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Suit: Suit for declaration of title and injunction – Plaintiffs claiming to be owners of the suit land – Reliance placed on various documents – Trial court decreeing the suit – High Court setting aside the decree – On appeal, held: The suit land was a Government land – The land was not subjected to any land revenue – Documents relied on, do not establish title of the plaintiffs on the lands – Mysore Revenue Manual – Paras 236 and 376 – Karnataka Land Revenue Act, 1961 – s. 67. Suit for declaration of title – Against Government and against private individual – Difference between – discussed. Suit for declaration of title against Government – Grant of decree – Criteria for – Discussed. Suit for declaration of title against Government – Onus to prove title – Held: It is for the claimants to establish their title to suit properties – Weakness of Government’s defence or absence of contest, are not sufficient to decree declaratory suits against the Government. Adverse possession – Right adverse to the Government – Claim of – Held: To claim adverse possession, claimant’s possession should be actual, open and visible, hostile to the owner and continued during entire period necessary to create bar under the law of limitation. Appellant-plaintiffs filed the present suit for declaration of title and consequential relief of permanent injunction in respect of the suit land (Survey Nos. 30 and 31), against the respondent-defendants. Appellants claimed to be owners of a tank in Survey No. 30 and a barren land in Survey No. 31. They claimed that the suit land was part of the land owned by their ancestors, and they were in continuous possession of the suit land as owners. The appellants filed a suit for permanent injunction when City Improvement Trusts Board attempted to interfere with their possession of the tank (Survey No. 30). Subsequently the present suit was filed wherein the appellants-plaintiff claimed title over the suit land Survey Nos. 30 and 31, placing reliance on Exs. P1, P2, P10, P11, P12 and P18. During pendency of the present suit, first suit was dismissed. Appeal against the order was also dismissed by High Court observing that the judgment would not affect the pending (present) suit. Plea of the respondent-defendants was that Survey No.30 was a Government tank shown as Kharab land in the revenue records and Survey No. 31 was also a government barren land shown in revenue records as Government Kharab land. Trial court decreed the suit holding that appellants had made out their possession and title with regard to the suit property. High Court, in appeal, set aside the decree. Hence the present appeals. =Dismissing the appeals, the Court HELD: 1.1. The appellants were not registered as the owners or khatedars or occupiers of the suit lands in any revenue records. They did not have any document of title referring to the suit properties. The appellants did not have possession. Even assuming that the tank in Survey No. 30 was repaired/ maintained by the ancestors of plaintiff at some point of time, there is no document to show that the tank was used, maintained or repaired by the appellants or their predecessors during more than half a century before the filing of the suit. The suit has to fail. [Para 21] [926-B-D] 1.2. The High Court, being the first appellate court is the final court of fact. It has, after examining the evidence exhaustively recorded a finding that the appellants have not established their title or possession. There is no error in the findings and conclusions of the High Court. The appellants who came to court claiming title, not having established title, their suit is liable to be dismissed. [Para 19] [925-D-E] 2.1. Suits for declaration of title against the Government, though similar to suits for declaration of title against private individuals differ significantly in some aspects. The first difference is in regard to the presumption available in favour of the Government. All lands which are not the property of any person or which are not vested in a local authority, belong to the Government. All unoccupied lands are the property of the Government, unless any person can establish his right or title to any such land. This presumption available to the Government, is not available to any person or individual. The second difference is in regard to the period for which title and/or possession have to be established by a person suing for declaration of title. Establishing title/possession for a period exceeding twelve years may be adequate to establish title in a declaratory suit against any individual. On the other hand, title/possession for a period exceeding thirty years will have to be established to succeed in a declaratory suit for title against Government. This follows from Article 112 of Limitation Act, 1963, which prescribes a longer period of thirty years as limitation in regard to suits by Government as against the period of 12 years for suits by private individuals. The reason is obvious. Government properties are spread over the entire State and it is not always possible for the Government to protect or safeguard its properties from encroachments. Many a time, its own officers who are expected to protect its properties and maintain proper records, either due to negligence or collusion, create entries in records to help private parties, to lay claim of ownership or possession against the Government. Any loss of Government property is ultimately the loss to the community. Courts owe a duty to be vigilant to ensure that public property is not converted into private property by unscrupulous elements. [Para 15] [921-G-H; 922-A-E] 2.2. Many civil courts deal with suits for declaration of title and injunction against Government, in a casual manner, ignoring or overlooking the special features relating to Government properties. Instances of such suits against Government being routinely decreed, either ex parte or for want of proper contest, merely acting upon the oral assertions of plaintiffs or stray revenue entries are common. Whether the Government contests the suit or not, before a suit for declaration of title against a Government is decreed, the plaintiff should establish, either his title by producing the title deeds which satisfactorily trace title for a minimum period of thirty years prior to the date of the suit (except where title is claimed with reference to a grant or transfer by the Government or a statutory development authority), or by establishing adverse possession for a period of more than thirty years. In such suits, courts cannot, ignoring the presumptions available in favour of the Government, grant declaratory or injunctive decrees against the Government by relying upon one of the principles underlying pleadings that plaint averments which are not denied or traversed are deemed to have been accepted or admitted. [Para 16] [922- G-H; 923-A-B] 2.3. Section 67 of Karnataka Land Revenue Act, 1961 declares that all tanks and all lands which are not the property of any person are the property of the State Government. Weakness of Government’s defence or absence of contest, are not therefore sufficient to decree declaratory suits against the Government. It is for the appellants to establish their title to the suit properties. [Para 18] [924-E; 925-B-C] 2.4. A court should necessarily seek an answer to the following question, before it grants a decree declaring title against the Government : whether the plaintiff has produced title deeds tracing the title for a period of more than thirty years; or whether the plaintiff has established his adverse possession to the knowledge of the Government for a period of more than thirty years, so as to convert his possession into title. Incidental to that question, the court should also find out whether the plaintiff is recorded to be the owner or holder or occupant of the property in the Revenue Records or Municipal Records, for more than thirty years, and what is the nature of possession claimed by the plaintiff, if he is in possession – authorized or unauthorized; permissive; casual and occasional; furtive and clandestine; open, continuous and hostile; deemed or implied (following a title). [Para 16] [923-C-E] 2.5. Mere temporary use or occupation without the animus to claim ownership or mere use at sufferance will not be sufficient to create any right adverse to the Government. In order to oust or defeat the title of the Government, a claimant has to establish a clear title which is superior to or better than the title of the Government or establish perfection of title by adverse possession for a period of more than thirty years with the knowledge of the Government. To claim adverse possession, the possession of the claimant must be actual, open and visible, hostile to the owner (and therefore necessarily with the knowledge of the owner) and continued during the entire period necessary to create a bar under the law of limitation. In short, it should be adequate in continuity, publicity and in extent. Mere vague or doubtful assertions that the claimant has been in adverse possession will not be sufficient. Unexplained stray or sporadic entries for a year or for a few years will not be sufficient and should be ignored. By its very nature, a claim based on adverse possession requires clear and categorical pleadings and evidence, much more so, if it is against the Government. [Para 17] [923-F-H; 924-A-B] On facts: 3.1. Exhibit P18 is an extract of the register maintained by the Public Works Department showing the details of tanks in Bangalore Division. The said extract is in respect of Serial No.279 from the said register relating to a tank described as `Maistry Kere’ or `Maistry Palyada Kere’ in Jakkasandra village, the extent of the water body being 11 acres. The name of the tank is followed by the word `private’ in the register and gives particulars of the Achkat area of the tank (that is area of land irrigated by the said tank) in the year 1906-07. The appellants took the plea that the description of the tank as `private’ in the Tank Register would demonstrate that the tank did not belong to the Government and that it was privately owned. The High Court however held that the mere use of the word `private’ after the description of the tank, will not establish appellant’s title or possession in regard to Survey No.30. [Para 5] [916-E-G] 3.2. A reading of Para 376 of the Mysore Revenue Manual shows that a private tank can be constructed by a private individual, either in his own land or on Government unoccupied land. It also shows that private individuals may restore Government tanks. Therefore it follows that when a tank is described as `private’ in the Tank Register, that by itself will not establish that the land where the tank is situated is private land. When a tank enumerated in the Tank Register maintained by the Government, adds to the description of the tank, by the word `private’, it merely shows that the tank in question had been constructed by a private individual but it does not lead to the inference that the land on which the tank is constructed belonged to a private individual. [Para 7] [917-G-H; 918-A-B] 3.3. Para 236 of the Manual shows that a private land on being converted into a private tank would not get full exemption or remission from payment of land assessment, but was extended only a partial remission. In fact, if a tank was constructed on a private land, the land would be continued to be assessed to land revenue with appropriate partial remission. On the other hand, if it is a Government unoccupied land on which a private individual is permitted to construct the tank, it will continue to be shown as Government Kharab land and will not be subjected to any land revenue. In this case neither Survey No.30 nor Survey No.31 is assessed to land revenue and are shown as Government Kharab land in all revenue records (vide Ex. D7, D8, D9, D10, D11 and D12). Unarable lands including tanks are described as Phut Kharab. The Tank register extract (Ex.D15) and other documents produced by respondents show that the tank was breached and BDA had formed a layout in a major portion of the tank land and the remaining area was being developed into a park by the Forest Department. Therefore, Ex. P18 proves that Survey No.30 was not a land owned by a private individual and that it belonged to Government. [Para 8] [918-C-F] 3.4. Ex. P1 which is an extract of Phut Pahani (Inspection Statement showing the old survey numbers and corresponding new numbers of lands and full information regarding tenure and occupancy of the land, described in the Mysore Revenue Manual), did not relate to nor provide proof of ownership of any land. Ex.P1 merely disclosed that when it was inspected on 18.6.1871, survey no.25 of Jakkasandra measuring 10 acres 28 guntas was a tank and that it was repaired by predecessor of appellant. This document therefore does not help the appellants to prove title of their predecessor to the tank. Unless the title to the land on which the tank is situated is established, the mere fact that the tank was shown to have been maintained or repaired by any private individual will not make him the owner of the tank. At best it will show that the tank was maintained by him as a private tank for the purpose of irrigation. [Para 10] [919-D-F] 3.5. Ex.P2 (settlement deed) does not refer to the tank. It does not give the total extent of the land. It does not disclose whether Survey. Nos. 30 and 31 formed part of Dalavai Dinne owned by the ancestors of appellants at any point of time. The settlement deed merely shows that the predecessor of the appellants had settled certain land, known as Dalavai Dinne which was assessed to land revenue, to his son and does not help the appellant to establish title to either survey Nos. 30 or 31. While the settlement deed describes the land settled as land assessed to land revenue, significantly, Survey Nos. 30 or 31 which are now claimed by the appellants as part of Dalavai Dinne were never assessed to land revenue, but were always described as Government Kharab land. Ex.P1 and P2 are therefore of no assistance to the appellants. [Para 11] [919-G-H; 920-A-C] 3.6. Ex.P.10 and P11 are contract notes executed by contractors said to have been engaged by the predecessor of the appellants for execution of certain works relating to the tank at Dalavai Palya. They are not signed by the predecessor of the appellants. Even assuming that the documents (Ex.P10 and P11) are genuine and related to a tank situated in Survey No.30, they would not help the appellants to establish title to Survey No. 30, or Survey. No. 31. [Para 12] [920-E-F] 3.7. Ex.P12 is said to be the Tank Majkur Register Extract maintained by the Assistant Superintendent of Land Records, Bangalore Sub-Division, showing that Re-survey No.30 measured 11 acres 21 guntas and the entire extent was karab (tank) and it corresponded to old survey No.25. It also records that the tank was dug by and was later repaired by predecesors of the appellants about 25 years ago and thereafter no one has repaired it and it is in the state of good repair. The date of inspection or entry is not mentioned and it does in no way help the appellants to prove title to the land. [Para 13] [920-H; 921-A-B] 3.8. The land acquisition reference proceedings relied upon by the appellant did not relate to Survey Nos. 30 or 31. It is related to other lands and the issue before the court was a dispute between the appellant and some other claimants. There is no adjudication of the title of the appellants or their ancestors in regard to Survey Nos. 30 or 31. Nor is there any finding by the court which can support the appellants’ claim to Survey No.30 or Survey No. 31. Therefore, the High Court has rightly rejected the said judgment as not relevant for examining the title of the appellants. [Para 14] [921-C-E] 3.9. The first appellant had earlier filed a suit for a permanent injunction, claiming that he was in possession of Survey. No. 30 (tank). That suit and appeal therefrom were dismissed by recording a finding that he failed to establish possession. The observation of the High Court while dismissing the appeal from the decision in the earlier injunction suit, that the dismissal will not come in the way of plaintiff establishing title in the subsequent suit for declaration of title, will not dilute the finding recorded by the trial court and High Court that the first appellant was not in possession, which has attained finality. [Para 20] [925-F-H; 926-A] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1588-1589 of 2008. From the Judgment & Order dated 4.9.2007 of the High Court of Karnataka at Bangalore in R.F.A. No. 448 & 529 of 1996. Raju Ramachandran, Sanjay R. Hegde, Joseph Pookkatt, Bhardwaj, S. Iyengar, S.N. Bhat for the Appellants. S.S. Javeli, Basava Prabhu Patil, S.K. Kulkarni, M. Gireesh Kumar, A.S. Kulkarni, Vijay Kumar, Anitha Shenoy, Rashmi Nanda Kumar for the Respondents.
R. HANUMAIAH & ANR. v. SECRETARY TO GOVERNMENT OF KARNATAKA REVENUE DEPARTMENT & ORS. (Civil Appeal Nos. 1588-1589 of 2008) FEBRUARY 24, 2010* [R.V. Raveendran and Swatanter Kumar, JJ.] 2010 (4) SCR 904 The Order of the Court was delivered by ORDER R.V. RAVEENDRAN J. 1. These appeals by special leave are by the plaintiffs … Continue reading
As second respondent had looked after their mother and their property, the appellants agreed for her continuing as licencee for some time. She did not however vacate=Normally this Court will not, in exercise of jurisdiction under Article 136 of the Constitution of India, interfere with finding of facts recorded by the first appellate court, which were not disturbed by the High Court in second appeal. But what should happen if the first appellate court reverses the findings of fact recorded by the trial court by placing the burden of proof wrongly on the plaintiffs and then holding that the plaintiffs did not discharge such burden; or if its decision is based on evidence which is irrelevant or inadmissible; or if its decision discards material and relevant evidence, or is based on surmises and conjectures; or if it bases its decision on wrong inferences drawn about the legal effect of the documents exhibited; and if grave injustice occurs in such a case on account of High Court missing the real substantial question of law arising in the appeal and erroneously proceeds on the basis that the matter does not involve any question of law and summarily dismisses the second appeal filed by the= The fact that was proved was possession of suit portions which was not in dispute, but not tenancy in regard to the suit portions, which was in dispute. In the absence of any documentary evidence showing the tenancy or payment of rent, the evidence of PWs.1 and 2 is more trustworthy and probable than the uncorroborated interested evidence of DW1. (The evidence of DWs. 2 and 3 does not have any bearing on the issue of tenancy claimed by respondents). We therefore find that the judgments of the first appellate court and the High Court are unsustainable and the finding of the trial court that respondents are gratuitous licencees was correct and justified.
1 Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 8400-8401 OF 2011 [Arising out of SLP (C) Nos. 6095-6096/2009] Dnyaneshwar Ranganath Bhandare & Anr. … Appellants Vs. Sadhu Dadu Shettigar (Shetty) & Anr. … Respondents J U D G M E N T R.V.RAVEENDRAN, J. Leave granted. Parties will be … Continue reading
admissibility of compact disc in evidence- The amended definition of “evidence” in section 3 of the Evidence Act, 1872 read with the definition of “electronic record” in section 2(t) of the Information Technology Act 2000, includes a compact disc containing an electronic record of a conversation. Section 8 of Evidence Act provides that the conduct of any party, or of any agent to any party, to any suit, in reference to such suit, or in reference to any fact in issue therein or relevant thereto, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. In R.M Malkani vs. State of Maharastra – AIR 1973 SC 157, this court made it clear that electronically recorded conversation is admissible in evidence, if the conversation is relevant to the matter in issue and the voice is identified and the accuracy of the recorded conversation is proved by eliminating the possibility of erasure, addition or manipulation. This Court further held that a contemporaneous electronic recording of a relevant conversation is a relevant fact comparable to a photograph of a relevant incident and is admissible as evidence under Section 8 of the Act. There is therefore no doubt that such electronic record can be received as evidence.
Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.2795-2796 OF 2011 [Arising out of SLP [C] Nos.18211-18212 of 2010] K.K.Velusamy … Appellant vs. N.Palanisamy … Respondent J U D G M E N T R.V.RAVEENDRAN,J. Leave granted. 2. The respondent herein has filed a suit for specific performance (OS No.48/2007) alleging … Continue reading
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