who asserts a particular fact is required to affirmatively establish it. In Anil Rishi v. Gurbaksh Singh [(2006) 5 SCC 558] (SCC p. 561, para 9), it has been held that the burden of proving the facts rests on the party who substantially asserts the affirmative issues and not the party who denies it and the said principle may not be universal in its application and there may be an exception thereto. The purpose of referring to the same is that if the plaintiff asserts that the defendant had acknowledged the signature, it is obligatory on his part to substantiate the same. But the question would be what would be the consequence in a situation where the signatures are proven and there is an evasive reply in the written statement and what should be construed as substantiating the assertion made by the plaintiff.
19. In Krishna Mohan Kul v. Pratima Maity [(2004) 9 SCC 468] it has been ruled thus: (SCC p. 474, para 12) “12. … When fraud, misrepresentation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation.”
20. In Shashi Kumar Banerjee v. Subodh Kumar Banerjee [AIR 1964 SC 529] a Constitution Bench of this Court, while dealing with a mode of proof of a will under the Succession Act, 1925 observed that where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same.
21. In A. Raghavamma v. A. Chenchamma [AIR 1964 SC 136], while making a distinction between burden of proof and onus of proof, a three-Judge Bench opined thus: (AIR p. 143, para 12) “12. … There is an essential distinction between burden of proof and onus of proof: burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. The burden of proof in the present case undoubtedly lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence.”
If Sale, on which Title rests, is Vitiated: Title will be Nullity
It was held by the Bombay High Court in Sarang Avinash Kamtekar v. Alpha Organic (2005) relying on
(1) Himadri Coke and Petro Ltd. v. Soneko Developers (P) Ltd., (2005) 12 SCC 364;
(2) Bajaranglal Shivchandrai Ruia v. Shashikant N. Ruia, 2004(3) SCR 373; and
(3) A.V. Papayya Sastry v. Government of A.P., (2007) 4 SCC 221.
that a sale on which title of a party to the suit rests is vitiated, title will be bad in law.
Principle Not Applicable with its Full Vigor in a suit filed by the State
From R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548, it is clear that, though in a suit for recovery on title, a plaintiff cannot argue that the defendant failed to prove his title.
But, it may not be applicable with its full vigor in a suit filed by the State, for it is the paramount title holder of the property by virtue of the Constitution.
Law Recognises Efficacy of Possession in Section 6 of the Specific Relief Act
Section 6 of the Specific Relief Act allows one to file a suit for recovery of property, on the strength of his prior possession, if he had lost his possession within 6 months of the suit. In such a case, he need not prove his title; and he can succeed on establishing that he has been dispossessed otherwise than in accordance with law within six months.
Sec. 6 of the Specific Relief Act, 1963 reads as under:
6. Suit by person dispossessed of immovable property. (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.
(2) No suit under this section shall be brought
(a) after the expiry of six months from the date of dispossession; or
(b) against the Government.
(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.
(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.
If Title not Perfected by Adver. Posn, Can one Eject a Trespasser After 6 Months
High Courts differ, as pointed out in Kuttan Narayanan v. Thomman Mathayi, AIR 1966 Ker 179.
Now it is settled that if one fails to exercise his option by filing a suit under Section 6 of the Specific Relief Act within six months, he is at liberty to file a suit to recover his possession (with or without declaration) by a regular suit for recovery of possession. It can be based on title or on his possession in assumed or presumed character of ownership (even if title not perfected by doctrine of adverse possession) on the principle that possession is good title against all the world but the rightful owner. See: Kuttan Narayanan v. Thomman Mathayi, AIR 1966 Ker 179; Kanti Lal v. Smt. Shanti Devi, AIR 1997 Raj 230.
Even Rightful Ownerto Take Recourse to law; He cannot take the law in his own hands
In Rame Gowda v. M. Varadappa Naidu, (2004) 1 SCC 769, our Apex Court Court (R.C. Lahoti, B.N. Srikrishna, G.P. Mathur, JJ.) observed that the law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner. It is held as under:
“8. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser.
A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force.
If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession.
The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful ownerfrom using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force.
In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.” (quoted in: Subramanya Swamy Temple, Ratnagiri v. V. Kanna Gounder, 2009-3 SCC 306; Poona Ram v. Moti Ram, AIR 2019 SC 813)
What is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner was made clear in Rame Gowda v. M. Varadappa Naidu, (2004) 1 SCC 769. It reads as under:
“9. …The “settled possession” must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase “settled possession” does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession.” (quoted in Samarpan Varishtha Jan Parisar vs Rajendra Prasad Agarwal, AIR 2022 SC 2209)
Even the Rightful Owner cannot Eject a Trespasser with Force
In Karthiyayani Amma v. Govindan, AIR 1980 Ker 224, the Kerala High Court considered the question whether the rightful owner can eject a trespasser in possession with force; and whether a person in illegal possession could sustain a suit for injunction against the true owner, from forcibly dispossessing him from the property. It was held as under:
“The ultimate position, therefore, reduces itself to this:
Can a person in possession without title sustain a suit for injunction against the rightful owner if he proves possession?
Yes. In this case, plaintiff is found to in be possession. On the finding, he should be granted the injunction prayed for. A person in possession can be evicted only in due process of law. Even the rightful owner cannot eject him with force. If he cannot be evicted with force, he continues to be in possession and he can resist invasion of his possession by everyone including the rightful owner. If the rightful owner threatens his peaceful possession, he can approach Courts of Law and pray for the equitable relief of injunction to protect his possession”. (Followed in: Aiysumma v. Mariyamma, 1994-2 CIVCC 52, 1994-1 KerLT 570. )
It is pointed out in Suresh v. Ashok Girdharilal Chandak, 2016-1 MHLJ 171 that ‘bearing in mind the basic principle of law in civil jurisprudence that even a trespasser cannot be evicted without following due process of law and no one can be allowed to take law into his own hands to recover possession of the property without following due process of law and without proving title to the immovable property in possession of a person holding actual physical possession thereof’.
No Injunction in Favour of a Trespasser, Against the ‘True Owner’
It is observed by our Apex Court, in Prataprai N. Kothari v. John Braganza, AIR 1999 SC 1666, as under:
“It is quite obvious that the learned single Judge had not taken note of the principle of possessory title or the principle of law that a person who has been in long continuous possession can protect the same by seeking an injunction against any person in the world other than the true owner. It is also well settled that even the owner of the property can get back his possession only by resorting to due process of law.
Divergent Views are set out in Sopan Sukhdeo Sable v. Assistant Charity Commissioner, AIR 2004 SC 1801 also. They are the following:
first, a person in settled possession cannot be disposed by the owner except by recourse of law
second, a trespasser in possession cannotnot seek injunction against the true owner.
In this case, a forceful postulation is posed-
A trespasser ousted can seek restoration of possession under Section 6 of the Specific Relief Act, 1963, (even) against the true owner. If so, can’t the trespasser seek injunction as to possession, against the true owner?
In Sopan Sukhdeo Sable v. Assistant Charity Commissioner, AIR 2004 SC 1801, the appellants were the plaintiffs whose suit was rejected in terms of Order VII, Rule 11 of the Code of Civil Procedure. It is held in this decision as under:
“24. There are two different sets of principles which have to be borne in mind regarding course to be adopted in case of forcible dispossession. Taking up the first aspect, it is true that where a person is in settled possession of property, even on the assumption that he has no right to remain in property, he cannot be disposed by the owner except by recourse of law. This principle is laid down in Section 6 of the Specific Relief Act, 1963. That Section says that if any person is dispossession without his consent from immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. That a person without title but in “settled” possession – as against mere fugitive possession – can get back possession if forcibly dispossessed or rather, if dispossessed otherwise than by due process of law, has been laid down in several cases. It was so held by this Court in
Yashwant Singh v. Jagdish Singh, AIR 1968 SC 620,
Krishna Ram Mohate v. Mrs. Shobha Venkata Rao, (1989) 4 SCC 131 at p. 136;
Ram Rattan v. State of UP, (1977) 1 SCC 188, and
State of UP v. Maharaja Dharmender Prasad Singh, (1989) 2 SCC 505.
The leading decision quoted in these rulings is the decision of the Bombay High Court in
K. K. Verma vs. Union of India, AIR 1954 Bom 358.
25. Now the other aspect of the matter needs to be noted. Assuming a trespasser ousted can seek restoration of possession under Section 6 of the Specific Relief Act, 1963 can the trespasser seek injunction against the true owner?
This question does not entirely depend upon Section 6 of the Specific Relief Act, but mainly depends upon certain general principles applicable to the law of injunctions and as to the scope of the exercise of discretion while granting injunction.
In Mahadeo Savlaram Sheike vs. Pune Municipal Corporation, (1995) 3 SCC 33, it was held, after referring to Woodrofe on “Law relating to injunction: L. C. Goyal Law of injunctions:
David Bean Injunction Jayce on Injunctions and other leading Articles on the subject that the appellant who was a trespasser in possession could not seek injunction against the true owner.
In that context this Court quoted Shiv Kumar Chadha vs. MCD, (1993) 3 SCC 161, wherein it was observed that injunction is discretionary and that:
“Judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court.”
26. Reference was also made to Dalpat Kumar vs. Prahlad Singh (1992) 1 SCC 719 in regard to the meaning of the words prima facie case and balance of convenience and observed in Mahadeos case (supra) that:
“It is settled law that no injunction could be granted against the owner at the instance of a person in unlawful possession.”
27. The question of forcible possession as claimed is also a matter which can be pressed into service by the parties before the trial Court and if raised the Court shall deal with it considering its relevance to the suit and accept it or otherwise reject the plea in accordance with law. We do not think it necessary to express any opinion in that regard.
28. …. Looking into the nature of dispute it would be appropriate if the trial Court makes an effort to complete the trial within six months from the date of the judgment. The parties are directed to co-operate for disposal of the suit early within the stipulated time. The appeal is allowed to the extent indicated without any order as to costs.”
Burden on Plaintiff to Prove Title; Weakness of defence would not enable a decree
In Ram Chandra Sakharam Mahajan Vs. Damodar Trimbak, AIR 2007 SC 2577, it is observed –
In a recovery on title suit, the burden is on the plaintiff to establish title.
Court is also entitled to consider the rival title set up by the defendants.
Weakness of defence to establish title, would not enable plaintiff to a decree.
The Apex Court held:
“The suit is for recovery of possession on the strength of title. Obviously, the burden is on the plaintiff to establish that title. No doubt in appreciating the case of title set up by the plaintiff, the Court is also entitled to consider the rival title set up by the defendants. But the weakness of the defence or the failure of the defendants to establish the title set up by them, would not enable the plaintiff to a decree. There cannot be any demur to these propositions.”
“14. We find that the trial Court and the appellate Court were not justified in refusing the amendment of the plaint sought for by the plaintiff. No doubt there had been delay in seeking amendment but that delay could have been compensated by awarding costs to the contesting defendants 1 to 9. Therefore, we are satisfied that the amendment sought for by the plaintiff ought to have been allowed. We are inclined to allow the amendment sought for, since it would enable the Court to pin-pointedly consider the real dispute between the parties and would enable it to render a decision more satisfactorily to its conscience. We, therefore, allow the amendment as sought for by the plaintiff at a belated stage. The amendment will be carried out by the plaintiff in the trial Court within three months from this date as per the practice followed in the trial Court. Obviously defendants 1 to 9 would have an opportunity to file an additional written statement to the amended plaint. They will be entitled to file an additional written statement within a period of four months from the date of this judgment.”
Possession is Good Against All But the True Owner
The principle that ‘possession is good against all but the true owner’ is stated in Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165, referring Judicial Committee decision in Parry v. Clissold, (1907) AC 73, as under:
“17. In our judgment this involves an incorrect approach to our problem. To express our meaning we may begin by reading 1907 AC 73, to discover if the principle that possession is good against all but the true owner has in any way been departed from. 1907 AC 73 reaffirmed the principle by stating quite clearly:
“It cannot be disputed that a person in possession of land in the assumed character of 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 Limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title.”
Following decisions also say – no injunction can be passed, in favour of a trespasser, against the ‘true owner’ of a property:
Lallu Yeshwant Singh v. Rao Jagdish Singh, AIR 1968 SC 620 (possession after the termination of the tenancy);
M.C. Chockalingam v. Manickavasagam (1974) 1 SCC 48;
Document ex-facie reveals no title – specific declaration as to invalidity not necessary
The Supreme Court held in Kizhakke Vattakandiyil Madhavan v. Thiyyurkunnath Meethal Janaki (Aniruddha Bose & Sudhanshu DhuliaJJ.) 9.4.2024, held as under:
“18. …. If a document seeking to convey immovable property ex-facie reveals that the conveyer does not have the title over the same, specific declaration that the document is invalid would not be necessary. The Court can examine the title in the event any party to the proceeding sets up this defence. Chiruthey could not convey any property over which she did not have any right or title. Her right, if any, would stem from the second deed of lease (Exhibit A-1). We are conscious of the fact that no claim was made before any forum for invalidating the deed dated 14th July 1910 (Exhibit A-20).”
By proving a deed, title of the executing person is not automatically confirmed
The Supreme Court held in Kizhakke Vattakandiyil Madhavan v. Thiyyurkunnath Meethal Janaki (Aniruddha Bose & Sudhanshu DhuliaJJ.) 9.4.2024, also held as under:
“18. … It would be trite to repeat that even if subsistence of a deed is proved in evidence, the title of the executing person (in this case Chiruthey) does not automatically stand confirmed. ….. … But in absence of proper title over the subject property, that lease deed even if she was its sole lessor would not have had been legally valid or enforceable. If right, title or interest in certain property is sought conveyed by a person by an instrument who herself does not possess any such form of entitlement on the subject being conveyed, even with a subsisting deed of conveyance on such property, the grantee on her successors-in-interest will not have legal right to enforce the right the latter may have derived from such an instrument.”
The state of Kerala was established in 1956. It consisted of three regions – Travancore, Cochin and Malabar. The state of Travancore–Cochin was organised in 1949 by merging the Travancore State and Cochin States. In 1956, Malabar district and Kasargod area of former Madras State was added to form Kerala. Each of this area had its own Survey & Settlement methods. https://dslr.kerala.gov.in/en/brief-history
Settlement in Cochin & Malabar
The Directorate of Survey & Land Records presents further as under:
“The last settlement was conducted in Cochin during 1905-1909 following the settlement Proclamation of 1905 and in Malabar during 1926-1934 according to the resettlement Manual of 1930.”(https:// dslr.kerala.gov.in/ en/brief-history)
In the Malabar area of the erstwhile Madras State, settlement activities took place from 1894 to 1905. The lands in Malabar had been treated as being held on Ryotwari tenure. The re-settlement operations were conducted in the Malabar area during 1930-1933, under which the lands in the Malabar area were settled as lands held under the Ryotwari tenure and records – Settlement Registers and A Register – were made. ( See: Sukapuram Sabhayogam v. State of Kerala, AIR 1963 Ker 101; M. J. Thomas v. State of Kerala, AIR 1998 Ker 285.)
Revenue Settlements of Travancore
‘Kettezhuthu’ and Kandezhuthu’
First attempt to make a settlement in Travancore was in 1712. It was on ‘Kettezhuthu’ (what is heard) basis; i.e., on discussions with landholders. Pattas were issued after the settlement. In 1775 a complete survey was conducted on ‘Kandezhuthu’ (what is seen) basis. Pattas were issued to the holders on this basis also.
Resurvey with the scale if a 10-Feet-Rod (15 links)
Complete resurvey of garden lands was conducted in 1836. This time measurements were made with the scale if a 10-Feet-Rod (15 links) (See: V. Purushothaman v. Asokan 10.11.2016, Kerala High Court, A.Hariprasad, J.) Pattas were issued this time also.
1910 Settlement (chain- survey)
The last settlement of Travancore was during 1882 to 1909. The survey (chain- survey) thereon was commenced in 1885 and finalised in 1910.
Travancore – A brief history of Survey & Settlement
The Directorate of Survey & Land Records, Kerala places the following history:
“A brief history of Survey & Settlement is given below:
Year 1712:
A complete survey and settlement was conducted. The survey was a ‘Kettezhuthu’ Record of “what is heard” and was based on discussions with landholders. The holders were issued pattas after settlement.
Year 1738 to 1748:
This settlement was confined to the lands belonging to Sree Padmanabha Swamy Temple. No measurement of land was conducted.
Year 1775:
Ramayyan Dalava conducted a complete Survey and settlement. Holders were issued pattas. The nature of survey is not known.
Year 1801:
A complete survey was conducted. This was a ‘Kandezhuthu’. (Record of what is seen). The tenures were similar to the previous settlement. Pattas were also issued after the settlement.
Year 1817:
Year 1817:- This was only a settlement of garden lands. Pattas were issued subsequent to the settlement.
Year 1836:
A complete resurvey of garden lands was conducted. Side measurements were made with a ‘10’ Feet Rod. Rough Pattas were issued after the settlements.
Year 1882 to 1909:
This is the latest settlement record. A scientific Survey was conducted and pattas were issued for all the land owners.” (https:// dslr.kerala.gov.in/ en/brief-history)
Revenue Settlement Register 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 14 th Kumbhom 1061 corresponding to 24th February 1886.”
Revenue Records – Maintained Promptly
The Land Revenue Department was one of the main departments of the Travancore Government. The ownership remained with the Jenmies and Sircar (Government). The agriculturists, who formed majority of population, had to pay various kinds of remunerations to the Janmies and the Sircar (Government), based on the nature of tenancy and the nature of the ‘Jenmam (Janmam) right’. The lease arrangements were known by various nomenclatures based on the conditions of tenancies. Several enactments were made for proper collection of Taxes, and management of the Govt. lands and the lands upon which the tenants toiled. The Revenue Records were prepared and maintained promptly.
Chitta and Adangal in Madrasand Andhra Pradesh
Chitta: Chitta is a revenue document maintained in Taluk office. It contains extent of land, name of owner and the type of land (wet/dry, irrigated/rainfed, etc.).
Adangal: Adangal is also a revenue record, prepared after surveying the land, that contains details about the land, such as the ownership, extent, classification of land, and details of cultivators. It is taken as a document for showing the ownership and possession of land. (See: D. Rajamanickam v. M. Pasupathiammal, 2019-2 Mad LJ 208; N. Chandrasekaran v. Arulmighu Thiruvatteeswarar Thirukkoil, 2020-1 LW 631; 2020-5 Mad LJ 227)
Private Janmam in Malabar Area – Ended By 1934
In Sukapuram Sabhayogam v. State of Kerala, AIR 1963 Ker 101, it was pointed out with referenceto the Madras District Gazetteer, Malabar as regards the history of settlement (1900 -1904) and re-settlement (1931-1934) and as regards the preparation of Adangal Registers after the settlement as under:
“67. In the Madras District Gazetteer, Malabar, by Inis, 1951 Edition, at page 344, it is stated that the settlement was introduced into the eight plain Taluks of Malabar between 1900 and 1904and the Revenue system of the District has been brought into line with that of the rest of the Presidency, due allowance being made for special local conditions.
68. Dealing with the re-settlement, it is stated in the same Gazetteer, at page 848, that it took place between 1931 and 1934, and that the re-settlement was done because the term of 30 years for which the then existing rates of land assessment were sanctioned had expired between 1929-30 and 1932-33- A list of the taluks giving particulars as to when the last settlement expired and the new settlement came into operation, is also given at the same page.
69. At page 349 of the same book, among the special features of the re-settlement, it is mentioned that the terms “janmabhogam” or “private janmam” were replaced by new holdings and old holdings respectively. That is, in the Adangal Registers etc., maintained after the settlement was introduced for the first time in 1900 and 1904, the lands of all the jenmis appear to have been shown as private janmam but in the re-settlement the register shows them as old holdings.”
Ryotwari Settlement in Malabar Area
In Balmadies Plantations Ltd. v. The State of T.N., AIR 1972 SC 2240 while examining the status of land holders under ryotwari settlement it was pointed out that this system was brought about by Col. Read in 1792 consequent to ceding of territories by Tippu Sultan, as described in the Manual of Administration quoted by Baden-Powell, in Vol. III of Land Systems of British India.
Private Janmam in Malabar Area – Ended By1934
Lands held under Ryotwari tenure after Ryotwari Settlement
In Sukapuram Sabhayogam v. State of Kerala, AIR 1963 Ker 101, it is also pointed out that notwithstanding the introduction of the Ryotwari settlement in Malabar area between 1900 and 1904, certain lands were shown as ‘private janmam’ as distinguished from ‘Government Janmam’. And, added as under:
“The practice of treating the properties of persons like the petitioner as private janmam has been completely given the go-by, at any rate, after the resettlement during 1931-1934.”
In Kannan Devan Hills Produce v. State of Kerala, AIR 1972 SC 2301; 1972-2 SCC 218, it was pointed out that it was held by the Full Bench of the Kerala High Court in Sukapuram Sabhayogam v. State of Kerala, AIR 1963 Kerala 101 that the lands, after 1934, were ‘held under Ryotwari tenure after the introduction of the Ryotwari Settlement in the Malabar area of Kerala State’.
Part II
LAND TENURES.
760 Types of Tenures in Travancore: In ‘Historical Introduction to the Kerala Land Reforms Act and the Working of the Land Tribunals’, PN Prabhakaran Pillai, Cochin University Law Review 1, No. 1 (1974), says as under:
“The land tenures that existed in the former Travancore area were very complex and special tenures and sub-tenures were numerous It may be seen that there were 760 types of tenures including sub-tenures in Travancore area alone. At the last Revenue Settlement’, an endeavour was made to systematise and simplify the tenures as far as possible. After the settlement, the number of tenures were reduced to a considerable minimum. The numerous tenures which have been recognised at the settlement may be generally traced to one or other of main two heads, viz., Sirkar or Pandaravaka and Jenmom.”
Land-Tenures– in Settlement (1910)
According to the Travancore Land Revenue Manual, Volume III (1915), the tenures fall under two main heads:
(1) Sirkar or Pandaravaga (By virtue of Proclamation of 1040 (1865) and 1061 (1886), all Sircar-pattom-lands were converted into full proprietary-lands);
(2) Janmam (Note: Janmam includes Devaswom & Brahmaswom. )
In Settlement (1910), numerous tenures had been recognized. For practical purposes, as per the Travancore Land Revenue Manual, the tenures were classified as under:
1. Sirkar or Pandaravaga
2. Sirkar Devaswom vaga
3. Kandukrishi
4. Sreepadam vaga
5. Sree pandaravaga
6. Janmam (Includes Devaswom, Brahmaswom)
1. Sirkar or Pandaravaga:
This tenure represents Sirkar as the landlord. The tenures fall under the following heads:
a) Pandarapattom,
Pandarapattom was originally in the nature of lease without any proprietary or transferable right.By the royal proclamations, the holders of these lands were given with full proprietary rights and declared to be private, heritable and transferrable property. Puthuval lands came under this tenure.
b) Otti
It was originally in the nature of a mortgage. It stood as a real or constructive loan by the State. Interest was deducted from Pattom to be paid by the holder. He had also to pay Rajabhogam (tax).
c) Enams
Enams were service enams or personal enams. Service enams were inalienable. It continue as long as the holder was in service. Personal enams were given to support individuals or families. Such properties could have been transferred by the holders.
d) Viruthi
It stood analogous to service enams. But had permanency if the holder continued his service regularly. When he died the holding passed to legal heirs subject to certain payments.
e) Special tenures
It was in the nature of enam which received special treatment.
f) Karamolivu
All Lands except janmam included under this head. The land was tax-free.
2. Sirkar Devaswom vaga
The lands under this head were originally janmam lands or private property of Devaswoms. They were held on venpattom tenure. Later on, Sirkar took over the Devaswoms and the lands were treated as Sirkar lands. Subsequently, Sirkar Devaswom lands were separated from Sirkar lands; and separate accounts were kept.
3. Kandukrishi
It was the home-farms or the private property of the sovereign. The tenants had no right in such properties.
4. Sreepadam vaga
Sreepadam lands were-
(i) thelands comprised in the free-hold villages of Idakkode, Illamba, Mudakkal, Alamkodu, Avanavancherry, Attingal and Kilattingal in the Chirayinkil Taluk, the revenue from which was wholly assigned in favour of the Sreepadam Palace; and
(ii) other lands not being pandaravaka lands situate in the State of Kerala and owned by the Sreepadam Palace (See: The Sreepadam Lands Enfranchisement Act, 1969).
5. Sree Pandaravaga
Sree Pandaravaka land was the land owned by the Sree Padmanabhaswamy Temple and registered in the revenue records as ‘Sree Pandaravaka’ (See: The Sree Pandaravaka Lands (Vesting And Enfranchisement) Act, 1971).
Sree Padmanabha Swamy Temple had originally been administered by Madathil Pillamars. The lands that belonged to the Temple were in the possession of various persons under different tenures. All such persons were liable to pay tax as ‘Rajabhogam’. The grants or Inams were made by the Kingdom for the services rendered. Such Inams included tenures like Adima, Anubhogam, Thiruvulam, Thiruvadayalam etc. The Madathil Pillamars collected the Michavaram due to Devaswom on those lands to be utilized for the poojas and other rituals to be performed in the temple.
When the Revenue Settlement was prepared (in 1910), all the properties that were classified under the names of the different Madoms were brought under the class ‘Sree Pandaravaka’. The lands that were in the names of the family members, received as personal Inams were described as Kudumbaporuthy lands.
6. Janmam (Thanathu)
It was the properties owned by Janmies. Such lands were exempted from tax.
Regulation of 1071 (1896) attracted these properties. The tax under Rajabhogam had to be paid for this land. But Devaswom and Brahmaswom thanathu lands, though came under the head ‘Janmam’, and were exempted from tax, only so long as they remained unalienated. When alienated it was charged under Rajabhogam assessment. Devaswom and Brehmaswom properties could have been subjected to outright sale.
Registered lands
The Registered Lands include, inter alia,
(a) Pandaravaka lands and
(b) Janmam lands.
Pandaravaka or Sircar-lands are lands of which the State is the landlord or Jenmi. Whatever rights which vest in the ryots (tenants) in Govt. lands are taken as derived from the Sircar.
Registered lands were that included in Sirkar Revenue accounts as lands held by or granted to individuals, families, institutions, etc.
The revenue from these lands fell under the head, ‘Ayacut’ or ‘Settled Revenue’.
Each of this field had been surveyed and settled.
The functions of the Land Revenue Department were to collect the revenue and see that no encroachment was made on adjoining Sirkar lands (puramboke, tharisu, forests).
Our Apex Court in Kannan Devan Hills Produce Company Ltd. v. State of Kerala, AIR 1972 SC 2301, 1972-2 SCC 218, held as under:
“In the Travancore Land Revenue Manual, Vol. III, Revised Edition, 1936, registered lands are described as follows:
‘Registered lands are lands registered in the revenue accounts as held by or granted to individuals, families, corporations or institutions, and comprise all the different kinds of tenures bearing either the full assessment or wholly or partially free of assessment. These lands comprise not only the areas brought under cadastral survey but include also coffee, tea, rubber and other estates, cardamom gardens and other special grants outside the limits of cadastral survey.’
The Registered Lands include, inter alia, (a) Pandaravaka lands and (b) Janmam lands.
Regarding Pandaravaka lands it is stated:
‘Pandaravaka or Sircar lands are lands of which the State is the landlord or the Janmi and whatever rights which vest in the ryots are derived from the Sircar.’ “
‘Jenmom’ was proprietary interestwith Liability to Pay Tax (Freehold)
The concepts on ‘janmam’ continued even after introduction of Tax system by Government. ‘Jenmom’ was taken the proprietary interest of a landlord in lands (Kavalappara Kottarathil Kochuni v. States of Madras and Kerala, AIR 1960 SC 1080). Subba Rao, J., observed as under:
“Under the definition, any janmam right in Kerala is an “estate”.A janmam right is the freehold interest in a property situated in Kerala.
Moor in his “Malabar Law and Custom” describes it as a hereditary proprietorship. A janmam interest may, therefore, be described as “proprietary interest of a landlord in lands” and such a janmam right is described as “estate” in the Constitution. Substituting “janmam right” in place of “estate” in cl. 2 (b), the “rights” in Art. 31 A (1) (a) will include the rights of a proprietor and subordinate tenure-holders in respect of a janmam right.
It follows that the extinguishment or modification of a right refers to the rights of a proprietor or a subordinate tenure-holder in the janmam right. A proprietor called the janmi or his subordinate tenure-holder has certain defined rights in janmam right”. Land-tenures in Malabar are established by precedents or immemorial usage. Janmam right is a freehold interest in property and the landlord is called “janmi”. He can create many subordinate interests or tenures therein.” (Quoted in: Kannan Devan Hills Produce v. The State of Kerala, AIR 1972 SC 2301)
In the Jenmi and Kudiyan Regulation, V of 1071 (1896), Jenmom land is defined as-
“land (other than Pandaravaka, Sripandaravaka, Kandukrishi or Sircar Devaswom land, recognised as such in the Sircar accounts) which is either entirely exempt from Government tax or if assessed to public revenue, is subject to Rajabhogam only, and the occupancy right in; which is created for a money consideration (Kanom) and is also subject to the payment of Michavaram or customary dues and the payment of the renewal fees.”
The Travancore Jenmi and Kudiyan Act, V of 1071 (1896), defines ‘Jenmi’ as under:
” ‘Jenmi’ means a person in whom the proprietary right over Jenmom lands is vested and includes, in the case of Devaswoms owning Jenmom lands, the managing Trustee or Trustees of the Institution for the time being.”
In Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86, it was observed with respect to the ‘Janmi’ as under:
“What the definition stresses is the proprietary right in the land. We may in this connection extract a passage from the Memorandum of Mr. Kunhiraman Nair, one of the Judges of the High Court of Travancore, about 70 years ago:
“The term ‘Jenmom’ was originally used by the Brahmins exclusively to denote their allodial proprietorship and is still used in that sense in courts and cutcherries in Travancore, though in other parts of Malayalam and in popular parlance in Travancore, the term is now universally employed to denote the full proprietary right in the land of any class of people”.
Concept of ‘Freehold lands’
“In common law jurisdictions such as England and Wales, Australia, Canada, and Ireland, a freehold is the common mode of ownership of real property, or land, and all immovable structures attached to such land. It is in contrast to a leasehold, in which the property reverts to the owner of the land after the lease period expires or otherwise lawfully terminates” (Wikipedia). It doesn’t mean that such lands are free from payment of tax or revenue to the Government.
Travancore State Manual Vol. III published by the Travancore Government in 1940, says as to the class of jenmom land which were entirely freehold and exempted from payment of any kind of tax to Government under any circumstance. These were the special properties given by the Ruler to certain individuals considering their valid services or to certain institutions including temples.
Status in ‘Janmom’ cannot be Transferred
Theoretically, status in ‘Janmom’ cannot be transferred (it being an inherent right attached to land); though ‘rights in Janmam’ can be transferred.
Sale of Janmam Properties were Recorded as “Thettoms” in Settlement Register
In 1910 Travancore Settlement Register (and in the sale deeds), lands sold by Janmam holders were recorded as “Thettoms” (Devaswom Thettom/Namboori Thettom etc.).
Note: In the 1910 Settlement Register Janmam properties (with Brahmins and Devaswoms) were recorded as “Thanathu”.
When lands were classified under various heads, ‘Janmam’ lands were denoted as ‘Tanathu’ in the Settlement Register..
When ‘Thettom’ refers to a property dealing with a Jenmam (Janmam) holder, it can be any ‘subordinate tenure falling short of the full proprietary title‘.
When it refers to a property dealing with a Non-Jenmom holder, it may mean a sale’
As regards ‘Thettom’, Raman Menon, C.J., said, in Augusti v. The Dewan of Travancore, 8 Travancore LJ 438, as under:
“In S.A. 17 of 1074, this Court remarked:-‘In the Sirkar registry of 1011, the plaint property is entered as ‘Thettom’ in the name of defendants’ Tarwad.
That expression, according to its ordinary meaning, implies at least a mortgage lien, if not more, as held by this Court in A.S.166 of 1070 and A.S. 285 of 1071. It always implies something more than a simple lease’.
In S.A. 61 of 1075, the terms was taken to be generic and to include ‘all subordinate tenures falling short of the full proprietorytitle‘.
In S.A. 302 of 1075, it was observed that the word ‘Thettom’, as applied to Nambudiri Jenmies, had been held by this court to mean ordinarily a Kanom.
In S.A. 48 of 1076, Vencoba Chariar, C.J. and Mr. Justice Kunhiraman Nair construed the words thus:- ‘The chief ground of the plaintiff’s second appeal is that in arriving at this finding the lower courts have not given sufficient weight to the fact appearing from the Ext. B – an old Revenue account – in which the land in dispute is entered as ‘Thettam’ from plaintiff’s Illom; but the word ‘Thettom’ is a somewhat ambiguous one and though, as remarked in the case in 15 TLR 161 and in other cases, it is generally used in the Revenue accounts to signify the Kanom tenure under Jenmies, it is also sometimes used to denote other subordinate tenures‘.
In S.A. 343 of 1078, we find the following remarks:-‘Thettom ordinarily means a ’Kanom’, and in any case, a derivative title when used in connection with Brahmaswam or Devaswom properties, as in the present case’.
Lastly, in A.S. Nos. 59 and 101 of 1083, Sadasiva Iyer, C.J., and Sankara Menon, J., observed thus:-‘Mr. Kochukrishna Marar quotes 15 TLR 161 and says the word ‘Thettom’ means a Kanom or mortgage.
No doubt, in the case of Jenmies, it has been so held; but we doubt whether in the case of non jenmies, any meaning other than the ordinary meaning of the word can be given to the word ‘Thettom’. The plaintiffs are Nairs and the tenure claimed is not Jenmom. The ordinary meaning of the word is acquisition. We are inclined to hold that a word ‘Thettom’, in cases of this sort, means only sale’.”
In Damodaran v. Sankaranarayanan Namboothiripad, ILR 1963-2 Ker. 707; 1964 KLT 25, the High Court referred to ‘thanathu thettom’ land (nilam); and observed – it conveys the idea of ‘acquisition’.
Pandarapattom lands in Cochin & Travancore – Proprietary Right in the Soil
In Purushothaman Nambudiri v. State of Kerala, AIR 1962 SC 694, the Supreme Court held (by majority, P.B. Gajendragadkar, A.K. Sarkar, K.N. Wanchoo, K.C. Das Gupta; and N. Rajagopala Ayyangar, dissenting) that Pandarappattom properties come within ‘estate’ under Article 31A of the Constitution. The Apex Court considered the proclamation issued by his Highness Sir Rama Varma Raja of Cochin on March 10, 1905. Clause 13 that rendered ‘full rights to the soil of the lands they hold’.
The Supreme Court (majority) held, with respect to Cochin Regulation, 1905 as under:
“It would thus be seen that under clause 13 the person holding lands on the Pandaravaka Verumpattom tenure is not a tenant. He is given the proprietary right in the soil itself,subject of course to the rights as to metals and minerals reserved in favour of the State, indeed, the whole scheme of the new Proclamation appears to be to change the character of the possession of the Pandaravaka Verumpattom tenure-holder from that of a tenant into that of a proprietor-holder. It is true that he is made liable to pay half of the net produce and that may appear to be a little too high, but the measure of the levy will not convert what is intended to be a recovery of assessment Into a recovery of rent. The proprietor of the land held on Verumpattom tenure is nevertheless a proprietor of the land and he holds the land subject to his liability to pay the assessment to the State. It is not difficult to imagine that in a fairly large number of lands held by Pandaravaka Verumpattom tenure-holders the holders in turn would let out the the lands to the cultivators and thus would come into existence a local equivalent of the class of intermediaries. Land revenue record is required to be prepared by the Proclamation and relevant entries showing the extent of the properties belonging to the respective holders and the details about their liability to pay the assessment are intended to be shown in the said record. In our opinion, it would not be reasonable to hold that the ‘lands held by the petitioner under the Pandaravaha Verumpattom tenure do not confer on him the proprietary right at all but make him a tenant of the State“.
But, N. Rajagopala Ayyangar, J., while descending, observed as under:
“In this connection I might usefully refer to a proclamation of the ruler of Travancore of 1865 (1040 M. E.) regarding Sarkar-pattom lands, with the observation that subject to variations dependent on local usages, the system of land tenure and the concepts as regards the rights of property in land were substantially similar in Travancore and Cochin. Sarkar-pattom lands were what might be termed ‘Crown lands’ of which the ruler was deemed to be the Jenmi or the landlord. Previous to the proclamation the lands were legally capable of being resumed by the ruler, though this was seldom done and the cultivators were not legally entitled to transfer their rights and where this was done the Government had the right to ignore the transaction. The fact that the cultivator was conceived of as having no proprietary interest on the land also bore adversely on the State since the State was deprived of the means of realising any arrears of revenue by bringing the holding to sale. It was to remedy this situation that the proclamation was issued and the preamble and its terms carry the impress of the impact of the ryotwari system of Madras.”
After referring the 1040 (1865) Proclamation, Ayyangar, J. said as under:
“The language employed in the proclamation is of significance. It speaks of the relinquishment or withdrawal of the right of the State and not of the conferment of a right on the ryot so as to render the ryot a grantee from the State, just in line with the Hindu Law theory of the proprietorship of the soil vesting in the occupant-cultivator.”
In Govindaru Nambooripad v. State of Kerala, AIR 1963 Ker 86 (FB), in spite of the decision in Purushothaman Nambudiri v. State of Kerala, AIR 1962 SC 694 (pertained to Cochin), it was held that Pandarapattom (Pandaravaka pattom, Pandaravakappattom, or Pandarappattom) lands in the Travancore area cannot have the protection of Article 31A of the Constitution.
Note: Overruling Govindaru Nambooripad v. State of Kerala, it was held in Rev. Fr. Victor Fernandez v. Albert Fernandez, 1971 Ker LT 1; AIR 1971 Ker 168, that Pandarapattom land in the Travancore area of the State was ‘estate’ within the meaning of Article 31-A(2)(a).
Analysing the 1040 ME Travancore Proclamation, it was held by the High Court in Govindaru Nambooripad v. State of Kerala as under:
“11. The provisions of the Proclamation do not, in our opinion, confer on the tenants absolute proprietary rights in the soil. There is no clause by which the Sirkar parted with all rights in favour of the tenants and in the absence of such a provision, the holders of such lands can only be treated as holding such lands on perpetual leases.”
Part III
Pandarapattom and Royal Pattom Proclamations of 1040and 1061
Royal Proclamations of 1040 (1865) and 1061 (1886) bound only Travancore Govt. Leases or ‘Pandarappattoms’.
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 definite finding that –
the Proclamation “secured permanency of tenure” (to the tenants),
conferred (on the tenants) “proprietary interest” in the soil; and
the Government did not remain as the full and absolute proprietor
The Court said as under:
“7. It is impossible to accept the contention advanced on behalf of the plaintiff in this case that, evenafter 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.”
Effect of the Proclamations over ‘Government Land Leases’after 1061 (1886)?
Now a question arises:
What is the impact of 1040 and 1061 (1886) Proclamations over the ‘Government Land Leases’ (Pandaravakappattoms) madeafter 1061 (1886)?
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 of permanency and ‘proprietary interest’ 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.
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.
Pandarapattom Confers Proprietary Rights: Rev. Fr. Victor Fernandez Case –
As stated above, Govindaru Nambooripad v. State of Kerala, AIR 1963 Ker 86, was overruled by the largerBench in Rev. Fr. Victor Fernandez v. Albert Fernandez, 1971 Ker LT 1, AIR 1971 Ker 168, and it was held that Pandarapattom land in the Travancore area of the State was ‘estate’ within the meaning of Article 31-A(2)(a). (See: Harrisons Malayalam Limited v. State of Kerala, 2018-2 KHC 719; 2018-2 KLT 369).
It was found in Rev. Fr. Victor Fernandez case that by the Proclamation of 1040 (1865 AD), all Sircar-pattom-lands were converted into full proprietary-lands, and rights on tenants of Pandarapattom lands had thenceforth been conferred with proprietary-rights.
In Rev. Fr. Victor Fernandez v. Albert Fernandez, 1971 Ker LT 1, AIR 1971 Ker 168, it was observed as under:
Per PT Raman Nayar, CJ, T Krishnamoorthy Iyer, P Unnikrishna Kurup, JJ.:
“11. …. We have already shown how, in the face of the Proclamation of 1040, it is impossible to regard the holders of these lands as tenants in the strict sense of that term having only the right to enjoy the land and no interest in the land as such. We have also drawn attention to the fact that what they pay to the Government is, under the very terms of the Proclamation, assessment or land tax, in other words, land revenue, and not rentproperly so-called. As stated in 1962 Ker LT 913 = (AIR 1963 Ker 86 FB). with reference to contemporary documents, the avowed purpose of the Proclamation of 1040 was to place pandarapattam lands on the same footing as ryotwari lands in the neighbouring province of Madras, and wo have no doubt that it succeeded in doing so. If the relations between the holder of a land and the Government are placed on the same footing as the relations between the holder of ryotwari land and the Government, it seems to us that it necessarily follows that the land is held under ryotwari settlement–it is the factual relationship and not the label that counts and no concept of legal rights is involved. ….
Per KK Mathew, J.
17……. To my mind the terms of the Proclamation leave no doubt that full proprietary interest has been conferred upon the holders of pandarapattom lands. ….Clause (2) is the pivotal clause; and it provides that the ryots holding such lands may regard them fully private, saleable and otherwise heritable and transferable property. Clause (4) guarantees the continued undisturbed enjoyment of the land so long as the appointed assessment is paid. Clause (6) makes it clear that the lands will be resumable by the State like other jenmom or private land only for public purpose and when resumed for such purposes compensation will be paid by the Sirkar not only for the improvements but also for the full market value of the property. Clause (7) provided that the rights conferred by the Proclamation would not in any way affect the right of the Sirkar to regulate land tax or to resume escheats or to confiscate the property of criminals. Clauses (6) and (7) are very significant. What are reserved to the Sirkar by Clauses (6) and (7) are not anv proprietary rights in the land. The rights which inhere in every sovereign in respect of every property within his jurisdiction like eminent domain, the right to impose or regulate tax, to resume escheats, to confiscate property of criminals, are alone reserved by those clauses. They not only do not derogate from the grant of full proprietary interest made by Clauses (1), (2) and (4), but would highlight that no proprietary rights have been reserved to the State. If the sovereign was careful to reserve to himself in respect of these lands only those rights which appertain to sovereignty and not any right which relates to dominium, that is a clear indication that no right relating to dominium was intended to be retained by the Sirkar. Even if the clauses were absent, the Sirkar would have those rights as they appertain to sovereignty and not to dominium. In other words, if by way of abundant caution the clauses reserved to the Sirkar only rights which appertain to sovereignty, there was absolutely no reason why the rights, if any, relating to dominium or ownership were not reserved, if the sovereign intended to retain any right in respect of the lands.….. I think, a holder of pandarapattom land satisfies even the orthodox definition of ownership by Austin. Austin defines the right of ownership as a–“right indefinite in point of user, unrestricted in point of disposition, and unlimited in point of duration, over a determinate thing.” (See ‘Jurisprudence’ by Austin, 3rd Edn., page 817.)
19. The basic concept of ‘estate’ is that the person holding the estate should be the proprietor of the soil and should be in direct relationship with the State by paying land revenue to it except where it is remitted in whole or in part. See AIR 1962 SC 694. As I have said the pattom Proclamation conferred full proprietary rights on tenants of pandarapattom lands, and they are also in direct relation with the State by paying land revenue. Since there is no definition of the word ‘estate’ in the existing local law relating to land tenure, pandarapattom land is the local equivalent of ‘estate,’ because its attributes conform to the basic concept of the term.”
Note: Another decision (with the same parties), Rev. Fr. Victor Fernandez v. Albert Fernandez, 1971 KLT 216, AIR 1973 Ker 55, was overruled in Velayudhan Vivekanandan v. Ayyappan Sadasivan, ILR 1975-1 Ker 166; 1975 KerLT 1.
Part IV
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.)
In Sahana Industries v. State of Kerala (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”.
Chitharanjan v. State of Kerala – 0n Settlement Register
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 registerat 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. On the whole, the dispute in these writ petitions has to be considered with reference to the description of the properties falling under old survey No. 2211 in the settlement register. As already noticed, the settlement register describes the property as “Puramboke”.
The petitioners, it is true, have contended that the survey numbers as per Exts.P1 to P4 are not seen described as “Tharisu” in the BTR at Ext.R1(b) and Form No.7 prepared by the Survey Authority at Ext.R1(d). But as already noticed, the prior documents produced by the Senior Government Pleader, along with the memo as noted earlier, strike at the root of the contentions raised by the petitioners. 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.”
Settlement Register – T.R. Ramachandran Nair, J.
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.”
Tharisu or Assessed Waste
Tharisu was the waste lands ‘at the disposal of the Govt’ and available for ‘extension of cultivation’. It was distinguished from poramboke. Unauthorized occupation of tharisu was also punishable.
In K. P. C. Properties represented by its Managing Partner Jerald Jacob v. State of Kerala, 2014 3 KLT(SN) 31, it is observed as under:
“The said land was classified as ‘tharisu’ in Government records and was treated as assignable lands.”
Transposition ‘tharishu’ to ‘puthual-registry’:
Detailed procedure was prescribed for transposing ‘tharishu’ to ‘puthual-registry’ in the Revenue Manuel, Under the Puthuvel Rules (1097 ME : 1922).
(Puduval) Assignment Under the Puthuvel Rules (1097 ME : 1922)
Puduval Rules were framed under Section 7 of the Government Land Assignment Regulation, III of 1097 (Chitharanjan v. State of Kerala, 24 January, 2025, 2025:KER:5422).
(Also in page 94 of the Report of the Special Officer & Collector, M.G. Rajamanickam IAS, No. GLR – (LR) – 1/2016/BRT/Co. Dated: 04.06.2016).
Puduval lands can be disposed of only in accordance with the aforestated Rules. In other words, insofar as the property is described as Puduval land, the same is required to be assigned as provided under Rule 13 of the Puduval Rules.
It was sale/lease to augment the King’s treasury and also to distribute the lands for cultivation among subjects.
Puthuval lands were lands (i) not assessed and registered in the Sirkar accounts in the name of any individual and (ii) not governed by Regulation II of 1040 (1865). The lands, when remained unregistered, were the absolute property of Government. Title was conferred to individualsby the Grant or assignment by the Government (under Puduval Rules).
Under the Puthuvel Rules (1097 ME : 1922) it had to be done by ‘public auction’ or by ‘assignment otherwise than by auction’.
Rule 13 speaks about “Assignment of Unoccupied Lands“. It reads as under:
“13. (i) All unoccupied lands available for registry shall, subject to the provisions of Rules 24 to 28, 35 and 46 (i) and (ii) and unless otherwise directed by Government, be sold by publicauction together with the reserved trees standing thereon, at an upset price to be fixed in each case by the Officer conducting the auction. The upset price shall he equivalent to the estimated value of the reserved trees standing on the lands plus the estimated Tharavila according to the importance of the land, fixed under Rule 5 or 9 as the case may be, and the cost of demarcation and survey.”
Rule 16 reads as under:
“16. On the day fixed for the sale of the land, the land shall, as proclaimed, be put up to auction, block by block, if it consists of more than one block, and sold to the highest bidder above the upset price. Provided however that no single person should be allowed, directly or indirectly, to bid for more than 50 acresof the land advertised for sale. The sale shall be conducted subject to the following general conditions:-
(i) The highest bidder above the upset price shall be declared to be the purchaser of the land, and if any dispute arises between two or more bidders at the same price, the land shall be immediately put up to auction again at the last preceding undisputed bid and sold…….”
In the Puthuval Rules there was provision for sale of lands below 5 acres, above 5 acres and also ‘Concessional Registry of Lands’ for the assignment to the members of the depressed classes or to indigent families belonging to other communities, on application made to the Tahsildar of the Taluk.
Sub rule (iii) dealt with sale of area below 5 acres it reads as under:
“(iii) If the entire area of the block is 5 acres or less, the Tahsildar need not make a requisition to the Officer referred to above but shall get the land sub-divided, if necessary, and demarcated and surveyed by the Provertikar and a sketch, drawn to scale, prepared by him. This sketch should be cheeked on the ground by the Tahsildar or the Assistant Tahsildar.”
If the encroachment was one where ‘Registry is desired’, the Rules provided for an application be taken from the occupier and dealt with under Puthuval rules. If registry was ‘not desired’ or if Puthuval registry was refused, steps could have been taken against the encroachment.
Chitharanjan v. State of Kerala, 24 January, 2025, 0n Puduval lands
In this decision it is held as under:
“9. Furthermore, this Court notices that the Government has produced the prior documents as regards the petitioner in W.P(C) No.25830 of 2010 along with a memo dated 13.11.2024. A reference to the said document – partition deed No. 460 of 64 – shows that the property in Survey No.2211 is recorded as “Puduval” land. In this connection, reference requires to be made to the Puduval Rules framed under Section 7 of the Government Land Assignment Regulation, III of 1097. Puduval lands can be disposed of only in accordance with the afore Rules. In other words, insofar as the property is described as Puduval land, the same is required to be assigned as provided under Rule 13 of the Puduval Rules. The prior deeds in support of the case set up by the petitioners do not disclose the existence of any such assignment with respect to the properties in question.
10. As regards the claim of the petitioners in W.P(C) No. 30260 of 2010, this Court notices that the petitioners have attempted to trace the title of the properties in question to the decree of the Principal Sub Court, Attingal which was later purchased by one Neelakanda Pillai as per sale deed No. 2099 of 1940. The learned Government Pleader has produced the afore- sale deed along with a memo dated 29.10.2020. The said documents also show that the property in question is ‘Puduval’ land and therefore, the requirement of an assignment is essential. But as in the connected case, here also the petitioners have no case that the documents relied on by them show that the property was covered by an assignment to support their case.
11. On the whole, the dispute in these writ petitions has to be considered with reference to the description of the properties falling under old survey No. 2211 in the settlement register. As already noticed, the settlement register describes the property as “Puramboke”.
The petitioners, it is true, have contended that the survey numbers as per Exts.P1 to P4 are not seen described as “Tharisu” in the BTR at Ext.R1(b) and Form No.7 prepared by the Survey Authority at Ext.R1(d). But as already noticed, the prior documents produced by the Senior Government Pleader, along with the memo as noted earlier, strike at the root of the contentions raised by the petitioners. 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.”
Settlement Register (Adangal) as Mentioned in Kerala VO Manual
Clause 280 in Chapter 25 of the Kerala Village Office Manual (included in Land Revenue Manual Volume VI) refers to ‘Settlement Register (Adangal)’.
Clause 280 says:
1. Settlement Register is a Permanent Register.
2. It is also called “Adangal” or “A Register”.
3. There will be 2 Annexures (or Supplements) to the Settlement Register.
4. The 1st Annexure (or Supplement) Registers kept in the Village Offices contain all matters as to the lands subsequently surveyed (that were not surveyed at the time of Settlement).
5. The 2nd Annexure (or Supplement) Registers kept in the Village Offices contain all changes subsequent to settlement (and also the changes to the land mentioned in the 1st Annexure Registers).
6. The serial number of the entries in the 2nd Annexure Registers shall be noted in the remark column of the Settlement Register.
In Travancore, after 1910, no “Settlement” or “Settlement Register” has been made 2018(2) KLT 369 (HML case, Para 111).
‘Adangal’is a term originally used in the erstwhile Madras State. It is a Revenue Record based on the survey conducted.
In Cl. 281, Basic Tax Register (BTR) is specifically referred to. It is described as a “Permanent Register”.
Note: Clause 280 in Chapter 25 of the Kerala Village Office Manual referred to the Supplements to the Settlement Register because the Re- Survey is not completed throughout the State. In the Areas where the Re-Survey is conducted and BTR is made, the Supplement Registers have no application.
But, even in places where Re-Survey is effected, the 1910 Settlement Register (“A-Register”) is to be maintained (as a ‘permanent register’).
It is also noteworthy that no Settlement is made after 1910.
As a matter of fact, in Village Offices the Registers are maintained with the name “A-Register” containing the particulars in BTR; and “B-Registers”, to incorporate the subsequent changes made in the land (after preparation of the BTR) though they are not specifically directed in Kerala Village Office Manual. It is exactly corresponds to the “second additional register” stated in Cl. 281 of the Village Office Manual which is directed to be maintained in addition to the 1910 Settlement “A-Register”
Note: Settlement A to D Registers are (originally) referred to in the Travancore Land Revenue Manual, Vol. III (1915), in Cl. 712 and 713, respectively.
As regards the authority of “Manuals” it is observed in State of Kerala v. Navaneeth Krishnan, ILR 2023-3 Ker 686; 2023-4 KLT 756, as under:
“The Apex Court in Lalita Kumari v. Govt. of U.P. [2013 (4) KHC 552: 2014-2 SCC 1] in paragraph 79 considered the binding authority of the CBI Crime Manual. It was held that CBI Crime Manual is not a statute, it is only a set of administrative orders issued for internal guidance of the CBI officers and it cannot supersede the provisions of Cr. P.C. It was further held that in the absence of any indication to the contrary in the Cr. P.C itself, the provisions of the CBI Crime Manual cannot be relied upon. A Single Bench of this Court in Santhosh T. A. And Another v. State of Kerala [2017 (5) KHC 107] dealt with the binding authority of the Kerala Excise Manual under the Abkari Act. It was held that the Manual contains only executive instruction and has no force of a statutory provision.”
In Jacob v. State of Kerala, 1964 KLT 359, it had been held (Vaidyalingam, J.), as under:
“The instructions or directions contained in the Travancore Land Revenue Manual … have not been given by virtue of any rule making power vested in the. Government, either under the provisions of the Travancore Revenue Recovery Act or under the provisions of the Travancore-Cochin Revenue Recovery Act. …. If that is so, the directions contained in the Travancore Land Revenue Manual can only be considered to be in the nature of executive directions and they will have no force whatsoever, especially in view of the fact that S.6 of the Travancore-Cochin Revenue Recovery Act, 1951 lays down that the sale of immovable property of the defaulter shall be “in the manner provided hereinafter”.
End Notes
Presumption in Evidence Act under S. 114
Besides direct evidence and admission, the contents of a document can also be proved by circumstantial evidence or by invoking presumption. ‘Common course of natural events’, ‘human conduct’, etc. under S. 114, Indian Evidence Act, 1872, can be used to prove the existence and genuineness/truth of a document. Sec. 114 Evd. Act reads as under”
“S. 114. Court may presume existence of certain facts– The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”
Under Sec. 114 the court can presume existence of truth or correctness (a fact) which ‘it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business’.
Illustration (e) of Sec. 114, Evd. Act
Illustration (e) of Sec. 114, Evd. Act, demonstrates that presumption as to ‘regularity’ can be invoked on Judicial and official acts, in proper cases.
‘Regularity’ in Illustration (e) is not exactly the presumption as to ‘correctness or truth’. For such presumption, we have to resort the main section, Sec. 114 – that is, ‘common course of natural events’, ‘human conduct’, etc.
General (Sec. 114)Presumptions in Evidence Act
Sec. 114 of the Evidence Act allows the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Relevancy, Admissibility and Presumptions on Truth under Sec. 16, 34, 35
Sec. 16, 34, 35, etc. of the Evidence Act speaks only on ‘relevancy’ of documents. It directs towards the ‘admissibility’. The ‘truth or otherwise’ attached to its contents can be ‘presumed’ under Sec. 114.
Documents in the Course of Business – Relevant Fact under Sec. 16
Sec. 16 of the Indian Evidence Act: Sec. 16 reads as under:
16. Existence of course of business when relevant: When there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is a.
Illustrations to Sec. 16 make it clear that (a) when a question arises whether a particular letter was dispatched, the facts that it was the ordinary course of business for all letters put in a certain place to be carried to the post, and that particular letter was put in that place, are relevant; and that (b) when a question arises whether a particular letter reached A, the fact that it was posted in due course, and was not returned through the Dead Letter Office, are relevant.
In Puwada Venkateswara Rao v. Chidamana Venkat Ramanaa, AIR 1976 SC 869, the Apex Court found that a letter sent by registered post, with the endorsement “refused” on the cover, could be presumed to have been duly served upon the addressee without examining the postman who had tried to effect service and it was observed that there was presumption underSec. 114 of the Evidence Act that, in the ordinary course of business, it was received by the addressee and actually refused by him.
Illustration (f) of Sec. 114 of the Evidence Act speaks that the common course of business has been followed in particular cases. Under this Illustration, it can be presumed the common course of business has been followed in particular cases. A registered postal receipt along with a copy of the letter containing the court notice and bearing correct address raises a presumption that it was duly received by the addressee, in spite of the absence of a return of acknowledgement (Anil Kumar vs. Nanak Chandra: AIR 1990 SC 1215). but, the addressee can rebut it (Radha Kishan vs. State: AIR 1963 SC 822).
Sec. 32: ‘Presumption Of Truth’ on Documents Falls Relevant Under Sec. 32
Sec. 32 Evidence Act reads as under:
“32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. –– Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:
(1) When it relates to cause of death …. …..
(2) Or is made in course of business. –– When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him
(3) …..”
Presumption on Truth on Documents Prepared under Sec. 35
Sec. 35 of the Evidence Act reads as under:
“35. Relevancy of entry in public record or an electronic record made in performance of duty: An entry in any public or other official book, register or record or an electronic record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or record or an electronic record is kept, is itself a relevant fact.
In Inder Singh v. S. Raghbir Singh, AIR 1978 P&H 98, it is observed as under:
“The principle is that an official record, kept by a person, upon whom there is a public duty to make entries in it only after satisfying himself of the truth of those entries, is presumed to be correct. Such a document itself is evidence of the truth of its contents unless and until its falsity can be demonstrated by any of the various methods by which the evidentiary value of any public book, register or document may be attacked.”
Our Apex Court, in Partap Singh v. Shiv Ram: AIR 2020 SC 1382, referring relevant provisions of Himachal Land Revenue Act, 1954 and Sec. 35 of the Evidence Act, held that Record-of-rights (Revenue document) carries the ‘presumption of correctness‘.
In Shiv Ram v. Shiv Charan Singh, AIR 1964 Raj 126, it is observed as under
“Where Sec. 35 properly comes into play, an entry made by a public servant in any public or official book in the discharge of his official duty becomes relevant by itself, and no other proof of such entry is requiredas a matter of law by our Evidence Act, but this, does not exclude the possibility that such an entry may become admissible otherwise if it is properly proved to have been made by a person ordinarily competent to make it.” (Quoted in Mayadhar Nayak vs Sub-Divisional Officer, Jajpur, AIR 1982 Ori 221).
Wajibul-Arz – Part of Settlement RecordPresumption of Correctness Attached
The Privy Council has held in Fatea Chand v. Knshan, 10 ALJ 335, that wajibul-arz is a cogent evidence of rights as they existed when it was made.
The value of wazibul-aiz has been accepted to be very high in Anant Prasad v. Raja Ram, 1984 Supp AWC 194 and Yash Pat Singh v. Jagannath, 1946 ALJ 132.
In Avadh Kishore Das v. Ram Gopal, AIR 1979 SC 861, (1979) 4 SCC 790, it is observed as under:
“Wajibularz is village administration paper prepared with due care and after due enquiry by a public servant in the discharge of his official duties. It is a part of the settlement record and a statutory presumption of correctness attaches to it. Properly construed, this Wajibularz shows that the entire revenue estate of village Bahawalpura vests in the Temple or the Math as a juristic person.”
In Harpal Singh v. State of H. P. , AIR 1981 SC 361; 1981-1 SCC 560, it was held as under:
“A certified copy of the relevant entry in the birth register which shows that Saroj Kumari, who according to her evidence was known as Ramesh during her childhood, was born to Lajwanti wife of Daulot Ram on 11-11-1957. Mr, Hardy submitted that in the absence of the examination of the officer/chowkidar concerned who recorded the entry, it was inadmissible in evidence. We cannot agree with him for the simple reason that the entry was made by the concerned official in the discharge of his official duties, that it is therefore clearly admissible under Section 35 of the Evidence Act and that it is not necessary for the prosecution to examine its author.”
In Ravinder Singh Gorkhi v. State of U. P. , AIR 2006 SC 2157; 2006 5 SCC 584, it was observed that there was nothing on record to show that the said date of birth was recorded in a register maintained by the school in terms of the requirements of law as contained in Section 35 of the Indian Evidence Act, and thereafter it was held as under:
“22. Section 35 of the Evidence Act would be attracted both in civil and criminal proceedings. The Evidence Act does not make any distinction between a civil proceeding and a criminal proceeding. Unless specifically provided for, in terms of Section 35 of the Evidence Act, the register maintained in ordinary course of business by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which, inter alia, such register is kept would be a relevant fact. Section 35, thus, requires the following conditions to be fulfilled before a document is held to be admissible thereunder :
(i) it should be in the nature of the entry in any public or official register;
(ii) it must state a fact in issue or relevant fact;
(iii) entry must be made either by a public servant in the discharge of his official duty, or by any person in performance of a duty specially enjoined by the law of the country; and
(iv) all persons concerned indisputably must have an access thereto.”
Revenue record Presumption of Truth Attached
It is held in Krishnamurthy S. Setlur v. O.V. Narasimha Setty, 2019-9 SCC 488, that revenue record proves possession. It is said as under:
“14. In our considered view, the High Court has not given any cogent reasons for coming to the conclusion that KS was not in possession of the property. His name figured in the revenue record from 1963 to 1981 as the owner in possession. Presumption of truth is attached to revenue record which has not been rebutted.”
Referring relevant provisions of Himachal Land Revenue Act, 1954 and Sec. 35 of the Indian Evidence Act, 1872, it is held in Partap Singh v. Shiv Ram: AIR 2020 SC 1382, that Record-of-rights (Revenue document) carries the ‘presumption of correctness‘.
It is observed: There is ‘Duplicate Ownership’, in ‘Trust’, according to Salmond.
But, the Theory of ‘Duel Ownership’ (Propounded in English Trust Law) is Not Preferred in India
Saji Koduvath, Advocate, Kottayam.
Lucknow Nagar Nigam v. Kohli Brothers Colour Lab: Facts in a Nutshell
Raja of Mahmudabad owned the subject property situated at Mahatma Gandhi Marg, Lucknow. He had migrated to Pakistan in 1947.
His property was treated as an ‘Enemy Property’ under the Enemy Property Act, 1968.
There is a statutory vesting of such property in the Custodian for Enemy Property.
The Custodian is under the Ministry of Commerce, Government of India.
Raja Mohammed Amir Mohammad Khan, the son of the Raja of Mahmudabad, remained in India as an Indian citizen.
He had been actively seeking the release of enemy properties owned by his late father.
Though the Government had agreed to release 25% of these properties, it had not yet acted upon this commitment.
In this situation, Raja Mohammed Amir Mohammad Khan approached the Bombay High Court in 1997 filing a Writ Petition.
The High Court ruled in his favour, directing the Custodian to surrender possession of the properties to him.
Being aggrieved with this decision, the Union of India approached the Apex Court by way of filing SLP in 2001.
The Apex Court by its judgment, Union of India v. Raja Mohammad Amir Mohammad Khan, (2005) 8 SCC 696, dismissed the appeal.
The Apex Court also directed the Union of India to get the buildings (residence or offices) vacated from such officers and handover the possession to Raja Mohammed Amir Mohammad Khan within eight weeks.
Thereafter proceedings were initiated by various tenants, including respondent No.1.
The Apex Court, in the SLP clarified its earlier judgment dated 21.10.2005 saying that the persons claiming possession prior to the Custodian’s appointment, based on valid tenancy agreements established by Raja Mahmudabad or his General Power of Attorney, were exempted from the directives.
The enquiry conducted in pursuance to the above orders of the Apex Court resulted in a report in favour of respondent No.1 herein. Ergo, they continued to remain in possession.
Following these events, on 28.05.2011, the appellant No.3, Jal Sansthan Lucknow, issued a notice to respondent No.1, demanding payment of Rs. 7,57,239.00 to pay the pending bills of Water Tax/Sewer Tax/Water price of Rs. 7,57,239/- by 31.03.2011.
Aggrieved by the aforesaid action, the assesse, respondent No.1, approached the High Court of Allahabad at Lucknow by filing Writ Petition. It was allowed, holding that the assesse/ occupier was not liable to pay any property tax.
SLP was filed against this decision.
SC Findings in Brief
The Apex Court allowed the appeal on the following findings, in brief:
Custodian for Enemy Property in India is a trustee only.
Union of India cannot assume ownership of the enemy properties.
Occupier of the subject property is liable to pay local taxes.
The Apex Court held as under:
“1) That the Custodian for Enemy Property in India, in whom the enemy properties vest including the subject property, does not acquire ownership of the said properties. The enemy properties vest in the Custodian as a trustee only for the management and administration of such properties.
2) That the Central Government may, on a reference or complaint or on its own motion initiate a process of divestment of enemy property vested in the Custodian to the owner thereof or to such other person vide Rule 15 of the Rules. Hence, the vesting of the enemy property in the Custodian is only as a temporary measure and he acts as a trustee of the said properties.
3) That in view of the above conclusion, Union of India cannot assume ownership of the enemy properties once the said property is vested in the Custodian. This is because, there is no transfer of ownership from the owner of the enemy property to the Custodian and consequently, there is no ownership rights transferred to the Union of India. Therefore, the enemy properties which vest in the Custodian are not Union properties.
4) As the enemy properties are not Union properties, clause (1) of Article 285 does not apply to enemy properties. Clause (2) of Article 285 is an exception to clause (1) and would apply only if the enemy properties are Union properties and not otherwise.
5) In view of the above, the High Court was not right in holding that the respondent as occupier of the subject property, is not liable to pay any property tax or other local taxes to the appellant. In the result, the impugned order of the High Court dated 29.03.2017 passed in Misc. Bench No.2317 of 2012 is liable to be set aside and is accordingly set aside.
6) Consequently, any demand for payment of taxes under the Act of 1959 made and thereby paid by the respondent to the appellant-authority shall not be refunded. However, if no demand notices have been issued till date, the same shall not be issued but from the current fiscal year onwards (2024-2025), the appellant shall be entitled to levy and collect the property tax as well as water tax and sewerage charges and any other local taxes in accordance with law.”
In the Judgment, it is observed (obiter) as under:
“A trust is a very important and curious instance of duplicate ownership.”
Theory of ‘Duel Ownership’, Under English Trust Law, is Not Preferred in India
Under English law of trusts, there is ‘duel ownership’ over the trust property.
First is the ‘legal ownership’. It is vested with trustees.
The other is the ‘equitable or beneficial ownership’. It is vested with the beneficiaries.
Indian law on trusts differs from English-Trust-Law on the doctrine of ‘duel ownership’. Under Indian law –
Trustee is the ‘sole’ (legal) owner of the trust property; and, there is no ‘duel/duplicate ownership’.
Beneficiaries do not have ‘beneficial ownership’; they have only ‘beneficial interest’.
Trustees only ‘hold’ the trust property, and it is for mere administration.
Trustees hold the trust property for the ‘benefit of the beneficiaries’; not ‘on their behalf‘.
Since the trustees only ‘hold’ the properties for the beneficiaries, no legal ‘title’ vests with the trustees, though they have legal ‘ownership’.
Salmond Propounds Doctrine of ‘Duel Ownership’
Under English law, when the author of the trust creates a trust, by the dedication of the endowed property, he transfers the ‘legal ownership’ on the trust-property to the trustees and ‘beneficial ownership’ to the beneficiaries. Salmond on Jurisprudence (12th Edition, page 256) refers these propositions as under:
“A trustee is the legal owner of the property, the actual owner thereof having lost title thereto by the creation of a trust. The equitable ownership in the trust property vests in the beneficiaries. The trust is thus an incident of dual ownership in which the creator of the trust no longer figures.”
Doctrine of ‘Duel Ownership’ has no Universal Acceptance.
Doctrine of duel-ownership on trust property is peculiar to English law. It has no universal acceptance.
In The I Congresso Del Partido [(1977) 1 Lloyd’s Rep. 536] the Queen’s Bench Division (Admiralty Court) pointed out that the trust-concept ‘involving a dichotomy between legal and equitable ownership is unknown to some, and perhaps most, other jurisdictions’. [Referred to in Owners and Parties Interested in the Vessel M.V. “Dong Do” v. Ramesh Kumar, (2000) 1 Cal LT 367].
Definition of Trust in the Indian Trusts Act, 1882
Sec. 3 of the Indian Trusts Act, 1882 defines trust as under:
“Trust: A ‘trust’ is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner:
From the definition it is clear that ‘Trust’, in law, holds the following conceptions:
Trust is ‘an obligation’ upon the trustee.
It is to administer the endowed property.
The administration must be done by the trustee as if he is the owner.
It must be done by him accepting the desire of the author.
And, the same must be for the benefit of the beneficiaries.
‘Trustee’ is the Sole ‘Owner’ According to the Definition of ‘Trust’
From the definition of ‘trust’ in the Indian Trusts Act, 1882 it is clear that the Act does not recognise ‘beneficial ownership’ in the beneficiaries. It recognises ‘ownership in trustee’ alone.
The definition of trust in Sec. 3 can be analysed as under:
(i) A ‘trust’ is an obligation-
annexed to the ownership of property (to administer), and
(i) arising out of a confidence reposed in (trustee, by the author) and accepted by the owner (that is, trustee, the legal owner), or (ii) declared and accepted by him(that is, trustee),#
for the benefit of another, or of another and the owner (that is, trustee, the legal owner).
# the obligation that is declared and accepted by the same person. This situation comes-up when the the author himself declares to act as trustee. See notes below under the head: ‘Obligation … Declared And Accepted By Him’.
(ii) Confidence is ‘Reposed’ by the Author
Trust is defined to be an obligation arising out of a confidence ‘reposed in’ (the owner/trustee). When the ‘author of the trust’ is defined, it is stated:
“The person who reposes or declares the confidence is called the ‘author of the trust’.”
Therefore, it is definite that the words, ‘confidence reposed in the owner’, denote the confidence that is ‘reposed’ by the author ‘in the owner’. (Allahabad Bank Vs. IT Commr.: AIR 1953 SC 476; Chikkamuniyappa Reddy Vs. State of Karnataka: ILR 1997 Kar 2460; Dinshaw Rusi Mehta Vs. State of Maharashtra: AIR 2017 SC 1557.)
(iii)The ‘Owner’ in whom the Confidence is ‘Reposed’, is Trustee
As stated above, it is the author who ‘reposes’ the confidence; and the confidence is ‘reposed in’ the ‘owner‘. Then, who is the ‘owner’?
It is trustee. (Khairul Bashar Vs. ThannuLal: AIR1957 All 553; Mysore Spinning and Manufacturing Co Vs. CIT: 1966-61 ITR 572 (Bom); Christopher Karkada VS Church of South India: ILR 2012 Kar 725; Chockalinga Sethurayar Vs. Arumanayakain: AIR 1969 SC 569; Rajah SagiJanaki Vs. Appururu Bhukta: 1976-2 AndWR 117, 1976-1 APLJ 312; Special Secy. Govt of WB Vs. State Bank of India: AIR 1989 Cal 40; CIT Vs. K Shyamaraju: 1991-1 KantLJ 233; Chikkamuniyappa Reddy Vs. State of Karnataka: ILR 1997 Kar 2460.)
The nexus betweenowner and trustee is clear from the definitions of ‘trust’ and ‘trustee’.
When ‘trust’ is defined, it is stated:
the confidence is ‘accepted by the owner’;
When ‘trustee’ is defined, it is stated:
the confidence is ‘accepted by the trustee’.
According to the definition of trust, the ‘obligation’ stands‘ annexed to the ownership’ of the trust-property. Sec. 6 of the Trusts Act makes it clear that ‘a trust is created when the author of the trust transfers the trust property to the trustee’. Therefore, the ‘obligation’ upon the trustee casts a duty upon him to administer the trust-property as (if) he is its ‘owner’.
(iv)The definition of Trust can be explained as under:
A trust is an obligation annexed to the ownership of property,
Trust is an obligation (upon trustee to administer the trust-property as its (legal) owner. (Sec. 11 of the Trusts Act casts duty on the trustee to execute the trust, by fulfilling ‘the purpose of the trust’, and obeying ‘the directions of the author of the trust’.) (Ramabai Govind Vs. Raghunath Vasudevo: AIR 1952 Bom 106; State Bank of India Vs. Spl. Secretary: 1995-Supp. 4 SCC 30; Bhavna Nalinkant Vs. Commr. Gift Tax: 2002-174 CTR 152,2002-255 ITR 529)
and arising out of a confidence
Duty of a Trustee is fiduciary in nature. (R P Kapur Vs. Kaushalya Edl Trust: 1982-21 DLT 46: ILR 1982-1Del 801; Gobinda Chandra Ghosh Vs. Abdul Majid: AIR1944 Cal 163)(Paru Vs. Chiruthai: 1985 KerLJ 480, 1985 KerLT 563: Referred: UN Mitra’s Law of Limitation and Prescription, 9th Edn., Vol. II, at page 1574, Para 66; Bhavna Nalinkant Vs. Commr Gift Tax: 2002-174 CTR 152: 2002-255 ITR 529; CBSE Vs. Aditya Bandopadhyay: AIR 2011 SCW 4888: 2011-8 SCC 497; Reserve Bank of India Vs. Jayantilal N. Mistry: AIR 2016 SC 1.) It is moral as well as legal. (Dinshaw Rusi Mehta Vs. State of Maharashtra: AIR 2017 SC 1557.)
reposed in
Confidence is reposed in Trustee (by the Author). (Mysore Spinning Vs. Commr of IT: ITR 1966-61 572 (Bom); Ramdass Trust Vs. Damodardas: 1967 RLW(Raj) 273; Canara Bank Vs. State of Kerala: AIR 1982 Ker 1: ILR 1981-2 Ker 649; R P Kapur Vs. Kaushalya: 1982-21 DLT 46; ILR 1982-1 Del 801; Chikkamuniyappa Reddy Vs. State of Karnataka: ILR 1997 Kar 2460.)
and accepted by the owner,
Trustee the (legal) owner, must have accepted the confidence (reposed in by the author).(Mysore Spinning Vs. Commr of IT: ITR 1966-61 572 (Bom); R P Kapur Vs. Kaushalya: 1982-21 DLT 46; ILR 1982-1Del 801; Chikkamuniyappa Reddy Vs. State of Karnataka: ILR 1997 Kar 2460; DinshawRusi Mehta Vs. State of Maharashtra: AIR 2017 SC 1557. Trustee is the owner: Chhatra Kumari Devi Vs. Mohan Bikram Shah: AIR 1931 PC 196; WO Holdsworth Vs. The State of Uttar Pradesh: AIR 1957 SC 887; Khairul Bashar Vs. Thannu Lal: AIR1957 All 553; Ramdass Trust Vs. Damodardas: 1967 RLW (Raj) 273; Quoted in: Sagar Sharma Vs. Addl. CIT: 2011-239 CTR 169: 2011-52 DTR 89. Benafasilal Rajgorhia Vs. Central Bank of India: 1971-76 Cal WN 807; Bomi Munchershaw Mistry Vs. Kesharwani Co Op H. Society: 1993 BCR 301; Chikkamuniyappa Reddy Vs. State of Karnataka: ILR 1997 Kar 2460.)
or declared and accepted by him
Trustee (when author himself is the truste) (Heeralal Vs. Firm RatanlalMahavir Prasad:1964 RajLW 33) can ‘declare and accept’ the ‘confidence’.
for the benefit of another, or of another and the owner.
Author creates trust for the benefit of others. Trustee can be one among the beneficiaries.
Indian Law Recognises ‘Legal Ownership‘ on Trustees; Not ‘Title‘
The Privy Council, in Chhatra Kumari Vs. Mohan Bikram (AIR 1931 PC 196) held as under:
“The Indian Law does not recognise legal and equitable estates. By that law, therefore, there can be but one owner; and where the property is vested in a trustee, the owner must, their Lordship think, be the trustee. This is the view embodied in the Indian Trusts Act: See Sec. 3, 55, 56, etc. … ” (Quoted in Special Secy. Govt of W B Vs. State Bank of India: AIR 1989 Cal 40; Christopher Karkada Vs. Church of South India: ILR 2012 Kar. 72; Raja Sir Muthiah Chettiar Vs. Commissioner of IT: 1984-38 CTR 76: 1984-17 TAXMAN 142: 1984-148 ITR532: Commissioner of Income Tax Vs. Ganga Properties Ltd: 1970-77 ITR 637; Sardarilal Vs. Shrimati Shakuntla Devi: AIR 1961 P&H 378.)
Inasmuch as Indian Law does not recognise legal and equitable estates (‘ownership’) (Chhatra Kumari Vs. Mohan Bikram: AIR 1931 PC 196.) and trustee alone has ownership (legal ownership), this ‘ownership’ of trustees is not the ‘legal (or trust) ownership’ that is understood in English law.
In English law, when ‘legal ownership’ is referred to, it denotes ‘legal estate’. It is one component the duel-ownership. It confers a ‘title’ upon the trustee. But, in Indian Law, the trust properties ‘vest’ in the trustees for the limited purpose of administration or management; and the trustees only ‘hold’ the properties. (Thiagesar Dharma Vanikam Vs. Comner. IT, Madras: AIR 1964Mad 483).
Indian Law Does Not Recognise Equitable Ownership (Estate) of Beneficiaries
Similarly, the Indian Trusts Act does not refer to ‘beneficial ownership’; it refers merely to ‘interest’ or ‘beneficial interest’ of the beneficiary. (See: Ram Bharose Sharma Vs. Mahant Ram Swaroop: 2001 AIR- SCW 4062: Mitar Sain Vs. Data Ram: AIR 1926 All 7; Urshottam Vs. Kanhaiyalal: AIR 1966 Raj 70.) It is clear from the following affirmations in the definition of ‘trust’ in Sec. 3 of the Indian Trusts Act, 1882:
(i) “A ‘trust’ is an obligation … arising out of a confidence reposed in and accepted by the owner… for the benefit of another….”
(ii) “(T)he ‘beneficial interest’… is his (beneficiary’s) right against the trustee as owner of the trust property.”
In English law, when ‘beneficial interest’ is referred to, it denotes – ‘beneficial ownership’ or ‘beneficial estate’, the second component among the duel ownership.
The courts in India have followed the principles in Trusts Act, as to legal ownership of trustees and beneficial interest of the beneficiaries, in Common Law of Trust; and disfavoured doctrine of ‘duel ownership’. (Chhatra Kumari Devi Vs. Mohan Bikram Shah: AIR 1931 PC 196; WO Holdsworth Vs. The State of Uttar Pradesh: AIR 1957 SC 887; Commissioner of Wealth Tax Vs. Kripashankar: AIR 1971 SC 2463, Bai Dosabai Vs. Mathuradas: AIR 1980 SC 1334; Bomi Munchershaw Mistry Vs. Kesharwani Co Op H. Society: 1993-2-BCR-301; Hem Chandra Vs. Suradham Debya: AIR 1940 P.C. 134; Ramabai Govind Vs. Raghunath Vasudevo: AIR 1952 Bom 106. Deoki Nandan Vs. Murlidhar: AIR 1957 SC 133; Behari Lal Vs. Thakur Radha Ballabhji: AIR 1961 All 73.)
Thus, under the Law of Trust in India, trustee holds the trust property as its sole (legal) owner, subject to the obligation to use this ownership for the benefit of the beneficiaries (Kansara Abdulrehman Sadruddin Vs. Trustees, Maniar Jamat: AIR 1968 Guj 184).
The legal entitlement of beneficiaries in a trust (that is, beneficial interest) is legibly stated in The Province of Bihar v. FR Hayes, 1946-14 ITR 326 (Patna), by Fazl Ali, CJ (as he then was) while interpreting Bihar Agricultural Income-Tax Act, 1938, referring the definition of trust in the Indian Trusts Act, as under:
“The framers of the Act must be assumed to have known the accepted legal meaning of the expression and also known that the term ‘beneficiary’ in law is not generally used with reference to a full legal owner but with reference to a person who has ‘beneficial interest’ in some property which is usually in the possession and control of another person. The distinction between beneficial interest and legal ownership is one of the most notable features of a trust and in my judgment ‘beneficiaries’ referred to in Section 11 are those persons who have merely beneficial interest in a property while the legal ownership of the property vests in a person or persons who hold the property for their benefit.”
Trustee Holds ‘For the Benefit Of’; Not ‘On Behalf Of’ the Beneficiaries
The Indian Trusts Act, 1882 repeatedly lays down – trustees are ‘holding’ trust property (Sec. 10, 29 and Chap. IX: Sec. 80 onwards). It is subject to the obligation to use his ownership ‘for the benefit of’ the beneficiaries.
Sec. 10 of the Indian Trust Act, 1882 reads:
10. Who may be trustee.—Every person capable of holding property may be a trustee; but, where the trust involves the exercise of discretion, he cannot execute it unless he is competent to contract.
Sec. 29 of the Indian Trust Act, 1882 reads:
“29. Liability of trustee where beneficiary’s interest is forfeited to Government.—When the beneficiary’s interest is forfeited or awarded by legal adjudication to the Government, the trustee is bound to hold the trust property to the extent of such interest for the benefit of such person in such manner as the State Government may direct in this behalf.”
In WO Holdsworth Vs. State of Uttar Pradesh (AIR 1957 SC 887; See also: Ramabai Govind Vs. Raghunath Vasudevo: AIR 1952 Bom 106) it is laid down by our Apex Court as under:
“23. Whatever be the position in English Law, the Indian Trusts Act, 1882 (2 of 1882) is clear and categoric on this point. … These definitions emphasise that the trustee is the owner of the trust property and the beneficiary only has a right against the trustee as owner of the trust property. The trustee is thus, the legal owner of the trust property and the property vests in him as such. He, no doubt, holds the trust property for the benefit of the beneficiaries but he does not hold it on their behalf. The expressions ‘for the benefit of’ and ‘on behalf of’ are not synonymous with each other. They convey different meanings.”
Our Apex Court observed in Comm. Wealth Tax Vs. Kirpashanker Dayashankar, AIR 1971 SC 2463, that the trustee holds the trust property ‘on his own right’ and not ‘on behalf of’ someone else though he holds it ‘for the benefit of’ the beneficiaries. Obligations are casted upon trustees, only to manage the trust property for the benefit of the beneficiaries. It is beyond doubt that the trustee has no ‘proprietary interest’ inasmuch as the beneficial interest is ‘carved out (Christopher Karkada Vs. Church of South India: ILR 2012 Kar 725; Ramabai Govind Vs. Raghunath Vasudevo: AIR 1952 Bom 106; Special Secy. Govt. of W B Vs. State Bank of India: AIR 1989 Cal 40) in the property itself. (It is not a mere ‘right’ similar to ‘right of easement’ for the dominant owner; but, it is an ‘interest’.) In dealings with the world at large, the trustee personates or represents as the owner of the property (Govardhandhari Devsthan Vs. Collector of Ahmednagar: AIR 1982 Bom 332. Kapoorchand Rajendra Kumar Jain Vs. Parasnath Digambar: 2000-1 MPJR 199).
The Legal Principles are Vividly Explained
The legal principles related to the Trust are vividly explained by our Apex Court in Lucknow Nagar Nigam v. Kohli Brothers Colour Lab. Pvt. Ltd., 2024-2 SCR 847.
While so, the view of Salmond is pointed out –
“A trust is a very important and curious instance of duplicate ownership. According to Salmond, the trust property is that which isowned by two persons at the same time …”.
It appears, the Court did not place the Indian law, on this matter (Note: Observations on this point is obiter.)
The Apex Court said as under:
“14.9 Amongst the distinct kinds of ownerships, a trust ownership and beneficial ownership is relevant to the case. A trust is a very important and curious instance of duplicate ownership. According to Salmond, the trust property is that which is owned by two persons at the same time, the relation between the two owners being such that one of them is under an obligation to use his ownership for the benefit of the other. The former is called the ‘trustee’ and his ownership is the ‘trust ownership’; the latter is called the ‘beneficiary’ and his is beneficial ownership.
14.10 The trustee’s ownership of any property is a matter of form rather than a substance and nominal rather than real. A trustee is not effectively an owner at all but in essence a mere agent, upon whom the law has conferred the power and imposed the duty of administering the property of another person. The trustee is a person to whom the property, substantially that of someone else is technically attributed by the law on the footing that the rights and powers that it vests under him are to be used by him on behalf of the real owner. As between the trustee and beneficiary, the law recognises that the property belongs to the latter and not to the former. But as between the trustee and the third persons, the fiction prevails, inasmuch as the trustee is clothed with the rights of his beneficiary and personate or represent him in dealings with the world at large. ……
14.11 Thus, the trusteeship is to protect the rights and interests of persons, who, for any reason are unable effectively to protect them for themselves. The law vests those rights and interests for safe custody in a trustee, who is capable of guarding them and dealing with them and who is placed under an obligation to use it for the benefit of him to whom they in truth belong. One of the classes of persons on whose behalf the protection of the trusteeship is called is in respect of the property of those persons who are absent in the country, such as a person who has migrated to a country which is described as an enemy country by the Government of India as defined under the provisions of the Act under consideration.
14.12 Thus, under the Act, the Custodian acts as a trustee. A trust is more than an obligation to use the property for the benefit of another; it is an obligation to use it for the benefit of another in whom it is already concurrently vested. Since the beneficiary is himself the owner of the enemy property, in the instant case, the Custodian who is the trustee appointed under the Act is therefore a statutory authority constituted for the administration of the enemy property, who is only a nominal owner of the property so administered by him vis-à-vis third parties. As already noted, the nominal ownership in the trustee is only for the purpose of using the rights and powers vesting with the trustee i.e., Custodian under the Act to be used by him or on behalf of the real owner of the property is absent, since he has left the country for an enemy country.
14.13 The trustee or Custodian under the Act may, in pursuance of the powers vested in him under the Act which actually creates a trust by operation of law, can lease or mortgage the property without the concurrence of the beneficiary under the provisions of the Act just as the beneficiary could have dealt in the same way with his ownership of the property independently of the trustee as there is no bar in law to do so other than the provisions of the Act. Thus, a relationship of trusteeship exists between the trustee and all persons beneficially interested in the property, either as owners or encumbrancers.”
Travancore – Padmanabha Swamy Temple and ‘Bhandara Vaka’ Lands
The powerful King, Marthandavarma, who ruled Travancore from 1729 to 1758, was successful in bringing all people and properties of Travancore (Southern Kingdom at present Kerala) under his administration; and collected tax from all lands except those that were expressly exempted.
The King of Travancore placed himself (trippadi-danam) as the servant of the deity. The entire assets of Travancore were regarded as the property that belonged to the Treasury or Offertory (Bhandaram in Malayalam; Pandaram in Tamil) of the Principal deity – Sree Padmanabha Swamy Temple at Thiruvanamthapuram.
Royal Pattom Proclamation of 1040(1865 AD) – Magna Carta in Land Reforms
During the second half of the 19th century several Royal Proclamations were promulgated with a view to confer rights, in the land, to the tenants who were the real cultivators. Majority of the people were engaged in agriculture; but the lands belonged to Jenmies (Sircar, Brahmins or Devaswoms). The cultivators held the land under lease arrangement known as Pattom, Otti, Inam and Viruthi etc. One of the important Regulations came in the line of agrarian reforms was the Royal Proclamation of 1040 ME (1865 AD). It pertained to Pattom (lease) tenements created (by Sircar) on Sirkar lands known as Pandaravaka lands. It is exalted as the Magna Carta of peasants of Travancore it being led to conferring land to tillers, step by step.
TravancoreProclamation of 1040 (1865) conferred ‘Permanency‘
The Proclamation of 1040 (1865), assured the peasants to enjoy the Sircar-land “undisturbed”, so long as they paid the assessment (pattom). Though the Proclamation of did not expressly confer full proprietary rights on tenants, it gave the tenants permanency in the Pandaravaka soil; and it recorded the fist gigantic step towards the land reforms in Travancore.
The Proclamation of 1040 reads thus:
“PROCLAMATION
By His Highness the Maha Rajah of Travancore, issued under date the 2nd June 1865, corresponding to the 21st Edavam 1040.
Whereas we earnestly desire that the possession of landed as well as other property in Our territory should be as secure as possible; and whereas We are of opinion that, with this view, Sirkar Pattom lands can be placed on a much better footing than at present so as to enhance their value; We are pleased to notify to Our ryots
Istly- that the Sirkar hereby and for ever surrenders, for the benefit of the people all optional power over the following classes of lands, whether wet, garden or dry, and whether included in the Ayacut accounts or registered since:
Ven Pattom, Vettolivoo Pattom, Maraya Pattom, Olavoo Pattom, Mara Pattom, and all such Durkast Pattom the tax of which is understood to be fixed till the next Survey and Assessment;
2ndly. that the ryots holding these lands may regard them fully as private, heri-table, saleable, and otherwise transferable, property;
3rdly. accordingly, the sales, mortgages, & e., of these lands will hence-forward be valid; may be effected on stamped cadjans and will be duly registered; the lands may be sold for arrears of tax, in execution of decrees of Courts and such other legitimate purposes, and may also be accepted as security by the Sirkar as well as by private individuals;
4thly. that the holders of the lands in question may rest assured that they may enjoy them undisturbed so long as the appointed assessment is paid;
5thly. that the said holders are hence-forth at full liberty to lay out labour and capital on their lands of the aforesaid description to any extent they please, being sure of continued and secure possession;
6thly. that the aforesaid description of lands will be resumable by the Sirkar like Jenmom and other private lands only for purely public purposes , as for instance, for making roads, canals, public buildings, & e., and when resumed for such purposes compensation will be paid by the Sirkar not for improvements only as here to fore, but equal, to the full market value of such lands;
7thly. that the foregoing concessions are not however to be understood to affect in any way the rights of the Sirkar to regulate the land tax, to resume escheats, to confiscate the property of criminals, and generally such rights as have heretofore been exercised upon all property in general;
8thly. that it is to be understood that when Pattom land being a portion of a holding, is transferred to a pauper, with the view of defrauding the Sirkar of the tax due to it, the Sirkar will have the right of apportioning the tax so as to prevent loss of revenue; and,
9thly. (Repealed by Proclamation dated the 5th Karkadakam 1059). (Quoted in: Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86 : Rev. Fr. Victor Fernandez Vs Albert Fernandez, AIR 1971 Ker 168; 1971 Ker LT 1.)
Proclamation of 1040 (1865)– No Proprietary Rights; But, Permanency to Cultivators
Legally speaking, the Pattom Proclamation of 1040 (1865) converted the pattom arrangement on pandaravaka lands into permanent leases and conferred on the holders thereof permanent rights of occupancy, heritable and alienable; inasmuch as, till 1040 ME (1865 AD), the agriculturists, who held the Pandaravaka (Government) lands under Pattom arrangement, were liable to be treated as mere tenants-at-will; the land being resumable (by the Government) at any time, as they were in the nature of temporary leases just like tenements created by private jenmis.
Royal Proclamation of 1061 (1886) Brings in Further Radical Changes
Paragraph 9 of the Proclamation of 1061 says, with reference to Royal Proclamation of the 21st Edavam 1040, as regards Pandarapattam lands, as under:
“These lands were originally the absolute property of Government, and the tenants were mere tenants-at-will; but, by the Royal Proclamation of the 21st Edavam 1040, Government generously waived all right to these lands, and declared them to be the private, hereitable, saleable property of the holders.”
Section 22 of the Settlement Proclamation of 1061 (1886) made radical changes in land tenure.
Those changes were:
(1) no debt shall be recognised as due to the holder;
(2) no interest shall be deducted from the Pattom on such debt;
(3) no reduction of debt or a corresponding enhancement of the Sirkar demand shall be made when such properties were transferred by sale.
The properties held on the tenures in question shall be recognised as so many favourably assessed lands or Inams and confirmed to the holders as such.
Clause 7 of Section 24 of the Proclamation provided as under:
“There shall be no further interference on the part of the Government with these free holds, except such as might be necessary for the punctual realization of the quit rent payable”.(Quoted in: Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86.)
Sale of Janmam Properties were Recorded as “Thettoms” in Settlement Register
In 1910 Travancore Settlement Register (and in the sale deeds), lands sold by Janmam holders were recorded as “Thettoms” (Devaswom Thettom/Namboori Thettom etc.).
Note: In the 1910 Settlement Register Janmam properties (with Brahmins and Devaswoms) were recorded as “Thanathu”.
When lands were classified under various heads, in Govindaru Nambooripad v. State of Kerala, 1962 Ker LT 913 : AIR 1963 Ker 86, ‘Janmam’ lands were denoted as ‘Thanathu’.
Meaning of the Word ‘Thettom’
Generally meant – acquisition by Mortgage.
When ‘Thettom’ refers to a property dealing with a Jenmam (Janmam) holder, it can be any ‘subordinate tenure falling short of the full proprietary title‘.
When it refers to a property dealing with a Non-Jenmom holder, it may mean a sale’
As regards ‘Thettom’, Raman Menon, C.J., said, in Augusti v. The Dewan of Travancore, 8 Travancore LJ 438, as under:
“In S.A. 17 of 1074, this Court remarked:-‘In the Sirkar registry of 1011, the plaint property is entered as ‘Thettom’ in the name of defendants’ Tarwad.
That expression, according to its ordinary meaning, implies at least a mortgage lien, if not more, as held by this Court in A.S.166 of 1070 and A.S. 285 of 1071. It always implies something more than a simple lease’.
In S.A. 61 of 1075, the terms was taken to be generic and to include ‘all subordinate tenures falling short of the full proprietorytitle‘.
In S.A. 302 of 1075, it was observed that the word ‘Thettom’, as applied to Nambudiri Jenmies, had been held by this court to mean ordinarily a Kanom.
In S.A. 48 of 1076, Vencoba Chariar, C.J. and Mr. Justice Kunhiraman Nair construed the words thus:- ‘The chief ground of the plaintiff’s second appeal is that in arriving at this finding the lower courts have not given sufficient weight to the fact appearing from the Ext. B – an old Revenue account – in which the land in dispute is entered as ‘Thettam’ from plaintiff’s Illom; but the word ‘Thettom’ is a somewhat ambiguous one and though, as remarked in the case in 15 TLR 161 and in other cases, it is generally used in the Revenue accounts to signify the Kanom tenure under Jenmies, it is also sometimes used to denote other subordinate tenures‘.
In S.A. 343 of 1078, we find the following remarks:-‘Thettom ordinarily means a’Kanom’, and in any case, a derivative title when used in connection with Brahmaswam or Devaswom properties, as in the present case’.
Lastly, in A.S. Nos. 59 and 101 of 1083, Sadasiva Iyer, C.J., and Sankara Menon, J., observed thus:-‘Mr. Kochukrishna Marar quotes 15 TLR 161 and says the word ‘Thettom’ means a Kanom or mortgage.
No doubt, in the case of Jenmies, it has been so held; but we doubt whether in the case of non jenmies, any meaning other than the ordinary meaning of the word can be given to the word ‘Thettom’. The plaintiffs are Nairs and the tenure claimed is not Jenmom. The ordinary meaning of the word is acquisition. We are inclined to hold that a word ‘Thettom’, in cases of this sort, means only sale’.”
In Damodaran v. Sankaranarayanan Namboothiripad, ILR 1963-2 Ker. 707; 1964 KLT 25, the High Court referred to thanathu thettom land (nilam); and observed – it conveys the idea of ‘acquisition’.
Effect of Royal Pattom Proclamations of 1040and 1061
Royal Proclamations of 1040 and 1061 bound only Travancore Govt. Leases or ‘Pandarappattoms’.
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 definite finding that –
the Proclamation “secured permanency of tenure” (to the tenants),
conferred (on the tenants) “proprietary interest” in the soil; and
the Government did not remain as the full and absolute proprietor
The Court said as under:
“7. It is impossible to accept the contention advanced on behalf of the plaintiff in this case that, evenafter 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.”
Effect of the Proclamations over ‘Government Land Leases’AFTER 1040 (1865)?
Now a question arises:
What is the impact of 1040 and 1061 (1886) Proclamations over the ‘Government Land Leases’ (Pandaravakappattoms) madeafter 1040 (1865)?
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 1040 (1865) 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 of permanency and ‘proprietary interest’ 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.
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.
The nature of Pandaravaka lands is explained in the Travancore Land Revenue Manual (Revised Edition), Volume Ill, Part I, page 6 as under:
“The proclamation of 1040 converted them into permanent leases and conferred on the holders thereof permanent rights of occupancy, heritable and alienable.” (Quoted in: Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86.)
There is no scope for arguing that the future “Pandarappattoms” (future tenancy by Government) was ‘made void’ by the proclamation; or in other words, that the 1040 Proclamation “binds” the future Government tenancies also.
1865 Travancore Proclamation and 1905 Cochin Proclamation
In Purushothaman Nambudiri v. State of Kerala, AIR 1962 SC 694, the Supreme Court (Rajagopala Ayyankar, J. Minority) pointed out the requirement and purport of these Proclamations. It reads as under:
“The evils which the system gave rise to, the economic insecurity of the tenant and the consequent lack of incentive on his part to put his best exertion on the land and the resultant loss to the state in the shape of revenue as well as the rise of a contented peasantry were exactly parallel to the situation which faced the ruler of Travancore leading to the proclamation of 1865. It was in these circumstances that the ruler of Cochin issued a proclamation on March 10, 1905, which defined with precision the rights of the State and of the cultivator in regard to these lands …”
Ayyankar, J. (Minority) observed that there was “confermentof proprietary rights by the Cochin Proclamation of 1905″ and “relinquishment by the State under the Travancore Proclamation of 1865″.
Finally, the Majority held that by virtue of the Cochin Proclamation of 1905 the holders of the Pandaravaka-verumpattom lands in Cochin were holding the property as “estate” within the meaning of Article 31A of the Constitution, and that the challenge thereon (to the Kerala Agrarian Relations Act, 1961) was not sustainable.
Devaswom Proclamation, 1922 & 1948 and Formation of Dev. Board
The History of Governmental Administration of Devaswoms mark four phases. They are:
(i) Administration as the Land Revenue Department – started in 987 ME (1811-1812 AD) under the edicts of Col. Munro.
(ii) Administration as the Devaswom Department – from 1922 Devaswom Proclamation.
(iii) Direct Administration by Maharaja by the 1948 Proclamationassuming controlof Devaswoms and Devaswom Department.
(iv) Administration under Devaswom Board – from 1950 in accordance with the enactment, Travancore-Cochin Hindu Religious Institutions Act, 1950.
Administration ‘AS’ the Governemnt Departments
By virtue of ‘organising’ the Devaswoms “as” the Land Revenue Department (from 987 ME) and “as” the Devaswom Department (by Proclamation, 1922), Devaswoms mentioned in the schedule thereof were treated as the ‘property of the State’.
The history as to the formulation of the Devaswom Proclamation, 1922, is given in M. Muraleedharan Nair v. State of Kerala, AIR1991 Ker 25. It was laid down:
The Hindu temples in the State of Travancore were mostly under private management called Ooralars or Karakars.
As those bodies were found mismanaging the institutions, Col. Munro decided in 987 ME (1811-1812 AD) that the State should assume control over them.
With a view to secure better management of the Devaswoms, the Government appointed a committee to report upon the assumptions of those Devaswoms, the feasibility of separating their administration from the Land Revenue Department and cost if a separate department be deemed desirable.
The Commitlee, recommended that the administration of the Devaswom should be separated from the Land Revenue Department and entrusted to a distinct agency.
The Government of Travancore after taking necessary legal opinion came to the conclusion that creation of a separate department exclusively to the administration of Devaswoms was necessary.
Considering that it is the solemn right and duty of the Government to maintain efficiently and in good condition the Hindu Religious Institutions the State the Travancore Government issued the Devaswom Proclamation on 12th April, 1922 corresponding to 30th Meenom, 1097.
Section 7 of the Proclamation is as under:
“7.(1) Our Government may for the better and more efficient management and more effective control of the Devaswoms mentioned in the schedule organised a Devaswom Department of the State consisting of such number of officers and other servants as they think fit.
2. The expenditure in connection with the said Department shall, notwithstanding anything contained in Sections 3 and 4, be not out of the general revenue of the State.”
The Devaswom Department has become a part of the Government Department.
Administration ‘UNDER’ the Travancore Devaswom Board
The history shows that a “material change” was brought forth by the formulation of the Travancore Devaswom Board. It is laid down in M. Muraleedharan Nair v. State of Kerala, AIR 1991 Ker 25, as under:
The Maharaja did not want to leave the administration of the Devaswoms to the State Government in the new set up. Therefore on 10-8-1123 (23-3-1948), yet another proclamation was issued by which the Maharaja assumed controlof Devaswoms and Devaswom Department of the Government.
A material change also made in respect of funds from which expenditure. It was also provided that expenditure to be made not from general revenue but only from Devuswom fund.
Thereafter when Travancore-Cochin States were integrated it was provided by Section 8(c) of the Covenant that the administration of the Devaswoms, Hindu Religious Institutions and Endowments and their properties and funds would vest with effect from 1-8-1949 in a Board known as Travancore Devaswom Board.
The Hindu Religious Institutions Ordinance 10 of 1124 was promulgated which came into force on 1-8-1949. Before expiry of the period of Ordinance, Act 15 of 1950, namely the Travancore-Cochin Hindu Religious Institutions Act, 1950 was enacted.
Section 3 of the Act provided (as regards the formation of the Travancore Devaswom Board) as under:
“The administration of Incorporated and unincorporated Devaswoms and of Hindu Religious Endowments and all their properties and funds as well as the fund constituted under the Devaswom Proclamation, 1097 M. E. and the Surplus Fund Constituted under the Devaswom (Amendment) Proclamation, 1122 M. E. which were under the management of the Ruler of Travancore prior to the first day of July 1949, except the Sree Padrnanabhaswamy Temple, Sree Pandaravaga properties and all other properties and funds of the said temple, and the management of all institutions which were under the Devaswom Department shall vest in the Travancore Devaswom Board.”
The power of nomination given to the Ruler of Travancore was taken away and was given to the Council of Ministers by Travancore-Cochin Hindu Religious Institutions (Amendment) Act 70 of 1974. Thereafter, of the three Hindu members of the Board, two will have to be nominated by the Hindus among the Council of Minister. The power given to Rajpramukh was subsequently vested in the Governor.
It is an ‘open, continuous, uninterrupted as of right‘ possession of a land, by a person for 12 years
in denial of the title of the rightful owner.
By virtue of adverse possession for the statutory period of 12 years, the law favours title in the trespasser.
Adverse Possession – Merely Bars the Right, or Confers Title?
Article 65 of the Limitation Act bars the rightof ‘recovery’ by the person in (earlier) lawful possession (or, the true owner).
Section 27, Limit. Act confers ‘Title’ to the person who continues ‘Adverse Possession’ for 12 years.
Historical Background
The rudimentary form of adverse possession could be found as early as 2000 B.C. in the Code of Hammurabi (King of Babylon). It is pointed out by the 22nd Law Commission in its 2023 Report.
The Law Commission quoted Law 30 of the Code of Hammurabi. It reads as under:
“If a chieftain or a man leaves his house, garden, and field and hires it out, and someone else takes possession of his house, garden, and field and uses it for three years: if the first owner returns and claims his house, garden, and field, it shall not be given to him, but he who has taken possession of it and used it shall continue to use it.”
It is also pointed out by the Law Commission that the phrase “adverse possession” was apparently coined in a 1757 English decision in Taylor d. Atkyns v. Horde; and that the Statute of Westminster, 1275 was the first statute that limited actions for the recovery of land.
(See the 22nd Law Commission Report, No. 280 of 2023, on the subject, “The Law on Adverse Possession”. This Law Commission was headed by former Chief Justice of Karnataka High Court, Ritu Raj Awasthi (Chairperson), and comprised the Full-Time Members, Justice (retired) K.T. Sankaran (Kerala High Court), Prof. (Dr.) Anand Paliwal, Prof. D.P. Verma.)
Adverse Possession – ‘Evolving’ Concept
The doctrine of adverse possession has been continually evolving. This is because it is, in essence, a judge-made principle and is not exhaustively defined in any statute. Consequently, there exist divergent approaches across jurisdictions, even in relation to the fundamental elements of adverse possession.
Starting Point (of 12 years) for Perfecting Adverse Possession
The starting point (of 12 years) for adverse possession is fixed in Article 65 of the Limitation Act. It is –
‘when the possession of defendant becomesadverse to the plaintiff‘.
Adverse possession, under Indian law, is generally expressed in terms of animus possidendi (an intention to possess).
It is further qualified by the requirement that such possession must be nec precario, i.e., not by permission (of the true owner).
In its settled common law formulation (over and above the statutory period fixed in Article 65, Limitation Act), adverse possession must be:
hostile in character;
open and notorious;
manifested through overt acts which exclude and dispossess the true owner; and
of such a nature as to bring home knowledge of the adverse claim to the true owner.
The phrase “becomes adverse to the plaintiff” in Article 65 of the Limitation Act supports the doctrines of dispossession and the owner’s knowledge.
(See: Karnataka Board of Wakf v. Government of India, 2004-10 SCC 779; T. Munichikkanna Reddy v. Revamma, 2007-6 SCC 59).
What is in the mind of the Claimant of the Adverse Possession is decisive
Under the changed law in the 1963 Limitation Act, what is in the mind of the claimant of the Adverse Possession is decisive; in other words, knowledge of the actual situation by the true owner is not a point at all. (Under Article 142 of the Limitation Act, 1908, the true owner would have lost his right to recover the property from a trespasser if he failed to file a suit within the period of 12 years.)
1. Mere ‘animus possidendi’, not enough; there must have been (hostile) animus to dispossess.
‘Animus possidendi’ must be to hold the land adverse to the title of the true owner.
Article 65, Limitation Act says – period 12 years, from ‘dispossession.
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 elementby the true owner.
Illegal, Mistaken or Fraudulent Registration of Deed, and Subsequent Mutation: Illegal, mistaken or fraudulent registration of a deed, subsequent mutation and possession on that basis, however long, will not perfect title by adverse possession. Because there will be no hostile animus, and denial of the title of true owner, admitting the title of 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).
AnimusPossidendi in Indian Law
‘Animus‘, in Latin, denotes “intention” or “state of mind;” ‘possidendi‘ means “to possess.” In Indian law, after the Limitation Act of 1963, the ‘intention to possess’ (animus possidendi)of the claimant is decisive. The true owner’s state of mind, in itself, is of no consequence.
Indian common law, under the Limitation Act of 1963, speaks of intention (animus possidendi) in a different manner from that which is understood in other jurisdictions. It is the intention of the claimant to possess as owner, coupled with hostile intention, that effectively excludes the true owner. The idea of ‘dispossession’ is captured through ‘nec precario’ (i.e. ‘not by permission‘) –implying possession in denial of the title of the true owner, and to his knowledge. It is not a separate technical animus in Indian law.
To attract Adverse Possession, there must be:
(a) hostile animus,
(b) denial of title of true owner – admitting the title of the true owner,
(c) wrongful dispossession of true owner,
(d) placing the date of starting of wrongful dispossession,
(e) some overt act,
(f) hostile (or notorious) acts must be peaceful, open and hostile to the true owner.
It is expressed in the classical formulation of adverse possession in the Latin maxim: “nec vi, nec clam, nec precario”
That is –
not by force: nec vi,
not in secrecy: nec clam
not by permission: nec precario.
Note:
(i) For perfecting adverse possession, the statutory requirement of ’12 years’ in the Limitation Act, 1963 (particularly Article 65) must also be satisfied.
(ii) It starts only – “when the possession of the defendant becomes adverse to the plaintiff“.
Important modern propositions as to adverse possession (in India)
1. To Attract ‘Adverse-Possession’, Mere Possession for 12 Years Insufficient.
It starts only – “when the possession of the defendant becomes adverse to the plaintiff“.
2. Party claims Adverse Possession must KNOW the Actual Owner.
3. Permissive Possession Cannot Be Basis For Adverse Possession
4. Mere possn. for Howsoever Long – will not result in adverse possession.
5. What is in the mind of the claimant is decisive.
6. Mere Animus Possidendi, Not Sufficient; There must be Intention to Dispossess.
7. Owner “did not take care to know notorious facts” and hostile colour of title, required.
8. If it is not sure who the true owner is, there will be no Adverse Possession
9. In a claim of Adv. Possn. – There will be Implied admission of title of other Party.
10. No Alternate plea on Adverse Possession Possible (even if raised at the beginning stage, must have confined to one before starting trial).
Important modern propositions as to adverse possession (in India)
1. To Attract ‘Adverse-Possession’, Possession for Mere 12 Years Insufficient
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 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).
2. No Adverse Possession, Unless ‘Admit Title of the True Owner‘
There can be no adverse possession where the claimant does not admit the title of the true owner.
Shri Uttam Chand v. Nathu Ram, AIR 2020 SC 461; 2020-11 SCC 263, M. Siddiq v. Suresh Das, 2020-1 SCC 1 (Ram Janmabhumi Temple case) Raghavan, v. Devayani, 2024-2 KHC 417, M. Radheyshyamlal v. V Sandhya, 2024 INSC 214, Nand Ram v. Jagdish Prasad, AIR 2020 SC 1884; 2020-9 SCC 393, Brijesh Kumar v. Shardabai, (2019) 9 SCC 369, Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729, Dagadabai v. Abbas alias Gulab Rustum Pinjari, (2017) 13 SCC 705, T. Anjanappa v. Somalingappa, (2006) 7 SCC 570, Karnataka Board of Wakf v. Government of India, (2004) 10 SCC 779, Kurella Naga Druva Vudaya Bhaskara Rao v. Galla Jani Kamma, (2008) 15 SCC 150.
Party claims Adverse Possession must KNOW the Actual Owner?
In M. Radheshyamlal v. V. Sandhya, (Abhay S. Oka & Ujjal Bhuyan, JJ.), AIR 2024 SC 1595, as under:
“12. Therefore, to prove the plea of adverse possession:-
(a) The plaintiff must plead and prove that he was claiming possession adverse to the true owner;
(b) The plaintiff must plead and establish that the factum of his long and continuous possession was known to the true owner;
(c) The plaintiff must also plead and establish when he came into possession; and
(d) The plaintiff must establish that his possession was open and undisturbed.
It is a settled law that by pleading adverse possession, a party seeks to defeat the rights of the true owner, and therefore, there is no equity in his favour. After all, the plea is based on continuous wrongful possession for a period of more than 12 years. Therefore, the facts constituting the ingredients of adverse possession must be pleaded and proved by the plaintiff.
13. … When a party claims adverse possession, he must know who the actual owner of the property is. Secondly, he must plead that he was in open and uninterrupted possession for more than 12 years to the original owner’s knowledge….”
3. Permissive Possession Cannot Be Basis For Adverse Possession
It is definitely held in State of Haryana v. Amin Lal, 19 Nov 2024, (SC) as under:
“Permissive possession cannot be the basis for a claim of adverse possession.”
In The State of Haryana v. Amin Lal (SC), Nov. 19, 2024, 2024-4 CurCC(SC) 222, it is held as under:
“permissive possession cannot be the basis for a claim of adverse possession.”
A tenant having taken possession of the property cannot plead adverse possession. Nand Ram v. Jagdish Prasad, 2020-9 SCC 393
See also:
Neelam Gupta v. Rajendra Kumar Gupta, 2024 INSC 769
Ram Nagina Rai v. Deo Kumar Rai, 2019-13 SCC 324
Thakur Kishan Singh v. Arvind Kumar, 1994-6 SCC 591
L.N. Aswathama v. P. Prakash (2009) 13 SCC 229
R. Hanumaiah v. Secretary to Government of Karnataka, Revenue Department, (2010) 5 SCC 203
See notes below – “What is Ouster”
In Chandramathy C.S. v. Devakey Amma, 2010 (4) KerHC 383it is pointed out – ‘Permissive possession is not at all adverse and limitation does not commence until possession become adverse. The defendants have not stated as to when permissive possession became adverse to the real owner.’ (Referred to in: Abdul Hameed Rawtherv. Basheer, ILR 2024-2 Ker 527; 2024 3 KHC 216; 2024 3 KLT 812.
4. Mere possn. for Howsoever Long – will not result in adverse possession.
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 (Mere possession over a property for a long period of time does not grant the right of adverse possession on its own);
Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR 2020 SC 461,
Ravinder Kaur Grewal v. Manjit Kaur (2019) 8 SCC 729 (three-Judge Bench) (Trespasser’s long possession is not synonymous with adverse possession.)
Ram Nagina Rai v. Deo Kumar Rai, 2019-13 SCC 324 (The defendants will not acquire adverse possession by simply remaining in permissive possession for howsoever long it may be.),
Mallikarjunaiah v. Nanjaiah, 2019-15 SCC 756 (it is a settled principle of law that mere continuous possession howsoever long it may have been qua its true owner is not enough to sustain the plea of adverse possession unless it is further proved that such possession was open, hostile, exclusive and with the assertion of ownership right over the property to the knowledge of its true owner.),
Chatti Konati Rao v. Palle Venkata Subba Rao, 2010-14 SCC 316 (Mere possession however long does not necessarily mean that it is adverse to the true owner.);
T. Anjanappa v. Somalingappa, 2006-7 SCC 570 (It is well recognized proposition in law that mere possession however long does not necessarily means that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner),
Karnataka Board of Wakf v. Govt of India, (2004) 10 SCC 779 (Non-use of the property by the owner even for a long time won’t affect his title.)
Thakur Kishan Singh v. Arvind Kumar, 1994-6 SCC 591 (Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession.)
Gaya Prasad Dikshit v. Dr. Nirmal Chander, 1984-2 SCC 286 (Mere continuance of unauthorised possession even for a period of more than 12 years is not enough.)
5. Animus Possidendi: In animus possidendi, what is in the mind (animus) of the claimant of the adverse possession is decisive. What is in the mind of the true owner is not a point at all.
1. Mere ‘animus possidendi’, not enough; there must have animus to dispossess.
Article 65, Limitation Act says – period 12 years, from ‘dispossession‘.
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 elementby the true owner.
2. Trespasser must knowwho the true owner is.
3. Burden to plead and prove adverse possession is upon the defendant(trespasser).
6. Mere Animus Possidendi, Not Sufficient; There must be Intention to Dispossess
Adverse Possession is a common law doctrine. The true title holder loses his title by adverse possession; and it is acquired by the ‘trespasser’. Period of limitation, for acquiring adverse possession, under Article 65 of the Limitation Act, is 12 years. It starts, ‘when the possession of defendant becomes adverse to the plaintiff’.
Therefore, the trespasser should have ‘dispossessed’ the true owner by an overt act or by inviting the true owner’s specific attention to attract ‘adverse possession’ (as it was said to be needed in acquiring ‘adverse possession’ against a co-owner, in early times). In other words, intention to dispossess true owner is necessary; or intention to possess property of true owner (mere animus possidendi), not sufficient. The pivotal point that constitutes adverse possession is
(i) the positive and hostile acts of the trespasser; and,
(ii) not the inaction or acquiescence of the true land owner.
7. Owner “did not take care to know notorious facts” and hostile colour of title, required
In P Lakshmi Reddy v. L Lakshmi Reddy, 1957 SCR 195, it was observed as under:
“7…Consonant with this principle the commencement of adverse possession, in favour of a person implies that the person is in actual possession, at the time, with a notorious hostile claimof exclusive title, to repel which, the true owner would then be in a position to maintain an action. It would follow that whatever may be the animus or intention of a person wanting to acquire title by adverse possession his adverse possession cannot commence until he obtains actual possession with the requisite animus.” (Quoted in: M Siddiq v. Mahant Suresh Das, 2020-1 SCC 1.)
8. The “knowledge” required is ‘that which is brought to the true owner‘
The words in Article 65 — ‘when the possession of defendant becomesadverse to the plaintiff‘— necessarily imply or contemplate a “knowledge” on the part of the plaintiff. It is the ‘knowledge‘ that is acquired by the true owner, brought about by the claimant’s open and hostile acts asserting title.
T. Anjanappa v. Somalingappa, (2006) 7 SCC 570, Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan, 2009-16 SCC 517 Annakili v. A. Vedanayagam, AIR 2008SC 346; 2007 14 SCC 308, Chatti Konati Rao v. Palle Venkata Subba Rao, 2010-14 SCC 316, Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729.
9. Owner must have Failed to take care to know Notorious facts
To invite adverse possession, the owner must have failed to take care to know notorious facts, despite the knowledge of the acts under the colour of a hostile title.
“60. The adverse possession requires all the three classic requirements to co-exist at the same time, namely, 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 his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser’s long possession is not synonymous with adverse possession…”
10. If it is not sure for the claimant who is the true owner, No Adverse Possession
Adverse possession is hostile possession which is expressly or impliedly in denial of title of the true owner. To attract adverse possession there must be animus possidendi to hold the land adverse to the title of the true owner (Chatti Konati Rao v. Palle Venkata Subba Rao, 2010-14 SCC 316; M. Venkatesh v. BDA, 2015-17 SCC 1; Brijesh Kumar v. Shardabai, 2019-9 SCC 369) with the knowledge of the true owner. If the defendants are not sure who the true owner is, there will be no question of possessing the property hostile to the true owner.
In T. Anjanappa v. Somalingappa, 2006-7 SCC 570, it is held as under:.
…The High Court has erred in holding that even if the defendants claim adverse possession, they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the plaintiffs, the same was inconsequential. Obviously, the requirements of proving adverse possession have not been established. If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not raise…… Therefore, the defendants are in possession and enjoyment of the property knowing fully well that the property belonged to the plaintiff’s father and the plaintiff’s vendor also did not take any action to evict them and the plaintiff and his vendor were aware that the properties belonged to them and despite the same, the plaintiff’s vendor did not take any action to evict them. Hence, the appellants/defendants have also perfected title by adverse possession. Therefore, the 2nd substantial question of law of is answered in favour of the appellants/defendants.” (Followed in: Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR 2020 SC 46.)
11. Claim of Adv. Possn. – Implied admission of title on other Party
It is a basic factor in adverse possession – the claimant thereof must have accepted the title of the true owner. Therefore, the claim of adverse possession would amount to acceptance of a title by the other party.
The State of Haryana v. Amin Lal (SC), Nov. 19, 2024, 2024-4 CurCC(SC) 222
Uttam Chand v. Nathu Ram, (2020) 11 SCC 263, AIR 2020 SC 461
Nand Ram v. Jagdish Prasad, (2020) 9 SCC 393
M Siddiq v. Mahant Suresh Das, Ayodhya case, (2020) 1 SCC 1
The Constitution Bench in M Siddiq v. Mahant Suresh Das, Ayodhya case, (2020) 1 SCC 1, held as under:
“747. A plea of adverse possession is founded on the acceptance that ownership of the property vests in another against whom the claimant asserts a possession adverse to the title of the other. Possession is adverse in the sense that it is contrary to the acknowledged title in the other person against whom it is claimed.
Evidently, therefore, the plaintiffs in Suit 4 ought to be cognisant of the fact that any claim of adverse possessionagainst the Hindus or the temple would amount to anacceptance of a title in the latter.”
Quoted in:
Neelam Gupta v Rajendra Kumar Gupta, AIR 2024 SC 5374
M. Radheshyamlal v. V Sandhya, 2024 AIR SC 1595
Sri Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR 2020 SC 461.
In Uttam Chand v. Nathu Ram, (2020) 11 SCC 263, AIR 2020 SC 461, construing M Siddiq v. Mahant Suresh Das, Ayodhya case, (2020) 1 SCC 1, it is observed as under:
“15. The matter has been examined by a Constitution Bench in M Siddiq (D) through LRs v. Mahant Suresh Das & Ors. wherein, it has been held that a plea of adverse possession is founded on the acceptance that ownership of the property vests in another, against whom the claimant asserts possession adverse to the title of the other.”
In Uttam Chand v. Nathu Ram, 2020-11 SCC 263, allowed the appeal, negating the claim of adverse possession raised by the defendant, inter alia, for not accepting the title of the plaintiff (true owner), by the defendant. It was observed as under:
“16. In the present case, the defendants have not admittedthe vesting of the suit property with the Managing Officer and the factum of its transfer in favour of the plaintiff. The defendants have denied the title not only of the Managing Officer but also of the plaintiff.”
In The State of Haryana v. Amin Lal (SC), Nov. 19, 2024, 2024-4 CurCC(SC) 222, it is held as under:
“By asserting adverse possession, the appellants have impliedly admitted the plaintiffs’ title.”
In In Kurella Naga Druva Vudaya Bhaskara Rao v. Galla Jani Kamma Alias Nacharamma, (2008) 15 SCC 150, it was pointed out – if according to the defendant, theplaintiff was not the true owner, his possession would not have been sufficient to term it ‘hostile’ to the plaintiff’s title; and that the defendant had to show, to attract adverse possession, that his possession was also hostile to the title and possession of the true owner.
In Nand Ram v. Jagdish Prasad, (2020) 9 SCC 393, it was pointed out by the Apex Court :
“Under Order VIII Rule 5 of the Code of Civil Procedure, 1908, allegations of fact not denied specifically are deemed to be admitted. By asserting adverse possession, the appellants have impliedly admitted the plaintiffs’ title.“
12. No Alternate plea on Adverse Possession
In this case (Nand Ram v. Jagdish Prasad, (2020) 9 SCC 393) the defendants case on “alternate plea” of adverse possession was not accepted. The defendants case is placed by the Apex Court as under:
“The defendant contended that if the plaintiffs had any right in the land in possession of the defendant, then the defendant had become the owner of the land in question by adverse possession. It was pleaded as under:
10. That the land in possession of defendant does not lie in the alleged khasra no. and is not covered by any alleged lease deed. Without prejudice to this plea in alternative it is submitted that the lease, if any, has already come to an end, about more than 22 years back, and defendant is owner in possession in his own rights.”
13. Burden of Proof – Complete change byArticles 64 and 65
1963 Limitation Act casts onus on the trespasser to prove claims of title by ‘adverse’ possession (knowing the true owner and bringing his attention to the ‘trespass’).
In the recent decision, Government of Kerala v. Joseph, AIR 2023 SC 3988, our Apex Court observed that the burden of proof rests on the person claiming adverse possession. The Court followed P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59, which observed as under:
“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….”
14. Onus and Principle under Art. 65 and Sec. 27 of 1963 Act and1908 Act
Article 65 : The ‘adverse’ possession of a property by one person (trespasser), for 12 years, bars the right to ‘recovery’ by the person in (earlier) lawful possession (or, the true owner); because, Article 65 of the Limitation Act lays down 12 years as the period for (recovery of) possession of immovable property (or any interest therein based on title), from a person in ‘adverse’ possession (trespasser).
Section 27: Continuance of ‘Adverse Possession’ for 12 years confers ‘Title’.
Earlier view– Inaction of true-owner matters (not overt-acts of trespasser)
At one time it was considered that inaction/acquiescence of the true owner for 12 years brings-in adverse possession. Because,
Article 65, which speaks of as to limitation of suits (to be filed by the plaintiffs) does not specifically speak as to (i) intention to dispossess title owner or (ii) knowledge on the part of trespasser as to who is the true owner.
“Nec vi, nec clam, nec precario” does not refer to (or speak as to) ‘hostile’ possession
“Animus possidendi” also does not say – hostile possession.
Inaction, acquiescence etc. of true owner are the material considerations – to become a ‘possession’ adverse to plaintiff.
Therefore, to attract adverse possession the trespasser need not know the true owner.
Philosophy of the earlier view can be seen from Amrendra Pratap Singh v. Tej Behadur (Para 22 – AIR 2004 SC 3782)
“What is adverse possession? ………The process of acquisition of title by adverse possession springs into action essentiallyby default or inaction of the owner. ……… The law does not intend to confer any premium on the wrong doing of a person in wrongful possession; it pronounces the penalty of extinction of title on the person who though entitled to assert his right and remove the wrong doer and re-enter into possession, has defaulted and remained inactive for a period of 12 years, which the law considers reasonable for attracting the said penalty. ………..”
Present view– Give prominence to overtand adverse acts of the trespasser.
Following are the important decisions to see the present view on adverse possession:
Karnataka Board of Wakf v. Govt of India, (2004) 10 SCC 779
T. Anjanappa v. Somalingappa, (2006) 7 SCC 570]
PT Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753
PT Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753, is an authoritative decision of the Supreme Court that discussed various views on adverse possession. 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 (Article 65, Limitation Act – period 12 years from dispossession). And it needs to be open and hostile enough to bring the same to the knowledge and plaintiff has an opportunity to object.“
Thereafter it was emphasised as under:
“Therefore, to assess a claim of adverse possession, two-pronged enquiry is required:
1. Application of limitation provision thereby jurisprudentially “willful neglect” element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner.
2. Specific Positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property.”
U.N. Mitra, in the “Law of Limitation and Prescription” (Tagore Law Lectures – 12th Edition, Vol.2, Page 1430) it is stated as under:
“A squatter is one who settles on land without title or with a view to acquiring title. He is a person who settles or locate on land enclosed or unenclosed with no bona fide claim or colour of title and without consent of the owner. He is merely an intruder and no matter how long he may continue there, no right in law vests in him. A squatter who does not set up a claim of right cannot plead adverse possession. No length of squatting possession would operate as a good or valid defence in a suit for possession by the true owner. A mere squatter or intruder who does not deny the title of the true owner or set up any right in himself cannot claim to be in adverse possession. ………” (Quoted in: K.J. Abraham v. Mrs. Mariamma Itty, ILR 2016-3 Ker 98)
In a nutshell, adverse possession arises from:
acquiescence of the owner to the hostile acts; and
hostile acts of the trespasser.
15. A right not exercised for a long time is non-existent “Vigilantibus Non Dormientibus Jura Subveniunt” Not Apply to Land Matters
The doctrine that law assists those who are vigilant with their rights and not those that sleep thereupon is contained in the maxim “Vigilantibus Non Dormientibus Jura Subveniunt”.
In Chairman, State Bank of India v. MJ James, (2022) 2 SCC 301, relating to disciplinary proceedings against an employee of the Bank, it is observed as under:
“A right not exercised for a long time is non-existent. Doctrine of delay and laches as well as acquiescence, are applied to non-suit the litigants who approach the court/appellate authorities belatedly without any justifiable explanation for bringing action after unreasonable delay.”
Note:
1. This decision is in disciplinary proceedings against an employee of the Bank. It is definite – mere delay, laches and acquiescence do not apply to ‘adverse possession’ matter – in view of the specific provisions in the Limitation Act concerning adverse possession.
2. See doctrines of abandonment (or deliberate relinquishment) and acquiescence amounting to estoppel may have more force on the matter of adverse possession, they being arise from the wilful conduct of the person concerned.
Doctrine of Estoppel, delay, laches, acquiescence – applied to non-suit litigants
It is held, in Chairman, State Bank of India v. MJ James, (2022) 2 SCC 301, further as under:
29. Before proceeding further, it is important to clarify distinction between ‘acquiescence’ and ‘delay and laches’. Doctrine of acquiescence is an equitable doctrine which applies when a party having a right stands by and sees another dealing in a manner inconsistent with that right, while the act is in progress and after violation is completed, which conduct reflects his assent or accord. He cannot afterwards complain (See Prabhakar v. Joint Director, Sericulture Department, (2015) 15 SCC 1. Also, see Gobinda Ramanuj Das Mohanta v. Ram Charan Das and Suyamal Das, AIR 1925 Cal 1107). In literal sense, the term acquiescence means silent assent, tacit consent, concurrence, or acceptance(See M/S Vidyavathi Kapoor Trust v. Chief Commissioner Tax, (1992) 194 ITR 584), which denotes conduct that is evidence of an intention of a party to abandon an equitable right and also to denote conduct from which another party will be justified in inferring such an intention (See Krishan Dev v. Smt. Ram Piari AIR 1964 HP 34). Acquiescence can be either direct with full knowledge and express approbation, or indirect where a person having the right to set aside the action stands by and sees another dealing in a manner inconsistent with that right and inspite of the infringement takes no action mirroring acceptance (See “Introduction”, UN Mitra, Tagore Law Lectures – Law of Limitation and Prescription, Volume I, 14th Edition, 2016). However, acquiescence will not apply if lapse of time is of no importance or consequence.
30. Laches unlike limitation is flexible. However, both limitation and laches destroy the remedy but not the right. Laches like acquiescence is based upon equitable considerations, but laches unlike acquiescence imports even simple passivity. On the other hand, acquiescence implies active assent and is based upon the rule of estoppel in pais. As a form of estoppel, it bars a party afterwards from complaining of the violation of the right. Even indirect acquiescence implies almost active consent, which is not to be inferred by mere silence or inaction which is involved in laches. Acquiescence in this manner is quite distinct from delay. Acquiescence virtually destroys the right of the person(See M/S Vidyavathi Kapoor Trust v. Chief Commissioner Tax (1992) 194 ITR 584). Given the aforesaid legal position, inactive acquiescence on the part of the respondent can be inferred till the filing of the appeal, and not for the period post filing of the appeal. Nevertheless, this acquiescence being in the nature of estoppel bars the respondent from claiming violation of the right of fair representation.“
16. Adv. Possession on termination of his licence – must besome ‘overt act‘
In Gaya Prasad Dikshit v. Dr. Nirmal Chander, (1984) 2 SCC 286 , it is observed as under:
“1… It is not merely unauthorised possession on termination of his licence that enables the licensee to claim title by adverse possession but there must be some overt act on the part of the licensee to show that he is claiming adverse title. It is possible that the licensor may not file an action for the purpose of recovering possession of the premises from the licensee after terminating his licence but that by itself cannot enable the licensee to claim title by adverse possession. 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.”
17. Hemaji Waghaji Case and2nd Law Commission Report
The 22nd Law Commission (considering Hemaji Waghaji v. Bhikhabhai, 2009-16 SCC 517) placed its Report on 24th May, 2023 , to the following effect-
The law relating to adverse possession should be continued in its present form, and there was no justification for making any change thereto.
The Law Commission Recommended as under:
“The Law Commission is of the considered view that there is no reason or justification to enlarge the period of limitation provided under Articles 64, 65, 111 or I12.“
Hemaji Waghaji v. Bhikhabhai, (2009) 16 SCC 51: AIR 2009 SC 103 held that there is no equity – high time to abolish or at least change the law. But, the subsequent authoritative decisions, including Ravinder Kaur Grewal v. Manjit Kaur, AIR 2019 SC 3827 (three judge bench), affirmed the punch of adverse possession.
The 22nd Law Commission (Report No. 280 of the year 2023) did not approve the observations in Hemaji Waghaji; on the contrary, upholding the law on adverse possession, it emphasised that the present law ensures that
‘there is always an owner or claimant to the contentious land, and that it is precisely the reason why the law validates the claim of adverse possession made by the squatter’.
18. Article 142 of the (Repealed) Limitation Act, 1908
Article 142 of the (repealed) Limitation Act, 1908, which dealt with Adverse Possession, did not put down the term ‘adverse’.
Article 142 of the Limitation Act, 1908 reads as under:
142. For possession of immovable property when the plaintiff, while in possession of the property, has been dispossessed or has discontinued the possession
12 years
The date of the dispossession or discontinuance
Article 142 of the Limitation Act, 1908 provided that the true owner would lose his right to recover the property from a trespasser if he failed to file a suit within the period of 12 years.
Art. 65 of Limtn. Act, 1963 Made Major Changes in Law of Adverse Possession
Articles 65 of the Limitation Act, 1963 brought-in complete change insofar as the onus of proof is concerned:
65. For possession of immovable property or any interest therein based on title.
12 years
When the possession of Defendant becomes adverse to the plaintiff.
When these provisions Attracted
Plaintiff must have been dispossessed by the defendant.
Both Acts deal with limitation for suits for recovery of possession.
Old Act of 1908 – Backdrop
Under the old Act of 1908, the true owner was bound to file suit for recovery (from a trespasser) within 12 years of losing possession (to continue the property).
In other words, under the old Act, the true owner would lose his right to recover the property if he failed to file a suit within the period of 12 years.
Under the 1908 Act, it was immaterial – whether the trespasser ‘acquired’ right of adverse possession against the true owner, knowing him and bringing his attention to the ‘trespass’ (as required in 1963 Act).
The requirement of ouster, for attracting Adverse Possession, needed only in case of permissive or joint possession, including that of a co-owner or of a licensee or of an agent
New 1963 Act – Backdrop
Under the new Limitation Act, 1963 (Article 65), the true owner will lose title only if the trespasser proves ‘adverse‘ possession for 12 years. Therefore the true owner has no burden to show possession within 12 years (as required under the old Act).
The new Act casts onus on the trespasser to prove claims of title by ‘adverse’ possession (knowing him and bringing his attention to the ‘trespass’).
Under the 1963 Act, adverse possession arises, only if dispossession (Article 65)of true owner and only by the positive and hostile actsof the trespasser; and, mere possession is not sufficient (but, it must be ‘adverse’ to the true owner).
If no adverse possession, mere possession, of trespasser, however long, will not lose the right of the true owner (on the ground of limitation) to recover property on the basis of his title. [See: Government of Kerala v. Joseph, AIR 2023 SC 3988; Gaya Prasad Dikshit v. Dr. Nirmal Chander and Anr. (two-Judge Bench) (1984) 2 SCC 286, Thakur Kishan Singh v. Arvind Kumar, (1994) 6 SCC 591;Mallikarjunaiah v. Nanjaiah, (2019) 15 SCC 756].
Article 64 and 65 Analysed
Article 64 and 65 of Limitation Act read as under:
64. For possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed.
12 years
The date of dispossession.
65. For possession of immovable property or any interest therein based on title.
12 years
When the possession of Defendant becomes adverse to the plaintiff.
General
Plaintiff must have been dispossessed by the defendant (to attract both Articles).
Both articles deal with limitation for suits for recovery of possession.
Both are independent and apply two different situations.
In both cases the defendant can rely on his title or “perfection” of title by ‘adverse possession’ (without a counter claim – Ravinder Kaur Grewal v. Manjit Kaur, AIR 2019 SC 3827).
Article 64
Article 64 is based on previous possession of plaintiff (unlike Article 65 which speaks about Title).
Article 64 is not based on title of plaintiff (But, it can be possessory title).
Article 64 applies only if the plaintiff lost possession within 12 years (in other words, he must have been in possession of the property within twelve years prior to suit. (Tribeni v. Soaroop, AIR 1911 Raj 232)
Under Article 64, it is unnecessary to inquire – whether the defendant’s possession was ‘adverse’. (Muhammad Amanullah v. Badan Singh (1889) ILR l7 Cal 137 (PC).
Under Article 64 the nature of the plaintiffs possession is not material. Article 65 specifically refers to “immovable property or any interest therein” whereas Article 64 mentions only “immovable property”. So the interest in immovable properly stands outside the scope of that article.
Article 65
Article 65 deals with recovery based on title.
Under Article 65 previous possession of plaintiff (within twelve years) need not be proved. It is immaterial. (Ramiah v. N. Narayan a Reddy, (2004) 7 SCC 541 : AIR 2004 SC 4261; Jagannath Garnaik v. Sankar Samal, AIR 1990 Ori 124; State of Orissa v Jhtnjhuntallo, 1986 CLT 55.)
Under Article 65, if plaintiff could prove his title, it would fail only if the defendant proves adverse possession over twelve years. (Bhushan Lal v. Suresh Kumar, AIR 1987 All 25, Manikyala Rao v. Narasimhaswrami, AIR 1996 SC 470.)
Under Article 65, if plaintiff could not prove his title, he will fail (and in such a case, whether the defendant proves title or adverse possession is immaterial). (Ranjit Kumar Bhowmik v. Subodh Kumar Roy, (2004) I WBLR 228: (2004) 2 CHN 180)
Under Article 65, if only title of plaintiff is proved, then only adverse possession of defendant becomes a material point.
19. Adverse possession is Commenced in Wrong and is Aimed against Right
In T. Anjanappa v. Somalingappa, (2006) 7 SCC 570, it is observed that the possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former’s hostile action
The Supreme Court, in T. Anjanappa v. Somalingappa, (2006) 7 SCC 570, held as under:
“The concept of adverse possession contemplates a hostile possession i.e., a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other’s rights but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimedagainst right. A person is said to hold the property adversely to the real owner when that person in denial of the owner’s right excluded him from the enjoyment of his property.
20.. ‘Starting Point’ of “Adverse” Possession
In S.M. Karim v. Mst. Bibi Sakina Bibi Sakina, (1964) 6 SCR 780, a case (Civil Appeal No. 647 of 1962) before the implementation of Amended Limitation Act of 1963, it was found as under:
“Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show whenpossession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for “several 12 years” or that the plaintiff had acquired “an absolute title” was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea. The cited cases need hardly be considered, because each case must be determined upon the allegations in the plaint in that case.”
In P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59, Chatti Konati Rao v. Palle Venkata Subba Rao, (2010) 14 SCC 316 etc., when dealt with the 1963 Act, it was pointed out –
(i) 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.
(ii) 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.
21. Adverse possession No Decree, without Pleading
It is held in Ravinder Kaur Grewal v. Manjit Kaur, AIR 2019 SC 3827, as under:
“Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser’s long possession is not synonym with adverse possession. Trespasser’s possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time.”
Adverse Possession – Two views on Declaration & Recovery
Can be used as a Shield alone(earlier view):
Declaration cannot be sought for with respect to Adverse Possession was the view taken by certain Jurists and Courts. See: Gurudwara Sahib v. Grama Panchayath [(2014) 1 SCC 669]. This view is followed in Mohini v. Thimmappa [2015(4) KLT 759]. It is held: Extinguishment of the right of real owner is depended on the ‘establishment’ of adv. possession; and the ‘establishment’ of adv. possession comes only when a title suit comes. Therefore, plea of adverse possession is only a shield; and not sword.
Can be used as a Sword (present view)
So held in Ravinder Kaur Grewal v. Manjit Kaur, AIR 2019 SC 3827: (2019) 8 SCC 729. [See also: Sarangadeva Periyamadon v. Ramaswamy (AIR 1966 SC 1603) 3-Judge-Bench; and Amrendra Pratap Singh v. Tej Behadur: AIR 2004 SC 3782]
The earlier view in Gurudwara Sahib v. Grama Panchayath [(2014) 1 SCC 669] that declaration cannot be sought for with respect to Adverse possession is overruled by RavinderKaur Grewal v. Manjit Kaur,AIR 2019 SC 3827: (2019) 8 SCC 729 (Arun Misra, J). The Three Judge Bench held in Ravinder Kaur Grewal that once 12 years’ period of adverse possession is over, even owner’s right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner.
In paragraph 62 of Ravinder Kaur Grewal v. Manjit Kaur AIR 2019 SC 3827: (2019) 8 SCC 729 (Arun Misra, J) , following has been observed:
“62. We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years’ period of adverse possession is over, even owner’s right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owner’s title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit.”
It is pointed out that S. 27 Limitation Act is an exception to the general rule – limitation bars remedy, not title.
Appreciation of Evidence in Adverse Possession Case
Somnath Barman v. Dr. S. P. Raju AIR 1970 SC 846, 1969-3 SCC 129 (KS Hegde & JC Shah, JJ.), can be safely considered to see how evidence on adverse possession is appreciated by the Supreme Court of India. In this case the plaintiff claimed title on a document. The defendants pleaded adverse possession. According to them the second defendant had sold the property to the 1st defendant 3 years before the suit. Therefore, to establish the claim of title by adverse possession (for the period of 12 years), the fact that the second defendant was in possession of the suit property for a period of over nine years before he sold the same to the first defendant should have been proved. The Supreme Court found that the defendants failed to establish adverse possession observing the following:
“Though the second defendant filed a -written statement supporting the case of the 1st defendant and though he was present at the time of hearing several occasions, he was not examined as a witness in this case to support the plea of adverse possession put forward by the defendants. No explanation is forthcoming for his non-examination. This circumstance goes a long way to discredit the defendant’s plea of adverse possession. The 1st defendant’s evidence as regards adverse possession is of very little significance as his knowledge of the suit property prior to the date he purchased the same is very little. The only other evidence relied on in support of the plea of adverse possession is that of D.W.2, Shambhu Prashad who claims to have taken the suit property on lease from the second defendant. The lease deed said to have been executed by him is marked as Exh.D/ 1. It is not explained how the 1st defendant came into possession of Exh.D/l. Though the suit was filed as far back as 1949, Exh.D/1 was produced into court for the first time in the year 1960. No explanation has been given for this inordinate delay in producing Exh.D/1, (an unregistered document) in court. According to D.W.2, the 1st defendant knew about this document as far back as 1950. Under these circumstances, the High Court was fully justified in rejecting the testimony of D.W.2 and not relying on Exh.D/l.”
Sec. 27, Limitation Act – Extinguishment of right to property
Sec. 27 of the Limitation Act speaks that at the determination of the period “hereby limited to any person for instituting a suit for possession of any property”, his right to such property shall be extinguished.
Adverse possession confers title under Sec. 27 (by necessary implication, because extinguished title of real owner comes to vest in wrongdoer – because, rights thereon had already been lost to the true owner, and passed over to the ‘possessory/adverse’ owner).
Therefore it is clear that Sec. 27 is a provision in the Limitation Act that gives a substantial right to a party. In view of Sec. 27 one can seek declaration of title by adverse possession and consequential injunction or recovery. That is why it is held in Ravinder Kaur Grewal v. Manjit Kaur, AIR 2019 SC 3827: (2019) 8 SCC 729, that the person acquiring title by adverse possession can use it as a sword.
Title ripens by operation of law; court only recognises it.
Under the Limitation Act, once the claimant establishes continuous, open, and hostile possession for 12 years, the true owner’s title stands extinguished and the possessor’s title is perfected. This occurs by operation of law, not by decree; a court does not create the title but merely declares it.
‘Inchoate’: Here indicates unadjudicated, not legally incomplete.
The description of adverse possession as “inchoate” is only a practical expression that the claim has not yet been judicially determined. It does not mean that the right is legally incomplete once the statutory period has run.
Possession cannot be Adverse to one who has No Immediate Right to Possession
In U. N. Mitra’s Tagore Law Lectures on Limitation and Prescription (3rd Edition, page 161), it is observed that the principle that possession cannot be adverse to one who has no immediate right to possession and since a landlord does not have any such right in respect of the tenanted property during the subsistence of the tenancy, he does not acquire any right of action against the trespasser encroaching upon the tenanted property. (It is referred to in Biswanath v. Prafulla Kumar Khan, 1988 AIR Cal 275).
Claim of Adverse Possession by Tenant
In Nand Ram v. Jagdish Prasad, (2020) 9 SCC 393, the claim of adverse possession by the tenant was negatived by the Apex Court on the following grounds:
The respondent-tenant had admitted the ownership of the landlord in earlier proceedings.
Such plea operates as estoppel. The subsequent claim of adverse possession of the tenant as owner is not sustainable.
The respondent was to prove his continuous, open and hostile possession to the knowledge of true owner for a continuous period of 12 years. The respondent has not led any evidence of hostile possession to the knowledge of true owner.
He has also not surrendered possession before asserting hostile, continuous and open title to the knowledge of the true owner. (In terms of Sec. 108(q) of the TP Act possession of tenant remains permissive till it has been actually restored to the landlord.)
Title Declaration – Plaintiff to succeed on the strength of his own Title
It is trite law that in a declaratory suit the plaintiff has to win the case on his own pleading and proof, and he cannot hide shelter on the weakness of the opposite side. This proposition equally applies to a case where one seeks declaration on adverse possession.
In Jagdish Prasad Patel v. Shivnath, (2019) 6 SCC 82, our Apex Court explained the well accepted principle that in a suit for declaration of title and possession, ‘the plaintiffs will succeed on the strength of their own title irrespective of whether defendants proved their case or not’ in the following words:
“44. In the suit for declaration for title and possession, the Plaintiffs-Respondents could succeed only on the strength of their own title and not on the weakness of the case of the Defendants-Appellants. The burden is on the Plaintiffs-Respondents to establish their title to the suit properties to show that they are entitled for a decree for declaration. The Plaintiffs-Respondents have neither produced the title document i.e. patta-lease which the Plaintiffs-Respondents are relying upon nor proved their right by adducing any other evidence. As noted above, the revenue entries relied on by them are also held to be not genuine. In any event, revenue entries for few Khataunis are not proof of title; but are mere statements for revenue purpose. They cannot confer any right or title on the party relying on them for proving their title.
45. Observing that in a suit for declaration of title, the Plaintiffs- Respondents are to succeed only on the strength of their own title irrespective of whether the Defendants-Appellants have proved their case or not, in Union of India v. Vasavi Coop. Housing Society Limited, (2014) 2 SCC 269, it was held as under SCC p.275, para 15) “15. It is trite law that, in a suit for declaration of title, the burden always lies on the Plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the Defendants would not be a ground to grant relief to the Plaintiff.”” (referred to in A. Subramanian v. R. Pannerselvam, AIR 2021 SC 821.)
What is ouster?
“Black’s Law Dictionary” explains ‘ouster‘ as under:
“A putting out; dispossession; amotion of possession. A species of injuries to things real, by which the wrong-doer gains actual occupation of the land, and compels the rightful owner to seek his legal remedy in order to gain possession.
An “ouster” is a wrongful dispossession or exclusion of a party from real property and involves a question of intent.
Notorious and unequivocal act by which one cotenant deprives another of right to common and equal possession and enjoyment of property.”
Webster’s New World Law Dictionary expounds ‘ouster’ as under:
“Ouster: n. 1 The wrongful exclusion of a person from property or dispossession of same. 2 The removing from office of a public or corporate official.”
In P Ramanatha Aiyar’s “The Law Lexicon” with Legal Maxims, Latin Terms and Words & Phrases, Second Edition 1997) it is laid down-
“Dispossession” implies ouster, and the essence of ouster lies in that the person ousting is in actual possession.
Dispossession implies some active element in the mind of a person in ousting or dislodging or depriving a person against his will or counsel and there must be some sort of action on his part.” (Quoted in: U. P. Gandhi Smarak Nidhi v. Aziz Mian, 2013-3 ADJ 321, 2013-4 All LJ 149)
In “Mitra’s Legal and Commercial Dictionary” 5th Edition (1990) by A.N. Saha, ‘Dispossession’ is explained as under:
“The term ‘dispossession’ applies when a person comes in and drives out others from possession. It imports ouster; a driving out of possession against the will of the person in actual possession.” (Quoted in: U. P. Gandhi Smarak Nidhi v. Aziz Mian, 2013-3 ADJ 321, 2013-4 All LJ 149)
‘Ouster’ of Co-owners
It is considered in Vidya Devi @ Vidya Vati v. Prem Prakash, AIR 1995 SC 1789, 1995-4 SCC 496. It is held as under:
” ‘Ouster’ does not mean actual driving out of the co- sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are –
(i) declaration of hostile animus
(ii) long and uninterrupted possession of the person pleading ouster and
(iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner.
Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law.”
Plea and proof of ouster is necessary when one plead adverse possession against a co-owner. Express, positive and specific overt acts ousting co-owner from possession are necessary; mere hostile acts of the adverse possession are not enough(See: Velliyottummel Sooppi v. Nadukandy Moossa, AIR 1969 Ker 222).
Privy Council in Coera v. Appuhamy,AIR 1914 PC 243 held as under:
“Entering into possession and having a lawful title to enter, he could not divest himself of that title by pretending that he had no title as all. His title must have ensured for the benefit of his co-proprietors. The principle recognised by Wood, V.C. in Thomas v. Thomas (1856) 25 LJ Ch 159 (161): 110 RR 107 holds good: `Possession is never considered adverse if it can be referred to a lawful title’….. His possession was, in law, the possession of his co-owners. It was not possible for him to put an end to that possession by any secret intention in his mind. Nothing short of ouster or something equivalent to ouster could bring about that result.”(Quoted in: Vidya Devi @ Vidya Vati v. Prem Prakash, AIR 1995 SC 1789, 1995-4 SCC 496).
‘Dispossession’ implies Ouster itself.
From the above decisions it is clear that ‘dispossession’ implies ouster itself. However, the quality of evidence expected as to ‘dispossession’ in cases of adverse possession against a co-owner or in case of a permissive-possession is ‘higher’; and this ‘dispossession’ is termed as ouster.
Adverse Possession Against Government – Govt. of Kerala v. Joseph
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 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.”
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.
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 – initially the burden lied on the landowner to prove his title; thereafter it shifts on the other party to prove 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).
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.)
Adverse Possession – Knowledge by Government
Does Regin. of a Deed Confer Knowledge as to Adv. Possession to Government?
No.
Where the claim is directed against the Government, the claimant must establish that his open and hostile assertion of title effectively brought such knowledge to the competent authority having control, custody, and administrative responsibility over the property on behalf of the State. Mere or imputed personal knowledge of Ministers, Government Pleaders, or the Sub-Registrar, acquired in the course of official functions such as the registration of a document, does not satisfy this requirement; nor does registration—being a ministerial act—amount to notice to the Government in law.
Effect of Fraudulent Regn. of Deed on Govt. Property, and Mutation
If the deed is fraudulently registered with respect to the government property (shown as private property), and mutation entries were caused to be made, they will not ripen into adverse possession against the Government, for the following reasons:
1. The ingredients of adverse possession will not be satisfied – such as: OPEN, actual, and NOTORIOUS (visible, not secret) exclusive possession, hostile to the true owner (Government). A sham/void/fraudulent transaction will not satisfy these ingredients. (See: Madhavrao Waman Saundal Gekar v. Raghunath Venkatesh Desh Pande, AIR 1923 PC 205; Lakshmi Dutt v. Gopal Dutt, AIR 1974 (All) 316; Radhabai and Ram Chandra Konher v. Anantray Bhagvant Despande, ILR (1885) 9 Bom 198).
2. Fraudulent execution of deeds between personshaving no title at all over Government land can use it as a title deed alone. That is, the claimant does not admit the title of the ‘true owner’.
3. Mutation will not create or extinguish title.
4. Courts must be cautious to apply adverse possession where public property is sought to be grabbed.
5. Fraud vitiates everything. It cannot be used as the beginning of adverse possession. One cannot base adverse possession on a fraudulent foundation.
6. Courts strictly scrutinise adverse possession in cases involving public property.
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.”
No Equities in favour of a Person Pleading Adverse Possession
In Chatti Konati Rao v. Palle Venkata Subba Rao, (2010) 14 SCC 316, it is observed as under:
“A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. The courts always take unkind view towards statutes of limitation overriding property rights. The plea of adverse possession is not a pure question of law but a blended one of fact and law.”
Notes: (Questions arose in various classes and answers given by the author):
(i) Plea of title and adverse possession – whether mutually inconsistent?
Yes.
Both can be claimed in one suit; but, must confine to one at trial.
Therefore, one does not begin until the other is renounced. It is observed in Karnataka Board of Wakf v. Govt of India (2004) 10 SCC 779 as under:
“The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.” Quoted in Munichikkanna Reddi v. Revamma: AIR 2007 SC 1753.
(Note: Mutually destructive plea is impermissible: (2006) 12 SCC 233, AIR 2009 SC 2355).
In Annasaheb Bapusaheb Patil v. Balwant, (1995) 2 SCC 543: AIR 1995 SC 895 (two-Judge Bench) our Apex Court held as under:
“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 washostileto 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.” (Quoted in: Government Of Kerala VS Joseph, AIR 2023 SC 3988)
In Government Of Kerala VS Joseph, AIR 2023 SC 3988, it is held as under:
“21.9 Claim of independent title and adverse possession at the same time amount to contradictory pleas.”
(ii) Is Adverse Possession: Illogical, disproportionate and draconian law as viewed in some decisions referred to in Munichikkanna Reddi v. Revamma :AIR 2007 SC 1753.
It appears that the argument in favour of adverse possession are, mainly, the following:
It is on a public policy.
This law exists all-around the world.
In Indian situations (landless poor are large in number; and Government records cannot be relied on – on account of various matters), this law is essential.
The argument against adverse possession are, mainly, the following:
European Court of Human Rights has taken an unkind view to the concept of adverse possession. Para 19, Munichikkanna Reddi v. Revamma : AIR 2007 SC 1753.
Now-a-days Government records are reliable enough; we need not nurse illogical and draconian law.
Several Nations, relying on Governmental records, do not go after law of adverse possession.
A large number of people go abroad for employment or for other purpose. Thy should not be punished.
(iii) What is the present position in India on Adverse Possession – Is it Not a bad law: Hemaji Waghaji v. Bhikhabhai, (2009) 16 SCC 51: AIR 2009 SC 103 held that there is no equity – high time to abolish or at least change the law. But, the subsequent authoritative decisions, including Ravinder Kaur Grewal v. Manjit Kaur, AIR 2019 SC 3827 (three judge bench), affirmed the punch of adverse possession.
The 22nd Law Commission (Report No. 280 of the year 2023) did not pursue the observations in Hemaji Waghaji; on the contrary, upholding the law on adverse possession, it emphasised that the present law ensures that –
‘there is always an owner or claimant to the contentious land, and that it is precisely the reason why the law validates the claim of adverse possession made by the squatter’.
It is held in State of Haryana v.Amin Lal, 19 Nov 2024, (SC) as under:
“It is a fundamental principle that the State cannot claim adverse possession over the property of its own citizens.”
Following decisions were referred to:
Vidya Devi v. State of H.P, (2020) 2 SCC 569
Tukaram Kana Joshi v. MIDC, (2013) 1 SCC 353
State of Haryana v. Mukesh Kumar, (2011) 10 SCC 404.
(v) What is the limitation period for acquiring adverse possession against Government?
30 years. See Article 112 of the Limitation Act.
(vi) Is declaration necessary in suits claiming Adverse Possession?
Not always. It can be used as a shield, as shown above.
But, generally speaking, a declaration is needed in the following circumstances:
As Introductory/preliminary to grant (1) Injunction or (2) Recovery (Unnikrishnan v. Ponnu Ammal: AIR 1999 Ker 405
When serious denial or cloud on title (or right): Anathula Sudahakar v. Buchi Reddi: AIR 2008 SC 2033
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.)
Complicated or complexquestions of fact and law to be ‘adjudicated’ (Anathula: 2008 SC 2033)
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.
(vii) Can a defendant plead Adverse Possession as a shield (without a counter claim)?
Yes. See the quoted portion, above, from Ravinder Kaur Grewal v. Manjit Kaur, AIR 2019 SC 3827.
(viii) 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 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). (See also Notes above, under Heading – Art. 65 of Limtn. Act, 1963 Made Major Changes in Law of Adverse Possession)
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 mustnecessarily 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.
(ix)Did the the Kerala High Court went wrong in K.T. Kurungottukandi Rarichakutty v. Aranda Rarichan, 2018-5 KHC 599
Yes. Kerala High Court went wrong.
Kerala High Court also (see Notes just above) 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.
(x) Once, right was perfected by 12 years’ user. Thereafter obstruction for a few years. Can a suit be filed on the basis of (earlier) perfected by 12 years’ user?
Yes.
See: RAVINDER KAUR GREWAL v. MANJIT KAUR: AIR 2019 SC 3827: “Once right is extinguished another person acquires prescriptive right which cannot be defeated by reentry by the owner”.
Also note: Stipulation in Para 5 of Section 15 of the Indian Easements Act is not applicable to Adverse possession. Para 5 of Section 15 reads:
“Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.”
The Legislations Governing Appointment of Guardian
In India, the legislations governing the appointment of guardian for minors and persons suffering from illness or disability are the following:
1. The Guardian and Wards Act, 1890.
2. The Mental Health Act, 1987 (repealed as per Section 126 of the Mental Health Care Act, 2017).
3. Persons With Disabilities (Equal Opportunities, protection of Rights and Full Participation Act, 1995 (repealed by Section 102 of the Rights of Persons with Disabilities Act, 2016).
4. National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999.
5. The Rights of persons with Disabilities Act, 2016.
6. The Mental Health Care Act, 2017.
No Legislation to deal with a Person in Comatose State
It remains a fact that there is no legislation in India to provide for appointment of Guardian for a person in comatose state, though there were legislations for appointment of persons with other disabilities like mental retardation etc. besides ‘Guardians for minors’.
Shobha Gopalakrishnan v. State of Kerala – A Trailblazing Decision
After analysing law on this subject it is held by the Kerala High Court in Shobha Gopalakrishnan v. State of Kerala (P.R. Ramachandra Menon, N. Anil Kumar, JJ.), ILR 2019-1 Ker 669; 2019-2 KHC 488; 2019-1 KLT 801, pointed out –
there is no legislation in India provide for appointment of Guardian for a person in comatose state, though there were legislations for appointment of persons with other disabilities like mental retardation etc. besides ‘Guardians for minors’.
Article 226 of the Constitution of India can be Invoked
And it was held in Shobha Gopalakrishnan v. State of Kerala –
the power under Article 226 of the Constitution of India can be invoked to grant the relief (following the decision of the Madras High Court in Sairabanu Muhammd Rafi v. State of Tamil Nadu (in W.P.No.28435 of 2015) and of the Bombay High Court in Philomena Leo Lobo v. Union of India (W.P.(L) No.28269 of 2017).
‘Legal Hurdles’ Faced by the Family of Persons in ‘Coma’ Stage.
The Kerala High Court considered the ‘legal hurdles’ faced by the family of two persons who were lying as “prisoners in their own body” in a ‘permanent vegetative state’ and ‘coma’. Those persons had properties including Bank Accounts. They could not have been handled by the petitioners/wives. The family members exhausted all ways to raise funds for the treatment of the ill-fated ones. Hence they approached the High Court for appointing them as ‘Guardian’.
Statutes Govern the Field
The Division Bench apprised that the following enactments govern the field, as shown under–
Guardian and Wards Act,1890. It is for appointment of guardian for minors.
Persons with Disabilities (Equal Opportunities, protection of rights and full participation)Act, 1995(repealed).
National Trust for the Welfare of persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999. ‘Multiple disabilities’ viewed there meant “a combination of two or more disabilities as defined in clause (i) of Section 2 of the Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation)Act, 1995 (1 of 1996)”. Section 2(i) of the Persons With Disabilities (Equal Opportunities, protection of Rights and Full Participation Act, 1995 (PWD Act, 1995) classified the disabilities as under:
” Disability” means
blindness
Low vision
leprosy cured
hearing impairment
Loco motor disability
mental retardation
Mental illness.
Mental Health Act, 1987(repealed), for appointment of guardian for ‘mentally ill’ persons (“mentally ill person” is defined as “a person who is in need of treatment by reason of any mental disorder other than mental retardation”. It is repealed by subsequent Mental Healthcare Act, 2017.
Rights of Persons with Disabilities Act, 2016. It was enacted pursuant to the Convention on Rights of Persons with Disabilities and its optional Protocol adopted on 13th December, 2006 at the United Nations Headquarters in New York. It was signed and ratified by the India on 01.10.2007. With an intent to align and harmonise the existing law with the said Convention the new statute was enacted to provide for Mental Health Care and Services for persons with mental illness and to protect, promote and fulfill the rights of such persons during delivery of mental health care and services and for matters connected therewith or incidental thereto. Accordingly, the Persons with Disabilities Act, 1995 was repealed and the new Act of 2016 (RPWD Act) was enacted.
Mental Healthcare Act, 2017. It was simultaneous to the enactment of the RPWD Act, 2016, that the old Mental Health Act, 1987 came to be repealed giving rise to the Mental Health Care Act, 2017 in tune with the norms of the U.N. Convention, whereby a “rights-based protection” was brought about for mentally ill persons. This Act defined ” ‘mental illness’ means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence.” Sub-section (5) of Section 3 says that determination of a person’s mental illness shall alone not imply or be taken to mean that the person “is of unsound mind”, unless he has been declared as such by a competent court.
No Enactment to deal with the affairs of a ‘Coma’ Patient
The Kerala High Court, after a detailed analysis of various provisions of all these Acts, came to the conclusion that there was no enactment to deal with the affairs of a ‘coma’ patient. And, held as under:
Considering the role of this Court, jurisdiction under Article 226 of the Constitution of India springs up, when no remedy is provided under any Statute to persons like patients in ‘comatose state’. It is something like ‘parens patriae’ jurisdiction. A reference to the verdict in Nothman vs. Barnet London Borough Council [1978 (1)WLR 220] (at 228) is also relevant. In such cases, it is often said, Courts have to do what the Parliament would have done. A reference to the verdict in Surjit Singh Karla vs. Union of India and another [1991(2) SCC 87 explaining the principle of ’causes omissus’ is also brought to the notice of this Court; to the effect that if it is an accidental omission, court can supply/fill up the gap. This Court however does not find it appropriate to “re-write” the provision, as it is within the exclusive domain of the Parliament. This is more so, when the relevant statutes like Mental Health Act, 1987 and PWD Act, 1995 came to be repealed, on introducing the new legislations, such as the Mental Healthcare Act 2017 and The Rights of persons with Disabilities Act, 2016 in conformity with the mandate of U.N.Convention, 2006. This Court does not say anything whether any amendment is necessary, also in respect of the National Trust Act for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (National Trust Act, 1999) with reference to the U.N. Convention 2006. It is for the Government to consider and take appropriate steps in this regard, as it is never for the Court to encroach into the forbidden field. This Court would only like to make it clear that, in so far as the case of a patient lying in ‘comatose state’ is not covered by any of the statutes, (as discussed above), for appointment of a Guardian, the petitioners are justified in approaching this court seeking to invoke the power under Article 226 of the Constitution of India. It is declared accordingly.”
“Since no specific provision is available in any Statutes to deal with the procedure for such appointment of Guardian to a victim lying in ‘comatose state’”, the High Court, found it “necessary to stipulate some ‘Guidelines’, based on the inputs gathered by this Court from different corners, as suggested by the learned counsel for the petitioners, the learned Government Pleader and also by the learned Amicus Curiae, till the field is taken over by proper legislation in this regard.” This Court fixed “the norms/guidelines as a temporary measure”.
Norms/Guidelines Fixed by the Kerala High Court
In Shobha Gopalakrishnan v. State of Kerala, ILR 2019-1 Ker 669; 2019-2 KHC 488; 2019-1 KLT 801, it became necessary to stipulate ‘Guidelines’. The court held as under:
“35. Coming to the incidental aspects; since no specific provision is available in any Statutes to deal with the procedure for such appointment of Guardian to a victim lying in ‘comatose state’, it is necessary to stipulate some ‘Guidelines’, based on the inputs gathered by this Court from different corners, as suggested by the learned counsel for the petitioners, the learned Government Pleader and also by the learned Amicus Curiae, till the field is taken over by proper legislation in this regard. This Court finds it appropriate to fix the following norms/guidelines as a temporary measure:
i) petitioner/s seeking for appointment of Guardian to a person lying in comatose state shall disclose the particulars of the property, both movable and immovable, owned and possessed by the patient lying in comatose state.
ii) The condition of the person lying in comatose state shall be got ascertained by causing him to be examined by a duly constituted Medical Board, of whom one shall definitely be a qualified Neurologist.
iii) A simultaneous visit of the person lying in comatose state, at his residence, shall be caused to be made through the Revenue authorities, not below the rank of a Tahsildar and a report shall be procured as to all the relevant facts and figures, including the particulars of the close relatives, their financial conditions and such other aspects.
iv) The person seeking appointment as Guardian of a person lying in comatose state shall be a close relative (spouse or children) and all the persons to be classified as legal heirs in the due course shall be in the party array. In the absence of the suitable close relative, a public official such as ‘Social Welfare officer’ can be sought to be appointed as a Guardian to the person lying in ‘comatose state’.
v) The person applying for appointment as Guardian shall be one who is legally competent to be appointed as a Guardian
vi) The appointment of a Guardian as above shall only be in respect of the specific properties and bank accounts/such other properties of the person lying in comatose state; to be indicated in the order appointing the Guardian and the Guardian so appointed shall act always in the best interest of the person lying in ‘comatose state’.
vii) The person appointed as Guardian shall file periodical reports in every six months before the Registrar General of this Court, which shall contain the particulars of all transactions taken by the Guardian in respect of the person and property of the patient in comatose state; besides showing the utilization of the funds received and spent by him/her.
viii) The Registrar General shall cause to maintain a separate Register with regard to appointment of Guardian to persons lying in ‘comatose state’ and adequate provision to keep the Reports filed by the Guardian appointed by this Court.
ix) It is open for this Court to appoint a person as Guardian to the person lying in comatose state, either temporarily or for a specified period or permanently, as found to be appropriate.
x) If there is any misuse of power or misappropriation of funds or non-extension of
requisite care and protection or support with regard to the treatment and other requirements of the person lying in comatose state, it is open to bring up the matter for further consideration of this Court to re-open and revoke the power, to take appropriate action against the person concerned, who was appointed as the Guardian and also to appoint another person/public authority/Social Welfare Officer (whose official status is equal to the post of District Probation Officer) as the Guardian.
xi) It shall be for the Guardian appointed by the Court to meet the obligations/duties similar to those as described under Section 15 of the National Trust Act and to maintain and submit the accounts similar to those contained in Section 16.
xii) The Guardian so appointed shall bring the appointment to the notice of the Social Welfare Officer having jurisdiction in the place of residence, along with a copy of the verdict appointing him as Guardian, enabling the Social Welfare Officer of the area to visit the person lying in ‘comatose state’ at random and to submit a report, if so necessitated, calling for further action/ interference of this Court .
xiii) The transactions in respect of the property of the person lying in ‘comatose state’, by the Guardian, shall be strictly in accordance with the relevant provisions of law.
If the Guardian appointed is found to be abusing the power or neglects or acts contrary to the best interest of the person lying in ‘comatose state’, any relative or next friend may apply to this Court for removal of such Guardian.
xiv) The Guardian appointed shall seek and obtain specific permission from this Court, if he/she intends to transfer the person lying in comatose state from the jurisdiction of this Court to another State or Country, whether it be for availing better treatment or otherwise.
Shobha Gopalakrishnan v. State of Kerala Followed/Referred to in Following Decisions
Kamakshee Bisht v. State of Uttarakhand & Ors., Writ Petition Misc. Single No. 2553 of 2024
G. Babu v. District Collector, Madurai, 2023 SCC OnLine Mad 568.
Anjuben Karansinh Dodiya v. State Of Gujarat , 22 Jul 2024
Pooja Sharma v. State of U. P., 06 Oct 2023
Maya (alias) Maya Vijayamma v. State of Tamil Nadu, 28 Aug 2023
Lalithambika v. Grievance Redressal Committee, 14 Feb 2023
S. D. v. Govt Of NCT of Delhi , 29 Oct 2021
Dipaben v. State of Gujarat, 20 Oct 2021
Samina Akbar Shaikh v. State of Gujarat , 20 Oct 2021
Bhim Singh v. AGM State Bank of India , 08 Apr 2021
Uma Mittal v. Union of India , 15 Jun 2020
Vandana Tyagi v. Government of National Capital Territory of Delhi, 07 Jan 2020
Suresh Gupta v. Union of India , 30 May 2019.
Conclusion
Urgent attention of Legislators are needed –
either to enact a new law
or to make necessary amendments to incorporate all persons under disability in the existing Statues – by including them in the inclusive definitions of persons covered under those enactments.
When a document is produced before the Sub Registrar, can he require the executant to produce prior title deeds to satisfy himself as to the title of the executant?
‘No’ is the answer given by the Supreme Court in Satya Pal Anand v. State of MP, AIR 2016 SC 4995; 2016-10 SCC 767. The Apex Court held as under:
“He is not expected to evaluate the title or irregularity in the document as such. The examination to be done by him is incidental, to ascertain that there is no violation of provisions of the Act of 1908. In the case of Park View Enterprises (Park View Enterprises v. State of Tamil Nadu, AIR 1990 Mad 251) it has been observed that the function of the Registering Officer is purely administrative and not quasi-judicial. He cannot decide as to whether a document presented for registration is executed by person having title, as mentioned in the instrument.”
Sub-Registrar registers the document purely in a ministerial and administrative capacity. It cannot be equated with service of notice on the State. Sub-Registrar does not receive any notice on behalf of Government.
Sub-Registrar ‘registers’ the document, but does not represent “the Government” for purposes of receiving legal notice.
It is a pure ministerial act for he has no discretion, he does not make any adjudication, and he does not represent anybody including the State.
Registering officer is not permitted to inquire into validity of the Deed
The same view (in Satya Pal Anand v. State of MP) is taken in State of Gujarat v. Rajiv Maheshkumar Mehta (09 Aug 2016, Guj.) holding that the registering officer is not permitted to undertake inquiry into legality and validity of the title and document; and that the registering officer is not empowered to act like a judicial officer. The Gujarat High Court referred to the following decisions:
(1) Krishna Gopal Kataria v. State of Punjab, AIR 1986 P & H 328. That powers of Registrar are clearly defined and demarcated and any instruction by the State Government to the Registrar and in turn to the Sub-Registrar not to register sale deeds or lease deeds in respect of properties belonging to religious/charitable institutions in absence of any statutory provision was held to be illegal. It was further held that Act 1908 is a complete code of deeds.
(2) Bihar Deed Writers Association v. State of Bihar, AIR 1989 Pat 144, in which, it was held that it is not for registering authority to ascertain title to its own satisfaction and in the fact of that case absence of any declaration by the parties in respect of Bihar Land Reforms Act 1961 and refusal to register the sale deed was held bad in law.
(3) E. Eshaque v. Sub-Registrar, Kozhikode, AIR 2002 Ker 128 whereby it was held that registering authorities is not required to satisfy title, possession or encumbrances in respect of property sought to be registered. In this case also reliance was placed by the High Court of Kerala on the decision in the case of Bihar Deed Writers Association v. State of Bihar.
(4) State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77 In the above case Section 22A inserted by Registration Amendment Act 16 of 1976 whereby documents to be registered if found opposed to public policy and notifications issued in this regard was held to be unconstitutional and secondly notifications issued thereunder where quashed and set aside. In the above decision even power of attorney was also interpreted in light of Chapter X of Contract Act, 1872.
(5) Captain Dr. R. Bellie v. Sub-Registrar, Sulur, AIR 2007 Mad 331. It was the case when registration of document was denied on the ground that it was opposed to public policy and relying on decision in the case of State of Rajasthan v. Basant Nahata, AIR 2005 SC 3401 provision made vide Government Order No. 150 pertaining to commercial taxes was set aside and provisions of Section 22A inserted by registration (Tamil Nadu Amendment) Act, 1994) was held to be unconstitutional.
(6) Pandurangan v. Sub-Registrar, Reddiar-palayam Pondicherry, AIR 2007 Mad 159, in which it was held that withholding of registration of document is not permissible based on executive instructions in absence of any statutory rule and that registering authority has no power to make inquiry relating to title. In this case even amendment made to Rule 54 framed in exercise of powers under Section 69 of the Act 1908, by which, scope of power conferred upon registering authority under Sections 34 and 35 of the Act came to be enlarged and was held to be illegal by holding that statutory rules cannot override express provisions of the statute and execution instructions cannot override either of the two.
(7) Rajni Tandon v. Dulal Ranjan Ghosh Dastidar, 2009 (3) GLH 533 whereby the Apex Court held that holder of power of attorney himself is executant of the document to be registered is entitled to present such document before registering officer for registration and in such a case namely where a deed is executed by a agent for principal and the same agent signs, appears and presents the deed or admits an execution before Registering Officer, it is not a case of presentation under Section 32(c) of the Act 1908. In other words, only in cases where the person signing the document cannot present the document before the registering officer and gives a power of attorney to another to present the document that the provisions of Section 33 get attracted. It is only in such a case, that the said power of attorney has to be necessarily executed and authenticated in the manner provided under Section 33(1)(a) of the Act 1908.
(8) Shakuntala Devi v. State of Jharkhand, AIR 2010 Jha 56 keeping in mind Sections 34 and 35 of the Act 1908, whereby it is held that registering officer can only see whether document is duly stamped to valuation given and that he has no jurisdiction to withhold or refuse registration of sale deed on the ground that vendor has no title.
No provision empowers Sub Registrar to satisfy himself as to the title
In Eshaque v. Sub Registrar, 2002 (1) KLT 330, it is held that there is no provision which empowers the Sub Registrar to satisfy himself as to the title; and that the Sub Registrar is not justified in requiring the executant of the deed to produce possession certificate from the competent authority to establish possession of property. It is followed in the following decisions:
Sumathi v. State of Kerala, ILR 2018-4 Ker 956; 2018-5 KHC 586; 2018-4 KLT 959
Nilambur Rubber Company Ltd. v. State of Kerala, 2024-4 KLT 642 (Held- registration of a sale deed cannot be refused, on the premise that the executant has no ownership, but only possession over the property conveyed.)
Pankaj Kumar Harlalka v. State of Jharkhand, 2002-3 JCR 152; 2005-2 JLJR 118.
High Courts seem to be unanimous on this issue
In Makhanbala Chakraborty v. Pranab Kanti Basu, 26 Sep 2014, the Tripura High Court observed that the High Courts seem to be unanimous on this issue that the Registrar/Sub-Registrar cannot refuse to register a conveyance entered into by a squatter, since the Registrar does not have the authority to question the title of the transferor. Following decisions were referred to:
Bihar Deed Writers Association v. State of Bihar: AIR 1989 Pat 144(DB) (para 3);
Hari Singh v. Sub-Registrar, : (1998) 120 PLR 787 (DB) (paras 8 to 11),
K. Eshaque v. Sub-Registrar, : AIR 2002 Ker 128 (paras 7 to 9);
Gopal v. District Collector, Bhandara, (2003) 3 Mah LJ 883 (para 11);
Yadla Ramesh Naidu v. Sub-Registrar, : (2009) 1 ALD 337 (paras 22 to 25);
Ashwini Ashok Khirsagar vs. State of Maharashtra, (2010) 3 AIR Bom R (NOC 318) 90 (paras 4 to 8);
Deep Apartment v. State of Maharashtra, : (2012) 6 Bom LR 3782; (paras 6 to 9);
Gurjeet Singh Madaan v. Sub-Registrar, CS (OS) 340/2013, decided on 26-09-2013 (Delhi High Court, paras 23 to 25).
End Notes:
If inherent defect in title, Registration of Title deed Insignificant
The inherent defects in the title of a party to a suit will not stand cured by the existence of a lawfully registered sale deed (P. Kishore Kumar v. Vittal K. Patkar, 2023 INSC 1009; 2023 14 SCR 796). The title of the executant does not automatically stand confirmed, even if the subsistence of a deed is proved. It is also a trite law that if the vendor had no pre-existing rights, a document could not convey any interest (NeelakantanDamodaranNamboothiri v. VelayudhanPillai NarayanaPillai, AIR 1958 SC 832; K. Vattakandiyil Madhavan v. Janaki, 2024(2) KLT 789 (SC).
If the vendors had ex facie no ownership rights (under any prior document) to convey the same to the transferee, the doctrine Nemo Dat Qod Non Habet applies (Kavita Kanwar v. Pamela Mehta, (2021) 11 SCC 209; Rusoday Securities v. National St. Exchange 2021-3 SCC 4017; Umadevi Nambiar v. Thamarasseri Diocese, AIR 2022 SC 1640; P. Kishore Kumar v. Vittal K Patkar, 2024-1 CTC 547; Chandra Gopiv. U. K. Gopalakrishnan, 2013-1 KHC 174, Sarojini v. Santha Trading Co., 1969 KLT 412).
About 400 acres of land at Munambam coast inhabited by hundreds of families of fishing communities, for generations, is claimed to be wakf property. This area is situated in Ernakulam district. It is a part of Vypin Island. It comes within the boundary of erstwhile Travancore. The majority of people there belongs to Latin Christian. Good number of Hindu families is also there.
History of the Dispute, in Nutshell
During 1902, Travancore Government leased out 404 acres of land, to Abdul Sathar Haji Moosa Sait. In 1948, Mohammed Siddiq Sait got the land assigned in his name from the legal hairs of Sathar Sait. Siddiq Sait had given the land to the Farook College, Kozhikode executing a ‘dakf’ (not wakf) deed on November 1, 1950.
Earlier Injunction suit
Farook College managing committee had filed a civil suit in 1962 before the Addl. District Court, Parur (OS No. 35/1962: Subsequently numbed as OS No. 53/1967 of Sub Court, Parur) for restraining the defendants (27 in number) from ‘trespassing’ on the suit property (404 acres). It ended in a High Court (AS No. 600/1971) decision in 1975. The defendants 1 to 14 were kudukidappukars. The injunction sought for by the college was granted (excepting the kudukidappukars and two others) . But there was no title enquiry, it being proceeded only on ‘possession’. (Actually there was no contention at all on the basis that it was a wakf property.)
It was definitely pointed out by the High Court, on the basis of survey commission report, that the extent of land available was 135.11 acre alone; the rest being lost by sea erosion.
Abdul Sathar Haji Moosa Sait Obtained Property in 1902
In the Judgment of the Sub Court dated 12. 07. 1971, the case of the plaintiff/college is laid down as under:
“Abdul Sathar Haji Moosa Sait obtained registry of 34 acres 92 cents on the eastern side of the canal and 404 acres 76 cents on the western side, in 1902 ME ….. On the death of the registry holder who was enjoying the property effecting improvements, his legal representatives sold the property to one Mohammed Siddiq Sait by document No. 875/1123″.
Dispute arose in 1960s were Settled
Though the people have been residing in that land for generations, they had no ownership deeds. The legal steps initiated by the college authorities against the occupants were settled by a compromise whereunder the land was sold to its occupants at market rate.
Present Controversies
The Kerala State Wakf Board placed claim over the land – on the ground that there is wakf on the basis of the 1950 wakf deed.
What is a wakf?
Wakf is permanent dedication of property for charitable or religious purposes.
Is there a Permanent Dedication in Munambam matter?
It is the most important issue. The answer thereof is depended upon the interpretation of the 1950 deed. The following clause in the 1950 deed is brought forward by those who stand for propping up the rights of wakf and to argue that the dedication is permanent.
“There will be no right (for the college) to use the property, and the income therefrom, for any purpose other than the educational purpose of the college.”
The following emphatic provision in the 1950 deed is pressed ahead by those who stand for propping up the rights of the residents there, to say that there was no permanent dedication.
“If the college comes to a standstill, and the property herein remains, the executant of the deed and his successors will have the right to recover the scheduled property.”
Nissar Commission
In 2008, an inquiry commission (Nissar, District Judge) was appointed as regards this property. The commission found (said to be without notice to the residents) that it was a wakf property. It observed that sale of properties, made by the college authorities, were illegal.
Wakf Board Required Revenue not to Accept Land Tax
In 2019, the Wakf Board required the Revenue Authorities not to accept land tax from the occupants. The state government did not approve it. Wakf Board filed petitions before the Kerala High Court. The High Court granted a temporary stay.
THE MUSSALMAN WAKF ACT, 1923
It is the Act that governed the matter during the time the dakf deed was made. This Act had been made ‘whereas it is expedient to make provision for the better management of wakf property and for ensuring the keeping and publication of wakf property accounts in respect of such properties’. It defined wakf as under:
“(e) “Wakf” means the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognised by the Mussalman law as religious, pious or charitable, but does not include any wakf, such as is described in section 3 of the Mussalman Wakf Validating Act, 1913, under which any benefit is for the time 6 being claimable for himself by the person by whom the wakf was created or by any of his family or descendants.”
THE WAKF ACT, 1954
The 1923 Act was overrode by The Wakf Act, 1954. This Act defined wakf as under:
(l) “wakf” means the permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes—
(i) a wakf by user;
(ii) grants (including mashrut-ul-khidmat) for any purpose recognised by the Muslim law as pious, religious or charitable; and
(iii) a wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable;
THE WAKF ACT, 1995
1995 Act was promulgated, repealing the 1954 Act . The 1995 Act is made for ‘the better administration of Wakfs and for matters connected therewith or incidental thereto’. It defined wakf as under:
“(r) “wakf” means the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes –
(i) a wakf by user but such wakf shall not cease to be a wakf by reason only of the user having ceased irrespective of the period of such cesser;
(ii) “grants“, including mashrut-ul-khidmat for any purpose recognised by the Muslim law as pious, religious or charitable; and
(iii) a wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable …”
Supreme Court Decisions
In Trustees of Sahebzadi Oalia Kulsum Trust v. Controller of Estate Duty, A. P. , Hyderabad, (AIR 1998 SC 2986; 1998-6 SCC 267) it is laid down as under:
“The mention of the poor is required by Mohammad (not by Abu Yusuf with whom is the Fatwa) not to give validity to the wakf, but to ensure perpetuity; and as human beings are liable to become extinct and as a wakf must be a permanent dedication, Mohammad required that the poor should be expressly named or implied by the use of the word “sadakah”. Abu Yusuf, on the other hand, held that whether the poor were named or not, or whether the word “sadakah” was used or not, the word “wakf” implied perpetuity, and, therefore, unless some other object was named, on failure of the wakif’s posterity, the income would be applied for the poor. There is no question about the validity of the wakf; the mention of the poor does not make the wakf per se more or less valid; it only ensures perpetuity insisted upon in the law.
The position in Islamic Law is summed up by Fyzee at page 303 by quoting the words of Ameer Ali:
From the promulgation of Islam up to the present day there has been an absolute consensus of opinion regarding the validity of wakfs on one’s children, kindred and neighbours. Practical lawyers, experienced judges, high officers of every sect and school under Mussulman sovereigns are all in unison on this point. There are minor differences, viz. Whether a wakf can be created for one’s self, whether the unfailing object should be designated, whether the property should be partitioned or not, whether consignment is necessary or not; but so far as the validity of a wakf constituting one’s family or children the benefaction, in whole or in part, is concerned, there is absolutely no difference. A wakf is a permanent benefaction for the good of God’s creatures: …”
In Aligarh Muslim University (The) v. Syed Mohammad Sayeed Chishty (2008 2 RLR 59; 2007 3 RLW(Raj) 2394; 2007 3 WLC 298) it is observed as under:
“(38). Thus, the Act of 1913 brought the law in conformity with the lslamic Jurisprudence on wakf. In the case of Trustees of Sahebzadi Oalia Kulsum Trust v. Controller of Estate Duty, A.P. (1998) 6 SCC 267), the Honble Supreme Court expressly overruled the case of Abul Fata Mohammad Ishak v. Rasamaya Dhur Chowdhary (1894-22 Indian Appeals 76).
(39). Thus, “wakf is an unconditional, irrevocable, perpetual dedication of property, vested in God, the ownership of the founder, called `wakif is extinguished, the usufruct or profits of the property are used for the benefit of mankind, except for purposes forbidden by lslam. The essential of a valid wakf according to the Hanafi Law are threefold:
(1) The dedicator (wakif) should be a person professing the Musalman faith and of sound mind and not a minor or a lunatic, and
(2) The dedication should be for a purpose recognized by the Musalman law as religious, pious or charitable. (Mulla. 621).
(3) However, according to the Act of 1913, the wakf can be created for the benefit of the wakifs children, kindred or descendants as long as the ultimate purpose is the benefit of the poor or any religious, pious or charitable work in accordance with Muslim law.”
What is Dedication in Indian Law
An ‘endowment’ is founded by dedication of property for the purposes of religion or charity having both the subject and object certain and capable of ascertainment. In the ‘law of trusts’, dedication involves the extinguishment of the rights of the original owner of the lands (Gulam Mohideen Khan v. Abdul Majid Khan: AIR 1957 AP 941).
By ‘dedication’, the owner divests all his rights, title and interest in the property which becomes the property of the deity (SM Manorama Dasi Vs. Dhirendra Nath Busu: AIR 1931 Cal 329) or other endowment.
Dedication involves complete (Kidangoor Devaswom v. Krishnan Namboothiri, 2016-1 KerLT 778)extinguishment of the rights, or cessation of ownership (Kuldip Chand v. Advocate General to Government of H P: AIR 2003 SC 1685, Amolak Nath Vs. Keshav Ji Gaudia Math Trust: 2013-1 ADJ 363; 2012-94 All LR 573) of the original owner of the lands (Gulam Mohideen Khan v. Abdul Majid Khan: AIR 1957 AP 941).
The essential formalities (See: Shri Ram Kishan Mission v. Dogar Singh AIR 1984 All 72) for the creation of a religious or charitable endowment are:
the property in respect of which the endowment is made must be designated with precision;
the object or purpose of dedication should be clearly indicated;
the founder must have effectively divested (State of Madras v. S. S. M. Paripelena Sangam: AIR 1962 Mad 48; See also: Idol Murli Manoharji v. Gopilal Garg: AIR 1971 Raj 177) himself of all beneficial interest (right of enjoyment as owner or beneficial ownership (See: M. R. GodaRao Sahib v. State of Madras: AIR 1966 SC 653; Sree Siddhi Budhi Vinayakagar v. S V Marimuthu: AIR 1963 Mad 369) in the endowed properly.
Claim of Title in ‘Dakf’ Deed
In the dakaf deed ‘absolute title’ is claimed. It is said to be derived from the sale deed executed by his predecessor in interest, under deed No. 775 of 1123 of SRO, Edappally.
Mere Assertion will not Confer Title
It is definite, and admitted by all concerned, that the property had been obtained to the predecessor in interest of the transferor under a Government lease, in 1902. If that be so, he had not obtained title. Mere assertion, without pre-existing title will not confer title; (Neelakantan Damodaran Namboori v. Velayudhan Pillai, AIR 1958 SC 832; Vattakandiyil Madhavan v. Janaki 2024-2 KLT 789) Nemo dat qod applies (P. Kishore kumar v. Vittal K. Patkar, 2024 (1) CTC 547).
GOVT. CAN RECOVER THIS PROPERTY
Since the Travancore government had given the property under a pattom/lease (in 1902) and the lessee had claimed title, the State, as landlord, can recover the property “on that ground” alone.
In Bishwanath Agarwala v. Sabitri Bera -2009(15) SCC 693 (Deepak Varma & SB Sinha, JJ) it is held as under:
“The landlord in a given case though may not be able to provethe relationship of landlord and tenant, but in the event, he proves his general title, may obtain a decree on the basis thereof.”
The Apex Court referred to Champalal Sharma v. Smt. Sunita Maitra, 1990 (1) DJLR 298, where SB Sihna, J. himself held:
“It is also well settled that one such relationship is admitted or established tenant would be estopped and precluded from challenging the title of the landlord; and if he does so, under the general rule, make himself liable for eviction on that ground”.
The disputes in Munambam issue, in its ultimate analysis, centers around the point – whether there is ‘permanent dedication’ or not. It is depended upon the interpretation of the ‘dakf’ deed of 1950.
Saji Koduvath Associates 