CASE DETAILS v. JOSEPH & Ors.

Held : For the bar to apply, the civil suit instituted would have to be against an order passed by the competent authority under this Act in respect of unauthorised occupation of Government land – On facts, original notice was appealed before the Collector who dismissed the same and the said order was not challenged –Suit for declaration was fi led before the Civil Court seeking 266 SUPREME COURT REPORTS [2023] 11 S.C.R. a permanent injunction against any proceedings in respect of eviction and also possession and title of the land in question – Disputed property being a Government property, was the only ground that was met – Primary requirement of the civil suit being in connection with an action taken by the Government was not met thus, the bar enshrined in s.20 cannot be applied. [Paras 17-19] Practice and procedure – Litigation pending for a long time – Remittance of matter: Held: Prudence would not be served by sending back the matter pending for four decades. [Para 12] LIST OF CITATIONS AND OTHER REFERENCES Santosh Hazari v.

Purushottam Tiwari (2001) 3 SCC 179 : [2001] 1 SCR 948; Chandrabhan v. Saraswati 2022 SCC OnLine SC 1273; Umerkhan v. Bismillabi (2011) 9 SCC 684 : [2011] 9 SCR 551; Singaram v. Ramanathan Civil Appeal No. 4939 of 2021; Radhamoni Debi v. Collector of Khulna 1900 SCC OnLine PC 4; Maharaja Sri Chandra Nandi v. Baijnath Jugal Kishore AIR 1935 PC 36; Parsinni v. Sukhi (1993) 4 SCC 375:[1993] 2 Suppl. SCR 315; Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC 779 : [2004] 1 Suppl. SCR 255; M. Venkatesh v. Bangalore Development Authority (2015) 17 SCC 1 : [2015] 11 SCR 454; Ravinder Kaur Grewal v. Manjit Kaur (2019) 8 SCC 729 : [2019] 11 SCR 74; M Siddiq (D) through Lrs v. Mahant Suresh Das & Ors. (2020) 1 SCC 1 : [2019] 18 SCR 1; Thakur Kishan Singh v. Arvind Kumar (1994) 6 SCC 591 : [1994] 3 Suppl. SCR 199; Gaya Prasad Dikshit v. Dr. Nirmal Chander and Anr. (1984) 2 SCC 286 : [1984] 2 SCR 287; Mallikarjunaiah v.

Nanjaiah (2019) 15 SCC 756 : [2019] 6 SCR 1073; Annakili v. A. Vedanayagam (2007) 14 SCC 308 : [2007] 11 SCR 517; Des Raj and Others v. Bhagat Ram (2007) 9 SCC 641 : [2007] 2 SCR 892; L.N. Aswathama v. P. Prakash (2009) 13 SCC 229 : [2009] 10 SCR 615; Chatti Konati Rao v. Palle Venkata Subba Rao (2010) 14 SCC 316 : [2010] 15 SCR 923; Brijesh Kumar & Anr. v. Shardabai (dead) by LRs. (2019) 9 SCC 369 : [2019] 14 SCR 964; Gurudwara Sahab v. Gram Panchayat Village Sirthala (2014) 1 SCC 669; Narasamma & Ors. v. A. Krishnappa (Dead) Through LRs. (2020) 15 SCC 218 : [2020] 7 SCR 528; Balkrishna v. Satyaprakash (2001) 2 SCC 498 : [2001] 1 SCR 480; State of Rajasthan v. Harphool Singh (2000) 5 SCC 652 : [2000] 3 SCR GOVERNMENT OF KERALA & ANR. v. JOSEPH AND OTHERS 267 958; Mandal Revenue Offi cer v. Goundla Venkaiah (2010) 2 SCC 461; V. Rajeshwari v. T.C. Saravanabava (2004) 1 SCC 551 : [2003] 6 Suppl. SCR 927; State of Uttrakhand v.

Mandir Sri Laxman Sidh Maharaj (2017) 9 SCC 579 : [2017] 14 SCR 257; Dharampal (Dead) v. Punjab Wakf Board (2018) 11 SCC 449 : [2017] 8 SCR 316; Annasaheb Bapusaheb Patil v. Balwant (1995) 2 SCC 543 : [1995] 1 SCR 88; Mohan Lal v. Mirza Abdul Gaff ar (1996) 1 SCC 639 : [1995] 6 Suppl. SCR 638; P.T. Munichikkanna Reddy v. Revamma (2007) 6 SCC 59 : [2007] 5 SCR 491; Janata Dal Party v. Indian National Congress (2014) 16 SCC 731 : [2014] 1 SCR 747; State of Haryana v. Mukesh Kumar (2011) 10 SCC 404 : [2011] 14 SCR 211 – referred to. Perry v. Clissold [1907] A.C. 73 – referred to. OTHER CASE DETAILS INCLUDING IMPUGNED ORDER AND APPEARANCES CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3142 of

2010. From the Judgment and Order dated 05.08.2009 of the High Court of Kerala at Ernakulam in SA No. 740 of 1995. Appearances: Nishe Rajen Shonker, Mrs. Anu K Joy, Abraham C. Mathew, Alim Anvar, Advs. for the Appellants. P. Vinay Kumar, K. Parameshwar, Ms. Arti Gupta, Ms. Kanti, Chinmay Kangokar, Advs. for the Respondents. JUDGMENT/ORDER OF THE SUPREME COURT JUDGMENT SANJAY KAROL J.

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 fi ndings 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. 268 SUPREME COURT REPORTS [2023] 11 S.C.R. Background

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 fi led, is that Joseph had acquired title to the land of which he had been in possession and in continued enjoyment of, since 1940.

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 fi led against the order of the Tahsildar.

Legal representatives of the claimants fi led 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 fi led by the State, on the ground of the non-opportunity of production of evidence as also cross-examination of the witnesses for the State, confi rmed its original decree with a judgement and order dated 21st July 1990. First Appeal

The question, the Court in its wisdom framed for its consideration was whether the plaintiff s(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 fi led 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 fi led within one year of the date of notice. In this regard, the notice in the present case was issued on 1 Hereaft er referred as Claimants. 2 Hereinaft er, Th e Act GOVERNMENT OF KERALA & ANR. v. JOSEPH AND OTHERS [SANJAY KAROL, J.] 269 22nd February, 1982 and the suit was fi led on 14th April, 1983 thereby being outside the permissible limit of one year.

5.2 It was observed that the witnesses produced by the plaintiff s were “rendering lip-service to the plaintiff s” 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 plaintiff s, takes note of improvements made on thedisputed 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 plaintiff s could not adduce any evidence to prove their possessionof thedisputed property for more than the statutory period of 30 years. As per the of testimony of PW 1, the plaintiff swere residingon the land on the south of the disputed property before 1940. However, no other record was taken to prove the possession of the plaintiff s 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” oron 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 requirements were absent in the case. Lastly it was held that just because it appears that the order of the AssistantCollector appears to have been passed as if Avira (son of Joseph, respondent herein) was alive, even though the legal representatives applied to be impleaded, it could not be expected of quasi-judicial authorities to follow the procedure for amendment of cause title with the same rigidness as observed by the Civil Court and that those seeking to be impleaded owed a duty to satisfy the Court as to what became of their application for impleadment. Just because the order has been presumedly passed against a person no longer in the world of living, does not give the representatives of the plaintiff s (respondents herein) to treat the same as nullity.

5.5 In such terms, the judgment and decree passed by the Trial Court dated 21stJuly, 1990 was set asidevide judgment and order dated 3rd April, 1995. Second Appeal-The Impugned Judgement

The learned Court below in its judgement dated 5th August, 2009 examined the decisions that led to the appeal before it and held that the 270 SUPREME COURT REPORTS [2023] 11 S.C.R. lower Appellate Court’s approach stating that the suit was barred by virtue of the Act was not a good law, as the suit fi led by the respondents herein was a suit for declaration of perfected title by virtue of adverse possession and not, a challenge against the notice issued by the Tahsildar. The second aspect on which the High Court diff ers with the lowerAppellate Court was on the point that the testimony of PWs1 to 6 stood unshaken.

6.1 It was observed that the Tahsildar, shorn of any basis had estimated the period of encroachment as 16 years as against the claim of 40 years. It was then held that on perusalof evidence as also other facts regarding the improvements in the property showed that the encroachment was done long before the L.C. proceedings in the suit.

6.2 It was concluded that the fi nding of there being no scope of adverse possession being given to the respondents herein is fallacious and is based on erroneous consideration of evidence. In that event, they would be entitled to the relief of adverse possession upon land which, as it stands recorded in the impugned judgement, they have been in possession for over 50 years.

6.3 In that view of the matter, the judgement of the Munsiff Court was upheld, granting the claimants adverse possession over the land in question and, overturning the judgement rendered by the Court of First Appeal. Consideration By This Court

In deciding the present dispute, this Court must examine the same from two angles. One, whether the Judgement impugned, arising out of Second Appeal meets the established criteria for Second Appeal or not?; andtwo, whether the respondents herein are entitled to the relief of adverse possession or is the claim so made, barred by the Kerala Land Conservancy Act,1957?

For an appeal to be maintainable under Section 100, Code of Civil Procedure(‘CPC’, for brevity) it must fulfi l certain well-established requirements. The primary and most important of them all is that the appeal should pose a substantial question of law. The sort of question that qualifi es this criterion has been time and again reiterated by this Court. We may only refer to Santosh Hazari v. Purushottam Tiwari3 (three-Judge Bench) wherein this Court observed as follows: 3 (2001) 3 SCC 179 GOVERNMENT OF KERALA & ANR. v. JOSEPH AND OTHERS [SANJAY KAROL, J.] 271 “12. The phrase “substantial question of law”, as occurring in the amended Section 100 is not defi ned in the Code. The word substantial, as qualifying “question of law”, means — of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with — technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffi xing the words “of general importance” as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. …

A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be “substantial” a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law “involving in the case” there must be fi rst a foundation for it laid in the pleadings and the question should emerge from the sustainable fi ndings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the fi rst time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.” (Emphasis supplied) The principles laid down herein stood recently reiterated in Chandrabhan v. Saraswati4 (two-Judge Bench). 4 2022 SCC OnLine SC 1273 272 SUPREME COURT REPORTS [2023] 11 S.C.R.

A perusal of the judgement impugned does not refl ect any question of law, either substantial or “involving in the case” to have been framed by the Court in the Second Appeal. The Section 100, CPC jurisdiction is not akin to the jurisdiction conferred under Section 96 of CPC wherein it is open for the Court to consider both questions of fact and law. This jurisdiction is exercisable only when the Court is convinced that the dispute at hand involves a substantial question of law, and proceeding under this jurisdiction sans framing questions of such nature renders the proceedings to be “patently illegal.” [Umerkhan v. Bismillabi5 (two-Judge Bench)

Recently, a Bench of two learned Judges in Singaram v. Ramanathan6 held as under:

This is undoubtedly subject to various well known exceptions which, however, cannot permit the Second Appellate Court to interfere with the fi ndings of fact as a matter of course. Such restrictions are placed on the High Court in order that there is fi nality to litigation at a particular level in the hierarchy of Courts. The limitation on the exercise of power by the High Court in the Second Appeal interfering with the judgment of the First Appellate Court is premised on high public policy. This limitation is sought to be secured by insisting upon the requirement that a Second Appeal is considered only when there is a substantial question of law. Therefore, the existence of substantial question of law and the judgment which revolves around answering the substantial questions of law are not mere formalities. They are meant to be adhered to.

(Emphasis supplied)

In view of the principles laid down in the above stated judgements, the impugned judgement must be faulted with for not complying with the well-established contours of Section 100, CPC.

We have hitherto observed that the instant litigation has continued for a considerable period of time, i.e., four decades. Prudence would not be served by sending this matter back to the court below for consideration in light of the above discussion and, therefore, with an aim to put an end to the matter, this Court proceeds to examine the claim of adverse possession on its own merits, as is so argued across the bar. 5 6 Civil Appeal No. 4939 of 2021 (2011) 9 SCC 684 GOVERNMENT OF KERALA & ANR. v. JOSEPH AND OTHERS [SANJAY KAROL, J.] 273

Thus, this Court is required to consider as to whether the claimants have perfected their title over the property, subject matter of dispute, by adverse possession.

14. It is contended by the State that a question of adverse possession does not arise, on two grounds –one, that the land is undisputedly Government land and two, that the respondents had possession of such land only for a period of 15 years which is less than required period of 30 years, after which adverse possession could be claimed against the State. Further, it is submitted that Section 20 of the Act bars any suit or other legal proceedings against the Government in respect of any action taken by it under this Act in respect of unauthorised occupation of land, and, since the notice which initiated the present proceedings under the instant act, the proceedings that it gave rise to, were barred by law.

The provision reads as under-

20. Saving of suits by persons aggrieved by proceedings under this Act- No suit against the Government shall be entertained in any civil Court in respect of any order passed under this act except upon the ground and in respect of which such order has been passed is not and which is the property of government whether a poramboke or not. Provided that civil courts shall not take cognizance of any such suit has it shall be instituted within one year from the date on which the cause of action arose.

The Court of First Appeal records that the instant litigation is barred by the above stated provision of law as the suit for injunction had been fi led in a manner of retaliation against the notice issued by the Tehsildar. The Second Appellate Court, per contra, records that the suit was not a suit for injunction but a suit for declaration of title, same having come to rest upon the respondents herein by virtue of adverse possession and, therefore, the above provision would not impede the proceedings.

A reading of the provision barring the jurisdiction of civil suits in respect of proceedings initiated under the act, reveals the following ingredients for such a bar to apply : i) no suit in any Civil Court; ii) in respect of any order under this Act; 274 SUPREME COURT REPORTS [2023] 11 S.C.R. iii) the only ground upon which such a suit would be entertained is if the notice issued is in regards of property that does not belong to the Government; iv) the entertainment of a suit under the exception described in point No.(iii) is also circumscribed by the time limit of one year from the date of cause of action.

Applying the above-identifi ed ingredients to the facts of the present case, for the bar to apply the civil suit instituted would have to be against an order passed by the competent authority under this Act in respect of unauthorised occupation of Government land. A perusal of the record shows that the original notice dated 3rd August,1982 was appealed before the Collector, Idduki, who dismissed the same. No challenge to the said order of dismissal was fi led by the legal representatives of Avira. The recourse to the law that was taken, was in fact a suit for declaration before the Civil Court fi led on 14th April, 1983 seeking a permanent injunction against any proceedings in respect of eviction and also possession and title of the land in question. The third ground i.e., the disputed property being a Government property, is the only ground that is met. The same is an undisputed fact.

However, the primary requirement of the civil suit being in connection with an action taken by the Government, remains unmet and therefore, on the basis of the third ground alone, the bar enshrined in this Section cannot be applied to the present case. Whether or not the respondents herein have any right over the above stated Government land is a question that is required to be considered independently.

The principle of adverse possession has been defi ned by the Privy Council in Perry v. Clissold7 in the following terms:

It cannot be disputed that a person in possession of land in the assumed character of the owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is forever extinguished and the possessory owner acquires an absolute title.

Before proceeding to do so, it is essential to take note of the law governing such a claim. After a perusal and consideration of various 7 [1907] A.C. 73 GOVERNMENT OF KERALA & ANR. v. JOSEPH AND OTHERS [SANJAY KAROL, J.] 275 judgements rendered by this Court, the following principles can be observed:

21.1 Possession must be open, clear, continuous and hostile to the claim or possession of the other party; all three classic requirements must coexist- nec vi, i.e., adequate in continuity; nec clam, i.e., adequate in publicity; and necprecario, i.e., adverse to a competitor, in denial of title and knowledge; (a) In Radhamoni Debi v. Collector of Khulna8, the Privy Council held that- “The possession required must be adequate in continuity, in publicity, and in extent to show that it is possession adverse to the competitor.” (b) Further, the Council Maharaja Sri Chandra Nandi v. Baijnath Jugal Kishore9 observed- “It is suffi cient that the possession should be overt and without any attempt at concealment, so that the person against whom time is running ought, if he exercises due vigilance, to be aware of what is happening.” (c) A Bench of three judges of this Court in Parsinni v. Sukhi10 held

Party claiming adverse possession must prove that his possession must be ‘nec vi, nec clam, necprecario’ i.e. peaceful, open and continuous. The possession must be adequate, in continuity, in publicity and in extent to show that their possession is adverse to the true owner.

(d) In Karnataka Board of Wakf v. Govt. of India (two-Judge Bench)11 it was held:- “It is a well-settled principle that a party claiming adverse possession must prove that his possession is “nec vi, nec clam, necprecario”, that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner.