What is Tenancy at Sufferance? – Tenancy at Sufferance is continuance of tenant after expiry of lease without the landlord’s permission or approval. (If it is with permission of landlord, it is ‘holding over’).
Possession of a ‘tenant at sufferance’ is unlawful, as it is after the extinction of a lawful title - as tenant (Bhupal Prasad v. State of Andhra Pradesh, AIR 1996 SC 140, 1995 -5 SCC 698).
Still, it is recognised as juridicalpossession; and it is protected by Common law (Bhupal Prasad v. State of Andhra Pradesh, AIR 1996 SC 140, 1995 -5 SCC 698).
For such protection the the tenant must have accepted the title of the landlord; and he must not have asserted title hostile to landlord (Sheo Dulare Lal Sah v. Anant Ram, AIR 1954 All. 475).
Is Tenant at Sufferance a Trespasser? Though the possession of ‘tenant at sufferance’ is unlawful, and possession of such a tenant is akin to that of a trespasser, there is little difference between the two.
Tenant at Sufferance can remain in possession until he is ejected in due course (in the suit filed by the landlord (Bhupal Prasad v. State of Andhra Pradesh, AIR 1996 SC 140, 1995 -5 SCC 698).
His possession cannot be considered to be ‘settled possession‘ (Bhupal Prasad v. State of Andhra Pradesh, AIR 1996 SC 140, 1995 -5 SCC 698).
Tenancy at sufferance is litigious – liable to ejectment in due course of law (Bhupal Prasad v. State of Andhra Pradesh, AIR 1996 SC 140, 1995 -5 SCC 698).
‘Tenant at Sufferance’ is recognised in law as a device to avoid the term ‘trespasser’ (MEC India Pvt. Ltd. v. Lt. Col. Inder Maira, 80 (1999) DLT 679).
Can Tenancy at sufferance be converted into a ‘holding over’? Yes. Tenancy at sufferance can be converted into a ‘holding over’ (by accepting rent by the landlord). Sec. 116, TP Act statutorily recognises holding over. (Bhupal Prasad v. State of Andhra Pradesh, AIR 1996 SC 140, 1995 -5 SCC 698)
Has the Tenant got a right to transfer his right of continuance? No. A tenant who becomes a tenant at sufferance, he has no right to transfer (Indian Oil Corporation Ltd. v. Sudera Realty Private Limited, 2022 SCC OnLine SC 1161).
Whether the possession of such a tenant would be Adverse to the landlord? No.
These principles are laid down by the Supreme Court of India in Bhupal Prasad v. State of Andhra Pradesh, AIR 1996 SC 140, 1995 -5 SCC 698, as under:
“8. Tenant at sufferance is one who comes into possession of land by lawful title, but who holds it by wrong after the termination of the term or expiry of the lease by efflux of time. The tenant at sufferance is, therefore, one who wrongfully continues in possession after the extinction of a lawful title. There is little difference between him and a trespasser. In Mulla’s Transfer of Property Act [7th End.] at page 633, the position of tenancy at sufferance has been stated thus:
A tenancy at sufferance is merely a fiction to avoid continuance in possession operating as a trespass. It has been described as the least and lowest interest which can subsist in reality. It, therefore, cannot be created by contract and arises only by implication of law when a person who has been in possession under a lawful title continues in possession after that title has been determined, without the consent of the person entitled. A Tenancy at sufferance does not create the relationship of landlord and tenant.
At page 769, it is stated regarding the right of a tenant holding over thus:
The act of holding over after the expiration of the term does not necessarily create a tenancy of any kind. If the lessee remaining in possession after the determination of the term, the common law rule is that he is a tenant on sufferance.
The expression “holding over” is used in the sense of retaining possession. A distinction should be drawn between a tenant continuing in possession after the determination of the lease, without the consent of the landlord and a tenant doing so with the landlord’s consent. The former is called a tenant by sufferance in the language of the English law and the latter class of tenants is called a tenant holding over or a tenant at will. The lessee holding over with the consent of the lessor is in a better position than a mere tenant at will. The tenancy on sufferance is converted into a tenancy at will by the assent of the landlord, but the relationship of the landlord and tenant is not established until the rent was paid and accepted. The assent of the landlord to the continuance of the tenancy after the determination of the tenancy would create a new tenancy. The possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a right to continue in possession after the termination of the tenancy, his possession is juridical.
“13. In view of the settled position of law, the possession of the appellant is as tenant at sufferance and is liable to ejectment in due course of law. But his possession is not legal nor lawful. In other words, his possession of the the- atre is unlawful or litigious possession. The appellant may remain in possession until he is ejected in due course in execution of the decree in the suit filed by the respon- dent. His possession cannot be considered to be settled possession. He is akin to a trespasser, though initially he had lawful entry.”
(Quoted in Kewal Chand Mimani v. S.K. Sem, 2001-6 SCC 512, AIR 2001 SC 2569; Nand Ram v. Jagdish Prasad, (2020) 9 SCC 393)
Indian Oil Corporation Ltd. v. Sudera Realty Private Limited
In Indian Oil Corporation Ltd. v. Sudera Realty Private Limited, 2022 SCC OnLine SC 1161, it is observed by our Apex Court as under:
“60. A tenant continuing in possession after the expiry of the lease may be treated as a tenant at sufferance, which status is a shade higher than that of a mere trespasser, as in the case of a tenant continuing after the expiry of the lease, his original entry was lawful. But a tenant at sufferance is not a tenant by holding over. While a tenant at sufferance cannot be forcibly dispossessed, that does not detract from the possession of the erstwhile tenant turning unlawful on the expiry of the lease. Thus, the appellant while continuing in possession after the expiry of the lease became liable to pay mesne profits.”
“83. Once the lease comes to an end, the erstwhile tenant becomes a tenant at sufferance. He cannot be dispossessed, except in accordance with law. But he cannot, in law, have any right or interest anymore. Even though, under Section 108 of the Transfer of Property Act, if there is no contract to the contrary, the tenant may have the right, under Section 108(j), to transfer his interest absolutely or even by sub-lease or mortgage, when the lease expires by afflux of time, his interest as lessee would come to an end. In this context, we may notice the following statement of the law in Bhawanji Lakhamshi and Others v. Himatlal Jammnadas Dani and Others, (1972) 1 SCC 388:
“9. The act of holding over after the expiration of the term does not create a tenancy of any kind. If a tenant remains in possession after the determination of the lease, the common law rule is that he is a tenant on sufferance…”
Thus, on the expiry of a lease, the erstwhile tenant, who remains a tenant at sufferance, would have no right to transfer.”
Our Apex Court held in Bhawanji Lakhamshi v. Himatlal Jamnadas Dani , (1972) 1 SCC 388, as under:
“9. The act of holding over after the expiration of the term does not create a tenancy of any kind. If a tenant remains in possession after the determination of the lease, the common law rule is that he is a tenant on sufferance. A distinction should be drawn between a tenant continuing in possession after the determination of the term with the consent of the landlord and a tenant doing so without his consent. The former is a tenant at sufferance in English Law and the latter a tenant holding over or a tenant at will. In view of the concluding words of Section 116 of the Transfer of Property Act, a lessee holding over is in a better position than a tenant at will. The assent of the land- lord to the continuance of possession after the determina- tion of the tenancy will create a new tenancy. What the section contemplates is that on one side there should be an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in possession of the property after his term was over and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise. ….” (Quoted in Nand Ram v. Jagdish Prasad, (2020) 9 SCC 393)
Tenant at Sufferance – Owners Entitled Recovery under Art. 65 Limit. Act
In Sevoke Properties Ltd. v. West Bengal State Electricity Distribution Company Ltd. (2020) 11 SCC 782, the respondent continued in possession after the expiry of lease period. A suit for possession was filed without serving a notice under Section 106 of the TP Act. The stand of the defendant was that he was a tenant holding over. Such argument was not accepted and it was held that after the expiry of lease period in terms of unregistered document of lease, the possession of the respondent was that of a tenant at sufferance. In view thereof, as owners, the appellants were entitled to possession of the land in terms of Article 65 of the Limitation Act as the possession of respondent was that of a tenant at sufferance. (Referred to in Nand Ram v. Jagdish Prasad, (2020) 9 SCC 393)
(Note: Article 67 deals with right of the “landlord” to claim possession after determination of tenancy; and Article 65 deals with recovery on “title”. Unless there is no adverse-possession-claim from the tenant such a suit under Art. 65, on title, will not be barred. In sum, a “landlord” can recover under Art. 67 on the basis of determination of tenancy; but, “title” holder alone can recover under Art. 65.)
In Nand Ram v. Jagdish Prasad, (2020) 9 SCC 393, it is observed as under:
“After the expiry of lease period, and in the absence of payment of rent by the lessee, the status of the lessee will be that of tenant at sufferance and not a tenant holding over. Section 116 of the TP Act confers the status of a tenant holding over on a yearly or monthly basis keeping in view the purpose of the lease, only if the lessor accepts the payment of lease money. If the lessor does not accept the lease money, the status of the lessee would be that of tenant at sufferance.”
The court referred the following decisions in this regard:
Bhawanji Lakhamshi and Others v. Himatlal Jamnadas Dani and Others , (1972) 1 SCC 388
Badrilal v. Municipal Corpn. of Indore (1973) 2 SCC 388
R.V. Bhupal Prasad v. State of A.P and Others 15 (1995) 5 SCC 698
Sevoke Properties Ltd. v. West Bengal State Electricity Distribution Company Ltd. (2020) 11 SCC 782
Possession as a Tenant at Sufferance – should be without asserting Hostile Title
In Sheo Dulare Lal Sah v. Anant Ram, AIR 1954 All. 475, it was held that in order to create a tenancy at sufferance the tenant should have lawfully entered into possession in recognition of the landlord’s superior title and should have continued to remain in possession in the same right after the termination of the tenancy without asserting any title hostile to that of the landlord. The Court held as under:
“12. In order to create a tenancy at sufferance the tenant should have lawfully entered into possession in recognition of the landlord’s superior title and should have continued to remain in possession in the same right after the termination of the tenancy without asserting any title hostile to that of the landlord and without his assent or dissent. The continuance in possession should be due to the laches of the owner in not asking for payment of the rent or vacation of the premises or taking over possession of the property. In Corpus Juris Secundum, Vol. 51, p. 780, 175, it is pointed out that:
“The holding of a tenant at sufferance is the most shadowy estate recognized at common law, and practically the only distinction between such a tenant’s holding and the possession of a trespasser is that the land-owner may, by his acquiescence, at any time base on the tenancy at sufferance the relation of landlord and tenant, which he cannot establish at law against a mere trespasser, and that the tenant cannot be subjected to an action in trespass before entry or demand for possession.”
The law thus enunciated is in line with the provisions of Section 116 of the Transfer of Property Act (No. 4 of 1882) which pointed out that:
“If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased as specified in S. 106.”
(Quoted in Nand Ram v. Jagdish Prasad, (2020) 9 SCC 393)
Whether Possession of the Tenant could be Adverse to Landlord
S. 116 (holding-over) of the TP Act
To the question – whether the possession of the tenant would become adverse to the landlord, upon the expiration of the tenancy period, merely because the tenant has not paid rent is considered by the Bombay High Court in Sidram Lachmaya v. Mallaya Lingaya Chilaka, ILR 1949 Bom 135 (FB) with reference to S. 116 (holding-over) of the Transfer of Property Act.
S. 108(q) of the TP Act (possession remains permissive till restored to landlord)
The Delhi High Court considered the matter in MEC India Pvt. Ltd. v. Lt. Col. Inder Maira 80 (1999) DLT 679, in terms of Section 108(q) of the TP Act (unless the landlord is actually put into possession, the premises remain under a tenancy; that is, a semblance of relationship subsists) and his continuing in possession is expressive of his continuing stand that the tenancy, in whatever form, continues and not adversely to the landlord till he has unequivocally renounced his status as a tenant and asserted hostile title, but even that appears to be doubtful, for in law his possession remains permissive till it has been actually restored to the landlord.
Referring these decisions it is observed in MEC India Pvt. Ltd. v. Lt. Col. Inder Maira 80 (1999) DLT 679, that there is presumption, in law, in favour of the continuity of the tenancy and against the possession of the tenant becoming adverse. It is held in this decision as under:
“Furthermore, the doctrine of tenant estoppel, which continues to operate even after the termination of the tenancy, debars a tenant who had been let into possession by a landlord, from disputing the latter’s title or pleading adverse possession, without first openly and actually surrendering possession of the tenanted premises and restoring them to the landlord.
42. A tenant who upon determination of the tenancy does not deliver up possession to the landlord as required by Section 108(q), cannot be heard to say that he is not a tenant—be he one at sufferance or be he one from month-to-month. Therefore, unless the landlord is actually put into possession, the premises remain under a tenancy, which unless assented to by the landlord, has the character of one at sufferance.” (Quoted in: Nand Ram v. Jagdish Prasad, (2020) 9 SCC 393)
Principle of ‘Tenant at Sufferance’ – Device to Avoid ‘Trespass’ and Adverse Possession
In MEC India Pvt. Ltd. v. Lt. Col. Inder Maira, 80 (1999) DLT 679, it is held further as under:
“43. Thus, a tenant at sufferance is one who wrongfully continues in possession after the extinction of a lawful title and that a tenancy at sufferance is merely a legal fiction or device to avoid continuance in possession from operating as a trespass. A tenant remaining in possession of the property after determination of the lease does not become a trespasser, but continues as a tenant at sufferance till possession is restored to the landlord. The possession of an erstwhile tenant is juridical and he is a protected from dispossession otherwise than in due course of law. Although, he is a tenant, but being one at sufferance as aforesaid, no rent can be paid since, if rent is accepted by the landlord he will be deemed to have consented and a tenancy from month-to-month will come into existence. Instead of rent, the tenant at sufferance and by his mere continuance in possession is deemed to acknowledge both the landlord’s title and his (tenant’s) liability to pay mesne profits for the use and occupation of the property.
44. To sum up the legal position or status of a lessee whose lease has expired and whose continuance is not assented to by the landlord, is that of a tenant at sufferance. If, however, the holding over has been assented to in any manner, then it becomes that of a tenant from month-to-month. Similar, i.e. from month-tomonth, is the status of a lessee who comes into possession tinder a lease for a period exceeding one year but unregistered. He holds it not as a lessee for a fixed term, but as one from month-to-month or year-to-year depending on the purpose of the lease. If upon a tenant from month-to-month (or year-to-year) and in either of the aforesaid two contingencies, a notice to quit is served, 29 then on the expiry of the period, his status becomes of a tenant at sufferance. Waiver of that notice, or assent in any form to continuation restores to him his status as a tenant from month-to-month, but capable, of once again being terminated with the expiry of any ensuing tenancy month.” (Quoted in: Nand Ram v. Jagdish Prasad, (2020) 9 SCC 393)
Claim of Adverse Possession by Tenant
In Nand Ram v. Jagdish Prasad, (2020) 9 SCC 393, the claim of adverse possession by the tenant was negatived by the Apex Court on the following grounds:
The respondent-tenant had admitted the ownership of the landlord in earlier proceedings.
Such plea operates as estoppel. The subsequent claim of adverse possession of the tenant as owner is not sustainable.
The respondent was to prove his continuous, open and hostile possession to the knowledge of true owner for a continuous period of 12 years. The respondent has not led any evidence of hostile possession to the knowledge of true owner.
He has also not surrendered possession before asserting hostile, continuous and open title to the knowledge of the true owner. (In terms of Sec. 108(q) of the TP Act possession of tenant remains permissive till it has been actually restored to the landlord.)
The claim of adverse possession without admitting the title of the real owner is not tenable. (Such question has been examined by the Apex Court in Uttam Chand v. Nathu Ram, (2020) 11 SCC 263, AIR 2020 SC 461).
Acceptance of Rent, After Issuing Quit Notice is Not Waiver
In Sarup Singh Gupta v. S. Jagdish Singh, AIR 2006 SC 1734: (2006) 4 SCC 205, our Apex Court considered whether mere acceptance of rent, after issuing quit notice by itself constitute an act of the nature envisaged by Section 113, Transfer of Property Act showing an intention to treat the lease as subsisting. It was held as under:
“It cannot, therefore, be said that mere acceptance of rent amounts to waiver of notice to quit unless there be any other evidence to prove or establish that the landlord so intended.” (Quoted in: Sameerali v. Muhammed, 2024-1 KLT 20).
.(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted thought a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.
(2) Court may strike out or add parties– The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name, of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
Plaintiff claims Ownership; Suit against Trespasser – Not Necessary to Implead ‘Previous Owners’ (Alleged by the Defendants)
R. K. S. Builders v. Bhupinder Kumar , 2001-2 Punj LR 804, 2001-2 RCR (Civil) 497.
Facts of the Case
Plaintiff alleged that he is owner of the property and that the said property is in the illegal possession of the defendants.
The defendants contended that they have purchased the same from its rightful owners.
During the pendency of the suit, the defendants have further sold the property to various persons.
Application under Order 1 Rule 10 CPC read with Order 6 Rule 17 CPC was filed.
This application was resisted by the defendants, inter alia, on the ground that the plaintiff had not added the previous owners of the property from whom the defendants purchased it. The trial court allowed the Petition.
The High Court, dismissing the Revision Petition, held as under:
When the case of the plaintiff is that he is the owner of the property which has been illegally occupied by the defendants, it is not necessary to implead previous (rightful) owners (alleged by the defendants).
Land Reforms Act Conferred Title on Tenants: Previous Owners, Not Necessary Parties
Bir Singh v. Kishan Chand, AIR 2007 HP 24
Non-joinder of the previous owners, divested of their ownership by virtue of the Land Reforms Act, and the ownership rights stood conferred upon the tenants, are not necessary parties.
Original Owner Not Necessary Party, When Dispute is Solely Between Purchaser and another
Kaleem Pasha v. Chief Secretary, Government of Karnataka Vidhana, ICC 2018 4 810,
In the absence of the plaintiff claiming any relief against the previous owners of a vehicle nor their participation in the suit was in any manner of help in the proper adjudication of the matter and also the disputed fact was solely between the plaintiff and defendant in the original suit, the original owner and the auction purchaser were not necessary parties.
Agreement for sale – Prior owner Necessary Party
Pamujula Narayana v. Ramachandruni Malakondaiah, 2006-3 ALD 278, ALT 2006 4 247.
Facts of the case
Suit was for specific performance.
Agreement was executed by the defendant as Power of Attorney holder of the Owner.
Owner died even prior to the filing of the suit.
Plaint was silent about the owner; and read as if PoA was the owner.
Court held:
It is well known that the owner of the property agreed to be sold is a necessary party to the suit (and PoA not sufficient).
Suit dismissed if Prior owner, a Necessary Party, is not impleded within Limitation
In the above case, Pamujula Narayana v. Ramachandruni Malakondaiah, 2006-3 ALD 278, ALT 2006 4 247, it was further held –
The suit will be barred, in view of Sec. 21 of Limitation Act, if prior owner (or successor) is not impleaded within time prescribed.
Vendee Becomes the Sole Owner
In Hardeva v. Ismail, AIR 1970 Raj 167, it was held – if it is possible to determine the rights and interests of the parties, not to dismiss a suit. It was also observed as under:
“When the vendor has sold his property and has delivered the possession of the property to the vendee, the vendee becomes the sole owner of the property and it is upto the vendee to defend his title against any person who claims any right in the property. The vendor may be a proper party, but he is not a necessary party inasmuch as an effectual decree can be passed in favour of third person against the vendee.”
Two tests for determining who is a necessary party
It was laid down in the Benares Bank Ltd. v. Bhagwan Das, AIR 1947 All 18 (FB), there were two tests –
Firstly, there must be a right to some relief against the defendant, and
Secondly, in the absence of such a party it could not be possible to pass an effective decree. (Approved in Deputy Commissioner, Hardoi v. Rama Krishna Narain, AIR 1953 SC 521)
It was further pointed out in the Benares Bank Ltd. v. Bhagwan Das, AIR 1947 All 18 (FB) – where the plaintiff files a suit against a defendant who is not the full owner of the property and has only a limited right, the owner is a necessary party as no effectual decree could be passed against the defendant (Subbaraya Sastri v. Seetha Rama-swami, AIR 1933 Mad 664; Rahima Bi v. Vellore Municipal Council, AIR 1954 Mad 495, Brojanath Bose v. Durga Prosad Singh. (1907) ILR 34 Cal 753, Narahari Mohanti v. Ghanshyam Bel, AIR 1963 Orissa 186, Chenthiperumal Pillai v. D. M. Devasa-hayam, AIR 1956 Trav-Co. 181 (FB), and Chandra Nath Sarma v. Guna Ram Kalita, AIR 1949 Assam 21).
Is it Mandatory to Lift the Attachment (before judgment) on Dismissal of the Suit?
Yes (Order 38, Rule 9 directs so);
hence the attachment will not be (automatically) restored.
Interlocutory Applications Get Revived on Restoration of Suit
In Vareed Jacob v. Sosamma Geevarghese, (2004) 6 SCC 378, the majority found that on restoration of the suit dismissed for default all interlocutory matters shall stand restored, unless the order of dismissal to show to the contrary, and unless the order of restoration says otherwise. The Apex Court considered the following decisions:
.(i) Saranatha Ayyangar v. Muthiah Moopanar, AIR 1934 Mad 49
(ii) Bankim Chandra v. Chandi Prasad reported in AIR 1956 Pat 271.
(iii) Shivaraya v. Sharnappa reported in AIR 1968 Mysore 283.
(iv) Abdul Hamid v. Karim Bux, AIR 1973 All 67.
(v) Nandipati Rami Reddi v. Nandipati Padma Reddy, AIR 1978 AP 30.
Dismissal of the Suit in Default, Attachment before Judgment Automatically Ceases
It is pointed out in Vareed Jacob v. Sosamma Geevarghese –
Order 38, Rule 9 directs that the Court shall order withdrawal of attachment when the suit is dismissed.
Therefore, Rule 9 makes it mandatory for the Court to lift the attachment at the time of the dismissal of the suit.
Such a provision is not there under Order 39 or under Order 40.
It is Mandatory to Lift the Attachment on Dismissal of the Suit
In Vareed Jacob v. Sosamma Geevarghese, (2004) 6 SCC 378, the majority relied on the following decisions also:
(i) Raj Chandra Gupta v. Ramesh Kishore reported in AIR 1965 All 546. Relying on Ram Chand v. Pitam Mal, (1888) ILR 10 All. 506, it was held that on the dismissal of the suit either on merit or for default attachment before judgment shall cease and it shall not revive automatically on restoration of the suit.
(ii) Nancy John Lyndon v. Prabhati Lal Chowdhury reported in 1987 (4) SCC 78, it has been held that in view of Order 21, Rule 57, C. P. C. it is clear that with the dismissal of the title execution suit for default, the attachment levied earlier ceased. However, it has been further held that when the dismissal was set aside and the suit was restored, the effect of restoring the suit was to restore the position prevalent till the dismissal of the suit or before dismissal of the title execution suit. It was further pointed out that the scheme under Order 21, Rule 57 was similar to Order 38, Rule 11 and Rule 11-A, C P C and therefore, it cannot be applied to all interlocutory orders on the same basis.
Will Interlocutory Orders (automatically) Get Revived on Restoration of Suit?
Yes;
unless the order of dismissal, or of restoration, shows to the contrary.
Is it Mandatory to Lift the Attachment (before judgment) on Dismissal of the Suit?
Yes (Order 38, Rule 9 directs so);
hence the attachment will not be (automatically) restored.
The authority is -Vareed Jacob v. Sosamma Geevarghese,(2004) 6 SCC 378.
Majority (V. N. Khare, CJ. &S. H. Kapadia, J.) held – if the suit is dismissed for default without any reference to the ancillary orders passed earlier, then the interim orders shall revive as and when the suit is restored.
But, S.B. Sinha, J. dissented observing – “… the court cannot say that although such a sale (after the suit is dismissed for default and before the same is restored) shall be valid but the order of attachment shall revive. Such a conclusion by reason of a judge-made law may be an illogical one.” Quoted in: T. Ravi v. B. Chinna Narasimha,2017-7 SCC 342.
Interlocutory Orders Get Revived on Restoration of Suit
In Vareed Jacob v. Sosamma Geevarghese, (2004) 6 SCC 378, the majority considered the following decisions:
(i) Saranatha Ayyangar v. Muthiah Moopanar, AIR 1934 Mad 49. It was held that on restoration of the suit dismissed for default all interlocutory matters shall stand restored, unless the order of restoration says to the contrary. That as the matter of general rule on restoration of the suit dismissed for default, all interlocutory orders shall stand revived unless during the interregnum between the dismissal of the suit and restoration, there is any alienation in favour of the third party.
(ii) Bankim Chandra v. Chandi Prasad reported in AIR 1956 Pat 271. This case arose under Order 39. It was held that the orders of stay pending disposal of the suit were ancillary orders and they are all meant to supplement the ultimate decision arrived at in the main suit and, therefore, when the suit, dismissed for default, is restored by the order of the Court all ancillary orders passed in the suit shall revive, unlessthere is any other factor on record or in the order of dismissal to show to the contrary.
(iii) Shivaraya v. Sharnappa reported in AIR 1968 Mysore 283. It was also a case under Order 39. The question arose whether the restoration of the suit revives ancillary orders passed before the dismissal of the suit. It was held that it depends upon the terms in which the order of dismissal is passed and the terms in which the suit is restored.
If the Court dismisses the suit for default, without any reference to the ancillary orders passed earlier, then the interim orders shall revive as and when the suit is restored. However, if the Court dismisses the suit specifically vacating the ancillary orders, then restoration will not revive such ancillary orders.
(iv) Abdul Hamid v. Karim Bux, AIR 1973 All 67. Relying again on Ram Chand v. Pitam Mal, (1888) ILR 10 All. 506, the same view has been taken.
(v) Nandipati Rami Reddi v. Nandipati Padma Reddy, AIR 1978 AP 30. It was held that when the suit is restored, all interlocutory orders and their operation during the period between dismissal of the suit for default and restoration shall stand revived. That once the dismissal is set aside, the plaintiff must be restored to the position in which he was situated, when the Court dismissed the suit for default.
Therefore, it follows that interlocutory orders which have been passed before the dismissal would stand revived along with the suit when the dismissal is set aside and the suit is restored unless the Court expressly or by implication excludes the operation of interlocutory orders passed during the period between dismissal of the suit and the restoration.
Nagar Mahapalika v. Ved Prakash, AIR 1976 All. 264 – an Odd Decision
In Nagar Mahapalika v. Ved Prakash, AIR 1976 All. 264, it was observed with respect to interim injunction, relying on Ram Chand v. Pitam Mal, (1888) ILR 10 All. 506, that the interim injunction would not automatically revive on restoration of the suit dismissed for default.
The Supreme Court (in Vareed Jacob v. Sosamma Geevarghese) did not approve this decision and observed –
“However, this is the only judgment which has equated order of temporary injunction with attachment before judgment as interlocutory orders without considering provisions of Order 38, Rule 9 and Rule 11.”
The Apex Court continued –
“This has not been noticed by the Allahabad High Court in the case of Nagar Mahapalika v. Ved Prakash (supra). All the earlier judgments of the Allahabad High Court related to Order 38 and not to Order 39. Moreover as stated above, attachment is a part of execution process. It is granted to protect the decree. Under Order 38, Rule 11 it is further provided that when the suit is decreed the Courts will continue attachment before judgment and the plaintiff is not required to re-apply for attachment. The scheme of Order 38 is different from Order 39 or Order 40. Hence, we cannot compare attachment under Order 38 with power of the Court to grant temporary injunction under Order 39 as interlocutory orders. Similarly, Order 21, Rule 57 indicates the duty on the Courts to order whether the attachment shall continue or cease on the dismissal of the execution suit.”
Dismissal of the Suit in Default, Attachment before Judgment Automatically Ceases
It is pointed out in Vareed Jacob v. Sosamma Geevarghese –
Order 38, Rule 9 directs that the Court shall order withdrawal of attachment when the suit is dismissed.
Therefore, Rule 9 makes it mandatory for the Court to lift the attachment at the time of the dismissal of the suit.
Such a provision is not there under Order 39 or under Order 40.
It is Mandatory to Lift the Attachment on Dismissal of the Suit
In Vareed Jacob v. Sosamma Geevarghese, (2004) 6 SCC 378, the majority relied on the following decisions also:
(i) Raj Chandra Gupta v. Ramesh Kishore reported in AIR 1965 All 546. Relying on Ram Chand v. Pitam Mal, (1888) ILR 10 All. 506, it was held that on the dismissal of the suit either on merit or for default attachment before judgment shall cease and it shall not revive automatically on restoration of the suit.
(ii) Nancy John Lyndon v. Prabhati Lal Chowdhury reported in 1987 (4) SCC 78, it has been held that in view of Order 21, Rule 57, C. P. C. it is clear that with the dismissal of the title execution suit for default, the attachment levied earlier ceased. However, it has been further held that when the dismissal was set aside and the suit was restored, the effect of restoring the suit was to restore the position prevalent till the dismissal of the suit or before dismissal of the title execution suit. It was further pointed out that the scheme under Order 21, Rule 57 was similar to Order 38, Rule 11 and Rule 11-A, C P C and therefore, it cannot be applied to all interlocutory orders on the same basis.
In land-law, FREEHOLD means ‘Free from Hold’ of anyone else; or in complete ownership.
Itdoesn’t meanthat such lands are free from payment of tax.
In common law countries, ‘freehold‘ is used to contrast leasehold.
A ‘janmam’ right is the freehold interestin a property.
Edavagai Rights Acquisition Act, 1955 (State of Travancore-Cochin) did not change the character of the holdings. Lease holdings of the Edavagais continued as lease holdings, but with liability to pay Tax.
Freehold means ‘Free from hold’ of Anyone Else
Freehold means ‘Free from hold’ of anyone else; or in complete ownership. It is also used to contra-distinct, leasehold nature of land (a leasehold land is ‘held by another’).
It doesn’t mean that such lands are free from payment of tax or revenue to the Government.
“In common law jurisdictions such as England and Wales, Australia, Canada, and Ireland, a freehold is the common mode of ownership of real property, or land, and all immovable structures attached to such land. It is in contrast to a leasehold, in which the property reverts to the owner of the land after the lease period expires or otherwise lawfully terminates” (Wikipedia).
A janmam right is the freehold interest in a property situated in Kerala.
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This Article is Included in the Printed Book: Saji Koduvath on Kerala Land History & KLR Act Pages – 294: Rs. 850 Gpay/Whatapp/Phone No. 91-9387560056
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‘Freeholds (Adhikara Ozhivus)’ in Edavagai Lands of Travancore
In erstwhile Travancore,
Edapally Swaroopam, Kilimanoor Kottaram, Poonjar Koickal and Vanjipuzha Madom
administered Edavagais of –
Edapally, Kilimanoor, Poonjar and Vanjipuzha.
The chiefs or administers of those Edavagais were vassals of erstwhile Kingdom of Travancore. Those chiefs were allowed to administer (collect rent or tax from the tenants) of those Edavagais. The Travancore Govt. did not collect tax directly from those Edavagai Lands. Therefore, it was said that those lands were ‘freeholds (Adhikara Ozhivus)’.
In Harska Trust v. State of Kerala, ILR 1960 Ker 345, 1960 Ker LT 378, the reason for non-collection of Tax from Edavagais was also laid down as under:
“Edavagais were petty kingdoms or principalities which remained independent or quasi-independent until the consolidation of Travancore in the 18th century. They were outside the State Ayacut and paid no land tax. The Chiefs, however, in exercise of their ancient sovereign powers, collected Melvaram or Melvara Rajabhogam from the jenmis inside the Edavagais (See: 1945 TLR 581 and 728).”
Concept of ‘Freehold‘ in 10 Sq. Miles Concession Order, Travancore
The term ‘Freehold‘ is used in erstwhile Travancore to denote two ideas –
1. Exempted from payment of any kind of tax to Government.
2. Free to cultivate any crop (inasmuch as crop is specified in ordinary leases/grants).
Exempted from payment of any kind of tax to Government
Travancore State Manual Vol. III published by the Travancore Government in 1940, while listing various classes of jenmom lands, it says about a class which were entirely ‘freehold‘ and exempted from payment of any kind of tax to Government under any circumstances. These were the special properties given by the Ruler to certain individuals considering their valid services, or to certain institutions including temples.
Free to cultivate any crop
In the proceedings of the Chief Secretary to the Travancore Government, dated 28.03. 1906, the request of the tenant to ‘convert the lease hold into free-hold’ in the light of the promise “to pay 3 annas instead of 2 1/2 annas, the rent payable at present per acre” is seen allowed. The tenants represented that they were ‘prepared to pay tax that may be payable on lands under coffee, tea or other products at the rates which may prevail at that times’.
It was added further:
“If any portion of land is brought under rubber cultivation he also agreed to pay tax at the rate Rs. 2 per acre per annum on such land. He also agreed to pay an upset price of Rs. One per acre on the 10 sq. miles of land granted to them as consideration for converting the leasehold into freehold tenure”.
The intention and objective of the term “freehold” in the Order of the Chief Secretary is clear from the following statement –
“The other terms of the grant shall be the same as those that apply to waste lands granted under the Coffee land Rules dated 7th July 1898″. (Quoted in: Majeed v. State of Kerala,(2006) 1 KerLT 19.)
Note: Under the aforesaid Rules, 1898 the grantees were allowed to cultivate only “coffee”.
The aforesaid view is fortified by the decision in Kannan Devan Hills Produce v. The State of Kerala, AIR 1972 SC 2301, which states as under:
“It thus appears that the State grants like Kanan Devan Hills Concession and Ten Square Miles Concession, and Munro Lands, were treated under the heading ‘Pandaravaka Lands, i.e. lands belonging to the Sircar.”
‘Jenmam’ (freehold right) is ‘Estate’ within Article 31A
In K. K. Kochunni v. States of Madras and Kerala, AIR 1960 SC 1080 and Govindaru Nambooripad v. State of Kerala, 1962 Ker LT 913 : AIR 1963 Ker 86 it was held that jenmom right was the freehold right with ‘proprietary interest’.
The concepts on ‘janmam’ continued even after introduction of Tax system by Government. ‘Jenmom’ was taken the proprietary interest of a landlord in lands (Kavalappara Kottarathil Kochuni v. States of Madras and Kerala, AIR 1960 SC 1080). Subba Rao, J., observed as under:
“Under the definition, any janmam right in Kerala is an “estate”. A janmam right is the freehold interestin a property situated in Kerala.
Moor in his “Malabar Law and Custom” describes it as a hereditary proprietorship. A janmam interest may, therefore, be described as “proprietary interest of a landlord in lands” and such a janmam right is described as “estate” in the Constitution. Substituting “janmam right” in place of “estate” in cl. 2 (b), the “rights” in Art. 31A (1) (a) will include the rights of a proprietor and subordinate tenure-holders in respect of a janmam right.
It follows that the extinguishment or modification of a right refers to the rights of a proprietor or a subordinate tenure-holder in the janmam right. A proprietor called the janmi or his subordinate tenure-holder has certain defined rights in janmam right”. Land-tenures in Malabar are established by precedents or immemorial usage. Janmam right is a freehold interest in property and the landlord is called “janmi”. He can create many subordinate interests or tenures therein.” (Quoted in: Kannan Devan Hills Produce v. The State of Kerala, AIR 1972 SC 2301)
“Janmam right” can be vested withSircar (Not with holders,alone)
The Supreme Court, in Kannan Devan Hills Produce v. The State Of Kerala, AIR 1972 SC 2301 (Sikri (Cj), Shelat, A.N. Ray, I.D. Dua, , H.R. Khanna, JJ.) held that Kenan Devan Hills Concession (on grant deeds) fall within the expression “Janmam right” vested withSircar (not solely with holdersof the land). This land is dealt with under the heading – Pandaravaka Lands, i.e. lands belonging to the Sircar.
The Apex Court found the following:
The janmam rights (even if remained with the Poonjar Chief, H.H. the Maharaja became the janmi by the Royal proclamation of 1899.
The nature of ‘janmam right’ has been examined by this Court previously in Kavalappara Kottarathil Kochuni v. State of Madras [1960] 3 S.C.R. 887 Subba Rao, J., observed that janmam right in Kerala is an “estate” and it is the freehold interest.
The Sircar itself is one of these janmis and it was the largest Janmi. It came to possess janmam lands by gift, purchase, escheat, confiscation and other ways
If any person wants land in Travancore, he must obtain it from, some one of the body of Janmis, i.e. from the Sircar, which is the Chief Janmi, or from some other Janmi.
‘Grant’ will not confer Absolute Proprietary Rights
In State of Kerala v. Kanan Devan Hills Produce Co. Ltd., (1991) 2 SCC 272 the Apex Court came to the conclusion that the the company did notacquireabsolute proprietary rightsover the Concession/granted Area. With respect to the same property it was held in State of Kerala v. Kannan Devan Hills Produce Co. Ltd., (1991) 2 SCC 272, as under:
“The Trial Court in a detailed and well-reasoned judgment dismissed the suit of the company. The Trial Court on the interpretation of First Concession (Exhibit P- 1), Second Concession (Exhibit P-2), deed of ratification (Exhibit P-62) and the Government agreement with the Society dated August 2, 1866 (Exhibit P-64) came to the conclusion that the company did notacquireabsolute proprietary rightsover the Concession Area or the trees and timber in the said area. It was held that the Poonjar Chief had only conveyed heritable and transferable possessory rights over the Concession area to the grantee. It was also held that absolute rights over the trees and timber in the Concession Area did not pass to the grantee and it had only the right to use and remove timber subject to the restrictions imposed in the deeds of conveyance/ratification.”
The Apex Court referred to a Full Bench decision of the Kerala High Court in George A Leslie v. State of Kerala, [1969] K. L.T. 378, K. K. Mathew, J. (as the learned Judge then was) that interpreted the clause in a similar deed.
Then it is observed further:
“We agree with the interpretation given to the clause by Mathew, J. and hold that the respondent- company did not acquire absolute proprietary rights over the Concession Area or the trees and the timber therein.”
The Apex Court (in State of Kerala v. Kannan Devan Hills, (1991) 2 SCC 272) upheld and approved “the judgment and findings” of the Trial Court.
History of Land Tax Collection from Edavagai Lands
Harska Trust v. State of Kerala, ILR 1960 Ker 345, 1960 Ker LT 378, clearly lays down the history. It is pointed out that the collection of Basic-Tax was first introduced by the Travancore Land Tax Proclamation, 1121. Sec. 6 of the Proclamation provided that the Proclamation would not be applicable to certain classes of lands. One of those classes was-
As pointed out in Harska Trust v. State of Kerala, ILR 1960 Ker 345, the next enactment was the Travancore-Cochin Land Tax Act, 1955 which came into force on 1-4-1956. Sec. 17 of the Land Tax Act, 1955, repealed the Travancore Land Tax Proclamation, 1121 (1946).
Jenmam – Proprietary right in the soil
In K. K. Kochunni v. States of Madras and Kerala, AIR 1960 SC 1080, the Supreme Court, while dealing with Article 31A of the Constitution, said:
“Under the definition, any jenmom right in Kerala is an ‘estate’. A jenmom right is thefreeholdinterest in a property situated in Kerala. Moor in his “Malabar Law and Custom” describes it as a hereditary proprietorship. A jenmom interest may, therefore be described as ‘proprietary interest of a landlord in lands‘.”
Edavagai Rights Act, 1955 did Not change Character of Holdings
The object behind the act is very clear – it was only to ‘acquire’ the rights of the Edavagais; it was not to change the character of the land held by the tenants or purchasers.
Lease holdings of the Edavagais continued as Lease holdings, but with liability to pay Tax.
In Harrisons Malayalam Limited v. State of Kerala, 2018-2 KLT 369, it is pointed out analysing Edavagai Rights Acquisition Act, 1955 as under-
“There was also a saving clause in Section 11 which exempted from vesting, those lands held by the Chiefs as a Jenmyor as a pattadar under the Government and those held by the families, already settled and assessed, as also those lands in the direct possession of the Chiefs and any of the members of the respective families.”
Then it is observed by the High Court of Kerala as under:
“Hence land existing on a lease from either of the Edavagais or
as freeholdon valid purchase made,
continues in the possession and ownership of the land holder/lessee and
the liability to payment of rent or other levies to the Edavagais would stand altered as liability to tax imposed by the Government.
This does not change the character of the holdings and
only interferes with the right, title and interest of the respective Edavagais; which stands vested with the Government.”
Meaning of the Word ‘Thettom’
Generally meant – acquisition by Mortgage.
When ‘Thettom’ refers to a property dealing with a Jenmam holder, it can be any ‘subordinate tenure falling short of the full proprietary title‘.
When it refers to a property dealing with a Non-Jenmom holder, it may mean a sale’
As regards ‘Thettom’, Raman Menon, C.J., said, in Augusti v. The Dewan of Travancore, 8 Travancore LJ 438, as under:
“In S.A. 17 of 1074, this Court remarked:-‘In the Sirkar registry of 1011, the plaint property is entered as ‘Thettom’ in the name of defendants’ Tarwad.
That expression, according to its ordinary meaning, implies at least a mortgage lien, if not more, as held by this Court in A.S.166 of 1070 and A.S. 285 of 1071. It always implies something more than a simple lease’.
In S.A. 61 of 1075, the terms was taken to be generic and to include ‘all subordinate tenures falling short of the full proprietorytitle‘.
In S.A. 302 of 1075, it was observed that the word ‘Thettom’, as applied to Nambudiri Jenmies, had been held by this court to mean ordinarily a Kanom.
In S.A. 48 of 1076, Vencoba Chariar, C.J. and Mr. Justice Kunhiraman Nair construed the words thus:- ‘The chief ground of the plaintiff’s second appeal is that in arriving at this finding the lower courts have not given sufficient weight to the fact appearing from the Ext. B – an old Revenue account – in which the land in dispute is entered as ‘Thettam’ from plaintiff’s Illom; but the word ‘Thettom’ is a somewhat ambiguous one and though, as remarked in the case in 15 TLR 161 and in other cases, it is generally used in the Revenue accounts to signify the Kanom tenure under Jenmies, it is also sometimes used to denote other subordinate tenures‘.
In S.A. 343 of 1078, we find the following remarks:-‘Thettom ordinarily means a’Kanom’, and in any case, a derivative title when used in connection with Brahmaswam or Devaswom properties, as in the present case’.
Lastly, in A.S. Nos. 59 and 101 of 1083, Sadasiva Iyer, C.J., and Sankara Menon, J., observed thus:-‘Mr. Kochukrishna Marar quotes 15 TLR 161 and says the word ‘Thettom’ means a Kanom or mortgage.
No doubt, in the case of Jenmies, it has been so held; but we doubt whether in the case of non jenmies, any meaning other than the ordinary meaning of the word can be given to the word ‘Thettom’. The plaintiffs are Nairs and the tenure claimed is not Jenmom. The ordinary meaning of the word is acquisition. We are inclined to hold that a word ‘Thettom’, in cases of this sort, means only sale’.”
In Damodaran v. Sankaranarayanan Namboothiripad, ILR 1963-2 Ker. 707; 1964 KLT 25, the High Court referred to thanathu thettom land (nilam); and observed – it conveys the idea of ‘acquisition’.
‘Pandarappattoms’ before 1061 (1886) were Recorded as “Thettoms”
The ‘pandaravakappattoms’ before 1061 (1886) to which benefits of proprietary rights were conferred under the Proclamations (1040 and 1061) were recorded in 1910 Travancore Settlement Register as “Thettoms” (such as Devaswom Thettom, Namboori Thettom etc.)
Note: When those properties (upon which Brhamins or Devaswoms had pandarappattom rights) were sold or leased, they were termed in the transfer-deeds as “Devaswom Thettom”, “Namboori Thettom”.
Second, mere revenue-document prepared for collecting tax.
Even when Patta is referred to as a Title Certificate it denotes –
(i) either conferment of ownership upon Govt. property,
(ii) or recognition of tenancy/granteeship/licence on Govt. property, for cultivation, residence etc.
Patta was ‘Rent-Deed’ in the 1st Regulation on Land Matters
The first Regulation of Madras Presidency in which Patta is referred to is the Permanent Settlement Regulation, No. 25 of 1802. Section 14 of the regulation reads as under:
“Zamindars or landholders shall enter into engagements with their ryots for rent, either in money or in kind, and shall within a reasonable period of time grant to each ryot a patta or kaul defining the amount to be paid by him and explaining every condition of the engagement. And the said Zamindars or land- holders shall grant regular receipts to the ryots for discharges in money or in kind, made by the ryots on account of the Zamindars.” (See: Land Law in Madras Presidency, BR Chakravarthy, 1927, page62)
In State of Madras v. Parisutha Nadar, 1961-74 LW 338; 1961-2 MLJ 285, it was observed as under:
“The Act (Madras Surveys and Boundaries Act) does not create new rights of ownership and the grant of ryotwari patta under the Actis not a conferment of rights by way of grant or conveyance. The obtaining of ryotwari patta by the persons entitled to such patta under the Act, can if at all be only in recognition of pre-existing rights of ownership. Aryotwaripatta granted by the Revenue authorities in respect of lands in a Government village is not a title deed but is only a bill for rent.” (Quoted in: T. M. Laksminarayana Ayyar v. Nallachi Ammal, 1974-1 MLJ 424; The State of Madras v. Ramalingaswamigal Madam, 1969 2 MLJ 281)
Patta Regulation of 1802
Land Law in Madras Presidency, BR Chakravarthy, 1927, page65 reads as under:
“Regulation 30 is the well-known patta regulation of 1802. The preamble to the regulation stated, that it was necessary that the terms of the holding between the landholder and the ryots should be reduced to writing.
Section 2 provided, that the landholders and the ryots should exchange written engagements containing the terms of the holding that given by the landholder being called the patta and the counter-part executed by the ryot being called the muchilika. Section 3 described the contents of these documents – the patta and the muchilika. The patta should contain a description of the property, the terms of the holding, such as the rent payable by the ryot and the time or duration of the tenure. These pattas and muchilikas must be registered in the office of the Kernam.”
In Earlier times, Pattah was Not Considered as a Document of Title
In Narayan Madhavan v. Kumaran Velayudhan, XV (1900) TLR 187 (Travancore Law Reports), it was observed as under:
“The grant of Pattah is merely for convenience of Government for purpose of revenue and confers no title not previously possessed.”
The Secretary of State for India v. T. V. Raghavachariar, 83 IndCas 1009; 1924 20 LW 815; 1924-47 MLJ 503, it is observed as under:
“15. I should have thought that it was well-known law that a patta is not a document of title, or a deed of grant.
See: The Secretary of State for India in Council v. Kasturi Reddi, (1902) ILR 26 M 268. and
Muthu Veera Vandayan v. The Secretary of State for India in Council (1906) ILR 29 M 461.
It is a record of demand by Governmentthat such and such an amount is due as land revenue on such and such an area. Plaintiff admitted before us, when pressed, that the stream in question within Survey Nos. 13, 14 and 17 was Government property prior to the grant of patta to his vendor. It follows that neither his vendor nor himself has succeeded to the ownership of that portion of the stream unless the grant of patta or the grant of these survey numhers on darkhast* somehow carried with it also the transfer of ownership of that portion of the stream. As noted, the patta implies no such grant, and plaintiff has not chosen to produce or call for the darkhast records. I wholly fail then to find any proof that the ownership of Government admitted prior to the darkhast has been lost by Government.
*’darkhast’ refers to ‘application’.
In The Official Assignee of Madras v. Basudevadoss Badrinarayan Doss, 1925-21 LW 538; 1925-48 MLJ 423, it is pointed out as under:
“It is quite true that a patta is not a title deed in all senses of that expression or for all purposes …”
Patta is not a document of title. It can only be evidence title
As time went on, the courts began to value patta more, and recognised it as a document of title, although it was not acknowledged as a title deed, as such.
In The Secretary of State for India in Council v. Reddipalle Hussain Saheb, AIR 1940 Mad 788; 1940-52 LW 205; 1940-2 MLJ 13, it is stated as under:
“2. In appeal, the learned District Judge disposed ofthe matter briefly by saying that a patta was not a document of title but was a mere bill for rent or tax which, being of little or no value, proved nothing. As that was the only evidence on which the Government could rely, the plaintiff was entitled to succeed.
3. With due deference to the opinion of the learned District Judge, I do not consider that a patta is quite such a valueless document as he thinks. As was pointed out by Srinivasa Ayyangar, J. in The Official Assignee of Madras v. Badri Narayan Doss (1924) 48 M.L.J. 423: I.L.R. 48 Mad. 454, although a patta is not a title deed, it is a document of title, to which great weight is generally given both by the possessor and by the Government. It is true that a patta is not a title deed in the sense of a document, the grant of which conclusively passes title from the Government to the pattadar; but with regard to a first grant, at any rate, a patta is granted as a matter of course to the person to whom the Government has granted the land. The value of a patta generally comes up for consideration in proceedings between the pattadar and a third party; but as between the Government and the pattadar, a patta clearly has a greater value. The Government cannot say that the pattadar is not entitled to the land or the trees granted under the patta nor can the pattadar say that he is not holding title from the Government. A tree patta, moreover, differs from an ordinary ryotwari patta in being more in the nature of a lease, which was the original meaning of the word patta.”
Gopalakrishna v. M. Srinivas, 2010-2 Ker HC 235; 2010 2 Ker LT 216 (Thomas P. Joseph, J.), is pointed out to show Patta is not a document of title; but, it can only be evidence title. It reads as under:
“Exhibit A5, copy of Patta is produced to show that the said property belonged to one Sarojini Amma. Patta is not a document of title. It can only be evidence title .”
Patta by Sirkar in one’s name does not Confer Title
Patta As Such Does Not Confer Title/Ownership
In Smriti Debbarma v. Prabha Ranjan Debbarma, AIR 2023 SC 379; 2023-1 SCR 355, our Apex Court noticed the fact that a lease can be given on ‘Deed of Patta’ when referred to “demarcation of land given on lease vide the Deed of Patta”.
In Union of India v. Vasavi Co-op. Housing Society Ltd. , AIR 2014 SC 937; 2014-2 SCC 269, it is said as under:
“18. The Plaintiff has also maintained the stand that their predecessor-in- interest was the Pattadar of the suit land. In a given case, the conferment of Patta as such does not confer title. Reference may be made to the judgment of this Court in Syndicate Bank v. Estate Officer & Manager, APIIC Ltd. & Ors. (2007) 8 SCC 361 and Vatticherukuru Village Panchayat v. Nori Venkatarama Deekshithulu & Ors. (1991) Supp. (2) SCC 228.
20. We are of the view that even if the entries in the Record of Rights carry evidentiary value, that itself would not confer any title on the plaintiff on the suit land in question. Ext.X-1 is Classer Register of 1347 which according to the trial court, speaks of the ownership of the plaintiff’s vendor’s property. We are of the view that these entries, as such, would not confer any title. Plaintiffs have to show, independent of those entries, that the plaintiff’s predecessors had title over the property in question and it is that property which they have purchased.”
In Amba Thampuratti v. Kerala Varma Thampuran, 1954 Ker LT 700, it was pointed out that ‘the Patta did not confer any title’. In Parukutti Amma v. Sundara Ayyar (1949 TCLR 59) the Travancore-Cochin High Court held that the issue of patta by Sirkar in one’s name did not confer title to the property, if he had not already obtained title to it. (Referred to in: Narayana Iyer v. Vella, 1988-1 Ker LJ 231; 1988-1 Ker LT 856)
Patta is not a document of title. It only evidences title
Aiysumma v. Mariyamma, 1994-1 KLT 570 (TL Viswanatha Iyer, J.), it is held as under:
“Patta by itself does not confer any title. … but only an evidence of title.”
It had been held in Mooka Kone v. Ammnakutti Ammal, AIR 1928 Mad 299 (FB ) as under:
“Patta would at least have served as some evidence of possession, although a patta by itself cannot be regarded as a document or evidence of title or a title-deed. (Referred to in: Mathaluru Bajjappa v. Madamanchi Venkanna, AIR 1960 AP 397.)
In Periyaayya v. R. Pitchaimuthu, 04 Jul 2019, 2019 0 Supreme(Mad) 1116, it is held as under:
“Though patta is not a document of title, patta can be accepted as an evidence for possession.”
In L. Duraivel v. N. Padmavathy, 2023-3 LW 202 (Mad), it is held as under:
“It is true that patta is not a document of title. However, patta can still be an evidence to show ones prima facie title and enjoyment particularly when the person disputing the title is unable to produce any material evidence to contradict or controvert such revenue documents.”
Patta – Not A Document of Title; it Establishes Possession
In M. Karuppiah Thevar v. John Victor (Mad), 2017-1 CTC 67, it is held as under:
“Though it is a well settled proposition of law that patta is not a document of title and it can only be a piece of evidence to establish one’s possession in a case where there is no rival claim.”
Patta is not a document of title. Still, it can be Mortgaged as Title-Deedu/s. 58, TP Act
In Angu Pillai v. M.S.M. Kasiviswanathan Chettiar, AIR 1974 Mad 16, it was noticed as under:
“15.In Indian law, deposit of patta has been held to constitute a valid equitable mortgage, though patta is not in itself a deed of title, but is only an evidence of title. This Court has consistently taken the view that the main object of tender of patta is merely to give information of the land revenue payable and the details of the property and that the exact weight to be given to the patta would depend upon the circumstances of the case. In Dohganna v. Jammanna, AIR 1931 Mad 613 it is pointed out that in case of pattas in respect of a land in Zamindari, if the land be at the disposal of the landlord at the time of granting the patta, prima facie such patta would not be mere bill of rent but something more and that if it is not so it would not create any rights in the pattadar in derogation of the rights of a person who would be entitled to the land subject to the proper and regular payment of rent. The question directly arose before a Bench of this Court in Official Assignee v. Basudevadoss, AIR 1925 Mad 723, as to whether a deposit of patta is enough to constitute an equitable mortgage. The Bench answered the question in the affirmative. Srinivasa Aiyangar, J. who delivered the leading judgment in that case, has pointed out that the answer to the question as to whether the pattas in respect of a land is a document which would be sufficient, by being deposited, to evidence the intention required for an equitable mortgage would vary according to the conditions of the country and the consciousness on the part of the members of the community and that though a patta is not a document of title still a deposit of the same with intent to create an equitable mortgage would create an equitable mortgage.” (Quoted with approval in: Syndicate Bank v. Estate Officer, AIR 2007 AIR SC 3169; 2007-8 SCC 361)
Not to Set AsidePatta; for, Patta was Prepared not after hearing
In Godavarma Valia Raja v. Bhoothi Swamiyar, AIR 1952 TC/Ker 408, ir is observed as under:
Therefore, so far as the assessment is concerned it was not at all necessary to set aside the order of the Settlement Officer. It is only in case the Devaswom impeaches the order in so far as it refused to issue patta in favour of the Devaswom for some of the properties claimed by it that the Devaswom would be bound to set aside the order. Therefore, there is no substance in the contention that the plaintiff was bound to set aside the decision of the settlement Officer mentioned in the notice, Ex. VIII. The further question for consideration is whether the plaintiff was bound to set aside the patta, Ex. G. There is nothing to show that the patta was prepared after hearing the plaintiff or after giving him an opportunity to show cause why the assessment should not be fixed in the manner in which it was fixed in Ex. G. The preparation of the patta appears to have been a mere executive order of the Settlement Officer. It was not an order passed between two parties. Again, even if the declaration asked for in the plaint is allowed it will not have the effect of setting aside the patta. It will only have the effect of correcting the patta with respect to the assessment.”
Kerala Government Land Assignment Act, 1960
The Kerala Government Land Assignment Act, 1960, Sec. 8 shows that ‘Pattah is a document evidencing the assignment of Government land or of any interest therein’. Sec. 2(2) denotes that ‘assignment includes a transfer of land by way of lease and a grantof licence‘.
Section 2(2) of the Land Assignment Act, 1960 reads as under:
“2. Definitions.- (1) ….
(2). In this Act, unless the context otherwise requires,- (a) assignmentincludes a transfer of land by way of lease and a grantof licence for the use of land.”
Section 8 of the Land Assignment Act, 1960 reads as under:
“8. Assignment to take effect with restrictions, conditions, etc., according to their tenor .- All the provisions, restrictions, conditions and limitations contained in any Pattah or other document evidencing the assignment of Government land or of any interest therein shall be valid and take effect according to their tenor, notwithstanding any law for the time being in force or any custom or contract to the contrary.”
Following decisions speak as to patta issued to Tenants –
Nature Lovers Movement Vs. State of Kerala, AIR 2009 SC 1573
Kamala Bakshi Vs. Khairati Lal, AIR 2000 SC 1808
Glanrock Estate (P) Ltd Vs. State of TN, AIR 2010 SC 795 (Ryotwari Patta).
Harska Trust v. State of Kerala, ILR 1960 Ker 345
M Chinnathambi Alias Muthiah Vs. Ponnathal, 2010-1 Mad WN 725;
Umapathi, K. Vs. Addl. Collector, Thanjavur, 2000-2 Mad LJ 725
In Revenue documents (‘record of rights’) of various States in India, the lessee is referred to as pattadhar.
Several enactments, relating to revenue, also refer patta as lease-document.
Who is a Pattadar in a Revenue Document?
Is he the Real Owner?
‘Holder of property’ – ‘Pattadaran’. In Kerala, under the Land Tax Act Rules, 1972, and the Tax Receipt, the ‘holder of property’ is described as ‘Pattadaran’. It is definite – he need not be the title holder.
In Mathai Kitho v. Godananda Brahmananda Boothi Swamiar, 1956 KLT 313, the suit was filed by the owner (before the revenue sale). But, the “Patta” stood in the name of the “kanamdar. The properly was subjected to a revenue sale, proceeding against Pattadar. It was held as under:
“4. …Kanomdar, was the pattadar i.e., the registeted holder, of the property. For purposes of the Revenue Recovery Act, the registered holder for the time being of the property is the “land holder” … Even if the registered holder is not the real owner of the property, for purposes of the Revenue Recovery Act he, and he alone, can be treated as the landholder or owner, and a sale after notice to him will convey not merely the rights which he in fact has in respect of the property but the full ownership of the property…”
The following decisions were relied on:
Thoma Varkey v. The Dewan of Travancore, XXVII T.L.J. 13,
Mathew v. The Dewan of Travancore, XXXII TLJ 160,
Varkey v. The Dewan of Travancore, XXXII T.L.J. 325,
Zamorin of Calicut v. Sitarama, ILR VII Madras 405,
The Pokkuvaravu Rules, dated 6th March 1921, provided as follows:
“6. The Settlement Department having issued pattasat the Settlement to all holders of landliable to the payment of revenue, all changes subsequent to Settlement have to be brought to book in order to keep the land revenue accounts up to date. The process by which these changes or mutations of names are ascertained and recorded in the Government accounts is known as Pokkuvaravu.”
“8. Pokkuvaravu or transfer of registry falls under three clauses :
(a) by voluntary transfer;
(b) by decree of court or by Revenue sale ;
(c) by succession.”
Rule 6 and 8 quoted in: Kochu Narayanan v. Janaki Amma, ILR 1962-2 (Ker) 302; 1962 KLJ 951.
Transfer of Registry Rules (Kerala)
The Transfer of Registry Rules, 1966, replaced Pokkuvaravu Rules, 1921.
Rule 15 of the Transfer of Registry reads thus:
“15. With the help of the details furnished in the statement in Form ‘A’ prepared by the Village Officers and such further information as the Tahsildar may receive from parties and village officials at the time of enquiry regarding the fact of possession and enjoyment, payment of tax and other particulars, the Tahsildar shall determine the person in whose name the transfer of registry shall be made. No case shall be rejected solely for the default of appearance of the parties as it is the immediate concern of the Land Revenue Department to keep the thandaper accounts (Chitta) upto date and bring into it the names of the real land-holders who shall be held liable for the payment of Government revenue due on the land. (Quoted in: Rahulan v. Tahasildar, 2021-4 KHC 562; 2021-4 KLT 689)
Rule 16 reads as under:
“16. The summary enquiry and decision thereon is only an arrangement for fiscal purposes and does not affect the legal rights of any person in respect of the lands covered by the decisions in transfer of registry cases. The question of legal rights is always subject to adjudication by Civil Courts and pattas will be revised from time to time in accordance with judicial decisions.”(Quoted in: Mohandas N. S v. Tahsildar Kanayannur Taluk Office, 2020-6 KLT 554)
Therefore, it is clear that (here) ‘Patta’ refers to a document unilaterally prepared by the Revenue Department.
This rule makes it clear – Patta and Title stand for Different Concepts. In Moideen v. Village Officer, 9 January, 2019 (Alexander Thomas, J.) Kerala High Court pointed out with reference to Rule 16 of the Transfer of Registry Rules that the mutation or acceptance of basic land tax, by itself, will not confer or extinguish title and that in accordance with the decisions of the Civil Court pattas will be revised from time to time. Rule 16 of the Transfer Registry Rules reads as under:
“The summary enquiry and the decision thereon is only an arrangement for fiscal purposes and does not affect the legal rights of any person in respect of the lands covered by the decisions in transfer of registry cases. The question of legal rights is always subject to adjudication by civil courts and pattas will be revised from time to time in accordance with judicial decisions.”
Significance of Patta – Possession, though not Title
In Sankaran v. Rajamma, AIR 1975 Ker 155,it is held as under:
“On the basis of the Court sale and delivery, the plaintiff has obtained patta in her name. Though patta is never conclusive evidence of title or possession, it certainly should be given due weight in considering the question of possession. Mutation in the registry is not without any significance. Official acts are presumed to be properly done unless proved otherwise. Therefore, I do not think the Courts below committed any error in this respect.”
Part – II
Patta in Madras Presidency
Following early decisions makes it clear that Patta is the document issued to the tenants by the landholders.
1. Vellayan Chetti v. Tiruvakone, 1882-5 ILR(Mad) 76
(The earliest legislation respecting the granting of pattas by landlords to tenants in this Presidency is to be found in Regulation XXV of 1802, which introduced the permanent assessment. The 14th section of that Regulation required “Zamindars” and ‘ Landholders'” to enter into engagements with their raiyats for a rent and within a reasonable time to grant to each raiyat a patta or cowle defining the amount to be paid by him and explaining every condition of the engagement and to give receipts for all payments made to them by their raiyats, and it declared a Zamindar, who, after the expiry of a reasonable time from the execution of a kabulyat, should neglect or refuse to comply with the demands of his under-farmers or raiyats for pattas or receipts, liable to a suit for damages in the Civil Court.)
2. Krishnasami Pillai v. Varadaraja Ayyangar, 1882-5 ILR (Mad) 345
(Patta is applied to describe the lease granted to a cultivator and, in this Presidency, the revenue engagement of a raiyat.)
Palaniappa v. Raya, 1883-7 ILR (Mad) 325
(Patta prescribes payment of the revenue, and, having regard to the terms of the inam grant, the patta must embrace the share of the Government as well as of inamdar.)
3. Theivu Pandithan v. Secretary of State For India, 1898-21 ILR(Mad) 433
4. Panduranga Pai and Kuchur Subba Row v. The Secretary of State for India in Council, 1905-15 MLJ 147
Patta in Estates Land Act, 1908
As shown above, patta was not a document of title, or a deed of grant in the erstwhile Madras State. (It is so observed in Secretary of State for India v. T. V. Raghavachariar, 83 IndCas 1009; 1924 20 LW 815; 1924-47 MLJ 503, also.) The landholders had to issue pattas (rent deeds) and the ryots had to pay muchilikas (rent/rent receipt). They were to be exchanged ‘yearly basis’. (See: Land Law in Madras Presidency, BR Chakravarthy, 1927) Going by Estates Land Act, 1908, ‘Patta’ was originally a word connected to land-lease.
‘Patta‘ is issued by Landholder to Ryot, stating rate of Rent
As per Sec. 50, 51 and 52 of the Estates Land Act, 1908 ‘Patta‘ was a document issued by the landholder (person owning land and entitled to collect rent) to the ryot (person holds ryoti land on condition to pay rent) stating rate of rent, among other things, for the period, usually, one year.
Rayotwari Patta in Estates (Abolition and Conversion into Rayotwari) Act, 1948
Under Sec 11 of the Act every ryot would be entitled for Rayotwari Patta.
Note: A ryotwari pattadar was not a proprietor of land in its full sense, but only a tenant.
Ryotwari System in Malabar –
In ‘Land Law in Madras Presidency’, BR Chakravarthy, 1927, it is said as under:
“The land Revenue settlement in Malabar differed from the ordinary ryotwari settlement in the rest of the presidency, in that in Malabar. The existence of a landlord between the state and the actual cultivator is recognised in the theoretical distribution of the produce, on which the rates of assessment are based.”
The tradition as regards the Malabar-land is pointed out by Chkravarthy as under:
“The tradition with regard to Malabar is that the God Parasurama, who created it, granted it to a set of Brahmins to be held by them tax free; that accordingly these Brahmins held and cultivated the lands, without -even the obligation to pay any tax”.
Lease by Government, under Pattas
Sir Thomas Munro, Madras Governor, introduced ryotwari system throughout the Madras Presidency in 1820.
Under the ryotwari system, land was given on lease by the government to the ryot under a patta.
A ryotwari pattadar was not a proprietor of land in its full sense, but only a tenant.
British Government collected taxes directly from the peasants. The rate of tax was 50% in dry-lands and 60% in irrigated land.
“Record of Rights” in Madras Presidency
In ‘Land Law in Madras Presidency’, 1927, BR Chakravarthy says as regards the first larger step for survey of lands as under:
“Record of Rights: The Local Government may make up order directing that a Survey be made and a. Record of Rights prepared by a revenue officer in respect of any estate or part there-of in the following cases.
(l) Where an application is made by the landholder or landholders, if there are more than one, and of the ryots;
(2) Where the Local Government considers, that the preparation of a record is necessary for securing the rights of the landholder; and of the ryots and for preventing disputes arising between them;
(3) Where an estate is managed by the Government or is under the superintendence of the Court of Wards.
The first step in the preparation of the Record, will be a survey of the lands under the Madras Survey and Boundaries Act 1897; the next step will be, if the Government so directs, to inquire into the rights and obligations of the ryots and of the landholder in respect of the several holdings. ‘When both these steps are completed, a preliminary record will be made of the results of the inquiries and of the survey by the Revenue Officer in .charge and published in such manner and for such period as the Government may direct. During the period of publication, all objections to any entries or omissions in the Record will be heard and determined by the Revenue Officer himself, in accordance with the procedure prescribed by the Government.”
‘Ryotwari’ Land also included in ‘Estate’ in Article 31A
In S. Thenappa Chettiar v. State of Tamil Nadu, AIR 1986 SC 1117, it was held, following Khajamian Wakf Estates v. State of Madras, AIR 1971 SC 161, that the expression ‘estate’ in Article 31A included ‘ryotwari’ land also by virtue of the Seventeenth Amendment of the Constitution on June 20, 1964 with retrospective effect.
Part – III
In Travancore & Cochin – “Patta” denoted both Lease and Janmam
‘Patta’ was originally used in Travancore and Cochin also to denote Government-recognition of ‘holding’ lands, other than that with ‘ownership’ or ‘janmam’ rights; and subsequently it had been used for both lease, grant/licence and Janmam lands.
In the 1910 Indenture executed by an English citizen, Henry Mansfield Knight, in favour of Malayalam Rubber and Produce Co. Ltd. it is seen stated that the vendor (HM Knight) obtained land (Gudempara Estate) under ‘Pattas’ of 1907 and 1909 from the Travancore government subject to ‘terms conditions and covenants’ and also subject to ‘assessment’, for a period of 20/30 years. The indenture also provided for applying and obtaining ‘grant or title deed’ by the purchaser (from the Government). From this deed it can be seen that it conferred only lesser right than lease/grant.
In Harska Trust v. State of Kerala, ILR 1960 Ker 345, it is pointed out as under –
‘According to the petitioners, the issue of the Patta under that Act in respect of these lands was something duly done and the repeal of the Act cannot in any way affect the right granted under that Patta, namely, the right to continue in possession of the lands till the end of 1144 on payment of Rs. 2,665 (about) per year as rent against the basic tax now demanded of over Rs. 12,000 per year’.
Part – IV
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. …… All lands which are not the property of any person or which are not vested in a local authority, belong to the government. All unoccupied lands are the property of the government, unless any person can establish his right or title to any such land. This presumption available to the government, is not available to any person or individual.
(g) The law as to title of property is laid down in Union of India v. Ibrahim Uddin, 2012(8) SCC 148 as under –
“The appellate courts examined the title of Government instead the plaintiff/respondent No. 1. Such a course was not warranted. The title of Government cannot be disputed. In any event, possession of Government for decades is not disputed. The plaintiff shifted the case from time to time; but failed to prove his title………. The said courts did not realize that this was not the issue to be determined, rather the issue had been as to whether the plaintiff was the owner of the suit-land.”
(h) In Government of Kerala v. Joseph, AIR 2023 SC 3988 – It was pointed out –
“When the land subject to proceedings wherein adverse possession has been claimed, belongs to Government, the court is duty-bound to act with greater seriousness, effectiveness, care and circumspection as it may lead to destruction of a right/title of the State to immovable property.”
(i) In 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. …”
(j) In State of Kerala v. Pathrose Mathai, 1970 Ker LJ 517; 1969 KerLT 507, it was held as under:
“There is also no presumption that a person who enters Government land, improves the same & keeps possession, is exercising acts hostile to the title of the State. This is because it is not uncommon for persons to enter upon Government land & reclain and improve such land in the hope of ultimately getting registry or lease of such land.”
Period of Limitation – 30 years
R. Hanumaiah v. Secretary to Government of Karnataka, Revenue Department, (2010) 5 SCC 203, continues (as regards period of limitation) as under:
” … The second difference is in regard to the period for which title and/or possession have to be established by a person suing for declaration of title. Establishing title/possession for a period exceeding twelve years may be adequate to establish title in a declaratory suit against any individual. On the other hand, title/possession for a period exceeding thirty years will have to be established to succeed in a declaratory suit for title against government. This follows from Article 112 of Limitation Act, 1963, which prescribes a longer period of thirty years as limitation in regard to suits by government as against the period of 12 years for suits by private individuals. The reason is obvious. Government properties are spread over the entire state and it is not always possible for the government to protect or safeguard its properties from encroachments. Many a time, its own officers who are expected to protect its properties and maintain proper records, either due to negligence or collusion, create entries in records to help private parties, to lay claim of ownership or possession against the government.
Any loss of government property is ultimately the loss to the community. Courts owe a duty to be vigilant to ensure that public property is not converted into private property by unscrupulous elements.
16. Many civil courts deal with suits for declaration of title and injunction against government, in a casual manner, ignoring or overlooking the special features relating to government properties. Instances of such suits against government being routinely decreed, either ex parte or for want of proper contest, merely acting upon the oral assertions of plaintiffs or stray revenue entries are common. Whether the government contests the suit or not, before a suit for declaration of title against a government is decreed, the plaintiff should establish, either his title by producing the title deeds which satisfactorily trace title for a minimum period of thirty years prior to the date of the suit (except where title is claimed with reference to a grant or transfer by the government or a statutory development authority), or by establishing adverse possession for a period of more than thirty years.
In such suits, courts cannot, ignoring the presumptions available in favour of the government, grant declaratory or injunctive decrees against the government by relying upon one of the principles underlying pleadings that plaint averments which are not denied or traversed are deemed to have been accepted or admitted.
‘Mutation’ Only for Fiscal Purposes; Legal Rights are subject civil court decision
Following propositions can be culled out from the very rules of The Transfer of Registry Rules made applicable in the State of Kerala (Rule 15 and 16):
It is the duty of the Tahsildar to determine the person in whose name the transfer of registry shall be made.
It is the immediate concern of the Land Revenue Department to keep the thandaper accounts (Chitta) up to date.
It is the immediate concern of the Land Revenue Department bring into the thandaper accounts (Chitta) the names of the real land-holders who shall be held liable for the payment of Government revenue due on the land.
No case shall be rejected solely for the default of appearance of the parties.
Only a summary enquiry is to be made by the Revenue authorities.
The summary enquiry and the decision thereon is only an arrangement for fiscal purposes.
The summary enquiry and the decision thereon do not affect the legal rights of any person in respect of the lands covered by the decisions in transfer of registry cases.
The question of legal rights is always subject to adjudication by civil courts.
And, pattas will be revised from time to time in accordance with judicial decisions.
In Sawarni vs. Inder Kaur and Ors., (1996) 6 SCC 223, it was held that mutation in revenue records neither creates nor extinguishes title, nor does it have any presumptive value on title. (Referred to in: P. Kishore Kumar v. Vittal K. Patkar, 2023-4 CurCC(SC) 278)
In Balwant Singh v. Daulat Singh, (1997) 7 SCC 137 it was held that mere mutation of records would not divest the owners of a land of their right, title and interest in the land. (Referred to in: P. Kishore Kumar v. Vittal K. Patkar, 2023-4 CurCC(SC) 278, and Jitendra Singh v. The State of Madhya Pradesh, 2021 SCC OnLine SC 802)
In Sita Ram Bhau Patil v. Ramchandra Nago Patil, (1977) 2 SCC 49, it was held that there exists no universal principle that whatever will appear in the record of rights will be presumed to be correct, when there exists evidence to the contrary. (Referred to in: P. Kishore Kumar v. Vittal K. Patkar, 2023 4 CurCC(SC) 278)
Part – IV
Does the Principle ‘Possession Follows Title’ Applies to Govt. Property?
It is so held in Chief Conservator of Forests v. Collectors, AIR 2003 SC 1805.
But, it is held it 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 Vs. Union of India, AIR 1990 SC 717).
Contra view
Mutation will not confer ‘title’ (see notes below)
Revenue Records Do Not Confer Presumptive Value on Title (see notes below).
Chief Conservator of Forests v. Collectors, AIR 2003 SC 1805
It is held in Chief Conservator of Forests v. Collectors, AIR 2003 SC 1805, that Section 110 embodies the principle that possession of a property furnishes prima facie proof of ownership of the possessor and casts burden of proof on the party who denies his ownership, and that the presumption, which is rebuttable, is attracted-
“when the possession is prima facie lawful and when the contesting party has no title”.
The Supreme Court observed further as under:
“Section 110 of the Evidence Act reads thus:
“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.”
It embodies the principle that possession of a property furnishes prima facie proof of ownership of the possessor and casts burden of proof on the party who denies his ownership. The presumption, which is rebuttable, is attracted when the possession is prima facie lawful and when the contesting party has no title.
This Court in Nair Service Society Limited v. K.C. Alexander and Ors., A.I.R. (1968) S.C. 1165 observed,
“the possession may prima facie raise a presumption of title no one can deny but this presumption can hardly arise when the facts are known, when the facts disclose no title in either party, possession alone decides.”
The pattedars proved their possession of the lands in question from 1312 Fasli (1902 A.D.) as pattedars. There is long and peaceful enjoyment of the lands in question but no proof of conferment of patta on the late Raja and the facts relating to acquisition of title are not known. The appellant- State could not prove its title to the lands. On these facts, the presumption under Section 110 of the Evidence Act applies and the appellants have to prove that the pattedars are not the owners. The appellants placed no evidence on record to rebut the presumption. Consequently, the pattedars, title to the land in question has to be upheld.”
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).
Mutation will not confer ‘title’
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. After pointing out these legal propositions it is observed in Jitendra Singh vs 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 Do 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 vs Faraulla Khan (2021)observed that mutation in revenue records will not confer or lose title (Relied on Sawarni (Smt.) Vs. Inder Kaur (1996) 6 SCC 223, Balwant Singh & Anr. Vs. Daulat Singh (dead) by L.Rs. & Ors. (1997) 7 SCC 137, Narasamma & Ors. Vs. 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)
1. A Plaintiff has to win the title-suit on his evidence; not on the weakness of the adversary.
2. In a suit on title, if the plaintiff makes a high degree of probabilityit will shift the onus on the defendant (R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548).
3. Court is Entitled to Consider the Title set up by the Defendants also (Ram Chandra Sakharam Mahajan Vs. Damodar Trimbak, AIR 2007 SC 2577).
Court is Entitled to Consider theTitleset up by the Defendants also
Supreme Court of India, in Ratnagiri Nagar Parishad v. Gangaram Narayan Ambekar, (2020) 7 SCC 275, held as under:
“The initial burden of proof is on the plaintiffs to substantiate his cause, if he failed to discharge the same, the weakness in the defense cannot be the basis to grant relief to the plaintiffs and burden cannot be shifted on the defendants.”
In Ram Chandra Sakharam Mahajan Vs. Damodar Trimbak, AIR 2007 SC 2577, it is observed –
In a recovery on title suit, the burden is on the plaintiff to establish title.
Court is also entitled to consider the rival title set up by the defendants.
Weakness of defence to establish title, would not enable plaintiff to a decree.
The Apex Court held:
“The suit is for recovery of possession on the strength of title. Obviously, the burden is on the plaintiff to establish that title. No doubt in appreciating the case of title set up by the plaintiff, the Court is also entitled to consider the rival title set up by the defendants. But the weakness of the defence or the failure of the defendants to establish the title set up by them, would not enable the plaintiff to a decree. There cannot be any demur to these propositions.”
“14. We find that the trial Court and the appellate Court were not justified in refusing the amendment of the plaint sought for by the plaintiff. No doubt there had been delay in seeking amendment but that delay could have been compensated by awarding costs to the contesting defendants 1 to 9. Therefore, we are satisfied that the amendment sought for by the plaintiff ought to have been allowed. We are inclined to allow the amendment sought for, since it would enable the Court to pin-pointedly consider the real dispute between the parties and would enable it to render a decision more satisfactorily to its conscience. We, therefore, allow the amendment as sought for by the plaintiff at a belated stage. The amendment will be carried out by the plaintiff in the trial Court within three months from this date as per the practice followed in the trial Court. Obviously defendants 1 to 9 would have an opportunity to file an additional written statement to the amended plaint. They will be entitled to file an additional written statement within a period of four months from the date of this judgment.”
Suit on Title &Weakness of the Defence
A Plaintiff has to win the title-suit on his evidence; not on the weakness of the adversary. See:
Baha Kartar Singh Bedi v. Dayal Das, AIR 1939 PC 201 (Referred to in: K. M. Paul v. K. Pradeep, ILR 2006-2 Ker 19),
Jagdish Narain v. Nawab Said Ahmed Khan, AIR 1946 PC 59 (Referred to in: Dinesh Jain v. Jeewanlal Lala, AIR 2013 MP 85)
Moran Mar Basselios Catholics v. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526 (ejectment suit must succeed on the strength of Plaintiffs’ own title)
Heera Devi v. Official Assignee Bombay, AIR 1958 SC 448.
Moran Mar Basselios Catholicos v. Thukalan Paulo Avira, AIR 1959 SC 31 (referred to in: Paturu Sundaraiah v. Suri Ranganayakamma, AIR 2022 AP 71),
P. Kishore Kumar Vs. Vittal K. Patkar, 2024-1 CTC 547; 2023-4 CurCC(SC) 278)
Plaintiff to Win Recovery Suit, on Strength of his Title
Following are the often cited decisions on this subject-
Moran Mar Basselios Catholics v. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526,
Brahma Nand Puri v. Neki Puri, AIR 1965 SC 1506,
City Municipal Council Bhalki v. Gurappa, 2016-2 SCC 200
Bajaranglal Shivchandrai Ruia v. Shashikant N. Ruia, (2004) 5 SCC 272
R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548: (2003) 8 SCC 752
Vijay Pullarwar v. Shri Hanuman Deostan, (2019) 11 SCC 718
In Vijay Pullarwar v. Shri Hanuman Deostan, (2019) 11 SCC 718, the suit for possession instituted by the plaintiffs trust on the basis of title, was found to be devoid of merits; for, there was no reference in the registration application of the public trust under the BPT Act, 1950 or in schedule I, where to record the properties of the public trust that the suit property belonged to the trust. Our Apex Court held as under:
“Needless to observe that the plaintiffs/respondents were primarily obliged to establish their title in the suit house bearing No.878 in Circle No.3 where the Padukas of Saint Haridas Baba have been installed, as being the property of the plaintiff trust. The plaintiffs must succeed or fail on the title they establish; and if they fail to do so, they must fail to get the relief of possession irrespective of title of the defendant in the suit property (See: Brahma Nand Puri v. Naki Puri, (1965) 2 SCR 233 and Bajaranglal Shivchandrai Ruia v. Shashikant N. Ruia, (2004) 5 SCC 272).”
In City Municipal Council Bhalki v. Gurappa, 2016-2 SCC 200, it is held as under:
“31. It is a settled position of law that in a suit for declaration of title and possession, the onus is upon the plaintiff to prove his title. Further, not only is the onus on the plaintiff, he must prove his title independently, and a decree in his favour cannot be awarded for the only reason that the defendant has not been able to prove his title, as held by this Court in Brahma Nand Puri v. Neki Puri, AIR 1965 SC 1506….”
In Brahma Nand Puri v. Neki Puri, AIR 1965 SC 1506, the Apex Court held as under:
“The plaintiff’s suit being one for ejectment he has to succeed or fail on the title that he establishes and if he cannot succeed on the strength of his title his suit must fail notwithstanding that the defendant in possession has no title to the property… …”
If plaintiff shows high degree of probability, it shifts the onus on the defendant.
In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548: (2003) 8 SCC 752, the strict principle as to burden of proof is reduced It is held that once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant, it is for the defendant to discharge his onus. (See: G. N. Naidu v. Mohd. Farook Ali Khan, 2017-2 ALT 611)
In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548, the law is laid down in the following terms :
“A fact is said to be ‘proved’ when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It is the evaluation of the result drawn by applicability of the rule, which makes the difference. …”
In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored to him. However, as held in A. Raghavamma v. A. Chenchamma there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probabilityso as to shift the onus on the defendantit is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount toproof of theplaintiff’s title.
In the present case, the trial Court and the first appellate Court have noted that the plaintiff has not been able to produce any deed of title directly lending support to his claim for title and at the same time the defendant too has no proof of his title much less even an insignia of title. Being a civil case, the plaintiff cannot be expected to proof his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus on the defendant and if the defendant does not succeed in shifting back the onus, the plaintiff’s burden of proof can safely be deemed to have been discharged. In the opinion of the two Courts below, the plaintiff had succeeded in shifting the onus on the defendant and, therefore, the burden of proof which lay on the plaintiff had stood discharged. …”.
The suit property, which is a shop, is situated just adjoining the property owned by the temple. It has come in the evidence that the property which is now owned by the temple was at one time owned by the forefathers of the plaintiff and they made an endowment in favour of the temple. The father of the plaintiff, and then the plaintiff, continued to be the trustees. The trouble erupted when in the late sixties the Charity Commissioner appointed other trustees and Chief Executive Officer of the trust dislodging the plaintiff from trusteeship. The plaintiff staked his claim to trusteeship of the temple submitting that the office of the trustee of the temple was hereditary and belonged to the plaintiff. The plaintiff was managing the trust property as trustee while the property adjoining to the property of the temple, i.e. the suit property, was in possession of the plaintiff as owner occupied by the tenant, the defendant No.2., inducted as such by the father of the plaintiff. At the instance of the Chief Executive Officer of the trust, the defendant No.2, during the continuance of the tenancy in favour of the plaintiff, executed a rent note in favour of the temple attorning the latter as his landlord. This the defendant no.2 could not have done in view of the rule of estoppel as contained in Section 116 of the Evidence Act. It was at the instance of the newly appointed trustees and the Chief Executive Officer who on behalf of the temple started claiming the suit property in occupation of the tenant, defendant No.2, to be trust property belonging to the temple. But for this subsequent development the title of the plaintiff to the suit property would not have been in jeopardy and there would have been no occasion to file the present suit.
The learned counsel for the temple, defendant-respondent No.1, faintly urged that the appellant being a trustee of the temple was trying to misappropriate the property belonging to the temple. For such an insinuation there is neither any averment in the written statement nor any evidence laid. Such a submission made during the course of hearing has been noted by us only to be summarily rejected. We have already held that the appellant is the owner of the suit property entitled to its possession and recovery of arrears of rent from the defendant No.2.
… A high degree of preponderance ofprobability proving title to the suit property was raised in favour of the appellant and the courts below rightly concluded the burden of proof raised on the plaintiff having been discharged while the onus shifting on the defendant remaining undischarged. ..”
(Quoted in: Anil. Rishi vs. Gurbaksh Singh, (2006) 5 SCC 558; City Municipal. Council, Bhalki Vs. Gurappa, (2016) 2 SCC 200)
Doctrine, High Degree of Probability inReligious-Office–Claim
The aforestated strict principle as to burden of proof (as to title – burden is on the plaintiff) is definitely appropriate in case of a claim on religious office (ejecting one in office), as found in Moran Mar Basselios Catholics v. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526 (Malankara Metropolitan and other trustees) and Brahma Nand Puri v. Nelci Puri, 1965 AIR SC 1506; 1965-2 SCR 233 (Mahantship).
It is held in Brahma Nand Puri v. Nelci Puri, 1965 AIR SC 1506; 1965-2 SCR 233, as under:
“The plaintiffs suit being one for ejectment he has to succeed or fail on the title he established and if he cannot succeed on the strength of his title his suit must fail notwithstanding that the defendant in possession has no title to the property.”
High degree of Probability Shifts the Onus on the defendant
In Smriti Debbarma v. Prabha Ranjan Debbarma, 2023 SCC OnLine SC 9,it is held bu our Apex Court as under:
“31. The burden of proof
[See Paragraph 19 in Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558 where the expression ‘burden of proof’ is used in three ways, namely, (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter-evidence; and (iii) an indiscriminate use in which it may mean either, or both of the others.]
to establish a title in the present case lies upon the plaintiff as this burden lies on the party who asserts the existence of a particular state of things on the basis of which she claims relief [See Addagada Raghavamma and Another v. Addagada Chenchamma and Another, AIR 1964 SC 136.] This is mandated in terms of Sec. 101
[Sec. 101: Burden of Proof.- Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.]
of the Evidence Act, which states that burden on proving the fact rests with party who substantially asserts in the affirmative and not on the party which is denying it. This rule may not be universal and has exceptions,[See Ss. 103, 104 and 105 of the Evidence Act.] but in the factual background of the present case, the general principle is applicable. In terms of Sec. 102
[Sec. 102: On whom the burden of proof lies.- The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.]
of the Evidence Act, if both parties fail to adduce evidence, the suit must fail.[See Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558.] Onus of proof, no doubt shifts and the shifting is a continuous process in the evaluation of evidence, but this happens when in a suit for title and possession, the plaintiff has been able to create a high degree of probability to shift the onus on the defendant. In the absence of such evidence, the burden of proof lies on the plaintiff and can be discharged only when he is able to prove title.[See R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami V.P. Temple and Another, (2003) 8 SCC 752.] The weakness of the defence cannot be a justification to decree the suit. [See Union of India v. Vasavi Cooperative Housing Society Limited, (2014) 2 SCC 269.] The plaintiff could have succeeded in respect of the Schedule ‘A’ property if she had discharged the burden to prove the title to the Schedule ‘A’ property which squarely falls on her. This would be the true effect of Ss. 101 and 102 of the Evidence Act. [See Sebastiao Luis Fernandes v. K.V.P. Shastri, (2013) 15 SCC 161.]
Therefore, it follows that the plaintiff should have satisfied and discharged the burden under the provisions of the Evidence Act, failing which the suit would be liable to be dismissed.”
Burden of Proof Loses Significance
Burden of proof loses its importance –
if both parties adduced evidence
if there is sufficient evidence on an issue.
In such a situation, it remains academic:
Chidambara Sivaprakasa Pandara Sannadhigal v. Veerama Reddi, 49 IA 286 303: AIR 1922 PC 292 (referred to in Seturatnam Aiyar v. Venkatachala Gounden, (1919) 47 IA 76, and Kumbham Lakshmanna v. Tangirala Venkateswarlu, AIR 1949 PC 278);
Sushil Kumar v. Rakesh Kumar, (2003) 8 SCC 673,
Raghunathi v. Raju Ramappa Shetty, AIR 1991 SC 1040;
Mohd. Abdullah Azam Khan Vs. Nawab Kazim Ali Khan,(1976) 3 SCC 32
Withholding Documents
In the important decision, Gopal Krishnaji Ketkar v. Mahomed Haji Latif, AIR 1968 SC 1413, it is held as under:
“Even if a party to the suit has no burden, the Court can draw an adverse inference if he withholds important documents in his possession.”
In National Insurance Co. Ltd., New Delhi Vs. Jugal Kishore, 1988-1 SCC 626, Our Apex Court stated the law as under:
“This Court has consistently emphasized that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof.” (Quoted in: Sushil Kumar v. Rakesh Kumar, (2003) 8 SCC 673)
Nemo Dat Quod Non Habet
In P. Kishore Kumar v. Vittal K. Patkar, 2024-1 CTC 547; 2023-4 CurCC(SC) 278), after pointing out that ‘the revenue records are not documents of title’, it is held as under:
“18. It is settled law that a vendor cannot transfer a title to the vendee better than he himself possesses, the principle arising from the maxim nemo dat quod non habet, i.e., “no one can confer a better title than what he himself has”. In the present case, the plaintiff’s vendor having been denied the right of title in the land by the Commissioner’s order, could not have conveyed the same to her vendee.”
“22. Contention advanced on behalf of the plaintiff that through the record of rights the plaintiff has established his title by a preponderance of probabilities is not sustainable. As noted above, the plaintiff failed to produce a single document of title in respect of the suit property. In a dispute with respect to determination of title, merely pointing out the lacunae in the defendant’s title would not suffice. Having instituted the suit for declaration, the burden of proof rested on the shoulders of the plaintiff to reasonably establish the probability of better title, which the plaintiff in the present case, has manifestly failed to do.”
Revenue Records Does Not Confer Title
In Union of India v. Vasavi Co-op. Housing Society Ltd. , AIR 2014 SC 937; 2014-2 SCC 269, it is held as under:
“17. This Court in several Judgments has held that the revenue records does not confer title. In Corporation of the City of Bangalore v. M. Papaiah and another (1989) 3 SCC 612 held that
“it is firmly established that revenue records are not documents of title, and the question of interpretation of document not being a document of title is not a question of law.”
In Guru Amarjit Singh v. Rattan Chand and others (1993) 4 SCC 349 this Court has held that “that the entries in jamabandi are not proof of title”.
In State of Himachal Pradesh v. Keshav Ram and others (1996) 11 SCC 257 this Court held that
“the entries in the revenue papers, by no stretch of imagination can form the basis for declaration of title in favour of the plaintiff.”
Patta As Such Does Not Confer Title
In Union of India v. Vasavi Co-op. Housing Society Ltd. , AIR 2014 SC 937; 2014-2 SCC 269, it is continued as under:
“18. The Plaintiff has also maintained the stand that their predecessor-in- interest was the Pattadar of the suit land. In a given case, the conferment of Patta as such does not confer title. Reference may be made to the judgment of this Court in Syndicate Bank v. Estate Officer & Manager, APIIC Ltd. & Ors. (2007) 8 SCC 361 and Vatticherukuru Village Panchayat v. Nori Venkatarama Deekshithulu & Ors. (1991) Supp. (2) SCC 228.
20. We are of the view that even if the entries in the Record of Rights carry evidentiary value, that itself would not confer any title on the plaintiff on the suit land in question. Ext.X-1 is Classer Register of 1347 which according to the trial court, speaks of the ownership of the plaintiff’s vendor’s property. We are of the view that these entries, as such, would not confer any title. Plaintiffs have to show, independent of those entries, that the plaintiff’s predecessors had title over the property in question and it is that property which they have purchased.”
Revenue Documents alone will not makeHigh Degree of Probability
The Supreme Court held in P. Kishore Kumar Vs. Vittal K. Patkar, 2024-1 CTC 547; 2023-4 CurCC(SC) 278) , Bela M. Trivedi and Dipankar Datta, JJ., as under:
“25. Mr. S.N. Bhat placed reliance on the decision of this Court in R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami V.P. Temple, (2003) 8 SCC 75,2 to contend that the plaintiff was only expected to prove his title to a high degree of probabilityand not beyond reasonable doubt. The principle of law argued by the learned senior counsel is not one we wish to dispute, the same having been well settled through numerous decisions of this Court. However, having led in evidence only revenue documents which are essentially fiscal in nature, we have no hesitation in holding that in the present case, the plaintiff has been unable to assert his case to a high degree of probability. It is, therefore, not enough that the plaintiff led in evidence records of rights for a number of years in an attempt to establish his title; such records would not counter the proof of occupancy rights furnished by the defendant, in a test of probative value.”
“Credible Document of Title”
In P. Kishore Kumar v. Vittal K. Patkar, 2024-1 CTC 547; 2023-4 CurCC(SC) 278), after pointing out that the ‘revenue records are not documents of title’, it is held as under:
“26. This Court, in Somnath Burman vs. S.P. Raju and Ors., (1969) 3 SCC 129 held that possession can be regarded as a better title against all, except the true and lawful owner. Therefore, the multitude of revenue documents put to use to argue that the plaintiff was cultivating the suit property would not adequately meet the demands of proof made by law. The only credible document of title led as evidence in the present case was in favour of the defendant’s predecessor-in-interest; hence, it must follow that it is only the defendant who can be declared the lawful owner of the ‘B’ schedule property.”
In Union of India v. Vasavi Co-operative Housing Society Limited, (2014) 2 SCC 269, it is held as under:
“15. It is trite law that, in a suit for declaration of title, the burden always lies on the Plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the Defendants would not be a ground to grant relief to the Plaintiff.” (Quoted in P. Kishore Kumar v. Vittal K. Patkar, 2024-1 CTC 547; 2023-4 CurCC(SC) 278)
In Jagdish Prasad Patel v. Shivnath, (2019) 6 SCC 82, it is observed as follows:
“44. In the suit for declaration for title and possession, the Plaintiffs- Respondents could succeed only on the strength of their own title and not on the weakness of the case of the Defendants-Appellants. The burden is on the Plaintiffs-Respondents to establish their title to the suit properties to show that they are entitled for a decree for declaration. The Plaintiffs-Respondents have neither produced the title document i.e. patta-lease which the Plaintiffs-Respondents are relying upon nor proved their right by adducing any other evidence. As noted above, the revenue entries relied on by them are also held to be not genuine. In any event, revenue entries for few Khataunis are not proof of title; but are mere statements for revenue purpose. They cannot confer any right or title on the party relying on them for proving their title.” (Quoted in P. Kishore Kumar v. Vittal K. Patkar, 2024-1 CTC 547; 2023-4 CurCC(SC) 278)
Petitioner to Prove claim (Lease); cannot rely Inconsistencies of Respondents
In OT Alexander v. State of Kerala, LAWS (KER) 2021-5. 23, High Court of Kerala (N. Nagaresh, J.) did not accept the argument of the petitioner in the Writ Petition, against the Government Order for resumption of the land, for the absence of materials to establish theleaseof 1933 claimed by the Petitioner. The prime contention of the petitioner was that the land was originally granted to the predecessors-in-interest of the petitioner, under Ground Rent Patta by erstwhile Collector of South Malabar District during the British regime in 1933; and that Land assigned under Ground Rent Patta could not be resumed by the Government.
The petitioner claimed that the transferees of the original leasee sold their right to a bank. The Bank (State Bank of Travancore) sold the property to a Company in 1995. The petitioner purchased the property from the Company as per the Sale Deed of the year 2004. The petitioner has been paying property tax to the Cochin Corporation. The action for resumption of land by the District Collector was on the ground that the sale deed between SBT and the Company was illegal. Pointing out that the petitioner cannot base his claim on inconsistencies of the respondents, the High Court did not accept the arguments against the resumption of land by the Collector.
Document Ex-Facie Reveals No Title – Declaration as to Invalidity Not Necessary
The Supreme Court held in Kizhakke Vattakandiyil Madhavan v. Thiyyurkunnath Meethal Janaki (Aniruddha Bose & Sudhanshu DhuliaJJ.), 2024 3 KerHC 169; 2024-2 KerLT 789; 2024-4 SCR 383, held as under:
“If a document seeking to convey immovable property ex-facie reveals that the conveyer does not have the title over the same,specific declaration that the document is invalid would not be necessary. The Court can examine the title in the event any party to the proceeding sets up this defence. Chiruthey could not convey any property over which she did not have any right or title. Her right, if any, would stem from the second deed of lease (Exhibit A-1). We are conscious of the fact that no claim was made before any forum for invalidating the deed dated 14th July 1910 (Exhibit A-20).”
By proving a deed, title of the executing person is not automatically confirmed
The Supreme Court held in Kizhakke Vattakandiyil Madhavan v. Thiyyurkunnath Meethal Janaki (Aniruddha Bose & Sudhanshu DhuliaJJ.), 2024 3 KerHC 169; 2024-2 KerLT 789; 2024-4 SCR 383, also held as under:
“18. ….But it would be trite to repeat that even if subsistence of a deed is provedin evidence, the title of the executing person (in this case Chiruthey) does not automatically stand confirmed.. ….. … But in absence of proper title over the subject property, that lease deed even if she was its sole lessor would not have had been legally valid or enforceable. If right, title or interest in certain property is sought conveyed by a person by an instrument who herself does not possess any such form of entitlement on the subject being conveyed, even with a subsisting deed of conveyance on such property, the grantee on her successors-in-interest will not have legal right to enforce the right the latter may have derived from such an instrument.”
Transfer Ab-Initio Void, Not to Set Aside by a Suit
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.”
Title of Plaintiff Nullity, Defendant need Not file a Suit
In Bajaranglal Shivchandrai Ruia v. Shashikant N. Ruia, AIR 2004 SC 2546, the defendants contended that the plaintiff’s title, on the basis of the alleged auction sale ‘was a nullity, as it was ultra vires the legal provisions and on the ground of lack of jurisdiction, non-service of demand notice on all the heirs and co-owners’. It was contended from the part of the (original) plaintiff that the sale proceedings could be challenged only by way of a substantive suit, and that the High Court was right in characterising the challenge to the suit by the defendant as a ‘backdoor method’. The Apex Court held as under:
“If the title claimed by the plaintiff was a nullity and wholly void, there was no need for any of the defendants including Bajranglal to challenge it by way of a substantive suit. They could always set up nullity of title as a defence in any proceeding taken against them based upon such title. If, in fact, the sale was a nullity, it was non est in the eye of law and all that defendant had to do was point this out. (See in this connection: Ajudh Raz and Ors. v. Moti S/o Mussadi, [1991] 3 SCC 136 and the opinion of the Full Bench of the Bombay High Court in Abdulla Mian v. Government of Bombay, (1942) 44 Bom LR 577.
In Vidyadhar v. Manikrao, 1999-3 SCC 573, the plaintiff had filed a suit on the basis of a sale deed executed by D-2 in his favour and sought the relief of possession of the property from defendant no. 1 who was an absolute stranger to the sale deed. The question which arose was whether defendant No. l, who was in possession, could justify his possession by urging the nullity of sale transaction between the plaintiff and defendant No. 2. In these circumstances, this Court held (para 21):
‘The above decisions appear to be based on the principle that a person in his capacity as a defendant can raise any legitimate plea available to him under law to defeat the suit of the plaintiff. This would also include the plea that the sale deed by which the title to the property was intended to be conveyed to the plaintiff was void or fictitious or, for that matter, collusive and not intended to be acted upon. Thus, the whole question would depend upon the pleadings of the parties, the nature of the suit, the nature of the deed, the evidence led by the parties in the suit and other attending circumstances.’
Here, the plaintiffs suit is for ejection of the defendant and for possession of the suit property. She must succeed or fail on the title that she establishes. If she cannot succeed in proving her title, the suit must fail notwithstanding that the defendant in possession may or may not have title to the property. (See in this connection: Brahma Nand Puri v. Neki Puri, [1965] 2 SCR 233 at p. 237).”
In Badri Prasad v. Dy. Director of Consolidation, V.R. Krishnaiyer, D.A. Desai, O. Chinnappa Reddy, (JJ), AIR 1978 SC 1557, 1978 SCC (3) 527, it is held as under:
“A strong presumption arises in favour of wed-lock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin.”
In Chowdamma v. Venkatappa, 25 August, 2025, 2025 INSC 1038, it is held by our Apex Court, Prashant Kumar Mishra, Sanjay Karol, JJ., following Badri Prasad v. Dy. Director of Consolidation, AIR 1978 SC 1557, 1978 SCC (3) 527, as under:
“40. Such prolonged cohabitation, coupled with the testimony of P.W.2 (Hanumanthappa), attracts a strong presumption in favour of a valid wedlock. Although the presumption is rebuttable, the onus lies on defendant No. 1 to disprove the legitimacy of the relationship. In the present case, defendant No. 1, except for mere denial, has not substantiated any material, oral or documentary, to rebut the presumption of a valid marriage between the deceased Dasabovi and the plaintiffs’ mother.
41. It is a well-settled principle that the burden of proof lies upon the party who asserts a fact. In the present case, the plaintiffs have positively asserted that the deceased Dasabovi had a valid marital relationship with their mother. This assertion is supported by the oral testimony of P.W.2 (Hanumanthappa), the consistent conduct of the deceased Dasabovi in regularly visiting the plaintiffs’ residence, and the absence of any contrary material from defendant No. 1.
42. In view of the above, this Court is of the opinion that the plaintiffs have discharged the burden of proof placed upon them. They have sufficiently established that the deceased Dasabovi lived with their mother, Bheemakka @ Sathyakka, as husband and wife.”
In Chowdamma v. Venkatappa, the Supreme Court quoted the following from the Privy Council decision in Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige, AIR 1927 PC 185:
“….where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage”.
In Chowdamma v. Venkatappa, the Supreme Court also quoted the following from the Privy Council decision in Ali Khan v. Mahomed Ibrahim Khan, AIR 1929 PC 135:
“… The law presumes in favour of marriage and against concubinage when a man and a woman have cohabited continuously for a number of years. …”
Presumption as to Valid Marriage
In the recent decision, Shiramabai v. The Captain, Record Officer,Hima Kohil and Rajesh Bindal JJ. (August 18, 2023), observed:
“Law infers a presumption in favour of a marriage when a man and woman have continuously cohabitated for a long spell. No doubt, the said presumption is rebuttable and can be rebutted by leading unimpeachable evidence. When there is any circumstance that weakens such a presumption, courts ought not to ignore the same. The burden lies heavily on the party who seeks to question the cohabitation and to deprive the relationship of a legal sanctity.”
To put stress on the above presumption as to ‘valid marriage’ the Apex Court referred the following decisions:
Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Balahamy, 1927 SCC OnLine PC 51 (Privy Council), AIR 1927 PC 185,
Mohabbat Ali Khan v. Muhammad Ibrahim Khan, 1929 SCC OnLine PC 21, AIR 1929 PC 135
Badri Prasad v. Dy. Director of Consolidation (1978) 3 SCC 527,
S.P.S. Balasubramanyam v. Suruttayan (1994) 1 SCC 460,
Gokal Chand v. Parvin Kumari (1952) 1 SCC 713).
Tulsa v. Durghatiya, (2008) 4 SCC 520,
Madan Mohan Singh v. Rajni Kant, (2010) 9 SCC 209,
Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755,
Dhannulal v. Ganeshram, (2015) 12 SCC 301,
Kattukandi Edathil Krishnan Vs. Kattukandi Edathil Valsan, (2022) 6 JT 195: (2022) 9 Scale 305.
Law will Presume Valid Marriage if Lived as MAN AND WIFE
In Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Balahamy 1927 SCC OnLine PC 51 the Privy Council observed as under:
“…..where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage. xxx xxx xxx
“The parties lived together for twenty years in the same house, and eight children were born to them. The husband during his life recognized, by affectionate provisions, his wife and children. The evidence of the Registrar of the District shows that for a long course of years the parties were recognized as married citizens, and even the family functions and ceremonies, such as, in particular, the reception of the relations and other guests in the family house by Don Andris and Balahamy as host and hostess—all such functions were conducted on the footing alone that they were man and wife. No evidence whatsoever is afforded of repudiation of this relation by husband or wife or anybody.”
The Privy Council held in Mohabbat Ali Khan v. Muhammad Ibrahim Khan 1929 SCC OnLine PC 21 , as under:
“….The law presumes in favour of marriage and against concubinage when a man and a woman have cohabited continuously for a number of years……”
Gokal Chand v. Parvin Kumari (1952) 1 SCC 713) is another decision to point out the presumption of marriage. It reads as under:
“……Continuous cohabitation of man and woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage, but the presumption which may be drawn from long cohabitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the court cannot ignore them.”
In Tulsa v. Durghatiya, [(2008) 4 SCC 520],Dr. Arijit Pasayat, P. Sathasivam,JJ. our Apex Court held:
“11. At this juncture reference may be made to Section 114 of the Evidence Act, 1872. The provision refers to common course of natural events, human conduct and private business. The court may presume the existence of any fact which it thinks likely to have occurred. Reading the provisions of Sections 50 and 114 of the Evidence Act together, it is clear that the act of marriage can be presumed from the common course of natural events and the conduct of parties as they are borne out by the facts of a particular case.
12. A number of judicial pronouncements have been made on this aspect of the matter. The Privy Council, on two occasions, considered the scope of the presumption that could be drawn as to the relationship of marriage between two persons living together. In first of them i.e. Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Balahamy. Their Lordships of the Privy Council laid down the general proposition that: (AIR p. 187)
“… where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage.”
13. In Mohabbat Ali Khan v. Mohd. Ibrahim Khan Their Lordships of the Privy Council once again laid down that: (AIR p. 138)
“The law presumes in favour of marriage and against concubinage, when a man and a woman have cohabited continuously for a number of years.”
14. It was held that such a presumption could be drawn under Section 114 of the Evidence Act.”
Section 50 of the Indian Evidence Act
50. Opinion on relationship, when relevant.—When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, or any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact:
Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 (4 of 1869) or in prosecutions under section 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860). Illustrations
(a) The question is, whether A and B were married. The fact that they were usually received and treated by their friends as husband and wife, is relevant.
(b) The question is, whether A was the legitimate son of B. The fact that A was always treated as such by members of the family, is relevant.
In Challamma v. Tilaga (S.B. Sinha, Cyriac Joseph) (2009) 9 SCC 299, the Supreme Court, relying on Tulsa Tulsa v. Durghatiya, (2008) 4 SCC 520, held that Such a presumption can be validly raised having regard to Section 50 of the Indian Evidence Act; and a heavy burden, thus, lies on the person who seeks to prove that no marriage has taken place. Section 50 of the Indian Evidence Act reads as under:
In Kattukandi Edathil Krishnan Vs. Kattukandi Edathil Valsan, (2022) 6 JT 195: (2022) 9 Scale 305, our apex Court held as under:
“15. It is well settled that if a man and a woman live together for long years as husband and wife, there would be a presumption in favour of wedlock. Such a presumption could be drawn under Section 114 of the Evidence Act. Although, the presumption is rebuttable, a heavy burden lies on him who seek to deprive the relationship of legal origin to prove that no marriage took place.
16. In Andrahennedige Dinohamy and Anr. v. Wijetunge Liyanapatabendige Balahamy and Ors. AIR 1927 PC 185, the Privy Council laid down the general proposition as under:
“…where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage.”
17. In Mohabbat Ali Khan v. Mohd. Ibrahim Khan AIR 1929 PC 135, once again it was laid down by the Privy Council as under:
“The law presumes in favour of marriage and against concubinage, when a man and a woman have cohabited continuously for a number of years.”
18. In Badri Prasad v. Dy. Director of Consolidation and Others (1978) 3 SCC 527, it was held by this Court that a strong presumption arises in favour of wedlock where two partners have lived together for long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seek to deprive the relationship of legal origin. Law leans in favour of legitimacy and frowns upon the bastardy.
19. In S.P.S. Balasubramanyam v. Suruttayan alias Andali Padayachi and Others (1994) 1 SCC 460, this Court held as under:
“4. What has been settled by this Court is that if a man and woman live together for long years as husband and wife then a presumption arises in law of legality of marriage existing between the two. But the presumption is rebuttable. [See: Gokul Chand v. Parvin Kumari – AIR 1952 231 : 1952 SCR 825]”
20. Similar view has been taken by this Court in
Tulsa v. Durghatiya (2008) 4 SCC 520;
Challamma v. Tilaga and Others (2009) 9 SCC 299;
Madan Mohan Singh v. Rajni Kant (2010) 9 SCC 209 and
Indra Sarma v. V.K.V. Sarma (2013) 15 SCC 755.”
Madan Mohan Singh & Ors vs Rajni Kant AIR 2010 SC 2933, (2010) 9 SCC 209, is another case that considered this matter it is held as under:
“19. In S. Khushboo Vs. Kanniammal & Anr. (2010) 5 SCC 600, this Court, placing reliance upon its earlier decision in Lata Singh Vs. State of U.P. & Anr. AIR 2006 SC 2522, held that live-in-relationship is permissible only in unmarried major persons of heterogeneous sex.
20. In S.P.S. Balasubramanyam Vs. Suruttayan @ Andali Padayachi & Ors. AIR 1992 SC 756, this Court held that if man and woman are living under the same roof and cohabiting for a number of years, there will be a presumption under Section 114 of the Evidence Act, that they live as husband and wife and the children born to them will not be illegitimate.
21. The courts have consistently held that the law presumes in favour of marriage and against concubinage, when a man and woman have cohabited continuously for a number of years. However, such presumption can be rebutted by leading unimpeachable evidence.
(Vide: Mohabbat Ali Khan Vs. Mohd. Ibrahim Khan, AIR 1929 PC 135;
Gokalchand Vs.. Parvin Kumar, AIR 1952 SC 231;
S.P.S. Balasubramanyam Vs. Suruttayan, (1994) 1 SCC 460;
Ranganath Parmeshwar Vs. Eknath Gajanan Kulkarni, (1996) 7 SCC 681; and
Sobha Hymavathi Devi Vs. Setti Gangadhara Swamy (2005) 2 SCC 244).
22. In view of the above, the kind of material placed by the appellants on record cannot be termed enough to disbelieve the claim of the respondents. ….. The live-in- relationship if continued for such a long time, cannot be termed in as “walk in and walk out” relationship and there is a presumption of marriage between them which the appellants failed to rebut.”
Sec. 58 of Evid. Act states – facts admitted need not be proved.
Title will not pass by a mere admission.
Title will not lose by an admission.
Introduction
In Shreedhar Govind Kamerkar v. Yesahwant Govind Kamerkar, 2006 (13) SCC 481, the Supreme Court has held as under:
“Admission, as is well known, is the best proof of a claim. Section 58 of the Evidence Act states that the facts admitted need not be proved“.
In Avtar Singh v. Gurdial Singh, 2006-2 SCC 552, the Supreme Court has held-
“Admission, it is well known, forms the best evidence. It may be that admission does not create any title, but the nature of the land can form subject-matter of admission”.
Admission by itself will Not Confer or Lose Title
In Canbank Financial Services Ltd. v. Custodian, AIR 2004 SC 5123, 2004 (8) SCC 355 (N. Santosh Hegde, S.B. Sinha, A.K. Mathur), it is held – admission of a party would not relinquish right/title.
In J. G. Sumam v. J. G. Vijayan, Thomas P. Joseph, J.(2013), Kerala High Court held that admission cannot confer or extinguish title. Therefore, it was pointed out that merely because the plaintiff had claimed title and possession as per a deed would not precluded him from pleading that he got title and possession as per another document
Admission by itself Cannot Confer Title to a property is well settled
Kerala High Court, in Kanhirakottil Mani v. Madhavi, 2017-1 KHC 854; 2017-2 KLT 585, it was observed as under:
“Principle that an admission by itself cannot confer title to a property is well settled. Section 17 of the Evidence Act defines “admission” and Section 18 of the said Act deals with admission by party to proceeding or his agent. Section 21 of the Evidence Act speaks about proof of admissions against persons making them, and by or on their behalf. Section 58 of the Evidence Act says that an admitted fact need not be proved. Although an admission is the best piece of evidence against the person making it, he can rebut the same. It is fundamental that admissions can be explained and proved to be erroneous.
28. Supreme Court in Ambika Prasad Thakur v. Ram Ekbal Rai (AIR 1966 SC 605) has considered inter alia the effect of admission by a party in respect of title. It is held that title cannot pass by a mere admission. Principle that an admission by itself cannot confer title to property has been laid down by this Court also.”
The proposition admission by itself cannot confer title is made forcefully in the following decisions of the Supreme Court of India.
Union of India v. Ibrahim Uddin, 2012-8 SCC 148,
Ram Chandra Sakharam Mahajan Vs. Damodar Trimbak, AIR 2007 SC 2577,
Avtar Singh v. Gurdial Singh, (2006) 12 SCC 552,
Ambika Prasad Thakur v. Ram Ekbal Rai, AIR 1966 SC 605 (title cannot pass by a mere admission).
It is pointed out in all these decisions that only on the basis of an admissionno person can be declared as owner of immovable property, which is required to be proved by positive evidence by the person claiming his title.
Avtar Singh v. Gurdial Singh, 2006 (12) SCC 552
“8. Admission, it is well know, forms the best evidence. It may be that admission does not create any title. But the nature of the land can form subject matter of admission.
9. Section 58 of the Evidence Act postulates that things admitted need not be proved.
10. It may be that in their Suit the respondents herein did not call for the records from the State or the local authorities to show that the land in question was a public street but keeping in view the fact that the appellants’ witnesses have admitted the said fact in their own Suit, we are of the opinion, the findings of fact arrived at by the First Appellate Court and affirmed by the High Court need not be interfered with.”
Weakness of defence would not enable a decree; Burden on plaintiff to Prove Title,
though Court is also entitled to consider the rival title set up by the defendants.
The Supreme Court in Ram Chandra Sakharam Mahajan Vs. Damodar Trimbak, AIR 2007 SC 2577, also held that although by an admission, title in immovable property cannot be created but an opinion can be formed in respect of the nature of the land, subject-matter of admission.
In Ram Chandra Sakharam Mahajan Vs. Damodar Trimbak, AIR 2007 SC 2577, it is observed –
In a recovery on title suit, the burden is on the plaintiff to establish title.
Court is also entitled to consider the rival title set up by the defendants.
Weakness of defence to establish title, would not enable plaintiff to a decree.
The Apex Court held:
“The suit is for recovery of possession on the strength of title. Obviously, the burden is on the plaintiff to establish that title. No doubt in appreciating the case of title set up by the plaintiff, the Court is also entitled to consider the rival title set up by the defendants. But the weakness of the defence or the failure of the defendants to establish the title set up by them, would not enable the plaintiff to a decree. There cannot be any demur to these propositions.”
“14. We find that the trial Court and the appellate Court were not justified in refusing the amendment of the plaint sought for by the plaintiff. No doubt there had been delay in seeking amendment but that delay could have been compensated by awarding costs to the contesting defendants 1 to 9. Therefore, we are satisfied that the amendment sought for by the plaintiff ought to have been allowed. We are inclined to allow the amendment sought for, since it would enable the Court to pin-pointedly consider the real dispute between the parties and would enable it to render a decision more satisfactorily to its conscience. We, therefore, allow the amendment as sought for by the plaintiff at a belated stage. The amendment will be carried out by the plaintiff in the trial Court within three months from this date as per the practice followed in the trial Court. Obviously defendants 1 to 9 would have an opportunity to file an additional written statement to the amended plaint. They will be entitled to file an additional written statement within a period of four months from the date of this judgment.”
See also:
Baha Kartar Singh Bedi v. Dayal Das, AIR 1939 PC 201 (Referred to in: K. M. Paul v. K. Pradeep, ILR 2006-2 Ker 19),
Jagdish Narain v. Nawab Said Ahmed Khan, AIR 1946 PC 59 (Referred to in: Dinesh Jain v. Jeewanlal Lala, AIR 2013 MP 85)
Moran Mar Basselios Catholics v. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526 (ejectment suit must succeed on the strength of Plaintiffs’ own title)
Heera Devi v. Official Assignee Bombay, AIR 1958 SC 448.
Moran Mar Basselios Catholicos v. The Most Rev. Mar Poulose Athanasius, AIR 1959 SC 31 (referred to in: Paturu Sundaraiah v. Suri Ranganayakamma, AIR 2022 AP 71),
P. Kishore Kumar Vs. Vittal K. Patkar, 2024-1 CTC 547; 2023-4 CurCC(SC) 278)
Doctrine, High Degree of Probability inReligious-Office–Claim
The aforestated strict principle as to burden of proof (as to title – burden is on the plaintiff) is definitely appropriate in case of a claim on religious office (ejecting one in office), as found in Moran Mar Basselios Catholics v. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526 (Malankara Metropolitan and other trustees) and Brahma Nand Puri v. Nelci Puri, 1965 AIR SC 1506; 1965-2 SCR 233 (Mahantship).
It is held in Brahma Nand Puri v. Nelci Puri, 1965 AIR SC 1506; 1965-2 SCR 233, as under:
“The plaintiffs suit being one for ejectment he has to succeed or fail on the title he established and if he cannot succeed on the strength of his title his suit must fail notwithstanding that the defendant in possession has no title to the property.”
High degree of Probability Shifts the Onus on the defendant
In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548, the law is laid down in the following terms :
“A fact is said to be ‘proved’ when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It is the evaluation of the result drawn by applicability of the rule, which makes the difference. …”
In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored to him. However, as held in A. Raghavamma v. A. Chenchamma there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probabilityso as to shift the onus on the defendantit is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount toproof of theplaintiff’s title.
In the present case, the trial Court and the first appellate Court have noted that the plaintiff has not been able to produce any deed of title directly lending support to his claim for title and at the same time the defendant too has no proof of his title much less even an insignia of title. Being a civil case, the plaintiff cannot be expected to proof his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus on the defendant and if the defendant does not succeed in shifting back the onus, the plaintiff’s burden of proof can safely be deemed to have been discharged. In the opinion of the two Courts below, the plaintiff had succeeded in shifting the onus on the defendant and, therefore, the burden of proof which lay on the plaintiff had stood discharged. …”.
The suit property, which is a shop, is situated just adjoining the property owned by the temple. It has come in the evidence that the property which is now owned by the temple was at one time owned by the forefathers of the plaintiff and they made an endowment in favour of the temple. The father of the plaintiff, and then the plaintiff, continued to be the trustees. The trouble erupted when in the late sixties the Charity Commissioner appointed other trustees and Chief Executive Officer of the trust dislodging the plaintiff from trusteeship. The plaintiff staked his claim to trusteeship of the temple submitting that the office of the trustee of the temple was hereditary and belonged to the plaintiff. The plaintiff was managing the trust property as trustee while the property adjoining to the property of the temple, i.e. the suit property, was in possession of the plaintiff as owner occupied by the tenant, the defendant No.2., inducted as such by the father of the plaintiff. At the instance of the Chief Executive Officer of the trust, the defendant No.2, during the continuance of the tenancy in favour of the plaintiff, executed a rent note in favour of the temple attorning the latter as his landlord. This the defendant no.2 could not have done in view of the rule of estoppel as contained in Section 116 of the Evidence Act. It was at the instance of the newly appointed trustees and the Chief Executive Officer who on behalf of the temple started claiming the suit property in occupation of the tenant, defendant No.2, to be trust property belonging to the temple. But for this subsequent development the title of the plaintiff to the suit property would not have been in jeopardy and there would have been no occasion to file the present suit.
The learned counsel for the temple, defendant-respondent No.1, faintly urged that the appellant being a trustee of the temple was trying to misappropriate the property belonging to the temple. For such an insinuation there is neither any averment in the written statement nor any evidence laid. Such a submission made during the course of hearing has been noted by us only to be summarily rejected. We have already held that the appellant is the owner of the suit property entitled to its possession and recovery of arrears of rent from the defendant No.2.
… A high degree of preponderance ofprobability proving title to the suit property was raised in favour of the appellant and the courts below rightly concluded the burden of proof raised on the plaintiff having been discharged while the onus shifting on the defendant remaining undischarged. ..”
(Quoted in: Anil. Rishi vs. Gurbaksh Singh, (2006) 5 SCC 558; City Municipal. Council, Bhalki Vs. Gurappa, (2016) 2 SCC 200)
Initial burden and Weakness in the defence
Besides Ram Chandra Sakharam Mahajan Vs. Damodar Trimbak, AIR 2007 SC 2577, the Supreme Court of India, in Ratnagiri Nagar Parishad v. Gangaram Narayan Ambekar, (2020) 7 SCC 275, held as under:
“The initial burden of proof is on the plaintiffs to substantiate his cause, if he failed to discharge the same, the weakness in the defense cannot be the basis to grant relief to the plaintiffs and burden cannot be shifted on the defendants.”
Burden of Proof Loses Significance
Burden of proof loses its importance –
if both parties adduced evidence
if there is sufficient evidence on an issue.
In such a situation, it remains academic:
Chidambara Sivaprakasa Pandara Sannadhigal v. Veerama Reddi, 49 IA 286 303: AIR 1922 PC 292 (referred to in Seturatnam Aiyar v. Venkatachala Gounden, (1919) 47 IA 76, and Kumbham Lakshmanna v. Tangirala Venkateswarlu, AIR 1949 PC 278);
Sushil Kumar v. Rakesh Kumar, (2003) 8 SCC 673,
Raghunathi v. Raju Ramappa Shetty, AIR 1991 SC 1040;
Mohd. Abdullah Azam Khan Vs. Nawab Kazim Ali Khan,(1976) 3 SCC 32
Withholding Documents
In the important decision, Gopal Krishnaji Ketkar v. Mahomed Haji Latif, AIR 1968 SC 1413, it is held as under:
“Even if a party to the suit has no burden, the Court can draw an adverse inference if he withholds important documents in his possession.”
In National Insurance Co. Ltd., New Delhi Vs. Jugal Kishore, 1988-1 SCC 626, Our Apex Court stated the law as under:
“This Court has consistently emphasized that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof.” (quoted in: Sushil Kumar v. Rakesh Kumar, (2003) 8 SCC 673)
Admission Contained in Pleadings and that in Evidentiary Admissions
An admission made by a party to a suit in an earlier proceeding is admissible against him.
In Ammini Tharakan v. Lilly Jacob (7 Oct 2013) the Kerala High Court held that admission contained in a plaint or written statement or in an affidavit or sworn deposition by a party in a previous litigation would be regarded as an admission in a subsequent action. It can be explained by the maker thereof, unless thereis no estoppel (Sec. 31, Evi. Act). Such an admission is a relevant fact. The courts can arrive at a decision on the basis of the admissions. See:
Thimmappa Rai v. Ramanna Rai, (2007) 14 SCC 63 .
Deb Prosanna v. Hari Kison, AIR 1937 Cal. 515 ,
Chendikamba v. Viswanathamayya, AIR 1939 Mad 446 ,
Lal Singh v. Guru Granth Sahib, AIR(38) 1951 Pep 101, and
Mst. Ulfat v. Zubaida Khatoon, AIR 1955 All. 361.
In Ammini Tharakan v. Lilly Jacob (7 Oct 2013) it is observed that Section 17 of the Evidence Act says that a document or a statement which suggests any inference as to any fact in issue or relevant fact, is an admission. It was pointed out in this decisions as under:
Admissions in pleadings are governed under Section 58 Evidence Act.
Section 31 of the Evidence Act, says as to evidentiary admissions.
There is distinction between the two.
The evidentiary admissions are merely relevant and not conclusive unless they operate as estoppel.
An admission by a party in a previous suit is admissible in evidence in a subsequent suit.
The burden is upon the party making it to show that it was wrong on the principle that what a party himself admits to be true may reasonably be presumed to be so, though the party making the admission may give evidence to rebut this presumption.
Unless and until that is satisfactorily done, the fact admitted must be taken to be established.
This is true notwithstanding the fact that the statement which amounts to an admission was not put to the party making it, when that person came into the witness box.
The High Court further held as under in Ammini Tharakan v. Lilly Jacob (7 Oct 2013) –
“Here, the plaintiff, who was a defendant in Lucy’s suit, had filed Ext.B10 written statement through her power of attorney holder and mother Martha. That written statement contained the clear stand that neither Lucy nor the plaintiff herein had any share in any of the assets forming the estate of late David Tharakan. This statement which amounts to an admission as to a particular state of affairs, has not been explained by the plaintiff either in the plaint or at any point of time in any manner worthy of being accepted as a rebuttal. While it is the law that admission does not confer title, what we treat as admissions here is demonstrative of the plaintiff’s animus in re inheritance to her father’s estate. We proceed to discuss that aspect further in the succeeding paragraph.”
False recital in a document as to pre-existing rights
False recital in a document as to pre-existing rights in a person (who had no such right) would not convey any right in the property to him. The Supreme Court, in Neelakantan Damodaran Namboothiri v. Velayudhan Pillai Narayana Pillai, AIR 1958 SC 832, it is held as under:
“It is stated in exhibit A that, by reason of sarva-swadanam marriage, the appellants were entitled to all moveable and immovable properties belonging to Kopprathu Illom and therefore she was executing the release deed conferring all the rights and claims they have obtained over the Illom properties by the sarvaswadanam form of marriage. The document, therefore, in terms confirms the pre-existing rights of the appellants and as we hold that they had no pre-existing rights, the document did not convey any interest to them. In the result, the appeals fail and are dismissed with cost.”
Also: Chandra Gopi v. U. K. Gopalakrishnan, 2013-1 KHC 174
Mutation by itself will Not Confer or Extinguish Title
In Moideen v. Village Officer, 9 January, 2019(Alexander Thomas, J) Kerala High Court repeated the above view as under:
“It is further made clear that grant of mutation, transfer of registry and acceptance of basic land tax by itself will not confer or extinguish title to the parties concerned as clarified in Rule 16 of the Transfer of Registry Rules. Rule 16 of the Transfer Registry Rules envisages that summary enquiry and decision thereon envisaged under those rule is only an arrangement for fiscal purposes and does not affect the legal rights of any person in respect of the lands covered by the decisions in transfer of registry cases and the prescribed legal rights is always subject to adjudication by Civil Court and pattas will be revised from time to time in accordance with such judicial decisions. Accordingly, it is ordered that the grant of mutation, transfer of registry and acceptance of the basic land tax solely in the name of the petitioner will be subject to further revision due to any subsequent judicial verdicts as envisaged in Rule 16 of the Transfer of Registry Rules and in case the 3rd respondent gets any verdicts in his favour in the said civil suit now pending before the Munsiff Court, Manjeri, then it will be open to him to seek revision of the mutation granted in favour of the petitioner, as envisaged in Rule 16 of the Transfer of Registry Rules.”
Petitioner to Prove claim (Lease); cannot rely Inconsistencies of Respondents
In OT Alexander v. State of Kerala, LAWS (KER) 2021-5. 23, High Court of Kerala (N. Nagaresh, J.) did not accept the argument of the petitioner in the Writ Petition, against the Government Order for resumption of the land, for the absence of materials to establish theleaseof 1933 claimed by the Petitioner. The prime contention of the petitioner was that the land was originally granted to the predecessors-in-interest of the petitioner, under Ground Rent Patta by erstwhile Collector of South Malabar District during the British regime in 1933; and that Land assigned under Ground Rent Patta could not be resumed by the Government.
The petitioner claimed that the transferees of the original leasee sold their right to a bank. The Bank (State Bank of Travancore) sold the property to a Company in 1995. The petitioner purchased the property from the Company as per the Sale Deed of the year 2004. The petitioner has been paying property tax to the Cochin Corporation. The action for resumption of land by the District Collector was on the ground that the sale deed between SBT and the Company was illegal. Pointing out that the petitioner cannot base his claim on inconsistencies of the respondents, the High Court did not accept the arguments against the resumption of land by the Collector.
Admission as to Title in Pleadings Holds Good u/S. 58, Evid. Act
In Heeralal vs. Kalyan Mal, AIR 1988 SC 618, a suit for partition the defendants in their written statement admitted that some properties were joint. Thereafter amendment of written statement was sought claiming some to be their exclusive properties. On the basis of the said admission a preliminary decree could have been passed. The Supreme Court held that the defendants could not be allowed to amend their written statement.
In Avtar Singh v. Gurdial Singh, (2006) 12 SCC 552, the question arose whether the appellants had encroached upon a public street. The Trial and Appellate Court held that the land in question was part of a public street and encroached upon by the appellants. The aforesaid finding was approved by the Supreme Court on the ground that the appellants have themselves admitted that a part of the land in question was included in a public street. It was observed by the Supreme Court as under:
“Admission, it is well known, forms the best evidence, it may be that admission does nor create any title, but the nature of the kind can form subject matter of admission. Section 58 of the Evidence Act postulates that things admitted need not be proved. It may be that in their Suit the respondents herein did not call for the records from the State or the local authorities to show that the land in question was a public street but keeping in view the fact that the appellants’ witnesses have admitted the said fact in their own Suit, we are of the opinion, the findings of fact arrived at by the First Appellate Court and affirmed by the High Court, need not be interfered with.”
Admission in pleading and admission in a document
In Gautam Sarup v. Leela Jetly, (2008) 7 SCC 85, our Apex Court held as under:
“14. An admission made in a pleading is not to be treated in the same manner as an admission in a document. An admission made by a party to the lis is admissible against him proprio vigore. ” (Quoted in: Seth Ramdayal Jat v. Laxmi Prasad, AIR 2009 SC 2463; 2009-11 SCC 545)
See also: Ranganayakamma and Another v. K. S. Prakash, 2008 (9) SCALE 144.
Document ex-facie reveals no title – specific declaration as to invalidity not necessary
The Supreme Court held in Kizhakke Vattakandiyil Madhavan v. Thiyyurkunnath Meethal Janaki (Aniruddha Bose & Sudhanshu DhuliaJJ.) 9.4.2024, held as under:
“18. …. If a document seeking to convey immovable property ex-facie reveals that the conveyer does not have the title over the same, specific declaration that the document is invalid would not be necessary. The Court can examine the title in the event any party to the proceeding sets up this defence. Chiruthey could not convey any property over which she did not have any right or title. Her right, if any, would stem from the second deed of lease (Exhibit A-1). We are conscious of the fact that no claim was made before any forum for invalidating the deed dated 14th July 1910 (Exhibit A-20).”
By proving a deed, title of the executing person is not automatically confirmed
The Supreme Court held in Kizhakke Vattakandiyil Madhavan v. Thiyyurkunnath Meethal Janaki (Aniruddha Bose & Sudhanshu DhuliaJJ.) 9.4.2024, also held as under:
“18. … It would be trite to repeat that even if subsistence of a deed is proved in evidence, the title of the executing person (in this case Chiruthey) does not automatically stand confirmed. ….. … But in absence of proper title over the subject property, that lease deed even if she was its sole lessor would not have had been legally valid or enforceable. If right, title or interest in certain property is sought conveyed by a person by an instrument who herself does not possess any such form of entitlement on the subject being conveyed, even with a subsisting deed of conveyance on such property, the grantee on her successors-in-interest will not have legal right to enforce the right the latter may have derived from such an instrument.”
Provisions of Chapter II of the KLR Act, that gives ‘fixity’ to tenants will apply to all plantations below 30 acres (plantation put-up by tenant or by landlord).
‘Plantation-tenancy’ lands (That is, plantation put-up by land-lord; or, Plantation existed when land was leased) exceeding 30 acres are also exempted from Chapter II KLR Act. Therefore, provisions in the Lease deeds applicable, applies to termination of tenancy.
Provisions of Chapter II, that gives ‘fixity’ to tenants will apply to all plantations exceeding 30 acres (if the plantation is put-up by tenant).
Government Lands, are also exempted from Chapter II KLR Act (Chapter II grants Fixity, Purchase- Certificate etc.). Therefore, provisions in the Grant or Lease deeds applicable, applies to termination of grant/tenancy.
Landlord can recover possession of ‘plantation-tenancy-lands’ (plantation put-up by land-lord) above 30 acres, from the tenant, on the strength of lease deed; because it is exempted under Chapter II that gives protection to tenant (Fixity, Purchase- Certificate etc.).
All such Plantation (tenancy) lands (put-up by tenant or by landlord) vest in Govt. under Sec. 72.
Provisions of Chapter III of the KLR Act that says as to ‘Ceiling Limit’, its ‘Exemption’ etc. do not apply to (i) Government Lands (not Govt.-lease lands), (ii) plantations etc.
Landlord cannot recover possession of ‘plantation lands’ (where Tenant made plantation on bare land leased) above 30 acre from the tenant; because it falls under Chapter II that gives protection to tenant (Fixity, Purchase- Certificate etc.).
Plantation Exemption Benefits in Government-Lease Lands
Chapter III of the Kerala Land Reforms Act prescribes ceiling limits subject to exemptions enumerated in Section 81, including the exemption for plantations under Section 81(1)(e). While Section 81(1)(a), in its main part, excludes Government-owned lands from the operation of Chapter III—thereby rendering both the ceiling provisions and the plantation exemption inapplicable to such lands—the proviso to that clause expressly withdraws this exclusion in cases where Government lands are held under lease. The proviso operates only to nullify the exemption under Section 81(1)(a) and does not curtail the independent plantation exemption under Section 81(1)(e). Consequently, Government-owned lands held on lease must be tested under the remaining clauses of Section 81, and where such lands constitute plantations, they continue to enjoy exemption from the ceiling provisions, unaffected by the negative operation of Section 81(1)(a).
PART I
Provisions relating to ‘Tenancy’ and ‘Exemption from Ceiling Limit’ of Plantations are dealt with in Chapter II and III of the KLR Act.
Chapter II – Deals with Tenancies
Chapter II (Sections 3 to 80G) of the KLR Act speaks about ‘Provisions Regarding Tenancies’.
It deals, among other things, with:
‘fixity’ (to tenants),
vesting of property in Govt.,
purchase of landlord’s rights by cultivating tenants,
issuance of ‘certificate of purchase’,
rights and liabilities of Kudikidappukars.
Exemption from ‘Fixity’ in Chapter II
The Kerala Land Reforms Act, 1963 confers upon tenants fixity of tenure, that is, a right of permanency to continue as tenants in privately leased lands; nevertheless, the statute expressly excludes the operation of this right in relation to certain specified classes of land.
Sec. 3(1) says that nothing in Chapter II shall apply to:
leases-lands
belonging to or vested in the Government,
Leases-of private forests,
tenancies of plantations exceeding 30 acres, etc.
Govt. Lands (Come under Land Assignment Act)
In Neelakantan v. District Collector, Quilon, 1976 Ker LT 489 (while dealing with Viruthi holding), it is pointed out as under:
“Sec. 3 of the Kerala Land Reforms Act exempts lands belonging to or vested in the Government from the operation of the tenancy provisions of the Act.
‘Land belonging to or vested in the Government’ shall have, by virtue of Explanation I to S.3(1) of Act I of 1964, the same meaning as Government land under sub-section (1) of Sec. 2 of the Kerala Government land Assignment Act, 1960.
Sub-section (1) of S. 2 of the land Assignment Act defines Government land to include all lands wherever situated except in so far as the same are
the properties of jenmiesor holders of inams, or
holders of land subject to the payment of land revenue to the Government or of any registered holder of the land in proprietary right.”
Chapter III –Deals with Ceiling Limit and Exemptions
Chaptr III (Sections 81 to 98A) of the KLR Act deals with ‘Restriction on Ownership and Possession of Land in Excess of Ceiling Area and Disposal of Excess Lands’.
Among other things, it procures provisions as to:
ceiling limit,
exemptions from ceiling limit,
filing ceiling return,
determining extent to be surrendered,
surrender,
taking possession by TLB,
effect of conversion of exempted land.
Exemption from Ceiling Limit
Sec. 81(1)says that the provisions of Chapter III shall not apply to –
lands owned or held by the Government
But, provisions of Chapter III shall apply to Government- lease-lands also, by virtue of the Proviso to sub-section (1)(a) of Sec. 81). The Proviso reads as under:
“Provided that the exemption under this clause shall not apply to lands owned by the Government of Kerala and held by any person under lease whether current or time expired or otherwise.”
private forests,
plantations, etc.
Note: 1. Section 81(1) creates exemptions from Chapter III (ceiling provisions). Section 81(1)—that grants exemption to the ceiling limit—is not made applicable (“shall not apply”) to Government lands from the provisions of Chapter III.
The Proviso says as under:
“Provided that the exemption under this clause shall not apply to lands owned by the Government of Kerala and held by any person under lease whether current or time expired or otherwise.”
Section 81(1), by itself, stands as a bar to availing the benefits (on ceiling exemption) to plantations in Government lands. But, the “exemption” in the Proviso makes it clear—the bar in Section 81(1)“does not apply” (to the tenants on) the lease-lands owned by the Government. Therefore, the benefits of ‘plantation-exemption’ apply to the Government-owned-lease-lands.
2. The effect of Chapter III, on the following classes of the tenants is that they are liable to pay ‘rent’ to the Government in terms of Section 72F(h).
(i) tenants of the erstwhile private landowners falling under Sections 13 (fixity of tenure) and 72 (vesting in Government).
(ii) tenants of the Government—because the Land Reforms Act does not make any change to the liability to pay rent.
The effect of Chapter III on Government-lease-lands and on the lands that fall under Section 13 (Fixity) and 72 (vest in Government) is that the tenants (both Government’s tenants and the erstwhile Private landholders’ tenants) have to pay ‘rent‘ to the Government under Sec. 72F(h).
3. Section 81(4) “permits”use of the land not exceeding 5% of the extent of such holding for floriculture, dairy farms, hotels, restaurants, etc.
4. Under Sec. 112 (5A) of the KLR Act, on acquisition, the cultivating tenants are entitled to compensation for improvements (only) for the land vested in the Government under Sec. 72. Sec. 112 (5A)(a) says that the compensation for any building or other improvementsbelonging to the landownershall be awarded to the Government; and clause (b) says that the balance remaining after deducting the compensation referred to in clause (a) and the value of the land occupied by the homestead or hut, if any, shall be apportioned between the cultivating tenant and the Government in proportion to the profits derivable by them from the land.
PART II
Chapter II – Provisions Regarding Tenancies
S. 3(1)(viii)
“3. Exemptions – (1) 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”.
Sec. 2(44)(c)
“agricultural landsinterspersed within the boundaries of the area cultivated by the said person with plantation crops, not exceeding such extent as may be determined by the Land Board [or the Taluk Land Board, as the case may be] as necessary for the protection and efficient management of such cultivation.”
Analysis of Exemption under S. 3(1)(viii)
If tenant raised plantation on bare land leased –
Such tenants are not excluded (from Chapter II) by the ‘Exemption’ clause under S. 3(1)(viii).
Therefore, tenants of such tenancy-land are entitled for benefits under Chapter II such as
Fixity under Sec. 13,
purchase certificate within ceiling limit etc.
Such lands vest in Govt. under Sec. 72 also.
S. 3(1)(viii) deals with Exemption of ‘Plantation-Tenancy’ (plantation, developed by the landlord), above 30 acres.
To exclude a plantation (from the benefits under Chapter II offered to Tenants)under S. 3(1)(viii), it should have been a plantation when it was leased;
that is, such land, above 30 acres, must have been developed as plantation by the landlord.
S. 3(1)(viii), exempt from Chapter II –
plantation-tenancy (plantation developed by the landlord) above 30 acres.
That is, if tenant has raised plantation on bare land leased, it is not excluded (from the benefits under Chapter II offered to Tenants) by the Exemption under S. 3(1)(viii).
Such tenants (who put up plantation on the bare land) have the rights and benefits provided under Chapter II – such as
fixity under Sec. 13 and
vesting in Government under Sec. 72
(But not purchase certificate under Sec. 72B, for it is not allowable above ceiling limit.)
Note: No rider to Sec. 72B and 72C, by way of proviso or otherwise, exempting plantation.
S. 3(1)(viii) provides benefit (fixity under Sec. 13) to
plantation-tenancy below 30 acres (because what is exempted from benefits of fixity is Plantation-Tenancies exceeding 30 acres).
See: Rev. Fr. Jerome Fernandes Vs. Be Be Rubber Estate, 1972 KLT 613; Poddar Plan. Ltd v. Thekkemariveettil Madhavi Amma, 2014 1 ILR(Ker) 813; 2013 4 KLJ 781; 2014 1 KLT 439 .
Therefore:
Contract applies to termination of tenancy, above 30 acre plantation–tenancy (land must have been a plantation when it was leased).
Land lord is entitled Sec. 81 exemption over such plantation.
Fixity, Vesting in Govt. and Purchase Certificate:
Sec. 13 says every tenant has fixity. But, holdings held by cultivating tenants alone will vest in Govt., under Section 72(1).
Sec. 72 provides for automatic vesting of leasehold properties held by ‘cultivating tenants’ in Govt. ILR 2010(2) Ker. 845.
Sec. 72K provides that LT shall issue purchase certificate. It shall be conclusive proof of assignment.
Assignment of Purchase certificate
Sec. 72B provides for cultivating tenant’s rights to get assignment – purchase certificate (through LT) – within ceiling area. [Tenant is “obliged to apply” for it within 2 years from 1-1-1970. Effect of not applying for assignment, See: Balanoor Plantations & Industries Ltd. v. State of Kerala, 2018(3) KLT 283. This decision also says that tenants having ‘no bona fide claim’ as to cultivating-tenancy has ‘no vested right to continue’.]
Sec. 72 C provides for suo moto action by LT. (No time limit,)
The tenant who opts to avail benefits of plantation-exemption, under Sec. 81, cannot seek fragmentation (Sec. 87, Explanation II) of the plantation land so as to obtain purchase-certificate (under Sec. 72A, 72B or 72C) within ceiling limit. Still, he stands as a cultivating tenant, “entitled to assignment” of the right under Sec. 72B. As shown elsewhere, there is an option for the tenant – either to obtain purchase-certificate or to avail plantation-exemption.
Rule 5 of the Vesting & Assignment Rules provides – LT may suo moto – notwithstanding no application – assign to cultivating tenant. (See S.72C also).
Chapter III – Excess, Ceiling Return,Surrender, Exemption Etc.
Section 81:
S. 81, the first Section in Chapter III deals with exemption from ceiling limit of plantation, industrial land, etc. Sec. 81(1)(e) reads as under:
“Exemptions: (1) The provisions of this Chapter shall not apply to–
(a) lands owned or held by the Government ….
…… ……
(e) plantations;
…………”
Note: Provisions of Chapter III shall apply to Government- lease-lands also, by virtue of the Proviso to sub-section (1)(a) of Sec. 81). The Proviso reads as under:
“Provided that the exemption under this clause shall not apply to lands owned by the Government of Kerala and held by any person under lease whether current or time expired or otherwise.”
Section 82 & 83:
S. 82 & 83 deal with ceiling area and bars holding land excess of ceiling fixed. Sec. 82 reads as under:
82. Ceiling area. – [(1) The ceiling area of land shall be,
(a) in the case of an adult unmarried person or a family consisting of a sole surviving member, five standard acres, so however that the ceiling area shall riot be less than six and more than seven arid a half acre in extent;
(b) in the case of a family consisting of two or more, but not more than five members, ten standard acres, so however that the ceiling area shall not be less than twelve and more than fifteen acres in extent.
(c) in the case of a family consisting of more than five members, ten standard acres increased by one standard acre for each member M excess of five, so however that the ceiling area shall not he less than twelve and more than twenty acres in extent; and
(d) in the case of any other person, other than a joint family, ten standard acres, so however that the ceiling are shall not be less than twelve and more than fifteen acres in extent.]
Section 83
Sec. 83 reads as under:
“83. No person to hold land in excess of the ceiling area.With effect from such dates as may be notified by the Government in the Gazette, no person shall be entitled to own or hold or to possess under a mortgage lands in the aggregate in excess of the ceiling area.”
Section 85(1) reads as under:
85. Surrender of excess land. (1) Where a person owns or holds land excess of the ceiling area on the date notified under Section 83, such excess land shall be surrendered as hereinafter provided: …. ….”
Section 2 (3) defines ceiling area as under:
“Ceiling area” means the extent of land specified in section 82 as the ceiling area”.
Plantation: Definition
“S.2.(44)” plantation” means any land used by a person principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon (hereinafter in this clause referred to as ‘plantation crops’) and includes.-
(a) land used by the said person for any purpose ancillary to the cultivation of plantation crops or for the preparation of the same for the market;
[(b) xxxx]
(c) agricultural lands interspersed within the boundaries of the area cultivated by the said person with plantation crops, not exceeding such extent as may be determined by the Land Board [or the Taluk land Board, as the case may be] as necessary for the protection and efficient management of such cultivation.
Explanation:- Lands used for the construction of office buildings, godowns, factories quarters for workmen, hospitals, schools and play grounds shall be deemed to be lands used for the purposes of sub-clause (a).
Relevant Provisions: Excess, Ceiling Return,Surrender, Exemption Etc.
Sec. 85 (1) provides for Surrender excess.
Sec. 85 (2) provides – Owners and Tenants of plantation (who owns or hold properties) should furnish statement (ceiling return) to Land Board before March 31, 1971, before the Land Board (including lands exempted under S. 81).
Sec. 85 (3) provides – Excess shall be surrendered.
Sec. 85 (5) provides – LAND BOARD shall DETERMINE – extend to be surrendered
Sec. 85 (7) provides – Whereon a person fails to file statement (ceiling return) under 85(2), LAND BOARD shall intimate Taluk Land Board (TLB),– TLB shall determine land to be surrendered.
“The statute prescribes liability on the person who owes or hold the land in excess of the ceiling limit and if such a person fails to file the statement in accordance with law, the Board is enjoined to proceed against such person.” State of Kerala Vs. Varkey Mathew, AIR 1996 SC 1009.
[TLB not to do, suo motu, without direction from LB. State Of Kerala Vs Idiculla, 1980 KLT 120, referred to Shircy, J. in One Earth One Live Vs. State of Kerala, 2019(1) KLT 985.]
The effect of not filing ceiling return can be equated to ‘not applying for assignment’ of purchase certificate, See: Balanoor Plantations & Industries Ltd. v. State of Kerala, 2018(3) KLT 283.
Sec. 85A provides – File ceiling return/statement within March 2, 1973 before Land Board.
Sec. 86(1) provides – On determination of the extent to be surrendered (by LB) under S. 85- Excess vests in Govt. and Taluk Land Board shall issue an order accordingly.
Title to the property is not decided by the Taluk Land Board (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).
Sec. 86(3) provides – Where any person fails to surrender as demanded, the TLB may order an officer to take possession.
Sec. 86(4) provides – 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.
Sec. 86(6) provides – Nothing applies to property of Govt. under KLC Act.
Sec. 87 Exp. II provides – If CONVERTED TO ANY OTHER CLASS and the person owns excess of ceiling area – the excess shall be deemed to be land acquired.
Sec. 87(1A) provides – Person referred to above (transferee) also should file statement (Return).
See note below: ‘No Total Prohibition in using Exempted Land for a Different Purpose‘
PART III
PLANTATIONS – Analysis of S. 81, 82 and 83
CHAPTER III of the KLR Act deals with Ceiling Area and Excess Lands.
Sec. 81 provides for ‘Exemptions’. Sec. 81 reads as under:
Exemptions: (1) The provisions of this Chapter shall not apply to –
(a) lands owned or held by the Government ….
…. …..
(e) plantations;
…………
But, Exemption shall not apply to lease-lands owned by the Government. That is, lessees of Govt. lands get benefits under the exemption – they can hold beyond the ‘ceiling limit. Thereby the lessees of Govt. lands get benefits under the exemption – they can hold beyond the ‘ceiling limit.
81(1)(a) Proviso says –
“Provided that the exemption under this clause shall not apply to lands owned by the Government of Kerala and held by any person under lease“. (See notes under the heading: “Sec. 81 exemptions do not apply to Govt. lands; But, Exemption apply to lease-lands”)
Plantation: Under Sec. 2, clause (44), plantation means any land used by a person principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon.
Ceiling area
Sec. 82 provides for ceiling.
Sec. 83 provides – No person can hold or possess excess of ceiling area. (Holding is by tenant.)
It is a total bar.
Apply to tenant also. 1980 KLT 259 (Gopalan Nair Vs. State), 1976 KLT 306 (Thomas Mariamma Vs. TLB),
The policy of the Act – no person –“be permitted to hold any land in excess of the ceiling area.” Raghunath Laxman Wani v. The State of Maharashtra (AIR 1971 SC 2137) – quoted in 2008(1) KLJ 571 (State Vs. Puliyangattu). Followed in State vs Civil Judge, Nainital, AIR 1987 SC 16; Bhikoba S. Vs. ML Punchand Tathed, AIR 1982 (SC) 865.
Does the Plantation Exemption confer Unconditional Rights over the ‘LAND’?
No.
It is for the following reasons –
1. The exemption is to the ‘plantation‘, and not to the ‘land‘.
2. Exemption continues (only) as long as the plantation exists or continues;
Because,
S. 2.(44) defines ‘plantation’ as land used principally for the cultivation of a specific ‘plantation crop‘ like tea, coffee, cocoa, rubber etc.
Section 87, Explanation II states that if a plantation for which exemption is given on recognition of a specific ‘plantation-crop’ is converted intoany other ‘plantation-crop’ or the plantation activity is not continued, the exemption may be lost; and the land will be taken for considering the ceiling limit.
Explanation II of Sec. 87 reads as under:
“Explanation II – Where, after the date notified under Section 83, any class of land specified in Schedule II has been converted into any other class of land specified in that Schedule or any land exempt under Section 81 from the provisions of this Chapter is converted into any class of land not so exempt and in consequence thereof the total extent of land owned or held by a person exceeds the ceiling area, so much extent of land as is in excess of the ceiling area, shall be deemed to be land acquired after the said date.”
Note: The “a person” in clause “total extent of land owned or held by a person exceeds the ceiling area” denotes the transferee.
Purport of Sec. 87 and the Explanations in S.87(1)
Section 87 reflects the legislative intention in protecting plantations. The protection is on economic grounds. That is, certain crops and cultivations that made the land of Kerala renowned from ancient times were to be protected. Section 87 and the Explanations are to be read and interpreted in the light of their intentions. The Kerala High Court aptly appreciated these provisions in this background in One Earth One Life v. State of Kerala, 2019-2 KHC(SN) 10; 2019-1 KLT 985.
In State Human Rights Protection Centre, Thrissur v. State of Kerala, 2009(3)KLJ 110, it is held as under:
“19.There is no restriction on alienation of lands exempted under Section 81 (1)(a) of the Land Reforms Act ,since such lands are exempted from the operation of Chapter III of the Kerala Land Reforms Act dealing with ceiling on holding. It is not the excess land that is alienated but the exempted land………”
It was further held in para 21-
”……Any exemption from ceiling provision under the Kerala Land Reforms Act has a purpose and the purpose in the present case is public interest and that public interest is the use of land for industrial purpose. Since under the Kerala Land Reforms Act there is no restriction on alienation of the exempted category of lands and since the transferee is subjected to the acid test of eligibility and entitlement for exemption in terms of use of the land, the transfer made by the HMT will also be subjected to the same test, namely use of the transferred land for industrial purpose. In other words, HMT is legally entitled to transfer 100 acres of land notified under Ext.R1(i) notification, but the transferee will have to use that land for industrial purpose and that purpose only. Therefore, the transfer is not vitiated in any way; but the transferee will have to use the land only for industrial purpose. That is a covenant on the land.” (Quoted in: One Earth One Life v. State of Kerala, 2019-2 KHC(SN) 10; 2019-1 KLT 985)
In Everest Stone Crusher and Granites v. District Collector, District Collectorate, Kannur, 2020-6 KHC 289, it is held as under:
“Therefore, Ext.P13 prohibitory order issued by the 1st respondent District Collector, during the pendency of suo motu proceedings under Section 87 of the Act, cannot be said to be one issued without reasonable grounds to believe that any document relating to transfer of land of the land owned by the petitioner, which may be presented before the 3rd respondent registering officer, is intended to defeat the provisions of the said Act. The said order warrants no interference in this writ petition, invoking the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India.”
State need not pay compensation to the Excess Land (when land is acquired)
It is also noteworthy –
Article 31A(1), Proviso of the Constitution of India lays down that the State need not pay compensation to the land-owners (when land is acquired) above the ceiling limit. And, the afore-stated provisions of the KLR Act are legislated following this constitutional provision.
Article 31A(1), Proviso of the Constitution reads as under:
“Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.”
PlantationExemption, Fixity & Purchase Certificate for a Tenant below 30-acres-plantation
By virtue of S. 3(1)(viii), a Tenant (below 30-acres-plantation) will get fixity (Sec. 13) and can continue possession.
And, under Chapter III, Sec. 81(1)(e), he can also avail benefits of exemption for plantation (without being affected by the ceiling limit – Sec. 82 & 83).
Note: For getting benefits under Sec. 81 exemption, the tenant should have filed ceiling return (under Sec. 85(2); 85A).
Purchase Certificate being provided within ceiling limit alone under Sec. 72B or 72C, it is legitimate to state that a tenant cannot get Purchase Certificate on the plantation land, under Sec. 72B or 72C. (Note: No rider to Sec. 72B and 72C, by way of proviso or otherwise, exempting plantation.)
CombinedImpact of Sec. 3(1)(viii) and Sec. 81 on Plantation-Tenancy-land
Below 30 acres – Chapter II applies:
By virtue of S. 3(1)(viii)Chapter II applies to all tenancies (both above and below 30 acres. It stands contradistinct to ‘leased-lands-upon-which-plantation-was-put-up’ by the tenant above 30 acres.
Such tenants also get benefit of exemption under Sec. 81 and they can continue without being affected by the ceiling limit under Sec. 82 and 83.
For getting benefits of Sec. 81 exemption ceiling return (Sec. 85(2); 85A). should have been filed.
Above30 acres ‘Plantation-Tenancy’- Chapter II, KLR Act will not Apply:
S. 3(1)(viii) being exclude (from Chapter II) ‘Plantation-Tenancy’ (i.e. ‘leased-lands-upon-which-plantation-was-put-up’ by the landlord) above 30 acres, provisions of Chapter II do not apply to such plantations.
Hence, No ‘fixity’ under Sec. 13, for the tenants of ‘Plantation-Tenancy’ above 30 acres.
Contract applies to termination of tenancy, above 30 acre plantation–tenancy. But, until evicted lawfully, such tenants get benefit of exemption under Sec. 81 and they can continue without being affected by the ceiling limit under Sec. 82 and 83.
Land lord is entitled Sec. 81 exemption over such plantation.
For getting benefits of Sec. 81 exemption, ceiling return [Sec. 85(2); 85A] should have been filed.
If tenant raised plantation on bare land leased: S. 3(1)(viii)does not apply.
S. 3(1)(viii) does not deal with plantations put up on bare land leased by the tenants. (Such property is not excluded from Chapter II, also.)
That is, the protection or benefits given to tenants (fixity) can be availed by such tenants (who put up plantation on land leased).
No purchase Certificate can be obtained, for, fragmentation of plantation will not be allowed (Sec. 87 Expl. II).
Under Sec. 81, such tenants can avail exemption and they can also continue without being affected by the ceiling limit under Sec. 82 and 83.
Such lands also vest in Government under Sec. 72.
For getting benefits of Sec. 81 exemption ceiling return [Sec. 85(2); 85A]. should have been filed.
In N. K. RAJENDRA MOHAN Vs. THIRVAMADI RUBBER CO. LTD, AIR 2015 SC 2556; 2015-4 KLT 6, it is held as under:
“That the legislature had construed it to be unfair and improper to deny the benefit of the fixity of tenure to a lessee who might have taken the lease of extensive parambus or waste lands and in course of time by hard toil had developed those into plantations.
Analysis
Plantation leased (Plantation existed when land was leased).
Land leased Tenant made plantation. Sec. 81 (exemption from ceiling limit) applies.
Plantation above 30 Acre. Will there be fixityto tenant? No. Sec. 3 (1)(viii) (negatively) applies. (Poddar Plan. Ltd v. Thekkemariveettil Madhavi Amma, 2014 1 ILR(Ker) 813; 2013 4 KLJ 781; 2014 1 KLT 439,)
Yes. (Because what is exempted is Plantation-Tenancies exceeding 30 acres) Sec. 13, fixity is there for every tenant, if tenant toiled a plantation – See: Rev. Fr. Jerome Fernandes Vs. Be Be Rubber Estate, 1972 KLT 613.
Plantation below 30 Acre. Can a tenant get purchase certificate for 5 or 10 acres? May be. No specific provision. So, by virtue of Chapter II, a tenant can get Purchase Certificate; but, within ceiling limit – Sec. 13– under Sec. 72B, 72C. (See notes just below also)
No. No specific provision.
It may be possible to get purchase certificate within ceiling – provided the tenant does not claim the remaining property.
Plantation below 30 Acre. Will there be fixity to tenant? Yes. By virtue of S. 3(1)(viii), a Tenant has fixity (Sec.13). It is reasonable to say, a tenant cannot claim fixity and Purchase Certificate, simultaneously.
Yes. (Because what is exempted is Plantation-Tenancies exceeding 30 acres) Sec. 13 fixity, applies.
Who gets Sec. 81 exemption – land-owner or tenant – above 30 acre. Land owner – For, plantation itself was leased.
Tenant
Can landlord recover possession – above 30 acre – from the tenant? Yes. No express provision. But, contract holds the field (because no protection to tenant, under Chapter II).
No. (Because Plantation-Tenancies exceeding 30 acres is exempted, and therefore no protection to tenant) Sec. 13 fixity, applies. See: N. K. Rajendra Mohan Vs Thirvamadi Rubber Co. Ltd.: AIR 2015 SC 2556; 2015-4 KLT 6
(Not applicable)
Will a tenant get Fixity (S. 13) or Purchase Certificate (S. 72) on “tenancies…”, ‘interspersed within the plantation’Sec, S. 3(1)(viii) Yes. But, within ceiling limit – Sec. 13– under Sec. 72B, 72C. Proviso refers to a special category on independent-tenancy [from the plantation-tenancy, mentioned in the main Section, S. 3(1)(viii)].
Will there be vesting of land below 30 acres in Govt? Yes. Then what is the relation between Govt. and the original tenant? Relation that is recognised by the Statute. That is, fixity in the land vested in Government.
Yes (for both above and below 30 acres).
Then what is the relation between Govt. and the original tenant? Relation that is recognised by the Statute .That is, fixity in the land vested in Government.
Effect of Conversion of a Portion of Exempted Landinto a Non-exempted Category
Section 87 reads as under:
“S.87. Excess land obtained by gift, etc. to be surrendered – (1) Where any person acquires any land dafter the date notified under Section 83 by gift, purchase, mortgage with possession, lease, surrender or any other kind of transfer inter vivos or by bequest or inheritance or otherwise and in consequence thereof the total extent of land owned or held by such person exceeds the ceiling area, such excess shall be surrendered to such authority as may be prescribed.
Explanation 1 – Where any land is exempted by or under Section 81 and such exemption is in force on the date notified under Section 83, such land shall, with effect from the date on which it ceases to be exempted, be deemed to be land acquired after the date notified under Section 83.
Explanation II – Where, after the date notified under Section 83, any class of land specified in Schedule II has been converted into any other class of land specified in that Schedule or any land exempt under Section 81 from the provisions of this Chapter is converted into any class of land not so exempt and in consequence thereof the total extent of land owned or held by a person exceeds the ceiling area, so much extent of land as is in excess of the ceiling area, shall be deemed to be land acquired after the said date.
No Total Prohibition in using Exempted Land for a Different Purpose
Explanation II does not make a total bar. It only causes to lose benefit of the exemption to a certain extent. That is, if a person converts any portion of his exempted land to any other class, that converted extent will be added to his account in determining his ceiling limit; and the Taluk Land Board can proceed upon that (excess) land. In short, the exemption will be lost for that portion. In this premises, in Wayanad Granites v. District Collector, 2023-4 KLT 874, it is held that ‘fragmentation is per se not illegal’. similarly, in District Collector v. Sajith Lal, 2023-4 KLJ 851, it is held that ‘there is no embargo under law in using any exempted land for non-exempted purposes as well’.
In Mathew K.T v. State of Kerala, 19 April, 2024, in the light of earlier decisions, observed that there is no total prohibition in using an exempted land for a different purpose under the Kerala Land Reforms Act. The impediment or restriction is (only) the following –
If a portion of the exempted land is utilised for any other purpose, that would fall within his ceiling area and the authorities may be able to initiate ceiling proceedings.
The Full Bench decision, Mathew K. Jacob v. District Environmental Impact Assessment Authority [AIR 2019 Ker. 67, affirmed by the Supreme Court in K.H. Nazar v. Mathew K. Jacob, 2020-14 SCC 126] held as under:
“We however add that any class of land earlier exempted in the ceiling case can be converted into any class of land not liable to be exempted under Explanation II to Section 87 of the Act. The consequence is that the benefit of the exemption would be lost and the extent added to the account of the assessee or the declarant in determination of his ceiling area. That is a matter to be dealt with by the Taluk Land Board with the assessee or the declarant and other interested parties on the party array and we desist from elaborating further.”
In District Collector v. Sajith Lal (2023-4 KLJ 851; 2023 KLT OnLine 1225) it is held as under:
“5. There is no embargo under law in using any exempted land for non- exempted purposes as well. If the land is used for non-exempted purposes, the holder of the land will lose the qualification for exemption, thus giving authority to the Land Board to initiate ceiling proceedings.” (Quoted in: Mathew K.T v. State of Kerala, 19 April, 2024)
No Embargo to Transfer Plantation Land
In R. V. Devassia v. Sub Registrar, Idukki, 2015-1 ILR(Ker) 1047; 2015-1 KHC 805; 2015-2 KLJ 17, it is held as under:
“9. On promulgation of the KLR Act in the State, the entire landed property in the State is subjected to State control as envisaged under the provisions of the KLR Act. No piece of the land escapes the clutches of the KLR Act including exempted land for ceiling purposes. The ceiling proceedings is a continuing proceedings and can be reopened in any of the circumstances, if so warranted, as contemplated under Section 87 of the KLR Act. Exemption granted from ceiling is the qualification to use the land in a particular manner, which means a burden is imposed on the land. The moment the qualification for exemption is vanished by conversion of the land, the protection from ceiling will also be extinguished to bring the land within the fold of the ceiling area. The exemption is in the nature of a burden on the land to use the land for the purpose for which exemption is granted. The eminent domain power of the State can be exercised for acquiring land without consent and also to regulate the use of land in public interest. The eminent domain is power inherent in any Sovereign State. This burden would bind the holder of the land as on 01/01/1970 and the successor-in-interest. The Division Bench of this Court in the State Human Rights Protection Centre, Thrissur and another v. State of Kerala and others [2009 (3) ILR 695] held that exemption granted under S.81(1)(a) is for the land and would continue to operate irrespective of change of ownership of the exempted land and the transferee would have to use the land for the purpose for which exemption is granted.”
In Everest Stone Crusher and Granites v. District Collector, Kannur, 2020-6 KHC 289, it is observed as under:
“16. In Devassia R.V. this Court noticed that, the provisions of the Kerala Land Reforms Act do not place any embargo on transfer. The transfer of registry is for fiscal purposes. The power of the competent authority to reopen the ceiling proceedings to include the land exempted for the purpose of ceiling is not lost on account of effecting mutation. Therefore, the Revenue Officials cannot refuse to effect mutation of the property purchased by the transferee.”
Effect of Fragmentation for Non-exempted Category
The decision in One Earth One Life v. State of Kerala, 2019-2 KHC(SN) 10; 2019-1 KLT 985, arose from the Writ Petition filed for a declaration that the fragmentation and sale of a Rubber Plantation fornon-plantation purposes was illegalas it defeated the purpose of the Kerala Land Reforms Act. When the matter was placed before the Taluk Land Board under Sec 87, KLR Act, it found that there was no change in classification of the land and therefore dropped the proceedings. The Court held as under:
“34. Section 81 of the KLR Act is in pith and substance a special provision, with its main objective of giving exemption to certain lands including the lands maintained as plantations is to prevent fragmentation of the land and to keep it as plantation itself to improve the economy of the state for welfare of people as a whole while the Act creates a regime, the State is under an obligation to safeguard, the intended purpose of the provisions of the Act in its spirit. ….. …… It could be gathered from the records that the proposal to transfer 1.03 acres of land to each workers in discharge of their service or retrenchment benefits will definitely divide the plantation into separate slots and that would definitely change the character/nature of the plantation, which could be termed as ‘conversion’ and that will be against the provisions of the Act.”
Can a Tenant of Plantation Transfer his Rights, Fragmenting the Plantation
Possession is a heritable and transferable right. [See: Nallammal Vs. Ayisha Beevi, 2017-5 Mad LJ 864; Phirayalal Kapur Vs. Jia Rani, AIR 1973 Delhi 186]. Therefore, a tenant of plantation having rights of fixity (Sec. 13) may have the right to transfer it to another. In any case, the change of character or nature of the plantation by fragmentation being amount to ‘conversion’ that will be against the provisions of the Act, as pointed out in One Earth One Life v. State of Kerala, 2019-2 KHC(SN) 10; 2019-1 KLT 985.
PART – IV
VESTING OF LAND IN GOVT. & RIGHT OF GOVT. TO COLLECT RENT
According to the provisions of the KLR Act, lands held by individuals (or associations of persons) vest in Govt. under two provisions. They are-
First, Sec. 72 – Vesting of landlord’s rights in Government.
Second, 86. Vesting of excess lands in Government.
Note: Sec. 86 does not apply to Plantations, for (i) they being already vest in Govt. under Sec. 72, and (ii) if Govt. land, no question of vesting arises.
Section 72(1) reads:
“72. Vesting of landlord’s rights in Government: (1) On a date to be notified by the Government in this behalf in the Gazette, all right, title and interest of the landowners and intermediaries in respect of holdings held by cultivating tenants (including holders of kudiyirippus and holders karaimas) entitled to fixity of tenure under Section 13, and in respect of which certificates of purchase under Sub-section (2) of Section 59 have not been issued, shall, subject to the provisions of this section, vest in the government free from all encumbrances created by the landowners and intermediaries and subsisting thereon the said date”
Sec. 81 exemptions do not apply to Govt. lands; But, Exemption apply to lease-lands
Government lands are exempted under Sec. 81(1)(a).
But, Exemption shall not apply to lease-lands owned by the Government. That is, lessees of Govt. lands get benefits under the exemption – they can hold Government-lease-land beyond the ‘ceiling limit’.
81(1)(a) Proviso says –
“Provided that the exemption under this clause shall not apply to lands owned by the Government of Kerala and held by any person under lease whether current or time expired or otherwise.”
This proviso is introduced in 1971. By virtue of this amendment (introducing Section 81(1)(a) Proviso) “Plantation-Exemption” does not take effect on Government-lease-land.
But it must be noted that a ‘valid lease’ must exist. That is, the person in possession of government land should be a “lessee”; he must not be trespasser or a person who forfeit the title of Government.
The word “otherwise” must be understood as a permissive occupation
In MT Joseph v. State of Kerala, AIR 1974 Ker 28, it is held-
“Clause (a) of Sub-section (1) of Section 81 by which “Government lands held under a lease current or time expired or otherwise” can be understood only as referring to such lands which are held by persons in permissive possession. The word “otherwise” must be understood as a permissive occupation otherwise than under a lease. The word “otherwise” has no wider meaning in the context. So understood, the exemption to Clause (a) of that Section is perfectly legal and in that limited sense we uphold that provision as valid.”
Tenant is defined in Sec 2 (57) as under:
(57) “tenant“ moans any person who has paid or has agreed to pay rent or other consideration
for his being allowed to possess and to enjoy any land by a person entitled to lease that land, and includes- …. ….. ….. “
Section 86 reads:
86. Vesting of excess lands in Government. (1) On the determination of the extent and other particulars of the lands, the ownership or possession or both of which is or are to be surrendered under Section 85, the ownership or possession or both, as the case may be of the land shall, subject to the provisions of this Act, vest in the Government free from all encumbrances and the Taluk Land Board shall issue an order accordingly.
(2) On receipt of [the order of the Taluk Land Board under Sub-section (1)] such person shall make the surrender demanded, in such manner as may he prescribed.
(3) Where any person fails to make the surrender demanded, the [Taluk Land Board] may authorise any officer to take possession or assume ownership of the land in such manner as may be prescribed.
[(4) Where the ownership of any land vests in the Government under Sub-section (1), the rights of the intermediary, if any, in respect of the land shall stand extinguished, and where possession of any land which was in the possession of a cultivating tenant vests in the Government under that Sub-section, the ownership of such land shall vest in the Government and the rights of the intermediary, if any, in respect of such land shall stand extinguished.]
Who is the OWNER of Exempted (Private-Leasehold) Plantation Lands in Kerala?
It is Government, though by virtue of Chapter II (Sec. 13) the tenant has ‘Fixity’.
1. Plantation (lease) Lands VEST in GOVT, automatically
Because,
Sec. 72 provides for
mandatory and involuntary vesting in Government–
of leasehold lands that is held by cultivating tenants entitled to fixity of tenure under Sec. 13 (even if the extent exceeds ceiling limit).
See: Perumal Smaraka Nidhi vs M/S Harrisons Malayalam Ltd., 31. 01. 2013.
2. ‘Vesting’ in Govt. is ‘Vesting of Ownership‘
It is for the reasons –
Sec. 72(1) [Declared to be ‘vested’ in Government],
Sec. 72E [the cultivating tenant shall pay rent to the Government from 01.01.1970],
Sec.72F(5)(h) [Land Tribunal to fix the rent stated in Sec. 72E] and
Sec. 112(5A) [If no purchase certificate is given to the tenant, from Sec. 112(5A)(b) it is clear that the tenant will be entitled (on acquisition of the land) for the compensation for the actual area where his homestead or hut, if any, is situated (whatever may be the area of land outside it) ].
It is also noteworthy –
Article 31A(1), Proviso of the Constitution of India lays down that the State need not pay compensation (even) to the land-owners (when land is acquired) above the ceiling limit. And, the afore-stated provisions of the KLR Act are legislated following this constitutional provision.
Article 31A(1), Proviso of the Constitution reads as under:
“Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.”
3. ‘Exemption’ in Chapter III Cannot be read into Sec. 72B(2)
Sec. 72B(2) specifies that the provisions of Section 82 (as to ceiling limit) shall apply for a limited purpose. It reads-
(2) The provisions of Section 82 shall, so far as may be, apply to the calculation of the ceiling area for the purposes of the proviso to Sub-section (1)
The exemption provision in Sec. 81 (Chapter III) cannot be brought-forth or read-into Sec. 72B (provision for assignment/purchase-certificate) in Chapter II.
Further:
Chapter II of the KLR Act (dealing with ‘Tenancy’) is exclusive and exhaustive as to ‘fixity’ and ‘vesting’ of land in Government.
Proviso to Sec. 72B(1) shows – Sec. 72B(1) is an an independent provision. (It says as to assignment to a cultivating tenant within the ceiling limits.)
It is not stated anywhere in the Act – the right and title of the (leased-plantation) land vested in Government under Sec. 72, will be divested in any manner (to the previous owner, or to the tenant or to anybody else), in any circumstance.
Sec. 72E provides for collection of ‘rent‘ from the holders of the plantation. It is for the reason that (ownership of) the land vests in Govt.
Proceedings initiated by Taluk Land Board under Chapter III (in respect of plantation) do not confer title.
4. Government Need Not Pay ‘Land-Value‘, as such, if Acquired
For the above (plantation land vest in Govt.), the Government Need Not Pay ‘Land-Value‘, as such, to the tenant, or the former owner, if such Lands are Acquired.
5. Tenant cannot ‘Sell’ Plantation Land as his absolute property
A tenant who got ‘fixity’ over such land cannot ‘sell’ this land as his absolute (ownership) property.
Rights of ‘tenants’ of Plantations, after vesting the land with Govt.? It is a ‘Legal Right conferred by Statute’
It is not Tenancy – For no landlord-tenant relation with the Govt.
Not Grant or Licence/Permission – For Grant as well as Licence/Permission arise from a contract (express or implied).
Therefore, it can termed only as a “Legal Rightconferred by Statute“, the KLR Act.
What are the Stipulations attached to that “Legal Right”?
Subject to the condition – not to “convert” it for any other use, other than the specific plantation (Sec. 87).
When Such a land is Required for Govt., Should it be Acquired?
The ownership being vested in Govt. it need not be ‘strictly’ “acquired”.
But no provision In Sec. 72 for ‘resuming’, if and when Govt. needs it.
Sec. 112 of the KLR Act
But, Sec. 112 of the KLR Act says as to ‘Apportionment of land value in cases of acquisition’.
Because of the “Legal Right conferred by Statute“ upon the former tenants of the plantation, they are entitled for certain compensation, when that land is required for the Govt..
In cases falling under Chapter II (pertaining to, tenants entitled for fixity, issuance of purchase certificate etc.) Section 72 deals with the right, title and interest of the land owners and intermediaries in respect of the holdings held by the cultivating tenants; and says -the land will be free from encumbrances created by the land-owners and intermediaries.
However, insofar as the cultivating tenant is concerned, an absolute right is vested with him to seek assignment (within ceiling limit) subject to the payment of purchase price – as stated in Section 72D. (See: Glen Leven Estate (P) Ltd. v. State of Kerala, 2022-6 Ker LT 439.)
No ‘authority’ is also named in any law to fix the compensation to be given to the former tenants, when the Govt. requires it.
Therefore, it is said – Apportionment of land value in cases of ‘acquisition’.
Note: It makes no difference (SUBSTANTIALLY, IN DETERMINING COMPENSATION) whether such a plantation land is “acquired” or not. Because, even if the land is not ‘acquired’, Govt. has to pay compensation for improvements to the former tenants (who holds the land by virtue of the “Legal Right conferred by Statute“, the KLR Act).
Apportionment’s of land value in cases of Acquisition
Sec. 112 of the KLR Act reads-
“112. Apportionment’s of land value in cases of acquisition – (1) Where any land is acquired under the law for the time being in force providing for the compulsory acquisition of land for public purposes, the compensation awarded under such law in respect of the land acquired shall be apportioned among the landowner, intermediaries, cultivating tenant and the kudikidappukaran in the manner specified in this Section.
(2) The compensation for any building or other improvements shall be awarded to the person entitled to such building or other improvements.
(3) The kudikidappukaran shall be entitled to the value of the land occupied by his homestead or hut subject to a minimum of-
three cents in a city or major municipality; or
five cents in any other municipally; or
ten cents in a panchayat area or township.
(4) The difference between the value of three cents or five cents or ten cents, as the case may be, and the value of the extent of the land occupied by the homestead or hut shall, notwithstanding anything contained in the Kerala Land Acquisition Act, 1961, be borne by the Government or the local authority or the company or other person on whose behalf the land is acquired.
(5) The balance remaining after deducting the compensation referred to in Sub-section (2) and the value of the land occupied by the homestead or hut shall he apportioned among the landowner, the intermediaries and the cultivating tenant in proportion to the profits derivable by them from the land acquired immediately before such acquisition.
Explanation. – “Profits derivable from the land” shall be deemed to be equal to (i) in the case of a landowner, the rent which he was entitled to get from the tenant holding immediately under him; (ii) in the case of an intermediary, the difference between the rent which he was entitled to get from his tenant and the rent for which he was liable to his landlord; and (iii) in the case of a cultivating tenant, the difference between the net income and the rent payable by him; and the rent payable by the cultivating tenant and the intermediary for the purposes of this Explanation shall be as calculated under the provisions of this Act.
(5A) Notwithstanding anything contained in Sub-sections (2) and (5), where there the right, title and interest of the landowner and the intermediaries in respect of the land acquired have vested in the Government under Section 72, –
(a) the compensation for any building or other improvements belonging to such landowner and intermediaries shall be awarded to the Government; and
(b) the balance remaining after deducting the compensation referred to in clause (a) and the value of the land occupied by the homestead or hut, if any, shall be apportioned between the cultivating tenant and the Government in proportion to the profits derivable by them from the land.
Explanation. – “Profits derivable from the land” shall be deemed to be equal to-
in the case of the cultivating tenant, the difference between the net income immediately before the acquisition and the rent which he was liable to pay immediately before the date on which the right, title and interest of the landowner and the intermediaries have vested in the Government; and
in the case of the Government, such rent.
(7) In this Section, “homestead” includes a dwelling house occupied by a person who is deemed to be a kudikidappukaran under Explanation IIA to clause (25) of Section 2.”
Apportionment depends upon rights on the date of acquisition
Valia Raja v. Veeraraghava Iyer, 1961 Ker LT 103, it was held that the question of apportionment of compensation has to depend upon the rights of the parties on the date of the acquisition. Referrd to in: Varkey Thomas Vs. Annamma Abraham, 1969 Ker LT 903.
Glen Leven Estate (P) Ltd. v. State of Kerala, 2022-6 Ker LT 439
In Glen Leven Estate (P) Ltd. v. State of Kerala, 2022-6 Ker LT 439, the question as to ‘rival claims raised by the cultivating tenant and landlord for compensation on acquisition’ arose. The land was leased out by landlords. The lease-rights came in the cultivating tenants by transfer. The Government contended that the tenant was a cultivating tenant and the land vested upon the Govt. under Sec. 72 KLR Act. Hence tenant alone would be entitled to get compensation for the improvements to be determined under the Kerala Compensation for Tenants Improvements Act, 1958, in view of Section 20(1) of the KLR Act.
The landlords argued that the land was a plantation (over 30 acres) when it was (originally) leased, and therefore, they are entitled to claim exemption and benefits in the light of the exemption under clause (viii) of Section 3 (1) of the KLR Act. Since there would be no fixity of tenure, it being a plantation, there would not be vesting of rights of the land owner in the Government. Hence, there should be the apportionment of the compensation between the lessor and the lessee and it should be decided in the acquisition proceedings.
The single Judge dismissed the writ petition, ‘leaving open the liberty of the lessee as well as the landlords, to approach the civil court seeking relief against the Government, and also to resolve the inter se dispute by and between the tenant and the landlords’.
The Division Bench, in appeal held that ‘land acquisition’ proceedings are to be initiated. It is pointed out that (even if it is a land vested in Govt.) there is no provision in Sec. 72 for ‘resuming’ if and when Govt. need it. The court also observed as under –
“31. On an analysis of the provisions of Section 72(1) of the Act, 1963, it is clear that when the Government notified the said provision with effect from 01.01.1970, all right, title and interest of the landowners and intermediaries in respect of holdings held by cultivating tenants (including holders of kudiyirippus and holders karaimas) entitled to fixity of tenure under Section 13, and in respect of which certificates of purchase under sub-Section (2) of Section 59 have not been issued, vested in the Government.
32. Therefore, it is clear from Section 72 that what is vested with the Government is the right, title and interest of the land owners and intermediaries in respect of the holdings held by the cultivating tenants. It is nothing but a legal fiction by which the interest held by a cultivating tenant in a property of a landlord or intermediary is protected from 01.01.1970 .
34. On a conjoint reading of Sections 72 and 72A, it can be seen that vesting of rights in the Government contained under Section 72 is the rights held by the landlord and the intermediary in respect of holdings held by the cultivating tenants. However, the same will not, in any manner, interfere with the rights enjoyed by a cultivating tenant in contemplation of the provisions of the Act, 1963.”
42. Therefore, we have no doubt in our mind to hold that Section 72 of Act, 1963 would only deal with the right, title and interest of the land owners and intermediaries in respect of the holdings held by the cultivating tenants free from encumbrances created by the land owners and intermediaries. However, the legal provisions discussed above would make it clear that insofar as the cultivating tenant is concerned, an absolute right is vested with him to seek assignment subject to the payment of purchase price in contemplation of Section 72D of the Act, 1963.
While considering the right of landlord, it is pointed out (basing on the principle, or scheme of the KLR Act**) that the landlord may have right for compensation under Section 72BB. The Division Bench said-
“36. So also, sub-Section (1) of Section 72BB dealing with ‘the right of landlord to apply for assignment and compensation’ specifies that any landowner or intermediary, whose right, title and interest in respect of any holding have vested in the Government, may apply to the Land Tribunal for the assignment of such right, title and interest to the cultivating tenant and for the payment of the compensation due to him under Section 72A.”
**Note: 1. If plantation-lease-(leasing a land when plantation existed)-above-30-acre-
Sec. 72, 72 BB etc. will not apply (such land being excluded from Chapter II, under Sec. 3(1)(viii), KLR Act).
2. In case of a plantation-lease-above-30-Acre-
on termination of the lease period, the land lord can resume the land, on the basis of his title; for, the tenant will not have fixity in such case, the land being exempted from the benefits of Chapter II (as per Sec. 3(1)(viii) of the KLR Act).
3. The landlords of such plantation will get the benefits (under Sec. 81) and protection from ceiling limit that is stipulated under the provisions of Sec. 82, 83 etc. (that is, there will be no ceiling limit).
4. In such a case, the right of landlord may be on a higher level or footing than the tenant (to get compensation).
5. It cannot be compared with a plantation that is put up by the tenant. The tenants of such plantation will-
get fixity under Sec. 13 (though they will not get Purchase Certificate),
get the benefits and protection (under Sec. 81) from ceiling limit that is stipulated under the provisions of Sec. 82, 83 etc. (that is, there will be no ceiling limit).
In such a case, the right for compensation, if any, of the landlord will be nil or negligible.
The Division Bench, inter alia, on the above observations directed ‘the State and its officials to take proceedings for the acquisition of the land’.
Criticism on Glen Leven Estate (P) Ltd. v. State of Kerala, 2022-6 Ker LT 439
The Division Bench failed to consider–
The right, title and interest of the land (above ceiling limit) ‘vest’ with the Government under Sec. 72. It is absolute. It is not a ‘fiction‘; but, it is real and actual (as seen from Sec. 72E and Sec. 112(5A).
The nature of this statutory ‘vesting in Govt’ (under Sec. 72) is further clear from – Sec. 72E (tenant has to pay rent for the unassigned land – that is, no purchase certificate is given) .
Sec. 112(5A) deals with unassigned land (that is, no purchase certificate is given). Under this sub section land-value need not be given to the land-owner or the tenant over and above the “value of the land occupied by the homestead or hut” – that is, the actual area where the ‘homestead or hut’ is situated; whatever may be the area of land outside it.
This provision is applied to lease-lands vested in Govt. under Sec. 72 and no purchase certificate is given (to the tenant)., in case of acquisition).
Sec. 72B(2) KLR Act spells-out that a cultivating tenant will get Purchase Certificate for the extent below the ‘ceiling limit’ alone. That is, the tenant has no “absolute rights” above the ceiling limit.
Plantation-lands, usually, involve Hundreds or Thousands of Acres of “excess” land. The assignment-possible-land (within ceiling limit) may be miniscule (7.5 acres or 15 acres). Therefore, the analogy drawn by the Bench (tenant has a right seek assignment) is not apt at all.
When land vested in Govt. under Sec. 72 is acquired, in the light of Sec. 112(5A) land-value need not be given to the land-owner or the tenant, over and above the “value of the land occupied by the homestead or hut” – that is, the actual area where the ‘homestead or hut’ is situated; whatever may be the area of land outside it.
The aforesaid provision of law in the KLR Act is legislated following Proviso to Article 31A(1) of the Constitution which says that the State need not pay compensation to the land owners (when land is acquired) above the ‘ceiling limit‘.
The rights of ‘tenants’ of Plantations, to continue in the land till the plantation exists, after vesting the land with Govt., is a ‘Legal Right conferred by Statute’. It is not Tenancy – for no landlord-tenant relation with the Govt. It is not a Grant or Licence/Permission – for such rights arise from a contract (express or implied). Therefore, it can be termed only as a “Legal Rightconferred by Statute“, the KLR Act.
It goes without saying – If no compensation is payable to the land-owners above the ceiling limit, it need not be given to tenants.
It is most unjustifiable to confer undue rights or benefits to the plantation-tenants (majority are BIG Companies) which had not been given to Maharaja of Travancore (whose 191 acres of lands in Thiruvananthapuram – above the ceiling limit, 15 acres – in the City was ‘mercilessly’ taken under the Orders of the Land Board Trivandrum, No. LB(B)2-18919/70, dated 15.01.1972). It is a sheer fact that lands of thousands of middleclass property owners was also harshly taken by under the provisions of the Act. (Note: Only limited right to continue the specified plantation-crop alone is given by the ‘exemption’; and, according to law, in case the land is ‘converted’, the exemption-benefit would be lost.)
No Land value to be given for the “excess” land (Beyond Ceiling Limit)
Under Sec. 112(5A) the claimants will not be entitled (on acquisition of the land) for the compensation for the entire area. It is limited to the following –
“building or other improvements“
“land occupied by the homestead or hut”
“any building or other improvements“.
It is true, “exemption” is given to plantation, to hold land over and above ceiling limit. It is only a statutory permission to continue, subject to conditions. It will be lost when it is “fragmented” or the crop is abandoned. As stated elsewhere, it is also most unjustifiable to confer undue rights or benefits to the plantation owners or tenants (majority are BIG Companies) which had not been given to thousands of middleclass property owners whose property had been harshly sized or expropriated under the provisions of the KLR Act.
The Govt. is Entitled Reasonable ‘Rent’ and Land Tax
The land being vest in Govt., it can collect reasonable ‘rent’. Sec. 72E reads as under:
72E. Rent of holdings vested in Government but not assigned to cultivating tenants. – Where in respect of any holding or part thereof, the right, title and interest of the landowner and intermediaries have vested in the Government under Section 72 and the cultivating tenant is not entitled to the assignment of such right, title and interest by virtue of Sub-section (1) of Section 72, the cultivating tenant shall be liable to pay to the Government the rent payable under this Act from the date of vesting under Section 72.
With respect to payment of tax it is stated as under in Sec. 72S:
72S. Liability for assessment alter the date of vesting under Section 72. (1)] Notwithstanding anything contained in the Kerala Land Tax Act, 1961, or in any other law for the time being in force, or in any contract, where the right, title and interest of the landowner and the intermediaries, if any, in respect of a holding have vested in the Government under Section 72, the cultivating tenant of that holding shall be liable to pay the basic tax payable in respect of that holding under the said Act and other taxes and cesses due in respect of that holding.
(2) In the case of a holding or part of a holding in respect of which an application for resumption under the provisions of this Act is rejected, the cultivating tenant shall be liable to pay the basic tax and other taxes and cesses in respect of such holding or part of the holding, as the case may be, with effect on and from the date notified under Sub-section (1) of Section 72.
PART – V — Civil Court Jurisdiction : Decisions
Supreme Court Decision – Plantation put up by tenant on land leased.
The Supreme Court held in Rt. Rev. Jerome Fernandez vs. Be Be Rubber Estate, 1972 KLT 613. It is observed as under:
“It may well be that the legislature thought that it will not be fair or proper to deny the benefit of fixity of tenure to lessees who might have taken on lease extensive parambas or waste land and might have in course of time by their hard toil developed them into plantations.”
WhenCivil Court can Interfere
Even when a tribunal is provided for redressal of remedies, the civil courts will have jurisdiction to examine the allegation of non-compliance of the provisions of the statute or of any of the fundamental principles of judicial procedure. If the challenge is only as to the ‘erroneous’ character of the order, other than ‘jurisdictional error’, the suit will not be maintainable. (South Delhi Municipal Corporation v. Today Homes and Infrastructure Pvt. Ltd. 2019-4 CivCC 150 (SC); 2019-3 CurCC 370(SC); 2019-11 Scale 33).
When an order is passed by a statutory Land-Tribunal violating a mandatory provision, the order will be illegal, without jurisdiction and a nullity. The civil courts which are courts of “general jurisdiction” can decide whether a tribunal or authority exercising statutory jurisdiction has acted in excess or beyond the statutory powers. The civil courts can interfere when the order of the statutory tribunal or authority is really not an order under the Act conferring jurisdiction on it. In other words, if a tribunal abuses its power or does not act under the Act but in violation of its provisions (Firm Seth Radha Kishan v. Ludhiana Municipality AIR 1963 SC 1547), the jurisdiction of the civil court will not be excluded. The ultimate decision can be challenged, in spite of finality and exclusionary clauses (or provision for appeal/revision), since the jurisdiction had been assumed by the tribunal, where it did not exist, and the decision was not a decision under the Act, but a nullity. (Muhammad Haji v. Kunhunni Nair, AIR 1993 Ker 104).
Civil court to declare and decide on title
Civil court alone has the jurisdiction to make the declaration and decide on title. [2014(2) Ori. LJ 1008, 1969 P& H 397, 2016(6) AIR Bomb. R. 466]
Taluk LB cannot initiate action of its own, otherwise than directed by Land Board
State of Kerala Vs. Varkey Mathew, AIR1996 SC 1009:
“Section 85(7) provides that where any person fails to file the statement, the Land Board shall intimate the fact to the Taluk Land Board and thereupon the Taluk Land Board shall, after necessary enquiries, determine the extent and other particulars of the land or lands which is or are to be surrendered. In other words, the statute prescribes liability on the person who owes or hold the land in excess of the ceiling limit and if such a person fails to file the statement in accordance with law, the Board is enjoined to proceed against such person.”
Whether Private Land or Government Land – Outside jurisdiction of TLB
The Kerala High Court, in Jagadeesachandran Nair Vs. Mamomohanan Pandarathil, 2013 (4) KLT 584, refused to call for the TLB proceedings in the Writ Petition filed by the State of Kerala before the High Court for calling for the records of the Taluk Land Board constituted under the Kerala Land Reforms Act to quash certain proceedings, claiming that the large extent of land held by the respondent was liable to be forfeited under the Kerala Escheats and Forfeitures Act, 1950. The State contended that there was gross violation of the land laws and FERA. The State also asserted a fraud on the Constitution of India, warranting immediate action in public interest and based on public policy as enjoined under Article 296 of the Constitution.
Analysing this decision it is pointed out in Harrisons Malayalam Ltd, v. State of Kerala, 2018 (2) Ker LT 369, that in Jagadeesachandran’s case it was noticed that the question whether the land was a private land or a government land was totally outside the scope of the proceedings pending before the TLB.
Ancillary relief could also be granted by the civil court
In law, when the main relief, title declaration, is cognisable by civil court the ancillary relief would be immaterial for determination of proper forum; and in such cases the ancillary relief could also be granted by the civil court. [Ram Awalamb v. Jata Shankar, 1969 All. 526, 1982 Raj. 91, 2011(3) ARC 279]
Is the Tenant of a Plantation a “Cultivating Tenant”?
Yes.
Sec. 2(8) defines cultivating tenant as under:
“Cultivating tenant“ means a tenant who is in actual possession of, and is entitled to cultivate, the land comprised in his holding.”
Can Purchase-Certificate be given to Plantation-Land, over & above Ceiling-Limit?
No.
Because, under Sec. 72B(2) a cultivating tenant is entitled to get assigned the area within the ceiling limit under Sec. 82 alone.
Sec. 72B reads as under:
“72B. Cultivating tenants right to assignment. – (1) The cultivating tenant of any holding or part of a holding, the right, title and interest in respect of which have vested in the Government under Section 72, shall be entitled to assignment of such right, title and interest:
Provided that
(a) no cultivating tenant shall be entitled to assignment of the right, title and interest in respect of any holding or part of a holding under this Section if he, or if he is a member of a family, such family, owns an extent of land not less than-the ceiling area.
(b) where the cultivating tenant or, if he is a member of a family, such family, does not own any land or owns an extent of land which is less than the ceiling area, he shall be entitled to the assignment of the right, title and interest in respect of only such extent of land as will, together with the land, if any, owned by him or his family, as the case may be, be equal to the ceiling area.
Explanation. – In calculating the extent of land owned by the cultivating tenant or, where he is a member of a family, by such family, for the purposes of clauses (a) and (b) of the foregoing proviso, the portion of the land owned by such cultivating tenant or by the family, which is liable to be assigned to the cultivating tenants holding under him or such family, shall not be taken into account.
(2) The provisions of Section 82 shall, so far as may be, apply to the calculation of the ceiling area for the purposes of the proviso to Sub-section (1);
Provided that if no date has been notified under Section 83, the date notified under Section 72 shall be deemed to be the date notified under Section 83.
(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 dote 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.
(4) An application under Sub-section (3) shall contain the following particulars, namely:
(a) the village, survey number and extent of the holding or part to which the assignment relates.
(b) the name and address of the landowner and intermediaries and also of every other person interested in the land and the nature of their interest so far as they arc known to him;
(c) the particulars regarding the other lands owned or held by him or if he is a member of a family; by such family; and
(d) such other particulars as may be prescribed.
(5) Where a cultivating tenant is entitled to the assignment of the right, title and interest in respect of only a portion of the holding held by him, he may indicate in the application under Sub-section (3) his choice of the portion to which the assignment shall relate.”
Balanoor Plantations Case – Based on the PrincipleLT 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 fixityof 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:
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, deals with exemption on the ground of plantation, excess land issues etc., and determines the land to be surrendered.
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 assignment by purchase certificate (through LT) – within 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.”
The Legal Basis of Balanoor Plantations case
It is definite: 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.
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 needs be paid to the tenant [and no land-value be given for the entire area, under Sec. 112(5A)].
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 E
Persons acquired lands (before 2005 amendment in KLR Act) for consideration below 1 Hec. 61 Are 87 Sq.m. (4 acre) will be deemed to be tenants .
13
Fixity: “Every tenant, shall have fixity of tenure in respect of his holding.”
59
Deposit of purchase price and issue of certificate – to cultivating tenant.
72
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 tenanat entilted fixity under sec. 13 vest in govt. 72(4) – says: Landowner entitled to resume land shall apply within the time fixed. Otherwise vest in govt. Rule 5 of the Vesting & Assignment Rules provides – LT may suo moto – notwithstanding no application – assign to cultivating tenant. (See S.72C also).
72B
Cultivating-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.)
72E
Such 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).
72C
Provides for suo moto action by LT. (No time limit,)
72K
LT shall issue purchase certificate. It shall be conclusive proof of assignment.
74
Prohibition of future tenancies.
Chap. III 81
Exemption from ceiling and excess for Govt. lands, private forests, plantations, industrial or commercial undertaking etc. Proviso – There will be 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.
82
Ceiling area – 5/10 standard acres.
83
No 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.
84
Certain transfers – void.
85(1)
Surrender excess.
85(2)
Owners and Tenants (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). Effect of non-filing: See – Balanoor Plantations case – 2018(3) KLT 283. State of Kerala Vs. Varkey Mathew, AIR 1996 SC 1009
85(3)
Excess shall be surrendered.
85(5)
Land Board shall determine – extend to be surrendered
85(7)
Whereon a person fails to file statement under 85(2), LB shall intimate TLB – TLB shall determine land to be surrendered. 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.]
85A
File 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)
Section 81 — Exemptions
(1) The provisions of this Chapter shall not apply to — (a) lands owned or held by the Government of Kerala or the Government of any other State in India or the Government of India or a local authority [or the Cochin Port Trust] or any other authority which the Government may, in public interest, exempt, by notification in the Gazette, from the provisions of this Chapter: Provided that the exemptionunder this clause shall not apply to lands owned by the Government of Kerala and held by any person under lease whether current or time expired or otherwise. Explanation I. — “Lands owned by the Government of Kerala” shall, for the purposes of this clause, have the same meaning as “Government Lands” under Sub-section (1) of Section 2 of the Kerala Government Land Assignment Act, 1960; but lands escheated to the Government and held by tenants entitled to fixity of tenure under Section 13 shall not be deemed to be lands owned by the Government of Kerala. Explanation II. — Lands, the right, title and interest in respect of which have vested in the Government under Sub-section (9) of Section 66 or Section 72, shall not be deemed to be “lands owned by the Government of Kerala” for the purposes of this clause. Explanation III. — For the purposes of this clause, “other authority” shall include a corporation owned or controlled by the Government of Kerala or the Government of any other State in India or the Government of India. (b) lands taken under the management of the Court of Wards:
Provided that the exemption under this clause shall cease to apply at the end of three years from the commencement of this Act; (c) lands comprised in mills, factories or workshops and which are necessary for the use of such mills, factories or workshops; (d) private forests; (e) plantations; (f) [cashew estates — dry land principally cultivated with not less than 150 cashew trees per hectare]; (g) [other exempted categories — e.g., various commercial, institutional, religious and educational sites] …
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