Sec. 65B (Electronic Records) and Bhartiya Sakshya Adhiniyam, 2023

Taken From: Major Changes in the Evidence Act by Bhartiya Sakshya Adhiniyam

Jojy George Koduvath & Saji Koduvath, Advocate, Kottayam.

Section 65B, Indian Evidence ActSection 63, Bhartiya Sakshya Act
65B. Admissibility of electronic records – (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:–
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether–
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers,
all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, —
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,
and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section,
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; —
(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Explanation. — For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.		63. Admissibility of electronic records –
(1) Notwithstanding anything contained in this Adhiniyam, any information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media or semiconductor memory which is produced by a computer or any communication device or otherwise stored, recorded or copied in any electronic form (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:—
(a) the computer output containing the information was produced by the computer or communication device during the period over which the computer was used regularly to create, store or process information for the purposes of any activity regularly carried on over that period by the person having lawful control over the use of the computer or communication device;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer or communication device was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of creating, storing or processing information for the purposes of any activity regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by means of one or more computers or communication device, whether—
(a) in standalone mode; or
(b) on a computer system; or
(c) on a computer network; or
(d) on a computer resource enabling information-creation or providing information—processing and storage; or
(e) through an intermediary
 all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things shall be submitted along with the electronic record at each instance where it is being submitted for admission, namely:—
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer or a communication device referred to in clauses (a) to (e) of sub-section (3);
 (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief  of the person stating it in the certificate specified in the Schedule.
 (5) For the purposes of this section,—
(a) information shall be taken to be supplied to a computer or communication device if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) a computer output shall be taken to have been produced by a computer or communication device whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment or by other electronic means as referred to in clauses (a) to (e) of sub-section (3).

Abstract

The proposed Bhartiya Sakshya Act, 2023 introduces significant changes as regards ‘Electronic Evidence’. It updates Sec. 65B .

One of the key requirements of the new Act is the production of a ‘HASH’ certificate to prove the copy or print-out (computer output). It is seen as introduced with a view to avert tampering. But it appears that this requirement is harsh and unwanted.

What are the Major Changes made in Section? 65B IEA?

  • Now, under Sec. 65B of the Indian Evidence Act, copy or print-out of an electronic record can be proved only by producing the certificate provided under Sec. 65B(4).  
  • The proposed Bhartiya Sakshya Act, 2023, allows to prove the copy or print-out of an electronic record invoking other provisions of the Evidence Act (such as Sec. 63 and 65 IEA = Sec. 58 and 60 BSA) that permits to prove a secondary evidence (copy) of a document.
  • If an electronic record is sought to be proved invoking Sec. 63, Bhartiya Sakshya Act, 2023, “the certificate specified in the Schedule” is necessary. It is to be produced “along with the electronic record”.

Other Major Changes in this regard, in the New Act

First – The existing Evidence Act contains three explanations alone while escribing ‘Primary Evidence’ in Sec. 62.

Explanation 4, 5, 6 and 7 are added in the new Sakshya Act, in the Sec. 57. It reads as under:

  • “57. Primary evidence
  • Primary evidence means the document itself produced for the inspection of the Court.
  • Explanation 1.—Where a document is executed in several parts, each part is primary evidence of the document.
  • Explanation 2.—Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.
  • Explanation 3.—Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.
  • Explanation 4.—Where an electronic or digital record is created or stored, and such storage occurs simultaneously or sequentially in multiple files, each such file is primary evidence.
  • Explanation 5.—Where an electronic or digital record is produced from proper custody, such electronic and digital record is primary evidence unless it is disputed.
  • Explanation 6.—Where a video recording is simultaneously stored in electronic form and transmitted or broadcast or transferred to another, each of the stored recordings is primary evidence.
  • Explanation 7.—Where an electronic or digital record is stored in multiple storage spaces in a computer resource, each such automated storage, including temporary files, is primary evidence.”

From Explanations 4, 5, 6 and 7 it is clear that the scope of primary evidence is widened.

Second – A new provision is made – Sec. 61, which stipulates that –

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

The words “nothing in this Adhiniyam shall apply to deny the admissibility” in Sec. 61 are also made to expand the scope of admissibility of Electronic Evidence. The non-obstante clause in Sec. 65B is capable of giving two (divergent) interpretations –

  • First, Sec. 65B is an enabling provision to admit ‘computer output’ (derived from original)  as ‘document’ itself, in a simpler manner, by the deeming provision (“shall be deemed to be also a document”) ‘notwithstanding anything contained in the Act’. That is, computer output (copy) can also be proved by any other manner provided for proving any other document.
  • Second, a computer output (copy) can be proved only under the provisions of Sec. 65 B, ‘notwithstanding anything contained in the Act’. (It is the view taken by the Supreme Court in Arjun Panditrao v. Kailash Kushanrao, (2020)3 SCC 216.)

The words in the new Section 61, “Nothing in this Adhiniyam shall apply to deny the admissibility” has great significance. It is an emphatic delineation of the legislative intent on the following two matters –

  • 1. Sec. 65B is an enabling provision to admit ‘computer output’ (copy)  as a ‘document’ itself, in a simpler manner, by the deeming provision ‘notwithstanding anything contained in the Act’, as stated above.
  • 2. The interpretation given to Sec. 65B that a ‘computer output (copy) can be proved only’ under the provisions of Sec. 65 B,  ‘notwithstanding anything contained in the Act’, is not accepted by the legislature (that is the view taken by the Supreme Court in Arjun Panditrao v. Kailash Kushanrao, (2020)3 SCC 216.)
    • The the words, “subject to section 63” in Section 61, only directs to undergo the requirements in Sec. 65B (that is production of Sec. 65B(4) certificate, and HASH certificate) to prove the Computer output, in case (or, only when) one opts to prove it under the provisions of Sec. 65B.

Note: If this interpretation is not given, Section 61 stands meaningless.

Methods to Prove Secondary Evidence (copy) in the BSA

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

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

The Form in the Schedule directs to state as under:

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

A Discordant Notes

  • Hash Value Certificate: Mandatory or Merely Illustrative?
  • What is the purpose of ascertaining Hash Value of the Original?

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

Read Blog: Hash Value Certificate – Mandatory or Directory?

It is not clear –

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

The lack of explicit mention in the section text also creates uncertainty about whether hash values are mandatory or merely illustrative of best practices.

END NOTE – 1

What is HASH value (in simplest terms)?

  • HASH value is a string of unique characters, usually represented by letters and numbers.
  • It is a scientific method (algorithm) commonly used to find out tampering, if any, on an electronic record.
  • HASH value of every electronic record can be fixed.
  • Any modification or change made thereto – no matter how small, even addition of a comma (,) – will result in a completely different hash value.

END NOTE – 2

Sections 58 to 63 of BSA read as under:

58. Secondary evidence – Secondary evidence includes—

  • .(i) certified copies given under the provisions hereinafter contained;
  • (ii) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;
  • (iii) copies made from or compared with the original
  • (iv) counterparts of documents as against the parties who did not execute them;
  • (v) oral accounts of the contents of a document given by some person who has himself seen it;
  • (vi) oral admissions;
  • (vii) written admissions;
  • (viii) evidence of a person who has examined a document, the original of which consists of numerous accounts or other documents which cannot conveniently be examined in Court, and who is skilled in the examination of such documents.
  • Illustrations.
    • .(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.
    • (b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.
    • (c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.
    • (d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine-copy of the original, is secondary evidence of the original.

59. Proof of documents by primary evidence – Documents shall be proved by primary evidence except in the cases hereinafter mentioned

60. Cases in which secondary evidence relating to documents maybe given.

Secondary evidence may be given of the existence, condition, or contents of a document in the following cases, namely:–

  • .(a) when the original is shown or appears to be in the possession or power–
  • .(i) of the person against whom the document is sought to be proved; or
  • (ii) of any person out of reach of, or not subject to, the process of the Court; or
  • (iii) of any person legally bound to produce it,
  • and when, after the notice mentioned in section 64 such person does not produce it;
  • (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
  • (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
  • (d) when the original is of such a nature as not to be easily movable;
  • (e) when the original is a public document within the meaning of section 74;
  • (f) when the original is a document of which a certified copy is permitted by this Adhiniyam, or by any other law in force in India to be given in evidence;
  • (g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.

Explanation.–For the purposes of–

  • clauses (a), (c) and (d), any secondary evidence of the contents of the document is admissible;
  • clause (b), the written admission is admissible;
  • clause (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible;

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

62. Special provisions as to evidence relating to electronic record – The contents of electronic records may be proved in accordance with the provisions of section 63.

63. Admissibility of electronic records –

  • .(1) Notwithstanding anything contained in this Adhiniyam, any information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media or semiconductor memory which is produced by a computer or any communication device or otherwise stored, recorded or copied in any electronic form (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.
  • (2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:—
    • .(a) the computer output containing the information was produced by the computer or communication device during the period over which the computer or Communication device was used regularly to create, store or process information for the purposes of any activity regularly carried on over that period by the person having lawful control over the use of the computer or communication device;
    • (b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer or Communication device in the ordinary course of the said activities;
    • (c) throughout the material part of the said period, the computer or communication device was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
    • (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer or Communication device in the ordinary course of the said activities.
  • (3) Where over any period, the function of creating, storing or processing information for the purposes of any activity regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by means of one or more computers or communication device, whether–
    • .(a) in standalone mode; or
    • (b) on a computer system; or
    • (c) on a computer network; or
    • (d) on a computer resource enabling information creation or providing information processing and storage; or
    • (e) through an intermediary,
  • all the computers or communication devices used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer or communication device; and references in this section to a computer or communication device shall be construed accordingly.
  • (4) In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things shall be submitted along with the electronic record at each instance where it is being submitted for admission, namely:–
    • .(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
    • (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer or a communication device referred to in clauses (a) to (e) of sub-section (3);
    • (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,
    • and purporting to be signed by a person in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) and an expert shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it in the certificate specified in the Schedule.
  • (5) For the purposes of this section,—
    • .(a) information shall be taken to be supplied to a computer or communication device if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
    • (b) a computer output shall be taken to have been produced by a computer or communication device whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment or by other electronic means as referred to in clauses (a) to (e) of sub-section (3).

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Tenant at Sufferance in Indian Law

Saji Koduvath, Advocate, Kottayam.

Key Takeaways

  • 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 juridical possession; 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.

Also Read: SUIT on TITLE: Landlord can Recover Property on GENERAL TITLE (though Tenancy Not Proved) if Defendant Falsely Claimed Independent Title

Bhupal Prasad v. State of Andhra Pradesh

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).

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Evidence Act – General

Sec. 65B

Law on Documents

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Contract Act

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Book No. 2: A Handbook on Constitutional Issues

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Previous Owner (of Defendant) is Not a Necessary Party in a Recovery Suit

Taken From: Who are Necessary Parties, Proper Parties and Pro Forma Parties in Suits

Saji Koduvath, Advocate, Kottayam

Order 1 rule 10 CPC reads as under:

Rule 10. Suit in name of wrong plaintiff.

  • .(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).

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Adverse Possession

Principles and Procedure

Admission, Relevancy and Proof

Land Laws/ Transfer of Property Act

Evidence Act – General

Sec. 65B

Law on Documents

Interpretation

Contract Act

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Book No. 2: A Handbook on Constitutional Issues

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Is it Mandatory to Lift the Attachment on Dismissal of the Suit? Will the Attachment Orders Get Revived on Restoration of Suit?

Saji Koduvath, Advocate, Kottayam.

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.

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Adverse Possession

Principles and Procedure

Admission, Relevancy and Proof

Land Laws/ Transfer of Property Act

Evidence Act – General

Sec. 65B

Law on Documents

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Will

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Divorce/Marriage

Negotiable Instruments Act

Book No. 2: A Handbook on Constitutional Issues

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

Book No. 4: Common Law of TRUSTS in India

Will Interlocutory Orders Get Revived on Restoration of Suit?

Saji Koduvath, Advocate, Kottayam.

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, unless there 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.

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Adverse Possession

Principles and Procedure

Admission, Relevancy and Proof

Land Laws/ Transfer of Property Act

Evidence Act – General

Sec. 65B

Law on Documents

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Will

Arbitration

Divorce/Marriage

Negotiable Instruments Act

Book No. 2: A Handbook on Constitutional Issues

Religious issues

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

Book No. 4: Common Law of TRUSTS in India

Freehold Property in Law

Saji Koduvath, Advocate, Kottayam

Abstract

  • In land-law, FREEHOLD means ‘Free from Hold’ of anyone else; or in complete ownership.
  • It doesn’t mean that such lands are free from payment of tax.
  • In common law countries, ‘freehold‘ is used to contrast leasehold.
  • A ‘janmam’ right is the freehold interest in 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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‘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 interest in a property situated in Kerala.
  • Moor in his “Malabar Law and Custom” describes it as a hereditary proprietorship. A janmam interest may, therefore, be described as  “proprietary interest of a landlord in lands” and such a janmam right is described as “estate” in the Constitution. Substituting “janmam right” in place of “estate” in cl. 2 (b), the “rights” in Art. 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 with Sircar (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 with Sircar (not solely with holders of 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 not acquire absolute proprietary rights over 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 not acquire absolute proprietary rights over the Concession Area or the trees and timber in the said area. It was held that the Poonjar Chief had only conveyed heritable and transferable possessory rights over the Concession area to the grantee. It was also held that absolute rights over the trees and timber in the Concession Area did not pass to the grantee and it had only the right to use and remove timber subject to the restrictions imposed in the deeds of conveyance/ratification.”

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 the freehold interest 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 Jenmy or 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 freehold on 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 proprietory title‘.
  • 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’.”
  • (Quoted in: Travancore Devaswom Board v. Uzhithiraru Uzhithiraru, 1957 KLT 315)

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”.

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What is Patta or Pattayam?

Saji Koduvath, Advocate, Kottayam

Part – I

Patta manifests two ideas:

  • First, Title-Certificate issued by the Government
  • 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 Act is 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. A ryotwari patta 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 Government that 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 of the 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-Deed u/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 Aside Patta; 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 grant of 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) assignment includes a transfer of land by way of lease and a grant of 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
  • KS Shanthilal Vs. Sarojini Ammal, 1996-1 Mad LJ 562, (Ryotwari Patta)

Lessee is Referred to as Pattadhar

  • 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,
  • Eravi Pillai Krishna Pillai v. Maluk Mohamed Sahul Hameed, 1953 KLT 802.

Pokkuvaravu Rules, 1921 and Settlement Pattas

The Pokkuvaravu Rules, dated 6th March 1921, provided as follows:

  • “6. The Settlement Department having issued pattas at the Settlement to all holders of land liable 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):

  1. It is the duty of the Tahsildar to determine the person in whose name the transfer of registry shall be made.
  2. It is the immediate concern of the Land Revenue Department to keep the thandaper accounts (Chitta) up to date.
  3. 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.
  4. No case shall be rejected solely for the default of appearance of the parties.
  5. Only a summary enquiry is to be made by the Revenue authorities.
  6. The summary enquiry and the decision thereon is only an arrangement for fiscal purposes.
  7. 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.
  8. The question of legal rights is always subject to adjudication by civil courts.
  9. 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)

No Rule Against Perpetuity in Public Law;

The Government cannot assign land on their whims and fancies

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

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

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

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

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

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

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

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

Subsequent Assignees of Pattaadar Cannot Claim More Rights

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

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

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)

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

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

Book No. 4: Common Law of TRUSTS in India

Suit on Title: Burden on Plaintiff to Prove Title; Weakness of Defence Will Not Entitle a Decree

Saji Koduvath, Advocate, Kottayam.

Abstract

  • 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 probability it 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).
  • 4. Title will not pass by a mere admission.
  • 5. Title will not lose by an admission.
  • 6. The title is to be established by producing the title deed.

Court is Entitled to Consider the Title set 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.”

Title be Established by Title Deeds

A party to the suit has to establish the title to a property by producing its title deed. In Title declaration suits, survey plan & revenue records are less significant.

  • Elambilan Nani Amma v. Mulavana Antony (K. Babu, J.), 2023-7 KHC 418;
  • Laxkshmi B. v. Suku (A. Badharudeen, J.), 2024-1 KerHC 380.

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:

  • Kishan Chand v. Gautam Gaur Hitkarak Sabha, Kota (Vikram Nath, Sandeep Mehta, JJ.) 2026 INSC 448 (Even assuming that the defendant has failed to conclusively establish his title, the same would not enure to the benefit of the plaintiffs.)
  • 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),
  • Brahmanand Puri v. Nek Puri, AIR 1965 SC 1506.
  • Nagar Palika, Jind v. Jagat Singh, Advocate, (1995) 3 SCC 426.
  • Sayed Muhammed Mashur Kunhi Koya Thangal v. Badagara Jumayath Palli Dharas Committee, 2004-7 SCC 708.
  • Yamuna Nagar Improvement Trust v. Khairati Lal, (2005) 10 SCC 30.
  • Anil. Rishi vs. Gurbaksh Singh, (2006) 5 SCC 558; City Municipal. Council, Bhalki Vs. Gurappa, (2016) 2 SCC 200),
  • Rangammal v. Kuppuswamy, (2011) 12 SCC 220
  • Union of India v. Vasavi Co-operative Housing Society Limited, (2014) 2 SCC 269,
  • Jagdish Prasad Patel v. Shivnath, (2019) 6 SCC 82.
  • Smriti Debbarma v. Prabha Ranjan Debbarma, 2023 SCC OnLine SC 9
  • 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 probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff’s title.
  • … A high degree of preponderance of probability 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 v. Gurbaksh Singh, (2006) 5 SCC 558; City Municipal. Council, Bhalki Vs. Gurappa, (2016) 2 SCC 200).

Doctrine, High Degree of Probability in Religious-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 make High 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 probability and 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 the lease of 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 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.”

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
  • Sarojini v. Santha Trading Co., 1969 KHC 94 : 1969 KLT 412 : 1968 KLJ 475.

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).”

Suit on Possessory Remedy, Other side Admits Possession; Should Will be Proved

No.

Sec. 17 (Admission) and Sec. 58 (Facts admitted need not be proved) are attracted. Division Bench decision in Boomathi v. Murugesan, 2023-2 Mad LJ 684 considered – when a Will is ‘categorically’ and ‘clearly’ admitted by the other side, should it be proved by calling a witness of the Will under Section 68 of the Evidence Act. The Madras High Court came to the conclusion that Section 68 will not be attracted where the Will is “admitted” by the other side.

Do General Provisions of S. 58 give way to Special Provisions of S. 68

Three views are possible:

  • First: Requirement of calling at lest one witness to prove those documents that requires attestation, in spite of express admission from the opposite party as to the execution of the document in the written statement.
  • Second: If the Will is (even impliedly) admitted, Sec. 68 need not be invoked.
  • Third: If only the Will is expressly or categorically admitted, then only there will be alleviation of burden laid down in Sec. 68.

In the light of the Apex Court decision in Ramesh Verma v. Rajesh Saxena, 2017-1 SCC 257, (that the position – as to proof of documents requires attestation – remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement) it appears that the second view stated above (taken in Thayyullathil Kunhikannan v. Thayyullathil Kalliani, AIR 1990 Ker 226) is not sustainable.

But, the proposition of law in the third view above, applied in Boomathi v. Murugesan (supra), and other decisions (that the position – as to proof of documents requires attestation – will be different if the Will is “categorically admitted“), sounds good.

Dominant Owner  Cannot Dispute The Title Of The Servient Owner

It is trite law that the dominant owner  cannot dispute the title of the servient owner (Reghuprasad v. M.  Raghunathan, AIR 2020 Ker 16). 

In Omana v. Reji Kurian, AIR 2022 Ker 91, it is held (K. Babu, J.) as under:

  • “19. Yet another aspect that requires consideration is that the pleadings of the defendants in the written statement go in the line, denying the title of the plaintiff over the ‘B’ schedule way. One of the fundamental ingredients in a claim of easement is the admission of the title of the servient owner by the dominant owner. On this ground alone, the claim of the defendants over plaint ‘B’ schedule property by way of easement by prescription must fail.”

Proof of Title – Preponderance of Probability Sufficient

In Kshetrimayum Ibohal Singh v. Ibemhal Devi, 2012-112 AIC 769; 2011-3 GauLD 803; 2011-6 GauLJ 629; 2012-6 GauLR 680; 2011 5 GauLT 680; 2012-4 NEJ 387, it is held as under: 525;

  • “In a civil suit, the plaintiff cannot be expected to prove 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.” (relied on: R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548: (2003) 8 SCC 752.)

In Kshetrimayum Ibohal Singh, the Gauhati High Court relied on J. Yashoda v. K. Shobha Rani: (2007) 6 SCC 730, which held that the rule which is most universal, namely, that best evidence the nature of the case will admit shall be produced only means that, so long as the higher or su­perior evidence is within the possession of a person or may be reached by a person, that person shall give no inferior proof in relation toil.

R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami: Onus Shifts

In a suit for recovery on title, where both plaintiff and defendant claim title, if plaintiff has been able to create a high degree of probability, he will Win, if the defendant fails to discharge his onus. In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548: (2003) 8 SCC 752, the law is stated in the following terms :

  • “29. In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored to him. However, as held in A. Raghavamma v. A. Chenchamma, AIR 1964 SC 136, there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff’s title.”

Quoted in:

  • Anil. Rishi v. Gurbaksh Singh, (2006) 5 SCC 558;
  • Sebastiao Luis Fernandes v K. V. P. Shastri, 2013-15 SCC 161;
  • City Municipal. Council, Bhalki v. Gurappa, (2016) 2 SCC 200)

Referred to in:

  • Mahakali Sujatha v. Branch Manager, Future Generali India Life Insurance Company Limited, AIR 2024 SC 2019; 22024-8 SCC 712
  • Smriti Debbarma v. Prabha Ranjan Debbarma, AIR 2023 SC 379; 2023-1 SCR 355
  • Mohd.  Abdullah Azam Khan Vs. Nawab Kazim Ali Khan, 2022-11 JT 214; 2022-16 Scale 689

In Smriti Debbarma v. Prabha Ranjan Debbarma, AIR 2023 SC 379; 2023-1 SCR 355,it is held bu our Apex Court as under:

  • “31. The burden of proof
    • [See Paragraph 19 in Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558 where the expression ‘burden of proof’ is used in three ways, namely, (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter-evidence; and (iii) an indiscriminate use in which it may mean either, or both of the others.]
  • to establish a title in the present case lies upon the plaintiff as this burden lies on the party who asserts the existence of a particular state of things on the basis of which she claims relief [See Addagada Raghavamma and Another v. Addagada Chenchamma and Another, AIR 1964 SC 136.] This is mandated in terms of Sec. 101
    • [Sec. 101: Burden of Proof.- Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.]
  • of the Evidence Act, which states that burden on proving the fact rests with party who substantially asserts in the affirmative and not on the party which is denying it. This rule may not be universal and has exceptions,[See Ss. 103, 104 and 105 of the Evidence Act.] but in the factual background of the present case, the general principle is applicable. In terms of Sec. 102
    • [Sec. 102: On whom the burden of proof lies.- The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.]
  • of the Evidence Act, if both parties fail to adduce evidence, the suit must fail.[See Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558.] Onus of proof, no doubt shifts and the shifting is a continuous process in the evaluation of evidence, but this happens when in a suit for title and possession, the plaintiff has been able to create a high degree of probability to shift the onus on the defendant. In the absence of such evidence, the burden of proof lies on the plaintiff and can be discharged only when he is able to prove title.[See R.V.E. Venkatachala Gounder  v. Arulmigu Viswesaraswami V.P. Temple and Another, (2003) 8 SCC 752.] The weakness of the defence cannot be a justification to decree the suit. [See Union of India and Others v. Vasavi Cooperative Housing Society Limited and Others, (2014) 2 SCC 269.] The plaintiff could have succeeded in respect of the Schedule ‘A’ property if she had discharged the burden to prove the title to the Schedule ‘A’ property which squarely falls on her. This would be the true effect of Ss. 101 and 102 of the Evidence Act. [See Sebastiao Luis Fernandes (DEAD) Through LRs. And Others v. K.V.P. Shastri (DEAD) Through LRs. And Others, (2013) 15 SCC 161.]
  • Therefore, it follows that the plaintiff should have satisfied and discharged the burden under the provisions of the Evidence Act, failing which the suit would be liable to be dismissed.”

When evidence has been led by both sides, “onus” is out of place

  • “Where, however, evidence has been led by the contesting parties, abstract considerations of onus are out of place and truth or otherwise must always be adjudged on the evidence led by the parties [Kalwa Devadattam vs. Union, AIR 1964 SC 880]”

Section 116 of the Evidence Act

Section 116 of the Indian Evidence Act reads as under:

  • “Estoppel of tenant; and of licensee of person in possession. No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be heard to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property.”

In Sri Ram Pasricha v. Jagannath, AIR 1976 SC 2335: 1976 4 SCC 838, it is held as under:

  • “The tenant in such a suit is estopped from questioning the title of the landlord under section 116 of the Evidence Act. The tenant cannot deny that the landlord had title to the premises at the commencement of the tenancy. Under the general law, in a suit between landlord and tenant the question of title to the leased property is irrelevant”.

The principle behind the proposition, which asserts that the owner/landlord has the right to recover the property based on his title if the defendant-tenant raises claim of title, is founded upon the notion that a tenant is precluded from disputing the title of the landlord or owner, as laid down in Section 116 of the Evidence Act.

Bar u/S. 116: Not Extend To Challenge – Landlord Lost Tile After ‘Commencement Of The Tenancy’  

D. Satyanarayana v. P. Jagadish (A.P. Sen, B.C. Ray, JJ.), AIR 1987 SC2192, 1987 (4) SCC 424, is a leading decision on this matter.

  • (Note: ‘D. Satyanarayana v. P. Jagadish’ is said to be an exception to the general rule. See: Masonic Club v. Jamna Lodge, 2014-207 DLT 62; 2014-140 DRJ 396; L. Rs.  of Arjun Lal v. L. Rs.  of Kundan Lal, 2013 AIR(CC) 2193; 201260 RCR(Civ) 769 (Raj); M. L.  Dawar v. M. L.  Seth, 2011-125 DRJ 564 (Del); Manoharlal v. Baijnath Jalan, 2005-4 Jhk CR 58; 2005-3 Jhk LJR 474.)

The following are the facts (of D. Satyanarayana v. P. Jagadish) in a nutshell.

The owner had leased the demised premises to a tenant. The (original) tenant sub-leased it to the respondent. The head-lessor (owner) served a notice of eviction on the sub-tenant, alleging that there was unlawful subletting by the lessee.  The sub-tenant atoned in favour of the original lessor and started paying monthly rent directly to the superior landlord (owner).

In this decision, it is held that the estoppel or bar under Sec. 116 of the Evidence Act operates only –

  • (i)  during the continuance of the tenancy,
  • (ii) to the challenge of the title of the landlord at the beginning of the tenancy.

In this decision, it is held as under:

  • “3. …Section 116 of the Evidence Act provides that no tenant of immovable property shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property. Possession and permission being established, estoppel would bind the tenant during the continuance of the tenancy and until he surrenders his possession. The words ‘during the continuance of the tenancy’ have been interpreted to mean during the continuance of the possession that was received under the tenancy in question, and the Courts have repeatedly laid down that estoppel operates even after the termination of the tenancy so that a tenant who had been let into possession, however, defective it may be, so long as he has not openly surrendered possession, cannot dispute the title of the landlord at the commencement of the tenancy…”
  • “4. The rule of estoppel embodied under Section 116 of the Evidence Act is that, a tenant who has been let into possession cannot deny his landlord’s title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord…”

It was further held that since (or, after) the date of tenancy, the title of landlord came to an end; for, the head-lessor (owner) served a notice of eviction on the sub-tenant, alleging that there was unlawful subletting by the lessee, and the sub-tenant atoned in favour of the original lessor. It was pointed out –

  • A tenant is not estopped from contending that the title of the lessor has “since come to an end” (or the landlord lost title after the commencement of the tenancy),

The Apex Court (in D. Satyanarayana v. P. Jagadish) quoted from Mangat Ram & Anr. v. Sardar Meharban Singh, AIR 1987 SC 1656,  (1987) 4 SCC 319, (A.P. Sen, V. Balakrishnan Eradi, JJ.) saying:

  • “Quite recently, this Court in Mangat Ram v. Sardar Meharban Singh, [1987] 1 Scale 964, to which one of us was a party, observed:
  • “The estoppel contemplated by s. 116 is restricted to the denial of title at the commencement of the tenancy and by implication it follows that a tenant is not estopped from contending that the title of the lessor has since come to an end.”
  • See also: Fida Hussain v. Fazal Hussain & Ors., AIR (1963) MP 232,
  • K.S.M. Guruswamy Nadar v. N.G. Ranganathan, AIR (1954) Mad. 402, 
  • S.A.A. Annamalai Chettiar v. Molaiyan & Ors., AIR (1970) Mad. 396 and
  • Chidambara Vinayagar Devasthanam v. Duraiswamy, ILR (1967) 1 Mad. 624.”

D. Satyanarayanana v. P. Jagdish Distinguished

In E. Parashuraman (v.  V. Doraiswamy,  AIR 2006 SC 376; 2006-1 SCC 658, it is stated as under:

  • “18. We have carefully examined the decisions of this Court in D. Satyanarayanana vs. P. Jagdish (supra) and A.V.G.P. Chettiar and Sons and others vs. T. Palanisamy Gounder : (2002) 5 SCC 337 and we are of the view that the principles laid down therein are not applicable to the facts of this case. The exception to the rule of estoppel embodied under Section 116 of the Evidence Act arises if it is shown that since the date of the tenancy of title of the landlord came to an end, or that he was evicted by a paramount title holder, or that even though there was no actual eviction or dispossession from the property, under a threat of eviction, the tenant had attorned to the paramount title holder and a new jural relationship of landlord and tenant had come into existence between them. Such a situation has not arisen in the instant case. In this case there is no finding that the title of the landlord has come to an end. The Corporation has not established its title in any proceeding in accordance with law. In these circumstances the exception to the rule of estoppel embodied in Section 116 of the Evidence Act cannot be pleaded by the appellants.”

Sec. 116 ceases to have applicability once the tenant has been evicted

In Vashu Deo v. Balkishan, 2002-1 SCR 171, it is held that Sec. 116 ceases to have applicability once the tenant has been evicted. (It stands incongruent to the view in D. Satyanarayana v. P. Jagadish where it was held – estoppel operates even after the termination.) It is said as under:

  • “6. …Section 116 of the Evidence Act, which codifies the common law rule of estoppel between landlord and tenant, provides that no tenant of immovable property or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had at the beginning of the tenancy, a title to such immovable property. The rule of estoppel so enacted has three main features :
    • .(i) the tenant is estopped from disputing the title of his landlord over the tenancy premises at the beginning of the tenancy;
    • (ii) such estoppel continues to operate so long as the tenancy continues and unless the tenant has surrendered possession to the landlord; and
    • (iii) Section 116 of the Evidence Act is not the whole law of estoppel between the landlord and tenant.
  • The principles emerging from Section 116 can be extended in their application and also suitably adapted to suit the requirement of an individual case… the rule of estoppel ceases to have applicability once the tenant has been evicted. His obligation to restore possession to his landlord is fulfilled either by actually fulfilling the obligation or by proving his landlord’s title having been extinguished by a paramount titleholder…”

Forfeiture of tenancy under Clause (g) of Section 111 of the TP Act

In Sheela v. Firm Prahlad Rai Prem Prakash (Ruma Pal, R.C. Lahoti, JJ.), AIR 2002 SC 1264; 2002-3 SCC 375 it is held as under:

  • “In our opinion, the denial or disclaimer to be relevant for the purpose of Section 12(1)(c) should take colour from Section 116 of the Evidence Act and Section 111(g) of the Transfer of Property Act. Section 116 of the Evidence Act embodies therein a rule of estoppel. No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property. This estoppel, so long as it binds the tenant, excludes the tenant from raising a plea disputing the title of his landlord at the commencement of the tenancy. It flows as a corollary therefrom that the proof of landlord-tenant relationship tantamounts during the continuance of tenancy to proof of ownership of landlord over the tenancy premises at the beginning of the tenancy so far as the tenant is concerned. It is significant to note that on the phraseology of Section 116 of the Evidence Act the rule of estoppel applies so long as the tenancy is not terminated and the rule estops the tenant from laying challenge to the ownership of the landlord at the commencement of the tenancy. But the rule of estoppel as incorporated in Section 116 is not exhaustive and it may be extended or suitably modified in its application to other situations as well, retaining the basic feature of the rule.
  • “Clause (g) of Section 111 of the Transfer of Property Act, insofar as relevant for our purpose, provides that a lease of immovable property determines by forfeiture in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself. This provision contemplates two fact – situations which entail the lessee having renounced his character as such and they are: (i) when the lessee sets up a title in a third person, or (ii) when he claims title in himself.
  • “In either case, the tenant has disputed and denied the title of his landlord because a title in third person or title in himself cannot co-exist with the title in the landlord.
  • 13. The law as to tenancy being determined by forfeiture by denial of the lessor s title or disclaimer of the tenancy has been adopted in India from the Law of England where it originated as a principle in consonance with Justice, equity and good conscience. On enactment of the Transfer of Property Act, 1882, the same was incorporated into clause (g) of Section 111. So just is the rule that it has been held applicable even in the areas where the Transfer of Property Act does not apply (See – Raja Mohammad Amir Ahmad Khan vs. Municipal Board of Sitapur and Anr. – AIR 1965 SC 1923). The principle of determination of tenancy by forfeiture consequent upon denial of the lessor s title may not be applicable where rent control legislation intervenes and such legislation while extending protection to tenants from eviction does not recognize such denial or disclaimer as a ground for termination of tenancy and eviction of tenant. However, in various rent control legislations such a ground is recognized and incorporated as a ground for eviction of tenant either expressly or impliedly by bringing it within the net of an act injurious to the interest of the landlord on account of its mischievous content to prejudice adversely and substantially the interest of the landlord.
  • “14. Denial of landlord’s title or disclaimer of tenancy, is it an act injurious to interest of landlord? How does this rule operate and what makes it offensive Evans & Smith state in the Law of Landlord and Tenant (Fourth Edition, 1993, at p.89) that it is an implied condition of every lease, fixed-term or periodic and formal or informal, that the tenant is not expressly or deny the landlord s title or prejudice it by any acts which are inconsistent with the existence of a tenancy. Disclaimer of the landlord’s title is analogous to repudiation of a contract. The rule is of feudal origin; the courts are not anxious to extend it, and so any breach of this condition must be clear and unambiguous. Hill & Redman in Law of Landlord and Tenant (Seventeenth Edition, para 382, at page 445-446) dealing with “Acts which prejudice lessor s title” state that there is implied in every lease a condition that the lessee shall not do anything that may prejudice the title of the lessor; and that if this is done the lessor may re-enter for breach of this implied condition. Thus, it is a cause of forfeiture if the lessee denies the title of the lessor by alleging that the title of the landlord is in himself or another; or if he assists a stranger to set up an adverse title or delivers the premises to him in order to enable him to set up a title. It is a question of fact, however, what intention underlies the words or the actions of a tenant, whether in fact he is definitely asserting a title adverse to the landlord or, as the case may be, intending to enable someone else to set up such a title. Thus, it is not sufficient that the lessee does not at once acknowledge the title of the landlord and a general traverse in the defence to an action for possession does no more than put the landlord to proof and does not assert that the title is in another. The essential characteristic of disclaimer by tenant as stated in Foa s General Law of Landlord and Tenant (Eight Edition, para 934, at p.589) is that it must amount to a renunciation by the tenant of his character of tenant, either by setting up a title in another, or by claiming title in himself. A mere renunciation of tenancy without more, though it may operate as a surrender, cannot amount to a disclaimer. The denial, though it need not be express and can be implied, must nevertheless be a clear denial and it must be clearly proved.”

‘Possession is Good Against All but the True Owner’ & Sec. 6 of the Sp. Relief Act

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

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

See: ‘Possessory Title’ in Indian Law

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Adverse Possession

Principles and Procedure

Admission, Relevancy and Proof

Land Laws/ Transfer of Property Act

Evidence Act – General

Sec. 65B

Law on Documents

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

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Negotiable Instruments Act

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Religious issues

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

Book No. 4: Common Law of TRUSTS in India

Presumption of Valid Marriage – If lived together for Long Spell

Saji Koduvath Advocate, Kottayam

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.”

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Civil Suits: Procedure & Principles

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Admission, Relevancy and Proof

Land Laws/ Transfer of Property Act

Evidence Act – General

Sec. 65B

Law on Documents

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Will

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Divorce/Marriage

Negotiable Instruments Act

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

Book No. 4: Common Law of TRUSTS in India

Admission Cannot Confer Title; Admission will not Lose Title, also.

Jojy George Koduvath

Abstract

  • Admission is the best evidence of a claim.
  • 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.
  • The title is to be established by producing the title deed.
  • Burden on plaintiff to Prove Title; Weakness of defence immaterial.

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 admission no 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.”

Title be Established by Title Deeds

A party to the suit has to establish the title to a property by producing its title deed. In Title declaration suits, survey plan & revenue records are less significant.

  • Elambilan Nani Amma v. Mulavana Antony (K. Babu, J.), 2023-7 KHC 418;
  • Laxkshmi B. v. Suku (A. Badharudeen, J.), 2024-1 KerHC 380.

Title is Not Proved by Revenue Entries

  • Vadiyala Prabhakar Rao v. The Government of Andhra Pradesh, 2026 INSC 450;
  • Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund, (2007) 13 SCC 565;
  • State of A.P. v. Star Bone Mill & Fertiliser Co., (2013) 9 SCC 319; 
  • Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186; 
  • Jitendra Singh v. State of MP, 2021 SCC OnLine SC 802.

Burden on plaintiff to Prove Title; Weakness of defence would not enable a decree –

  • though Court is also entitled to consider the rival title set up by the defendants.

It is a trite law that it is the plaintiff who has to prove his case by adducing evidence, in a suit for declaration of title, and weakness of the defendant’s case will not confer title to the plaintiff. In other words, the plaintiffs will be non-suited if they do not prove their title, even if a defendant fails to prove his title.

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.”

Ram Pratap v. Purshottam@Lala Ram, 2017-2 AD(Del) 205; 2017-3 CivCC 164; 2017-237 DLT 708, held as under:

  • “Inability of the respondent to prove his title, weakness, if any, in his defence, does not entitle the appellant/plaintiff to get a decree in his favour.”

In Riaz Fatma v. Director Department of Rehabilitation New Delhi, 1995-2 JCLR 233 (All), it is said as under:

  • “The failure of the petitioners to prove their title does not confer title on the respondents when they have been unable to prove their title, as pleaded by them.”

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),
  • Brahmanand Puri v. Nek Puri, AIR 1965 SC 1506.
  • Nagar Palika, Jind v. Jagat Singh, Advocate, (1995) 3 SCC 426.
  • Sayed Muhammed Mashur Kunhi Koya Thangal v. Badagara Jumayath Palli Dharas Committee, 2004-7 SCC 708.
  • Yamuna Nagar Improvement Trust v. Khairati Lal, (2005) 10 SCC 30.
  • Anil. Rishi vs. Gurbaksh Singh, (2006) 5 SCC 558; City Municipal. Council, Bhalki Vs. Gurappa, (2016) 2 SCC 200),
  • Rangammal v. Kuppuswamy, (2011) 12 SCC 220
  • Union of India v. Vasavi Co-operative Housing Society Limited, (2014) 2 SCC 269,
  • Jagdish Prasad Patel v. Shivnath, (2019) 6 SCC 82.
  • Smriti Debbarma v. Prabha Ranjan Debbarma, 2023 SCC OnLine SC 9
  • P.  Kishore Kumar v. Vittal K.  Patkar, 2024-1 CTC 547; 2023-4 CurCC(SC) 278) 

Doctrine, High Degree of Probability in Religious-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 probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff’s title.
  • 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 of probability 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
  • Sarojini v. Santha Trading Co., 1969 KHC 94 : 1969 KLT 412 : 1968 KLJ 475.

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 the lease of 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.”

Admission on Title and Possession in an Injunction Suit

In Ekadashia Sahu v. Harekrushna Sahu , 20 May 2024 (A.C. Behera, J.), 2024 Supreme(Ori) 4, held as under:

  • “The contesting defendants have admitted to the title and possession of the plaintiffs over the suit properties during the trial of the suit through the evidence of the defendant no.4 (D.W.1).
  • Because, the defendant no.4 (D.W.1) has deposed in his evidence by stating that,
  • ‘Jujesti (Plaintiff no.1) was possessing Bhogra lands, which were converted into rayati lands in his name and the Bhogra lands of plaintiff nos.2, 3 and 4 were also converted into rayati lands in their names. There had been complete partition between Sugri and his brothers and each party possessed his separate share. Holding No.2 belong to Kairu. Holding Nos.3 and 4 belong to Kairu and Markanda, whereas holding No.5 belong to Bhuban in the 3rd settlement and the parties had no interest in the holding of others and each party possessed his own share of lands allotted to him.’
  • On this aspect, the propositions of law has already been clarified by the Hon’ble Courts and the Apex Court in the ratio of the following decisions:-
  • (i) 2018(1)CLR-862 : Jyotiprava Das vrs. Nityananda Swain and others-Specific Relief Act, 1963-Section-38-Suit for permanent injunction when defendant refuted title of the plaintiff-Maintainability-When plaintiff’s title is not in dispute or under cloud, evidence of plaintiff about possession appears to be more reasonable than the evidence of defendants-Suit for permanent injunction simplicitor is maintainable.
  • (ii) 2021(1) CCC- 155(S.C.) : A. Subramanian and another vrs. R. Pannerselvam-Specific Relief Act, 1963-Sections 37 and 38-Suit for injunction-When the plaintiff has proved his right over property as well as possession over suit property, he is entitled for decree of injunction.
  • (iii) 2019(II) CLR-632 : Nityananda Pattnaik(Dead) through LRs and others vrs. Smt. Bisakha Dei-Specific Relief Act, 1963-Section 38-Suit for injunction without declaration of title-When the title of the plaintiff is not under a cloud of suspicion, simple suit for permanent injunction is maintainable.
  • (iv) 2022(2) CCC-131 (Karnakata) : Chennaiah @ Doddachennaiah Since Deceased By His Lrs. And Anr. vrs. Bylappa, Since Dead By Lrs. And Ors.-Specific Relief Act, 1963-Section-38-Suit for permanent injunction simplicitor-Its maintainability-Where a plaintiff is in lawful or peaceful possession of property and his possession is threatened, suit for injunction simplicitor would lie-Prayer for declaration would be necessary only if there is a cloud cast on the title of the plaintiff.
  • (v) 2022(4) CCC(S.C.)-158 : Sukhbiri Devi and others vrs. Union of India and others-Indian Evidence Act, 1872- Sections 17, 18 and 58-Admission-Admission made by a party in his pleading is admissible against him proprio vigore-Indian Evidence Act, 1872-Sections 17, 18 and 58-Statements by a party in a proceedings are admissions. Facts admitted need not be proved. (Paras- 16 and 17)
  • (vi) AIR 2012 S.C.-3320 : Ahmedsaheb (dead) by LRs. and others vrs. Sayed Ismail-Indian Evidence Act, 1872- Sections 17 and 18-An admission of a party in the proceedings either in the pleadings or oral is the best evidence and the same does not need any further corroboration.
  • (vii) 2009(2) Apex Court Judgments-673(S.C.): Bhuwan Singh vrs. M/s. Oriental Insurance Company Ltd.-Evidence Act, 1972.-Section 58.-Facts admitted need not be proved.
  • (viii) 2006(2) OLR-458, 2006(2) CLR-348: Tarini Kanta Giri vrs. Bhajananda Giri and others-Indian Evidence Act, 1872-Facts admitted by a party need not be proved. (Para-3)
  • (ix) III(2007) CLT-49(S.C.) : M. Venkataramana Hhebbar. vrs. M. Rajagopal Bebbar-Evidence-Facts admitted in terms of Section 58 Evidence Act, need not be proved.(Para-12)
  • (x) 2015(2) CCC-414 (A.P.): Parasagani Venkaiah and another vrs. Pandi Prasad and others-Evidence Act, 1872.- Sections 17, 18 and 58.-When facts admitted by respondents (defendants)-No need to prove same.
  • (xi) 2015(3) Civil Law Times-185 (Gauhati) : Dwaraka Prasad Agarwalla vrs. Legal Heirs of Nil Kamal Bezba Ruah and others-Indian Evidence Act, 1872- (para-21)-An admission of facts is best evidence, that can be gainfully pressed into service by opposite side.
  • (xii) AIR 1966 Orissa-98 : Purna Chandra Das vrs. Chandramani Dibya and others-A party would be bound on its admission.
  • (xiii) 48(1979) CLT-Notes-105 : Sridhar Kantha vrs. Sarojini Devi and others-(A.H. O. No.73, 1975-Decided on 23rd July, 1979-[R.N. Misra & P.K. Mohanty, JJ.)- Judgment delivered by R.N. Misra, J.). Evidence Act, 1872-Section-18-Admission-It is a good piece of evidence against the person made it-That party would be bound by its admission.
  • (xiv) 2004(1) MPLJ-225 : Awadh Bihari Asati and others vrs. Shyam Bihari Asati and others-Indian Evidence Act, 1872-Sections 17 and 18-Admissions made by a party is a best evidence, on which, other party can rely upon.
  • (xv) 2023(1) CCC (Kolkota)-99 : Bhargav Chatterjee and another vrs. Infinity and Associates and another-Admission of a party in proceeding is the best evidence and same does not need any further corroboration..”

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Adverse Possession

Principles and Procedure

Admission, Relevancy and Proof

Land Laws/ Transfer of Property Act

Evidence Act – General

Sec. 65B

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Negotiable Instruments Act

Book No. 2: A Handbook on Constitutional Issues

Religious issues

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

Book No. 4: Common Law of TRUSTS in India