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.”

Plaintiff Seeking Declaration of Title Must Establish His Own Case

Our Apex Court expressed it in Venkatesha v. K.M. Venkatamuniyappa, 2026 INSC 705, as under:

• “Even as the very preliminary step, the plaintiff’s title over Sy. No.162 is nebulous. A plaintiff seeking declaration of title must succeed on the strength of his own case and not on the perceived weakness of the defence. It is trite that title cannot rest on surmises or probabilities. The burden squarely rested on the plaintiff to establish that the property conveyed under Sale Deeds I, II and III, though described throughout as Sy. No.1/4, was in reality Sy. No.162. Such burden remained undischarged.”

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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Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

• Can an ‘Ex-parte’ Defendant Cross Examine Plaintiff’s Witness?
• Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act
• Civil Rights and Jurisdiction of Civil Courts
• Res Judicata and Constructive Res Judicata
• Order II, Rule 2 CPC – Not to Vex Defendants Twice
• Pleadings Should be Specific; Why?
• Pleadings in Defamation Suits
• UNDUE INFLUENCE and PLEADINGS thereof in Indian Law
• PLEADINGS IN ELECTION MATTERS
• Declaration and Injunction
• Law on Summons to Defendants and Witnesses
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Sec. 91 CPC and Suits Against Wrongful Acts
• Remedies Under Sec. 92 CPC
• Mandatory Injunction – Law and Principles
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Interrogatories: When Court Allows, When Rejects?
• Decree in OI R8 CPC-Suit & Eo-Nomine Parties
• Pecuniary & Subject-Matter Jurisdiction of Civil Courts
• Transfer of Property with Conditions & Contingent Interests
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Doctrine of Substantial Representation in a Suit by or against an Association
• Who are Necessary Parties, Proper Parties and Pro Forma Parties in Suits
• What is Partnership, in Law? How to Sue a Firm?
• ‘Legal Representatives’, Not ‘Legal Heirs’ to be Impleaded on Death of Plaintiff/Defendant
• Powers and Duties of Commissioners to Make Local Investigations, Under CPC
• Burden of Proof – Initial Burden and Shifting Onus
• Is it Mandatory to Set Aside the Commission Report – Where a Second Commissioner is Appointed?
• Can a Commission be Appointed to Find Out the Physical Possession of a Property?
• Rules on Burden of proof and Adverse Inference
• Pendente Lite Transferee Cannot Resist or Obstruct Execution of a Decree
• Family Settlement or Family Arrangement in Law
• ‘Possessory Title’ in Indian Law
• Will Findings of a Civil Court Outweigh Findings of a Criminal Court?
• Waiver and Promissory Estoppel

Power of attorney

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

Title, ownership and Possession

• Section 27, Limitation Act Gives-Rise to a Substantive Right so as to Seek Declaration and Recovery
• Sale Deeds Without Consideration – Void
• Recovery of Possession Based on Title and on Earlier Possession
• Title and Ownership in Indian Law
• Admission by itself Cannot Confer Title
• Does ‘Abandonment’ Give rise to a Recognised Right in Indian Law?
• POSSESSION is a Substantive Right in Indian Law
• 22nd Law Commission  Report on ‘Law on Adverse Possession’
• Government of Kerala v. Joseph – Law on Adverse Possession Against Government
• How to Plead Adverse Possession? Adverse Possession: An Evolving Concept
• Adverse Possession: Burden to Plead Sabotaged
• Does ‘Abandonment’ Give rise to a Recognised Right in Indian Law?
• When ‘Possession Follows Title’; ‘Title Follows Possession’?
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• ‘Mutation’ by Revenue Authorities & Survey will not Confer ‘Title’
• Preemption is a Very Weak Right; For, Property Right is a Constitutional & Human Right
• Transfer of Property with Conditions & Contingent Interests
• Family Settlement or Family Arrangement in Law
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• ‘Possessory Title’ in Indian Law
• Kesar Bai v. Genda Lal – Does Something Remain Untold?
• Grant in Law

Adverse Possession

• How to Plead Adverse Possession? Adverse Possession: An Evolving Concept
• Adverse Possession: Burden to Plead Sabotaged
• Does ‘Abandonment’ Give rise to a Recognised Right in Indian Law?
• When ‘Possession Follows Title’; ‘Title Follows Possession’?
• Government of Kerala v. Joseph – Law on Adverse Possession Against Government
• ‘Possessory Title’ in Indian Law
• Admission by itself Cannot Confer Title
• Ouster and Dispossession in Adverse Possession

Principles and Procedure

• Doctrines on Ultra Vires, Rule of Law, Judicial Review, Nullification of Mandamus, and Removing the BASIS of the Judgment
• Can an ‘Ex-parte’ Defendant Cross Examine Plaintiff’s Witness?
• Will – Probate and Letters of Administration
• Appreciation of Evidence by Court
• Effect of Not Cross-Examining a Witness & Effect of Not Facing Complete Cross-Examination by the Witness
• Suggestions & Admissions by Counsel, in Cross Examination to Witnesses
• Admission by itself Cannot Confer Title
• Best Evidence Rule in Indian Law
• Declaration and Injunction
• Pleadings Should be Specific; Why?
• Does Alternate Remedy Bar Civil Suits and Writ Petitions?
• Void, Voidable, Ab Initio Void, and Sham Transactions
• Can Courts Award Interest on Equitable Grounds?
• Natural Justice – Not an Unruly Horse
• ‘Sound-mind’ and ‘Unsound-Mind’
• Prescriptive Rights – Inchoate until the Title thereof is Upheld by a Competent Court
• Can a Party to Suit Examine Opposite Party, as of Right?
• Forfeiture of Earnest Money and Reasonable Compensation
• Doctrine of ‘Right to be Forgotten’ in Indian Law
• Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act

Admission, Relevancy and Proof

• Relevancy, Admissibility and Proof of Documents
• Admission of Documents in Evidence on ‘Admission’
• Admission by itself Cannot Confer Title
• Proof and Truth of Documents
• Proof of Documents & Objections To Admissibility – How & When?
• Burden of Proof – Initial Burden and Shifting Onus
• Appreciation of Evidence by Court
• Production, Admissibility & Proof Of Documents
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Marking Documents Without Objection – Do Contents Proved
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
• Oral Evidence on Contents of Document, Irrelevant
• Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act

Land Laws/ Transfer of Property Act

• Does ‘Pandaravaka Pattom’ in Kerala Denote Full-Ownership?
• Transfer of Property with Conditions & Contingent Interests
• Vested Remainder and Contingent Remainder
• Vested interest and Contingent Interest
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• Land Acquired Cannot be Returned – Even if it is Not Used for the Purpose Acquired
• ‘Mutation’ by Revenue Authorities & Survey will not Confer ‘Title’
• FERA, 1973 And Transfer of Immovable Property by a Foreigner
• Marumakkathayam – A System of Law and Way of Life Prevailed in Kerala
• Relevant provisions of Kerala Land Reforms Act in a Nutshell
• Land Tenures, and History of Land Derivation, in Kerala
• ‘Janmam’ Right is FREEHOLD Interest and ‘Estate’ in Constitution – By Royal Proclamation of 1899, The Travancore Sircar became Janmi of Poonjar Raja’s Land
• Government is the OWNER of (Leasehold) Plantation Lands in Kerala.
• Sale Deeds Without Consideration – Void
• Law on Acquisition of Private Plantation Land in Kerala
• Law on SUCCESSION CERTIFICATE and LEGAL HEIRSHIP CERTIFICATE
• Grant in Law

Evidence Act – General

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

Sec. 65B

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

Law on Documents

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

Interpretation

• Interpretation of Statutes – Literal Rule, Mischief Rule and Golden Rule
• Interpretation of Documents – Literal Rule, Mischief Rule and Golden Rule
• Interpretation of Wills
• Appreciation of Evidence by Court

Contract Act

• ‘Sound-mind’ and ‘Unsound-Mind’ in Indian Civil Laws
• Forfeiture of Earnest Money and Reasonable Compensation
• Who has to fix Damages in Tort and Contract?
• UNDUE INFLUENCE and PLEADINGS thereof in Indian Law
• Can an Unregistered Sale Agreement be Used for Specific Performance

Law on Damages

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

Easement

• Easement Simplified
• What is Easement? Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?
• Prescriptive Rights – Inchoate until the Title thereof is Upheld by a Competent Court
• Will Easement of Necessity Ripen into a Prescriptive Easement?
• What is “period ending within two years next before the institution of the suit”?
• Is the Basis of Every Easement, Theoretically, a Grant
• Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant
• Can Easement of Necessity and of Grant be Claimed in a Suit (Alternatively)?
• “Implied Grant” in Law of Easements
• Can an Easement-Way be Altered by the Owner of the Land?
• Village Pathways and Right to Bury are not Easements.
• Custom & Customary Easements in Indian Law
• ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition
• Grant in Law

Stamp Act & Registration

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

Will

• How to Prove a Will, in Court?Is Presumption enough to Prove a Registered Will?Interpretation of Wills
• Interpretation of Inconsistent Clauses in a Will
• Will – Probate and Letters of Administration
• Executors of Will – Duties & their Removal
• How to Prove a Will, in Court?Is Presumption enough to Prove a Registered Will?
• How to Write a Will? Requirements of a Valid Will
• When Execution of a Will is ‘Admitted’ by the Opposite Side, Should it be ‘Proved’?

Arbitration

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

Divorce/Marriage

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

Negotiable Instruments Act

• “Otherwise Through an Account” in Section 142, NI Act
• Where to file Cheque Bounce Cases (Jurisdiction of Court – to file NI Act Complaint)?
• Cheque Dishonour Case against a Company, Firm or Society
• What is ‘Cognizance’ in Law

Book No. 2: A Handbook on Constitutional Issues

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

Religious issues

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

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

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

Book No. 4: Common Law of TRUSTS in India

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

Saji Koduvath, Advocate, Kottayam.

Key Takeaways

• Provisions of Chapter II of the KLR Act, that gives ‘fixity’ to tenants will apply to all plantations below 30 acres (plantation put-up by tenant or by landlord).
• ‘Plantation-tenancy’ lands (That is, plantation put-up by land-lord; or, Plantation existed when land was leased) exceeding 30 acres are also exempted from Chapter II KLR Act. Therefore, provisions in the Lease deeds applicable, applies to termination of tenancy.
• Provisions of Chapter II, that gives ‘fixity’ to tenants will apply to all plantations exceeding 30 acres (if the plantation is put-up by tenant).
• Government Lands, are also exempted from Chapter II KLR Act (Chapter II grants Fixity, Purchase- Certificate etc.). Therefore, provisions in the Grant or Lease deeds applicable, applies to termination of grant/tenancy.
• Landlord can recover possession of ‘plantation-tenancy-lands’ (plantation put-up by land-lord) above 30 acres, from the tenant, on the strength of lease deed; because it is exempted under Chapter II that gives protection to tenant (Fixity, Purchase- Certificate etc.).
• All such Plantation (tenancy) lands (put-up by tenant or by landlord) vest in Govt. under Sec. 72.
• Provisions of Chapter III of the KLR Act that says as to ‘Ceiling Limit’, its ‘Exemption’ etc. do not apply to (i) Government Lands (not Govt.-lease lands), (ii) plantations etc.
• Landlord cannot recover possession of ‘plantation lands’ (where Tenant made plantation on bare land leased) above 30 acre from the tenant; because it falls under Chapter II that gives protection to tenant (Fixity, Purchase- Certificate etc.).

Plantation Exemption Benefits in Government-Lease Lands

• Chapter III of the Kerala Land Reforms Act prescribes ceiling limits subject to exemptions enumerated in Section 81, including the exemption for plantations under Section 81(1)(e). While Section 81(1)(a), in its main part, excludes Government-owned lands from the operation of Chapter III—thereby rendering both the ceiling provisions and the plantation exemption inapplicable to such lands—the proviso to that clause expressly withdraws this exclusion in cases where Government lands are held under lease. The proviso operates only to nullify the exemption under Section 81(1)(a) and does not curtail the independent plantation exemption under Section 81(1)(e). Consequently, Government-owned lands held on lease must be tested under the remaining clauses of Section 81, and where such lands constitute plantations, they continue to enjoy exemption from the ceiling provisions, unaffected by the negative operation of Section 81(1)(a).

PART I

Provisions relating to ‘Tenancy’ and ‘Exemption from Ceiling Limit’ of Plantations are dealt with in Chapter II and III of the KLR Act.

Chapter II – Deals with Tenancies

Chapter II (Sections 3 to 80G) of the KLR Act speaks about ‘Provisions Regarding Tenancies’.

It deals, among other things, with:

• ‘fixity’ (to tenants),
• vesting of property in Govt.,
• purchase of landlord’s rights by cultivating tenants,
• issuance of ‘certificate of purchase’,
• rights and liabilities of Kudikidappukars.

Exemption from ‘Fixity’ in Chapter II

The Kerala Land Reforms Act, 1963 confers upon tenants fixity of tenure, that is, a right of permanency to continue as tenants in privately leased lands; nevertheless, the statute expressly excludes the operation of this right in relation to certain specified classes of land.

Sec. 3(1) says that nothing in Chapter II shall apply to:

• leases-lands
  • belonging to or vested in the Government,
  • Leases-of private forests,
  • tenancies of plantations exceeding 30 acres, etc.

Govt. Lands (Come under Land Assignment Act)

In Neelakantan v. District Collector, Quilon, 1976 Ker LT 489 (while dealing with Viruthi holding), it is pointed out as under:

• “Sec. 3 of the Kerala Land Reforms Act exempts lands belonging to or vested in the Government from the operation of the tenancy provisions of the Act.
• ‘Land belonging to or vested in the Government’ shall have, by virtue of Explanation I to S.3(1) of Act I of 1964, the same meaning as Government land under sub-section (1) of Sec. 2 of the Kerala Government land Assignment Act, 1960.
• Sub-section (1) of S. 2 of the land Assignment Act defines Government land to include all lands wherever situated except in so far as the same are
• the properties of jenmies or holders of inams, or
• holders of land subject to the payment of land revenue to the Government or of any registered holder of the land in proprietary right.”

Chapter III – Deals with Ceiling Limit and Exemptions

Chaptr III (Sections 81 to 98A) of the KLR Act deals with ‘Restriction on Ownership and Possession of Land in Excess of Ceiling Area and Disposal of Excess Lands’.

• Among other things, it procures provisions as to:
  • ceiling limit,
  • exemptions from ceiling limit,
  • filing ceiling return,
  • determining extent to be surrendered,
  • surrender,
  • taking possession by TLB,
  • effect of conversion of exempted land.

Exemption from Ceiling Limit

Sec. 81(1) says that the provisions of Chapter III shall not apply to –

• lands owned or held by the Government
  • But, provisions of Chapter III shall apply to Government- lease-lands also, by virtue of the Proviso to sub-section (1)(a) of Sec. 81). The Proviso reads as under:
  • “Provided that the exemption under this clause shall not apply to lands owned by the Government of Kerala and held by any person under lease whether current or time expired or otherwise.”
• private forests, 
• plantations, etc.
• Note: 1. Section 81(1) creates exemptions from Chapter III (ceiling provisions). Section 81(1)—that grants exemption to the ceiling limit—is not made applicable (“shall not apply”) to Government lands from the provisions of Chapter III.
• The Proviso says as under: 
  • “Provided that the exemption under this clause shall not apply to lands owned by the Government of Kerala and held by any person under lease whether current or time expired or otherwise.”
• Section 81(1), by itself, stands as a bar to availing the benefits (on ceiling exemption) to plantations in Government lands. But, the “exemption” in the Proviso makes it clear—the bar in Section 81(1) “does not apply” (to the tenants on) the lease-lands owned by the Government. Therefore, the benefits of ‘plantation-exemption’ apply to the Government-owned-lease-lands.
  
• 2. The effect of Chapter III, on the following classes of the tenants is that they are liable to pay ‘rent’ to the Government in terms of Section 72F(h).
  • (i) tenants of the erstwhile private landowners falling under Sections 13 (fixity of tenure) and 72 (vesting in Government).
  • (ii) tenants of the Government—because the Land Reforms Act does not make any change to the liability to pay rent.
• The effect of Chapter III on Government-lease-lands and on the lands that fall under Section 13 (Fixity) and 72 (vest in Government) is that the tenants (both Government’s tenants and the erstwhile Private landholders’ tenants) have to pay ‘rent‘ to the Government under Sec. 72F(h).
• 3. Section 81(4) “permits” use of the land not exceeding 5% of the extent of such holding for floriculture, dairy farms, hotels, restaurants, etc.
• 4. Under Sec. 112 (5A) of the KLR Act, on acquisition, the cultivating tenants are entitled to compensation for improvements (only) for the land vested in the Government under Sec. 72.
  Sec. 112 (5A)(a) says that the compensation for any building or other improvements belonging to the landowner shall be awarded to the Government; and clause (b) says that the balance remaining after deducting the compensation referred to in clause (a) and the value of the land occupied by the homestead or hut, if any, shall be apportioned between the cultivating tenant and the Government in proportion to the profits derivable by them from the land.

PART II

Chapter II – Provisions Regarding Tenancies

S. 3(1)(viii)

• “3. Exemptions – (1) Nothing in this Chapter shall apply to -…. ….
  • (viii) Tenancies of plantations exceeding 30 acres.
    • “Provided that the provisions of this chapter, other than sections 53 to 72S, shall apply to tenancies in respect of agricultural lands which are treated as plantations under sub clause (c) of clause (44) of Section 2”.

Sec. 2(44)(c)

• “agricultural lands interspersed within the boundaries of the area cultivated by the said person with plantation crops, not exceeding such extent as may be determined by the Land Board [or the Taluk Land Board, as the case may be] as necessary for the protection and efficient management of such cultivation.”

Analysis of Exemption under S. 3(1)(viii)

• If tenant raised plantation on bare land leased –
• Such tenants are not excluded (from Chapter II) by the ‘Exemption’ clause under S. 3(1)(viii).
  • Therefore, tenants of such tenancy-land are entitled for benefits under Chapter II such as
    • Fixity under Sec. 13,
    • purchase certificate within ceiling limit etc.
  • Such lands vest in Govt. under Sec. 72 also.

S. 3(1)(viii) deals with Exemption of ‘Plantation-Tenancy’ (plantation, developed by the landlord), above 30 acres.

• To exclude a plantation (from the benefits under Chapter II offered to Tenants)under S. 3(1)(viii), it should have been a plantation when it was leased;
  • that is, such land, above 30 acres, must have been developed as plantation by the landlord.
• S. 3(1)(viii), exempt from Chapter II –
  • plantation-tenancy (plantation developed by the landlord) above 30 acres.
• That is, if tenant has raised plantation on bare land leased, it is not excluded (from the benefits under Chapter II offered to Tenants) by the Exemption under S. 3(1)(viii).
  • Such tenants (who put up plantation on the bare land) have the rights and benefits provided under Chapter II – such as
    • fixity under Sec. 13 and
    • vesting in Government under Sec. 72
    • (But not purchase certificate under Sec. 72B, for it is not allowable above ceiling limit.)
    • Note: No rider to Sec. 72B and 72C, by way of proviso or otherwise, exempting plantation.

S. 3(1)(viii) provides benefit (fixity under Sec. 13) to

• plantation-tenancy below 30 acres (because what is exempted from benefits of fixity is Plantation-Tenancies exceeding 30 acres).
• See: Rev. Fr. Jerome Fernandes Vs. Be Be Rubber Estate, 1972 KLT 613; Poddar Plan. Ltd v. Thekkemariveettil Madhavi Amma, 2014 1 ILR(Ker) 813; 2013 4 KLJ 781; 2014 1 KLT 439 .
• Therefore:
  • Contract applies to termination of tenancy, above 30 acre plantation–tenancy (land must have been a plantation when it was leased).
  • Land lord is entitled Sec. 81 exemption over such plantation.

Fixity, Vesting in Govt. and Purchase Certificate:

• Sec. 13 says every tenant has fixity. But, holdings held by cultivating tenants alone will vest in Govt., under Section 72(1).
• Sec. 72 provides for automatic vesting of leasehold properties held by ‘cultivating tenants’ in Govt.  ILR 2010(2) Ker. 845. 
• Sec. 72K provides that LT shall issue purchase certificate.  It shall be conclusive proof of assignment.
• Assignment of Purchase certificate
  • Sec. 72B provides for cultivating tenant’s rights to get assignment  – purchase certificate (through LT) – within ceiling area. [Tenant is “obliged to apply” for it within 2 years from 1-1-1970. Effect of not applying for assignment, See: Balanoor Plantations & Industries Ltd. v. State of Kerala, 2018(3) KLT 283. This decision also says that tenants having ‘no bona fide claim’ as to cultivating-tenancy has ‘no vested right to continue’.]
  • Sec. 72 C provides for suo moto action by LT. (No time limit,)
  • The tenant who opts to avail benefits of plantation-exemption, under Sec. 81, cannot seek fragmentation (Sec. 87, Explanation II) of the plantation land so as to obtain purchase-certificate (under Sec. 72A, 72B or 72C) within ceiling limit. Still, he stands as a cultivating tenant, “entitled to assignment” of the right under Sec. 72B. As shown elsewhere, there is an option for the tenant – either to obtain purchase-certificate or to avail plantation-exemption.
• Rule 5 of the Vesting & Assignment Rules provides – LT may suo moto – notwithstanding no application – assign to cultivating tenant. (See  S.72C also). 

Chapter III – Excess, Ceiling Return, Surrender, Exemption Etc.

Section 81:

S. 81, the first Section in Chapter III deals with exemption from ceiling limit of plantation, industrial land, etc. Sec. 81(1)(e) reads as under:

• “Exemptions: (1) The provisions of this Chapter shall not apply to–
  • (a) lands owned or held by the Government ….
  • …… ……
  • (e) plantations;
  • …………”
• Note: Provisions of Chapter III shall apply to Government- lease-lands also, by virtue of the Proviso to sub-section (1)(a) of Sec. 81). The Proviso reads as under:
• “Provided that the exemption under this clause shall not apply to lands owned by the Government of Kerala and held by any person under lease whether current or time expired or otherwise.”

Section 82 & 83:

S. 82 & 83 deal with ceiling area and bars holding land excess of ceiling fixed. Sec. 82 reads as under:

• 82. Ceiling area. – [(1) The ceiling area of land shall be,
• (a) in the case of an adult unmarried person or a family consisting of a sole surviving member, five standard acres, so however that the ceiling area shall riot be less than six and more than seven arid a half acre in extent;
• (b) in the case of a family consisting of two or more, but not more than five members, ten standard acres, so however that the ceiling area shall not be less than twelve and more than fifteen acres in extent.
• (c) in the case of a family consisting of more than five members, ten standard acres increased by one standard acre for each member M excess of five, so however that the ceiling area shall not he less than twelve and more than twenty acres in extent; and
• (d) in the case of any other person, other than a joint family, ten standard acres, so however that the ceiling are shall not be less than twelve and more than fifteen acres in extent.]

Section 83

Sec. 83 reads as under:

• “83. No person to hold land in excess of the ceiling area. With effect from such dates as may be notified by the Government in the Gazette, no person shall be entitled to own or hold or to possess under a mortgage lands in the aggregate in excess of the ceiling area.”

Section 85(1) reads as under:

• 85. Surrender of excess land. (1) Where a person owns or holds land excess of the ceiling area on the date notified under Section 83, such excess land shall be surrendered as hereinafter provided: …. ….”

Section 2 (3) defines ceiling area as under:

• “Ceiling area” means the extent of land specified in section 82 as the ceiling area”.

Plantation: Definition

• “S.2.(44)” plantation” means any land used by a person principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon (hereinafter in this clause referred to as ‘plantation crops’) and includes.-
  • (a) land used by the said person for any purpose ancillary to the cultivation of plantation crops or for the preparation of the same for the market;
  • [(b) xxxx]
  • (c) agricultural lands interspersed within the boundaries of the area cultivated by the said person with plantation crops, not exceeding such extent as may be determined by the Land Board [or the Taluk land Board, as the case may be] as necessary for the protection and efficient management of such cultivation.
• Explanation:- Lands used for the construction of office buildings, godowns, factories quarters for workmen, hospitals, schools and play grounds shall be deemed to be lands used for the purposes of sub-clause (a).

Relevant Provisions: Excess, Ceiling Return, Surrender, Exemption Etc.

• Sec. 85 (1) provides for Surrender excess.
• Sec. 85 (2) provides – Owners and Tenants of plantation (who owns or hold properties) should furnish statement (ceiling return) to Land Board before March 31, 1971, before the Land Board (including lands exempted under S. 81).
• Sec. 85 (3) provides – Excess shall be surrendered.
• Sec. 85 (5) provides – LAND BOARD shall DETERMINE – extend to be surrendered
• Sec. 85 (7) provides – Whereon a person fails to file statement (ceiling return) under 85(2), LAND BOARD shall intimate Taluk Land Board (TLB),– TLB shall determine land to be surrendered.
  • “The statute prescribes liability on the person who owes or hold the land in excess of the ceiling limit and if such a person fails to file the statement in accordance with law, the Board is enjoined to proceed against such person.” State of Kerala Vs. Varkey Mathew, AIR 1996 SC 1009.
  • [TLB not to do, suo motu, without direction from LB. State Of Kerala Vs Idiculla, 1980 KLT 120, referred to Shircy, J. in One Earth One Live Vs. State of Kerala, 2019(1) KLT 985.]
  • The effect of not filing ceiling return can be equated to ‘not applying for assignment’ of purchase certificate, See: Balanoor Plantations & Industries Ltd. v. State of Kerala, 2018(3) KLT 283.
• Sec. 85A provides – File ceiling return/statement within March  2, 1973 before Land Board.
• Sec. 86(1) provides – On determination of the extent to be surrendered (by LB) under S. 85- Excess vests in Govt. and Taluk Land Board shall issue an order accordingly.
  • Title to the property is not decided by the Taluk Land Board (TLB) : Harikumar v. State of Kerala, 2013 (2) KLT 44 (Para 9) Jagadeesachandran Nair v. Mamomohanan Pandarathil, 2013 (4) KLT 584 (para 11); Both decisions were referred to in Harrisons Malayalam Limited v. State of Kerala, Represented By The Chief Secretary, 2018-2 KHC 719; 2018-2 KLT 369 (para 54).
• Sec. 86(3) provides – Where any person fails to surrender as demanded, the TLB may order an officer to take possession.
• Sec. 86(4) provides – Where any land, vests in the Govt, under s. 86(1) (including that of cultivating tenant) the ownership of such land shall vest in the Govt.
• Sec. 86(6) provides – Nothing applies to property of Govt. under KLC Act.
• Sec. 87 Exp. II  provides – If CONVERTED TO ANY OTHER CLASS and the person owns excess of ceiling area – the excess shall be deemed to be land acquired.
• Sec. 87(1A) provides – Person referred to above (transferee) also should file statement (Return).

See note below: ‘No Total Prohibition in using Exempted Land for a Different Purpose‘

PART III

PLANTATIONS – Analysis of S. 81, 82 and 83

CHAPTER III of the KLR Act deals with Ceiling Area and Excess Lands.

Sec. 81 provides for ‘Exemptions’. Sec. 81 reads as under:

• Exemptions: (1) The provisions of this Chapter shall not apply to –
  • (a) lands owned or held by the Government ….
  • …. …..
  • (e) plantations;
  • …………

But, Exemption shall not apply to lease-lands owned by the Government. That is, lessees of Govt. lands get benefits under the exemption – they can hold beyond the ‘ceiling limit. Thereby the lessees of Govt. lands get benefits under the exemption – they can hold beyond the ‘ceiling limit.

81(1)(a) Proviso says –

• “Provided that the exemption under this clause shall not apply to lands owned by the Government of Kerala and held by any person under lease“. (See notes under the heading: “Sec. 81 exemptions do not apply to Govt. lands; But, Exemption apply to lease-lands”)

Plantation: Under Sec. 2, clause (44), plantation means any land used by a person principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon.

Ceiling area 

• Sec. 82 provides for ceiling.
• Sec. 83 provides – No person can hold or possess excess of ceiling area. (Holding is by tenant.)  
• It is a total bar.
  • Apply to tenant also. 1980 KLT 259 (Gopalan Nair Vs. State), 1976 KLT 306  (Thomas Mariamma Vs. TLB),
  • The policy of the Act – no person –“be permitted to hold any land in excess of the ceiling area.” Raghunath Laxman Wani v. The State of Maharashtra (AIR 1971 SC 2137) – quoted in 2008(1) KLJ 571 (State Vs. Puliyangattu). Followed in State vs Civil Judge, Nainital, AIR 1987 SC 16; Bhikoba S. Vs. ML Punchand Tathed, AIR 1982 (SC) 865.

Does the Plantation Exemption confer Unconditional Rights over the ‘LAND’?

No.

It is for the following reasons –

• 1. The exemption is to the ‘plantation‘, and not to the ‘land‘.
• 2. Exemption continues (only) as long as the plantation exists or continues;
• Because,
  • S. 2.(44) defines ‘plantation’ as land used principally for the cultivation of a specific ‘plantation crop‘ like tea, coffee, cocoa, rubber etc.
  • Section 87, Explanation II states that if a plantation for which exemption is given on recognition of a specific ‘plantation-crop’ is converted into any other ‘plantation-crop’ or the plantation activity is not continued, the exemption may be lost; and the land will be taken for considering the ceiling limit.

Explanation II of Sec. 87 reads as under:

• “Explanation II – Where, after the date notified under Section 83, any class of land specified in Schedule II has been converted into any other class of land specified in that Schedule or any land exempt under Section 81 from the provisions of this Chapter is converted into any class of land not so exempt and in consequence thereof the total extent of land owned or held by a person exceeds the ceiling area, so much extent of land as is in excess of the ceiling area, shall be deemed to be land acquired after the said date.”
• Note: The “a person” in clause “total extent of land owned or held by a person exceeds the ceiling area” denotes the transferee.

Purport of Sec. 87 and the Explanations in S.87(1)

Section 87 reflects the legislative intention in protecting plantations. The protection is on economic grounds. That is, certain crops and cultivations that made the land of Kerala renowned from ancient times were to be protected. Section 87 and the Explanations are to be read and interpreted in the light of their intentions. The Kerala High Court aptly appreciated these provisions in this background in One Earth One Life v. State of Kerala, 2019-2 KHC(SN) 10; 2019-1 KLT 985.

In State Human Rights Protection Centre, Thrissur v. State of Kerala, 2009(3)KLJ 110, it is held as under:

• “19.There is no restriction on alienation of lands exempted under Section 81 (1)(a) of the Land Reforms Act ,since such lands are exempted from the operation of Chapter III of the Kerala Land Reforms Act dealing with ceiling on holding. It is not the excess land that is alienated but the exempted land………”

It was further held in para 21-  

• ”……Any exemption from ceiling provision under the Kerala Land Reforms Act has a purpose and the purpose in the present case is public interest and that public interest is the use of land for industrial purpose. Since under the Kerala Land Reforms Act there is no restriction on alienation of the exempted category of lands and since the transferee is subjected to the acid test of eligibility and entitlement for exemption in terms of use of the land, the transfer made by the HMT will also be subjected to the same test, namely use of the transferred land for industrial purpose. In other words, HMT is legally entitled to transfer 100 acres of land notified under Ext.R1(i) notification, but the transferee will have to use that land for industrial purpose and that purpose only. Therefore, the transfer is not vitiated in any way; but the transferee will have to use the land only for industrial purpose. That is a covenant on the land.” (Quoted in: One Earth One Life v. State of Kerala, 2019-2 KHC(SN) 10; 2019-1 KLT 985)

In Everest Stone Crusher and Granites v. District Collector, District Collectorate, Kannur, 2020-6 KHC 289, it is held as under:

• “Therefore, Ext.P13 prohibitory order issued by the 1st respondent District Collector, during the pendency of suo motu proceedings under Section 87 of the Act, cannot be said to be one issued without reasonable grounds to believe that any document relating to transfer of land of the land owned by the petitioner, which may be presented before the 3rd respondent registering officer, is intended to defeat the provisions of the said Act. The said order warrants no interference in this writ petition, invoking the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India.”

State need not pay compensation to the Excess Land (when land is acquired)

It is also noteworthy –

• Article 31A(1), Proviso of the Constitution of India lays down that the State need not pay compensation to the land-owners (when land is acquired) above the ceiling limit.  And, the afore-stated provisions of the KLR Act are legislated following this constitutional provision. 
• Article 31A(1), Proviso of the Constitution reads as under:
• “Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.”

Plantation Exemption, Fixity & Purchase Certificate for a Tenant below 30-acres-plantation

• By virtue of S. 3(1)(viii), a Tenant (below 30-acres-plantation) will get fixity (Sec. 13) and can continue possession.
  • And, under Chapter III, Sec. 81(1)(e), he can also avail benefits of exemption for plantation (without being affected by the ceiling limit – Sec. 82 & 83).
  • Note: For getting benefits under Sec. 81 exemption, the tenant should have filed ceiling return (under Sec. 85(2); 85A).
• Purchase Certificate being provided within ceiling limit alone under Sec. 72B or 72C, it is legitimate to state that a tenant cannot get Purchase Certificate on the plantation land, under Sec. 72B or 72C. (Note: No rider to Sec. 72B and 72C, by way of proviso or otherwise, exempting plantation.)

Combined Impact of Sec. 3(1)(viii) and Sec. 81 on Plantation-Tenancy-land

Below 30 acres – Chapter II applies:

1. By virtue of S. 3(1)(viii)Chapter II applies to all tenancies (both above and below 30 acres. It stands contradistinct to ‘leased-lands-upon-which-plantation-was-put-up’ by the tenant above 30 acres.
2. Such tenants also get benefit of exemption under Sec. 81 and they can continue without being affected by the ceiling limit under Sec. 82 and 83.
3. For getting benefits of Sec. 81 exemption ceiling return (Sec. 85(2); 85A). should have been filed.

Above 30 acres ‘Plantation-Tenancy’- Chapter II, KLR Act will not Apply:

• S. 3(1)(viii) being exclude (from Chapter II) ‘Plantation-Tenancy’ (i.e. ‘leased-lands-upon-which-plantation-was-put-up’ by the landlord) above 30 acres, provisions of Chapter II do not apply to such plantations.

1. Hence, No ‘fixity’ under Sec. 13, for the tenants of ‘Plantation-Tenancy’ above 30 acres.
2. Contract applies to termination of tenancy, above 30 acre plantation–tenancy. But, until evicted lawfully, such tenants get benefit of exemption under Sec. 81 and they can continue without being affected by the ceiling limit under Sec. 82 and 83.
3. Land lord is entitled Sec. 81 exemption over such plantation.
4. For getting benefits of Sec. 81 exemption, ceiling return [Sec. 85(2); 85A] should have been filed.

If tenant raised plantation on bare land leased: S. 3(1)(viii)does not apply.

1. S. 3(1)(viii) does not deal with plantations put up on bare land leased by the tenants. (Such property is not excluded from Chapter II, also.)
2. That is, the protection or benefits given to tenants (fixity) can be availed by such tenants (who put up plantation on land leased).
3. No purchase Certificate can be obtained, for, fragmentation of plantation will not be allowed (Sec. 87 Expl. II).
4. Under Sec. 81, such tenants can avail exemption and they can also continue without being affected by the ceiling limit under Sec. 82 and 83.
5. Such lands also vest in Government under Sec. 72.
6. For getting benefits of Sec. 81 exemption ceiling return [Sec. 85(2); 85A]. should have been filed.

In N. K. RAJENDRA MOHAN Vs. THIRVAMADI RUBBER CO.  LTD, AIR 2015 SC 2556; 2015-4 KLT 6, it is held as under:

• “That the legislature had construed it to be unfair and improper to deny the benefit of the fixity of tenure to a lessee who might have taken the lease of extensive parambus or waste lands and in course of time by hard toil had developed those into plantations.

Analysis

Plantation leased (Plantation existed when land was leased).	Land leased Tenant made plantation. Sec. 81 (exemption from ceiling limit) applies.
Plantation above 30 Acre.  Will there be fixity to tenant? No.  Sec. 3 (1)(viii) (negatively) applies. (Poddar Plan. Ltd v. Thekkemariveettil Madhavi Amma, 2014 1 ILR(Ker) 813; 2013 4 KLJ 781; 2014 1 KLT 439,)	Yes. (Because what is exempted is Plantation-Tenancies exceeding 30 acres) Sec. 13, fixity is there for every tenant, if tenant toiled a plantation – See: Rev. Fr. Jerome Fernandes Vs. Be Be Rubber Estate, 1972 KLT 613.
Plantation below 30 Acre.  Can a tenant get purchase certificate for 5 or 10 acres? May be. No specific provision. So, by virtue of Chapter II, a tenant can get Purchase Certificate; but, within ceiling limit – Sec. 13 – under Sec. 72B, 72C. (See notes just below also)	No.  No specific provision. It may be possible to get purchase certificate within ceiling – provided the tenant does not claim the remaining property.
Plantation below 30 Acre. Will there be fixity to tenant? Yes. By virtue of S. 3(1)(viii), a Tenant has fixity (Sec.13). It is reasonable to say, a tenant cannot claim fixity and Purchase Certificate, simultaneously.	Yes. (Because what is exempted is Plantation-Tenancies exceeding 30 acres) Sec. 13 fixity, applies.
Who gets Sec. 81 exemption – land-owner or tenant – above 30 acre. Land owner – For, plantation itself was leased.	Tenant
Can landlord recover possession – above 30 acre – from the tenant? Yes. No express provision. But, contract holds the field (because no protection to tenant, under Chapter II).	No. (Because Plantation-Tenancies exceeding 30 acres is exempted, and therefore no protection to tenant) Sec. 13 fixity, applies. See: N. K. Rajendra Mohan Vs Thirvamadi Rubber Co.  Ltd.: AIR 2015 SC 2556; 2015-4 KLT 6
(Not applicable)	Will a tenant get Fixity (S. 13) or Purchase Certificate (S. 72) on “tenancies…”, ‘interspersed within the plantation’Sec, S. 3(1)(viii) Yes. But, within ceiling limit – Sec. 13 – under Sec. 72B, 72C. Proviso refers to a special category on independent-tenancy [from the plantation-tenancy, mentioned in the main Section, S. 3(1)(viii)].
Will there be vesting of land below 30 acres in Govt? Yes. Then what is the relation between Govt. and the original tenant? Relation that is recognised by the Statute. That is, fixity in the land vested in Government.	Yes (for both above and below 30 acres). Then what is the relation between Govt. and the original tenant? Relation that is recognised by the Statute .That is, fixity in the land vested in Government.

Effect of Conversion of a Portion of Exempted Land into a Non-exempted Category

Section 87 reads as under:

• “S.87. Excess land obtained by gift, etc. to be surrendered – (1) Where any person acquires any land dafter the date notified under Section 83 by gift, purchase, mortgage with possession, lease, surrender or any other kind of transfer inter vivos or by bequest or inheritance or otherwise and in consequence thereof the total extent of land owned or held by such person exceeds the ceiling area, such excess shall be surrendered to such authority as may be prescribed.
•        Explanation 1 – Where any land is exempted by or under Section 81 and such exemption is in force on the date notified under Section 83, such land shall, with effect from the date on which it ceases to be exempted, be deemed to be land acquired after the date notified under Section 83.
•        Explanation II – Where, after the date notified under Section 83, any class of land specified in Schedule II has been converted into any other class of land specified in that Schedule or any land exempt under Section 81 from the provisions of this Chapter is converted into any class of land not so exempt and in consequence thereof the total extent of land owned or held by a person exceeds the ceiling area, so much extent of land as is in excess of the ceiling area, shall be deemed to be land acquired after the said date.

No Total Prohibition in using Exempted Land for a Different Purpose

Explanation II does not make a total bar. It only causes to lose benefit of the exemption to a certain extent. That is, if a person converts any portion of his exempted land to any other class, that converted extent will be added to his account in determining his ceiling limit; and the Taluk Land Board can proceed upon that (excess) land. In short, the exemption will be lost for that portion. In this premises, in Wayanad Granites v. District Collector, 2023-4 KLT 874, it is held that ‘fragmentation is per se not illegal’. similarly, in District Collector v. Sajith Lal, 2023-4 KLJ 851, it is held that ‘there is no embargo under law in using any exempted land for non-exempted purposes as well’.

In Mathew K.T v. State of Kerala, 19 April, 2024, in the light of earlier decisions, observed that there is no total prohibition in using an exempted land for a different purpose under the Kerala Land Reforms Act. The impediment or restriction is (only) the following –

• If a portion of the exempted land is utilised for any other purpose, that would fall within his ceiling area and the authorities may be able to initiate ceiling proceedings.

The Full Bench decision, Mathew K. Jacob v. District Environmental Impact Assessment Authority [AIR 2019 Ker. 67, affirmed by the Supreme Court in K.H. Nazar v. Mathew K. Jacob, 2020-14 SCC 126] held as under:

• “We however add that any class of land earlier exempted in the ceiling case can be converted into any class of land not liable to be exempted under Explanation II to Section 87 of the Act. The consequence is that the benefit of the exemption would be lost and the extent added to the account of the assessee or the declarant in determination of his ceiling area. That is a matter to be dealt with by the Taluk Land Board with the assessee or the declarant and other interested parties on the party array and we desist from elaborating further.”

In District Collector v. Sajith Lal (2023-4 KLJ 851; 2023 KLT OnLine 1225) it is held as under:

• “5. There is no embargo under law in using any exempted land for non- exempted purposes as well. If the land is used for non-exempted purposes, the holder of the land will lose the qualification for exemption, thus giving authority to the Land Board to initiate ceiling proceedings.” (Quoted in: Mathew K.T v. State of Kerala, 19 April, 2024)

No Embargo to Transfer Plantation Land

In R. V.  Devassia v. Sub Registrar, Idukki, 2015-1 ILR(Ker) 1047; 2015-1 KHC 805; 2015-2 KLJ 17, it is held as under:

• “9. On promulgation of the KLR Act in the State, the entire landed property in the State is subjected to State control as envisaged under the provisions of the KLR Act. No piece of the land escapes the clutches of the KLR Act including exempted land for ceiling purposes. The ceiling proceedings is a continuing proceedings and can be reopened in any of the circumstances, if so warranted, as contemplated under Section 87 of the KLR Act. Exemption granted from ceiling is the qualification to use the land in a particular manner, which means a burden is imposed on the land. The moment the qualification for exemption is vanished by conversion of the land, the protection from ceiling will also be extinguished to bring the land within the fold of the ceiling area. The exemption is in the nature of a burden on the land to use the land for the purpose for which exemption is granted. The eminent domain power of the State can be exercised for acquiring land without consent and also to regulate the use of land in public interest. The eminent domain is power inherent in any Sovereign State. This burden would bind the holder of the land as on 01/01/1970 and the successor-in-interest. The Division Bench of this Court in the State Human Rights Protection Centre, Thrissur and another v. State of Kerala and others [2009 (3) ILR 695] held that exemption granted under S.81(1)(a) is for the land and would continue to operate irrespective of change of ownership of the exempted land and the transferee would have to use the land for the purpose for which exemption is granted.”

In Everest Stone Crusher and Granites v. District Collector, Kannur, 2020-6 KHC 289, it is observed as under:

• “16. In Devassia R.V. this Court noticed that, the provisions of the Kerala Land Reforms Act do not place any embargo on transfer. The transfer of registry is for fiscal purposes. The power of the competent authority to reopen the ceiling proceedings to include the land exempted for the purpose of ceiling is not lost on account of effecting mutation. Therefore, the Revenue Officials cannot refuse to effect mutation of the property purchased by the transferee.”

Effect of Fragmentation for Non-exempted Category

The decision in One Earth One Life v. State of Kerala, 2019-2 KHC(SN) 10; 2019-1 KLT 985, arose from the Writ Petition filed for a declaration that the fragmentation and sale of a Rubber Plantation for non-plantation purposes was illegal as it defeated the purpose of the Kerala Land Reforms Act. When the matter was placed before the Taluk Land Board under Sec 87, KLR Act, it found that there was no change in classification of the land and therefore dropped the proceedings. The Court held as under:

• “34. Section 81 of the KLR Act is in pith and substance a special provision, with its main objective of giving exemption to certain lands including the lands maintained as plantations is to prevent fragmentation of the land and to keep it as plantation itself to improve the economy of the state for welfare of people as a whole while the Act creates a regime, the State is under an obligation to safeguard, the intended purpose of the provisions of the Act in its spirit. ….. …… It could be gathered from the records that the proposal to transfer 1.03 acres of land to each workers in discharge of their service or retrenchment benefits will definitely divide the plantation into separate slots and that would definitely change the character/nature of the plantation, which could be termed as ‘conversion’ and that will be against the provisions of the Act.”

Can a Tenant of Plantation Transfer his Rights, Fragmenting the Plantation

Possession is a heritable and transferable right. [See: Nallammal Vs. Ayisha Beevi, 2017-5 Mad LJ 864; Phirayalal Kapur Vs. Jia Rani, AIR 1973 Delhi 186]. Therefore, a tenant of plantation having rights of fixity (Sec. 13) may have the right to transfer it to another. In any case, the change of character or nature of the plantation by fragmentation being amount to ‘conversion’ that will be against the provisions of the Act, as pointed out in One Earth One Life v. State of Kerala, 2019-2 KHC(SN) 10; 2019-1 KLT 985.

PART – IV 

VESTING OF LAND IN GOVT. & RIGHT OF GOVT. TO COLLECT RENT

According to the provisions of the KLR Act, lands held by individuals (or associations of persons) vest in Govt. under two provisions. They are-

• First, Sec. 72 – Vesting of landlord’s rights in Government.
• Second, 86. Vesting of excess lands in Government.
  • Note: Sec. 86 does not apply to Plantations, for (i) they being already vest in Govt. under Sec. 72, and (ii) if Govt. land, no question of vesting arises.

Section 72(1) reads:

• “72. Vesting of landlord’s rights in Government: (1) On a date to be notified by the Government in this behalf in the Gazette, all right, title and interest of the landowners and intermediaries in respect of holdings held by cultivating tenants (including holders of kudiyirippus and holders karaimas) entitled to fixity of tenure under Section 13, and in respect of which certificates of purchase under Sub-section (2) of Section 59 have not been issued, shall, subject to the provisions of this section, vest in the government free from all encumbrances created by the landowners and intermediaries and subsisting thereon the said date”

Sec. 81 exemptions do not apply to Govt. lands; But, Exemption apply to lease-lands

Government lands are exempted under Sec. 81(1)(a).

But, Exemption shall not apply to lease-lands owned by the Government. That is, lessees of Govt. lands get benefits under the exemption – they can hold Government-lease-land beyond the ‘ceiling limit’.

81(1)(a) Proviso says –

• “Provided that the exemption under this clause shall not apply to lands owned by the Government of Kerala and held by any person under lease whether current or time expired or otherwise.”

This proviso is introduced in 1971. By virtue of this amendment (introducing Section 81(1)(a) Proviso) “Plantation-Exemption” does not take effect on Government-lease-land.

But it must be noted that a ‘valid lease’ must exist. That is, the person in possession of government land should be a “lessee”; he must not be trespasser or a person who forfeit the title of Government.

The word “otherwise” must be understood as a permissive occupation

In MT Joseph v.  State of Kerala, AIR 1974 Ker 28, it is held-

• “Clause (a) of Sub-section (1) of Section 81 by which “Government lands held under a lease current or time expired or otherwise” can be understood only as referring to such lands which are held by persons in permissive possession. The word “otherwise” must be understood as a permissive occupation otherwise than under a lease. The word “otherwise” has no wider meaning in the context. So understood, the exemption to Clause (a) of that Section is perfectly legal and in that limited sense we uphold that provision as valid.”

Tenant is defined in Sec 2 (57) as under:

• (57) “tenant“ moans any person who has paid or has agreed to pay rent or other consideration
• for his being allowed to possess and to enjoy any land by a person entitled to lease that land, and includes- …. ….. ….. “

Section 86 reads:

• 86. Vesting of excess lands in Government. (1) On the determination of the extent and other particulars of the lands, the ownership or possession or both of which is or are to be surrendered under Section 85, the ownership or possession or both, as the case may be of the land shall, subject to the provisions of this Act, vest in the Government free from all encumbrances and the Taluk Land Board shall issue an order accordingly.
• (2) On receipt of [the order of the Taluk Land Board under Sub-section (1)] such person shall make the surrender demanded, in such manner as may he prescribed.
• (3) Where any person fails to make the surrender demanded, the [Taluk Land Board] may authorise any officer to take possession or assume ownership of the land in such manner as may be prescribed.
• [(4) Where the ownership of any land vests in the Government under Sub-section (1), the rights of the intermediary, if any, in respect of the land shall stand extinguished, and where possession of any land which was in the possession of a cultivating tenant vests in the Government under that Sub-section, the ownership of such land shall vest in the Government and the rights of the intermediary, if any, in respect of such land shall stand extinguished.]

Who is the OWNER of Exempted (Private-Leasehold) Plantation Lands in Kerala?

It is Government, though by virtue of Chapter II (Sec. 13) the tenant has ‘Fixity’. 

• 1. Plantation (lease) Lands VEST in GOVT, automatically
• Because,
• Sec. 72 provides for
  • mandatory and involuntary vesting in Government–
  • of leasehold lands that is held by cultivating tenants entitled to fixity of tenure under Sec. 13 (even if the extent exceeds ceiling limit).
  • See: Perumal Smaraka Nidhi vs M/S Harrisons Malayalam Ltd., 31. 01. 2013.
• 2.  ‘Vesting’ in Govt. is ‘Vesting of Ownership‘
• It is for the reasons –
  • Sec. 72(1) [Declared to be ‘vested’ in Government],
  • Sec. 72E [the cultivating tenant shall pay rent to the Government from 01.01.1970],    
  • Sec.72F(5)(h) [Land Tribunal to fix the rent stated in Sec. 72E] and
  • Sec. 112(5A) [If no purchase certificate is given to the tenant, from Sec. 112(5A)(b) it is clear that the tenant will be entitled (on acquisition of the land) for the compensation for the actual area where his homestead or hut, if any, is situated (whatever may be the area of land outside it) ].
• It is also noteworthy –
• Article 31A(1), Proviso of the Constitution of India lays down that the State need not pay compensation (even) to the land-owners (when land is acquired) above the ceiling limit.  And, the afore-stated provisions of the KLR Act are legislated following this constitutional provision. 
• Article 31A(1), Proviso of the Constitution reads as under:
• “Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.”
• 3. ‘Exemption’ in Chapter III Cannot be read into Sec. 72B(2)
• Sec. 72B(2) specifies that the provisions of Section 82 (as to ceiling limit) shall apply for a limited purpose. It reads-
  • (2) The provisions of Section 82 shall, so far as may be, apply to the calculation of the ceiling area for the purposes of the proviso to Sub-section (1)
• The exemption provision in Sec. 81 (Chapter III) cannot be brought-forth or read-into Sec. 72B (provision for assignment/purchase-certificate) in Chapter II.
• Further:
  • Chapter II of the KLR Act (dealing with ‘Tenancy’) is exclusive and exhaustive as to ‘fixity’ and ‘vesting’ of land in Government.
  • Proviso to Sec. 72B(1) shows – Sec. 72B(1) is an an independent provision. (It says as to assignment to a cultivating tenant within the ceiling limits.)
  • It is not stated anywhere in the Act – the right and title of the (leased-plantation) land vested in Government under Sec. 72, will be divested in any manner (to the previous owner, or to the tenant or to anybody else), in any circumstance.
  • Sec. 72E provides for collection of ‘rent‘ from the holders of the plantation. It is for the reason that (ownership of) the land vests in Govt.
  • Proceedings initiated by Taluk Land Board under Chapter III (in respect of plantation) do not confer title.
• 4. Government Need Not Pay ‘Land-Value‘, as such, if Acquired
  • For the above (plantation land vest in Govt.), the Government Need Not Pay ‘Land-Value‘, as such, to the tenant, or the former owner, if such Lands are Acquired.
• 5. Tenant cannot ‘Sell’ Plantation Land as his absolute property
  • A tenant who got ‘fixity’ over such land cannot ‘sell’ this land as his absolute (ownership) property.

Rights of ‘tenants’ of Plantations, after vesting the land with Govt.? It is a ‘Legal Right conferred by Statute’

• It is not Tenancy – For no landlord-tenant relation with the Govt.
• Not Grant or Licence/Permission – For Grant as well as Licence/Permission arise from a contract (express or implied).
• Therefore, it can termed only as a “Legal Right conferred by Statute“, the KLR Act.

• What are the Stipulations attached to that “Legal Right”?
  • Subject to the condition – not to “convert” it for any other use, other than the specific plantation (Sec. 87).
• When Such a land is Required for Govt., Should it be Acquired?
  • The ownership being vested in Govt. it need not be ‘strictly’ “acquired”.
  • But no provision In Sec. 72 for ‘resuming’, if and when Govt. needs it.
• Sec. 112 of the KLR Act
  • But, Sec. 112 of the KLR Act says as to ‘Apportionment of land value in cases of acquisition’.
  • Because of the “Legal Right conferred by Statute“ upon the former tenants of the plantation, they are entitled for certain compensation, when that land is required for the Govt..
  • In cases falling under Chapter II (pertaining to, tenants entitled for fixity, issuance of purchase certificate etc.) Section 72 deals with the right, title and interest of the land owners and intermediaries in respect of the holdings held by the cultivating tenants; and says -the land will be free from encumbrances created by the land-owners and intermediaries.
  • However, insofar as the cultivating tenant is concerned, an absolute right is vested with him to seek assignment (within ceiling limit) subject to the payment of purchase price – as stated in Section 72D. (See: Glen Leven Estate (P) Ltd. v. State of Kerala, 2022-6 Ker LT 439.)
  • No ‘authority’ is also named in any law to fix the compensation to be given to the former tenants, when the Govt. requires it.
• Therefore, it is said – Apportionment of land value in cases of ‘acquisition’.
  • Note:  It makes no difference (SUBSTANTIALLY, IN DETERMINING COMPENSATION) whether such a plantation land is “acquired” or not. Because, even if the land is not ‘acquired’, Govt. has to pay compensation for improvements to the former tenants (who holds the land by virtue of the “Legal Right conferred by Statute“, the KLR Act).

Apportionment’s of land value in cases of Acquisition

Sec. 112 of the KLR Act reads-

• “112. Apportionment’s of land value in cases of acquisition – (1) Where any land is acquired under the law for the time being in force providing for the compulsory acquisition of land for public purposes, the compensation awarded under such law in respect of the land acquired shall be apportioned among the landowner, intermediaries, cultivating tenant and the kudikidappukaran in the manner specified in this Section.
• (2) The compensation for any building or other improvements shall be awarded to the person entitled to such building or other improvements.
• (3) The kudikidappukaran shall be entitled to the value of the land occupied by his homestead or hut subject to a minimum of-
  • three cents in a city or major municipality; or
  • five cents in any other municipally; or
  • ten cents in a panchayat area or township.
• (4) The difference between the value of three cents or five cents or ten cents, as the case may be, and the value of the extent of the land occupied by the homestead or hut shall, notwithstanding anything contained in the Kerala Land Acquisition Act, 1961, be borne by the Government or the local authority or the company or other person on whose behalf the land is acquired.
• (5) The balance remaining after deducting the compensation referred to in Sub-section (2) and the value of the land occupied by the homestead or hut shall he apportioned among the landowner, the intermediaries and the cultivating tenant in proportion to the profits derivable by them from the land acquired immediately before such acquisition.
  • Explanation. – “Profits derivable from the land” shall be deemed to be equal to (i) in the case of a landowner, the rent which he was entitled to get from the tenant holding immediately under him; (ii) in the case of an intermediary, the difference between the rent which he was entitled to get from his tenant and the rent for which he was liable to his landlord; and (iii) in the case of a cultivating tenant, the difference between the net income and the rent payable by him; and the rent payable by the cultivating tenant and the intermediary for the purposes of this Explanation shall be as calculated under the provisions of this Act.
• (5A) Notwithstanding anything contained in Sub-sections (2) and (5), where there the right, title and interest of the landowner and the intermediaries in respect of the land acquired have vested in the Government under Section 72, –
  • (a) the compensation for any building or other improvements belonging to such landowner and intermediaries shall be awarded to the Government; and
  • (b) the balance remaining after deducting the compensation referred to in clause (a) and the value of the land occupied by the homestead or hut, if any, shall be apportioned between the cultivating tenant and the Government in proportion to the profits derivable by them from the land.
• Explanation. – “Profits derivable from the land” shall be deemed to be equal to-
  • in the case of the cultivating tenant, the difference between the net income immediately before the acquisition and the rent which he was liable to pay immediately before the date on which the right, title and interest of the landowner and the intermediaries have vested in the Government; and
  • in the case of the Government, such rent.
• (7) In this Section, “homestead” includes a dwelling house occupied by a person who is deemed to be a kudikidappukaran under Explanation IIA to clause (25) of Section 2.”

Apportionment depends upon rights on the date of acquisition

• Valia Raja v. Veeraraghava Iyer, 1961 Ker LT 103, it was held that the question of apportionment of compensation has to depend upon the rights of the parties on the date of the acquisition. Referrd to in: Varkey Thomas Vs. Annamma Abraham,  1969 Ker LT 903.

Glen Leven Estate (P) Ltd. v. State of Kerala, 2022-6 Ker LT 439

Read Blog: Glen Leven Estate v. State of Kerala: Not Correctly Decided?

In Glen Leven Estate (P) Ltd. v. State of Kerala, 2022-6 Ker LT 439, the question as to ‘rival claims raised by the cultivating tenant and landlord for compensation on acquisition’ arose. The land was leased out by landlords. The lease-rights came in the cultivating tenants by transfer. The Government contended that the tenant was a cultivating tenant and the land vested upon the Govt. under Sec. 72 KLR Act. Hence tenant alone would be entitled to get compensation for the improvements to be determined under the Kerala Compensation for Tenants Improvements Act, 1958, in view of Section 20(1) of the KLR Act.

• The landlords argued that the land was a plantation (over 30 acres) when it was (originally) leased, and therefore, they are entitled to claim exemption and benefits in the light of the exemption under clause (viii)  of Section 3 (1) of the KLR Act. Since there would be no fixity of tenure, it being a plantation, there would not be vesting of rights of the land owner in the Government. Hence, there should be the apportionment of the compensation between the lessor and the lessee and it should be decided in the acquisition proceedings.

The single Judge dismissed the writ petition, ‘leaving open the liberty of the lessee as well as the landlords, to approach the civil court seeking relief against the Government, and also to resolve the inter se dispute by and between the tenant and the landlords’.

The Division Bench, in appeal held that ‘land acquisition’ proceedings are to be initiated. It is pointed out that (even if it is a land vested in Govt.) there is no provision in Sec. 72 for ‘resuming’ if and when Govt. need it. The court also observed as under –

• “31. On an analysis of the provisions of Section 72(1) of the Act, 1963, it is clear that when the Government notified the said provision with effect from 01.01.1970, all right, title and interest of the landowners and intermediaries in respect of holdings held by cultivating tenants (including holders of kudiyirippus and holders karaimas) entitled to fixity of tenure under Section 13, and in respect of which certificates of purchase under sub-Section (2) of Section 59 have not been issued, vested in the Government.
• 32. Therefore, it is clear from Section 72 that what is vested with the Government is the right, title and interest of the land owners and intermediaries in respect of the holdings held by the cultivating tenants. It is nothing but a legal fiction by which the interest held by a cultivating tenant in a property of a landlord or intermediary is protected from 01.01.1970 .
• 34. On a conjoint reading of Sections 72 and 72A, it can be seen that vesting of rights in the Government contained under Section 72 is the rights held by the landlord and the intermediary in respect of holdings held by the cultivating tenants. However, the same will not, in any manner, interfere with the rights enjoyed by a cultivating tenant in contemplation of the provisions of the Act, 1963.”
• 42. Therefore, we have no doubt in our mind to hold that Section 72 of Act, 1963 would only deal with the right, title and interest of the land owners and intermediaries in respect of the holdings held by the cultivating tenants free from encumbrances created by the land owners and intermediaries. However, the legal provisions discussed above would make it clear that insofar as the cultivating tenant is concerned, an absolute right is vested with him to seek assignment subject to the payment of purchase price in contemplation of Section 72D of the Act, 1963.

• While considering the right of landlord, it is pointed out (basing on the principle, or scheme of the KLR Act*^*) that the landlord may have right for compensation under Section 72BB. The Division Bench said-
  • “36. So also, sub-Section (1) of Section 72BB dealing with ‘the right of landlord to apply for assignment and compensation’ specifies that any landowner or intermediary, whose right, title and interest in respect of any holding have vested in the Government, may apply to the Land Tribunal for the assignment of such right, title and interest to the cultivating tenant and for the payment of the compensation due to him under Section 72A.”
• *^{*Note: 1. If plantation-lease-(leasing a land when plantation existed)-above-30-acre-}
  • ^{Sec. 72, 72 BB etc. will not apply (such land being excluded from Chapter II, under Sec. 3(1)(viii), KLR Act).}
• ^{2. In case of a plantation-lease-above-30-Acre-}
  • ^{on termination of the lease period, the land lord can resume the land, on the basis of his title; for, the tenant will not have fixity in such case, the land being exempted from the benefits of Chapter II (as per Sec. 3(1)(viii) of the KLR Act).}
• ^{3. The landlords of such plantation will get the benefits (under Sec. 81) and protection from ceiling limit that is stipulated under the provisions of Sec. 82, 83 etc. (that is, there will be no ceiling limit).}
• ^{4. In such a case, the right of landlord may be on a higher level or footing than the tenant (to get compensation).}
• ^{5. It cannot be compared with a plantation that is put up by the tenant. The tenants of such plantation will-}
  • ^{get fixity under Sec. 13 (though they will not get Purchase Certificate),}
  • ^{get the benefits and protection (under Sec. 81) from ceiling limit that is stipulated under the provisions of Sec. 82, 83 etc. (that is, there will be no ceiling limit).}
  • ^{In such a case, the right for compensation, if any, of the landlord will be nil or negligible.}
    • The Division Bench, inter alia, on the above observations directed ‘the State and its officials to take proceedings for the acquisition of the land’.

Criticism on Glen Leven Estate (P) Ltd. v. State of Kerala, 2022-6 Ker LT 439

The Division Bench failed to consider–

• The right, title and interest of the land (above ceiling limit) ‘vest’ with the Government under Sec. 72. It is absolute. It is not a ‘fiction‘; but, it is real and actual (as seen from Sec. 72E and Sec. 112(5A).
•  The nature of this statutory ‘vesting in Govt’ (under Sec. 72) is further clear from – Sec. 72E (tenant has to pay rent for the unassigned land – that is, no purchase certificate is given) .
• Sec. 112(5A) deals with unassigned land (that is, no purchase certificate is given). Under this sub section land-value need not be given to the land-owner or the tenant over and above the “value of the land occupied by the homestead or hut” – that is, the actual area where the ‘homestead or hut’ is situated; whatever may be the area of land outside it.
• This provision is applied to lease-lands vested in Govt. under Sec. 72 and no purchase certificate is given (to the tenant)., in case of acquisition).
• Sec. 72B(2) KLR Act spells-out that a cultivating tenant will get Purchase Certificate for the extent below the ‘ceiling limit’ alone. That is, the tenant has no “absolute rights” above the ceiling limit.
• Plantation-lands, usually, involve Hundreds or Thousands of Acres of “excess” land. The assignment-possible-land (within ceiling limit) may be miniscule (7.5 acres or 15 acres). Therefore, the analogy drawn by the Bench (tenant has a right seek assignment) is not apt at all.
• When land vested in Govt. under Sec. 72 is acquired, in the light of Sec. 112(5A) land-value need not be given to the land-owner or the tenant, over and above the “value of the land occupied by the homestead or hut” – that is, the actual area where the ‘homestead or hut’ is situated; whatever may be the area of land outside it.
• The aforesaid provision of law in the KLR Act is legislated following Proviso to Article 31A(1) of the Constitution which says that the State need not pay compensation to the land owners (when land is acquired) above the ‘ceiling limit‘.
• The rights of ‘tenants’ of Plantations, to continue in the land till the plantation exists, after vesting the land with Govt., is a ‘Legal Right conferred by Statute’. It is not Tenancy – for no landlord-tenant relation with the Govt. It is not a Grant or Licence/Permission – for such rights arise from a contract (express or implied). Therefore, it can be termed only as a “Legal Right conferred by Statute“, the KLR Act.
• It goes without saying – If no compensation is payable to the land-owners above the ceiling limit, it need not be given to tenants.
• It is most unjustifiable to confer undue rights or benefits to the plantation-tenants (majority are BIG Companies) which had not been given to Maharaja of Travancore (whose 191 acres of lands in Thiruvananthapuram – above the ceiling limit, 15 acres – in the City was ‘mercilessly’ taken under the Orders of the Land Board Trivandrum, No. LB(B)2-18919/70, dated 15.01.1972). It is a sheer fact that lands of thousands of middleclass property owners was also harshly taken by under the provisions of the Act. (Note: Only limited right to continue the specified plantation-crop alone is given by the ‘exemption’; and, according to law, in case the land is ‘converted’, the exemption-benefit would be lost.)

No Land value to be given for the “excess” land (Beyond Ceiling Limit)

Under Sec. 112(5A) the claimants will not be entitled (on acquisition of the land) for the compensation for the entire area. It is limited to the following –

• “building or other improvements“
• “land occupied by the homestead or hut”
• “any building or other improvements“.

It is true, “exemption” is given to plantation, to hold land over and above ceiling limit. It is only a statutory permission to continue, subject to conditions. It will be lost when it is “fragmented” or the crop is abandoned. As stated elsewhere, it is also most unjustifiable to confer undue rights or benefits to the plantation owners or tenants (majority are BIG Companies) which had not been given to thousands of middleclass property owners whose property had been harshly sized or expropriated under the provisions of the KLR Act.

The Govt. is Entitled Reasonable ‘Rent’ and Land Tax

The land being vest in Govt., it can collect reasonable ‘rent’. Sec. 72E reads as under:

• 72E. Rent of holdings vested in Government but not assigned to cultivating tenants. – Where in respect of any holding or part thereof, the right, title and interest of the landowner and intermediaries have vested in the Government under Section 72 and the cultivating tenant is not entitled to the assignment of such right, title and interest by virtue of Sub-section (1) of Section 72, the cultivating tenant shall be liable to pay to the Government the rent payable under this Act from the date of vesting under Section 72.

With respect to payment of tax it is stated as under in Sec. 72S:

• 72S. Liability for assessment alter the date of vesting under Section 72. (1)] Notwithstanding anything contained in the Kerala Land Tax Act, 1961, or in any other law for the time being in force, or in any contract, where the right, title and interest of the landowner and the intermediaries, if any, in respect of a holding have vested in the Government under Section 72, the cultivating tenant of that holding shall be liable to pay the basic tax payable in respect of that holding under the said Act and other taxes and cesses due in respect of that holding.
• (2) In the case of a holding or part of a holding in respect of which an application for resumption under the provisions of this Act is rejected, the cultivating tenant shall be liable to pay the basic tax and other taxes and cesses in respect of such holding or part of the holding, as the case may be, with effect on and from the date notified under Sub-section (1) of Section 72.

PART – V — Civil Court Jurisdiction : Decisions

Supreme Court Decision – Plantation put up by tenant on land leased.

The Supreme Court held in Rt. Rev. Jerome Fernandez vs. Be Be Rubber Estate, 1972 KLT 613.  It is observed as under:

• “It may well be that the legislature thought that it will not be fair or proper to deny the benefit of fixity of tenure to lessees who might have taken on lease extensive parambas or waste land and might have in course of time by their hard toil developed them into plantations.”

When Civil Court can Interfere

• Even when a tribunal is provided for redressal of remedies, the civil courts will have jurisdiction to examine the allegation of non-compliance of the provisions of the statute or of any of the fundamental principles of judicial procedure. If the challenge is only as to the ‘erroneous’ character of the order, other than ‘jurisdictional error’, the suit will not be maintainable. (South Delhi Municipal Corporation v. Today Homes and Infrastructure Pvt.  Ltd.  2019-4 CivCC 150 (SC); 2019-3 CurCC 370(SC); 2019-11 Scale 33).
• When an order is passed by a statutory Land-Tribunal violating a mandatory provision, the order will be illegal, without jurisdiction and a nullity. The civil courts which are courts of “general jurisdiction” can decide whether a tribunal or authority exercising statutory jurisdiction has acted in excess or beyond the statutory powers. The civil courts can interfere when the order of the statutory tribunal or authority is really not an order under the Act conferring jurisdiction on it. In other words, if a tribunal abuses its power or does not act under the Act but in violation of its provisions (Firm Seth Radha Kishan v. Ludhiana Municipality AIR 1963 SC 1547), the jurisdiction of the civil court will not be excluded. The ultimate decision can be challenged, in spite of finality and exclusionary clauses (or provision for appeal/revision), since the jurisdiction had been assumed by the tribunal, where it did not exist, and the decision was not a decision under the Act, but a nullity. (Muhammad Haji v. Kunhunni Nair, AIR  1993 Ker 104).

Civil court to declare and decide on title

• Civil court alone has the jurisdiction to make the declaration and decide on title. [2014(2) Ori. LJ 1008, 1969 P& H 397, 2016(6) AIR Bomb. R. 466]  

Taluk LB cannot initiate action of its own, otherwise than directed by Land Board

State of Kerala Vs. Varkey Mathew, AIR1996 SC 1009:

• “Section 85(7) provides that where any person fails to file the statement, the Land Board shall intimate the fact to the Taluk Land Board and thereupon the Taluk Land Board shall, after necessary enquiries, determine the extent and other particulars of the land or lands which is or are to be surrendered. In other words, the statute prescribes liability on the person who owes or hold the land in excess of the ceiling limit and if such a person fails to file the statement in accordance with law, the Board is enjoined to proceed against such person.”

Whether Private Land or Government Land – Outside jurisdiction of TLB

• The Kerala High Court, in Jagadeesachandran Nair Vs. Mamomohanan Pandarathil, 2013 (4) KLT 584, refused to call for the TLB proceedings in the Writ Petition filed by the State of Kerala before the High Court for calling for the records of the Taluk Land Board constituted under the Kerala Land Reforms Act to quash certain proceedings, claiming that the large extent of land held by the respondent was liable to be forfeited under the Kerala Escheats and Forfeitures Act, 1950. The State contended that there was gross violation of the land laws and FERA. The State also asserted a fraud on the Constitution of India, warranting immediate action in public interest and based on public policy as enjoined under Article 296 of the Constitution.
• Analysing this decision it is pointed out in Harrisons Malayalam Ltd, v. State of Kerala, 2018 (2) Ker LT 369, that in Jagadeesachandran’s case it was noticed that the question whether the land was a private land or a government land was totally outside the scope of the proceedings pending before the TLB.

Ancillary relief could also be granted by the civil court

• In law, when the main relief, title declaration, is cognisable by civil court the ancillary relief would be immaterial for determination of proper forum; and in such cases the ancillary relief could also be granted by the civil court.  [Ram Awalamb v. Jata Shankar, 1969 All. 526, 1982 Raj. 91, 2011(3) ARC 279] 

Is the Tenant of a Plantation a “Cultivating Tenant”?

• Yes.
• Sec. 2(8) defines cultivating tenant as under:
• “Cultivating tenant“ means a tenant who is in actual possession of, and is entitled to cultivate, the land comprised in his holding.”

Can Purchase-Certificate be given to Plantation-Land, over & above Ceiling-Limit?

• No.
• Because, under Sec. 72B(2) a cultivating tenant is entitled to get assigned the area within the ceiling limit under Sec. 82 alone.

Sec. 72B reads as under:

• “72B. Cultivating tenants right to assignment. – (1) The cultivating tenant of any holding or part of a holding, the right, title and interest in respect of which have vested in the Government under Section 72, shall be entitled to assignment of such right, title and interest:
• Provided that
• (a) no cultivating tenant shall be entitled to assignment of the right, title and interest in respect of any holding or part of a holding under this Section if he, or if he is a member of a family, such family, owns an extent of land not less than-the ceiling area.
• (b) where the cultivating tenant or, if he is a member of a family, such family, does not own any land or owns an extent of land which is less than the ceiling area, he shall be entitled to the assignment of the right, title and interest in respect of only such extent of land as will, together with the land, if any, owned by him or his family, as the case may be, be equal to the ceiling area.
• Explanation. – In calculating the extent of land owned by the cultivating tenant or, where he is a member of a family, by such family, for the purposes of clauses (a) and (b) of the foregoing proviso, the portion of the land owned by such cultivating tenant or by the family, which is liable to be assigned to the cultivating tenants holding under him or such family, shall not be taken into account.
• (2) The provisions of Section 82 shall, so far as may be, apply to the calculation of the ceiling area for the purposes of the proviso to Sub-section (1);
• Provided that if no date has been notified under Section 83, the date notified under Section 72 shall be deemed to be the date notified under Section 83.
• (3) Any cultivating tenant entitled to assignment of the right, title and interest in respect of a holding or part of a holding under Sub-section (1) may apply to the Land Tribunal within whose jurisdiction such holding or part is situate within two years from the dote of vesting of such right, title and interest in the Government under Section 72, or such further time as may be allowed by the Government in this behalf, for such assignment to him.
• (4) An application under Sub-section (3) shall contain the following particulars, namely:
• (a) the village, survey number and extent of the holding or part to which the assignment relates.
• (b) the name and address of the landowner and intermediaries and also of every other person interested in the land and the nature of their interest so far as they arc known to him;
• (c) the particulars regarding the other lands owned or held by him or if he is a member of a family; by such family; and
• (d) such other particulars as may be prescribed.
• (5) Where a cultivating tenant is entitled to the assignment of the right, title and interest in respect of only a portion of the holding held by him, he may indicate in the application under Sub-section (3) his choice of the portion to which the assignment shall relate.”

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

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

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

• “will have to first prove their claim of being a cultivating tenant, entitled to fixity of tenure, under the provisions of the KLR Act through a proper process of law.“

It is held as under:

• “This is pertinent because, under Section 72B(3) of the KLR Act, it is legally obligated on every cultivating tenant, entitled to assignment of right, title and interest in respect of any property, to apply to the Land Tribunal, within whose jurisdiction that the property is situated, within two years from the date of vesting of such title and interest.”

It is based upon the following principles of law:

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

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

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

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

Sec. 73B(3) reads as under:

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

The Legal Basis of Balanoor Plantations case

It is definite: It is for adjudicating the ‘tenancy right’, by the Land Tribunal – for, the Land Tribunal is the only authority that can decide on the “tenancy right.” (It is the principle applied in the Balanoor case.)

• Note: A tenant cannot declare himself to be a cultivating-tenant and avail benefits – the competent statutory authority (for the same) under the KLR Act is the Land Tribunal.
• Land Board or Taluk Land Board (deals with exemption on the ground of plantation, excess land issues etc.) cannot adjudicate on tenancy right.

Tenant has to pay Rent to the Government

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

End Notes

Relevant provisions of KLR Act, in a Nutshell

Section	Provisions in a Nutshell
Chap. II  3(1)	Exemptions – (i) Nothing in this Chapter shall apply to – (viii) Tenancies of plantations exceeding 30 acres. “Provided that the provisions of this chapter, other than sections 53 to 72S, shall apply to tenancies in respect of agricultural lands which are treated as plantations under sub clause (c) of clause (44) of Section 2”.
7 E	Persons acquired lands (before 2005 amendment in KLR Act) for consideration below 1 Hec. 61 Are 87 Sq.m. (4 acre) will be deemed to be tenants .
13	Fixity: “Every tenant, shall have fixity of tenure in respect of his holding.”
59	Deposit of purchase price and issue of certificate – to cultivating tenant.
72	Sec. 72 provides for automatic vesting of lease-properties held by cultivating tenants in Govt.  ILR 2010(2) Ker. 845.  72(1) says: Holdings upon which tenanat entilted fixity under sec. 13 vest in govt. 72(4) – says: Landowner entitled to resume land shall apply within the time fixed. Otherwise vest in govt. Rule 5 of the Vesting & Assignment Rules provides – LT may suo moto – notwithstanding no application – assign to cultivating tenant. (See  S.72C also).
72B	Cultivating-tenant “shall be entitled to assignment” of land vested in Govt. under Sec. 72 –within ceiling area and get purchase certificate (through LT) (2 years from 1-1-1970). Effect of non-filing (See Balanoor Plantations case. 2018(3) KLT 283.)
72E	Such a tenant is liable to pay rent to the Govt. for the unassigned land – under Purchase Certificate (E.g., exempted-plantation-land). The Land Tribunal fixes the rent under Sec. 72F(5)(h).
72C	Provides for suo moto action by LT. (No time limit,)
72K	LT shall issue purchase certificate.  It shall be conclusive proof of assignment.
74	Prohibition of future tenancies.
Chap. III  81	Exemption from ceiling and excess for Govt. lands, private forests, plantations, industrial or commercial undertaking etc. Proviso – There will be exemption (as plantation, land given to educational institution, trust etc.) on Government lands, given under grant, lease etc. See: HMT (Machine Tools) Limited v. Taluk Land Board, 2009 (3) KLJ 110; MT Joseph v.  State of Kerala, AIR 1974 Ker 28.
82	Ceiling area – 5/10 standard acres.
83	No person can hold or possess excess of ceiling area. (Holding is by tenant.)  It is a total bar. (Note:  plantations, industrial area etc. are exempted.) Apply to tenant also. 1980 KLT 259 (Gopalan Nair Vs. State), 1976 KLT 306  (Thomas Mariamma Vs. TLB), Raghunath Laxman Wani v. The State of Maharashtra (AIR 1971 SC 2137) The policy of the Act – no person –“be permitted to hold any land in excess of the ceiling area.” Raghunath Laxman Wani v. State of Maharashtra, 1971-3 SCC 391, Bhikoba Shankar Dhumal v. Mohan Lal Punchand Tatbed, 1982-1 SCC 680, State of U.P v. Civil Judge, Nainital, AIR 1987 SC 16, State Vs. Puliyangattu, 2008(1) KLJ 571.
84	Certain transfers – void.
85(1)	Surrender excess.
85(2)	Owners and Tenants (in excess of the ceiling area) should furnish ceiling return to Land Board before March31, 1971, before the Land Board (including lands exempted under S. 81). Effect of non-filing: See – Balanoor Plantations case – 2018(3) KLT 283. State of Kerala Vs. Varkey Mathew, AIR 1996 SC 1009
85(3)	Excess shall be surrendered. Note: Tenant must have approached the LT (with respect to each plantation, if he has more plantations) (He cannot declare himself a tenant) It is clear from the following provisions: (Before 1. 1. 1970) S. 54(1) – A cultivating tenant has to apply to LT(for the purchase of right, title and interest.) S. 55 – Purchase price and fair rent fixed by LT S. 57 – LT after giving notice and enquiries, pass orders (on the application for the purchase of right, title and interest). S. 57(3) – LT allots the purchase land it determines. S. 57(6) – The Land Tribunal forwards a copy of orders to the Land Board. S. 61 – Cultivating tenant to pay rent (under orders of LT) S. 59 – The purchase price shall be deposited with the LT (to the credit of the Land Board) and issue of certificate – to cultivating tenant. (After 1. 1. 1970) S. 72B – cultivating tenant to apply to the LT, for Purchase Certificate. S. 72D. The cultivating tenant has to pay purchase price to the Government [fixed by the LT] on the assignment to him of the right, title and interest of the landowner. (If the extent of land is one hectare or below, he shall not be liable to pay.) S. 72F(5) – Land Tribunal shall issue notice to consider the claims and objections from the land owner or intermediaries, and pass an order specifying, inter alia, the rent [under S. 72F(5)(h) ] payable by the cultivating tenant to the Government. S. 72F(6) & (7) – LT shall pass Orders on encumbrance or charge for maintenance or alimony and compensation payable to the landowner or that intermediary. It is not lawful to initiate Suo Motu proceedings (under Section 72C) by the Government for the benefit of a Plantation Tenant (entitled, within the time allowed, to purchase a certificate below the ceiling limit), because Explanation II to Section 87 disfavours the fragmentation of the plantation land. Still, because of subsection (3) of Section 85, the tenant could have obtained a purchase certificate (under Section 72B) within the statutory period. It is the principle applied in the Balanoor case. Note: (i) The sub-section (3) itself says as to the settlement of claims for resumption and purchase of the right, title, and interest of the landowner by the cultivating tenant, (ii) LT is the only authority to determine tenancy (Land Board cannot determine it), and (iii) it is clear that even if it is a plantation-exemption-land (beyond ceiling limit), the tenant has to file petition under Section 54 – for fixing Purchase price and fair rent fixed by LT and for allotting the land under section 57(3) and for effecting the payments of ‘rent’ and ‘purchase price’(to the credit of the Land Board)  under sec. 61 and 59.
85(5)	Land Board shall determine – extend to be surrendered
85(7)	Whereon a person fails to file statement under 85(2), LB shall intimate TLB  –  TLB shall determine land to be surrendered. Effect of non-filing: See – Balanur Plantations case (With respect to Sec. 72B application) – 2018(3) KLT 283. Statute prescribes liability on the person who owes or hold the land in excess of the ceiling limit to file statement:  State of Kerala Vs. Varkey Mathew, AIR 1996 SC 1009. [TLB not to do, suo motu, without direction from LB. 1980 KLT 120, referred to in 2019(1) KLT 985.]
85A	File ceiling return within March  2, 1973 before Land Board..
86(1)	On determination of the extent to be surrendered under S. 85- Excess vests in Govt. and Taluk Land Board shall issue an order accordingly.
86(3)	Where any person fails to surrender as demanded, the TLB may order an officer to take possession
86(4)	Where any land, vests in the Govt, under s. 86(1) (including that of cultivating tenant) the ownership of such land shall vest in the Govt.
86(6)	Nothing applies to property of Govt. under KLC Act.
87 Exp. II	If a person converts any portion of exempted land for any other class, that converted extent will be added to his account in determining his ceiling limit. That is, the exemption will be lost for the portion that exceeds the ceiling limit. (Mathew K Jacob v. District Environmental Impact Assessment Authority, 2018-4 KLT 913)

Section 81 — Exemptions

(1) The provisions of this Chapter shall not apply to —
(a) lands owned or held by the Government of Kerala or the Government of any other State in India or the Government of India or a local authority [or the Cochin Port Trust] or any other authority which the Government may, in public interest, exempt, by notification in the Gazette, from the provisions of this Chapter:
  Provided that the exemption under this clause shall not apply to lands owned by the Government of Kerala and held by any person under lease whether current or time expired or otherwise.
  Explanation I. — “Lands owned by the Government of Kerala” shall, for the purposes of this clause, have the same meaning as “Government Lands” under Sub-section (1) of Section 2 of the Kerala Government Land Assignment Act, 1960; but lands escheated to the Government and held by tenants entitled to fixity of tenure under Section 13 shall not be deemed to be lands owned by the Government of Kerala.
  Explanation II. — Lands, the right, title and interest in respect of which have vested in the Government under Sub-section (9) of Section 66 or Section 72, shall not be deemed to be “lands owned by the Government of Kerala” for the purposes of this clause.
  Explanation III. — For the purposes of this clause, “other authority” shall include a corporation owned or controlled by the Government of Kerala or the Government of any other State in India or the Government of India.
(b) lands taken under the management of the Court of Wards:

Provided that the exemption under this clause shall cease to apply at the end of three years from the commencement of this Act;
(c) lands comprised in mills, factories or workshops and which are necessary for the use of such mills, factories or workshops;
(d) private forests;
(e) plantations;
(f) [cashew estates — dry land principally cultivated with not less than 150 cashew trees per hectare];
(g) [other exempted categories — e.g., various commercial, institutional, religious and educational sites] …

READ CONNECTED BLOGS (CLICK):

• Freehold Property in Law
• What is Patta or Pattayam?
• Does ‘Pandaravaka Pattom’ in Kerala Denote Full-Ownership?
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• Land Acquired Cannot be Returned – Even if it is Not Used for the Purpose Acquired
• FERA, 1973 And Transfer of Immovable Property by a Foreigner
• Relevant provisions of Kerala Land Reforms Act in a Nutshell
• Land Tenures, and History of Land Derivation, in Kerala
• ‘Janmam’ Right is FREEHOLD Interest and ‘Estate’ in Constitution – By Royal Proclamation of 1899, The Travancore Sircar became Janmi of Poonjar Raja’s Land
• Grant in Law

Read Also

•• Plantations & Industries Ltd. v. State of Kerala – Based on the Principle: LT to fix Tenancy; TLB to Fix Plantation-Exemption   •• Kerala Land Reforms Act – Provisions on Plantation-Tenancy and Land-Tenancy in a Nutshell •• Plantation-Tenants Not Approached The Land Tribunal are Ineligible for Plantation-Exemption-Orders from the Land Board •• Relevant Provisions of Kerala Land Reforms Act – on Purchase Certificate,  Plantation Exemption & Ceiling Area – in a Nutshell •• Plantation Exemption in Kerala Land Reforms Act–in a Nutshell •• Civil Court to Adjudicate Title; Land Tribunal to Fix Tenancy; Taluk Land Board to Determine Plantation Exemption •• Government is the OWNER of All Leasehold-Plantation-Lands in Kerala. •• Liability of Certain Plantation Tenants to Pay Rent To the Government: New Rules can be Made for its Effective Implementation •• Law on Acquisition of Private (Leasehold) Plantation Land in Kerala •• Glen Leven Estate v. State of Kerala: Not Correctly Decided? •• Exempted Plantation Land – In whom Ownership Vests •• Plantation-Exemption Does Not Confer Ownership over the Land •• Can the Ownership of (Exempted) Plantation (Above Ceiling Limit) be Changed? Can Plantation be Fragmented? •• Do the Plantation-Tenants have a Right to Seek ‘Assignment’ of the Entire Plantation-Tenancy-Land, beyond the Ceiling Limit (under Purchase Certificates)? •• Acquisition of (Exempted) Plantation Property: Should the Govt. Pay Full Land Value to Land-Owners/Tenants?

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

• Can an ‘Ex-parte’ Defendant Cross Examine Plaintiff’s Witness?
• Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act
• Civil Rights and Jurisdiction of Civil Courts
• Res Judicata and Constructive Res Judicata
• Order II, Rule 2 CPC – Not to Vex Defendants Twice
• Pleadings Should be Specific; Why?
• Pleadings in Defamation Suits
• UNDUE INFLUENCE and PLEADINGS thereof in Indian Law
• PLEADINGS IN ELECTION MATTERS
• Declaration and Injunction
• Law on Summons to Defendants and Witnesses
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Sec. 91 CPC and Suits Against Wrongful Acts
• Remedies Under Sec. 92 CPC
• Mandatory Injunction – Law and Principles
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Interrogatories: When Court Allows, When Rejects?
• Decree in OI R8 CPC-Suit & Eo-Nomine Parties
• Pecuniary & Subject-Matter Jurisdiction of Civil Courts
• Transfer of Property with Conditions & Contingent Interests
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Doctrine of Substantial Representation in a Suit by or against an Association
• Who are Necessary Parties, Proper Parties and Pro Forma Parties in Suits
• What is Partnership, in Law? How to Sue a Firm?
• ‘Legal Representatives’, Not ‘Legal Heirs’ to be Impleaded on Death of Plaintiff/Defendant
• Powers and Duties of Commissioners to Make Local Investigations, Under CPC
• Burden of Proof – Initial Burden and Shifting Onus
• Is it Mandatory to Set Aside the Commission Report – Where a Second Commissioner is Appointed?
• Can a Commission be Appointed to Find Out the Physical Possession of a Property?
• Rules on Burden of proof and Adverse Inference
• Pendente Lite Transferee Cannot Resist or Obstruct Execution of a Decree
• Family Settlement or Family Arrangement in Law
• ‘Possessory Title’ in Indian Law
• Will Findings of a Civil Court Outweigh Findings of a Criminal Court?
• Waiver and Promissory Estoppel

Power of attorney

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

Title, ownership and Possession

• Section 27, Limitation Act Gives-Rise to a Substantive Right so as to Seek Declaration and Recovery
• Sale Deeds Without Consideration – Void
• Recovery of Possession Based on Title and on Earlier Possession
• Title and Ownership in Indian Law
• Does ‘Abandonment’ Give rise to a Recognised Right in Indian Law?
• POSSESSION is a Substantive Right in Indian Law
• 22nd Law Commission  Report on ‘Law on Adverse Possession’
• Government of Kerala v. Joseph – Law on Adverse Possession Against Government
• How to Plead Adverse Possession? Adverse Possession: An Evolving Concept
• Adverse Possession: Burden to Plead Sabotaged
• Does ‘Abandonment’ Give rise to a Recognised Right in Indian Law?
• When ‘Possession Follows Title’; ‘Title Follows Possession’?
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• ‘Mutation’ by Revenue Authorities & Survey will not Confer ‘Title’
• Preemption is a Very Weak Right; For, Property Right is a Constitutional & Human Right
• Transfer of Property with Conditions & Contingent Interests
• Family Settlement or Family Arrangement in Law
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• ‘Possessory Title’ in Indian Law
• Kesar Bai v. Genda Lal – Does Something Remain Untold?
• Grant in Law

Adverse Possession

• How to Plead Adverse Possession? Adverse Possession: An Evolving Concept
• Adverse Possession: Burden to Plead Sabotaged
• Does ‘Abandonment’ Give rise to a Recognised Right in Indian Law?
• When ‘Possession Follows Title’; ‘Title Follows Possession’?
• Government of Kerala v. Joseph – Law on Adverse Possession Against Government
• ‘Possessory Title’ in Indian Law
• Ouster and Dispossession in Adverse Possession

Principles and Procedure

• Doctrines on Ultra Vires, Rule of Law, Judicial Review, Nullification of Mandamus, and Removing the BASIS of the Judgment
• Can an ‘Ex-parte’ Defendant Cross Examine Plaintiff’s Witness?
• Will – Probate and Letters of Administration
• Appreciation of Evidence by Court
• Effect of Not Cross-Examining a Witness & Effect of Not Facing Complete Cross-Examination by the Witness
• Suggestions & Admissions by Counsel, in Cross Examination to Witnesses
• Best Evidence Rule in Indian Law
• Declaration and Injunction
• Pleadings Should be Specific; Why?
• Does Alternate Remedy Bar Civil Suits and Writ Petitions?
• Void, Voidable, Ab Initio Void, and Sham Transactions
• Can Courts Award Interest on Equitable Grounds?
• Natural Justice – Not an Unruly Horse
• ‘Sound-mind’ and ‘Unsound-Mind’
• Prescriptive Rights – Inchoate until the Title thereof is Upheld by a Competent Court
• Can a Party to Suit Examine Opposite Party, as of Right?
• Forfeiture of Earnest Money and Reasonable Compensation
• Doctrine of ‘Right to be Forgotten’ in Indian Law
• Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act

Admission, Relevancy and Proof

• Relevancy, Admissibility and Proof of Documents
• Admission of Documents in Evidence on ‘Admission’
• Proof and Truth of Documents
• Proof of Documents & Objections To Admissibility – How & When?
• Burden of Proof – Initial Burden and Shifting Onus
• Appreciation of Evidence by Court
• Production, Admissibility & Proof Of Documents
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Marking Documents Without Objection – Do Contents Proved
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
• Oral Evidence on Contents of Document, Irrelevant
• Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act

Land Laws/ Transfer of Property Act

• Does ‘Pandaravaka Pattom’ in Kerala Denote Full-Ownership?
• Transfer of Property with Conditions & Contingent Interests
• Vested Remainder and Contingent Remainder
• Vested interest and Contingent Interest
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• Land Acquired Cannot be Returned – Even if it is Not Used for the Purpose Acquired
• ‘Mutation’ by Revenue Authorities & Survey will not Confer ‘Title’
• FERA, 1973 And Transfer of Immovable Property by a Foreigner
• Marumakkathayam – A System of Law and Way of Life Prevailed in Kerala
• Relevant provisions of Kerala Land Reforms Act in a Nutshell
• Land Tenures, and History of Land Derivation, in Kerala
• ‘Janmam’ Right is FREEHOLD Interest and ‘Estate’ in Constitution – By Royal Proclamation of 1899, The Travancore Sircar became Janmi of Poonjar Raja’s Land
• Government is the OWNER of (Leasehold) Plantation Lands in Kerala.
• Sale Deeds Without Consideration – Void
• Law on Acquisition of Private Plantation Land in Kerala
• Law on SUCCESSION CERTIFICATE and LEGAL HEIRSHIP CERTIFICATE
• Grant in Law

Evidence Act – General

• Evidence in Court – General Principles
• Expert Evidence and Appreciation of Evidence
• How to Contradict a Witness under Sec. 145, Evidence Act
• Rules on Burden of proof and Adverse Inference
• Best Evidence Rule in Indian Law
• What is Collateral Purpose?
• Burden of Proof – Initial Burden and Shifting Onus
• Appreciation of Evidence by Court
• Effect of Not Cross-Examining a Witness & Effect of Not Facing Complete Cross Examination by the Witness
• Suggestions & Admissions by Counsel, in Cross Examination to Witnesses
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• How to Prove a Will, in Court?Is Presumption enough to Prove a Registered Will?
• Significance of Scientific Evidence in Judicial Process
• Polygraphy, Narco Analysis and Brain Mapping Tests
• What is Section 27 Evidence Act – Recovery or Discovery?
• How ‘Discovery’ under Section 27, Evidence Act, Proved?
• Pictorial Testimony Theory and Silent Witnesses Theory
• Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act

Sec. 65B

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

Law on Documents

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

Interpretation

• Interpretation of Statutes – Literal Rule, Mischief Rule and Golden Rule
• Interpretation of Documents – Literal Rule, Mischief Rule and Golden Rule
• Interpretation of Wills
• Appreciation of Evidence by Court

Contract Act

• ‘Sound-mind’ and ‘Unsound-Mind’ in Indian Civil Laws
• Forfeiture of Earnest Money and Reasonable Compensation
• Who has to fix Damages in Tort and Contract?
• UNDUE INFLUENCE and PLEADINGS thereof in Indian Law
• Can an Unregistered Sale Agreement be Used for Specific Performance

Law on Damages

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

Easement

• Easement Simplified
• What is Easement? Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?
• Prescriptive Rights – Inchoate until the Title thereof is Upheld by a Competent Court
• Will Easement of Necessity Ripen into a Prescriptive Easement?
• What is “period ending within two years next before the institution of the suit”?
• Is the Basis of Every Easement, Theoretically, a Grant
• Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant
• Can Easement of Necessity and of Grant be Claimed in a Suit (Alternatively)?
• “Implied Grant” in Law of Easements
• Can an Easement-Way be Altered by the Owner of the Land?
• Village Pathways and Right to Bury are not Easements.
• Custom & Customary Easements in Indian Law
• ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition
• Grant in Law

Stamp Act & Registration

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

Will

• How to Prove a Will, in Court?Is Presumption enough to Prove a Registered Will?Interpretation of Wills
• Interpretation of Inconsistent Clauses in a Will
• Will – Probate and Letters of Administration
• Executors of Will – Duties & their Removal
• How to Prove a Will, in Court?Is Presumption enough to Prove a Registered Will?
• How to Write a Will? Requirements of a Valid Will
• When Execution of a Will is ‘Admitted’ by the Opposite Side, Should it be ‘Proved’?

Arbitration

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

Divorce

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

Negotiable Instruments Act

• “Otherwise Through an Account” in Section 142, NI Act
• Where to file Cheque Bounce Cases (Jurisdiction of Court – to file NI Act Complaint)?
• Cheque Dishonour Case against a Company, Firm or Society
• What is ‘Cognizance’ in Law

Book No. 2: A Handbook on Constitutional Issues

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

Religious issues

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

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

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

Book No. 4: Common Law of TRUSTS in India

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

Saji Koduvath, Advocate, Kottayam

Propositions on Possession in a Nutshell

• Possession is a substantive right.
• It is heritable and transferable.
• Courts protect settled possession.
• Injunction is a possessory remedy.
• Possessory title is a good title as against everybody other than the lawful owner.
• Injunction will not be passed to favour a trespasser or a person in unlawful possession.
• It will suffice if he can prove his lawful possession (Rame Gowda v. M. Varadappa Naidu, 2004-1 SCC 769).
• Even if the plaintiff is a trespasser, injunction will be granted if he can prove that his possession is settled/established.
• If the possession of the plaintiff is ‘settled/established’, injunction will be ordered against a true owner. In such a case, the ‘injunction’ will be subject to the (result of) claim of recovery (if any) in a proper suit, by the true owner.
• It is not necessary for the person (in possession) claiming injunction, to prove his title – as long as the defendant does not claim title.
• Person in ‘settled/established possession’ may get injunction against true owner (not to disposes otherwise than on due process of law); but, it cannot be claimed after cancellation (by court) of the sale deed he relied (Padhiyar Prahladji Chenaji v. Maniben Jagmalbhai, 2022 SCC OnLine SC 258.

Possession is a Substantive Right

Possession by itself is a substantive right recognised by law. It is heritable and transferable, as explained in the following decisions –

• Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165,
• Kuttan Narayanan v. Thomman Mathayi, AIR 1966 Ker 179;
• Phirayalal Kapur v. Jia Rani, AIR 1973 Delhi 186;
• Nallammal v. Ayisha Beevi, 2017-5 Mad LJ 864). 

Settled Possession, Established Possession & Possessory Title

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

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

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

Possessory Title

The term ‘Possessory Title’ (in contrast to legally recognised ‘title appertain to ownership’) arises in the following situations-

• 1. Acquisition of ‘Original Title’: It is acquisition of title contradistinct to ‘derivative’ acquisition of title.
• 2. Possessory Title: ‘Possessory Title’ against everybody other than the lawful owner (For, possession by itself is a substantive right and good title; and ‘Right to Possession’ is a “Property”, under law).
• 3. Statutory title by Adverse Possession: Perfection of title by ‘Adverse Possession’ against the true owner; i.e., (legal) acquisition of title as recognised by Sec. 27 of the Limitation Act. (K V Swamynathan v. E V Padmanabhan, 1991-1 JT 83, 1990-2 Scale 1326)

‘Possessory Title’- On the Premise that ‘Possession’ is a Substantive Right

One who captures a property belonging to none, or reduces such a property to his possession, gets good title against the whole world – as in the case of birds in the air and fishes in the water. And, if it belongs to another, possession of the holder of such property is good title against all but the true owner (Somnath Barman v. Dr. SP Raju AIR 1970 SC 846, 1969-3 SCC 129); because, possession is the most important objective expression of ownership. According to Salmond, possession is the most basic relationship between men and things, and the possessor should have the ‘animus’ to possess the ‘corpus’.

‘Rival Titles’ in Adverse Possession – Title by ownership & Title by possession

Possessory title by adverse possession is basically a philosophical concept of property law; and it is merely acknowledged in common law and in the Limitation Act. It is explained in the thought provoking article, “Possessory Title: Its True Nexus with the Law of Limitation and the ‘Theory of Relativity’ ” by Anoop Bhaskar, Advocate, Thiruvananthapuram (2022 KLT). It is also pointed out that there are two ‘rival titles’ in a case of adverse possession; i.e., title by ownership (pertain to true owner) & title by possession (pertain to trespasser).

When a plea on adverse possession is propped up, the judicial determination is warranted on rival claims on ‘title on ownership’ and ‘title by adverse possession’; and also, ‘presumptions on title’ and ‘presumptions on possession’. If the trespasser can prove adverse possession against the true owner, as provided under Article 65 of the Limitation Act, the law favours the trespasser endorsing his Possessory Title. The learned author lays down the doctrine of ‘preference’ upon the two ‘rival titles’ as under:

• “It is true by the operation of limitation prescribed under Article 65, the prior owner loses his right or remedy to sue for possession based on title. At this point, the adverse possessor acquires title by the virtue of original acquisition. … In other words, the possessor will have an entitlement to the right to possess the land against others; i.e., he is having the title to possess. At the same time the prior owner will be denying the adverse possessor’s entitlement to possession and be claiming the entitlement to all the incidents of ownership, including possession. Basically, he will be claiming title to ownership on the land. This is how there will exist two rival titles in the case of a title dispute, i.e., title to ownership & title to possession. Now the Courts will be called upon to measure the strength of each title. If the adverse possessor proves that the prior owner has lost his right to recover possession by way of limitation, it will mean that the title of the prior owner will be weaker than adverse possessor.”

Possessory Title & Adverse Possession

• If ‘no title in either party, possession alone decides’.
• Possession is a good title of right against any one who cannot show a better.

Possession is Good Title Against All but the True Owner

In Somnath Barman v. Dr. SP Raju AIR 1970 SC 846, 1969-3 SCC 129 our Apex Court relied on Narayana Row v. Dharmachar, ILR 26 Mad. 514, where the Madras High Court consisting of Bhashyam Ayyangar and Moore, JJ., held that possession was, under the Indian, as under the English law, good title against all but the true owner. 

‘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.

The Supreme Court of India while accepting this principle in Nair Service Society Ltd. vs. K.C. Alexander, AIR 1968 SC 1165, pointed out that the law in India allows a plaintiff to maintain a possessory suit under Sec. 9 (preset Sec. 6) of the Specific Relief Act. Such a suit can be filed against a title holder, if he had dispossessed the plaintiff ‘otherwise than in due course of law’. It is held in this decision that if ‘no title in either party, possession alone decides‘.

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

• “17. … To express our meaning we may begin by reading 1907 AC 73 (Perry V. Clissold), to discover if the principle that possession is good against all but the true owner has in any way been departed from.
• 1907 AC 73 reaffirmed the principle by stating quite clearly:
  • “It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title.”
• Therefore, the plaintiff who was peaceably in possession was entitled to remain in possession and only the State could evict him. The action of the Society was a violent invasion of his possession and in the law as it stands in India the plaintiff could maintain a possessory suit under the provisions of the Specific Relief Act in which title would be immaterial or a suit for possession within 12 years in which the question of title could be raised.”

Read Blogs (Click): POSSESSION is a Substantive Right in Indian Law

• When ‘Possession Follows Title’; ‘Title Follows Possession’?

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

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

Present Indian Law on Adverse Possession

• In Parry v. Clissold, (1907) AC 73 it was 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 would acquire an absolute title.

After the Limitation Act, 1963, the legal position in India, on Adverse Possession, has been changed as under:

• If the rightful owner did not come forward and assert his title within the period of limitation, his right may be extinguished and the (adverse) possessory owner may acquire an absolute title.

Because,

• Articles 65 of the Limitation Act, 1963 casts onus on the trespasser to prove claims of title by ‘adverse’ possession.

The 3 important modern propositions brought-in as to adverse possession (in India) are:

• Mere ‘animus possidendi’, not enough; there must have animus to dispossess.
• Trespasser must know who the true owner is.
• Burden to plead and prove adverse possession is upon the defendant.

Adverse possession arises from the provisions in Article 65 of Limitation Act, 1963. ‘Positive and hostile acts’ of the trespasser is the pre-requirement of Adverse Possession; because, mere possession is not sufficient  under Article 65, but it requires ‘adverse’ possession.

Read Book No. 5

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

Article 65 of Limitation Act reads as under:

65. For possession of immovable property or any interest therein based on title.

12 years

When the possession of Defendant becomes adverse to the plaintiff.

In T. Anjanappa v. Somalingappa, (2006) 7 SCC 570, it is observed that the possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former’s hostile action.

Following are the other important decisions on adverse possession:

1. Karnataka Board of Wakaf v. Govt of India – AIR 2004 SC 2096
2. PT Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753
3. Ravinder Kaur Grewal v. Manjit KaurAIR 2019 SC 3827.

Adverse Possession – ‘Inchoate’ (Here Indicates, Unadjudicated)

1. Title ripens by operation of law; court only recognises it.
   • Under the Limitation Act, once the claimant establishes continuous, open, and hostile possession for 12 years, the true owner’s title stands extinguished and the possessor’s title is perfected. This occurs by operation of law, not by decree; a court does not create the title but merely declares it.
2. ‘Inchoate’: Here indicates unadjudicated, not legally incomplete.
   • The description of adverse possession as “inchoate” is only a practical expression that the claim has not yet been judicially determined. It does not mean that the right is legally incomplete once the statutory period has run.

Prescriptive Easement Right Inchoate until upheld by a Competent Court

One can acquire the right of easement by prescription. But, prescriptive rights are said to be inchoate (started, but not full-blown) until such title is upheld by a competent court. It was observed in Sultan Ahmad v. Valiullah (1912) 10 ALJ 227, that the result of the Easements Act and the similar provisions of the Limitation Act was that a right of easement could not be said to be perfected until the right was declared by a decree of court. See also:

It was observed in Sultan Ahmad v. Valiullah (1912) 10 ALJ 227, that the result of the Easements Act and the similar provisions of the Limitation Act was that a right of easement could not be said to be perfected until the right was declared by a decree of court.

• Sultan Ahmad v. Valiullah (1912) 10 ALJ 227 is referred to in:
• Nachiparayan v. Narayana Goundan, (1920): 60 Ind Cas 171, (1920) 39 MLJ 574;
• Arjuna Udayar v. Manuswamy Naicker, 1999-1 CurCC 97.
• See also: Tradesh and Miners, Ltd v. Dhirendra Nath Banerjee, AIR 1944 Pat 261.

In Siti Kantapal v. Radha Gobindaen, AIR 1929 Cal 542, it was held as under:

• “It has been authoritatively held that a tie to easement is not complete merely upon the effluxion of the period mentioned in the Statute viz., 20 years and that however long the period of actual enjoyment may be, no absolute or indefeasible right can be acquired until the right is brought in question in some suit, and until it is so brought in question, the right is inchoate only and in order to establish it when brought in question, the enjoyment relied on, must be an enjoyment for 20 years up to within 2 years of the institution of the suit.” (Quoted in – D. Ramanatha Gupta vs S. Razaack, AIR 1982 Kant 314.)

In Ramanunni Vaidyar v. Govindankutty Nair, 1998(2) Ker LT 47, it is found that a person who has not acquired or perfected a right cannot maintain an action against the owner of the land over which the right is claimed. It is held as under:

• In my view, on the basis of an inchoate right or a right which has not ripened into an easement by prescription, but is merely one of user, no relief can be granted to the user of them as against the owner of that land. In other words, a right, properietory or otherwise, has to be shown for obtaining relief (Krishna Pillai v.Kunju Pillai 1990 (1) KLT 136, referred to).

S. 27,  Lim. Act Gives Substantive Right so as to Seek Declaration and Recovery

Generally speaking, the Limitation Act only bars the remedy but doesn’t destroy the right to which the remedy relates to. The exception to the general rule is contained in Section 27 of the Limitation Act, 1963.

Sec. 27 of the Limitation Act speaks that at the determination of the period “hereby limited to any person for instituting a suit for possession of any property”, his right to such property shall be extinguished.

The Limitation Act is an Act of repose. “Adverse possession statutes, like other statutes of limitation, rest on a public policy that do not promote litigation and aim at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence.” (See: PT Munichikkanna Reddy and others v. Revamma, (2007) 6 SCC 59: AIR 2007 SC 1753)

Adverse possession confers title under Sec. 27 (by necessary implication, because extinguished title of real owner comes to vest in wrongdoer – because, rights thereon had already been lost to the true owner, and passed over to the ‘possessory/adverse’ owner).

Therefore it is clear that Sec. 27 is a provision in the Limitation Act that gives a substantial right to a party.

Person Acquiring Title by Adverse Possession can use it as a Sword

In view of Sec. 27 one can seek declaration of title by adverse possession and consequential injunction or recovery. That is why it is held in Ravinder Kaur Grewal v. Manjit Kaur,  AIR 2019 SC 3827: (2019) 8 SCC 729, that the person acquiring title by adverse possession can use it as a sword.

Read Connected Blogs:

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

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Read in this Cluster  (Click on the topic):

Book No, 1 – Civil Procedure Code

• Can an ‘Ex-parte’ Defendant Cross Examine Plaintiff’s Witness?
• Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act
• Civil Rights and Jurisdiction of Civil Courts
• Res Judicata and Constructive Res Judicata
• Order II, Rule 2 CPC – Not to Vex Defendants Twice
• Pleadings Should be Specific; Why?
• Pleadings in Defamation Suits
• UNDUE INFLUENCE and PLEADINGS thereof in Indian Law
• PLEADINGS IN ELECTION MATTERS
• Declaration and Injunction
• Law on Summons to Defendants and Witnesses
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Sec. 91 CPC and Suits Against Wrongful Acts
• Remedies Under Sec. 92 CPC
• Mandatory Injunction – Law and Principles
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Interrogatories: When Court Allows, When Rejects?
• Decree in OI R8 CPC-Suit & Eo-Nomine Parties
• Pecuniary & Subject-Matter Jurisdiction of Civil Courts
• Transfer of Property with Conditions & Contingent Interests
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Doctrine of Substantial Representation in a Suit by or against an Association
• Who are Necessary Parties, Proper Parties and Pro Forma Parties in Suits
• What is Partnership, in Law? How to Sue a Firm?
• ‘Legal Representatives’, Not ‘Legal Heirs’ to be Impleaded on Death of Plaintiff/Defendant
• Powers and Duties of Commissioners to Make Local Investigations, Under CPC
• Burden of Proof – Initial Burden and Shifting Onus
• Is it Mandatory to Set Aside the Commission Report – Where a Second Commissioner is Appointed?
• Can a Commission be Appointed to Find Out the Physical Possession of a Property?
• Rules on Burden of proof and Adverse Inference
• Pendente Lite Transferee Cannot Resist or Obstruct Execution of a Decree
• Family Settlement or Family Arrangement in Law
• ‘Possessory Title’ in Indian Law
• Will Findings of a Civil Court Outweigh Findings of a Criminal Court?
• Waiver and Promissory Estoppel

Power of attorney

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

Title, ownership and Possession

• Section 27, Limitation Act Gives-Rise to a Substantive Right so as to Seek Declaration and Recovery
• Sale Deeds Without Consideration – Void
• Recovery of Possession Based on Title and on Earlier Possession
• Title and Ownership in Indian Law
• Does ‘Abandonment’ Give rise to a Recognised Right in Indian Law?
• POSSESSION is a Substantive Right in Indian Law
• 22nd Law Commission  Report on ‘Law on Adverse Possession’
• Government of Kerala v. Joseph – Law on Adverse Possession Against Government
• How to Plead Adverse Possession? Adverse Possession: An Evolving Concept
• Adverse Possession: Burden to Plead Sabotaged
• Does ‘Abandonment’ Give rise to a Recognised Right in Indian Law?
• When ‘Possession Follows Title’; ‘Title Follows Possession’?
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• ‘Mutation’ by Revenue Authorities & Survey will not Confer ‘Title’
• Preemption is a Very Weak Right; For, Property Right is a Constitutional & Human Right
• Transfer of Property with Conditions & Contingent Interests
• Family Settlement or Family Arrangement in Law
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• ‘Possessory Title’ in Indian Law
• Kesar Bai v. Genda Lal – Does Something Remain Untold?
• Grant in Law

Adverse Possession

• How to Plead Adverse Possession? Adverse Possession: An Evolving Concept
• Adverse Possession: Burden to Plead Sabotaged
• Does ‘Abandonment’ Give rise to a Recognised Right in Indian Law?
• When ‘Possession Follows Title’; ‘Title Follows Possession’?
• Government of Kerala v. Joseph – Law on Adverse Possession Against Government
• ‘Possessory Title’ in Indian Law
• Ouster and Dispossession in Adverse Possession

Principles and Procedure

• Doctrines on Ultra Vires, Rule of Law, Judicial Review, Nullification of Mandamus, and Removing the BASIS of the Judgment
• Can an ‘Ex-parte’ Defendant Cross Examine Plaintiff’s Witness?
• Will – Probate and Letters of Administration
• Appreciation of Evidence by Court
• Effect of Not Cross-Examining a Witness & Effect of Not Facing Complete Cross-Examination by the Witness
• Suggestions & Admissions by Counsel, in Cross Examination to Witnesses
• Best Evidence Rule in Indian Law
• Declaration and Injunction
• Pleadings Should be Specific; Why?
• Does Alternate Remedy Bar Civil Suits and Writ Petitions?
• Void, Voidable, Ab Initio Void, and Sham Transactions
• Can Courts Award Interest on Equitable Grounds?
• Natural Justice – Not an Unruly Horse
• ‘Sound-mind’ and ‘Unsound-Mind’
• Prescriptive Rights – Inchoate until the Title thereof is Upheld by a Competent Court
• Can a Party to Suit Examine Opposite Party, as of Right?
• Forfeiture of Earnest Money and Reasonable Compensation
• Doctrine of ‘Right to be Forgotten’ in Indian Law
• Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act

Admission, Relevancy and Proof

• Relevancy, Admissibility and Proof of Documents
• Admission of Documents in Evidence on ‘Admission’
• Proof and Truth of Documents
• Proof of Documents & Objections To Admissibility – How & When?
• Burden of Proof – Initial Burden and Shifting Onus
• Appreciation of Evidence by Court
• Production, Admissibility & Proof Of Documents
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Marking Documents Without Objection – Do Contents Proved
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
• Oral Evidence on Contents of Document, Irrelevant
• Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act

Land Laws/ Transfer of Property Act

• Does ‘Pandaravaka Pattom’ in Kerala Denote Full-Ownership?
• Transfer of Property with Conditions & Contingent Interests
• Vested Remainder and Contingent Remainder
• Vested interest and Contingent Interest
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• Land Acquired Cannot be Returned – Even if it is Not Used for the Purpose Acquired
• ‘Mutation’ by Revenue Authorities & Survey will not Confer ‘Title’
• FERA, 1973 And Transfer of Immovable Property by a Foreigner
• Marumakkathayam – A System of Law and Way of Life Prevailed in Kerala
• Relevant provisions of Kerala Land Reforms Act in a Nutshell
• Land Tenures, and History of Land Derivation, in Kerala
• ‘Janmam’ Right is FREEHOLD Interest and ‘Estate’ in Constitution – By Royal Proclamation of 1899, The Travancore Sircar became Janmi of Poonjar Raja’s Land
• Government is the OWNER of (Leasehold) Plantation Lands in Kerala.
• Sale Deeds Without Consideration – Void
• Law on Acquisition of Private Plantation Land in Kerala
• Law on SUCCESSION CERTIFICATE and LEGAL HEIRSHIP CERTIFICATE
• Grant in Law

Evidence Act – General

• Evidence in Court – General Principles
• Expert Evidence and Appreciation of Evidence
• How to Contradict a Witness under Sec. 145, Evidence Act
• Rules on Burden of proof and Adverse Inference
• Best Evidence Rule in Indian Law
• What is Collateral Purpose?
• Burden of Proof – Initial Burden and Shifting Onus
• Appreciation of Evidence by Court
• Effect of Not Cross-Examining a Witness & Effect of Not Facing Complete Cross Examination by the Witness
• Suggestions & Admissions by Counsel, in Cross Examination to Witnesses
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• How to Prove a Will, in Court?Is Presumption enough to Prove a Registered Will?
• Significance of Scientific Evidence in Judicial Process
• Polygraphy, Narco Analysis and Brain Mapping Tests
• What is Section 27 Evidence Act – Recovery or Discovery?
• How ‘Discovery’ under Section 27, Evidence Act, Proved?
• Pictorial Testimony Theory and Silent Witnesses Theory
• Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act

Sec. 65B

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

Law on Documents

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

Interpretation

• Interpretation of Statutes – Literal Rule, Mischief Rule and Golden Rule
• Interpretation of Documents – Literal Rule, Mischief Rule and Golden Rule
• Interpretation of Wills
• Appreciation of Evidence by Court

Contract Act

• ‘Sound-mind’ and ‘Unsound-Mind’ in Indian Civil Laws
• Forfeiture of Earnest Money and Reasonable Compensation
• Who has to fix Damages in Tort and Contract?
• UNDUE INFLUENCE and PLEADINGS thereof in Indian Law
• Can an Unregistered Sale Agreement be Used for Specific Performance

Law on Damages

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

Easement

• Easement Simplified
• What is Easement? Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?
• Prescriptive Rights – Inchoate until the Title thereof is Upheld by a Competent Court
• Will Easement of Necessity Ripen into a Prescriptive Easement?
• What is “period ending within two years next before the institution of the suit”?
• Is the Basis of Every Easement, Theoretically, a Grant
• Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant
• Can Easement of Necessity and of Grant be Claimed in a Suit (Alternatively)?
• “Implied Grant” in Law of Easements
• Can an Easement-Way be Altered by the Owner of the Land?
• Village Pathways and Right to Bury are not Easements.
• Custom & Customary Easements in Indian Law
• ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition
• Grant in Law

Stamp Act & Registration

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

Will

• How to Prove a Will, in Court?Is Presumption enough to Prove a Registered Will?Interpretation of Wills
• Interpretation of Inconsistent Clauses in a Will
• Will – Probate and Letters of Administration
• Executors of Will – Duties & their Removal
• How to Prove a Will, in Court?Is Presumption enough to Prove a Registered Will?
• How to Write a Will? Requirements of a Valid Will
• When Execution of a Will is ‘Admitted’ by the Opposite Side, Should it be ‘Proved’?

Arbitration

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

Divorce

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

Negotiable Instruments Act

• “Otherwise Through an Account” in Section 142, NI Act
• Where to file Cheque Bounce Cases (Jurisdiction of Court – to file NI Act Complaint)?
• Cheque Dishonour Case against a Company, Firm or Society
• What is ‘Cognizance’ in Law

Book No. 2: A Handbook on Constitutional Issues

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

Religious issues

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

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

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

Book No. 4: Common Law of TRUSTS in India

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