State of H.P. & Ors v. Jai Dev (deceased) through LRs

Trial Court on 21.07.2007:

1. Whether the plaintiff has become the owner of the suit land by way of adverse possession, as alleged? OPP.

2. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction, as prayed? OPP.

3. Whether the suit is not maintainable, as alleged? OPD

4. Whether the plaintiff has no locus standi to sue as alleged? OPD

5. Whether the suit is barred by limitation, as alleged? OPD

6. Whether the plaintiff is having no cause of action to file the present suit, as alleged? OPD 5

7. Relief.

6. The parties were called upon to produce the evidence, and the plaintiff examined himself (PW1), Tula Ram (PW2) and Shiv Kumar (PW3). The defendants examined Yograj (DW1).

7. Learned Trial Court held that the plaintiff failed to prove the adverse possession. The plaintiff had not challenged the correctness of the acquisition. The evidence of the defendants showed that the land was being used for grazing cattle and growing fodder. Hence, the learned Trial Court answered issues 1 to 5 in negative, issue No.6 in the affirmative and dismissed the plaintiff’s suit.

8. Being aggrieved by the judgment and decree passed by the learned Trial Court, the plaintiff filed an appeal, which was decided by the learned District Judge, Mandi, District Mandi, H.P. (learned Appellate Court). Learned Appellate Court held that it was not disputed that some portion of the suit land was in exclusive ownership, and some portion was in possession of the plaintiff’s grandfather. The defendants claimed that the suit land was acquired along with the other land, but they did not produce any evidence of acquisition. The defendants failed to prove that they had taken possession of the suit land after its 6 acquisition. The revenue entries and the mutation were insufficient to prove the defendants’ possession. Learned Trial Court erred in holding that the suit land was validly acquired by the State of H.P. Hence, the learned Appellate Court allowed the appeal and set aside the judgment and decree passed by the learned Trial Court.

9. Being aggrieved by the judgment and decree passed by the learned Appellate Court, the defendants have filed the present appeal, which was admitted on the following substantial questions of law vide order dated 24.12.2012: -

1. Whether First Appellate Court committed error of law in ignoring 56 years long standing entries of ownership and possession of the defendants over the suit land for the last 56 years simply on the ground that the defendants have not produced the supporting documents of acquisition proceedings and Award of suit land on the basis of which revenue entries were made in favour of the defendants in the year 1955-56, particularly when fact of acquisition of suit land admitted by the plaintiff?

2. Whether the First Appellate Court had committed illegality in granting relief of declaration of ownership and possession to the plaintiff when only the claim of title on the basis of adverse possession as pleaded by the plaintiff was rejected, not upheld by both the Courts below?

3. Whether under law, a strong presumption of truth is attached to constant, long-standing revenue entries of ownership and possession of the defendants, which have not been rebutted by any oral or documentary evidence by 7 the plaintiff, the onus of rebutting the same heavily lies on the plaintiff?

4. Whether, once the acquired land and property vests in the defendants free from all encumbrances under Section 16 of the Land Acquisition Act, whether its original owner or their successors (in the present case, the plaintiff) has any right to claim adverse possession on such acquired land?

5. Whether the courts below erred in not deciding the issue of limitation when apparently the suit is time-barred on the face of it as land was acquired and mutation was attested 56 years ago in favour of the defendants?

6. Whether the First Appellate Court misconstrued and misread the case law referred to in the impugned judgment, which is neither applicable nor attracted to the facts and circumstances of the present case by any stretch of imagination?

10. I have heard Mr Ashok Sood, learned Senior Counsel, assisted by Mr Khem Raj, learned counsel for appellants No.1 and 2, M/s Akhil Mittal and Abhinav Purohit, learned counsel for appellant No.3, and Mr V.S. Chauhan, learned Senior Counsel, assisted by Mr Arsh Chauhan, learned counsel for respondents No.1 (a) to 1(c).

11. Mr Ashok Sood, learned Senior Counsel for appellants No.1 and 2, submitted that the learned Appellate Court erred in reversing the well-reasoned judgment passed by the learned Trial Court. The plaintiff had not obtained any demarcation to identify the land in his possession. The plaintiff 8 had admitted in the plaint that the land was acquired by the State of H.P., and this fact was not in dispute. The ingredients of adverse possession were not satisfied, and the learned Appellate Court erred in decreeing the suit. Hence, he prayed that the present appeal be allowed and the judgment and decree passed by the learned Appellate Court be set aside. He relied upon the judgments in Himat Rai vs. Kehar Singh 2008(4) CCC 778, H.N. Jagannath and others vs. State of Karnataka and others (2018) 11 SCC 104, Indira Nehru Gandhi vs. Raj Narain AIR 1975 SC 2299, Mandal Revenue Officer vs. Goundla Venkaiah and another (2010) 2 SCC 461, R. Hanumaiah and another vs. Secretary to Govt of Karnatka, Revenue Department and others (2010) 5 SCC 203, Charan Dass vs. State of H.P. 2024 (3) Shim. LC 1382, Jeet Singh (since deceased) through LRs vs. Molu Ram (since deceased) through L.Rs 2010(4) CCC 417, Karnatka Board of Wakf vs Government of India & Ors. 2004(3) CCC 326, Gajinder Singh & Ors. vs. Narotam Singh & Ors. 1996(1) CCC 384 (2) and Komiah vs. Subbulakshmiamal and Soundaraja decided on 01.03.2002 in support of his submission. He has also filed written arguments, which have been perused by me. 9

12. Mr Akhil Mittal, learned counsel for appellant No.3, submitted that the ingredients of adverse possession were not satisfied. It is not possible for the State and its instrumentalities to keep vigilance over a vast track of the open land owned by it. Therefore, a plea of adverse possession against the State should be viewed differently from the plea against a private person. The learned Appellate Court held that the defendants had failed to prove the taking of possession. An official act is presumed to be validly done. The revenue entries are recorded in the defendants’ favour, which proves their possession. There was no necessity to prove the delivery of possession. Learned Appellate Court erred in allowing the appeal. Hence, he prayed that the present appeal be allowed and the judgment and decree passed by the learned Appellate Court be set aside. He relied upon the judgments in Bangalore Development Authority vs. N. Jayamma (2017) 13 SCC 159, State of Kerala vs. Bhaskaran Pillai (1197) 5 SCC 432 and Smt. Mitra vs. State of Karnataka 2024 Supreme (Online) (KAR) 8868 in support of his submission.

13. Mr V.S. Chauhan, learned Senior Counsel for the respondents No.1 (a) to 1(c), submitted that the defendants had failed to produce any evidence to prove the delivery of 10 possession to them. The learned Trial Court had not adverted to this aspect, and the learned Appellate Court had rightly set aside the judgment passed by the learned Trial Court. Hence, he prayed that the present appeal be dismissed.

14. I have given a considerable thought to the submissions made at the bar and have gone through the records carefully. CMP No. 9616 of 2025 Application for Additional Evidence

15. Before adverting to the merits of the case, it is necessary to dispose of an application for leading the additional evidence. It has been asserted that the learned Appellate Court had reversed the well-reasoned judgment passed by the learned Trial Court on the ground that the defendants had not produced the record of the acquisition of the suit land. The defendant remained under the impression that the acquisition of the suit land was not in dispute. Mutation No. 41 was attested in the defendants’ favour on 24.03.1958 based on the acquisition, notification and the award. The record of acquisition could not be traced earlier, despite the best efforts. The copies of two 11 notifications published in H.P. Rajpatra on 21.06.1955 and

06.07.1956, and a letter written by the Land Acquisition Collector to Assistant Animal Husbandry Officer, Mandi, regarding taking possession of the suit land and disbursement of compensation to interested persons were traced. The applicants/defendants want to produce the letters to establish their defence. The documents are copies of public record and are, per se, admissible. Hence, it was prayed that the present application be allowed and the documents be taken on record.

16. The application is opposed by filing a reply, making a preliminary submission regarding the lack of maintainability. The contents of the application were denied on the merits. It was asserted that the applicants had failed to establish what prevented them from producing the record at the time of leading the evidence before the learned Trial Court. The record was in the applicants’ possession at the time of filing the main suit and leading the evidence. No explanation has been provided for not producing the documents earlier. The ingredients of Order 41 Rule 27 of CPC have not been satisfied. The application has been filed to fill the lacuna left by the applicants/defendants in their evidence. The additional evidence would cause a serious 12 prejudice to the other side. Therefore, it was prayed that the application be dismissed.

17. A rejoinder denying the contents of the reply and affirming those of the application was filed.

18. It was laid down by the Hon’ble Supreme Court in Sanjay Kumar Singh v. State of Jharkhand, (2022) 7 SCC 247: (2022) 3 SCC (Civ) 699: 2022 SCC OnLine SC 292 that the Appellate Court should not generally travel beyond the record of the Trial Court, but an exception has been created under Order 41 Rule 27 of CPC. It was observed at page 249: - “7. It is true that the general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. It may also be true that the appellate court may permit additional evidence if the conditions laid down in this Rule are found to exist and the parties are not entitled, as of right, to the admission of such evidence. However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case, and the evidence has a direct and important bearing on the main issue in the suit, and the interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed. Even one of the circumstances in which the production of additional evidence under Order 41 Rule 27 CPC by the appellate 13 court is to be considered is whether or not the appellate court requires the additional evidence so as to enable it to pronounce judgment, or for any other substantial cause of like nature.

8. As observed and held by this Court in A. Andisamy Chettiar v. A. Subburaj Chettiar [A. Andisamy Chettiar v. A. Subburaj Chettiar, (2015) 17 SCC 713 : (2017) 5 SCC (Civ) 514], the admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. It is further observed that the true test, therefore, is whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced.”

19. It was held in Sopanrao v. Syed Mehmood, (2019) 7 SCC 76: (2019) 3 SCC (Civ) 467: 2019 SCC OnLine SC 821 that where the documents were not filed before the learned Courts below, and no application was filed for leading additional evidence, the documents cannot be taken on record. It was observed at page 81: “13. At this stage, it would be pertinent to point out that the appellant-defendants, during the course of this appeal, have filed a number of applications to place on record certain documents which were not on the record of the trial court. No explanation has been given in any of these applications as to why these documents were not filed in the trial court. These documents cannot be looked 14 into and entertained at this stage. The defendants did not file these documents before the trial court. No application was filed under Order 41 Rule 27 of the Code of Civil Procedure, 1908, for leading additional evidence before the first appellate court or even before the High Court. Even the applications filed before us do not set out any reasons for not filing these documents earlier, and do not meet the requirements of Order 41 Rule 27 of the Code of Civil Procedure. Hence, the applications are rejected, and the documents cannot be taken into consideration.”

20. It was held in Jagdish Prasad Patel v. Shivnath, (2019) 6 SCC 82: (2019) 3 SCC (Civ) 112: 2019 SCC OnLine SC 492 that the additional evidence can be led when the Trial Court had refused to admit the evidence, the evidence was not available despite the exercise of due diligence and the evidence is required by the Court to effectively adjudicate the dispute pending before it. It was observed at page 96: - “29. Under Order 41 Rule 27 CPC, the production of additional evidence, whether oral or documentary, is permitted only under three circumstances, which are: (I) where the trial court had refused to admit the evidence, though it ought to have been admitted; (II) the evidence was not available to the party despite the exercise of due diligence; and (III) the appellate court required the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature. An application for the production of additional evidence cannot be allowed if the appellant was not diligent in producing the relevant documents in the lower court. 15 However, in the interest of justice and when satisfactory reasons are given, the court can receive additional documents.”

21. It was laid down by the Hon’ble Supreme Court in Sanjay Kumar Singh v. State of Jharkhand, (2022) 7 SCC 247, that additional evidence can be taken if the conditions laid down under Order 41 Rule 27 are satisfied. It was observed: -

7. It is true that the general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27CPC enables the appellate court to take additional evidence in exceptional circumstances. It may also be true that the appellate court may permit additional evidence if the conditions laid down in this Rule are found to exist and the parties are not entitled, as of right, to the admission of such evidence. However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case, and the evidence has a direct and important bearing on the main issue in the suit, and the interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed. Even one of the circumstances in which the production of additional evidence under Order 41 Rule 27CPC by the appellate court is to be considered is whether or not the appellate court requires the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature. 16

22. A similar view was taken in the North Eastern Railway Administration. vs. Bhagwan Das, (2008) 8 SCC 511, wherein it was observed: - “13. Though the general rule is that ordinarily the appellate court should not travel outside the record of the lower court and additional evidence, whether oral or documentary, is not admitted, but Section 107 CPC, which carves out an exception to the general rule, enables an appellate court to take additional evidence or to require such evidence to be taken subject to such conditions and limitations as may be prescribed. These conditions are prescribed under Order 41 Rule 27 CPC. Nevertheless, the additional evidence can be admitted only when the circumstances as stipulated in the said Rule are found to exist. The circumstances under which additional evidence can be adduced are: (i) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted [clause (a) of sub-rule (1)], or (ii) the party seeking to produce additional evidence establishes that, notwithstanding the exercise of due diligence, such evidence was not within the knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed [clause (aa), inserted by Act 104 of 1976], or (iii) the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause [clause (b) of sub-rule (1)].

14. It is plain that under clause (b) of sub-rule (1) of Rule 27 Order 41 CPC, with which we are concerned in the instant case, evidence may be admitted by an appellate 17 authority if it “requires” to enable it to pronounce judgment, or for any other substantial cause. The scope of the Rule, in particular of clause (b), was examined way back in 1931 by the Privy Council in Parsotim Thakur v. Lal Mohar Thakur [AIR 1931 PC 143]. While observing that the provisions of Section 107 as elucidated by Order 41 Rule 27 are clearly not intended to allow the litigant, who has been unsuccessful in the lower court, to patch up the weak parts of his case and fill up omissions in the court of appeal, it was observed as follows : (AIR p. 148) “… Under clause (1)(b), it is only where the appellate court ‘requires’ it (i.e. finds it needful) that additional evidence can be admitted. It may be required to enable the court to pronounce judgment, or for any other substantial cause, but in either case, it must be the court that requires it. This is the plain grammatical reading of the sub- clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but ‘when on examining the evidence as it stands some inherent lacuna or defect becomes apparent’.”

15. Again in K. Venkataramiah v. A. Seetharama Reddy [AIR 1963 SC 1526 : (1964) 2 SCR 35] a Constitution Bench of this Court while reiterating the aforenoted observations in Parsotim case [AIR 1931 PC 143] pointed out that the appellate court has the power to allow additional evidence not only if it requires such evidence “to enable it to pronounce judgment” but also for “any other substantial cause”. There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence “to enable it to pronounce judgment”, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Thus, the question 18 whether looking into the documents, sought to be filed as additional evidence, would be necessary to pronounce judgment in a more satisfactory manner, has to be considered by the Court at the time of hearing of the appeal on merits.”

23. In the present case, the only reason assigned for non-production of the evidence is that the learned Appellate Court had reversed the judgment of the learned Trial Court on the ground that the record of acquisition of the suit land was not produced, and it has become necessary to produce the record, which shows that the purpose of the application is to get rid of the findings recorded by the learned Appellate Court. This is not permissible, and the application is liable to be dismissed on this short ground alone.

24. The documents sought to be produced on record are not relevant to the adjudication of the dispute pending before the Court. The applicant is relying upon the photocopy of Rajpatra containing the notifications dated 21.06.1955 and

06.07.1956. The plaintiff has not disputed the fact that the suit land was acquired by the State. The only dispute is whether the possession was taken by the State as per the law or not. The applicant is seeking to produce on record a letter dated

11.04.1957 in which a request was made to Tehsildar, Sadar, 19 regarding the taking of possession. This document does not show whether the possession was, in fact, taken pursuant to the letter. The applicant also relied upon a letter dated 16.05.1957, which mentions the disbursal of the compensation of ₹1,50,000/- for the cattle breeding farm Katola. This document also does not show the delivery of the possession. Reliance is also placed upon the letter dated 17.06.1957. However, this letter mentions that all the houses and land had been vacated by the inhabitants, but in some cases, the threshing floors were still being occupied by ex-tenants due to the bad weather and foot and mouth disease among the livestock. These persons could not thrash their crop and were likely to finish it within a day or two, after which they would vacate the thrashing floor as well. The letter does not mention the suit land and will not assist the Court in adjudicating the dispute pending before the Court.

25. The applicant is seeking to rely upon the copies of Missal Haqiyat and jamabandies, which are not material in the absence of evidence of taking possession. 20

26. Therefore, the additional evidence cannot be taken on record. Consequently, the present application fails, and it is dismissed. Substantial Question of Law Nos. 1, 3 and 4:

27. These substantial questions of law are interconnected with each other and are being taken together for consideration.

28. It is undisputed that the suit land was acquired by the State. The plaintiff specifically asserted this fact in para 3 of the plaint. He admitted, while appearing as PW1, that he had filed an application (Ext.PW1/M). This application specifically mentions that the suit land and other land were acquired by the State for the Department of Animal Husbandry from the year 1955-56. Therefore, the fact that the suit land was acquired by the State of H.P. is undisputed.

29. Section 16 of the Land Acquisition Act provides that when the Collector has made an award under Section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government free from all encumbrances. It was laid down by the Hon’ble Supreme Court in Prahlad Singh v. 21 Union of India, (2011) 5 SCC 386, that the vesting of the acquired land in the government takes place as soon as possession is taken by the Collector after passing an award under Section 11. A legal presumption of vesting cannot be raised in favour of the acquiring authority without taking possession. It was observed: “13. We have given our serious thought to the entire matter and carefully examined the records. Section 16 lays down that once the Collector has made an award under Section 11, he can take possession of the acquired land. Simultaneously, the section declares that upon taking possession by the Collector, the acquired land shall vest absolutely in the Government free from all encumbrances. In terms of the plain language of this section, vesting of the acquired land in the Government takes place as soon as possession is taken by the Collector after passing an award under Section 11. To put it differently, the vesting of land under Section 16 of the Act presupposes actual taking of possession, and till that is done, the legal presumption of vesting enshrined in Section 16 cannot be raised in favour of the acquiring authority. Since the Act does not prescribe the mode and manner of taking possession of the acquired land by the Collector, it will be useful to notice some of the judgments in which this issue has been considered.

14. In Balwant Narayan Bhagde v. M.D. Bhagwat [(1976) 1 SCC 700] Bhagwati, J. (as he then was), speaking for himself and Gupta, J., disagreed with Untwalia, J., who delivered a separate judgment and observed: (SCC pp. 711-12, para 28) “28. … We think it is enough to state that when the Government proceeds to take possession of the land acquired by it under the Land Acquisition Act, 22 1894, it must take actual possession of the land, since all interests in the land are sought to be acquired by it. There can be no question of taking ‘symbolical’ possession in the sense understood by judicial decisions under the Code of Civil Procedure. Nor would possession merely on paper be enough. What the Act contemplates as a necessary condition of vesting of the land in the Government is the taking of actual possession of the land. How such possession may be taken would depend on the nature of the land. Such possession would have to be taken as the nature of the land admits of. There can be no hard-and-fast rule laying down what act would be sufficient to constitute the taking of possession of land. We should not, therefore, be taken as laying down an absolute and inviolable rule that merely going on the spot and making a declaration by beat of drum or otherwise would be sufficient to constitute taking of possession of land in every case. But here, in our opinion, since the land was lying fallow and there was no crop on it at the material time, the act of the Tahsildar in going on the spot and inspecting the land for the purpose of determining what part was waste and arable and should, therefore, be taken possession of and determining its extent, was sufficient to constitute taking of possession. It appears that the appellant was not present when this was done by the Tahsildar, but the presence of the owner or the occupant of the land is not necessary to effectuate the taking of possession. It is also not strictly necessary as a matter of legal requirement that notice should be given to the owner or the occupant of the land that possession would be taken at a particular time, though it may be desirable where possible, to give such notice before possession is taken by the authorities, as that would eliminate the possibility of any 23 fraudulent or collusive transaction of taking of mere paper possession, without the occupant or the owner ever coming to know of it.” (emphasis supplied)

15. In Balmokand Khatri Educational and Industrial Trust v. State of Punjab [(1996) 4 SCC 212] the Court negatived the argument that even after finalisation of the acquisition proceedings possession of the land continued with the appellant and observed: (SCC p. 215, para 4) “4. It is seen that the entire gamut of the acquisition proceedings stood completed by 17-4- 1976, by which date possession of the land had been taken. No doubt, Shri Parekh has contended that the appellant still retained their possession. It is now a well-settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the panchnama in the presence of panchas, and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession.”

16. In P.K. Kalburqi v. State of Karnataka [(2005) 12 SCC 489], the Court referred to the observations made by Bhagwati, J., in Balwant Narayan Bhagde v. M.D. Bhagwat [(1976) 1 SCC 700] that no hard-and-fast rule can be laid down as to what act would be sufficient to constitute taking of possession of the acquired land, and observed that when there is no crop or structure on the land, only symbolic possession could be taken. ****

18. In Sita Ram Bhandar Society v. Govt. of NCT of Delhi [(2009) 10 SCC 501 : (2009) 4 SCC (Civ) 268] and Omprakash Verma v. State of A.P. [(2010) 13 SCC 158 : (2010) 24 4 SCC (Civ) 823] it was held that when possession is to be taken of a large tract of land then it is permissible to take possession by a properly executed panchnama. A similar view was expressed in the recent judgment in Brij Pal Bhargava v. State of U.P. [(2011) 5 SCC 413 : (2011) 2 Scale 692]

19. The same issue was recently considered in Banda Development Authority v. Moti Lal Agarwal [(2011) 5 SCC 394], decided on 26-4-2011. After referring to the judgments in Balwant Narayan Bhagde v. M.D. Bhagwat [(1976) 1 SCC 700], Balmokand Khatri Educational and Industrial Trust v. State of Punjab [(1996) 4 SCC 212], P.K. Kalburqi v. State of Karnataka [(2005) 12 SCC 489], NTPC Ltd. v. Mahesh Dutta [(2009) 8 SCC 339 : (2009) 3 SCC (Civ) 375], Sita Ram Bhandar Society v. Govt. of NCT of Delhi [(2009) 10 SCC 501 : (2009) 4 SCC (Civ) 268], Omprakash Verma v. State of A.P. [(2010) 13 SCC 158 : (2010) 4 SCC (Civ) 823] and Nahar Singh v. State of U.P. [(1996) 1 SCC 434] this Court laid down the following principles:(Banda Development Authority case [(2011) 5 SCC 394], SCC p. 411, para 37) “(i) No hard-and-fast rule can be laid down as to what act would constitute taking of possession of the acquired land. (ii) If the acquired land is vacant, the act of the State authority concerned to go to the spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of possession. (iii) If a crop is standing on the acquired land or a building/structure exists, mere going on the spot by the authority concerned will, by itself, not be sufficient for taking possession. Ordinarily, in such cases, the authority concerned will have to give notice to the occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent 25 witnesses and get their signatures on the panchnama. Of course, the refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken. (iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land, and it will be sufficient that symbolic possession is taken by preparing an appropriate document in the presence of independent witnesses and getting their signatures on such a document. (v) If the beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3-A), and a substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the court may reasonably presume that possession of the acquired land has been taken.”

20. If the present case is examined in the light of the facts which have been brought on record and the principles laid down in the judgment in Banda Development Authority case [(2011) 5 SCC 394] it is not possible to sustain the finding and conclusion recorded by the High Court that the acquired land had vested in the State Government because the actual and physical possession of the acquired land always remained with the appellants and no evidence has been produced by the respondents to show that possession was taken by preparing a panchnama in the presence of independent witnesses and their signatures were obtained on the panchnama. 26

30. This Court also held in Jit Ram v. State of H.P., 2013 SCC OnLine HP 1376 that the delivery of symbolic possession or the possession merely on paper is not enough. It is essential that actual possession be taken. It was observed:

11. In Mrityunjoy Bose v. State of Bihar, AIR 1967 Patna 286, the Division Bench has held that the taking of possession referred to in Sections 16, 17(1), 34 and 48(1) of the Land Acquisition Act is of the same nature. Their Lordships have further held that unless the party to the suit can show that possession over that portion of the disputed land, which is notified as having been withdrawn from acquisition, is of the nature required by either Section 16 or Section 17(1) of the Act, the legality of the order of withdrawal cannot be successfully challenged. Their Lordships have further held that the Government loses its rights to withdraw from acquisition only from the date when the Collector takes possession under Sections 16 or 17, so that title vests free from all encumbrances in the Government. Their Lordships have held as under: “44. So far as the application of S. 48(1) is concerned, it seems clear that the Government loses its right to withdraw from acquisition only from the date when the Collector takes possession under Section 16 or S. 17 of the Act, so that title vests free from all encumbrances in the Government. There seems to be no reason to suppose that the word ‘possession’ in sub-section (1) of Section 48 means possession of a kind different from that taken over under Section 16 or Section 17 of the Act. It is also from the date of taking over such possession that interest becomes payable under Section 34 of the Act. 27

45. As I have been unable to find that the Government took possession of the lands in question under any law, much less under Section 16 or Section 17 of the Act, I am unable to hold that they acted illegally in withdrawing portions of the lands from acquisition. For the same reason, I cannot hold that the petitioners are entitled to interest from any particular date. 53….Possession for the purpose of Ss. 17 and 17(1) must be possession as a full owner, in consequence of which lands vest absolutely in the Government free from all encumbrances. It cannot be of the same nature as any previous possession which the Government might have taken either as a lessee, or mortgagee, or licensee, or under some other colour of title, or even as a trespasser. Though the Act is silent as to the mode of taking possession either under S 16 or S 17(1) of the Act, there seems to be no doubt that either actual occupation by the Collector or his agents, or taking symbolic possession (where actual possession is already with the Collector), or doing something equivalent to effective possession is contemplated. Here, admittedly, no such formal taking of possession either under S. 16 or under S. 17(1) has been alleged to have been done. The petitioners' case all along has been that by virtue of the appropriate notification, any resistance by the petitioners, the Forest Department took over actual possession from 1954. That possession cannot, therefore, be held to be possession for the purpose of S. 48(1) of the Land Acquisition Act. Hence, there is no illegality in the withdrawal from acquisition in respect of a portion of the disputed lands.” *****

14. The Apex Court in Jethmull Bhoraj v. State of Bihar (1972) 1 SCC 714 has held that the Government becomes the owner of the lands notified for acquisition only when 28 the Collector takes possession of those lands either under Section 16 or under Section 17(1). Their Lordships have further held that the possession of any land notified for acquisition is taken when the Collector has made an award under Section 11 and not before it. But an exception is provided under Section 17(1). In cases of urgency, if the Government so directs, the Collector may, though no award has been made under Section 11, on the expiration of the 15 days from the publication of the notices mentioned in Section 9(1), take possession of any waste or arable land and the land shall thereupon vest absolutely with the Government free from all encumbrances. Their Lordships have further held that the Collector cannot take possession of the land in question unless the Government directs him to do so. Their Lordships have held as under: “10. The next point that arises for decision is whether the delivery of the lands notified for acquisition was taken under Section 17(1) as contended by the appellant. The Government becomes the owner of the lands notified for acquisition only when the Collector takes possession of those lands either under Section 16 or under Sec. 17(1). Both those provisions provide that when the Collector takes possession under those provisions, the lands notified for acquisition shall vest absolutely in the Government free from all encumbrances. Until and unless possession is taken under either of those provisions, the lands notified for acquisition do not vest in the Government. Section 48(1) of the Act provides: “Except in the case provided for in Section 36, the Government shall be at liberty to withdraw from the acquisition of any lands of which possession has not been taken.”

11. Section 36 is not relevant for our present purpose. Possession referred to in Section 48 29 necessarily is the possession taken either under Section 16 or under Section 17(1). Section 17(1) says: “In cases of urgency, whenever the appropriate Government so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in Section 9 sub-section (1), take possession of any waste or arable land needed for public purposes or for a Company. Such land shall thereupon vest absolutely in the Government free from all encumbrances.” Ordinarily, possession of any land notified for acquisition is taken when the Collector has made an award under Section 11 and not before it. But an exception is provided under Section 17(1). In cases of urgency, if the Government so directs, the Collector may, though no award has been made under Section 11, on the expiration of the 15 days from the publication of the notice mentioned in S. 9(1), take possession of any waste or arable land and the land shall thereupon vest absolutely with the Government free from all encumbrances. From this provision, it is plain that the Collector cannot take possession of the land in question unless the Government directs him to do so. The Government directs him to do so only in cases of urgency. Even when the Government directs the Collector to take possession, he cannot do so until the expiration of 15 days from the publication of a notice under Section 9(1). There is no material on record to show that the Government had given to the Collector any direction under Section 17(1); nor is there any material to show that the lands in question had been taken possession of by the Collector under Section 17(1). It is true that in the order-sheet 30 maintained by the Land Acquisition Officer, a note was made on October 17, 1959:” “Shri B.P. Yadav Kgo, to deliver possession at the spot to the representative of the R.O. on 16-11-59. Draft addressed to R.O. is signed.” But there is nothing to show that this order was implemented. According to the respondent, this order was not implemented.” In the instant case, no direction was ever issued by the State Government to the Collector to take over the possession.

15. In Balwant Narayan Bhagde v. M.D. Bhagwat (1976) 1 SCC 700, Hon'ble Justice Untwalia, J. has taken the view that even the delivery of so-called “symbolical” possession is delivery of “actual” possession of the right title and interest of the judgment-debtor. However, the majority view is contrary to the same. His Lordship Bhagwati, J. (concurring) (for himself and Gupta, J.) has held that there can be no question of taking ‘symbolical’ possession in the sense understood by judicial decisions under the Code of Civil Procedure. Nor would possession merely on paper be enough. What the Act contemplates as a necessary condition of vesting of the land in the Government is the taking of actual possession of the land. The majority view reads as under: “Bhagwati, J. (on behalf of himself and Gupta J.): - We agree with the conclusion reached by our brother Untwalia, J., as also with the reasoning on which the conclusion is based. But we are writing a separate judgment as we feel that the discussion in the judgment of our learned brother Untwalia, J., in regard to delivery of ‘symbolical’ and ‘actual’ possession under Rules 35, 36, 95 and 96 of Order XXI of the Code of Civil Procedure, is not necessary for the disposal of the present appeals and we do not wish to subscribe to what has been said by our 31 learned brother Untwalia, J., in that connection, nor do we wish to express our assent with the discussion of the various authorities made by him in his judgment. We think it is enough to state that when the Government proceeds to take possession of the land acquired by it under the Land Acquisition Act, 1894, it must take actual possession of the land since all interests in the land are sought to be acquired by it. There can be no question of taking ‘symbolical’ possession in the sense understood by judicial decisions under the Code of Civil Procedure. Nor would possession merely on paper be enough. What the Act contemplates as a necessary condition of vesting of the land in the Government is the taking of actual possession of the land. How such possession may be taken would depend on the nature of the land. Such possession would have to be taken as the nature of the land admits of. There can be no hard and fast rule laying down what act would be sufficient to constitute the taking of possession of land. We should not, therefore, be taken as laying down an absolute and inviolable rule that merely going on the spot and making a declaration by beat of drum or otherwise would be sufficient to constitute taking of possession of land in every case. But here, in our opinion, since the land was lying fallow and there was no crop on it at the material time, the act of the Tehsildar in going on the spot and inspecting the land for the purpose of determining what part was waste and arable and should, therefore, be taken possession of and determining its extent, was sufficient to constitute taking of possession. It appears that the appellant was not present when this was done by the Tehsildar, but the presence of the owner or the occupant of the land is not necessary to effectuate the taking of possession. It is also not strictly 32 necessary as a matter of legal requirement that notice should be given to the owner or the occupant of the land that possession would be taken at a particular time, though it may be desirable where possible, to give such notice before possession is taken by the authorities, as that would eliminate the possibility of any fraudulent or collusive transaction of taking of mere paper possession, without the occupant or the owner ever coming to know of it. We are of the view, on the facts and circumstances of the present case, that the Tahsildar took actual possession of that part of the land which was waste or arable and handed it over to the Principal of the Agricultural College. It is true that the Special Land Acquisition Officer in his letter dated 13th December, 1961 to the Commissioner stated that possession of the entire land was still with the appellant and it was not actually taken possession of by the Principal, Agricultural College, But it is obvious that this statement was made by the Special Land Acquisition Officer because he thought that actual possession of the land could not be regarded as having been taken, unless the appellant was excluded from the land and since the appellant immediately, without any obstruction, entered upon the land and continued in possession, “the land was not actually taken possession of by the Principal, Agricultural College”. This was a plainly erroneous view, for the legal position is clear that even if the appellant entered upon the land and resumed possession of it the very next moment after the land was actually taken possession of and became vested in the Government, such an act on the part of the appellant did not have the effect of obliterating the consequences of vesting. There can, therefore, be no doubt that actual possession of 19 acres 16 gunthas of waste and arable land was 33 taken by the Tahsildar on 3rd April, 1959, and it became vested in the Government. (Neither the Government nor the Commissioner could thereafter withdraw from the acquisition of any portion of this land under S. 48(1) of the Act.”

16. Their Lordships of the Hon'ble Supreme Court in Balmokand Khatri Educational and Industrial Trust, Amritsar v. State of Punjab, (1996) 4 SCC 212 have laid down that the normal mode of taking possession is drafting the panchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Their Lordships have held as under: “4. It is seen that the entire gamut of the acquisition proceedings stood completed by April 17, 1976, by which date possession of the land had been taken. No doubt, Shri Parekh has contended that the appellant still retained their possession. It is now a well-settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the Panchanama in the presence of Panchas, and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would be tantamount only to illegal or unlawful possession.

17. Their Lordships of the Hon'ble Supreme Court in National Thermal Power Corporation Limited v. Mahesh Dutta (2009) 8 SCC 339 have again discussed the principles of taking of possession of acquired land in cases of urgency. Their Lordships have held as under: “16. It is a well-settled proposition of law that in the event possession of the land, in respect whereof a Notification had been issued, had been taken over, the State would be denuded of its power to withdraw from the acquisition in terms of Section 34 48 of the Act. Whether actual or symbolic possession had been taken over from the land owners is essentially a question of fact. Taking over possession in terms of the provisions of the Act would, however, mean actual possession and not symbolic possession. The question, however, is as to whether the finding of fact arrived at by the High Court that physical possession, indeed, had been taken over by the Collector is correct or not. “26. These decisions, as noticed hereinbefore, do not lay down an absolute rule. The question as to whether actual physical possession had been taken in compliance with the provisions of Section 17 of the Act or not would depend upon the facts and circumstances of each case.

27. When possession is to be taken over in respect of the fallow or Patit land, a mere intention to do so may not be enough. It is, however, the positive stand by the appellant that the lands in question are agricultural land and crops used to be grown therein. If the lands in question are agricultural, not only must actual physical possession be taken, but also they were required to be properly demarcated. If the land had standing crops, as has been contended by Mr Raju Ramachandran, steps in relation thereto were required to be taken by the Collector. Even in the said certificate of possession, it had not been stated that there were standing crops on the land on the date on which possession was taken. We may notice that delivery of possession in respect of immovable property should be taken in the manner laid down in Order XXI Rule 35 of the Code of Civil Procedure.

28. It is beyond any comprehension that when possession is purported to have been taken of the entire acquired lands, actual possession would be taken only of a portion thereof. The certificate of 35 possession was either correct or incorrect. It cannot be partially correct or partially incorrect. Either the possession had actually been delivered or had not been delivered. It cannot be accepted that possession had been delivered in respect of about 10 acres of land, and the possession could not be taken in respect of the remaining 55 acres of land. When the provisions of Section 17 are taken recourse to, vesting of the land takes effect immediately.”

18. The Apex Court in Prahlad Singh v. Union of India (2011) 5 SCC 386 has held that no hard-and-fast rule can be laid down as to what act would be sufficient to constitute taking of possession of the acquired land, and when there is no crop or structure on the land, only symbolic possession could be taken. Their Lordships have held as under: “16. In P.K. Kalburqi V. State of Karnataka, the Court referred to the observations made by Bhagwati, J., in Balwant Narayan Bhagde V. M.D. Bhagwat that no hard-and-fast rule can be laid down as to what act would be sufficient to constitute taking of possession of the acquired land, and observed that when there is no crop or structure on the land, only symbolic possession could be taken.

20. If the present case is examined in the light of the facts which have been brought on record and the principles laid down in the judgment in Banda Development Authority case it is not possible to sustain the finding and conclusion recorded by the High Court that the acquired land had vested in the State Government because the actual and physical possession of the acquired land always remained with the appellants and no evidence has been produced by the respondents to show that possession was taken by preparing a panchanama 36 in the presence of independent witnesses and their signatures were obtained on the panchnama.

21. A reading of the Khasra girdawari and jamabandis, copies of which have been placed on record, shows that actual and physical possession of the acquired land is still with the appellants. Jamabandis relate to the year 2005-2006. Copies of notice dated 10-2-2011/11-2-2011 issued by the Uttar Haryana Bijli Vitran Nigam Ltd., relate to Appellant 1, Prahlad Singh and this, prima facie, supports the appellants' assertion that physical possession of the land is still with them.

22. Respondents 3 to 6 have not placed any document before this Court to show that actual possession of the acquired land was taken on the particular date. Therefore, the High Court was not right in recording a finding that the acquired land will be deemed to have vested in the State Government.”

19. Their Lordships of the Hon'ble Supreme Court in Banda Development Authority, Banda v. Moti Lal Agarwal (2011) 5 SCC 394 have again discussed the rule of taking possession. Their Lordships have held as under: “37. The principles that can be culled out from the above-noted judgments are: (i) No hard and fast rule can be laid down as to what act would constitute the taking of possession of the acquired land. (ii) If the acquired land is vacant, the act of the concerned State authority to go to the spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of possession. (iii) If a crop is standing on the acquired land or a building/structure exists, mere going on the spot by the concerned authority will, by itself, not be sufficient for taking possession. Ordinarily, in such 37 cases, the concerned authority will have to give notice to the occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchnama. Of course, the refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken. (iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land, and it will be sufficient that symbolic possession is taken by preparing an appropriate document in the presence of independent witnesses and getting their signatures on such a document. (v) If the beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3A), and a substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the Court may reasonably presume that possession of the acquired land has been taken.

38. In the light of the above discussion, we hold that the action of the concerned State authorities to go to the spot and prepare a panchnama showing delivery of possession was sufficient for recording a finding that actual possession of the entire acquired land had been taken and handed over to the BDA. The utilisation of the major portion of the acquired land for the public purpose for which it was acquired is clearly indicative of the fact that actual possession of the acquired land had been taken by the BDA. Once it is held that possession of the acquired land was handed over to the BDA on 38

30.6.2001, the view taken by the High Court that the acquisition proceedings had lapsed due to non- compliance with Section 11A cannot be sustained.

20. In Brij Pal Bhargava v. State of Uttar Pradesh (2011) 5 SCC 413, their Lordships of the Hon'ble Supreme Court have held that whether the possession was taken is a question of fact, which is required to be taken into consideration pragmatically. Their Lordships have held as under: “12. Shri Vikas Singh, learned senior counsel appearing on behalf of Mathura Vrindavan Development Authority (respondent No. 3), pointed out that it would be impossible for the Collector or Revenue officers to enter each bigha of land for taking possession thereof and, therefore, the pragmatic approach has to be adopted by the Court while considering whether possession has been taken or not. The learned senior counsel also pointed out that the documents show that actual possession was taken. He also tried to point out the photograph, suggesting that not only the possession has been taken, but a number of other activities of construction were going on at the land, including drawing the layout thereof and building the roads therefor. The learned senior counsel relied on the reported decision in Sita Ram Bhandar Lieutenant Governor, Society, Government of NCT, Delhi [(2009) 10 SCC 501], as also in Dahyabhai Ranchhoddas Dhobi v. State of Gujarat [(2010) 7 SCC 705], where the view has been taken about the pragmatic approach to be adopted by the Courts in deciding as to whether the possession was taken or not. New Delhi v.

13. Seeing the report and the orders passed, we are thoroughly convinced that not only the possession was taken, but there are activities going on at the behest of the Mathura Vrindavan Development 39 Authority. This is apart from the fact that this is a pure question of fact, which has been answered by the High Court in no uncertain terms. In this view of the matter, we are of the clear opinion that even on this count, the appellants must fail.

21. Their Lordships of the Hon'ble Supreme Court in Raghbir Singh Sehrawat v. State of Haryana (2012) 1 SCC 792 have again discussed the mode of taking possession as under: “23. The respondents have not produced any other evidence to show that actual possession of the land, on which the crop was standing, had been taken after giving notice to the appellant or that he was present at the site when possession of the acquired land was delivered to the Senior Manager of HSIIDC. Indeed, it is not even the case of the respondents that any independent witness was present at the time of taking possession of the acquired land.

29. In view of the above discussion, we hold that the record prepared by the revenue authorities showing delivery of possession of the acquired land to HSIIDC has no legal sanctity, and the High Court committed a serious error by dismissing the writ petition on the specious ground that possession of the acquired land had been taken and the same vested in the State Government in terms of Section 16.

31. A similar view was expressed in C. Padma v. Deputy Secretary to the Government of Tamil Nadu (supra), Star Wire (India) Ltd. v. State of Haryana (supra), Municipal Council, Ahmednagar v. Shah Hyder Beig (supra) and Swaika Properties (P) Ltd. v. State of Rajasthan (supra). In all the cases, the challenge to the acquisition proceedings was negatived primarily on the ground of delay. An additional factor that influenced this Court was that 40 physical possession of the acquired land had been taken by the concerned authorities. In none of these cases, the landowners appear to have questioned the legality of the mode adopted by the concerned authorities for taking possession of the acquired land. Therefore, these judgments cannot be relied upon for sustaining the High Court's negation of the appellant's challenge to the acquisition of his land.”

22. The possession of Khasra No. 161 has not been taken over as per the modes prescribed by the Hon'ble Supreme Court in the judgments cited hereinabove. It is settled law by now that only when the possession is taken under Section 17(1) of the Act, the Government cannot withdraw from acquisition under Section 48 of the Act.

31. Therefore, the defendants were required to prove that they had taken possession as per Section 16 of the Land Acquisition Act to complete the acquisition proceedings.

32. Yog Raj Chauhan (DW1) stated that the suit land is in possession of the department. The compensation for the suit land was also paid. The fodder is grown on the acquired land. The mutation (Ext.DW1/A1 to Ext.DW1/D21) of the acquisition was made in the defendants’ favour.

33. The report of the Patwari on the mutation (Ext.DW1/B1) reads that the State had acquired the land in favour of the Animal Husbandry Department. Therefore, the mutation was being prepared. The order dated 24.03.1958 reads 41 that as per the order of the Land Acquisition Collector, the land was acquired, and the ownership and possession be transferred in the name of the Animal Husbandry Department.

34. The mutation is silent regarding the delivery of the possession by the land owners to the Collector. It merely relies upon the letter written by the Collector regarding the acquisition. Therefore, this mutation does not show the delivery of the possession.

35. Yog Raj Chauhan (DW1) stated in his cross- examination that he had joined the previous month. He could not identify the suit land, but he had heard that the land adjacent to the temple was the suit land. This statement shows that this witness is not aware of the location of the suit land, and his testimony that the suit land is in possession of the defendants is not believable. Further, he had joined in the year 2008, as per his testimony, and he cannot be a witness to prove the delivery of possession to the defendants.

36. Therefore, there is no infirmity in the findings recorded by the learned Appellate Court that the suit land had 42 not vested in the State as per the provisions of the Land Acquisition Act.

37. A heavy reliance was placed upon the revenue record to submit that the defendants are in possession. However, it has been found above that the entry in favour of the State was made by way of the mutation recorded on the basis of a letter written by the Land Acquisition Collector. The mere writing of the letter is not sufficient unless evidence of delivery of possession is brought on record, which is lacking in the present case. Therefore, the revenue entries in favour of the defendants would be of no benefit to them, and the learned Appellate Court had rightly held that the revenue entries are not sufficient to establish the defendants’ possession.

38. The judgments cited at the bar relate to the adverse possession. Once it has been found out that the land had not validly vested in favour of the State, these judgments would become meaningless, and, no advantage can be derived from Bangalore Development Authority (supra), Bhaskaran Pillai (supra), Smt. Mitra (supra), Mandal Revenue Officer (supra), 43 Charan Dass (supra), Jeet Singh (since deceased) through LRs (supra), and Himat Rai (supra).

39. The judgment in Indira Nehru Gandhi (supra) deals with the election petition and is not relevant. Similarly, the judgment in H.N. Jagannath (supra) deals with the challenge to acquisition and is not relevant because no one has challenged the acquisition in the present case. The judgment in Komiah (supra) deals with a paper entry, but the same cannot be followed in view of the binding precedents of the Hon’ble Supreme Court and this Court, as noticed above. Therefore, no advantage can be derived from the cited judgments by the defendants.

40. The record of the delivery of possession was essential to prove that the suit land was acquired as per the law, and mere production of the revenue record was not sufficient in the present case. The presumption of truth attached to the revenue entries was rebutted by the fact that there was no proof of the taking of possession, and revenue entries were based merely on the letter written by the Land Acquisition Collector. The acquisition was not complete unless there was proof of delivery 44 of possession, which is lacking in the present case. Therefore, these substantial questions of law are answered accordingly. Substantial Question of Law No.2:

41. The learned Trial Court had passed a decree of declaration declaring the plaintiff as owner in possession of the suit land and the revenue entries to be null and void. A consequential relief of permanent prohibitory injunction was granted to the plaintiff. Therefore, no decree for possession was passed, as noticed in the substantial question of law, and this substantial question of law does not arise. Substantial Question of Law No.5:

42. It has been found above that the acquisition was not complete in the absence of proof of taking over the possession. Further, the right to sue would not accrue by the attestation of the mutation. It was laid down by the Karnataka High Court in State of Karnataka v. Mohammed Kunhi, 1990 SCC OnLine Kar 396: ILR 1991 Kar 1500 that a mere adverse entry in the revenue record will not have the effect of commencement of the period of limitation. It was observed at page 1512: 45

18. Unlike the Limitation Act, 1908, the Limitation Act, 1963, contains only three Articles in respect of suits relating to declarations, i.e., Articles 56, 57 and 58. Undoubtedly, the relief of declaration sought in the suit does not fall under Article 56 or under Article 57. Therefore, it has to necessarily fall under Article 58, which is a residuary article insofar as the suits relating to declarations are concerned. Article 58 of the Limitation Act, 1963, is equivalent to Article 120 of the Limitation Act, 1908, with the difference that the limitation begins to run in the case of Article 58 when the right to sue first accrues, whereas in the case of Article 120 of the Limitation Act, 1908, the limitation begins when the right to sue accrued. Therefore, the word “first” contained in Column No. 3 of Article 58 after the words ‘right to sue’ is not found in Article 120 of the Limitation Act, 1908. The contention of the learned Government Advocate is that the right to sue first accrued to the plaintiffs when the entries in the revenue records were changed from redeemed to unredeemed in the year 1918 and continued till the date of filing of the suit; that the plaintiffs were also aware of this fact of changing the description of the land from redeemed to unredeemed when they purchased the suit property on 21st June 1965 as per Exs. P-1 to P-3. There is no doubt that P.W. 1 stated in the cross- examination that when they purchased the suit property, the revenue record described the suit property as an unredeemed estate. The learned Government Advocate also brought to our notice the averments made in the plaint as to how the cause of action arose. In Para-12 of the plaint, the plaintiff has stated thus: “12. The cause of action for this suit accrued to the plaintiffs against the Defendant on and from 17-8- 1966, 18-8-1966, 30-11-1966, 9-10-1967, 9-9- 1969, 14-1-1971, 18-1-1971, 2-6-1973 and subsequently Village, Bhagamandala Nadu, Mercara Taluk, Coorg District Kundacherry 46 and at Mercara, Coorg District, within the jurisdiction of this Honourable Court.” It is not each and every entry in the Record of Rights that would give rise to a cause of action. As to when a cause of action would accrue to the plaintiffs has been the subject of interpretation in several decisions. In Mt. Bolo v. Mt. Koklan [AIR 1930 PC 270], their Lordships considered the meaning and effect of the right to sue in Column No. 3 of Article 120 of the Limitation Act, 1908 and held thus: “There can be no 'right to sue' until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted.” This was again reaffirmed in Annamalai Chettiar v. A.M.K.C.T. Muthukaruppan Chettiar. [AIR 1931 PC 9.] The Supreme Court in Mst. Rukhmabai v. Lala Laxminarayan [AIR 1960 SC 335.] after referring to the decisions of the Privy Council in A.I.R. 1930 P.C. 270 [AIR 1930 PC 270.] and A.I.R. 1931 P.C. 9 [AIR 1931 PC 9.] has held that if there are successive invasions or denials of a right, then it can be held that a person's right has been clearly and unequivocally threatened so as to compel him to institute a suit to establish that right. The Supreme Court has also further held thus: “The legal position may be briefly stated thus: The right to sue under Article 120 of the Limitation Act accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right, however ineffective and innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardises the said right.” (Emphasis supplied) 47 It may be relevant to notice the facts of Rukmabai's case [AIR 1960 SC 335] as stated in Para-34 of the very Judgment, which are as follows: “The facts relevant to the question of limitation in the present case may be briefly restated: The trust deed was executed in 1916. The suit house was constructed in 1920. If, as we have held, the trust deed as well as the construction of the building were for the benefit of the family, its execution could not constitute any invasion of the plaintiff's right. Till 1926, the plaintiff's father, Ratanlal, was residing in that house. In 1928, when Daga challenged the trust deed, the family compromised the matter and salvaged the house. From 1936 onwards, the plaintiff has been residing in the suit house. It is conceded that he had knowledge of the litigation between Rukmabai and Chandanlal claiming the property under the trust deed; but, for that suit, he was not a party and the decision in that litigation did not in any way bind him or affect his possession of the house. But in the execution of the decree, the Commissioner appointed by the Court came to the premises on February 13, 1937, to take measurements of the house for effecting partition of the property, when the plaintiff raised an objection, and thereafter, in 1940, filed the suit. From the aforesaid facts, it is manifest that the plaintiff's right to the property was not effectively threatened by the appellant till the Commissioner came to divide the property. It was only then that there was an effectual threat to his right to the suit property, and the suit was filed within six years thereafter. We, therefore, hold that the suit was within time.” From the aforesaid facts, it is clear that the mere adverse entry in the Record of Rights in respect of the property in possession of the plaintiff cannot be taken as a real threat to the right of the plaintiff to the property in his 48 possession. Rukhamabai was not a party to the proceeding. Her right to the property came to be threatened only when the order was tried to be executed, and she was tried to be dispossessed. Their Lordships further held that even if it was considered that Laxminarayan had the knowledge of the litigation between Rukhmabai and Chandanlal claiming the property under the trust deed, but, for that suit, he was not a party and the decision in that litigation did not in any way bind him or affect his possession. In the instant case, it may be relevant to notice that the entries on which the reliance was placed changing the suit land from redeemed to unredeemed to form a basis for a starting point of limitation, even if it were in the knowledge of the plaintiffs the same could not affect the right of the plaintiffs adversely because those entries were not made in accordance with law, after due notice to the plaintiffs. As such as held by the Supreme Court in Khader's case [(1990) 2 SCC 271: AIR 1990 SC 1225], they were void and non est. Therefore, they cannot be of any value as it cannot be held that the same affected the rights of the plaintiffs in any manner. In C. Mohammad Yunus v. Syed Unnissa [AIR 1961 SC 808], it has been further reiterated that ‘there could be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right’. There is no such clear and unequivocal infringement of the right of the plaintiffs or real threat to the right of the plaintiffs by the entries which have no legal effect in the eyes of the law. Further, the very order dated 17th August 1966 - Ex. P-9 itself shows that the Government was not sure whether the suit-scheduled property was redeemed sagu or unredeemed sagu. They also did not assert in the Government Order dated 17th August 1966 that the suit schedule property was redeemed sagu only. This conduct on the part of the Government would also show that the entries made from the year 1918 till the date relied upon by the learned Government Advocate to non-suit, the 49 plaintiffs were not treated even by the State Government as final and conclusive and affecting the right of the plaintiffs. We may also refer to two more decisions of the Supreme Court having a bearing on the point. In Gannon Dunkerley and Co. Ltd. v. The Union of India [(1969) 3 SCC 607: AIR 1970 SC 1433.] It has been held thus: “In our Judgment, there is no right to sue until there is an accrual of the right asserted in the suit, and its infringement, or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted.” Thus, in Gannon's case [(1969) 3 SCC 607: AIR 1970 SC 1433.] the decision of the Privy Council in A.I.R. 1930 P.C. 270 [AIR 1931 PC 9.] was again restated. In Raghubir Jha v. State of Bihar [1986 Supp SCC 372: AIR 1986 SC 508], the Supreme Court held that the limitation would begin to commence only on the communication of the termination of the proceedings and not on the date the order was passed by the first authority. In the instant case, there is no evidence adduced by the defendant, nor is there any material brought on record in the cross-examination of P.W. 1 that the right to sue accrued much earlier than the date of the suit. As in the instant case, the entries in the record of rights, being non-est, cannot be held to affect the right, title and interest of the plaintiffs and their predecessors-in-title in possession of the suit property. Such entries cannot also be held to be a threat to the title of the plaintiffs who are in possession of the suit property so as to give rise to the cause of action sufficient for the commencement of the period of limitation. However, the learned Government Advocate has placed reliance on a decision of this Court in Dada Jinnappa Khot v. Shivalingappa Ganapati Bellaniki ILR 1989 Kar 993. That was a case in which a learned single Judge of this Court recorded a specific finding that, in the light of the application filed by the defendant before the Tahsildar in the year 1967 denying the title of the plaintiff, there was a real threat to the plaintiff's right and therefore on that 50 date the right to sue accrued because the plaintiff was also a party to that application. Thus, it is clear that the Decision in D.J. Khot's case [ILR 1989 Kar 993] is confined to the facts of that case. Therefore, the contention of the learned Government Advocate that the change of entries from redeemed to unredeemed in the year 1918 and the continuation of the same in the subsequent years was a real threat to the rights of the plaintiffs cannot be accepted, because those entries are held to be void and non est. Therefore, the contention based on the change of entries from redeemed to unredeemed is rejected.

43. A similar view was taken by the Punjab and Haryana High Court in Ibrahim v. Sharifan, 1979 SCC OnLine P&H 186: AIR 1980 P&H 25, wherein it was observed at page 26:

7. It may be observed at the outset that the word ‘first’ occurring in Article 58 of the Act is of no significance at all for deciding the issue of limitation so far as the facts of the case in hand are concerned as the main point that requires determination is whether mere entry of a mutation in the name of the defendant would furnish a cause of action to the plaintiff to file a suit for declaration or not. There is no dispute that mutation was sanctioned in favour of the defendant after the death of Akbar, and in case such an entry furnishes a cause of action, then certainly the suit would be barred by limitation. Even Mr Aggarwal very fairly conceded this proposition. But what was argued by him was that mere entry of a mutation did not furnish any cause of action, and in support of his contention, he relied on a Division Bench judgement of this Court in Niamat Singh v. Darbari Singh etc., (1956) 58 PLR 461. In our view, the contention of the learned counsel has considerable force. The plaintiff continued to be in possession of the entire property even after the sanction of the mutations in the name of the defendant after the death of her father, Akbar or her mother, Smt. 51 Nanhi or her uncle Bhiku. The defendant was never given any share in the rent, nor was she given any produce out of the land of her share. In this situation, no cloud was cast on the title of the plaintiff by the mere entry of the mutation in the name of the defendant. Further, there is no proof on the record to show that before April 1969, by any act or assertion of the defendant, the right of the plaintiff was ever actually jeopardised. The defendant is occupying a house in the village.

8. The assertion of the plaintiff is that it was given by him to her out of compassion, while the plea of the defendant is that she occupied it as of right. Be that as it may, the fact remains that so far as the agricultural land is concerned, the defendant, after the sanction of the mutations, never asserted her right to her share in the land in dispute; nor did she ever get any rent or produce, and it was in the year 1969 that she tried to assert her right and interfere with the possession of the plaintiff. In this situation, mere entry of a mutation in the name of the defendant would not furnish any cause of action to the plaintiff. This view of ours finds full support from the judgment of the Division Bench in Niamat Singh's case. Thus, we do not agree with the learned single Judge that the cause of action arose when the mutation was entered in the name of the defendant and consequently, reverse the finding on issue No. 4 and hold that the suit filed by the plaintiff is within limitation.

44. It was held by this Court in Prakasho Devi versus Basheshar Singh (2001) 2 ShimLC 354that the attestation of mutation does not confer a right to sue upon a person. It was observed:

12. Article 58 of the Limitation Act, 1963 provides for a limitation of three years to obtain a declaration, and the period begins to run "when the right to sue first accrues". 52 Article 58 is a residuary Article under the Limitation Act, 1963. The suit for declaration, which was not governed by any other Article in the Act, was covered by residuary Article 120 of the 1908 Act, and such a suit now indeed is governed by Article 58 of the 1963 Act.

13. It may be noticed that the limitation period of three years commences from the date when the right to sue first accrues, but the question is when the right to sue accrues. In my view, the right to sue would accrue when the right in respect of which a declaration is sought is denied or challenged. A mere entry in the revenue papers of the name of the defendants as co-owner of the property, without any act of denial on the part of such defendant(s), will not provide a cause of action. There is no scope of dispute that the mutation of a l/4th share of Chuhru was wrongly attested in favour of the defendants, and it is only because of this illegal attestation of mutation that entries in the revenue record showing the defendants as co-sharers to the extent of l/4th share of Chuhru were incorporated. In these circumstances, the right to sue would accrue to the plaintiffs only when their possession was threatened or an application for partition on the basis of these entries was filed in the Revenue Court.

14. As far back as 1930, in Mst Bolo appellant v. Aft. Koklan and others, respondents, AIR 1930 Privy Council 270, a Judicial Committee interpreting the provisions of Article 120 of the 1908 Act observed: "There can be no 'right to sue' until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. No doubt Mt. Koklan's right to the property arose on the death of Tara Chand, but in the circumstances of this case, their Lordships are of the opinion that there was no infringement of, or any clear and unequivocal threat to her rights till the year 1922, when the suit, 53 as stated above, was instituted" supplied) (Emphasis

15. This principle was re-stated and followed in Annamalai Ct-ieitiar v. Muttukaruppan Chettiar, AIR 1931 PC 9. In Mst Rukhmabai, appellant v. Lal Laxminarayan and others, respondents, AIR 1960 Supreme Court 335, a contention was raised that plaintiff respondent had knowledge of fraudulent character of the trust deed for 10 years, during the pendency of the partition suit instituted in the year 1929, but the suit was filed in the year 1940 much after the limitation of six years under the 1908 Act from the date of knowledge and therefore, the suit would be barred under Article 120 of the 1908 Act. The Apex Court, interpreting the provisions of Article 120 of the Limitation Act of 1908 and heavily relying upon Mt Bolo, held: "33. The legal position may be briefly stated thus: The right to sue under Article 120 of the Limitation Act accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiffs in the suit. Every threat by a party to such a right, however ineffective and innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardises the said right" (Emphasis supplied)

16. In Zorawar Singh and another Appellants v. Dip Chand and others, respondents, AIR 1929 Allahabad 331, it was observed that a suit for declaration may be a repeated cause of action and each new cause would give a fresh right to sue.

17. In Faqira and another, plaintiffs-appellants v. Hardewa and others, defendants-respondents, AIR 1928 Allahabad 172, the Full Bench of the Allahabad High Court had occasion to interpret Article 120 of the Limitation Act, 54

1908. In that case, there was a wrong entry in the khewat, and the advantage of that wrong entry was likely to be taken by the defendants. The fact of such an entry was never brought to the notice of the plaintiffs. In this background, the Full Bench speaking through Mukerji, J. held : "The right to sue, within the meaning ot Article 120 of the Limitation Act, accrued to the plaintiff on the filing of the application for partition and not earlier," (Emphasis supplied)

18. It tlitis, is settled law that the cause of action to obtain a declaration under Article 58 of the Limitation Act will only accrue when the rights of a plaintiff are invaded by an overt act.

19. In Thakurain Chhabraj Kuer, defendant-appellant v. Ram Deo Singh and others, plaintiffs-respondents, AIR (29) 1942 Oudh 346, a Division Bench of Oudh High Court held that so long as a mutation does not injure the plaintiff, he need not come to the Court at all and, therefore, a plaintiff is not out of time if he institutes a suit within six years (under the 1908 Act) of the injury which the entry creates and which is his cause of action. This statement of law was reiterated in C. Mohammad Yunus, appellant v. Syed Unnissa and others, respondents, AIR 1961 Supreme Court 808. In this case, their Lordships emphasised that a suit for a declaration of a right and an injunction restraining the defendants from interfering with the exercise of that right is governed by Article 120 (now Article 58), and there can be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right.

20. In Fateh Ali Shah and others v. Muhammad Bakhsh and others, AIR 1928 Lahore 516, a Division Bench of the Lahore High Court held that the plaintiff in possession need not bring a suit on first denial of his title, and he needs to take proceedings within six years (under the old 55 Act) from the time when his rights are actually jeopardised. The Division Bench observed: "If a plaintiff is in possession or enjoyment of the property in suit, he is not obliged to sue for a declaration of title on the first or each succeeding denial of his title by the defendant. He may look upon each denial with complacency or, at his option, may institute a suit to falsify the assertions of the other side. But when he finds that his rights are being actually jeopardised by the action or assertion of the defendant, then he must take proceedings within six years from the date of such actions or assertions: AIR 1922 Lah. 94, AIR 1925 Lah. 391 and 140 P.R. 1907; Dist."

45. This position was reiterated in Dharam Singh & others versus Prem Singh & Ors 2002 (1) Shim. LC 49, wherein it was held:

17. Article 58 of the Limitation Act specifically provides a limitation of three years to obtain a declaration that is not provided under any other Article. Under this Article, the limitation period of three years commences from the date when the right to sue first accrues. However, the question would be when a right to sue accrues. In my view, the right to sue accrues when the right in respect of which a declaration is sought is denied or challenged. A mere entry in the revenue papers, in the name of appellants, in the column of possession, without any act of denial of the possession of the respondent on the part of appellants, will not provide a cause of action.

18. The Supreme Court in Mst. Rukhmabai v. Lala Laxminarayan and others, AIR 1960 SC 335, interpreting the provision of Article 120 of the Limitation Act of 1908 and relying upon Mt. Bolo v. Mt. Koklan and others, AIR 1930 Privy Council 270, held: 56 'There can be no "right to sue" until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. No doubt Mt. Koklan's right to the property arose on the death of Tarn Chand, but in the circumstances of this case, their Lordships are of the opinion that there was no infringement of, or any clear and unequivocal threat to her rights till the year 1922, when the suit, as stated above, was instituted".(Emphasis supplied)

19. In Fateh AH Shah and others v. Muhammad Bakhsh and others, AIR 1928 Lahore 516, a Division Bench of the Lahore High Court held that the plaintiff in possession need not bring a suit on the first denial of his title, and he needs to take proceedings within six years (under the old Act) from the time when his rights are actually jeopardised. The Division Bench observed: "If a plaintiff is in possession or enjoyment of the property in suit, he is not obliged to sue for a declaration of title on the first or each succeeding denial of his title by the defendant. He may look upon each denial with complacency or, at his option, may institute a suit to falsify the assertions of the other side. But, when he finds that his rights are actually being jeopardised by the action or assertion of the defendant, then he must take proceedings within six years from the date of such actions or assertions: AIR 1922 Lah 94, AIR 1925 Lah. 391 and 140 RR. 1907: Dist".

20. It is no longer res-integra that persons continuing in possession in spite of adverse entry in the revenue papers need not seek any declaration until their possession is threatened. Reference may be made to Ghulam Mohammad Khan and others v. Sammundar Khan and others, AIR 1936 Lahore 37. In that case, the adverse entry was made in the year 1905-06. The suit was filed much 57 after the period of limitation under Article 120 of the 1908 Act. In the plaint, it was urged that the entry was made in the jamabandi behind the back of the plaintiffs, and they learnt about these entries for the first time in the year 1929-30. The defendants traversed the allegations. In this background, the Division Bench held that the cause of action in all such cases "would accrue when the plaintiff feels aggrieved, and in these circumstances, on the plaintiff's allegations, these suits will be within time."