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CASE NO.:

Appeal (civil) 5188 of 1996

PETITIONER:

STATE OF RAJASTHAN

Vs.

RESPONDENT:

HARPHOOL SINGH (DEAD) THROUGH HIS L.RS.

DATE OF JUDGMENT: 04/05/2000

BENCH:

S.R.Babu, Doraswami Raju

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J

Raju, J.

The State of Rajasthan, who lost before the Courts

below, is the appellant before us, challenging the summary

dismissal of a second appeal by a learned Single Judge of

the Rajasthan High Court filed in SB Civil S.A. No.157/94

and thereby affixing seal of approval to the judgment and

decree passed in favour of respondent-plaintiff.

Having regard to the nebulous manner in which relevant

facts are found to have been stated in the judgments of the

trial court as well as the first appellate court, we thought

it fit and necessary to look into the plaint of which an

English translated copy as made for the respondents has been

furnished by the learned counsel, appearing before us. The

suit property is said to be a plot of land measuring

north-south 60 ft. and east-west 40 ft. situated on

Nohar-Bhadra Road at Nohar. As per the version of the claim

in the plaint he was holding possession of the property

since time immemorial by fencing it and in the year 1955 the

plaintiff constructed a house on the disputed plot and

started living therein. The fact that in the year 1955, he

constructed the rooms, kitchen etc., and started living

there, is found asserted more than once, claiming at the

same time that he was in occupation since long before

without specifying anywhere how long before. Further,

assertions made in the plaint are that he got electricity

connection and water connection in 1965 and 1974

respectively, producing photocopies of an electricity bill

of 1965 and water bill of 1981. A grievance has also been

made that at the instance of Area Patwari, Nohar, the

A.D.M/Secretary, Mandi Development Committee, issued a

notice calling upon him to vacate the encroachment, to which

he claims to have submitted his defence. Since, the A.D.M.

without properly appreciating the claims of the plaintiff,

ordered eviction, the plaintiff was forced to file the suit

and as per the case of the plaintiff projected in the

plaint, he by his long possession has become the owner of

the plot of land and not only the order passed by the A.D.M.

is illegal, null and void but his possession has to be

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protected by the issue of appropriate orders of permanent

injunction.

The case of the defendant was that the encroachment

was made for the first time only in the year 1981 and the

plaintiff was not in possession of the plot before and that

no connection of electricity and water was obtained by the

plaintiff as claimed during the years 1965 and 1974

respectively and the order of the A.D.M. directing the

removal of encroachment is absolutely legal, having been

passed in exercise of the powers under Sections 22 and 24 of

the Rajasthan Colonisation Act, 1954. Want of notice under

Section 80 CPC has also been urged as an infirmity to non

suit the plaintiff.

Both parties adduced oral and documentary evidence in

support of their respective claims. It is only for the

first time in evidence the plaintiff as PW-1 introduced the

theory of earlier possession of the land by the father of

the plaintiff and the two witnesses examined also in a most

cavalier and `more loyal than the king fashion seem to have

asserted that the property in question was in the occupation

of the plaintiffs family for nearly 55-60 years. A cursory

reference is found made to the evidence produced on the side

of the defendant-State. The trial court, on such

perfunctory materials, is found to have made certain

observations totally lacking in precision and observed, on

the basis of the oral evidence and water and electricity

bills produced by the plaintiff in respect of plot in

question, the possession of the plaintiff over the land in

question has been found continuously and uninterruptedly

since 1955. In yet another place, the trial court

observed, Thus, I hold that on the basis of the evidence

produced by the plaintiff, it is proved that the plot of

land in question has been in possession of the plaintiff for

more than 30 years peacefully, continuously and without any

obstruction, after raising building thereon. The startling

observation is found made in the relief portion and it

reads, on the above discussion, I have decided that the

land in question has been in peaceful and continuous

possession of the plaintiff since 1955, on which he

constructed building and started residing therein in 1955

itself and thus, this period becomes over about 30 years.

Under the circumstances, the adverse possession of the

plaintiff over the land in question has been established on

the basis of which he has acquired ownership thereon.

Aggrieved, the State pursued the matter on appeal

before the first appellate court but we find on a close

scrutiny of the judgment that there was no due or proper

application of mind or any critical analysis or objective

consideration of the matter made, despite the same being the

first appellate court. On the other hand, by merely

reproducing the findings of the nature adverted to by us, a

mechanical affirmation seems to have been made of them

without any reference to the principles of law or the

criteria to be satisfied before the claim of the plaintiff

of perfection of title by adverse possession could be

sustained, involving correspondingly destruction of title of

the State in respect of a public property. The first

appellate court further chose to reject the appeal on the

ground that the same has not been presented within time even

without properly noticing the details as to when the Court

closed for summer vacation and when the same was reopened,

on some strange method of reasoning.

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The High Court, apparently obsessed by the limitations

drawn on the exercise of Second Appellate Jurisdiction,

unmindful even of the glaring inconsistencies and

contradictions and serious nature of the issues raised

involving public property, has chosen to summarily reject

the appeal solely for the reason that both the courts below

have found the plaintiff to be the owner of the property and

if that be the position, Section 22 of the Rajasthan

Colonisation Act, 1954, which provided for summary eviction

of those in illegal occupation of public property will have

no application and that the declaration granted by the

courts had the effect of setting aside the order by the

A.D.M., impliedly. Hence, this appeal by the State.

Shri Sushil Kumar Jain, learned counsel appearing for

the State of Rajasthan, strenuously contended that the

courts below committed serious errors of law in upholding

the claim of adverse possession projected by the plaintiff

and that such findings were based more on hypothetical

assumption of vital and necessary facts, based on mere

surmises. Reference has been made to the fact that there

was no specific finding about the claim of possession by the

father projected merely at the time of trial and not raised

either when the objections were submitted before the A.D.M.

or even when the suit was filed, in the plaint. Argued the

learned counsel further that the essential ingredients

necessarily to be established to substantiate a claim of

perfection of title by adverse possession are totally

lacking in the present case and, therefore, our interference

is called for to prevent miscarriage of justice. As for the

finding of the first appellate court that the appeal

presented by the State before it was also barred by

limitation, the learned counsel invited our attention to the

details relating to the period of vacation and the date of

reopening of subordinate courts after summer recess and

contended that the said reason also was erroneous both on

law and on facts. A plea on the bar of civil courts

jurisdiction based on Section 25 of the Act was also raised.

Shri Aman Hingorani, learned counsel appearing for the

respondents-legal representatives of the plaintiff, with

equal force and vehemence contended that the findings of the

courts below concurrently recorded are quite in accordance

with law and do not call for interference in this appeal.

The learned counsel, at length, invited our attention to the

findings of the courts below, the copy of the plaint and the

evidence of PWs by furnishing his own translated copies of

the same. Since, the order passed by the A.D.M. was

illegal and a nullity, according to the learned counsel, the

bar of suit engrafted in the Act cannot be a hurdle to

approach the competent civil court to vindicate the property

rights of the plaintiff. Both the learned counsel invited

our attention to some of the relevant case law on the

subject and reference will be made, to the same hereinafter.

Adverting first to the question of limitation, on

which also the first appellate court chose to reject the

appeal before it and pursued before us though not considered

by the High Court, we find from the materials placed on

record that the trial court delivered its judgment on

10.4.89, that on 11.4.89, the State applied for a copy of

the judgment and the summer vacation started on 9.5.89. It

is stated that after the receipt of the copy of the judgment

on 9.5.89, an application for a copy of the decree was made

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only on 12.5.89 and the appeal was filed on 3.7.89, the date

on which the courts were said to have been reopened after

summer recess. If the copy of the judgment dated 10.4.89

was furnished on 9.5.89, the limitation for filing the

appeal would extend upto 8.6.89 and if during such period on

12.5.89 a copy of the decree was applied for it cannot be

said to have been made after the limitation period was over

and having regard to the intervening summer recess, the

filing of the appeal on the reopening day after obtaining

the decree copy also, together with copies of judgment and

decree on the first day of the reopening after vacation

would be well within the period of limitation and there is

no merit in the said ground assigned by the first appellate

court. Our attention has also been drawn to the original

records where we found a specific endorsement made after

processing the appeal papers by the office of the first

appellate court, that the appeal has been filed within time.

The first appellate court, therefore, was in error in

holding to the contra.

Apart from the serious error committed by the first

appellate court on the question of limitation, which the

second appellate was obliged but yet failed to consider and

correct, the learned Single Judge in the High Court, in our

view, committed a grave error in dismissing summarily the

appeal when it involved substantial and arguable questions

of law of some importance. Since, these issues have been

raised and argued before us, we consider it appropriate to

deal with them ourselves, instead of remitting the matter

back to the High Court for disposal on merits after hearing

both parties, at this belated stage.

The learned counsel for the appellant strongly relied

upon Sections 22 and Section 25 of the Act to contend that

the order passed by the A.D.M. in exercise of his powers

under Section 22 of the Act has become final and the

jurisdiction of the Civil Court stand ousted in respect of

such matters by virtue of Section 25 and therefore the suit

could not have been entertained at all by the Civil Court.

Section 25 of the Act stipulates that a Civil Court shall

not have jurisdiction in any matter which the Collector is

empowered by that Act to dispose of and shall not take

cognisance of the manner in which the State Government or

Collector or any officer exercises any power vested in it or

in him by or under the said Act. Section 22, provides for a

summary eviction of any person who occupies or continues to

occupy any land in a colony to which he has no right or

title or without lawful authority by treating such person as

a trespasser in the manner and after following the procedure

prescribed therefor. Reliance has been placed by the

respondents on the decisions reported in Abdul Waheed Khan

vs Bhawani & Others [1966 (3) SCR 617]; and Firm and Illuri

Subbayya Chetty & Sons vs The State of Andhra Pradesh [1964

(1) SCR 752], to substantiate his claim that the bar of suit

will not be attracted to a case of this nature. In our

view, the principles laid down in Abdul Waheed Khans case

(supra) while considering a provision like the one before

us, that the bar is with reference to any matter which a

Revenue Officer is empowered by the Act to determine and the

question of title is foreign to the scope of proceedings

under the Act, would apply to this case also with all force,

that is on the provisions of Section 25 of the Act, as it

stands. Even that apart in State of Tamil Nadu vs Ramalinga

Samigal Madam [AIR 1986 SC 794] this Court, after adverting

to Dhulabhaiss case reported in AIR 1969 SC 78, held that

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questions relating to disputed claims of parties for title

to an immovable property could be decided only by the

competent Civil Court and that in the absence of a machinery

in the special enactment to determine disputes relating to

title between two rival claimants, the jurisdiction of the

Civil Court cannot be said to have been ousted. In the case

on hand, a citizen is asserting a claim of acquisition of

title by adverse possession in derogation of the rights and

interests of the State in the property in question. In our

view, determination of such claims are not only outside the

purview of Section 22 which only provide for a summary mode

of eviction but in respect of such disputes relating to

title to immovable property the jurisdiction of ordinary

civil courts to adjudicate them cannot be said to have been

ousted. The powers and procedure under Section 22 of the

Act, in our view, is no substitute for the civil courts

jurisdiction and powers to try and adjudicate disputes of

title relating to immovable property.

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 involve destruction of right/title of the

State to immovable property and conferring upon a third

party encroacher title where, he had none. The decision in

P. Lakshmi Reddy vs L. Lakshmi Reddy [AIR 1957 SC 314],

adverted to the ordinary classical requirement - that it

should be nec vi nec clam nec precario - 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 Secretary of State for India in Council vs

Debendra Lal Khan (1933) LR (LXI) I.A. 78 (PC), strongly

relied 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 & Others vs Balwant alias Balasaheb

Babusaheb Patil (dead) by Lrs etc. [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.

The High Court without even a cursory scrutiny of the

legality and propriety of the findings in order to ascertain

at least as to whether they are based upon any legally

acceptable evidence and the necessary legal ingredients of

`adverse possession stood substantiated, mechanically seem

to have accorded its approval to the claim of title made by

the plaintiff merely on the basis that both the courts below

have found the plaintiff to be the owner of the property.

Indisputably the State was the owner and the question is as

to whether its title has been extinguished and the plaintiff

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had acquired and perfected title to the same by adverse

possession. In order to substantiate such a claim of

adverse possession the ingredients of open, hostile and

continuous possession with the required animus, as laid down

by Courts should be proved for a continuous period of 30

years. Admittedly, the plaintiff claims to have put up the

construction in 1955 and absolutely there is no concrete and

independent material to prove the same, except an oral

assertion. The story of his father having been there even

earlier to 1955 was not projected either before the A.D.M.

when the plaintiff submitted his defence, or in the plaint

when the suit was filed but for the first time introduced

only at the stage of trial when examined as PW1. 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.

Even if the plaintiffs allegations and claims, as projected

in the plaint, are accepted in toto, the period of so-called

adverse possession would fall short by 5 years of the

required period. There is no scrap of paper or concrete

material to prove any such possession of the plaintiffs

father nor was there any specific finding supported by any

evidence, in this regard. The father of the plaintiff was

also an employee of the Telephone Department. It is not as

though, if their story of such long possession is true,

there would be no correspondence or record to show that his

father or the plaintiff were there before 1981. The

relevance of the electricity bill to the property in

question itself has been questioned and no effort has been

taken by the plaintiff to correlate the electricity and

water bill to the property claimed by examining any official

witnesses connected with those records. While that be the

factual position, it is beyond comprehension as to how

anyone expected to reasonably and judiciously adjudicate a

claim of title by objective process of reasoning could have

come to the conclusion that the legal requirement of 30

years of continuous, hostile and open possession with the

required animus stood satisfied and proved on such

perfunctory and slender material on record in the case. The

first appellate court as well as the High Court ought to

have seen that perverse findings not based upon legally

acceptable evidence and which are patently contrary to law

declared by this Court cannot have any immunity from

interference in the hands of the appellate authority. The

trial court has jumped to certain conclusions virtually on

no evidence whatsoever in this connection. Such

lackadaisical findings based upon mere surmises and

conjectures, if allowed to be mechanically approved by the

first appellate court and the second appellate court also

withdraws itself into recluse apparently taking umbrage

under Section 100, Cr.P.C., the inevitable casualty is

justice and approval of such rank injustice would only

result in gross miscarriage of justice.

We are of the view, on the materials on record that

the plaintiff could not beheld to have substantiated his

claim of perfection of title by adverse possession to the

public property. The courts below could not have

legitimately come to any such conclusion in this case. The

judgment and decree of the courts below are set aside and

the plaintiffs suit shall stand dismissed. No costs.

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Before parting with this case, we may observe that our

decision need not stand in the way of the legal heirs of the

plaintiff, if they so desire to approach the concerned

authorities to seek for assignment of the land in their

favour, for value.