Government of Kerala & Anr. vs Joseph and Others

Court

Supreme Court of India

Date

9 August 2023

Case No.

Civil Appeal No. 3142 of 2010

Result

Allowed

Bench

Abhay S. Oka, Sanjay Karol

Citation

[2023] 11 S.C.R. 264 : 2023 INSC 693

Issue for consideration

Whether the impugned judgment, arising out of Second Appeal meets the established criteria for Second Appeal; and whether the respondents are entitled to the relief of adverse possession or is the claim so made, barred by the Kerala Land Conservancy Act, 1957. Adverse possession : Principles of – Land being a government poramboke land – Relief of adverse possession sought by the claimants contending that they had acquired title to the land in 1940 and had been in possession and in continued enjoyment since then – Entitlement to: Held : Claimants to be granted the enjoyment of the property, clear, continuous and hostile possession would have to be established by way of cogent evidence and animus possidendi must be demonstrated – On the basis of the estimated age of trees, the length of possession of the claimants is being calculated – Estimation of age of the trees cannot be termed as sufficient proof required to disturb the title that rests with the Government – Merely a long period of possession, does not translate into the right of adverse possession – Surmises, conjectures and approximations cannot serve the basis for taking away the right over land resting with the State and place the said bundle of rights in the hands of one who did not have any such rights – Findings by the High Court that the witnesses established the claimants’ claims by way of adverse possession is erroneous – Also, the bar enshrined in s.20 cannot be applied – Furthermore, the impugned judgment did not comply with the contours of s. 100 CPC – Thus, the order passed by the High Court that the land rightfully belonged to the claimants by virtue of the principle of adverse possession set aside – Kerala Land Conservancy Act, 1957 – s. 20. [Paras 11, 19, 22, 27, 28, 37 and 38] Adverse possession: Claim of – Principles governing such claim: Held : Possession must be open, clear, continuous and hostile to the claim or possession of the other party – All three requirements must co-existnec vi, i.e., adequate in continuity; nec clam, i.e., adequate in publicity; and nec precario, i.e., adverse to a competitor, in denial of title and knowledge – Burden of proof rests on the person claiming adverse possession who must show clear and cogent evidence to substantiate such claim – Plea of adverse possession must be pleaded with proper particulars – Mere possession over a property for a long period of time does not grant the right of adverse possession on its own – Such clear and continuous possession must be accompanied by animus possidendi-intention to possess or in other words, the intention to dispossess the rightful owner – In case of Government land, the Court is duty-bound to act with greater seriousness, effectiveness, care and circumspection. [Paras 21.1- 21.4, 21.7, 21.8 and 21.10]

Headnote

Code of Civil Procedure, 1908 – s.100 – Maintainability of second appeal under – Requirement of:

Held : Jurisdiction u/s. 100 is exercisable only when the Court is convinced that the dispute involves a substantial question of law, and proceeding under this jurisdiction sans framing questions of such nature renders the proceedings to be “patently illegal – Impugned judgment does not reflect any question of law, either substantial or involving in the case to have been framed by the Court in the Second Appeal – In view thereof, the impugned judgment erroneous for not complying with the contours of s. 100. [Paras 8, 9 and11]

Kerala Land Conservancy Act, 1957 – s. 20 – Saving of suits by persons aggrieved by proceedings under this Act – Claim so made, if barred by s. 20:

Held : For the bar to apply, the civil suit instituted would have to be against an order passed by the competent authority under this Act in respect of unauthorised occupation of Government land – On facts, original notice was appealed before the Collector who dismissed the same and the said order was not challenged –Suit for declaration was filed before the Civil Court seeking a permanent injunction against any proceedings in respect of eviction and also possession and title of the land in question – Disputed property being a Government property, was the only ground that was met – Primary requirement of the civil suit being in connection with an action taken by the Government was not met thus, the bar enshrined in s.20 cannot be applied. [Paras 17-19]

Practice and procedure – Litigation pending for a long time – Remittance of matter:

Held: Prudence would not be served by sending back the matter pending for four decades. [Para 12]

LIST OF CITATIONS AND OTHER REFERENCES

Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 : [2001] 1 SCR 948; Chandrabhan v. Saraswati 2022 SCC OnLine SC 1273; Umerkhan v. Bismillabi (2011) 9 SCC 684 : [2011] 9 SCR 551; Singaram v. Ramanathan Civil Appeal No. 4939 of 2021; Radhamoni Debi v. Collector of Khulna 1900 SCC OnLine PC 4; Maharaja Sri Chandra Nandi v. Baijnath Jugal Kishore AIR 1935 PC 36; Parsinni v. Sukhi (1993) 4 SCC 375:[1993] 2 Suppl. SCR 315; Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC

CASE DETAILS GOVERNMENT OF KERALA & ANR. v. JOSEPH AND OTHERS (Civil Appeal No. 3142 of 2010) AUGUST 09, 2023 [ABHAY S. OKA AND SANJAY KAROL, JJ.] HEADNOTES Issue for consideration : Whether the impugned judgment, arising out of Second Appeal meets the established criteria for Second Appeal; and whether the respondents are entitled to the relief of adverse possession or is the claim so made, barred by the Kerala Land Conservancy Act, 1957. Adverse possession : Principles of – Land being a government poramboke land – Relief of adverse possession sought by the claimants contending that t

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