BHAVNAGAR MUNICIPALITYversusUNION OF INDIA AND ANR.

                  BHAVNAGAR MUNICIPALITY
                             v.                                               A
                  UNION OF INDIA AND ANR.

                         NOVEMBER 17, 1989

   [LAUT MOHAN SHARMA AND V. RAMASWAMI, JJ.]                                  B

      Limitation Act, 1963-Article 65-Suit for possession based on
title-Principle that possession follows title-When can be relied upon.

      The plaintiff-appellant had filed a suit against the defendents-
respondents for a declaration of its title and for possession of the suit
property mentioned in the schedule to the plaint which consisted of two       c
parts; the first part related to a large extent of vacant land known as
parade ground and the second part ~rblined to survey Nos. 162 to 165
on which stood structures of old Lancer's Lines and certain evacuees
were occupying the same at the time of institution of the suit. The
second part is known both as Lancers Quarters and Rasala Lines. In the        D
suit the plaintiff also claimed damages for wrongful occupation of a
portion of the property and rent for another portion for the period from
lst January 1964 till delivery of possession. The Plaintiffs' case was that
by virtue of Resolution No. 37 dated 19.1.1984 and Resolution No. 77
dated 29.2.48 published in Bhavnagar Darbar Gazette the entire suit
lands vested in and belonged to the plaintiff who entered into and
                                                                              E
remained in possession thereof. According to the plaintiff the Govern-
ment of India claiming to be the owner of the Parade Ground, in or
about June 1961, fixed the boundary marks and thus the entry of the
Government of India constituted wrongful encroachment. As regards
the Lancers' Quarters, it was stated in the plaint that they did not
belong to the plaintiff, that the ..ame were occupied by the State Lancers
                                                                              F
and subsequently by the refugees and that the plaintiff allowed the land
and the structures thereon to be used free by the Government. However
the plaintiff asserted that it was entitled to recover rent or compensa-
tion in respect thereof from l.1.54 till delivery of possession.

      The defendents denied the claim of the plaintiff and pleaded that
                                                                              G
consequent upon the Bhavnagar State acceding to the Indian Union and
consequent on the Federal Financial Integration of State~the accommo-
dation, lands and buildings in the use or occupation,of the Ex-State
forces were transferred to the Government of India and became its
property. The defendents-respondents denied that the snit land vested
in the plaintiff on the strength of the Resolution aforesaid.                 H

                                   219
    220         SUPREME COURT REPORTS                 ~1989]   Supp, 2 S.C.R.

           The Trial Court held that the plaintiff had proved its title to the
A   suit land and that it was in possession of the suit property till 7.7.1952.
    It also held that the suit having been filed on 3rd March 1964, the same
    was not barred under section 65 of the Limitation Act. As regards
    Rasala Lines, the trial Court did not uphold the claim of tht plaintiff,
    because of its admisSlon that it did not own the buildings standing
B   thereon. As such the Trial Court decreed the suit for possession in
    respect of Parade Ground alone and dismissed the same in respect of
    Rasala Lines .

         . The first defendant Union of India preferred an appeal to the
    High .Court against the decree of the trial Court and the plaintiff filed
    cross-objections in so far as the suit was dismissed i.n respect of.Rasala
c   Lines. The High Court dismissed the cross-objection filed by the appel-
    lant but allowed the appeal of the Union of India holding inter alia that
    there was nothing on record to show that the Municipality was formally
    handed over ~he land in question and that its right over the land was
    never recognised by the Union of India or the State Government. The
o   High Court also held that the suit was liable to be dismissed as being
    .time-barred. · Hence this appeal by the {llaintiff-Municipality by
    Special Leave.                        ·

          Dismissing the appeal, this Court,

E         HELD: With the accession and completion of territorial and
    financial integration and part 'B' states forming part of Indian Union,
    !he lands and buildings in the use or occupation of the former Indian
    State Government, as distinguished from the private properties of the
    Rulers, were transferred and vested in the Government of India and
    became its property. l226D]
F
          The right to sell such lands of the State Government were with the
    Government concerned. It is that right that was given to the
    Municipalities after the formation of the Union of the United States of
    Saurashtra. It cannot be treated therefore, as a transfer of title in
    respect of those lands to the municipality but the right t9 execute (he
G   sale deed in respect of those lands of the Government was transferred or
    vested in the municipalities concerned. This authorisation itself was
    later cancelled by the Government of Gujarat under Order dated
    26.3.63~ [229C-D; GI

         Possession of the land was also not taken by the municipality at
ff any time. It is not open to the appellant to rely on the principle that
   possession follows title. [232B]
               MUNICIPALITY v. U.0.1. (V. RAMASWAMI, J.]                 221

        Not only there is evidence to show that physical possession was
 with the defendants but aLo there could not be any legal possession with        A
 the plaintiff as the title to the land is not vested in them. Since the suit
 itself is for possession based on title and the plaintiffs have not proved
 title it is not necessary for the defendent to plead or prove adverse
 possession. [232C]
                                                                                 B
       CIVIL APPELLATE JURISDICTION: Civil Appeal No. 365
 of 1981.

      From the Judgment and Order dated 23.3.1978 of the Gujarat
 High Court in First Appeal No. 236 of· 1971.

       R.F. Nariman, P.H. Parekh and M.K. Pandit for the Appellant.              C

     R.P. Bhatt, C.V. Sobba Rao, P.P. Srivastava, Mrs. H. Wahi and
 M.N. Shroff, (NP) for the Respondents.

       The Judgment of the Court was delivered by                                D
         V. RAMASWAMI, J. The plaintiff-Bhavnagar Municipality are
  the appellants. The suit was filed by the plaintiff for a declaration of its
  title and for possession of the suit property described in the schedule to
  the plaint. They had also prayed for damages for wrongful occupation
  in·respect of a portion of the property and rent for another portion, for      E
  the period from 1st January, 1964 till possession of the property is
  delivered to the plaintiff. The defendants are the Union of India and
  the State of Gujarat. The suit property is described in two parts in the
. schedule to the plaint. The first part consist of a latge extent of vacant
  land which is referred· to in these proceedings as Parade Ground. The
  second part is covered by Survey Nos. 162, 163, 164 and 165 on which           F
  structures of old Lancer's lines, are standing and ·certain evacuees were
  occupying at the time of the suit. This second part is sometimes refer-
  red to as Lancers quarters and also sometimes as Rasala Lines. The
  plaintiffs' case was that by Resolution No. 37 dated 19th January, 1984
  published in the Bhavnagar Darbar Gazette dated 24th January, 1948:
                                                                                 G
             " ... The Bhavnagar State bestowed the rights of the ·state
             of Bhavnagar to effect sales of land in the Municipal area of
             Bhavnagar City in Bhavnagar Municipality and by a further
             Order.No. 77 of dated the 29th of February, 1948 the State
             vested the said lands except four plots of land mentioned
             tl!_erein in the Bhavnagar Municipality ... "
    222         SUPREME COURT REPORTS               [19891 Supp. 2 S.C.R.

    The further case of the plaintiff was that by virtue of these orders the
A   entire suit lands mentioned in the plaint have:

                "vested in and belongs to the plaintiff who entered into and
                remained in possession thereof till recently."

B   And that subsequent to the erstwhile State of Bhavnagar merging in
    the United States of Kathiawar which was subsequently known as the
    State of Saurashtra, the Government of Saurashtra recognised the
    aforesaid Resolutions dated 19th January, 1948 and 29th February,
    1948. The further case of the plaintiff was the Government of India
    claiming to be the owner of the Parade Ground, in or about June, 1961
    fixed the boundary marks and that the Government of India's entry
c   into possession constitute wrongful encroachment. The plaintiff
    claimed damages for this wrongful occupation of the Parade Ground
    from 1st January, 1964 till they vacate the wrongful encroachment and
    hand over possession to the plaintiff.

D        So far as the Lancer quarters or Rasala Lines is concerned it was
   stated in the plaint that the structures in the land coverd by the Survey
   numbers referred to in part 2 of the schedule to the plaint did not
   belong to the plaintiff, that the same were occupied by the State
   Lancers and subsequently by the refugees, and that the plaintiff
   allowed the land and the structures thereon to be used free by the
E  Government.    However, they were entitled to recover rent or compen-
   sation in respect of this land for the period from 1st January, 1954 till
  ,delivery of possession.

          The Union of India filed a written statement which was adopted
   by the State of Gujarat. it was coljtended by the defendants that the
F Parade Ground was used by the Ex-Bhavnagar state forces and that
   barracks and other military buildings used for accommodation of the
   Ex-Bhavnagar state forces known as Lancer's Lines were in existence
   for a long time prior to 1948 in the suit property known as Rasala Lines
   and that consequent upon the Bhavnagar State acceding to the Indian
   Union and consequent on the Federal Financial Integration of Statys,
0  the  accommodation, lands and buildings in the use or occupation of
   the Ex-state forces were transferred to the Government of India and
   became its property. The Board of officers consisting of six members
   including Executive Engineer, Public Works Department as repre-
   sentative of the State of Saurashtra was constituted and the buildings
   known as infantry lines and Lancer's lines were taken over on 7th
H .June, 1951 by the Government of India. They further stated that the
             MUNICIPALITY v. U.0.I. (V. RAMASWAMI, J.]               223

State of Saurashtra admitted the ownership of the suit property and
                                                                            A
the structures vested in the Defence Ministry from the date of Finan-
cial integration and when the State of Saurashtra, (as it was then
known) required the land of the Parade Ground for this use that was
handed over to the Saurashtra Government on 7th July, 1952 by \he
military engineers of the Government of India. The defendants denied
that either the Resolution No. 37 dated 19th January, 1948 or Resolu-       B
tion No. 77 dated 29th February, 1948 vested in the plaintiff the land
of the Parade Ground or the lands and buildings known as Rasala
Lines. The defendants also deined that they were t~espassers or liable
to pay damages and rent in respect of the suit property.

      The Trial Court held that the plaintiff had proved its title to the
suit land and that they were in possession in the suit property till 7th    c
July, 1952 when physical possession was handed oveLbv the military
engineers -of the Government of India to the State Public Works
Department of the State of Saurashtra. Since the suit was ffled on 3rd
March, 1964 the suit was not barred under section 65 of the Limita-
tions Act, 1963. However, on the ground that in respect of Rasala           D
Lines the plaintiff have admitted that they did not own the buildings
thereon, they are not entitled to recover possession of the lands
covered by tt.e Survey numbers described in the second part of the
schedule to the plaint. Accordingly, the suit for possession was
decreed in respect of the Parade Ground and dismissed in respect of
the Rasala Lines.                                                           E

      The first defendant-Union of India, filed an appeal to the High
Court of Gujarat against this judgment and decree of the Trial Court
and the Bhavnagar Municipality filed cross-objections in so far as the
suit was dismissed in respect of the land comprised in the Rasala Lines.
The High Court dismissed the cross-objections filed by the Municipa-        F
lity holding that Resolution No. 37 dated 19th January, 1948 was con-
fined to open lands and not to lands below standing structures and
that, therefore, the cross-objections relating to the Rasala Lines could
not be sustained. The High Court however allowed the appeal of the
Union of India in the view that even assuming that by virtue of the
Resolution No. 37 dated 19th January, 1948 the title to the Parade          G
Ground had come to be vested in the Municipality, there was nothing
on record to show that the Municipality was formally handed over the
land in question, that its right over the land was never recognised by
the Union of India or the State Government and that the various
documents filed in this case, would go to show that as early as July,
 1950 these lands and other properties which were in occupation of the      H
    224         SUPREME COURT REPORTS                [ 1989] Supp. 2 S.C.R.

A erstwhile state military had been taken over and remained under the
  control of the Defence Ministry of the Uni~n of India and that the
  possession was handed over by the Union of Inida to the State Govern-
  ment on 7th July, 1952 for use. The High Court also held since the
  plaintiff had not shown possession of the suit building within 12 years
  prior to 3rd March, 1964 when the suit was filed, the suit was also
B liable to be dismissed as barred by limitation, and that, therefore it was
  not necessary either to deal with tbe argument of the defendants that
  the vesting that was contemplated in the Resolution 37 dated 19th
  January, 1948 and Resolution 77 dated 29th February, 1948 was not
  intended to be vesting in its full amplitude, but was meant only to
  appoint the Municipality as agent of the State to dispose of the land.
C The plaintiff-Municipality have filed this appeal under Article 136(1)
  of the Constitution against this judgment of the High Court ·of
  Gujarat.

         The learned counsel for the appellant contended that the High
  Court should have given a finding on title as Article 65 of the Limita-
D tion Act, 1963 is applicable to this case since the suit was filed on 3rd
  March, 1964, and that on the finding of the Trial Court in favour of the
  plaintiff on' the question of title in respect of 'Parade Ground', and in
  the absence of specific plea of adverse possession in the written state-
  ment, the Trial Court's decree should have been confirmed. He also
  assailed the finding of the High Co11rt on the question whether the
E plaintiff was handed over or taken possession of the suit property in
  pursuance of the Resolution dated 19th January, 1948. We are of
  opinion that the learned counsel for the appellant is well-founded in
  his contention that Article 65 of the Limitation Act, 1963 is applicable
  in this case as the suit was filed on 3rd March, 1964 but the Act had
  come into force on 1st January, 1964. Therefore, since the suit is for
F possession based on title to the suit property and the defendants had
  denied title, of the plaintiff, it is necessary for the Court to give a
  finding Off title of the plaintiff even if the defendants in possession had
  not pleaded adverse possession. We also think that it is just and neces-
  sary that we ourself consider the question of title and that it is not
  necessary to re.mand the case for that purpose. We, therefore, proceed
G to consider the question of title of the plaintiff to the suit properties.

        In order to understand the nature and implication of the Resolu-
  tion No. 37 and the other documents relied on by the learned counsel
  for the appellants in support of the claim of title of the Municipality fQi
  the Parade Ground and the land in Rasala Lines or Lancer quarters it
H is necessary to trace briefly the constitutional history of ,accession and
                      MUNICIPALITY v. U.0.1. [V. RAMASWAMJ, J.]             225

         integration of the Indian States with the Union of India. The federal
         scheme embodied in the Government of India Act, 1935, was the first A
         effort to provide for a constitutional relationship between the Indian
         States and the Government of India on a federal basis. Section 311 of
         the Government of India Act, 1935 defined as 'Indian State' as mean-
         ing any territory not being part of 'British India'. whether described as
         a State, an Estate, a Jagir or otherwise. Part II of the Government of B
         India Act, 1935 provided for the establishment of a Federation of
         India by accession of Indian States. In spite of the protracted negotia-
         tions that followed the enactment of Government of India Act, the
         Federation envisaged under the Act could not come into existence in
         view of the States not opting for accession. But by the setting up of the
         new dominions under the Indian Independence Act, 1947 the suze-
         rainty of the British Crown over !ndian States lapsed along with it all  c
         functions, obligations, powers, rights, authority or jurisdiction exercis-
         able by the Crown. However, the proviso to section 7 provided that
         effect shall, as nearly as may be continued to be given by the Dominion
         Government, to the provisions of any agreement between the Indian
         State and the Crown in regard to matters specified therein until the -D
         same are denounced by either of the parties. It was in this background
         the Dominion Government of India created a new department called
         the State Department on the 5th July, 1947 to deal with matters arising
         between the Central Government and the Indian States. This depart-
         ment was in charge of Sardar Patel. After persistent negotiations and
         persuation, barring three States, all the Indian States in the geographi- E
         cal limits of India had acceded to the Indian Dominion by 15th August,
         1947. The integration of States however did not follow uniform pattern
         in all cases. Merger of States in the provinces geographically conti-
         guous to them was one form of integration; the second was the conver-
         sion of States into Central administered areas. The third category are
         those cases where several small groups of States which could be con-
         solidated into sizeable units by uniting them to form unions of States
..   1
         on the basis of full transfer of power from the rulers to the people. This
         form of consolidation of States was adopted in Kathiawar covering 222
         States and Estates with varying territories and jurisdiction. The
         scheme for the constitution of the United State of Kathiawar, later
         known as Saurashtra was finalised and the covenant was signed on G
         23rd January, 1948 and the new State of Saurashtra inaugurated on the
         15th February, 1948, vide Government of India, Ministry of States,
         "White Paper on Indian States".

              The financial integration was simultaneously taken up with
         accession and territorial integration. The Indian States Finances        H


..
      226         SUPREME COURT REPORTS.               [1989) Supp. 2 S.C.R.

      Enquiry Committee headed by Shri V.T. Krishnamachari was con-
A     stituted by Resolution dated 27th October, 1948 of the Government of
      India and the recommendations were incorporated in the Constitu-
      tion. On the adoption of the new Constitution of India the process of
      territorial integration of States thus became complete. Under the new
      Constitution all the constituent units both Provinces and States were        .,
B     classified into three classes. namely, Part 'A' States which correspond      '
      to the former Governor's Provinces; Part 'B' States which comprised the
      Union of States and the States of Hyderabad, Mysore and Jammu and
      Kashmir; and Part 'C' States which correspond to the former Chief
      Commissioners' Provinces. This territorial integration of States is
      effected by defining in Article 1 of the Constitution that the territories
      of India include the territories of all the States specified in Parts A, B
c     and C of the First Schedule. Thus with the inauguration of the new
      Constitution on the 26th November, 1949 the merged States have Jost
      all vestiges of existence as separate 'entities.

            With the accession and completion of territorial and financial
D     integration and the Part 'B' States forming part of Indian Union, the
      lands and buildings in the use or occupation of the former Indian State
      Governments, have distinguished from the private properties of the
      rulers, were transferred and vested in the Government of India and
      became its property.

E           The documents which the learned counsel 'for the plaintiff
      strongly relied in support of title to the suit property are Resolution
      No. 37>dated 19th January, 1948 and Resolution No. 77 dated 29th
      February, 1948. A translation of these documents which are in
      Gujarati, have been marked as Ex. 87 and they reads as under:

F                 "It may be noted by your Honourable Highness that we
                  have personally made application regarding some matter
                  regarding our Bhavnagar State in respect of the Schell\e of
                  making one State of Saurashtra: Kathiawar: and the fol-
                  lowing arrangement is required to be made.

0                 1,2, 3,4.

                  5. The right of the State to sell the land in the limit of the
                  Municipalities of Bhavnagar City and of the District Towns
                  (Kasha) vested hereby in the Municipalities concerned
                  henceforth; and the amount of the rent and lease of the
I-I               Town Planning area shall be given to the Bhavnagar City
 MUNICIPALITY v. U.0.I. IV. RAMASWAMI, J.]                227

Municipality henceforth. Sheth Abdul Hussain Gulamhus-
sain and Sheth Masumali Zafarali has given their plot for        A
Mahatma Gandhi Mandir. And they have made application
for getting the plot of the land of the same area for building
their own houses. I have made recommendation thereun-
der for giving the same to them without taking Premium
(Sukhadi). And if the recommendatio'l which I have made          B
is accepted the said approval may not get disturbed in these
rights are given to Municipality.

6, 7, 8, 9, 10, 11, 12, 13, 14.

Forwarded with compliments to the Honourable Your
Highness for passing necessary order in favour with kind-        C
ness, regarding the implementation accordingly in respect
of the approval of the scheme of the above stated Para-
graphs No. 1 to 14 after going through the above stated
facts.
                                                                 D
                 Sd/-Anantrai Prabhashanker,
                        Chief Diwan
                     Sansthan Bhavnagar

H.D.R. No. 37
                                                                 E
Upon considering all the facts stated above, under the
above recommendation, the schemes according to the
Darakast made in the aforesaid paragraphs from 1 to 14 are
sanctioned.

Papers returned to Chief Diwan ..for information and for p
necessary action to be taken.

Dt. 19.1.1948
                                       Sd/-Krishkumarsinhji
                                                  Maharaj
                                            S. Bhavnagar." G

"The right of the State to sell the land in the limits of the
Municipalities of Bhavnagar City and of the District Towns
(Kasba) has been vested in the Municipalities concerned
under the Di. R. No. 37 dated 19.1.1948 of His Highness.
                                                                 H
    228         SUPREME COURT REPORTS                [1989] Supp. 2 S.C.R.

               It is deemed proper to make clarification that the council of
A              Ministers had decided to keep in reserve the below
               mentioned lands in Bhavnagar for the use of the State.
               Therefore the same are not included in the lands handed
               over to the Municipality. Particulars of the lands:-

B              1. Open land of Gangajalia Talav situated at South side of
               the theatre and the temple and wire fencing done near
               Gangajalia Talav.

               2. The open square plot (Chogan) situated opposite to
               Gangnath Mahadev Towards Darbar Hall and Nakubag.
c              3. The open square plot (Chogan) opposite to Darabari
               Motor Garrage.

               4. A triangular piece of the land opposite to Sir Takhat-
               sinhji Hospital near Kailasbaug.
D
               Information regarding this resolution may be sent to the
               parties concerned.

               Dt. 29.3.48
                                                       Sd/-Jadanji K. Mode
E                                                           Chief Minister"

    The translation also does not appear to be accurate, as in another
    translation made, which were filed with the special leave petition the
    first operative portion is translated as follows:

F              "the right of the State to sell the land be transferred to the
               Municipalities of proper Bhavnager and other Municipali-
               ties of Kasbas, and the rent which is being realised of the
               plots of Town Planning Area henceforth be realised by
               Bhavnagar Municipality."

G   Again the first paragraph of Resolution No. 77 is translated as:

               "Proper Bhavnagar and Kasba Municipalities have been
               given the right of the State to sell the land within the limits
               of the Municipality as in H.D.R. No. 37 dated 19.1.1948."

H   In fact, in the suit notice under se~tion 80, Civil Procedure Code the
               MUNICIPALITY v. U.0.1. IV. RAMASWAMI, J.I                229

 plaintiff have stated that these orders "bestowed the rights of the then
                                                                               A.
 State of Bhavnagar to effect the sales of land in the Municipal area."

        We have already noticed that the Saurashtra State was formed by
  consolidation of several small States. The scheme referred· to in the
  first paragraph was the scheme of consolidation of the States into
  United States of Saurashtra. The 14 proposals in that letter were the        B
  arrangements that were required to be made in order to give effect to
  the scheme. There should have been number of Municipalities in the
  States which had merged into a union under the covenant. The land
  within the limits of Municipalities referred to in the orders extracted
  above were the lands of the Government of the States concerned
  because obviously the covenants of accession and integration under
  the scheme of forming Union of States could not deal with the private        c
  properties of the rulers. The right to sell such lands of the State
  Government were with the Government concerned. It is that right in
  our view, that was given to the Municipalities after the formation of
  the Union of the. United States of Saurashtra. It cannot be treated,
  therefore, as a transfer of title in respect of those lands to the munici-   D
  pality but the nght to execute the sale deed in respect of those lands of
. the Government was transferred or vested in the Municipalities con-
  cerned. It amounts conferring an authority or authorising the
  Municipalities to execute the sale deeds in respect of Government
  lands situate within the Municipality, which should normally have
  been dpne by the State Government. The subsequent correspondance             E
  and orders of the Government also show that the Government of India
  understood and treated these orders only as authorisation or transfer-'
  ring of power to execute sale deeds and collect rent in respect of
  Government lands situated within the Municipality. The Government
  had treated those orders as liable for cancellation or modification. If
  the effect of those orders were transfer and vesting of title in the         F
  Municipalities, no question divesting of title would or could arise.
  Resolution 77 itself was subsequent to Resolution 37 but .excluded
  certain lands from the scope of Resolution 37. This could only be on
  the basis that the title had not vested in the Municipalities under
  Resolution 37.
                                                                               G
       Again this authorisation itself was cancelled by the Government
 of Gujarat under Order No. LMN 546-14576-A.G. dated 26.3.63. But
 since a number of Municipalities made representation to the Govern-
 ment to reconsider the same, the Government reconsider the entire
 case and decided that the right to sell plots of land given under Resolu-
 tion No. 37 dated 19th January, 1948 by the State of Bhavnagar to all         H
     230        SUPREME COURT REPORTS                [ 1989] Supp. 2 S.C.R.

     the Municipalities of Old Bhavnagar States, and the right to give the
A same .on rent-lease and to take the mcome therefrom shall be enjoyed
     by the Municipalities subject to the conditions mentioned in the letter
     of the Government dated 10th August, 1965. These conditions read as
     follows:

B               "1. The right to sell the land and to give it on rent-lease
                and to get the out come therefrom shall apply to the land of
                the Government coming within the limit to the Municipal-
                ity decided fixed on the date of the Order of the State of



(;
                Bhavnagar i.e. dt. 19.1.48. And the same shall not apply to
                the land falling within the extended limit if the limit of the
                Municipality is increased.

                2. The procedure to be followed for giving this land in sale
                                                                                  -
                or on rent-lease shall generally be followed according to
                the rules of Government, that is to say public auction shall
                be made.
D
                3. If the approximate value of the land to be given on sale
                or on rent-lease comes to Rs.25 per sq. metre or it is more
                than that the sale or the lease-land shall be considered final
                after permission of the revenue department of the Govern-
                ment for sale or lease is obtained.
E
                4. The sale or rent-lease of this land shall be done accord-
                ing to the purpose decided in the scheme following the
                Town Development Scheme of the Municipality, that is to
                say if the locality is fixed in the development scheme for
                industrial or residential purpose the land of the suit locality
F               shall be given for that particular purpose. A.nd if some
                lands are fixed to be reserved for keeping open or for the
                purpose of garden or for some public purpose in the de-
                velopment scheme, tlie said land shall not be given on sale
                or on lease for private purpose.

0                5. The Municipalities shall have to deposit the income
                 obtained from sale or rent-lease of the land of the aforesaid
                 land of the Government, in a separate fund and the same
                 shall be used for the work of the development of the city
                 tow·n~"


If These conditions are inconsistent wi\h the plaintiffs case; of absolute
                  MUNICIPALITY v. U.0.1. [V. RAMASWAMI, J.]               231

     ownership in themselves. We have, therefore, no doubt that what was
     conferred on the Municipality under Resolution 37 dated 19th                A
     January, 1948 was only a right or an authorisation to sell the land as
     representing the Government but not a vesting of the title itself in the
     Municipality.

            The other documents relied on by the learned counsel in support      B
     of his contention that the title itself should have been vested in the
     Municipality may now be noticed. Ex. 95 dated 21st July, 1950 is a
     copy of the proceedings of the Board of Officers of the Defence
     Department in which they have described detailed inventory of
..   Defence department assets, accommodations, installations; furniture,
     fitting and connected stores pertaining to Saurashtra state forces in
     Bhavnagar. In this while referring to the suit landswlifch .was stated to   c
     be in their possession a remark has been made to the effect:

                 "The Bhavnagar Municipality claims the land in question
                 on. the basis that the whole assets of the Bhavnagar town
                 planning Department had been transferred to them by the         D
                 orders of his Highness, Bhavnagar, State in 1948 and they
                 are collecting the Revenue from the farmers. The claim will
                 subsequently have to be verified."

     We are unable to see how on the basis of this letter the Municipality
     could claim a title. At best it may be treated as evidence that in July,    E
      1950 the Municipality made a claim for the land. But at the same time
     it may be pointed that the document is evidence against the Municipal-
     ity in so far as it treated the properties as belonging to the Defence
     Department of the Government of India and that the Defence Depart-
     ment were in possession of the same. In the two letters Ex. 73 dated
     30.11.1950 and Ex. 72 dated 15.6.1951 which are communications              F
     from the Government of Saurashtra it is only stated that suit lands do
     not vest to the Government of Saurashtra. As seen earlier, possession
     of the lands were handed over by the Government of India to the State
     Government only on 7.7.1952 and, therefore, these letters cannot be
     of any help to the appellant. However, it may be mentioned, that the
     Government of Saurashtra have corrected themselves in their com-            G
     munication dated 6th May, 1952 and stated that the claim of the
     plaintiff that tne lands were vested in Bhavnagar Municipality was
     erroneous and that the land is vested and is in the possession of
     Government of India. The pl&intiff have also admitted that the struc-
     tures in Rasala Lines are not shown to be that of the Municipality in
     the Municipal records and even in the plaint they did not claim the         H
    232         SUPREME COURT REPORTS                [1989] Supp. 2 S.C.R.

A   structures as belonging to the Municipality. In the suit notice the
    plaintiff have also not claimed that they "entered into and remained in
    possession" of the land as stated in the plaint para 5. It is also in
    evidence that these buildings were there long before 1948 and that,
    th~refore, the land alone could not have been vested in the Municipa-
    lity without buildings. In fact, the Resolution No. 37 dated 19th
B   January, 1948 which is relied on does not make any distinction and it
    refers to only lands and not buildings. We, therefore, agree with the
    finding of the High Court that possession of the land was also not
    taken by the Municipality at any time. It is not open to the appellant to
    rely on the principle that possession follows title. In this case not only
    there is evidence to show that physical possession was with the              ,,
c   defendant but also there could not be any legal possession with the
    plaintiff as the title to the land is not vested in them. Since the suit
    itself is for possession based on title and the phiintiff have not proved
    title it is not necessary for the defendant to plead or prove adverse
    possession.

D         In the result the appeal fails and it is dismissed. However, the
    parties will b~ar their respective costs in this Court.

    Y.Lal                                                 Appeal dismissed.