sajikoduvath

Illegal, Mistaken or Fraudulent Registration of Deed, and Subsequent Mutation: No Adverse Possession

Adverse Possession is the Denial of Title of the True Owner. Mistaken or Fraudulent Possession will Not be ‘Adverse’.

Jojy George Koduvath

Abstract

Illegal, mistaken or fraudulent registration of a deed, and subsequent mutation will not perfect adverse possession. Because,

If a fraudulent act, no denial.
There will be no hostile animus.
A registered deed, is a paper transaction.
The Sub Registrar does not enquire title .
Mutation of Govt. land – no adverse possession.
Adverse Possession must have commenced in wrong.
Registration of a deed is not a ‘notice’ to the true owner or the Government.
Payment of tax on “Government” property – no “adverse” claim can be raised.
Registration of the title deed by itself will not cure the inherent defect in the title.

Also Read: How to Plead Adverse Possession? Adverse Possession: An Evolving Concept.

Part I

Adverse Possession: When Attracted

1. To attract title by adverse possession, the acts of possession must be –

peaceful, notorious, open and hostile to the true owner
for 12 years,
‘commenced in wrong and aimed against right‘
admitting the title of the true owner.

2. Adverse possession 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.

3. Mere possession, however long, will not give rise to title by adverse possession.

4. Claim of title by adverse possession cannot be validly raised based (i) on a defective (for nemo dat quod applies) title or (ii) on a fraudulent title deed, for

the claim of title on adverse possession is based on “adverse” claims against the true owner, accepting his title and
the claim presupposes the claimant has no subsisting or legally recognisable title and no title deed in support thereof.

5. Under the changed law in the 1963 Limitation Act, what is in the mind (animus) of the claimant of the Adverse Possession is decisive.

Admissibility of Electronic Evidence: Section 61 of the BSA Permits Oral Evidence (Overriding Arjun Panditrao)

Proof by way of S. 63(4) Certificate is Optional.

Saji Koduvath, Advocate, Kottayam.

Introduction

Section 61 of the Bharatiya Sakshya Adhiniyam, 2023, is a new provision. It was not in the Indian Evidence Act, 1872. Section 61, Adhiniyam says – the “admissibility” of evidence shall not be ‘denied’ merely on the ground that it is in electronic form. It is largely declaratory in nature. It binds the sections on electronic evidence to follow.

The Supreme Court decision in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1: AIR 2020 SC 4908, established a strict interpretation. It laid down (before promulgation of Adhiniyam, 2023) that the proof by the certificate under Section 65B (Section 63, Adhiniyam) was mandatory for admitting a computer output (copy) in evidence.

Drastic Legislative Change to Arjun Panditrao

Section 61, Adhiniyam made a drastic legislative change to the deliberation placed by Arjun Panditrao Khotkar. By virtue of Section 61, a computer output (i.e., a copy of an electronic record) is capable of being proved by any mode of proof recognised under the Adhiniyam, and is not restricted to proof solely through the certificate.

Section 61, Adhiniyam reads as under:

“61. Electronic or digital record. Nothing in this Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the evidence on the ground that it is an electronic or digital record and such record shall, subject to section 63, have the same legal effect, validity and enforceability as other document.”

Section 63(4) BSA reads as under:

“(4) In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things shall be submitted along with the electronic record at each instance where it is being submitted for admission, namely:—
- (a) identifying the electronic record containing the statement and describing the manner in which it was produced;
- (b) … (c) ….“

Arjun Panditrao Overlooked Two Aspects

It appears that Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal overlooked two significant aspects:

First, the deeming fiction in Section 65B (Section 63 of the Adhiniyam). It provides that a computer output (copy), upon compliance with the prescribed conditions, shall be deemed to be ALSO a document (original document).
Secondly, the requirement of a certificate under sub-section (4) applies only “where it is desired to give a statement in evidence“. That is, Section 63(4) is attracted only where a party elects to prove a statement by resorting to the certificate.

Note 1: By virtue of Section 63(4), proof by way of a certificate –

is confined to statements—that is, matters involving oral or written assertions—such as call detail records, bank statements, or statements of a witness recorded by the court directly into the ‘computer’,
cannot be given as regards other electronic materials —such as photographs or video recordings stored in digital media (e.g., pen drives or CDs).

Note 2: Sections 61 to 63 deal only with the mode of proof required for the admissibility of computer outputs (copies); and they do not address the truth or correctness of their contents.

Sec. 63(1) reads – “(….computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied …. and shall be admissible in any proceedings,….. without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.”

In appropriate cases, the court may, however, draw a presumption as to the truth or correctness of the contents.

Following decisions say – the photographs/videos speak for itself.

Rajendra Sail v. M P High Court Bar Association, AIR 2005 SC 2473; 2005-6 SCC 109, Y.K. Sabharwal & Tarun Chatterjee, JJ. (Video)
Tomaso Bruno v. State of Uttar Pradesh, (2015) 7 SCC 178, R. Banumathi, Kurian Joseph, Anil R. Dave, JJ. (CCTV footage – best evidence)
Swami Vivekanandnagar Co-op. Housing So. Ltd. v. Ahmedabad Municipal Corporation, 2022-3 GLH 122; 2022-4 GLR 2732 (Photograph)
Madhavnagar Coop. Housing So. Ltd v. Joint Registrar, 2020-2 GLR 1437, J.B. Pardiwala, J. (Photograph)
Chairman, Tamil Nadu Electricity Board, Chennai v. Kogila, 2021-3 CTC 118; 2021-2 LW 28 (Photographs)
Jetunben v. State of Gujarat, 2017-2 GLR 1640, J.B. Pardiwala, J. (Video)
New India Assurance Company v. Mohd. Akram Bhat, 2016-2 JKJ 12 (Photograph)
Shakuntala Bhadouria v. M. P. Griha Nirman Mandal, 2014-3 MPHT 62; 2014-1 MPJR 131 (DB) (Photographs)
Gujarat State Road Transport Corporation v. Bhagirathi Ganapathy, 2010-2 CCR 1041 (Photograph)
Pawan Kumar Agarwal v. State of Uttar Pradesh, 2007-6 ADJ 551 (Photographs)
Raghuveer Singh v. Shiv Kumar Swami, 2006-3 RDD 1653; 2006-3 RLW(Raj) 2266; 2006-4 WLC 210 (Video)
Taran Parkash Mohan Lal v. State, 1962 CrLJ 189 (P&H) (Photograph).

Arjun Panditrao: ‘Statements’ Embrace even Video and Photograph

In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, the Supreme Court adopted an expansive interpretation of the expression “statements.” It pressed the requirement of a certificate under Section 65B as a general condition for the admissibility of all forms of computer output (copies).

In other words, the term “statement” was construed to embrace all forms of computer output, regardless of their nature—whether a video, a photograph, or any other digital record. However, such an expansive construction does not appear to be supported either by the text of the provision or by its underlying rationale and intended scope.

Section 63, Adhiniyam, now requires expert opinion or hash value certification over and above the Certificate laid down in the former provision under Section 65B of the Indian Evidence Act.

UK Courts Did Not Expand the Phrase- “Desired to Give a Statement in Evidence“

The Civil Evidence Act, 1968, contained strict provisions governing computer evidence. Section 69 of the Police and Criminal Evidence Act 1984 (PACE) dealt with the admissibility of computer records in criminal proceedings.

Note: It has been observed in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal that the provisions relating to electronic evidence in Indian law were, in substance, a “poor reproduction” of Section 5 of the 1968 UK Act.

Subsequently, the legal position in the UK underwent a significant change:

Section 69 of the PACE Act, 1984, which imposed strict conditions for admitting electronic evidence in criminal cases, was abolished in 1999.
The 1968 Act was replaced by the Civil Evidence Act 1995, which did not retain the earlier strict and technical requirements for electronic evidence.

Section 69(2) of the PACE Act read as under:

“(2) Provision may be made by rules of court requiring that in any proceedings where it is desired to give a statement in evidence by virtue of this section such information concerning the statement as may be required by the rules shall be provided in such form and at such time as may be so required.”

The UK courts adhered to the textual limitation as regards the expression “statements” under both these Acts (when it existed); they did not expand the expression into a broader rule to enfold all forms of computer outputs (copies).

Present Position: After the repeal of the provisions relating to electronic evidence in the UK Acts, the UK courts have effectively reverted to the common law approach, under which electronic evidence is admitted based on general principles of relevance and reliability, rather than rigid or technical admissibility requirements.

US (Supreme Court of Georgia) Decision: In State v. Gilmore (2021), Supreme Court of Georgia, S20G1430, it held as under:

“The conduct the video depicts does not constitute a statement”.

Law on Electronic Evidence in India: A Comparative Analysis with Other Jurisdictions

Saji Koduvath, Advocate, Kottayam.

Indian Law in a Nutshell

Electronic evidence cannot be ignored on any technicality.

Section 61 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) reads as under:

“61. Electronic or digital record: Nothing in this Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the evidence on the ground that it is an electronic or digital record and such record shall, subject to section 63, have the same legal effect, validity and enforceability as other document.”
- Note: Section 63 speaks about the proof of the copy of the electronic record (computer output) through the certificate provided under this section.

In Shafhi Mohammad v. State of Himachal Pradesh, AIR 2018 SC 714; 2018-2 SCC 801, our Supreme Court observed as under:

“21. ….. Reliability of the piece of evidence is certainly a matter to be determined in the facts and circumstances of a fact situation. However, threshold admissibility of an electronic evidence cannot be ruled out on any technicality if the same was relevant”. (Quoted in: Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1; AIR 2020 SC 4908)

S. 63 of the BSA Speaks about Admissibility of Electronic Records

Sub-sections (1) and (4) of Section 63, Bharatiya Sakshya Adhiniyam, 2023 speak about the admissibility of electronic records. They read as under:

“63. Admissibility of electronic records: (1) Notwithstanding anything contained in this Adhiniyam, any information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media or semiconductor memory which is produced by a computer or any communication device or otherwise stored, recorded or copied in any electronic form (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and Cases in which secondary evidence relating to documents may be given. computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.”
“(4) In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things shall be submitted along with the electronic record at each instance where it is being submitted for admission, namely:—
- (a) identifying the electronic record containing the statement and describing the manner in which it was produced;
- (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer or a communication device referred to in clauses (a) to (e) of sub-section (3);
- (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,
and purporting to be signed by a person in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) and an expert shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it in the certificate specified in the Schedule.”

Read Article:

Admissibility of Electronic Evidence: Does Section 61 of the BSA Permit Oral Proof (Overriding Arjun Panditrao)

Proof on Electronic Evidence – UK, US and Canada

United Kingdom: In Halsbury’s Laws of England, Fourth Edition, 2006 reissue, Vol. 11(3) Criminal Law, Evidence and Procedure, the English law is explained, while dealing with “Documentary and Real Evidence”, as under:

“1471. Audio and video recordings. – An audio recording is admissible in evidence provided that the accuracy of the recording can be proved, the recorded voices can be properly identified, and the evidence is relevant and otherwise admissible [R. v. Maqsud Ali, (1965) 2 All ER 464, R v. Ashiq Hussain [1966] 1 QB 688, 49 Cr. App. Rep 230, CCA. …. ” (Quoted in: P. Gopalkrishnan @ Dileep v. State of Kerala, AIR 2020 SC 1; 2020-9 SCC 161)

In the UK, the admissibility of electronic evidence is governed predominantly by common law principles. It gives broad discretion to the courts and requires a case-by-case judicial calibration. Section 5 of the UK Civil Evidence Act, 1968, which governed the admissibility of copy of the electronic evidence, was repealed by the Civil Evidence Act, 1995.

Note: As pointed out in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1; AIR 2020 SC 4908), Section 65B, Evidence Act (Section 63 of the BSA), is a poor reproduction of Section 5 of the UK Act. Section 65B was incorporated in the Indian Evidence Act, by Act 21 of 2000. (By that time, Section 5 itself was not there in the UK statute book.)

The following are the well-accepted UK authorities on proof of electronic evidence.

(i) R. v. Maqsud Ali [1966] 1 QB 688)
(ii) R v. Clare and Peach (1995] 2 Cr App R 333)
(iii) R v. Atkins [2009] EWCA Crim 1876

United States: US law on Electronic Evidence codifies a structured, certification-based proof for admitting electronic records—without the need to call a live witness. Federal Rules of Evidence (FRE – introduced in 1975) provide specific provisions relating to electronic records, under Rules 901 and 902. (Entire Rules 901 and 902 are quoted in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1; AIR 2020 SC 4908.)

Sub-rule (13) and (14) of Rule 902 (incorporated by amendment in 2017) read as under:

Rule 902(13): “Certified Records Generated by an Electronic Process or System. A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11).”
Rule 902(14): “Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent also must meet the notice requirements of Rule 902(11).”

Together sub-rules (13) and (14) –

eliminate the need for foundational oral evidence in routine cases,
reduce litigation costs and delays, and
recognize the reliability of modern electronic systems and forensic practices.

The following are important US authorities on the admissibility of electronic evidence without formal oral testimony.

(i) State of Nevada v. Archanian, 145 P 3d 1008 (2006), decision of Supreme Court of Nevada (a U.S. state)
(ii) United States v. Vayner, 769 F.3d 125 (2d Cir. 2014), decision of U.S. Court of Appeals (Second Circuit)
(iii) United States v. Browne, 834 F.3d 403 (3d Cir. 2016), decision of U.S. Court of Appeals (Third Circuit).

Canadian Law: A similar facilitative approach, akin to Indian law, is discernible in Canadian law. Both the Canada Evidence Act and the Ontario Evidence Act also recognise a presumption as to the “integrity of an electronic documents system”, in the absence of evidence to the contrary.

The following are the well-accepted Canadian authorities on proof of videos.

(i) R. v. Bulldog, 2015 ABCA 251 – Alberta Court of Appeal (Western Canada).
(ii) Her Majesty v. Jaiyhi He, 2017 ONCJ 790 – Ontario Court of Justice (Canada).
(iii) R v Penney, (2002) 163 CCC (3d) 329 – Supreme Court of Canada.

These decisions consistently laid down the following as to the admissibility of a video in evidence:

(a) The video must be relevant to the issues at trial.
(b) The video must be authentic – that it accurately represents the events depicted.

English Decisions: 1 – R. v. Maqsud Ali – tape recordings

R v. Maqsud Ali, (Court of Appeal, England and Wales, Criminal Division [1966] 1 QB 688), considered the admissibility of tape recordings. It is a foundational case on audio recordings. The accused were charged with murder. During the investigation, police secretly recorded their conversation in a police station. It was held as under:

“We can see no difference in principle between a tape recording and a photograph. In saying this we must not be taken as saying that such recordings are admissible whatever the circumstances, but it does appear to this court wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded properly identified; provided also that the evidence is relevant and otherwise admissible, we are satisfied that a tape recording is admissible in evidence. Such evidence should always be regarded with some caution and assessed in light of all the circumstances of each case.” (Quoted in: Ram Singh v. Col. Ram Singh, AIR 1986 SC 3; 1985 Supp1 SCC 611; Nilesh Dinkar Paradkar v. State of Maharashtra, 2011-4 SCC 143)

2 – R v. Clare and Peach – video recordings

In R v. Clare and Peach (Court of Appeal, England and Wales, Criminal Division, [1995] 2 Cr App R 333), a Police Constable Fitzpatrick had filmed supporters arriving at the football ground before the match. Also filmed them whilst they were in the stadium and as they left. Those colour films were of good quality. The video recordings made in the street were filmed in black and white. By studying the film, viewing the recording many times, the Police Constable was able to follow the movements of individuals and see what actions they took. By comparing the individuals performing violent acts with the colour pictures, he claimed to be able to identify not only the violent acts in the street but who was committing them. The court found that he had “special knowledge that the court did not possess”. His identifications were held to be ‘no more secondary evidence than any oral identification made from a photograph’.

3 – R v. Atkins – CCTV footage

R v. Atkins, [2009] EWCA Crim 1876, of the Court of Appeal (Criminal Division), England and Wales, is an often quoted decision on visual evidence (CCTV). It is a case where a team of three men committed two armed robberies at the homes of targeted victims in west London. The evidence included CCTV footage of violent attacks and murder. The faces of the culprits were not clearly visible in the footage. The prosecution relied on CCTV images and still photographs to identify the accused. They presented an expert who compared features from the CCTV images with photographs of the accused. The Court of Appeal held that expert evidence is admissible in such cases, for it helps the jury on matters beyond their ordinary experience. However, the Court stressed an important condition – the expert’s opinion must be based on a reliable and demonstrable method.

US Decisions: 1 – State of Nevada v. Archanian – surveillance digital video

State of Nevada v. Archanian, 145 P 3d 1008 (2006), was a murder case before the Supreme Court of Nevada (a U.S. state). A key piece of evidence was the digital video recorded by the store’s surveillance system. The accused questioned the authenticity of the video footage. It was argued that the VHS tape given to the police video technician was not the original. In the trial, the prosecution admitted that it could not authenticate the images as accurately transferred from the surveillance system. However, it claimed that it had been taken from the digital surveillance system itself. The Supreme Court of Nevada accepted the video evidence, holding as under:

“There is no evidence suggesting that the composite videotape was inaccurate, that any relevant or exculpatory information had been deleted from it, or that the modifications made to it adversely affected or obscured the content.”

2 – United States v. Vayner – social networking website

United States v. Vayner, 769 F.3d 125 (2d Cir. 2014), is rendered by the United States Court of Appeals for the Second Circuit. The evidence included a printout of a social-networking page allegedly belonging to the accused. It showed that he used the false name “Mark V.” The government did not offer any “direct” evidence. The court considered the ‘authentication’ of the electronic evidence under Rule 901 of the Federal Rules of Evidence. It was pointed out that anyone could create a similar page. Therefore, it was held that sufficient proof of authorship should be provided. The conviction was vacated, and a new trial was ordered.

3 – United States v. Browne – Facebook chat

The rise of social media has created new challenges. The US Court of Appeals (Third Circuit), in United States v. Browne, 834 F.3d 403 (3d Cir. 2016), put it as under:

“The authentication of social media evidence in particular presents some special challenges because of the great ease with which a social media account may be falsified or a legitimate account may be accessed by an imposter.”

The accused in this case was convicted of serious offences, including child pornography and sexual offences involving minors. The conviction was based partly on Facebook chat records. The accused challenged the admissibility of the chat logs. He argued that the chats were not properly authenticated by oral testimony. The Government argued that the chats were self-authenticating. The Court did not accept this argument. However, it upheld the conviction, finding that the Government had produced more than sufficient “extrinsic evidence” to authenticate the chat logs under Rule 901(a). Because the evidence showed that the disputed Facebook records reflected real online conversations that took place between the accused and three of the four minors. The standard applied was proof by a “preponderance of the evidence”.

Canadian Decisions: 1 – R. v. Bulldog – surveillance camera video footage

R. v. Bulldog, 2015 ABCA 251, is a case that dealt with the video footage from surveillance cameras. In this case, it was alleged that the accused forcefully entered a residence, assaulted the occupants, and committed robbery. One of the main questions that arose was whether a digital video can only be authenticated by an eyewitness. The court answered it negatively. It is held – a video can be proved by any one of the following –

(1) the camera operator;
(2) an eye-witness present when the video is taken who can testify that the video accurately represents what he or she saw;
(3) a person qualified to state that the representation is accurate; or
(4) an expert witness.

Should there be Proof – Video not been Altered or Changed?

This was another main question in this appeal. The finding, in a nutshell, was as under:

1. When the accuracy of the video is satisfied, evidence regarding the absence of alteration is not necessary.
2. The mere fact of alteration did not automatically render a video recording inadmissible.
3. The Crown’s failure to establish that the DVD was not altered was not fatal if it is proved that the DVD was a substantially accurate and fair representation of what it purported to show.

2 – Her Majesty v. Jaiyhi He – surveillance camera

Acceptance of video taken by surveillance cameras was the main issue in the Ontario Court of Justice in Her Majesty v. Jaiyhi He, 2017 ONCJ 790. An officer found that two surveillance cameras of a company had captured the events of the crime on video. He watched the videos from those cameras. The manager in charge of the cameras copied the video from their system to a DVD. At the trial, the Crown had not called anyone from the company that kept the surveillance system. KENKEL J., relying on R. v. Bulldog, 2015 ABCA 251, held – so long as there is evidence which shows the video is accurate, no evidence regarding the absence of any change or alteration is necessary, and circumstantial evidence may be used to authenticate real evidence. It was also found that no particular evidence or a particular witness is essential to prove the video taken by surveillance cameras.

3 – R v Penney – CCTV

In R v Penney, (2002) 163 CCC (3d) 329, the Supreme Court of Canada considered the legal effect of the jury’s comparison of a poor-quality video with the accused, without cogent supporting evidence.

The case was related to a robbery at a video store. The incident was captured on a security video (CCTV). The quality of the video was poor, and the offender’s face was not clearly visible. At trial, the jury had to compare the person in the video with the accused in court and decide if they were the same person. There was little or no additional evidence to connect the accused to the crime beyond the video. The core issue was whether a conviction can safely rest on a jury comparison of a poor-quality video image with the accused, without strong supporting evidence. The appeal court found a risk of mistaken identity. Conviction was set aside.

Indian Law Compared to other Jurisdictions

The US and Canada have specific statutory provisions for proving electronic evidence. Our legal position is closer to these jurisdictions. It differs from the position under UK common law, where courts exercise a wide discretion and decide each case on its own facts.

Indian law adopts a comparatively liberal approach. It relaxes the evidentiary burden for admitting electronic evidence. This approach is reflected in specific provisions under Section 63(4) of the Bharatiya Sakshya Adhiniyam, 2023. It is also supported by the general presumptions contained in Section 119 of the Adhiniyam. This aligns with the Canadian presumption regarding the integrity of an electronic document system, in the absence of evidence to the contrary.

The Madras High Court, in State Represented by the Inspector of Police, Chennai v. V. P. Pandi @ Attack Pandi, 2019-2 CTC 391; 2019-3 CTC 391; 2019-2 MLJ(Cri) 129), referring Her Majesty v. Jaiyhi He (supra) and State of Nevada v. Archanian (supra), said as under:

“We have referred to these decisions in order to reiterate that a pragmatic and purposive interpretation of the law governing the admission of electronic evidence is consistent with the development of the law in international jurisdictions as well.
116. We, therefore, unhesitatingly hold that the photos and videos in M.Os. 45, 49, 50, 51, 52 and 53 were taken contemporaneously when the attack was taking place and have not been doctored and can be read in evidence.”

Videos Speak for Themselves – English Decision

It is laid down by the United Kingdom Court of Appeal in R v. Downey, [1995] 1 Cr.App.R. 547 CA and R v Blenkinsop, [1995] 1 Cr.App.R. 7, CA as regards a video –

It “should be shown without comment, since it was for the jury to decide what they revealed.”

CCTV Footage – The Best Evidence

“The courts below have ignored the importance of best evidence, i.e. CCTV camera in the instant case.”
“Notwithstanding the fact that the burden lies upon the accused to establish the defence plea of alibi in the facts and circumstances of the case, in our view, prosecution in possession of the best evidence– CCTV footage ought to have produced the same. In our considered view, it is a fit case to draw an adverse inference against the prosecution under Section 114 (g) of the Evidence Act that the prosecution withheld the same as it would be unfavourable to them had it been produced.”
Note: Tomaso Bruno is overruled in Arjun Panditrao v. Kailash Kushanrao, on the point – whether computer output can be proved otherwise than invoking Section 65(4) of the Evidence Act; that is, under Section 65. In Tomaso Bruno it was held that secondary evidence of the contents of CCTV footage can also be led under Section 65 of the Evidence Act. Hence the CCTV footage was found admissible. In this regard Tomaso Bruno followed Navjot Sandhu. It is held in Arjun Panditrao that in the teeth of Anvar P. V., it could not have been said to be a correct statement of the law.

Photographs/Videos Speak for Themselves – Indian Decisions

“Ex. A-10 photos and CD clearly show that the pole was heavily damaged. One could also to see the iron rods exposed and rusted. The cement concrete covering peeled off. The broken electrical pole on the ground with live wire seen in the photographs speak for itself.”

In Pawan Kumar Agarwal v. State of Uttar Pradesh, 2007-6 ADJ 551, Allahabad High Court held as under:.

“The photographs of the constructions which were given at that point of time, show that it was semi finished construction, and the photographs appended with this Review Application, show that constructions have been completed and they speak in volumes for itself. Photographs, which have been filed as Annexure-16 to the writ petition, and the photographs, which have been annexed along with this Review Application clearly speak that the applicant had full knowledge of the pendency of the aforementioned writ petition and in spite of the same constructions were carried on and completed.”

Following decisions also say – the photographs/videos speak for itself.

Swami Vivekanandnagar Co-op. Housing So. Ltd. v. Ahmedabad Municipal Corporation, 2022-3 GLH 122; 2022-4 GLR 2732 (Photograph)
Madhavnagar Coop. Housing So. Ltd v. Joint Registrar, 2020-2 GLR 1437, J.B. Pardiwala, J. (Photograph)
Jetunben v. State of Gujarat, 2017-2 GLR 1640, J.B. Pardiwala, J. (Video)
New India Assurance Company v. Mohd. Akram Bhat, 2016-2 JKJ 12 (Photograph)
Shakuntala Bhadouria v. M. P. Griha Nirman Mandal, 2014-3 MPHT 62; 2014-1 MPJR 131 (DB) (Photographs)
Gujarat State Road Transport Corporation v. Bhagirathi Ganapathy, 2010-2 CCR 1041 (Photograph)
Raghuveer Singh v. Shiv Kumar Swami, 2006-3 RDD 1653; 2006-3 RLW(Raj) 2266; 2006-4 WLC 210 (Video)
Taran Parkash Mohan Lal v. State, 1962 CrLJ 189 (P&H) (Photograph)

Seizure Of Heroine Non-Production of CCTV Footage – Not Invite Acquittal

“Though the prosecution could have also produced the CCTV footage from the Central Railway Station, the very absence by itself will not entitle the accused for acquittal. The principle that non-production of the best evidence in the case of the prosecution could not be employed, as the CCTV cannot be said to be a best evidence when the seizing officer and the witnesses have deposed and the mahazar is produced and the CCTV footage can at best be termed as a corroborative material. Therefore, the mere non-production thereof will not entitle the appellant for an acquittal.”

Conclusion

Section 61 of the Bharatiya Sakshya Adhiniyam, 2023, prevents the exclusion of electronic evidence on purely technical grounds. In this sense, Section 61 responds to, and softens, the approach adopted in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal.

The expression “subject to Section 63” in Section 61 requires that certain procedural requirements—such as certification and related safeguards— must be followed. These requirements apply when a party chooses to prove a computer output under this special statutory method. It is therefore arguable that Section 63 is enabling rather than exhaustive.

This construction aligns Indian law more closely with the law in this matter in the United Kingdom, the United States, and Canada.

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Law on Damages

Easement

Stamp Act & Registration

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Negotiable Instruments Act

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Book No. 2: A Handbook on Constitutional Issues

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

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

Can the Court Issue a Second Commission without Setting Aside the First Commission Report?

Answer: Yes.

Saji Koduvath, Advocate, Kottayam.

Part I

Apparent Legal Position

1. There is no bar to issuing a second commission if the court finds –

(i) the earlier Report was not satisfactory, and
(ii) there is a need for a further enquiry.

2. For issuing a second commission, the first commission report need not be set aside.

Because,

O26 r10(3) Code of Civil Procedure expressly allows the Court to direct such further inquiry as it thinks fit, if it is dissatisfied with the proceedings of the Commissioner, for any reason; and
Commission report is only a piece of evidence (A. Narayani v. Kittan, ILR 1997-1 Ker 726; 1996-2 KLJ 489; Subramonian v. K.S.E. Board, AIR 1988 Ker 169: 1987-1 KLT 355), and the court is not ‘bound by’ it.

Divergent Views Settled in Laly Joseph v. K.U. Francis

Laly Joseph @ Laly Sebastian v. K.U. Francis, 2023-3 KHC 678; 2023-2 KLT 516 (A. Muhamed Mustaque, Shoba Annamma Eapen, JJ.) has been rendered on a reference, as a Single Judge observed that a Division Bench, in Francis Assissi v. Sr. Breesiya, 2017-1 KLT 1041 (P.R. Ramachandra Menon, P. Somarajan, JJ.), held that a commission report could not be set aside [and that it can be set aside or varied only under Sub-Rule (2) of Rule 14 of Order XXVI of the CPC]. The reference was answered, finding that the observation in Francis Assissi’s case, on the point under consideration, was an obiter and was not a good law as it was rendered overlooking the statutory provisions. It is held in Laly Joseph v. K.U. Francis –

1. “There is no embargo, according to us, for setting aside a commission report if the court is totally dissatisfied with the commission report.”
- [contra to DB decision, Francis Assissi v. Sr. Breesiya, 2017-1 KLT 1041]
2. “It is also open for the court to remit the commission report for further inquiry, so also to appoint a fresh commission without setting aside the earlier commission report.”
- [contra to DB decision, Swami Premananda Bharathi v. Swami Yogananda Bharathi (K.K. Narendran, Paripoornan, JJ.), AIR 1985 Ker 83: 1985 KLT 144; and Yudathadevus v. Joseph, 2021-5 KHC 668: 2021-6 KLT SN 36.]

Laly Joseph v. K.U. Francis is followed in Sreedevi v. State of Kerala, 2024 (2) KLT 645 (Anil K. Narendran, G. Girish, JJ.)

Sreedevi v. State of Kerala

In Sreedevi v. State of Kerala, 2024 (2) KLT 645 (DB), following Laly Joseph @ Laly Sebastian v. K. U. Francis, it is held as under:

“Of course, it is true that as per Order XXVI Rule 10(3) of the Code of Civil Procedure, 1908, the Tribunal is expected to remit back the commission report and order further enquiry, if only it is dissatisfied with the proceedings of the Commissioner. However, when a party requests for further enquiry on the basis of the new aspects brought out in the pleadings by way of amendment, and seeks to have a commission report on the matters related to such new aspects which are relevant for the just disposal of the case, the court is expected to allow such application even though the commission report which is already on record does not contain anything objectionable for the court to be dissatisfied.”

Two Divergent Observations, on Close Scrutiny of Law on ‘Binding Precedent’

1. In Shajitha v. Akbar, 2023-6 KHC 297: 2023-5 KLT 503 (Single Judge), it is observed –

A commission report cannot be set aside as (rightly) held in Francis Assissi v. Sr. Breesiya (DB). (But, without setting aside the first CR, a fresh commission can be appointed.)
The finding in Laly Joseph v. Francis (DB) — that there is no embargo for setting aside a CR — cannot claim the sanctity of binding precedent. Francis Assissi v. Sr. Breesiya (DB) forms the binding precedent.

2. In T. K. Vijayakumari v. Subhash Mohan, ILR 2024-4 Ker 411; 2024 KER 60761 (Single Judge), it is observed –

It is held in Swami Premananda Bharathi’s case – “The appointment of the second commissioner and the reports filed by him without setting aside the first commissioner’s report is wholly illegal and without jurisdiction”.
The ratio in Swami Premananda Bharathi’s case (supra) is the “binding precedent followed” in –
- Yudathadevus’s case (SB),
- Laly Joseph’s case (DB) and
- Sreedevi’s case (DB).
And the following contra decisions “have no binding effect” –
- Francis Assissi’s case (DB),
- Gopalakrishnan v. V. Ponnappan [2021-5 KHC 548 : 2021-5 KLT 751] and
- Shajitha v. Akbar [2023-6 KHC 297: 2023-5 KLT 503].

Conclusion

1. The issuance of a commission is, in most property-related civil disputes, almost inevitable. It is therefore important that the law on remitting commission reports, setting them aside, and calling for fresh reports is clearly settled and applied consistently.

2. The findings of the Division Bench in Laly Joseph v. K.U. Francis and Sreedevi v. State of Kerala are seemingly legally sound. Still, Shajitha v. Akbar (SB) and T.K. Vijayakumari v. Subhash Mohan (SB) do not accept the authoritative nature of these Division Bench decisions. Referring to certain earlier decisions, the single Judges say that those earlier decisions are the binding judgments. Therefore, in view of the observations in the above single bench decisions, an authoritative clarification is required, by an appropriate Bench, on the following (apparently ‘settled’) aspects:

(i) There is no embargo for setting aside a commission report .
(ii) It is open to the court to remit a commission report for further inquiry, as also to appoint a fresh commission without setting aside the earlier report.

Part III

Effect of Two Commission Reports in File

Assume, rightly or wrongly, two commission reports were brought to file; then, should the first report be discarded totally?

Since (i) the commission reports are pieces of evidence, (ii) it forms part of evidence and (iii) no express legal provision permits to discard such a report, it may not be proper to totally discard the first report.

Is it mandatory to set aside the Commission Report – where the report suffered only some “deficiency or omission”?

No.
It is to be remitted-back to the commissioner to cure the lacuna. Yudathadevus v. Joseph, 2021-5 KerHC 668; 2021-4 KerLJ 415; 2021-6 KerLT(SN) 42. Followed Joy Cherian v. George Cherian, 2009-3 KerLT 64.

Can the partiess be pushed to suffer for the Mistake of the Commissioner

In Yudathadevus v. Joseph, 2021-5 KerHC 668; 2021-4 KerLJ 415; 2021-6 KerLT(SN) 42, it is held as under:

“21. In a case where the court finds that the commission report is totally unacceptable as it is not in accordance with the true state of affairs, it can always attempt to get at the truth by deputing another commissioner and its power to act under sub rule (3) cannot be minimised or overlooked on the ground that the contesting party has not filed any objection to it. It is always the endeavour of the court to arrive at the correct decision in a given case and whenever it is found that the commission report is unacceptable for any valid reason it can legitimately exercise its power under sub rule (3). It is well within the competence of the appellate court also to exercise in appropriate cases power under Order 26 Rule 10(3) to set aside the commission report and call for fresh report by deputing another commissioner.”

It is beyond doubt that above observation is made on the principle that the parties should not be pushed to suffer for the lapse or mistake of the commissioner. We can take cue from the proposition that ‘a party should not be pushed to suffer a wrong occasioned by the inaction or fault on the part of the Court’. See :

(i) Jang Sing v. Brij Lal, AIR 1966 SC 1631;
(ii) A.R. Antulay v. R.S. Naik, 1988-2 SCC 602;
(iii) Mudit Verma v. Co-operative Tribunal, 2006 (63) ALR 208 (All)(LB)

When a commission report is set aside, is the court bound to remit it back to the Commissioner for getting a fresh report?

Yes.
Yudathadevus v. Joseph, 2021-5 KerHC 668; 2021-4 KerLJ 415; 2021-6 KerLT(SN) 42. The reason behind it is obvious –
Court can appoint a commissioner suo motu (Dinesh Chandra Gaur v. Abhay Sood, 2015 (2) ARC 243).
In Retnamma v. Mehaboob, 2013-3 Civil CC 65 it is held that the court should go through the report and see whether it was in Order, irrespective of whether any objection is filed or not; and that the Order 26 Rule 10(3) C.P.C. laid down that where the Court was dissatisfied with the proceedings of the Commissioner, for any reason, it might direct the commissioner to make such further inquiry as it thought fit.

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession:

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

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

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

Res Judicata and Appeal: No Res Judicata on Adverse Findings, in a Favourable Decree

Saji Koduvath, Advocate, Kottayam

Abstract

There will be no res judicata on adverse findings if the suit or appeal is ultimately decided in favour of a party. Because an appeal lies against a decree in terms of Section 96 of the Code (State of Andhra Pradesh v. B. Ranga Reddy, 2020-15 SCC 681), and not merely against findings.

No Res judicata if Appeal could not have been filed

In State of Andhra Pradesh v. B. Ranga Reddy, 2020-15 SCC 681, it is held as under:

The defendants-State could not file an appeal against a decree which was of a dismissal of a suit simpliciter. The findings on Issue No. 1 against the State could be challenged by way of cross-objections in terms of amended provisions of Order XLI Rule 22 of the Code but such filing of cross-objections is not necessary to dispute the findings recorded on Issue No. 1 as the defendants have a right to support the ultimate decree passed by the trial court of dismissal of suit on grounds other than which weighed with the learned trial court. Even in terms of Order XLI Rule 33 of the Code, the Appellate Court has the jurisdiction to pass any order which ought to have been passed or made in proceedings before it.

In PMA Metripolitan v. Moran Mar Marthoma, AIR 1995 SC 2001, it is observed as under:

“48. Last but not the least reason to hold that the finding in the Vattipanam Suit recorded by the High Court in its original judgment on canon etc. could not operate as res judicata is where a decree is one of dismissal in favour of the defendants, but there is an adverse finding against him, a plea of res judicata cannot be founded upon that decision because the defendant having succeeded on the other plea had no occasion to go further in appeal against the adverse finding recorded against him [see Midnapur Zamindari Company Ltd. vs. Naresh Narayan Roy, AIR 1922 PC 241 ] …..
Similarly, in the decision of the Patna High Court in Arjun Singh v. Tara Das Ghosh, AIR 1974 Pat 1 the primary question was whether a party against whom a finding is recorded has got a right of appeal even though the ultimate decision was in his favour and it was held that there was no bar, but what was necessary was that the finding so recorded should operate as res judicata. On facts it was found that the Appellate Court while maintaining the order of dismissal of the suit on preliminary issue recorded findings on other issues which were against the plaintiff, yet the plaintiff was not entitled to file an appeal as the findings on merits which were adverse to him could not operate as res judicata.
In Sham Nath’s case (Sham Nath Madan vs. Mohammad Abdullah, AIR 1967 J&K 85) the learned Single Judge rejected the plea of res judicata raised on behalf of the plaintiff, but while considering the alternative argument, observed that an adverse finding recorded against a defendant in a suit dismissed could not operate as res judicata unless the adverse finding formed a fundamental part of the decree itself.”

In Ravinder Kumar Sharma v. State of Assam, AIR 1999 SC 3571, the Supreme Court held as under:

“23. The respondents before us are, therefore, entitled to contend that the finding of the High Court in regard to absence of reasonable and probable cause or malice – (upon which the decree for pecuniary damages in B and C Schedules was based) can be attacked by the respondents for the purpose of sustaining the decree of the High Court refusing to pass a decree for non-pecuniary damages as per the A Schedule. The filing of cross-objections against the adverse finding was not obligatory. There is no res judicata. …” (Quoted in: Mohammed v. Chandrika, ILR 2010-3 Ker 358; 2010-3 KHC 233; 2010-3 KLT 306)

In Balu Mahadeo Randhir v. Nabilal Haji Habib Gadiwale, 1997-2 BomCR 462; 1997-1 MhLJ 302, it is oheld as under:

“Where a suit is dismissed, the defendant against whom an adverse finding might have come to be recorded on some issue has no right of appeal and he canot question those findings before the Appellate Court. Inasmuch as the defendant could not have filed an appeal, the decision in the aforesaid Regular Civil Suit No. 298 of 1971 cannot act as res judicata…”

In Bakerbag Subhanbeg Vs. Shrikant Laxminarayan Zanwar: 2008-3 All MR 656 it is pointed out that an appeal would lie against only those findings that amount to a ‘decree’ or ‘order’ that falls under Section 96 or Section 100 CPC. Similarly, no appeal lies against an Order under Section 104 read with Order 43, Rule 1. In Bakerbag Subhanbeg earlier decisions were referred to in detail. It includes the following:

Midanpur Zamindari Co. v. Naresh Narayan Roy, AIR 1922 PC 241;
Run Bahadur Singh v. Lucnokoer, ILR (1885)11 Cal 301 (PC);
Pateswari Din v. Mahant Sarjudass, AIR 1938 Oudh 18;
Bansi Lal Ratwa v. Laxminarayan, 1969-2 AWR 246,
Arjun Singh v. Tara Das Ghosh, AIR 1974 Pat 1.

Res Judicata: The issue should have been necessary to be decided

In PMA Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001, it is held as under:

“57. It is fairly settled that the finding on an issue in the earlier suit to operate as res judicate should not have been only directly and substantially in issue but it should have been necessary to be decided as well.”

It is the appellate decision that operates as res judicata

PMA Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001, continued as under:

“When a decision is taken in appeal the rule is that it is the appellate decision and not the decision of the Trial Court that operates as res judicata.”

Appeal dismissed on limitation; Trial Court decision on merits ceases to be final

PMA Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001, further continued as under:

“Where a suit is decided both on merits and on technical grounds by the Trial Court, and the appellate court maintains it on technical ground of limitation or suit being not properly constituted then the decision rendered on merits by the Trial Court ceases to have finality.
In Abdullah Ashgar Ali Khan v. Ganesh Dass AIR 1917 PC 201 the Court while considering the expression, `heard and finally decided’ in Section 10 of the British Baluchistan Regulation IX of 1896 held that where the suit was dismissed by two courts on merits but the decree was maintained in second appeal because the suit was not properly constituted then the finality on merits stood destroyed.” (The apex Court also referred to Sheosagar Singh & Ors. v. Sitaram Singh ILR 1897 Cal. Vol. XXIV. )
“58. The rationale of these decisions is founded on the principle that if the suit was disposed of in appeal not on merits but for want of jurisdiction or for being barred by time or for being defectively constituted then the finality of the findings recorded by the Trial Court on merits stands destroyed as the suit having been found to be bad for technical reasons it becomes operative from the date the decision was given by the trial court thus rendering any adjudication on merits impliedly unnecessary. “

Finding in Review Sustains; Other Earlier Findings Not Res Judicate

PMA Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001, proceeded further as under:

“58. …. On the same rationale, once the Royal Court of Appeal allowed the Review Petition and dismissed the appeal as the ex-communication of Dionysius was contrary to principles of natural justice and he had not become heretic then the finding on authenticity of the canon etc. rendered in the original order was rendered unnecessary. Therefore, the finding recorded on the authenticity of the canon and power of the Patriarch etc. recorded in the earlier order could not operate as res judicate in subsequent proceedings.”

No Res Judicata on a Finding on Title, in an Injunction Suit and in Probate Action

An incidental finding will not constitute res judicata.

In Sajjadanashin Sayed v. Musa Dadabhai Ummer, (2000) 3 SCC 350, it is observed as under:

“24. Before parting with this point, we would like to refer to two more rulings. In Sulochana Amma v. Narayanan Nair [(1994) 2 SCC 14] this Court held that a finding as to title given in an earlier injunction suit would be res judicata in a subsequent suit on title. On the other hand, the Madras High Court, in Vanagiri Sri Selliamman Ayyanar Uthira-soma-sundareswarar Temple v. Rajanga Asari [AIR 1965 Mad 355 : ILR (1965) 1 Mad 232] held (see para 8 therein) that the previous suit was only for injunction relating to the crops. Maybe, the question of title was decided, though not raised in the plaint. In the latter suit on title, the finding in the earlier suit on title would not be res judicata as the earlier suit was concerned only with a possessory right. These two decisions, in our opinion, cannot be treated as being contrary to each other but should be understood in the context of the tests referred to above. Each of them can perhaps be treated as correct if they are understood in the light of the tests stated above. In the first case decided by this Court, it is to be assumed that the tests above-referred to were satisfied for holding that the finding as to possession was substantially rested on title upon which a finding was felt necessary and in the latter case decided by the Madras High Court, it must be assumed that the tests were not satisfied. As stated in Mulla, it all depends on the facts of each case and whether the finding as to title was treated as necessary for grant of an injunction in the earlier suit and was also the substantive basis for grant of injunction. In this context, we may refer to Corpus Juris Secundum (Vol. 50, para 735, p. 229) where a similar aspect in regard to findings on possession and incidental findings on title were dealt with. It is stated:
“Where title to property is the basis of the right of possession, a decision on the question of possession is res judicata on the question of title to the extent that adjudication of title was essential to the judgment; but where the question of the right to possession was the only issue actually or necessarily involved, the judgment is not conclusive on the question of ownership or title.””
(Quoted and followed in: M.S. Ananthamurthy v. J. Manjula, Neutral Citation: 2025 INSC 273; 27.02.2025)

The Apex Court (Sulochana Amma Vs. Narayanan Nair, (1994) 2 SCC 14) also pointed out as under:

“The decision in earlier case on the issue between the same parties or persons under whom they claim title or litigating under the same title, it operates as a res-judicata. A plea decided even in a suit for injunction touching title between the same parties, would operate as res-judicata. It is a settled law that in a Suit for injunction when title is in issue, for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties when the same is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit, the decree in injunction suit equally operates as a res-judicata.”

In the locus classicus, Anathula Sudhakar Vs. P. Buchi Reddy, AIR 2008 SC 2033, the Supreme Court held that where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. It is clear that findings of title in such suits are redundant so far as res judicata is concerned, the Court proceeded to hold as under:

“21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:
(a) Where a cloud is raised over the plaintiff’s title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff’s title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff’s lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar [Annaimuthu Thevar v. Alagammal, (2005) 6 SCC 202] ). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.”
(Quoted and followed in: M.S. Ananthamurthy v. J. Manjula, Neutral Citation: 2025 INSC 273; 27.02.2025)

(Both, Sulochana Amma and Anathula Sudhakar are referred to in T. Ravi Vs. B. Chinna Narasimha, 2017-7 SCC 342)

In Hem Nolini Judah v. Isolync Saroibashini Bose, AIR 1962 (SC) 1471, it was held that questions of title are not decided in proceedings for the grant of probate or letters of administration.

See Blog: No Res judicata on Finding on Title in an Injunction Suit
Declaration and Injunction

Appellate Decision Operates As Res Judicata

Decree of a lower court merges with the decree of the appellate court. Hence appellate decree is to be looked into to determine res judicata. In PMA Metripolitan v. Moran Mar Marthoma, AIR 1995 SC 2001, it is observed as under:

“If the ex-communication of Dionysius was invalid for violation of principles of natural justice, as was found by the Bench reviewing the order, then the findings on earlier issues were rendered unnecessary and it is fairly settled that the finding on an issue in the earlier suit to operate as res judicata should not have been only directly and substantially in issue but it should have been necessary to be decided as well. For instance, when a decision is taken in appeal the rule is that it is the appellate decision and not the decision of the Trial Court that operates as res judicata. Consequently where a suit is decided both on merits and on technical grounds by the Trial Court, and the appellate court maintains it on technical ground of limitation or suit being not properly constituted then the decision rendered on merits by the Trial Court ceases to have finality. In Abdullah Ashgar Ali Khan v. Ganesh Dass AIR 1917 PC 201 the Court while considering the expression, `heard and finally decided’ in Section 10 of the British Baluchistan Regulation IX of 1896 held that where the suit was dismissed by two courts on merits but the decree was maintained in second appeal because the suit was not properly constituted then the finality on merits stood destroyed. In Sheosagar Singh & Ors. v. Sitaram Singh ILR 1897 Cal. Vol. XXIV where parentage of defendant was decided in his favour by the Trial Court but the High Court maintained the order as the suit was defective the claim of the defendant in the latter suit that the finding on parentage operated as res judicata was repelled and it was held, that the question of parentage had not been heard and finally decided in the suit of 1885. The appeal in that suit had put an end to any finality in the decision of the first Court, and had not led to a decision on the merits.”

Res Judicata on Ex Parte Decree

An ex-parte decree might also will constitute res judicata if the defendant had express notice of the pleadings and the prayer that a particular issue or matter would be decided.

(State of UP v. Jagdish Saran Agrawal: AIR 2008 SC 817;
Raj Lakshmi Dasi v. Banamali Sen – AIR 1953 SC 33;
Ram Gobinda Dawan v. Bhaktabala – AIR 1971 SC 664;
Pandurang v. Shantabai – AIR 1989 SC 2240;
Thiruvengadam Mammad v. Chathamkara Ammad – AIR 1929 Madras 89;
H.R C.E. Commissioner v. V. Krishnaswami – AIR 1975 Madras 167).

Whether a Consent/Compromise Decree Operates as Res judicata

In Pulavarthi Venkata Subbarao v. Valluri Jagannadha Rao, AIR 1967 SC 591, the Supreme Court observed as under:

“….A compromise decree is not a decision by the Court. It is acceptance by the Court of something to which the parties had agreed. The decree merely sets the seal of the Court on the agreement of the parties. The Court does not decide anything. Nor can it be said that the decision of the Court was implicit in it. Only that decision by the Court can be res judicata where the case has been heard and decided on merit . … the statutory prohibition under Sec. 11 of the code of civil procedure or that of constructive res judicata would apply as a matter of public policy ….. Such a decree cannot strictly be regarded as a decision on the matter which was heard and finally decided, and cannot operate as res judicata. ..”.
See also: Daryao v. State of UP, 1962- I SCR 574;
Vidya Sagar v. Sudesh Kumari, 1976-1 SCC 115;
Jamia Masjid v. K. V. Rudrappa, AIR 2021 SC 4523; 2022-9 SCC 225.

It is held in Baldevdas Shivlal v. Filmistan Distributors (I) P. Ltd., AIR 1970 SC 406, that ‘a matter in contest in a suit may operate as res judicata only if there is an adjudication by the Court’.

Ratio Decidendi is the Binding Precedent; Not Findings on Facts or Issues

In Jagdish Prasad v. State of MP, 2004(4) MPLJ 537, it was held by the Supreme Court as under:

“Any observation made or relief given by a Court, out of sympathy, compassion, sentiments and not based on any discernible principle of law or de hors the merits of the case, cannot be a binding precedent. A judgment of a Court contains three parts :
- (i) finding of facts;
- (ii) statement of principle of law applicable to the legal problem raised on the facts, based on which the case is decided; and
- (iii) decision which is based on the finding of fact, applicable principles of law, and in some cases, discretion and the need to mould the relief in a particular manner.
Out of the three parts, it is only the second part, that is ratio decidendi or statement of law applied and acted upon by the Court, that is a binding precedent. Neither the findings on facts nor the ultimate decision, that is, the relief given or the manner adopted to dispose of the case, is a precedent.” (Quoted in: Satpura Narmada Kshetriya Gramin Bank, Chhindwara v. A. K. Chaturvedi, 2012-1 JLJ 78; 2012-1 MPLJ 282)

In A-One Granites v. State of U.P. [(2001)3 SCC 537], the Supreme Court observed that where no consideration was given to the question, the decision cannot be said to be binding; and precedents sub silentio and without arguments are of no moment. (Referred to in: Satpura Narmada Kshetriya Gramin Bank, Chhindwara v. A. K. Chaturvedi, 2012-1 JLJ 78; 2012-1 MPLJ 282.)

Res Judicata Binds Parties; Ratio Decidendi (as Binding Precedent) Binds Courts

In The Modern English Legal System (4th Edition) by Smith, Bailey and Gunn (Sweet & Maxwell, 2002), pages 518-519, says as under:

“…. Thus the Court’s order is binding on the parties under the res judicata doctrine; the ratio decidendi is binding on other Courts in accordance with the principles outlined above under the doctrine of binding precedent. A startling illustration of the distinction was provided by the following series of cases. A testator, John Arkle Waring, left annuities to Mr. Howard and Mrs. Louie Burton-Butler ‘free of income tax’. In 1942 the Court of Appeal in Re warning, Westminster Bank Ltd. v. Awdry : (1942) Ch. 426 on an appeal in which Howard was a party, held that income tax had to be deducted. Louie was not a party as she was in an enemy occupied country. Leave to appeal to the House of Lords was refused. Four years later the House of Lords in Berke¬ley v. Berkeley : (1946) A.C. 555 overruled the Awdry case. Subsequently, Jenkins J. held that the Awdry case was res judica¬ta so far as Howard was concerned notwithstanding that its ratio had been overruled in Berkeley v. Berkeley and that Louie’s annuity would be dealt with in accordance with the later case. (See Re Warning, Westminster Bank v. Burton-Butler : (1948) Ch. 221).”
(Quoted in: Kalinga Mining Corporation v. Union of India (AK Ganguly, CJ, then) 2007-104 CLT 737, Ori)

Spencer Bower, Turner and Handley’s Commentary on the Doctrine of res judicata (Butterworths: London, Edinburgh, Dublin – 1996, pages 8 and 9), explains the concept of res judicata as under:

“There is an essential difference between res judicata estoppel and the doctrine of judicial precedent. Under the former a final decision in fact or law by any Court having jurisdiction precludes either party (except on appeal) from again raising the same issue against the other in any Court. The doctrine of judicial precedent, on the other hand, is not concerned with issues between parties. …
The difference is illustrated by the cases of Re Waring decided in 1942 and 1948. In the first Farwell J held that Section 25 of the Finance Act 1941 was not applicable (1942) Ch. 309 to an annuity; but the Court of Appeal reversed this decision. (1942) Ch. 426. The effect was two-fold; it decided as res judicata between the parties that Section 25 applied, and it bound Courts up to the Court of Appeal in other cases. In Berkeley v. Bekeley (1946) AC 555, the House of Lords overruled Re Waring. In 1948 the trustees sought a decision as between themselves and the annuitant who had not been joined in the first proceedings. (1948) Ch. 221. The other annuitant remained bound by the earlier decision, but the result (see Duke of Bedford v. Elliz : (1901) AC 1 at 8), was otherwise governed by Berkeley v. Berkeley: Gisborne Sheepfarmers’ Mercantile Co. Ltd. v. IRC : (1962) NZLR 810 at 814.” (Quoted in: Kalinga Mining Corporation v. Union of India (AK Ganguly, CJ, then) 2007-104 CLT 737, Ori)

In State of M.P. v. Mulam Chandi, AIR 1973 MP293, it has been held as under:

“As between a decision which operates a s res judicata and a decision which is binding as a precedent but not res judicata, the former must prevail.”

Interpretation of a Document can Be A Binding Judicial Precedent

In Sahu Madho Dass v. Mukand Ram, 1955 AIR SC 481, it was observed out as under:

“Mukand Ram was not a party to that litigation and the decision does not bind him but it operates as a judicial precedent about the construction of that document, a precedent with which we respectfully agree.”
(Referred to in: Syed Hafiz Mir v. Abdul Nayeemkhan, AIR 1960 MP 50; Potluri Saraswathi v. Vallabhaneni Veerabhadra Rao, 2004-7 ALT 120; Harabati v. Jasodhara Debi, AIR 1977 Ori 143; Ramachandra Bhat v. Srideviamma, AIR 1976 Kar 217; Katragadda China Anjaneyulu v. Kattragadda China Ramayya, 1965 AIR AP 177.)

In R. V. Bhupal Prasad v. Saleha Begum, 2002 Supp2 ALD 735; 2001-5 ALT 770, it is pointed out that in Anjaneyulu v. Ramaiah, 1965-1 ALT 149, a Full Bench of the Andhra High Court held that interpretation of a material document in a prior proceeding between the same parties even if does not operate as res judicata would be a binding judicial precedent in a subsequent proceeding between the parties based on that document.

Even an erroneous decision operates as Res Judicata

In Bindeswari v. Bageshwari, AIR 1936 PC 46, it was held as under:

“Where the decision of the Court in a previous suit determined that the section had never applied to a transaction, a Court in a new suit between the same parties with regard to the same transaction cannot try a new the issue as to its applicability in face of the express prohibition in Section 11 of the Code. “

In Mohanlal Goenka v. Benoy Kishna, AIR 1953 SC 65 it was laid down as under:

“(23) There is ample authority for the proposition that even an erroneous decision on a question of law operates as res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. A decision in the previous execution case between the parties that the matter was not within the competence of the executing court even though erroneous is binding on the parties; see Abhoy Kanta Gohain v. Gopinath Deb Goswami AIR 1943 Cal. 460.”

Erroneous decision on a Question of Law does not Operate as Res Judicata

In Canara Bank v. N. G. Subbaraya Setty, AIR 2018 SC3395; 2018-16 SCC 228, (relying on S.P.A. Annamalay Chetty v. B.A. Thornhill AIR 1931 PC 263) it is held as under:

“An erroneous judgment on a question of law, which sanctions something that is illegal, also cannot be allowed to operate as res judicata.”

In Allahabad Development Authority v. Nasiruzzaman, (1996) 6 SCC 424, it is held that when the previous decision was found to be erroneous on its face, such judgment cannot operate as res judicata (referred to in: Canara Bank v. N. G. Subbaraya Setty, AIR 2018 SC3395; 2018-16 SCC 228).

In Shakuntla Devi v. Kamla, (2005) 5 SCC 390, it is held that in view of the changed position in law consequent to a contrary interpretation put on Section 14 of the Hindu Succession Act, 1956 by V. Tulasamma v. V. Sesha Reddy, (1977) 3 SCC 99, the earlier decree based on judgments that were overruled cannot operate as res judicata (referred to in: Canara Bank v. N. G. Subbaraya Setty, AIR 2018 SC3395; 2018-16 SCC 228).

In Canara Bank v. N. G. Subbaraya Setty, AIR 2018 SC3395; 2018-16 SCC 228it is held – Where the law is altered since the earlier decision, the earlier decision will not operate as res judicata

Erroneous decision on Jurisdiction of Court – Not Operate as Res Judicata

In Mathura Prasad Bajoo Jaiswal v. Dossibai N. B. Jeejeebhoy, (1970) 1 SCC 613, it is observed as under:

“9. A question of jurisdiction of the Court, or of procedure, or a pure question of law unrelated to the right of the parties to a previous suit, is not res judicata in the subsequent suit. Rankin, C.J., observed in Tarini Charan Bhattacharjee’s case:
- “The object of the doctrine of res judicata is not to fasten upon parties special principles of law as applicable to them inter se, but to ascertain their rights and the facts upon which these rights directly and substantially depend; and to prevent this ascertainment from becoming nugatory by precluding the parties from reopening or recontesting that which has been finally decided.”
10. A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not, in our judgment, operate as res judicata. Similarly by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute, the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise.
11. It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent Court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question of law i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression “the matter in issue” in Section 11 of the Code of Civil Procedure means the right litigated between the parties i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land.” (Quoted in: Canara Bank v. N. G. Subbaraya Setty, AIR 2018 SC3395; 2018-16 SCC 228)

In Canara Bank v. N. G. Subbaraya Setty, AIR 2018 SC3395; 2018-16 SCC 228, it is pointed out that Mathura Prasad Bajoo Jaiswal v. Dossibai N. B. Jeejeebhoy, (1970) 1 SCC 613, has been followed in a number of cases. In Sushil Kumar Mehta v. Gobind Ram Bohra, (1990) 1 SCC 193, following Mathura Prasad Bajoo Jaiswal, it is held that where there is an inherent lack of jurisdiction, which depends upon a wrong decision, the earlier wrong decision cannot be res judicata. In Isabella Johnson (Smt.) v. M.A. Susai (1991) 1 SCC 494, after setting out the law contained in Mathura Prasad, stated that a Court which has no jurisdiction in law cannot be conferred with jurisdiction by applying the principle of res judicata, as it is well settled that there is no estoppel on a pure question of law which relates to jurisdiction.

No Binding Precedent if relevant statutory provision was Not considered

In Union of India v. Maniklal Banerjee, AIR 2006 SC 2844, the Apex Court has held as under:

“It is now well-settled that if a decision has been rendered without taking into account the statutory provision, the same cannot be considered to be a binding precedent. This Court, in Pritam Singh, while exercising its discretionary jurisdiction, might have refused to interfere with the decision. The same, therefore, did not constitute any binding precedent.” (Referred to in: Hameeda Begum v. Champa Bai Jain (Arun Misra, J.), ILR 2009 MP 2328; 2009-3 MPLJ 472)

Arun Misra, J., referred to the House of Lords’ decision in Hameeda Begum v. Champa Bai Jain, ILR 2009 MP 2328; 2009-3 MPLJ 472, and said as under:

“(35) Another decision relied upon is rendered by the House of Lords in Watt vs. Ahsan (2007) UKHL 51. In the aforesaid case, question arose on Section 12 of the Race Relations Act, 1976. The submission was made that they were party and that All vs. Mcdonagh (2002) ICR 1026 was wrongly decided. In any case, the interpretation given to Section 12 by the EAT in Sawyer v. Ahsan (2000) ICR 1 is res judicata between him and the Labour Party, not only for the purposes of his first complaint but for the other two as well. It was opined that the EAT was wrong in Sawyer vs. Ahsan (2000) ICR 1 to hold that the Labour Party was a qualifying body, but there was no appeal against the decision of EAT , it was held that decision was binding upon the parties though wrong in law. When the Tribunal was-having the jurisdiction to decide the question, it is binding upon the parties though erroneous.
There is no dispute with the aforesaid proposition, but here we are concerned with the fresh cause of action on which suit is based and previously relevant statutory provision of Section 111 (d) of TP Act was not taken into consideration, question of determination of tenancy was also not decided.”

Exceptions to the Rule of Res Judicata

Arun Misra, J., pointed out as regards Rule of Res Judicata, in Hameeda Begum v. Champa Bai Jain, ILR 2009 MP 2328; 2009-3 MPLJ 472 (referring to State of MP. v. Mulamchand 1973 MPLJ 832), as under:

( 36 ) …. The rule admits of certain exceptions.
- One is that where the decision relates to the jurisdiction of the Court to try the earlier proceeding, it will not operate as res judicata if in the subsequent suit it is found to be erroneous because the question of jurisdiction is unrelated to rights claimed by one party and denied by other.
- Another exception is where the law is altered since the earlier decision, the earlier decision will not operate as res judicata between the same parties.
- Third exception is that a decision of a Court sanctioning something which is illegal does not operate as res judicata, and a party affected by the decision is not precluded from challenging its validity.
In the instant case, the earlier decisions rendered by this Court were not on the question of law of merger of tenancy into co-ownership and section 111 (d) of the TP Act was not considered, thus, it cannot be said to be operating as res judicata in the present suit based on fresh cause of action of ejectment of tenant and title. Tenant has protection under Rent Act, he can be evicted only on availability of ground under Section 12 of the Act. It is a question pertaining to jurisdiction to evict. There is no finding of fact which is coming in the way in the instant suit. The main question is that of the status of the defendants and beyond iota of doubt, they are tenants and tenancy is not determined by the fact that only portion of the property had been purchased by one of the heirs of the original tenant.”

Whether O. I, r. 8 Decree is Res Judicata

Order I rule 8 of the Code of Civil Procedure, 1908, enables the plaintiffs to file a suit in a representative capacity for the benefit of a class of (numerous) persons.

Whether the decree in such a suit operates as res judicata against the persons who are represented remains as a controversy. In any event, by the insertion of Sub-rule (6) to rule 8 of Order I, in 1976, it became legitimate to say that the decree stands as res judicata. Sub-rule (6) lays down that a decree passed in a suit under rule 8 shall be binding on all persons on whose behalf or for whose benefit the suit is instituted or defended.

Therefore, the view taken in Srinivasa Aiyankar v. Aryar Srinivasa Aiyankar, (1910) ILR 33 Mad 483 : 6 IC 229, that the decisions do not bind on those who were not actually (eo nominee) parties (and hence not res judicata and not enforceable in execution) does not hold good at present. This view in Srinivasa Aiyankar had been taken in following cases (prior to 1976) also:

Sahib Thampi v. Hamid, 36 Mad. 414
Walker v. Sur, 1914-2 KB 930
Hardie and Lane Limited v. Chiltern, 1928-1 KB 663
Kodia Goundar v. Velandi Goundar. AIR 1955 Mad 281

It is noteworthy that even when Sub-r. (6) of r. 8 of O. I was not available in the Code, it was observed in Waryam Singha v. Sher Singh, AIR 1942 Lah 136, that the decree for injunction could be executed against any of the persons who were represented under O. 1 r. 8 CPC; because, all the persons who were represented must be held to be parties as the decree obtained in such a suit was binding on all of them. This view is taken in following cases also:

Mool Chandra Jain v. Jagdish Chandra Joshi, AIR 1955 All 385
Abdulla v. Parshotam Singh, AIR 1935 Lah 33
Jatindra Mohan Banerje v. Kali Charan, AIR 1960 Cal 623

Relying on Shri V. J. Thomas v. Shri Pathrose Abraham, AIR 2008 SC 1503, and Kodia Goundar Vs. Velandi Goundar, AIR 1955 Mad 281, the Kerala High Court has in Narayanan V. Periyadan Narayanan Nair, 2021 (3) KHC 211 (FB) held that execution of a decree is not possible if he was not impleaded as a defendant. The Full Bench overruled James Vs. Mathew (ILR 2012-4 Ker 753, 2012-4 Ker 640, 2012-4 Ker LT 666, 2012-4 KHC 604 ), which held that a decree for injunction obtained in a representative suit is binding on all persons for whose benefit the suit was defended, though they were not eo nomine parties to the suit; and that in case of wilful disobedience of such a decree by those persons for whose benefit the suit was defended, it is enforceable against them under r. 32 of O. XXI of the Code.

See Blog: Decree in OI R8 CPC-Suit & Eo-Nomine Parties

Res Judicata, Order II Rule 2 Bar and Sec. 10 CPC

Sec. 11 CPC and Order II rule 2 CPC bar suit/relief. But, Sec. 10 CPC bars trial only. Because:

Sec. 11 CPC (Res Judicata) begins as – “No Court shall try any suit or issue”.
Order II Rule 2 bars to – “sue for any relief omitted“.
Sec. 10 CPC (Res sub judice – Latin: ‘under judgment’) begins as – “No Court shall proceed with the trial of any suit“.

See Blog: Order II, Rule 2 CPC – Not to Vex Defendants Twice for the Same Cause of Action

Change of Law and Res judicata

When the law has been changed, subsequent to a decision rendered by a Court, it is held in Alimunnissa Chowdharani v. Shyam Charan Roy, 1905-1 CLJ 176, that the earlier decision would not operate as res judicata.

In Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy, 1970-1 SCC 613, it is observed that when the law has undergone a change, there would be no question of res judicata or constructive res judicata. It is observed as under:

“5. But the doctrine of res judicata belongs to the domain of procedure: it cannot be exalted to the status of a legislative direction between the parties so as to determine the question relating to the interpretation of enactment affecting the jurisdiction of a Court finally between them, even though no question of fact or mixed question of law and fact and relating to the right in dispute between the parties has been determined thereby. A decision of a competent Court on a matter in issue may be res judicata in another proceeding between the same parties: the “matter in issue” may be an issue of fact, an issue of law, or one of mixed law and fact. An issue of fact or an issue of mixed law and fact decided by a competent court is finally determined between the parties and cannot be reopened between them in another proceeding. The previous decision on a matter in issue alone is res judicata: the reasons for the decision are not res judicata. A matter in issue between the parties is the right claimed by one party and denied by the other, and the claim of right from its very nature depends upon proof of facts and application of the relevant law thereto. A pure question of law unrelated to facts which give rise to a right, cannot be deemed to be a matter in issue. When it is said that a previous decision is res judicata, it is meant that the right claimed has been adjudicated upon and cannot again be placed in contest between the same parties. A previous decision of a competent Court on facts which are the foundation of the right and the relevant law applicable to the determination of the transaction which is the foundation of the right and the relevant law applicable to the determination of the transactions which is the soured of the right is res judicata. A previous decision on a matter in issue is a composite decision: the decision of law cannot be dissociated from the decision on facts on which the right is founded. A decision on an issue of law will be as res judicata in a subsequent proceeding between the same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceeding, but not when the cause of action is different, nor when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction of the Court to try the earlier proceeding, nor when the earlier decision declares valid a transaction which is prohibited by law. …….
7. Where the law is altered since the earlier decision, the earlier decision will not operate as res judicata between the same, parties: Tarini Charan Bhattacharjee’s case. It is obvious that the matter in issue in a subsequent proceeding is not the same as in the previous proceeding, because the law interpreted is different.”

Can res judicata be raised as a preliminary point/issue

The Kerala High Court in V. Narayana Bhakthan v. The President, Anantha Narayanapuram, 2008-3 Ker LT 840 it is held as under:

“The question of res judicata can be raised as a preliminary point in certain circumstances. Sub-rule (2) of Rule 2 of Order XIV of the CPC states that where issues, both of law and of fact, arise in the same suit, and the Court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to: (a) the jurisdiction of the Court, or (b) a bar to the suit created by law for the time being in force. The said sub-rule also provides that the Court may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue. In ML Sethi v. RP Kapur, AIR 1972 SC 2379, it was held that it is well settled that a plea of res judicata is a plea of law which concerns the jurisdiction of the court and a finding on the plea in favour of the party raising it would oust the jurisdiction of the court. If the question of res judicata can be decided without reference to the disputed questions of fact and without the necessity of there being any evidence to be adduced, the Court would be justified in dealing with the said contention as a preliminary issue. However, if the Court finds that disputed questions of fact are involved or that the plea of res judicata is a mixed question of law and fact, the Court is not bound to decide the said question as a preliminary issue.”

Effect of failure to raise bar of res judicata as a preliminary issue

In V. Narayana Bhakthan v. The President, Anantha Narayanapuram, 2008-3 Ker LT 840, it is held, further as under:

Even if a party, who is entitled to request the court to consider the contention of res judicata as a preliminary issue, fails to make a request in that behalf at the appropriate time, that does not operate as a bar for him to raise the contention of res judicata at the final stage of the suit. Such a contention would not be barred by res judicata by his not requesting the same to be considered as a preliminary issue. On the other hand, if such a question is raised as a preliminary issue and a decision is rendered against the party raising it, he would be precluded at a later stage of the same proceeding from raising the very same contention that the suit is barred by res judicata except by challenging the final decision in Appeal.”

S. Nagaraj (dead) by LRs. VS B. R. Vasudeva Murthy, 08 Feb 2010
2010 2 AIR(Kar)(R) 274; 2010 Supp AIR(SC) 551; 2010 0 AIR(SCW) 1519; 2010 2 JT 185; 2010 3 KarLJ 513; 2010 Supp1 KLT 95; 2010 2 Scale 232; 2010 3 SCC 353; 2010 1 SCC(Civ) 695; 2010 4 SCJ 258; 2010 2 SCR 586; 2010 2 SLT 441; 2010 0 Supreme(SC) 140;

Correctness of the Finding has no bearing

Rankin, C.J. of the Calcutta High Court in Tarini Charan Bhattacharjee v. Kedar Nath Haldar,AIR 1928 Cal. 777 held as under:

“The question whether decision is correct or erroneous has no bearing upon the question whether it operates or does not operate as res judicata.”

Res Judicata in Writ Proceedings

Our Apex Court observed in State of Tamil Nadu v. State of Kerala, AIR 2014 SC 2407; 2014-12 SCC 696as under:

“156. The rule of res judicata is not merely a technical rule but it is based on high public policy. The rule embodies a principle of public policy, which in turn, is an essential part of the rule of law. In Duchess of Kingston; 2 Smith Lead Cas 13 Ed. Pp. 644, 645, the House of Lords (in the opinion of Sir William de Grey) has observed:
- “From the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true: first, that the judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence, conclusive, between the same parties, upon the same matter, directly in question in another court; secondly, that the judgment of a court of exclusive jurisdiction, directly upon the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another court, for a different purpose.”
157. Corpus Juris explains that res judicata is a rule of universal law pervading every well-regulated system of jurisprudence, and is put upon two grounds, embodied in various maxims of the common law; the one, public policy and necessity, which makes it to the interest of the State that there should be an end to litigation; and the other, the hardship on the individual that he should be vexed twice for the same cause.
158. In Sheoparsan Singh v. Ramnandan Prashad Narayan Singh; [AIR 1916 PC 78], Sir Lawrence Jenkins noted the statement of law declared by Lord Coke, ‘interest reipublica ut sit finis litium,’ otherwise great oppression might be done under colour and pretence of law. – (6 Coke, 9A.)
159. In Daryao and Ors. v. State of U.P. and Ors.; [AIR 1961 SC 1457], P.B. Gajendragadkar, J. while explaining the rule of res judicata stated that on general considerations of public policy there seems to be no reason why rule of res judicata should be treated as inadmissible or irrelevant while dealing with the petitions filed under Article 32 of the Constitution. P.B. Gajendragadkar, J. referred to earlier decision of this Court in Pandit M.S.M. Sharma v. Dr. Shree Krishna Sinha and Ors.; [AIR 1960 SC 1186] wherein the application of the rule of res judicata to a petition filed under Article 32 was considered and it was observed that the question determined by the previous decision of this Court cannot be reopened and must govern the rights and obligations of the parties which are subsequently the same.
160. In Gulab Chand Chhotalal Parikh v. State of Bombay; [(1965) 2 SCR 547], this Court stated that a decision in a writ petition is res judicata in a subsequent suit.
161. In Union of India v. Nanak Singh; [(1968) 2 SCR 887 : AIR 1968 SC 1370] the question whether the decision in a writ petition operates as res judicata in a subsequent suit filed on the same cause of action has been settled. In Nanak Singh, this court observed that there is no good reason to preclude decisions on matters in controversy in writ proceedings under Article 226 or Article 32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and, thus, to give limited effect to the principle of finality of decision after full contest.
162. Union of India v. Nanak Singh; [(1968) 2 SCR 887 : AIR 1968 SC 1370] has been followed by a three Judge Bench of this Court in State of Punjab v. Bua Das Kaushal; [ (1970) 3 SCC 656]. In our view, the rule of res judicata which is founded on public policy prevents not only a new decision in the subsequent suit but also prevents new investigation. It prevents the defendant from setting up a plea in a subsequent suit which was decided between the parties in the previous proceedings. The legal position with regard to rule of res judicata is fairly well-settled that the decision on a matter in controversy in writ proceeding (Article 226 or Article 32 of the Constitution) operates as res judicata in subsequent suit on the same matters in controversy between the same parties. For the applicability of rule of res judicata it is not necessary that the decision in the previous suit must be the decision in the suit so as to operate as res judicata in a subsequent suit. A decision in previous proceeding, like under Article 32 or Article 226 of the Constitution, which is not a suit, will be binding on the parties in the subsequent suit on the principle of res judicata.
163. For the applicability of rule of res judicata, the important thing that must be seen is that the matter was directly and substantially in issue in the previous proceeding and a decision has been given by the Court on that issue. A decision on issue of fact in the previous proceeding – such proceeding may not be in the nature of suit – constitutes res judicata in the subsequent suit.
164. In light of the above legal position, if the 2006 judgment is seen, it becomes apparent that after considering the contentions of the parties and examining the reports of Expert Committee, this Court posed the issue for determination about the safety of the dam to increase the water level to 142 ft. and came to a categorical finding that the dam was safe for raising the water level to 142 ft. and, accordingly, in the concluding paragraph the Court disposed of the writ petition and the connected matters by permitting the water level of Mullaperiyar dam being raised to 142 ft. and also permitted further strengthening of the dam as per the report of the Expert Committee appointed by the CWC. The review petition filed against the said decision was dismissed by this Court on 27.7.2006. The 2006 judgment having become final and binding, the issues decided in the said proceedings definitely operate as res judicata in the suit filed under Article 131 of the Constitution.
165. Shri Harish Salve, learned senior counsel for Kerala, placed reliance upon the decision of this Court in N.D. Jayal and Anr. v. Union of India and Ors.; [(2004) 9 SCC 362]. In N.D. Jayal69 Dharmadhikari, J. made general observations on the dam safety aspect that plea like res judicata on the earlier decisions passed by the Supreme Court cannot be allowed to be raised. The observations made by Dharmadhikari, J. in N.D. Jayal have to be read as an exception to the res judicata rule in the matters where, by their very nature, the factual situation has drastically changed in course of time. If substantial changes in the circumstances occur and such circumstances are shown to the Court necessitating departure from the earlier finding on the issue of safety, the Court can be approached and in that event the Court itself may exercise its discretion to reopen the safety aspect having regard to the drastic change in circumstances or in emergent situation as to the safety of dam. In our view, a judicial decision, having achieved finality, becomes the last word and can be reopened in the changed circumstances by that Court alone and no one else.
166. On behalf of Kerala, it is contended that the jurisdiction of this Court under Article 32 of the Constitution for enforcement of the fundamental rights conferred by Part III of the Constitution is ousted or excluded in respect of disputes between two or more States: since such disputes fall within the ambit of the original jurisdiction of this Court under Article 131 of the Constitution or jurisdiction of a tribunal constituted under the provisions of Inter-State River Water Disputes Act, 1956 read with the provisions of Article 262 of the Constitution. Thus, it was submitted that the 2006 judgment is not binding and that the rule of res judicata can hardly be attracted in this situation.
167. We are unable to accept the submission of the learned senior counsel for Kerala. The label of jurisdiction exercised by this Court is not material for applicability of principles of res judicata if the matter in issue in the subsequent suit has already been concluded by the earlier decision of this Court between the same parties. The 2006 judgment was the result of judicial investigation, founded upon facts ascertained in the course of hearing. The plea of lack of jurisdiction of this Court was taken in the earlier proceedings on both the grounds, viz.,
(1) whether the jurisdiction of this Court is barred in view of Article 262 read with Section 11 of the Inter-State River Water Disputes Act, 1956, and
(2) whether Article 363 of the Constitution bars the jurisdiction of this Court. On both these questions the findings were recorded against Kerala. It is too much for Kerala to say that the 2006 judgment is without jurisdiction and not binding.
xxxxx
169. Explanations VII and VIII were inserted in the above provision by Code of Civil Procedure (Amendment) Act, 1976 w.e.f. 1.2.1977. Explanation VIII in this regard is quite relevant. The principles of res judicata, thus, have been made applicable to cases which are tried by Courts of limited jurisdiction. The decisions of the Courts of limited jurisdiction, insofar as such decisions are within the competence of the Courts of limited jurisdiction, operate as res judicata in a subsequent suit, although, the Court of limited jurisdiction that decided the previous suit may not be competent to try such subsequent suit or the suit in which such question is subsequently raised. If a decision of the Court of limited jurisdiction, which was within its competence, operates as res judicata in a subsequent suit even when the subsequent suit is not triable by it, a fortiori, the decision of the highest Court of the land in whatever jurisdiction given on an issue which was directly raised, considered and decided must operate as res judicata in the subsequent suit triable exclusively by the highest Court under Article 131 of the Constitution. Any other view in this regard will be inconsistent with the high public policy and rule of law. The judgment of this Court directly upon the point, is as a plea, a bar, or as evidence, conclusive between the same parties, upon the same matter, directly in question before this Court, though, label of jurisdiction is different.
170. The principles of res judicata are clearly attracted in the present case. The claim of Kerala in the earlier proceeding that water level cannot be raised from its present level of 136 ft. was expressly not accepted and the obstruction by Kerala to the water level in the Mullaperiyar dam being raised to 142 ft. on the ground of safety was found untenable. The judgment dated 27.2.2006 of this Court, thus, operates as res judicata in respect of the issue of safety of the dam by increasing its water level from 136 ft. to 142 ft.”

End Notes 1:

Sec. 11 Civil Procedure Code, 1908, reads as under:

Res Judicata -No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanation I– The expression “former suit” shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
Explanation II.- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
Explanation III.- The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation IV.- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V.- Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.
Explanation VI– Where persons litigate bona fide in respect of public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
Explanation VII.- The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
Explanation VIII.-An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in as subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.

End Notes 2:

A party cannot challenge the findings without filing a Cross-Appeal.

In Laxman Tatyaba Kankate v. Taramati Harishchandra Dhatrak [(2010) 7 SCC 717], the Supreme Court held that though a party is entitled to support the decree on other grounds, he cannot challenge the findings without filing a cross appeal.

Also see:

Union of India v. Vijay Krishna Uniyal, (2018)11 SCC 382. (referred to in Jagdish Chandra Gupta v. Madanlal,2019-2 JLJ 568; 2019 3 MPLJ 353)
Banarsi v. Ram Phal, (2003)9 SCC 606 (referred to in Jagdish Chandra Gupta v. Madanlal,2019-2 JLJ 568; 2019 3 MPLJ 353)
Hardevinder Singh v. Paramjit Singh, 2014(2) Mh.L.J. (S.C.) 126 (referred to in Indrakumar v. Atmaram, 2015-3 MhLJ 613)
Choudhary Sahu v. State of Bihar, AIR 1982 SC 98 (referred to in Indrakumar v. Atmaram, 2015-3 MhLJ 613)
Tummalla Atchaiah v. Venka Narasingarao, AIR 1978 SC 725 (referred to in Indrakumar v. Atmaram, 2015-3 MhLJ 613)
Hasanate Taheriyyah Fidayyiah vs. Mahesh, 2014(2) Mh.L.J. 884, (6) Surjansingh s/o Mohansingh v. Jasbir Kaur, 2008(2) Mh.L.J. 763.

End Notes 3:

No Modification of Decree if No Cross Appeal

In Banarsi v. Ram Phal, (2003)9 SCC 606, our Apex Court held as under:

“We are, therefore, of the opinion that in the absence of cross appeal preferred or cross objection taken by the plaintiff-respondent the First Appellate Court did not have jurisdiction to modify the decree in the manner in which it has done. Within the scope of appeals preferred by the appellants the First Appellate Court could have either allowed the appeals and dismissed the suit filed by the respondent in its entirety or could have deleted the latter part of the decree which granted the decree for specific performance conditional upon failure of the defendant to deposit the money in terms of the decree or could have maintained the decree as it was passed by dismissing the appeals. What the First Appellate Court has done is not only to set aside the decree to the extent to which it was in favour of the appellants but also granted an absolute and out and out decree for specific performance of agreement to sell which is to the prejudice of the appellants and to the advantage of the respondent who has neither filed an appeal nor taken any cross objection.
The learned counsel for the respondent forcefully argued that even in the absence of appeal preferred by the plaintiff or cross objection taken by the plaintiff-respondent the Appellate Court was not powerless to grant the decree which it has done in exercise of the power conferred by Rule 33 of Order 41 of the CPC. Rule 33 of Order 41 as also Rule 4 thereof, which have to be read necessarily together, are set out hereunder:
ORDER 41 Appeals from Original Decrees
- “33. Power of Court of Appeal.-The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees:
  Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.
  Illustration A claims a sum of money as due to him from X or Y, and in a suit against both obtains a decree against X. X, appeals and A and Y are respondents. The Appellate Court decides in favour of X. It has power to pass a decree against Y.
  4. One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all.-Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be.”

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession:

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

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Negotiable Instruments Act

Criminal

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Will

Book No. 2: A Handbook on Constitutional Issues

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

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

Sabarimala Review: Supreme Court to Decide the Contours of Constitutional Morality

Saji Koduvath, Advocate, Kottayam

Preface

Constitutional morality is triggered when human dignity is impaired. It is a constitutional tool employed by constitutional courts to override prevailing social morality whenever such intervention is found necessary.

The Sabarimala Temple review reference, along with other connected matters, is scheduled to be heard by a Nine-Judge Bench of the Supreme Court of India, from 7 April 2026. The Court will determine, on the touchstone of constitutional morality, whether (i) the practice of ‘female genital mutilation’ in the Dawoodi Bohra community, and (ii) the ‘social exclusion of women’ from certain religious places on the basis of faith or custom, are unconstitutional. The issues of exclusion include:

(i) women between the age group of 10 to 50 years from the Sabarimala temple;
(ii) Muslim women from dargahs/mosques; and
(iii) Parsi women married to non-Parsis from the holy fire place of an Agyari.

Sabarimala Decision

The Supreme Court of India held by Majority (4:1), on 28 September 2018, in Indian Young Lawyers Association v. State of Kerala (2019-1 SCC 1), that the exclusion of women between the age group of 10 to 50 years from the Sabarimala temple was unconstitutional.

Findings in the Majority Judgement

The pivotal findings that ultimately tilted the majority decision (Dipak Misra, CJI , A.M. Khanwilkar, Rohinton Fali Nariman, D.Y. Chandrachud, JJ.) were the following:

.(i) The exclusion of women, based on a biological factor unique to the female sex, could not be sustained as a matter of ‘faith’ under Article 25 of the Constitution, which guarantees the freedom of conscience and the right to freely profess, practice, and propagate religion.
(ii) The exclusion of women could not be held as an ‘essential religious practice’ required under Article 25.
(iii) The devotees of Lord Ayyappa, were not separate religious ‘denomination’ so as to claim the benefits of Article 26, which guarantees the freedom to manage religious affairs.
(iv) The exclusion of women violated Article 14, which ensures equality.
(v) The conscience (faith) in Article 25 did not override Article 14.
(vi) Both Articles 25 and 26 begin with the words—‘subject to public order, morality and health’. This ‘morality’ includes constitutional morality. It renders the exclusion of women unconstitutional.

Minority Judgement

Justice Indu Malhotra handed down a dissenting Judgment. She held, inter alia, the following:

.(i) The Ayyappans constituted a religious denomination. They could claim the benefits of Article 26.
(ii) Article 14 would not override Article 25.
(iii) The Constitutional Morality implied harmonisation.
(iv) A working formula to be adopted to decide religious denomination.
(v) Notions of Court should not be the criterion.
(vi) Supreme Court must be a balancing wheel.
(vii) What was permitted by Article 25(2)(b) was a State made law and not judicial Intervention.
(viii) The proper forum to decide the point in issue was civil court.
(ix) Rule 3(b) of the 1965 Rules, made under Section 3 of the Kerala Hindu Places of Public Worship Act, 1965 (imposing limited restriction on the entry of women during the notified age group), was not ultra vires.
(x) The limited restriction on the entry of women did not fall within the purview of Article 17 that pertained to doctrine of untouchability.

Review Petitions: To a Larger Bench

Several review petitions were filed against the findings in the Sabarimala case. After hearing the petitions, by the Five-Judge Bench, in Kantaru Rajeevaru v. Indian Young Lawyers Association, 2020-2 SCC 1, the majority (Ranjan Gogoi, A.M. Khanwilkar, Indu Malhotra, JJ.) found that there was a conflict of opinion as regards the role of the court in matters of ‘essential religious practices’, between two earlier Judgments of the Supreme Court. They were the following:

.1. Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (AIR 1954 SC 282).
2. Durgah Committee, Ajmer v. Syed Hussain Ali (AIR 1961 SC 1402).

The majority found it necessary to resolve the conflict between these decisions for the proper determination of the review applications. It framed seven issues. The majority were of the opinion that it was proper to place these issues before a Larger Bench. It is held further that the review petitions will “remain pending until determination of the questions” by the larger bench.

Durgah Committee case: Court has an Active Role

The Five-Judge Bench in Durgah Committee case emphasied that the Court has an active role to decide andto exclude what are secular practices or superstitious beliefs while considering the impact of Article 25 and 26.

Shirur Mutt case: Prerogative of Religious Denomination

But, it has been found in the locus classicus decision of Seven Judges, in Shirur Mutt case that a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold; and no outside authority has any jurisdiction to interfere with their decision in such matters. It was also observed in this decision that the right to manage its own affairs in matters of religion is a fundamental right which no legislature can take away. It was further held – what are essential religious practices of a particular religious denomination is to be ascertained with reference to the doctrines of that religion, and they should be left to be determined by the denomination itself.

These review applications are now placed before a Nine-Judge Bench of the Apex Court.

Review-Reference: Minority Findings

R.F. Nariman and D.Y. Chandrachud, JJ. (minority) held that no grounds had been made out for reviewing the majority judgments. They emphasised that the proper inquiry required in this matter was whether the impugned practice of exclusion of women between the ages of 10 and 50 from Hindu temples constituted an essential practice relatable to the Hindu religion, and not the practice of one particular temple. They further noted that no material—textual or otherwise—had been placed to demonstrate that such exclusion of women from Hindu temples forms an essential practice of the Hindu religion. The minority further held as under:

“The position under our constitutional scheme is that the Supreme Court of India is the ultimate repository of interpretation of the Constitution. Once a Constitution Bench of five learned Judges interprets the Constitution and lays down the law, the said interpretation is binding not only as a precedent on all courts and tribunals, but also on the coordinate branches of Government, namely, the legislature and the executive. What follows from this is that once a judgment is pronounced by the Constitution Bench and a decree on facts follows, the said decree must be obeyed by all persons bound by it.”

Nine-Judge Bench Reframed the Issues

On 10.02.2020, the Nine-Judge Bench reframed the issues (Quoted in the Order, Kantaru Rajeevaru v. Indian Young Lawyers Association, dated 11 May 2020: 2020-9 SCC 121) referred to it, as under:

What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution of India?
What is the inter-play between the rights of persons under Article 25 of the Constitution of India and rights of religious denomination under Article 26 of the Constitution of India?
Whether the rights of a religious denomination under Article 26 of the Constitution of India are subject to other provisions of Part III of the Constitution of India apart from public order, morality and health?
What is the scope and extent of the word ‘morality’ under Articles 25 and 26 of the Constitution of India and whether it is meant to include Constitutional morality?
What is the scope and extent of judicial review with regard to a religious practice as referred to in Article 25 of the Constitution of India?
What is the meaning of expression “Sections of Hindus” occurring in Article 25 (2) (b) of the Constitution of India?
Whether a person not belonging to a religious denomination or religious group can question a practice of that religious denomination or religious group by filing a PIL?

Other Cases Considered in the Review Matter

The following three cases have also been referred for the consideration of the Nine-Judge Bench:

1. Female Genital Mutilation

In the public interest litigation, Sunita Tiwari v. Union of India, filed before the Supreme Court, under Article 32 of the Constitution, prayed for a direction to impose complete ban on the inhuman practice of female genital mutilation and for making it punishable. It is argued that the Dawoodi Bohra community outside of India, in the United States of America, Australia and Kenya, consider female circumcision an illegal practice.

The Attorney General, KK Venugopal, pointed out that the FGM practice had been banned in 42 countries. 27 countries thereof are in Africa. AG further indicated that the World Health Organisation had called for banning this practice.

Dawoodi Bohra community claimed that it is an essential age-old practice going back to 1400 years and also claimed to have the support of over 80,000 Dawoodi Bohra women. It is further argued that ‘a minor’s consent can be presumed when family members take a decision for them’; and that the ‘family enjoys a zone of privacy and autonomy with respect to a minor child’. The Three-Judge Bench of the Apex Court, on 24.09.2018, found it necessary to refer the matter to a larger Bench; and it is now tagged for hearing with the Sabarimala review petitions.

2. Ban on Certain Parsi Women from Entering the Holy Place

The Gujarat High Court, by a 2:1 majority, dismissed the writ petition in Ms. Goolrokh Gupta v. Burjor Pardiwala, AIR 2012 CC 3266. The petition challenged a practice within the Parsi community whereby a Parsi woman, upon marrying a non-Parsi, is considered to have lost her religious identity and is consequently denied entry into the holy fire temple (Agyari). In contrast, a Parsi man marrying a non-Parsi does not face such exclusion.

The petitioner sought the right to perform the funeral rites of her parents. It was contended that the tenets of Zoroastrianism do not deprive a Parsi-born woman of her religious identity, dignity or associated rights even if she married a non-Parsi. The impugned practice was argued to be discriminatory and violative of the right to equality under Article 14 of the Constitution of India. It was further contended that such exclusion amounted to excommunication raising serious social and constitutional concerns.

Accepting the submissions of the Parsi Trust, the High Court upheld the practice, holding that the exclusion constituted an “essential religious practice.” The appeal filed against this decision is also listed for consideration along with Sabarimala Review matter.

3. Prohibition of Muslim Women in Mosques

The Writ Petition, Yasmeen Zuber Ahmad Peerzade v. Union of India, is filed before the Supreme Court, under Article 32 of the Constitution of India, challenging the practices on entry of Muslim Women to Mosques in India. It is pointed out that women are allowed to enter mosques that have a separate space for them, but most mosques in India do not have such separate enclosures. The petitioner argues that this exclusion of women is illegal and unconstitutional. It violates the fundamental rights to equality, life and liberty and freedom of religion, proclaimed under Articles 14, 15, 21, 25 and 29 of the Constitution. It is claimed that the historical sources showed that Prophet Muhammad himself had encouraged women to actively participate in mosque congregations and prayer. The most sacred mosque in the world, Masjid-al-Haram in Mecca, always invites Muslim women from every part of the world to pray in it. The petitioner also argues that the Quran does not prohibit women entry.

The stance of the respondents, as reflected in the counter affidavit filed by the All India Muslim Personal Law Board, is that the alleged rights cannot be enforced against non-state entities like Mosques. The Friday Namaz in congregation is not obligatory for women. As per doctrines of Islam, a woman is entitled to the same religious reward (Sawab) for praying as per her option either in Masjid or at home. The matters involved are religious practices based upon beliefs of the religion. It is not appropriate for the Court to interfere in religious beliefs and the practice of the essential features of any religion protected under Article 26. In the absence of any state action, it is not appropriate for the Court to judicially determine or interfere in, or to seek resolution of, various aspects on ‘faith and belief’, and essential religious practices of faith, through judicial process. It is further stated that it should be left to be resolved through the processes of social transformation within the religious denomination itself.

Read also:

Conclusion

The significance of the Nine-Judge Bench decision in the Sabarimala case may extend beyond choosing between the Shirur Mutt case and the Durgah Committee case. One thing is certain—the approach the Court adopts will be firmly rooted in our constitutional jurisprudence, while also being practical and solution-oriented.

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession:

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

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

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

Anurag Krishna Sinha v. State of Bihar [Neutral Citation: 2026 INSC 219]: The SC Struck Down Legislation Relating to a Trust as Violative of Article 14 and 300A

Saji Koduvath, Advocate, Kottayam.

Abstract

The State of Bihar passed an enactment to take over the Trust – Srimati Radhika Sinha Institute and Sachchidanand Sinha Library. The Act was named: ‘Srimati Radhika Sinha Institute and Sachchidanand Sinha Library (Requisition & Management) Act, 2015‘. The professed object of the legislation is: “better management and development” of the Trust. The Act was struck down by the Supreme Court of India.

The Supreme Court found:

The Act is manifestly arbitrary. It is violative of Article 14 of the Constitution of India.
It deprives property without adherence to fairness and due process. Because Article 300A of the Constitution permits deprivation of property only under the methods permitted by law. Here, no compensation is paid. It underscores the arbitrary character.
The law must be fair, reasonable and non-confiscatory. The impugned Act transgress these constitutional requirements.
There was an observation that the trust was a private trust. But that was not determinative as the judgment proceeded ‘assuming arguendo’ (meaning: “assuming for the sake of argument”) that it was a ‘public trust’.

Facts in Brief

The Trust was settled under a trust deed. It was founded according to the wish of Smt. Radhika Sinha to establish an institution for “providing the public of Patna and its neighbourhood with a place for intellectual and social intercourse.” The High Court concluded that the dedication was in favour of the general public. Therefore, the Trust must be treated as a public trust.

Finding of the Supreme Court as regards Public Trust

The Apex Court held – “A public-facing object, standing alone, is not determinative.” The reasons pointed out are the following:

1. “The fact that an institution is intended to serve a public purpose or is open to public use does not, by itself, conclusively determine that the trust is a public trust in law”.
2. The legal character of a trust depends on several factors, including
- i) the manner in which the dedication is made,
- ii) the structure of the trust,
- iii) the nature of control and management, and
- iv) the rights reserved by the Settlor and his successors under the trust deed.
3. “It is also significant that neither party before the High Court pleaded or argued that the Trust was a public trust.”
4. “The case was argued on the common assumption that the Trust was a private trust governed by the Indian Trusts Act. In such circumstances, the High Court could not have proceeded to decide the case on an entirely different basis without affording an opportunity to address that issue.”

The above finding is not decisive: The Supreme Court proceeded “Assuming Arguendo”. It held – even assuming it to be a public trust, state action was unconstitutional. The Court observed as under:

“22. In any event, even if it were assumed that the Trust has a public character, that fact alone does not legitimise the State’s action in acquiring the Institute & Library or dissolving the existing trust arrangements. Whether the Trust is public or private, any legislative measure resulting in compulsory acquisition and vesting must satisfy constitutional requirements, particularly those flowing from Article 14. The question of public or private character, therefore, is not determinative of the validity of the impugned Act.”

Read also:

Public & Private Trusts in India.

The Legislation is Unconstitutional

The Apex Court tested the validity of the enactment on two principal touchstones –

(i) Whether the Act is manifestly arbitrary and violates Article 14 and
(ii) whether it offends Article 300A, which declares the ‘constitutional right to property’.

Article 14 of the Constitution: This Article mandates – “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

The Apex Court found – though mismanagement was the basis for the acquisition, the record did not disclose that any notice was ever issued to the Librarian. He was the appointee of the State, who was charged with the general administration. No inquiry was ever initiated against him. The State failed to act against its own appointee’s management. Therefore, the State is not in a position to support the action it now seeks to impugn.

It is held further as under:

“This guarantee strikes at arbitrariness in State action and ensures that the exercise of legislative power is informed by reason, fairness and non-discrimination. Equality before the law is not a mere formal concept; it embodies the principle that State action, whether legislative or executive, must be based on rational criteria and must not operate in an arbitrary or capricious manner. From an early stage, this Court has interpreted this guarantee not merely as a prohibition against formal discrimination, but as a constitutional injunction against arbitrariness in State action. The evolution of this principle is traceable through a consistent line of authorities.”

The Supreme Court pointed out as under –

“38. Section 3 of the impugned Act effects a complete vesting of the Institute & Library, together with all rights, title and interest therein, in the State Government. Section 4(2) simultaneously dissolves the Deed of Trust, the Agreement, the Lease of land, and all committees and sub-committees constituted thereunder. The cumulative effect of these provisions is not regulatory supervision, but total displacement of a legal and institutional framework that has governed the Institute & Library for nearly a century.”
39. Such a drastic assumption of control represents the most intrusive form of State intervention. Yet, the record before this Court discloses no finding of abandonment, failure of purpose, or established mismanagement of the Institute & Library. No inquiry appears to have preceded the enactment. No contemporaneous material has been placed to demonstrate that the objectives of the Trust were being defeated or that lesser measures were inadequate. In the absence of demonstrated necessity, compulsory acquisition coupled with dissolution of trust arrangements is plainly disproportionate.”

The following decisions were relied on-

S.G. Jaisinghani v. Union of India, AIR 1967 SC 1427,
State of Mysore v. S.R. Jayaram, (1968) 1 SCR 349,
E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3,
Maneka Gandhi v. Union of India, (1978) 1 SCC 248,
Ajay Hasia v. Khalid Mujib Sehravardi, (1981)1 SCC 722 ,
Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India, (1985) 1 SCC 641,
K.R. Lakshmanan v. State of Tamil Nadu, (1996) 2 SCC 226,
A.P. Dairy Development Corpn. Federation v. B. Narasimha Reddy. (2011)9 SCC 286,
Shayara Bano v. Union of India. (2017)9 SCC 1 (wherein considered – Mithu v. State of Punjab(1983) 2 SCC 277, Sunil Batra v. Delhi Administration (1978) 4 SCC 494 and State of Andhra Pradesh v. McDowell & Co. (1996) 3 SCC 709),
Joseph Shine v. Union of India, AIR 2018 SC 4898,
Democratic Reforms v. Union of India, 2024 INSC 11324.

Article 300A of the Constitution: Our Apex Court pointed out – while this Article permits deprivation of property by authority of law, such law must nevertheless be just, fair and reasonable, and not arbitrary or confiscatory in effect.

The Court then held as under:

“A statutory provision that enables acquisition of property while reducing compensation to a token amount lacks the basic attributes of fairness. The confiscatory nature of the vesting contemplated under the impugned Act therefore reinforces the conclusion that the enactment is manifestly arbitrary and fails constitutional scrutiny.”

The Court had gone deep into the legislative history preceding the impugned enactment and found as under:

“An earlier attempt by the State to take over the Institute & Library through ordinances in 1983 did not pass muster of judicial scrutiny, and the consequences of those ordinances were set aside by this Court in 1996 upon their lapse, restoring the Trust to its prior legal position. The legislature is, of course, competent to enact a fresh law. However, the impugned Act, enacted more than three decades later, seeks to achieve substantially the same outcome as the failed ordinance of 1983, without any intervening change in circumstances and without any fresh material justifying acquisition being placed on record. The mere passage of time does not supply any justification. When a legislature re-enacts substantially the same measure that has previously failed, without placing any new or cogent material before the Court to justify the same, the legislative history becomes a relevant consideration. Viewed in light of this, the history of this enactment reinforces the findings of manifest arbitrariness in the impugned Act.”

The Court summed up as under:

“Viewed cumulatively, the scheme of the impugned Act reveals a pattern of arbitrariness: complete vesting of property in the State, dissolution of long-standing trust arrangements, absence of any finding of necessity or mismanagement, provision for illusory compensation, and lack of guiding principles or safeguards. Each of these features, taken individually, raise serious constitutional concern; taken together, they render the enactment manifestly arbitrary in its conception and operation.”

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession:

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

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

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

Harrisons Malayalam Ltd. v. State of Kerala (2026:KER:19290): Transfer of Registry can be Claimed only on Proper Application, with Supporting Documents

Saji Koduvath, Advocate, Kottayam,

Abstract

The following observations are made in Harrisons Malayalam Ltd. v. State of Kerala and others: 2026: KER: 19290 (Anil K. Narendran & S. Muralee Krishna, JJ.) with respect to ‘Transfer of Registry’:

Entry in revenue records does not confer title on a person.
Entries in revenue records have only ‘fiscal purpose’, i.e., for payment of land revenue, and no ownership is conferred on the basis of such entries.
Mutation of property in revenue records neither creates nor extinguishes the title of the property nor has it any presumptive value on title.
The mere fact that any of the disputing parties had paid basic tax for any particular period cannot be taken as a fact conferring a right upon such party for continued payment of basic tax.
The petitioner who seeks a writ of mandamus to effect the Transfer of Registry in favour of the petitioner has to produce documents of title to show that he is the ‘registered holder’.

Introduction

The High Court of Kerala, in Harrisons Malayalam Ltd. v. State of Kerala and others (Anil K. Narendran & S. Muralee Krishna, JJ.), discussed, inter alia, on 5th March 2026 (2026:KER:19290), the following with respect to the payment of Land Tax by the petitioner, Harrisons Malayalam Ltd.:

1. Whether the petitioner (Harrisons Malayalam Ltd.) has a legal right to seek a writ of mandamus to effect the Transfer of Registry, though it has not chosen to submit a proper application, with supporting documents, before the competent authority.
2. Whether the condition imposed in the Government Order – the land tax received from the petitioner, i.e., Harrisons Malayalam Ltd. and its assignees, shall be subject to the final decision in the civil suit proposed to be filed by the State, is sustainable in law.

Contention of the State

Land tax can be accepted only from the registered holder, as provided under the Kerala Land Tax Act, 1961 and Rules made thereunder.
The land is the absolute property of the Government.
The Government has taken steps to file civil suit against the petitioner.

Contention of Harrisons Malayalam Limited

Malayalam Plantations Ltd. has been shown as the holder of the Estate in the revenue records.
Unless and until the Government establishes its title in a competent civil court, the Government is not entitled to decline acceptance of land tax from the petitioner.
Right to property is a right guaranteed under Article 300A of the Constitution of India.
It includes the right to enjoy the property without being subjected to any restrictions other than any restrictions imposed by law.
Being the registered holder of the land, the petitioner is entitled to remit land tax
Harrisons Malayalam Ltd., is successor in title from Malayalam Plantations Ltd., is the land holder as per the provisions under the Kerala Land Tax Act.
Harrisons Malayalam Ltd., is successor in title from predecessor in title, i.e., Malayalam Plantations Ltd., is the land holder as per the provisions under the Kerala Land Tax Act

Provisions of Law

Section 3(3) of the Kerala Land Tax Act, 1961, defines ‘landholder’. It reads as under:

“3. Definitions – In this Act, unless the context otherwise requires- (1) ….. (2) …..
(3) ‘landholder‘ means,-
- (a) in relation to any land held by a cultivating tenant as defined in the Kerala Land Reforms Act, 1963 (1 of 1964), such cultivating tenant;
- (b) in relation to any land in the possession of a kanam tenant as defined in the Kanam Tenancy Act, 1955 (XXIV of 1955), such kanam tenant;
- (c) in relation to any land which has not been surveyed and it not held by a cultivating tenant referred to in sub-clause (a), the proprietor of such land;
- (d) in relation to any other land, the registered holder for the time being of such land, and includes his legal representatives and assigned and any person who under any law for the time being in force is liable for the payment of public revenue due in respect of the land held by him.”
Section 5(2) of of the Kerala Land Tax Act directs – basic tax charged on any land shall be paid by the ‘land holder’. It reads as under:
“5. Charge of land tax—
- (1) ….
- (2) The basic tax charged on any land shall be paid by the land holder of that land before such date as may be prescribed:
  - Provided that where- (i) the landholder in respect of any land is a person referred to in sub-clause (c) or subclause (d) of clause (3) of Section 3;
  - (ii) such land is in the possession of a tenant or other person not being the landholder; and
  - (iii) the income obtained by the land-holder from that land is less than the basic tax payable thereon, the excess of the basic tax over such income shall be paid by the tenant or other persons in possession.

Points of Law Considered

1. Does the petitioner have a legal right to seek a writ of mandamus to effect the Transfer of Registry in favour of the petitioner, for the land tax of lands is being paid in the name of its predecessor, Malayalam Plantations Ltd., despite –
- its failure to produce documents of title before the High Court to show that it is the ‘registered holder’ and
- it has not chosen to submit a proper application, with supporting documents, before the competent authority.
2. Can the Government, by a Government Order, impose a condition that the land tax paid by Harrisons Malayalam Ltd. shall be received subject to the final decision in the civil suit proposed to be filed by the State against the petitioner?”

Read also:

‘Mutation’ by Revenue Authorities & Survey will not Confer ‘Title’

Findings of the Division Bench as regards Transfer of Registry

1. The petitioner has no legal right to seek a writ of mandamus to effect the Transfer of Registry in favour of the petitioner, since –
- it failed to produce documents of title before the High Court to show that it is the ‘registered holder’ and
- it has not chosen to submit a proper application, with supporting documents, before the competent authority
In Ponnanthodiyil Sreedevi Amma v. District Collector, Malappuram [2009 (2) KHC 833] enumerated persons who come within the definition of land holder under sub-clauses (a), (b) and (c) of clause (3) of Section 3 of the said Act.
In Vijayarajan M.D. v. Tahsildar [2013 (2) KLT SN 119], a learned Single Judge of this Court held that the payment of land tax is to be made by the holder of the land and that is in tune with the relevant provisions of the Kerala Land Tax Act.
In Bhavnagar University v. Palitana Sugar Mill (P) Ltd. [(2003) 2 SCC 111], the Apex Court held that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all.
2. Of course, the question regarding title, which if ultimately decided by the competent civil court may have a bearing on the question as to who is the registered holder the land. Still, the condition imposed in the Government order, to the extent it stipulates that the land tax received from the petitioner, i.e., Harrisons Malayalam Ltd. and its assignees shall be subject to the final decision in the civil suit proposed to be filed by the State, is not sustainable in law. It is set aside for the following reasons:
- Entry in revenue records does not confer title on a person.
- Entries in revenue records have only ‘fiscal purpose’, i.e., for payment of land revenue, and no ownership is conferred on the basis of such entries.
- Mutation of property in revenue records neither creates nor extinguishes the title of the property nor has it any presumptive value on title.
- The mere fact that any of the disputing parties had paid basic tax for any particular period cannot be taken as a fact conferring a right upon such party for continued payment of basic tax.
However, the State will have the right to seek appropriate interim reliefs in the original suits filed against the petitioner, in respect of the lands in question.

End Notes 1

No Rule Against Perpetuity in Public Law;

The Government cannot assign land on their whims and fancies

Section 11 of the TP Act says – where, on a transfer of property, an interest therein is created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interest as if there were no such direction.

But, in Mahindra Holidays & Resorts India Limited v. State of Kerala, 2019-2 ILR(Ker) 828; 2019 3 KHC 233; 2019-2 KLT 978 (A. Muhamed Mustaque, J.), it is held as under:

“6. In private law, any restriction repugnant to the interest created is void except to the extent of securing the beneficial enjoyment of another piece of property belonged to the transferor. (See Section 11 of Transfer of Property Act, 1882). The transferee, therefore, in such cases is free to enjoy property absolutely as if there were no stipulations.
7. In public law, the transfer of an interest or assignment of Government land stands on a different footing. The Government is only a public trustee of the land belonging to the State. The Government cannot assign land on their whims and fancies. The land is a natural resource of utmost importance. Therefore, the Government can distribute the natural resources only adhering to the principles of public trust. No land can be assigned ignoring the public interest and detrimental to the public interest.
8. The subsequent incorporation of Rule 8(3) of the Rules for cancellation of patta cannot be relied upon in this matter as the assignment was prior to the amendment. In the absence of any specific condition for cancellation of assignment in the patta or in the statutory provisions at the relevant time, this Court needs to examine the decision taken to cancel the assignment in the light of the public trust doctrine.
9. In Illinois Cent Co. v. State of Illinois City of Chicago [146 US 387 (1892)], principles relating to public trust doctrine were expounded. It is appropriate to refer the opinion in that judgment which reads as follows:
- ‘The trust devolving upon the state for the public, and which can only be discharged by the management and control of property in which the public has an interest, cannot be relinquished by a transfer of the property. The control of the state for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein’.
10. In M.C.Mehta v. Kamal Nath and others [(1997) 1 SCC 388], the Apex Court observed that the State is the natural trustees of all resources, which are by nature meant for public use and enjoyment, and the State is a trustee under a legal duty to protect the natural resources.
11. In Fomento Resorts & Hotels Ltd. v. Minguel Martins, (2009) 3 SCC 571], the Apex Court held as follows:
- “53. The public trust doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. This doctrine puts an implicit embargo on the right of the State to transfer public properties to private party if such transfer affects public interest, mandates affirmative State action for effective management of natural resources and empowers the citizens to question ineffective management thereof.
- 54. The heart of the public trust doctrine is that it imposes limits and obligations upon government agencies and their administrators on behalf of all the people and especially future generations….”
12. Reliance Natural Resources Ltd. v. Reliance Industries Ltd., (2010) 7 SCC 1] at para.114 it was observed as follows:
- “114. It must be noted that the constitutional mandate is that the natural resources belong to the people of this country. The nature of the word “vest” must be seen in the context of the public trust doctrine (PTD). Even though this doctrine has been applied in cases dealing with environmental jurisprudence, it has its broader application.”
13. In the Centre for Public Interest Litigation v. Union of India, (2012) 3 SCC 1] at para.75, it was held as follows:
- “75. The State is empowered to distribute natural resources. However, as they constitute public property/national asset, while distributing natural resources the State is bound to act in consonance with the principles of equality and public trust and ensure that no action is taken which may be detrimental to public interest. Like any other State action, constitutionalism must be reflected at every stage of the distribution of natural resources. In Article 39(b) of the Constitution it has been provided that the ownership and control of the material resources of the community should be so distributed so as to best subserve the common good, but no comprehensive legislation has been enacted to generally define natural resources and a framework for their protection. Of course, environment laws enacted by Parliament and State Legislatures deal with specific natural resources i.e. forest, air, water, coastal zones, etc.””
Note: Appeal to Division Bench (from Mahindra Holidays & Resorts India Limited v. State of Kerala) is dismissed in Raphy John v. Land Revenue Commissioner, Thiruvananthapuram (DB), 2022-3 KLT 679.

Original Patta for Personal Cultivation; Assignee cannot have a Better Title

In Mahindra Holidays & Resorts India Limited v. State of Kerala, 2019-2 ILR(Ker) 828; 2019 3 KHC 233; 2019-2 KLT 978, it is held further as under:

“17. Admittedly, the present use of land is for commercial purposes. It is for personal gain and to subserve the private interest. Commercial purpose is not one on which the land can be assigned. The Government being a trustee is answerable to the public. The public can question if the Government had failed in its duties when it is found that the land is used for other purposes other than for it was assigned. The beneficiary of cultivation is public. That interest of the public is superadded in such assignment. Thus, even in the absence of statutory provisions or conditions in the patta, anyone can question such use of land for commercial purposes.
18. This Court, in fact, had considered use of land for commercial purposes by the assignee of a patta holder, who was assigned land for personal cultivation in Haridas v. State of Kerala [2016 (4) KLT 707] and held that the assignee of original pattadhar cannot have any better claim conferred on him other than the one conveyed to the pattadhar by the assignment. The use of land for commercial purposes is a fraud on the State. The pattadhar or his assignee has a legal obligation to use the land for cultivation.
19. The learned Senior Counsel argued that the Government authorities have issued certificates to run the resort and, therefore, they are estopped from urging that the petitioner had violated the patta conditions. It was also argued that the Government have waived their right to proceed against the petitioner by acknowledging the acceptance of basic tax and conferring certificates relating to tourism.
20. The equitable principles relating to estoppel and waiver cannot have a bearing when the Government is acting as a trustee. This action to protect the interest of the State. No wrong can give rise to a right. The land belongs to the State. If the Government had failed in its duty to check illegal use of land that will not give rise to an equitable right to a wrongdoer. The principles of estoppel cannot be advanced to promote one’s own wrong. This is not a case between the Government and the holder of the land. It is a matter between public interest and breach of trust by a person, who was in relation with the Government to promote the public interest. The principles of estoppel and waiver cannot be pressed against an action of the Government based on public policy. No action of the Government would bind them if it was against the public policy of the State.”

If Land Assigned for Specific Purposes, it Cannot be used for Other Purposes

Kerala High Court, in Haridas v. State of Kerala, 2016 (5) KHC 615 (K. Vinodchandran, J.), had taken a view that when land is assigned for specific purposes, it cannot be said that if there is no prohibition in using it for any other purpose then, an assignee or a subsequent owner could use it for any purpose to which a land is normally put to. Among others, it was further observed therein that the essence is in the assignment made, for a specific purpose, which survives time and tide. (Referred to in: Raphy John v. Land Revenue Commissioner, Thiruvananthapuram (DB), 2022-3 KLT 679).

Subsequent Assignees of Pattaadar Cannot Claim More Rights

In R. Haridas v. State of Kerala, 2016-5 KHC 615; 2016-4 KLT 707, held further as under:

“8. … The title acquired of the property, which, admittedly, were Government lands assigned under a statute. The petitioners are assignees of the original pattaadar and cannot have any rights over and above that possessed by the original assignee.
9. The Assignment Rules, by Rule 4, as has been pointed out by the learned Additional Advocate General, has three specific purposes; for which alone land may be assigned. These are – personal cultivation, house-sites and beneficial enjoyment of adjoining registered holdings. …. The original assignment made, as evidenced by Exhibit P2 in both the writ petitions, admittedly, is not for house-site or for beneficial enjoyment. Such an extent could have been assigned only under Rule 5 for the purpose of personal cultivation. The assignment having been specifically made under a statute and the Rules framed thereunder, none can have a legitimate expectation of enjoyment of the property over and above the purpose for which the same has been assigned.
10. The subsequent assignees of the original pattaadar cannot claim any right other than that conferred on the original assignee, which Assignment on Registry was specifically for the purpose of personal cultivation. …. The prohibition has to be read into the terms of assessment when by virtue of a statutory provision the assignment is made for a specific purpose. The passage of time would not change the character of the assignment ….. . These conditions are also incorporated as ‘Conditions’ in the Patta and the respective Pattas produced are incomplete copies as will be presently noticed.
13. … It is a matter of concern and quiet a surprise that the revenue authorities in the district have been issuing recommendations like Exhibit P6; for carrying out construction activities without noticing the embargo created insofar as the constructions intended at promoting commercial activity.
14. … The prescription for a permit to be obtained from the local authority is only so far as complying with any master plan for development applicable to the area and compliance of the building rules applicable to the panchayats and municipalities, as brought out under the respective statutes. This cannot create a carte blanche in favour of a permit holder to make a construction in an assigned land which would go specifically against the prescriptions laid down in the statute for such assignment. ….
16. …. Hence any time it is found that the purpose for assignment is diverted from, the State could definitely take proceedings for cancellation of the assignment and either vest the lands back with the Government or assign it to others for the purpose of cultivation.
17. … The assignee would have a right to hold the land and enjoy it under the terms of assignment and any violation thereat would be a reason for cancellation of the assignment made. …
20. … The Revenue authorities, a law unto themselves, have been violating the provisions and colluding with the assignees causing gross damage to the ecology and environment. Be that as it may; the petitioners herein were quite aware of the conditions of assignment; though their ignorance, if at all, would have been of little consequence in the teeth of the statutory prescriptions. ….
21. In any event the loss caused to the petitioners would be of no consequence when weighed with the larger public interest of averting ecological imbalance and preserving pristine lands from haphazard development; which otherwise as studies reveal; would even affect the climate of the Indian peninsula. …”

End Notes 2

1. No findings on the title in the previous decision – [2018 (2) KLT 369

The High Court also held in Harrisons Malayalam Ltd. v. State of Kerala and Others (2026:KER:19290) as under:

“14. On the aforesaid contention raised by the learned Senior Counsel for the petitioner, we notice the specific contention raised by the learned Advocate General, after referring to paragraphs 27, 98 and 141 of the decision of the Division Bench in Harrisons Malayalam Ltd. [2018 (2) KLT 369], that no such findings on title of the subject properties are there in the said decision. Relevant portion of paragraphs 27, 98 and 141 of the said decision are extracted hereunder;
- “27. ……….. The essential contention urged is on jurisdiction, or the absolute lack of it under the KLC Act to proceed against the properties which cannot be said to be either “Government land” or “puramboke land” as defined under the KLC Act. HML asserts their title and possession on the various properties as described in the Schedules. The Special Officer appointed under the KLC Act has absolutely no jurisdiction to proceedagainst lands owned by anyone other than the Government. The title is traced without interruption to about 100 years prior and has been obtained by the petitioner, a Company registered under the Companies Act, 1956 (for brevity “Companies Act”), by way of an indenture of 08.03.1923 bearing Deed No.1006 of 1923. The original of the said deed has been deposited before this Court and a copy has been produced as Ext.P22(b). The submissions revolve on this indenture; the efficacy of which is seriously put to test by the State and the party respondents. HML and its assignees having raised the ground of title, as had been accepted by the Government too, evident from the revenue records; the proceedings are ill motivated, for reason of it having originated on mere paper reports. Further the question of valid title having been raised, the Special Officer appointed under the KLC Act is divested of jurisdiction to further proceed.
- xxx xxx
- 98. ……….. We, however, make it clear that we are not called upon to examine the title of the lands, as asserted by HML. We would hence not be required to examine all of the title deeds or the purchase certificates, tax receipts, inter-parte decisions, etc. We remind ourselves that we are only looking at the question of jurisdiction under the KLC Act. If, prima facie, a bona fide dispute is discernible on title, then necessarily the parties would have to be relegated to the Civil Court; without ourselves venturing on an enquiry, which we find ourselves incompetent to embark upon, in a proceeding under Article 226.
- xxx xxx
- 141. …………Title cannot be adjudicated under the KLC Act intended only at eviction of unauthorized occupation. Title to establish it or to controvert it, has to be adjudicated before a civil court. Title we reiterate, in this contest, we have not found on the petitioners, which we are incompetent to do in the present proceedings. Title has to be found after adducing evidence in a properly initiated civil proceedings, if the State ventures so, to institute. There is no cause of action for the petitioners to approach the civil court to establish title under Section 20 of the KLC Act, the proceedings under the Act having been set aside by us.”
15. A reading of paragraph 141 of the decision would make it explicitly clear that the Division Bench did not decide the question of the title of the petitioner, since the High Court is incompetent to decide such an issue in a proceeding under Article 226 of the Constitution of India. Therefore, we find no force in the argument of the learned Senior Counsel for the petitioner that the facts relating to the ownership and possession of the plantations, including the estates which are subject matter of these writ petitions, were concluded by the Division Bench, in favour of the petitioner, in the decision in Harrisons Malayalam Ltd. [2018 (2) KLT 369] and the 1st respondent State has issued the Government order dated 06.06.2019 to overreach the said decision of the Division Bench.”

2. In Writ Petitions, besides the Facts, the Evidence also must be pleaded and annexed

The High Court further held in Harrisons Malayalam Ltd. v. State of Kerala and others (2026:KER:19290) as under:

“18. In Bharat Singh v. State of Haryana [(1988) 4 SCC 534] the Apex Court held that, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the Court will not entertain the point. The Apex Court held further that there is a distinction between a pleading under the Code of Civil Procedure Code, 1908, and a writ petition or a counter affidavit. While in a pleading, i.e., a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter affidavit, not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it.”

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession:

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

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

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

Adverse Possession: A Concise Overview

Saji Koduvath, Advocate, Kottayam.

Adverse Possession

Adverse possession arises where a person is in possession of another’s property in a manner that is open, notorious, and continuous for the statutory period—nec vi, nec clam, nec precario. Upon fulfilment of these conditions, title vests in the possessor by operation of law, and the true owner’s title is extinguished.

Adverse Possession in Commonwealth Countries: Across Commonwealth jurisdictions, the doctrine of adverse possession is applied broadly in similar terms.

Drastic changes

Substantially, the aforementioned general principles of law had been followed in India (under the Indian Limitation Act 1908) till 1963. Drastic changes have been made to the law on Adverse Possession by the Indian Limitation Act, 1963. It introduced the following words (in Article 65) for denoting the starting point of limitation –

“when the possession of the defendant becomes adverse to the plaintiff“.

These words emphasise two distinctive and interrelated key elements:

First, the intention of the claimant—to possess the land of another with a positive intent to dispossess him; and
Second, knowledge of the true owner—possession of the claimant must be open and hostile enough to impute or convey knowledge thereof to the true owner.

Gaya Prasad Dikshit v. Dr. Nirmal Chander, 1984-2 SCC 286,
Thakur Kishan Singh v. Arvind Kumar, 1994-6 SCC 591,
Ramiah v. M. Narayana Reddy, AIR 2004 SC 4261,
T. Anjanappa v. Somalingappa, 2006-7 SCC 570,
P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59,
Chatti Konati Rao v. Palle Venkata Subba Rao, 2010-14 SCC 316,
Ram Nagina Rai v. Deo Kumar Rai, 2019-13 SCC 324,
Mallikarjunaiah v. Nanjaiah, 2019-15 SCC 756,
Uttam Chand v. Nathu Ram, 2020-11 SCC 263,
Govt of Kerala v. Joseph, AIR 2023 SC 3988.

Changes Made to 1908 Limitation Act

Under the (earlier) Limitation Act, 1908 (Articles 142 and 144), the true owner was required to institute a suit within twelve years of dispossession; failing which, the occupier’s possession could mature into adverse possession.

Under the 1963 Limitation Act, it is no longer necessary for the true owner to prove that he was in possession within 12 years of filing the suit (as required, earlier, by Articles 142 and 144 of the Limitation Act, 1908).
The burden lies solely on the claimant of adverse possession to establish hostile animus, denial of the title of the true owner, wrongful dispossession, and other overt acts constituting adverse possession.

Effects of the Drastic Change

The limitation starts ‘when the possession of the defendant becomes adverse to the plaintiff‘ (Art. 65, Limitation Act).
The entire burden of proving title by adverse possession will be on the claimant.
Mere possession, however long, will not be adverse.
The bar of limitation arises in a title suit (filed by the true owner) only if the defendants have a sustainable claim of adverse possession.
Even if the plaintiff has knowledge of the defendants’ possession (however long) – no relevance.
The claimant must (first) admit the ownership of the true owner.
An issue as to ‘adverse possession’ is necessary.
Proper animus (pleading and proof) needed.
The ‘mindset/attitude’ of the true-owner is immaterial.
Adverse possession and title claim will not go together. Defendants must have relinquished the title claim, if raised, to prop up adverse possession.
If the plaintiff (title holder) proves his title in a recovery suit, the defendant will fail unless he has a better title or pleading and proof on adverse possession.
Once the plaintiff (title holder) in a recovery suit creates a high degree of probability, onus shifts to the defendant to prove a better title or adverse possession (See: R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548: 2003-8 SCC 752).

Ingredients of Adverse Possession

(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) It starts only – “when the possession of the defendant becomes adverse to the plaintiff” (Art. 65).
(ii) For perfecting adverse possession, the statutory requirement of ’12 years’ in the Limitation Act, 1963 (particularly Article 65) must also be satisfied.

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

Suit on Title – No Limitation Unless Defendant has Claim of Adverse Possession

No question of limitation arises unless the defendant substantiates his plea of adverse possession. This is because, after the significant change brought about by the Limitation Act, 1963, mere possession—however long—does not, by itself, become ‘adverse’.

Acquiescence, Inaction, etc.

The same is the position even if – acquiescence, inaction, etc. on the part of true owner.
Even if the plaintiff admits that the defendant has been a trespasser for a hundred years, there will be no bar of limitation to a recovery suit based on title, if the defendant does not claim adverse possession.

No Adverse Possession, Unless Claimant ‘Admits 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.

If one party to the suit (defendant or plaintiff) effectively pleads adverse possession (admitting the title of the other party), normally, the other party need not prove his title, for it can be taken as an ‘admitted fact’.

The “knowledge” required is ‘that which is brought to the true owner‘

The words in Article 65 — ‘when the possession of defendant becomes adverse 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.

Party claims Adverse Possession must be SURE who is the Actual/True Owner

If the defendants are not SURE who the true owner is, the question of their being in hostile possession and the question of denying the title of the true owner do not arise.

T. Anjanappa v. Somalingappa, (2006) 7 SCC 570,
Shri Uttam Chand v. Nathu Ram, AIR 2020 SC 461; 2020-11 SCC 263,
P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59.

Burden is on the Claimant

Possession of the claimant, under the 1963 Limitation Act, must be so open and hostile as to impart knowledge thereof to the true owner. The burden to prove this kind of possession is on the claimant (of adverse possession).

Adverse Possession – Irrational, Illogical Claim

See also: Ram Nagina Rai v. Deo Kumar Rai, 2019-13 SCC 324,
State of Haryana v. Mukesh Kumar, AIR 2012 SC 559; 2011-10 SCC 404.

22^nd Law Commission Report – No Justification for Any Change

The 22^nd Law Commission (considering Hemaji Waghaji case) placed its Report on 24^th 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.“

Read Book No. 5

•  Adverse Possession: A Concise Overview
•  What is Adverse Possession in Indian Law?
•   Adverse Possession: Dispossession and Knowledge
•   Adverse Possession: Admission of Title of Other Party
•   Ouster and Dispossession in Adverse Possession
•   Does ‘Abandonment’ a Recognised Right in Indian Law?
•   Illegal or Fraudulent Regn. of Deed: No Adverse Possession
•   Does 12 Years’ Unobstructed Possession Precede the Suit?
•   Prescriptive Rights – Is it Inchoate until Upheld by Court
•   Sec. 27, Limitation Act: Right to Declaration and Recovery
•  Declaration & Recovery: Art. 65, not Art. 58 Governs
•  ‘Possessory Title’ in Indian Law
•   Possession: a Substantive Right Protected in Indian Law
•   Recovery Based on Title and on Earlier Possession
•   ‘Possession is Good Against All But the True Owner’
•   When ‘Possession Follows Title’; ‘Title Follows Possession’
•   Can a Tenant Claim Adverse Possession
•   Adverse Possession Against Government
•   Is Registration of a Deed, Notice to Govt. and Public?
•   Government of Kerala v. Joseph
•   Adverse Possession: UK and US Law and Classic Decisions
•   22nd Law Commission Report
• How to Plead Adverse Possession?

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Ten Square Miles Concession and Kanan Devan Hills Concession – State Grants of Travancore Governments

Saji Koduvath, Advocate, Kottayam.

Abstract

As regards Kanan Devan Hills Concession, Kannan Devan Hills Produce Co. Ltd. v. The State of Kerala, AIR 1972 SC 2301, is the direct authority to see that the land therein is Government land.
As regards the Ten Square Miles Concession, the Full Bench of the Kerala High Court, in M. A. Majeed v. State of Kerala, 2005-3 KLJ 762; 2006-1 KLT 19, proceeded on the basis that the lands therein were owned by the Government.

Introduction

Kanan Devan Hills Concession

On July 11, 1877, under the first Pooniat Concession, John Danial Munro obtained a large extent of land, on a rental basis, for coffee cultivation, from Punjar Valiya Raja. Poonjar Raja surrendered the land to the State of Travancore. Now it vests with the State of Kerala.

It is held in Kannan Devan Hills Produce Co. Ltd. v. The State of Kerala, AIR 1972 SC 2301 (relying on the Travancore Land Revenue Manual) as under:

“It thus appears that the State grants like
- Kanan Devan Hills Concession and
- Ten Square Miles Concession, and
- Munro Lands,
were treated under the heading Pandaravaka Lands; i.e. lands belonging to the sircar.”

Ten Square Miles Concession

In 1834, a tract of ten square miles was taken up and cultivated by one William Huxam under permission granted by the Sirkar in Pathanapuram and Shencotta. An agreement was entered into between the Dewan of Travancore and Huxam in 1849.

In 1852 Huxam transferred the land to the firm of Binny and Co., Madras. In the same year, an agreement was entered into between the Travancore Sirkar and Binny & Co., with respect to the land whereby the Sirkar granted the Company a lease for 30 years with a condition to renew it. The Travancore Government, subsequently, by Order dated 28th March 1906, stated that it was prepared to convert the leasehold into freehold on conditions.

Kanan Devan Hills Concession

Poonjar Raja was Original Janmi Poonjar Raja was a Janmi (landlord or proprietary interest holder) of the lands involved in Kanan Devan Hills Concession. John Danial Munro obtained large extent of land, on rental basis, for coffee cultivation, from Punjar Valiya Raja, on July 11, 1877, under the first Pooniat Concession. It was stipulated in the Concession that –

“you shall clear and remove the jungles, and reclaim the waste lands within the said boundaries, and cultivate them with coffee up to the year 1058 and from the year 1059, pay our rent collector a yearly rent at the rate of 3,000 British Rupees” (Kannan Devan Hills Produce Company Ltd. v. State of Kerala, AIR 1972 SC 2301, 1972-2 SCC 218).

The Maharaja of Travancore executed a deed of ratification, dated November 28, 1878, by which the he ratified the First Pooniat Concession dated July 11, 1877. The lands of Poonjar Raja over which he exercised the right as a Janmi had been transferred to the Government of Travancore.

On 2.8.1886, the agreement called the Second Pooniat Concession was entered into modifying the previous deed. By this time a company called the North Travancore Land Planting and Agricultural Society Ltd. had acquired the rights in the said land.

Surrender of Rights to Travancore Sircar

Poonjar Chief or Raja had subjugated himself to Travancore Sircar or Maharaja, and an agreement dated 18.09.1899 was entered into between Rohini Thirunal Kerala Varma Raja (the then Chief of Poonjar Koyikkal) and the Travancore Government, under which the ownership of the lands, including that described in the Poonjat Concessions, had been transferred to the Government of Travancore. (See: Kottayam District Koottu Krishi Karshakasangam v. Stateof Kerala, 2015).

It was declared that the tract known as Anjanad and Kannan Devan Hills was an integral portion of our territory of the Travancore and the inhabitants were not to make any payment to the Poonjar Chief.

Royal Proclamation of 1899

On 24.9.1899, a Royal Proclamation (of 1899) was made. It reads as under:

“Whereas we deem it expedient to clearly declare the position of this State in respect of the tract known as Anjanad and Kannan Devan Hills, we are pleased to declare as follows; (1) The tract known as Anjanad and Kannan Devan Hills is an integral portion of our territory and all rights over it belong to and vest in us.
(2) The inhabitants of the said tract and all others whom it may concern are hereby informed and warned that they are not to pay any taxes, rents or dues, or make any other payment to the Poonjar Chief or his representatives or to any person other than an officer of our Government authorised in this behalf, in respect of anything in, upon or connected with the said tract, with the exception, however, of a payment of rupee three thousand per annum from the successors in interests of the late Mr. J.D. Munro of London and Peermade now being paid to the said Chief in virtue of a Lease deed executed by the said Chief in favour of the said late Mr.J.D. Munro on the 11th July, 1877, and which we are pleased to permit the said Chief to continue to receive.
(3) The lands within the said tract will be dealt with by our Government in the same manner as lands in other parts of our territory with such modifications as the circumstances and conditions of the said tract may require and all taxes, rents and dues hitherto paid, and that may hereafter be imposed by our Government shall, with the exception of the sum of rupees three thousand aforesaid, be paid by the, occupants of lands within the said tract whose occupation has been or may be recognized or confirmed by our Government, and of such portions of the said tract as may from time to time hereafter, with the permission of our Government, be occupied, to the officers of our Government who may be authorised in this behalf.” (Quoted in: Kannan Devan Hills Produce Company Ltd. v. State of Kerala, AIR 1972 SC 2301, 1972-2 SCC 218; Kottayam District Koottu Krishi Karshakasangam v. Stateof Kerala, 2015)

Ten Square Miles Concession

The Travancore States Manuel, Volume IV, Page 487-490, reads as under:

“PATHANAPURAM CONCESSION.
A tract of land in Pathanapuram and Shencotta comprising an area of ten square miles was originally taken up and cultivated by one Mr. Huxam under permission granted by the Sirkar in 1834 (1009 ME) _{[Vide Land Revenue Manual — Vol. Ill- Revised Edition Part I, pp. 9-11: It refers to the proceedings of the Chief Secretary – G. 0. No. 5020 R. 1994, dated 28th March 1906]}
An agreement was entered into between the Dewan of Travancore and Mr. William Huxam on 9th July 1849 (27th Mithunam 1024).
In 1852 Mr. Huxam transferred the land to the firm of Messrs. Binny and Co., Madras, with the sanction of the Sirkar.
An agreement was entered into between the Sirkar and Messrs. Binny & Co., in 1852 (1027 M.E.) whereby the Sirkar granted the Company a lease of the land for 30 years with a condition that the lease shall be renewable at the option of the then holder for the period of 30 years on the same terms and conditions, and again for a further period of 30 years at the option of the holders, thus extending the term to 90 years. A condition was also inserted in the agreement that, if the lease were not renewed at the expiration of either the first or the second term, the whole of the land with all the trees and plants thereon shall revert to the possession of the Sircar. Messers Binni and Co. transferred the land to Mr GM McLauchlan in 1876 with the permission of the Sirkar. Subsequently, Mr McLauchlan, with two partners (Mr P. W. Keir and Mr George Anderson), formed the ‘Travancore Plantation Company’, applied for and obtained a renewal of the lease Company. This agreement was executed on 17th April 1877 (6th Madam 1052). This deed granted a lease of the land to the Company for 35 years from 13th January 1877, with a condition that the lease shall be renewable for a further period of 30 years upon the same terms and conditions, viz., an annual rent of Rs. 100 for every English square mile of land cultivated, exemption from payment of rent for 3 years from the date of clearing and obligation to obtain the sanction of the Government for any alienation of the land or the rights thereof. It was also stipulated that, at the expiration of the period of sixty-five years provided for in the agreement, or if the lease were not renewed at the expiration of the first term, the whole of the land with all the trees and plants thereon shall revert to the possession of the Sirkar, In 1905, Messrs. Keir and McLauchlan requested the Government either to give them the assurance that the lease would be renewed on the expiry of the existing term or convert the lease-hold into free-hold at the expiry of the lease, for which they were prepared to pay 3 annas instead of 2 ¹/₂ annas per acre for the land brought under cultivation. They made these proposals as they wanted to open the lands remaining uncultivated for rubber. The matter was discussed between the Dewan and the applicants and others who had acquired portions of the land from the lessees, and as the result of these discussions, the Government issued G. 0. No. 5020 R. 1994, dated 28th March 1906, in which it was stated that Government were prepared to convert the leasehold into freehold on the following conditions:
- .(i) Payment of acreage value of Re. 1 per acre on the 10 sq. miles.
- (ii) Assessment for lands under coffee, tea and other products, at the rates which may prevail at the time.
- (iii) Assessment for lands which may not have been cleared and which may remain as jungle at 8 as. per acre.
- (iv) Assessment for lands brought under rubber cultivation at Rs. 2 per acre.
It was also laid down in the G.O. that all transfers should be reported to the Government and that the other terms of the grant shall be the same as those that apply to waste lands granted under the coffee land rules, dated 7th July 1898. When the tax on lands granted for coffee and tea cultivation was raised from 12 annas to one British rupee per acre, with effect from 17th August 1910, by Royal Proclamation dated 12-8-09, that fact was communicated to the holders of this grant, with the intimation that when the lease-hold was converted into freehold under the above G.O the grantees and their alienees should pay assessment at the increased rate of Bh, Re. 1 per acre on the whole area cultivated, from 12th January 1912.
The area covered by this special grant consists of the following 10 estates situated in the taluks of Paithanapuram and Shenkotta:
- Name: ………… ….. …………. Area: …………….Taluk
- Venture …. …….. ……. ……. 407.25 acres: Shencotta
- A and (B) Block:…. …….. 711.01 acres: Shencotta
- Ridgeband: …… …….. ……. 127.80 acres: Shencotta
- New Swarnagiri:…. . …… 208.87 acres: Shencotta
- Upper Florence II Bit: … 39.29 acres: Shencotta
- Koravanthavalam: …… 1230.20 acres: Pathanapuram
- Midlothian: …… ……… …. 437.24 acres: Pathanapuram
- Nagamala: ……. ….. …….. 1376.53: acres: Pathanapuram
- Isfield: …… ….. ………………. 567.78 acres: Pathanapuram
- New Arundal: … …… ….. 1310.13 acres: Pathanapuram”

Subsequent Grant Deeds

The land history of Ten Square Miles shows the following:

1. After the G. 0. No. 5020 R. 1994, dated 28th March 1906, when the holders of the land sought the Travancore Government to issue ‘title or grant deeds‘, it was specified in the deeds (executed in 1913 and 1916) –
- that those deeds were ‘grant deeds’ subject to the terms, covenants, conditions and provisions.
- _{Note: 1. The words used in the GO are – “…. prepared to convert the leasehold into freehold on the following conditions“.}
- _{2. The 1906 GO further reads – “when the lease-hold was converted into freehold under the above G.O the grantees and their alienees should pay assessment at the increased rate of Bh, Re. 1 per acre“. That is, no (binding) ‘declaration’ as to conversion to ‘freehold’ was made.}
- _{3. GO does not have the same force as a statute (Act) or a statutory rule, unless it is issued under a specific statutory power.}
- _{4. The grant deeds executed in 1913 and 1916, as stated above, show that the government had also “agreed to” issue ‘title or grant deeds‘; and the Company sought to issue‘title or grant deeds‘ (and the Government executed only “grant deeds”)}.
- _{5. When Grant deeds were executed (in pursuance of the GO) what is to be taken into consideration is the Grant Deed, and not GO.}_.
2. The terms, covenants, conditions and provisions in those deeds were substantially similar to the ‘grant deeds’ prevailing at the relevant time, which came to be considered by the Supreme Court in Kannan Devan Hills Produce Co. Ltd. v. State of Kerala, AIR 1972 SC 2301, and State of Kerala v. Kannan Devan Hills Produce Co. Ltd., (1991) 2 SCC 272 (mentioned below).

High Court Rejected the Contention – Ten Sq. Mile Land, a ‘Freehold Property‘

The contention of the petitioner in M.A. Majeed v. State of Kerala, 2005-3 KLJ 762; 2006-1 KLT 19, was that the Ambanad Estate (a part of New Arundal Estate etc. in Ten Sq. Miles Concession) land was a freehold property. The contention was not accepted by the Full Bench, on the appraisal that the Government was the owner of the property. It is held as under:

“Except the liability to pay seigniorage, nothing remains to be resolved in this Writ Petition. Necessarily, the aforesaid finding shall result in dismissal of the Writ Petition.”

Key Decisions on Grant

In the following cases the effect of “grant” by the Erstwhile Governments was considered.

1. Kannan Devan Hills Produce Co. Ltd. v. The State of Kerala, AIR 1972 SC 2301

The Supreme Court, in Kannan Devan Hills Produce v. The State of Kerala, AIR 1972 SC 2301 (Sikri (CJ), Shelat, A.N. Ray, I.D. Dua, H.R. Khanna, JJ.) held that Kenan Devan Hills Concession (on grant deeds) fall within the expression “Janmam right” vested with Sircar. The State of Kerala made an Act – the Kannan Devan Hills (Resumption of Lands) Act, 1971, to “vest” the possession of the land that remained in the possession of the Kannan Devan Hills Produce Co. Ltd.

According to the petitioner Company, ‘it has at all times been holding, cultivating, enjoying and dealing with the Concession Land as the absolute owner thereof’.

According to the State, this land is dealt with under this heading – Pandaravaka Lands, i.e. lands belonging to the Sircar. and that it was only “granted” to the company for ‘coffee cultivation’. The State asserted in this case –

that the petitioner Company was not an absolute owner, but only a lessee under the Government, especially since the 1899 Proclamation issued by H.H. the Maharaja declaring that Kannan Devan Hills was ‘an integral part’ of the ‘territory’.
that the petitioner’s predecessor-in-title was John Danial Munro, who obtained the first Pooniat Concession from Punjar Valiya Raja, on July 11, 1877. This Concession recited that an application was made for the grant of the above property to the Raja for coffee cultivation.
It was further stipulated in the Concession that
- “you shall clear and remove the jungles, and reclaim the waste lands within the said boundaries, and cultivate them with coffee up to the year 1058 and from the year 1059, pay our rent collector a yearly rent at the rate of 3,000 British Rupees.”
H.H. the Maharaja executed a deed of ratification, dated November 28, 1878, by which the Government ratified the First Pooniat Concession dated July 11, 1877.
This deed of ratification laid down that the Government permitted the grantee to hold the land. (It was similar to the ‘Grant/Title’ deeds executed by the State in all other ‘Grants’ – under the ‘Grant Rules’).
Clause 5 of the Deed of Ratification, is important. It provides, inter alia, that
- “The grantee can appropriate to his own use within the limits of the grant all timber except the following and such as may hereafter be reserved namely, Teak, Cole Teak, Blackwood, Ebony, Karoonthaly, Sandalwood; should he carry any timber without the limits of the grant it will be subject to the payment of Kooteekanom, or Customs Duty……….
The eleventh clause reads –
- “The land granted shall be held in perpetuity as heritable or transferable property, but every case of transfer of the grant by the grantee shall be immediately made known to the Sircar, who shall have the right of apportioning the tax, if a portion of the holding is transferred.”
The twelfth clause stipulates –
- “The discovery of useful mines and treasures within the limits of the grant shall be communicated to the Sircar, and the grantee shall in respect to such mines and treasures, abide by the decision of the Sircar.”
The sixteenth clause provides –
- “The grantee shall be bound to preserve the forest trees growing on the banks of the principal streams running through the tract to the extent of fifty yards in breadth on each side of the stream, the Underwood only being permitted to be cleared and coffee planted instead. Similarly he shall also be bound to preserve the, trees about the crest of the hill to the extent of a quarter of a mile on each side.”
A Royal Proclamation was made on September 24, 1899 provided that ‘Anjanad and Kannan Devan Hills is an integral portion of our territory and that the inhabitants of the said tract are ‘hereby informed and warned that they are not to pay any taxes, rents or dues, or make any other payment to the Poonjar Chief.

Points came for consideration in this decision

Whether the Kannan Devan Hills (Resumption of Lands) Act, 1971 was protected from challenge under Art. 31A of the Constitution. That is, whether these lands fall within expression ‘Janmam right’ or “estate” in art. 31A of the Constitution.
If the lands acquired were an “estate”, or with ‘Janmam right’ owned by the Company, the land reform enactment did not have stood valid. (Note: Kesavananda Bharathi Case came in 1973.)

The Apex Court found the following:

Even if janmaom rights remained with the Poonjar Chief earlier, H.H. the Maharaja became the janmi by the Royal proclamation of 1899.
The nature of ‘janmam right’ has been examined by this Court previously in Kavalappara Kottarathil Kochuni v. State of Madras [1960] 3 S.C.R. 887 Subba Rao, J., observed that janmaom right in Kerala is an “estate and it is the freehold interest.
The Sircar itself is one of these janmis and it was the largest Janmi. It came to possess janmam lands by gift, purchase, escheat, confiscation and other ways
If any person wants land in Travancore, he must obtain it from, some one of the body of Janmis, i.e. from the Sircar, which is the Chief Janmi, or from some other Janmi.

The Apex Court observed as under:

“… On the material placed before us it is difficult to resist the conclusion that the lands in dispute fall within the expression “Janmam right”.
If, as stated in Travancore Land Revenue Manual Volume IV, there are no lands that do not belong to a Janmi and the Sircar becomes a janmi by gift, escheat, confiscation or otherwise, the effect of the Royal Proclamation of 1899 must be that the Sircar became the Janmi.”

The Apex Court further found –

The Registered Lands included 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 Jenmi and whatever rights which vest in the ryots are derived from the Sircar.”
Kenan Devan Hills Concession is dealt with under this heading, i.e. Pandaravaka Lands.
“It thus appears that the State grants like
- Kanan Devan Hills Concession and
- Ten Square Miles Concession, and
- Munro Lands.
were treated under the heading ‘Pandaravaka Lands, i.e. lands belonging to the Sircar” (that is, such Grant-lands were not ‘owned’ by the holders thereof).

On these findings The Apex Court upheld the Kannan Devan Hills (Resumption of Lands) Act, 1971 and dismissed the challenge of the Company.

Read Connected Blog:

2. State of Kerala v. Kanan Devan Hills Produce Co. Ltd., (1991) 2 SCC 272

With respect to the same property it was held in State of Kerala v. Kannan Devan Hills Produce Co. Ltd., (1991) 2 SCC 272, as under:

“The Trial Court in a detailed and well-reasoned judgment dismissed the suit of the company. The trial court on the interpretation of First Concession (Exhibit P- 1), Second Concession (Exhibit P-2), deed of ratification (Exhibit P-62) and the Government agreement with the Society dated August 2, 1866 (Exhibit P-64) came to the conclusion that the company did not acquire absolute proprietary rights over the Concession Area or the trees and timber in the said area. It was held that the Poonjar Chief had only conveyed heritable and transferable possessory rights over the Concession area to the grantee. It was also held that absolute rights over the trees and timber in the Concession Area did not pass to the grantee and it had only the right to use and remove timber subject to the restrictions imposed in the deeds of conveyance/ratification.”

It is observed:

“An identical clause in another grant entered into by the Travancore Government came for consideration before a Full Bench of the Kerala High Court in George A Leslie v. State of Kerala, 1969 K. L.T. 378, K. K. Mathew, J. (as the learned Judge then was) interpreted the clause as under:
- “ We think that if title to the reserved trees passed to the grantees, a provision of this nature would have been quite unnecessary. There was no purpose in stating that the grantees will be free to appropriate the reserved trees for consumption within the limits of the grant, if title to the trees passed to the grantees; the provision is a clear indication that the grantees were allowed to cut and appropriate the reserved trees for consumption within the limits of the grant as a matter of concession.”
“We agree with the interpretation given to the clause by Mathew, J. and hold that the respondent- company did not acquire absolute proprietary rights over the Concession Area or the trees and the timber therein.”

It is observed further:

“It was further held by Mathew, J. (in George A. Leslie v. State of Kerala, 1969 KLT 378) that kuttikanam being the governments share of the value of the trees owned by the government it has the power to fix the value of the trees. We agree with the reasoning and conclusions reached by Mathew, J.”

The Apex Court upheld and approved “the judgment and findings” of the Trial Court.

3. George A. Leslie v. State of Kerala – AIR 1970 Ker 21, (K. K. Mathew, J.)

Travancore Regulation II of 1040 (1865) and Rules for the sale of Waste Land on the Travancore Hills dated 24th April 1865 considered.

It is observed:

“Ext. P-l is a grant made under the Travancore Regulation II of 1040 and the Rules for the sale of Waste Land on the Travancore Hills dated 24th April 1865. It conferred a heritable and transferable interest in the grantees of the land comprised in it. Clause 5 in Ext. P-l, which is identical with Section 5 in Form A of the Rules for the sale of Waste Land on the Travancore Hills, is the relevant provision for deciding this question. It provides:
- “Grantees can appropriate to their own use within the limits of the grant all timber except the following and such as may hereinafter be reserved, namely, Teak, Gole Teak, Blackwood, Ebony, Karcomthaly, Sandalwood; should they carry any timber without the limits of the grant, it will be subject to the payment of kuttikanom or customs duty or both, as the case may be, in the same way as timber ordinarily felled”.
10. We think that if title to the reserved trees passed to the grantees, a provision of this nature would have been quite unnecessary. There was no purpose in stating that the grantees will be free to appropriate the reserved trees for consumption within the limits of the grant, if title to the trees passed to the grantees; the provision is a clear indication that the grantees were allowed to cut and appropriate the reserved trees for consumption within the limits of the grant as a matter of concession.”

It was pointed out –

Travancore Pattom Proclamation of 1040 (1865), which conferred full rights on tenants of pandarapattom land. They have no application to the land or trees comprised in grants for cultivation of coffee or tea (under Rules for the sale of Waste Land on the Travancore Hills dated 24th April 1865).

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession:

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

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

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General