Saji Koduvath, Advocate, Kottayam.

Introduction

It goes without saying that the the rightful owner is not legally entitled to eject the interloper or trespasser by force, otherwise than by due process of law; especially when the trespasser is in settled possession.

In Karthiyayani Amma v. Govindan, AIR 1980 Ker 224, the High Court considered the question whether the rightful owner can eject a trespasser in possession with force; and whether a person in illegal possession could sustain a suit for injunction against the true owner, from forcibly dispossessing him from the property.  It was held as under:

• “The ultimate position, therefore, reduces itself to this:
• Can a person in possession without title sustain a suit for injunction against the rightful owner if he proves possession?
• Yes.
• In this case, plaintiff is found to in be possession. On the finding, he should be granted the injunction prayed for. A person in possession can be evicted only in due process of law. Even the rightful owner cannot eject him with force. If he cannot be evicted with force, he continues to be in possession and he can resist invasion of his possession by everyone including the rightful owner. If the rightful owner threatens his peaceful possession, he can approach Courts of Law and pray for the equitable relief of injunction to protect his possession”. (Followed in Aiysumma Vs. Mariyamma, 1994-2 CIVCC 52, 1994-1 KerLT 570. )

It is pointed out in Suresh v. Ashok Girdharilal Chandak, 2016-1 MHLJ 171 that ‘bearing in mind the basic principle of law in civil jurisprudence that even a trespasser cannot be evicted without following due process of law and no one can be allowed to take law into his own hands to recover possession of the property without following due process of law and without proving title to the immovable property in possession of a person holding actual physical possession thereof’.

Person in possession can use Reasonable Force to keep out a Trespasser

In Rame Gowda v. M. Varadappa Naidu, (2004) 1 SCC 769, our Apex Court Court, observed as under:­ 

• “8. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser.
• A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force.
• If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. 
• The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force.
• In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.” (quoted in: Subramanya Swamy Temple, Ratnagiri v. V. Kanna Gounder, 2009-3 SCC 306)

What is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner was made clear in Rame Gowda v. M. Varadappa Naidu, (2004) 1 SCC 769. It reads as under:

• “9. …The “settled possession” must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase “settled possession” does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession.” (quoted in Samarpan Varishtha Jan Parisar vs Rajendra Prasad Agarwal, 2022 SCC OnLine SC 564)

No decree for recovery unless ‘present right to the possession’

While considering the question whether a worshipper can file a suit for recovery, it is held by our Apex Court, in M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case) 2019-1 SCC 1, that no decree for recovery of possession can be made in such a suit unless the worshipper has the ‘present right to the possession’. But it is pointed out that in such situations, a worshipper must be permitted to sue as next friend of the deity, sue on behalf of the idol itself – directly exercising the deity’s right to sue.

Person in possession can use Reasonable Force to keep out a Trespasser

In Rame Gowda v. M. Varadappa Naidu, (2004) 1 SCC 769, our Apex Court Court, observed as under:­ 

• “8. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.”

Kesar Bai v. Genda Lal – HC and SC Approached in different Perspectives

Kesar Bai v. Genda Lal, 2022-10 SCC 217, arose from a suit seeking declaration of ownership and permanent injunction. The findings of the High Court were the following:

• the plea of ownership claimed by the plaintiff based on a sale deed and the plea of adverse possession were contrary to each other;
• the plaintiffs could not have been permitted to take both the pleas at the same time;
• but, in view of the fact that the plaintiff was in possession of the suit land since the execution of the said sale deed, the plaintiff was entitled for injunction on the basis of his possession.

Setting aside the High Court judgment the Apex Court held as under:

• “The possession/alleged possession of the plaintiffs could not have been protected by passing a decree of permanent injunction in favour of the plaintiffs”.

Should the Defendant-Rightful-Owner Approach the Court Again For Recovery?

No.

Before Kesar Bai v. Genda Lal, our Apex Court held in Padhiyar Prahladji Chenaji v. Maniben Jagmalbhai, 2022 SCC OnLine SC 258 (M.R. Shah, B.V. Nagarathna, JJ.) to the following effect (:

• The plaintiff is not entitled to any injunction and/or protect his possession against the rightful owner, more particularly, when he fails to get the declaratory relief with respect to the title.
• In a suit for permanent injunction to restrain the defendant from interfering with the plaintiff’s possession, the only thing the plaintiff will have to establish is that as on the date of the suit, he was in lawful possession of the suit property and the defendant has tried to interfere or disturb his possession
• the plaintiff, who has failed to get any declaratory relief on title cannot be said to be in “lawful possession”. Only when the person seeking the relief is in lawful possession and enjoyment of the property, he is legally entitled to be in possession, and not to disposes him, except in due process of law.
• The contention of the plaintiff that even if the plaintiff failed to get the declaratory relief and the suit is dismissed, once the plaintiff is found to be in possession, her possession cannot be disturbed except in due process of law and the only remedy available to the defendant would be “to file a substantive suit to get back the possession is noticed only to be rejected outright”.
• In Maria Margarida Sequeira Fernandes Vs. Erasmo Jack de Sequeira, (2012) 5 SCC 370, it was held that the ‘due process’ or ‘due course’ condition was satisfied the moment the rights of the parties were adjudicated upon by a court of competent jurisdiction, and that it did not matter who brought the action to court.
• In Maria Margarida Sequeira Fernandes Vs. Erasmo Jack de Sequeira, the Court has approved the following findings of the High Court of Delhi in Thomas Cook (India) Ltd. Vs. Hotel Imperial (2006) 88 DRJ 545:
  • “In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e. for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not.”
• Once the rights of the parties are adjudicated and the defendant is held to be the true owner, it can be said that due process of law has been followed and thereafter the plaintiff is not entitled to any permanent injunction against the true owner.
  • Note: It is not specifically stated in this decision, Prahladji Chenaji v. Maniben Jagmalbhai, that one can resume possession using force.

‘Possession is Good Against All But the True Owner’

The principle ‘Possession is Good against all but the True Owner’ is declared in Parry v. Clissold, (1907) AC 73. In this decision it was also pointed out that if the rightful owner did not come forward and assert his title within the period of limitation, his right would be extinguished and the possessory owner acquires an absolute title.

The Supreme Court of India while accepting this principle in Nair Service Society Ltd. vs. K.C. Alexander, AIR 1968 SC 1165, pointed out that the law in India allows a plaintiff to maintain a possessory suit under Sec. 9 (preset Sec. 6) of the Specific Relief Act. Such a suit can be filed against a title holder, if he had dispossessed the plaintiff ‘otherwise than in due course of law’.

Sec. 6 of the Specific Relief Act reads as under:

• 6. Suit by person dispossessed of immovable property.
• (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.
• (2) No suit under this section shall be brought
  • (a) after the expiry of six months from the date of dispossession; or
  • (b) against the Government.
• (3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.
• (4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.

In Nair Service Society Ltd. vs. K.C. Alexander, AIR 1968 SC 1165, it is observed as under:

• “17. … To express our meaning we may begin by reading 1907 AC 73 (Perry V. Clissold), to discover if the principle that possession is good against all but the true owner has in any way been departed from.
• 1907 AC 73 reaffirmed the principle by stating quite clearly:
  • “It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title.”
• Therefore, the plaintiff who was peaceably in possession was entitled to remain in possession and only the State could evict him. The action of the Society was a violent invasion of his possession and in the law as it stands in India the plaintiff could maintain a possessory suit under the provisions of the Specific Relief Act in which title would be immaterial or a suit for possession within 12 years in which the question of title could be raised. As this was a suit of latter kind title could be examined. But whose title? Admittedly neither side could establish title. The plaintiff at least pleaded the statute of Limitation and asserted that he had perfected his title by adverse possession. But as he did not join the State in his suit to get a declaration, he may be said to have not rested his case on an acquired title. His suit was thus limited to recovering possession from one who had trespassed against him. The enquiry, thus narrows to this:
  • did the Society have any title in itself,
  • was it acting under authority express or implied of the true owner or
  • was it just pleading a title in a third party ?
• To the first two questions we find no difficulty in furnishing an answer. It is clearly in the negative. So the only question is whether the defendant could plead that the title was in the State?
• Since in every such case between trespassers the title must be outstanding in a third party a defendant will be placed in a position of dominance. He has only to evict the prior trespasser and sit pretty pleading that the title is in someone else. As Erle, J. put it in Burling v. Read [(1848)11 Q.B. 904]
  • ‘parties might imagine that they acquired some right by merely intruding upon land in the night, running up a hut and occupying it before morning’.
• This will be subversive of the fundamental doctrine which was accepted always and was reaffirmed in Perry V. Clissold (1907 AC 73). The law does not, therefore, countenance the doctrine of ‘findings keepings’.

Possession is a Good Title or Right Against any one who cannot Show a Better

In Poona Ram v. Moti Ram, AIR 2019 SC 813, our Apex Court explained the principle ‘possession is a good title of right against any one who cannot show a better’ as under:

• “9. The law in India, as it has developed, accords with jurisprudential thought as propounded by luminaries like Salmond. Salmond on Jurisprudence states:­
  • “These two concepts of ownership and possession, therefore, may be used to distinguish between the de facto possessor of an object and its de jure owner, between the man who actually has it and the man who ought to have it. They serve also to contract the position of one whose rights are ultimate, permanent and residual with that of one whose rights are only of a temporary nature.
  • x x x x x
  • In English law possession is a good title of right against any one who cannot show a better. A wrongful possessor has the rights of an owner with respect to all persons except earlier possessors and except the true owner himself. Many other legal systems, however, go much further than this, and treat possession as a provisional or temporary title even against the true owner himself. Even a wrongdoer, who is deprived of his possession, can recover it from any person whatever, simply on the ground of his possession. Even the true owner, who takes his own, may be forced in this way to  restore it to the wrongdoer, and will not be permitted to set up his own superior title to it. He must first give up possession, and then proceed in due course of law for the recovery of the thing on the ground of his ownership. The intention of the law is that every possessor shall be entitled to retain and recover his possession, until deprived of it by a judgment according to law.
  • Legal remedies thus appointed for the protection of possession even against ownership are called possessory, while those available for the protection of ownership itself may be distinguished as proprietary. In the modern and medieval civil law the distinction is expressed by the contrasted terms petitorium (a proprietary suit) and possessorium (a possessory suit).”
• 10. As far back as 1924, in the case of Midnapur Zamindary Co. Ltd. v. Naresh Narayan Roy, AIR 1924 PC 144, the learned Judge observed that in India, persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a court. Later, in the case of Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165, this Court ruled that when the facts disclose no title in either party, possession alone decides. It was further held that if Section 9 of the Specific Relief Act, 1877 (corresponding to the present Section6) is employed, the plaintiff need not prove title and the title of the defendant does not avail him. When, however, the period of six months has passed, questions of title can be raised by the defendant, and if he does so the plaintiff must establish a better title or fail. In other words, such a right is only restricted to possession in a suit under Section 9 of the Specific Relief Act (corresponding to the present Section 6) but does not bar a suit on prior possession within 12 years from the date of dispossession, and title need not be proved unless the defendant can provide one.
• 11. It was also observed by this Court in Nair Service Society Ltd (supra) that a person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against the entire world except the rightful owner. In such a case, the defendant must show in himself or his predecessor a valid legal title and probably a possession prior to the plaintiff’s, and thus be able to raise a presumption prior in time.”

Settled Possession and Established Possession

In A. Subramanian v. R. Pannerselvam, AIR 2021 SC 821, the Supreme Court held that even a trespasser, who is in established possession of the property could obtain injunction. But, it was cautioned that the matter would be different, if the plaintiff himself elaborated in the plaint about title dispute and fails to make a prayer for declaration of title along with injunction relief.

In Poona Ram v. Moti Ram, AIR 2019 SC 813, it was pointed out in a case where there was no document to prove settled possession that ‘merely on doubtful material and cursory evidence, it cannot be held that the plaintiff was ever in possession of the property, and that too in settled possession’. It held further as under:

• “13. The crux of the matter is that a person who asserts possessory title over a particular property will have to show that he is under settled or established possession of the said property. But merely stray or intermittent acts of trespass do not give such a right against the true owner. Settled possession means such possession over the property which has existed for a sufficiently long period of time, and has been acquiesced to by the true owner. A casual act of possession does not have the effect of interrupting the possession of the rightful owner. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. Settled possession must be (i) effective,(ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. There cannot be a straitjacket formula to determine settled possession. Occupation of a property by a person as an agent or a servant acting at the instance of the owner will not amount to actual legal possession. The possession should contain an element of animus possidendi. The nature of possession of the trespasser is to be decided based on the facts and circumstances of each case.”

Nature of Property and Claim of Occupant Whether Bona Fide were Determinative Factors

In Government of A.P. v. Thummala Krishna Rao, (1982) 2 SCC 134,  the question considered was whether summary remedy for evicting a person provided for by section 6 of the Andhra Pradesh Land Encroachment Act, 1905, could be resorted to. It was pointed out

• the duration of encroachment, short or long, was not the determinative matter
• what was relevant for the decision was more the nature of the property and
• whether the claim of the occupant was bona fide.

It was also found that if there was bona fide dispute, on title between the Government and the occupant, it must be adjudicated upon by the Ordinary courts of law. The Government cannot decide such questions unilaterally in its own favour and evict any person summarily. Duration of occupation would be relevant requiring an impartial adjudication according to the established procedure of law, if the person –

• occupied openly for an appreciable length of time and
• could be taken, prima facie, to have a bonafide claim to the property

Injunction is a Possessory Remedy.

Courts protect settled possession (Rame Gowda v. M. Varadappa Naidu, 2004-1 SCC 769). Injunction is a possessory remedy. (See: Ladies Corner, Bangalore vs State of Karnataka, ILR 1987 KAR 1710, 1987 (1) KarLJ 402. Patil Exhibitors (Pvt.) Ltd. vs The Corporation of The City (M Venikatachaliah, J.) : AIR 1986 Kant 194, ILR 1985 KAR 3700, 1985 (2) KarLJ 533. Referred to in Chetak Constructions Vs. Om Prakash, AIR 2003 MP 145. )

Courts grant injunction without seeking declaration when title is clear, simple and straight-forward; and when no serious denial or cloud on title (not any apparent defect):   Anathula Sudhakar v. Buchi Reddi: AIR 2008 SC 2033.

But, an injunction cannot be issued against a true owner or title holder and in favour of a trespasser or a person in unlawful possession. See: Padhiyar Prahladji Chenaji vs Maniben Jagmalbhai: 2022 SCC OnLine SC 258.

Temporary Mandatory Injunction – To preserve or restore the status quo ante

Two Landmark Decisions

• (1) Dorab Cawasji Warden v. Coomi Sorab Warden, AIR  1990 SC 867
• (2) Deoraj v. State of Maharashtra, AIR 2004 SC 1975, (2004) 4 SCC 697

(1) Dorab Cawasji Warden v. Coomi Sorab Warden, AIR  1990 SC 867 : (1990) 2 SCC 117, is the laudable decision on interim mandatory injunction. It is laid down that interlocutory mandatory injunctions are granted to:

• (i) preserve or restore the status quo ante, of the last non-contested status which preceded the pending controversy, or
• (ii) to compel the undoing of those acts that have been illegally done, or
• (iii) the restoration of that which was wrongfully taken from the party complaining.

It is also pointed out that the court would consider the prospect of granting of a mandatory injunction finally, after trial; and delineated that a fresh state of affairs cannot be allowed to be created by the grant of such an injunction.

(2) Deoraj v. State of Maharashtra, AIR 2004 SC 1975, (2004) 4 SCC 697, is the decision in the matter of elections in a Co-operative Society where the Apex Court moved forward and stated that Interim Mandatory Injunction can be granted if the court is satisfied that refusal of injunction would tantamount to dismissal of the main petition itself and there would be nothing left to be allowed when the final pronouncement  comes.

‘Possession Follows Title’ and ‘Title Follows Possession’

The legal principles, ‘Possession Follows Title’ and ‘Title Follows Possession’, are Rules of Evidence. They are applied in cases where there are no sufficient and independent evidence to prove possession or title, as the case may be.

Under S. 110 Evidence Act, ownership is presumed on the proof of possession. It ‘follows from well settled principle of law that normally, unless contrary is established, title always follows possession’ (Chuharmal v.  Commissioner of Income Tax, M P, AIR  1988 SC 1384; 1988 3 SCC 588).

S. 114 Evidence Act, expressly permits the court to ‘presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case’. Therefore, by virtue of Sec. 114,

• (i) possession can be presumed on the basis of title (possession follows title), and
• (ii) title/ownership can be presumed on the basis of possession (title follows possession).

S. 110 Evidence Act & the Principle, ‘Title Follows Possession’

Section 110 of the Evidence Act, 1872, reads as under:

• “110. Burden of proof as to ownership.—When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.”

This section deals with the burden of proof as to ownership – when a question arises as to whether a person in possession of anything is the owner of such thing. There, the burden of proving that he is not the owner is on the person who avers that he is not the owner.

In State of A.P. v. Star Bone Mill & Fertiliser Company, (2013) 9 SCC 319, the Apex Court held that the object of Section 110 is based on public policy. The object is to prevent persons from committing a breach of peace by taking the law into their own hands however good their title may be over the land in question. This object underlies provisions such as Section 6 of the Specific Relief Act 1963, Section 145 of the Code of Criminal Procedure 1973 and Sections 154 and 158 of the Indian Penal Code 1860.

Sec. 114 Evidence Act– Title Follows Possession & Possession Follows Title

In M.  Siddiq   v. Mahant Suresh Das, 2020-1 SCC 1, the Apex Court quoted the following from State of AP v. Star Bone Mill & Fertiliser Company, (2013) 9 SCC 319 where Justice B.S. Chauhan explained as under:

• ‘21…..The said presumption is read under Section 114 of the Evidence Act and applies only in a case where there is either no proof, or very little proof of ownership on either side. The maxim – possession follows title – is applicable in cases where proof of actual possession cannot reasonably be expected, for instance, in the case of wastelands, or where nothing is known about possession one way or another.
• Presumption of title as a result of possession, can arise only where facts disclose that no title vests in any party. Possession of the plaintiff is not prima facie wrongful, and title of the plaintiff is not proved. It certainly does not mean that because a man has title over some land, he is necessarily in possession of it. It in fact means, that if at any time a man with title was in possession of the said property, the law allows the presumption that such possession was in continuation of the title vested in him.
• A person must establish that he has continued possession of the suit property, while the other side claiming title, must make out a case of trespass/ encroachment, etc.
• Where the apparent title is with the plaintiffs, it is incumbent upon the defendant, that in order to displace this claim of apparent title and to establish beneficial title in himself, he must establish by way of satisfactory evidence, circumstances that favour his version.
• Even, a revenue record is not a document of title. It merely raises a presumption in regard to possession.
• Presumption of possession and/or continuity thereof, both forward and backward, can also be raised under Section 110 of the Evidence Act.’ ”

In Anathula Sudhakar  v. Buchi Reddy, AIR 2008 SC 2033, Apex Court held as under:

• “But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession.”

In Arumaraj Devadhas v. K. Sundaram Nadar, 2009-17 SCC 467, also it was held that the principle possession follows title applies in vacant land. This principle is applied in ‘open space‘ in Praprai N Kothari Vs. John Braganza, AIR 1999 SC 1666 and in Rajendar Singh Vs. Santa Singh, AIR 1973 SC 2537. InNaval Shankar Ishwarlal Dave v. State of Gujarat, AIR 1994 SC 1496,  the Apex Court observed that it was ‘settled law that in respect of open land, title follows possession’.

Possession Follows Title and Adverse Possession

It is held in MS Jagadambal v. Southern Indian Education Trust, 1988 (Supp) SCC 144 that the possession continues with the title holder unless and until the defendant acquires title by adverse possession (possession follows title). In LN Aswathama v. P Prakash, 2009-13 SCC 229, the Supreme Court held as under:

• “In law, possession follows title. The plaintiffs having established title to the suit property, will be entitled to decree for possession, unless their right to the suit property was extinguished, by reason of defendant being in adverse possession for a period of twelve years prior to the suit.”

When the principles in Sec. 110 and 114 CANNOT be invoked

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
• there is evidence of independent possession/title (Bhavnagar Municipality Vs. Union of India, AIR 1990 SC 717).

Read Connected Blogs:

• POSSESSION is a Substantive Right Protected in Indian Law
• ‘Possessory Title’ in Indian Law
• POSSESSION is a Substantive Right Protected in Indian Law
• How to Plead Adverse Possession? Adverse Possession: An Evolving Concept
• Kesar Bai v. Genda Lal: Does Something Remain Untold?
• When ‘Possession Follows Title’; ‘Title Follows Possession’?
• ‘Possession is Good Against All But the True Owner’
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• The Law and Principles of Mandatory Injunction
• Section 27, Limitation Act Gives-Rise to a Substantive Right so as to Seek Declaration and Recovery

How to Subscribe ‘IndianLawLive’? Click here – “How to Subscribe free “

Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

• Order IX Rule 9 CPC: Earlier Suit for Injunction; Subsequent Suit for Recovery & Injunction – No Bar
• Replication, Rejoinder and Amendment of Pleadings
• Does Registration of a Document give Notice to the Whole World?
• Suit under Sec. 6, Specific Relief Act – Is it a ‘Summary Suit’ under Order XXXVII CPC?
• Is it Mandatory to Lift the Attachment on Dismissal of the Suit? Will the Attachment Orders Get Revived on Restoration of Suit?
• Will Interlocutory Orders and Applications Get Revived on Restoration of Suit?
• Can an ‘Ex-parte’ Defendant Cross Examine Plaintiff’s Witness?
• Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act
• Civil Rights and Jurisdiction of Civil Courts
• Res Judicata and Constructive Res Judicata
• Order II, Rule 2 CPC – Not to Vex Defendants Twice
• Order I rule 8, CPC (Representative Suit) When and How? Whether Order I rule 8 Decree is Enforceable in Execution?
• Pleadings Should be Specific; Why?
• Pleadings in Defamation Suits
• Previous Owner is Not a Necessary Party in a Recovery Suit
• UNDUE INFLUENCE and PLEADINGS thereof in Indian Law
• PLEADINGS IN ELECTION MATTERS
• Declaration and Injunction
• Law on Summons to Defendants and Witnesses
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Sec. 91 CPC and Suits Against Wrongful Acts
• Remedies Under Sec. 92 CPC
• Mandatory Injunction – Law and Principles
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Interrogatories: When Court Allows, When Rejects?
• Decree in OI R8 CPC-Suit & Eo-Nomine Parties
• Pecuniary & Subject-Matter Jurisdiction of Civil Courts
• Transfer of Property with Conditions & Contingent Interests
• Doctrine of Substantial Representation in a Suit by or against an Association
• Who are Necessary Parties, Proper Parties and Pro Forma Parties in Suits
• What is Partnership, in Law? How to Sue a Firm?
• ‘Legal Representatives’, Not ‘Legal Heirs’ to be Impleaded on Death of Plaintiff/Defendant
• Powers and Duties of Commissioners to Make Local Investigations, Under CPC
• Burden of Proof – Initial Burden and Shifting Onus
• Burden on Plaintiff to Prove Title; Weakness of Defence Will Not Entitle a Decree
• Is it Mandatory to Set Aside the Commission Report – Where a Second Commissioner is Appointed?
• Can a Commission be Appointed to Find Out the Physical Possession of a Property?
• Withholding Evidence and Adverse Inference
• Pendente Lite Transferee Cannot Resist or Obstruct Execution of a Decree
• Family Settlement or Family Arrangement in Law
• ‘Possessory Title’ in Indian Law
• Will Findings of a Civil Court Outweigh Findings of a Criminal Court?
• Relevancy of Civil Case Judgments in Criminal Cases
• Waiver and Promissory Estoppel
• Can a Christian Adopt? Will an adopted child get share in the property of adoptive parents?
• Principles of Equity in Indian Law
• Thangam v.  Navamani Ammal: Did the Supreme Court lay down – Written Statements which deal with each allegation specifically, but not “para-wise”, are vitiated?
• No Criminal Case on a Dispute Essentially Civil in Nature.
• Doctrine of Substantial Representation in Suits
• Order I rule 8, CPC (Representative Suit) When and How? Whether Order I rule 8 Decree is Enforceable in Execution?

Principles and Procedure

• Ratio Decidendi (alone) Forms a Precedent, Not a Final Order
• BNSS – Major Changes from CrPC
• Bharatiya Nyaya Sanhita, 2023: Important Changes from the Indian Penal Code
• Substantive Rights and Mistakes & Procedural Defects in Judicial Proceedings
• Will Boundaries of Properties (Always) Preferred Over Survey Number, Extent, Side Measurements, etc.?
• All Illegal Agreements are Void; but All Void Agreements are Not Illegal
• Doctrines on Ultra Vires, Rule of Law, Judicial Review, Nullification of Mandamus, and Removing the BASIS of the Judgment
• Can an ‘Ex-parte’ Defendant Cross Examine Plaintiff’s Witness?
• Will – Probate and Letters of Administration
• Appreciation of Evidence by Court and ‘Preponderance of Probabilities’ & ‘Probative Value of Evidence
• Effect of Not Cross-Examining a Witness & Effect of Not Facing Complete Cross-Examination by the Witness
• Suggestions & Admissions by Counsel, in Cross Examination to Witnesses
• Admission by itself Cannot Confer Title
• Best Evidence Rule in Indian Law
• Declaration and Injunction
• Pleadings Should be Specific; Why?
• Does Alternate Remedy Bar Civil Suits and Writ Petitions?
• Void, Voidable, Ab Initio Void, and Sham Transactions
• Can Courts Award Interest on Equitable Grounds?
• Natural Justice – Not an Unruly Horse
• ‘Sound-mind’ and ‘Unsound-Mind’
• Prescriptive Rights – Inchoate until the Title thereof is Upheld by a Competent Court
• Can a Party to Suit Examine Opposite Party, as of Right?
• Forfeiture of Earnest Money and Reasonable Compensation
• Doctrine of ‘Right to be Forgotten’ in Indian Law
• Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act
• Cheating and Breach of Contract: Distinction – Fraudulent Intention at the time of Promise.
• Declaration of Title & Recovery of Possession: Art. 65, not Art. 58, Limitation Act Governs
• What is COGNIZANCE and Application of Mind by a Magistrate?

PROPERTY LAW

Title, ownership and Possession

• ‘Nemo Dat Quod Non Habet’
• Section 27, Limitation Act Gives-Rise to a Substantive Right so as to Seek Declaration and Recovery
• Sale Deeds Without Consideration – Void
• Tenancy at Sufferance in Indian Law
• Recovery of Possession Based on Title and on Earlier Possession
• Declaration of Title & Recovery of Possession: Art. 65, not Art. 58, Limitation Act Governs
• Title and Ownership in Indian Law
• Does Registration of a Document give Notice to the Whole World?
• Admission by itself Cannot Confer Title
• POSSESSION is a Substantive Right in Indian Law
• 22nd Law Commission  Report on ‘Law on Adverse Possession’
• Adverse Possession Against Government
• Government of Kerala v. Joseph – Law on Adverse Possession Against Government
• Should the Government Prove Title in Recovery Suits
• How to Plead Adverse Possession? Adverse Possession: An Evolving Concept
• Adverse Possession: Burden to Plead Sabotaged
• Does ‘Abandonment’ Give rise to a Recognised Right in Indian Law?
• When ‘Possession Follows Title’; ‘Title Follows Possession’?
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• ‘Mutation’ by Revenue Authorities & Survey will not Confer ‘Title’
• Preemption is a Very Weak Right; For, Property Right is a Constitutional & Human Right
• Transfer of Property with Conditions & Contingent Interests
• Family Settlement or Family Arrangement in Law
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• ‘Possessory Title’ in Indian Law
• Kesar Bai v. Genda Lal – Does Something Remain Untold?
• Grant in Law
• Termination of Tenancy (& Grant) by Forfeiture (for Claiming Title)
• Survey under Survey Act – Raises a Presumption on Boundary; though Not Confer Title
• SUIT on TITLE: Landlord can Recover Property on GENERAL TITLE (though Tenancy Not Proved) if Defendant Falsely Claimed Independent Title
• Even the Rightful Owner is NOT entitled to Eject a Trespasser, by Force

Adverse Possession

• Neelam Gupta v. Rajendra Kumar Gupta (October 14, 2024) – Supreme Court Denied the Tenant’s Claim of Adverse Possession
• How to Plead Adverse Possession? Adverse Possession: An Evolving Concept
• Adverse Possession Against Government
• Adverse Possession: Burden to Plead Sabotaged
• Does ‘Abandonment’ Give rise to a Recognised Right in Indian Law?
• When ‘Possession Follows Title’; ‘Title Follows Possession’?
• Government of Kerala v. Joseph – Law on Adverse Possession Against Government
• Should the Government Prove Title in Recovery Suits
• ‘Possessory Title’ in Indian Law
• Admission by itself Cannot Confer Title
• Ouster and Dispossession in Adverse Possession
• Declaration of Title & Recovery of Possession: Art. 65, not Art. 58, Limitation Act Governs

Land Laws/ Transfer of Property Act

• Tenancy at Sufferance in Indian Law
• Freehold Property in Law
• What is Patta or Pattayam?
• Does ‘Pandaravaka Pattom’ in Kerala Denote Full-Ownership?
• Transfer of Property with Conditions & Contingent Interests
• Previous Owner is Not a Necessary Party in a Recovery Suit
• Vested Remainder and Contingent Remainder
• Vested interest and Contingent Interest
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• Land Acquired Cannot be Returned – Even if it is Not Used for the Purpose Acquired
• ‘Mutation’ by Revenue Authorities & Survey will not Confer ‘Title’
• FERA, 1973 And Transfer of Immovable Property by a Foreigner
• Marumakkathayam – A System of Law and Way of Life Prevailed in Kerala
• Land Tenures, and History of Land Derivation, in Kerala
• Glen Leven Estate v. State of Kerala: Not Correctly Decided?
• Sale Deeds Without Consideration – Void
• Law on SUCCESSION CERTIFICATE and LEGAL HEIRSHIP CERTIFICATE
• Sec. 7 Easements Act – Natural Advantages Arising from the Situation of Land & Natural Flow of Water
• Grant in Law
• Should the Government Prove Title in Recovery Suits
• Survey under Survey Act – Raises a Presumption on Boundary; though Not Confer Title

Land Reform Laws

• Relevant provisions of Kerala Land Reforms Act in a Nutshell
• Land Tenures, and History of Land Derivation, in Kerala
• Should the Government Prove Title in Recovery Suits
• ‘Janmam’ Right is FREEHOLD Interest and ‘Estate’ in Constitution – By Royal Proclamation of 1899, The Travancore Sircar became Janmi of Poonjar Raja’s Land
• Government is the OWNER of (Leasehold) Plantation Lands in Kerala.
• Glen Leven Estate v. State of Kerala: Not Correctly Decided?
• Law on Acquisition of Private Plantation Land in Kerala
• Plantation Exemption in Kerala Land Reforms Act–in a Nutshell
• Kerala Land Reforms Act – Provisions on Plantation-Tenancy and Land-Tenancy
• Grant in Law
• Balanoor Plantations & Industries Ltd. v. State of Kerala – Based on the Principle: LT to fix Tenancy’; TLB to Fix Plantation Exemption.  

Power of attorney

• No Adjudication If Power of Attorney is Sufficiently Stamped
• Notary Attested Power-of-Attorney Sufficient for Registration
• Notary-Attested Documents and Presumptions
• Permission when a Power of Attorney Holder Files Suit
• If Power of Attorney himself Executes the Document, S. 33 Registration Act will NOT be attracted
• Should a Power of Attorney for Sale must have been Registered –
• Is Registered Power of Attorney Necessary for Registration of a Deed? No.

Evidence Act – General

• Newspaper Reports are ‘Hearsay Secondary Evidence’
• Major Changes in the Evidence Act by Bhartiya Sakshya Adhiniyam, 2023
• Sec. 27 Recovery/Discovery in Evidence Act and Bhartiya Sakshya Adhiniyam, 2023
• Evidence in Court – General Principles
• Expert Evidence and Appreciation of Evidence
• How to Contradict a Witness under Sec. 145, Evidence Act
• Withholding Evidence and Adverse Inference
• Best Evidence Rule in Indian Law
• What is Collateral Purpose?
• Burden of Proof – Initial Burden and Shifting Onus
• Appreciation of Evidence by Court and ‘Preponderance of Probabilities’ & ‘Probative Value of Evidence
• Effect of Not Cross-Examining a Witness & Effect of Not Facing Complete Cross Examination by the Witness
• Suggestions & Admissions by Counsel, in Cross Examination to Witnesses
• Proof of Documents – Admission, Expert Evidence, Presumption etc.
• Admission by itself Cannot Confer Title
• How to Prove a Will, in Court?Is Presumption enough to Prove a Registered Will?
• Significance of Scientific Evidence in Judicial Process
• Polygraphy, Narco Analysis and Brain Mapping Tests
• What is Section 27 Evidence Act – Recovery or Discovery?
• How ‘Discovery’ under Section 27, Evidence Act, Proved?
• Pictorial Testimony Theory and Silent Witnesses Theory
• Sec. 35 Evidence Act: Presumption of Truth and Probative Value
• Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act

Sec. 65B

• Sec. 27 Recovery/Discovery in Evidence Act and Bhartiya Sakshya Adhiniyam, 2023
• Sec. 65B (Electronic Records) and Bhartiya Sakshya Adhiniyam, 2023
• Sec. 65B, Evidence Act: Arjun Paditrao Criticised.
• Sec. 65B Evidence Act Simplified
• ‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ u/s. 65B
• Sec. 65B,  Evidence Act: Certificate forms
• Certificate is Required Only for ‘Computer Output’; Not for ‘Electronic Records’: Arjun Panditrao Explored.
• How to Prove ‘Whatsap Messages’, ‘Facebook’ and ‘Website’ in Courts?

Admission, Relevancy and Proof

• Relevancy, Admissibility and Proof of Documents
• Admission of Documents in Evidence on ‘Admission’
• Admission by itself Cannot Confer Title
• Modes of Proof of Documents
• Proof of Documents & Objections To Admissibility – How & When?
• Burden of Proof – Initial Burden and Shifting Onus
• Burden on Plaintiff to Prove Title; Weakness of Defence Will Not Entitle a Decree
• Appreciation of Evidence by Court and ‘Preponderance of Probabilities’ & ‘Probative Value of Evidence
• Production, Admissibility & Proof Of Documents
• Proof of Documents – Admission, Expert Evidence, Presumption etc.
• Marking Documents Without Objection – Do Contents Proved
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
• Oral Evidence on Contents of Document, Irrelevant
• Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act
• Relevancy of Civil Case Judgments in Criminal Cases
• Prem Raj v.  Poonamma Menon (SC), April 2, 2024 – An Odd Decision on ‘Civil Court Judgment does not Bind Criminal Court’

Law on Documents

• Admitted Documents – Can the Court Refrain from Marking, for no Formal Proof?
• Does Registration of a Document give Notice to the Whole World?
• Production, Admissibility & Proof Of Documents
• Relevancy, Admissibility and Proof of Documents
• Admission of Documents in Evidence on ‘Admission’
• Effect of Marking Documents Without Objection – Do Contents Stand Proved?
• Time Limit for Registration of Documents
• Registration of Documents Executed out of India
• How to Prove a Will, in Court?Is Presumption enough to Prove a Registered Will?
• Are RTI Documents Admissible in Evidence as ‘Public Documents’?
• Oral Evidence on Contents of Document, Irrelevant
• Proof of Documents & Objections To Admissibility – How & When?
• Notary-Attested Documents and Presumptions
• What is Collateral Purpose?
• No Application Needed for Filing or Admitting Copy
• Presumptions on Documents and Truth of Contents
• Presumptions on Registered Documents & Truth of Contents
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Modes of Proof of Documents
• Secondary Evidence of Documents & Objections to Admissibility – How & When?
• 30 Years Old Documents and Presumption of Truth of Contents, under Sec. 90 Evidence Act
• Unstamped & Unregistered Documents and Collateral Purpose
• Adjudication as to Proper Stamp under Stamp Act
• Marking Documents Without Objection – Do Contents Proved
• Cancellation of Sale Deeds and Settlement Deeds & Powers of Sub-Registrar in Registering Deeds
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
• How to Contradict a Witness under Sec. 145, Evidence Act
• Visual and Audio Evidence (Including Photographs, Cassettes, Tape-recordings, Films, CCTV Footage, CDs, e-mails, Chips, Hard-discs, Pen-drives)
• Pictorial Testimony Theory and Silent Witnesses Theory
• No Adjudication Needed If Power of Attorney is Sufficiently Stamped
• Can an Unregistered Sale Agreement be Used for Specific Performance
• Impounding of Documents – When Produced; Cannot Wait Till it is Exhibited
• Sec. 35 Evidence Act: Presumption of Truth and Probative Value

Documents – Proof and Presumption

• Can the Court Refuse to Mark a (Relevant and Admissible) Document, for (i) there is No Formal Proof or (ii) it is a Photocopy?
• Marking of Photocopy and Law on Marking Documents on Admission (Without Formal Proof)
• Proof of Documents – Admission, Expert Evidence, Presumption etc.
• Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act
• Modes of Proof of Documents
• Marking Documents Without Objection – Do Contents Proved
• Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act
• Admitted Documents – Can the Court Refrain from Marking, for no Formal Proof?
• Admission of Documents in Evidence on ‘Admission’
• Effect of Marking Documents Without Objection – Do Contents Stand Proved?
• Proof of Documents & Objections To Admissibility – How & When?
• Presumptions on Documents and Truth of Contents
• Presumptions on Registered Documents & Truth of Contents
• Secondary Evidence of Documents & Objections to Admissibility – How & When?
• 30 Years Old Documents and Presumption of Truth of Contents, under Sec. 90 Evidence Act

Interpretation

• Interpretation of Statutes – Literal Rule, Mischief Rule and Golden Rule
• Interpretation of Documents – Literal Rule, Mischief Rule and Golden Rule
• Interpretation of Wills
• Appreciation of Evidence by Court and ‘Preponderance of Probabilities’ & ‘Probative Value of Evidence

Contract Act

• ‘Sound-mind’ and ‘Unsound-Mind’ in Indian Civil Laws
• Forfeiture of Earnest Money and Reasonable Compensation
• Who has to fix Damages in Tort and Contract?
• UNDUE INFLUENCE and PLEADINGS thereof in Indian Law
• All Illegal Agreements are Void; but All Void Agreements are Not Illegal
• Can an Unregistered Sale Agreement be Used for Specific Performance
• Cheating and Breach of Contract: Distinction – Fraudulent Intention at the time of Promise.

Law on Damages

• Law on Damages
• Who has to fix Damages in Tort and Contract?
• Law on Damages in Defamation Cases
• Pleadings in Defamation Suits

Easement

• Easement Simplified
• What is Easement? Does Right of Easement Allow to ‘Enjoy’ Servient Land After Making Improvements Therein ?
• Prescriptive Rights – Inchoate until the Title thereof is Upheld by a Competent Court
• Will Easement of Necessity Ripen into a Prescriptive Easement?
• What is “period ending within two years next before the institution of the suit” in Easement by Prescription?
• Is the Basis of Every Easement, Theoretically, a Grant
• Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant
• Easement of Necessity and Prescriptive Easement are Mutually Destructive; But, Easement of Necessity and Implied Grant Can be Claimed Alternatively
• Can Easement of Necessity and of Grant be Claimed in a Suit (Alternatively)?
• “Implied Grant” in Law of Easements
• Can an Easement-Way be Altered by the Owner of the Land?
• Village Pathways and Right to Bury are not Easements.
• Custom & Customary Easements in Indian Law
• ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition
• Grant in Law
• Right of Private Way Beyond (Other Than) Easement
• Easement – Should Date of Beginning of 20 Years be pleaded?
• One Year Interruption or Obstruction will not affect Prescriptive Easement
• Should the Plaintiff Schedule Servient Heritage in a Suit Claiming Perspective Easement?

Stamp Act & Registration

• Cancellation of Sale Deeds and Settlement Deeds & Powers of Sub-Registrar in Registering Deeds
• Time-Limit For Adjudication of Unstamped Documents, before Collector
• Time Limit for Registration of Documents
• Presumptions on Registered Documents & Truth of Contents
• Registration of Documents Executed out of India
• LAW ON INSUFFICIENTLY STAMPED DOCUMENTS 
• Adjudication as to Proper Stamp under Stamp Act
• Unstamped & Unregistered Documents and Collateral Purpose
• Can an Unregistered Sale Agreement be Used for Specific Performance
• Impounding of Documents, When Produced; Cannot Wait Till it is Exhibited
• No Adjudication Needed If Power of Attorney is Sufficiently Stamped
• Notary Attested Power-of-Attorney Sufficient for Registration

Divorce/Marriage

• Presumption of Valid Marriage – If lived together for Long Spell
• Validity of Foreign Divorce Decrees in India
• Is ‘Irretrievable Brake-down of Marriage’, a Valid Ground for Divorce in India?
• Foreign Divorce Judgment against Christians having Indian Domicile

Negotiable Instruments Act

• Does Cheque-Case under Sec. 138, NI Act Lie Against a Trust?
• Sec. 138 NI Act (Cheque) Cases: Presumption of Consideration u/s. 118
• Even if ‘Signed-Blank-Cheque’, No Burden on Complainant to Prove Consideration; Rebuttal can be by a Probable Defence
• “Otherwise Through an Account” in Section 142, NI Act
• Where to file Cheque Bounce Cases (Jurisdiction of Court – to file NI Act Complaint)?
• Cheque Dishonour Case against a Company, Firm or Society
• What is ‘Cognizance’ in Law
• What is COGNIZANCE and Application of Mind by a Magistrate?

Arbitration

• Seesaw of Supreme Court in NN Global Mercantile v. Indo Unique Flame
• N.N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. and Ground Realities of Indian Situation
• What are Non-Arbitrable Disputes? When a Dispute is Not Referred to Arbitration in spite of Arbitration Clause
• Termination or Nullity of Contract Will Not Cease Efficacy of the Arbitration Clause
• No Valid Arbitration Agreement ‘Exists’ – Can Arbitration Clause be Invoked?

Will

• Witnesses to the Will Need Not See the Execution of the Will
• Interpretation of Wills
• Interpretation of Inconsistent Clauses in a Will
• Will – Probate and Letters of Administration
• Executors of Will – Duties & their Removal
• How to Prove a Will, in Court?Is Presumption enough to Prove a Registered Will?
• How to Write a Will? Requirements of a Valid Will
• When Execution of a Will is ‘Admitted’ by the Opposite Side, Should it be ‘Proved’?
• A Witness to Hindu-Will will not Lose Benefit

Book No. 2: A Handbook on Constitutional Issues

• Judicial & Legislative Activism in India: Principles and Instances
• Can Legislature Overpower Court Decisions by an Enactment?
• Separation of Powers: Who Wins the Race – Legislature or Judiciary?
• Kesavananda Bharati Case: Never Ending Controversy
• Mullaperiyar Dam: Disputes and Adjudication of Legal Issues
• Article 370: Is There Little Chance for Supreme Court Interference
• Maratha Backward Community Reservation: SC Fixed Limit at 50%.
• Polygraphy, Narco Analysis and Brain Mapping Tests
• CAA Challenge: Divergent Views
• FERA, 1973 And Transfer of Immovable Property by a Foreigner
• Doctrine of ‘Right to be Forgotten’ in Indian Law
• Doctrines on Ultra Vires and Removing the BASIS of the Judgment, in ED Director’s Tenure Extension Case (Dr. Jaya Thakur v. Union of India)
• Dr. Jaya Thakur v. Union of India – Mandamus (Given in a Case) Cannot be Annulled by Changing the Law
• Art. 370 – Turns the Constitution on Its Head

Religious issues

• Secularism and Art. 25 & 26 of the Indian Constitution
• Secularism & Freedom of Religion in Indian Panorama
• ‘Ban on Muslim Women to Enter Mosques, Unconstitutional’
• No Reservation to Muslim and Christian SCs/STs (Dalits) Why?
• Parsi Women – Excommunication for Marrying Outside
• Knanaya Endogamy & Constitution of India
• Sabarimala Review Petitions & Reference to 9-Judge Bench
• SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
• Ayodhya Disputes: M. Siddiq case –Pragmatic Verdict

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

• General
  • General Features
  • Bye Laws Fundamental
  • Effect of Registration of Societies and Incorporation of Clubs
  • Societies and Branches
• Property & Trust
  • Vesting of Property in Societies and Clubs
  • Incidents of Trust in Clubs and Societies
• Juristic Personality
  • Juristic Personality of Societies and Clubs
  • Legal Personality of Trustees and Office Bearers
• Suits
  • Suits and Criminal Complaints By and Against a Company
  • Suits By or Against Societies, Clubs
  • Court’s Jurisdiction to Interfere in the Internal Affairs
  • How to Sue Societies, Clubs and Companies
• Amendment and Dissolution
  • Amendment of Bye laws of Societies and Clubs
  • Dissolution of Societies and Clubs
• Rights and Management
  • Rights & Liabilities of Members of Clubs and Societies
  • Individual Membership Rights in Societies & Clubs
  • Management – Powers of General Body and Governing Body
  • Expulsion of Members & Removal of Office-Bearers
  • Law on Meetings: An Overview
• Election
  • Election & Challenge in Societies and Clubs
  • Court Interference in Election Process
• State Actions
  • State-Interference in Affairs of Societies & Clubs

Book No. 4: Common Law of TRUSTS in India

• General Principles
  • What is Trust in Law?
  • Classification of Trusts
  • Public & Private Trusts in India.
  • Trust is ‘An Obligation’; Not a Legal Entity
  • Indian Law Does Not Accept Salmond, as to Dual Ownership
• Dedication and Vesting
  • Dedication of Property in Public Trusts
  • Vesting of Property in Trusts
  • Incidents of Trust in Clubs and Societies
• Trustees and Management
  • Trustees and Administration of Public Trusts
  • Alienation of Public Trust Property
  • Extinction, Discharge, Revocation, etc. of Public Trusts
  • Charitable and Religious Trusts Act, 1920: Provisions as regards opinion, advice or direction of the Court.
• Breach of Trust
  • Breach of Trust and Removal of Trustees
• Suits by or against Trusts
  • Suits By or Against Trusts and Trustees
  • Remedies Under Sec. 92 CPC
  • Does Cheque-Case under Sec. 138, NI Act Lie Against a Trust?
• Law on Hindu Religious Endowments
  • Philosophy of Idol Worship
  • Is an Idol a Perpetual Minor?
  • Hindu Temples & Law of Trusts
  • Public & Private Trusts
  • Law of Mutts and Other Hindu Endowments
  • Shebaits & Mahants and Law of Trustees
• Temples, Gurudwaras, Churches and Mosques – General
  • Legal Personality of Temples, Gurudwaras, Churches and Mosques
• Constitutional Principles
  • Secularism and Art. 25 & 26 of the Indian Constitution
  • Secularism & Freedom of Religion in Indian Panorama
  • ‘Muslim Women: Ban to Enter Mosques, Is it Unconstitutional
  • Parsi Women Excommunication, Unconstitutional.
  • Knanaya Endogamy & Constitution of India
  • State & Court – Protectors of All Charities
• Ayodhya and Sabarimala Disputes
  • Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
  • Sabarimala Review Petitions & Reference to 9-Judge Bench
  • SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
• General
  • Public Trusts and (State) Endowments/Trusts Acts
  • Public Trusts and Indian Trusts Act – An Overview
  • Business by Charitable Trusts & Institutions

Saji Koduvath, Advocate, Kottayam.

Part I

Introduction

In Balanoor Plantations & Industries Ltd. v. State of Kerala, 2018(3) KLT 283, it is pointed out – when a title claim is raised by the Government or the Devaswom, the persons who claim to be a cultivating tenant

• “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.“

It is derived that the tenants who have not approached the Land  Tribunal and established rights as “cultivating tenant” are not entitled to avail benefits as “Fixity of Tenure”, under the Kerala Land Reforms Act, 1963.

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.”

It is, obviously, based upon the following principles of law:

• A tenant cannot declare himself to be a cultivating-tenant and claim benefits under KLR Act.
• Land Tribunal is the (sole) authority to determine if someone is a Cultivating Tenant or not.
• The TLB (only) deals with exemption on the ground of plantation, excess land issues, etc., and also determines the land to be surrendered.

Tenants Obligated to Approach the LT for Availing Plantation Exemption

Balanoor Plantations & Industries Ltd. v. State of Kerala, 2018(3) KLT 283, it was laid down that only cultivating tenants, entitled to fixity of tenure under Section 13 of the Kerala Land Reforms Act, 1963, would be “entitled to hold possession over the property and to resist action under the KLC Act”.

Sec. 72B provides for cultivating tenants’ rights to get assignment by purchase certificate (through LT) – within the ceiling area. A Tenant was “obligated to apply” for the purchase certificate within 2 years from 1-1-1970.

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.”

A Tenant Failed to Apply Assignment will not have a ‘Vested Right’

It is the Legal Basis of Balanoor Plantations case

The legal basis of the decision, Balanoor Plantations & Industries Ltd. v. State of Kerala, 2018(3) KLT 283, can be derived from Sec. 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 beyond doubt – the excess land in possession of a tenant, over which he has fixity of tenure under Section 13 (other than the lands exempted under Section 81), has to be surrendered. If the claimant of Plantation Exemption (under Section 81) is a tenant, he must have approached the Land Tribunal under subsection (3) of Section 85 – within the stipulated time (with respect to each plantation, if he has more plantations under different landlords), because:

• (i) subsection (3) of Section 85 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 under Section 72B (or for getting a Certificate to the effect that he is not eligible to purchase any more land, for he is already holding maximum within the limit prescribed under Section 82),
• (ii) the Land Tribunal is the only authority to deal with tenancy in this regard (Land Board or Taluk Land Board – deals with exemption on the ground of plantation, excess land issues, etc. – cannot adjudicate on tenancy rights), and
• (iii) Title to the property is not adjudicated 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”
• (iv) the Land Board cannot accept the self-declaration that one is a tenant. 

Note: 1. The entire tenancy-land being vested with the Government by virtue of Section 72, the tenants of the exempted-plantation-land (above the ceiling limit), will be the tenants under the Government liable to pay rent under Section 72E.

2. Under Section 72F(5)(h), the Land Tribunal fixes the rent for the unassigned-exempted-land.

3. Explanation II to Sec. 87 bars fragmentation of the plantation land. Still, subsection (3) of Section 85(3) expressly allows the tenant to obtain purchase-certificate (under Sec. 72B).

A Tenant Failed to Apply Assignment will not have a ‘Vested Right’ to hold land beyond the ceiling limit

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 beyond the ceiling limit.

• Note: As shown elsewhere, there is an option for the tenant – either to obtain purchase-certificate or to avail plantation-exemption.

Sec. 72B provides for cultivating tenant’s rights to get assignment by purchase certificate (through LT) – within the 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.”

The principle in Balanoor case (“Legally Obligated” to apply LT)

It is definite: the principle applied in the Balanoor case (that it is “legally obligated” on every cultivating tenant to apply to the Land Tribunal) is the following –

• It is for adjudicating the ‘tenancy right’.
• The reason is that the Land Tribunal is the only authority that can adjudicate 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 Scheme of the KLR Act requires that there should be proceedings before the Land Tribunal under Sec. 72B or 72C.
• 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: 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. (See: Harikumar v. State of Kerala, 2013 (2) KLT 44 (Para 9); Jagadeesachandran Nair v. Mamomohanan Pandarathil, 2013 (4) KLT 584 (para 11); Harrisons Malayalam Limited v. State of Kerala, Represented By The Chief Secretary, 2018-2 KHC 719; 2018-2 KLT 369 (para 54); Ganapathy Acharya v. Bhaskaran (TLV Iyer, J.), ILR 1993-3 (Ker) 736; 1993 2 KLT 962.)

What is the Position if the Tenant holds Maximum Within the Ceiling

Before approaching the Land Board or the Taluk Land Board under Section 85(5) of the Kerala Land Reforms Act—particularly with respect to the area to be surrendered (in effect, to seek a declaration of ‘plantation exemption’)—the tenant is required, in terms of Section 85(3), to first ‘purchase the right, title, and interest of the landowner’.

However, a legal question arises when the tenant already holds land up to the maximum extent permitted under the ceiling limit. In such a case, where no further land can be purchased without violating the ceiling provisions, it becomes legally impermissible for the tenant to acquire additional land, even through the statutory purchase mechanism. This limitation could potentially bar the tenant from complying with the precondition under Section 85(3), thereby affecting their ability to claim plantation exemption through the Land Board proceedings.

The answer is the following:

• (i) It was incumbent on the tenant to apply (within the time limit) to the Land Tribunal –
  • to get the order of ‘purchase’ by the LT
  • to get the price fixed by the LT
  • to pay the purchase price to the landowner through LT
  • to pay rent to the land owner through LT
  • and to get forwarded the orders to the Land Board by 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 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.)

• (ii) The Tenant has to obtain a Certificate from the Land Tribunal
  • A tenant can obtain title to land only up to the extent permissible under the ceiling limit prescribed by the KLR Act. (For determining the ceiling area, the total extent of land held by the person or family anywhere in the State or in India shall be taken into account.)
  • In such a situation, it is legitimate to say that the tenant has to obtain a Certificate from the Land Tribunal stating that (i) he is a cultivating tenant of the property under consideration and (ii) he has already complied with the provisions-
    • to get the order of ‘purchase’ by the LT
    • to get the purchase price fixed by the LT
    • to pay the purchase price to the landowner through LT
    • to pay rent to the land owner through LT
    • and to get forwarded the orders to the Land Board by the LT. .

Extent of Land for which a Purchase Certificate can be issued by LT

If a cultivating tenant (of a plantation land) possessed land at or above the ceiling limit, no purchase certificate can be issued to him, from the plantation property in question. 

If a tenant holds some land, he will receive a Purchase Certificate for the extent – equal to the Ceiling Limit minus the land he already possesses.

If such a tenant (already) holds land at or above the ceiling limit (and, for that reason,  no purchase certificate can be given with respect to the plantation property), proceedings are to be promulgated, or an order is to be issued, by the Land Tribunal  to that effect, if it finds that he is a cultivating tenant of that plantation.

• The same will be the position as regards the plantation-lease-lands owned by the Government (for the reason that no purchase certificate can be issued for Government-lease-lands, by virtue of Sec. 3, KLR Act).

The aforesaid proceedings of the Land Tribunal also has to be presented (with the lease-agreement and other documents), before the Taluk Land Board, for getting the order of exemption.  

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)]. 

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

Part II

Civil Court to Find Title; Land Tribunal to Fix Tenancy; Taluk Land Board to Determine Plantation Exemption

Abstract

• Civil court alone to find disputes on title.
• A tenant cannot declare himself to be tenant.
• Land Tribunal is the sole authority to determine Tenancy.
• The TLB alone deals with exemption and land to be surrendered.

Civil court alone to find disputes on title

It is observed in M/S Radha Krishan Industries v. The State of Himachal Pradesh, 2021 SCC OnLine SC 334, that where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition (Art. 226); and it is pointed out that this principle have been consistently upheld by the Apex Court in

• Seth Chand Ratan v Pandit Durga Prasad, (2003) 5 SCC 399,
• Babubhai Muljibhai Patel v Nandlal Khodidas Barot, (1974) 2 SCC 706 , and
• Rajasthan SEB v. Union of India, (2008) 5 SCC 632, etc.

The Division Bench of the Kerala High Court in Harrisions Malayalam Ltd. v. State of Kerala, 2018(2) KLT 369, held as under:

“141. ………Title, we reiterate, in this context, we have not found on the petitioners, which we are incompetent to do in the present (Writ) proceedings………”.

A Tenant Cannot Declare Himself to be a Tenant and Avail Benefits under KLR Act

• The competent statutory authority to determine tenancy under the KLR Act is the Land Tribunal.
• Land Board or Taluk Land Board deals with exemption on the ground of plantation, excess land issues etc. It cannot adjudicate on tenancy right or title.

Title to the Property is not Ajudicated 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).  

Land Tribunal to go into the question of tenancy

In Ganapathy Acharya v. Bhaskaran (TLV Iyer, J.), ILR 1993-3 (Ker) 736

• “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”.

Balanoor Plantations Case – Based on the Principle LT to fix Tenancy’; TLB to Fix Plantation Exemption.  

In Balanoor Plantations & Industries Ltd. v. State of Kerala, 2018(3) KLT 283, it is pronounced that the tenants who have not approached the Land  Tribunal and established rights as “cultivating tenant” are not entitled to avail benefits on “Fixity of Tenure”, under Kerala Land Reforms Act, 1963.

It is pointed out – when a title claim is raised by the Government or the Devaswom, the person who claims to be a cultivating tenant –

• “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.“

It is held as under:

• “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.”

It is based upon the following principles of law:

• It is for adjudicating the ‘tenancy right’, by the Land Tribunal – for, the Land Tribunal is the only authority that can decide on the “tenancy right.” (It is the principle applied in the Balanoor case.)
• 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.
• Land Board or Taluk Land Board (deals with exemption on the ground of plantation, excess land issues etc.) cannot adjudicate on tenancy right.

Cultivating Tenants (‘Entitled to Assignment’) are Obligated to Apply LT

Balanoor Plantations & Industries Ltd. v. State of Kerala, 2018(3) KLT 283, it was laid down that only cultivating tenants, entitled to fixity of tenure under Section 13 of the Kerala Land Reforms Act, 1963, would be “entitled to hold possession over the property and to resist action under the KLC Act”.

Sec. 72B provides for cultivating tenant’s rights to get an assignment by purchase certificate (through LT) – within the ceiling area. A Tenant was “obligated to apply” for the purchase certificate within 2 years from 1-1-1970.

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.”

Referrence 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. …..”

Read Related Blogs:

• Relevant provisions of Kerala Land Reforms Act in a Nutshell
• Land Tenures, and History of Land Derivation, in Kerala
• Should the Government Prove Title in Recovery Suits
• ‘Janmam’ Right is FREEHOLD Interest and ‘Estate’ in Constitution – By Royal Proclamation of 1899, The Travancore Sircar became Janmi of Poonjar Raja’s Land
• Government is the OWNER of (Leasehold) Plantation Lands in Kerala.
• Glen Leven Estate v. State of Kerala: Not Correctly Decided?
• Law on Acquisition of Private Plantation Land in Kerala
• Plantation Exemption in Kerala Land Reforms Act–in a Nutshell
• Kerala Land Reforms Act – Provisions on Plantation-Tenancy and Land-Tenancy
• Grant in Law

End Notes

Relevant provisions of KLR Act, in a Nutshell

How to Subscribe ‘IndianLawLive’? Click here – “How to Subscribe free “

Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

• Order IX Rule 9 CPC: Earlier Suit for Injunction; Subsequent Suit for Recovery & Injunction – No Bar
• Replication, Rejoinder and Amendment of Pleadings
• Does Registration of a Document give Notice to the Whole World?
• Suit under Sec. 6, Specific Relief Act – Is it a ‘Summary Suit’ under Order XXXVII CPC?
• Is it Mandatory to Lift the Attachment on Dismissal of the Suit? Will the Attachment Orders Get Revived on Restoration of Suit?
• Will Interlocutory Orders and Applications Get Revived on Restoration of Suit?
• Can an ‘Ex-parte’ Defendant Cross Examine Plaintiff’s Witness?
• Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act
• Civil Rights and Jurisdiction of Civil Courts
• Res Judicata and Constructive Res Judicata
• Order II, Rule 2 CPC – Not to Vex Defendants Twice
• Order I rule 8, CPC (Representative Suit) When and How? Whether Order I rule 8 Decree is Enforceable in Execution?
• Pleadings Should be Specific; Why?
• Pleadings in Defamation Suits
• Previous Owner is Not a Necessary Party in a Recovery Suit
• UNDUE INFLUENCE and PLEADINGS thereof in Indian Law
• PLEADINGS IN ELECTION MATTERS
• Declaration and Injunction
• Law on Summons to Defendants and Witnesses
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Sec. 91 CPC and Suits Against Wrongful Acts
• Remedies Under Sec. 92 CPC
• Mandatory Injunction – Law and Principles
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Interrogatories: When Court Allows, When Rejects?
• Decree in OI R8 CPC-Suit & Eo-Nomine Parties
• Pecuniary & Subject-Matter Jurisdiction of Civil Courts
• Transfer of Property with Conditions & Contingent Interests
• Doctrine of Substantial Representation in a Suit by or against an Association
• Who are Necessary Parties, Proper Parties and Pro Forma Parties in Suits
• What is Partnership, in Law? How to Sue a Firm?
• ‘Legal Representatives’, Not ‘Legal Heirs’ to be Impleaded on Death of Plaintiff/Defendant
• Powers and Duties of Commissioners to Make Local Investigations, Under CPC
• Burden of Proof – Initial Burden and Shifting Onus
• Burden on Plaintiff to Prove Title; Weakness of Defence Will Not Entitle a Decree
• Is it Mandatory to Set Aside the Commission Report – Where a Second Commissioner is Appointed?
• Can a Commission be Appointed to Find Out the Physical Possession of a Property?
• Withholding Evidence and Adverse Inference
• Pendente Lite Transferee Cannot Resist or Obstruct Execution of a Decree
• Family Settlement or Family Arrangement in Law
• ‘Possessory Title’ in Indian Law
• Will Findings of a Civil Court Outweigh Findings of a Criminal Court?
• Relevancy of Civil Case Judgments in Criminal Cases
• Waiver and Promissory Estoppel
• Can a Christian Adopt? Will an adopted child get share in the property of adoptive parents?
• Principles of Equity in Indian Law
• Thangam v.  Navamani Ammal: Did the Supreme Court lay down – Written Statements which deal with each allegation specifically, but not “para-wise”, are vitiated?
• No Criminal Case on a Dispute Essentially Civil in Nature.
• Doctrine of Substantial Representation in Suits
• Order I rule 8, CPC (Representative Suit) When and How? Whether Order I rule 8 Decree is Enforceable in Execution?

Principles and Procedure

• Ratio Decidendi (alone) Forms a Precedent, Not a Final Order
• BNSS – Major Changes from CrPC
• Bharatiya Nyaya Sanhita, 2023: Important Changes from the Indian Penal Code
• Substantive Rights and Mistakes & Procedural Defects in Judicial Proceedings
• Will Boundaries of Properties (Always) Preferred Over Survey Number, Extent, Side Measurements, etc.?
• All Illegal Agreements are Void; but All Void Agreements are Not Illegal
• Doctrines on Ultra Vires, Rule of Law, Judicial Review, Nullification of Mandamus, and Removing the BASIS of the Judgment
• Can an ‘Ex-parte’ Defendant Cross Examine Plaintiff’s Witness?
• Will – Probate and Letters of Administration
• Appreciation of Evidence by Court and ‘Preponderance of Probabilities’ & ‘Probative Value of Evidence
• Effect of Not Cross-Examining a Witness & Effect of Not Facing Complete Cross-Examination by the Witness
• Suggestions & Admissions by Counsel, in Cross Examination to Witnesses
• Admission by itself Cannot Confer Title
• Best Evidence Rule in Indian Law
• Declaration and Injunction
• Pleadings Should be Specific; Why?
• Does Alternate Remedy Bar Civil Suits and Writ Petitions?
• Void, Voidable, Ab Initio Void, and Sham Transactions
• Can Courts Award Interest on Equitable Grounds?
• Natural Justice – Not an Unruly Horse
• ‘Sound-mind’ and ‘Unsound-Mind’
• Prescriptive Rights – Inchoate until the Title thereof is Upheld by a Competent Court
• Can a Party to Suit Examine Opposite Party, as of Right?
• Forfeiture of Earnest Money and Reasonable Compensation
• Doctrine of ‘Right to be Forgotten’ in Indian Law
• Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act
• Cheating and Breach of Contract: Distinction – Fraudulent Intention at the time of Promise.
• Declaration of Title & Recovery of Possession: Art. 65, not Art. 58, Limitation Act Governs
• What is COGNIZANCE and Application of Mind by a Magistrate?

PROPERTY LAW

Title, ownership and Possession

• ‘Nemo Dat Quod Non Habet’
• Section 27, Limitation Act Gives-Rise to a Substantive Right so as to Seek Declaration and Recovery
• Sale Deeds Without Consideration – Void
• Tenancy at Sufferance in Indian Law
• Recovery of Possession Based on Title and on Earlier Possession
• Declaration of Title & Recovery of Possession: Art. 65, not Art. 58, Limitation Act Governs
• Title and Ownership in Indian Law
• Does Registration of a Document give Notice to the Whole World?
• Admission by itself Cannot Confer Title
• POSSESSION is a Substantive Right in Indian Law
• 22nd Law Commission  Report on ‘Law on Adverse Possession’
• Adverse Possession Against Government
• Government of Kerala v. Joseph – Law on Adverse Possession Against Government
• How to Plead Adverse Possession? Adverse Possession: An Evolving Concept
• Adverse Possession: Burden to Plead Sabotaged
• Does ‘Abandonment’ Give rise to a Recognised Right in Indian Law?
• When ‘Possession Follows Title’; ‘Title Follows Possession’?
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• ‘Mutation’ by Revenue Authorities & Survey will not Confer ‘Title’
• Preemption is a Very Weak Right; For, Property Right is a Constitutional & Human Right
• Transfer of Property with Conditions & Contingent Interests
• Family Settlement or Family Arrangement in Law
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• ‘Possessory Title’ in Indian Law
• Kesar Bai v. Genda Lal – Does Something Remain Untold?
• Grant in Law
• Termination of Tenancy (& Grant) by Forfeiture (for Claiming Title)
• Survey under Survey Act – Raises a Presumption on Boundary; though Not Confer Title