The High Court in Bilaspur, in a second appeal, held that the substantial question of law is devoid of merit because the lower courts correctly found that plaintiffs failed to prove adverse possession over government land.
Second appeal dismissed in limine without notice to other side.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR Second Appeal No.224 of 2011
1. Shankarlal, S/o. Late Loknath Gupta, aged about 48 years, Occupation-Agriculture,
2. Mrigendra, S/o. Late Loknath Gupta, aged about 36 years, Occupation-Agriculture,
3. Jagdish, S/o. Late Loknath Gupta, aged about 34 years, Occupation-Agriculture,
4. Madan, S/o Late Loknath Gupta, aged about 30 years, Occupation-Agriculture,
All R/o Village Kharwat, Tahsil Baikunthpur,
District Koria (CG)
---- Appellants/Plaintiffs
Versus
1. The State of Chhattisgarh, Through: The Collector, Koria, District Baikunthpur (CG)
2. Sub-Divisional Officer (Revenue), Baikunthpur, Dist.Koria (CG)
3. Tahsildar, Baikunthpur, Dist.Koria (CG)
4. Divisional Forest Officer (D.F.O.), Koria Forest Division, Baikunthpur, Distt. Koria (CG)
---- Respondents/Defendants
For Appellants/Plaintiffs:
Mr.A.K.Prasad, Advocate
For Respondents/Defendants:
Mr.Ravi Bhagat, Dy.G.A.
Hon'ble Shri Justice Sanjay K. Agrawal
Order On Board
15/3/2021
1. Heard this second appeal on admission and formulation of substantial question of law preferred by the appellants/plaintiffs.
2. By the impugned judgment and decree, the first
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appellate Court dismissed the appeal preferred by
the appellants/plaintiffs by affirming the judgment
and decree of the trial Court dismissing the suit
filed for declaration of title and permanent
injunction based on adverse possession.
3. Learned counsel for the appellants/plaintiffs would submit that both the Courts below have concurrently erred in holding that the plaintiffs have failed to prove their title over the government land and failed to prove title by way of adverse possession, by recording a finding which is perverse and contrary to record and the second appeal involves substantial question of law for determination.
4. Article 112 of the Limitation Act, 1963 provides for period of limitation for filing suit by Central or State Government :-
112. Any suit |
(excep |
t a |
ThirtyWhen |
the period |
|---|---|---|---|---|
suitbe |
fore |
the |
years.of |
limitation |
Supreme |
Court |
in |
would |
begin to |
exercise |
of |
its |
run |
under this |
original j |
urisdict |
ion) |
Act |
against a |
by or on be |
half of |
the |
like |
suit by a |
Central Go |
vernment |
or |
priva |
te person. |
any State |
Governm |
ent, |
||
including |
the |
|||
government |
of |
the |
||
State ofKashmir. |
Jammu |
and |
5. By virtue of above-stated provision, the period of limitation against the State government being 30
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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.
6. 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 Tukaram 1 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:-
“That a possessory title is good against
all but the true owner, is a proposition
which can be accepted, but the government
has the fundamental right in all land and
is, therefore, the true owner. Accordingly
1 AIR 1949 Nagpur 403
4
a person who relies on a possessory title
cannot succeed 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 possession. The
adverse possession necessary in the case of
government is 60 years.”
It was further held that continuous and
uninterrupted 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:-
“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.”
7. A person who bases his title on adverse possession, 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 a
person, constitute adverse possession, regard must
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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
seeAnnasaheb Bapusaheb Patil and others v. Balwant
@ Balasaheb Babusaheb Patil (Dead) by LRs. & Heirs
and others2].
8. 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 LRs 3 ] .
9. The Supreme Court in the matter of R. Hanumaiah and another v. Secretary to Government of Karnataka,
2 (1995) 2 SCC 543 3 (2000) 5 SCC 652
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Revenue Department and others4 has held 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 :-
Nature of proof required in suits for declaration of
title against the Government
“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
4 (2010) 5 SCC 203
7
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 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. 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
unscrupulous elements.
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 entries are
common. 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
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possession for a period of more than thirty
years. 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.
21. A court should necessarily seek an
answer to the following question, before it
grants a decree declaring title against the
Government: 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. 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—
authorised or unauthorised; permissive;
casual and occasional; furtive and
clandestine; open, continuous and hostile;
deemed or implied (following a title).
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 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
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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 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 sufficient. Unexplained stray
or sporadic entries for a year or for a few
years will not be sufficient and should be
ignored.
23. 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. 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
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.”
10. Recently, the Supreme Court in the matter of Joginder and another v. State of Haryana and others 5
has held as under:-
“9. At this stage, the decision of this Court
in the case of Jagpal Singh (supra) is required
5 2021 SCC Online SC 59
10
to be referred to. In the said decision, this
Court had come down heavily upon such
trespassers who have illegally encroached upon
on the Gram Sabha/Gram Panchayat Land by using
muscle powers/money powers and in collusion
with the officials and even with the Gram
Panchayat. In the said decision, this Court has
observed that “such kind of blatant
illegalities must not be condoned”. It is
further observed that “even if there is a
construction the same is required to be removed
and the possession of the land must be handed
back to the Gram Panchayat”. It is further
observed that “regularizing such illegalities
must not be permitted because it is Gram Sabha
land which must be kept for the common use of
the villagers of the village”. Thereafter, this
Court has issued the following directions:
“23. Before parting with this case, we give
directions to all the State Governments in
the country that they should prepare
schemesforevictionof
illegal/unauthorized occupants of Gram
Sabha/Gram Panchayat/Poramboke/Shamlat land
and these must be restored to the Gram
Sabha/Gram Panchayat for the common use of
villagers of the village. For 1 this
purpose the Chief Secretaries of all State
Governments/Union Territories in India are
directed to do the needful, taking the help
of other senior officers of the
Governments. The said scheme should provide
for the speedy eviction of such illegal
occupant, after giving him a show cause
notice and a brief hearing. Long duration
of such illegal occupation or huge
expenditure in making constructions thereon
or political connections must not be
treated as a justification for condoning
this illegal act or for regularizing the
illegal possession.
Regularization should only be permitted in
exceptional cases e.g. where lease has been
granted under some Government notification
to landless labourers or members of
Scheduled Castes/Scheduled Tribes, or where
there is already a school, dispensary or
other public utility on the land.”
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In view of the above also, the prayer of the
petitioners for regularization of their illegal
occupation of the panchayat land cannot be
accepted.”
11. Reverting to the facts of the present case in the light of principle of law laid down by the Supreme Court in the above-stated judgments (supra), in the instant case, both the Courts below have held that the plaintiffs have not perfected their title by way of adverse possession and even further held that Khasra No.537 area 8.70 acres is part of Chhote Jhad Ka Jungle. E ven both the Courts below have not found possession of the plaintiffs over the suit land. In view of aforesaid finding recorded by two Courts below, I do not find any substantial question of law for determination of this second appeal.
12.Accordingly, the second appeal being devoid of
merit is liable to be and is hereby dismissed in
limine without notice to other side.
B/-
3 issues framed by the court
Whether the second appeal raises a substantial question of law requiring determination given the findings of lower courts.
Whether the plaintiffs have perfected their title by adverse possession against the State Government.
Whether the suit land forms part of government forest land (Chhote Jhad Ka Jungle).
Colour shows how this judgement treated each authority
Provincial Government, Central Provinces and Berar v. Govindrao TukaramReferred¶33
1 AIR 1949 Nagpur 403 · Who else cites this
R. Hanumaiah and another v. Secretary to Government of KarnatakaReferred¶49
(2000) 5 SCC 652 · Who else cites this
Joginder and another v. State of HaryanaReferred¶66
2021 SCC Online SC 59 · Who else cites this
Annasaheb Bapusaheb Patil and others v. Balwant @ Balasaheb Babusaheb PatilReferred¶46
[please see Annasaheb Bapusaheb Patil and others v. Balwant @ Balasaheb Babusaheb Patil]
State of Rajasthan v. Harphool SinghReferred¶48
State of Rajasthan v. Harphool Singh
Shankarlal
Mrigendra
Jagdish
Madan
The State of Chhattisgarh, Through: The Collector, Koria
Sub-Divisional Officer (Revenue), Baikunthpur
Sanjay K. Agrawal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court