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TMI Blog2023 (8) TMI 1470X X X X Extracts X X X X X X X X Extracts X X X X ..... ntly 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - Hon'ble Judges Abhay Shreeniwas Oka and Sanjay Karol, JJ For the Appellant : Nishe Rajen Shonker, AOR, Anu K. Joy, Abraham C. Mathew and Alim Anvar, Advs. For the Respondents : P. Vinay Kumar, K. Parameshwar, AORs, Arti Gupta, Kanti and Chinmay Kangokar, Advs. JUDGMENT Sanjay Karol, J. 1. This appeal assails a judgement and order passed by the High Court of Kerala dated 5th August, 2009 in Second Appeal No. 740 of 1995 by which the findings returned in the First Appeal dated 3rd April, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt case was issued on 22nd February, 1982 and the suit was filed on 14th April, 1983 thereby being outside the permissible limit of one year. 5.2. It was observed that the witnesses produced by the Plaintiffs were rendering lip-service to the Plaintiffs and their testimonies in respect of the age of the trees planted on the disputed property varied greatly. No independent witness(es) or commission was taken to prove the age of the improvements made. A report relied on by the Plaintiffs, takes note of improvements made on the disputed property, over 35 years ago and neither the report nor the person who prepared such report was before the Court. 5.3. Furthermore, it was observed that the Plaintiffs could not adduce any evidence to prove their possession of the disputed property for more than the statutory period of 30 years. As per the of testimony of PW 1, the Plaintiffs were residing on the land on the south of the disputed property before 1940. However, no other record was taken to prove the possession of the Plaintiffs over the Government property. 5.4. It was observed that the title of the Government on land cannot be lost by placing reliance on casual advertence or on the basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession for over 50 years. 6.3. In that view of the matter, the judgement of the Munsiff Court was upheld, granting the claimants adverse possession over the land in question and, overturning the judgement rendered by the Court of First Appeal. Consideration By This Court 7. In deciding the present dispute, this Court must examine the same from two angles. One, whether the judgment impugned, arising out of Second Appeal meets the established criteria for Second Appeal or not?; and two, whether the Respondents herein are entitled to the relief of adverse possession or is the claim so made, barred by the Kerala Land Conservancy Act, 1957? 8. For an appeal to be maintainable Under Section 100, Code of Civil Procedure ('CPC', for brevity) it must fulfil certain well- established requirements. The primary and most important of them all is that the appeal should pose a substantial question of law. The sort of question that qualifies this criterion has been time and again reiterated by this Court. We may only refer to Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 (three-Judge Bench) wherein this Court observed as follows: 12. The phrase substantial question of law , as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. [Umerkhan v. Bismillabi (2011) 9 SCC 684 (two-Judge Bench) 10. Recently, a Bench of two learned Judges in Singaram v. Ramanathan Civil Appeal No. 4939 of 2021 held as under: This is undoubtedly subject to various well known exceptions which, however, cannot permit the Second Appellate Court to interfere with the findings of fact as a matter of course. Such restrictions are placed on the High Court in order that there is finality to litigation at a particular level in the hierarchy of Courts. The limitation on the exercise of power by the High Court in the Second Appeal interfering with the judgment of the First Appellate Court is premised on high public policy. This limitation is sought to be secured by insisting upon the requirement that a Second Appeal is considered only when there is a substantial question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit for injunction had been filed in a manner of retaliation against the notice issued by the Tehsildar. The Second Appellate Court, per contra, records that the suit was not a suit for injunction but a suit for declaration of title, same having come to rest upon the Respondents herein by virtue of adverse possession and, therefore, the above provision would not impede the proceedings. 17. A reading of the provision barring the jurisdiction of civil suits in respect of proceedings initiated under the act, reveals the following ingredients for such a bar to apply: i) no suit in any Civil Court; ii) in respect of any order under this Act; iii) the only ground upon which such a suit would be entertained is if the notice issued is in regards of property that does not belong to the Government; iv) the entertainment of a suit under the exception described in point No. (iii) is also circumscribed by the time limit of one year from the date of cause of action. 18. Applying the above-identified ingredients to the facts of the present case, for the bar to apply the civil suit instituted would have to be against an order passed by the competent authority under this Act in respect of unauthor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity, in publicity, and in extent to show that it is possession adverse to the competitor. (b) Further, the Council Maharaja Sri Chandra Nandi v. Baijnath Jugal Kishore AIR 1935 PC 36 observed- It is sufficient that the possession should be overt and without any attempt at concealment, so that the person against whom time is running ought, if he exercises due vigilance, to be aware of what is happening. (c) A Bench of three judges of this Court in Parsinni v. Sukhi (1993) 4 SCC 375 held that Party claiming adverse possession must prove that his possession must be 'nec vi, nec clam, nec precario' i.e. peaceful, open and continuous. The possession must be adequate, in continuity, in publicity and in extent to show that their possession is adverse to the true owner. (d) In Karnataka Board of Wakf v. Govt. of India (two- Judge Bench) (2004) 10 SCC 779 it was held: It is a well-settled principle that a party claiming adverse possession must prove that his possession is nec vi, nec clam, nec precario , that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... session. There must be some overt act on the part of the licensee indicating assertion of hostile title. Mere continuance of unauthorised possession even for a period of more than 12 years is not enough. Reference may also be made to Arvind Kumar (supra); Mallikarjunaiah v. Nanjaiah (2019) 15 SCC 756 (two-Judge Bench); Uttam Chand (supra). 21.4 Such clear and continuous possession must be accompanied by animus possidendi - the intention to possess or in other words, the intention to dispossess the rightful owner; in Karnataka Board of Wakf (supra) it was observed- ...Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature... (a) The case of Annakili v. A. Vedanayagam (2007) 14 SCC 308 (two-Judge Bench) also shed light on this principle as under - 24. Claim by adverse possession has two elements: (1) the possession of the Defendant should become adverse to the Plaintiff; and (2) the Defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of this Hon'ble Court in the case of Ravinder Kaur (supra) had held that - ...Title or interest is acquired it can be used as a sword by the Plaintiff as well as a shield by the Defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession... The position in Ravinder Kaur (supra) was followed in Narasamma and Ors. v. A. Krishnappa (Dead) Through L.Rs. (three-Judge Bench). 21.6. Mere passing of an ejectment order does not cause brake in possession neither causes his dispossession; In Balkrishna v. Satyaprakash (2001) 2 SCC 498 (two-Judge Bench) this Court held: ...Mere passing of an order of ejectment against a person claiming to be in adverse possession neither causes his dispossession nor discontinuation of his possession which alone breaks the continuity of possession. 21.7 When the land subject of proceedings wherein adverse possession has been claimed, belongs to the Government, the Court is duty-bound to act with greater seriousness, effectiveness, care and circumspection as it may lead to Destruction of a right/title of the State to immovable pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all. This principle was upheld in the case of Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639 (two-Judge Bench) - 4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period of his title by prescription nec vi, nec clam, nec precario. Since the Appellant's claim is founded on Section 53-A, it goes w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seriously and effectively for the reason that it ultimately involves destruction of right/title of the State to immovable property and conferring upon a third-party encroacher title where he had none. The decision in P. Lakshmi Reddy v. L. Lakshmi Reddy [AIR 1957 SC 314 : 1957 SCR 195] adverted to the ordinary classical requirement - that it should be nec vi, nec clam, nec precario - that is the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. It was also observed therein that whatever may be the animus or intention of a person wanting to acquire title by adverse possession, his adverse possession cannot commence until he obtains actual possession with the required animus. In the decision reported in Secy. of State for India in Council v. Debendra Lal Khan [1933) 61 IA 78 : 1934 All LJ 153 (PC)] strongly relied on for the Respondents, the Court laid down further that it is sufficient that the possession be overt and without any attempt at concealment so that the person against whom time is running, ought if he exercises due vigilance, to be aware of what is happening and if the rights of the Cro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was put up, to show open and hostile possession which could alone in law constitute adverse to the State, in this case, some concrete details of the nature of occupation with proper proof thereof would be absolutely necessary and mere vague assertions cannot by themselves be a substitute for such concrete proof required of open and hostile possession. (Emphasis supplied) cannot be termed as met. 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 above 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. 29. It is a matter of record that proceedings of ejectment of the claimant stood initiated before the co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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