High Court
Legal Reasoning
1 sa 320.95.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 320 OF 1995Motiram Bajirao Patil,age 59 years, Occ. Agriulture,R/o Asankheda, Tq. Pachora,District Jalgaon.Died through L.Rs.Dattatraya Motiram Patil,age 37 years, Occ. Service,R/o Asankheda (Bk), Tq Pachora,District Jalgaon.Appellant. Orig. plaintiff.VERSUS1.The State of Maharashtra,Through Government Pleader,High Court, Aurangabad.2.Group Grampanchayat Asankheda,Khurd and Budruk, Tq. Pachora,District Jalgaon. Respondents. Orig. defendants....Advocate for Appellant : Mr. S B. Deshpande SeniorCounsel a/w Mr. P. A. Deshpande I/b Mr. S.P. Tiwari AGP for Respondent no.1 : Mr. V S BadakhAdvocate for Respondent no.2 : Mr. S. V. DixitCORAM :S. G. CHAPALGAONKAR, J.Reserved on :April 25, 2025Pronounced on:May 05, 2025.JUDGMENT :-1.The appellant/original plaintiff impugns thejudgment and decree dated 31.7.1995 passed by the learned 2 sa 320.95.odtDistrict Judge, Jalgaon, in Regular Civil Appeal no.289 of 1989thereby upholding the judgment and decree dated 30.9.1989passed by the learned Civil Judge S.D., Jalgaon, inR.C.S.No.619 of 1985 thereby dismissing suit of the plaintiffseeking the relief of declaration of ownership and perpetualinjunction claimed against defendant no.1/State ofMaharashtra. (Parties hereinafter are referred to as per theiroriginal status).2.Appellant/plaintiff instituted suit claiming therelief of declaration of ownership and perpetual injunction inrespect of the suit plot which is part and parcel of gat no.147of village Asankhede, more particularly, described in the plaint.According to plaintiff, suit plot was possessed by his forefatherssince 150 to 200 years. Plaintiff continued in possession andenjoyment of the suit property as owner. Plaintiff has installeda flour-mill and constructed cattle-shed as well as water pond.Defendant no.2 village Panchayat mutated name of plaintiff’sfather in Panchatyat record under Resolution No.46 dated22.12.1964. Since then, defendant no.2 is receiving tax.Plaintiff asserts that he has no documentary evidence to showhis ownership, but his long standing and continuous possession 3 sa 320.95.odtwould rest title upon him by prescription. Hence, in thealternate, he claims ownership by way of adverse possession.According to plaintiff, on false complaint made by a villager,S.D.O. Chalisgaon made an inquiry. Eventually, Tahsildar,Pachora ordered plaintiff to vacate the suit plot. Hence,plaintiff required to approach Court seeking relief, as claimed.3.Defendant no.1 refuted plaintiff’s claim, either asto his own title or acquisition of same by adverse possession. Itis pleaded that suit plot is meant for public use. Plaintiffencroached on area of suit plot causing nuisance to public. TheGovernment requires land for implementation of variousschemes. Resolution of the village Panchayat is inconsistent toSection 53 and 56 of the village Panchayat Act.The Trial Court framed issues based on pleadingsof the parties and finally dismissed the suit. In appeal filed bythe plaintiff before the District Judge, Jalgaon, the decree aspassed by the Trial Court is confirmed.4.Aggrieved plaintiff filed present Second Appeal,which has been admitted by this Court vide order dated4.3.1997 on ground nos.3,5,6,7,9,11 and 17, being substantialquestions of law, which reads thus :- 4 sa 320.95.odti.The courts below have failed to exercisejurisdiction vested in them, in not considering thefact that long possession under section 110 of theEvidence Act is proof of title.ii.Whether the findings of the Courts below that theappellant has not pleaded the adverse possessionproperly in the plaint is legally correct.iii.The Courts below have failed to consider that theappellant himself claims ownership over the suitproperty for more than 200 years continuouslyand without interruption to the knowledge.iv.The Courts below have wrongfully held that theappellant is not entitled to raise alternative plea ofadverse possession, when he himself claims ownerof the suit property.v.Whether the entry of ownership by theGrampanchayat recording the name of theplaintiff’s father is not proof of ownership.vi.Whether the inference drawn by the Courts belowfrom the statement Exh.55, that the appellant wasof the opinion, that, by adverse possession iscorrect, when the appellant in his statement onoath clearly deposed the circumstances underwhich he submitted application for allotment ofthe plot to him.Vii.Whether the long possession, more than 30 yearsover the suit property, where several activities arebeing carried out by the appellant in the presenceof village officers and Grampanchayat under histitle and when the flour mill also being run by
Legal Reasoning
5 sa 320.95.odthim, does not establish the knowledge to theGovernment of his hostile possession.”5.Mr. Sanjeev Deshpande, learned senior advocatevehemently submits that there is voluminous evidencedepicting long standing possession of plaintiff over suit plot. Inthe year 1965, village Panchayat passed a Resolution andaccepted possession of plaintiff’s father and resolved to enterhis name in village Panchayat record as the owner of suit plot.Since then, tax has been paid to the village Panchayat. Hewould further submit that plaintiff has raised construction overthe suit plot. The same has been used openly without anyobjection. He would therefore submit that in view of section110 of the India Evidence Act, 1872 presumption as to title ofplaintiff arises. In absence of evidence in rebuttal, plaintiff isentitled for declaration of his ownership.6.In support of his submissions, he relies uponobservations of the Supreme Court of India in case of YerikalaSunkalamma and another Vs. State of Andhra Pradesh,Department of Revenue and others reported in 2025 DGLS(SC) 437. 6 sa 320.95.odt7.Mr. Deshpande, would further submit that sinceplaintiff is in settled possession, he cannot be evicted withoutfollowing the due process of law. Therefore, decree ofperpetual injunction to that extent could have been passed.8.In support of his contentions, he relies upon theobservations of the Supreme Court of India in case of RameGouda (D) by L.Rs. M. Varadappa Naidu (D) by L.Rs. Reportedin 2003 DGL (SC) 1059.9.Per contra, Mr. V.S. Badakh, learned AGPappearing for respondent no.1 vehemently submit that therecannot be dispute that suit property belongs to the State.Plaintiff is asserting his own title and at same breath seeksdeclaration of his ownership on the basis of adverse possession.According to him, suit with conflicting pleas which aredetrimental to each other cannot be entertained. Mr. Badakhwould further submit that, assuming plaintiffs long standingpossession, other ingredients to treat his possession as adverseto title of defendant are absent. Both Courts have recordedconcurrent finding that plaintiff failed to establish his title oradverse possession for statutory period. Therefore, urges todismiss this second appeal. 7 sa 320.95.odt10.Having considered submissions advanced, it isapposite to refer to pleadings of plaintiff. The plaintiff assertsthat his forefathers acquired ownership of the land about 150to 200 years ago from then rural and since then generationsafter generation they are in possession. The suit property isnow fenced and there is construction of flour mill since 20 to25 years. Water tank and cow-shade is also constructed in theproperty. Plaintiff asserts that in the year 1965 an applicationwas moved to Village Panchayat by Karta of the family i.e.Bajirao Sadashiv Patil to mutate suit property in his name.Resolution No.15 to that effect is passed. It has been allottedhouse No.170. According to plaintiff, his family is enjoyingaforesaid property openly without any obstruction as ownerknown to the public at large. As such, apparently, plaintiffacquired the title by adverse possession.11.Plain reading of contents of plaint shows thatplaintiff is asserting his ownership based on title and in thealternate claiming title by adverse possession. At this stage,reference can be given to the observations of the SupremeCourt of India in case of State of Uttarakhand Mandir Vs.Mandir Sri Laxman Sidh Maharaj reported in (2017) 9 SCC 8 sa 320.95.odt579 that claim of independent title and adverse possession atthe same time amounts to contradictory pleas. Therefore,prima facie, this Court finds that claim of the plaintiff seekingdeclaration of independent title at one hand and adversepossession on the other hand would amount to self destructingpleas. Plaintiff can take alternative plea only when such pleacompliments or goes parallel with his other plea. Therefore, infacts of the present case, plaintiff cannot be allowed to rest hisclaim on the basis of self contradictory pleas.12.Mr. Deshpande, learned senior advocate appearingfor the appellant vehemently submits that section 110 of theIndian Evidence Act raises presumption of title owing to longstanding possession. According to him, once long standingpossession is established, plaintiff would be entitled to claimhis title by operation of law. By inviting attention of this Courtto the depositions of witnesses, he submit that plaintiff hasestablished his continuous possession for more than 35 to 40years. Defendants could not rebut presumption. Therefore,claim of plaintiff as to declaration of ownership needs to beaccepted. 9 sa 320.95.odt13.Before proceeding to consider the aforesaid limbof arguments, it is apposite to refer to section 110 of the Indianevidence Act, 1972, which reads thus :-110. Burden of proof as to ownership :-“When the question is whether any person is owner ofanything of which he is shown to be in possession, theburden of proving that he is not the owner is on theperson who affirms that he is not the owner.” 14.Mr. Deshpande, in deference to his argumentsrelies upon observations of the Supreme Court of India in caseof Yerikala (supra), particularly, on paragraph no.72 whichreads thus :-“72. The Section embodies the well-recognized principle thatpossession is prima facie proof of ownership. A personin possession is entitled to remain in possession untilanother person can disclose a better title under Section113 of the BSA. Therefore, once the plaintiff provesthat he has been in possession of the suit property, theburden of proving that the plaintiff is not the owner ison the defendant who affirms that the plaintiff is notthe owner. The Section does not make a distinctionbetween the Government and a private citizen. Section113 is, therefore, equally applicable where aGovernment claims to be the owner or challenges theownership of the plaintiff who is in possession of theproperty. It is not disputed that before the possession ofthe Subject Land was taken over, the plaintiffs were inpossession of the property for more than twenty years.The onus, therefore, under section 113 of the BSA wason the State to prove that the Government had asubsisting title to the Subject Land.75.. Section 113 of the BSA provides that when thequestion is whether any person is the owner ofanything of which he is shown to be in possession, theburden of proving that he is not the owner is on the 10 sa 320.95.odtperson who affirms that he is not the owner. Theapplication of this Section to lands claimed by theGovernment or the Municipality has been consideredby the Madhya Pradesh High Court in JagannathShivnarayan v. Municipal Commissioner, CityMunicipality, Indore reported in AIR 1951 MB 80.”15.It can be observed that, presumption under section110 of the Act is based on public policy. However, suchpresumption of the title as a result of possession can arise onlywhen facts disclose that no title vests in any party andpossession of the plaintiff is not prima facie wrongful. To rebutsuch presumption, party the defendants are required todisplace this claim of apparent title and to establish beneficialtitle in himself by leading satisfactory evidence. In short,presumption contemplated under section 110 is rebuttablepresumption in favour of a person, who holds lawfulpossession and contesting party fails to prove his title.16.Turning back to facts of the present case,defendant/State of Maharashtra filed written statementcontending that plaintiff is encroacher on suit property and hehas no lawful right to continue as such. It is pleaded that suitland is part of Gayran Land, which is required by theGovernment for implementing Government Schemes. It isfurther pleaded that village Panchayat has no right to deal with 11 sa 320.95.odtthe aforesaid land. Village Panchayat acted in contravention ofthe provisions of village Panchayat Act and passed theresolution in favour of plaintiff.17.Perusal of 7/12 extract shows that land gat no.147(old S.No.75) is recorded in name of group Grampanchayat,whereas, adjacent land gat no.148 is mutated in the name ofKhandu Patil. Except bare entry in village Panchayat recordbased on resolution of 1965, there is absolutely no material toshow possession of plaintiff or his forefather over the suitproperty. Although, plaintiff claims that his possession is since150 years, no documentary evidence is placed on record insupport of his contentions. The plaintiff simply relies uponoral evidence for that purpose, which would not be sufficientto establish continuous possession. Even from statement ofwitness Daulat Patil, it is brought on record that possession ofplaintiff is for last 40 years. Evidence of Daulat was recordedon 22.9.1989. In cross-examination he states that he cannottell exact year from which plaintiff is in possession of suit plot.He further clarifies his estimation as to plaintiffs possession isapproximate and tentative one. Another witness namely LalaPawar asserts about possession of plaintiff since his grand 12 sa 320.95.odtfather, but does not refer to particular year. Same is the casewith evidence of Devram Patil. Therefore, even from oralevidence relied upon by plaintiff, he could not bring on recordtheory of his possession for more than 30 years, which can beheld sufficient to raise presumption of his title.18.Evidently, land is mutated in the name of villagePanchayat in revenue record. Since 1985 onwards, plaintiffwas served with notices to vacate the premises. The 7/12extract from 1953 onward as to survey no.75 shows that nameof the Government has been consistently recorded. Lateron,name of village Panchayat brought on record as per order ofthe competent authority. Aforesaid evidence crystallize thatland is primarily owned by the Government and put intooccupation of village Panchayat. It is, therefore, evident thatdefendant holds title to suit property and some times after1960 to 1962 plaintiff came in possession. It is evident thatthis is not a case where defendants could not bring anymaterial to show their title so as to raise presumption ofplaintiffs title on the basis of possession.19.In a case of Yerikala (Supra), relied upon byappellant/plaintiff, plaintiff was dispossessed by the 13 sa 320.95.odtGovernment. Prior to that suit property was originally ownedby Harijana, who had mortgaged the same to Perugu SwamyReddy under the mortgage deed dated 6.6.1943. Laeron,Perugu Swami’s son filed suit for recovery of mortgage money.The decree was passed for sale of mortgaged property. In courtauction, one Karuva Ramanna purchased the land. He was putin possession under the court orders. Lateron Kuruva Soldland under the registered sale deed dated 10.12.1970 to fatherof the plaintiff, who enjoyed possession till his death.However, government dispossessed plaintiff without followingdue process of law. In this background, Supreme Courtobserved that presumption under section 110 would arise infavour of plaintiff when Government could not show title tothe property.20.In the present case, plaintiff is not in a position toplead and establish how his possession is legal or lawful. Thedefendant state is shown as owner in old revenue record.Hence basic ingredients to invoke presumption u/s 110 ofevidence act are absent in facts of present case. Since plaintifftook alternate plea of adverse possession reference can begiven to certain observations of the Supreme Court in case of T. 14 sa 320.95.odtAnjappa and Others Vs. Somlaingappa and Another reported in(2006) 7 SCC 570 which reads thus :-"13. It is well recognized proposition in law that merepossession however long does not necessarily means that itis adverse to the true owner. Adverse possession reallymeans the hostile possession which is expressly orimpliedly in denial of title of the true owner and in orderto constitute adverse possession the possession provedmust be adequate in continuity, in publicity and in extentso as to show that it is adverse to the true owner. Theclassical requirements of acquisition of title by adversepossession are that such possession in denial of the trueowner's title must be peaceful, open and continuous. Thepossession must be open and hostile enough to be capableof being known by the parties interested in the property,though it is not necessary that there should be evidence ofthe adverse possessor actually informing the real owner ofthe former's hostile action."21.Similarly in case of D. N. Venkatarayappaand Ors. Vs. State of Karnataka and Ors. reported in(1997) 7 SCC 567 Supreme Court of India observed asunder :-"Physical fact of exclusive possession and the animuspossidendi to hold as owner in exclusion to the actualowner are the most important factors that are to beaccounted in cases of this nature. Plea of adversepossession is not a pure question of law but a blended oneof fact and law. Therefore, a person, who claims adversepossession should show : (a) on what date he came intopossession, (b) what was the nature of his possession, (c)whether the factum of possession was known to the otherparty, (d) how long his possession has continued, and (e)his possession was open and undisturbed. A personpleading adverse possession has no equities in his favour.Since he is trying to defeat the rights of the true owner, itis for him to clearly plead and establish all facts necessaryto establish his adverse possession." 15 sa 320.95.odt22.Applying aforesaid exposition of law in facts of thepresent case, it can be observed that appellant/plaintiff failedto prove that he was in continuous uninterrupted possessionfor more than 30 years. There is nothing to prove his animusto enjoy the property adverse to title of the Government and toknowledge of the Government Officers. Therefore, Trial Courtas well as the Appellate Court has rightly observed that longstanding possession is not enough to establish title adverse toowner. In the present case, plaintiff did not admit title of theGovernment nor he pleaded the date since when his possessionbecame adverse. Concurrent findings as recorded by theCourts below are in consonance with pleadings and evidencecoupled with exposition of law by the Supreme Court of India.23.It is important to note here that when the suit isinstituted seeking declaration of title on the basis of adversepossession, it is incumbent upon the Courts to find out exacttenure of possession claimed by plaintiff whether hispossession is authorized or unauthorized or permissible. Incase of R. Hanumaiah Vs. Secretary to Government ofKarnataka, Revenue Department reported in (2010) 5 SCC 16 sa 320.95.odt203, Supreme Court explained as to how title suits againstGovernment are to be dealt with and observed thus :-“19. Suits for declaration of title against thegovernment, though similar to suits fordeclaration of title against privateindividuals differ significantly in some aspects.The first difference is in regard to thepresumption available in favour of thegovernment. All lands which are not theproperty of any person or which are not vestedin a local authority, belong to the government.All unoccupied lands are the property of thegovernment, unless any person can establish hisright or title to any such land. This presumptionavailable to the government, is not available toany person or individual. The second differenceis in regard to the period for which title and/orpossession have to be established by a personsuing for declaration of title. Establishingtitle/possession for a period exceeding twelveyears may be adequate to establish title in adeclaratory suit against any individual. On theother hand, title/possession for a periodexceeding thirty years will have to beestablished to succeed in a declaratory suit fortitle against government. This followsfrom Article 112 of Limitation Act, 1963, whichprescribes a longer period of thirty years aslimitation in regard to suits by government asagainst the period of 12 years for suits byprivate individuals. The reason is obvious.Government properties are spread over theentire state and it is not always possible for thegovernment to protect or safeguard itsproperties from encroachments. Many a time,its own officers who are expected to protect itsproperties and maintain proper records, eitherdue to negligence or collusion, create entries inrecords to help private parties, to lay claim ofownership or possession against thegovernment. Any loss of government property isultimately the loss to the community. Courtsowe a duty to be vigilant to ensure that publicproperty is not converted into private propertyby unscrupulous elements.” 17 sa 320.95.odt24.In light of the aforesaid discussion, there is nomerit in this Second Appeal. Second Appeal stands dismissed.Pending civil application, if any, also stands disposed of. 25.Mr. Tiwari, learned advocate appearing forappellant submits that, during pendency of the second appeal,there was interim protection in favour of appellant, that maybe continued since appellant may take chance by filing SLPbefore the Supreme Court.26.Considering the submissions advanced and factthat second appeal was pending for a long time, interim relief,that was in operation shall continue for a period of twelveweeks from today. ( S. G. CHAPALGAONKAR ) JUDGE...aaa-(fr)