2000 Supreme(SC) 962

2000(4) Supreme 215
SUPREME COURT OF INDIA
(From Rajasthan High Court)
S. Rajendra Babu and Doraiswamy Raju, JJ.
State of Rajasthan -Appellant
versus
Harphool Singh (Dead) through His LRs. -Respondent
Civil Appeal No. 5188 of 1996
Decided on 4-5-2000
Counsel for the Parties :
For the Appellant : Aruneshwar Gupta, (Sushil Kumar Jain) Additional Advocate General for Rajasthan, A.P. Dhamija and A. Misra Advocates
For the Respondents : Aman Hingorani, Ms. Priya Hingorani, Saleem Hasan Ansari, Advocates for M/s. Hingorani & Associates, Advocates.

Headnote:(i) Code of Civil Procedure, 1908 -Section 99-First appeal-Limitation-Judgment delivered on 10.4.89 -Copy of Judgment given on 9.5.89 -Application for decree made on 12-5-89-Appeal filed on 3.7.89 on which date court reopened after summer recess - Appeal well within period of limitation-Dismissal of appeal as time barred unjustified.

       Held : We find from the materials, placed on record that the trial court delivered its judgment on 10.4.89, that on 11.4.89, the State applied for a copy of the judgment and the summer vacation started on 9.5.89. It is stated that after the receipt of the copy of the judgment on 9.5.89, an application for a copy of the decree was made only on 12.5.89 and the appeal was filed on 3.7.89, the date on which the courts were said to have been reopened after summer recess. If the copy of the judgment dated 10.4.89 was furnished on 9.5.89, the limitation for filing the appeal would extend upto 8.6.89 and if during such period on 12.5.89 a copy of the decree was applied for it cannot be said to have been made after the limitation period was over and having regard to the intervening summer recess, the filing of the appeal on the reopening day after obtaining the decree copy also, together with copies of judgment and decree on the first day of the reopening after vacation would be well within the period of limitation and there is no merit in the said ground assigned by the first appellate court. Our attention has also been drawn to the original records where we found a specific endorsement made after processing the appeal papers by the office of the first appellate court, that the appeal has been filed within time. The first appellate court, therefore, was in error in holding to the contra. (Para 9)

       (ii) Rajasthan Colonisation Act, 1954-Sections 22 and 24-Bar of civil suit-A.M.D. of District passing order of removal of encroachment into Government land-Suit for permanent injunction thereagainst claiming title on ground of adverse possession-Suit not barred-Determination of suit claim outside purview of summary mode of eviction under Section 22-Power and procedure under Section 22 no substitute for civil Courts jurisdiction and power to try and adjudicate disputes of title relating to immovable property. (Para 11)

       (iii) Adverse Possession-Government open land-Plaintiff claiming to be in possession over 30 years-No documentary evidence-No scrap of paper or concrete material to prove any possession by plaintiff s father as claimed by plaintiff-Trial Court and High Court not justified in declaring that plaintiff perfected title-High Court mechanically approving lackadaisical findings based upon mere surmise and conjectures-Judgment and decree of lower Courts set aside and suit dismissed.

       Held : The High Court without even a cursory scrutiny of the legality and propriety of the findings in order to ascertain at least as to whether they are based upon any legally acceptable evidence and the necessary legal ingredients of adverse possession stood substantiated, mechanically seem to have accorded its approval to the claim of title made by the plaintiff merely on the basis that both the courts below have found the plaintiff to be the owner of the property. Indisputably the State was the owner and the question is as to whether its title has been extinguished and the plaintiff had acquired and perfected title to the same by adverse possession. In order to substantiate such a claim of adverse possession the ingredients of open, hostile and continuous possession with the required animus, as laid down by Courts should be proved for a continuous period of 30 years. Admittedly, the plaintiff claims to have put up the construction in 1955 and absolutely there is no concrete and independent material to prove the same, except an oral assertion. The story of his father having been there even earlier to 1955 was not projected either before the A.D.M. when the plaintiff submitted his defence, or in the plaint when the suit was filed but for the first time introduced only at the stage of trial when examined as PW1. When the property was a vacant land before the alleged construction 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. Even if the plaintiff s allegations and claims, as projected in the plaint, are accepted in toto, the period of so-called adverse possession would fall short by 5 years of the required period. There is no scrap of paper or concrete material to prove any such possession of the plaintiff s father nor was there any specific finding supported by any evidence, in this regard. The father of the plaintiff was also an employee of the Telephone Department. It is not as though, if their story of such long possession is true, there would be no correspondence or record to show that his father or the plaintiff were there before 1981. The relevance of the electricity bill to the property in question itself has been questioned and no effort has been taken by the plaintiff to correlate the electricity and water bill to the property claimed by examining any official witnesses connected with those records. While that be the factual position, it is beyond comprehension as to how anyone expected to reasonably and judiciously adjudicate a claim of title by objective process of reasoning could have come to the conclusion that the legal requirement of 30 years of continuous, hostile and open possession with the required animus stood satisfied and proved on such perfunctory and slender material on record in the case. The first appellate court as well as the High Court ought to have seen that perverse findings not based upon legally acceptable evidence and which are patently contrary to law declared by this Court cannot have any immunity from interference in the hands of the appellate authority. The trial court has jumped to certain conclusions virtually on no evidence whatsoever in this connection. Such lackadaisical findings based upon mere surmises and conjectures, if allowed to be mechanically approved by the first appellate court and the second appellate court also withdraws itself into recluse apparently taking umbrage under Section 100, Cr.P.C., the inevitable casualty is justice and approval of such rank injustice would only result in gross miscarriage of justice. We are of the view, on the materials on record that the plaintiff could not be held to have substantiated his claim of perfection of title by adverse possession to the public property. The Courts below could not have legitimately come to any such conclusion in this case. The judgment and decree of the courts below are set aside and the plaintiff s suit shall stand dismissed. (Paras 13 & 14)