Author Archives: sajikoduvath

“Nothing In This Adhiniyam Shall Apply To Deny The Admissibility” – New Provision (S. 61, BSA) to Ensure that S. 63, BSA (S. 65B, Evidence Act) is an Enabling Provision

Saji Koduvath, Advocate, Kottayam.

Abstract

  • 1. Section 61 of the Bharatiya Sakshya Adhiniyam, 2023, affirms that a copy of an electronic record (computer output) can be produced and proved by any method permissible under the Act for proving a document.
  • 2. It is plain- the expression “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” in Section 61 of the Adhiniyam of 2023 is enacted with a view to overriding the effect of the Supreme Court decision in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 (otherwise, Section 61 would stand redundant).
    • The decision, Arjun Panditrao, had established a strict interpretation that proof by a certificate under Section 65B (Section 63, BSA) is mandatory to admit a computer output (copy) in evidence. 
    • Arjun Panditrao, interpreting Section 65B, said that this section is a complete code. That is, a computer output (copy) can be proved by way of the ‘certificate’ alone.
  • 3. In other words, Section 61 must be understood as a provision intended to secure alternative routes for admitting computer outputs (i.e., copies of electronic records), that is, otherwise than through the certificate contemplated under Section 63.
    • Note: An argument may yet be possible against this construction on the basis of the words “subject to Section 63” in Section 61, by suggesting that the admissibility of a computer output continues to depend upon the production of a certificate under Section 63.
    • However, this argument can be explained. If the certificate under Section 63 were to remain as an inflexible and universal requirement, Section 61 would be rendered redundant or otiose. Such an interpretation would defeat the very purpose of introducing a new provision, which must be presumed to have been enacted with a definite legislative intent.
    • A more harmonious construction would therefore be that Section 61 seeks to mitigate the rigidity of the earlier position and to permit proof of electronic evidence through recognised alternative modes, while retaining Section 63 as one of the available methods of proof.
    • Viewed in this light, Section 61 may be seen as a legislative response to the strict and mandatory approach adopted in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, and as an attempt to restore a measure of flexibility in the law relating to electronic evidence.
  • 4. Section 61 of the Bharatiya Sakshya Adhiniyam, 2023 has been introduced with a clear and purposeful objective. The procedural requirements under Section 63—such as the furnishing of a certificate and hash value—apply only where a party chooses to prove a copy of an electronic record (i.e., a computer output) through the special mode prescribed therein, namely, without examining a witness. This approach also aligns with global trends in jurisdictions such as the United Kingdom, the United States, and Canada.

Read the Article:

Purport of S. 61, BSA, 2023

  • Section 61 of the Bharatiya Sakshya Adhiniyam, 2023, is introduced with clear and purposeful objectives:
    • To correct the doctrinal error that treated “statements” as including all forms of electronic material, such as videos and photographs (by the Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1).
    • To clarify that proof of a computer output (copy) can be given otherwise than through a certificate, including by leading oral evidence or examining a competent witness.
    • To confine the procedural requirements under Section 63—such as the furnishing of a certificate and hash value—to cases where a party chooses to rely on the special mode of proof prescribed therein, namely, proof by way of a certificate without examining a witness.
  • Sec. 61, BSA, says – 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 documents.
  • The first part of Section 61 — “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” — is broadly worded and makes no distinction between an original and a copy of an electronic record.
    • Therefore, this clause ensures the admissibility of electronic records — whether original or copy — solely on the ground of their digital nature.
  • The expression “subject to Section 63” in Section 61, BSA implies that the procedural requirements under Section 63 (such as the furnishing of a certificate and hash value, etc.) apply only where the party opts to prove a copy of an electronic record (computer output) under the special method prescribed by Section 63.
  • That is, the copy of an electronic record (computer output) can be proved by any other method provided under the Act (for proving a document).

Other Methods to Establish Proof are:

  • (i) oral evidence of one who can vouchsafe the same,
  • (ii) circumstantial evidence,
  • (iii) invoking ‘presumption’ and
  • (iv) express admission by the other side.

“Nothing in this Adhiniyam shall Apply to Deny the Admissibility”: Significance

The words “nothing in this Adhiniyam shall apply to deny the admissibility” in Section 61 are also made to expand the scope of admissibility of Electronic Evidence. The non-obstante clause in Section 63, BSA is capable of giving two (divergent) interpretations–

  • First, Section 63, BSA is an enabling provision to admit ‘computer output’ (copy – derived from the original)  as ‘document’ itself, in a simpler manner, by the deeming provision, ‘notwithstanding anything contained in the Act’. That is, computer output (copy) can also be proved by any other manner provided for proving any other document.
  • Second, a computer output (copy) can be proved only under the provisions of Section 63, BSA, ‘notwithstanding anything contained in the Act’. (It is the view taken by the Supreme Court in Arjun Panditrao v. Kailash Kushanrao, (2020)3 SCC 216.)

The words in the new Section 61, “nothing in this Adhiniyam shall apply to deny the admissibility”, are an emphatic delineation of the legislative intent on the following matters –

  • 1. Section 63, BSA is an enabling provision to admit ‘computer output’ (copy)  as a ‘document’ itself, in a simpler(?) manner, by the deeming provision ‘notwithstanding anything contained in the Act’.
  • 2. The interpretation given to Section 63, BSA, that a ‘computer output (copy) can be proved only’ under the provisions of Section 63, BSA, ‘notwithstanding anything contained in the Act’, is not accepted by the legislature.
    • Or, the word “nothing” in Section 61 overrides, or nullifies, the effect of the non obstante clause in Section 63.
  • 3. Thereby, the words, ‘subject to section 63’ in Section 61, BSA, only direct to undergo the requirements in Section 63 (that is, production of Section 63 certificate, and HASH certificate) to prove the Computer output — only when one opts to prove it under the provisions of Section 63: that is, he can adopt any other method provided in the BSA.

Note: If this interpretation is not given, Section 61, the new provision in the BSA, stands meaningless.

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.”

In R v. Downey, [1995] 1 Cr.App.R. 547, the principle accepted was that a video can “speak for itself” if properly proved. In this case, the same type of offence was committed at different places. Both were video recorded. The similarities were well identified. This led to an acceptance of the video by the court. It was found that the perpetrator of one of the crimes was likewise guilty of the other.

CCTV Footage – The Best Evidence

In Tomaso Bruno v. State of Uttar Pradesh, (2015) 7 SCC 178, it is held that the CCTV footage is the best evidence (R. Banumathi, Kurian Joseph, Anil R. Dave, JJ.). It was a case concerning two Italian nationals. They were accused of the murder of another Italian national. The place of occurrence was a hotel room. All were on their trip to Varanasi. It was a case of circumstantial evidence. Symptoms of strangulation were absent in the medical reports. The defence was that the death occurred during their absence. They relied on the non-production of the digital evidence – CCTV footage and SIM card details. The Supreme Court set aside the conviction, pointing out –

  • “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

In Rajendra Sail v. M P High Court Bar Association, AIR 2005 SC 2473; 2005-6 SCC 109; (Y.K. Sabharwal & Tarun Chatterjee, JJ.), it is held that the video exhibited in that case speaks for itself.

The Madras High Court in Chairman, Tamil Nadu Electricity Board, Chennai v. Kogila,
2021-3 CTC 118; 2021-2 LW 28, while dealing with a suit for damages, filed by the legal heirs of a person who died due to the fall of an electrical pole on him, held as under:

  • “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

It is also relevant to note the following decision of the Madras High Court on seizure of the contraband, a commercial quantity of 1 kg. of Heroine, in Intelligence Officer, Narcotic Control Bureau, Chennai v. Rasool Mydeen, 2023-1 MLJ(Cri) 19, which reads as under:

  • “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.”

Also Read: ‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ u/s. 65B

End Notes

“HASH value/s of the electronic/digital record/s”

The Certificate required in Section 63(4)(c) of the new Act must be “in the form specified in the Schedule”. It appears that this certificate is needed in addition to the Certificate that is required in sub-section (4) as regards the matters enumerated therein; or the Certificate should contain (additionally) the matters enumerated in sub-section (4).

The Form in the Schedule directs to state as under:

  • “I state that the HASH value/s of the electronic/digital record/s is …… ……… …… , obtained through the following algorithm –
  • SHA1:
  • SHA256:
  • MD5:
  • Other …….. …….. …….. (Legally acceptable standard)
  • (Hash report to be enclosed with the certificate)”

A Discordant Note

The requirement for this certificate is unnecessary, especially in situations where there is no dispute regarding the computer output (copy or print-out). It may be more feasible for many litigants to bring the original device, such as a CCTV Camera, computer, laptop, or mobile phone, to court than to get the HASH value fixed through an expert.

It is not clear –

  • (i) What is the precise purpose of ascertaining the hash value(s) of the (original) electronic or digital record?
    • Note: It appears that the hash value(s) of the original record are required to be stated, rather than that of the copy (‘computer output’) actually produced before the court. This raises a doubt: how is the court to verify the authenticity of the copy if the original’s HASH value alone is referenced?
  • (ii) Why does the requirement of including HASH value(s) appear only in the Schedule (certificate format) and not in the main body of Section 63 itself?

The lack of explicit mention in the section text also creates uncertainty about whether HASH values are ‘mandatory’ or merely a ‘directory’ one.

Section 63(4)(c), BSA

Section 63(4)(c), BSA reads as under:

  • (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.

A question may arise –

  • Because the term “hash value” is not explicitly used the main body of Section 63(4)(c) BSA, can it be argued – Hash Value Certificate is not mandatory but directory (or merely illustrative of the best practices)?

An argument is possible (“hash value” certificate is not mandatory) for two matters –

  • 1. The particulars in the Certificate stated in Section 63(4)(c) are specifically and categorically laid down in the sub-section (2) of Sec. 63. The “Part A” Certificate in the schedule contains all things in sub-section (2) of Sec. 63. So the “Part B” Hash Value Certificate is not mandatory as per the “Section”.
  • 2. The words “sufficient for a matter to be” in the sub-section (4)(c) make it clear – the ‘verbatim adherence’ to the certificate format is not mandatory;*.* no doubt, the substance or contents thereof (particularly, the phraseology – “best of the knowledge and belief”) must have been placed in some (other) form. The particulars in the Certificate being the matters enumerated in the sub-section (2) of Sec 63 (and nothing is stated as regards Hash Value), the ‘Part B’ Hash Value Certificate cannot be a mandatory one.
    • *.*Note:
    • 1. See the difference between (i) reading Sec. 63(4)(c) without the words – sufficient for a matter to be and (ii) reading with these words. Relevant portion of Sec. 63(4)(c) is given below:
      • “(c) ….. 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.”
    • 2. The beginning portion of Sec. 63(4)(c) emphasises that it pertains to the matters enumerated in sub-section(2) alone, and not to hash-value. Sec. 63(4)(c) begins as under:
      • “(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) shall be evidence of any matter stated in the certificate…”
    • 3. It appears that the hash value(s) of the original record are expected to be stated, rather than those of the copy (or “computer output”) actually produced before the court. This raises several questions, including: how is the court to verify the authenticity of the copy, if only the original’s HASH is referenced?

Possible Counter Arguments (This author does not subscribe)

  • First: The “form A” itself requires Hash Value Certificate.
  • Second:  Section 63(4)(c) says, “…. 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… “
  • Third:  Section 63(4)(c) says, “a certificate specified in the Schedule”. The phrase “specified in the Schedule” explicitly ties the main section to the Schedule and makes it mandatory.
  • Fourth:  The Schedule provides a single, Certificate, divided into two parts – “Part A and “Part B”. It is not presented as two separate certificates, one mandatory and one optional.
  • Fifth: Legislative Intent (i.e., for ensuring the digital integrity of electronic records) reflects the mandatory nature.

Conclusion

The ‘Hash Value Certificate’ in the BSA is shrouded in several potential ambiguities. To dispel these uncertainties, a legislative amendment or a definitive ruling by an authoritative court that takes into account all pertinent arguments in this matter is imperative.

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Admissibility of Photographs, and Photo-Identification, in Court Cases

Adv. Saji Koduvath, Advocate, Kottayam.

Photograph Evidence in a Nutshell

Photographs are admissible in evidence as documents.  P.  Gopalkrishnan @ Dileep v. State of Kerala, AIR 2020 SC 1; 2020-9 SCC 161
A person sees a display may give evidence (as to the Place and Persons) Taylor v. Chief Constable of Cheshire [1987] 1 All ER 225, 84 Cr.App. Rep 191, DC.]; P. Gopalakrishnan v. State of Kerala, AIR 2020 SC 1
Persons having knowledge of a person, scene, etc., can testify photo and a video.P.  Gopalkrishnan @ Dileep v. State of Kerala, AIR 2020 SC 1; 2020-9 SCC 161; Shoor Singh v. State of Uttarakhand, AIR 2024 SC 4551; Santhosh Madhavan @ Swami Amritha Chaithanya v. State of Kerala, 2014 Ker HC 31; Anu C.R. v. State of Kerala, 2025(7) KHC 150; 2026(6) KLT (SN) 2.
While considering a case on dowry death, the prosecution argued that a photograph was not admissible in evidence as neither the person who took the photograph nor its negative was produced in evidence. But, the court accepted the photograph as ‘no dispute was raised by the prosecution witnesses’.Shoor Singh v. State of Uttarakhand, AIR 2024 SC 4551.
The victim killed by burning was identified by a photograph. It was held that even without noticing any translatable mark or feature of a person, it would be possible to identify him later.Ponnappan v. State of Kerala, ILR 1994(3) Ker 370 (KT Thomas, J.)
A large number of photographs were marked and considered in this case.
In para 525, it is stated – the witness “was confronted with photographs of the inscription”
There were three sets of albums containing photographs taken by the State Archaeological Department pursuant to an order dated 10 January 1990 (Para 533).
In para 538, the Court considered the evidence of a witness as to the “photographs placed within the structure in 1990”.		M.  Siddiq v. Mahant Suresh Das, 2020-1 SCC 1 (Ayodhya case)
A Witness can be Confronted with a Photograph of the place of occurrence During Cross-Examination Without its Prior ProductionAnu C.R. v. State of Kerala, 2025(7) KHC 150; 2026(6) KLT (SN) 2
The factum of photo identification (of an accused) by PW 2, as witnessed by the officer concerned, is a relevant and admissible piece of evidence.Rabindra Kumar Pal v.  Republic of India, 2011-2 SCC 490 (Manu Sharma v. State (NCT of Delhi), 2010-6 SCC 1, referred to).
Nothing prevented the appellant-State Government from producing the relevant photographs of the purported pucca pond existing at some spots.State of Rajasthan v. Ultratech Cement Ltd. , 2022-12 Scale 606; 2022-13 SCR 1
A statement about the photograph made by any expert would not be admissible before examining the photographer.Dr. Pankaj Kumudchandra Phadnis v. Union of India, (2018) 5 SCC 785
Photographs, tape-records of speeches [Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehra, (1976) 2 SCC 17] are documents.Shamsher Singh Verma v. State of Haryana, 2016 15 SCC 485; Nilesh Dinkar Paradkar v. State of Maharashtra, 2011-4 SCC 143
Photo identification of an accused during the investigation, who was seen by the witness at the relevant time.Umar Abdul Sakoor Sorathia v. Intelligence Officer, Narcotic  AIR 1999 SC  2562, 2000-1 SCC 138; Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1
Inventory, photographs and the list of samples certified by the Magistrate are admissible as primary evidence. It is a substitute for the production of physical evidence of seized contraband samples.Nisar Ahmed Bhat, v. Union Territory of Jammu and Kashmir 2024 0 Supreme(J&K) 187  
The tape record corroborated his testimony, as a photograph taken without the knowledge of the person photographed can become relevant and admissible so does a tape record of a conversation unnoticed by the talkers. A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under section 8 of the Evidence Act. It is res gestae.K. K. Velusamy v. N. Palanisamy, 2011-11 SCC 275;
R.M Malkani v. State of Maharastra, AIR 1973 SC 157;
Yusaf Ali lsmail Nagri v. The State of Maharashtra, 1967- 3 S.C.R. 720

Photo and Video: Relevant and Admissible

Audio/Video cassettes Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehra, (1976) 2 SCC 17
Tape records of speechesTukaram S. Dighole v. Manikrao Shivaji Kokate, (2010) 4 SCC 329
Photo or videoMohammed Rafiq v. Madhan, 2018-1 Mad LJ(CRI) 641; Moti Rabidas v. The State of Bihar, 2015-145 AIC 435; Vaman Narain Ghiya v. State of Rajasthan 2014-1 Raj Cri C 31; State of MP v. Shankarlal, ILR 2010 MP 717; P Rajagopal v. Inspector of police 2009-2 Mad LJ(Cri) 161; Santhosh Baccharam Patil v. State of Maharashtra, 2002 All MR (Cri)997, 2003 BCR (Cri) 120.
CD  Shamsher Singh Verma v. State of Haryana, (2016) 15 SCC 485
Photographs including photographs of tombstones and houses Lyell v. Kennedy (No.3) (1884) 50 L.T. 730
Video recordings  State of Maharashtra v. Praful B.Desai, AIR 2003 SC 2053
Audio and videoState of Maharashtra v. Praful B.Desai, AIR 2003 SC 2053; Santhosh Madhavan @ Swami Amritha Chaithanya v. State :2014 KHC 31; Taylor v. Chief Constable Cheshire:1987(1) All.ER 225
CassettesTukaram S.Dighole v. Manik Rao Shivaji Kokate (2010)4 SCC 329
Moving cinematographSenior v. Holdsworth, Ex parte Independant Television New Ltd. (1976) Q.B. 23)
Film  Rex v. Daye ((1908)2 K.B. 333, 340)
Floppies, CCTV footages, CDs, DVDs, Chips, Hard discs, Pen drives– North West Airlines v. Union of India 2007 (214) ELT 178 (Bom.)

Introduction

Only relevant and admissible evidence can be received by a court. Unless its authenticity is admitted by the opposite party, a photograph must be duly authenticated. Authentication consists of establishing that the photograph fairly and accurately depicts the scene, object or person that it purports to represent. Such authentication need not be provided by the photographer. Any person having personal knowledge of the depicted subject matter may testify that the photograph is a true and accurate representation of what he observed.

Modes of Proof of Photographs

A photograph or video can be proved through the testimony of –

  • the photographer
  • admission by the opposite party or witness;
  • production of the original device containing the image.

They can also be proved through a ‘proper’ witness who is competent to depose by way of general evidence regarding the factual features depicted therein, such as the identity of the persons shown, the place, the time or the surrounding circumstances. They include –

  • one who actually witnessed the capturing of the photograph,
  • a person who saw the scene and
  • one who can identify the place, though not the persons seen in the photo (or the persons and not the place).

Photographs as Evidence and Photo Identification

Photographs are received as evidence in the following cases –

  • Umar Abdul Sakoor Sorathia v. Intelligence Officer, Narcotic  AIR 1999 SC  2562, 2000-1 SCC 138 (photograph used during the investigation for identification of the accused)
  •  Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1 (“The photo identification and TIP are only aids in the investigation and do not form substantive evidence. The substantive evidence is the evidence in the court on oath.)
  • Rabindra Kumar Pal v. Republic of India, AIR  2011 SC 1436; 2011 2 SCC 490 (Quoted Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1)

Pictorial Testimony Theory and Silent Witness Theory

  • Pictorial Testimony Theory – Here, the personal knowledge of the witness is important. The witness testifies, seeing the photograph, that it fairly and accurately represents what he has seen or what is in his knowledge. In such a case, the photograph need not be proved through a proper witness like the photographer. In short, the testimony of the witness is more important (for the court ) than what is depicted in the photograph.
  • Silent Witness Theory – Photograph Must Be Proved. The witness need not have actually seen the act of capturing by the camera. CCTV footage and dashboard cameras fall in this category. Here, the photograph speaks for itself. It must be proved that the system that produced it was reliable, as the camera was working properly and it has not been tampered with since capture.

In Santhosh Madhavan @ Swami Amritha Chaithanya v. State (2014 Ker HC 31), these two theories governing the proof and authenticity of photographs were explained.

  • First, the pictorial testimony theory: It is applied when a photograph is used merely as an aid to a witness in explaining or illustrating his testimony—for example, a doctor explaining injuries with reference to a photograph, or identification of a deceased through a photograph.  In such a case, the evidence of the witness will be the primary matter rather than what is depicted in the photograph; and the photographer need not be examined in court, since the photograph is admitted merely to aid a witness in explaining his testimony.
  • Secondly, under the silent witness theory or communication theory: It is invoked when the photograph itself constitutes substantive and probative evidence of what it depicts, speaking for itself (without the support of oral testimony)—for instance, an X-ray film showing a fracture, a photograph depicting the accused in a crowd holding a weapon (though the photographer did not notice him), or a photograph of the scene of occurrence of a crime. In such cases, the photographs must be proven. In such cases, if needed, it must have been shown that the camera was working properly and that the image was not tampered with since its capture.

Presumptions on Photographs and Videos

Section 119 of the Bharatiya Sakshya Adhiniyam (Section 114 of the Evidence Act) allows the Court to ‘presume the existence of any fact ….. regard being had to the common course of natural events‘.

A photograph or a video, by its very nature, speaks for itself. Therefore, the courts in India can commence with a presumption as to the correctness of the photograph or video when its authenticity is prima facie established. In such an event, the onus shifts to the opposite party to rebut that presumption by placing material on record sufficient to dislodge the presumption.

Invoking this general presumption, the courts in India have consistently held –

  • ‘a mere bald denial of the contents of a video recording is insufficient‘; but, ‘there should be material to show that the video clippings are doctored or morphed’.

Photographs – In many cases a Corroborative Piece; It Can be the Best Evidence also

A photograph, being a document, ordinarily requires proof through a proper witness to establish its authenticity and relevance. However, it need not invariably be proved by examining the photographer, and may be proved through any competent witness capable of speaking to the facts depicted or the circumstances of its production. Once duly admitted, a photograph may constitute primary or substantive evidence, though in many cases it is used to corroborate other evidence.

In Tomaso Bruno v. State of Uttar Pradesh, (2015) 7 SCC 178, it is held that CCTV footage can be a ‘Best Evidence‘. The court said it as under:

  • “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.”

In short, a photograph or video, once duly admitted and properly proved, constitutes substantive evidence. Though in many cases it is relied upon as corroborative evidence, in an appropriate case it may, by itself, establish the fact in issue, independently and without the aid of other evidence.

Silent Witnesses Theory – Photograph /Video ‘Speaks for Itself‘

In State Represented by the Inspector of Police, Chennai v. V. P.  Pandi @ Attack Pandi, 2019 -1 LW(Cri) 421; 2019-1 LW(Cri) 481; 2019-2 MLJ(Cri) 129, the Madras High Court (P.N. Prakash, B. Pugalendhi) explained the “silent witness” theory, stating as under:

  • “115. We may also incidentally notice the developments in the law on video and photographic evidence in the West where the “silent witness” theory is deployed to admit video and photographic evidence. The theory proceeds on the footing that photographic and video evidence are “silent witnesses” which speak for themselves. They are substantive evidence of what they portray.”

The following two foreign decisions were specifically dealt with by the High Court:

  • (a) State of Nevada v. Archanian, [145 P 3d 1008 (2006)]: The Supreme Court of Nevada admitted the video evidence under the silent witness theory and held 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.”
  • (b) Her Majesty v. Jaiyhi He, [2017 ONCJ 790,]: The Ontario Court of Justice in Canada opined to the following effect:
    • The party seeking to tender a video in evidence must show two things to meet the threshold test of admissibility: (i) The video is relevant, showing the crime scene or other evidence linked to the issues at trial; and (ii) the video is authentic — that it accurately represents the events depicted.

Circumstantial Evidence be Used – No Particular Evidence or Class of Witness

In State Represented by the Inspector of Police, Chennai v. V. P.  Pandi @ Attack Pandi, 2019 -1 LW(Cri) 421; 2019-1 LW(Cri) 481; 2019-2 MLJ(Cri) 129, the Madras High Court said further as under:

  • “Referring to the Alberta Court of Appeal’s decision in R. v. Bulldog (2015 ABCA 251), the Ontario Court (in Her Majesty v. Jaiyhi He, 2017 ONCJ 790), said: “Circumstantial evidence may be used to authenticate real evidence – Bulldog at para 35. There is no particular evidence or class of witness that must be called to authenticate a video provided the whole of the evidence establishes that the video in question is substantially accurate and a fair depiction.”

“Can a Digital Video only be Authenticated by an Eyewitness”?

This was the second question raised in R. v. Bulldog (2015 ABCA 251). The question was whether a digital video can only be authenticated by an eyewitness or whether a member of any class of witnesses can provide evidence of authentication.

The answer of Alberta Court of Appeal (in R. v. Bulldog) was “No.”

It held as under:

  • “[20] [The appellants argue] that Nikolovski sets two preconditions to the admissibility of video recordings – specifically, proof that the video accurately depicts the facts, and that it has not been altered or changed. The appellants refer to the process of establishing these facts as ‘authentication,’ and we are content to adopt that term, since ‘authentication’ simply refers to the process of convincing the court that certain tangible evidence matches the claims made about it . . .
  • [21] The second proposition, which relies on R v Doughty, 2009 ABPC 8 (CanLII) at para 37 (citing Elliot Goldstein, Visual Evidence, A Practitioner’s Manual, Vol 1 (Thomson-Carswell, 2007) at 2-19 to 2-20), is that there is an exclusive list of classes of witnesses who can authenticate a video in a manner that meets these two putative Nikolovski preconditions: (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.
  • [22] Based on these two propositions, the appellants argue that the Crown’s evidence in this case could not authenticate the DVD. They submit (but do not really argue) that the authenticating witness was Reddick, who did not create the DVD tendered, did not know who created it, did not know whether the person who did create it used or might have used options which changed the content of the source video footage, was not an expert in the software and in the format changes entailed in copying the DVD and, accordingly, could not give the expert evidence of the effect of format changes which the appellants say is necessary to authenticate the DVD: R v Penney, 2002 NFCA 15 (CanLII), 2002 NFCA 15 at para 24, 210 Nfld& PEIR 209.
  • [23]           In short, the appellants say that, absent evidence from a particular class of qualified person verifying that the video recording had not been altered or changed in the course of undergoing various format changes, the DVD was inadmissible.
  • . . . . . .
  • [34] It will be recalled that the appellants say that, because Reddick does not fit into any of the four categories identified by Goldstein
  • [at para. 21 of the judgment and consisting of:
    • (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.]
  • as persons capable of authenticating video evidence, it follows that the Crown could not authenticate the video recording. We assume that the appellants also maintain that none of the other Crown witnesses would fit into those categories, although we observe that Hodge would have fallen into Goldstein’s second category as an eyewitness, had he viewed the video in court and testified that it accurately depicted what he saw. In any event, these categories are not exhaustive in the sense that, if the Crown does not call one of these four kinds of witnesses, the video recording is inadmissible. Rather, other kinds of evidence or different combinations of witnesses may be employed to satisfy a court of the video recording’s substantial accuracy and fairness.”

Person Sees a Display (in Court) may Give Evidence (as to the Place and Persons)

In Taylor v. Chief Constable of Cheshire, (1986) 1 WLR 1479 : (1987) 1 All ER 225: 84 Cr App R 191 (DC), it was held that a video recording of an incident which is in issue is admissible; and a witness who sees an incident on a display or a recording may give evidence (as to the place and persons) of what he sees in the display or a recording.

Evidence can also be given by one who can identify the place, though not acquainted with the persons seen in the photo (or the persons and not the place).

Halsbury’s Laws of England

In Halsbury’s Laws of England [Fourth Edition, 2006 reissue, Vol. 11(3) Criminal Law, Evidence and Procedure], dealing with Chapter – “Documentary and Real Evidence”, it is stated 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, (1966) 1 QB 688 : 49 Cr App Rep 230 (CCA).
  • For the considerations relevant to the determination of admissibility see R. v. Stevenson, (1971) 1 WLR 1 : (1971) 1 All ER 678 : 55 Cr App R 171; R. v. Robson, (1972) 1 WLR 651 : (1972) 2 All ER 699 : 56 Cr App R 450. See also R. v. Senat, (1968) 52 Cr App R 282 (CA); R. v. Bailey, (1993) 3 All ER 513 : 97 Cr App R 365 (CA).
  • Where a video recording of an incident becomes available after the witness has made a statement, the witness may view the video and, if necessary, amend his statement so long as the procedure adopted is fair and the witness does not rehearse his evidence : R. v. Roberts, 1998 Crim LR 682 : 162 JP 691 (CA).] .
  • However, that evidence should always be regarded with caution and assessed in the light of all the circumstances [R. v. Maqsud Ali, (1966) 1 QB 688 : 49 Cr App Rep 230 (CCA).
  • As to the use of tape recordings and transcripts see R. v. Rampling, 1987 Crim LR 823 (CA); and see also Butera v. Director of Public Prosecutions, (1986) 76 ALR 45 (Aust HC).
  • As to the tape recording of police interviews see para 971 et seq ante; and as to the exclusion of a tape recording under the Police and Criminal Evidence Act, 1984, Section 78 (as amended) (see para 1365 ante) as unfair evidence see R. v. H, 1987 Crim LR 4 (CC), Cf R. v. Jelen, (1989) 90 Cr App R 456 (CA) (tape recording admitted despite element of entrapment).]
  • Audio and video recordings – A video recording of an incident which is in issue is admissible [Taylor v. Chief Constable of Cheshire [1987] 1 All ER 225, 84 Cr.App. Rep 191, DC.].
  • There is no difference in terms of admissibility between a direct view of an incident and a view of it on a visual display unit of a camera or on a recording of what the camera has filmed. A witness who sees an incident on a display or a recording may give evidence of what he saw in the same way as a witness who had a direct view [Taylor v. Chief Constable of Cheshire [1987] 1 All ER 225, 84 Cr. App. Rep 191, DC.
  • As to the admissibility of video recordings as evidence identifying the defendant, see also R. v. Fowden and White [1982] Crim. LR 588, CA; R. v. Grimer [1982] Crim. LR 674, CA; R. v. Blenkinsop [1995] 1 Cr.App. Rep 7, CA.
  • A recording showing a road on which an incident had occurred was admitted in R. v. Thomas [1986] Crim. LR 682.
  • As to the identification of the defendant by still photographs taken by an automatic security camera, see R. v. Dodson, R. v. Williams [1984] 1 WLR 971, 79 Cr. App. Rep 220, CA; as to identification generally see para 1455 ante; and as to the admissibility of a copy of a video recording of an incident see Kajala v. Noble (1982) 75 Cr.App. Rep 149, CA..”
  • (Quoted in: P. Gopalakrishnan v. State of Kerala, AIR 2020 SC 1; Sri. Prajwal Revanna vs State By Karnataka, 2025:KHC:1747)

Witness Acquainted with a Person, Scene, etc. can Testify Photo and Video

Indian courts have accepted the “pictorial testimony” approach, under which a photograph may be authenticated by a witness having personal knowledge of the person, place, object, or scene depicted therein and who can testify that the photograph is a fair and accurate representation of what he observed.

Examination of the photographer is not an indispensable requirement in every case. The principle finds support in

  • Santhosh Madhavan @ Swami Amritha Chaithanya v. State of Kerala, 2014 Ker HC 31
  • P. Gopalkrishnan @ Dileep v. State of Kerala, AIR 2020 SC 1; 2020-9 SCC 161
  • Shoor Singh v. State of Uttarakhand, AIR 2024 SC 4551.

Should Photographer Necessarily be Examined?

No. In Shoor Singh v. State of Uttarakhand, AIR 2024 SC 4551, the question came for consideration included the following –

  • “The photograph (Ex. Kha-1) was not admissible in evidence as neither the person who took the photograph nor its negative was produced in evidence.”

The Court considered it and accepted the photograph observing as under:

  • “A photograph of the deceased (Ex. Kha 1), regarding which no dispute was raised by the prosecution witnesses, showing her alone with a male stranger, had surfaced. In the statement under Section 313 CrPC, a stand was taken that this photograph had shamed her. ….”

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

The appellants in R. v. Bulldog (Alberta Court of Appeal) challenged the authenticity and admissibility of the DVD. They relied on R. v. Nikolovski, [1996] 3 S.C.R. 1197.    The Court considered whether the Crown was bound to prove that the video recording had not been altered or changed. The appellants argued that R. v. Nikolovski mandated a two-fold test (i) requiring proof that the video accurately depicted the facts and (ii) proof that it had not been altered or changed. The Alberta Court of Appeal disagreed. It held (paragraphs 26 to 33):

  • 1. As long as other evidence satisfied the accuracy, no evidence regarding the presence or absence of alteration was 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 as long as the Crown had proven that the DVD was a substantially accurate and fair representation of what it purported to show.

The Alberta Court of Appeal said it as under:         

  • “[26]  . . . the appellants say that Nikolovski creates a two-part test which must be met before admitting video evidence, requiring the Crown to show not only that the video recording accurately depicts the facts, but also that it has not been altered or changed. This is incorrect.
  • [27]  It must first be borne in mind that Nikolovski was not a case about the admissibility of a video recording (which had been conceded), but rather about identity (specifically, whether a trier of fact could identify the accused beyond a reasonable doubt as the offender by relying solely upon that video recording). The critical passage from Nikolovski, para 28 upon which the appellants rely, is found under a heading discussing ‘Use That Can Be Made of Photographs or Videotapes,’ which clearly presupposes admissibility.
  • [28]      Further, the passage itself fails to support the appellants’ contention. It reads as follows: 
  • Once it is established that a videotape has not been altered or changed, and that it depicts the scene of a crime, then it becomes admissible and relevant evidence.
  • This statement does not state a necessary condition for admission, but rather a sufficient condition. It does not, even implicitly, preclude admission of video recordings under other circumstances. Indeed, where an alteration enhances a video recording, its accuracy might well be served by such an alteration: R v Jamieson, [2004] OTC 369 at paras 36-37, [2004] OJ No 1780 (QL) (SCJ).
  • [29] We do agree with the appellants, however, that in some cases Nikolovski has been taken as requiring the tendering party to show an absence of alteration or change: Penney; R v.MacNeil, 2008 QCCS 915 (CanLII) at para 11, [2008] QJ No 1784 (QL); R v Chevannes, 2011 ONCJ 754 (CanLII) at para 16, [2011] OJ No 5937; R v Ellard, 2004 BCSC 780 (CanLII) at para 11, [2004] BCJ No 2914. In Penney, for example, the Newfoundland and Labrador Court of Appeal (at para 17) cited Nikolovski as authority for the statement that ‘[e]vidence establishing that the video has not been altered or changed is a precondition to its admission as evidence.’ With respect, we do not read Nikolovski as stating so broad a proposition, and we see no principled reason to support it. Indeed, taken to its extreme, it could render almost any DVD left unattended next to a computer inadmissible . . .
  • [30]  Other courts have taken a different view of Nikolovski, to the effect that a video recording may be admitted into evidence, even if it has been altered in some way, so long as it is shown to be a substantially accurate depiction of the event in question. In R v Brown, [1999] OTC 213, [1999] OJ No 4865 (CJ), where the Crown sought to tender at trial a security surveillance videotape and enhanced copies, the court stated (at para 3) that, when a videotape has been altered, the test for admissibility is: one of substantial accuracy . . . [T[he Crown must … prove on a balance of probabilities the substantial accuracy of the original tape and the enhancements of it to obtain the permission of the court to tender them in accordance with [Nikolovski] ….
  • [31] Similarly, in R v Crawford, 2013 BCSC 2402 (CanLII) at para 48, [2013] BCJ No 2879 (emphasis added), the court said that Nikolovski should be interpreted in a ‘purposive’ manner, such that a video recording’s admissibility is not precluded, even if ‘complete accuracy’ no longer subsists, so long as ‘the alteration of the recorded event is not so substantial as to be misleading’ or ‘if the image is distorted or otherwise changed in a material way.’ What matters, said the court in Crawford, is that the video recording ‘accurately and fairly presents he information that it is to convey.’ Other courts, including this Court, said much the same thing prior to Nikolovski . . .
  • [32] There is an important distinction between recordings (video or audio) and other forms of real evidence (such as a pistol or an article of clothing found at a crime scene) which supports a test of ‘substantial’ accuracy over the appellants’ preferred test of ‘not altered.’ It will be recalled that ‘authentication’ simply requires that the party tendering evidence establish (to the requisite standard of proof, which we discuss below) the claim(s) made about it. What authentication requires in any given instance therefore depends upon the claim(s) which the tendering party is making about the evidence. In the case of most real evidence, the claim is that the evidence is something – the pistol is a murder weapon, or the article of clothing is the victim’s shirt. Chain of custody, and absence of alteration will be important to establish in such cases. In the case of recordings, however, the claim will typically be not that it is something, but that it accurately represents something (a particular event). What matters with a recording, then, is not whether it was altered, but rather the degree of accuracy of its representation. So long as there is other evidence which satisfies the trier of fact of the requisite degree of accuracy, no evidence regarding the presence or absence of any change or alteration is necessary to sustain a finding of authentication.
  • [33] Put simply, the mere fact of alteration does not automatically render a video recording inadmissible. It follows that the Crown’s failure to establish that this video recording was not altered should not be fatal, so long as the Crown proves that it is a substantially accurate and fair representation of what it purports to show. All this is, of course, subject to the standard framework for admission, under which a video recording may be excluded on the basis of irrelevance (Penney), where its prejudicial effect exceeds its probative value (R v Veinot, 2011 NSCA 120 (CanLII) at paras 24-27, 311 NSR (2d) 267), or where there is reasonable doubt that the video identifying the accused is a fabrication.”

“Balance of Probabilities“

In R v Penney, (2002) 163 CCC (3d) 329, the court considered the ‘falsification of evidence’ and pointed out that the members of a jury ‘can be expected to have, if not experience with, knowledge of the possibilities for manipulating the content of photographs and videotapes’, and concluded that the ‘standard by which the trial judge is to determine the question is on the balance of probabilities’.

Bald Denials are Insufficient to Discredit the Authenticity of Video Footage

The Madras High Court, in this decision (State Represented by the Inspector of Police, Chennai v. V. P.  Pandi), also observed as under:

  • “113. It is true that the cameraman can zoom or minimize an image. It is also true that trick photography is possible. In Suo Motu taken up (PIL) WP Chief Secretary to the Government of Tamil Nadu v. The Government of Tamil Nadu and others (WP 3335 etc. of 2009) decided on 29.10.2009, a Division Bench of this Court (F.M. Ibrahim Kalifulla and R. Banumathi, JJ) held that bald denials are insufficient to discredit the authenticity of video footage. In her lead judgment, Banumathi, J (as she then was) has opined as under:
    • ‘349. That a bald denial of the contents of a videotape is not adequate to doubt its authenticity; there should be material to show that the video clippings are doctored or morphed’.
  • The Division Bench proceeded to look into the video tape as a corroborative piece of evidence and held as under:
    • ‘350. The respondents have not disputed that the video clippings filed by the petitioners relate to the occurrence. Even though video clippings filed by the petitioners do not have the running time, we have watched the videos and looked into the photos as corroborative piece of evidence’.”

In Jagjit Singh v. State of Haryana, (2006) 11 SCC 1, the conclusion of the Speaker on CDs received from TV News channels, that ‘there is no room for doubting the authenticity and accuracy of the electronic evidence produced by the petitioner’, was accepted by the Apex Court holding as under:

  • “The petitioners despite grant of opportunity had declined to watch the recorded interview. It is one thing to watch the interview, point out in what manner the recording was not genuine but instead of availing of that opportunity, the petitioners preferred to adopt the course of vague denial.”

In Umesh v. State of Karnataka, 2023-2 KarLJ 397, while dealing with a ‘trap case’, after laying down the importance of digital evidence, it is cautioned as under:

  • “Qualified and trained expert should test the samples. The report should contain the procedure adopted for testing the samples. The equipments used should be duly calibrated and updated periodically. The electronic device should be tested for editing and tampering in order to establish its genuineness and authenticity.
  • Digital evidence form be created for every memory card/chip used in the trap case containing the unique identification features of the memory chip/card used. The defence should be provided with a cloned copy or a mirror image of the electronic device.”

Distinct Evidentiary Position of a Section 63(4) Certificate

Once the Section 63(4) certificate accompanies the computer output (copy), the computer output becomes admissible in evidence, and it is not mandatory to examine the CCTV operator, or the person who snapped the photograph, for the purpose of its admission.

  • See: Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473,
  • Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1.

The Person Who Signed Section 63/65B Certificate Need Not Be Examined: Having regard to the special features of the photographs and videos (that is, visual depictions of facts), even if the Section 63(4) certificate is not that given either by the plaintiff or by the defendant, but by another, the photograph or video can be marked in evidence through the plaintiff or the defendant.

Unless the authenticity or correctness of the certificate issued under Section 63(4) is specifically disputed, oral evidence has no role to play in proving (for the purpose of marking) that the computer output is the exact copy of the (original) electronic record. Therefore, the photographer who issued the certificate under Section 63(4) need not be examined if the correctness of the certificate is not specifically disputed.

In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC, our Apex Court further affirmed as under:

  • “50. … However, in cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the concerned person, the Judge conducting the trial must summon the person/persons referred to in Section 65B(4) of the Evidence Act, and require that such certificate be given by such person/persons.”

Presumption on Computer Output (copy) Admitted under Sec. 63

A computer output (copy) of a CCTV footage or video, or of a photograph captured on a mobile phone, can be admitted in evidence in place of the original — if it is produced with a certificate under Section 63(4) of the BSA.

  • Note: Section 63(1), BSA says about admissibility of copy — “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 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.”

Proof by Certificate under Section 63(4)

In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, it is held that in view of the non-obstante clause (“Notwithstanding anything contained in this Adhiniyam”) the Section 65B Certificate is the only Mode of Proof of a computer output (copy).

Admitting a Copy in Evidence and Substantive Proof: Independent Matters

(i) Admitting a copy of a computer output (such as copy of a statement of accounts) in evidence (with a certificate under Section 63), and (ii) the formal proof (relevancy, truth, etc.) thereof at the time of trial, are two distinct and independent matters.

  • The questions as to substantive proof — whether the computer output or copy is relevant, and how it should be proved — are not determined by Section 63 of the BSA. They are to be established independently, as in the case of any other class of documents.

The burden of Impeaching the Certificate is upon the Party who Disputes it

The presumption arising under Section 63—by which a computer output is deemed to be a document—is rebuttable and does not render the contents of the electronic record conclusive.

If such a challenge on the certificate is overruled by the court, it can draw a presumption as to the genuineness and authenticity of the photographs or videos contained in the computer output (copies).

S. 63 deals with Admissibility of computer output or copy, and not Proof

The questions as to substantive proof — whether the computer output or copy is relevant, and how it should be proved — are not determined by Section 63 of the BSA. They are to be established independently, as in the case of any other class of documents.

  • However, the court can draw presumptions as to the genuineness and authenticity of such photographs or videos, as stated earlier.

Once Copy Admitted by S. 63 Certificate, Oral Evidence has No Place in Marking

Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, is an authority on the following matters –

  • (i) The certificate is meant to replace the oral evidence of the device-handler or operator.
  • (ii) Once the certificate is produced, oral evidence has no place (for the purpose of marking it).

However, the person who issued the certificate (operator) has to be examined if:

  • the authenticity or correctness of the certificate is specifically disputed;
  • allegations of fabrication, manipulation, or false certification are raised;
  • the issuer’s control over the device/system is seriously questioned; or
  • the court needs clarification to assess probative value, not admissibility.

Photograph Must Have Been Proved (In silent witness theory)

When a photograph is admitted merely to aid a witness in explaining his testimony (pictorial testimony theory), it need not be proved formally by examining the photographer or a competent person. 

As stated above, in silent witness theory cases, the photographs must be proved. No doubt, in the peculiar nature of a particular case, the examination of the photographer may not be insisted upon, and the photograph could be proved by another ‘proper’ witness. Formal proof of a photograph may not be necessary where the opposite party admits its genuineness or correctness.

Formal proof of a photograph and S. 63(4) Certificate are Distinct Matters

Formal proof (relevancy, truth, etc.) of a photograph or copy of a video and the requirement of the certificate under Section 63(4) are two distinct and independent matters.

  • Note: 1. A photograph or a copy of a video, admitted in evidence on the strength of a certificate under Section 63(4), stands on a distinct footing (in contradistinction to a statement-of-account) by reason of the statutory presumptions that the court can invoke, it being a direct visual depiction of facts.
  • 2. The certificate under Section 63(4) is accepted unless its correctness is specifically challenged. The oral evidence of the person who issued the certificate becomes relevant (for the purpose of admitting the document) only where the certificate itself is specifically and successfully challenged by the party who disputes its authenticity or correctness.
  • 3. Therefore, the court is entitled to infer that a photograph or video, once duly admitted in evidence, correctly represents the scene or object as it existed at the time of recording. It is doctrinally recognised as the ‘silent witness’ theory – the document “speaks for itself”.
  • 4. Accordingly, once a photograph or copy of a video is duly admitted in evidence, the court can act upon it (usually as a corroborative piece of evidence), on the basis of general evidence relating to the identity of the persons depicted, the place, the time, and the surrounding circumstances, without insisting upon any further primary or direct proof of the facts.
  • 5. The presumption attached to a photograph or a video admitted in evidence being one rebuttable, the opposite party can rebut it by placing appropriate evidence to show that the photograph or video does not correctly represent the scene, object, or occurrence as it existed at the relevant point of time, or that the factual position had materially changed.

Pictorial Testimony Theory: No Enacted Law; Only Judicial Exposition

The pictorial testimony theory rests on judicial exposition rather than statutory codification. It finds only indirect support, in principle, from Section 162 (Refreshing Memory), BSA. Section 162 is to be understood as one not exhaustive in its operation.

Is photograph a Secondary Evidence

A photograph is not, by its very nature, secondary evidence. Its evidentiary character depends upon the type of matter depicted. Where a photograph shows a scene, person, place, or object, it ordinarily constitutes independent evidence of what it portrays. It becomes secondary evidence only when it is relied upon as a reproduction of another document or object whose contents are sought to be proved.

Court Decisions

P. Gopalakrishnan v. State of Kerala, AIR 2020 SC 1

In P. Gopalakrishnan v. State of Kerala, AIR 2020 SC 1, it is observed that tape records of speeches (Also in: Tukaram S. Dighole v. Manikrao Shivaji Kokate, 2010-4 SCC 329; Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, (1976) 2 SCC 17 ) and audio/video cassettes (See: Burhanuddin Bukhari v. Brijmohan Ramdas Mehra, 1976-2 SCC 17) including compact disc (See also: Singh Verma v. State of Haryana, 2016-15 SCC 485) were “documents” under Section 3 of the 1872 Act, which stand on no different footing than photographs and were held admissible in evidence. It is by now well established that the electronic record produced for the inspection of the Court is documentary evidence under Section 3 of the Evidence Act (Anwar PV v. PK Basheer, 2014-10 SCC 473).

Yusaf Ali lsmail Nagri v. The State of Maharashtra, 1967- 3 S.C.R. 720

  • “The process of tape-recording offers an accurate method of storing and later reproducing sounds. The imprint on the magnetic tape is the direct effect of the relevant sounds. Like a photograph of a relevant incident, a contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under s. 7 of the Indian Evidence Act.”

R.M Malkani v. State of Maharastra, AIR 1973 SC 157

In R.M Malkani v. State of Maharastra, AIR 1973 SC 157, summarised this case (Yusaf Ali lsmail Nagri) as under:

  • “In Nagree’s case (Yusaf Ali lsmail Nagri v. The State of Maharashtra, 1967- 3 S.C.R. 720) the appellant offered bribe to Sheikh a Municipal Clerk. Sheikh informed the Police. The Police laid a trap. Sheikh called Nagree at the residence. The Police kept a tape recorder concealed in another room. The tape was kept in the custody of the police inspector  Sheikh gave evidence of the talk. The tape record corroborated his testimony, as a photograph taken without the knowledge of the person photographed can become relevant and admissible so does a tape record of a conversation unnoticed by the talkers. A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under section 8 of the Evidence Act. It is res gestae. It is also comparable to a photograph of a relevant incident. The tape recorded conversation is therefore a relevant fact and is admissible under section 7 of the Evidence Act.”

After summarising Nagree’s case (Yusaf Ali lsmail Nagri v. The State of Maharashtra, 1967- 3 S.C.R. 720), the Supreme Court said as under:

  • “The Court will take care in two directions in admitting such evidence. First, the Court will find out that it is genuine and free from tampering or mutilation. Secondly, the Court may also secures scrupulous conduct and behaviour on behalf of the Police. The reason is that the Police Officer is more likely to behave properly if improperly obtained evidence is liable to be viewed with care and caution by the Judge. In every case the position of the accused, the nature of the investigation and the gravity of the offence must be judged in the light of the material facts and the Surrounding circumstances.”

K. K. Velusamy v. N. Palanisamy, 2011-11 SCC 275:

  • 7. The amended definition of “evidence” in section 3 of the Evidence Act, 1872 read with the definition of “electronic record” in section 2(t) of the Information Technology Act 2000, includes a compact disc containing an electronic record of a conversation. Section 8 of Evidence Act provides that the conduct of any party, or of any agent to any party, to any suit, in reference to such suit, or in reference to any fact in issue therein or relevant thereto, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. In R.M Malkani v. State of Maharastra, AIR 1973 SC 157, this court made it clear that electronically recorded conversation is admissible in evidence, if the conversation is relevant to the matter in issue and the voice is identified and the accuracy of the recorded conversation is proved by eliminating the possibility of erasure, addition or manipulation. This Court further held that a contemporaneous electronic recording of a relevant conversation is a relevant fact comparable to a photograph of a relevant incident and is admissible as evidence under Section 8 of the Act. There is therefore no doubt that such electronic record can be received as evidence.”

Ponnappan v. State of Kerala, ILR 1994(3) Ker 370

The Kerala High Court (KT Thomas, J.), in Ponnappan v. State of Kerala, ILR 1994(3) Ker 370, in appeal, confirmed the conviction holding that Chacko was the person who was killed. It was on a photo identification – Pictorial Testimony – so far as the witness was concerned.

The Court held as under:

  • “PW I identified the person in M.O.9 photo as the person who was killed. There is no doubt that M.O.9 is the photograph of Chacko, the film representative. It was contended that since P. W.I himself admitted that he had not observed the features or facial peculiarities of the person when he was inside the car, the identification made by him with the help of the photo is not of any use. We are of the view that even without noticing any translatable mark or feature of a person it would be possible to identify him later.”

Here, the photo had been proved through competent witnesses – under the Silent Witness Theory – though the photographer was not examined.

Anu C.R. v. State of Kerala: A Witness may be Confronted with a Photograph During Cross-Examination Without its Prior Production.

The Kerala High Court, in Anu C.R. v. State of Kerala, 2025(7) KHC 150; 2025(6) KLT (SN) 2 (G. Girish, J.), allowed the defence counsel to confront a prosecution witness with a photograph of the alleged scene of occurrence and inquire whether the photograph represented the interior of the building concerned.

The Facts and Legal Principles Assume Significance

At the outset, the following facts and legal principles assume significance:

  1. The court merely permitted the defence counsel to confront a prosecution witness, during cross-examination, with a photograph of the alleged place of occurrence.
  2. If the photograph does not qualify as an “electronic record” or a “computer output”, the provisions contained in Sections 61 to 63 of the Bharatiya Sakshya Adhiniyam, 2023, have no application. In any case, the Court was not called upon to consider the applicability of Sections 61 to 63 of the BSA, 2023.
  3. If the photograph is used solely for the purpose of confronting a witness during cross-examination, the mere fact that the witness admits its correctness does not render it liable to be marked as an exhibit. By analogy to the principle underlying Section 148, BSA (Section 145, Evidence Act), material employed only for confrontation does not become substantive evidence merely because the witness accepts its correctness.
  4. However, the fact that a photograph is capable of being used merely for confronting a witness does not preclude its admission in evidence. Where the witness admits that the photograph correctly depicts the person, place or object portrayed therein, the court may admit and mark the photograph as an exhibit on the basis of such admission, particularly if it is prepared to draw the presumption contemplated under Section 119 of the BSA.
  5. The Bharatiya Sakshya Adhiniyam, 2023, like the Evidence Act, 1872, contains no express provision dealing with the use of photographs for confronting a witness during cross-examination. The statutory scheme principally addresses cross-examination concerning previous statements and matters in writing (Section 147 and 148 of the BSA), leaving the admissibility and use of photographs to be governed by general principles of evidence and judicial discretion.

The Kerala High Court, in Anu C.R. v. State of Kerala, held as under:

  • “i)​ The learned Additional Sessions Judge is directed to permit the counsel for the accused to confront PW2 by showing the photograph of the interior of the building which he had leased out to the accused (Annexure-A3) and to ask whether it is the photograph of the interior portion of the building which he had leased out to the accused.
  • ii)​ If the witness gives an affirmative answer to the above question, the defence counsel shall be permitted to ask further questions related to it, with due regard to its relevancy, and to get the said document marked as an exhibit on the part of the accused, subject to production of that document immediately thereafter, following the formalities prescribed in that regard.
  • iii)​ If the witness denied the above suggestion, or says that he is not able to say anything on the basis of the above document, the counsel for the accused need not be permitted to proceed with further questions on that document.
  • iv)​ The learned Additional Sessions Judge is directed to permit the counsel for the defence to confront PW2 by showing the site plan prepared by the Village Officer and ask whether the aforesaid document was the plan of the building which he had rented out to the accused.
  • v)​ If the witness gives an affirmative answer to the above question, then the defence counsel should be permitted to ask further questions on that site plan, with due regard to its relevancy, and also to admit the document as an exhibit of the prosecution, marked at the instance of the accused.
  • vi)​ If the witness denies the suggestion, or says that he is not able to state anything about it, then the defence counsel need not be permitted to ask further questions on that document to that witness.”

Objections Raised Against Marking of Photograph and Site Plan

The objections raised, in Anu C.R. v. State of Kerala, against the marking of the photograph and site plan were the following:

  • “The aforesaid photograph is not pertaining to the witness, or made by the witness, and it is not falling within the purview of Section 145 of the Evidence Act”.
  • “The site plan prepared by the Village Officer, which formed part of the prosecution records, was also refused by the learned Additional Sessions Judge stating the reason that the aforesaid site plan is not prepared by that witness.”

Law Relied on by HC to say that Trial/Sessions Judge Went Wrong

The Three Judge Bench of the Supreme Court in Anees v. State Government of NCT (DY Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.), AIR 2024 SC 2297; 2024-6 SCR 164; 2024 KHC 6256, held as under:

  • “The object of the cross-examination is to impeach the accuracy, credibility and general value of the evidence given in chief; to sift the facts already stated by the witness; to detect and expose the discrepancy or to elicit the suppressed facts which will support the case of the cross-examining party.”

Legal Principles Lend Support to the Kerala High Court View

The following legal principles lend support to the view taken by the Kerala High Court:

1. Section 148, BSA

  • Section 148 of the BSA (Section 145, Evidence Act) enables to contradict witnesses with his previous statements:
    • “Without such writing being shown to him”.
  • Here, the materials are “shown” and asked.

2. Section 141, BSA

  • Section 141(2) and (3) of the BSA [Section 136 (2) and (3), Evidence Act] reads as under:
    • “(2) If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking.
    • (3) If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.”

(If the court permitted the cross-examiner to proceed, without raising objection by the court, it can be presumed that the party has ‘undertaken’ to give proof of such fact, “and the Court is satisfied with such undertaking”.)

Summary and Conclusion

The use of a photograph during cross-examination does not invariably amount to proving the photograph in evidence. Nor does it necessarily involve the doctrine of refreshing memory embodied in Section 162 of the BSA. A photograph may be shown to a witness merely for the purpose of identification, clarification, testing the accuracy of his testimony, or confronting him with a particular factual situation. In such cases, the photograph functions only as an aid in the examination of the witness and not as substantive evidence.

However, where the witness admits that the photograph correctly depicts the person, place or object portrayed therein, and the Court is prepared to draw the presumption contemplated under Section 119, BSA, the photograph may be admitted in evidence and marked as an exhibit on the basis of such admission.

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,

The Madras High Court held as under:

  • “115. We may also incidentally notice the developments in the law on video and photographic evidence in the West where the “silent witness” theory is deployed to admit video and photographic evidence. The theory proceeds on the footing that photographic and video evidence are “silent witnesses” which speak for themselves. They are substantive evidence of what they portray. Two examples may be noticed.
  • (a) State of Nevada v. Archanian, [145 P 3d 1008 (2006)] was a murder case before the Supreme Court of Nevada, where, a key piece of evidence was the digital video recorded by the store’s surveillance system. The accused attacked the authenticity of the video footage on the ground that the VHS tape given to the police video technician was not the original and that the technician had isolated the relevant camera view and highlighted certain portions of the video. It was this composite videotape that was shown to the jury. In the trial, the prosecution acknowledged that they had no way of knowing whether the images were accurately transferred from the original digital recording to the VHS version but testified that they appeared to be the same. The Supreme Court of Nevada admitted the video evidence under the silent witness theory and held 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.”
  • (b) More recently, in Her Majesty v. Jaiyhi He, [2017 ONCJ 790] Kenkel, J. of the Ontario Court of Justice in Canada formulated a test, very similar to our own and that has been alluded to by us in para 105 (supra). The Court opined:
    • “The party seeking to tender a video in evidence must show two things to meet the threshold test of admissibility:
    • They must prove the video is relevant, showing the crime scene or other evidence linked to the issues at trial.
    • They must prove the video is authentic – that it accurately represents the events depicted.”
  • Referring to the Alberta Court of Appeal’s decision in R. v. Bulldog (2015 ABCA 251), the Ontario Court said:
    • “Circumstantial evidence may be used to authenticate real evidence – Bulldog at para 35. There is no particular evidence or class of witness that must be called to authenticate a video provided the whole of the evidence establishes that the video in question is substantially accurate and a fair depiction.”
  • The Ontario Court has held that in a given case, whether the two part test (supra) is satisfied or not, would have to be decided on a balance of probabilities. The Court found that the testimony of the police officer was in sync with the narrative contained in the video, thereby establishing its authenticity on a balance of probabilities. The Ontario Court further observed:
    • “7. While the circumstantial evidence is sufficient, in this case, there is further direct evidence that independently shows the video is accurate. The surveillance video is in sync with all of the other evidence at trial. The officers’ testimony as to the scene when they arrived, the times the various officers arrived, their actions, the position of the accused, the departure of other parties, the arrival of the ambulance is all consistent with this video. The two police in-car videos are also consistent with this surveillance video.”
  • 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.”

A Photograph is Proved only if the Photographer is Examined

The Madras High Court (R. Banumathi, J.), in P. Rama Srinivasa Rao v. Dr. N. Ragavan, (2006)3 MLJ 625, observed as under:

  • “It is immaterial by what means or upon what substance the letters, figures or marks are formed, or whether the evidence is intended for, or may be used in a court of justice, or not.”
  • (i) A writing is a document.

    (ii) Words printed, lithographed or photographed are documents.

    (iii) A map or plan is a document.

    (iv) An inscription on a metal plate or stone is a document.

    (v) A caricature is a document.

    (vi) An electronic record on emails, server logs, documents on computers, laptop or smartphone, messages, websites, locational evidence and voice mail messages stored on digital devices are documents.”

End Notes

Section 162 of the BSA reads as under:

  • “It is immaterial by what means or upon what substance the letters, figures or marks are formed, or whether the evidence is intended for, or may be used in a court of justice, or not.”
  • (i) A writing is a document.

    (ii) Words printed, lithographed or photographed are documents.

    (iii) A map or plan is a document.

    (iv) An inscription on a metal plate or stone is a document.

    (v) A caricature is a document.

    (vi) An electronic record on emails, server logs, documents on computers, laptop or smartphone, messages, websites, locational evidence and voice mail messages stored on digital devices are documents.”

Definition of Evidence

According to the Section 2(1)(e) of the Bh. Sak. Act –

  • “It is immaterial by what means or upon what substance the letters, figures or marks are formed, or whether the evidence is intended for, or may be used in a court of justice, or not.”

Connected Articles:

  • “It is immaterial by what means or upon what substance the letters, figures or marks are formed, or whether the evidence is intended for, or may be used in a court of justice, or not.”
  • (i) A writing is a document.

    (ii) Words printed, lithographed or photographed are documents.

    (iii) A map or plan is a document.

    (iv) An inscription on a metal plate or stone is a document.

    (v) A caricature is a document.

    (vi) An electronic record on emails, server logs, documents on computers, laptop or smartphone, messages, websites, locational evidence and voice mail messages stored on digital devices are documents.”
  • Pictorial Testimony Theory and Silent Witnesses Theory in Law of Evidence

Definition of document

Section 2(1)(d) of the Bh. Sak. Act defines ‘document’ as under:

  • “It is immaterial by what means or upon what substance the letters, figures or marks are formed, or whether the evidence is intended for, or may be used in a court of justice, or not.”
  • (i) A writing is a document.

    (ii) Words printed, lithographed or photographed are documents.

    (iii) A map or plan is a document.

    (iv) An inscription on a metal plate or stone is a document.

    (v) A caricature is a document.

    (vi) An electronic record on emails, server logs, documents on computers, laptop or smartphone, messages, websites, locational evidence and voice mail messages stored on digital devices are documents.”

‘Document’ takes in photographs of words as could be seen from the illustration.

By virtue of Section 65B of the Indian Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (computer output) shall be ‘deemed to be also a document’.

Besides the Evidence Act, the term ‘document’ has been defined in the General Clauses Act, 1897, and the Indian Penal Code, 1860.  

Section 3(18), General Clauses Act defines document as under:

  • “It is immaterial by what means or upon what substance the letters, figures or marks are formed, or whether the evidence is intended for, or may be used in a court of justice, or not.”

Section 29, Indian Penal Code explains that the word document denotes any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of those means, intended to be used, or which may be used, as evidence of that matter.

In Explanation 1, it is stated:

  • “It is immaterial by what means or upon what substance the letters, figures or marks are formed, or whether the evidence is intended for, or may be used in a court of justice, or not.”

Going by the definitions, ‘document ‘ includes not only all materials or substances upon which thoughts of a man are represented by writing or any other species of conventional mark or symbol, but also records of information of some sort (Santhosh Madhavan @ Swami Amritha Chaithanya v. State, 2014 KerHC 31).

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If a Document is Per Se Illegal, or Void Ab Initio, it Need Not be Set Aside

Saji Koduvath, Advocate, Kottayam.

Abstract

  • If a document is per se invalid, it can be set aside by the Court.
  • In certain cases, if a document is per se invalid, it need not be set aside; the court can proceed, taking notice of its illegality, without setting it aside.

“Void” has several facets.

  • ‘Void’ nature has several facets. No declaration needed if a document is void. The court can proceed by ignoring the deed.
  • One type of void acts, those which are wholly without jurisdiction, ab initio void and for avoiding the same no declaration is necessary,
  • The other type of void act (e.g., may be transaction against a minor without being represented by a next friend) is a good transaction against the whole world except the minor. If he decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate proceeding the transaction becomes void from the very beginning.
  • Another type of void act may be which is not a nullity but for avoiding the same a declaration has to be made.

Transfer Per Se Invalid or Ab-initio Void, Need Not Set Aside

The general principle is – if a document is per se invalid, it can be set aside by the Court. In certain cases, if a document is per se invalid, it need not be set aside; the court can proceed, taking notice of its illegality, without setting it aside.

In Madhegowda v. Ankegowda, (2002) 1 SCC 178, it is held by our Apex Court as under:

  • “25………Undoubtedly Smt Madamma, sister of the minor, is not a “guardian” as defined in Section 4(b) of the Act (Hindu Minority and Guardianship Act, 1956). Therefore, she can only be taken to be a “de facto guardian” or more appropriately “de facto manager”. To a transfer in such a case Section 11 of the Act squarely applies. Therefore, there is little scope for doubt that the transfer of the minor’s interest by a de facto guardian/manager having been made in violation of the express bar provided under the section is per se invalid. The existence or otherwise of legal necessity is not relevant in the case of such invalid transfer. A transferee of such an alienation does not acquire any interest in the property. Such an invalid transaction is not required to be set aside by filing a suit or judicial proceeding. The minor, on attaining majority, can repudiate the transfer in any manner as and when occasion for it arises. After attaining majority if he/she transfers his/her interest in the property in a lawful manner asserting his/her title to the same that is sufficient to show that the minor has repudiated the transfer made by the de facto guardian/manager.”

In Chelathukandy Meenakshi Amma v. Parappurath Unni Nair, 2017-2 KLJ 247; 2017-3 KLT(SN) 47, held as under:

  • “When a document is per se illegal, in the sense that it is void ab initio, a party need not seek for the cancellation of such a document. Suppose a person executes a sale deed in respect of a property on which he has no right or title and especially when title belongs to other person, the vendee will not get anything. At the same time, it cannot be said that the true title holder of the property should go for the cancellation of such a document. In such case, the document is void ab initio and, therefore, such a document is liable to be ignored, since it will not cause any cloud on title of the true title holder.”

In this decision (Chelathukandy Meenakshi Amma v. Parappurath Unni Nair, 2017-2 KLJ 247; 2017-3 KLT(SN) 47) it is pointed out as under:

  • “39. In Sarojini vs. Ratnamma, 2015 (1) KLT 602, a learned Single Judge of this Court has held that if a document is void, it is not at all necessary for the aggrieved person to get a declaration that it is void. But, if it is only voidable, it has to be set aside.
  • 40. The very same dictum was laid down by another learned Single Judge of this Court in Gomathy vs. Kesavan Neelakantan, 2013 (3) KLT SN 43 (Case No. 47).”

Also read:

•    Void, Voidable & Illegal Actions and Sham Transactions
•    Fraudulent or Void Transaction: Is ‘Declaration’ Required?
•  Cancellation, Avoidance or Declaration of a Void or Voidable Deed
•    All Illegal Agreements are Void; but All Void Agreements are Not Illegal
•    Cancellation of Sale Deeds and Settlement Deeds & Powers of Sub-Registrar in Cancelling Deeds
•    Can the True Owner Seek Cancellation of a Deed, Executed by a Stranger to the Property
•    Did the Supreme Court Depart From its Earlier Position in Hussain Ahmed Choudhury v. Habibur Rahman?
•    If a Document is Per Se Illegal, or Void Ab Initio, it Need Not be Set Aside

If Voidable, to be Set Aside

In Amirtham Kudumbah v. Sarnam Kudumbah, (1991) 3 SCC 20, it is held as under:

  • “8. .. The property was transferred by him without obtaining the previous permission of the Court and the transfer was not for the benefit of the minor. Such a sale by the minor’s father who is his natural guardian is, unlike in the case of transfer by a de facto guardian (Section 11), not a void sale, but only a voidable sale. Such a sale until set aside is sufficiently effective to pass title, but being a voidable sale, what the buyer has obtained is a defeasible title which is liable to be set aside at the instance of the person entitled to impeach it. Section 8(3) of the Guardianship Act says: “Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him.”(emphasis supplied)

In Vishwambhar v. Laxminarayan, (2001) 6 SCC 163, Vishwambhai v. Laxminarayan, (2001) 6 SCC 163, and Nangali Amma Bhavani Amma v. Gopalkrishnan Nair, (2004) 8 SCC 785, also, the challenge was made to alienation of minor’s property without Court’s sanction and without legal necessity. It was held that the alienation by natural guardian was voidable.

No declaration Needed if a Document is Void

In Sarojini v. Ratnamma, 2015 (1) KLT 602, and in Gomathy v. Kesavan Neelakantan, 2013 (3) KLT SN 43, it is held that if a document is void, it is not at all necessary for the aggrieved person to get a declaration that it is void. But, if it is only voidable, it has to be set aside.

In Laxmanan v. Padmini, (2009) 1 SCC 354, wherein our Apex Court had considered a deed of Will and a Gift allegedly executed by the very same person on the very same day. In that particular case also, it was a simple suit for partition, even when the said two documents were propounded by the opponent. Even though such contentions were taken in the written statement, regarding the existence of a Will as well as a gift deed, the plaint was not amended and any other reliefs were not incorporated. The propounder of the Will failed to dispel the suspicious circumstances existed in the execution of the Will. Same was the case with the gift deed also. Both the said documents were registered documents. Even then, the Apex court found that the suit for partition, disregarding and ignoring the said two documents, was maintainable, and the decree was granted.

‘Void” has several facets; If ab initio Void, No declaration Needed

Dhurandhar Prasad Singh v. Jai Prakash University, (2001) 6 SCC 534, laid down the distinction between Void and Voidable. It reads as under:

  • “22. Thus the expressions “void and voidable” have been the subject-matter of 20 consideration on innumerable occasions by courts. The expression “void” has several facets. One type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same no declaration is necessary, law does not take any notice of the same and it can be disregarded in collateral proceeding or otherwise. The other type of void act, e.g., may be transaction against a minor without being represented by a next friend. Such a transaction is a good transaction against the whole world. So far as the minor is concerned, if he decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate proceeding the transaction becomes void from the very beginning. Another type of void act may be which is not a nullity but for avoiding the same a declaration has to be made. Voidable act is that which is a good act unless avoided, e.g., if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated, it is voidable as the apparent state of affairs is the real state of affairs and a party who alleges otherwise is obliged to prove it. If it is proved that the document is forged and fabricated and a declaration to that effect is given, a transaction becomes void from the very beginning. There may be a voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and not any day prior to it. In cases where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable.”

Document Void Ab Initio – Need Not Be Set Aside, Neither Should There Be A Prayer

In Prem Singh v. Birbal, AIR 2006 SC 3608, the Supreme Court has held as under:

  • “16. When a document is valid, no question arises of its cancellation. When a document is void ab initio, a decree for setting aside the same would not be necessary as the same is non-est in the eye of law, as it would be a nullity.”

 In Pragnya Rout v. Hemaprava Ray AIR 2006 Ori. 21, it was held as under:

  • “22. Law is well settled that a decree and/or a registered document which is otherwise ab initio void need not be set aside. Such decree does not strip the right of a party who is the real owner and was not a signatory to the document in question or a party to the suit…. If the deed is void at the threshold, no steps need be taken to set it aside. The vendor may not have title to convey, and in such a case the title deed conveys no title and can be ignored as not worth the paper written on. (see: 1992-2 OLR 362, Sarbeswar v. Commissioner, Consolidation).” (Quoted in: Gulam Mustafa v. Md.  Yusuf Ansari, 2018-3 JBCJ 606; 2019-1 JCR 83 (Jhk).

In Natarajan v. M.  Ravi, 2019-4 CTC 543; 2019-2 LW 673 (Mad), the High Court found that the release deed being a fraudulent document, ‘it is a void document’- void ab initio, which need not have been be set aside and neither should there be a prayer to set aside the document. The Court said it as under:

  • “53. I hold that the release deed being a fraudulent document cannot be upheld by this Court. It is a void document. Its basis is not free consent. The basis is an agreement entered to defeat the rights of the plaintiffs and to grab the property. Consequently, I hold that the doubt being void ab initio, need not be set aside neither should there be a prayer to set aside the document. It is a non-est document in law. It is void. It is a null document. It does not give any right to the releasee. The point is answered accordingly.”

Babulal Tiwari v. Jabbar Singh, 2018-1 MPWN 41, also it is held that the law is well settled that a registered document which is otherwise void ab initio need not be set aside. Such deeds do not strip the right of the party who is the real owner.

In Kaka Hajee Md. Ishaque Sahib v. Kaka Md. Saddiq Sahib, (1970) 1 MLJ 207, it has been held as under:

  • “Normally a transaction will bind a person if he or persons under whom he derives title are eo nomine parties to the same, and must be set aside before any relief is claimed thereunder. This, however, is subject to two important, exceptions : (1) Where the transaction is only a sham and nominal one, not intended to be given effect to; and (2) Where the transaction is void in law. It necessarily follows that (1) transactions to which a person or persons under whom the said persons derive title are not eo nomine parties; (2) transactions which are challenged as sham and nominal and (3) transactions which are void ab initio are not legally binding in character need not be cancelled and set aside, before any claim is made thereunder. …”

A voidable transaction, Declaration Not Essential: Can be repudiated by conduct

  • Hari Ram v. State of Rajasthan & Ors. (Neutral Citation: 2026 INSC 350)
  • K.S. Shivappa v. K. Neelamma, 2025 SCC OnLine SC 2149.

In Hari Ram v. State of Rajasthan (2026 INSC 350: Sanjai Kumar, Vinod Chandran, JJ.) it was held that the plaintiff need not have sought a declaration of nullity, for the following reasons:

  • The plaint only raised an apprehension of encroachment on the strength of a fabricated sale deed.
  • The defence was set up with respect to the sale deed. But, it was not produced.
  • It was not even a registered document available in the public domain.
  • The plaintiff claimed ‘khatedari’ rights based on the mutation entries in his father’s favour and the decree obtained thereat would be an effective repudiation of the document. (Relied on: K.S. Shivappa v. K. Neelamma, 2025 SCC OnLine SC 2149.)

In K.S. Shivappa v. K. Neelamma, 2025 SCC OnLine SC 2149, it was found that the repudiation of a voidable transaction need not necessarily be in a suit instituted to set it aside and could as well be, by way of an unequivocal conduct.

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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

Thummala Krishna Rao Case Misread by High Courts

Facts of Govt. of AP v. Thummala Krishna Rao:

There was an earlier suit between Osmania University and (one) Habibuddin.

University lost the case on the grounds of adverse possession and limitation (for the suit was filed after 12 years of losing possession).

Thereafter, the University requested the Government to initiate eviction proceedings. The Government initiated actions under Section 6 of the AP Land Encroachment Act, 1905.

Apex Court held—especially in light of prior judicial findings and long possession—the Government cannot resort to summary eviction. In such circumstances, the State must have sought adjudication through a regular civil suit.

Several High Courts seem to apply this decision, ignoring the fact that the Supreme Court decision applies only to cases where Government property is held by one with genuine and substantial disputes of title, and not to every case of alleged encroachment on Government land.

Saji Koduvath, Advocates, Kottayam.

Introspection

Government of Andhra Pradesh v. Thummala Krishna Rao, AIR 1982 SC 1081, 1982 (2) SCC 134, arose from a summary eviction proceeding initiated by the Government invoking Section 6 of the Andhra Pradesh Land Encroachment Act, 1905.

The facts of the case, in a nutshell, were the following:

  • (i) A suit for possession filed by Osmania University had earlier been dismissed on the ground that one Habibuddin had perfected his title by adverse possession; and (ii) thereafter, Osmania University requested the Government of Andhra Pradesh to initiate summary eviction proceedings. The Government initiated actions under Section 6 of the AP Land Encroachment Act, 1905.

The Apex Court held in those circumstances that the summary suit for eviction could not have been resorted to by the Government, and that it could have been only be by due process in a civil court action. The Apex Court pointed out – (i) University lost the earlier case on the ground that the suit was barred by limitation (filed after 12 years of losing possession -under principles of adverse possession); and (ii) that long possession of the respondents and their predecessors-in- title of these plots raised a genuine dispute.

In a subsequent decision in V. Laxminarasamma v. A. Yadaiah (S.B. Sinha, A.K. Ganguly & R.M. Lodha, JJ.), 2009-5 SCC 478, it was pointed out –

  • “The observations made therein must be held to have been made in the aforementioned factual matrix.”

Does ‘Long Possession’ Necessarily Trigger a Civil Suit by the State?

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

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

The Apex Court said it as under:

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

A three Judge Bench in State of Rajasthan v. Padmavatidevi (S.C. Agrawal, Sujata V. Manohar and S. Saghir Ahmad, JJ.), 1995 Suppl(2) SCC 290, which referred Govt. of A.P. v. Thummala Krishna Rao, (1982) 2 SCC 134, observed that the factor that mandates a civil-court-action, rather than a summary remedy, is ‘the bona fide claim‘ of the person in occupation. The Court was observed as under:

  • “6. … Dealing with similar provisions contained in Section 6 of the Andhra Pradesh Land Encroachment Act, 1945, this Court in Govt. of A.P. v. Thummala Krishna Rao (1982) 2 SCC 134 : (1982) 3 SCR 500, has laid down that the summary remedy for eviction provided by Section 6 of the said Act could be resorted to by the Government only against persons who are in unauthorised occupation of any land which is the property of the Government and if the person in occupation has a bona fide claim to litigate he could not be ejected save by the due process of law and that the summary remedy prescribed by Section 6 was not the kind of legal process which is suited to an adjudication of complicated questions of title. ….. In such a case the proper course is to have the matter adjudicated by the ordinary courts of law.”(Quoted in: Kaikhosrou (Chick) Kavasji Framji v. Union of India, AIR 2019 SC 1692; 2019 20 SCC 705)

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

Upon examining the facts of Thummala Krishna Raocase, it is evident that the concepts of ‘long possession’ and ‘adverse possession’ were considered therein in the following factual context:

  • (i) A suit for possession filed by Osmania University had earlier been dismissed on the ground that one Habibuddin had perfected his title by adverse possession.
  • (ii) Thereafter, Osmania University requested the Government of Andhra Pradesh to initiate summary eviction proceedings.

Therefore, it is clear that the Government need not have gone for a civil suit, if the following conditions were satisfied –

  • (i) the title of the disputed property unequivocally vested with the Government and
  • (ii) there had been no chance of a plausible claim of adverse possession for the private person.

Analysis of Thummala Krishna Rao Case in a Reference Matter

V. Laxminarasamma v. A. Yadaiah (S.B. Sinha, A.K. Ganguly & R.M. Lodha, JJ.), 2009-5 SCC 478, dealt with a Reference concerning the legal question — whether the adjudication of a claim based on adverse possession falls within the jurisdiction of the Special Court constituted under the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982. The Reference arose due to an apparent conflict in the decisions of two Division Benches of the Supreme Court.

S.B. Sinha, J., distinguished the Thummala Krishna Rao case, pointing out the factual situation in which it arose. They were: (i) an earlier suit for possession filed by Osmania University had been dismissed on the ground that Habibuddin had perfected his title by adverse possession, and (ii) the summary action of the Government had ensued since Osmania University requested the Government of Andhra Pradesh to initiate summary eviction proceedings.

The three Judge Bench observed as under:

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

Axioms on ‘Long Possession‘ Stand Against Presumptions Favours Govt.

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

  • 1. Presumption available in favour of the government – all lands which are not the property of any person or which are not vested in a local authority, belong to the government (R. Hanumaiah v. Secretary to Govt of Karnataka, (2010) 5 SCC 203).
  • 2. The court is duty-bound to act with greater seriousness, effectiveness, care and circumspection as it may lead to destruction of a right/title of the State to immovable property (Government of Kerala v. Joseph, AIR 2023 SC 3988).

Also Read: Title of Property: As the Government is regarded as the ‘original’ and ‘ultimate’ owner of all land, private persons to prove their title, the State need not.

Conclusion

If anybody holds the government property ‘without any bona fide claim’ or where there is ‘no genuine dispute on title‘, the decision, Government of AP v. Thummala Krishna Rao will have no application.

It is seen that several High Courts deal with Government of AP v. Thummala Krishna Rao, without noticing the distinguishing points* (laid down in V. Laxminarasamma v. A. Yadaiah – S.B. Sinha, A.K. Ganguly & R.M. Lodha, JJ., 2009-5 SCC 478), and the principles of law manifested in R. Hanumaiah v. Secretary to Govt of Karnataka, (2010) 5 SCC 203, and Government of Kerala v. Joseph, AIR 2023 SC 3988.

  • * The distinguishing points are: (i) a suit for possession filed by Osmania University had earlier been dismissed on the ground that one Habibuddin had perfected his title by adverse possession; and (ii) thereafter, Osmania University requested the Government of Andhra Pradesh to initiate summary eviction proceedings (disregarding the earlier civil court finding).
  • That the Apex Court held in those circumstances (that is, there was an earlier civil court finding, on adverse possession, in favour of Habibuddin) that the summary steps for eviction under Section 6 of the Andhra Pradesh Land Encroachment Act, 1905, could not have been resorted to by the Government, and that it could have been only by the due process in a civil court action.

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Read in this cluster (Click on the topic):

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

Title of Property: As the Government is regarded as the ‘original’ and ‘ultimate’ owner of all land, private persons to prove their title, the State need not.

Saji Koduvath, Advocate, Kottayam.

Introspection

  • Governments’ rights and powers based on the doctrine, ‘Eminent Domain‘ (arises from:  dominium eminens or ‘supreme ownership’ – Wikipedia) are accepted by all democratic jurisdictions, including the UK, US, and India.  
  • In a dispute between the State and a private individual over property ownership, the burden rests upon the private individual to affirmatively establish his title supported by valid and legally admissible documentary evidence. The State enjoys a presumption of ownership. It becomes even stronger (1) when certain factors are present—such as the land’s proximity to forest areas, coastal zones, or other ecologically sensitive locations—and (2) when foundational revenue documents, including the General Land Register and Settlement Register, indicate a strong likelihood that the property belongs to the Government.
  • In such a dispute, if the private person fails to establish a valid title, it is not open to him to contend that the State has also failed to prove its title or discharge any burden. This is because the law recognises certain presumptions in favour of the State, particularly in cases involving land situated near forests, coastal areas, etc.
  • Disputes may arise when (1) a piece of land is recorded as Government property in revenue or other official records, and (2) a private individual asserts ownership based on a title deed in his possession. In such cases, courts place significant reliance on foundational documents, such as the General Land Register and the Settlement Register, as well as prior deeds of the claimant. And, it will consider whether the doctrine nemo dat quod non habet—one cannot give what one does not have—is to be applied.

Key decisions

  • 1. Usha Kapoor v. Govt.  of India, 2014-16 SCC 481: (The General Land Register maintained by the Cantonment Board under the Cantonment Act and the Rules framed thereunder is a public document and the entries therein are conclusive evidence of title and of the fact that the land is covered by an old grant. Followed: Union of India v. Ibrahim Uddin, 2012-8 SCC 148; Union of India v. Kamla Verma, 2010-13 SCC 511; Chief Executive Officer v. Surendra Kumar Vakil, AIR 1999 SC 2294.)
  • 2. Union of India v. Ibrahim Uddin, 2012(8) SCC 148: (General Land Register are public documents, and the certified copies of the same are admissible in evidence in view of the provisions of Section 65 read with Section 74 of the Evidence Act. It is a settled legal position that the entries are conclusive evidence of title. The title of Government cannot be disputed.)
  • 3. Chief Executive Officer v. Surendra Kumar Vakil, AIR 1999 SC 2294; 1999-3 SCC 555: (Had there been any conveyance or lease, it should have come from their custody. The Regulations, as well as the General Land Register maintained under the Cantonment Land Administration Rules of 1925, which are old documents, clearly indicate that the land is held on an old grant.)
  • 4. R. Hanumaiah v. Secretary to Govt of Karnataka, (2010) 5 SCC 203: (Presumption available in favour of the government – all lands which are not the property of any person or which are not vested in a local authority, belong to the government.)
  • 5. Government of Kerala v. Joseph, AIR 2023 SC 3988 (When the land subject to proceedings wherein adverse possession has been claimed, belongs to the Government, the court is duty-bound to act with greater seriousness, effectiveness, care and circumspection as it may lead to destruction of a right/title of the State to immovable property.)
  • 6. Ameer Hussain v. Deputy Director of Consolidation, 1978 RD 204, 1977 AWC 1: (It would be deemed that the disputed land vested in the State, and if the other side fails, in law,  it would be taken that the land was vested in the State. Quoted in Mohd.  Shafiq v. Asstt.  Director Of Consolidation, Lucknow, 2011- 9 ADJ 24.)
  • 7.. Pierce Lessley & Company Ltd. v. Violet Ouchterlong Waoshare, AIR 1969 SC 843: (Ultimate ownership by the State of all property within the jurisdiction of the State.)
  • 8.. Khan v. Muhammed Obedulla Khan, AIR 1953 Nag. 361: (The State is the ultimate owner of all property.)
  • 9.. Sahana Industries v. State of Kerala, 2021 KHC OnLine 7110, Kerala High Court, Devan Ramachandran, J.: (If the Settlement Register shows this land to be Government land, then certainly, the petitioner is obliged to establish their title over the property through competent documents. (Followed in: Chitharanjan v. State of Kerala, WP(C) No. 25830/2010, 24.01. 2025, Harisankar V. Menon, J.)
  • 10.. The Secretary of State for India v. Chimanlal Jamnadas, (1942)44 BomLR 295, AIR 1942 Bom 161: “Even assuming that the lease be not held as proved, the plaintiffs had no title to the land as rightly held by the lower Court and as nobody else was its owner at the time when it was occupied by the plaintiffs’ ancestor, the presumption under Section 37 of the Land Revenue Code which was also applicable before its enactment was that Government were its owner at that date. If the plaintiffs claim to remain in possession merely on the strength of their long possession in the past, though without any rightful title in them, Government had the right to assert their ownership which had not been divested by the act of the plaintiffs’ ancestor, and they had a right of resumption so long as the plaintiffs had not proved any acquisition of right in them by adverse possession against the Government.”
  • 11.. Union of India v. Laxman Yadneshwar Sathe, 2018-4 AllMR 157: “As held by the Hon’ble Apex Court therefore in the case of R. Hanumaiah and Another v. Secretary to Government of Karnataka, Revenue Department and Others (supra), the west lands are presumed to be the Government lands. Rights, entitlement and presumptions of title lie in favour of the Government, distinguished from those of private parties. As held by this Court also, way back in the year 1941, in the case of The Secretary of State for India in Council v. Chimanlal, Jamnadas and Others (1942) Indian Law Reports 358), the Government is presumed to be the owner in case of lands which are not proved to be of a private party.”
  • 12. Satpal Nahar v. Union of India (Sanjay Karol, TS Chauhan, JJ.), 2017 Supp HimLR 2994; ILR 2017-4 (HP) 196: “Even otherwise, it is settled that all lands which are not the property of any person or which are not vested in a local authority, belong to the Government. All unoccupied lands are the property of the Government, unless any person can establish his right or title to any such land. This presumption available to the Government is not available to any person or individual.”

The UK/England Decisions

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

The US Decisions

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

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

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

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

The Apex Court said it as under:

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

Thummala Krishna Rao Case Misread by High Courts

Facts of Govt. of AP v. Thummala Krishna Rao:

  • There was an earlier suit between Osmania University and (one) Habibuddin.
  • University lost the case on the grounds of adverse possession and limitation (for the suit was filed after 12 years of losing possession).
  • Thereafter, the University requested the Government to initiate eviction proceedings. The Government initiated actions under Section 6 of the AP Land Encroachment Act, 1905.
  • Apex Court held—especially in light of prior judicial findings and long possession—the Government cannot resort to summary eviction. In such circumstances, the State must have sought adjudication through a regular civil suit.
  • Several High Courts seem to apply this decision, ignoring the fact that the Supreme Court decision applies only to cases where Government property is held by one with genuine and substantial disputes of title, and not to every case of alleged encroachment on Government land.

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

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

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

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

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

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

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

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

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

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

  • 1. Presumption available in favour of the government – all lands which are not the property of any person or which are not vested in a local authority, belong to the government (R. Hanumaiah v. Secretary to Govt of Karnataka, (2010) 5 SCC 203).
  • 2. The court is duty-bound to act with greater seriousness, effectiveness, care and circumspection as it may lead to destruction of a right/title of the State to immovable property (Government of Kerala v. Joseph, AIR 2023 SC 3988).

Documents used to support the title of Government

  • Revenue records (Jamabandi),
  • Survey maps,
  • Poramboke Registers or other Government documents showing Government properties,
  • Land acquisition award (if acquired land),
  • Departmental records or plans,
  • Enacted Laws (Acts),
  • Gazettes (if acquired land),
  • Registered title documents (rare),
  • Correspondence or administrative orders.

Part I

State is the Ultimate Owner

The reply to the following questions determines the ‘ultimate ownership’ of a property.

  • Who is the owner of the property that is abandoned by all,
  • Who is the owner of the property that has no rightful owner,
  • Who is the owner of the property over which all claims raised are invalid,
  • Who is the owner of the property over which none can raise a valid claim?

Also Read:

Escheat and Bona Vecantia

What are the legal principles behind the doctrine that the State is the ‘ultimate owner’ of all properties?

  • Generally, there are two answers:
  • First, doctrine of Escheat; that is, land is escheated or reverted to the State, as the lord paramount, on the owner’s death without legal heirs or lawful claimants.
  • Second, bona vacantia; that is, Crown takes as bona vacantia goods in which no one else can claim property as a rightful owner.

Escheat and Bona Vecantia – Incident of Sovereignty

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

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

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

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

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

In Pierce Leslie and Co. Ltd. v. Violet Ouchterlong Waoshare, AIR 1969 SC 843, the Supreme Court relied on the Privy Council decision in 1860 in Collector of Massulipatnam v. Cavali Venata Narrainapeli, (1859-61) 8 MIR 500, where it was declared that the doctrine of bona vacantia or escheat was a part of the law in India. In Collector of Masulipatam v. Cavary Vancata Narrainappah it was observed as under:

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

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

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

General Law of Universal Application

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

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

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

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

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

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

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

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

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

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

Part II

Presumptions in Favour of Govt. Lands

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

(b) In order to defeat the title of the Government, a claimant has to establish a clear title which is superior to or better than the title of the Government.

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

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

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

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

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

(f) In R. Hanumaiah v. Secretary to Government of Karnataka, Revenue Department, (2010) 5 SCC 203, it was held as under:

  • “15. Suits for declaration of title against the government, though similar to suits for declaration of title against private individuals differ significantly in some aspects.
  • The first difference is in regard to the presumption available in favour of the government. All lands which are not the property of any person or which are not vested in a local authority, belong to the government. All unoccupied lands are the property of the government, unless any person can establish his right or title to any such land. This presumption available to the government, is not available to any person or individual. …”

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

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

PRIVATE PERSON v. GOVERNMENT

GENERAL LAND REGISTER under CANTONMENT LAND MANUAL RULES

In a dispute where a land is shown as Government property in revenue or other Government records, and the private person raises a claim on the strength of the title deed he holds, courts place credence on basic documents, such as the general land register and settlement registers.

It is a settled law that revenue records do not by themselves confer title. However, the General Land Register maintained under the Cantonment Land Manual Rules, and the Settlement Register of the erstwhile Travancore, are authoritative records used to establish the Government’s title. Other revenue records may also be relied upon as supporting evidence of title and possession.

It is Settled – General Land Register is Conclusive Evidence of Title

Union of India v. Robert Zomawia Street, AIR 2014 SC 2721

In Union of India v. Robert Zomawia Street, AIR 2014 SC 2721; 2014-6 SCC 707, the High Court allowed the second appeal preferred by the plaintiff and decreed the plaintiff’s suit.  Plaintiff claimed that he was the absolute owner of the property within the Shillong Military Cantonment area. The suit was necessitated when a show cause notice was issued against him claiming compensation ‘on account of resumption of the suit land’. The suit was filed for a declaration that the order of resumption was illegal, invalid, without jurisdiction and not binding on him and for prohibiting the Defendants from interfering with the possession of the Plaintiff in any manner.

The Supreme Court reversed the High Court decree and dismissed the suit. The Apex Court quoted para 19 of the High Court Judgment, where the views of the High Court can be discerned. They (reversed by the Supreme Court) can be summarised as under:

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

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

  • 1. In Union of India v. Kamla Verma, (2010) 13 SCC 511, and Chief Executive Officer v. Surendra Kumar Vakil, (1999) 3 SCC 555, the Supreme Court observed that “it is settled legal position that the entries made in the General Land Register maintained under the Cantonment Land Manual Rules are conclusive evidence of title“.
  • Rule 6 of the Cantonment Land Administration Rules classifies ‘B3 land’ as “held by any private person”. In the GLR the property in question was recorded as ‘B3 land’ and the landlord was shown as Govt. of India.
  • 2. Relied on the following findings in Union of India v. Ibrahim Uddin, (2012) 8 SCC 148) –
    • The GLR and other documents maintained by the Cantonment Board under the Cantonment Act, 1924, and the Rules made thereunder were public documents.
    • The certified copies of the same are admissible in evidence in view of the provisions of Section 65 read with Section 74 of the Evidence Act.
    • It is a settled legal position that the entries made in the General Land Register maintained under the Cantonment Land Administration Rules are conclusive evidence of title.
  • 3. Also relied on Union of India v. Kamla Verma (2010) 13 SCC 511, to emphasise that the documents under the GLR were conclusive evidence of title.
    • The land in question was originally permitted to be used by a civilian on an “old grant” basis.
    • This fact is reflected in the lease deed executed by the late Shri Roop Krishan Seth.
    • Even in the sale deed executed in favour of the respondent, it has been stated that the vendor was an “occupancy-holder of the land and trees of the aforesaid premises and owner of superstructure of the bungalow…”.
    • Even in the land register, the Government of India has been shown as a “landlord” and Shri Mohan Krishan Seth has been shown to have occupancy right, and his nature of right was shown to be of “old grant“.
  • 4. Also relied on Chief Executive Officer v. Surendra Kumar Vakil, (1999) 3 SCC 555.
  • 5. The argument that the word “held” meant “to own with legal title” was rejected. Therefore, the plaintiff cannot be a tenant was not accepted.
  • 6. The GLR showed that the Government was the Landlord.
  • 7. The GLR provided for the ‘table’ of rent and the details of the property.
  • 8. Since the State failed to produce the actual grant documents and there was no explanation for the same, it was not possible to accept the contentions – (1) adverse inference to be drawn against the State, and (2) the grant not being proved, the plaintiff’s suit deserved to be decreed.
  • 9. The GLR supported the contention of the State that the plaintiff held the land on an old grant basis.
  • 10. The plaintiff, on the other hand, has not produced any document to show the title of his predecessor-in-interest. Nemo dat quod non habet is the maxim, which means no one gives what he does not possess, aptly applied in the case.
  • 11. The classification of the land as B3 land also points towards the same conclusion.

Union of India v. Ibrahim Uddin (B.S. Chauhan, Dipak Misra, JJ.), 2012(8) SCC 148.

The law as to title of property is laid down in Union of India v. Ibrahim Uddin (B.S. Chauhan, Dipak Misra, JJ.), 2012(8) SCC 148 as under –

  • “65. …. The partition made among the ancestors of plaintiff/respondent No.1 in 1819 would not be a conclusive factor to determine the title of ownership in favour of the plaintiff/respondent No.1.
  • 66. The General Land Register and other documents maintained by the Cantonment Board under the Cantonment Act, 1924 and the Rules made thereunder are public documents, and the certified copies of the same are admissible in evidence in view of the provisions of Section 65 read with Section 74 of the Evidence Act. It is settled legal position that the entries made in General Land Register maintained under Cantonment Land Administration Rules is conclusive evidence of title. (Vide: Chief Executive Officer v. Surendra Kumar Vakil, AIR 1999 SC 2294; and Union of India & Ors. v. Kamla Verma, (2010) 13 SCC 511).
  • 68. The appellate courts examined the title of government instead of the plaintiff/respondent no.1. Such a course was not warranted. The title of Government cannot be disputed. In any event possession of government for decades is not disputed. The plaintiff shifted the case from time to
    time but failed to prove his title.
  • 69. To sum up: In view of the above discussion, we reach the following conclusion: ……
  • (xiv) The first appellate court as well as the High Court recorded a finding that the Union of India failed to prove its title over the suit land. The said courts did not realise that this was not the issue to be determined, rather the issue had been as to whether the plaintiff/ respondent No.1 was the owner of the suit land. ….”

In Chief Executive Officer v. Surendra Kumar Vakil (Sujata V. Manohar, R.C. Lahoti, JJ.), AIR 1999 SC 2294;1999-3 SCC 555, it was held as under:

  • “In the present case, however, apart from the requirements of Order No.179 of Governor General in Council, 1836, the general land register maintained under the Cantonment Land Administration Rules of 1925 has been produced which supports the contention of the appellants that the land is held on old grant basis. The appellants have also led evidence to show that the file containing grant in respect of the said property, is not available with them because it has been stolen in the year 1985. The respondents on the other hand have not produced any document of title pertaining to the said land or showing the nature of the rights of the respondents over the said land except the sale deeds referred to earlier. The stand of the respondents relating to their rights over the said land has changed from time to time. In the sale deeds executed by the Vendees in favour of the respondents, the land is described as lease hold cantonment land. This was later changed by the respondents in the amendment deeds to old grant land. In the suit, the respondents have contended that they have become the absolute owners of the said land. These bare assertions do not carry any conviction. Had there been any conveyance or lease in respect of the said lands executed in favour of the respondents or their predecessor in title, such conveyance or lease should have come from their custody. There is, therefore, no document before the Court which would show that the respondents were the absolute owners of the said land as now contended by them. The Regulations as well as the general land registers, on the other hand, which are old documents maintained in the regular course and coming from proper custody, clearly indicate that the land is held on old grant basis. This is, therefore, not a case where the appellants had not produced any evidence in support of their contention that the land in the cantonment area was held on old grant basis by Mukherjee.“

In Usha Kapoor v. Govt.  of India, 2014-16 SCC 481, it is said as under:

  • “13. The decision of this Court in Chief Executive Officer vs. Surendra Kumar Vakil (AIR 1999 SC 2294; 1999-3 SCC 555) also considered the legal effect of the entries in the G.L.R. which Register is required to be maintained by the Military Estates Officer of the Cantonment under the provisions of the Cantonment Land Administrative Rules framed in exercise of power under Section 280 of the Cantonment Act, 1924. The General Land Register maintained by the Cantonment Board under the Cantonment Act and the Rules framed thereunder is a public document and the entries therein are conclusive evidence of title. This is the view expressed by this Court in two other decisions, namely, Union of India v. Ibrahim Uddin & Anr.  [2012 (8) SCC 148] and Union of India & Ors. vs. Kamla Verma [2010 (13) SCC 511], apart from the decision in Chief Executive  Officer v. Surendra Kumar Vakil (AIR 1999 SC 2294; 1999-3 SCC 555). The reference to the nature of the holding i.e. old grant and the nature of rights of the holder i.e. occupancy rights, in the G.L.R. extracted above, in our considered view, is conclusive of the fact that the land is covered by an old grant and the rights enjoyed by the appellants were mere possessory or occupancy rights in respect of the structures thereon. The terms of such grants being statutory and the same having vested title of the land in the UOI with the power of resumption, the impugned notices dated 14th December, 2001 and 5 th February, 2002 must be acknowledged to be legal and valid.”

SETTLEMENT REGISTER OF TRAVANCORE

As stated earlier, the Settlement Register of the erstwhile Travancore is an authoritative record used to establish the Government’s title. (Other revenue records may also be relied upon as supporting evidence of title and possession.)

If Settlement Register says Government Land, Petitioner to Establish Title

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Revenue Records Not Confer Presumptive Value on Title

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

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

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

End Notes -I

LAW IN UNITED KINGDOM AND UNITED STATES

United Kingdom: Government Property Records

In the UK, government-owned land is often registered with the Land Registry, like private land. However, not all government land is registered, especially ‘historically held’ land.

  1. Land Registry Title Register
    • Shows ownership, including if the Crown or a public body owns the land.
    • Many parcels of government property (especially since 1990) are now registered.
  2. Crown Estate Records
    • The Crown Estate manages land owned by the monarch but held in trust for the nation.
    • Their ownership records are public.
  3. Public Body Asset Registers
    • Government departments (like the Ministry of Defence or NHS) often maintain internal asset registers.
  4. Council Property Records
    • Local councils maintain asset or property registers of municipal land.

Revenue records are not a primary form of land documentation in the UK. The Land Registry and statutory asset registers are considered authoritative.

United States: Government Property Records

Government Property Records:

  • Government property can be owned by federal, state, or local entities.
  • The General Services Administration (GSA) manages federal ‘real estate’.

Key Documents are the Following:

  1. County Recorder Deeds / Land Records
  2. For state/local government, land may still have recorded deeds.
  3. Federal Real Property Profile (FRPP)
  4. Database managed by the GSA listing federally owned land.
  5. GIS and Cadastral Systems
  6. Many states and counties have GIS-based cadastral maps indicating government land.
  7. Military or Agency-Specific Registers. E.g., the Department of Defense or Bureau of Land Management (BLM) maintain detailed internal records.

In the US also land ownership is deed-based, and even government lands are typically recorded in public deed registries.

End Notes -II

It is Settled – Revenue Records will not confer title

(Note: As stated earlier, the General Land Register maintained under the Cantonment Land Manual Rules and Settlement Register of the erstwhile Travancore are authoritative records used to establish the Government’s title. (Other revenue records may also be relied upon as supporting evidence of title and possession.)

Following decisions laid down the general principle – Revenue Records will not confer title

  • Sawarni v. Inder Kaur, (1996) 6 SCC 223
  • Balwant Singh v. Daulat Singh, (1997) 7 SCC 137
  • Suman Verma v. Union of India, (2004) 12 SCC 58; 
  • Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund, AIR 2008 SC 901
  • State of AP v. Star Bone Mill & Fertiliser Company, (2013) 9 SCC 319
  • Faqruddin v. Tajuddin, (2008) 8 SCC 12;
  • Rajinder Singh v. State of J&K, (2008) 9 SCC 368; 
  • Narasamma v. State of Karnataka, (2009) 5 SCC 591
  • Municipal Corporation, Aurangabad v. State of Maharashtra, (2015) 16 SCC 689; 
  • T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342;
  • Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; 
  • Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259;
  • Ajit Kaur v. Darshan Singh, (2019) 13 SCC 70.
  • Bhimabai Mahadeo Kambekar v. Arthur Import and Export Co. (2019) 3 SCC 191
  • Jitendra Singh v.  The State of Madhya Pradesh (2021 SCC OnLine SC 802) [M.R. Shah,  Aniruddha Bose, JJ.]
  • P.  Kishore Kumar v. Vittal K.  Patkar, 2024-1 CTC 547; 2023-4 CurCC(SC) 278
  • Laxkshmi B. v. Suku, 2024-1 KerHC 380
  • The State of Punjab vs Bhagwantpal Singh Alias Bhagwant Singh, 10 July, 2024: 2024 INSC 518
  • Ram Balak Singh v. State of Bihar, 2024 INSC 360, 01 May 2024 [Pankaj Mithal and Prasanna Bhalachandra Varale, JJ.]

Revenue Records Prove Possession

  • Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund, AIR 2008 SC 901 (Revenue record merely raises a presumption in regard to possession)
  • State of AP v. Star Bone Mill & Fertiliser Company, (2013) 9 SCC 319 (Revenue records merely show possession of a person)
  • Zila Panchayat Etah v. Om Prakash Shah, 01 Sep 2017; 2017 0 Supreme(SC) 1418 (There is statutory presumption of correctness of revenue entries which has not been rebutted in the instant case.)
  • Krishnamurthy S.  Setlur v.  O.V.  Narasimha Setty, 2019-9 SCC 488 (Revenue records prove possession)

Survey Authorities Not to decide Title; Only Conclusive proof – Boundaries recorded correctly (when survey was made)

  • Kannan v. Kannan, (1964 KLT 228), 
  • The Cheriyanad Grama Panchayath v. The State of Kerala,  (2019 (5) KHC 699),
  • Venugopalan Nair v. Saraswathy Amma, (2013 (4) KLT 717),
  • Karthyayani v. Balakrishnan, (2014 (2) KLT Suppl. 67 (Ker.),
  • Ibrahim v. Saythumuhammed, (2013 (4) KLT 435)
  • Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259
  • Achama Alexander v. Asst. Director, Survey and Land Records, 2022 (2) KHC 131: 2022-3 KLT 198.
  • Thomas v. Philip,2022(4) KerHC 451;
  • Elambilan Nani Amma v. Mulavana Antony (K. Babu, J,), 2023-7 KHC 418.

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Read in this cluster (Click on the topic):

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

Res Judicata: Should Substantially the ‘Same Issue’ Must Have Been ‘Adjudicated’ in the Former Suit

Saji Koduvath, Advocate, Kottayam.

Abstract

The authoritative modern decisions reflect a ‘strict and technical’ interpretation of res judicata, in contrast to earlier broader views that required only a ‘decision on the same matter‘, or a ‘similar issue‘ in both suits.

The modern trend, in substance, requires the following:

  • The ‘same issue‘ must have been adjudicated in the former suit.
  • Finding on the issue in the earlier suit must have been ‘necessary or essential‘.
  • That is, the issue must have been heard and decided consciously.
  • The parties should have had an opportunity to meet the contentions on the matter.

Sec. 11 of the Code of Civil Procedure deals with Res Judicata. It 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.”

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.”

Should the Matter be in “Actual Issue”, Or Need be in “Substance” alone

Sec. 11 CPC says as to “suit or issue in which the matter directly and substantially in issue“. There are two views in the matter.

Earlier Broader View: Sufficient if a similar issue arises

In Gulabchand Chhotalal Parikh v. State of Bombay, AIR 1965 SC 1153, it is held as under:      

  • “We therefore hold that on the general principle of res judicata, the decision of the High Court on a writ petition under Art. 226 on the merits on a matter after contest will operate as res judicata in a subsequent regular suit between the same parties with respect to the same matter.”

In Abubakar Husein Mulani v. Jafar Ahmad Mulani, 2010-1 CivCC 324; 2010-1 MhLJ 243; 2010-6 RCR(Civ) 1008, it is observed as under:

  • “In view of the settled legal position, the finding of the appellate Court in the said Appeal No.304/1984 would operate as a res judicata if a similar issue arises between the said plaintiffs and the defendant No.1 in future…”

In Nayan Bhebli v. Bhutnath Sardar, 2014-5 CHN 594, it is held as under:

  • “It is not necessary that a distinct issue should be raised. It is sufficient if the matter was in issue in substance [Md. Ali v. Upendra 58 CLJ 196].”

In Mohd. Saeed v. Munnu Khan, AIR 2014 All. 125, it is held as under:

  • “Identity of matter in issue, i.e. the matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue in the former suit either actually (Expln 3) or constructively (Explan 4).
  • “The subject-matter and the causes of actions of the two suits may be different but the issues may be the same. Expln III refers to direct res judicata and Expln. IV to constructive res judicata. It is not necessary that a distinct issue should be raised. It is sufficient if the matter was in issue in substance.

In Ravi Azta v. Union of India (TS Chauhan, J.), ILR 2018-2 (HP) 129, it is observed as under:

  • “13. The doctrine of res judicata is applied to give finality to ‘lis’ and in substance means that an issue or a point decided and attaining finality should not be allowed to be reopened and re-agitated twice over. The literal meaning of res is ‘everything that may form an object of rights and includes an object, subject-matter or status; and res judicata literally means ‘a matter adjudged; a thing judicially acted upon or decided; a thing or matter settled by judgment. Even otherwise, the provision of CPC, more particularly, those contained in Section 11 are not exhaustive and contain only the general principles of res judicata.”

Modern Trend (Stricter Approach): Same Issue Must Have Been Adjudicated in the Former Suit giving due emphasis to ‘directly and substantially in issue‘

In M.  Siddiq v. Mahant Suresh Das, 2020-1 SCC 1, paras 439 and 446 are noteworthy. They read as under:

  • 439. The applicability of Section 11 is premised on certain governing principles. These are:
    • .(i) The matter directly and substantially in issue in the suit should have been directly and substantially in issue in a former suit;
    • (ii) The former suit should be either between the same parties as in the latter suit or between parties under whom they or any of them claim litigating under the same title;
    • (iii) The court which decided the former suit should have been competent to try the subsequent suit or the suit in which the issue has been subsequently raised; and
    • (iv) The Issue should have been heard and finally decided by the court in the former suit.
  • 446. There is absolutely no merit in the contention that the principles of constructive res judicata will bar the subsequent suits. The parties were distinct. The claim in the earlier suit was distinct. The basis of the claim was indeed not that which forms the subject matter of the subsequent suits.

In Srihari Hanumandas Totala v. Hemant Vithal Kamat, AIR 2021 SC 3802; 2021-9 SCC 99, it was held as under:

  • “26. Section 11 of the CPC enunciates the rule of res judicata: a court shall not try any suit or issue in which the matter that is directly in issue has been directly or indirectly heard and decided in a former suit? Therefore, for the purpose of adjudicating on the issue of res judicata it is necessary that the same issue (that is raised in the suit) has been adjudicated in the former suit. It is necessary that we refer to the exercise taken up by this Court while adjudicating on res judicata, before referring to res judicata as a ground for rejection of the plaint under Order 7 Rule 11.
  • Justice R C Lahoti (as the learned Chief Justice then was), speaking for a two Judge bench in V. Rajeshwari v. T.C. Saravanabava, (2004) 1 SCC 551, discussed the plea of res judicata and the particulars that would be required to prove the plea. The Court held that it is necessary to refer to the copies of the pleadings, issues and the judgment of the former suit, while adjudicating on the plea of res judicata:
  • “11. The rule of res judicata does not strike at the root of the jurisdiction of the court trying the subsequent suit. It is a rule of estoppel by judgment based on the public policy that there should be a finality to litigation and no one should be vexed twice for the same cause.
  • xxx xxx xxx
  • … Their Lordships of the Privy Council in Kali Krishna Tagore v. Secy. of State for India in Council, (1887-88) 15 IA 186 : ILR 16 Cal 173 pointed out that the plea of res judicata cannot be determined without ascertaining what were the matters in issue in the previous suit and what was heard and decided. Needless to say, these can be found out only by looking into the pleadings, the issues and the judgment in the previous suit.”
  • (See also: Prem Kishore v. Brahm Prakash, 2023 SCC Online SC 356, 2023-3 MLJ 200 (SC))

Conscious Adjudication of an Issue alone Constitutes Res Judicata

In Erach Boman Khavar v. Tukaram Shridhar Bhat, 2013-15 SCC 655, it is held that the doctrine of res judicata can only apply when there has been a conscious adjudication of the issue on the merits. It is held as under:

  • “39. From the aforesaid authorities it is clear as crystal that to attract the doctrine of res judicata it must be manifest that there has been a conscious adjudication of an issue. A plea of res judicata cannot be taken aid of unless there is an expression of an opinion on the merits. It is well settled in law that principle of res judicata is applicable between the two stages of the same litigation but the question or issue involved must have been decided at earlier stage of the same litigation.” (Quoted in: Ebix Singapore Private Limited v. Committee of Creditors of Educomp Solutions Limited, 2022-2 SCC 401)

In Jamia Masjid v. K. V.  Rudrappa (DY Chandrachud, Vikram Nath, Hima Kohli, JJ.), AIR 2021 SC 4523; 2022-9 SCC 225, the pragmatic approach to be adopted in this matter is laid down as under:

  • “In order to adjudicate on the applicability of the plea of res judicata vis-à-vis the first suit, it is necessary that we decide on the following three issues:
  • .A. The scope of the first suit which was instituted under Section 92 of the CPC;
  • B. Whether the parties in the first suit and the instant proceedings are the same; and
  • C. Whether the issue of title over the suit property was conclusively decided in the first suit.”

For Res Judicata – Adjudication of the Issue must have been Material and Essential

If only finding is “Necessary”, then only it is “Directly and Substantially” in issue.

In Sajjadanashin Sayed v. Musa Dadabhai Ummer, (2000) 3 SCC 350, the Supreme Court held that to attract res judicata on an earlier finding, the matter must have been directly and substantially in issue and that the finding on an issue came “collaterally or incidentally” would not ordinarily be res judicata. It was pointed out that if only the issue was “necessary” to be decided for adjudicating on the principal issue and had actually been decided, then only it would have to be treated as “directly and substantially” in issue; and that it is also necessary that the judgment was in fact based upon that decision.

  • (Sajjadanashin Sayed v. Musa Dadabhai Ummer, (2000) 3 SCC 350, is quoted and followed in: M.S. Ananthamurthy v. J. Manjula (Neutral Citation: 2025 INSC 273.)

In Sajjadanashin, it is pointed out as under:

  • “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 necessary involved, the judgment is not conclusive on the question of ownership or title.”

Referring to Sajjadanashin Sayed, it is observed in Nand Ram v. Jagdish Prasad: AIR  2020 SC 1884 that a material test to be applied is whether the court considered the adjudication of the issue material and essential for its decision.

Referring to Sajjadanashin Sayed, it is observed in Union of India Vs. Vijay Krishna Uniyal, 2017-12 SCALE 704, that one has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue.

See also:

  • Har Narayan Tewari v. Cantonment Board, Ramgarh Cantonment, 2024-8 SCC 114,
  • Srihari Hanumandas Totala v. Hemant Vithal Kamat, AIR 2021 SC 3802; 2021-9 SCC 99

In Sajjadanashin Sayed v. Musa Dadabhai Ummer, AIR 2000 SC 1238, it is observed as under:

  • “12. Matters Collaterally or incidentally in issue:
  • It will be noticed that the words used in Section 11 CPC are “directly and substantially in issue.” If the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be res judicata in a subsequent proceeding. Judicial decisions have however held that if a matter was only `collaterally or incidentally in issue and decided in an earlier proceeding, the finding therein would not ordinarily be res judicata in a latter proceeding where the matter is directly and substantially in issue.
  • 13. As pointed out in Halsbury’s Laws of England (Vol. 16, Para 1538) (4th Ed.), the fundamental rule is that a judgment is not conclusive if any matter came collaterally in question [R. vs. Knaptoft Inhabitants, Heptulla Bros vs. Thakore; or if any matter was incidentally cognizable Sanders (otherwise Saunders) vs. Sanders (otherwise Saunders)].
  • 14. A collateral or incidental issue is one that is ancillary to a direct and substantive issue; the former is an auxiliary issue and the latter the principal issue. The expression collaterally or incidentally in issue implies that there is another matter which is directly and substantially in issue (Mulla, CPC 15th Ed. p. 104).
  • 15. Difficulty in distinguishing whether a matter was directly in issue or collaterally or incidentally in issue and tests laid down in various Courts:
  • Difficulty in this area of law has been felt in various jurisdictions and therefore some tests have been evolved. Halsbury says (Vol. 16, Para 1538) (4th Ed.) that while the general principle is clear “difficulty arises in the application of the rule in determining in each case what was the point decided and what was the matter incidentally cognizable, and the opinion of Judges seems to have undergone some fluctuations.”
  • 16. Spencer Bower and Turner on The Doctrine of Res Judicata (2nd Ed, 1969) (p. 181) refer to the English and Australian experience and quota Dixon, J. of the Australian High Court in Blair v. Curran to say:
  • “The difficulty in the actual application of these conceptions is to distinguish the matters fundamental or cardinal to the prior decision on judgment, or necessarily involved in it as its legal justification or foundation, from matters which, even though actually raised and decided as being in the circumstances of the case the determining considerations, yet are not in point of law the essential foundation of a groundwork of the judgment.”
  • The authors say that in order to understand with essential distinction, one has always to inquire with unrelenting severity – is the determination upon which it is sought to find an estoppel so fundamental to the substantive decision that the latter cannot stand without the former. Nothing less than this will do. It is suggested by Dixon, J that even where this inquiry is answered satisfactorily, there is still another test to pass: viz. whether the determination is the immediate foundation” of the decision as opposed to merely “a proposition collateral or subsidiary only, i.e. not more than part of the reasoning supporting the conclusion.” It is well settled, say the above authors “that a mere step in reasoning is insufficient. What is required is no less than the determination of law, or fact or both, fundamental to the substantive decision.”

A Deliberate Judicial Decision alone is Judicial Precedent

As regards binding precedent, it is observed in Union of India v. Dhanwanti Devi, (1996) 6 SCC 44, as under:

  • “9…..It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge’s decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates-
    • (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts;
    • (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and
    • (iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides.
  • What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi. “

Constructive Res Judicata and Order II Rule 2, CPC

In Channappa v. Parvatewwa, 2026 INSC 343, our Apex Court finally pointed out –

  • “The omission to seek such relief in Suit – I is significant and cannot be cured through a subsequent suit”.
  • “27. In the present case, Parvatewwa herself had pleaded in the earlier proceedings that Channappa was asserting rights over the suit properties on the basis of the adoption. The dispute as to the parties’ respective rights over the property was, therefore, already in existence at the time of institution of Suit – I. In such circumstances, the relief of declaration of title and the consequential relief relating to possession could and ought to have been claimed in the earlier proceedings.”
  • “The subsequent institution of Suit – II seeking declaration of ownership and recovery of possession in respect of the same property and between the same parties is, therefore, clearly hit by the provisions of Order II Rule 2, CPC.”

A Compromise/Consent Decree is no Adjudication; No Res Judicata

In Pulavarthi Venkata Subba Rao v. Valluri Jagannadha Rao, AIR 1967 SC 591, the Supreme Court has laid down as under:

  • “A compromise decree is not a decision by the Court, it is the acceptance by the Court of something to which the parties had agreed. It has been said that a compromise decree merely sets the seal of the Court on the agreement of the parties. The Court did not decide, anything. Nor can it be said that the decision of the Court was implicit in it.”
  • 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.

In Baldevdas Shivlal and another v. Filmistan Distributors (India) Pvt. Ltd., AIR 1970 SC 406, it is held as under:

  • “A consent decree according to the decisions of this Court does not operate as res-judicata because a consent decree is merely the record of contract between the parties to a suit, to which is superadded the seal of the Court. A matter in contest in a suit may operate as res-judicata only if there is an adjudicationby the Court; the terms of section 11 of the Code leave no scope for a contrary view.”

Estoppel by Conduct in a Compromise Suit

It is pointed out in Jamia Masjid v. K. V.  Rudrappa (DY Chandrachud, Vikram Nath, Hima Kohli, JJ.), AIR 2021 SC 4523; 2022-9 SCC 225 – (i) A ‘compromise decree is not a decision of court, principle of res judicata cannot be made applicable’ (ii) ‘However, compromise decree may in effect create estoppel by conduct between parties and parties by estoppel will be prevented from initiating a subsequent suit’.

Conclusion

With regard to res judicata, the modern trend in law adopts a more technical approach, requiring actual adjudication of the ‘same issue‘ in both the former and the subsequent suits. In contrast, the earlier view was broader, holding that res judicata would be attracted if the matter was in issue ‘in substance’, even if not the same or substantially identical.

Read Also:

             •➧ Ratio Decidendi (alone) Forms a Precedent; Not the Final Order or Conclusion.
             •➧ Relevancy of a Civil Case Judgment in Criminal Cases: Does a Civil Court Judgment Bind a Criminal Court?
             •➧ Prem Raj v.  Poonamma Menon (SC), April 2, 2024 – An Odd Decision on ‘Civil Court Judgment Does Not Bind Criminal Court’.
             •➧ Cheating and Breach of Contract: Distinction lies in Fraudulent Intention ‘at the time of Promise’.  No Criminal Case endures on a Dispute Essentially Civil in Nature.
             •➧ No Res judicata on Finding on Title in an Injunction Suit
             •➧ Res Judicata and Judicial Precedent
             •➧ What are “Relevant Under Some Other Provisions of this Act” in Sec. 43?
             •➧ Judicial Precedent and Res Judicata – a Couplet
             •➧ Res Judicata and Constructive Res Judicata
             •➧ Alternative Pleadings on Title and Adverse Possession: Mutually Inconsistent or Mutually Destructive?

End Notes:

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.

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Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and 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

Alternative Pleadings on Title and Adverse Possession: Mutually Inconsistent or Mutually Destructive?

Saji Koduvath, Advocate, Kottayam.

Abstract

  • The answer is that such claims are mutually destructive and defeat each other.
  • However, in cases involving alternative pleadings of ‘title’ and ‘adverse possession’, it appears that our Apex Court tends to favour the doctrine of ‘mutual inconsistency’ over ‘mutual destructiveness’— perhaps as a pragmatic approach to manage and circumvent the inherent complexities arising from conventional pleading practices in such matters.

Introduction

The plea on claim of title and that on adverse possession are inherently contradictory and cannot logically coexist within the same suit, as they originate from fundamentally different legal premises.

The simultaneous assertion of both claims would be akin to advancing the following two mutually exclusive assertions:

  • (i) “I lawfully own the property.”
  • (ii) “I do not own it lawfully, but I have acquired title by possessing it unlawfully for a sufficient period to attract the doctrine of adverse possession.”

Origin and Nature of Enjoyment Make Certain Dual Pleas Inconsistent

In Kerala State v. Brijit (A. Hariprasad, J.), ILR 2018-2 (Ker) 483; 2018-2 KHC 521; 2018-2 KLT(SN) 53, it is pointed out as under:

  • “53. As we all know, there are certain claims which are mutually inconsistent and exclusive, like
    • easement by prescription and easement of necessity,
    • ownership and easement,
    • lease and license, etc.
  • In the case of easement by prescription and easement of necessity, origin of the rights are entirely different. Easement right by prescription arises by proving the ingredients under Section 15 of the Easements Act, 1882, whereas a claim for easement of necessity, under Section 13, essentially arises out of severance of the tenements by transfer, partition or bequest. It is therefore clear that they cannot be claimed together as they originate from different sources.
  • Likewise, easement and ownership cannot be claimed together for the reason that easement is a right not claimable on one’s own property going by the definition in Section 4 of the Easements Act.
  • Lease and license also cannot be claimed together because a lease is a transfer of property falling within the provisions of the TP Act and a license is in the nature of a permission granted to one person for doing something in or upon the immovable property of the grantor, under the provisions of Section 52 of the Easements Act, which does not involve a transfer of property. Such incompatible rights originate from different sources and, therefore, nature of their enjoyment also would be different.”

The pleas of title and adverse possession are based on fundamentally different legal principles that cannot coincide without inherent contradiction.

  • Government of Kerala v. Joseph, AIR 2023 SC 3988,
  • Karnataka Board of Wakf v. Government of India, AIR 2004 SC 2096; 2004-10 SCC 779,
  • P. T. Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753; 2007-6 SCC 59 (S.B. Sinha, J.);
  • Narasamma v. A. Krishnappa, AIR 2020 SC 4178; 2020-15 SCC 218.

See also:

  • Prabhakar Gones Prabhu Navelkar v. Saradchandra Suria Prabhu Navelkar, 2020-20 SCC 465
  • T. Ravi v. B. Chinna Narasimha, 2017-7 SCC 342,
  • L.N. Aswathama v. V.P. Prakash, 2009-13 SCC 229 (R.V. Raveendran, J.),
  • Arundhati Mishra v. Shri Ram Charita Pandey, (1994) 2 SCC 29.

‘Mutually Destructive‘ Pleas Cannot Co-exist

When these two propositions are presented in a party’s pleadings that contradict or destroy each other, and both cannot be true simultaneously, they are considered “mutually destructive”. Such inconsistency renders both pleas unreliable, and consequently, both are liable to be rejected. Example:

  • 1. Claim of title and adverse possession.
  • 2. Claim of title and benefits under Section 60(b) Easements Act.
  • 3. Easement by prescription and easement of necessity.
  • 4. Ownership and easement.

In Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jajoo, 2009-5 SCC 713 (S.B. Sinha, Dr. Mukundakam Sharma, JJ.), it is held as under:

  •  “Pleadings of the parties, it is trite, are required to be read as a whole. Defendants, although are entitled to raise alternative and inconsistent plea but should not be permitted to raise pleas which are mutually destructive of each other.”

The Supreme Court in Steel Authority of India Ltd v. Union of India, AIR 2006 SC 3229, 2006-12 SCC 233, (S.B. Sinha, Dalveer Bhandari) held as under:

  • “To raise such a mutually destructive plea is impermissible in law. Such mutually destructive plea, in our opinion, should not be allowed to be raised even in an industrial adjudication. Common law principles of estoppel, waiver and acquiescence are applicable in an industrial adjudication.”

In Damodhar Narayan Sawale v. Tejrao Bajirao Mhaske, AIR 2023 SC 3319; it is pointed out as under:

  • “Contextually, it is apposite to state that though in a suit a defendant is entitled to raise alternative inconsistent plea he could not be permitted to raise pleas which are mutually destructive of each other and raising such pleas would only work out to his detriment.”

In Gautam Sarup v. Leela Jetly, 2008-7 SCC 85 (V.S. Sirpurkar, S.B. Sinha, JJ.) it is held as under:

  • “22. What, therefore, emerges from the discussions made hereinbefore is that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other.” (Quoted in: Biswanath Agarwalla v. Sabitri Bera, 2009-15 SCC 693)

In Biswanath Agarwalla v. Sabitri Bera, 2009-15 SCC 693 (Deepak Verma, S.B. Sinha JJ.), pointed out as under:

  • “A defendant, as is well known, may raise inconsistent pleas so long as they are not mutually destructive.“

Following cases also dealt with ‘mutually destructive’ pleas:

  • Steel Authority of India Ltd v. Union of India, AIR 2006 SC 3229, 2006-12 SCC 233
  • Damodhar Narayan Sawale v. Tejrao Bajirao Mhaske, AIR 2023 SC 3319
  • Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jajoo, 2009-5 SCC 713
  • Narayan Sawale v. Tejrao Bajirao Mhaske, AIR 2023 SC 3319
  • Biswanath Agarwalla v. Sabitri Bera, 2009-15 SCC 693
  • Gautam Sarup v. Leela Jetly, 2008-7 SCC 85.

Read Also:

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             •➧ Relevancy of a Civil Case Judgment in Criminal Cases: Does a Civil Court Judgment Bind a Criminal Court?
             •➧ Prem Raj v.  Poonamma Menon (SC), April 2, 2024 – An Odd Decision on ‘Civil Court Judgment Does Not Bind Criminal Court’.
             •➧ Cheating and Breach of Contract: Distinction lies in Fraudulent Intention ‘at the time of Promise’.  No Criminal Case endures on a Dispute Essentially Civil in Nature.
             •➧ No Res judicata on Finding on Title in an Injunction Suit
             •➧ What are “Relevant Under Some Other Provisions of this Act” in Sec. 43?
             •➧ Judicial Precedent and Res Judicata – a Couplet
             •➧ Res Judicata and Constructive Res Judicata
             •➧Res Judicata: ‘Same issue’ must have been ‘Adjudicated’ in the former suit

Time to Choose and Confine to One of the Alternative Pleadings

Different views:

  • 1. Before the commencement of the trial and taking evidence.
  • 2. At least at the time of arguments.
  • 3. During trial.

One thing is definite – the stance on ‘election’ must have reflected in the trial.

The pleas on title and adverse possession are mutually inconsistent, and the latter does not begin to operate until the former is renounced. Therefore, the time to choose and confine to one of the alternative inconsistent pleadings is before the commencement of the trial and taking evidence, so that the opposite party may not be prejudiced (See: P. V. Abdul Majeed Haji v. Shorabi, 2020-4 KerHC 53; 2020-4 KerLT 629).

But, according to the Andhra High Court, as held in Kavitha Goud v. Nookala Sudarshan Reddy, AIR 2004 AP 326; 2004-4 ALD 324; 2004-5 ALT 293, it is ‘at least at the time of arguments‘. In this case, it is said as under:

  • “It is true that a party can take inconsistent pleas, and can adduce evidence in respect of both the inconsistent pleas taken by him. But at least at the time of arguments, he must choose and confine his case to one of those pleas only, but cannot be permitted to urge the inconsistent pleas as grounds of attack or defence till the end of the lis, because the other side should know what exactly is his case.”

The Andhra High Court, in Atluri Prabhakara Rao v. Chalasani Krishna Kumari, 2017-2 ALT 240; 2017 3 ALT 785 (M. Satyanarayana Murthy, J.), observed that the time to confine to any one of the pleas is ‘during trial’. It is said as under:

  • “These two pleas are inconsistent to one another. Forgery is totally distinct from the fabrication. However, the defendant may take inconsistent pleas but she has to confine to any one of the pleas during trial.”

In Kuriakose v. Varkey, 1 August, 2017, (A. Muhamed Mustaque), it is pointed out as under:

  • “It is true that the defendant is entitled to take inconsistent pleas, but at the time of trial, he will have to stick on to one case.”

Plea of Title and Adverse Possession: ‘Mutually Inconsistent’

In Karnataka Board of Wakf v. Government of India, AIR 2004 SC 2096; 2004-10 SCC 779, it is held as under:

  • “The pleas on title and adverse possession are mutually inconsistent, and the latter does not begin to operate until the former is renounced.”
  • (Quoted in: P. T. Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753; 2007-6 SCC 59 (S.B. Sinha, J.); Narasamma v. A. Krishnappa, AIR 2020 SC 4178; 2020-15 SCC 218.)

In L.N. Aswathama v. V.P. Prakash, 2009-13 SCC 229 (R.V. Raveendran, J.) also it was held that the pleas based on title and adverse possession are mutually inconsistent.

RC Lahoti J., opined in Kedar Nath v. Ram Parkash, 1997-2 AD(Del) 761; 1999-1 CLT 1; 1997-67 DLT 106, as under:

  • “However, a party would be better advised to abandon one of the two inconsistent pleas before going to the trial because contradictory inconsistent pleas may lead to effect associated with the peril of Court’s confidence being denied to both. Take the case of a person in possession pleading license and adverse possession in the alternative in an effect to protect his possession.”

In L.N. Aswathama v. V.P. Prakash, 2009-13 SCC 229, it is held as under:

  • “17. … The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence.
  • 18. …When a person is in possession asserting to be the owner, even if he fails to establish his title, his possession would still be adverse to the true owner. Therefore, the two pleas put forth by the defendant in this case are not inconsistent pleas but alternative pleas available on the same facts. Therefore, the contention of the plaintiffs that the plea of adverse possession is not available to defendant is rejected.”

In Arundhati Mishra v. Shri Ram Charita Pandey, (1994) 2 SCC 29, it is held as under:

  • “4. The question in this case is whether the plea of adverse possession sought to be set up by the respondent could be permitted to be raised. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.”

In Om Prakash v. Bhaurao, 2022, it is held as under:

  • “18. The defendants are certainly entitled to take inconsistent pleas. However, mutually destructive or exclusive pleas stand on a different pedestal. A person who has set a title in himself cannot be permitted to alternatively plea perfection of title by adverse possession. The concept of adverse possession pre-supposes that the claimant accepts the title of the adversary. Adverse possession cannot begin to operate until the claimant renounces title and accepts the title of the adversary.”

In Government of Kerala v. Joseph, AIR 2023 SC 3988, the Supreme Court has affirmed the law as under:

  • “49. Claim of independent title and adverse possession at the same time amount to contradictory pleas.”

In Vidya Shanker v. Suresh Chandra, 2020-4 ADJ 547; 2020-5 AllLJ 290; 2020 142 AllLR 353; 2020 4 AWC 3430 (Sudhir Agarwal, J.) it is said as under:

  • “39. In the matter of plea of adverse possession, mutually inconsistent or mutually destructive pleas must not be taken in the plaint. Whenever the plea of adverse possession is raised, it pre supposes that owner is someone else and the person taking the plea of adverse possession is not the actual owner but has perfected his title by prescription since the real owner failed to initiate any proceeding for restoring the possession within the prescribed period under the statute.”

Sudhir Agarwal, J. then pointed out as under:

  • “40. In P. Periasami v. P.Periathambi, 1995 (6) SCC 523, it was said:
    • “Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property.”
  • 41. In Mohan Lal v. Mirza Abdul Gaffar, (1996) 1SCC 639, the Court said:
    • “As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period his title by prescription nec vi, nec clam, nec precario.”
  • 42. In Karnataka Board of Wakf Vs. Government of India, (2004) 10 SCC 779, Court held that whenever the plea of adverse possession is projected, inherent therein is that someone else is the owner of the property. In para 12 it said:
    • “The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.”

Plea of Title and Adverse Possession: Mutually Destructive

The Kerala High Court, in P. S. George v. Balakrishnan, 2015-1 CivCC 26; ILR 2014-4 (Ker) 966; 2014-4 KHC 725; -2014-4 KLT 788, pointed out as under:

  • “Put it differently, he had been enjoying the disputed property as his own property. So also, there is no pleading either recognising or acknowledging the plaintiffs as the true owners of the property. Needless to say, the element of ‘animus possidendi’ is totally absent. I have already held that alternative plea of adverse possession is unsustainable, mutually destructive and liable to be rejected.”

In Kuriakose v. Varkey, 1 August, 2017, (A. Muhamed Mustaque), it is held as under:

  • “It is settled law that, claiming title in one self and claiming title by adverse possession will not go together and they are mutually exclusive and destructive to each other. It is true that the defendant is entitled to take inconsistent pleas, but at the time of trial, he will have to stick on to one case.”

In Rama Kanta Jain v. M.S. Jain, AIR 1999 (Del) 281, it was held as under:

  • “18. There is another aspect of the matter. The mere fact that the defendants have come forward with a plea of adverse possession, means that they admit the plaintiff to be the true owner. For a plea of ownership on the basis of adverse possession, the first and the foremost condition is, that the property must belong to someone else other than the person pleading his title on the basis of adverse possession, In the instant case the defendants have put forward defences which are irreconcilable’ and mutually destructive and inconsistent with one another.’” (Quoted in: Anu Gupta v. Vijay Gupta, 08 Aug 2022.

In Rattan Lal v. Ragunath, 18 Aug 2023, 2023 Supreme (Del) 3938, quoting Government of Kerala v. Joseph, AIR 2023 SC 3988, it is held as under:

  • “11.2. Therefore, the plea of adverse possession raised by the Appellants as a new plea in first appeal is inconsistent with the case setup in the written statement and the trial. In law, the Appellants are precluded from taking the said plea in view of the decision of the Coordinate Bench of this Court in Bharat Bhushan Jain & Anr. v. UOI & Ors., 2014 SCC OnLine Del 3577, wherein this Court has held that the plea of ownership by title and adverse ownership cannot be raised together being inconsistent and mutually destructive. The plea of adverse possession is a question of fact and cannot be raised in appeal only on the basis of prolonged possession of suit property in the absence of the proof of the other ingredients necessary for proving the said defence including the fact that the possession was hostile to the true owner of the property.”  

No Impediment in ‘Claiming’ Ownership and Adverse Possession

In Kerala State v. Brijit, ILR 2018-2 (Ker) 483; 2018-2 KHC 521; 2018-2 KLT(SN) 53, emphasised that there is no impediment in ‘claiming’ ownership and, in the alternative, a prescriptive title to it by adverse possession. The learned Judge stressed his point as under:

  • “54. … Exclusive possession of the thing owned and the right to exclude others from possession are two essential components in the bundle of rights called “title” or “ownership”. In other words, every owner has a right to possess property in exclusion of all the others. Every person holding property under a claim of adverse possession keeps possession of the same with a hostile animus to exclude all others, including the true owner. Therefore, both in a claim of ownership and adverse possession, assertive possession is an essential component. In the case of a person claiming adverse title by prescription, he must have been holding possession with an open hostile animus for the prescribed period. Therefore, I find no reason to think that there is any impediment in claiming ownership of property and in the alternative, a prescriptive title to it by adverse possession and limitation.”

Mutually Destructive Pleas Cannot be Permitted

In Mrs. Adarsh Kaur Gill v. Smt. Surjit Kaur Gill, FAO(OS) No.634/2009, decided on 15th January, 2009, it is held as under:

  • “13. The plea of ownership by way of adverse possession now sought to be taken is found to be mutually destructive to the plea of possession as co-owner, as a subrogatee-mortgagee in possession and as a tenant. The Supreme Court in L.M. Aswathama v. P. Prakash, MANU/SC/1222/2009 has also held that pleas based on title and adverse possession are mutually destructive; adverse possession does not begin to operate until title is renounced; unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period of prescription will not commence.” (Quoted in: Rishi Rathi v. Rishi Rathi, AIR 2022 (Del)(NOC) 585; Kewal Kishan v. Delhi Development Authority, 2013-137 DRJ 267)

In Combi v. K. S.  Ramachandran, 2021-6 KerHC 790; 2021-6 KerLT 379, it is held as under:

  • “3. The contention of tenancy right and adverse possession is mutually destructive and hence cannot be sustained. The tenancy right claimed was rejected by the Land Tribunal on a reference under Section 125 of the KLR Act due to lack of evidence. Nothing was brought to the notice of this court regarding any acceptable proof or evidence showing any existing tenancy right. As discussed earlier, the claim of adverse possession is mutually destructive and inconsistent, hence cannot be sustained.”

In Radheshyam Pathak v. Kanhaiyaa Gond, 2021, it is held as under:

  • “Plea of title and adverse possession, both, are mutually destructive plea and inconsistent as well. Therefore, the defendants cannot be permitted to raise mutually destructive plea.”

In Laxmi Narain v. Kartar Singh, 2021-1 LawHerald 322; 2021-2 RCR(Civ) 780, it is held as under:

  • “In the case titled Rama Kanta Jain v. M.S. Jain. Delhi High Court, 1999(2) RCR (Civil) page 685, it has been laid down that a person who traces his possession to a lawful title can never become an owner by adverse possession. The mere fact that the respondent has come forward with a plea of adverse possession means that he admits the appellant to be true owner. For a plea of ownership on the basis of adverse possession, the first and foremost condition is that the property must belong to someone else other than the person pleading his title. In the instant case, the respondent has put forward the defences which are irreconcilable and mutually destructive and inconsistent with one another.”

In Krishna Chandra v. Sarju Dei 2020-7 ADJ 416; 2020-5 AllLJ 363, it is held as under:

  • “34. Besides, alternative plea may be permissible, but mutually destructive pleas are not permissible. The defendants may raise inconsistent pleas so long as they are not mutually destructive as held in Biswanath Agarwalla v. Sabitri Bera. [JT 2009 (10) SC 538].
  • 35. In Gautam Sarup v. Leela Jetly, [(2008) 7 SCC 85] the Court said that a defendant is entitled to take an alternative plea but such alternative pleas, however, cannot be mutually destructive of each other.”

No Adverse Possession Without Admitting Title of Real Owner

In Nand Ram v.  Jagdish Prasad, AIR 2020 SC 1884; (2020) 9 SCC 393, it was pointed out by the Apex Court :

  • “The question of adverse possession without admitting the title of the real owner is not tenable.”

Our Apex Court, in Ayodhya case Judgment, M Siddiq v. Mahant Suresh Das, 2020-1 SCC 1, it is held as under:

  • “747. A plea of adverse possession is founded on the acceptance that ownership of the property vests in another against whom the claimant asserts a possession adverse to the title of the other.”

This principle is laid down in the following decisions also:

  • The State of Haryana v. Amin Lal, 2024-4 CurCC(SC) 222,
  • Kurella Naga Druva Vudaya Bhaskara Rao v. Galla Jani Kamma, (2008) 15 SCC 150,
  • Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 461.

Conclusion

The law is well settled:

  1. Mutually destructive pleas cannot co-exist.
  2. If a party to the suit raises mutually inconsistent (but not mutually destructive) pleas, he must elect and confine himself to one in the trial.

With respect to alternative pleadings of title and adverse possession, there remains a divergence in judicial opinion on one key issue:

  • whether the alternative pleadings of ‘title and adverse possession’ are to be regarded as ‘mutually inconsistent’ or ‘mutually destructive’.

The fundamental difference in the origin of the rights, the claim of title and adverse possession cannot coexist in the same case. One is destructive to the other, also. Because, it involves two inherently contradictory pleas:

  • (i) “I own the lawful owner of the property”, and
  • (ii) “I do not own it lawfully; the true owner is someone else’’.

Therefore, the simple and clear answer is that such claims are, for obvious reasons, mutually destructive and defeat each other.

  • However, in cases involving alternative pleadings of ‘title’ and ‘adverse possession’, it appears that our Apex Court tends to favour the doctrine of ‘mutual inconsistency’ over ‘mutual destructiveness’— perhaps as a pragmatic approach to manage and circumvent the inherent complexities arising from conventional pleading practices in such matters.

While courts may show some leniency in permitting divergent pleas at the trial stage, appellate courts generally do not entertain a position that contradicts the stance previously ‘elected’ or opted at trial.

End Notes:

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.

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The Laws of ‘Doctrine of Election’ and ‘Doctrine of Waiver’

Saji Koduvath, Advocate, Kottayam.

Part I – Introduction

The ‘Doctrine of Election’ is an Obligation

An ‘election’ is the obligation imposed upon a party by Courts of Equity to choose between two inconsistent or alternative rights.

No Contradictory Stands in the Same Case

A litigant can take different stands at different times but cannot take contradictory stands in the same case.

  • Suzuki Parasrampuria Suitings Private Limited v. Official Liquidator of Mahendra Petrochemicals Limited, 2018-10 SCC 707.

‘Mutually Destructive‘ Pleas Cannot Co-exist

When two propositions are presented in a party’s pleadings that contradict or destroy each other, and both cannot be true simultaneously, they are considered “mutually destructive”. Such inconsistency renders both pleas unreliable, and consequently, both are liable to be rejected. Example:

  • 1. Claim of title and adverse possession.
  • 2. Claim of title and benefits under Section 60(b) Easements Act.
  • 3. Easement by prescription and easement of necessity.
  • 4. Ownership and easement.

Following cases dealt with ‘mutually destructive‘ pleas:

  • Steel Authority of India Ltd v. Union of India, AIR 2006 SC 3229, 2006-12 SCC 233
  • Damodhar Narayan Sawale v. Tejrao Bajirao Mhaske, AIR 2023 SC 3319
  • Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jajoo, 2009-5 SCC 713
  • Narayan Sawale v. Tejrao Bajirao Mhaske, AIR 2023 SC 3319
  • Biswanath Agarwalla v. Sabitri Bera, 2009-15 SCC 693
  • Gautam Sarup v. Leela Jetly, 2008-7 SCC 85.

Claim of Title and Adverse Possession are Mutually Destructive

This is because the claim of title and adverse possession involve two inherently contradictory pleas:

  • (i) “I own the property lawfully,” and
  • (ii) “I do not own it lawfully, but I have acquired title by possessing it unlawfully for a sufficient period to attract the doctrine of adverse possession.”

Because of the fundamental difference in the origin of the rights, both cannot logically coexist in the same case. One is destructive to the other.

  • Rattan Lal v. Ragunath, 18 Aug 2023, 2023 Supreme (Del) 3938, 
  • Rishi Rathi v. Rishi Rathi, AIR 2022 (Del)(NOC) 585
  • Anu Gupta v. Vijay Gupta, 08 Aug 2022, 2022 Supreme(Del) 1198.
  • Vidya Shanker v. Suresh Chandra, 2020-4 ADJ 547; 2020-5 AllLJ 290; 2020 142 AllLR 353; 2020 4 AWC 3430 (Sudhir Agarwal, J.)
  • Kuriakose v. Varkey, 2017 Supreme(Ker) 858
  • Bharat Bhushan Jain & Anr. v. UOI, 2014 SCC OnLine Del 3577,
  • Kewal Kishan v. Delhi Development Authority, 2013-137 DRJ 267
  • Mrs. Adarsh Kaur Gill v. Smt. Surjit Kaur Gill, FAO(OS) No.634/2009
  • Rama Kanta Jain v. M.S. Jain, AIR 1999 (Del) 281,

Plea of Title and Adverse Possession – Contradictory/Inconsistent Pleas

Because, they are founded on fundamentally different legal principles, which cannot coexist without contradiction.

  • Government of Kerala v. Joseph, AIR 2023 SC 3988,
  • Karnataka Board of Wakf v. Government of India, AIR 2004 SC 2096; 2004-10 SCC 779,
  • P. T. Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753; 2007-6 SCC 59 (S.B. Sinha, J.);
  • Narasamma v. A. Krishnappa, AIR 2020 SC 4178; 2020-15 SCC 218.

See also:

  • Prabhakar Gones Prabhu Navelkar v. Saradchandra Suria Prabhu Navelkar, 2020-20 SCC 465
  • T. Ravi v. B. Chinna Narasimha, 2017-7 SCC 342,
  • L.N. Aswathama v. V.P. Prakash, 2009-13 SCC 229 (R.V. Raveendran, J.),
  • Arundhati Mishra v. Shri Ram Charita Pandey, (1994) 2 SCC 29.

Part II

Origin and Nature of Enjoyment Make Certain Dual Pleas Inconsistent

In Kerala State v. Brijit (A. Hariprasad, J.), ILR 2018-2 (Ker) 483; 2018-2 KHC 521; 2018-2 KLT(SN) 53, it is pointed out as under:

  • “53. As we all know, there are certain claims which are mutually inconsistent and exclusive, like easement by prescription and easement of necessity, ownership and easement, lease and license, etc. In the case of easement by prescription and easement of necessity, origin of the rights are entirely different. Easement right by prescription arises by proving the ingredients under Section 15 of the Easements Act, 1882, whereas a claim for easement of necessity, under Section 13, essentially arises out of severance of the tenements by transfer, partition or bequest. It is therefore clear that they cannot be claimed together as they originate from different sources.
  • Likewise, easement and ownership cannot be claimed together for the reason that easement is a right not claimable on one’s own property going by the definition in Section 4 of the Easements Act.
  • Lease and license also cannot be claimed together because a lease is a transfer of property falling within the provisions of the TP Act and a license is in the nature of a permission granted to one person for doing something in or upon the immovable property of the grantor, under the provisions of Section 52 of the Easements Act, which does not involve a transfer of property. Such incompatible rights originate from different sources and, therefore, nature of their enjoyment also would be different.”

The Rule, ‘Not to Approbate and Reprobate‘, is Borrowed from Scotch Law

The rule is referred to by Scrutton L.J. in Verschures Creameries Ltd. v. Hull and Netherlands Steamship Co. Ltd. (1921) 2 KB 608. He spoke as under:

  • “A plaintiff is not permitted to “approbate and reprobate.” The phrase is apparently borrowed from the Scotch law, where it is used to express the principle embodied in our doctrine of election – namely, that no party can accept and reject the same instrument: Ker vs. Wauchope, (1819) 1 Bli. 1 and Douglas-Menzies vs. Umphelby, (1908) AC 224.
  • The doctrine of election is not however confined to instruments. A person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. That is to approbate and reprobate the transaction.” (Quoted in: Nagubai Ammal v B. Snama Rao, AIR 1956 SC 593; 1956 SCR 451; Union of India v. N.  Murugesan, 2022-2 SCC 25)

Doctrine of Election – An Action at Law is Not “a Game of Chess”

Our Apex Court, in Mumbai International Airport Pvt.  Ltd.  v. Golden Chariot Airport, 2010-10 SCC 422, while considering the doctrine of election in the pleas on (i) ‘contractual licence’ and (ii) ‘licence turned to irrevocable one under Sec. 60(b) Easement Act’, held as under:

  • “50. … It is therefore clear that the contesting respondent has taken a stand before a Court of Law and also got the benefit as a result of taking such stand in as much as it got the suit revived and tried and got the benefit of an interim order in the said proceedings. As a result of the aforesaid stand being taken, the suit of the contesting respondent went on before the Bombay City Civil Court from 2001 to 2004 and in view of the interim protection, the contesting respondent ran the restaurant during that period.
  • 53. Now the question is whether the contesting respondent on a complete volte-face of its previous stand, can urge its case of irrevocable licence before the Estate Officer and now before this Court?
  • 54. The answer has to be firmly in the negative. Is an action at law a game of chess? Can a litigant change and choose its stand to suit its convenience and prolong a civil litigation on such prevaricated pleas?
  • 55. The common law doctrine prohibiting approbation and reprobation is a facet of the law of estoppel and well established in our jurisprudence also.
  • 56. The doctrine of election was discussed by Lord Blackburn in the decision of the House of Lords in Benjamin Scarf vs. Alfred George Jardine,3 [(1881-82) 7 Appeal Cases 345], wherein the learned Lord formulated
    • “…a party in his own mind has thought that he would choose one of two remedies, even though he has written it down on a memorandum or has indicated it in some other way, that alone will not bind him; but so soon as he has not only determined to follow one of his remedies but has communicated it to the other side in such a way as to lead the opposite party to believe that he has made that choice, he has completed his election and can go no further; and whether he intended it or not, if he has done an unequivocal act … the fact of his having done that unequivocal act to the knowledge of the persons concerned is an election.”
  • 57. In Tinkler vs. Hilder,4 (1849) 4 Exch 187, Parke, B., stated that where a party had received a benefit under an Order, it could not claim that it was valid for one purpose and invalid for another (See page 190).”

Once One Exercises his Election, it shall be forever

In Mumbai International Airport Pvt.  Ltd.  v. Golden Chariot Airport, 2010-10 SCC 422, the Supreme Court held further as under:

  • “58. In Clough vs. London and North Western Rail Co.5 [(1861-73) All ER, Reprint, 646] the Court referred to Comyn’s Digest, wherein it has been stated:-
    • “If a man once determines his election, it shall be determined forever.”
  • In the said case, the question was whether in a contract of fraud, whether the person on whom the fraud was practiced had elected to avoid the contract or not. The Court held that as long as such party made no election, it retained the right to determine it either way, subject to the fact that an innocent third party must not have acquired an interest in the property while the former party is deliberating. If a third party has acquired such an interest, the party who was deliberating will lose its right to rescind the contract. Once such party makes its election, it is bound to its election forever. (See page 652)

Doctrine of Election – One cannot Approbate and Reprobate

In Mumbai International Airport Pvt.  Ltd.  v. Golden Chariot Airport, 2010-10 SCC 422, our Apex Court went on to say as under:

  • “59. In Harrison vs. Wells,6 1966 (3) All ER 524, Salmon LJ, in the Court of Appeal, observed that the rule of estoppel was founded on the well-known principle that one cannot approbate and reprobate. The doctrine was further explained by Lord Justice Salmon by holding
    • “it is founded also on this consideration, that it would be unjust to allow the man who has taken full advantage of a lease to come forward and seek to evade his obligations under the lease by denying that the purported landlord was the landlord”. (See page 530)
  • 60. In Kok Hoong vs. Leong Cheong Kweng Mines Ltd.,7 (1964 Appeal Cases 993), the Privy Council held that
    • “a litigant may be shown to have acted positively in the face of the court, making an election and procuring from it an order affecting others apart from himself, in such circumstances the court has no option but to hold him to his conduct and refuse to start again on the basis that he has abandoned.” (See page 1018)
  • 61. Justice Ashutosh Mookerjee speaking for the Division Bench of Calcutta High Court in Dwijendra Narain Roy vs. Joges Chandra De, (AIR 1924 Cal 600), held that it is an elementary rule that a party litigant cannot be permitted
    • to assume inconsistent positions in Court,
    • to play fast and loose,
    • to blow hot and cold,
    • to approbate and reprobate
    • to the detriment of his opponent.
  • This wholesome doctrine, the learned Judge held, applies not only to successive stages of the same suit, but also to another suit than the one in which the position was taken up, provided the second suit grows out of the judgment in the first.
  • 62. xxx
  • 63. This Court has also applied the doctrine of election in C. Beepathumma & Ors. vs. V.S. Kadambolithaya & Ors.,9 1964 (5) SCR 836, wherein this Court relied on Maitland as saying:
    • “That he who accepts a benefit under a deed or will or other instrument must adopt the whole contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it.” (Maitlands Lectures on Equity, Lecture 18).”

Election is the Obligation to Choose between Two

Our Apex Court, in Mumbai International Airport Pvt.  Ltd.  v. Golden Chariot Airport, 2010-10 SCC 422, added as under:

  • “This Court also took note of the principle stated in White & Tudor’s Leading Case in Equity volume 18th edition at p.444 – wherein it is stated,
    • “Election is the obligation imposed upon a party by Courts of equity to choose between two inconsistent or alternative rights or claims in cases where there is clear intention of the person from whom he derives one that he should not enjoy both… That he who accepts a benefit under a deed or will must adopt the whole contents of the instrument.”
  • 64. In M/s New Bihar Biri Leaves Co. & Ors. vs. State of Bihar & Ors.,10 (1981) 1 SCC 537, this Court observed that it is a fundamental principle of general application that if a person of his own accord, accepts a contract on certain terms and works out the contract, he cannot be allowed to adhere to and abide by some of the terms of the contract which proved advantageous to him and repudiate the other terms of the same contract which might be disadvantageous to him. The maxim, qui approbat non reprobat (one who approbates cannot reprobate), applies in our laws too.”       

A Party cannot Accept and Reject the same Instrument

In Cauvery Coffee Traders, Mangalore v. Hornor Resources (International) Company Limited. (2011) 10 SCC 420, the Supreme Court of India, held as under:

  • “33. In R.N. Gosain v. Yashpal Dhir, 1992 (4) SCC 683, this Court has observed as under:
  • “10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that ‘a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid and then turn round and say it is void for the purpose of securing some other advantage.”
  • 34. A party cannot be permitted to
    • “blow hot and cold” and
    • “fast and loose” or
    • “approbate and reprobate.”
  • Where one knowingly accepts the benefits of a contract or conveyance or an order, is estopped to deny the validity or binding effect on him of such contract or conveyance or order. This rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience.
  • Nagubai Ammal vs. B. Shama Rao, AIR 1956 SC 593,
  • CIT vs. V.M.R.P. Firm Muar, AIR 1965 SC 1216,
  • Maharashtra SRTC vs. Balwant Regular Motor Service, AIR 1969 SC 329,
  • R. Deshpande vs. Maruti Balaram Haibatti, (1998) 6 SCC 507 : AIR 1998 SC 2979,
  • Babu Ram vs. Indra Pal Singh, (1998) 6 SCC 358 : AIR 1998 SC 3021,
  • NTPC Ltd. vs. Reshmi Constructions, Builders and Contractors, (2004) 2 SCC 663 : AIR 2004 SC 1330,
  • Ramesh Chandra Sankla vs. Vikram Cement and Pradeep Oil Corporation vs. MCD, (2008) 14 SCC 58 : 2009 (1) SCC (L&S) 706 : AIR 2009 SC 713.”

The Doctrine of Election is based on the Rule of Estoppel

In Joint Action Committee of Air Line Pilots’ Association of India (ALPAI) v. Director General of Civil Aviation, (2011) 5 SCC 435, our Apex Court, held as under:

  • “12. The doctrine of election is based on the rule of estoppel – the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. Taking inconsistent pleas by a party makes its conduct far from satisfactory. Further, the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily.
  • Babu Ram vs. Indra Pal Singh, (1998) 6 SCC 358,
  • P.R. Deshpande vs. Maruti Balaram Haibatti, (1998) 6 SCC 507 and
  • Mumbai International Airport (P) Ltd. vs. Golden Chariot Airport, (2010) 10 SCC 422 : (2010) 4 SCC (Civ) 195.”

Kerala High Court in Chairman State Bank of India, Corporate Centre, Mumbai v. Unnikrishnan P. C. Rural Marketing and Recovery Officers, ILR 2020-4 (Ker) 8; 2020-4 KHC 640; 2020-5 KLT 1, it is held as under:

  • “9. Persons who accepted the appointment on specific terms cannot be allowed to turn around and challenge the terms/conditions of such appointment. They cannot be allowed to approbate and reprobate. …
  • xxxx
  • 35. Thus, it is evident that the doctrine of election is based on the rule of estoppel – the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had.”

No Contradictory plea at the Appellate stage

In Balakrishna Menon v. Padmavathy Amma, AIR 1993 Kerala 218, it is observed as under:

  • “A party to a litigation cannot be allowed to take a contradictory or inconsistent pleas one at trial stage and another at appellate stage. His contention in a proceeding from beginning to the end shall be consistent and uniform. It is an elementary rule that a party litigant cannot be permitted to assume inconsistent positions in Court, to play fast and loose, to blow hot and cold to approbate and reprobate to the detriment of his opponent. This wholesome doctrine applies to the successive stages of the same suit. The above position of law is laid down in Dwijendra Narain Roy v. Joges Chandra De, AIR 1924 Cal. 600″. (See also: Sulaikha Beevi v. K. C. Mathew, ILR 1997-2 (Ker) 40; 1997-1 KLT 69)
  • The above principle has been applied by the Division Bench of the Calcutta High Court, Mukkerji and Bose, JJ., in Hemanta Kumari Devi v. Prasanna Kumar Datta, AIR 1930 Calcutta 32.

‘Mutually Destructive‘ Pleas Cannot Co-exist

In Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jajoo, 2009-5 SCC 713 (S.B. Sinha,Dr. Mukundakam Sharma, JJ.), it is held as under:

  •  “Pleadings of the parties, it is trite, are required to be read as a whole. Defendants, although are entitled to raise alternative and inconsistent plea but should not be permitted to raise pleas which are mutually destructive of each other.”

The Supreme Court in Steel Authority of India Ltd v. Union of India, AIR 2006 SC 3229, 2006-12 SCC 233, (S.B. Sinha, Dalveer Bhandari) held as under:

  • “To raise such a mutually destructive plea is impermissible in law. Such mutually destructive plea, in our opinion, should not be allowed to be raised even in an industrial adjudication. Common law principles of estoppel, waiver and acquiescence are applicable in an industrial adjudication.”

In Damodhar Narayan Sawale v. Tejrao Bajirao Mhaske, AIR 2023 SC 3319;  it is pointed out as under:

  • “Contextually, it is apposite to state that though in a suit a defendant is entitled to raise alternative inconsistent plea he could not be permitted to raise pleas which are mutually destructive of each other and raising such pleas would only work out to his detriment.”

In Gautam Sarup v. Leela Jetly, 2008-7 SCC 85 (V.S. Sirpurkar, S.B. Sinha, JJ.) it is held as under:

  • “22. What, therefore, emerges from the discussions made hereinbefore is that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other.” (Quoted in: Biswanath Agarwalla v. Sabitri Bera, 2009-15 SCC 693)

In Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693 (Deepak Verma, S.B. Sinha JJ.), pointed out as under:

  • “A defendant, as is well known, may raise inconsistent pleas so long as they are not mutually destructive.“

Time to Choose and Confine to One of the Alternative Pleadings

Different views:

  • 1. Before the commencement of the trial and taking evidence.
  • 2. At least at the time of arguments.
  • 3. During trial.

One thing is definite – the stance on ‘election’ must have reflected in the trial.

The pleas on title and adverse possession are mutually inconsistent, and the latter does not begin to operate until the former is renounced. Therefore, the time to choose and confine to one of the alternative inconsistent pleadings is before the commencement of the trial and taking evidence, so that the opposite party may not be prejudiced (See: P. V. Abdul Majeed Haji v. Shorabi, 2020-4 KerHC 53; 2020-4 KerLT 629).

But, according to the Andhra High Court, as held in Kavitha Goud v. Nookala Sudarshan Reddy, AIR 2004 AP 326; 2004-4 ALD 324; 2004-5 ALT 293, it is ‘at least at the time of arguments‘. In this case, it is said as under:

  • “It is true that a party can take inconsistent pleas, and can adduce evidence in respect of both the inconsistent pleas taken by him. But at least at the time of arguments, he must choose and confine his case to one of those pleas only, but cannot be permitted to urge the inconsistent pleas as grounds of attack or defence till the end of the lis, because the other side should know what exactly is his case.”

The Andhra High Court, in Atluri Prabhakara Rao v. Chalasani Krishna Kumari, 2017-2 ALT 240; 2017 3 ALT 785 (M. Satyanarayana Murthy, J.), observed that the time to confine to any one of the pleas is ‘during trial’. It is said as under:

  • “These two pleas are inconsistent to one another. Forgery is totally distinct from the fabrication. However, the defendant may take inconsistent pleas but she has to confine to any one of the pleas during trial.”

In Kuriakose v. Varkey, 2017 Supreme(Ker) 858, it is pointed out as under:

  • “It is true that the defendant is entitled to take inconsistent pleas, but at the time of trial, he will have to stick on to one case.”

Part III

Plea of Title and Adverse Possession: ‘Mutually Inconsistent‘

In Karnataka Board of Wakf v. Government of India, AIR 2004 SC 2096; 2004-10 SCC 779, it is held as under:

  • “The pleas on title and adverse possession are mutually inconsistent, and the latter does not begin to operate until the former is renounced.”
  • (Quoted in: P. T. Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753; 2007-6 SCC 59 (S.B. Sinha, J.); Narasamma v. A. Krishnappa, AIR 2020 SC 4178; 2020-15 SCC 218.)

In L.N. Aswathama v. V.P. Prakash, 2009-13 SCC 229 (R.V. Raveendran, J.) also it was held that the pleas based on title and adverse possession are mutually inconsistent.

RC Lahoti J., opined in Kedar Nath v. Ram Parkash, 1997-2 AD(Del) 761; 1999-1 CLT 1; 1997-67 DLT 106, as under:

  • “However a party would be better advised to abandon one of the two inconsistent pleas before going to the trial because contradictory inconsistent pleas may lead to effect associated with the peril of Court’s confidence being denied to both. Take the case of a person in possession pleading license and adverse possession in the alternative in an effect to protect his possession.”

In L.N. Aswathama v. V.P. Prakash, 2009-13 SCC 229 (R.V. Raveendran, J.), it is held as under:

  • “17. … The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence.
  • 18. …When a person is in possession asserting to be the owner, even if he fails to establish his title, his possession would still be adverse to the true owner. Therefore, the two pleas put forth by the defendant in this case are not inconsistent pleas but alternative pleas available on the same facts. Therefore, the contention of the plaintiffs that the plea of adverse possession is not available to defendant is rejected.”

In Arundhati Mishra v. Shri Ram Charita Pandey, (1994) 2 SCC 29, it is held as under:

  • “4. The question in this case is whether the plea of adverse possession sought to be set up by the respondent could be permitted to be raised. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.”

In Om Prakash v. Bhaurao, 2022 Supreme(Bom) 1417, it is held as under:

  • “18. The defendants are certainly entitled to take inconsistent pleas. However, mutually destructive or exclusive pleas stand on a different pedestal. A person who has set a title in himself cannot be permitted to alternatively plea perfection of title by adverse possession. The concept of adverse possession pre-supposes that the claimant accepts the title of the adversary. Adverse possession cannot begin to operate until the claimant renounces title and accepts the title of the adversary.”

In Government of Kerala v. Joseph, AIR 2023 SC 3988, the Supreme Court has affirmed the law as under:

  • “49. Claim of independent title and adverse possession at the same time amount to contradictory pleas.”

In Vidya Shanker v. Suresh Chandra, 2020-4 ADJ 547; 2020-5 AllLJ 290; 2020 142 AllLR 353; 2020 4 AWC 3430 (Sudhir Agarwal, J.) it is said as under:

  • “39. In the matter of plea of adverse possession, mutually inconsistent or mutually destructive pleas must not be taken in the plaint. Whenever the plea of adverse possession is raised, it pre supposes that onwer is someone else and the person taking the plea of adverse possession is not the actual owner but has perfected his title by prescription since the real owner failed to initiate any proceeding for restoring the possession within the prescribed period under the statute.”

Sudhir Agarwal, J. then pointed out as under:

  • “40. In P. Periasami v. P.Periathambi, 1995 (6) SCC 523, it was said:
    • “Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property.”
  • 41. In Mohan Lal v. Mirza Abdul Gaffar, (1996) 1SCC 639, the Court said:
    • “As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period his title by prescription nec vi, nec clam, nec precario.”
  • 42. In Karnataka Board of Wakf Vs. Government of India, (2004) 10 SCC 779, Court held that whenever the plea of adverse possession is projected, inherent therein is that someone else is the owner of the property. In para 12 it said:
    • “The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.”

Plea of Title and Adverse Possession: Mutually Destructive

The Kerala High Court, in P. S. George v. Balakrishnan, 2015-1 CivCC 26; ILR 2014-4 (Ker) 966; 2014-4 KHC 725; -2014-4 KLT 788, pointed out as under:

  • “Put it differently, he had been enjoying the disputed property as his own property. So also, there is no pleading either recognising or acknowledging the plaintiffs as the true owners of the property. Needless to say, the element of ‘animus possidendi’ is totally absent. I have already held that alternative plea of adverse possession is unsustainable, mutually destructive and liable to be rejected.”

In Kuriakose v. Varkey, 2017 Supreme(Ker) 858, it is held as under:

  • “It is settled law that, claiming title in one self and claiming title by adverse possession will not go together and they are mutually exclusive and destructive to each other. It is true that the defendant is entitled to take inconsistent pleas, but at the time of trial, he will have to stick on to one case.”

In Rama Kanta Jain v. M.S. Jain, AIR 1999 (Del) 281, it was held as under:

  • “18. There is another aspect of the matter. The mere fact that the defendants have come forward with a plea of adverse possession, means that they admit the plaintiff to be the true owner. For a plea of ownership on the basis of adverse possession, the first and the foremost condition is, that the property must belong to someone else other than the person pleading his title on the basis of adverse possession, In the instant case the defendants have put forward defences which are irreconcilable’ and mutually destructive and inconsistent with one another.’” (Quoted in: Anu Gupta v. Vijay Gupta, 08 Aug 2022, 2022 Supreme(Del) 1198).

In Rattan Lal v. Ragunath, 18 Aug 2023, 2023 Supreme (Del) 3938, quoting Government of Kerala v. Joseph, AIR 2023 SC 3988, it is held as under:

  • “11.2. Therefore, the plea of adverse possession raised by the Appellants as a new plea in first appeal is inconsistent with the case setup in the written statement and the trial. In law, the Appellants are precluded from taking the said plea in view of the decision of the Coordinate Bench of this Court in Bharat Bhushan Jain & Anr. v. UOI & Ors., 2014 SCC OnLine Del 3577, wherein this Court has held that the plea of ownership by title and adverse ownership cannot be raised together being inconsistent and mutually destructive. The plea of adverse possession is a question of fact and cannot be raised in appeal only on the basis of prolonged possession of suit property in the absence of the proof of the other ingredients necessary for proving the said defence including the fact that the possession was hostile to the true owner of the property.”  

No Impediment in Claiming Ownership and Adverse Possession

In Kerala State v. Brijit, ILR 2018-2 (Ker) 483; 2018-2 KHC 521; 2018-2 KLT(SN) 53, emphasised that there is no impediment in claiming ownership and, in the alternative, a prescriptive title to it by adverse possession. The learned Judge stressed his point as under:

  • “54. … Exclusive possession of the thing owned and the right to exclude others from possession are two essential components in the bundle of rights called “title” or “ownership”. In other words, every owner has a right to possess property in exclusion of all the others. Every person holding property under a claim of adverse possession keeps possession of the same with a hostile animus to exclude all others, including the true owner. Therefore, both in a claim of ownership and adverse possession, assertive possession is an essential component. In the case of a person claiming adverse title by prescription, he must have been holding possession with an open hostile animus for the prescribed period. Therefore, I find no reason to think that there is any impediment in claiming ownership of property and in the alternative, a prescriptive title to it by adverse possession and limitation.”

Mutually Destructive Pleas Cannot be Permitted

In  Mrs. Adarsh Kaur Gill v. Smt. Surjit Kaur Gill, FAO(OS) No.634/2009, decided on 15th January, 2009, it is held as under:

  • “13. The plea of ownership by way of adverse possession now sought to be taken is found to be mutually destructive to the plea of possession as co-owner, as a subrogatee-mortgagee in possession and as a tenant. The Supreme Court in L.M. Aswathama v. P. Prakash, MANU/SC/1222/2009 has also held that pleas based on title and adverse possession are mutually destructive; adverse possession does not begin to operate until title is renounced; unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period of prescription will not commence.” (Quoted in: Rishi Rathi v. Rishi Rathi, AIR 2022 (Del)(NOC) 585; Kewal Kishan v. Delhi Development Authority, 2013-137 DRJ 267)

In Combi v. K. S.  Ramachandran, 2021-6 KerHC 790; 2021-6 KerLT 379, it is held as under:

  • “3. The contention of tenancy right and adverse possession is mutually destructive and hence cannot be sustained. The tenancy right claimed was rejected by the Land Tribunal on a reference under Section 125 of the KLR Act due to lack of evidence. Nothing was brought to the notice of this court regarding any acceptable proof or evidence showing any existing tenancy right. As discussed earlier, the claim of adverse possession is mutually destructive and inconsistent, hence cannot be sustained.”

In Radheshyam Pathak v. Kanhaiyaa Gond, 2021 0 Supreme(Chh) 196, it is held as under:

  • “Plea of title and adverse possession, both, are mutually destructive plea and inconsistent as well. Therefore, the defendants cannot be permitted to raise mutually destructive plea.”

In Laxmi Narain v. Kartar Singh, 2021 1 LawHerald 322; 2021 2 RCR(Civ) 780, it is held as under:

  • “In the case titled Rama Kanta Jain v. M.S. Jain. Delhi High Court, 1999(2) RCR (Civil) page 685, it has been laid down that a person who traces his possession to a lawful title can never become an owner by adverse possession. The mere fact that the respondent has come forward with a plea of adverse possession means that he admits the appellant to be true owner. For a plea of ownership on the basis of adverse possession, the first and foremost condition is that the property must belong to someone else other than the person pleading his title. In the instant case, the respondent has put forward the defences which are irreconcilable and mutually destructive and inconsistent with one another.”

In Krishna Chandra v. Sarju Dei 2020-7 ADJ 416; 2020 5 AllLJ 363, it is held as under:

  • “34. Besides, alternative plea may be permissible, but mutually destructive pleas are not permissible. The defendants may raise inconsistent pleas so long as they are not mutually destructive as held in Biswanath Agarwalla v. Sabitri Bera. [JT 2009 (10) SC 538].
  • 35. In Gautam Sarup v. Leela Jetly, [(2008) 7 SCC 85] the Court said that a defendant is entitled to take an alternative plea but such alternative pleas, however, cannot be mutually destructive of each other.”

No Adverse Possession Without Admitting Title of Real Owner

In Nand Ram v.  Jagdish Prasad, AIR 2020 SC 1884; (2020) 9 SCC 393, it was pointed out by the Apex Court :

  • “The question of adverse possession without admitting the title of the real owner is not tenable.”

Our Apex Court, in Ayodhya case Judgment, M Siddiq v. Mahant Suresh Das, 2020-1 SCC 1, it is held as under:

  • “747. A plea of adverse possession is founded on the acceptance that ownership of the property vests in another against whom the claimant asserts a possession adverse to the title of the other.”

This principle is laid down in the following decisions also:

  • The State of Haryana v. Amin Lal, 2024-4 CurCC(SC) 222,
  • Kurella Naga Druva Vudaya Bhaskara Rao v. Galla Jani Kamma, (2008) 15 SCC 150,
  • Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 461.

Conclusion

The law is well settled:

  1. Mutually destructive pleas cannot co-exist.
  2. If a party to the suit raises mutually inconsistent (but not mutually destructive) pleas, he must elect and confine himself to one in the trial.

With respect to alternative pleadings of title and adverse possession, there remains a divergence in judicial opinion on one key issue:

  • whether the alternative pleadings of ‘title and adverse possession‘ are to be regarded as ‘mutually inconsistent’ or ‘mutually destructive’.

The fundamental difference in the origin of the rights, the claim of title and adverse possession cannot coexist in the same case. One is destructive to the other. Because, it involves two inherently contradictory pleas:

  • (i) “I own the lawful owner of the property”, and
  • (ii) “I do not own it lawfully; the true owner is someone else“.

Therefore, the simple and clear answer is that such claims are, for obvious reasons, mutually destructive and defeat each other.

  • However, in cases involving alternative pleadings of ‘title’ and ‘adverse possession,’ it appears that our Apex Court tends to favour the doctrine of ‘mutual inconsistency’ over ‘mutual destructiveness’— perhaps as a pragmatic approach to manage and circumvent the inherent complexities arising from conventional pleading practices in such matters.

While courts may show some leniency in permitting divergent pleas at the trial stage, appellate courts generally do not entertain a position that contradicts the stance previously ‘elected’ or opted at trial.

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

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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

No Res Judicata on Finding on Title in an Injunction Suit

Taken from: Res Judicata and Constructive Res Judicata

Saji Koduvath, Advocate, Kottayam.

No Res judicata, where –

  • Decision by fraud
  • Dismissal in limine
  • Suit was premature
  • Pure question of law
  • Compromise decree
  • Want of jurisdiction
  • Habeas corpus cases
  • Dismissal on ‘limitation’
  • New laws bring changes 
  • Public interest litigation
  • Decision not on the merits,
  • Dismissal for want of notice
  • Suit was not properly framed,
  • Dismissal on technical ground
  • Default of plaintiffs appearance,
  • Decision by an incompetent court
  • Cases where re-litigation is needed
  • Misjoinder or non-joinder of parties
  • Grounds not taken up by appeal court
  • Findings on the Title in an injunction suit.
  • Dismissed in limine without a Speaking Order
  • Intermediate reliefs in interlocutory applications.
  • Findings not Necessary (for supporting decree)
  • Taxation cases. Liability to pay tax each year differs.
  • Lower Court findings where appeal decree was passed
  • Former decision was too perverse (no proper reasoning)  
  • Adverse findings against one who got a favorable decree
  • Different causes of action, as in an injunction suit or in an eviction suit

Other Settled Position: No Res Judicata, When

  • Issue not decided/adjudicated.
  • Dismissal of earlier suit for res judicata.
  • Dismissal of earlier suit for insufficient court fees. 
  • If the ultimate decision was that the suit was not maintainable.
  • Adverse findings against one, in favour of whom the suit was ultimately decided.
  • Findings on several grounds. In the appeal, only one ground was considered. Res judicata on that one ground alone.

What is Res Judicata?

‘Res’, in Latin, means a thing or matter; and ‘Judicata’ means decided or judged.

  • Thus, Res Judicata applies when the ‘matter is decided’.

It is based on the public policy of finality and conclusiveness of judicial decisions, and private interest of all persons sued; that is, one should not be tried twice for the same cause or a matter that has been directly and substantially in issue in an earlier suit. Sec. 11 of the Code of Civil Procedure, 1908, elucidates this principle.

Read Also:

             •➧ Ratio Decidendi (alone) Forms a Precedent; Not the Final Order or Conclusion.
             •➧ Relevancy of a Civil Case Judgment in Criminal Cases: Does a Civil Court Judgment Bind a Criminal Court?
             •➧ Prem Raj v.  Poonamma Menon (SC), April 2, 2024 – An Odd Decision on ‘Civil Court Judgment Does Not Bind Criminal Court’.
             •➧ Cheating and Breach of Contract: Distinction lies in Fraudulent Intention ‘at the time of Promise’.  No Criminal Case endures on a Dispute Essentially Civil in Nature.
             •➧ Res Judicata and Judicial Precedent
             •➧ What are “Relevant Under Some Other Provisions of this Act” in Sec. 43?
             •➧ Judicial Precedent and Res Judicata – a Couplet
             •➧ Res Judicata and Constructive Res Judicata
             •➧Alternative Pleadings on Title and Adverse Possession: Mutually Inconsistent or Mutually Destructive?
             •➧Res Judicata: ‘Same issue’ must have been ‘Adjudicated’ in the former suit

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.” … (Explanations I to VIII)

Core Ingredients of Res Judicata

  • The matter in issue has been an issue in a former suit

Other Requirements

  • Same matter; Same Parties
  • Heard and finally decided
  • By a competent court

Bar by Res-judicata, When Attracted

  1. Same matter in issue: The matter in issue in earlier suit and the subsequent suit must be directly and substantially same. It need not have been considered, actually; a constructive consideration will be sufficient. But, the consideration of the same should not have been ‘incidental or collateral’.
  2. Same Parties: Parties to both suits must be same. It includes their privies on whom the concerned right or interest may have devolved.
  3. Parties litigating under the same title: Parties must be litigating under the same title, in both suits. It refers to the capacity of persons who are suing or who are sued.  That is, whether the suit is for the benefit of the person named in the suit alone, or whether that person also represents the interest of another or others. A decision on such a suit will be binding on all such persons represented, and it will be independent of any particular cause of action on which one sues or is sued. In Ram Gobinda v. Bhaktabala, AIR 1971 SC 664, it is observed that the test for res judicata is the identity of title in the two litigations and not the identity of the subject matter involved in the two cases. Explanation VI lays down that 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.  It is clear that to attract Explanation VI, all persons who are represented in the representative capacity need not be expressly named in the suit. A suit instituted under Order I, rule 8, CPC will fall under this category.
  4. Tried by a competent court: The former suit must have been tried by a competent court. The principle behind this proposition is that the finding of a Court of limited jurisdiction will not be final and binding.  In Explanation II it is clarified that 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.
  5. Heard and finally decided: The matter must have been heard and finally decided by the earlier court in the earlier suit. What is material is the date on which the earlier suit was decreed; and not its date of filing.

The Supreme Court pointed out five conditions to attract Res judicata, in Sheldon Singh v. Daryao Kunwar. AIR 1966 SC 1332. They were –

  • (i) The matter directly substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue in the former suit;
  • (ii) The former suit must have been a suit between the same parties or between parties under whom they or any of them claim;
  • (iii) The parties must have litigated under the same title in the former suit;
  • (iv) The court which decided the former suit must be a Court competent to try the subsequent suit or the suit in which such issue is subsequently raised; and
  • (v) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit.

In Mysore State Electricity Board v. Bangalore Woollen, Cotton, and Silk Mills Ltd., AIR 1963 SC 1128, it is emphasised that the court must look at the nature of the litigation, what the issues were raised therein, and what was actually decided in it, to decide whether a decision in an earlier litigation operated as res judicata.

Issue Must Have Been Raised

Sufficient pleading should have been raised by the party (in the subsequent suit) who seeks dismissal on bar by ‘res judicata’ so that an issue must have been raised on the same.  (Kalawati Kotla vs. Shokilal, AIR 2013 Chh. 12)

In Madhukar D. Shende v. Tarabai Aba Shedage, AIR 2002 SC 637, it is observed as under:

  • “We are not inclined, in the facts and circumstances of this case, to weight the admissibility and binding efficacy of the decision rendered in the earlier suit on the doctrine of res judicata and holding the earlier decisions as conclusive between the parties. Res judicata is a mixed question of fact and law. We do not find the plea of res judicata having been raised in the plaint. Copies of pleadings and issues framed in the earlier suit have not been tendered in evidence and we do not find any issue on res judicata having been framed and tried between the parties in the present suit. No submission raising the plea of res judicata was made before any of the courts below or the High Court. We do not think such a plea can be permitted to be raised before this Court for the first time and at the hearing.”

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

In PMA Metripolitan 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 judicata should not have been only directly and substantially in issue, but it should have been necessary to be decided as well.”

No Res Judicata, in spite of findings (Ineffectual Res Judicata)

Though there may be a previous decision on a particular issue, it may not bar the trial of subsequent suit as res judicata in the following instances.

  1. Former decision was not from a competent court; or order/decree was without jurisdiction. Fatma Bibi Ahmed Patel v. State of Gujarat, (2008) 6 S.C.C. 789.
  2. Where ultimate decision in earlier case was on the ground that the suit was not maintainable, findings on merits in such cases do not constitute res judicata.
  3. Adverse finding against a party in whose favour the suit or the appeal is ultimately decided: PMA Metripolitan v. Moran Mar Marthoma, AIR 1995 SC 2001; Bakerbag Subhanbeg Vs. Shrikant Laxminarayan Zanwar: 2008-3 All MR 656.
  4. Former decision was too perverse for no proper reasoning was given.  
  5. Pure question of law.  Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar, (2008) 9 S.C.C. 54.
  6. Public interest litigation (M.C. Mehta v. Union of India, (2000) 5 S.C.C. 525).   Principles of res judicata do not strictly apply to public interest writs – under Article 32 and Article 226.
  7. Dismissal of earlier suits and writs in limine. Daryao v. State of Uttar Pradesh, A.I.R. 1961 S.C. 1457.
  8. Dismissal of earlier suits and writs on technical ground or for want of parties: Ram Gobinda v. Bhaktabala, AIR 1971 SC 664; Shiromani Gurdwara Parbandhak Committee Vs Mahant Harman Singh AIR 2003 SC 3349.
  9. Dismissal of earlier suits on a technical ground that they were for a mere declaration without seeking consequential relief: Inacia Martins v. Narayan Hari Naik AIR 1993 SC 756.
  10. First suit was dismissed for want of notice: Ramasami v. Thalawasal Marudai Reddi, l.L.R. 47 Mad. 453.
  11. First suit was dismissed on the ground of bar by ‘limitation‘. Munishi Chinadandasi v. Munishi Pedda Tatiah, AIR 1921 Mad 279; Krishnan Vs. Perumal Nadar, AIR 1973 Mad 81
  12. Dismissal of earlier suit for default of plaintiff or on limitation. Ram Gobinda v. Bhaktabala, AIR 1971 SC 664.
  13. In earlier suit, the plaintiff was non-suited on the ground of limitation, res judicata, mis-joinder, insufficient court fees on the plaint, jurisdiction or a like technical and preliminary ground: Venkatasuryanarayana v. Sivasankara-narayana (1914) 17 M.L.T. 85, Rama Krishna Naidu v. Krishnaswami Naidu, 36 M.L.J. 641.
  14. If appeal in earlier litigation was dismissed on technical grounds, lower court decision holds the field. Sheodan Singh v. DaryaoKunwar, AIR 1966 SC 1332.
  15. Findings on several grounds against a party. In appeal lower court decree confirmed; but, only one ground considered. Res judicata on that one ground alone.
  16. Cases where re-litigation is needed.
  17. Habeas corpus cases. If one habeas corpus petition is dismissed, then subsequent petition with fresh grounds will not be discarded. Sunil Dutt v. Union of India, A.I.R. 1982 S.C. 53.
  18. New laws bring new changes that lead to the filing of a subsequent suit with the same cause of action. 
  19. Decision in the former suit has been obtained by fraud (Section 44 of the Indian Evidence Act, 1872 refers to such judgments). Beli Ram v. Chaudri Mohammad Afzal, (1948) 50 Bom.L.R. 674.
  20. Different causes of action, as in an injunction suit or in an eviction suit.
  21. Intermediate reliefs in interlocutory applications.
  22. Taxation cases. Liability to pay tax each year differs is independent of each other.  Broken Hill Proprietary Co. Ltd. v. Broken Hill Municipal Council, 1926 A.C. 94.   Instalment Supply Private Limited v. Union of India, AIR 1962 S.C. 53.

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

In Sulochana Amma Vs. Narayanan Nair [(1994) 2 SCC 14] it is observed 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.”

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:

  • “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 straight-forward, 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 veraciously 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 plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.”

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

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)

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.

Binding Precedent and Res Judicata – a Couplet

One is strictly legal, and the other is mainly factual.

Ratio Decidendi is the Binding Precedent. It is Not  Findings on Facts or Issues. It applies only if a question of law is decided.

  • Binding Precedent refers to a judicial rule or principle established in an earlier binding decision that must be followed in subsequent similar cases.
  • Res Judicata applies to findings of both law and fact. It bars the same parties from re-litigating issues that have already been finally decided.
  • Binding Precedent pertains strictly to legal principles and technically bind courts, not parties.

No ‘Binding Precedent’ if earlier decision was –

  • without taking into account the statutory provision or factual situation
  • wrong in law.

 Ratio decidendi
               •➧ Ratio decidendi alone is the Binding Precedent.
               •➧ Ratio decidendi is a statement of principles of law.
               •➧ Ratio decidendi is the vital element in the decision.
               •➧ Ratio decidendi literally means “reason for deciding”.
               •➧ Ratio decidendi is the essence, and not every observation.
               •➧Ratio decidendi is a declaration of law in a speaking order.
              •➧ Ratio decidendi is the Legal Principle Guiding the Decision.
               •➧ Ratio decidendi alone binds under Article 141 of the Constitution. 
              •➧ What is binding is discernible Ratio and the Principle, not the Conclusion.
              •➧ A case is only an authority for what it decides, and not for what logically follows from it.
             •➧ It is important to read and analyse the Entire Judgment, and the ratio decidendi is to be isolated.
              •➧ Words in a Judgment are Not to be Interpreted as a Statute; Words in it are Not to be Taken Literally.
              •➧ The abstract ratio decidendi (ascertained on a consideration of the judgment)  alone has the force of law.
             •➧ For the Legal Principles Guiding the Decision constitute ‘Ratio Decidendi’, it is always necessary to see what the facts were.

Precedents – only if they decide a question of law
              •➧ A Case is only an Authority for what it Actually Decides.
              •➧ Decision Applicable Only to Facts Cannot be a Binding Precedent.
              •➧ Binding Precedent Helps in Promoting Certainty and Consistency.
              •➧ A decision is available as a precedent only if it decides a question of law.
              •➧ An order made merely to dispose of the case cannot have the value or effect of a binding precedent.
              •➧ The precedential value is attached only to orders which are preceded by a detailed judgment.

Obiter Dicta
              •➧ Obiter dictum is the passing expression or opinion in a judgement.
              •➧ The obiter dicta of the Supreme Court are taken with considerable weight.
              •➧ In India, obiter dictum of a High Court may have to be followed by the lower courts in its jurisdiction.

Per Incuriam
              •➧ ‘Per incuriam’ is used to denote findings out of ignorance of law.

Stare decisis
              •➧ Stare decisis is a legal doctrine that requires courts to follow precedents

Common law
              •Common law is the body of unwritten law, based upon precedents, the previous decisions. 
              •➧ Common law delved precedents; whereas the civil law system dwelled upon codified system of law.
              •➧ The Courts in India apply the common law, especially, in the arena where there are no enacted Civil Laws to apply.

Essence in a Decision is its Ratio and Not Every Observation

The Supreme Court (B.V. Nagarathna, J.)observed in Secunderabad Club v. CIT, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC), as under:

  • “22. Further, the precedential value of an order of the Supreme Court which is not preceded by a detailed judgment would be lacking inasmuch as an issue would not have been categorically dealt with. What is of essence in a decision is its ratio and not every observation found therein, nor what logically follows from the various observations made therein.”

Words in a Judgment are Not to be Interpreted as a Statute

B.V. Nagarathna, J. continued (in Secundrabad Club v. CIT, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC) as under:

  • “21. In the context of understanding a judgment, it is well settled that the words used in a judgment are not to be interpreted as those of a statute.

Words in a Judgment – Rendered Contextually; Not be Taken Literally

B.V. Nagarathna, J. pointed out (in Secundrabad Club v. CIT, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC) as under:

  • “This is because the words used in a judgment should be rendered and understood contextually and are not intended to be taken literally.”

No implication – a decision is an authority for what decided

  • “Further, a decision is not an authority for what can be read into it by implication or by assigning an assumed intention of the judges and inferring from it a proposition of law which the judges have not specifically or expressly laid down in the pronouncement. In other words, the decision is an authority for what is specifically decides and not what can logically be deduced therefrom.”

Also read:

Relevance of a Civil Case Judgment in Criminal Cases – Propositions in a Nutshell

1. Independent evidence/finding needed

  • M.S. Sheriff v. State of Madras, AIR 1954 SC 397,
  • State of Rajasthan v. Kalyan Sundaram Cement Industries, AIR 1996 SC 2823,
  • K.G. Premshanker v. Inspector of Police, (2002) 8 SCC 87
  • Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370,
  • P. Swaroopa Rani v. M. Hari Narayana, (2008) 5 SCC 765,
  • Seth Ramdayal Jat v. Laxmi Prasad, (2009) 11 SCC 545 (SB Sinha, J.)
  • Radheshyam Kejriwal v. State of West Bengal, (2011) 3 SCC 581.

2. It is not correct to say – a judgment of a civil court shall be binding on the criminal court. 

  • K.G. Premshanker v. Inspector of Police, (2002) 8 SCC 87.

3. There is neither any statutory nor any legal principle that findings recorded by the court, either in civil or criminal proceedings, shall be binding between the same parties (even) while dealing with the same subject-matter. 

  • Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370,
  • Avitel Post Studioz Limited v. HSBC PI Holdings (Mauritius) Limited, 2021-4 SCC 713.

4. Civil proceedings may be relevant under the Indian Evidence Act, 1872.

  • State of Rajasthan v. Kalyan Sundaram Cement Industries, AIR 1996 SC 2823,
  • K.G. Premshanker v. Inspector of Police, (2002) 8 SCC 87.

5. That is, there may be cases where the provisions of Sections 41 to 43 of the Evidence Act dealing with the relevance of previous judgments in subsequent cases may be taken into consideration (Not conclusive).

  • Avitel Post Studioz Limited v. HSBC PI Holdings (Mauritius) Limited, 2021-4 SCC 713.

6. Criminal liability must be proved beyond reasonable doubt, while civil liability is based on preponderance of probabilities; different principles and different standards of proof.

  • Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370
  • P. Swaroopa Rani v. M. Hari Narayana, (2008) 5 SCC 765
  • Radheshyam Kejriwal v. State of West Bengal, (2011) 3 SCC 581.

End Notes:

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.

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Plantation-Tenants Not Approached The Land Tribunal are Ineligible for Plantation-Exemption-Orders from the Land Board

Saji Koduvath, Advocate, Kottayam.
 
Introduction

Plantation Lands are exempted from the ceiling limit, under Sec. 81 of the Kerala Land Reforms Act, 1963. A planation tenant (who planted the crop) can also claim the exemption. He has the right of ‘fixity’ under Sec. 13 of the Act.

But, it is definite – in most cases, such a tenant cannot claim a Purchase Certificate, because it can be obtained below the ceiling limit alone. In such a situation, an interesting question comes –

  • Should such a plantation tenant (who is not legally entitled to a purchase Certificate) have filed an application or statement before the Land Tribunal under Sec. 72B?

It was Incumbent on the Tenant to Apply the Land Tribunal

It was Incumbent on the tenant to apply to the Land Tribunal even if he possessed maximum within the ceiling.

A cultivating tenant is permitted to obtain title by assignment of the right, title, and interest of the landlord (under a Purchase Certificate from the Land Tribunal) only up to the extent permissible under the ceiling limit prescribed by the KLR Act, he must have filed the application for Purchase Certificate under Sec. 72B.

For determining the ceiling area, the total extent of land held by a person or his family anywhere in the State or in India shall be taken into account.

Even if a tenant (already) holds land at or above the ceiling limit (and, for that reason,  no purchase certificate could be received), still then proceedings are to be initiated by filing an application before the Land Tribunal. 

Reasons: The law casts a duty on the tenant to make an application to the Land Tribunal, within the time prescribed, because every tenant seeks the right to hold property, invoking the ‘exemption’ provided in Sec. 81 (including Plantation)  has –

  • to get the purchase price of the property fixed by the LT
  • to pay the purchase price to the landowner through LT
  • to pay rent to the land owner, pending proceedings, through LT  
  • to get forwarded the orders to the Land Board by the LT.
  • and to get the purchase price, payable to the Government, fixed by the LT (after the Amendment Act No. 35 of 1969).

Relevant Provisions of the KLR Act

The Cultivating Tenants have to prove their claim of being a cultivating tenant, entitled to fixity of tenure, under the provisions of the KLR Act through the LT. The following are the relevant provisions of the KLR Act.

  • 54(1). A cultivating tenant (to purchase the right) has to apply Land Tribunal.
  • 55. Purchase price is to be fixed by LT (on fair rent u/s. 31) to be paid u/s. 59
    57. The LT, after enquiries, has to pass orders determining the purchase price.
  • 57(3). The Land Tribunal has to allow the purchase of the land it determines.
  • 57(6). The Land Tribunal has to forward the orders to the Land Board.(On the basis of the Orders sent to the Land Board, the Land Board takes actions under S. 85(7) – whereon a person fails to file a statement under 85(2) or (3A), LB shall intimate that fact to TLB and thereon the  TLB shall determine land to be surrendered.)
  • 59. The purchase price (determined u/s. 57 by the LT) has to be deposited with the Land Tribunal to the credit of the Land Board and issue of certificate. 
  • 61. Tenant has to pay rent (under orders of LT) pending proceedings.
  • 72D. The cultivating tenant has to pay the purchase price to the Government (fixed by the LT) on the assignment to him of the right, title and interest of the landowner. (If the extent of land is one hectare or below, he shall not be liable to pay.)

Balanoor Plantations & Industries Ltd. v. State of Kerala

It is held in Balanoor Plantations & Industries Ltd. v. State of Kerala, 2018(3) KLT 283, as under:

  • “28. That apart, we notice that the specific claim of the petitioners is hinged solely on Exts. P1, P2 lease deeds in favour Sri. K. M. Cheriyan and on Exts. P3 and P4 letters of the Zamorin Raja, which as we have already said earlier is contended by the Zamorin Raja to be forged. However, nowhere do they say in their pleadings or in their submissions before us that the petitioners have even attempted, under the provisions of the Kerala Land Reforms Act, to claim right over the property as a cultivating tenant. This is pertinent because, under Section 72B(3) of the KLR Act, it is legally obligated on every cultivating tenant, entitled to assignment of right, title and interest in respect of any property, to apply to the Land Tribunal, within whose jurisdiction that the property is situated, within two years from the date of vesting of such title and interest. Of course, the period of limitation shown therein can be extended by the Government for sufficient reasons. The imperative mandate of this Section is inescapable and we, therefore, deem it necessary to extract it as under to facilitate a complete reading of it:
  •        “72B(3): Any cultivating tenant entitled to assignment of the right, title and interest in respect of a holding or part of a holding under sub-section (1) may apply to the Land Tribunal within whose jurisdiction such holding or part is situate within two years from the date of vesting such right, title and interest in the Government under Section 72, or such further time as may be allowed by the Government in this behalf, for such assignment to him.”

It is further held as under:

  • “29. From the factual factors in this case, it is rather obvious that even though the petitioners claim possession and ownership over the property on the strength of Exts. P1 to P4, asserting that they are cultivating tenants, they have conspicuously chosen never to make an application before Land Tribunal for assignment of the right, title or interest over the property in their favour until now. Therefore, all that the petitioners have done is to merely make a claim, solely based on the documents aforementioned and Ext. P5, to assert that they are cultivating tenants with respect to the property in question, however, consciously choosing not to make any application under the afore extracted Section 72B (3) to establish such claim, even when they are statutorily obligated to do so.”
  • “44. We are, of course, cognizant that Sri. Joseph Kodianthara, the learned senior counsel appearing for the petitioners, refutes with grate force the above submissions of Sri. R. Lakshmi Narayan by predicating that the Devaswom cannot even be heard to be the owner of the property, since by the automatic operation of Section 72 of the KLR Act, the property would become vested with the Government. This submission, we must say, is certainly ingenious in its nature but we refrain ourselves from answering it one way or the other, for the simple reason that whether the property belongs to the Government or to the Devaswom Board, it would be of no consequence or relevance to the petitioners since, in either case, they will have to first prove their claim of being a cultivating tenant, entitled to fixity of tenure, under the provisions of the KLR Act through a proper process of law. Unless and until they are able to do so, the attempted distinction drawn by Sri. Joseph Kodianthara would be nothing more than academic in its nature. We are firm in our mind of this because it is only if they are able to prove that they are a cultivating tenant, entitled to fixity of tenure, can the first petitioner obtain the locus to challenge action under the KLC Act, invoked on the strength of Section 94A of the HR & CE Act, on the ground that property does not belong to the Devaswom. As long as they have not established their claim over the property, adjudication as to if the property is owned by the Government or the Devaswom would not be of any relevance to the petitioners at this point of time.”

Also Read: Balanoor Plantations & Industries Ltd. v. State of Kerala – Based on the Principle: LT to fix Tenancy’; TLB to Fix Plantation Exemption.  

The Legal Principles

The legal principles that warrant the invocation of the Land Tribunal’s jurisdiction are the following:

  • It is for establishing and adjudicating the ‘tenancy right’.
  • The Land Tribunal is the only authority that can decide on the “tenancy right”.
  • Under Sec. 72A, the Landlord is entitled to compensation and under Sec. 72D, a tenant is bound to pay the Purchase Price. The compensation is to be decided by the Land Tribunal.
  • The Scheme of the KLR Act requires that there should be proceedings before the Land Tribunal under Sec. 72B or 72C.
  • Suo Motu proceedings may not be initiated by the Government for the benefit of a Plantation Tenant (entitled to purchase certificate within the ceiling limit, within the time allowed). It cannot be sought by a tenant, ‘as of right’.
    • Note: A tenant cannot declare himself to be a cultivating-tenant and avail benefits – the competent statutory authority (for the same) under the KLR Act is the Land Tribunal.
  • Title to the property is not decided by the TLB (Harikumar v. State of Kerala, 2013 (2) KLT 44 (Para 9) Jagadeesachandran Nair v. Mamomohanan Pandarathil, 2013 (4) KLT 584 (para 11).
    • Both decisions were referred to in Harrisons Malayalam Limited v. State of Kerala, Represented By The Chief Secretary, 2018-2 KHC 719; 2018-2 KLT 369 (para 54).  
  • In Ganapathy Acharya v. Bhaskaran (TLV Iyer, J.), ILR 1993-3 (Ker) 736; 1993 2 KLT 962, it is pointed out:
    • “If there is dispute on any of these points necessarily the Land Tribunal has to go into the question of possession and the alleged tenancy”.

Sec. 85(3) of the KLR Act

The legal basis of the decision, Balanoor Plantations & Industries Ltd. v. State of Kerala, 2018(3) KLT 283, can be derived from Sec. 85(3) of the KLR Act.

Sec. 85(3) and (3A) of the KLR Act read as under:

  • (3). Where, after the final settlement of claims for resumption of lands held by a person as tenant, such person holds land in excess of the ceiling area, or where after the purchase of the right, title and interest of the landowner** and the intermediary by the cultivating tenant in respect of lands owned by a person, such person owns land in excess of the ceiling area, such excess land shall be surrendered as hereinafter provided.
  • (3A). The person bound to file a statement under Sub-section (2) shall, within a period of three months from the date of final settlement or purchase, file a statement before the Land Board, and the provisions of the said Sub-section shall, as far as may he, apply in regard to the particulars to be contained in such statement, the calculation of the excess land and for the procedure for the surrender of the same.] [Substituted by Act No. 35 of 1969.

**Why the Words “After The Purchase of the Right, Title And Interest of the Landowner” Included?

It is not lawful to initiate Suo Motu proceedings (under Section 72C) by the Government for the benefit of a Plantation Tenant (entitled, within the time allowed, to purchase a certificate below the ceiling limit), because Explanation II to Section 87 disfavours the fragmentation of the plantation land.

  • Still, because of subsection (3) of Section 85, the tenant could have obtained a purchase certificate (under Section 72B) within the statutory period.

Note 1:  A tenant cannot avail benefits declaring himself to be a cultivating-tenant; on the contrary, he has to approach the competent statutory authority (for the same) under the KLR Act; that is, the Land Tribunal. Land Board or Taluk Land Board (deals with exemption on the ground of plantation, excess land issues, etc.) cannot adjudicate on tenancy rights. (That is why the words “after the purchase of the right, title, and interest of the landowner” are included.)

Note 2: Tenant must have approached the LT (with respect to each plantation, if he has more plantations) (He cannot declare himself a tenant)

It is clear from the following provisions:
S. 54(1) – A cultivating tenant has to apply to LT(for the purchase of right, title and interest.)
S. 55 – Purchase price and fair rent fixed by LT
S. 57 – LT after giving notice and enquiries, pass orders (on the application for the purchase of right, title and interest).
S. 57(3) – LT allots the purchase land it determines.
S. 57(6) – The Land Tribunal forwards a copy of orders to the Land Board.
S. 61 – Cultivating tenant to pay rent (under orders of LT)
S. 59 – The purchase price shall be deposited with the LT (to the credit of the Land Board) and issue of certificate – to cultivating tenant.

S. 72D. The cultivating tenant has to pay purchase price to the Government (fixed by the LT) on the assignment to him of the right, title and interest of the landowner. (If the extent of land is one hectare or below, he shall not be liable to pay.)

A cultivating tenant, “entitled to assignment” of the right under Sec. 72B, if failed to apply the same, will not have ‘vested right to continue’, as a cultivating tenant (in any case, beyond the ceiling limit).

  • Note: The tenant who opts to avail benefits of plantation-exemption, under Sec. 81, cannot seek fragmentation (Sec. 87, Explanation II) of the plantation land and obtain purchase-certificate (under Sec. 72B or 72C). Still, he stood as a cultivating tenant, “entitled to assignment” of the right under Sec. 72B, within the statutory period.

Sec. 72B provides for cultivating tenant’s rights to get assignment by purchase certificate (through LT) – within ceiling area. A tenant was “obliged to apply” for it within 2 years from 1-1-1970. Therefore, the cultivating tenants entitled to assignment of the right, title and interest were “obliged to apply” to the Land Tribunal within the time fixed for asserting the claim as cultivating tenants. This decision (Balanoor Plantations) also says that tenants having ‘no bona fide claim’ as to cultivating-tenancy will not have the benefit of fixity under Sec. 13 of the KLR Act, and they will have ‘no vested right to continue’.

Sec. 73B(3) reads as under:

  • “(3) Any cultivating tenant entitled to assignment of the right, title and interest in respect of a holding or part of a holding under Sub­section (1) may apply to the Land Tribunal within whose jurisdiction such holding or part is situate within two years from the date of vesting of such right, title and interest in the Government under Section 72, or such further time as may be allowed by the Government in this behalf, for such assignment to him.”

Tenant has to pay Rent to the Government

In any case, the tenants who are found to be cultivating tenants entitled to hold the plantation tenancy land, under exemption, have to pay rent to the Government as provided under Sec. 72E (and the Land Tribunal has to fix the rent under subsection (5)(h) of Sec. 72F).  If such land is acquired by the Government  compensation for improvements alone need be paid to the tenant [and no land-value be given, under Sec. 112(5A)]. 

Reference to the Land Tribunal, under Section 125(3)

On the basis of the Full Bench decision in Lissy v. Kuttan, 1976 KLT 571, it was argued in Balanoor Plantations & Industries Ltd. v. State of Kerala that a person who claims to be a cultivating tenant, entitled to fixity of tenure under Section 13 of the KLR Act, the Civil Courts are prohibited from considering such issues and the matter has to be referred to the Land Tribunal, under Section 125(3) of the KLR Act. It is pointed out in this decision that the judgment in Lissy v. Kuttan had been overruled by a Larger Bench in Kesava Bhat v. Subraya Bhat, 1979 KLT 766. It was held in Balanoor Plantations as under:

  • “11…. Unless the question actually “arises” for consideration, there is no obligation under S. 125 (3) to make a reference to the Land Tribunal. The mere incorporation of an unnecessary or irrelevant plea of tenancy into the written statement which has no relation whatever to the material averments and the reliefs sought in plaint, cannot attract the bar of S. 125 (1), or the provisions of S. 125 (3 ). …..  It is only if the question arises for consideration that the obligation to refer under S. 125 (3) also arises. …..”

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End Notes

Relevant provisions of KLR Act, in a Nutshell

Section Provisions in a Nutshell
Chap. II 
3(1)		Exemptions – (i) Nothing in this Chapter shall apply to – (viii) Tenancies of plantations exceeding 30 acres.
“Provided that the provisions of this chapter, other than sections 53 to 72S, shall apply to tenancies in respect of agricultural lands which are treated as plantations under sub clause (c) of clause (44) of Section 2”.
7 EPersons acquired lands (before 2005 amendment in KLR Act) for consideration below 1 Ha. 61 Are 87 Sq.m. (4 acre) will be deemed to be tenants .
13Fixity: “Every tenant, shall have fixity of tenure in respect of his holding.”
22Landlord desiring to resume any land shall apply to the Land Tribunal.
31Fair rent determined by Land Tribunal.
51B. Landlord not to enter on land surrendered or abandoned by the tenant. 
Contravention is made punishable.
54(1)
55
57
57 (3)
57 (6)
61		54(1). A cultivating tenant (to purchase the right) has to apply Land Tribunal.
55. Purchase price is fixed by LT (on fair rent u/s. 31) to be paid u/s. 59
57. The LT after enquiries, pass orders determining purchase price.
(3). The Land Tribunal allows the purchase of the land it determines.
(6). The Land Tribunal forwards  orders to the Land Board.
61. Tenant to pay rent (under orders of LT) pending proceedings.
59When Sec. 54 application is allowed (by the LT), the purchase price (determined u/s. 57 by the LT) shall be deposited with the Land Tribunal to the credit of the Land Board and issue of certificate – to cultivating tenant.
72
72(4)

Sec. 72 provides for automatic vesting of lease-properties held by cultivating tenants in Govt.  ILR 2010(2) Ker. 845. 
72(1) says: Holdings upon which tenant entitled fixity under sec. 13 vest in govt.

Sec. 72(4) states that a holding of a ”small holder” also vests in the Government and the application for resumption has to be preferred within the specified time.
72BCultivating-tenant “shall be entitled to assignment” of land vested in Govt. under Sec. 72 –within ceiling area and get purchase certificate (through LT) (2 years from 1-1-1970). Effect of non-filing (See Balanoor Plantations case. 2018(3) KLT 283.)
72DThe cultivating tenant has to pay the purchase price to the Government on the assignment to him of the right, title and interest of the landowner. (If the extent of land is one hectare or below, he shall not be liable to pay.)
72ESuch a tenant is liable to pay rent to the Govt. for the unassigned land – under Purchase Certificate (E.g., exempted-plantation-land). The Land Tribunal fixes the rent under Sec. 72F(5)(h).
72CProvides for suo moto action by LT. (No time limit,)
Rule 5 of the Vesting & Assignment Rules provides – LT may suo moto – notwithstanding no application – assign to cultivating tenant. (See  S.72C also). 
72KLT shall issue purchase certificate.  It shall be conclusive proof of assignment.
74Prohibition of future tenancies.
Chap. III 
81		Exemption from ceiling and excess for Govt. lands, private forests, plantations, industrial or commercial undertakings, etc.
Proviso – There will be an exemption (as plantation, land given to educational institution, trust, etc.) on Government lands, given under grant, lease, etc.
See: HMT (Machine Tools) Limited v. Taluk Land Board, 2009 (3) KLJ 110; MT Joseph v.  State of Kerala, AIR 1974 Ker 28.
82Ceiling area – 5/10 standard acres.
83No person can hold or possess excess of ceiling area. (Holding is by tenant.)  It is a total bar. (Note:  plantations, industrial area etc. are exempted.)
Apply to tenant also. 1980 KLT 259 (Gopalan Nair Vs. State), 1976 KLT 306  (Thomas Mariamma Vs. TLB), Raghunath Laxman Wani v. The State of Maharashtra (AIR 1971 SC 2137)
The policy of the Act – no person –“be permitted to hold any land in excess of the ceiling area.” Raghunath Laxman Wani v. State of Maharashtra, 1971-3 SCC 391, Bhikoba Shankar Dhumal v. Mohan Lal Punchand Tatbed, 1982-1 SCC 680, State of U.P v. Civil Judge, Nainital, AIR 1987 SC 16, State Vs. Puliyangattu, 2008(1) KLJ 571.
84Certain transfers – void.
85(1)Surrender excess.
85(2)Owners and Tenants (having land in excess of the ceiling area) should furnish ceiling return to Land Board before March31, 1971, before the Land Board (including lands exempted under S. 81).
Note: Effect of non-filing: See – Balanoor Plantations case – 2018(3) KLT 283.State of Kerala Vs. Varkey Mathew, AIR 1996 SC 1009.
 According to S. 3(1) (viii), “tenancies of plantations exceeding 30 acres” is exempted from Chapter II. Therefore, the landlord can recover such plantation lands after the period of tenancy. Such landlords also had to file a ceiling return within the time stipulated.
85(3)Excess shall be surrendered.
Note: Tenant must have approached the LT (with respect to each plantation, if he has more plantations) (He cannot declare himself a tenant)
It is clear from the following provisions:
(Before 1. 1. 1970)
S. 54(1) – A cultivating tenant has to apply to LT(for the purchase of right, title and interest.)
S. 55 – Purchase price and fair rent fixed by LT
S. 57 – LT after giving notice and enquiries, pass orders (on the application for the purchase of right, title and interest).
S. 57(3) – LT allots the purchase land it determines.
S. 57(6) – The Land Tribunal forwards a copy of orders to the Land Board.
S. 61 – Cultivating tenant to pay rent (under orders of LT)
S. 59 – The purchase price shall be deposited with the LT (to the credit of the Land Board) and issue of certificate – to cultivating tenant.
(After 1. 1. 1970)
S. 72B – cultivating tenant to apply to the LT, for Purchase Certificate.
S. 72D. The cultivating tenant has to pay purchase price to the Government [fixed by the LT] on the assignment to him of the right, title and interest of the landowner. (If the extent of land is one hectare or below, he shall not be liable to pay.)
S. 72F(5) – Land Tribunal shall issue notice to consider the claims and objections from the land owner or intermediaries, and pass an order specifying, inter alia, the rent [under S. 72F(5)(h) ] payable by the cultivating tenant to the Government.
S. 72F(6) & (7) – LT shall pass Orders on encumbrance or charge for maintenance or alimony and compensation payable to the landowner or that intermediary.proceedings (under Section 72C) by the Government for the benefit of a Plantation Tenant (entitled, within the time allowed, to purchase a certificate below the ceiling limit), because Explanation II to Section 87 disfavours the fragmentation of the plantation land.
Still, because of subsection (3) of Section 85, the tenant could have obtained a purchase certificate (under Section 72B) within the statutory period.
It is the principle applied in the Balanoor case. Note: (i) The sub-section (3) itself says as to the settlement of claims for resumption and purchase of the right, title, and interest of the landowner by the cultivating tenant, (ii) LT is the only authority to determine tenancy (Land Board cannot determine it), and (iii) it is clear that even if it is a plantation-exemption-land (beyond ceiling limit), the tenant has to file petition under Section 54 – for fixing Purchase price and fair rent fixed by LT and for allotting the land under section 57(3) and for effecting the payments of ‘rent’ and ‘purchase price’(to the credit of the Land Board)  under sec. 61 and 59.
85(3A)The person bound to file a statement under sub-section (2) (that is, Owners and Tenants – having land in excess of the ceiling area)  shall, within a period of three months from the date of final settlement or purchase, file a statement before the Land Board, and the provisions of the said Sub-section shall, as far as may he, apply in regard to the particulars to be contained in such statement, the calculation of the excess land and for the procedure for the surrender of the same.
85(5)On receipt of the statement under Sub-section (2) or Sub-section (3A), the Land Board shall transfer the statement to such Taluk Land Board and such Taluk LandBoard shall determine the extent and identity of the land to be surrendered.
85(7)Whereon a person fails to file statement under 85(2) or (3A), LB shall intimate that fact to TLB  –  TLB shall determine land to be surrendered. It is obvious – The LB can intimate TLB as to non-filing, on the basis of the records it obtained under Sec. 57(6) and 59. That is, those tenants who are not entitled to get a purchase certificate also has to file an application under Sec. 54(1) and 85(2) or (3A). Effect of non-filing: See – Balanur Plantations case (With respect to Sec. 72B application) – 2018(3) KLT 283. Statute prescribes liability on the person who owes or hold the land in excess of the ceiling limit to file statement:  State of Kerala Vs. Varkey Mathew, AIR 1996 SC 1009.
[TLB not to do, suo motu, without direction from LB. 1980 KLT 120, referred to in 2019(1) KLT 985.]
85AFile ceiling return within March  2, 1973 before Land Board..
86(1)On determination of the extent to be surrendered under S. 85- Excess vests in Govt. and Taluk Land Board shall issue an order accordingly.
86(3)Where any person fails to surrender as demanded, the TLB may order an officer to take possession
86(4)Where any land, vests in the Govt, under s. 86(1) (including that of cultivating tenant) the ownership of such land shall vest in the Govt.
86(6)Nothing applies to property of Govt. under KLC Act.
87
Exp. II		If a person converts any portion of exempted land for any other class, that converted extent will be added to his account in determining his ceiling limit. That is, the exemption will be lost for the portion that exceeds the ceiling limit. (Mathew K Jacob v. District Environmental Impact Assessment Authority, 2018-4 KLT 913)

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