Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6690 of 2004

The State of A.P. & Ors. …Appellant(s)

Versus

M/s. Star Bone Mill & Fertiliser Co. …Respondent(s)

J U D G M E N T

Dr. B. S. CHAUHAN, J.

1.This appeal has been preferred against the impugned judgment

and order dated 22.3.2004, passed by the High Court of Judicature of

Andhra Pradesh at Hyderabad in City Civil Court Appeal No. 72 of

1989, by way of which the Civil Suit filed by the respondent against

the appellants, claiming title over the suit land in dispute, has been

upheld.

Page 2 2.The facts and circumstances giving rise to this appeal are:

A.One Shri M.A. Samad, Assistant Engineer, City Improvement

Board, Hyderabad, alongwith his associate, converted the land in

dispute measuring 3.525 acres i.e. 17061 sq. yards, in favour of the

Forest Department in 1920.

B.The suit land was given on lease on 21.5.1943 to M/s. A.

Allauddin & Sons for a fixed time period, incorporating the terms and

conditions, that the lessee would not be entitled to extend the existing

building in any way, or to erect any structure on the land leased. The

lessee was also prohibited from transferring the suit land by any

means.

C.The said M/s. A. Allauddin & Sons, a proprietory concern, sent

a letter dated 29.9.1945 in response to the eviction notice, informing

the appellants that it was not possible for it to remove the factory

established on the suit land, and thus, the said lessee asked the

appellants to put up the said property for rent. The said firm, then sent

a letter dated 1.5.1951, offering rent of Rs.600/- per annum.

D.The appellants vide letter dated 20.12.1954, informed M/s. A.

Allauddin & Sons to vacate the site within a period of one month, or

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Page 3 else be evicted in accordance with law, and in that case it would also

be liable to pay damages. In spite of receiving such a letter, the said

lessee/tenant remained in possession of the suit premises, and

continued to pay rent, as is evident from the letter dated 15.8.1956.

The appellants, however, vide letter dated 21.2.1958, asked the said

lessee/tenant M/s. A. Allauddin & Sons, yet again, to vacate the suit

land.

E.Instead of vacating the suit land, M/s. A. Allauddin & Sons

executed a lease deed dated 24.2.1958, and got it registered on

6.4.1958, in favour of Syed Jehangir Ahmed and others (Partners of

the respondent firm, M/s Star Bone Mill and Fertiliser Co.), for a

period of two years. During the subsistence of the said sub-lease, the

partners of the firm M/s. A. Allauddin & Sons, executed a sale deed

on 11.11.1959 in favour of the respondent, for a consideration of

Rs.45,000/-. The said sale deed was also registered, and possession

was handed over to the respondent.

F.The respondent herein filed a petition in 1964 before the

Minister for Agriculture & Forest, seeking permanent lease of the suit

premises in his favour. On 26.4.1967, an order was passed by the

Ministry of Agriculure & Forest in respect of recovery of arrears of

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Page 4 rent as regards the said land. The respondent vide letter dated

7.5.1969, offered higher rent to the appellants for the suit land.

G.On 22.5.1970, the respondent wrote a letter to the Chief

Minister of Andhra Pradesh (Ex.B-39), stating that he had been

cheated by M/s. A. Allauddin & Sons, as it had executed a sale deed

in his favour, even though it had no title, and a very high rate of rent

was fixed by the department, which should be reduced and till the

matter is finally decided, a rent of Rs.569/- per month should be

accepted. The said application/petition was rejected by the Assistant

Secretary to the Government, Food & Agriculture Department, vide

letter dated 18.12.1970.

H.Aggrieved, the respondent filed Writ Petition No. 187 of 1971

wherein an interim order dated 12.1.1971 was passed, to the effect

that the recovery of rent for the period prior to 26.4.1969 would be

made at the rate of Rs.568/- per month instead of Rs.1279/- per

month. Subsequent to 26.4.1969, rent would be recovered at the rate

of Rs.1279/- per month. In case, arrears are not paid by the

respondent, he would be vacated from the suit land.

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Page 5 I.In view of the interim order of the High Court, the appellants

issued a demand notice for a sum of Rs.45,484.62 paise. However,

vide order dated 19.10.1971, the High Court directed the respondent

to deposit a sum of Rs.30,000/-, in eight monthly installments. The

said writ petition was disposed of vide order dated 18.2.1972, asking

the respondent to approach the appropriate forum to establish his

rights over the suit land, or to make a representation to the State

Government for this purpose.

J. The appellants served notice dated 8.4.1974, upon the

respondent under Section 7 of the Land Encroachment Act, and the

respondent submitted a reply to the said show cause notice on

24.6.1974. The matter was adjudicated and decided on 21.8.1974,

under Section 6 of the Land Encroachment Act, and the respondent

was directed to vacate the suit land.

K.The respondent filed Writ Petition No. 5222 of 1974 before the

High Court, however, the same was dismissed, after giving liberty to

the respondent to approach the civil court. Thus, the respondent filed

Original Suit No. 582 of 1974 for declaration of title and for

injunction, restraining the appellants from evicting the said

respondent/plaintiff from the property in dispute.

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Page 6 The appellants contested the suit by filing a written statement,

and on the basis of the pleadings therein, a large number of issues

were framed, including whether M/s. A. Allauddin & Sons was

actually the owner and possessor of the suit land; and whether it could

transfer the suit land to the respondent/plaintiff, vide registered sale

deed dated 11.11.1959.

L.The City Civil Court, vide judgment and decree dated

25.4.1989 decreed the suit, holding that the Government was not the

owner of the suit land, and that the respondent/plaintiff had a better

title over it. Thus, he was entitled for declaration of title, and

injunction as sought by him.

M.Aggrieved, the appellants preferred City Civil Court Appeal

No. 72 of 1989 before the High Court, challenging the said judgment

and decree dated 25.4.1989, which was dismissed vide judgment and

decree dated 22.3.2004, affirming the judgment and decree of the trial

court.

Hence, this appeal.

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Page 7 3. Shri Amarendra Sharan, learned senior counsel appearing on

behalf of the appellants, has submitted that the courts below

misdirected themselves and did not determine the issue as regards,

whether the vendor of the respondent/plaintiff had any title over the

suit property. The same is necessary to determine the validity of the

sale deed in favour of the respondent/plaintiff. The issue before the

trial court was not whether the Government was the owner of the said

land or not. No such issue framed either. Moreover, such an issue

could not be framed in view of the admission made by the

respondent/plaintiff itself, as it had been paying rent regularly to the

Government, and the same was admitted by it, by way of filing an

application before the Government stating, that M/s. A. Allauddin &

Sons had cheated it by executing a sale deed in its favour, without any

authority/title. It thus, requested the Government to execute a lease

deed/rent deed in its favour. It was not its case, that in its earlier two

writ petitions filed by it, it had acquired title over the land validly, or

that M/s. A. Allauddin & Sons etc., had any title over the said suit

land. The lease deed executed by the Government in favour of M/s. A.

Allauddin & Sons, dated 21.5.1943 must be considered in light of the

provisions of Section 90 of the Evidence Act, 1872 (hereinafter

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Page 8 referred to as the `Evidence Act’), and not the sale deed dated

11.11.1959, as the suit was filed in 1974, just after a period of 15

years of sale, and not 30 years. The courts below have erred in

applying the provisions of Section 90 of the Evidence Act. The

findings of fact recorded by the courts below are perverse, being

based on no evidence and have been recorded by a misapplication of

the law. Thus, the appeal deserves to be allowed.

4.On the contrary, Shri D. Rama Krishna Reddy, learned counsel

appearing on behalf of the respondent, has opposed the appeal,

contending that the findings of fact recorded by the courts below, do

not warrant interference by this Court. It is evident from the revenue

records that possession is prima facie evidence of ownership, and that

the same is by itself, a limited title, which is good except to the true

owner. The admission and receipt of tax constitutes admission of

ownership, and the entries in the revenue record must hence, be

presumed to be correct. In the revenue record, one Raja Ram has

been shown to be the owner of the land, the Forest Department cannot

claim any title or interest therein. The said appeal lacks merit, and is

liable to be dismissed.

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Page 9 5.We have considered the rival submissions made by the learned

counsel for the parties and perused the records.

6.Admittedly, the High Court erred in holding that the sale deed

dated 11.11.1959, must be considered in light of the provisions of

Section 90 of the Evidence Act, instead of the period mentioned

therein, thereby treating the appeal as a continuation of the suit.

Therefore, the period of 30 years mentioned therein, has been

calculated from 1959, till the date of the decision of the appeal, i.e.

22.3.2004. This view itself is impermissible and perverse, and cannot

be accepted. The courts below have not given any reason,

whatsoever, for the said lease deed to be treated as having been

executed on 21.5.1943, under Section 90 of the Evidence Act and,

thus, for believing that the land belonging to the Forest Department,

which had in turn, given it to M/s. A. Allauddin & Sons on lease.

7.Section 90 of the Evidence Act is based on the legal maxims :

Nemo dat quid non habet (no one gives what he has not got); and

Nemo plus juris tribuit quam ipse habet (no one can bestow or grant a

greater right, or a better title than he has himself).

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Page 10 This section does away with the strict rules, as regards

requirement of proof, which are enforced in the case of private

documents, by giving rise to a presumption of genuineness, in respect

of certain documents that have reached a certain age. The period is to

be reckoned backward from the date of the offering of the document,

and not any subsequent date, i.e., the date of decision of suit or appeal.

Thus, the said section deals with the admissibility of ancient

documents, dispensing with proof as would be required, in the usual

course of events in usual manner.

8.There has been a clear admission by the respondent/plaintiff in

its letter dated 22.5.1970 (Ex.B-39), to the effect that it had been

cheated by M/s. A. Allauddin & Sons, who had no title over the suit

land, and sale deed dated 11.11.1959, had thus been executed in

favour of the respondent/plaintiff by way of misrepresentation. The

said application was rejected vide order dated 18.12.1970. While

filing the writ petition, the respondent/plaintiff did not raise the issue

of title of the Forest Department, infact, the dispute was limited only

to the extent of the amount of rent, and its case remained the same

even in the second writ petition, when it was evicted under the

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Page 11 Encroachment Act. The trial court framed various issues, and

without giving any weightage to the documents filed by

appellant/defendant, decided the case in favour of the

respondent/plaintiff, with total disregard to any legal requirements.

The courts below have erred in ignoring the revenue record,

particularly, the documents showing that the Government was the

absolute owner of the suit land since at least 1920.

9.No person can claim a title better than he himself possess. In

the instant case, unless it is shown that M/s. A. Allauddin & Sons had

valid title, the respondent/plaintiff could not claim any relief

whatsoever from court.

10. In Gurunath Manohar Pavaskar & Ors. v. Nagesh

Siddappa Navalgund & Ors., AIR 2008 SC 901, this Court held as

under:-

“A revenue record is not a document of title. It

merely raises a presumption in regard to

possession. Presumption of possession and/or

continuity thereof both forward and backward can

also be raised under Section 110 of the Evidence

Act.”

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Page 12 11.In Nair Service Society Ltd. v. K.C. Alexander & Ors. &

Ors., AIR 1968 SC 1165, dealing with the provisions of Section 110

of the Evidence Act, this Court held as under:-

“Possession may prima facie raise a presumption

of title no one can deny but this presumption can

hardly arise when the facts are known. When the

facts disclose no title in either party, possession

alone decides.”

12.In Chief Conservator of Forests, Govt. of A.P. v. Collector

& Ors., AIR 2003 SC 1805, this Court held that :

“Presumption, which is rebuttable, is attracted

when the possession is prima facie lawful and

when the contesting party has no title.”

13.The principle enshrined in Section 110 of the Evidence Act, is

based on public policy with the object of preventing persons from

committing breach of peace by taking law into their own hands,

however good their title over the land in question may be. It is for this

purpose, that the provisions of Section 6 of the Specific Relief Act,

1963, Section 145 of Code of Criminal Procedure, 1973, and Sections

154 and 158 of Indian Penal Code, 1860, were enacted. All the afore-

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Page 13 said provisions have the same object. The said presumption is read

under Section 114 of the Evidence Act, and applies only in a case

where there is either no proof, or very little proof of ownership on

either side. The maxim “possession follows title” is applicable in

cases where proof of actual possession cannot reasonably be expected,

for instance, in the case of waste lands, or where nothing is known

about possession one-way or another. Presumption of title as a result

of possession, can arise only where facts disclose that no title vests in

any party. Possession of the plaintiff is not prima facie wrongful, and

title of the plaintiff is not proved. It certainly does not mean that

because a man has title over some land, he is necessarily in possession

of it. It infact means, that if at any time a man with title was in

possession of the said property, the law allows the presumption that

such possession was in continuation of the title vested in him. A

person must establish that he has continued possession of the suit

property, while the other side claiming title, must make out a case of

trespass/encroachment etc. Where the apparent title is with the

plaintiffs, it is incumbent upon the defendant, that in order to displace

this claim of apparent title and to establish beneficial title in himself,

he must establish by way of satisfactory evidence, circumstances that

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Page 14 favour his version. Even, a revenue record is not a document of title.

It merely raises a presumption in regard to possession. Presumption

of possession and/or continuity thereof, both forward and backward,

can also be raised under Section 110 of the Evidence Act.

14.The courts below have failed to appreciate that mere acceptance

of municipal tax or agricultural tax by a person, cannot stop the State

from challenging ownership of the land, as there may not be estoppel

against the statute. Nor can such a presumption arise in case of grant

of loan by a bank upon it hypothecating the property.

15.The trial court has recorded a finding to the effect that the name

of one Raja Ram was shown as Pattadar in respect of the land in

dispute and the respondent/plaintiff is in possession. Therefore, the

burden of proof was shifted on the government to establish that the

suit land belonged to it. Learned counsel for the respondent/plaintiff

could not furnish any explanation before us as to who was this Raja

Ram, Pattadar and how respondent/plaintiff was concerned with it.

Moreover, in absence of his impleadment by the respondent/plaintiff

such a finding could not have been recorded.

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Page 15 16.The courts below erred in holding, that revenue records confer

title, for the reason that they merely show possession of a person. The

courts below further failed to appreciate that the sale deed dated

11.11.1959 was invalid and inoperative, as the documents on record

established that the vendor was merely a lessee of the Government.

17.In view of the above, we are of the considered opinion that

findings of fact recorded by the courts below are perverse and liable to

be set aside. The appeal succeeds and is allowed. The judgments of

the courts below are hereby set aside. The suit filed by the

respondent/plaintiff is dismissed.

.……….……………………………………………

J. (Dr. B.S. CHAUHAN)

………………………………………………………J.

(FAKKIR MOHAMED IBRAHIM KALIFULLA)

New Delhi,

February 21, 2013

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