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SUPREME COURT OF INDIA
ABHAY S. OKA, SANJAY KAROL, JJ.
Government Of Kerala & Anr. - Appellants
Versus
Joseph And Others - Respondents
Civil Appeal 3142 of 2010
Decided on : 09-08-2023
(A) Civil Procedure Code, 1908 – Section 100 – Second Appeal – Maintainability – For an appeal to be maintainable under Section of CPC, it must fulfil certain well-established requirements – Primary and most important of them all is that appeal should pose a substantial question of law – Section 100, CPC jurisdiction is not akin to jurisdiction conferred under Section 96 of CPC wherein it is open for Court to consider both questions of fact and law – This jurisdiction is exercisable only when Court is convinced that dispute at hand involves a substantial question of law and proceeding under this jurisdiction sans framing questions of such nature renders proceedings to be patently illegal. (Paras 8 and 9)
(B) Adverse Possession – Acquisition of Title – Possession must be open, clear, continuous and hostile to claim or possession of other party – All three classic requirements must co-exist – Person claiming adverse possession must show clear and cogent evidence substantiate such claim – Mere possession over a property for a long period of time does not grant right of adverse possession on its own – Such clear and continuous possession must be accompanied by animus possidendi – When land subject of proceedings wherein adverse possession has been claimed, belongs to Government, Court is duty-bound to act with greater seriousness, effectiveness, care and circumspection as it may lead to destruction of a right/title of State to immovable property – Plea of adverse possession must be pleaded with proper particulars, such as, when possession became adverse – Court is not to travel beyond pleading to give any relief – Claim of independent title and adverse possession at the same time amount to contradictory pleas. (Paras 21.1, 21.2, 21.3, 21.4, 21.7, 21.8 and 21.9)
(C) Adverse Possession – Acquisition of Title – [Article 65 of Limitation Act, 1963] – State cannot claim land of its citizens by way of adverse possession as it is a welfare State – In instant facts, for respondents to be granted enjoyment of disputed property, clear, continuous and hostile possession would have to be established by way of cogent evidence and animus possidendi must be demonstrated – An estimation of age of trees cannot be termed as sufficient proof required to disturb title that rests with Government – Merely a long period of possession, does not translate into right of adverse possession – Surmises, conjectures and approximations cannot serve basis for taking away right over land resting with State and place said bundle of rights in hands of one who did not have any such rights – Findings returned by High Court holding witnesses to have established claimants’ claims by way of adverse possession held to be erroneous. [Kerala Land Conservancy Act, 1957 – Section 20] (Paras 21.11, 22, 28 and 37)
Facts of the case:
Present appeal assails a judgement and order passed by 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, 1995, by District Judge, Thodupuzha, in Appeal Suit No. 3 of 1991 were overturned and land, subject matter of dispute, was stated to be rightfully belonging to the Respondents herein, namely Joseph, by virtue of the principle of adverse possession.
Findings of Court:
Judgement of High Court in S.A. 740 of 1995 dated 5th August,2009 is set aside, and judgement rendered by First Appellate Court in Appeal Suit No. 3 of 1991 dated 3rd April, 1995 is restored.
Result : Appeal allowed.
JUDGMENT :
SANJAY KAROL J.
1. This appeal assails a judgment 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, 1995, by the District Judge, Thodupuzha, in Appeal Suit No. 3 of 1991 were overturned and the land, subject matter of dispute, was stated to be rightfully belonging to the Respondents herein, namely Joseph, by virtue of the principle of adverse possession.
Background
2. The property, subject matter of dispute, measures 30 cents bearing survey Nos.545/7/1, 545/8A2 and 545/8B3 of Kudayathoor village. The said property is stated to be Government Puramboke land. Such fact appears to be undisputed. The case put forward by the respondents, (claimants of adverse possession) 1[Hereafter referred as Claimants.] against which the present appeal stands filed, is that Joseph had acquired title to the land of which he had been in possession and in continued enjoyment of, since 1940.
3. The Tahsildar, District Thodupuzha, issued notice to the claimants for unauthorised occupation of Government land on 20th February 1982, and thus began the long-standing litigation that is before us. Joseph-the original occupier passed away on 9th August 1982. The Assistant Collector, Idukki, vide order dated 11th March 1983 dismissed the appeal filed against the order of the Tahsildar.
4. Legal representatives of the claimants filed a suit for injunction on 14th April 1983. The Court of the Munsiff allowed the suit on 31st July 1987 and on remand, vide order dated 16th December, 1989 from an appeal filed by the State, on the ground of the non-opportunity of production of evidence as also cross-examination of the witnesses for the State, confirmed its original decree with a judgment and order dated 21st July 1990.
First Appeal
5. The question, the Court in its wisdom framed for its consideration was whether the plaintiffs (respondents herein) had made out a case for declaration and injunction and whether the decree passed by the Court below was sustainable or not.
5.1 It was observed that the injunction was clearly a response to the notice dated 3rd of May, 1982, therefore, it was hit by Section 20 of the Kerala Land Conservancy Act, 19572[Hereinafter, The Act]. The Act permits only those suits which are filed against an order under the said act in respect of lands that do not belong to the Government or are not puramboke land. The same was also hit by the Proviso to Section 20 which permits such suits to be filed within one year of the date of notice. In this regard, the notice in the present 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 basis of “scanty material”. It was then held that the classic requirement of adverse possession is that possession should be open, assertive, hostile and continuous. These requirement
Adverse Possession – Mere possession over a property for a long period of time does not grant right of adverse possession on its own – Surmises, conjectures and approximations cannot serve basis for ....
The claim of adverse possession requires clear, continuous, and hostile possession, and cannot be established solely based on possession without adequate evidence.
The judgment emphasizes the legal principles of adverse possession, including the requirements of open, clear, continuous, and hostile possession, burden of proof, and the need for a substantial ques....
The judgment established that to claim adverse possession, the possessor must demonstrate hostile animus, peaceful, open, and continuous possession, and the abandonment of rights by the true owner. P....
The necessity of framing substantial questions of law in second appeals is mandated, and mere long-term possession does not equate to adverse possession without requisite proofs of hostility.
The main legal point established in the judgment is the requirement for adverse possession, including the need for peaceful, open, and continuous possession, as well as the animus possidendi to hold ....
Claim of adverse possession requires open, continuous possession with knowledge to the rightful owner. Plaintiffs failed to provide sufficient evidence, resulting in dismissal.
The court affirmed that the state can claim adverse possession, emphasizing the necessity for plaintiffs to prove their title and possession to succeed in such suits.
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