GOVERNMENT OF KERALA & ANR.versusJOSEPH AND OTHERS

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



                              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 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

                                       264
                 GOVERNMENT OF KERALA & ANR. v.                                265
                      JOSEPH AND OTHERS

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-exist-
nec 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]
     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
266          SUPREME COURT REPORTS                        [2023] 11 S.C.R.


a permanent injunction against any proceedings in respect of eviction and
also possession and title of the land in question – Disputed property being
a Government property, was the only ground that was met – Primary
requirement of the civil suit being in connection with an action taken by the
Government was not met thus, the bar enshrined in s.20 cannot be applied.
[Paras 17-19]
     Practice and procedure – Litigation pending for a long time –
Remittance of matter:
      Held: Prudence would not be served by sending back the matter
pending for four decades. [Para 12]

       LIST OF CITATIONS AND OTHER REFERENCES

       Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 : [2001] 1
SCR 948; Chandrabhan v. Saraswati 2022 SCC OnLine SC 1273; Umerkhan
v. Bismillabi (2011) 9 SCC 684 : [2011] 9 SCR 551; Singaram v. Ramanathan
Civil Appeal No. 4939 of 2021; Radhamoni Debi v. Collector of Khulna
1900 SCC OnLine PC 4; Maharaja Sri Chandra Nandi v. Baijnath Jugal
Kishore AIR 1935 PC 36; Parsinni v. Sukhi (1993) 4 SCC 375:[1993] 2
Suppl. SCR 315; Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC
779 : [2004] 1 Suppl. SCR 255; M. Venkatesh v. Bangalore Development
Authority (2015) 17 SCC 1 : [2015] 11 SCR 454; Ravinder Kaur Grewal v.
Manjit Kaur (2019) 8 SCC 729 : [2019] 11 SCR 74; M Siddiq (D) through
Lrs v. Mahant Suresh Das & Ors. (2020) 1 SCC 1 : [2019] 18 SCR 1; Thakur
Kishan Singh v. Arvind Kumar (1994) 6 SCC 591 : [1994] 3 Suppl. SCR
199; Gaya Prasad Dikshit v. Dr. Nirmal Chander and Anr. (1984) 2 SCC
286 : [1984] 2 SCR 287; Mallikarjunaiah v. Nanjaiah (2019) 15 SCC 756
: [2019] 6 SCR 1073; Annakili v. A. Vedanayagam (2007) 14 SCC 308 :
[2007] 11 SCR 517; Des Raj and Others v. Bhagat Ram (2007) 9 SCC 641
: [2007] 2 SCR 892; L.N. Aswathama v. P. Prakash (2009) 13 SCC 229 :
[2009] 10 SCR 615; Chatti Konati Rao v. Palle Venkata Subba Rao (2010)
14 SCC 316 : [2010] 15 SCR 923; Brijesh Kumar & Anr. v. Shardabai
(dead) by LRs. (2019) 9 SCC 369 : [2019] 14 SCR 964; Gurudwara Sahab
v. Gram Panchayat Village Sirthala (2014) 1 SCC 669; Narasamma & Ors.
v. A. Krishnappa (Dead) Through LRs. (2020) 15 SCC 218 : [2020] 7 SCR
528; Balkrishna v. Satyaprakash (2001) 2 SCC 498 : [2001] 1 SCR 480;
State of Rajasthan v. Harphool Singh (2000) 5 SCC 652 : [2000] 3 SCR
                 GOVERNMENT OF KERALA & ANR. v.                               267
                      JOSEPH AND OTHERS

958; Mandal Revenue Officer v. Goundla Venkaiah (2010) 2 SCC 461; V.
Rajeshwari v. T.C. Saravanabava (2004) 1 SCC 551 : [2003] 6 Suppl. SCR
927; State of Uttrakhand v. Mandir Sri Laxman Sidh Maharaj (2017) 9 SCC
579 : [2017] 14 SCR 257; Dharampal (Dead) v. Punjab Wakf Board (2018)
11 SCC 449 : [2017] 8 SCR 316; Annasaheb Bapusaheb Patil v. Balwant
(1995) 2 SCC 543 : [1995] 1 SCR 88; Mohan Lal v. Mirza Abdul Gaffar
(1996) 1 SCC 639 : [1995] 6 Suppl. SCR 638; P.T. Munichikkanna Reddy v.
Revamma (2007) 6 SCC 59 : [2007] 5 SCR 491; Janata Dal Party v. Indian
National Congress (2014) 16 SCC 731 : [2014] 1 SCR 747; State of Haryana
v. Mukesh Kumar (2011) 10 SCC 404 : [2011] 14 SCR 211 – referred to.
        Perry v. Clissold [1907] A.C. 73 – referred to.

        OTHER CASE DETAILS INCLUDING IMPUGNED
               ORDER AND APPEARANCES

        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3142 of
2010.
      From the Judgment and Order dated 05.08.2009 of the High Court
of Kerala at Ernakulam in SA No. 740 of 1995.
        Appearances:
     Nishe Rajen Shonker, Mrs. Anu K Joy, Abraham C. Mathew, Alim
Anvar, Advs. for the Appellants.
     P. Vinay Kumar, K. Parameshwar, Ms. Arti Gupta, Ms. Kanti,
Chinmay Kangokar, Advs. for the Respondents.

         JUDGMENT/ORDER OF THE SUPREME COURT

                                 JUDGMENT
        SANJAY KAROL J.
       1. This appeal assails a judgement and order passed by the High Court of
Kerala dated 5th August, 2009 in Second Appeal No.740 of 1995 by which the
findings returned in the First Appeal dated 3rd April,1995, by the District Judge,
Thodupuzha, in Appeal Suit No. 3 of 1991 were overturned and the land, subject
matter of dispute, was stated to be rightfully belonging to the Respondents herein,
namely Joseph, by virtue of the principle of adverse possession.
268            SUPREME COURT REPORTS                         [2023] 11 S.C.R.


       Background
       2. The property, subject matter of dispute, measures 30 cents bearing
survey Nos.545/7/1,545/8A2 and 545/8B3 of Kudayathoor village. The said
property is stated to be Government Puramboke land. Such fact appears
to be undisputed. The case put forward by the respondents, (claimants of
adverse possession)1 against which the present appeal stands filed, is that
Joseph had acquired title to the land of which he had been in possession
and in continued enjoyment of, since 1940.
       3. The Tahsildar, District Thodupuzha, issued notice to the claimants
for unauthorised occupation of Government land on 20th February 1982, and
thus began the long-standing litigation that is before us. Joseph-the original
occupier passed away on 9th August 1982. The Assistant Collector, Idukki,
vide order dated 11th March 1983 dismissed the appeal filed against the
order of the Tahsildar.
        4. Legal representatives of the claimants filed a suit for injunction
on 14th April 1983. The Court of the Munsiff allowed the suit on 31st July
1987 and on remand, vide order dated 16th December, 1989 from an appeal
filed by the State, on the ground of the non-opportunity of production of
evidence as also cross-examination of the witnesses for the State, confirmed
its original decree with a judgement and order dated 21st July 1990.
       First Appeal
      5. The question, the Court in its wisdom framed for its consideration
was whether the plaintiffs(respondents herein) had made out a case for
declaration and injunction and whether the decree passed by the Court
below was sustainable or not.
       5.1 It was observed that the injunction was clearly a response to the
notice dated 3rd of May, 1982, therefore, it was hit by Section 20 of the Kerala
Land Conservancy Act,19572. The Act permits only those suits which are
filed against an order under the said act in respect of lands that do not belong
to the Government or are not puramboke land. The same was also hit by the
Proviso to Section 20 which permits such suits to be filed within one year of
the date of notice. In this regard, the notice in the present case was issued on

1   Hereafter referred as Claimants.
2   Hereinafter, The Act
               GOVERNMENT OF KERALA & ANR. v.                             269
             JOSEPH AND OTHERS [SANJAY KAROL, J.]

22nd February, 1982 and the suit was filed on 14th April, 1983 thereby being
outside the permissible limit of one year.
      5.2 It was observed that the witnesses produced by the plaintiffs
were “rendering lip-service to the plaintiffs” and their testimonies in
respect of the age of the trees planted on the disputed property varied
greatly. No independent witness(es) or commission was taken to prove
the age of the improvements made. A report relied on by the plaintiffs,
takes note of improvements made on thedisputed property, over 35 years
ago and neither the report nor the person who prepared such report was
before the Court.
       5.3 Furthermore, it was observed that the plaintiffs could not adduce
any evidence to prove their possessionof thedisputed property for more
than the statutory period of 30 years. As per the of testimony of PW 1, the
plaintiffswere residingon the land on the south of the disputed property
before 1940. However,no other record was taken to prove the possession
of the plaintiffs over the Government property.
        5.4 It was observed that the title of the Government on land cannot
be lost by placing reliance on “casual advertence” oron the basis of “scanty
material”. It was then held that the classic requirement of adverse possession
is that possession should be open, assertive, hostile and continuous. These
requirements were absent in the case. Lastly it was held that just because
it appears that the order of the AssistantCollector appears to have been
passed as if Avira (son of Joseph, respondent herein) was alive, even though
the legal representatives applied to be impleaded, it could not be expected
of quasi-judicial authorities to follow the procedure for amendment of
cause title with the same rigidness as observed by the Civil Court and that
those seeking to be impleaded owed a duty to satisfy the Court as to what
became of their application for impleadment. Just because the order has
been presumedly passed against a person no longer in the world of living,
does not give the representatives of the plaintiffs (respondents herein) to
treat the same as nullity.
      5.5 In such terms, the judgment and decree passed by the Trial Court
dated 21stJuly, 1990 was set asidevide judgment and order dated 3rd April,
1995.
      Second Appeal-The Impugned Judgement
     6. The learned Court below in its judgement dated 5th August, 2009
examined the decisions that led to the appeal before it and held that the
270           SUPREME COURT REPORTS                         [2023] 11 S.C.R.


lower Appellate Court’s approach stating that the suit was barred by virtue
of the Act was not a good law, as the suit filed by the respondents herein
was a suit for declaration of perfected title by virtue of adverse possession
and not, a challenge against the notice issued by the Tahsildar. The second
aspect on which the High Court differs with the lowerAppellate Court was
on the point that the testimony of PWs1 to 6 stood unshaken.
       6.1 It was observed that the Tahsildar, shorn of any basis had estimated
the period of encroachment as 16 years as against the claim of 40 years. It
was then held that on perusalof evidence as also other facts regarding the
improvements in the property showed that the encroachment was done long
before the L.C. proceedings in the suit.
       6.2 It was concluded that the finding of there being no scope of adverse
possession being given to the respondents herein is fallacious and is based
on erroneous consideration of evidence. In that event, they would be entitled
to the relief of adverse possession upon land which, as it stands recorded in
the impugned judgement, they have been in possession for over 50 years.
      6.3 In that view of the matter, the judgement of the Munsiff Court was
upheld, granting the claimants adverse possession over the land in question
and, overturning the judgement rendered by the Court of First Appeal.
       Consideration By This Court
      7. In deciding the present dispute, this Court must examine the same
from two angles. One, whether the Judgement impugned, arising out of
Second Appeal meets the established criteria for Second Appeal or not?;
andtwo, whether the respondents herein are entitled to the relief of adverse
possession or is the claim so made, barred by the Kerala Land Conservancy
Act,1957?
        8. For an appeal to be maintainable under Section 100, Code of
Civil Procedure(‘CPC’, for brevity) it must fulfil certain well-established
requirements. The primary and most important of them all is that the appeal
should pose a substantial question of law. The sort of question that qualifies
this criterion has been time and again reiterated by this Court. We may only
refer to Santosh Hazari v. Purushottam Tiwari3 (three-Judge Bench)
wherein this Court observed as follows:
3   (2001) 3 SCC 179
               GOVERNMENT OF KERALA & ANR. v.                             271
             JOSEPH AND OTHERS [SANJAY KAROL, J.]

      “12. The phrase “substantial question of law”, as occurring in the
      amended Section 100 is not defined in the Code. The word substantial,
      as qualifying “question of law”, means — of having substance,
      essential, real, of sound worth, important or considerable. It is to be
      understood as something in contradistinction with — technical, of no
      substance or consequence, or academic merely. However, it is clear
      that the legislature has chosen not to qualify the scope of “substantial
      question of law” by suffixing the words “of general importance” as has
      been done in many other provisions such as Section 109 of the Code
      or Article 133(1)(a) of the Constitution. The substantial question of
      law on which a second appeal shall be heard need not necessarily be
      a substantial question of law of general importance.
      …
      14. A point of law which admits of no two opinions may be a
      proposition of law but cannot be a substantial question of law. To be
      “substantial” a question of law must be debatable, not previously settled
      by law of the land or a binding precedent, and must have a material
      bearing on the decision of the case, if answered either way, insofar as
      the rights of the parties before it are concerned. To be a question of
      law “involving in the case” there must be first a foundation for it laid
      in the pleadings and the question should emerge from the sustainable
      findings of fact arrived at by court of facts and it must be necessary to
      decide that question of law for a just and proper decision of the case.
      An entirely new point raised for the first time before the High Court
      is not a question involved in the case unless it goes to the root of the
      matter. It will, therefore, depend on the facts and circumstance of each
      case whether a question of law is a substantial one and involved in the
      case, or not; the paramount overall consideration being the need for
      striking a judicious balance between the indispensable obligation to do
      justice at all stages and impelling necessity of avoiding prolongation
      in the life of any lis.”
                                                         (Emphasis supplied)
    The principles laid down herein stood recently reiterated in
Chandrabhan v. Saraswati4 (two-Judge Bench).
4   2022 SCC OnLine SC 1273
272            SUPREME COURT REPORTS                         [2023] 11 S.C.R.


       9. A perusal of the judgement impugned 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. The Section 100, CPC jurisdiction is not
akin to the jurisdiction conferred under Section 96 of CPC wherein it is open
for the Court to consider both questions of fact and law. This jurisdiction
is exercisable only when the Court is convinced that the dispute at hand
involves a substantial question of law, and proceeding under this jurisdiction
sans framing questions of such nature renders the proceedings to be “patently
illegal.” [Umerkhan v. Bismillabi5 (two-Judge Bench)
    10. Recently, a Bench of two learned Judges in Singaram v.
Ramanathan6 held as under:
      “This is undoubtedly subject to various well known exceptions which,
      however, cannot permit the Second Appellate Court to interfere with
      the findings of fact as a matter of course. Such restrictions are placed on
      the High Court in order that there is finality to litigation at a particular
      level in the hierarchy of Courts. The limitation on the exercise of power
      by the High Court in the Second Appeal interfering with the judgment
      of the First Appellate Court is premised on high public policy. This
      limitation is sought to be secured by insisting upon the requirement that
      a Second Appeal is considered only when there is a substantial question
      of law. Therefore, the existence of substantial question of law and the
      judgment which revolves around answering the substantial questions
      of law are not mere formalities. They are meant to be adhered to.”
                                                          (Emphasis supplied)
      11. In view of the principles laid down in the above stated judgements,
the impugned judgement must be faulted with for not complying with the
well-established contours of Section 100, CPC.
       12. We have hitherto observed that the instant litigation has continued
for a considerable period of time, i.e., four decades. Prudence would not
be served by sending this matter back to the court below for consideration
in light of the above discussion and, therefore, with an aim to put an end to
the matter, this Court proceeds to examine the claim of adverse possession
on its own merits, as is so argued across the bar.
5   (2011) 9 SCC 684
6   Civil Appeal No. 4939 of 2021
               GOVERNMENT OF KERALA & ANR. v.                              273
             JOSEPH AND OTHERS [SANJAY KAROL, J.]

      13. Thus, this Court is required to consider as to whether the claimants
have perfected their title over the property, subject matter of dispute,by
adverse possession.
       14. It is contended by the State that a question of adverse possession
does not arise, on two grounds –one, that the land is undisputedly
Government land and two, that the respondents had possession of such
land only for a period of 15 years which is less than required period of 30
years, after which adverse possession could be claimed against the State.
Further, it is submitted that Section 20 of the Act bars any suit or other legal
proceedings against the Government in respect of any action taken by it
under this Act in respect of unauthorised occupation of land, and,since the
notice which initiated the present proceedings under the instant act, the
proceedings that it gave rise to, were barred by law.
     15. The provision reads as under-
     “20. Saving of suits by persons aggrieved by proceedings under
     this Act- No suit against the Government shall be entertained in
     any civil Court in respect of any order passed under this act except
     upon the ground and in respect of which such order has been
     passed is not and which is the property of government whether
     a poramboke or not.
     Provided that civil courts shall not take cognizance of any such suit
     has it shall be instituted within one year from the date on which the
     cause of action arose.”
       16. The Court of First Appeal records that the instant litigation is
barred by the above stated provision of law as the suit for injunction had
been filed in a manner of retaliation against the notice issued by the Tehsildar.
The Second Appellate Court, per contra, records that the suit was not a suit
for injunction but a suit for declaration of title, same having come to rest
upon the respondents herein by virtue of adverse possession and, therefore,
the above provision would not impede the proceedings.
      17. A reading of the provision barring the jurisdiction of civil suits
in respect of proceedings initiated under the act, reveals the following
ingredients for such a bar to apply :
      i)    no suit in any Civil Court;
      ii)   in respect of any order under this Act;
274            SUPREME COURT REPORTS                        [2023] 11 S.C.R.


       iii) the only ground upon which such a suit would be entertained is
            if the notice issued is in regards of property that does not belong
            to the Government;
       iv)   the entertainment of a suit under the exception described in point
             No.(iii) is also circumscribed by the time limit of one year from
             the date of cause of action.
       18. Applying the above-identified ingredients to the facts of the
present case, for the bar to apply the civil suit instituted would have to be
against an order passed by the competent authority under this Act in respect
of unauthorised occupation of Government land. A perusal of the record
shows that the original notice dated 3rd August,1982 was appealed before
the Collector, Idduki, who dismissed the same. No challenge to the said order
of dismissal was filed by the legal representatives of Avira. The recourse
to the law that was taken, was in fact a suit for declaration before the Civil
Court filed on 14th April, 1983 seeking a permanent injunction against any
proceedings in respect of eviction and also possession and title of the land
in question. The third ground i.e., the disputed property being a Government
property, is the only ground that is met. The same is an undisputed fact.
        19. However, the primary requirement of the civil suit being in
connection with an action taken by the Government, remains unmet and
therefore, on the basis of the third ground alone, the bar enshrined in this
Section cannot be applied to the present case. Whether or not the respondents
herein have any right over the above stated Government land is a question
that is required to be considered independently.
     20. The principle of adverse possession has been defined by the Privy
Council in Perry v. Clissold7 in the following terms:
      “It cannot be disputed that a person in possession of land in the assumed
      character of the owner and exercising peaceably the ordinary rights
      of ownership has a perfectly good title against all the world but the
      rightful owner. And if the rightful owner does not come forward and
      assert his title by the process of law within the period prescribed by
      the provisions of the statute of Limitation applicable to the case, his
      right is forever extinguished and the possessory owner acquires an
      absolute title.”
      21. Before proceeding to do so, it is essential to take note of the
law governing such a claim. After a perusal and consideration of various
7   [1907] A.C. 73
                GOVERNMENT OF KERALA & ANR. v.                             275
              JOSEPH AND OTHERS [SANJAY KAROL, J.]

judgements rendered by this Court, the following principles can be
observed:
      21.1 Possession must be open, clear, continuous and hostile to the
claim or possession of the other party; all three classic requirements must
coexist- nec vi, i.e., adequate in continuity; nec clam, i.e., adequate in
publicity; and necprecario, i.e., adverse to a competitor, in denial of title
and knowledge;
        (a) In Radhamoni Debi v. Collector of Khulna8, the Privy Council
            held that-
             “The possession required must be adequate in continuity, in
             publicity, and in extent to show that it is possession adverse to
             the competitor.”
        (b) Further, the Council Maharaja Sri Chandra Nandi v. Baijnath
            Jugal Kishore9 observed-
             “It is sufficient that the possession should be overt and without
             any attempt at concealment, so that the person against whom
             time is running ought, if he exercises due vigilance, to be aware
             of what is happening.”
        (c) A Bench of three judges of this Court in Parsinni v. Sukhi10 held
            that
             “Party claiming adverse possession must prove that his possession
             must be ‘nec vi, nec clam, necprecario’ i.e. peaceful, open and
             continuous. The possession must be adequate, in continuity, in
             publicity and in extent to show that their possession is adverse
             to the true owner.”
        (d) In Karnataka Board of Wakf v. Govt. of India (two-Judge
            Bench)11 it was held:-
             “It is a well-settled principle that a party claiming adverse
             possession must prove that his possession is “nec vi, nec clam,
             necprecario”, that is, peaceful, open and continuous. The
             possession must be adequate in continuity, in publicity and in
             extent to show that their possession is adverse to the true owner.
8    1900 SCC OnLine PC 4
9    AIR 1935 PC 36
10   (1993) 4 SCC 375
11   (2004) 10 SCC 779
276            SUPREME COURT REPORTS                        [2023] 11 S.C.R.


             It must start with a wrongful disposition of the rightful owner
             and be actual, visible, exclusive, hostile and continued over the
             statutory period.”
             This case was relied on in the case of M. Venkatesh v. Bangalore
             Development Authority12 (three-Judge Bench), Ravinder Kaur
             Grewal v. Manjit Kaur13 (three-Judge Bench).
        (e) This Court in a recent case of M Siddiq (D) through LRs v.
            Mahant Suresh Das & Ors.14 (five-Judge Bench) reiterated this
            principle as under-
                   “748. A person who sets up a plea of adverse possession
                   must establish both possession which is peaceful, open and
                   continuous - possession which meets the requirement of
                   being ‘nec vi nec claim and necprecario’. To substantiate a
                   plea of adverse possession, the character of the possession
                   must be adequate in continuity and in the public because
                   the possession has to be to the knowledge of the true owner
                   in order for it to be adverse. These requirements have to be
                   duly established first by adequate pleadings and second by
                   leading sufficient evidence.”
      21.2 The person claiming adverse possession must show clear and
cogent evidence substantiate such claim;
      This Court in Thakur Kishan Singh v. Arvind Kumar15 (two-Judge
Bench) held that -
       “5. A possession of a co-owner or of a licensee or of an agent or a
       permissive possession to become adverse must be established by
       cogent and convincing evidence to show hostile animus and possession
       adverse to the knowledge of real owner. Mere possession for howsoever
       length of time does not result in converting the permissive possession
       into adverse possession…”



12   (2015) 17 SCC 1
13   (2019) 8 SCC 729
14   (2020) 1SCC 1
15   (1994) 6 SCC 591
               GOVERNMENT OF KERALA & ANR. v.                                277
             JOSEPH AND OTHERS [SANJAY KAROL, J.]

     Reference may also be made to M. Siddiq (supra).
      21.3 Mere possession over a property for a long period of time does
not grant the right of adverse possession on its own;
      (a) In Gaya Prasad Dikshit v. Dr. Nirmal Chander and Anr.
          (two-Judge Bench)16, this court observed-
           “1… It is not merely unauthorised possession on termination
           of his licence that enables the licensee to claim title by adverse
           possession but there must be some overt act on the part of the
           licensee to show that he is claiming adverse title. It is possible that
           the licensor may not file an action for the purpose of recovering
           possession of the premises from the licensee after terminating
           his licence but that by itself cannot enable the licensee to claim
           title by adverse possession. There must be some overt act on
           the part of the licensee indicating assertion of hostile title. Mere
           continuance of unauthorised possession even for a period of more
           than 12 years is not enough.”
     Reference may also be made to Arvind Kumar (supra);
     Mallikarjunaiah v. Nanjaiah17 (two-Judge Bench); Uttam Chand
     (supra).
       21.4 Such clear and continuous possession must be accompanied by
animus possidendi-the intention to possess or in other words, the intention
to dispossess the rightful owner; in Karnataka Board of Wakf (supra) it
was observed-
     “…Physical fact of exclusive possession and the animus possidendi to
     hold as owner in exclusion to the actual owner are the most important
     factors that are to be accounted in cases of this nature…”
      (a) The case of Annakili v. A. Vedanayagam18 (two-Judge Bench)
          also shed light on this principle as under-
                 “24. Claim by adverse possession has two elements: (1)
                 the possession of the defendant should become adverse to
16 (1984) 2 SCC 286
17 (2019) 15 SCC 756
18 (2007) 14 SCC 308
278          SUPREME COURT REPORTS                          [2023] 11 S.C.R.


                 the plaintiff; and (2) the defendant must continue to remain
                 in possession for a period of 12 years thereafter. Animus
                 possidendi as is well known is a requisite ingredient of
                 adverse possession. It is now a well-settled principle of
                 law that mere possession of the land would not ripen into
                 possessory title for the said purpose. Possessor must have
                 animus possidendi and hold the land adverse to the title
                 of the true owner. For the said purpose, not only animus
                 possidendi must be shown to exist, but the same must be
                 shown to exist at the commencement of the possession...”
           (b) In Des Raj and Others v. Bhagat Ram19 (two- Judge
               Bench) this Court observed -
                 “21. In a case of this nature, where long and continuous
                 possession of the plaintiff-respondent stands admitted, the
                 only question which arose for consideration by the courts
                 below was as to whether the plaintiff had been in possession
                 of the properties in hostile declaration of his title vis-à-vis
                 his co-owners and they were in know thereof.”
           (c) This court in L.N. Aswathama v. P. Prakash 20 (two-
               Judge Bench) had observed that permissive possession or
               possession in the absence of Animus possidendi would not
               constitute the claim of adverse possession.
           (d) It was also held in the case of Chatti Konati Rao v. Palle
               Venkata Subba Rao21 (two-Judge Bench)-
                 “15. Animus possidendi as is well known is a requisite
                 ingredient of adverse possession. Mere possession does
                 not ripen into possessory title until the possessor holds
                 the property adverse to the title of the true owner for the
                 said purpose.The person who claims adverse possession
                 is required to establish the date on which he came in
                 possession, nature of possession, the factum of possession,

19 (2007) 9 SCC 641
20 (2009) 13 SCC 229
21 (2010) 14 SCC 316
               GOVERNMENT OF KERALA & ANR. v.                             279
             JOSEPH AND OTHERS [SANJAY KAROL, J.]

                 knowledge to the true owner, duration of possession and
                 that possession was open and undisturbed…”
                                                        (Emphasis supplied)
       Referring to the above judgement Subha Rao (supra) this Court has
reiterated the cardinality of the presence of Animus possidendi in a case
concerning adverse possession in Brijesh Kumar & Anr. v. Shardabai
(dead) by LRs.22 (two- Judge Bench).
        21.5 Such a plea is available not only as a defence when title is
questioned, but is also available as a claim to a person who has perfected
his title;
       The prior position of law as set out in Gurudwara Sahab v. Gram
Panchayat Village Sirthala23 (two-Judge Bench) was that the plea of
adverse possession can be used only as a shield by the defendant and not
as a sword by the plaintiff. However, the position was changed later by the
decision of this Hon’ble Court in the case of Ravinder Kaur (supra) had held
that-”…Title or interest is acquired it can be used as a sword by the plaintiff
as well as a shield by the defendant within ken of Article 65 of the Act and
any person who has perfected title by way of adverse possession, can file a
suit for restoration of possession in case of dispossession…”
     The position in Ravinder Kaur (supra) was followed in Narasamma
& Ors. v. A. Krishnappa (Dead) Through LRs.24 (three-Judge Bench).
      21.6 Mere passing of an ejectment order does not cause brake in
possession neither causes his dispossession;
      In Balkrishna v. Satyaprakash24 (two-Judge Bench) this Court held :
     “…Mere passing of an order of ejectment against a person claiming
     to be in adverse possession neither causes his dispossession nor
     discontinuation of his possession which alone breaks the continuity
     of possession.”
      21.7 When the land subject of proceedings wherein adverse
possession has been claimed, belongs to the Government,the Court

22 (2019) 9 SCC 369
23 (2014) 1 SCC 669
24 (2001) 2 SCC 498
280            SUPREME COURT REPORTS                          [2023] 11 S.C.R.


is duty-bound to act with greater seriousness, effectiveness, care and
circumspection as it may lead to Destruction of a right/title of the State
to immovable property.
      In State of Rajasthan v. Harphool Singh25 (two-Judge Bench) it
was held :
       “12. So far as the question of perfection of title by adverse possession
       and that too in respect of public property is concerned, the question
       requires to be considered more seriously and effectively for the reason
       that it ultimately involves destruction of right/title of the State to
       immovable property and conferring upon a third-party encroacher
       title where he had none.”
      Further, in Mandal Revenue Officer v. Goundla Venkaiah26 (two-
Judge Bench)it was stated :
       “…It is our considered view that where an encroacher, illegal occupant
       or land grabber of public property raises a plea that he has perfected
       title by adverse possession, the court is duty-bound to act with greater
       seriousness, care and circumspection. Any laxity in this regard may
       result in destruction of right/title of the State to immovable property
       and give an upper hand to the encroachers, unauthorised occupants
       or land grabbers.”
       21.8 A plea of adverse possession must be pleaded with proper
particulars, such as, when the possession became adverse. The court is not
to travel beyond pleading to give any relief, in other words, the plea must
stand on its own two feet.
     This Court has held this in the case of V. Rajeshwari v. T.C.
Saravanabava27 (two-Judge Bench) :
       “…A plea not properly raised in the pleadings or in issues at the stage
       of the trial, would not be permitted to be raised for the first time at the
       stage of appeal…”
      It has also been held in the case of State of Uttrakhand v. Mandir
Sri Laxman Sidh Maharaj28 (two-Judge Bench) :
25   (2000) 5 SCC 652
26   (2010) 2 SCC 461
27   (2004) 1 SCC 551
28   (2017) 9 SCC 579
               GOVERNMENT OF KERALA & ANR. v.                                 281
             JOSEPH AND OTHERS [SANJAY KAROL, J.]

     “…The courts below also should have seen that courts can grant only
     that relief which is claimed by the plaintiff in the plaint and such relief
     can be granted only on the pleadings but not beyond it. In other words,
     courts cannot travel beyond the pleadings for granting any relief…”
      Mandir Sri Laxman Sidh Maharaj (supra) was relied on in
Dharampal (Dead) v. Punjab Wakf Board29 (two-Judge Bench) on the
same principle.
       21.9 Claim of independent title and adverse possession at the same
time amount to contradictory pleas. The case of Annasaheb Bapusaheb
Patil v. Balwant30 (two-Judge Bench) elaborated this principle as :
     “15. Where possession can be referred to a lawful title, it will not
     be considered to be adverse. The reason being that a person whose
     possession can be referred to a lawful title will not be permitted
     to show that his possession was hostile to another’s title. One who
     holds possession on behalf of another, does not by mere denial of
     that other’s title make his possession adverse so as to give himself the
     benefit of the statute of limitation. Therefore, a person who enters into
     possession having a lawful title, cannot divest another of that title by
     pretending that he had no title at all.”
    This principle was upheld in the case of Mohan Lal v. Mirza Abdul
Gaffar31 (two-Judge Bench)-
     “4. As regards the first plea, it is inconsistent with the second plea.
     Having come into possession under the agreement, he must disclaim his
     right thereunder and plead and prove assertion of his independent hostile
     adverse possession to the knowledge of the transferor or his successor in
     title or interest and that the latter had acquiesced to his illegal possession
     during the entire period of 12 years, i.e., up to completing the period of his
     title by prescription nec vi, nec clam, necprecario. Since the appellant’s
     claim is founded on Section 53-A, it goes without saying that he admits
     by implication that he came into possession of the land lawfully under
     the agreement and continued to remain in possession till date of the suit.
     Thereby the plea of adverse possession is not available to the appellant.”
29 (2018) 11 SCC 449
30 (1995) 2 SCC 543
31 (1996) 1 SCC 639
282           SUPREME COURT REPORTS                          [2023] 11 S.C.R.


      The Court in Uttam Chand (supra) has reiterated this principle of
adverse possession.
      21.10 Burden of proof rests on the person claiming adverse
possession.
      This Court, in P.T. Munichikkanna Reddy v. Revamma32 (two-
Judge Bench), it held that initially the burden lied on the landowner to
prove his title and title. Thereafter it shifts on the other party to prove title
by adverse possession. It was observed: –
      “34. The law in this behalf has undergone a change. In terms of
      Articles 142 and 144 of the Limitation Act, 1908, the burden of
      proof was on the plaintiff to show within 12 years from the date of
      institution of the suit that he had title and possession of the land,
      whereas in terms of Articles 64 and 65 of the Limitation Act, 1963,
      the legal position has underwent complete change insofar as the onus
      is concerned : once a party proves its title, the onus of proof would be
      on the other party to prove claims of title by adverse possession….”
      The Court reiterated this principle in the case of Janata Dal Party
v. Indian National Congress33 (two-Judge Bench):
      “…the entire burden of proving that the possession is adverse to that
      of the plaintiffs, is on the defendant…”
      21.11 The State cannot claim the land of its citizens by way of
adverse possession as it is a welfare State.
       [State of Haryana v. Mukesh Kumar34 (two-Judge Bench)]
       22. In the instant facts, for the respondents to be granted the
enjoyment of the disputed property, clear, continuous and hostile
possession would have to be established by way of cogent evidence and
the animus possidendi must be demonstrated. We now proceed to examine
whether these requirements are met with in the present case.
      23. Here, we are concerned with the respondents staking claim on
property which undisputedly belongs to the state. Keeping in view the
principles hitherto reproduced, we may once again, with benefit, refer to
Harphool Singh (supra), this Court observed :

32 (2007) 6 SCC 59
33 (2014) 16 SCC 731
34 (2011) 10 SCC 404
               GOVERNMENT OF KERALA & ANR. v.                               283
             JOSEPH AND OTHERS [SANJAY KAROL, J.]

     “12. So far as the question of perfection of title by adverse possession
     and that too in respect of public property is concerned, the question
     requires to be considered more seriously and effectively for the reason
     that it ultimately involves destruction of right/title of the State to
     immovable property and conferringupon a third-party encroacher
     title where he had none. The decision in P. Lakshmi Reddy v. L.
     Lakshmi Reddy [AIR 1957 SC 314 : 1957 SCR 195] adverted to the
     ordinary classical requirement — that it should be nec vi, nec clam,
     necprecario — that is the possession required must be adequate in
     continuity, in publicity and in extent to show that it is possession adverse
     to the competitor. It was also observed therein that whatever may be
     the animus or intention of a person wanting to acquire title by adverse
     possession, his adverse possession cannot commence until he obtains
     actual possession with the required animus. In the decision reported
     in Secy. of State for India in Council v. Debendra Lal Khan [(1933) 61
     IA 78 : 1934 All LJ 153 (PC)] strongly relied on for the respondents,
     the Court laid down further that it is sufficient that the possession be
     overt and without any attempt at concealment so that the person against
     whom time is running, ought if he exercises due vigilance, to be aware
     of what is happening and if the rights of the Crown have been openly
     usurped it cannot be heard to plead that the fact was not brought to its
     notice. In Annasaheb Bapusaheb Patil v. Balwant [(1995) 2 SCC 543
     : AIR 1995 SC 895] it was observed that a claim of adverse possession
     being a hostile assertion involving expressly or impliedly in denial of
     title of the true owner, the burden is always on the person who asserts
     such a claim to prove by clear and unequivocal evidence that his
     possession was hostile to the real owner and in deciding such claim, the
     courts must have regard to the animus of the person doing those acts.”
                                                          (Emphasis supplied)
      24. The claimants via a claim of adverse possession seek to be declared
the owners, by lapse of time of land belonging to the government. When
faced with this situation, it is clear that theCourt is required to consider this
question “more seriously”. The first part of burden of proof as discussed
in Revamma (supra) is undoubtedly met with since the subject land being
Government land, was never in dispute. The burden of proof once shifted,
284          SUPREME COURT REPORTS                         [2023] 11 S.C.R.


it was for the claimants to prove their possession to be openly hostile to the
rights of the government.
       25. By way of evidence adduced, nothing, save in except testimonies
of villagers, has been brought on record. A perusal of such evidence also
shows no decisive statements being made and instead, on the basis of
the estimated age of trees on such land, is the length of possession of the
respondents being calculated.
       26. On separate analysis, the testimonies upon which the claimants
seek to place reliance and which the impugned judgement terms as
“unshaken”, while undoubtedly pointing towards the long-term possession
of the claimants on the land in question, are not of such a nature to satisfy
the requirement of a “more serious and effective” enquiry.
       27. A perusal of the testimonies reveals that consistency is lacking
in terms of the age of the rubber trees. Certain witnesses claim the age to
be 15 years while others claim the same to be 18 years.
       28. In first appeal, the Court noted that no independent commission,
or verification had been carried out of the age of the trees on the basis of
which possession was being calculated. In view of this uncontroverted
position, whether the standard of proof as held by this Court in Harphool
Singh (supra) in no uncertain terms -
      “When the property was a vacant land before the alleged construction
      was put up, to show open and hostile possession which could alone
      in law constitute adverse to the State, in this case, some concrete
      details of the nature of occupation with proper proof thereof would be
      absolutely necessary and mere vague assertions cannot by themselves
      be a substitute for such concrete proof required of open and hostile
      possession.”
                                                       (Emphasis supplied)
       cannot be termed as met. An estimation of age of the trees cannot
be, by any stretch, termed as sufficient proof required to disturb the title
that undisputedly rests with the Government as also testified by PW-1 and
PW-2. Proper and concrete proof as required would need for the claimants
to show some proof of possession, other than statements which may be
vague. It is also clear from the above discussion that merely a long period
of possession, does not translate into the right of adverse possession.
               GOVERNMENT OF KERALA & ANR. v.                             285
             JOSEPH AND OTHERS [SANJAY KAROL, J.]

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.
      29. It is a matter of record that proceedings of ejectment of the
claimant stood initiated before the concerned Tehsildar in which claimant
neither pleaded nor claimed title by way of adverse possession. To the
contrary, the unauthorised occupation was not disputed, with the only plea
being taken of having planted certain trees (rubber trees), put to use for
rubber tapping.
       30. It is also a matter on record that such proceedings stood concluded
by the appropriate authority (Tehsildar). By order dated 24th February,
1982 the appropriate authority (Tehsildar) had passed an order directing the
claimant to not only vacate the land but also to pay compensation amounting
to Rs. 354/-; these facts were never referred to in the plaint.
       31. The Assistant Collector, Idduki, unequivocally stated the reason
for non-assignment of land to the claimanst, for the same being set out
for a public purpose. Noticeably, the order passed by the Tehsildar or the
Assistant Collector was never ever subjected to challenge by the claimants
either by resorting to the mechanism provided under the Act nor in the suit,
the subject matter of consideration.
      32. It is for the first time in the written statement that the factum of
passing the order under The Act was brought to the notice of the Civil Court
which fact was neither refuted to nor explained by way of replication.
       33. That apart, joint reading of the testimonies of PW1(Brajeetha),
PW3(Cherian) and PW4(Narayanan), do not in any manner establish the
factum of the claimant having ever claimed the possession hostile to that
of true owner i.e., the State.
      34. Their testimonies only establish plaintiffs/claimants’ possession
and having put the land to use for planting trees,though with a variation of
period, i.e., about 15 to 40 years. Be that as it may, it has come on record
with some variations that the rubber trees were planted just about 15 to 18
years prior to the date on which the depositions were recorded.
      35. On oath, in a specific query put to PW1 as to whether there is
no record to establish suit the property to be in their possession from the
286            SUPREME COURT REPORTS                         [2023] 11 S.C.R.


year 1940 onwards, there is a categorical denial. Equally the witness denies
having any proof of residing in the property, since 1940, adjacent to the
property subject matter of the suit.
      36. All that it is stated is that the property was being enjoyed, assuming
the same to be theirs.
       37. It is in this view of the matter, we find that the findings returned
by the High Court holding the witnesses, more particularly PW1 to PW5
to have established the claimants’ claims by way of adverse possession to
be erroneous.
       38. In view of the above, the appeal is allowed. The judgement of
the High Court in S.A. 740 of 1995 dated 5th August, 2009 is set aside, and
the judgement rendered by the First Appellate Court in Appeal Suit No. 3
of 1991 dated 3rd April, 1995 is restored.
       39. Interlocutory applications, if any, shall stand disposed of.
       40. No order as to costs.

Headnotes prepared by:                                            Appeal allowed.
Nidhi Jain