2023 (8) TMI 1470 - SC - Indian Laws

Jurisdiction of the Second Appellate Court - Claim of adverse possession over Government land - Bar of jurisdiction u/s 20 by the Kerala Land Conservancy Act, 1957 (Act) - Requirements and burden of proof for adverse possession - Whether the claimants have perfected their title over the property, subject matter of dispute, by adverse possession - HELD THAT - A perusal of the judgement impugned does not reflect any question of law, either substantial or involving in the case to have been framed by the Court in the Second Appeal. The Section 100, Code of Civil Procedure jurisdiction is not akin to the jurisdiction conferred Under Section 96 of Code of Civil Procedure wherein it is open for the Court to consider both questions of fact and law. This jurisdiction is exercisable only when the Court is convinced that the dispute at hand involves a substantial question of law, and proceeding under this jurisdiction sans framing questions of such nature renders the proceedings to be patently illegal. In view of the principles laid down in the above stated judgements, the impugned judgement must be faulted with for not complying with the well-established contours of Section 100, Code of Civil Procedure. We have hitherto observed that the instant litigation has continued for a considerable period of time, i.e., four decades. Prudence would not be served by sending this matter back to the court below for consideration in light of the above discussion and, therefore, with an aim to put an end to the matter, this Court proceeds to examine the claim of adverse possession on its own merits, as is so argued across the bar. The claimants via a claim of adverse possession seek to be declared the owners, by lapse of time of land belonging to the government. When faced with this situation, it is clear that the Court is required to consider this question more seriously . The first part of burden of proof as discussed in Revamma 2007 (4) TMI 738 - SUPREME COURT is undoubtedly met with since the subject land being Government land, was never in dispute. The burden of proof once shifted, it was for the claimants to prove their possession to be openly hostile to the rights of the government. By way of evidence adduced, nothing, save in except testimonies of villagers, has been brought on record. A perusal of such evidence also shows no decisive statements being made and instead, on the basis of the estimated age of trees on such land, is the length of possession of the Respondents being calculated. An estimation of age of the trees cannot be, by any stretch, termed as sufficient proof required to disturb the title that undisputedly rests with the Government as also testified by PW-1 and PW-2. Proper and concrete proof as required would need for the claimants to show some proof of possession, other than statements which may be vague. It is also clear from the discussion that merely a long period of possession, does not translate into the right of adverse possession. Surmises, conjectures and approximations cannot serve the basis for taking away the right over land resting with the State and place the said bundle of rights in the hands of one who did not have any such rights. It is a matter of record that proceedings of ejectment of the claimant stood initiated before the concerned Tehsildar in which claimant neither pleaded nor claimed title by way of adverse possession. To the contrary, the unauthorised occupation was not disputed, with the only plea being taken of having planted certain trees (rubber trees), put to use for rubber tapping. It is for the first time in the written statement that the factum of passing the order under The Act was brought to the notice of the Civil Court which fact was neither refuted to nor explained by way of replication. That apart, joint reading of the testimonies of PW1 (Brajeetha), PW3 (Cherian) and PW4 (Narayanan), do not in any manner establish the factum of the claimant having ever claimed the possession hostile to that of true owner i.e., the State. Their testimonies only establish Plaintiffs/claimants' possession and having put the land to use for planting trees, though with a variation of period, i.e., about 15 to 40 years. Be that as it may, it has come on record with some variations that the rubber trees were planted just about 15 to 18 years prior to the date on which the depositions were recorded. On oath, in a specific query put to PW 1 as to whether there is no record to establish suit the property to be in their possession from the year 1940 onwards, there is a categorical denial. Equally the witness denies having any proof of residing in the property, since 1940, adjacent to the property subject matter of the suit. All that it is stated is that the property was being enjoyed, assuming the same to be theirs. It is in this view of the matter, we find that the findings returned by the High Court holding the witnesses, more particularly PW1 to PW5 to have established the claimants' claims by way of adverse possession to be erroneous. Thus, the appeal is allowed. The judgement of the High Court in S.A. 740 of 1995 dated 5th August,2009 is set aside, and the judgement rendered by the First Appellate Court in Appeal Suit No. 3 of 1991 dated 3rd April, 1995 is restored.

Summary

Issues Involved:

1. Whether the Plaintiffs (Respondents herein) had made out a case for declaration and injunction.
2. Whether the claim of adverse possession by the Respondents is valid.
3. Whether the suit is barred by the Kerala Land Conservancy Act, 1957.
4. Whether the Second Appeal meets the established criteria for Second Appeal.

Summary:

Issue 1: Declaration and Injunction

The First Appeal questioned whether the Plaintiffs had made out a case for declaration and injunction and whether the decree passed by the lower court was sustainable. It was observed that the suit was barred by Section 20 of the Kerala Land Conservancy Act, 1957, as it was filed beyond the permissible limit of one year from the notice date. Witnesses produced by the Plaintiffs were deemed unreliable, and no independent evidence was provided to prove possession for more than the statutory period of 30 years. The title of the Government land could not be lost based on "casual advertence" or "scanty material." The classic requirements of adverse possession'open, assertive, hostile, and continuous possession'were found absent. Consequently, the judgement and decree of the Trial Court were set aside.

Issue 2: Adverse Possession

The High Court in the Second Appeal held that the suit was for declaration of perfected title by adverse possession, not a challenge against the notice by the Tahsildar. The testimonies of PWs1 to 6 were considered unshaken, and it was concluded that the Respondents had been in possession for over 50 years, thus granting them adverse possession. However, the Supreme Court found that the evidence provided, mainly testimonies, lacked consistency and did not meet the requirement of a "more serious and effective" enquiry. The possession was not proven to be openly hostile to the Government's rights, and the claim of adverse possession was not substantiated with clear and cogent evidence.

Issue 3: Bar by Kerala Land Conservancy Act, 1957

The First Appeal held that the suit was barred by Section 20 of the Act as it was a retaliation against the notice issued by the Tahsildar. The High Court, however, stated that the suit was for declaration of title by adverse possession, thus not barred by the Act. The Supreme Court examined the provision and found that the civil suit was not in connection with an action taken by the Government under the Act, thereby not barred by Section 20.

Issue 4: Criteria for Second Appeal

The Supreme Court noted that for an appeal to be maintainable u/s 100 CPC, it must pose a substantial question of law. The High Court's judgement did not reflect any substantial question of law, rendering the proceedings "patently illegal." The Supreme Court decided to examine the claim of adverse possession on its own merits to put an end to the prolonged litigation.

Conclusion:

The Supreme Court allowed the appeal, set aside the High Court's judgement, and restored the judgement of the First Appellate Court, concluding that the claimants did not establish their claim of adverse possession with clear and cogent evidence. The possession was not proven to be hostile to the Government's title, and the suit was not barred by the Kerala Land Conservancy Act, 1957.