Their Lordships of the Apex court in the following case make it clear specifically and formulated some principles while considering the evidence of public documents and private documents in a suit for Declaration of title and injunction against the government property. laid heavy emphasis on the plaintiff to prove his title beyond all reasonable doubts as there is a strong presumption that all other properties are all government properties .the apex court made it clear that between private individuals so stress not necessary as there is no such presumption-burden shift from time to time.this is an outstanding judgement of apex court threw light on several aspects of possession, adverse possession etc.,
R. HANUMAIAH & ANR.
SECRETARY TO GOVERNMENT OF KARNATAKA REVENUE
DEPARTMENT & ORS.
(Civil Appeal Nos. 1588-1589 of 2008)
FEBRUARY 24, 2010*
[R.V. Raveendran and Swatanter Kumar, JJ.]
2010 (4) SCR 904
1.NATURE OF THE SUIT
suit (O.S.No.714 of 1982 before the City Civil Judge, Bangalore
City) for a declaration of title and consequential relief of permanent injunction
in respect of Sy.Nos. 30 and 31 of Jakkasandra Village, Begur Hobli,
Bangalore South Taluk.
2. FACTS OF THE CASE
a]. Plaintiffs are the owners of a
tank called “Maistry Kere” bearing Survey No.30, (Old Survey No.25)
measuring 11 acres 21 guntas and land bearing Survey No.31 (Old Survey
No.26) measuring 1 acre 9 guntas situate in Jakkasandra Village, described
in the plaint schedule as items 1 and 2.
b]. The said tank and land were earlier
part of Block No.61 measuring 297 Acres 16 Guntas known as ‘Dalavai
Dinne’, which belonged to their Great great grandfather – Kurakalu
c]. That the said Venkataramana Maistry executed a
deed of settlement dated 7.1.1874 (Ex. P.2) settling the said Dalavai Dinne
upon his son Chikkahanumaiah.
d]. The said Dalavai Dinne identified as Block
No.61 was re-surveyed and allotted Re-Survey Nos.16, 19, 20, 21, 23, 27 to
e]. A portion of the said Dalavai Dinne measuring 102 acres was acquired for
St. John’s Medical College under final notification dated 30.4.1963.
f]. Another extent of 180 acres of land therein was acquired for forming of Koramangala
Layout, under final notification dated 28.9.1965.
g]. After such acquisition, the appellants were left with only Survey Nos.30 and 31 (suit schedule items 1
and 2 from out of the Dalavai Dinne) and they continued in possession
thereof as owners.
h]. The documents trace their title for more than one and half
centuries; and the suit properties have been owned and possessed by the
family from around 1850, originally by Venkataramana Maistry, later his son
Chikkahanumaiah, thereafter his son Kurakalu Ramaiah, thereafter his son
B.M. Ramaiah, and finally the plaintiffs.
i]. When the City Improvement Trusts Board (predecessor of Bangalore Development Authority) attempted to
interfere with their possession of Maistry Tank (Sy.No.30), the first appellant
filed a suit (OS No.1 of 1976 in the Court of Civil Judge, Bangalore Rural
District later renumbered as OS No.1305 of 1980 on the file of City Civil
Court, Bangalore) for a permanent injunction.
j]. However, subsequently the appellants filed a comprehensive suit – O.S.No.714 of 1982, for a declaration
of title and consequential injunction on 15.3.1982 against Government of
Karnataka and Bangalore Development Authority in regard to Sy.Nos.30 and
k]. During the pendency of the second suit, the first suit for injunction was
dismissed on 16.9.1985 and the appeal filed by the appellant against the said
dismissal was also dismissed by the High Court on 20.12.1994, with an
observation that anything stated in the said judgment with reference to the
title to the suit land (Sy.No.30) will not affect the pending suit for declaration
of title in OS No. 714 of 1982.
3. DEFENDANT VERSION
a]. The respondents resisted the said suit. According to them, Survey
No.30 was a government tank shown as Kharab land in the revenue records.
Survey No.31 was also government barren land shown as Government
Kharab land in the revenue records.
b]. The appellants were neither the owners nor were they in possession of the said survey Nos.30 and 31.On the said pleadings necessary issues relating to title, adverse possession, relief
claimed were framed and parties went to trial.
4. RESULT OF THE CASE
Both sides let in oral and documentary evidence. After appreciating the evidence, the trial court by its
judgment dated 19.4.1996 decreed the suit. It held that the appellants had
made out their title and possession in regard to the suit properties. Feeling
aggrieved, the respondents filed an appeal and a learned Single Judge of the
High Court of Karnataka by the impugned judgment dated 4.9.2007, allowed
the appeal, set aside the judgment and decree of the trial court and dismissed
the suit. The High Court held that the appellants had neither made out title
nor possession in respect of the suit properties. The said judgment and
decree is challenged in this appeal by special leave.
5. DOCUMENTARY EVIDENCE
a]. The appellants claimed title, and possession on the basis of title.
b]. The revenue records, in particular Ex. D4, D5, D7 to D12, show the two survey
numbers as ‘Government tank’ and ‘Government barren land’.
c]. The names of appellants are not entered as owners in the revenue records.
d]. Though several documents have been marked by the parties, the entire case of appellants’ in
regard to title depends upon the documents Ex. P-1, P-2, P-10, P-11, P-12
e]. While the trial court held that these documents established the title
of the appellants and consequently they were entitled to possession, the High
Court on re-examination and re-appreciation of the evidence, in particular, the
said documents, held that the appellants did not make out any title nor
possession in regard to the suit properties.
6. PRIVATE DOCUMENTS AND PUBLIC DOCUMENTS EVIDENTIARY VALUE
Therefore, the only question that arise for our/APEX COURT consideration is
whether Ex. P1, P2, P10, P11, P12 and P18 establish appellants’ title to suit properties,
we /APEX COURT will
briefly analyse each of these documents.
Re : Ex P.18
A]. Exhibit P18 is an extract of the register maintained by the Public Works
Department showing the details of tanks in Bangalore Division. The said
extract is in respect of Serial No.279 from the said register relating to a tank
described as Maistry Kere or Maistry Palyada Kere in Jakkasandra village,
the extent of the water body being 11 acres. The name of the tank is followed
by the word ‘private’ in the register and gives particulars of the Achkat area of
the tank (that is area of land irrigated by the said tank) in the year 1906-07.
The appellants contend that the description of the tank as ‘private’ in the Tank
register would demonstrate that the tank did not belong to the government
and that it was privately owned. The High Court however held that the mere
use of the word ‘private’ after the description of the tank, will not establish
appellant’s title or possession in regard to Survey No.30.
B]. The appellants relied on paras 236(b) and 376 of the Mysore Revenue
Manual in support of their contention that private tanks existed in the State of
Mysore and that the State Government recognized the natural right of private
individuals to construct and own tanks. The appellants contended that when
the records maintained by the Government in the usual course of business,
showed a particular tank as ‘private’, it was a clear admission that the tank
was not a government tank but was privately owned.
C]. We may refer to the provisions of the Mysore Revenue Manual relied on by the appellants.
Section IV thereof related to “Private enterprise tanks”. Para 236(b) stated
that there were about 318 private enterprise tanks in the State. Para 376 of
the Manual deals with construction of Saguvali Kattes (irrigation tanks) by the
D]. the relevant extract of which is extracted below :
“376 (1). The right of land-holders to construct “Saguvali Kattes” on their
own lands is not affected by :-
(a) Section XX, paragraph 13 of the Rules of 1890 under the Land
Revenue code, which relates to the construction of private tanks on
Government unoccupied land: or
(b) Appendix F to the said Rules, which relates to the restoration by
private individuals of Government tanks and wells long in disuse.
(2) Private individuals have the natural right to construct tanks on their
own lands (Kandayam or Inam), so long as they do not thereby materially
diminish the water flowing in defined channels through their lands for the
benefit of Government works and private proprietors lower down such
x x x x x x x x
E]. . A careful reading of para 376 of the Manual shows that a private tank
can be constructed by a private individual, either in his own land or on
Government unoccupied land.
F]. It also shows that private individuals may restore Government tanks. Therefore it follows that when a tank is described as ‘private’ in the tank register, that by itself will not establish that the land
where the tank is situated is private land.
G]. To put it differently, when a tank
enumerated in the Tank register maintained by the government, adds to the
description of the tank, by the word ‘private’, it merely shows that the tank in
question had been constructed by a private individual but it does not lead to
the inference that the land on which the tank is constructed belonged to a
H]. Para 236 shows that a private land on being converted into a private
tank would not get full exemption or remission from payment of land
assessment, but was extended only a partial remission. In fact, if a tank was
constructed on a private land, the land would be continued to be assessed to
land revenue with appropriate partial remission. On the other hand, if it is a
Government unoccupied land on which a private individual is permitted to
construct the tank, it will continue to be shown as Government kharab land
and will not be subjected to any land revenue.
I]. In this case neither Sy. No.30 nor Sy.No.31 is assessed to land revenue and are shown as Government
Kharab land in all revenue records (vide Ex. D7, D8, D9, D10, D11 and D12).
Unarable lands including tanks are described as Phut Kharab. The Tank
register extract (Ex.D15) and other documents produced by respondents
show that Maistry Palya tank (Sl.No.279 in the Register) was breached and
BDA had formed a layout in a major portion of the tank land and the
remaining area was being developed into a park by the forest department.
We, therefore, cannot accept the contention of the appellant that Ex. P18,
proves that Survey No.30 was a land owned by a private individual or that it
did not belong to Government.
Re : Ex. P1 and P2
J]. . Ex.P2 is the copy of the settlement deed dated 7.1.1874 executed by
Venkataramana Maistry under which he settled upon his son
Chikkahanumaiah, the Dalavai Palya, which was a land assessed to land
revenue, bounded East by Jakkasandra boarder, South by Sabapathi
Modaliyar Garden, West by Muni Reddy land and North by Srinangara Kere.
Ex. P1 which is an extract of Phut Pahani chit of Jakkasandra, relating to
revenue inspection of 18.6.1871. It shows that Survey No.25 measuring 10
acres 38 guntas in Jakkasandra village was a tank and described it as Phut
Kharab land; that it formed part of Block No.61; and that the said tank was
repaired by one Venkataramana Maistry. The appellants rely on Exs. P1 and
P2 to prove the title of his ancestor Venkataramana Maistry in regard to the
old tank situated in Survey No.25 measuring 10 acres 38 guntas and that the
said survey No.25 was part of Block No. 61 (Dalayai Dinne in Jakkasandra)
settled by Venkataramana Maistry on his son under the settlement deed
(Ex.P2) dated 7.1.1874.
K] Phut Pahani is described in the Mysore Revenue Manual as an
Inspection Statement showing the old survey numbers and corresponding
new numbers of lands and full information regarding tenure and occupancy of
the land. The Phut Pahani did not relate to nor provide proof of ownership of
any land. Ex.P1 merely disclosed that when it was inspected on 18.6.1871,
survey no.25 of Jakkasandra measuring 10 acres 28 guntas was a tank and
that it was repaired by Venkataramana Maistry. This document therefore
does not help the appellants to prove title of Venkataramana Maistry to the
tank. Unless the title to the land on which the tank is situated is established,
the mere fact that the tank was shown to have been maintained or repaired
by any private individual will not make him the owner of the tank. At best it will
show that the tank was maintained by him as a private tank for the purpose of
L]. Ex.P2 (settlement deed) does not refer to the tank. It does not give
the total extent of the land. It does not disclose whether Sy. Nos. 30 and 31
formed part of Dalavai Dinne owned by the ancestors of plaintiffs at any point
of time. The settlement deed merely shows that the Venkataramana Maistry
had settled certain land known as Dalavai Dinne which was assessed to land
revenue to his son Chikkahanumaiah and does not help the appellant to
establish title to either survey Nos.30 or 31. The fact that the ancestors of the
appellants owned a large extent of land in Jakkaasandra village is not in
dispute. In fact the appellant got compensation in regard to 102 acres of land
acquired for St. John’s Medical College and 180 acres of land acquired for
Koramangala Layout aggregating to nearly 282 acres of land.
M]. While the
settlement deed describes the land settled as land assessed to land
Revenue, significantly, survey Nos. 30 or 31 which are now claimed by the
appellants as part of Dalavai Dinne were never assessed to land revenue, but
were always described as Government Kharab land. Ex.P1 and P2 are
therefore of no assistance to the appellants.
Re : Ex. P10 & P11
N]. The appellant next relied on Ex.P10 and P11 which are two contract
notes. Ex.P10 is said to be of the year 1854-55. Ex.P.11 is said to be of the
year 1865. These are contract notes executed by contractors said to have
been engaged to Venkataramana Maistry for execution of certain works
relating to the tank at Dalavai Palya. They are not signed by Venkataramana
Maistry. As noticed earlier, the fact that Venkataramana Maistry had
constructed a tank or maintained a tank, will not establish ownership to the
land in which a tank was situated. Even assuming that the documents
(Ex.P10 and P11) are genuine and related to a tank situated in Sy. No.30,
they would not help the appellants to establish title to
Sy. No. 30, or Sy. No.31.
Re : Ex.P12
O]. Ex.P12 is said to be the Tank Majkur Register Extract maintained by
the Assistant Superintendent of Land Records, Bangalore Sub-Division,
showing that Re-survey No.30 measured 11 acres 21 guntas and the entire
extent was karab (tank) and it corresponded to old survey No.25. It also
records that the tank was dug by father of Ramaiah of Maistry Palya, that it
was repaired by Ramaiah about 25 years ago and thereafter no one has
repaired it and it is in the state of good repair. The date of inspection or entry
is not mentioned and it does in no way help the appellants to prove title to the
Re : Judgment in Land Acquisition case
P]. The appellant next relied upon the certified copy of the judgment of
the reference court in LA. Misc. No.307 of 1966 by (Principal Civil Judge,
Bangalore City) and connected cases (which the High Court took on record
as evidence while hearing the appeal). The land acquisition reference
proceedings did not relate to Sy Nos. 30 or 31. It is related to other lands and
the issue before the court was a dispute between the appellant and some
other claimants. The judgment sets out the case of the parties that Block
No.61 called as Dalavai Dinne corresponded to survey Nos.16, 19, 20, 21,
23, and 27 to 35 and also refers to some of the documents which are
produced in this case also. There is no adjudication of the title of the
appellants or their ancestors in regard to Survey Nos. 30 or 31. Nor is there
any finding by the court which can support the appellants’ claim to Sy. No.30
or Sy.No. 31. Therefore, the High Court has rightly rejected the said judgment
as not relevant for examining the title of the appellants.
7.Nature of proof required in suits for declaration of title against the
a]. Suits for declaration of title against the government, though similar to
suits for declaration of title against private individuals differ significantly in
b]. The first difference is in regard to the presumption available in
favour of the government. All lands which are not the property of any person
or which are not vested in a local authority, belong to the government. All
unoccupied lands are the property of the government, unless any person can
establish his right or title to any such land.
c]. This presumption available to the government, is not available to any person or individual.
d]. The second difference is in regard to the period for which title and/or possession have to
be established by a person suing for declaration of title. Establishing
title/possession for a period exceeding twelve years may be adequate to
establish title in a declaratory suit against any individual. On the other hand,
title/possession for a period exceeding thirty years will have to be established
to succeed in a declaratory suit for title against government.
e]. This follows from
Article 112 of Limitation Act, 1963, which prescribes a longer period of thirty
years as limitation in regard to suits by government as against the period of
12 years for suits by private individuals.
f]. The reason is obvious. Government
properties are spread over the entire state and it is not always possible for the
government to protect or safeguard its properties from encroachments. Many
a time, its own officers who are expected to protect its properties and
maintain proper records, either due to negligence or collusion, create entries
in records to help private parties, to lay claim of ownership or possession
against the government.
g]. Any loss of government property is ultimately the
loss to the community.
h]. Courts owe a duty to be vigilant to ensure that public
property is not converted into private property by unscrupulous elements.
i]. Many civil courts deal with suits for declaration of title and injunction
against government, in a casual manner, ignoring or overlooking the special
features relating to government properties. Instances of such suits against
government being routinely decreed, either ex parte or for want of proper
contest, merely acting upon the oral assertions of plaintiffs or stray revenue
entries are common.
j]. Whether the government contests the suit or not, before
a suit for declaration of title against a government is decreed, the plaintiff
should establish, either his title by producing the title deeds which
satisfactorily trace title for a minimum period of thirty years prior to the date of
the suit (except where title is claimed with reference to a grant or transfer by
the government or a statutory development authority), or by establishing
adverse possession for a period of more than thirty years.
k]. In such suits,
courts cannot, ignoring the presumptions available in favour of the
government, grant declaratory or injunctive decrees against the government
by relying upon one of the principles underlying pleadings that plaint
averments which are not denied or traversed are deemed to have been
accepted or admitted.
l]. A court should necessarily seek an answer to the
following question, before it grants a decree declaring title against the
“whether the plaintiff has produced title deeds tracing the title for
a period of more than thirty years; or whether the plaintiff has established his
adverse possession to the knowledge of the government for a period of more
than thirty years, so as to convert his possession into title.”
m]. Incidental to that
question, the court should also find out
“whether the plaintiff is recorded to be
the owner or holder or occupant of the property in the revenue records or
municipal records, for more than thirty years, and what is the nature of
possession claimed by the plaintiff, if he is in possession – authorized or
unauthorized; permissive; casual and occasional; furtive and clandestine;
open, continuous and hostile; deemed or implied (following a title).”
n]. Mere temporary use or occupation without the animus to claim
ownership or mere use at sufferance will not be sufficient to create any right
adverse to the Government.
o]. In order to oust or defeat the title of the
government, a claimant has to establish a clear title which is superior to or
better than the title of the government or establish perfection of title by
adverse possession for a period of more than thirty years with the knowledge
of the government.
p]. To claim adverse possession, the possession of the
claimant must be actual, open and visible, hostile to the owner (and therefore
necessarily with the knowledge of the owner) and continued during the entire
period necessary to create a bar under the law of limitation. In short, it should
be adequate in continuity, publicity and in extent. Mere vague or doubtful
assertions that the claimant has been in adverse possession will not be
q]. Unexplained stray or sporadic entries for a year or for a few years
will not be sufficient and should be ignored. As noticed above, many a time it
is possible for a private citizen to get his name entered as the occupant of
government land, with the help of collusive government servants.
r]. Only entries
based on appropriate documents like grants, title deeds etc. or based upon
actual verification of physical possession by an authority authorized to
recognize such possession and make appropriate entries can be used
against the government. By its very nature, a claim based on adverse
possession requires clear and categorical pleadings and evidence, much
more so, if it is against the government. Be that as it may.
8. LEGAL Position in this case
a]. Section 67 of Karnataka Land Revenue Act, 1961 declares that all
tanks and all lands which are not the property of any person are the property
of the state government. Sub-section (1) thereof which is relevant for our
purpose is extracted below :
“67. Public roads, etc., and all lands which are not the property of
others belong to the Government.—(1) All public roads, streets, lanes
and paths, bridges, ditches, dikes and fences, on or beside the same, the
bed of the sea and of harbours and creeks below high water mark and of
rivers, streams, nallas, lakes and tanks and all canals and water-courses
and all standing and flowing waters, and all lands wherever situated
which are not the property of individuals or of aggregate of persons
legally capable of holding property, and except in so far as any rights
of such persons may be established, in or over the same, and except as
may be otherwise provided in any law for the time being in force, are and
are hereby declared to be with all rights in or over the same or
appertaining thereto, the property of the State Government.
b]. Weakness of government’s defence or absence of contest, are not therefore
sufficient to decree declaratory suits against the government. It is for the
appellants to establish their title to the suit properties.
c]. The respondents have relied upon several documents (mainly
revenue records) to establish that the suit lands belong to the government. It
is not be necessary to examine or refer to them, as
d]. the core issue is whether the appellants who filed the suit for declaration of title against the
government, have made out their title or possession to the suit properties.
e]. The High Court, being the first appellate court is the final court of fact. It has,
after examining the evidence exhaustively recorded a finding that the
appellants have not established their title or possession. We find no error in
the findings and conclusions of the High Court. We concur with the findings of
the High Court, though for reasons slightly different from those of the High
f]. The appellants who came to court claiming title, not having established
title, their suit is liable to be dismissed.
a]. One more aspect requires to be noticed. The first appellant had
earlier filed a suit (OS No.1 of 1976 renumbered as OS No.1305 of 1980) for
a permanent injunction, claiming that he was in possession of Sy. No.30
(tank). That suit and appeal therefrom were dismissed by recording a finding
that he failed to establish possession.
b]. The observation of the High Court
while dismissing the appeal from the decision in the earlier injunction suit, that
the dismissal will not come in the way of plaintiff establishing title in the
subsequent suit for declaration of title, will not dilute the finding recorded by
the trial court and High Court that the first appellant was not in possession,
which has attained finality.
c]. No other material has been relied upon by the appellants to establish
their title or possession. The appellants were not registered as the owners or
khatedars or occupiers of the suit lands in any revenue records. They did not
have any document of title referring to the suit properties. The appellants did
not have possession.
d]. Even assuming that the tank in Sy.No. 30 was repaired/
maintained by the ancestors of plaintiff at some point of time, there is no
document to show that the tank was used, maintained or repaired by the
appellants or their predecessors during more than half a century before the
filing of the suit. The suit has to fail.
e]. For the aforesaid reasons, we find no ground to interfere with the
judgment and decree of the High Court. The appeals are dismissed. The
application for intervention is also dismissed.