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1930 Supreme(SC) 48
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD THANKERTON, LORD RUSSELL OF KILLOWEN, SIR LANCELOT SANDERSON, AND SIR GEORGE LOWNDES.
JAHANDAD - Appellant
Versus
ABDUL GHAFUR - Respondents
On appeal from the Court of the Judicial Commissioner, North-West Frontier Province.
Decided On : June. 17. 1930.
Solicitors for appellants:T. L. Wilson & Co. Solicitor for respondent: H. S. L. Polak.
To establish adverse possession of uncultivated land, the claimant must prove exclusive, continuous, and public possession. Government records showing possession by the title holder create a presumption of truth that can only be rebutted by clear and definite evidence of exclusive possession.
Headnote:(A) Act XVII of 1887 - Section 44 - Indian Limitation Act, 1908 - Schedule L, Articles 142 and 144 - Adverse possession of uncultivated jungle land - Possession must be adequate in continuity, publicity, and extent to demonstrate it is adverse to the competitor.
(B) Government records - Entries of possession in government records are presumed to be true until the contrary is proved.
(C) Burden of proof - The party claiming adverse possession must affirmatively establish exclusive possession for the requisite statutory period; sporadic activities such as grazing or collecting firewood are insufficient to establish such possession.
Facts of the case:
A dispute arose over a plot of uncultivated land containing valuable trees. A prior decree had established the title of the appellants. The respondent claimed a right to the land through adverse possession for twelve years. Government records from 1891 to 1922 indicated that the appellants were in possession. The respondent's evidence of possession included cutting trees, grazing, and allowing temporary occupation by a third party.
Findings of Court:
The respondent failed to provide clear and definite evidence of exclusive possession to discharge the onus of proof. The evidence of sporadic activities was insufficient to override the presumption of truth attached to the government records.
Issues: Whether the respondent had established a right to the land by adverse possession for the requisite period of twelve years.
Ratio Decidendi: The court held that for uncultivated jungle land, the claimant must prove exclusive possession that is continuous and public. Where government records presume possession in favor of the title holder, the claimant must provide strong evidence to the contrary. Sporadic invasions of adjacent jungle land do not constitute adverse possession.
Result: Decree of the Judicial Commissioner set aside, and that of the District Judge restored.
Legal Category Hierarchy
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property law
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adverse possession
- burden of proof
- evidence of possession
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adverse possession
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practice and procedure
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evidence
- presumption of truth in government records
- appeals
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evidence
Judgement
Appeal (No. 68 of 1928) from a decree of the Court of the Judicial Commissioner, North-West Frontier Province February 3, 1927), reversing a decree of the District Judge of Peshawar (July 17, 1924).
The respondent instituted a suit against the appellants claiming by adverse possession for twelve years certain land which was uncultivated and unassessed, but bore shishan trees of considerable value and grew natural grasses useful for grazing.
The District Judge dismissed the suit, but it was decreed on appeal to the Court of the Judicial Commissioner.
The facts appear from the judgment of the Judicial Committee.
1930. May 9, 12, 13, 15. De Gruyther K.C. and Parikh for the appellants.
Dunne K.C. and Wallach for the respondent.
The arguments were upon the evidence, reference being made to Act XVII. of 1887, Indian Limitation Act, 1908, Schedule L, arts. 142, 144, the two cases referred to in the judgment, also to Kumar Basanta Roy v. Secretary of State for India . (( 1917) L.R. 44 I. A. 104,113.)
June 17. The judgment of their Lordships was delivered by
SIR GEORGE LOWNDES. The Khans of Zaida and Hund are owners of adjacent landed estates on the bank of the Indus. Near by and situated between two branches of the river is an island of waste ground, a portion of which, comprising about 20 acres, is covered with shishan trees of considerable value. This plot is known as Bela Fakir Buti, and now bears survey number 2084, but is unassessed. The part of the island in which the Bela lies is just opposite to a bungalow belonging to the Khan of Zaida in the village of Rana Dheri, and has for long been a subject of dispute between the rival estates. Prior to 1875 the Bela, together with most of the rest of the island, then bearing Khasra numbers 1-6, was entered in the revenue records as the property and in the possession of Zaida. In that year the Khan of Hund instituted a suit in respect of this area, claiming both title and possession, and praying that it might be recorded as his property. His suit succeeded ; it was held that the area claimed was part of the Hund estate, and it was ordered that the revenue authorities should make the necessary entry in the settlement papers. The decree also directed , possession to be given, but there is no evidence that this was done.
In the present proceedings it is only the Bela that is in dispute. It is admitted that it was part of the area covered by the decision of the 1875 suit, and it is clear, therefore, that so far as the claim of Zaida is based upon title, it must fail.
The real question in the case, however, is whether the Khan of Zaida has established a right to the Bela by adverse possession. The suit out of which this appeal has arisen followed upon proceedings taken under s. 145 of the Criminal Procedure Code. In 1922 the Khan of Zaida commenced to fell trees on the Bela, and his men were forcibly evicted by the Khans of Hund. The Khan of Zaida then applied to the District Magistrate under the section above referred to, alleging that he was in possession, and praying for reinstatement and protection. The District Magistrate held an inquiry and came to the conclusion that ownership and possession were with Hund. Thereupon the suit was instituted by the Khan of Zaida praying for a declaration of his title and for possession.
Under these circumstances it lay upon him to establish affirmatively his adverse possession of the Bela for twelve years prior to 1922. The District Judge of Peshawar, by whom the suit was tried, held that he had not done so, and dismissed his suit. The Judicial Commissioner, on appeal, held that he had, and gave him a decree for possession as owner. The Khans of Hund now appeal to His Majesty in Council. The Khan of Zaida is the respondent.
The possession which the respondent is required to prove " must be adequate in continuity, in publicity, and in extent to show that it is possession adverse to the competitor"; per Lord Robertson, in delivering the judgme
