Adverse possession requires proof of continuous, open, and hostile possession, especially against government land claims, and failure to frame substantial questions of law in appeals renders proceedings illegal.

JUDGEMENT

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, 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 Digitally signed by Indu Marwah Date: 2023.08.09 15:42:44 IST Reason:

Signature Not Verified 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 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.

1 Hereafter referred as Claimants.

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 judgement 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. The Act permits only those suits which are filed against an order under the said act in respect of lands that 2 Hereinafter, The Act 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