Dismissed

Adhari Das v. Secretary, Gram Panchayat and Ors.

Chhattisgarh HC16 Sept 2020SA/227/2010

Case brief

AI extract

What is this about?

In a second appeal under Section 100 CPC, the High Court affirmed the dismissal of the appellant's suit seeking declaration of title and injunction over suit property alleged to be government land. Relying on Article 112 of the Limitation Act and Section 57 of the CG Land Revenue Code, the Court held the claim barred as the plaintiff failed to prove 30 years of adverse possession.

What did the court decide?

The second appeal was dismissed in limine without notice to the other side as it was devoid of merits.

Adhari Das Vs Secretary, Gram Panchayat and Ors. — Property and Title | Chhattisgarh HC (2020)

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Second Appeal No. 227 of 2010

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Adhari Das S/o Late Bhavani Das, Aged about 64
years, Caste Panika, R/o Village Budhiyapali, Up-
Tahsil- Barpali, District Korba, Chhattisgarh.

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 ---Appellant/Plaintiff

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Versus

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1. Secretary, Gram Panchayat Budhiyapali, Post Sohagpur, Up-Tahsil- Barpali, District Korba, Chhattisgarh.

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2. Sarpanch, Gram Panchayat Budhiyapali, Post Sohagpur, Up-Tahsil-Barpali, District Korba, Chhattisgarh.

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3. Panch of Village Limgaon, Gram Panchayat Budhiyapali Post Sohagpur, Up-Tahsil-Barpali, District Korba, Chhattisgarh.

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4. Naib Tahsildar, Barpali, Up-Tahsil-Barpali, District Korba, Chhattisgarh.

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5. Tahsildar, Kartala, Tahsil Kartala, District Korba, Chhattisgarh.

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6. Chief Executive Officer, Janpad Panchayat Kartala, District Korba, Chhattisgarh.

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7. State of Chhattisgarh, through Collector, District Korba, Chhattisgarh.

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---- Respondents/Defendants

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 For Appellant :- Mr. F.S. Khare, Advocate
 For State :- Mr. Ayaz Naved, G.A.

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Hon'ble Shri Justice Sanjay K. Agrawal Order on Board

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16/09/2020

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1.Proceedings of this matter have been taken up
through video conferencing.

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2.Heard on admission and formulation of substantial
question of law in this second appeal preferred by
the appellant/plaintiff under Section 100 of the
CPC. By the impugned judgment and decree, the first
appellate Court dismissed the appeal of the
plaintiff affirming the judgment and decree of the
trial Court dismissing the suit filed by the
plaintiff for declaration of title and permanent
injunction.

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3.Mr. F.S. Khare, learned counsel for the

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appellant/plaintiff, would submit that both the
Courts below have concurrently erred in dismissing
the suit of the plaintiff and not granting decree
for declaration of title and permanent injunction
over the suit property bearing Khasra No. 235 area
5.76 acres as admittedly vide Exhibits P/4 to P/8
plaintiff's ancestor's name has been recorded in

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the revenue records as such, plaintiff is the
possession-holder of the suit tank and even
otherwise, he has perfected his title by way of

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adverse possession, therefore, the appeal deserves
to be admitted by formulating substantial question
of law for determination in this regard.

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4.The suit property bearing Khasra No. 235 area 5.76
acres was earlier a malguzari land and it has been
held by the two Courts below that in view of
Section 251 of the Land Revenue Code, 1959, the
suit property has been vested with the State
Government and it was recorded as Government land
in the revenue records (Ex. P/4 to P/8) and only in
the remarks column, the name of plaintiff's

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ancestors has been recorded by which adverse
possession cannot be proved and it is the land held
by the State Government.

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5. Article 112 of the Limitation Act, 1963 provides for period of limitation for filing suit by Central or State Government :-

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`Any suit (except`	`Thirty`	`When` `the`
`a suit before the`	`years`	`period` `of`
`Supreme Court in`		`limitation`
`the in exercise`		`would begin`
`of its original`		`to` `run`
`jurisdiction) by`		`under this`
`or on behalf of`		`Act against`
`the` `Central`		`a like suit`
`Government or any`		`by` `a`
`State Government,`		`private`
`including` `the`		`person.`
`government of the`
`State of Jammu`
`and Kashmir.`

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6.By virtue of the above-stated provision, the period
of limitation against the State government being 30
years, a person can convert his possession into an
absolute title against the government only by
proving possession for 30 years. In order to claim
adverse possession against the government, a person
has to prove such possession for the full statutory
period and he has to prove adverse possession. So,
on mere proof of long possession, the burden is not
shifted on the State to show that it had held
possession within the period provided by the
Article.

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7. Article 112 of the Limitation Act, 1963 is para materia provision to Article 144 of old Limitation Act, 1908. The Nagpur High Court, in the matter of Provincial government, Central Provinces and Berar v. Govindrao Tukaram1 while considering adverse possession under old Article 144 of Limitation Act, 1908, has held that government having fundamental rights in all land, possessory title cannot prevail against it and a person must prove adverse possession for continuous period of 60 years and observed as under:-

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“That a possessory title is good against all
but the true owner, is a proposition which

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1 AIR 1949 Nagpur 403

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can be accepted, but the government has the
fundamental right in all land and is, there-
fore, the true owner. Accordingly a person
who relies on a possessory title cannot suc-
ceed against government unless he can show
either that the government has parted with
its title in some way to the plaintiff or his
predecessors or that the plaintiff and his
predecessors have been holding adversely
against government and so have acquired a
good title against government by adverse pos-
session. The adverse possession necessary in
the case of government is 60 years.”

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It was further held that continuous and uninter-
rupted possession over a long period can give rise
to presumption in possession is there with title
would not apply to the case of a State Government
having fundamental right over the land observing as
under :-

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“Continuous and uninterrupted possession over
a long period can give rise to a presumption
that the person in possession is there with
title even when the possession is short of
the statutory period. This presumption may
apply in a case between private individuals
but it cannot apply to the case of a body in
whom the fundamental right resides, such as
the government.”

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8.A person who bases his title on adverse possession,

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must show by clear and unequivocal evidence that
his possession was hostile to the real owner and
amounted to denial of his title to the property
claimed. In deciding whether the acts, alleged by

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a person, constitute adverse possession, regard

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must be had to the animus of the person doing those
acts which must be ascertained from the facts and
circumstances of each case. The person who bases
his title on adverse possession, therefore, must
show by clear and unequivocal evidence that his
possession was hostile to the real owner and
amounted to a denial of his title to the property
claimed.[please see Annasaheb Bapusaheb Patil and

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others v. Balwant @ Balasaheb Babusaheb Patil
(Dead) by LRs. & Heirs and others2].

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9.It is not in dispute that title by adverse
possession can be prescribed also against the
government, but where the claim of adverse
possession 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 and
title of State to immovable property and also
conferring upon a third party encroacher title
where he had none. [See State of Rajasthan v.
Harphool Singh (Dead) through his LRs3].

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10.The Supreme Court, in the matter of R. Hanumaiah

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and another v. Secretary to Government of
Karnataka, Revenue Department and others4 has held

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2 (1995) 2 SCC 543

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3 (2000) 5 SCC 652

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4 (2010) 5 SCC 203

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that in order to establish the plea of adverse
possession, the limitation period would be thirty
years and further laid down principles of the law
indicating the nature of proof required in a suit
for declaration of title against the government,
which is reproduced herein below :-

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Nature of proof required in suits for declaration
of title against the Government

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“19. Suits for declaration of title against the Government, though similar to suits for declaration of title against private individuals differ significantly in some aspects. 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. This presumption available to the Government, is not available to any person or individual. The second difference is in regard to the period for which title and/or possession has 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 the Government. This follows from Article 112 of the Limitation Act, 1963, which prescribes a longer period of thirty years as limitation in regard to suits by the Government as against the period of 12 years for suits by private individuals. The reason is

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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 ex-
pected 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. Any loss
of government property is ultimately the loss
to the community. Courts owe a duty to be
vigilant to ensure that public property is
not converted into private property by un-
scrupulous elements.

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20. Many civil courts deal with suits for
declaration of title and injunction against
the Government, in a casual manner, ignoring
or overlooking the special features relating
to government properties. Instances of such
suits against the Government being routinely
decreed, either ex parte or for want of
proper contest, merely acting upon the oral
assertions of plaintiffs or stray revenue en-
tries are common. Whether the Government con-
tests the suit or not, before a suit for dec-
laration of title against a Government is de-
creed, the plaintiff should establish, either
his title by producing the title deeds which
satisfactorily trace title for a minimum pe-
riod of thirty years prior to the date of the
suit (except where title is claimed with ref-
erence to a grant or transfer by the Govern-
ment or a statutory development authority),
or by establishing adverse possession for a
period of more than thirty years. In such
suits, courts cannot, ignoring the presump-
tions 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 tra-
versed are deemed to have been accepted or
admitted.

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21. A court should necessarily seek an answer
to the following question, before it grants a
decree declaring title against the Govern-
ment: whether the plaintiff has produced ti-
tle deeds tracing the title for a period of
more than thirty years; or whether the plain-
tiff has established his adverse possession
to the knowledge of the Government for a pe-
riod of more than thirty years, so as to con-
vert his possession into title. 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 plain-
tiff, if he is in possession—authorised or
unauthorised; permissive; casual and occa-
sional; furtive and clandestine; open, con-
tinuous and hostile; deemed or implied (fol-
lowing a title).

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22. 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. In or-
der to oust or defeat the title of the Gov-
ernment, 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. To claim
adverse possession, the possession of the
claimant must be actual, open and visible,
hostile to the owner (and therefore neces-
sarily 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 continu-
ity, publicity and in extent. Mere vague or
doubtful assertions that the claimant has
been in adverse possession will not be suf-
ficient. Unexplained stray or sporadic en-

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tries for a year or for a few years will not
be sufficient and should be ignored.

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23. As noticed above, many a time it is pos-
sible for a private citizen to get his name
entered as the occupant of government land,
with the help of collusive government ser-
vants. Only entries based on appropriate
documents like grants, title deeds, etc. or
based upon actual verification of physical
possession by an authority authorised to
recognise such possession and make appropri-
ate entries can be used against the Govern-
ment. By its very nature, a claim based on
adverse possession requires clear and cate-
gorical pleadings and evidence, much more
so, if it is against the Government. Be that
as it may.”

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11.Section 57 of the Chhattisgarh Land Revenue Code,

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1959 provides for state ownership in all lands,

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which is as under:-

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“ Section 57. State ownership in all lands .- (1) All lands belong to the State Government and it is hereby declared that all such lands, including standing and flowing water, mines, quarries, mineral and forests reserved or not, and all right in the subsoil of any land are the property of the State Government:

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[Provided that nothing in this section
shall save as otherwise provided in this
Code, be deemed to affect any rights of any
person subsisting at the coming into force
of this Code in any such property.

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(2) Where a dispute arises between the
State Government and any person in respect
of any right under sub-section (1) such
dispute shall be decided by the [Sub-
Divisional Officer].

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(3) ………xx………

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(4) ………xx……… ”

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12. Reverting to the facts of the present case in light of the aforesaid judgments rendered by the Supreme Court and considering the provisions contained in Section 57 of the Land Revenue Code vesting title of the suit property to the State Government, it is quite vivid that the suit property is recorded as Government land in the revenue records (Exhibits P/4 to P/8) and only in the remarks column of plaintiff's ancestor's name has been recorded and he is shown to be in possession of some part of the suit property and except the revenue records (Ex. P/4 to P/8), no other material has been placed on record by the plaintiff to prove his possession.

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13.Plaintiff is not the registered owner of the suit

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property and both the Courts below have
concurrently recorded a finding that the suit
property has already been vested with the State
Government by virtue of Section 251 of the Land
Revenue Code and moreover, plaintiff's suit is
barred by Section 251(m) of the Land Revenue Code.

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14. Both the Courts below have rightly and concurrently concluded that the suit property is Government land and plaintiff has failed to plead and establish that he has been in settled and undisputed possession of the said suit property for a period of 30 years. The said finding recorded by both the

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Courts below in this regard is a finding of fact
based on evidence available on record which is
neither perverse nor contrary to the record and
does not involve any substantial question of law
for determination.

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15.The second appeal, being devoid of merits, deserves

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to be and is accordingly dismissed in limine
without notice to the other side. No cost(s).

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Sd/-
(Sanjay K. Agrawal)
Judge

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Harneet

Adhari Das v. Secretary, Gram Panchayat and Ors.

Case brief

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Adhari Das v. Secretary, Gram Panchayat and Ors.

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