The Supreme Court found in this case: to attract Order II Rule 2 CPC –
the omission in the fist suit must have been “deliberate“
the relief in the second suit must have been “available” at the time of first suit.
cause of action in both suits must have been the identical in substance and not merely technically.
evidence required to support the claims must have been the same.
Brief Facts: The sale deed executed between the parties could not have been registered owing to the ‘ban’ under a GO. The purchaser filed a suit for injunction to restrain the ‘previous’ owner. Subsequently the GO was quashed by the HC. The second suit for Sp. Performance was resisted by the ‘previous’ owner saying – ‘no injunction against owner’. Trial Court rejected the plaint allowing the Order II Rule 2 CPC petition. First Appellate Court confirmed the Order. But the HC reversed. The SC dismissed the appeal.
Agreement for Sale between plaintiff and defendant
The original plaintiff entered into an agreement for sale of suit property with original defendant no. 1 (owner). The plaintiff (purchaser) was put in possession of the property.
The purchaser visited the office of the Sub Registrar on multiple occasions for the purpose of registering the sale deed executed between the parties. However, the registration was refused pointing out general ban against registration under a G.O. The Writ Petition was filed challenging the decision of the revenue authorities.
Plaintiff (purchaser) filed Suit for injunction
The defendant (owner) started to interfere with the peaceful possession and enjoyment of the plaintiff (purchaser). Hence he filed the “first suit” before the Principal District Judge for permanent injunction to restrain the defendant (owner) from interfering with the peaceful possession and enjoyment of the suit property.
The defendant (owner) in its written statement stated that he was in possession of the suit property, at the time of both the sale agreement and the sale deed. And, that the plaintiff (purchaser) cannot seek an injunction against the appellant, as he was the actual owner in possession of the suit property and that the injunction suit was still pending before the concerned court.
Plaintiff (purchaser) filed the second OS for Specific Performance
Subsequently, the Division Bench of the Madras High Court quashed the G.O. The High Court directed the revenue authorities to receive and register all the documents.
In this situation the plaintiff (purchaser) filed the second Original Suit praying (inter alia) that the defendant (owner) “be directed to specifically perform the terms and conditions of the agreement for sale”.
Argument of Appellant defendant (owner)
In Vurimi Pullarao v. Vemari Venkata Radharani, (2020) 14 SCC 110, it was held that (in the light of earlier injunction suit) the second suit for specific performance was barred under Order II Rule 2.
HC found – no “deliberate omission” in suing for Sp. Performance, earlier
The defendant (owner), contending that the second suit is hit by the bar under Order II Rule 2 CPC, moved an I.A. under Order VII Rule 11 read with Section 151 CPC, for the rejection of plaint. It was allowed by the Trial Court. The First Appellate Court confirmed the order. But the High Court allowed the second appeal ex-parte and restored the plaint finding that the second suit was not hit by the bar under Order II Rule 2. It observed that there was no “deliberate omission on the part of the plaintiff to make a claim in the earlier suit”. The High Court held:
“Further, in a case of this nature wherein the possession of the suit property is said to have been handed over to the agreement holder, it is not an unusual situation of sudden interference by the land owner warranting the agreement holder to file a suit for bare injunction. Therefore, if any such situation arises, the agreement holder cannot be precluded from claiming or seeking an immediate and emergent relief first in order to prevent further damage or abuse. Therefore, filing of such suit for bare injunction also by reserving the right to file a comprehensive suit later cannot be construed or considered as the one arising out of same cause of action in order to bring it under the hammer of Order 2 Rule 2 C.P.C.”
Hence the defendant (owner) filed this Appeal before the Supreme Court.
Findings of the SC, on Order II Rule 2 CPC, in a Nutshell
Appeal is dismissed by the Supreme Court (in Cuddalore Powergen Corporation Ltd. v. Chemplast Cuddalore Vinyls Ltd., Neutral Citation: 2025 INSC 73, J.B. Pardiwala and Justice R. Mahadevan, JJ.) on the following main observations.
i. Order II Rule 2 contemplate – where a plaintiff omits or relinquishes
a part of a claim which he isentitled to make and,
secondly, one out of the several reliefs that he could have claimed in the suit.
ii. The mandate of Order II Rule 2 is the inclusion of the whole claim arising in respect of one and the same cause of action, in one suit; it is not different causes of actionarising from the same transaction.
iii. Several definitions have been given to the phrase “cause of action” and it can safely be said to mean – “every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court”. Such a cause of action has no relation whatsoever to the defence that may be set up by the defendant, nor does it depend upon the character of the relief which is prayed for by the plaintiff but refers to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.
iv. The applicability of Order II Rule 2 is depended upon the particular facts and circumstances of each case.
v. Additionally, if the evidence required to support the claims is different, then the causes of action can also be considered to be different.
vi. The plaintiff must have been entitled to more than one relief in respect of that cause of action.
vii. The plaintiff, without any leave of the Court, omitted to sue for the relief for which the second suit had been filed.
vi. The plaintiff must have deliberately relinquished the relief.
vii. Since the plea is a technical bar, it has to be established satisfactorily and cannot be presumed merely on the basis of inferential reasoning.
The Supreme Court Court held in para 44 as under:
“44. Therefore, the phrase “cause of action” for the purposes of Order II Rule 2 would mean the cause of action which gives an occasion for and forms the foundation of the suit. If that cause enables a person to ask for a larger and wider relief than that to which he limits his claim, he cannot be permitted to recover the balance reliefs through independent proceedings afterwards, especially when the leave of the court has not been obtained.”
Authorities relied on by the Apex Court While Discussing General Principles onOrder II Rule 2
1. Stroud’s Judicial Dictionary: Words and Phrases (4th Edn.): “cause of action” – existence of those facts which give a party the right to judicial interference on his behalf. It is the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which, if traversed, the plaintiff must prove in order to obtain a judgment.
2. Black’s Law Dictionary – Cause of action is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.
3. Halsbury’s Laws of England (4th Edn.): ‘Cause of action’ -simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person. It includes every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. “’Cause of action’ has also been taken to mean that particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject-matter of grievance founding the action, not merely the technical cause of action.”
4. Mohammad Khalil Khan v. Mahbub Ali Mian, AIR 1949 PC 78
“Cause of action” is facts for the Plaintiff to prove to get a judgment
It depends on the particular facts of each case.
It is the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.
The test is whether the foundation of the cause of action is distinct from that of the former suit.
Theevidence to support the claimsdetermines whether the cause of action is different or not.
The causes of action is same if they are identical in substance and not merely technically identical.
Cause of actiondistinct from that which was the foundation of the former suit.
The cause of action has no relation to the defence that may be set up by the defendant. It is not depended on the character of the relief prayed for by the Plaintiff, also.
5. In Brunsden v. Humphrey (14 Q.B.D. 141)
The principal consideration is whether the same cause of action in both suits.
One of the tests that is applied is whether the same evidence will maintain both suits.
If the evidence required to support the claims is different, then the causes of action are also different.
The application of the rule depends, not upon any technical consideration of the identity of forms of action, but upon matter of substance.
The cause of action arising from damage to the plaintiff’s cab is in substance identical with that which accrues in consequence of the damage caused to his person.
Cause of action is to be construed with reference rather to the substance than to the form of action.
7. Krishna Behari Roy v. Brojeswari Chowdranne [(1875) LR 2.I.A. 283, 285.
Cause of action cannot be taken in its literal and most restricted sense.
8. Pittapur v. Sri Rajah Venkata Mahipati Surya [(1885) L.R. 12.I.A. 116]
The plaintiff sued to recover immovable property he being improperly turned out of possession; and afterwards sued to recover from the same defendant, in consequence of its wrongful detention. It was held that the causes of action in the two suits were distinct.
9. Muhammad Hafiz v. Muhammad Zakariya [(1921) L.R. 49.I.A. 9, 15]:
If the cause enables a man to ask for larger and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings.
10. Brunsden v. Humphrey (14 Q.B.D. 141)
The cause of action which gave occasion for and formed the foundation for the first suit in that case was different from the cause of action which gave occasion for and formed the foundation for the second suit.
11. Gurbux Singh v. Bhoorala, AIR 1964 SC 1810 (Constitutional Bench)
The plaint in the former suit would have to be produced in the subsequent suit.
The “cause of action” would be the facts which the plaintiff had then alleged to support the right to the relief that he claimed.
The defendant who seeks to take recourse to a successful plea under Order II Rule 2(3) must make out the following:
.(a) that the second suit was in respect of the same cause of action as that on which the previous suit was based;
(b) that in respect of that cause of action, the plaintiff was entitled to more than one relief; and
(c) that being thus entitled to more than one relief, the plaintiff, without any leave obtained from the Court, omitted to sue for the relief for which the second suit had been filed.
The Court had observed further as under:
“6. In order that a plea of a Bar under Order 2 Rule 2(3) of the Civil Procedure Code should succeed the defendant who raises the plea must make out;
.(i) that the second suit was in respect of the same cause of action as that on which the previous suit was based;
(2) that in respect of that cause of action the plaintiff was entitled to more than one relief;
(3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed.
From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the latter suit is based there would be no scope for the application of the bar. No doubt, a relief which is sought in a plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule.
As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It is for this reason that we consider that a plea of a bar under Order 2 Rule 2 of the Civil Procedure Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits. It is common ground that the pleadings in CS 28 of 1950 were not filed by the appellant in the present suit as evidence in support of his plea under Order 2 Rule 2 of the Civil Procedure Code.
The learned trial Judge, however, without these pleadings being on the record inferred what the cause of action should have been from the reference to the previous suit contained in the plaint as a matter of deduction. At the stage of the appeal the learned District Judge noticed this lacuna in the appellant’s case and pointed out, in our opinion, rightly that without the plaint in the previous suit being on the record, a plea of a bar under Order 2 Rule 2 of the Civil Procedure Code was not maintainable.”
12. S. Nazeer Ahmed v. State Bank of Mysore, (2007) 11 SCC 75
It is necessary to mark the earlier plaintin evidence and then make out thatthere was a relinquishment of a relief by the plaintiff, without the leave of the Court.
The bar under Order II Rule 2 would apply to the subsequent suits filed for specific performance when the plaintiff itself had claimed in the first set of suits for injunction that the defendant had no intention to honour the agreement to sell.
14. Inbasagaran v. S. Natarajan reported in (2015) 11 SCC 12
The respondent was allotted the suit property as a house site by the Housing Board through a lease-cum-sale agreement, however, on a condition that a sale deed would be executed in favour of the respondent only when he constructs a building in the suit property. In the meantime, the respondent had entered into an agreement for sale with the appellant and obtained a part of the sale consideration as well.
It was agreed that the appellant shall prepare a plan for construction of the building in the suit property, the respondent would get it approved and thereafter, the appellant would undertake the construction at his own cost. The appellant took possession of the suit property and completed the construction. Thereafter, the Housing Board on 18.02.1985 had executed the sale deed in favour of the respondent. The appellant alleged that the respondent attempted to forcefully take possession of the building constructed on the suit property and was therefore, constrained to file a suit for permanent injunction on 11.09.1985. In response to this, the respondent also filed a similar suit for permanent injunction to restrain the appellant from interfering with his possession and enjoyment of the suit property.
It was in this suit for injunction that the respondent disclosed to the appellant that the execution of the sale deed in his favour by the Housing Board was complete. After the said factum of transfer was brought to the notice of the appellant, he had sent a legal notice to the respondent and on 25.04.1986, he filed another suit for specific performance of the agreement to sell. In short, since the plaintiff-appellant only came to know of the sale deed executed by the Housing Board in favour of the respondent after the institution of the first suit, the cause of action was held to be different and distinct in both the suits.
14. Rathnavati v. Kavita Ganashamdas, (2015) 5 SCC 223
The Court refused to accept the submission that the second suit for specific performance was barred by the principles underlying Order II Rule 2. Here, an agreement for sale was entered into between the plaintiff and defendant no. 2 for the sale of the suit house and part payment was also made by the plaintiff. Later, the plaintiff had filed the first suit against the defendants for seeking permanent injunction restraining the defendants from interfering with the plaintiff’s possession over the suit house since the defendant no. 1 who is a total stranger to the suit house, along with defendant no. 2 who was the vendor.
“The cause of action for the suit for specific performance had arisen when the plaintiff had notice of the denial by the defendant to perform the contract. On 30-10- 1996 when the suit for injunction was instituted, the plaintiff was entitled to sue for specific performance. There was a complete identity of the cause of action between the earlier suit (of which para 2 of the plaint has been reproduced in the earlier part of the judgment) and the cause of action for the subsequent suit. Yet, as the record indicates, the plaintiff omitted to sue for specific performance. This is a relief for which the plaintiff was entitled to sue when the earlier suit for injunction was instituted. Having omitted the claim for relief without the leave of the Court, the bar under Order 2 Rule 2(3) would stand attracted.”
16. Ramjilal v. Board of Revenue, Rajasthan, AIR 1964 Raj 114
The Rajasthan High Court had opined that Order II Rule 2 does not require that a person must seek all the remedies to which he may be entitled to even though it would be impossible for him to obtain the remedy from the opposite party. That is, the relief in the second suit became “available” on the happening of a subsequent event; post the institution of the first suit. Hence, the bar under Order II Rule 2 would not stand in the way of the plaintiff for claiming those reliefs.
17. National Security Assurance Company Ltd. v. S.N. Jaggi, AIR 1971 All 421
The Allahabad High Court held that a subsequent suit in respect of a claim which was barred at the time of the earlier suit but revived later on by an enactment would not be hit by the provisions of Order II Rule 2. Here also the relief became “available”, post the institution of the first suit.
The Supreme Court summarised the General Principles under Order II Rule 2 CPC as under:
i. The object of Order II Rule 2 is to prevent the multiplicity of suits and the provision is founded on the principle that a person shallnot be vexed twice for one and the same cause.
ii. The mandate of Order II Rule 2 is the inclusion of the whole claim arising in respect of one and the same cause of action, in one suit. It must not be misunderstood to mean that all the different causes of action arising from the same transaction must be included in a single suit.
iii. Several definitions have been given to the phrase “cause of action” and it can safely be said to mean – “every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court”. Such a cause of action has no relation whatsoever to the defencethat may be set up by the defendant, nor does it depend upon the character of the relief which is prayed for by the plaintiff but refers to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.
iv. Similarly, several tests have been laid out to determine the applicability of Order II Rule 2 to a suit. While it is acknowledged that the same heavily depends on the particular facts and circumstances of each case, it can be said that a correct and reliable test is to determine whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation of the former suit. Additionally, if the evidence required to support the claims is different, then the causes of action can also be considered to be different. Furthermore, it is necessary for the causes of action in the two suits to be identical in substance and not merely technically identical.
v. The defendant who takes shelter under the bar imposed by Order II Rule 2(3) must establish that
(a) the second suit was in respect of the same cause of action as that on which the previous suit was based;
(b) in respect of that cause of action, the plaintiff was entitled to more than one relief; and
(c) being thus entitled to more than one relief, the plaintiff, without any leave obtained from the Court, omitted to sue for the relief for which the second suit had been filed.
vi. The defendant must also have produced the earlier plaintin evidence in order to establish that there is an identity in the causes of action between both the suits and that there was a deliberate relinquishment of a larger relief on the part of the plaintiff.
vii. Since the plea is a technical bar, it has to be established satisfactorily and cannot be presumed merely on the basis of inferential reasoning.
The intent and purport of the ‘Doctrine of Suppression of Facts’, articulated by our Apex Court (through various decisions), can be foreshowed as under:
It is not to arm one party with aweaponof technicality over its adversary. It is to serve as a crucial safeguard against the abuse of the judicial process. It is to ensure that a party approaches Court, he must place all the facts before the Court without any reservation.
It must be a materialsuppression; that is, it must have a crucial role to play in determination of the lis, or the merits of the case.
The suppression could only be where a fact is known to the particular person; and it was intentionally/deliberately withheld by him, to cause injury or prejudice to another.
And, there will be no “suppression” if the facts are “known” to the opposite side. But, in proper cases ‘suppressio veri’ and ‘suggestio falsi’ itself may bring adverse results.
Part I
Suppression of Facts – Only aSafeguard
This principle is not designed to provide one party with an advantage based on technicalities over its opponent.
In Government of NCT of Delhi v. BSK Realtors LLP, 2024-7 SCC 370, relying on S.J.S. Business Enterprises (P) Ltd v. State of Bihar and others, (2004) 7 SCC 166 and Arunima Baruah v. Union of India and others, (2007) 6 SCC 120, it is held as under:
“30. Law is well settled that the fact suppressedmust be material in the sense that it would have an effect on the merits of the case. The concept of suppression or non-disclosure of facts transcends mere concealment; it necessitates the deliberate withholding of material facts — those of such critical import that their absence would render any decision unjust. Material facts, in this context, refer to those facts that possess the potential to significantly influence the decision-making process or alter its trajectory. This principle is not intended to arm one party with a weapon of technicality over its adversary but rather serves as a crucial safeguard against the abuse of the judicial process.”
CONCEALMENT – There must be a Direct Attempt to Hide
In T. Ashok Pai v. Commissioner of Income Tax, Bangalore, 2007-7 SCC 162, (S.B. Sinha & Markandey Katju, JJ.) while dealing with ‘concealment’ of income as provided in Section 271 of the Income Tax Act, 1961, it is pointed out that ‘Concealment refers to deliberate act on the part of the assessee. A mere omission or negligence would not constitute a deliberate act of suppressio veri or suggestio falsi’. The Court said further as under:
“14. In Dilip N. Shroff v. Joint Commissioner of Income-Tax, Mumbai delivered today, this Court (2007-6 SCC 329, S.B. Sinha & P.K. Balasubramanyan, JJ.) observed:
“The expression “conceal” is of great importance. According to Law Lexicon, the word “conceal” means: “to hide or keep secret. The word “conceal” is con plus celare which implies to hide. It means to hide or withdraw from observation; to cover or keep from sight; to prevent the discovery of; to withhold knowledge of. The offence of concealment is, thus, a direct attempt to hide an item of income or a portion thereof from the knowledge of the income tax authorities.”
Suppression of Material Facts – Disqualifies litigants from obtaining any Relief
In SJS Business Enterprises (P) Ltd. v. State of Bihar, AIR 2004 SC 2421, it is pointed out – as a general rule, suppression of material fact by a litigant disqualifies such litigant from obtaining any relief.
Suppression of Material Facts – Evolved to deter Abusing the Process of court
In the recent decision, The Auroville Foundation v. Natasha Storey (17th March, 2025; Neutral Citation: 2025 INSC 348), it is held that this rule has been evolved out of the need of the Courts to deter a litigant from abusing the process of court by deceiving it; and pointed out that similar view has been taken in General Manager, Haryana Roadways v. Jai Bhagwan, (2008) 4 SCC 127, in Prestige Lights Ltd. v. State Bank of India, (2007) 8 SCC 449.
Suppression of Material Facts – Writ Court may Refuse to Entertain Petition
In Prestige Lights Ltd. v. State Bank of India, 2007- 8 SCC 449 (C.K. Thakker, Altamas Kabir, JJ.), it was held as under:
“The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a Court of Law is also a Court of Equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the Writ Court may refuse to entertain the petition and dismiss it without entering into merits of the matter.”(Quoted in G. M. Haryana Roadways v. Jai Bhagwan, S.B. Sinha & V.S. Sirpurkar, JJ., 2008-4 SCC 127)
SUPPRESSION Must be one that is Material for Determination of the Lis
In Arunima Baruah v. Union of India and others, (2007) 6 SCC 120 (S.B. Sinha and Markandey Katju, JJ.), it was held that it was obligatory on the part of the appellant to disclose the fact that the writ petition was filed only when no order of interim injunction was passed in a civil suit. It was held thus:
“12. It is trite law that so as to enable the court to refuse to exercise its discretionary jurisdiction suppression must be of material fact. What would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case. Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief. If the fact suppressed is not material for determination of the lis between the parties, the court may not refuse to exercise its discretionary jurisdiction. It is also trite that a person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands. But even if the said dirt is removed and the hands become clean, whether the relief would still be denied is the question.” (Referred to in Sardar Associates v. Punjab & Sind Bank, S.B. Sinha & Deepak Verma, AIR 2010 SC 218; 2009-8 SCC 257; G. M. Haryana Roadways v. Jai Bhagwan, S.B. Sinha & V.S. Sirpurkar, JJ., 2008-4 SCC 127)
In Prestige Lights Ltd. v. State Bank of India, (2007) 8 SCC 449, the Apex Court held as under:
“The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a Court of Law is also a Court of Equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the Writ Court may refuse to entertain the petition and dismiss it without entering into merits of the matter.” (Quoted in: G. M. Haryana Roadways v. Jai Bhagwan, S.B. Sinha & V.S. Sirpurkar, JJ., 2008-4 SCC 127)
SUPPRESSION – Material One That Affects Merits of the case.
In S.J.S. Business Enterprises (P) Ltd v. State of Bihar, (2004) 7 SCC 166 it is held that a fact suppressed must be material; that is, if it had not been suppressed, that would have influenced the merits of the case. It was held thus:
“13. As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the courts to deter a litigant from abusing the process of court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. It must be a matter which was material for the consideration of the court, whatever view the court may have taken ……
14. Assuming that the explanation given by the appellant that the suit had been filed by one of the Directors of the Company without the knowledge of the Director who almost simultaneously approached the High Court under Article 226 is unbelievable (sic), the question still remains whether the filing of the suit can be said to be a fact material to the disposal of the writ petition on merits. We think not…… the fact that a suit had already been filed by the appellant was not such a fact the suppression of which could have affected the final disposal of the writ petition on merits.” (Referred to in: Mayar (H. K. ) LTD. v. Owners & Parties, Vessel M. V. Fortune Express, AIR 2006 SC 1828; 2006 3 SCC 100)
CONCEALMENT – Implicit a Deliberate Actto Injure or Prejudice Another
In K. C. Builders v. Assistant Commissioner of Income Tax, 2004-2 SCC 731, our Apex Court considered the what is ‘concealment’, while dealing with Section 271 of the Income Tax Act, 1961 which lays down the effect of ‘failure to furnish returns, comply with notices, concealment of income, etc.’ The supreme Court said as under:
“15. One of the amendments made to the abovementioned provisions is the omission of the word “deliberately” from the expression “deliberately furnished inaccurate particulars of such income”. It is implicit in the word “concealed” that there has been a deliberate act on the part of the assessee. The meaning of the word “concealment” as found in Shorter Oxford English Dictionary, 3rd Edition, Volume I, is as follows:-
“In law, the intentional suppression of truth or fact known, to the injury or prejudice of another.”
The word “concealment” inherently carried with it the element of mens rea. Therefore, the mere fact that some figure or some particulars have been disclosed by itself, even if takes out the case from the purview of non-disclosure, it cannot by itself take out the case from the purview of furnishing inaccurate particulars.”
Quoted in: T. Ashok Pai v. Commissioner of Income Tax, Bangalore, 2007-7 SCC 162
Hemant Mahipatray Shah v. Anand Upadhyay, 2024 0 BHC(AS) 32589
Commissioner, Sales Tax, U. P., Lucknow v. Bhawani Paper Mills Ltd. 2006-2 ADJ 204
Northland Development and Hotel Corp. v. Commr. of Income-tax, 2006-285 ITR 265;
Commissioner of Wealth Tax v. Someshwar Saran Kothiwal, 2006 205 CTR 448
Bharat Rice Mills v. Commissioner of Income Tax, 2006 200 CTR 481; 2005 278 ITR 599)
Merely for some figures were not disclosed, by itself, not Concealment
In Shri T. Ashok Pai v. Commissioner of Income Tax, Bangalore, 2007-7 SCC 162,it is observed as under:
“It is implicit in the word ‘concealed’ that there has been a deliberate act on the part of the assessee. The meaning of the word ‘concealment’ as found in Shorter Oxford English Dictionary, third edition, Volume I, is as follows: ‘In law, the intentional suppression of truth or fact known, to the injury or prejudice of another.’ The word ‘concealment’ inherently carried with it the element of mens rea. Therefore, the mere fact that some figure or some particulars have been disclosed by itself, even if it takes out the case from the purview of non-disclosure, it cannot by itself, even if it takes out the case from the purview of non-disclosure, it cannot by itself take out the case from the purview of non-disclosure, it cannot by itself take out the case from the purview of furnishing inaccurate particulars. Mere omission from the return of an item of receipt does neither amount to concealment nor deliberate furnishing of inaccurate particulars of income unless and until there is some evidence to show or some circumstances found from which it can be gathered that the omission was attributable to an intention or desire on the part of the assessee to hide or conceal the income so as to avoid the imposition of tax thereon. In order that a penalty under Section 271 (1) (iii) may be imposed, it has to be proved that the assessee has consciously made the concealment or furnished inaccurate particulars of his income.”
When a fact is not known to the concerned person, No Suppression
In Life Insurance Corporation of India v. Manju Sharma, 2003-2 CLT 700; 2003-2 CPC 91; 2003-1 CPJ 620; 2003-2 CPR 175, it is held as under:
“The insured did not know about the disease and he cannot be said to have suppressed the material fact. The suppression could only be where a fact is known to a particular person. When a fact is not known to that person how could he be said that the fact has been suppressed.”
Recently, in Bhushan Sadashiv Raut v. Priyanka Ravindra Ghatage, 27 January, 2025, our Apex Court expunged certain adverse comments of the High Court against an advocate saying as under:
“We find that the High Court was not justified in making the observations against the appellant herein, inasmuch as the order of the Family court was very much on record. As such, there could be no question of suppression of facts. We, therefore, expunge the observations made in paragraph 10 of the impugned judgment and order dated 05.09.2024 passed by the Division Bench of the High Court.”
Part II
No “Suppression” if the facts are “Known” to the Court or Opposite Side
In a taxation matter, in Pushpam Pharmaceutical Co. v. Collector of Central Excise, Bombay, 1995 Suppl. (3) SCC 462, it is held as under:
“Where facts are known to both the parties the omission by one to do what he might have done and not that he must have done, does not render it suppression.”
Quoted in: Anand Nishikawa Company Ltd. v. Commissioner of Central Excise, AIR 2005 SC 3660, 2005-7 SCC 749.
Uniworth Textiles Ltd. v. Commissioner Of Central Excise, Raipur, 2013-9 SCC 753.
In Nizam Sugar Factory v. CCE, A.P. 2008 (9) STR 314 (SC). Supreme Court held as under:
“9. Allegation of suppression of facts against the appellant cannot be sustained. When the first SCN was issued all the relevant facts were in the knowledge of the authorities. Later on, while issuing the second and third show cause notices the same/similar facts could not be taken as suppression of facts on the part of the assessee as these facts were already in the knowledge of the authorities. We agree with the view taken in the aforesaid judgments and respectfully following the same hold that there was no suppression of facts on the part of the assessee/appellant.”
In Prakash Singh Thakur v. Bharti, AIR 2001 MP 1; 2000 2 DMC 368, it is held as under:
“19. Moreover, it may be noted that the parties were known to each other from much prior to their marriage. In the circumstances, it is inconceivable that the appellant would not have come to know about the earlier marriage or divorce of the respondent and would have come to know of the said fact on the next day, immediately after their marriage on 4.5.94. As noticed earlier, the statement of appellant is not only unsubstantiated, but appears to be unnatural and untrustworthy.”
In State of Bihar v. Rajballav Prasad, AIR 2017 SC 630; 2017 2 SCC 178, it is held as under:
Statement of Principal Additional Advocate General that the State had no objection for the consideration of the bail application by the said Court has been recorded in the beginning of the order itself and, therefore, question of suppression thereof does not arise. This fact was known to this Court when the SLP was entertained and notice was issued. Therefore, the question of misleading the Court on this count does not arise.”
In Virinder Nayar v. Jatinder Singh, 19 Sep 2023, 2023 Supreme (P&H) 351, it is held as under:
“10. In terms of the above discussion, in the present set of facts wherein the petitioner himself was party-tenant to the previous litigation qua the same premises, having complete knowledge of its outcome, the non-disclosure thereof merely in the eviction petition though the same having been acknowledged in their rejoinder by the respondents as well as in her cross-examination by respondent No.2 (PW-5) can’t be taken to be an act of concealment or suppression of material fact, the same being not an information exclusively known to respondents. Besides it, nothing has been pointed out from the side of petitioner about any prejudice having been caused to him on account of non-disclosure of filing or dismissal of previous ejectment petition. ….. Thus the non-disclosure of the previous eviction petition was rightly not considered to be a material concealment by the Authorities below as the outcome of the previous eviction petition in no manner affected or impacted the rights of the parties in the present eviction petition, the same being based on entirely a fresh and new cause of action with material change in circumstances.
In P. S. Agarwal v. Life Insurance Corporation of India, 2003 3 CPJ 579, it is observed that there would be no suppression of material facts, if every fact was known to the Insurance.
In National Insurance Co. Ltd. v. Kusum Devi Mishra, 1998 1 MPLJ 676, 1999(2) ACJ 1213, it is held as under:
“In view of the above, the contention that the insurer is not liable to pay compensation and the policy is void due to suppression of material fact, has no merit. Even otherwise, there was no suppression of material fact. The agent of the Insurance Company knew full well that the owner is a minor. He accepted the premium and the policy of insurance covering third party risks was issued in the name of the minor by the appellant. The said policy was never repudiated or cancelled.” (Referred to in: Gaurav Sharma v. National Insurance Company Limited, 2018-5 LawHerald 4064; 2018-3 PLR 106)
Suppressio Veri and Suggestio Falsi – Gravity Differs in “Material”or “Trivial Matter”
Though it is definite – no “suppression” if the facts are
(i) Not Material and
(ii) “Known” to the opposite side.
But, in proper cases ‘suppressio veri’ and ‘suggestio falsi’ itself may bring adverse results. Still, gravity of it is depended upon the nature of suppression – whether it is on a “material” matter or on a “technical or trivial” matter.In Avtar Singh v. Union of India, (2016) 8 SCC 471, (in a case of information given to the employer by a candidate) it is held as under:
“34. No doubt about it that verification of character and antecedents is one of the important criteria to assess suitability and it is open to employer to adjudge antecedents of the incumbent, but ultimate action should be based upon objective criteria on due consideration of all relevant aspects.
35. Suppression of “material” information presupposes that what is suppressed that “matters” not every technical or trivial matter. The employer has to act on due consideration of rules/instructions, if any, in exercise of powers in order to cancel candidature or for terminating the services of employee. Though a person who has suppressed the material information cannot claim unfettered right for appointment or continuity in service but he has a right not to be dealt with arbitrarily and exercise of power has to be in reasonable manner with objectivity having due regard to facts of cases.
36. What yardstick is to be applied has to depend upon the nature of post, higher post would involve more rigorous criteria for all services, not only to uniformed service. For lower posts which are not sensitive, nature of duties, impact of suppression on suitability has to be considered by authorities concerned considering post/nature of duties/services and power has to be exercised on due consideration of various aspects.
38. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of the aforesaid discussion, we summarise our conclusion thus:
38.1. Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after entering into service must be true and there should be no suppression or false mention of required information.
38.2. While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information.
38.3. The employer shall take into consideration the government orders/instructions/rules, applicable to the employee, at the time of taking the decision.
38.4. In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/verification form and such fact later comes to knowledge of employer, any of the following recourses appropriate to the case may be adopted:
38.4.1. In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.
38.4.2. Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.
38.4.3. If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee.
38.5. In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate.
38.6. In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion, may appoint the candidate subject to decision of such case.
38.7. In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper.
38.8. If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime.
38.9. In case the employee is confirmed in service, holding departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form.
38.10. For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for.
38.11. Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him.”
Avtar Singh v. Union of India, (2016) 8 SCC 471, is referred to in:
Union of India v. Shishu Pal, AIR 2024 SC 3652
Ravindra Kumar v. State of U. P., 2024 5 SCC 264
State of West Bengal v. Mitul Kumar Jana, 2023-14 SCC 719
Ex-Const/Dvr Mukesh Kumar Raigar v. Union Of India, AIR 2023 SC 482
Satish Chandra Yadav v. Union Of India, 2023-7 SCC 536
Pawan Kumar v. Union of India, 2022 AIR SC 2829; 2023-12 SCC 317
State of Madhya Pradesh v. Abhijit Singh Pawar, 2018-18 SCC 733
In the event – plantation activities cease or are discontinued, that land would also be treated as ‘excess land’.
Hence, it is indisputably explicit – NO VESTED RIGHT or OWNERSHIP is conferred on LAND by the ‘plantation-exemption’.
It is beyond doubt – the legislature never intended (where a large extent of land had been forcibly got surrendered from other land owners), to bring an inequitable and discriminatory disparity, while ‘plantation-exemption’ was conferred under Sec. 81 of the Kerala Land Reforms Act, 1963.
Part I.
CAN AN AN EXEMPTED PLANTATION LAND BE SOLD AS AN ABSOLUTE PRIVATE PROPERTY?
No.
Sec. 82 of the Kerala Land Reforms Act deals with ceiling area.
Sec. 83 mandates that no person shall be entitled to own or hold lands in excess of the ceiling area.
Sec. 83 reads – “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.”
Sec. 85 directs that excess land shall be surrendered to Government (accepting the compensation fixed under Sec. 88).
Though Sec. 81 (generally?) exempts plantations from the provisions of Chapter III, Sec. 87 directs that the protection of plantation is available only so long as the plantation subsists.
Therefore, if the plantation activities cease or are discontinued, such land shall likewise be regarded in the same manner – as excess land.
Consequently, it is unequivocally clear that NO VESTED RIGHT or OWNERSHIP would be conferred on LAND by virtue of the ‘plantation-exemption’.
It is most unjustifiable to confer undue rights to 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) so also lands of thousands of middleclass property owners.
Part II.
ACQUISITION OF PLANTATION-LANDSOWNED BYPRIVATE PERSONS
1. Proviso to Article 31A(1) of the Constitution of India
It is plain – No compensation is payable to the land-owners, for the lands ‘above the ceiling limit’, according to the Constitution of India. If any authority gives it, it will be a sheer unscrupulous act. Because:
The provisions of the KLR Act, as regards ‘vesting’, ‘excess land’ etc., are legislated predicating upon the Proviso to Article 31A(1) of the Constitution of India which states that the State need not pay compensation to the lands above the ‘ceiling limit‘.
Proviso to Article 31A(1) of the Constitution of India 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 limitapplicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unlessthe 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.”
2. Exemption of ‘Plantation’ Does Not Cover Exemption of ‘Plantation LAND’
It is for the following reasons –
1. The exemption is to the ‘plantation’, and not to the ‘LAND‘.
2. Exemption is conditional – for it exists (only) as long as the plantation exists or continues;
Because,
(a) Section 2(44) defines ‘plantation’ as land used principally for the cultivation of a specific ‘plantation crop‘ like tea, coffee, cocoa, rubber etc.
(b) 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.
Section 81(4) allows the person holding a plantation to use land “not exceeding 5% of the extent of such holding for floriculture, medicinal plants, for conducting dairy farms, for establishing hotels or resorts or other tourism projects etc.
Effect of Conversion or Sale of a Portion of Exempted Land
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.
Explanation II is explained by the Full Bench of the Kerala High Court in Mathew K. Jacob v. District Environmental Impact Assessment Authority, 2018-4 KLT 913, as under:
“The consequence is that the benefit of the exemption would be lost and the extent added to the account of the assesse or the declarant in determination of his ceiling area.”
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 and that land would also be treated as excess land.
Fragmentation has to be Treated as Conversion 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 High 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.”
“37. …. Fragmentation of the estate and transfer of it has to be treated as a case of conversion of plantation into some other category of land. Such being the scenario, fragmentation amounts to serious violation of the provisions of KLR Act. Hence, we are not impressed by the argument of the learned counsel for the respondent No.18 that the fragmented plots will be maintained as plantation by the transferees, so as to extend/avail the benefit of HMT’s case (supra). Taking into account of all the relevant aspects, we have no hesitation in holding that dropping of the suo motu proceedings initiated under Section 87 of KLR Act by the TLB in a cursory manner, is not at all reasonable or justifiable when tested on the touchstone of the object and intention, which the legislation seeks to achieve and beyond what is required, in the interest of the public.”
Apportionment 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 improvementsshall 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 land owner 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 improvementsbelonging 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.*fn*
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.”
Foot Note:
*fn* 1. “Value of the land occupied by the homestead or hut” says as to the actual area where the ‘homestead or hut’ is situated; whatever may be the area of land outside it.
2. This provision is applied to lease-lands vested in Govt. under Sec. 72 and no purchase certificate is given (to the tenant).
No Land value to be given for the “excess” land (Beyond Ceiling Limit)
From the following words in Sect. 112, it is beyond doubt that noLand value to be given for the “excess” land (Beyond Ceiling Limit).
“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. 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.
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 Ha. 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.”
22
Landlord desiring to resume any land shall apply to the Land Tribunal.
31
Fair rent determined by Land Tribunal.
51B.
Landlord not to enter on land surrendered or abandoned by the tenant. Contravention is made punishable.
54(1) 55 57 57 (3) 57 (6) 61
54(1). A cultivating tenant (to purchase the right) has to apply Land Tribunal. 55. Purchase price is fixed by LT (on fair rent u/s. 31) to be paid u/s. 59 57. The LT after enquiries, pass orders determining purchase price. (3). The Land Tribunalallows the purchase of the land it determines. (6). The Land Tribunalforwards orders to the Land Board. 61. Tenant to pay rent (under orders of LT) pending proceedings.
59
When Sec. 54 application is allowed (by the LT), the purchase price (determined u/s. 57 by the LT) shall be deposited with the Land Tribunal to the credit of the Land Board and issue of certificate – to cultivating tenant.
72
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.
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.)
72D
The cultivating tenant has to pay the purchase price to the Government on the assignment to him of the right, title and interest of the landowner. (If the extent of land is one hectare or below, he shall not be liable to pay.)
72E
Such tenant is liable to pay rent to the Government.
72C
Provides for suo moto action by LT. (No time limit). Rule 5 of the Vesting & Assignment Rules provides – LT may suo moto – notwithstanding no application – assign to cultivating tenant. (See S.72C also).
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 undertakings, etc. Proviso – There will be an exemption (as plantation, land given to educational institution, trust, etc.) on Government lands, given under grant, lease, etc. See: HMT (Machine Tools) Limited v. Taluk Land Board, 2009 (3) KLJ 110; MT Joseph v. State of Kerala, AIR 1974 Ker 28.
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 (having land in excess of the ceiling area) should furnish ceiling return to Land Board before March31, 1971, before the Land Board (including lands exempted under S. 81). Note: Effect of non-filing: See – Balanoor Plantations case – 2018(3) KLT 283.State of Kerala Vs. Varkey Mathew, AIR 1996 SC 1009. According to S. 3(1) (viii), “tenancies of plantations exceeding 30 acres” is exempted from Chapter II. Therefore, the landlord can recover such plantation lands after the period of tenancy. Such landlords also had to file a ceiling return within the time stipulated.
85(3)
Excess shall be surrendered. Note: Tenant must have approached the LT(with respect to each plantation, if he has more plantations)(He cannot declare himself a tenant) It is clear from the following provisions: 54(1) – A cultivating tenant has to apply to LT (or the purchase of right, title and interest.) 55 – Purchase price and fair rent fixed by LT 57 – LT after giving notice and enquiries, pass orders (on theapplication for the purchase of right, title and interest). 57(3) – LT allots the purchase land it determines. 57(6) – The Land Tribunalforwards a copy of orders to the Land Board. 61 – Cultivating tenant to pay rent (under orders of LT) 59 – The purchase price shall be deposited with the LT (to the credit of the Land Board) and issue of certificate – to cultivating tenant. It is the principle applied in the Balanoor case. Note: (i) The sub-section (3) itself says as to the settlement of claims for resumption and purchase of the right, title, and interest of the landowner by the cultivating tenant, (ii) LT is the only authority to determine tenancy (Land Board cannot determine it), and (iii) it is clear that even if it is a plantation-exemption-land (beyond ceiling limit), the tenant has to file petition under Section 54 – for fixing Purchase price and fair rent fixed by LT and for allotting the land under section 57(3) and for effecting the payments of ‘rent’ and ‘purchase price’(to the credit of the Land Board) under sec. 61 and 59.
85(3A)
The person bound to file a statement under sub-section (2) (that is, Owners and Tenants – having land in excess of the ceiling area) shall, within a period of three months from the date of final settlement or purchase, file a statement before the Land Board, and the provisions of the said Sub-section shall, as far as may he, apply in regard to the particulars to be contained in such statement, the calculation of the excess land and for the procedure for the surrender of the same.
85(5)
On receipt of the statement under Sub-section (2) or Sub-section (3A), the Land Board shall transfer the statement to such Taluk Land Board and such Taluk LandBoard shall determine the extent and identity of the land to be surrendered.
85(7)
Whereon a person fails to file statement under 85(2) or (3A), LB shall intimate that fact to TLB – TLB shall determine land to be surrendered. It is obvious – The LB can intimate TLB as to non-filing, on the basis of the records it obtained under Sec. 57(6) and 59. That is, those tenants who are not entitled to get a purchase certificate also has to file an application under Sec. 54(1) and 85(2) or (3A). Effect of non-filing: See – Balanur Plantations case (With respect to Sec. 72B application) – 2018(3) KLT 283. Statute prescribes liability on the person who owes or hold the land in excess of the ceiling limit to file statement: State of Kerala Vs. Varkey Mathew, AIR 1996 SC 1009. [TLB not to do, suo motu, without direction from LB. 1980 KLT 120, referred to in 2019(1) KLT 985.]
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)
1. As per the Kerala Land Reforms Act, following Tenants areliable to pay rent to the Government.
(1) Tenants in Govt. land.
Because, no provision in the KLR Act affects the liability of the tenants of the Govt. lands to pay rent; and such Govt. lands are exempted from Chapter II (that deals with ‘fixity’, Purchase Certificate, vesting, etc..
(2) Tenants who have taken the lease of extensive parambus or waste-lands and in course of time by hard toil had developed those into plantations.
Because, the legislature had conferred the benefit of the fixity of tenure (Sec. 13, KLR Act) to such tenants; and such lands (over and above the land to which purchase certificate is given) vest in Govt., under Sec. 72, KLR Act.
2. Following Plantation-Tenants are liable to pay rent to the Land-owner (or the Land-lord) according to the KLR Act.
The tenants of those Plantations (i) above 30 acres and (ii) the land-owner had put up the plantation before leasing (that is, plantation existed when land was leased).
Because, no provision in the KLR Act affects the liability of the tenants of such lands to pay rent to the land owners; and such lands are exempted from Chapter II (that deals with ‘fixity’, Purchase Certificate, vesting, etc..
Part I
Relevant provisions in the KLR Act:
Section 3(1)(viii):
Provisions of Chapter II (that deals with fixity, Purchase Certificate, vesting of leased land in Govt., etc.) of the KLR Act do not apply to tenements of Plantation above 30 acres where the land-owner had put up the plantation before leasing (that is, plantation existed when land was leased).
Section 13:
There will be fixity to cultivating tenants.
But, (1) Plantation-tenants in Govt. land and (2) The tenants of Plantation above 30 acres, where the plantation existed when land was leased, do not have the right of fixity – for the provisions of Chapter II do not apply to such tenements.
Section 72:
It provides – automatic vesting of lease-properties held by ‘cultivating-tenants’, in Govt.
But, (1) Plantation-tenants in Govt. land and (2) The tenants of Plantation above 30 acres, , where the plantation existed when land was leased, do not vest in Govt. – for the provisions of Chapter II do not apply to such tenements.
Section 72E:
The cultivating tenant shall beliable to pay to the Government the rent payable under this Act from the date of vesting under Section 72.
Section 72F(h):
Land Tribunal to fix the rent stated in Sec. 72E.
Section 81:
S. 81 (the first Section in Chapter III) deals with exemption from ceiling limit of plantation, industrial land, etc.
Section 82 & 83:
S.82 deals with ceiling area. Sec. 83 mandates that no person shall be entitled to own or hold lands in excess of the ceiling area. But it is not applicable to the plantations. (If no plantation, that would also have been treated in the same way – as excess land.)
Section 85:
S. 85 directs that excess land shall be surrendered to government (accepting the compensation fixed under Sec. 88).
Can the Govt. enact new Act (or Make Rules) for ensuring ‘Proper Rent’ (if it finds The Kerala Grants and Leases (Modification of Rights) Act, 1980 not effective)?
Yes; because,
the KLR Act does not affect rights of such land-owners/landlord (including Govt.) for rent.
The matter of fixation of rent is a State subject.
The State Legislature is free, therefore, to make a proper enactment on public interest. Here, it may also be noted that a large extent of Govt. land is in the possession of mighty and wealthy planters: and they do not pay any amount as rent (and, if paid, only a small amount).
New ‘Rules’ or ‘Guidelines’ can also be made by the State in the light of Sec. 72F(h) [Land Tribunal to fix the rent stated in Sec. 72E] for ensuring ‘Proper Rent’.
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 Acres. Will there be fixity to tenant?
Yes.(Note:Ceiling limit (in Sec. 82) is not mentioned inSec. 13 – as given in Sec. 72B and 72C.) (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.) Such tenants should pay rent to Govt. under Sec. 72E & 72F
Plantation below 30 Acres. 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. Fragmentation of plantation will not be allowed so as to get pur. certi. within ceiling limit (Sec. 87).
Plantation below 30 Acres. 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. Such tenants should pay rent to Govt. under Sec. 72E & 72F(h)
Yes. (Because what is exempted is Plantation-Tenancies exceeding 30 acres)
Sec. 13 fixity, applies. Such tenants should pay rent to Govt. under Sec. 72E & 72F(h)
Who gets Sec. 81 exemption – land-owner or tenant – above 30 acres.
Land owner – For, plantation itself was leased.
Tenant
Can landlord recover possession – above 30 acres – 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
Will a tenant get Fixity (S. 13) or Purchase Certificate (S. 72) on “tenancies…”, ‘interspersed within the plantation’ S. 3(1)(viii)
(Not applicable)
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. Such tenants should pay rent to Govt. under Sec. 72E & 72F(h)
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. Such tenants should pay rent to Govt. under Sec. 72E & 72F(h)
Part II
1. Who is the OWNER of Leasehold (Exempted) Plantation Lands in Kerala?
It is the Government.
Reasons:
(i). Plantation (lease) lands Statutorily VEST in GOVT, under S. 72.
Sec. 72 of the Kerala Land Reforms Act, 1964, provides for absolute vesting (of lease-land) in Government.
Tenants of leasehold-exempted-plantation lands (above ceiling-limit) are entitled only to ‘fixity of tenure‘ by virtue of Chapter II, Sec. 13 (and they are not entitled for Purchase Certificate, over and above ‘ceiling limit’).
Note: ‘Tenure’ is derived from the Latin term, “tenere“; means “to hold” or “to keep”.
(ii). ‘Vesting’ in Govt. is ‘Vesting of Ownership‘
Sec. 72 speaks about ‘Vesting of landlord’s rights in Government’.
It pertains to –
“all right, title and interest” of the landowners and intermediaries in respect of holdings held by cultivating tenants”.
(iii). Tenant has no “absolute rights” (above the ceiling limit)
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. (It is limited to the improvements made, in case of acquisition, under Sec. 112(5A), as stated below.)
Plantation-lands, usually, involve Hundreds or Thousands of Acres of “excess” land (above ceiling limit). The assignment-possible-land (within ceiling limit) may be miniscule (7.5 acres or 15 acres).
Tenant to Pay Rent to the Govt.: Sec. 72E directs – such a cultivating tenant is liable to pay ‘Rent’ to the Government (obviously over and above ‘ceiling limit’).
Sec. 72F(5) authorises Land Tribunal to fix the rent.
(iv). Government Need Not Pay ‘Land-Value‘, as such, if Acquired
Sec. 112(5A) provides that the Government need not pay ‘Land-Value‘, as such, to the tenant, or the former land owner, if such Lands (above ceiling limit) are Acquired. (It is for the reason that ownership of such plantation-land vest in Govt., absolutely.)
(v). Art. 31A(1), Constitution (no compensation even to owners)
The provisions of the KLR Act as regards ‘vesting’, ‘excess land’ etc. are legislated predicating upon Proviso to Article 31A(1) of the Constitution which states that the State need not pay compensation (even) to the former land owners (when land is acquired) above the ‘ceiling limit‘.
Proviso to Art. 31A(1), Constitution (no compensation even to owners) 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.”
2. 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.
3. ‘Exemption’ in Chapter III Cannot be Read Into Sec. 72B(2)
The provision of law for giving Purchase-Certificate under Sec. 72B specifies that the provisions of Sec. 82 (as to ceiling limit) shall apply for the calculation of the ceiling area (alone).
Sec. 72B(2) reads-
“(2) The provisions of Section 82 shall, so far as may be, applyto the calculation of the ceiling area for the purposes of the proviso to Sub-section (1)”
The exemption provision in Sec. 81 (Chapter III), which excludes plantation lands from the ceiling limit, cannot be brought-forth or read-into Sec. 72B (provision for assignment of purchase-certificate) in Chapter II.
In other words, purchase-certificates cannot be given for land above ceiling-limit, rigging the exemption provisions (for plantations etc.).
Because,
Sec. 72B(1), in Chapter II shows – Sec. 72B(1) is an independent provision (though the Proviso says – no cultivating tenant shall be entitled to assignment of the right, title and interest … (more than) … the ceiling area, mentioned in Sec. 82 in Chapter III)
When a provision in a latter Chapter of an Act (here, Sec. 82 that deals with extent of ceiling limit, in Chapter III) is referred to in an independent provision in an earlier Chapter (here, Sec. 72B, as regards issuing purchase certificate, in Chapter II), for a specific purpose (here, to state the limit in area alone), it cannot be said – the attributed colour or smell of the provision in the latter chapter (by virtue of other provisions, i.e., entire characteristics or attributions added to Sec. 82 by virtue of other provisions in Chapter III), would stand reflected on the earlier provision (here, Sec. 72B).
Further:
Chapter II of the KLR Act (dealing with ‘Tenancy’) is exclusive and exhaustive as to ‘fixity’, and ‘vesting’ of land in Government.
It is not stated anywhere in the Act – the right and title of the (leased-plantation) land legitimately vested in Government under Sec. 72, will be divested in any manner (in favour of the previous owner, or of the tenant or anybody else), in any circumstance.
Sec. 72E provides for collection of ‘rent‘ from the holders of the plantation and Sec. 72F(5) authorises the Land Tribunal to fix the rent. (It goes without saying saying that it is for the reason that the ownership of the land vests in Govt.)
Note: Proceedings initiated by Taluk Land Board under Chapter III (in respect of plantation) do not confer title.
4. What is the legal right attached to former ‘tenants’, after vesting the land with Govt. under Sec. 72?
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“, that is, the KLR Act.
5. What are the Stipulations attached to that “Legal Right conferred by Statute” to tenants (of Plantation land) having fixity?
1. Liable to pay ‘Rent’ (under Sec. 72E).
2. Subject to the condition – not to “convert” it for any other use, other than the specific plantation (Sec. 87).
3. From Sec. 112(5A)(b) it is clear that the tenant will be entitled (on acquisition of the land) for the compensation for his homestead or hut, if any, and the value of his improvements (alone).
6. When Such a land (Vested In Govt. under S. 72) is Required for Govt. (Public Purpose), Should it be ‘Acquired’? Is the landowner Entitled for any Compensation? What is the Compensation Entitled to by the Tenant?
When Such a land (Vested In Govt. under S. 72) is Required for Govt. (Public Purpose), Should it be Acquired?
The ownership being vested in Govt. it need not be ‘strictly’ “acquired”. But no specific provision in Sec. 72 for ‘resuming’, if and when Govt. needs it.
Sec. 112 (5A) of the KLR Act uses the term ‘acquisition’ itself (for the possessory rights remain with the tenant).
Is the Landowner Entitled for any Compensation?
Sec. 112(5A) deals with the land acquired that has been vested in the Governmentunder Section 72. From the sub section (5A) it is clear that the entire rights of the (former) landowner is vested with the Govt. and he cannot claim any right over the land (when it is acquired).
What is the Compensation Entitled to by the Tenant?
Sec. 112(5A)(a) says that the compensation for any building or other improvements belonged to such land owner and intermediaries shall be awarded (?) to the Government ; and
from Sec. 112(5A)(b) it is clear that the tenant will be entitled for the compensation for his homestead or hut, if any, and the value of his improvements (alone).
7. Apportionment of land value in cases of Acquisition
Sec. 112 of the KLR Act reads –
“112. Apportionment 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 Governmentunder Section 72, – (a) the compensation for any building or other improvements belonging to such land owner 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.”
Part III
Vesting in Govt. u/s. 72 is independent of issuance of Purchase Certificate
The rights of the landlord would vest in the Government, under Sec. 72 KLR Act. A tenant is free to apply for and obtain Purchase Certificate within the Ceiling Limit under Sect. 59(2) and 72B or 72C. from such property. Vesting of lease property in Government under Sec. 72 is independent of issuance of Purchase Certificate. In Perumal Smaraka Nidhi v. Harrisons Malayalam Limited (RFA No. 336/2011; dt. 31. 01. 2013; K.M. Joseph, J.) held –
The rights of the landlord would vest in the Government, under Sec. 72 KLR Act.
Sec. 72 would appear to contemplate vesting when there is no certificate of purchase issued under Sec. 59 (2).
If no certificate of purchase has been issued under sub Sec. (2) of Sect. 59 (irrespective of whether the tenants have applied), under Section 72, there will be vesting, if other conditions are satisfied.
Plantation Land Cannot be Assigned to a Tenant
From the above, it is clear:
Plantation-tenancy-lands above 30 acres are not exempted from Chapter II; and are exempted from ceiling limit (under Chapter III).
Tenants who hold the plantation-tenancy-lands are entitled to fixity of tenure under Sec. 13.
As the tenants who hold the plantation land are cultivating tenants, such lands are vested in Government [according to Sec. 72].
The plantation land, above ceiling limit [under Sec. 72B], cannot be assigned (by the Land Tribunal) to a tenant. (Note: No rider to Sec. 72B and 72C, by way of proviso or otherwise, exempting plantation.)
Therefore, the answer to the question – who is the OWNER of the (exempted) Leasehold-Plantation Lands in Kerala – is that the Government of Kerala is the OWNER. (See: Perumal Smaraka Nidhi vs M/S Harrisons Malayalam Ltd., 31. 01. 2013)
“Vesting” in Law
In Jagannath Temple Managing Committee v. Siddha Math, (2015) 16 SCC 542, while dealing with the ‘vesting’ under Land Acquisition Act,1894, it is held that ‘it is a settled principle of law that once a property is vested by an Act of legislature, to achieve the laudable object, the same cannot be divested by the enactment of any subsequent general law and vest such property under such law.’
(LA Act, 1894, Sec. 16 reads as under: Power to take possession. When the Collector has made an award under section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances.)
The concept of ‘vesting’ was also considered in The Fruit & Vegetable Merchants Union v. The Delhi Improvement Trust, AIR 1957 SC 344. In this decision it is held as under:
“(19) That the word “vest” is a word of variable import is shown by provisions of Indian statutes also. For example, S. 56 of the Provincial Insolvency Act (5 of 1920) empowers the Court at the time of the making of the order of adjudication or thereafter to appoint a receiver for the property of the insolvent and further provides that “such property shall thereupon vest in such receiver”. The property vests in the receiver for the purpose of administering the estate of the insolvent for the payment of his debts after realising his assets. The property of the insolvent vests in the receiver not for all purposes but only for the purpose of the Insolvency Act and the receiver has no interest of his own in the property. On the other hand, Ss. 16 and 17 of the Land Acquisition Act (Act 1 of LA), provide that the property so acquired, upon the happening of certain events, shall “vest absolutely in the Government free from all encumbrances”. In the cases contemplated by Ss. 16 and 17 the property acquired becomes the property of Government without any conditions or limitations either as to title or possession. The legislature has made it clear that the vesting of the property is not for any limited purpose or limited duration. It would thus appear that the word “vest” has not got a fixed connotation meaning in all cases that the property is owned by the person or the authority in whom it vests. It may vest in title, or it may vest in possession, or it may vest in a limited sense, as indicated in the context in which it may have been used in a particular piece of legislation. The provisions of the Improvement Act, particularly Ss. 45 to 49 and 54 and 54-A when they speak of a certain building or street or square or other land vesting in a municipality or other local body or in a trust, do not necessarily mean that ownership has passed to any of them.” [Quoted in Indore Development Authority vs Manoharlal (Arun Mishra, J.), (2020) 8 SCC 129.]
Provisions as to Fixity, Purchase Certificate, Plantation-Exemption, Ceiling Area, etc.
Tenant & Fixity –
Section 13(1) reads as under:
13. Right of tenants to fixity of tenure. (1) Notwithstanding any thing to the contrary contained in any law, custom, usage or contract or in any decree or order of court, every tenant, shall have fixity of tenure in respect of his holding, and no land from the holding shall be Limited except as provided in Sections 14 to 22.”
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- …. ….. ….. “
Cultivating Tenant & Vesting of land in Government –
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”
It provides (automatic) vesting of leasehold properties in Govt. Conditions thereof are:
(i) the land must be held by cultivating tenants;
(ii) they should be entitled to fixity of tenure under Sec. 13.
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.”
Issue of PurchaseCertificate
Section 72B, 72C and 72K(1) & (2) read 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.”
“72C. Assignment where application is not made by cultivating tenant. Notwithstanding anything contained in Sub-section (3) of Section 72B [or Section 72BB], the Land tribunal may, subject to such rules as may be made by the Government in this behalf, at any time after the vesting of the right, title and interest of the landowners and intermediaries in tile Government under Section 72, assign such right, title and interest to the cultivating tenants entitled thereto, and the cultivating tenants shall be bound to accept such assignment.”
“72K. Issue of certificate of purchase. – (1) As soon as may be after the determination of the purchase price under Section 72F [or the passing of an order under Sub-section (3) of Section 72MM] the Land Tribunal shall issue a certificate of purchase to the cultivating tenant, and thereupon the right, title and interest of the landowner and the intermediaries, if any, in respect of the holding or part thereof to which the certificate relates, shall vest in the cultivating tenant free from all encumbrances created by the landowner or the intermediaries, if any.
(2) The certificate of purchase issued under Sub-section (1) shall be conclusive proof of the assignment to the tenant of the right, title and interest of the landowner and the intermediaries, if any, over the holding or portion thereof to which the assignment relates.”
Note: Sec. 72F speaks as to ‘Land Tribunal to issue notices and determine the compensation and purchase price; and Sec. 72MM provides for jointly applying, by the cultivating tenant, the landowner, the intermediary, the holders of encumbrances, etc, to the Land Tribunal, for an order for ‘assignment by mutual agreement’ to the cultivating tenant.
Can a Tenant of Plantation Transfer his Rights, Fragmenting the Plantation
Possession by itself is a substantive right recognised by law. It is heritable and transferable. (Kuttan Narayanan v. Thomman Mathayi, AIR 1966 Ker 179; Phirayalal Kapur Vs. Jia Rani, AIR 1973 Delhi 186; Nallammal Vs. Ayisha Beevi, 2017-5 Mad LJ 864).
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.
What are the Stipulations attached to that “Legal Right” of Transfer?
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.
But, it is said in Sec. 112 – 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).
End Notes I
CAN AN EXEMPTED PLANTATION LAND BE SOLD AS AN ABSOLUTE PRIVATE PROPERTY?
No.
Sec. 82 deals with ceiling area. Sec. 83 mandates that no person shall be entitled to own or hold lands in excess of the ceiling area. Sec. 85 directs that excess land shall be surrendered to government (accepting the compensation fixed under Sec. 88).
But it is not made applicable to the plantations. (If no plantation, that would also have been treated in the same way – as excess land.)
Sec. 87 directs that the protection of plantation is available only so long as the plantation subsists.
Exemption does not Confer a vested right or ownership
If no plantation, plantation lands would also have been treated in the same way – as any other excess land that had been (forcibly) got surrendered by virtue of the KLR Act. The law has given only a sanction to the planters to continue because of the existence of the plantation. Therefore ‘exemption’ does not confer a vested right or ownership.
End Notes II
ACQUISITION OF PLANTATION-LANDSOWNED BYPRIVATE PERSONS
1. Proviso to Article 31A(1) of the Constitution of India
It is plain – No compensation is payable to the land-owners, for the lands ‘above the ceiling limit’, according to the Constitution of India. If any authority gives it, it will be sheer unscrupulous act.
The provisions of the KLR Act as regards ‘vesting’, ‘excess land’ etc. are legislated predicating upon Proviso to Article 31A(1) of the Constitution which states that the State need not pay compensation to the former land owners (when land is acquired) above the ‘ceiling limit‘.
Proviso to Article 31A(1) of the Constitution of India 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 limitapplicable 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.”.
2. Exemption of ‘Plantation’ Does Not Cover Exemption of ‘Plantation LAND’
It is for the following reasons –
1. The exemption is to the ‘plantation’, and not to the ‘LAND‘.
2. Exemption is conditional – for it exists (only) as long as the plantation exists or continues;
Because,
(a) S. 2(44) defines ‘plantation’ as land used principally for the cultivation of a specific ‘plantation crop‘ like tea, coffee, cocoa, rubber etc.
(b) 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.
Effect of Conversion or Sale of A Portion of Exempted Land
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.
Explanation II is explained by the Full Bench of the Kerala High Court in Mathew K. Jacob v. District Environmental Impact Assessment Authority,2018-4 KLT 913, as under:
“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, 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.
Fragmentation has to be Treated as Conversion 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 High 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.”
“37. …. Fragmentation of the estate and transfer of it has to be treated as a case of conversion of plantation into some other category of land. Such being the scenario, fragmentation amounts to serious violation of the provisions of KLR Act. Hence, we are not impressed by the argument of the learned counsel for the respondent No.18 that the fragmented plots will be maintained as plantation by the transferees, so as to extend/avail the benefit of HMT’s case (supra). Taking into account of all the relevant aspects, we have no hesitation in holding that dropping of the suo motu proceedings initiated under Section 87 of KLR Act by the TLB in a cursory manner, is not at all reasonable or justifiable when tested on the touchstone of the object and intention, which the legislation seeks to achieve and beyond what is required, in the interest of the public.”
End Notes III
Kannan Devan Hills Produce Co. Ltd.v. The State of Kerala, AIR 1972 SC 2301
The Supreme Court, in Kannan Devan Hills Produce v. The State of Kerala, AIR 1972 SC 2301 (Sikri (Cj), Shelat, A.N. Ray, I.D. Dua, , H.R. Khanna, JJ.) held that Kenan Devan Hills Concession (on grant deeds) fall within the expression “Janmam right” vested with Sircar. The State of Kerala made an Act – the Kannan Devan Hills (Resumption of Lands) Act, 1971, to “vest” the possession of the land remained in the possession of the Kannan Devan Hills Produce Co. Ltd.
According to the petitioner Company, ‘it has at all times been holding, cultivating, enjoying and dealing with the Concession Land as the absolute, owner thereof’.
According to the State, this land is dealt with under this heading – Pandaravaka Lands, i.e. lands belonging to the Sircar. and that it was only “granted” to the company for ‘coffee cultivation’. The State asserted in this case –
that the petitioner Company was not an absolute owner, but only a lessee under the Government, especially since the 1899 Proclamation issued by H.H. the Maharaja declaring that Kannan Devan Hills was ‘an integral part’ of the ‘territory’.
that the petitioner’s predecessor-in-title was John Danial Munro, who obtained, the first Pooniat Concession from Punjar Valiya Raja, on July 11, 1877. This Concession recited that an, application was made for the grant of the above property to the Raja for coffee cultivation.
It was further stipulated in the Concession that
“you shall clear and remove the jungles, and reclaim the waste lands within the said boundaries, and cultivate them with coffee up to the year 1058 and from the year 1059, pay our rent collector a yearly rent at the rate of 3,000 British Rupees.”
H.H. the Maharaja executed a deed of ratification, dated November 28, 1878, by which the Government ratified the First Pooniat Concession dated July 11, 1877.
This deed of ratification laid down – the Government permitted the grantee to hold the land. (it is similar to the ‘Grant/Title’ deeds executed by the State in all other ‘Grants’ – under the ‘Grant Rules’).
Clause 5 of the Deed of Ratification, is important. It provides, inter alia, that
“The grantee can appropriate to his own use within the limits of the grant all timber except the following and such as may hereafter be reserved namely, Teak, Cole Teak, Blackwood, Ebony, Karoonthaly, Sandalwood; should he carry any timber without the limits of the grant it will be subject to the payment of Kooteekanom, or Customs Duty……….
The eleventh clause reads – “The land granted shall be held in perpetuity as heritable or transferable property, but every case of transfer of the grant by the grantee shall be immediately made known to the Sircar, who shall have the right of apportioning the tax, if a portion of the holding is transferred.”
The twelfth clause stipulates – “The discovery of useful mines and treasures within the limits of the grant shall be communicated to the Sircar, and the grantee shall in respect to such mines and treasures, abide by the decision of the Sircar.”
The sixteenth clause provides – “The grantee shall be bound to preserve the forest trees growing on the banks of the principal streams running through the tract to the extent of fifty yards in breadth on each side of the stream, the Underwood only being permitted to be cleared and coffee planted instead. Similarly he shall also be bound to preserve the, trees about the crest of the hill to the extent of a quarter of a mile on each side.”
A Royal Proclamation was made on September 24, 1899 provided that ‘Anjanad and Kannan Devan Hills is an integral portion of our territory and that the inhabitants of the said tract are ‘hereby informed and warned that they are not to pay any taxes, rents or dues, or make any other payment to the Poonjar Chief.
Points came for consideration in this decision were the following:
Whether the Kannan Devan Hills (Resumption of Lands) Act, 1971 was protected from challenge under Art. 31A of the Constitution. That is, whether these lands fall within expression ‘Janmam right’ or “estate” in art. 31A of the Constitution.
If the lands acquired were an “estate”, or with ‘Janmam right’ owned by the Company, the land reform enactment did not have stood valid. (Note: Kesavananda Bharathi Case came in 1973.)
The Apex Court found the following:
The janmam rights (even if remained with the Poonjar Chief, H.H. the Maharaja became the janmi by the Royal proclamation of 1899.
The nature of ‘janmam right’ has been examined by this Court previously in Kavalappara Kottarathil Kochuni v. State of Madras [1960] 3 S.C.R. 887 Subba Rao, J., observed that janmam right in Kerala is an “estate and it is the freehold interest.
The Sircar itself is one of these janmis and it was the largest Janmi. It came to possess janmam lands by gift, purchase, escheat, confiscation and other ways
If any person wants land in Travancore, he must obtain it from, some one of the body of Janmis, i.e. from the Sircar, which is the Chief Janmi, or from some other Janmi.
The Apex Court observed as under:
“… On the material placed before us it is difficult to resist the conclusion that the lands in dispute fall within the expression “Janmam right”.
If, as stated in Travancore Land Revenue Manual Volume IV, there are no lands that do not belong to a Janmi and the Sircar becomes a janmi by gift, escheat confiscation or otherwise, the effect of the Royal Proclamation of 1899 must be that the Sircar became the Janmi.”
The Apex Court further found –
The Registered Lands included inter alia, (a) Pandaravaka lands and (b) Janmam lands.
Regarding Pandaravaka lands it is stated : “Pandaravaka or Sircar lands are, lands of which the State is the landlord or the Jenmi and whatever rights which vest in the ryots are derived from the Sircar.”
Kenan Devan Hills Concession is dealt with under this heading, i.e. Pandaravaka Lands.
It thus appears that the State grants like Kanan Devan Hills Concession and Ten Square Miles Concession, and Munro Lands, were treated under the heading ‘Pandaravaka Lands, i.e. lands belonging to the Sircar (that is, such Grant-lands were not ‘owned’ by the holders thereof).
On these findings The Apex Court upheld the Kannan Devan Hills (Resumption of Lands) Act, 1971 and dismissed the challenge of the Company.
State of Kerala v. Kanan Devan Hills Produce Co. Ltd., (1991) 2 SCC 272
With respect to the same property it was held in State of Kerala v. Kannan Devan Hills Produce Co. Ltd., (1991) 2 SCC 272, as under:
“The Trial Court in a detailed and well-reasoned judgment dismissed the suit of the company. The Trial Court on the interpretation of First Concession (Exhibit P- 1), Second Concession (Exhibit P-2), deed of ratification (Exhibit P-62) and the Government agreement with the Society dated August 2, 1866 (Exhibit P-64) came to the conclusion that the company did notacquireabsolute proprietary rightsover the Concession Area or the trees and timber in the said area. It was held that the Poonjar Chief had only conveyed heritable and transferable possessory rights over the Concession area to the grantee. It was also held that absolute rights over the trees and timber in the Concession Area did not pass to the grantee and it had only the right to use and remove timber subject to the restrictions imposed in the deeds of conveyance/ratification.”
It is observed:
“An identical clause in another grant entered into by the Travancore Government came for consideration before a Full Bench of the Kerala High Court in George A Leslie v. State of Kerala, [1969] K. L.T. 378, K. K. Mathew, J. (as the learned Judge then was) interpreted the clause as under:
“ We think that if title to the reserved trees passed to the grantees, a provision of this nature would have been quite unnecessary. There was no purpose in stating that the grantees will be free to appropriate the reserved trees for consumption within the limits of the grant, if title to the trees passed to the grantees; the provision is a clear indication that the grantees were allowed to cut and appropriate the reserved trees for consumption within the limits of the grant as a matter of concession.”
“We agree with the interpretation given to the clause by Mathew, J. and hold that the respondent- company did not acquire absolute proprietary rights over the Concession Area or the trees and the timber therein.”
It is observed further:
“It was further held by Mathew, J. (in George A. Leslie v. State of Kerala, 1969 KLT 378) that kuttikanam being the governments share of the value of the trees owned by the government it has the power to fix the value of the trees. We agree with the reasoning and conclusions reached by Mathew, J.”
The Apex Court upheld and approved “the judgment and findings” of the Trial Court.
End Notes IV
Cultivating Tenants, were Obliged to Apply LT & The Legal Basis of Balanoor Plantations case
The legal basis of the decision, Balanoor Plantations & Industries Ltd. v. State of Kerala, 2018(3) KLT 283, can be derived from Sec. Sec. 85(3) of the KLR Act.
Sec. 85(3) and (3A) of the KLR Act read as under:
(3). Where, after the final settlement of claims for resumption of lands held by a person as tenant, such person holds land in excess of the ceiling area, or where after the purchase of the right, title and interest of the landowner** and the intermediary by the cultivating tenant in respect of lands owned by a person, such person owns land in excess of the ceiling area, such excess land shall be surrendered as hereinafter provided.
(3A). The person bound to file a statement under Sub-section (2) shall, within a period of three months from the date of final settlement or purchase, file a statement before the Land Board, and the provisions of the said Sub-section shall, as far as may he, apply in regard to the particulars to be contained in such statement, the calculation of the excess land and for the procedure for the surrender of the same. [Substituted by Act No. 35 of 1969.]
**Why the Words “After The Purchase of the Right, Title And Interest of the Landowner” Included?
It is 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 avail benefits declaring himself to be a cultivating-tenant; on the contrary, he has to approach the competent statutory authority (for the same) under the KLR Act; that is, the Land Tribunal.
Land Board or Taluk Land Board (deals with exemption on the ground of plantation, excess land issues etc.) cannot adjudicate on tenancy right.
A cultivating tenant, “entitled to assignment” of the right under Sec. 72B, if failed to apply the same, will not have ‘vested right to continue’, as a cultivating tenant and he will not be entitled to the benefit of fixity under Sec. 13 of the KLR Act.
Note: The tenant who opts to avail benefits of plantation-exemption, under Sec. 81, cannot seek fragmentation (Sec. 87, Explanation II) of the plantation land and obtain purchase-certificate (under Sec. 72A, 72B or 72C). 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.
Sec. 72B provides for cultivating tenant’s rights to get assignment by purchase certificate (through LT) – within ceiling area. Tenant is “obliged to apply” for it within 2 years from 1-1-1970. Therefore, the cultivating tenants entitled to assignment of the right, title and interest were “obliged to apply” to the Land Tribunal within the time fixed for asserting the claim as cultivating tenants. This decision also says that tenants having ‘no bona fide claim’ as to cultivating-tenancy will not have the benefit of fixity under Sec. 13 of the KLR Act, and they will have ‘no vested right to continue’.
Sec. 73B(3) reads as under:
“(3) Any cultivating tenant entitled to assignment of the right, title and interest in respect of a holding or part of a holding under Subsection (1) may apply to the Land Tribunal within whose jurisdiction such holding or part is situate within two years from the date of vesting of such right, title and interest in the Government under Section 72, or such further time as may be allowed by the Government in this behalf, for such assignment to him.”
In Shri Mukund Bhavan Trust v. Shrimant Chhatrapati Udayan Raje Pratapsinh Maharaj Bhonsle (2024 KLT(Online) 3058), the Supreme Court Failed to Notice the Change as regards Onus, Under 1963 Limitation Act.
Saji Koduvath, Advocate, Kottayam
Abstract
On December 20, 2024 our Apex Court, in Shri Mukund Bhavan Trust v. Shrimant Chhatrapati Udayan Raje Pratapsinh Maharaj Bhonsle, 2024 0 KLT(Online) 3058, held –
a plaint deserves rejectionunder Order VII rule 11, CPC if the pleadings contained therein is founded on forgery or fabrication (of documents) that came to the knowledge of the plaintiff decades back,
for, such a claim would be hopelessly barred by limitation (as it is governed under Article 59, Limitation Act which fixes period of limitation as 3 years) [Paras 18, 20, 22, 26].
In paragraph 23 of the Judgment, while dealing with ‘adverse possession’, the Court observed as under:
“As per Article 65 of the Limitation Act, 1963, the possession of immovable property or any interest therein, based on title can be sought within twelve years. …. The plaintiff has failed to sue the appellant/defendant or the State for possession within twelve years.”
The Case of the Plaintiff, in Brief
The plaintiff filed the suit for declaration of title and recovery of the plaint properties. It was alleged in the plaint that the predecessor of the plaintiff (belonging to Gosavis family)hadno right, under the original Sanad, to sell the suit properties to the Defendant Trust (under the sale deeds of 1938 and 1952).
Since the original Sanad was lost, the defendants had initiated a suit against the State which was compromised. In the compromise, the State accepted that it was a “soil grant”. Plaintiff was not a party to the said suit and without his knowledge, the consent decree was obtained clandestinely
Though it was “only a revenue grant”, the defendants have played systematic fraudin Civil Suits of 1951 and 1988 and Civil Appeal of 2001. and without any judicial pronouncements they have usurped the lands under suspicious compromises arrived at before the Court.
The Case of the Defendants, in Brief
The defendant Trust contended that the suit was barred by limitation. The Plaintiff or his predecessors did not take any step to assert their title and rights. The plaintiff knows fully well that the challenge to the registered sale deeds of the years 1938 and 1952 would be barred by limitation.
The defendant Trust had purchased 3/4th share of the suit lands mentioned in the Schedule in an auction sale conducted by the Civil Court, Pune, in the year 1938 from the previous Inamdar Gosavis family and the same was duly registered; and they had also purchased the remaining 1/4th share in the suit lands in the year 1952 by another registered sale deed.
The cause of action to sustain his suit is an imaginary one.
The Application under Order VII Rule 11(d) of CPC
The defendant filed application under Order VII Rule 11(d) of CPC r/w Articles 58, 59 and 65 of the Limitation Act, 1963, seeking rejection of the plaint saying that the alleged cause of action in 2007 is ‘purely illusory and has been stated with a view to get over the bar’ of limitation.
The trial Court rejected the application. It observed that the issue of limitation is a mixed question of law and facts, for which, the parties will have to lead evidence.
The Bombay High Court dismissed the Civil Revision Application by the defendant. Hence the SLP.
The Supreme Court allowed the the Order VII rule 11 petition of the defendant/appellant.
Analysis
The Court specifically considered the effect of (i) not seeking cancellation of the disputed deeds in the light of Sec. 31 of the Specific Relief Act (ii) not challenging a sale by the court in 1952 and that by the predecessors of the plaintiffand (iii) the averments in the plaint as regards fraud in relation to the compromise decrees.
As regards Section 31 of the Specific Relief Act, 1963, the Apex Court found that a declaration to adjudge the sale deeds voidable must have been sought as it stood “adverse to the interest and right of the plaintiff” and caused a serious injury. (Para 19)
As regards the conveyance in 1952, it was found that the right to sue had first accrued to the predecessors of the plaintiff, when the properties were brought for sale by the court in1952; and that “no challenge was made to the court auction“. (Para 19.1)
As regards fraud in relation to the compromise decrees, the Apex Court pointed out that the averments in the plaint are “vague and general, besides baseless and unsubstantiated”; and, it was found that “no case can be culled out from the averments made in the plaint” in this respect. It was further observed that the Plaintiff was a stranger to the suits which ended in compromise. Therefore, in view of the direct bar under Order XXIII Rule 3A of CPC, applicable to third parties as well, the plaintiff could not have sought a declaration theron (Triloki Nath Singh v. Anirudh Singh, (2020) 6 SCC 629), and the only remedy available was to approach the same court. (Para25)
The Apex Court Rejected the Plaint Observing the Following:
As settled in law, when an application to reject the plaint is filed, the averments in the plaint and the documents annexed therewith alone are germane (Para 11, 12).
Though limitation is a mixed question of fact and law and question of ‘limitation’ has to be decided after weighing the evidence on record, if the averments made in the plaint, ona bare perusal, disclosed that the reliefs were hopelessly barred by limitation, the Courts should not be hesitant to reject the suit under Order VII Rule 11 (Para 18, 26).
As per Section 31 of the Specific Relief Act, 1963, a declaration to adjudge the documents as void or voidable must be sought if it causes a serious injury. In the present case, the sale deeds “undisputably stand adverse to the interest and right of the plaintiff” and hence, a relief to declare them as invalid must have been sought. Though the plaintiff has pleaded the documents to be void and sought to ignore the documents, we do not think that the document is void, but rather, according to us, it can only be treated as voidable. (Para 19).
In paragraph 14 of the plaint, there is an averment that the original sanad was lost and a new sanad was given to the effect that the inam was a “revenue grant” based on the report of the Inam Commissioner. Again, specific dates are not mentioned in the plaint. In paragraph 25, the plaintiff alleges that “third party rights were created” by the Gosavi family without any right. Here also, the details are vague. It can be inferred that such rights ultimately culminated into court auction, in which, the property was sold to the appellant. (Para 19).
The Plaintiff is a “stranger to the suit properties”; the Defendants are the owners of the suit properties. It is a settled principle of law that the owners cannot be restrained from dealing with their own properties at the instance of a stranger. The said relief is again a consequential relief to the claim of title, which has been non-suited on the ground of limitation. The relief of title (founded on a plea of fraud) had to be established by the plaintiff, by a ‘declaration’. (Para 22, 24).
The plaintiff is to be non-suited on the ground of limitation; because, the limitation period is 3 years for both Article 58 (declaration) and Article 59 (cancellation of a decree) Limitation Act (Para 19.1, 20).
The case put forwarded by the Plaintiff as to fraud and compromise decrees are “vague and general, besides baseless and unsubstantiated” (only remedy on such situation lies in the same court) (Para 25).
It is not correct to contend that the provisions of the Limitation Act would have no applicationat all in the event the transaction is held to be void. [Relied on: Prem Singh v. Birbal, (2006) 5 SCC 353.]
The plaintiff has failed to sue the defendant for possession within twelve years of losing possession (para 23).
Nevertheless, allowing the appeal, the Apex Court observed in the penultimate paragraph as under:
“26. At this juncture, we wish to observe that we are not unmindful of the position of law that limitation is a mixed question of fact and law and the question of rejecting the plaint on that score has to be decided after weighing the evidence on record. However, in cases like this, where it is glaring from the plaint averments that the suit is hopelessly barred by limitation, the Courts should not be hesitant in granting the relief and drive the parties back to the trial Court.
We again place it on record that this is not a case where any forgery or fabrication is committed which had recently come to the knowledge of the plaintiff. Rather, the plaintiff and his predecessors did not take any steps to assert their title and rights in time. The alleged cause of action is also found to be creation of fiction. However, the trial Court erroneously dismissed the application filed by the appellants under Order VII Rule 11(d) of CPC.
The High Court also erred in affirming the same, keeping the question of limitation open to be considered by the trial Court after considering the evidence along with other issues, without deciding the core issue on the basis of the averments made by the Respondent No.1 in the Plaint as mandated by Order VII Rule 11 (d) of CPC.
The spirit and intention of Order VII Rule 11(d) of CPC is only for the Courts to nip at its bud when any litigation ex facie appears to be a clear abuse of process. The Courts by being reluctant only cause more harm to the defendants by forcing them to undergo the ordeal of leading evidence. Therefore, we hold that the plaint is liable to be rejected at the threshold.”
A Criticism
Article 65 of the Limitation Act, 1963 primarily governs the Law on Adverse Possession. According to this Article –
the starting point of Limitation is “When the possession of the defendant becomes adverse to the plaintiff.”
Articles 65 of the Limitation Act, 1963 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.
Art. 65 underwent complete change insofar as the onus is concerned (from 1908 Limitation Act). It casts the entire burden on the claimant/trespasser to plead and prove adverse possession.
Plaintiff need not have filed the suit within 12 years of losing possession
It is noteworthy – under Article 65, the plaintiff need not have come before the court within 12 years of losing possession; the period of 12 years has significance only if the defendant asserts “adverse possession”.
Because, the 12-year-period stated in Article 65 is not the period of
“mere losing possession” by the plaintiff;
on the contrary, what is stated is 12 years of
“adverse possession”
from the part of the defendant (with the required animus).
Finding in Shri Mukund Bhavan Trust v. Shrimant Chhatrapatias to Recovery of Possession – Appears to be Incorrect
After definitely holding that the title claim of the plaintiff is barred by limitation under Article 58 (declaration) and Article 59 (cancellation of a decree) of the Limitation Act, the Apex Court considered, in paragraph 23 of the Judgment, as an additional ground, whether the suit is barred under Article 65 of the Limitation Act that deals with ‘adverse possession’. It is observed that the plaintiff has failed to sue the appellant/defendant or the State, for possession, within twelve years. (Therefore the suit is liable to be rejected on this ground also.)
Para 23 reads as under:
“23. Further, in the aforesaid suit, the Respondent No.1 also sought possession of the suit properties based on title. As per Article 65 of the Limitation Act, 1963, the possession of immovable property or any interest therein, based on title can be sought within twelve years. From the records, it is evident that the possession of the subject properties was initially with the Government of Maharashtra, then with the Gonsavis and thereafter with the Defendant No. 1 and it can be safely said that at least for a century, the Respondent No. 1 nor his predecessors have been in possession of the properties after the grant of Inam. The plaintiff has failed to sue the appellant/defendant or the State for possession within twelve years. We have already held that the title claim of the plaintiff is barred by limitation and therefore, the claim for possession is also barred and consequently, the relief of recovery of possession is also hopelessly barred by limitation.”
But it is trite law – to attract ‘Adverse Possession’ mere possession, however long, is insufficient; it must be ‘adverse‘.
Limitation Act underwent Complete Change insofar as the ‘Onus’
In Government of Kerala v. Joseph, AIR 2023 SC 3988, our Apex Court (following P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59) pointed out that that the Limitation Act, 1963 underwent complete change insofar as the onus is concerned (from 1908 Limitation Act). The Court observed as under:
“34. The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned : once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession….”
In T. Anjanappa v. Somalingappa, (2006) 7 SCC 570, it has been held as under:
“20. It is well-recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner’s title must be peaceful, open and continuous. 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.” (Quoted in: Chatti Konati Rao v. Palle Venkata Subba Rao, AIR 2011 SC 1480, 2010 14 SCC 316)
In Mallikarjunaiah v. Nanjaiah, 2019-15 SCC 756, it is held as under:
“It is a settled principle of law that mere continuous possession howsoever longit may have been qua its true owner is not enough to sustain the plea of adverse possession unless it is further proved that such possession was open, hostile, exclusive and with the assertion of ownership right over the property to the knowledge of its true owner.”
The law on this point (i.e., mere possession, however long, is insufficient; but, it must be “adverse“, to attract ‘Adverse Possession’) is laid down in the following decisions also:
Government of Kerala v. Joseph, AIR 2023 SC 3988
Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR 2020 SC 461,
Ravinder Kaur Grewal v. Manjit Kaur (2019) 8 SCC 729
Karnataka Board of Wakf v. Govt. of India – (2004) 10 SCC 779.
Thakur Kishan Singh v. Arvind Kumar, 1994-6 SCC 591
Gaya Prasad Dikshit v. Dr. Nirmal Chandar 1984(2) SCC 286.
A Brief Note on Article 65
Article 65 deals with recovery based on title.
Under Article 65, in a suit on title, previous period in dispossession of plaintiff is immaterial. The onus is no longer on the plaintiff to prove that his dispossession took place within the period of limitation. (Jagannath Garnaik v. Sankar Samal, AIR 1990 Ori 124; State of Orissa v Jhunjhunwalla, 1986 CLT 55)
Under Article 65, once title is established by the plaintiff, plaintiff cannot be non-suited, unless defendant establishes adverse possession. (Indira v. Arumugam, AIR 1999 SC 1549; Bhushan Lal v. Suresh Kumar, AIR 1987 All 25, Manikyala Rao v. Narasimhaswami, AIR 1996 SC 470; Mallavva v. Kalsammanavara Kalamma, 2024 INSC 1021.)
Under Article 65, if plaintiff could not prove his title, he will fail; and in such a case, whether the defendant proves title (or not) is immaterial. (Ranjit Kumar Bhowmik v. Subodh Kumar Roy, (2004) I WBLR 228: (2004) 2 CHN 180).
‘Deemed Knowledge’ as to Registration to ‘Persons Acquiring such Property
The Apex Court (in Shri Mukund Bhavan Trust v. Shrimant Chhatrapati) referred to Dilboo v. Dhanraji, AIR 2000 SC 3146 : 2000-7 SCC 702, held as under:
“20…… Whenever a document is registered the date of registration becomes the date of deemed knowledge. In other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend the period of limitation by merely claiming that he had no knowledge.”
It is noteworthy that the ‘deemed knowledge’ as to registration is confined to ‘persons acquiring such property or any part of, or share or interest in, such property’ alone, as per Section 3 Explanation 1 of the TP Act. It reads as under:
“Explanation I – Where any transaction relating to immoveable property is required by law to be and has been effected by a registered instruments, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or (where the property is not all situated in one sub-district….”
Registration is not a notice in rem
In Parganas Lawyers Clerks Association v. State, AIR 1986 Cal. 205, it is unequivocally held as to Registration of deeds – “It is not a notice in rem“.
The law expounded in Explanation to Sec. 3 of the TP Act cannot be used as a shield to protect from the criminal actions on willful suppression of facts, in a criminal matter, as held in Kuldip Singh v. State, AIR 1954 P&H 31, it was observed as under:
“The object of the explanation to Section 3 is to safeguard the interests of a third party who has acquired a good title under a previous registered instrument but it does not in any way alter or modify the criminal liability of a person who deliberately suppresses certain facts or misstates certain facts.”
Law on this point is vividly explained in the following decisions:
Kuldip Singh v. State, AIR 1954 P&H 31
Parganas Lawyers Clerks Association v. State, AIR 1986 Cal. 205,
Godhan Son of Pola v. Ram Bilas, AIR 1995 All. 357
R. Ravichandran v. The State of Tamil Nadu, 2002-2-LW 590
Arabia Bibi v. Sarbunnisa (2011, R. Subbiah, J.),
Ranjit Singh v. Punjab State,2014-4 LawHerald 3533; 2014-3 RCR(Civ) 766
The Apex Court vividly expounded the law as regards adjudging the documents as void or voidable invoking Section 31 of the Specific Relief Act, 1963. The Court pointed out that the plaintiff being challenged (i) the sale made by his predecessor itself, and also (ii) the auction sale conducted by a Civil Court, it was necessary to seek declarations in those regard.
(ii) Law on Adverse Possession
Nonetheless, as shown above, it is beyond doubt that mere possession, however long, is not sufficient to bring home the doctrine of adverse possession; but, it must have been held “adverse” to the interests of the true owner for the stipulated period and must have been tracked with the required animus from the part of the claimant.
Therefore, it can be stated – in accordance with Article 65 of the Limitation Act, 1963,
unless the defendant asserts and proves ‘adverse possession’, the possession of immovable property or any interest therein, based on title need not be sought (by the plaintiff) within twelve years of losing possession.
Relevant portion of Section 3 of the Transfer of Property Act, 1882:
“3. Interpretation clause
……
“a person is said to have notice” of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it.
Explanation I.—Where any transaction relating to immoveable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-section (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated:
Provided that—(1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (16 of 1908), and the rules made thereunder, (2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under section 51 of that Act, and(3)the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act.
Explanation II.—Any personacquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.
Explanation III.—A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material:
Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud.”
On December 20, 2024 our Apex Court, in Shri Mukund Bhavan Trust v. Shrimant Chhatrapati Udayan Raje Pratapsinh Maharaj Bhonsle, held –
a plaint deserves rejectionunder Order VII rule 11, CPC if the pleadings contained therein is founded on forgery or fabrication (of documents) that came to the knowledge of the plaintiff decades back,
for, such a claim would be hopelessly barred by limitation (as it is governed under Article 59, Limitation Act which fixes period of limitation as 3 years) [Paras 18, 20, 22, 26].
In paragraph 23 of the Judgment, while dealing with ‘adverse possession’, the Court observed as under:
“As per Article 65 of the Limitation Act, 1963, the possession of immovable property or any interest therein, based on title can be sought within twelve years. …. The plaintiff has failed to sue the appellant/defendant or the State for possession within twelve years.”
Facts of the Case, in Brief
The plaintiff alleged that the defendants have played systematic fraud on various courts, and without any judicial pronouncements they usurped the lands, under suspicious compromises arrived at before the Court.
Though the alleged forgery or fabrication had been come to the knowledge of the plaintiff and his predecessors long back (more than 50 years), they did not take any step to assert their title and rights.
The defendant filed application under Order VII Rule 11(d) of CPC r/w Articles 58, 59 and 65 of the Limitation Act, 1963, seeking rejection of the plaint.
The trial Court rejected the application. It observed that the issue of limitation is a mixed question of law and facts, for which, the parties will have to lead evidence.
The High Court dismissed the Civil Revision Application. Hence the SLP.
Analysis
The Court specifically considered the effect of (i) not seeking cancellation of the disputed deeds in the light of Sec. 31 of the Specific Relief Act (ii) not challenging a sale by the court in 1952 and that by the predecessors of the plaintiffand (iii) the averments in the plaint as regards fraud in relation to the compromise decrees.
As regards Section 31 of the Specific Relief Act, 1963, the Apex Court found that a declaration to adjudge the sale deeds voidable must have been sought as it stood “adverse to the interest and right of the plaintiff” and caused a serious injury. (Para 19)
As regards the conveyance in 1952, it was found that the right to sue had first accrued to the predecessors of the plaintiff, when the properties were brought for sale by the court in1952; and that “no challenge was made to the court auction”. (Para 19.1)
As regards fraud in relation to the compromise decrees, the Apex Court pointed out that the averments in the plaint are “vague and general, besides baseless and unsubstantiated”; and, it was found that “no case can be culled out from the averments made in the plaint” in this respect. It was further observed that the Plaintiff was a stranger to the suits which ended in compromise. Therefore, in view of the direct bar under Order XXIII Rule 3A of CPC, applicable to third parties as well, the plaintiff could not have sought a declaration theron (Triloki Nath Singh v. Anirudh Singh, (2020) 6 SCC 629), and the only remedy available was to approach the same court. (Para25)
Analysing the legal principles the Court held –
As settled in law, when an application to reject the plaint is filed, the averments in the plaint and the documents annexed therewith alone are germane (Para 11, 12).
Though limitation is a mixed question of fact and law and question of ‘limitation’ has to be decided after weighing the evidence on record, if the averments made in the plaint, ona bare perusal, disclosed that the reliefs were hopelessly barred by limitation, the Courts should not be hesitant to reject the suit under Order VII Rule 11 (Para 18, 26).
A suit founded on fraud, must be proceeded with a ‘declaration’. Period of limitation for such a declaration (governed under under Article 58, Limitation Act) as well as that for cancellation of a decree (governed under under Article 59, Limitation Act) is 3 years (Para 19.1, 20).
The Apex Court Rejected the Plaint for the Following:
Plaintiff is a stranger. The relief of title (founded on a plea of fraud) had to be established by the plaintiff, by a ‘declaration’ (Para 24, 25).
The plaintiff is to be non-suited on the ground of limitation; because, the limitation period is 3 years for both Article 58 (declaration) and Article 59 (cancellation of a decree) Limitation Act (Para 19.1, 20).
The case put forwarded by the Plaintiff as to fraud and compromise decrees are “vague and general, besides baseless and unsubstantiated” (only remedy on such situation lies in the same court) (Para 25).
It is not correct to contend that the provisions of the Limitation Act would have no application at all in the event the transaction is held to be void. [Relied on: Prem Singh v. Birbal, (2006) 5 SCC 353.]
Nevertheless, allowing the appeal, the Apex Court observed in the penultimate paragraph as under:
“26. At this juncture, we wish to observe that we are not unmindful of the position of law that limitation is a mixed question of fact and law and the question of rejecting the plaint on that score has to be decided after weighing the evidence on record. However, in cases like this, where it is glaring from the plaint averments that the suit is hopelessly barred by limitation, the Courts should not be hesitant in granting the relief and drive the parties back to the trial Court.
We again place it on record that this is not a case where any forgery or fabrication is committed which had recently come to the knowledge of the plaintiff. Rather, the plaintiff and his predecessors did not take any steps to assert their title and rights in time. The alleged cause of action is also found to be creation of fiction. However, the trial Court erroneously dismissed the application filed by the appellants under Order VII Rule 11(d) of CPC.
The High Court also erred in affirming the same, keeping the question of limitation open to be considered by the trial Court after considering the evidence along with other issues, without deciding the core issue on the basis of the averments made by the Respondent No.1 in the Plaint as mandated by Order VII Rule 11 (d) of CPC.
The spirit and intention of Order VII Rule 11(d) of CPC is only for the Courts to nip at its bud when any litigation ex facie appears to be a clear abuse of process. The Courts by being reluctant only cause more harm to the defendants by forcing them to undergo the ordeal of leading evidence. Therefore, we hold that the plaint is liable to be rejected at the threshold.”
A Criticism
Finding in Shri Mukund Bhavan Trust v. Shrimant Chhatrapatias to Recovery of Possession – Appears to be Incorrect
After definitely holding that the title claim of the plaintiff is barred by limitation under Article 58 (declaration) and Article 59 (cancellation of a decree) of the Limitation Act, the Apex Court considered, in paragraph 23 of the Judgment, as an additional ground, whether the suit is barred under Article 65 of the Limitation Act that deals with ‘adverse possession’. It is observed that the plaintiff has failed to sue the appellant/defendant or the State, for possession, within twelve years. (Therefore the suit is liable to be rejected on this ground also.)
Para 23, reads as under:
“23. Further, in the aforesaid suit, the Respondent No.1 also sought possession of the suit properties based on title. As per Article 65 of the Limitation Act, 1963, the possession of immovable property or any interest therein, based on title can be sought within twelve years. From the records, it is evident that the possession of the subject properties was initially with the Government of Maharashtra, then with the Gonsavis and thereafter with the Defendant No.1 and it can be safely said that at least for a century, the Respondent No.1 nor his predecessors have been in possession of the properties after the grant of Inam. The plaintiff has failed to sue the appellant/defendant or the State for possession within twelve years. We have already held that the title claim of the plaintiff is barred by limitation and therefore, the claim for possession is also barred and consequently, the relief of recovery of possession is also hopelessly barred by limitation.”
But it is trite law – to attract ‘Adverse Possession’ mere possession, however long, is insufficient; it must be ‘adverse‘.
Adverse Possession ‘Drastic’ Change of Law by 1963 Limitation Act
Article 65 of the Limitation Act, 1963 primarily governs the Law on Adverse Possession. According to this Article –
the starting point of Limitation is “When the possession of the defendant becomes adverse to the plaintiff.”
Articles 65 of the Limitation Act, 1963 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.
Complete change insofar as the Onus Under 1963 Limitation Act
Art. 65 underwent complete change insofar as the onus is concerned (from 1908 Limitation Act). It casts the entire burden on the claimant/trespasser to plead and prove adverse possession.
Plaintiff need not have filed the suit within 12 years of losing possession
It is noteworthy – under Article 65, the plaintiff need not have come before the court within 12 years of losing possession; the period of 12 years has significance only if the defendant asserts “adverse possession”.
Because, the 12-year-period stated in Article 65 is not the period of
“mere losing possession” by the plaintiff;
on the contrary, what is stated is 12 years of
“adverse possession”
from the part of the defendant (with the required animus).
Limitation Act underwent Complete Change insofar as the ‘Onus’
In Government of Kerala v. Joseph, AIR 2023 SC 3988, our Apex Court (following P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59) pointed out that that the Limitation Act 1963 underwent complete change insofar as the onus is concerned (from 1908 Limitation Act). The Court observed as under:
“34. The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned : once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession….”
The authoritative decisions say – mere possession, however long, is insufficient; it must be adverse (to attract ‘Adverse Possession’). The law on this point (not mere long possession, but ‘Adverse Possession’ required by the drastic change in 1963 Act) is clearly laid down in the following decisions also:
Government of Kerala v. Joseph, AIR 2023 SC 3988
Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR 2020 SC 461,
Ravinder Kaur Grewal v. Manjit Kaur (2019) 8 SCC 729
Karnataka Board of Wakf v. Govt. of India – (2004) 10 SCC 779
Thakur Kishan Singh v. Arvind Kumar, 1994-6 SCC 591
Gaya Prasad Dikshit v. Dr. Nirmal Chandar 1984(2) SCC 286.
In T. Anjanappa v. Somalingappa, (2006) 7 SCC 570, it has been held as under:
“20. It is well-recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner’s title must be peaceful, open and continuous. 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.” (Quoted in: Chatti Konati Rao v. Palle Venkata Subba Rao, AIR 2011 SC 1480, 2010 14 SCC 316)
In Mallikarjunaiah v. Nanjaiah, 2019-15 SCC 756, it is held as under:
“It is a settled principle of law that mere continuous possession howsoever long it may have been qua its true owner is not enough to sustain the plea of adverse possession unless it is further proved that such possession was open, hostile, exclusive and with the assertion of ownership right over the property to the knowledge of its true owner.”
A Brief Note on Article 65
As per Article 65 of the Limitation Act, 1963, starting point of Limitation is “When the possession of the defendant becomes adverse to the plaintiff.”
Article 65 deals with recovery based on title.
Under Article 65, in a suit on title, previous period in dispossession of plaintiff is immaterial. The onus is no longer on the plaintiff to prove that his dispossession took place within the period of limitation. (Jagannath Garnaik v. Sankar Samal, AIR 1990 Ori 124; State of Orissa v Jhunjhunwalla, 1986 CLT 55)
Under Article 65, if plaintiff could establish his title, it would fail only if the defendant proves adverse possession over twelve years. (Indira v. Arumugam, AIR 1999 SC 1549; Bhushan Lal v. Suresh Kumar, AIR 1987 All 25, Manikyala Rao v. Narasimhaswami, AIR 1996 SC 470; Mallavva v. Kalsammanavara Kalamma, 2024 INSC 1021.)
Under Article 65, if plaintiff could not prove his title, he will fail; and in such a case, whether the defendant proves title (or not) is immaterial. (Ranjit Kumar Bhowmik v. Subodh Kumar Roy, (2004) I WBLR 228: (2004) 2 CHN 180).
Conclusion
The Apex Court vividly expounded the law as regards adjudging the documents as void or voidable invoking Section 31 of the Specific Relief Act, 1963. The Court pointed out that the plaintiff being challenged (i) the sale made by his predecessor itself, and also (ii) the auction sale conducted by a Civil Court, it was necessary to seek declarations in those regard.
Nonetheless, as shown above, it is indisputable that mere possession, however long, is not sufficient to bring home the doctrine of adverse possession; rather, it must be shown that such possession was held “adverse” to the interests of the rightful owner for the prescribed period and it must have been endured with the requisite animus on the part of the claimant.
Therefore, it can be stated that in accordance with Article 65 of the Limitation Act, 1963, unless the defendant asserts and proves ‘adverse possession’ –
the possession of immovable property or any interest therein, based on title need not have been sought (by the plaintiff) within twelve years of losing possession.
“11. Rejection of plaint.- The plaint shall be rejected in the following cases-
(a) where it does not disclose a cause of action;
(b) where the relief claimed in undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of rule 9:
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevent by any cause of exceptional nature for correction the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.”
Section 3 of the Transfer of Property Act, 1882:
“3. Interpretation clause.
“a person is said to have notice” of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it.
Explanation I.- Where any transaction relating to immoveable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-section (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated:
Provided that-(1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (16 of 1908), and the rules made thereunder, (2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under section 51 of that Act, and(3)the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act.
Explanation II.-Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.
Explanation III.-A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material: Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud.”
Rulings relied on:
Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra), (2020) 7 SCC 366
“23.2. The remedy under Order VII Rule 11 is an independent and special remedy, wherein the Court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision.
23.3. The underlying object of Order VII Rule 11 (a) is that if in a suit,
no cause of action is disclosed, or
the suit is barred by limitation under Rule 11 (d),
the Court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an endto the sham litigation, so that further judicial time is not wasted.
23.4. In Azhar Hussain v. Rajiv Gandhi, 1986 Supp SCC 315 (Followed in Manvendrasinhji Ranjitsinhji Jadeja v. Vijaykunverba, 1998 SCC OnLine Guj 281 : (1998) 2 GLH 823) this Court held that the whole purpose of conferment of powers under this provision is to ensure that a litigation which is meaningless, and bound to prove abortive, should not be permittedto waste judicial time of the court, in the following words : (SCC p.324, para 12)
23.5. The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order VII Rule 11 are required to be strictly adhered to.
23.6. Under Order VII Rule 11, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint (Liverpool & London S.P. & I Assn. Ltd. V. M.V. Sea Success I, (2004) 9 SCC 512), read in conjunction with the documents relied upon, or whether the suit is barred by any law.
23.7. Order VII Rule 14(1) provides for production of documents, on which the plaintiff places reliance in his suit, which reads as under:
“14. Production of document on which plaintiff sues or relies.-
Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.
Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.
A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
Nothing in this rule shall apply to document produced for the cross examination of the plaintiff’s witnesses, or, handed over to a witness merely to refresh his memory.”(emphasis supplied)
23.8. Having regard to Order VII Rule 14 CPC, the documents filed along with the plaint, are required to be taken into consideration for deciding the application under Order VII Rule 11 (a). When a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of the plaint.
23.9. In exercise of power under this provision, the Court would determine if the assertions made in the plaint are contrary to statutory law, or judicial dicta, for deciding whether a case for rejecting the plaint at the threshold is made out.
23.10. At this stage, the pleas taken by the defendant in the written statement and application for rejection of the plaint on the merits, would be irrelevant, and cannot be adverted to, or taken into consideration (Sopan Sukhdeo Sable v. Charity Commr., (2004) 3 SCC 137).
23.11. The test for exercising the power under Order VII Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed. This test was laid down in Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I which reads as : (SCC p.562, para 139)
“139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed.”
23.12. In Hardesh Ores (P.) Ltd. v. Hede & Co., (2007) 5 SCC 614, the Court further held that it is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court cannot embarkupon an enquiry whether the allegations are true in fact. D. Ramachandran v. R.V. Janakiraman, (1999) 3 SCC 267).
23.13. If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the court would be justified in exercising the power under Order VII Rule 11 CPC.
23.14. The power under Order VII Rule 11 CPC may be exercised by the Court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial, as held by this Court in the judgment of Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557. The plea that once issues are framed, the matter must necessarily go to trial was repelled by this Court in Azhar Hussain (supra).
23.15. The provision of Order VII Rule 11 is mandatory in nature. It states that the plaint “shall” be rejected if any of the grounds specified in clause (a) to (e) are made out. If the Court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the Court has no option, but to reject the plaint.
24. “Cause of action” means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It consists of a bundle of material facts, which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit.
24.1. In Swamy Atmanand v. Sri Ramakrishna Tapovanam, (2005) 10 SCC 51, this Court held:
“24. A cause of action, thus, means every fact, which if traversed, it would be necessary for the plaintiff to prove an order to support his right to a judgment of the court. In other words, it is a bundle of facts, which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act, no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded”(emphasis supplied)
24.2. In T. Arivanandam v. T.V. Satyapal, (1977) 4 SCC 467, this Court held that while considering an application under Order VII Rule 11 CPC what is required to be decided is whether the plaint discloses a real cause of action, or something purely illusory, in the following words: (SCC p. 470, para 5)
“5. The learned Munsif must remember that if on a meaningful – not formal –reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII, Rule 11 C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing.”(emphasis supplied)
24.3. Subsequently, in I.T.C. Ltd. v. Debt Recovery Appellate Tribunal, (1998) 2 SCC 170, this Court held that law cannot permit clever drafting which creates illusions of a cause of action. What is required is that a clear right must be made out in the plaint.
24.4. If, however, by clever drafting of the plaint, it has created the illusion of a cause of action, this Court in Madanuri Sri Ramachandra Murthy v. Syed Jalal, (2017) 13 SCC 174, held that it should be nipped in the bud, so that bogus litigation will end at the earliest stage. The Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court.
25. The Limitation Act, 1963 prescribes a time-limit for the institution of all suits, appeals, and applications. Section 2(j) defines the expression “period of limitation” to mean the period of limitation prescribed in the Schedule for suits, appeals or applications. Section 3 lays down that every suit instituted after the prescribed period, shall be dismissed even though limitation may not have been set up as a defence. If a suit is not covered by any specific article, then it would fall within the residuary article.
Description of suit
Period of limitation
Time from which period begins to run
58. To obtain any other declaration
Three years
When the right to sue first accrues
59. To cancel or set aside an instrument or decree or for the rescission of a contract
Three years
When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him.
The period of limitation prescribed under Articles 58 and 59 of the 1963 Act is three years, which commences from the date when the right to sue first accrues.
27. In Khatri Hotels Pvt. Ltd. v. Union of India, (2011) 9 SCC 126, this Court held that the use of the word ‘first’ between the words ‘sue’ and ‘accrued’, would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. That is, if there are successive violations of the right, it would not give rise to a fresh cause of action, and the suit will be liable to be dismissed, if it is beyond the period of limitation counted from the date when the right to sue first accrued.
28. A three-Judge Bench of this Court in State of Punjab v. Gurdev Singh, (1991) 4 SCC 1 : 1991 SCC (L&S) 1082, held that the Court must examine the plaint and determine when the right to sue first accrued to the plaintiff, and whether on the assumed facts, the plaint is within time. The words “right to sue” means the right to seek relief by means of legal proceedings. The right to sue accrues only when the cause of action arises. The suit must be instituted when the right asserted in the suit is infringed, or when there is a clear and unequivocal threat to infringe such right by the defendant against whom the suit is instituted. Order VII Rule 11(d) provides that where a suit appears from the averments in the plaint to be barred by any law, the plaint shall be rejected.”
R.K. Mohd. Ubaidullah v. Hajee C. Abdul Wahab, (2000) 6 SCC 402
“15. Notice is defined in Section 3 of the Transfer of Property Act. It may be actual where the party has actual knowledge of the fact or constructive. “A person is said to have notice” of a fact when he actually knows that fact, or when, but for wilful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it.
Explanation II of said Section 3 reads:
“Explanation II.-Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.”
Ningawwa v. Byrappa Shiddappa Hireknrabar, (1968) 2 SCJ 555 : AIR 1968 SC 956
“5. The legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof. With reference to the former, it has been held that the transaction is void, while in the case of the latter, it is merely voidable. In Foster v. Mackinon [(1869) 4 CP 704] the action was by the endorsee of a bill of exchange. The defendant pleaded that he endorsed the bill on a fraudulent representation by the acceptor that he was signing a guarantee. In holding that such a plea was admissible, the Court observed:
“It (signature) is invalid not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the signer did not accompany the signature; in other words, that he never intended to sign, and therefore in contemplation of law never did sign, the contract to which his name is appended. The defendant never intended to sign that contract or any such contract. He never intended to put his name to any instrument that then was or thereafter might become negotiable. He was deceived, not merely as to the legal effect, but as to the ‘actual contents’ of the instrument.”
This decision has been followed by the Indian courts Sanni Bibi v. Siddik Hossain [AIR 1919 Cal 728], and Brindaban v. Dhurba Charan [AIR 1929 Cal 606]. It is not the contention of the appellant in the present case that there was any fraudulent misrepresentation as to the character of the gift deed but Shiddappa fraudulently included in the gift deed plots 91 and 92 of Lingadahalli village without her knowledge. We are accordingly of the opinion that the transaction of gift was voidable and not void and the suit must be brought within the time prescribed under Article 95 of the Limitation Act.”
Dilboo v. Dhanraji, (2000) 7 SCC 702
“20. Whenever a document is registered the date of registration becomes the date of deemed knowledge. In other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend the period of limitation by merely claiming that he had no knowledge”
Mohd. Noorul Hoda v. Bibi Raifunnisa, (1996) 7 SCC 767
“5. Section 55(1) of the Transfer of Property Act, 1882 regulates rights and liabilities of the buyer and seller. The seller is bound to disclose to the buyer any material defect in the property or in the seller’s title thereto of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover. The seller is to answer, to the best of his information, all relevant questions put to him by the buyer in respect of the property or the title thereto. The seller shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the same.
Section 3 provides that “a person is said to have a notice of a fact when he actually knows the fact, or when but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it”. Explanation II amplifies that “any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof”. Constructive notice in equity treats a man who ought to have known a fact, as if he actually knows it. Generally speaking, constructive notice may not be inferred unless some specific circumstances can be shown as a starting point of enquiry which if pursued would have led to the discovery of the fact.
As a fact it is found that Rafique filed the sale deed dated 1-12- 1959 executed in his favour by Mahangu, in Title Suit No. 220 of 1969 for which the petitioner claims to have derivative title through Rafique. Rafique had full knowledge that despite the purported sale, Bibi Raifunnisa got the preliminary decree passed in 1973 and in 1974 under the final decree the right, title and interest in the suit property passed on to her. Under Section 55 when second sale deed dated 6-9-1980 was got executed by the petitioner from Rafique, it is imputable that Rafique had conveyed all the knowledge of the defects in title and he no longer had title to the property.
It is also a finding of fact recorded by the appellate court and affirmed by the High Court that the petitioner was in know of full facts of the preliminary decree and the final decree passed and execution thereof. In other words, the finding is that he had full knowledge, from the inception of Title Suit No. 220 of 1969 from his benamidar. Having had that knowledge, he got the second sale deed executed and registered on 6-9-1980. Oblivious to these facts, he did not produce the second original sale deed nor is an attempt made to produce secondary evidence on proof of the loss of original sale deed.
6. The question, therefore, is as to whether Article 59 or Article 113 of the Schedule to the Act is applicable to the facts in this case. Article 59 of the Schedule to the Limitation Act, 1908 had provided inter alia for suits to set aside decree obtained by fraud. There was no specific article to set aside a decree on any other ground. In such a case, the residuary Article 120 in Schedule III was attracted. The present Article 59 of the Schedule to the Act will govern any suit to set aside a decree either on fraud or any other ground. Therefore, Article 59 would be applicable to any suit to set aside a decree either on fraud or any other ground.
It is true that Article 59 would be applicable if a person affected is a party to a decree or an instrument or a contract. There is no dispute that Article 59 would apply to set aside the instrument, decree or contract between the inter se parties. The question is whether in case of person claiming title through the party to the decree or instrument or having knowledge of the instrument or decree or contract and seeking to avoid the decree by a specific declaration, whether Article 59 gets attracted? As stated earlier, Article 59 is a general provision. In a suit to set aside or cancel an instrument, a contract or a decree on the ground of fraud, Article 59 is attracted. The starting point of limitation is the date of knowledge of the alleged fraud.
When the plaintiff seeks to establish his title to the property which cannot be established without avoiding the decree or an instrument that stands as an insurmountable obstacle in his way which otherwise binds him, though not a party, the plaintiff necessarily has to seek a declaration and have that decree, instrument or contract cancelled or set aside or rescinded. Section 31 of the Specific Relief Act, 1963 regulates suits for cancellation of an instrument which lays down that any person against whom a written instrument is void or voidable and who has a reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, can sue to have it adjudged void or voidable and the court may in its discretion so adjudge it and order it to be delivered or cancelled.
It would thus be clear that the word ‘person’ in Section 31 of the Specific Relief Act is wide enough to encompass a person seeking derivative title from his seller. It would, therefore, be clear that if he seeks avoidance of the instrument, decree or contract and seeks a declaration to have the decrees set aside or cancelled he is necessarily bound to lay the suit within three years from the date when the facts entitling the plaintiff to have the decree set aside, first became known to him.
7. The question, therefore, is as to when the facts of granting preliminary and final decrees touching upon the suit land first became known to him. As seen, when he claimed title to the property as owner and Rafique to be his benamidar, as admitted by Rafique, the title deed dated 1-12-1959 was filed in Title Suit No. 220 of 1969. Thereby Rafique had first known about the passing of the preliminary decree in 1973 and final decree in 1974 as referred to earlier. Under all these circumstances, Article 113 is inapplicable to the facts on hand.
Since the petitioner claimed derivative title from him but for his wilful abstention from making enquiry or his omission to file the second sale deed dated 6-9-1980, an irresistible inference was rightly drawn by the courts below that the petitioner had full knowledge of the fact right from the beginning; in other words right from the date when title deed was filed in Title Suit No. 220 of 1969 and preliminary decree was passed on 2-1-1973 and final decree was passed on 5-2-1974. Admittedly, the suit was filed in 1981 beyond three years from the date of knowledge. Thereby, the suit is hopelessly barred by limitation. The decree of the appellate court and the order of the High Court, therefore, are not illegal warranting interference.”
Prem Singh v. Birbal, (2006) 5 SCC 353
“11. Limitation is a statute of repose. It ordinarily bars a remedy, but, does not extinguish a right. The only exception to the said rule is to be found in Section 27 of the Limitation Act, 1963 which provides that at the determination of the period prescribed thereby, limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.
12. An extinction of right, as contemplated by the provisions of the Limitation Act, prima facie would be attracted in all types of suits. The Schedule appended to the Limitation Act, as prescribed by the articles, provides that upon lapse of the prescribed period, the institution of a suit will be barred. Section 3 of the Limitation Act provides that irrespective of the fact as to whether any defence is set out or is raised by the defendant or not, in the event a suit is found to be barred by limitation, every suit instituted, appeal preferred and every application made after the prescribed period shall be dismissed.
13. Article 59 of the Limitation Act applies specially when a relief is claimed on the ground of fraud or mistake. It only encompasses within its fold fraudulent transactions which are voidable transactions.
14. A suit for cancellation of instrument is based on the provisions of Section 31 of the Specific Relief Act, which reads as under:
“31. When cancellation may be ordered.-Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.
If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.”
15. Section 31 of the Specific Relief Act, 1963 thus, refers to both void and voidable documents. It provides for a discretionary relief.
16. When a document is valid, no question arises of its cancellation. When a document is void ab initio, a decree for setting aside the same would not be necessary as the same is non est in the eye of the law, as it would be a nullity.
17. Once, however, a suit is filed by a plaintiff for cancellation of a transaction, it would be governed by Article 59. Even if Article 59 is not attracted, the residuary article would be.
18. Article 59 would be attracted when coercion, undue influence, misappropriation or fraud which the plaintiff asserts is required to be proved. Article 59 would apply to the case of such instruments. It would, therefore, apply where a document is prima facie valid. It would not apply only to instruments which are presumptively invalid. (See Unni v. Kunchi Amma [ILR (1891) 14 Mad 26] and Sheo Shankar Gir v. Ram Shewak Chowdhri [ILR (1897) 24 Cal 77].)
19. It is not in dispute that by reason of Article 59 of the Limitation Act, the scope has been enlarged from the old Article 91 of the 1908 Act. By reason of Article 59, the provisions contained in Articles 91 and 114 of the 1908 Act had been combined.
20. If the plaintiff is in possession of a property, hemay file a suit for declaration that the deed is not binding upon him but if he is not in possession thereof, even under a void transaction, the right by way of adverse possession may be claimed. Thus, it is not correct to contend that the provisions of the Limitation Act would have no application at all in the event the transaction is held to be void.
21. Respondent 1 has not alleged that fraudulent misrepresentation was made to him as regards the character of the document. According to him, there had been a fraudulent misrepresentation as regards its contents.
22. In Ningawwa v. Byrappa [(1968) 2 SCR 797 : AIR 1968 SC 956] this Court held that the fraudulent misrepresentation as regards character of a document is void but fraudulent misrepresentation as regards contents of a document is voidable stating: (SCR p. 801 C-D)
“The legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof. With reference to the former, it has been held that the transaction is void, while in the case of the latter, it is merely voidable.”
In that case, a fraud was found to have been played and it was held that as the suit was instituted within a few days after the appellant therein came to know of the fraud practised on her, the same was void. It was, however, held: (SCR p. 803 B-E)
“Article 91 of the Limitation Act provides that a suit to set aside an instrument not otherwise provided for (and no other provision of the Act applies to the circumstances of the case) shall be subject to a three years’ limitation which begins to run when the facts entitling the plaintiff to have the instrument cancelled or set aside are known to him.
In the present case, the trial court has found, upon examination of the evidence, that at the very time of the execution of the gift deed, Ext. 45 the appellant knew that her husband prevailed upon her to convey Surveys Plots Nos. 407/1 and 409/1 of Tadavalga village to him by undue influence. The finding of the trial court is based upon the admission of the appellant herself in the course of her evidence. In view of this finding of the trial court it is manifest that the suit of the appellant is barred under Article 91 of the Limitation Act so far as Plots Nos. 407/1 and 409/1 of Tadavalga village are concerned.”
“27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption.
28. If a deed was executed by the plaintiff when he was a minor and it was void, he had two options to file a suit to get the property purportedly conveyed thereunder. He could either file the suit within 12 years of the deed or within 3 years of attaining majority. Here, the plaintiff did not either sue within 12 years of the deed or within 3 years of attaining majority. Therefore, the suit was rightly held to be barred by limitation by the trial court.”
In the context of Acquisition, it is necessary to examine three categories of plantation lands.
1. Private plantation lands.
2. Government lands on lease for plantation.
3. Plantation-lease-lands vested in Government under Sec. 72 of the KLR Act (and formerly owned by private persons).
GENERAL
1. Chapter III – Exemption of Plantation Land
Chapter III (Sections 81 to 98A) of the Kerala Land Reforms Act, 1963 deals with ‘Restriction on Ownership and Possession of Land in Excess of Ceiling Area and Disposal of Excess Lands’.
Among other things, Chapter III lays down provisions as to:
ceiling limit,
exemptions from ceiling limit,
effect of conversion of exempted land.
2. Sec. 81(1)says that the provisions of Chapter III shall not apply to –
lands owned or held by the Government,
private forests,
plantations, etc.
Note: 1. Section 81(1) exempts Government lands from the provisions of Chapter III. The Proviso says that following Government lands will not stand exempted.
1. Government-lease-lands
2. Lands that fall under Section 13 (Fixity) and
3. Lands that fall under Section 72 (Lease lands vest in Government).
2. 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.
3. Fixity, Vesting in Govt. and Purchase Certificate:
Sec. 13 says – every tenant (who pays rent) has fixity. But, holdings held by cultivating tenants (in actual possession) alone will vest in Govt., under Section 72(1).
Purchase certificates can be obtained by ‘cultivating tenants’ only whose lands are vested in Govt. according to Sec. 72B and 72C. (Sec. 53 purchase also.)
Sec. 72 provides for automatic vesting of leasehold properties held by ‘cultivating tenants’ in Govt. (ILR 2010(2) Ker. 845).
PART I
ACQUISITION OF PLANTATION-LANDSOWNED BYPRIVATE PERSONS
1. Proviso to Article 31A(1) of the Constitution of India
It is plain – No compensation is payable to the land-owners, for the lands ‘above the ceiling limit’, according to the Constitution of India. If any authority gives it, it will be sheer “corruption”.
The provisions of the KLR Act as regards ‘vesting’, ‘excess land’ etc. are legislated predicating upon Proviso to Article 31A(1) of the Constitution which states that the State need not pay compensation to the former land owners (when land is acquired) above the ‘ceiling limit‘.
Proviso to Article 31A(1) of the Constitution of India 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 limitapplicable 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.”.
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.
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).
Section 81(4) “permits”use of the land not exceeding 5% of the extent of such holding for floriculture, dairy farms, hotels, restaurants, etc.
2. Exemption of ‘Plantation’ Does Not Cover Exemption of ‘Plantation LAND’
It is for the following reasons –
1. The exemption is to the ‘plantation’, and not to the ‘LAND‘.
2. Exemption is conditional – for it exists (only) as long as the plantation exists or continues;
Because,
(a) S. 2(44) defines ‘plantation’ as land used principally for the cultivation of a specific ‘plantation crop‘ like tea, coffee, cocoa, rubber etc.
(b) 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.
3. Effect of CONVERTION TO ANY OTHER CLASS
Sec. 87 Exp. II provides – If CONVERTED TO ANY OTHER CLASS and the person (who gets the property) owns excess of ceiling area – the excess shall be deemed to be land acquired (and fall under Sec. 87) .
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.”
Sec. 87(1A) provides – Person referred to above (transferee) also should file statement (Return).
Title to the property is not decided by the TLB (Harikumar v. State of Kerala, 2013 (2) KLT 44 (Para 9) Jagadeesachandran Nair v. Mamomohanan Pandarathil, 2013 (4) KLT 584 (para 11); Both decisions were referred to in Harrisons Malayalam Limited v. State of Kerala, Represented By The Chief Secretary, 2018-2 KHC 719; 2018-2 KLT 369 (para 54).
4. 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.
5. 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.”
6. 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)
7. 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.”
8. 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.”
9. 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 transfer1.03 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.”
9. Compensation to the Owner who Surrunders land within Ceiling limit
Sec. 88, KLR Act determines the compensation to the owners who surrunders land. It provides only nominal compensation (Maximum compensation is only Rs. 2 lakhs). No right remains with (erstwhile owner) thereafter. Sec. 88 reads as under:
“88. Persons surrendering land entitled to compensation.
(1) Where ownership or possession or both of any land is vested in the Government under Section 86 or Section 87, such person shall be entitled to compensation. Where the rights of an intermediary are extinguished, such intermediary shall also be entitled to compensation.
(1A) Notwithstanding anything contained in Sub-section (1), no person shall be entitled to any compensation in respect of any land owned by the Government of Kerala and held by him under lease or otherwise.
(2) The compensation payable to an owner for the vesting in the Government of ownership and possession of land shall be an amount calculated at the rates specified in Schedule IV.
(3) The compensation payable to the landowner, intermediary or cultivating tenant for the vesting in the Government or extinguishment of his rights shall be the portion of an amount calculated at the rates specified in Schedule IV that will fall to his share if such amount were apportioned among the landowner, cultivating tenant and intermediary, if any, in respect of the land according to the following provisions:
.(i) ninety percent of the portion of the compensation for the site of any homestead or hut in the occupation of a kudikidappukaran shall be deducted from the total amount of compensation;
(ii) the balance remaining after deducting the amount referred to in clause (1) shall be apportioned among the landowner, the intermediaries and the cultivating tenant in proportion to the profits derivable by them from the land immediately before the surrender, assumption or vesting in the Government, as the case maybe.
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 immediately before the 1st day of January, 1970, from the tenant holding immediately under aim;
(ii) in the case of an intermediary, the difference between the rent which he was entitled to get immediately before the 1st day of January, 1970, from his tenant and the rent for which he was liable to his landlord immediately before that day; and
(iii) in the case of a cultivating Tenant, the difference between the net income and the rent which he was liable to pay immediately before the said day.
(3A) Notwithstanding anything contained in Sub-sections (2) and (3), where the compensation due under those Sub-sections to an adult unmarried person, family or any other person (other than a joint family), as owner, landowner, intermediary or cultivating tenant or in any two or more of such capacities exceeds one lakh rupees, the compensation payable shall be limited to the amount specified in the Table below:
TableScales of compensation
Total Amount of compensation Rate
On the first Rs. 1 lakh 100 per cent
On the next Rs. 50,000 30 per cent
On the balance amount 23 per cent:
Provided that the compensation payable shall in no case exceed: Rs. 2 lakhs.
(4) Where the rights of a mortgagee in possession are vested in the Government –
.(i) Where the ownership of the land mortgaged [has vested in the Government the mortgagee shall be treated as a holder of an encumbrance in respect of the land, and the encumbrance shall be discharged as provided in Sections 91 and 92;
.(ii) in other cases, the Government shall pay to the mortgagee the amount to which he would have been entitled under clause (i) if the ownership of the land mortgaged (Iliad vested in) the Government, and hold the land as mortgagee with possession with all the rights and liabilities of the mortgagee.
(5) For the removal of doubts, it is hereby declared that the compensation payable under this Section in respect of a land shall be deemed to include the compensation for growing crops and improvements, if any, thereon and that no person shall be entitled to any amount other than the compensation payable under this Section for The vesting in the Government or extinguishment of his rights (including his rights in respect of growing corps and improvements if any) in respect of the land.
Finale on Acquisition of Plantation Lands Owned ByPrivate Persons When plantation-land is acquired, there will be stark difference, between land within ceiling limit and that beyond ceiling limit. The compensation as regards plantations above ceiling limit is not made mention of in the KLR Act. Article 31A of the Constitution of India does not ensure compensation above ceiling limit.
PART II
“ACQUISITION” OF PLANTATION-LEASE-LANDSOWNED BYGOVT.
1. Sec. 81 exemptions do not apply to Government lands; But, Exemptions apply to (Government) lease-lands
Government-lease-lands are also exempted under Sec. 81(1)(a).
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“.
This proviso is introduced in 1971. By virtue of this amendment (introducing Section 81(1)(a) Proviso) “Plantation-Exemption” takes effect on Government-lease-land (with tenants).
2. However, 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.
Section 81(1)(a) 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 leasewhether current or time expired or otherwise.”
3. The word “otherwise” must beunderstood 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 beunderstood as a permissive occupationotherwise 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.”
4. Govt. Lands – No Fixity of Tenure, as Exempted u/s 3(1)(x)
Government lands are covered by the exemption u/s 3(1)(x) of the Land Reforms Act and therefore he cannot claim any fixity of tenure. It applies to lands shown in the settlement register and land register as the property as Temple puramboke.
5. From the above, it is clear – by virtye of Sec. 81 exemption, though there is no ‘fixity of tenure’, there is “legal protection” to the tenants, to hold the land (so long as there is plantation crop) – without being affected by the ceiling (limit) in Chapter III.
Note: The net result is that such tenants are bound by the terms of the lease deeds.
Finale on Acquisition of Plantation-Lease-Lands Owned By the Govt. There is no question of awarding land value to the tenants of Government lands. No compensation is ensured to such tenants under any provision of the KLR Act. [Note:Under Sec. 112 (5A) of the KLR Act, the cultivating tenants are entitled to compensation for improvements (only) for the land vested in the Government under Sec. 72. Sec. 112 (5A)(a) says that the compensation for any building or other improvementsbelonging to the landownershall be awarded to the Government; and clause (b) says that the balance remaining after deducting the compensation referred to in clause (a) and the value of the land occupied by the homestead or hut, if any, shall be apportioned between the cultivating tenant and the Government in proportion to the profits derivable by them from the land.
PART III
ACQUISITION OF PLANTATION-LEASE-LANDS (Formerly)OWNED BYPRIVATE LAND OWNERS
Sec. 13 says every tenant has fixity.
But, no Purchase certificate can be obtained beyond ceiling limit (under Sec. 72B or 72C). (Note: No rider to Sec. 72B and 72C, by way of proviso or otherwise, exempting plantation.)
However, the holdings held by cultivating tenants will vest in Govt., under Section 72(1).
Note: Sec. 72 provides for automatic vesting of leasehold properties (held by ‘cultivating tenants’) in Govt. ILR 2010(2) Ker. 845.
4. 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. (Obviously it applies to tenancy-land alone.)
Second, Sec. 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.
5. 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”
6. 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 –
Declared to be ‘vested’ in Government (Sec. 72).
Such a tenant is liable to pay ‘rent’ to the Government (Sec. 72E) for the unassigned land (e.g. exempted plantation land).
3. ‘Exemption’ in Chapter III Cannot be read into Sec. 72B(2)
The provision of law for giving Purchase-Certificate under Sec. 72B specifies that the provisions of Sec. 82 (as to ceiling limit) shall apply for the calculation of the ceiling area (alone).
Sec. 72B(2) 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), which excludes plantation lands from the ceiling limit, cannot be brought-forth or read-into Sec. 72B (provision for assignment of purchase-certificate) in Chapter II.
In other words, purchase-certificates cannot be given for land above ceiling-limit, rigging the exemption provisions (for plantations etc.).
Because,
Sec. 72B(1), in Chapter II shows – Sec. 72B(1) is an independent provision (though the Proviso says – no cultivating tenant shall be entitled to assignment of the right, title and interest … (more than) … the ceiling area, mentioned in Sec. 82 in Chapter III)
When a provision in a latter Chapter of an Act (here, Sec. 82 that deals with extent of ceiling limit, in Chapter III) is referred to in an independent provision in an earlier Chapter (here, Sec. 72B, as regards issuing purchase certificate, in Chapter II), for a specific purpose (here, to state the limit in areaalone), it cannot be said – the attributed colour or smell of the provision in the latter chapter (by virtue of other provisions, i.e., entire characteristics or attributions added to Sec. 82 by virtue of other provisions in Chapter III), would stand reflected on the earlier provision (here, Sec. 72B).
Further – Sec. 72E provides for ‘rent’ to Government
Chapter II of the KLR Act (dealing with ‘Tenancy’) is exclusive and exhaustive as to ‘fixity’, and ‘vesting’ of land in Government.
It is not stated anywhere in the Act – the right and title of the (leased-plantation) land legitimately vested in Government under Sec. 72, will be divested in any manner (in favour of the previous owner, or of the tenant or anybody else), in any circumstance.
Sec. 72E provides for collection of ‘rent‘ from the holders of the plantation, for the unassigned land (e.g. exempted plantation land) and Sec. 72F(5)(h) authorises the Land Tribunal to fix the rent. (It goes without saying that it is for the reason that the ownership of the land vests in Govt.)
Note: Proceedings initiated by Taluk Land Board under Chapter III (in respect of plantation) do not confer title.
Title to the property is not decided by the TLB (Harikumar v. State of Kerala, 2013 (2) KLT 44 (Para 9) Jagadeesachandran Nair v. Mamomohanan Pandarathil, 2013 (4) KLT 584 (para 11); Both decisions were referred to in Harrisons Malayalam Limited v. State of Kerala, Represented By The Chief Secretary, 2018-2 KHC 719; 2018-2 KLT 369 (para 54).
4. 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.
7. Rights of ‘tenants’ of Plantations (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.
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.
8. 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).
9. 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.
10. Sec. 112 of the KLR Act – Apportionment’s of land value in cases of Acquisition
Sec. 112 (5A) of the KLR Act reads-
“112. …..
(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.”
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.
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 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.
11. Though the tenant has fixity, he is not the owner of such land. Because, such lands vest in Govt. under Sec. 72.
If tenant had raised plantation on bare land leased –
Such plantations 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.
Though the tenant has fixity, he is not the owner of such land. Because, such lands vest in Govt. under Sec. 72. (Purchase certificate cannot be obtained for the extent below ceiling limit.)
12. Proviso to Article 31A(1) of the Constitution of India
The provisions of the KLR Act as regards ‘vesting’, ‘excess land’ etc. are legislated predicating upon Proviso to Article 31A(1) of the Constitution which states that the State need not pay compensation to the former land owners (when land is acquired) above the ‘ceiling limit‘
It goes without saying – If no compensation is payable to the land-owners above the ceiling limit, it cannot be given to tenants.
Proviso to Article 31A(1) of the Constitution of India 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 limitapplicable 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.”.
Finale on Acquisition of Plantation-Lease-Lands Owned ByPrivate Land Owners There is no question of awarding land value to the landowners and/or tenants of private landowners. Under Sec. 72 under Sec. 112 (5A) of the KLR Act, the cultivating tenants are entitled to compensation for improvements (only) for the land vested in the Government. 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.
KLR Act Overrides Land Acquisition Act
Sec. 127 of the KLR Act declares – it override other Laws. It reads as under:
“127. Act to override other laws, etc.- The provisions of this Act shall have effect notwithstanding anything in any other taw or any custom or usage or in any contract, express or implied, inconsistent with the provisions of this Act.”
Can a Tenant of Plantation Transfer his Rights, Fragmenting the Plantation
Possession is a heritable and transferable right. [See: Nallammal v. 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’ (as Provided in Sec. 87 Expl. II) 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.
11. In Secretary, TDB v. Mohanan Nair (T.R. Ramachandran Nair & A.V. Ramakrishna Pillai, JJ.), ILR 2013-2 Ker 883; 2013-3 KLT 132, an important decision on Kerala Land Reforms Act, it is found that Purchase Certificate issued by Land Tribunal, for land belonging to Government Devaswom (exempted category under S.3(1)(x) of the Act), will be in total violation of Rules, and will be a nullity.
END NOTES
1.Cultivating Tenant & Vesting of land in Government
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”.
It provides (automatic) vesting of leasehold properties in Govt. Conditions thereof are:
(i) the land must be held by cultivating tenants;
(ii) they should be entitled to fixity of tenure under Sec. 13.
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.”
2. For Exemption Tenant must have Approached LT
For getting the Exemption under Chapter III, the tenant must have approached the Land Tribunal for getting the tenancy ‘declared’.
Sec. 85(3) and (3A) of the KLR Act read as under:
(3). Where, after the final settlement of claims for resumption of lands held by a person as tenant, such person holds land in excess of the ceiling area, or where after the purchase of the right, title and interest of the landowner** and the intermediary by the cultivating tenant in respect of lands owned by a person, such person owns land in excess of the ceiling area, such excess land shall be surrendered as hereinafter provided.
(3A). The person bound to file a statement under Sub-section (2) shall, within a period of three months from the date of final settlement or purchase, file a statement before the Land Board, and the provisions of the said Sub-section shall, as far as may he, apply in regard to the particulars to be contained in such statement, the calculation of the excess land and for the procedure for the surrender of the same.] [Substituted by Act No. 35 of 1969.
** See Notes below. As per Sec. 85(3) it is a mandatory requirement to approach the Land Tribunal for getting the Purchase Certificate.
Why the Words “After The Purchase of the Right, Title And Interest of the Landowner” Included?
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.
Title to the property is not decided by the TLB (Harikumar v. State of Kerala, 2013 (2) KLT 44 (Para 9) Jagadeesachandran Nair v. Mamomohanan Pandarathil, 2013 (4) KLT 584 (para 11); Both decisions were referred to in Harrisons Malayalam Limited v. State of Kerala, Represented By The Chief Secretary, 2018-2 KHC 719; 2018-2 KLT 369 (para 54).
3. 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 reads as under:
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] [Inserted by Act 35 of 1969.]
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.] [Inserted by Act 17 of 1972.]
[Explanation I. [Numbered as Explanation I by Act 35 of 1969.] – “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. [Inserted by Act 35 of 1969.] – 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. [Inserted by Act 25 of 1971.] – 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 estate [Inserted by Act No. 6 of 2012.]
Explanation. – For the purpose of this clause “cashew estate” shall mean dry land principally cultivated with not less than 150 cashew trees per hectare.]
(g)[***] [Omitted by Act 35 of 1969.]
(h) lands mortgaged to the Government, or to a co-operative society (including a co-operative land mortgage bank) registered or deemed to be registered under the Co-operative Societies Act for the time being in force, or to the Kerala Financial Corporation, or to the Kerala Industrial Development Corporation or to the State Small Industries Corporation, as security for any loan advanced by the Government or by such Society or Corporation, so long as the mortgage subsists:
Provided that the exemption under this clause shall cease to apply at the end of three years from the commencement of this Act;
(i)lands purchased by the Kerala Co-operative Central Land Mortgage Bank or a Primary Mortgage Bank under Sec Lion 18 of the Kerala State Co-operative Land Mortgage Banks Act, 1960, or by the Kerala State Co-operative Bank Ltd., or by a primary agricultural credit co- operative society or by a scheduled bank as defined in the Reserve Bank of India Act, 1934 so long as such lands continue in the possession of the bank;
(j)lands purchased by the Kerala Financial Corporation or lands the management of which has been taken over by that Corporation, under Section 32 of the State Financial Corporations Act, 1951, so long as such lands remain in the ownership, or continue under the management, as the case may be, of the said Corporation:
[Provided that the exemption under this clause shall not apply in the case of lands the management of which has been taken over by the Corporation on or after the 1st day of April, 1964;] [Added by Act No. 35 of 1969.]
(k)lands belonging to or held by an industrial or commercial undertaking at the commencement of this Act, and set apart for use for the industrial or commercial purpose of the undertaking:
Provided that the exemption under this clause shall cease to apply if such land is not actually used for the purpose for which it has been set apart, within such time as the District Collector may, by notice to the undertaking, specify in that behalf;
(l)[***] [Omitted by Act No. 35 of 1969.]
(m)[ house sites, that is to say, sites occupied by dwelling houses and lands, wells, tanks and other structures necessary for the convenient enjoyment of the dwelling houses.] [Substituted by Act No. 17 of 1972.]
Explanation. – For the avoidance of doubt, it is hereby declared that a compound wall shall not he deemed to he a structure necessary for the convenient enjoyment of a dwelling house, if the land on which the dwelling house is situated and enclosed by the compound waif is more than the (and necessary (or the convenient enjoyment of the dwelling house.
(n)[***] [Omitted by Act No. 35 of 1969.]
(o)sites of temples, churches, mosques and cemeteries and burial and burning grounds:
(p)sites of buildings including warehouses;
(q)commercial sites;
(r)land occupied by educational institutions including land necessary for the convenient use of the institutions and playgrounds attached to such institutions;
(s)lands vested in the Bhoodan Yagna Committee;
(t)lands owned or held by -(i)a University established by law; or(i)the entire income of such lands is appropriated for the University, institution or trust concerned; and(ii)where the University, institution or trust comes to hold the said lands after the commencement of this Act, the Government have certified previously that such lands are bona fide required for the purposes of the University, institution or trust, as the case may be; and(u)lands granted to defence personnel for gallantry.(ii)a religious, charitable or educational institution of a public nature; or(iii)a public trust which expression shall include a wakf;
Provided that-
(2)[***] [Omitted by Act No. 35 of 1969.]
(3)[ The Government may if they are satisfied that it is necessary to do so in the public interest -(a)on account of any special use to which any land is put; or (b)on account of any land being bonafide required for the purpose of conversion into plantation or for the extension or preservation of an existing plantation or for any commercial, industrial, educational or charitable purpose, by notification in the Gazette, exempt such land from the provisions of this Chapter, subject to such restrictions and conditions as they may deem fit to impose:
Provided that the land referred to in clause (b) shall be used for the purpose for which it is intended within such time as the Government may specify in that behalf; and, where the land is not so used within the time specified, the exemption shall cease to he in force.] [Substituted by Act No. 35 of 1969.]
(4)[ Notwithstanding anything contained in this Act or in any other law for the time being in force of in any contract or other documents or in any judgement, decree or order of any Court or Tribunal or Taluk Land Board or Land Board or other authority, a person holding plantation and lands ancillary thereto or interspersed within such* plantation, [may, subject to such restrictions and conditions as may be prescribed, use] [Inserted by Act No. 6 of 2012.] not exceeding five per cent of the extent of such holding for floriculture or for the cultivation of Vanila or medicinal plants or other [agricultural crops or for conducting dairy farms] [Substituted ‘agricultural crops’ by Act No. 6 of 2015.] or for establishing hotels or resorts or other tourism projects and for purposes ancillary or connected therewith.]
4. Section 82 & 83:Ceiling area
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”.
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.
S. 82 & 83 deal with ceiling area and bars holding land excess of ceiling fixed.
5.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.]
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.
6. 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 improvementsshall 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 land owner 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 improvementsbelonging 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.*fn*
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.”
Foot Note:
*fn* 1. “Value of the land occupied by the homestead or hut” says as to the actual area where the ‘homestead or hut’ is situated; whatever may be the area of land outside it.
2. This provision is applied to lease-lands vested in Govt. under Sec. 72 and no purchase certificate is given (to the tenant).
No Land value to be given for the “excess” land (Beyond Ceiling Limit)
From Sect. 112, it is beyond doubt that no Land value to be given for the entire land and it is limited to a portion.
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).
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: ….. ….
(2) The provisions of Section 82 shall, so far as may be, applyto the calculation of the ceiling area for the purposes of the proviso to Sub-section (1);
(3) (4) (5)
Is Purchase Certificate (inaccurate on its face, or fraud, for excess of the ceiling area) Conclusive Proof?
No.
Our Apex Court considered this matter in Chettian Veetil Ammad v. Taluk Land Board, AIR1979 SC 1573; 1980 1 SCC 499 (P.N. Shinghal & O. Chinnappa Reddy, JJ.) where Purchase Certificate was issued, excess of the ceiling area, as under:
“27. It would thus appear that even though the certificate of purchase issued under sub-section (1) of Section 72-K is conclusive proof of the assignment of the right, title and interest of the landowner in favour of the holder in respect of the holding concerned under sub-section (2), that only means that no contrary evidence shall be effective to displace it, unless the so called conclusive proof is inaccurate on its face, or fraud can be shown (Halsburys – Laws of England, fourth edition, Vol. 17, page 22 paragraph 28), It may be stated that “inaccuracy on the face” of the certificate is not as wide in its connotation as an “error apparent on the face of the record.” It will not therefore be permissible for the Board to disregard the evidentiary value of the certificate of purchase merely on the ground that it has not been issued on a proper appreciation or consideration of the evidence on record, or that the. Tribunals finding suffers from any procedural error. What sub-section (2) of Section 72-K provides is an irrebuttable presumption of law, and it may will be regarded as a rule of substantive law. But even so, for reasons already stated, it does not thereby take away the jurisdiction of the Taluk Land Board to make an order under Section 85 (5) after taking into consideration the “conclusive” evidentiary value of the certificate of purchase according to Section 72-K (2) as far as it goes.”
It is also noteworthy (as stated above) that a purchase certificate shall not bind one, who was not party to the proceedings before the Land Tribunal, having better title over the property covered by the purchase certificate (Thayukutty v. Manikandan, the Kerala High Court (2023).
Extent of Land that for which a Purchase Certificate can be issued by LT
If a cultivating tenant (of a plantation land) possessed land at or above the ceiling limit, no purchase certificate can be issued to him, from the plantation property in question.
If a tenant holds some land, he will receive a Purchase Certificate for the extent – equal to the Ceiling Limit minus the land he already possesses.
If such a tenant holds land at or above the ceiling limit (and, for that reason, no purchase certificate can be given with respect to the plantation property), proceedings are to be promulgated, or an order is to be issued, by the Land Tribunal to that effect, if it finds that he is a cultivating tenant of that plantation. This proceedings also has to be presented with the lease-agreement and other documents, before the Taluk Land Board, for getting the order of exemption.
Glen Leven Estate (P) Ltd. v. State of Kerala, 2022-6 Ker LT 439
In Glen Leven Estate (P) Ltd. v. State of Kerala, 2022-6 Ker LT 439, the question as to ‘rival claims raised by the cultivating tenant and landlord for compensation on acquisition’ arose. The land was leased out by landlords. The lease-rights came in the cultivating tenants by transfer. The Government contended that the tenant was a cultivating tenant and the land vested upon the Govt. under Sec. 72 KLR Act. Hence tenant alone would be entitled to get compensation for the improvements to be determined under the Kerala Compensation for Tenants Improvements Act, 1958, in view of Section 20(1) of the KLR Act.
The landlords argued that the land was a plantation (over 30 acres) when it was (originally) leased, and therefore, they are entitled to claim exemption and benefits in the light of the exemption under clause (viii) of Section 3 (1) of the KLR Act. Since there would be no fixity of tenure, it being a plantation, there would not be vesting of rights of the land owner in the Government. Hence, there should be the apportionment of the compensation between the lessor and the lessee and it should be decided in the acquisition proceedings.
The single Judge dismissed the writ petition, ‘leaving open the liberty of the lessee as well as the landlords, to approach the civil court seeking relief against the Government, and also to resolve the inter se dispute by and between the tenant and the landlords’.
The Division Bench, in appeal held that ‘land acquisition’ proceedings are to be initiated. It is pointed out that (even if it is a land vested in Govt.) there is no provision in Sec. 72 for ‘resuming’ if and when Govt. need it. The court also observed as under –
“31. On an analysis of the provisions of Section 72(1) of the Act, 1963, it is clear that when the Government notified the said provision with effect from 01.01.1970, all right, title and interest of the landowners and intermediaries in respect of holdings held by cultivating tenants (including holders of kudiyirippus and holders karaimas) entitled to fixity of tenure under Section 13, and in respect of which certificates of purchase under sub-Section (2) of Section 59 have not been issued, vested in the Government.
32. Therefore, it is clear from Section 72 that what is vested with the Government is the right, title and interest of the land owners and intermediaries in respect of the holdings held by the cultivating tenants. It is nothing but a legal fiction by which the interest held by a cultivating tenant in a property of a landlord or intermediary is protected from 01.01.1970 .
34. On a conjoint reading of Sections 72 and 72A, it can be seen that vesting of rights in the Government contained under Section 72 is the rights held by the landlord and the intermediary in respect of holdings held by the cultivating tenants. However, the same will not, in any manner, interfere with the rights enjoyed by a cultivating tenant in contemplation of the provisions of the Act, 1963.”
42. Therefore, we have no doubt in our mind to hold that Section 72 of Act, 1963 would only deal with the right, title and interest of the land owners and intermediaries in respect of the holdings held by the cultivating tenants free from encumbrances created by the land owners and intermediaries. However, the legal provisions discussed above would make it clear that insofar as the cultivating tenant is concerned, an absolute right is vested with him to seek assignment subject to the payment of purchase price in contemplation of Section 72D of the Act, 1963.
While considering the right of landlord, it is pointed out (basing on the principle, or scheme of the KLR Act**) that the landlord may have right for compensation under Section 72BB. The Division Bench said-
“36. So also, sub-Section (1) of Section 72BB dealing with ‘the right of landlord to apply for assignment and compensation’ specifies that any landowner or intermediary, whose right, title and interest in respect of any holding have vested in the Government, may apply to the Land Tribunal for the assignment of such right, title and interest to the cultivating tenant and for the payment of the compensation due to him under Section 72A.”
**Note: 1. If plantation-lease-(leasing a land when plantation existed)-above-30-acre-
Sec. 72, 72 BB etc. will not apply (such land being excluded from Chapter II, under Sec. 3(1)(viii), KLR Act).
2. In case of a plantation-lease-above-30-Acre-
on termination of the lease period, the land lord can resume the land, on the basis of his title; for, the tenant will not have fixity in such case, the land being exempted from the benefits of Chapter II (as per Sec. 3(1)(viii) of the KLR Act).
3. The landlords of such plantation will get the benefits (under Sec. 81) and protection from ceiling limit that is stipulated under the provisions of Sec. 82, 83 etc. (that is, there will be no ceiling limit).
4. In such a case, the right of landlord may be on a higher level or footing than the tenant (to get compensation).
5. It cannot be compared with a plantation that is put up by the tenant. The tenants of such plantation will-
get fixity under Sec. 13 (though they will not get Purchase Certificate),
get the benefits and protection (under Sec. 81) from ceiling limit that is stipulated under the provisions of Sec. 82, 83 etc. (that is, there will be no ceiling limit).
In such a case, the right for compensation, if any, of the landlord will be nil or negligible.
The Division Bench, inter alia, on the above observations directed ‘the State and its officials to take proceedings for the acquisition of the land’.
Criticism on Glen Leven Estate (P) Ltd. v. State of Kerala, 2022-6 Ker LT 439
The Division Bench failed to consider–
The right, title and interest of the land (above ceiling limit) ‘vest’ with the Government under Sec. 72. It is absolute. It is not a ‘fiction‘; but, it is real and actual (as seen from Sec. 72E and Sec. 112(5A).
The nature of this statutory ‘vesting in Govt’ (under Sec. 72) is further clear from – Sec. 72E (tenant has to pay rent (for the unassigned land (e.g. exempted plantation land)).
Sec. 112(5A) deals with unassaigned land (that is, no purchase certificate is given). Under this sub section land-value need not be given to the land-owner or the tenant over and above the “value of the land occupied by the homestead or hut” – that is, the actual area where the ‘homestead or hut’ is situated; whatever may be the area of land outside it.
This provision is applied to lease-lands vested in Govt. under Sec. 72 and no purchase certificate is given (to the tenant)., in case of acquisition).
Sec. 72B(2) KLR Act spells-out that a cultivating tenant will get Purchase Certificate for the extent below the ‘ceiling limit’ alone. That is, the tenant has no “absolute rights” above the ceiling limit.
Plantation-lands, usually, involve Hundreds or Thousands of Acres of “excess” land. The assignment-possible-land (within ceiling limit) may be miniscule (7.5 acres or 15 acres). Therefore, the analogy drawn by the Bench (tenant has a right seek assignment) is not apt at all.
When land vested in Govt. under Sec. 72 is acquired, in the light of Sec. 112(5A) land-value need not be given to the land-owner or the tenant, over and above the “value of the land occupied by the homestead or hut” – that is, the actual area where the ‘homestead or hut’ is situated; whatever may be the area of land outside it.
The aforesaid provision of law in the KLR Act is legislated following Proviso to Article 31A(1) of the Constitution which says that the State need not pay compensation to the land owners (when land is acquired) above the ‘ceiling limit‘.
The rights of ‘tenants’ of Plantations, to continue in the land till the plantation exists, after vesting the land with Govt., is a ‘Legal Right conferred by Statute’. It is not Tenancy – for no landlord-tenant relation with the Govt. It is not a Grant or Licence/Permission – for such rights arise from a contract (express or implied). Therefore, it can be termed only as a “Legal Rightconferred by Statute“, the KLR Act.
It goes without saying – If no compensation is payable to the land-owners above the ceiling limit, it need not be given to tenants.
It is most unjustifiable to confer undue rights or benefits to the plantation-tenants (majority are BIG Companies) which had not been given to Maharaja of Travancore (whose 191 acres of lands in Thiruvananthapuram – above the ceiling limit, 15 acres – in the City was ‘mercilessly’ taken under the Orders of the Land Board Trivandrum, No. LB(B)2-18919/70, dated 15.01.1972). It is a sheer fact that lands of thousands of middleclass property owners was also harshly taken by under the provisions of the Act. (Note: Only limited right to continue the specified plantation-crop alone is given by the ‘exemption’; and, according to law, in case the land is ‘converted’, the exemption-benefit would be lost.)
No Land value to be given for the “excess” land (Beyond Ceiling Limit)
As stated above, 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 (for previous leasehold land)
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.
End Notes – 1
Effect of Travancore Govt. Leases afterRoyal Pattom Proclamations of 1040and 1061
Now a question arises: What is the impact of ‘Government Land Leases’ (with strict conditions) after 1061 (1886)? Do such leased lands qualify as “estate” under Article 31A of the Constitution?
The legitimate answer is that the lands leased out after 1061 (1886) do not inherit the rights granted by the Pattom Proclamations of 1040 and 1061. If we look at it differently it would mean, or tantamount to say, that the Government cannot ‘lease’ lands after the Proclamations (for, by virtue of the Proclamations it would lose the lease-character at the moment it is made).
In Rev. Fr. Victor Fernandez v. Albert Fernandez (five Judge Bench), 1971 Ker LT 1, AIR 1971 Ker 168 (Per PT Raman Nayar, CJ, T Krishnamoorthy Iyer, P Unnikrishna Kurup, JJ.), concluded that the land covered by the Royal Proclamations of 1040 and 1061 were “estates” falling under Art. 31A of the Constitution. It was on the finding that the Proclamation “secured permanency of tenure”, and “proprietary interest” in the soil. It was observed as under:
“7. It is impossible to accept the contention advanced on behalf of the plaintiff in this case that,evenafter the Proclamation of 1040, the holders of these lands had no proprietary interest whatsoever in the soil and remained tenants in the strict sense of that term, with only the right of enjoyment, the only difference being that they secured permanency of tenure, the Government still remaining the full and absolute proprietor of the soil.”
Therefore, there is a clear difference between leases made before and after the Proclamations, and the rights conferred by the Proclamations do not apply to leases made after them.
End Notes – 2
CAN AN EXEMPTED PLANTATION LAND BE SOLD AS AN ABSOLUTE PRIVATE PROPERTY?
No.
Sec. 82 deals with ceiling area. Sec. 83 mandates surrender of excess land. Sec. 85 directs that excess land shall be surrendered to government (accepting the compensation fixed under Sec. 88).
But it is not made applicable to the plantations.
Sec. 87 mandates that the protection of plantation is available only so long as the plantation subsists.
Exemption does not Confer any vested Right or Ownership
If no plantation, plantation lands would also have been treated in the same way – as any other excess land that had been (forcibly) got surrendered by virtue of the KLR Act. The law has given only a sanction to the planters to continue because of the existence of the plantation. Therefore ‘exemption’ does not confer a vested right or ownership.
ACQUISITION OF PLANTATION-LANDSOWNED BYPRIVATE PERSONS
1. Proviso to Article 31A(1) of the Constitution of India
It is plain – No compensation is payable to the land-owners, for the lands ‘above the ceiling limit’, according to the Constitution of India. If any authority gives it, it will be sheer unscrupulous act.
The provisions of the KLR Act as regards ‘vesting’, ‘excess land’ etc. are legislated predicating upon Proviso to Article 31A(1) of the Constitution which states that the State need not pay compensation to the former land owners (when land is acquired) above the ‘ceiling limit‘.
Proviso to Article 31A(1) of the Constitution of India 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 limitapplicable 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.”.
2. Exemption of ‘Plantation’ Does Not Cover Exemption of ‘Plantation LAND’
It is for the following reasons –
1. The exemption is to the ‘plantation’, and not to the ‘LAND‘.
2. Exemption is conditional – for it exists (only) as long as the plantation exists or continues;
Because,
(a) S. 2(44) defines ‘plantation’ as land used principally for the cultivation of a specific ‘plantation crop‘ like tea, coffee, cocoa, rubber etc.
(b) 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.
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 Ha. 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.”
22
Landlord desiring to resume any land shall apply to the Land Tribunal.
31
Fair rent determined by Land Tribunal.
51B.
Landlord not to enter on land surrendered or abandoned by the tenant. Contravention is made punishable.
54(1) 55 57 57 (3) 57 (6) 61
54(1). A cultivating tenant (to purchase the right) has to apply Land Tribunal. 55. Purchase price is fixed by LT (on fair rent u/s. 31) to be paid u/s. 59 57. The LT after enquiries, pass orders determining purchase price. (3). The Land Tribunalallows the purchase of the land it determines. (6). The Land Tribunalforwards orders to the Land Board. 61. Tenant to pay rent (under orders of LT) pending proceedings.
59
When Sec. 54 application is allowed (by the LT), the purchase price (determined u/s. 57 by the LT) shall be deposited with the Land Tribunal to the credit of the Land Board and issue of certificate – to cultivating tenant.
72
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.
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.)
72D
The cultivating tenant has to pay the purchase price to the Government on the assignment to him of the right, title and interest of the landowner. (If the extent of land is one hectare or below, he shall not be liable to pay.)
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). Rule 5 of the Vesting & Assignment Rules provides – LT may suo moto – notwithstanding no application – assign to cultivating tenant. (See S. 72C also).
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 undertakings, etc. Proviso – There will be an exemption (as plantation, land given to educational institution, trust, etc.) on Government lands, given under grant, lease, etc. See: HMT (Machine Tools) Limited v. Taluk Land Board, 2009 (3) KLJ 110; MT Joseph v. State of Kerala, AIR 1974 Ker 28.
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 (having land in excess of the ceiling area) should furnish ceiling return to Land Board before March31, 1971, before the Land Board (including lands exempted under S. 81). Note: Effect of non-filing: See – Balanoor Plantations case – 2018(3) KLT 283.State of Kerala Vs. Varkey Mathew, AIR 1996 SC 1009. According to S. 3(1) (viii), “tenancies of plantations exceeding 30 acres” is exempted from Chapter II. Therefore, the landlord can recover such plantation lands after the period of tenancy. Such landlords also had to file a ceiling return within the time stipulated.
85(3)
Excess shall be surrendered. Note: Tenant must have approached the LT(with respect to each plantation, if he has more plantations)(He cannot declare himself a tenant) It is clear from the following provisions: 54(1) – A cultivating tenant has to apply to LT (or the purchase of right, title and interest.) 55 – Purchase price and fair rent fixed by LT 57 – LT after giving notice and enquiries, pass orders (on theapplication for the purchase of right, title and interest). 57(3) – LT allots the purchase land it determines. 57(6) – The Land Tribunalforwards a copy of orders to the Land Board. 61 – Cultivating tenant to pay rent (under orders of LT) 59 – The purchase price shall be deposited with the LT (to the credit of the Land Board) and issue of certificate – to cultivating tenant. It is the principle applied in the Balanoor case. Note: (i) The sub-section (3) itself says as to the settlement of claims for resumption and purchase of the right, title, and interest of the landowner by the cultivating tenant, (ii) LT is the only authority to determine tenancy (Land Board cannot determine it), and (iii) it is clear that even if it is a plantation-exemption-land (beyond ceiling limit), the tenant has to file petition under Section 54 – for fixing Purchase price and fair rent fixed by LT and for allotting the land under section 57(3) and for effecting the payments of ‘rent’ and ‘purchase price’(to the credit of the Land Board) under sec. 61 and 59.
85(3A)
The person bound to file a statement under sub-section (2) (that is, Owners and Tenants – having land in excess of the ceiling area) shall, within a period of three months from the date of final settlement or purchase, file a statement before the Land Board, and the provisions of the said Sub-section shall, as far as may he, apply in regard to the particulars to be contained in such statement, the calculation of the excess land and for the procedure for the surrender of the same.
85(5)
On receipt of the statement under Sub-section (2) or Sub-section (3A), the Land Board shall transfer the statement to such Taluk Land Board and such Taluk LandBoard shall determine the extent and identity of the land to be surrendered.
85(7)
Whereon a person fails to file statement under 85(2) or (3A), LB shall intimate that fact to TLB – TLB shall determine land to be surrendered. It is obvious – The LB can intimate TLB as to non-filing, on the basis of the records it obtained under Sec. 57(6) and 59. That is, those tenants who are not entitled to get a purchase certificate also has to file an application under Sec. 54(1) and 85(2) or (3A). Effect of non-filing: See – Balanur Plantations case (With respect to Sec. 72B application) – 2018(3) KLT 283. Statute prescribes liability on the person who owes or hold the land in excess of the ceiling limit to file statement: State of Kerala Vs. Varkey Mathew, AIR 1996 SC 1009. [TLB not to do, suo motu, without direction from LB. 1980 KLT 120, referred to in 2019(1) KLT 985.]
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)
A. K. Sreekumar v. Director, Vigilance And Anti Corruption Bureau (K Babu, J.), 12 Dec, 2024 (Ker) considered whether selling the ‘Government-seats’ to private students after receiving huge capitation amount, and its misappropriation, by the members of a charitable society, attract the Prevention of Corruption Act.
The court found –
the allegations fall under ‘public duty’ (as defined in Section 2(b) of the Prevention of Corruption Act, 1988) to attract Section 13 of the Act; and
prior approval under Section 17A of the P.C. Act is not necessary for the court to invoke its provisions.
Facts of the case:
The petitioner alleged a conspiracy among the members of a charitable society registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955, which runs a college.
The suspected persons, in furtherance of their common intention, denied admission to eligible students in the Pharmacy College in the Government seats and sold the said seats to private students after receiving a huge capitation amount and misappropriated the amount so obtained to their credit causing wrongful loss to the society and wrongful monetary gain to them.
It is in violation of Section 5 read with Section 15 of the Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-Exploitative Fee & Other Measures to Ensure Equity & Excellence in Professional Education) Act, 2006.
Section 13 of the Prevention of Corruption Act, 1988 and Sections 406 and 409 of the Indian Penal Code.
The Vigilance and Anti-corruption Bureau (VACB) refused to take action on the complaint.
Thereon, the petitioner filed a complaint under Sections 190 and 200 of the Code of Criminal Procedure before the Court of Enquiry Commissioner and Special Judge, Kottayam, and prayed for conducting an inquiry under Section 202 or for a direction to conduct investigation under Section 156(3) Cr.P.C.
The Special Judge posted the matter for report from the VACB.
The VACB took the stand – approval under Section 17A of the Prevention of Corruption Act, 1988 from the competent authority is required.
The petitioner thereafter filed an application seeking investigation under Section 156(3) Cr.P.C.
The Special Court dismissed the prayer and adjourned the matter, instructing the petitioner/complainant to produce Section 17A approval under the PC Act.
The Vigilance submitted an application seeking prior approval from the competent authority.
The Government, by Ext.P5 decision, took the stand that no vigilance enquiry was to be conducted. The reason showed was that the allegations had already been referred to the Admission Supervisory Committee for Medical Education.
The petitioner challenged the legality of the order passed by the Government (Ext.P5).
Relevant legal Provisions
Section 2(b) of the P.C. Act defines ‘public duty’ as follows:-
“public duty” means a duty in the discharge of which the State, the public or the community at large has an interest.”
Section 2(c) defines ‘public servant’.
(c) “public servant” means,-
(i) … (to) (vii) ….
(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty;……”
Section 17A of the PC Act provides –
no police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under the PC Act without prior approval from appropriate authority.
Legal Issues
Whether the allegations attract a ‘public duty’ and
Whether prior approval under Section 17A P.C. Act is necessary.
Findings of Court:
1. “ ‘Public duty’ as defined in Section 2(b) of the PC Act, means a duty in the discharge of which the State, the public or the community at large has an interest. Thus a ‘public servant’ must be under the positive command of a State law or valid executive direction to discharge such a ‘public duty’. If a body or a corporation exercises a State function under the obligation of the existing laws, it is to be treated as a discharge of ‘public duty’.”
Rulings relied on
Karthikeya Varma v. Union of India, 2015 KHC 567 (distinguished).
Central Bureau of Investigation, Bank Securities and Fraud Cell v. Ramesh Gelli and Others [(2016) 3 SCC 788],
P.V.Narasimha Rao v. State (CBI/SPE) [(1998) 4 SCC 626],
Manish Trivedi v. State of Rajasthan [(2014) 14 SCC 420]
Modern Dental College & Research Centre v. State of Madhya Pradesh [(2016) 7 SCC 353],
K.Veeraswami v. Union of India [(1991) 3 SCC 655],
State of Gujarat v. Mansukhbhai Kanjibhai Shah (AIR 2020 SC 2203),
Subramanian Swamy v. Manmohan Singh [(2012) 3 SCC 64],
2. The approval under Section 17A of the PC Actarises only when the offence is relatable to any recommendation made or it is a decision taken by such public servant in discharge of his official functions or duties. So, this Court is of the view that prior approval, as provided in Section 17A, is not applicable (for investigation) in the present facts.
Rulings relied on
Sankarabhat and Others v. State of Kerala (2021 (5) KHC 248) and
Venugopal V. and Others v. State of Kerala and Another (2021 KHC 565)
Result:
Ext. P5 order (no vigilance enquiry be conducted, for the allegations had already been referred to the Admission Supervisory Committee for Medical Education) is quashed.
Respondent Nos.1 and 2 are directed to conduct a preliminary enquiry into the matter.
The relevant provision in the Limitation Act, 1963, that fixes the limitation period for a suit for declaration of title is Art. 58. It stipulates 3 years “when the right to sue first accrues”. For recovery, the limitation period is 12 years, under Art. 65, “when the possession of the defendant becomes adverse to the plaintiff”.
The Supreme Court decision, Mallavva v. Kalsammanavara Kalamma, 2024 INSC 1021, 2024 SCC OnLine SC 3846, JB Pardiwala and R. Mahadevan, JJ., considered – what is the period of limitation for a suit in which (both) declaration of title and recovery are sought for.
It is held that Article 65 would be the relevant provision (and the period of limitation would be 12 years); and not Article 58 (which stipulates 3 years as the period of limitation).
Mallavva v. Kalsammanavara Kalamma, 2024 INSC 1021, Facts, in Brief
The suit was (originally filed) for declaration of title, and injunction. The trial held that the plaintiff was the absolute owner. But the suit was dismissed for it was found that the plaintiff was not in possession, and she failed to seek ‘possession’.
The legal heirs of the plaintiff who filed the 1st Appeal amended the plaint to include a prayer for possession, alternatively.
The First Appellate Court reversed the judgment, and decreed the suit, allowing the First Appeal. It observed –
(i) When the suit is for possession based on title, once the title is established, unless the defendant proves adverse possession, the plaintiff cannot be non suited; and
(ii) the defendants, nowhere pleaded that they were in possession of the suit property, adverse to the interest of the plaintiff.
The defendants filed 2nd appeal before the High Court. The High Court dismissed the appeal. It observed –
The plaintiff is the absolute owner of the suit property, entitled for possession.
The case is not covered under Article 58 of the Limitation Act (which requirs filing suit within 3 years of cause of action).
The defendants had no case – they were in adverse possession.
Article 65 of the Limitation Act has to be applied (under which the defendant should have claimed adverse possession, to nonsuit plaintiff) and consequently, the suit of the plaintiff cannot be held as barred by limitation.
In other words, when the suit is based on title, the question of limitation does not arise, unless the defendant has pleading on adverse possession.
In such circumstances (the High Court being upheld the decree in favour of the plaintiff), the defendants came before the Apex Court.
Part I
Adverse Possession
In the factual situation of the case, the defendant mainly founded its argument in the Apex Court on ‘adverse possession’. The Apex Court (Mallavva v. Kalsammanavara Kalamma, Dec. 20, 2024: 2024 INSC 1021) found –
(i) the plaintiff has established her title and
(ii) the case raised by the defendant on adverse possession was not one pleaded or established.
Following legal assertions were placed by the Apex Court (referring its earlier decisions).
1. Suit-On-Title – Plaintiff Cannot Be Non-Suited, Unless Adverse Possession
Indira v. Arumugam, (1998) 1 SCC 614: If title is established in a suit-on-title (for possession) – plaintiff cannot be non-suited unless defendant proves adverse possession.
2. Limitation Article Applicable is – that provided For “Further Relief” (to Declaration)
C. Mohammad Yunus v. Syed Unnissa, AIR 1961 SC 808: In a suit for declaration with a “further relief” (injunction), the limitation would be governed by the Article governing the suit for such further relief. The suit for a declaration for a right cannot be held to be barred so long as Right to property subsists.
3. Mere Possession For A Long Period – No Adverse Possession
Government of Kerala v. Joseph, AIR 2023 SC 3988: Mere possession for a long period does not grant right of adverse possession.
The Supreme Court quoted from Government of Kerala v. Joseph which asserted the following legal assertions (referring the following decisions) –
(i). Some Overt Act ForAdverse Possession
Gaya Prasad Dikshit v. Dr. Nirmal Chander, (1984) 2 SCC 286: There must be some overt act on the part of the licensee indicating assertion of hostile title.
(ii). Title And Adverse Possession – Contradictory pleas
Annasaheb Bapusaheb Patil v. Balwant (1995) 2 SCC 543: Independent title and adverse possession – will stand as contradictory pleas.
(iii). If Permissive Possession, Disclaim That Right
Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639: Possession under the agreement – to bring-home plea of adverse possession, the claimant thereof should disclaim his right and plead and prove independent hostile adverse possession.
Sri Uttam Chand v. Nathu Ram, AIR 2020 SC 461, has reiterated this principle.
(iv). By Limitation Act, 1963, Onus On Claimant of Adverse Possession
P.T. Munichikkanna Reddy v. Revamma (2007) 6 SCC 59: Adverse Possession – In terms of Articles 142 and 144 of the Limitation Act, 1908, theburden of proof was on the plaintiff to show within 12 years, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned: once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession.
Reiterated this principle in Janata Dal Party v. Indian National Congress (2014) 16 SCC 731
Before the Apex Court, the defendant put forwarded an argument on ‘Multiple Causes of Action’ and claimed that the limitation begins to run from the limitation-period for declaration (3 years); and not from the limitation provided for ‘possession’ (12 years), for the law directs that the limitation-period starts ‘When Right To Sue First Accrued’. The defendants relied on (i) Khatri Hotels Private Limited v. Union of India, (2011) 9 SCC 126 and Rajpal Singh v. Saroj, (2022) 15 SCC 260.
Note: The argument was not accepted by the Apex Court.
These decisions were distinguished on the ground that the reliefs in this case (Mallarme v. Kalsammanavara Kalamma, 2024 INSC 1021) was ‘declaration and possession’; and not two “substantial” reliefs (such that came for consideration in Rajpal Singh v. Saroj, (2022) 15 SCC 260 – cancellation and recovery).
1. Multiple Causes of Action: When the ‘Right to Sue First Accrued‘
The plaintiff in Khatri Hotels Private Limited v. Union of India, (2011) 9 SCC 126, had encroached upon the Govt. land meant for road. A suit was filed by one co-owner in1990 for Injunction. It was dismissed. Despite the status quo order in that case, and without the sanction of the municipal authority, large scale construction (restaurant) was raised by the plaintiff/appellant, another co-owner, over the said land. After 10 years, appellant filed another suit for injunction against alleged threat of demolition or dispossession. It was held that the second suit was clearly barred by limitation. Finally, a third suit for declaration of title, mandatory and permanent injunction was filed by the plaintiff. The trial court dismissed the suit for it was (i) barred for limitation and (ii) filed indirectly challenging the notification by which village Kishangarh was urbanized, without specifically challenging the same, as the entries made in the revenue record are only pursuant to the said notification.
The Apex Court, in Mallavva v. Kalsammanavara Kalamma, 2024 INSC 1021, apprised this decision and pointed out –
In Khatri Hotels Private Limited v. Union of India, (2011) 9 SCC 126, it was observed that the legislature had designedly made a departure from the language of Article 120 of the Limitation Act, 1908, while enacting Article 58 of the Limitation Act. The Court noted that the word “first” has been used between the words “sue” and “accrued”.
Therefore, if a suit is based on multiple causes of action, the period of limitation would begin to run from the date when the right of sue first accrued.
In other words, successive violation of the right would not give rise to fresh cause and the suit would be liable to be dismissed if it was beyond the period of limitation counted from the day when the right to sue first accrued.
2. When a composite suit for cancellation (of the sale deed) and recovery sought for, substantive reliefof cancellation holds the field– Rajpal Singh v. Saroj, (2022)
In Rajpal Singh v. Saroj, (2022) 15 SCC 260, it is held – when a composite suit is filed for cancellation of the sale deed as well as for recovery of the possession, the limitation-period has to be computed with respect to the substantive reliefof cancellation of the sale deed (three years from the date of the knowledge of the sale deed).
Two reliefs were prayed for in Rajpal Singh v. Saroj, (2022) 15 SCC 260 – one for cancellation of the Sale Deed; and the second, for recovery of possession. The Court treated the relief for possession as consequential prayer and the relief for cancellation of Sale Deed as the substantive prayer.
Rajpal Singh v. Saroj, (2022) 15 SCC 260, was distinguished in Mallavva v. Kalsammanavara Kalamma, 2024 INSC 1021, observing as under:
“38. The dictum as laid in Rajpal Singh (supra) cannot be made applicable to the facts and circumstances of the case on hand. The reason is simple. Ordinarily when, a suit is filed for cancellation of Sale Deed and recovery of possession, the same would suggest that the title of the plaintiff has already been lost.
By seeking to get the Sale Deed set aside on the grounds as may have been urged in the plaint, the plaintiff could be said to be trying to regain his title over the suit property and recover the possession. In such circumstances, the period of limitation would be three years and not twelve years.”
Conclusion
This decision (Mallavva v. Kalsammanavara Kalamma, 2024 INSC 1021, 2024 SCC OnLine SC 3846) definitely says – when a suit is filed for declaration (primary relief) and consequential relief (injunction or recovery),
the determinative factor as to the period of limitation will be the “substantive prayer” (i.e., injunction or recovery; and not that of primary relief of declaration).
In this case our Apex Court particularly considered what is the relevant Article that applies to a suit for ‘declaration and recovery’: and it is authoritatively held –
(if the plaintiff could establish title) the relevant Article would be Article 65 (that lays down limitation as to adverse possession) and not Art. 58 (that lays down limitation as to declaration).
Suit for RECOVERY, on title, Against a Trespasser # Plaintiff has to succeed on the strength of his title. # If plaintiff shows high degree of probability, onus shifts. # Once the onus is 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. # Even if the defendant claims title as owner and fails to prove it, the plaintiff can win only if he establishes his title. # If the defendant establishes his right to continue possession (honouring title of the plaintiff) as lessee, licencee, mortgagee etc., the plaintiff will fail.
Suit for EVICTION of Tenants # Suit for eviction is filed against tenants or other persons in permissive possession. A finding of existence of relationship of landlord and tenant is a sine qua non for passing a decree for eviction.
Suit for possessionunder Sec. 6 of the Sp. Relf. Act – # If a person is dispossessed ‘otherwise than in due course of law’, he can recover the property under Sec. 6 of the Sp. Relf. Act, on the strength of his earlier possession. # In such a suit, though title is not perfected by adverse possession, one (plaintiff) in possession can eject a trespasser under Sec. 6 of the Sp. Relf. Act.
Suit For Eviction On Jural Relationship of Landlord and Tenant
When Courts “convert” suit for eviction into one for recovery of possession on title
Whether the Courts can convert the suit for eviction of the tenant (based on the ground of the jural relationship of landlord and tenant) into one for recovery of possession (based on the title of the plaintiff) is considered in the following two decisions of the Supreme Court:
Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693
Tribhuvanshankar v. Amrutlal, (2014) 2 SCC 788.
The Apex Court remanded the first case, a civil suit, and allowed to amend the plaint so as to claim the plea of adverse possession, invoking Article 142 of the Constitution of India with a view to do complete justice to the parties. In the latter case the suit was dismissed for it was filed under a special enactment (Accommodation Control Act), and it could not have been permitted to seek ‘recovery’ by an amendment.
In Abdul Waheed Khan v. Bhawani, AIR 1966 SC 1718, it was pointed out that unless jurisdiction was excluded, the civil court has jurisdiction entertain a suit based title.
Biswanath Agarwalla v. Sabitri Bera – Landlord can win the TITLE SUIT if he Proves his GENERAL TITLE
In Champa Lal Sharma v. Smt. Sunita Maitra, (1990) 1 BLJR 268, it was held as under:
“It, therefore, logically follows that a finding of existence of relationship of landlord and tenant is a sine qua non for passing a decree for eviction against a tenantexcept in a case, as mentioned hereinbefore** the plaintiff on payment of ad valorem Court fee may obtain a decree for eviction on the basis of his general title. (Quoted in: Radha Devi v. Ajay Kumar Sinha, 1998-2 BLJR 1061; Biswanath Agarwala v. Sabitri Bera 2009-15 SCC 693)
**Tenant challenges title of landlord; and no special law (e.g., BRC Act) bars to give such a relief.
Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693, was a Civil Suit for eviction of defendant after issuing notice under Section 106 of the Transfer of Property Act.
Following were the facts:
The defendant-tenant entered the suit shop in 1970.
Plaintiffs purchased the suit premises in 1980.
The plaintiffs served a notice on the defendant under Sec. 106, TP Act.
Plaintiffs instituted Suit for eviction claiming to be the owners and landlords.
Defendant denied the jural relationship and said that he had ever been a tenant.
He claimed independent title. He claimed to have an agreement for sale with the (original) owner.
The trial Court had dismissed the suit on the finding that the plaintiff had failed to establish the jural relationship of landlord and tenant. Still, it found –
that the plaintiffs proved to be the owner; and
the defendant had failed to prove independent title.
The First Appellate Court, relying on AIR 1984 ROC 78 (All.), page 35, and AIR 1984 All. 66 allowed the appeal and decreed the suit holding –
the plaintiffs are entitled to a decree for possession on the basis of their general title.
In the second appeal, it was found by the High Court –
the defendant was a trespasser and as such upheld the decree of eviction.
Hence the appeal before the Apex Court (Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693). The Supreme Court formulated the legal question to be considered as under:
“Whether a Civil Court can pass a decree on the ground that the defendant is a trespasser in a simple suit for eviction is the question involved in this appeal.”
The Plaintiffs- respondents contended as under:
i. Even in a suit for eviction, the plaintiffs would be entitled to obtain a decree for possession relying on or on the basis of his title.
ii. In a suit for eviction, it is for the defendant to show that he has a right to remain on the tenanted premises either as a permanent tenant or otherwise.
The Supreme Court allowed the appeal of the defendant on the following grounds:
no issue as to whether the defendant was a trespasser or not,
non-valuation of the relief of recovery of possession based on title (and non-payment of ad-valorem Court-fee)
lack of opportunityto the defendant to take a plausible plea of acquisition of indefeasible title by adverse possession.
However, it is held by the Apex Court, inter alia, as under:
“The landlord in a given case** although may not be able to prove the relationship of landlord and tenant, but in the event he proves his GENERAL TITLE, may obtain a decree on the basis thereof.”
**Tenant challenges title of landlord; and no special law (e.g., BRC Act) bars to give such a relief.
Nevertheless, the Apex Court allowed –
“The plaintiffs may file an application for grant of leave to amend their plaint so as to enable them to pray for a decree for eviction of the defendant on the ground that he is a trespasser.”
“For the aforementioned purpose, he shall pay the requisite Court-fee in terms of the provisions of the Court Fees Act, 1870.”
“The appellant-defendant would in such an event, be entitled to file his additional written statement” (to raise the plea of adverse possession).
“The learned Trial Judge shall frame an appropriate issue and the parties would be entitled to adduce any other or further evidence on such issue.”
The Apex Court pointed out –
The directions were given in exercise of the jurisdiction under Article 142 of the Constitution of India with a view to do complete justice to the parties.
Note:
Article 142 had been invoked for there was (i) no issue as to whether the defendant was a trespasser or not, (ii) non-valuation of the relief of recovery of possession based on title and (iii) lack of opportunity to defendant to take a plausible plea adverse possession; and
it would not have been needed if the plaintiff had sought for relief of recovery(on title), alternatively.
This decision is referred to in TribhuvanShankar v. Amrutlal (S.B. Sinha and Deepak Misra, JJ.), 2014-2 SCC 788.
The right of the plaintiff (landlord) to recover, on the basis of “GENERAL TITLE” is asserted by the Supreme Court (Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693) referring following decisions.
1. Radha Devi v. Ajay Kumar Sinha, 1998 (2) BLJR 1061. The Patna High Court accepted that a landlord is entitled to obtain a decree of eviction on the basis of his GENERAL TITLE, though he could not prove the relationship of landlord and tenant (when the tenant raised false claim of title).
2. Champa Lal Sharma v. Smt. Sunita Maitra, S.B. Sinha, J., (1990) 1 BLJR 268. It was held:
“It is also well settled that one such relationship is admitted or established, tenant would be estopped and precluded from challenging the title of the landlord and if he does so, under the general rule, make himself liable for eviction on that ground.
It, therefore, logically follows that a finding of existence of relationship of landlord and tenant is a sine qua non for passing a decree for eviction against a tenant except in a case, as mentioned hereinbefore the plaintiff on payment of ad valorem Court fee may obtain a decree for eviction on the basis of his GENERAL TITLE.”
3. Hajee Golam Hossain Ostagar v. Sheik Abu Bakkar, AIR 1936 Cal. 351. It was held – in a suit for ejectment, if the defendant claims the right to remain on a land permanently, he was ‘bound to show‘ the right ‘wherefore the onus would be on him‘.
Payment of ad valorem court fee needed to obtain a decree on general title
In Anil Bansal v. Dinesh Kohli, ILR 2017-4 HP 524, it is held as under:
“22. It, therefore, logically follows that a finding of existence of relationship of landlord and tenant is a sine qua non for passing a decree for eviction against a tenant except in a case, as mentioned hereinbefore, the plaintiff on payment of ad valorem court fee may obtain a decree for eviction on the basis of his general title.”
Tribhuvanshankar v. Amrutlal, (2014) 2 SCC 788
It was a suit for eviction under the provisions of M.P. Accommodation Control Act.
The plaintiffs pleaded, in a nutshell, as under:
The defendant was a tenant under the earlier owner.
The rents were not paid by him.
The tenancy was terminated.
The defendant disputed the landlord and tenant relationship
The original owner sold the property without obtaining any sale consideration.
It was with the sole intention of obtaining possession by colluding with the plaintiff.
The trial Court dismissed the suit holding that –
The sale deed in favour of the plaintiff was without any consideration
The relationship of landlord and tenant between the parties was not established
The defendant had perfected title on adverse possession.
The first appellate Court held to the following effect –
The relationship of landlord and tenant was not established
The finding of the trial Court that the sale deed is not supported by consideration is neither justified nor correct
There was no clinching evidence to establish that the defendant had perfected his title by adverse possession.
In the second appeal, one of the substantial questions of law formulated was – whether a decree could be passed in favour of the plaintiff though such plaintiff fails to establish relationship of landlord and tenant?
The High Court had allowed the appeal and restored the decree and judgment of the trial Court. It was held –
Once the plaintiff had failed to establish the relationship of landlord and tenant which is a sine qua non in a suit for eviction, the plaintiff cannot be allowed tofall back on his title to seek eviction.
The Supreme Court distinguished Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693, pointing out that it was a Civil Suit and not one under Accommodation Control Act (or Rent Control Act). Dismissing the suit, the Apex Court held as under:
“On a seemly analysis of the principle stated in the aforesaid authorities,**it is quite vivid that there is a difference in exercise of jurisdiction when the civil court deals with a lis relating to eviction brought before it under the provisions of Transfer of Property Act and under any special enactment pertaining to eviction on specified grounds.”
**LIC v. India Automobiles & Co., (1990) 4 SCC 286, Dr. Ranbir Singh v. Asharfi Lal (1995) 6 SCC 580 and Rajendra Tiwary v. Basudeo Prasad (2002) 1 SCC 90.
Suit for ‘Recovery on Title’ (from Tenant): Failure to Prove Lease – Not Disentitle Relief
In Bandaru Venugopala Rao v. Allure Anasuya, 2024-2 And LT 605, followingBiswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693,it is held that in a suit for recovery on title, failure to prove lease would not disentitle relief to the plaintiff.
Following are the facts in Bandaru Venugopala Rao v. Allure Anasuya (supra).
Plaintiff claimed to be the title holder.
Plaintiff sent a lawyer’s notice to defendant terminating the lease.
In the reply defendant alleged title for himself.
Hence,the plaintiff sued for declaration of title and possession.
Defendant claimed that an agreement for sale was entered into by him with the prior owner and claimed rights under Sec. 53A TP Act.
Plaintiff failed to prove lease.
Still the suit on title claiming possession was decreed.
It was held that the failure to prove the lease, by itself, did not disentitle the plaintiff.
It is held as under:
“Even if plaintiff alleged that the possession of defendant No.1 is only as lessee and even if plaintiff failed to prove it that by itself does not disentitle a title holder from claiming possession. In Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693, the Hon’ble Supreme Court of India laid the law that in a case where the plaintiff sues for declaration of title and for recovery of possession alleging that the person in possession is a tenant, even if the plaintiff fails to prove such jural relationship of landlord and tenant he still is entitled for a decree for recovery of possession on proof of his GENERAL TITLE. Therefore, the contention of the appellant that on failure to prove the lease alleged by plaintiff, the suit ought to have been dismissed is a contention which lacks any legal basis. Therefore, point is answered against the appellant.”
Plaintiff in a suit against Tenant Failed to Prove Tenancy; Can he Win on Title
Plaintiff filed the suit, as landlord, for ejectment of a tenant. The plaintiff failed to establish the tenancy. Will he be entitled to a decree for possession on the basis of his title?
‘No’ was the argument for the defendant/appellant in Sri Venkateswara Oil Company, Tirupathi v. Guduru Jalaja Reddy, 2002-1 ALD 182; 2001-6 ALT 567. Following decisions were relied on.
Brahmanand v. Neki Puri, AIR 1965 SC 1506;
Bhagwari Prasad v. Chandramaul, AIR 1966 SC 735;
Sita Ram v. Radha Bai, AIR 1968 SC 534; and
Bibt Rehana Khatun V. Iqtidar Uddin Hasan, AIR 1943 All. 184
The argument was not accepted by the Andhra High Court pointing out that the parties, had known that title to the suit land was in dispute, and they adduced evidence in that regard. Following decisions were relied on by the Court –
Ponnia Pillai v. Pannai, AIR 1947 Mad. 282 (relying on Bala Mukund V. Dalu, 25 All. 498 (FB) and
Jagamohan Garnaik v. Sankar Samal, AIR 1990 Ori. 124.
Court is Entitled to Consider the Title set up by the Defendants also
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
But, 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 defenceor 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.”
Document ex-facie reveals no title – specific declaration as to invalidity not necessary
The Supreme Court held in Kizhakke Vattakandiyil Madhavan v. Thiyyurkunnath Meethal Janaki (Aniruddha Bose & Sudhanshu DhuliaJJ.), 2024 3 KerHC 169; 2024-2 KerLT 789; 2024-4 SCR 383, held as under:
“If a document seeking to convey immovable property ex-facie reveals that the conveyer does not have the title over the same,specific declaration that the document is invalid would not be necessary. The Court can examine the title in the event any party to the proceeding sets up this defence. Chiruthey could not convey any property over which she did not have any right or title. Her right, if any, would stem from the second deed of lease (Exhibit A-1). We are conscious of the fact that no claim was made before any forum for invalidating the deed dated 14th July 1910 (Exhibit A-20).”
By proving a deed, title of the executing person is not automatically confirmed
The Supreme Court held in Kizhakke Vattakandiyil Madhavan v. Thiyyurkunnath Meethal Janaki (Aniruddha Bose & Sudhanshu DhuliaJJ.), 2024 3 KerHC 169; 2024-2 KerLT 789; 2024-4 SCR 383, also held as under:
“18. ….But it would be trite to repeat that even if subsistence of a deed is provedin evidence, the title of the executing person (in this case Chiruthey) does not automatically stand confirmed.. ….. … But in absence of proper title over the subject property, that lease deed even if she was its sole lessor would not have had been legally valid or enforceable. If right, title or interest in certain property is sought conveyed by a person by an instrument who herself does not possess any such form of entitlement on the subject being conveyed, even with a subsisting deed of conveyance on such property, the grantee on her successors-in-interest will not have legal right to enforce the right the latter may have derived from such an instrument.”
Plaintiff has to Win Suit for Recovery, on Title, on the Strength of his Title
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 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 file 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 Title of Plaintiff is Nullity, Defendant Need Not file a Substantive Suit;
Plaintiff in ejection suit must succeed or fail on his title
If Plaintiff Shows Apparent Title, Defendant to Plead Defects Thereon
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 and Anr., [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 (vide 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).
Appellant Bajranglal had sufficiently pleaded in his written statement the defects in the title of the plaintiff and it was, therefore, open for the learned Single Judge to go into this question and decide if the plaintiff had good title or not. …… In our view, the finding of the learned Single Judge that the plaintiff’s title was invalid and non est for contravention of the provisions of Section 206 of the BMC Act and the Regulations made thereunder, is fully justified and brooked no interference in appeal. ……. In our view, the principle in Vidyadhar’s case clearly applies to the case on hand.”
Suit on Title – Both Parties Claim Title – Plaintiff Shows High Probability, 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 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 vs. Gurbaksh Singh, (2006) 5 SCC 558; City Municipal. Council, Bhalki Vs. Gurappa, (2016) 2 SCC 200)
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 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.”
Burden of Proof General Principlesand Nuances of Sections 101 to 106
Our Apex Court in Mohd. Abdullah Azam Khan Vs. Nawab Kazim Ali Khan, 2023 KLT OnLine 1084(SC), authoritatively lays down the General principles as to Burden of Proof. It reads:
12.1. The legal scheme governing various aspects of ‘burden of proof’ in the Indian context, is contained in Sections 101 to 106 of the Indian Evidence Act.
12.2. As per Section 101 of the Indian Evidence Act, when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. This section is based on the rule, ei incumbit probatio qui dicit, non qui negat, which means that the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it, because a negative is usually incapable of proof. The burden of proving a fact always lies upon the person who asserts and until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. However, the above rule is subject to the general principle that things admitted need not be proved.
12.3. The question as to whether burden of proof has been discharged by a party to the lis or not, would depend upon the facts and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought on record so as to enable a Court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden of proof lies would still be liable to produce direct evidence, vide National Insurance Co. Ltd. vs. Rattani (2009) 2 SCC 75: AIR 2009 SC 1499.
12.4. Burden to prove documents lie on plaintiff alone as onus is always on the person asserting a proposition or fact which is not selfevident. This position is summarised in the observation to the effect that, an assertion that a man who is alive was born requires no proof; the onus, is not on the person making the assertion, because it is selfevident that he had been born. But to assert that he had been born on a certain date, if the date is material, requires proof; the onus is on the person making the assertion, vide Robins vs. National Trust & Co. Ltd. 1927 AC 515: 101 IC 903.
12.5. It is also to be noted at this juncture that 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 it never shifts, onus of proof on the other hand, shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. For instance, 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 plaintiffs title, vide RVE Venkatachala Gounder vs. Arulmigu Viswesaraswami and VP Temple AIR 2003 SC 4548: (2003) 8 SCC 752.
12.6. In terms of section 102 of the Evidence Act, the initial burden to prove its claim is always on the plaintiff and if he discharges that burden and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff of the same.
12.7. 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]
12.8. As per Section 103, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. This section amplifies the general rule in section 101 that the burden of proof lies on the person who asserts the affirmative of the issue. It lays down that if a person wishes the court to believe in the existence of a particular fact, the onus of proving that fact, is on him, unless the burden of proving it is cast by any law on any particular person.
12.9. Section 105 is an application of the rule in section 103. When parties to a dispute adduce evidence to substantiate their claim, onus becomes academic and divided, entailing each party to prove their respective plea.
12.10. Section 106 is an exception to the general rule laid down in Section 101, that the burden of proving a fact rest on the party who substantially asserts the affirmative of the issue. Section 106 is not intended to relieve any person of that duty or burden but states that when a fact to be proved is peculiarly within the knowledge of a party, it is for him to prove it. It applies to cases where the fact is especially within a party’s knowledge and to none else. The expression ‘especially’ used in Section 106 means facts that are eminently or exceptionally within one’s knowledge. This means a party having personal knowledge of certain facts has a duty to appear as a witness and if he does not go to the witness box, there is a strong presumption against him. In an Election Petition, the initial burden to prove determination of age of returned candidate lies on the petitioner, however, burden lies on the respondent to prove facts within his special knowledge. (Sushil Kumar vs. Rakesh Kumar [ (2003) 8 SCC 673) ].
12.11. The provisions of Section 106 are unambiguous and categorical in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. If he does so, he must be held to have discharged his burden but if he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106. [Source: Sarkar on Law of Evidence, 20th Edition, Volume 2.]
12.12. In Sushil Kumar vs. Rakesh Kumar (supra), the controversy was with regard to the improper acceptance of the nomination of the sole respondent therein on the premise that he was under qualified to contest the Bihar Legislative Assemble election from 181, Parbatta Constituency. In the said case, inter alia, the horoscope of the respondent therein and admission register of New St. Xaviers School, Boring Road, Patna and transfer certificate issued by Swami Vivekananda Vidyalaya, Mithapur, Patna, were produced as documents to prove that the successful candidate therein was not eligible to contest the said Assembly election. In the said case, Section 35 of the Indian Evidence Act was referred to and it was observed that the register maintained in terms of a statute or by a statutory authority in regular course of business would be a relevant fact and if such vital evidence had been produced, it would clinch the issue. It was observed that there is no reliable evidence on record to show that the date of birth was recorded in the school register on the basis of the statement of any responsible person and that the admission register or a transfer certificate issued by a primary school do not satisfy the requirements of Section 35 of the Evidence Act.
The Supreme Court in the case of Gian Chand and Bros v. Rattan Lal, (2013) 2 SCC 606, has held as under:
18. It is well-settled principle of law that a person who asserts a particular fact is required to affirmatively establish it. In Anil Rishi v. Gurbaksh Singh [(2006) 5 SCC 558] (SCC p. 561, para 9), it has been held that the burden of proving the facts rests on the party who substantially asserts the affirmative issues and not the party who denies it and the said principle may not be universal in its application and there may be an exception thereto. The purpose of referring to the same is that if the plaintiff asserts that the defendant had acknowledged the signature, it is obligatory on his part to substantiate the same. But the question would be what would be the consequence in a situation where the signatures are proven and there is an evasive reply in the written statement and what should be construed as substantiating the assertion made by the plaintiff.
19. In Krishna Mohan Kul v. Pratima Maity [(2004) 9 SCC 468] it has been ruled thus: (SCC p. 474, para 12) “12. … When fraud, misrepresentation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation.”
20. In Shashi Kumar Banerjee v. Subodh Kumar Banerjee [AIR 1964 SC 529] a Constitution Bench of this Court, while dealing with a mode of proof of a will under the Succession Act, 1925 observed that where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same.
21. In A. Raghavamma v. A. Chenchamma [AIR 1964 SC 136], while making a distinction between burden of proof and onus of proof, a three-Judge Bench opined thus: (AIR p. 143, para 12) “12. … There is an essential distinction between burden of proof and onus of proof: burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. The burden of proof in the present case undoubtedly lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence.”
If Sale, on which Title rests, is Vitiated: Title will be Nullity
It was held by the Bombay High Court in Sarang Avinash Kamtekar v. Alpha Organic (2005) relying on
(1) Himadri Coke and Petro Ltd. v. Soneko Developers (P) Ltd., (2005) 12 SCC 364;
(2) Bajaranglal Shivchandrai Ruia v. Shashikant N. Ruia, 2004(3) SCR 373; and
(3) A.V. Papayya Sastry v. Government of A.P., (2007) 4 SCC 221.
that a sale on which title of a party to the suit rests is vitiated, title will be bad in law.
Principle Not Applicable with its Full Vigor in a suit filed by the State
From R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548, it is clear that, though in a suit for recovery on title, a plaintiff cannot argue that the defendant failed to prove his title.
But, it may not be applicable with its full vigor in a suit filed by the State, for it is the paramount title holder of the property by virtue of the Constitution.
Law Recognises Efficacy of Possession in Section 6 of the Specific Relief Act
Section 6 of the Specific Relief Act allows one to file a suit for recovery of property, on the strength of his prior possession, if he had lost his possession within 6 months of the suit. In such a case, he need not prove his title; and he can succeed on establishing that he has been dispossessed otherwise than in accordance with law within six months.
Sec. 6 of the Specific Relief Act, 1963 reads as under:
6. Suit by person dispossessed of immovable property. (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.
(2) No suit under this section shall be brought
(a) after the expiry of six months from the date of dispossession; or
(b) against the Government.
(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.
(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.
If Title not Perfected by Adver. Posn, Can one Eject a Trespasser After 6 Months
High Courts differ, as pointed out in Kuttan Narayanan v. Thomman Mathayi, AIR 1966 Ker 179.
Now it is settled that if one fails to exercise his option by filing a suit under Section 6 of the Specific Relief Act within six months, he is at liberty to file a suit to recover his possession (with or without declaration) by a regular suit for recovery of possession. It can be based on title or on his possession in assumed or presumed character of ownership (even if title not perfected by doctrine of adverse possession) on the principle that possession is good title against all the world but the rightful owner. See: Kuttan Narayanan v. Thomman Mathayi, AIR 1966 Ker 179; Kanti Lal v. Smt. Shanti Devi, AIR 1997 Raj 230.
Even Rightful Ownerto Take Recourse to law; He cannot take the law in his own hands
In Rame Gowda v. M. Varadappa Naidu, (2004) 1 SCC 769, our Apex Court Court (R.C. Lahoti, B.N. Srikrishna, G.P. Mathur, JJ.) observed that the law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner. It is held as under:
“8. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser.
A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force.
If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession.
The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful ownerfrom using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force.
In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.” (quoted in: Subramanya Swamy Temple, Ratnagiri v. V. Kanna Gounder, 2009-3 SCC 306; Poona Ram v. Moti Ram, AIR 2019 SC 813)
What is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner was made clear in Rame Gowda v. M. Varadappa Naidu, (2004) 1 SCC 769. It reads as under:
“9. …The “settled possession” must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase “settled possession” does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession.” (quoted in Samarpan Varishtha Jan Parisar vs Rajendra Prasad Agarwal, AIR 2022 SC 2209)
Even the Rightful Owner cannot Eject a Trespasser with Force
In Karthiyayani Amma v. Govindan, AIR 1980 Ker 224, the Kerala High Court considered the question whether the rightful owner can eject a trespasser in possession with force; and whether a person in illegal possession could sustain a suit for injunction against the true owner, from forcibly dispossessing him from the property. It was held as under:
“The ultimate position, therefore, reduces itself to this:
Can a person in possession without title sustain a suit for injunction against the rightful owner if he proves possession?
Yes. In this case, plaintiff is found to in be possession. On the finding, he should be granted the injunction prayed for. A person in possession can be evicted only in due process of law. Even the rightful owner cannot eject him with force. If he cannot be evicted with force, he continues to be in possession and he can resist invasion of his possession by everyone including the rightful owner. If the rightful owner threatens his peaceful possession, he can approach Courts of Law and pray for the equitable relief of injunction to protect his possession”. (Followed in: Aiysumma v. Mariyamma, 1994-2 CIVCC 52, 1994-1 KerLT 570. )
It is pointed out in Suresh v. Ashok Girdharilal Chandak, 2016-1 MHLJ 171 that ‘bearing in mind the basic principle of law in civil jurisprudence that even a trespasser cannot be evicted without following due process of law and no one can be allowed to take law into his own hands to recover possession of the property without following due process of law and without proving title to the immovable property in possession of a person holding actual physical possession thereof’.
No Injunction in Favour of a Trespasser, Against the ‘True Owner’
It is observed by our Apex Court, in Prataprai N. Kothari v. John Braganza, AIR 1999 SC 1666, as under:
“It is quite obvious that the learned single Judge had not taken note of the principle of possessory title or the principle of law that a person who has been in long continuous possession can protect the same by seeking an injunction against any person in the world other than the true owner. It is also well settled that even the owner of the property can get back his possession only by resorting to due process of law.
Divergent Views are set out in Sopan Sukhdeo Sable v. Assistant Charity Commissioner, AIR 2004 SC 1801 also. They are the following:
first, a person in settled possession cannot be disposed by the owner except by recourse of law
second, a trespasser in possession cannotnot seek injunction against the true owner.
In this case, a forceful postulation is posed-
A trespasser ousted can seek restoration of possession under Section 6 of the Specific Relief Act, 1963, (even) against the true owner. If so, can’t the trespasser seek injunction as to possession, against the true owner?
In Sopan Sukhdeo Sable v. Assistant Charity Commissioner, AIR 2004 SC 1801, the appellants were the plaintiffs whose suit was rejected in terms of Order VII, Rule 11 of the Code of Civil Procedure. It is held in this decision as under:
“24. There are two different sets of principles which have to be borne in mind regarding course to be adopted in case of forcible dispossession. Taking up the first aspect, it is true that where a person is in settled possession of property, even on the assumption that he has no right to remain in property, he cannot be disposed by the owner except by recourse of law. This principle is laid down in Section 6 of the Specific Relief Act, 1963. That Section says that if any person is dispossession without his consent from immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. That a person without title but in “settled” possession – as against mere fugitive possession – can get back possession if forcibly dispossessed or rather, if dispossessed otherwise than by due process of law, has been laid down in several cases. It was so held by this Court in
Yashwant Singh v. Jagdish Singh, AIR 1968 SC 620,
Krishna Ram Mohate v. Mrs. Shobha Venkata Rao, (1989) 4 SCC 131 at p. 136;
Ram Rattan v. State of UP, (1977) 1 SCC 188, and
State of UP v. Maharaja Dharmender Prasad Singh, (1989) 2 SCC 505.
The leading decision quoted in these rulings is the decision of the Bombay High Court in
K. K. Verma vs. Union of India, AIR 1954 Bom 358.
25. Now the other aspect of the matter needs to be noted. Assuming a trespasser ousted can seek restoration of possession under Section 6 of the Specific Relief Act, 1963 can the trespasser seek injunction against the true owner?
This question does not entirely depend upon Section 6 of the Specific Relief Act, but mainly depends upon certain general principles applicable to the law of injunctions and as to the scope of the exercise of discretion while granting injunction.
In Mahadeo Savlaram Sheike vs. Pune Municipal Corporation, (1995) 3 SCC 33, it was held, after referring to Woodrofe on “Law relating to injunction: L. C. Goyal Law of injunctions:
David Bean Injunction Jayce on Injunctions and other leading Articles on the subject that the appellant who was a trespasser in possession could not seek injunction against the true owner.
In that context this Court quoted Shiv Kumar Chadha vs. MCD, (1993) 3 SCC 161, wherein it was observed that injunction is discretionary and that:
“Judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court.”
26. Reference was also made to Dalpat Kumar vs. Prahlad Singh (1992) 1 SCC 719 in regard to the meaning of the words prima facie case and balance of convenience and observed in Mahadeos case (supra) that:
“It is settled law that no injunction could be granted against the owner at the instance of a person in unlawful possession.”
27. The question of forcible possession as claimed is also a matter which can be pressed into service by the parties before the trial Court and if raised the Court shall deal with it considering its relevance to the suit and accept it or otherwise reject the plea in accordance with law. We do not think it necessary to express any opinion in that regard.
28. …. Looking into the nature of dispute it would be appropriate if the trial Court makes an effort to complete the trial within six months from the date of the judgment. The parties are directed to co-operate for disposal of the suit early within the stipulated time. The appeal is allowed to the extent indicated without any order as to costs.”
Burden on Plaintiff to Prove Title; Weakness of defence would not enable a decree
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.”
Possession is Good Against All But the True Owner
The principle that ‘possession is good against all but the true owner’ is stated in Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165, referring Judicial Committee decision in Parry v. Clissold, (1907) AC 73, as under:
“17. In our judgment this involves an incorrect approach to our problem. To express our meaning we may begin by reading 1907 AC 73, 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.”
Following decisions also say – no injunction can be passed, in favour of a trespasser, against the ‘true owner’ of a property:
Lallu Yeshwant Singh v. Rao Jagdish Singh, AIR 1968 SC 620 (possession after the termination of the tenancy);
M.C. Chockalingam v. Manickavasagam (1974) 1 SCC 48;
Document ex-facie reveals no title – specific declaration as to invalidity not necessary
The Supreme Court held in Kizhakke Vattakandiyil Madhavan v. Thiyyurkunnath Meethal Janaki (Aniruddha Bose & Sudhanshu DhuliaJJ.) 9.4.2024, held as under:
“18. …. If a document seeking to convey immovable property ex-facie reveals that the conveyer does not have the title over the same, specific declaration that the document is invalid would not be necessary. The Court can examine the title in the event any party to the proceeding sets up this defence. Chiruthey could not convey any property over which she did not have any right or title. Her right, if any, would stem from the second deed of lease (Exhibit A-1). We are conscious of the fact that no claim was made before any forum for invalidating the deed dated 14th July 1910 (Exhibit A-20).”
By proving a deed, title of the executing person is not automatically confirmed
The Supreme Court held in Kizhakke Vattakandiyil Madhavan v. Thiyyurkunnath Meethal Janaki (Aniruddha Bose & Sudhanshu DhuliaJJ.) 9.4.2024, also held as under:
“18. … It would be trite to repeat that even if subsistence of a deed is proved in evidence, the title of the executing person (in this case Chiruthey) does not automatically stand confirmed. ….. … But in absence of proper title over the subject property, that lease deed even if she was its sole lessor would not have had been legally valid or enforceable. If right, title or interest in certain property is sought conveyed by a person by an instrument who herself does not possess any such form of entitlement on the subject being conveyed, even with a subsisting deed of conveyance on such property, the grantee on her successors-in-interest will not have legal right to enforce the right the latter may have derived from such an instrument.”
Saji Koduvath Associates 