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PETITIONER: BHAVNAGAR MUNICIPALITY

       Vs.

RESPONDENT: UNION OF INDIA AND ANR.

DATE OF JUDGMENT17/11/1989

BENCH: RAMASWAMI, V. (J) II BENCH: RAMASWAMI, V. (J) II SHARMA, L.M. (J)

CITATION:  1990 AIR  717            1989 SCR  Supl. (2) 219  1989 SCC  Supl.  (2) 758 JT 1989 (4)   516  1989 SCALE  (2)1218

ACT:     Limitation  Act, 1963--Article 65--Suit  for  possession based   on   title--Principle   that   possession    follows title--When can be relied upon.

HEADNOTE:     The  plaintiff-appellant  had flied a suit  against  the defendentsrespondents for a declaration of its title and for possession of the suit property mentioned in the schedule to the  plaint  which consisted of two parts;  the  first  part related  to  a large extent of vacant land known  as  parade ground  and the second part pertained to survey Nos. 162  to 165  on  which stood structures of old  Lancer’s  Lines  and certain  evacuees  were occupying the same at  the  time  of institution  of the suit. The second part is known  both  as Lancers Quarters and Rasala Lines. In the suit the plaintiff also claimed damages for wrongful occupation of a portion of the  property  and rent for another portion for  the  period from  1st  January  1964 till delivery  of  possession.  The Plaintiffs’  case  was that by virtue of Resolution  No.  37 dated  19.1.1984  and Resolution No. 77 dated  29.2.48  pub- lished  in  Bhavnagar Darbar Gazette the entire  suit  lands vested in and belonged to the plaintiff who entered into and remained  in possession thereof. According to the  plaintiff the  Government  of India claiming to be the  owner  of  the Parade  Ground,  in or about June 1961, fixed  the  boundary marks and thus the entry of the Government of India  consti- tuted  wrongful encroachment. As regards the Lancers’  Quar- ters,  it was stated in the plaint that they did not  belong to  the plaintiff, that the same were occupied by the  State Lancers and subsequently by the refugees and that the plain- tiff allowed the land and the structures thereon to be  used free by the Government. However the plaintiff asserted  that it  was entitled to recover rent or compensation in  respect thereof from 1.1.54 till delivery of possession.     The  defendents  denied the claim of the  plaintiff  and pleaded that consequent upon the Bhavnagar State acceding to the  Indian  Union and consequent on the  Federal  Financial Integration of State, the accommodation, lands and buildings in the use or occupation of the Ex-State forces were  trans- ferred  to the Government of India and became its  property.

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The defendents-respondents denied that the suit land  vested in  the plaintiff on the strength of the  Resolution  afore- said. 220     The  Trial Court held that the plaintiff had proved  its title to the suit land and that it was in possession of  the suit  property  till 7.7.1952. It also held  that  the  suit having been filed on 3rd March 1964, the same was not barred under  section 65 of the Limitation Act. As  regards  Rasala Lines,  the  trial  Court did not uphold the  claim  of  the plaintiff, because of its admission that it did not own  the buildings standing thereon. As such the Trial Court  decreed the  suit for possession in respect of Parade  Ground  alone and dismissed the same in respect of Rasala Lines.     The  first defendant Union of India preferred an  appeal to the High Court against the decree of the trial Court  and the  plaintiff flied cross-objections in so far as the  suit was  dismissed  in respect of Rasala Lines. The  High  Court dismissed  the  cross-objection filed by the  appellant  but allowed the appeal of the Union of India holding inter  alia that there was nothing on record to show that the Municipal- ity  was formally handed over ’he land in question and  that its right over the land was never recognised by the Union of India or the State Government. The High Court also held that the  suit was liable to be dismissed as  being  time-barred. Hence  this appeal by the plaintiff-Municipality by  Special Leave. Dismissing the appeal, this Court,     HELD:  With the accession and completion of  territorial and  financial integration and part ’B’ states forming  part of  Indian  Union,  the lands and buildings in  the  use  or occupation of the former Indian State Government, as distin- guished  from  the private properties of  the  Rulers,  were transferred and vested in the Government of India and became its property. [226D]     The  right  to sell such lands of the  State  Government were  with the Government concerned. It is that  right  that was  given to the Municipalities after the formation of  the Union  of  the  United States of Saurashtra.  It  cannot  be treated  therefore,  as a transfer of title  in  respect  of those lands to the municipality but the right to execute the sale  deed in respect of those lands of the  Government  was transferred or vested in the municipalities concerned.  This authorisation  itself was later cancelled by the  Government of Gujarat under Order dated 26.3.63. [229C-D; G]     Possession of the land was also not taken by the munici- pality at any time. It is not open to the appellant to  rely on the principle that possession follows title. [232B] 221     Not only there is evidence to show that physical posses- sion was with the defendants but also there could not be any legal possession with the plaintiff as the title to the land is not vested in them. Since the suit itself is for  posses- sion based on title and the plaintiffs have not proved title it  is  not necessary for the defendent to  plead  or  prove adverse possession. 1232C]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  365  of 1981.     From  the  Judgment and Order dated 23.3.  1978  of  the Gujarat High Court in First Appeal No. 236 of 1971. R.F. Nariman, P.H. Parekh and M.K. Pandit for the Appellant.

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   R.P.  Bhatt,  C.V. Subba Rao, P.P. Srivastava,  Mrs.  H. Wahi and M.N. Shroff, (NP) for the Respondents. The Judgment of the Court was delivered by     V.  RAMASWAMI, J. The  plaintiff-Bhavnagar  Municipality are the appellants. The suit was filed by the plaintiff  for a  declaration of its title and for possession of  the  suit property  described in the schedule to the plaint. They  had also  prayed for damages for wrongful occupation in  respect of  a portion of the property and rent for another  portion, for the period from 1st January, 1964 till possession of the property  is delivered to the plaintiff. The defendants  are the  Union  of  India and. the State of  Gujarat.  The  suit property  is described in two parts in the schedule  to  the plaint.  The first part consist of a large extent of  vacant land  which  is referred to in these proceedings  as  Parade Ground. The second part is covered by Survey Nos. 162,  163, 164  and 165 on which structures of old Lancer’s lines,  are standing and certain evacuees were Occupying at the time  of the  suit.  This  second part is sometimes  referred  to  as Lancers  quarters and also sometimes’ as Rasala  Lines.  The plaintiffs’  case was that by Resolution No. 37  dated  19th January,  1984  published in the  Bhavnagar  Darbar  Gazette dated 24th January, 1948:               "...  The Bhavnagar State bestowed the  rights               of  the State of Bhavnagar to effect sales  of               land  in the Municipal area of Bhavnagar  City               in  Bhavnagar  Municipality and by  a  further               Order  No. 77 of dated the 29th  of  February,               1948  the State vested the said  lands  except               four  plots of land mentioned therein  in  the               Bhavnagar Municipality ..." 222 The  further  case of the plaintiff was that  by  virtue  of these  orders the entire suit lands mentioned in the  plaint have: "vested in and belongs to the plaintiff who entered into and remained in possession thereof till recently." And  that  subsequent to the erstwhile  State  of  Bhavnagar merging  in the United States of Kathiawar which was  subse- quently known as the State of Saurashtra, the Government  of Saurashtra  recognised the aforesaid Resolutions dated  19th January,  1948 and 29th February, 1948. The further case  of the plaintiff was the Government of India claiming to be the owner of the Parade Ground, in or about June, 1961 fixed the boundary marks and that the Government of India’s entry into possession  constitute wrongful encroachment. The  plaintiff claimed  damages for this wrongful occupation of the  Parade Ground from 1st January, 1964 till they vacate the  wrongful encroachment and hand over possession to the plaintiff.     So  far as the Lancer quarters or Rasala Lines  is  con- cerned  it was stated in the plaint that the  structures  in the land covered by the Survey numbers referred to in part 2 of  the schedule to the plaint did not belong to the  plain- tiff,  that the same were occupied by the State Lancers  and subsequently by the refugees, and that the plaintiff allowed the  land and the structures thereon to be used free by  the Government.  However, they were entitled to recover rent  or compensation  in  respect of this land for the  period  from 1st January, 1954 till delivery of possession.     The  Union of India filed a written statement which  was adopted  by  the State of Gujarat. it was contended  by  the defendants that the Parade Ground was used by the Ex-Bhavna- gar state forces and that barracks and other military build- ings used for accommodation of the Ex-Bhavnagar state forces known  as Lancer’s Lines were in existence for a  long  time

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prior to 1948 in the suit property known as Rasala Lines and that  consequent  upon the Bhavnagar State acceding  to  the Indian  Union and consequent on the Federal Financial  Inte- gration of States, accommodation, lands and buildings in the use or occupation of the Ex-state forces were transferred to the  Government o[ india and became its property. The  Board of  officers consisting of six members  including  Executive Engineer,  Public Works Department as representative of  the State of Saurashtra was constituted and the buildings  known as infantry lines and Lancer’s lines were taken over on  7th June, 195 1 by the Government of India. They further  stated that the 223 State  of  Saurashtra  admitted the ownership  of  the  suit property  and the structures vested in the Defence  Ministry from the date of Financial integration and when the State of Saurashtra, (as it was then known) required the land of  the Parade  Ground  for  this use that was handed  over  to  the Saurashtra  Government  on 7th July, 1952  by  the  military engineers of the Government of India. The defendants  denied that  either the Resolution No. 37 dated 19th January,  1948 or Resolution No. 77 dated 29th February, 1948 vested in the plaintiff  the  land of the Parade Ground or the  lands  and buildings known as Rasala Lines. The defendants also  denied that they were trespassers or liable to pay damages and rent in respect of the suit property.     The  Trial Court held that the plaintiff had proved  its title  to the suit land and that they were in possession  in the suit property till 7th July, 1952 when physical  posses- sion  was handed over by the military engineers of the  Gov- ernment of India to the State Public Works Department of the State of Saurashtra. Since the suit was filed on 3rd  March, 1964 the suit was not barred under section 65 of the Limita- tions  Act, 1963. However, on the ground that in respect  of Rasala  Lines the plaintiff have admitted that they did  not own the buildings thereon, they are not entitled to  recover possession  of the lands covered by the Survey  numbers  de- scribed  in the second part of the schedule to  the  plaint. Accordingly, the suit for possession was decreed in  respect of the Parade Ground and dismissed in respect of the  Rasala Lines.     The  first defendant-Union of India, filed an appeal  to the  High Court of Gujarat against this judgment and  decree of  the  Trial Court and the  Bhavnagar  Municipality  filed cross-objections  in  so far as the suit  was  dismissed  in respect of the land comprised in the Rasala Lines. The  High Court dismissed the cross-objections filed by the Municipal- ity holding that Resolution No. 37 dated 19th January,  1948 was  confined to open lands and not to lands below  standing structures and that, therefore, the cross-objections  relat- ing  to  the Rasala Lines could not be sustained.  The  High Court  however allowed the appeal of the Union of  India  in the view that even assuming that by virtue of the Resolution No.  37  dated 19th January, 1948 the title  to  the  Parade Ground had come to be vested in the Municipality, there  was nothing on record to show that the Municipality was formally handed  over the land in question, that its right  over  the land was never recognised by the Union of India or the State Government  and  that the various documents  filed  in  this case,  would  go to show that as early as July,  1950  these lands and other properties which were in occupation of the 224 erstwhile  state military had been taken over  and  remained under  the control of the Defence Ministry of the  Union  of India  and that the possession was handed over by the  Union

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of India to the State Government on 7th July, 1952 for  use. The  High Court also held since the plaintiff had not  shown possession of the suit building within 12 years prior to 3rd March,  1964  when  the suit was filed, the  suit  was  also liable  to  be dismissed as barred by limitation,  and  that therefore  it  was  not necessary either to  deal  with  the argument of the defendants that the vesting that was contem- plated  in  the Resolution 37 dated 19th January,  1948  and Resolution 77 dated 29th February, 1948 was not intended  to be  vesting  in its full amplitude, but was  meant  only  to appoint the Municipality as agent of the State to dispose of the land. The plaintiff-Municipality have filed this  appeal under Article 136(1) of the Constitution against this  judg- ment of the High Court of Gujarat.     The learned counsel for the appellant contended that the High  Court should have given a finding on title as  Article 65  of the Limitation Act, 1963 is applicable to  this  case since the suit was filed on 3rd March, 1964, and that on the finding of the Trial Court in favour of the plaintiff on the question of title in respect of ’Parade Ground’, and in  the absence of specific plea of adverse possession in the  writ- ten  statement,  the Trial Court’s decree should  have  been confirmed. He also assailed the finding of the High CoUrt on the question whether the plaintiff was handed over or  taken possession of the suit property in pursuance of the  Resolu- tion  dated 19th January, 1948. We are of opinion  that  the learned  counsel  for the appellant is well-founded  in  his contention  that Article 65 of the Limitation Act,  1963  is applicable in this case as the suit was filed on 3rd  March, 1964  but the Act had come into force on 1st January,  1964. Therefore,  since the suit is for possession based on  title to the suit property and the defendants had denied title, of the  plaintiff,  it  is necessary for the Court  to  give  a finding on title of the plaintiff even if the defendants  in possession had not pleaded adverse possession. We also think that  it is just and necessary that we ourself consider  the question of title and that it is not necessary to remand the case  for that purpose. We, therefore, proceed  to  consider the  question of title of the plaintiff to the suit  proper- ties.     In order to understand the nature and implication of the Resolution  No. 37 and the other documents relied on by  the learned  counsel for the appellants in support of the  claim of  title of the Municipality for the Parade Ground and  the land  in Rasala Lines or Lancer quarters it is necessary  to trace briefly the constitutional history of accession and 225 integration  of the Indian States with the Union  of  India. The federal scheme embodied in the Government of India  Act, 1935,  was the first effort to provide for a  constitutional relationship between the Indian States and the Government of India  on a federal basis. Section 311 of the Government  of India  Act,  1935 defined as ’Indian State’ as  meaning  any territory  not  being part of ’British India’.  whether  de- scribed as a State, an Estate, a Jagir or otherwise. Part II of the Government of India Act, 1935 provided for the estab- lishment  of  a Federation of India by accession  of  Indian States.  In spite of the protracted negotiations  that  fol- lowed  the enactment of Government of India Act the  Federa- tion  envisaged under the Act could not come into  existence in  view of the States not opting for accession. But by  the setting  up of the new dominions under the Indian  Independ- ence  Act,  1947 the suzerainty of the  British  Crown  over indian  States lapsed along with it all  functions,  obliga- tions, powers, rights, authority or jurisdiction exercisable

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by  the  Crown. However, the proviso to section  7  provided that effect shall, as nearly as may be continued to be given by the Dominion Government, to the provisions of any  agree- ment  between  the Indian State and the Crown in  regard  to matters  specified therein until the same are  denounced  by either of the parties. It was in this background the  Domin- ion Government of India created a new department called  the State Department on the 5th July, 1947 to deal with  matters arising  between  the  Central  Government  and  the  Indian States. This department was in charge of Sardar Patel. After persistent   negotiations  and  persuation,  barring   three States, all the Indian States in the geographical limits  of India  had  acceded to the Indian Dominion by  15th  August, 1947.  The  integration  of States however  did  not  follow uniform pattern in all cases. Merger of States in the  prov- inces  geographically  contiguous to them was  one  form  of integration;  the second was the conversion of  States  into Central  administered  areas. The third category  are  those cases  where several small groups of States which  could  be consolidated  into  sizeable units by uniting them  to  form unions of States on the basis of full transfer of power from the  rulers  to the people. This form  of  consolidation  of States  was  adopted in Kathiawar covering  222  States  and Estates  with  varying  territories  and  jurisdiction.  The scheme  for the constitution of the United State of  Kathia- war,  later known as Saurashtra was finalised and the  cove- nant  was signed on 23rd January, 1948 and the new State  of Saurashtra  inaugurated  on the 15th  February,  1948,  vide Government  of  India, Ministry of States, "White  Paper  on Indian States".      The  financial integration was simultaneously taken  up with  accession  and  territorial  integration.  The  Indian States Finances 226 Enquiry  Committee  headed by Shri V.T.  Krishnamachari  was constituted  by Resolution dated 27th October, 1948  of  the Government of India and the recommendations were incorporat- ed in the Constitution. On the adoption of the new Constitu- tion  of  India the process of  territorial  integration  of States thus became complete. Under the new Constitution  all the constituent units both Provinces and States were classi- fied  into  three  classes. namely, Part  ’A’  States  which correspond  to  the former Governor’s  Provinces;  Part  ’B’ States which comprised the Union of States and the States of Hyderabad, Mysore and Jammu and Kashmir; and Part ’C’ States which  correspond to the former Chief  Commissioners’  Prov- inces. This territorial integration of States is effected by defining in Article 1 of the Constitution that the  territo- ries  of  India include the territories of  all  the  States specified  in Parts A, B and C of the First  Schedule.  Thus with  the inauguration of the new Constitution on  the  26th November,  1949 the merged States have lost a11 vestiges  of existence as separate entitles.     With  the  accession and completion of  territorial  and financial  integration and the Part ’B’ States forming  part of  Indian  Union,  the lands and buildings in  the  use  or occupation  of  the former Indian  State  Governments,  have distinguished  from  the private properties of  the  rulers, were  transferred and vested in the Government of India  and became its property.     The  documents which the learned counsel for the  plain- tiff strongly relied in support of title to the suit proper- ty are Resolution No. 37 dated 19th January, 1948 and  Reso- lution  No. 77 dated 29th February, 1948. A  translation  of these  documents which are in Gujarati, have been marked  as

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Ex. 87 and they reads as under:               "It  may be noted by your Honourable  Highness               that  we  have  personally  made   application               regarding some matter regarding our  Bhavnagar               State  in respect of the Scheme of making  one               State  of Saurashtra: Kathiawar: and the  fol-               lowing arrangement is required to be made.               1,2,3,4               5. The right of the State to sell the land  in               the  limit of the Municipalities of  Bhavnagar               City and of the District Towns (Kasba)  vested               hereby in the Municipalities concerned  hence-               forth; and the amount of the rent and lease of               the  Town Planning area shall be given to  the               Bhavnagar City               227               Municipality  henceforth. Sheth Abdul  Hussain               Gulamhussain  and Sheth Masumali Zafarali  has               given  their plot for Mahatma  Gandhi  Mandir.               And they have made application for getting the               plot of the land of the same area for building               their  own houses. I have made  recommendation               thereunder for giving the same to them without               taking Premium (Sukhadi). And if the recommen-               dation which I have made is accepted the  said               approval may not get disturbed in these rights               are given to Municipality.               6, 7, 8, 9, 10, 11, 12, 13, 14.               Forwarded  with compliments to the  Honourable               Your  Highness for passing necessary order  in               favour with kindness, regarding the  implemen-               tation accordingly in respect of the  approval               of  the scheme of the above stated  Paragraphs               No.  1  to 14 after going  through  the  above               stated facts.                       Sd/-Anantrai Prabhashanker,                               Chief Diwan                            Sansthan Bhavnagar               H.D.R. No. 37               Upon  considering all the facts stated  above,               under  the above recommendation,  the  schemes               according  to the Darakast made in the  afore-               said paragraphs from 1 to 14 are sanctioned.               Papers  returned to Chief Diwans.for  informa-               tion and for necessary action to be taken.               Dt. 19.1.1948               Sd/-Krishkumarsinhji                                         Maharaj  S.  Bhavna-               gar."               "The  right of the State to sell the  land  in               the limits of the Municipalities of  Bhavnagar               City  and  of the District Towns  (Kasba)  has               been  vested in the  Municipalities  concerned               under the Di. R. No. 37 dated 19.1.1948 of His               Highness.               228               It is deemed proper to make clarification that               the  council of Ministers had decided to  keep               in reserve the below mentioned lands in  Bhav-               nagar for the use of the State. Therefore  the               same are not included in the lands handed over               to   the  Municipality.  Particulars  of   the               lands:--               1.  Open land of Gangajalia Talav situated  at               South  side of the theatre and the temple  and

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             wire fencing done near Gangajalia Talav.               2.  The  open square  plot  (Chogan)  situated               opposite  to Gangnath Mahadev  Towards  Darbar               Hall and Nakubag.               3.  The open square plot (Chogan) opposite  to               Darabari Motor Garrage.               4. A triangular piece of the land opposite  to               Sir Takhatsinhji Hospital near Kailasbaug.               Information  regarding this resolution may  be               sent to the parties concerned.               Dt. 29.3.48               Sd/-Jadanji K. Mode               chief Minister" The  translation also does not appear to be accurate, as  in another translation made, which were filed with the  special leave petition the first operative portion is translated  as follows:               "the  right of the State to sell the  land  be               transferred  to the Municipalities  of  proper               Bhavnager and other Municipalities of  Kasbas,               and  the rent which is being realised  of  the               plots  of  Town Planning  Area  henceforth  be               realised by Bhavnagar Municipality." Again the first paragraph of Resolution No. 77 is translated as:               "Proper  Bhavnagar  and  Kasba  Municipalities               have been given the right of the State to sell               the land within the limits of the Municipality               as in H.D.R. No. 37 dated 19.1.1948." In  fact, in the suit notice under section 80, Civil  Proce- dure Code the 229 plaintiff have stated that these orders "bestowed the rights of  the then State of Bhavnagar to effect the sales of  land in the Municipal area."     We  have already noticed that the Saurashtra  State  was formed by consolidation of several small States. The  scheme referred to in the first paragraph was the scheme of consol- idation of the States into United States of Saurashtra.  The 14 proposals in that letter were the arrangements that  were required  to be made in order to give effect to the  scheme. There  should  have  been number of  Municipalities  in  the States which had merged into a union under the covenant. The land within the limits of Municipalities referred to in  the orders  extracted above were the lands of the Government  of the  States  concerned because obviously  the  covenants  of accession and integration under the scheme of forming  Union of States could not deal with the private properties of  the rulers. The right to sell such lands of the State Government were with the Government concerned. It is that right in  our view, that was given to the Municipalities after the  forma- tion  of  the Union of the United States of  Saurashtra.  It cannot  be  treated, therefore, as a transfer  of  title  in respect of those lands to the municipality but the right  to execute  the  sale  deed in respect of those  lands  of  the Government  was transferred or vested in the  Municipalities concerned. It amounts conferring an authority or authorising the  Municipalities to execute the sale deeds in respect  of Government  lands  situate within  the  Municipality,  which should normally have been done by the State Government.  The subsequent correspondance and orders of the Government  also show  that  the Government of India understood  and  treated these orders only as authorisation or transferring of  power to execute sale deeds and collect rent in respect of Govern- ment lands situated within the Municipality. The  Government

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had  treated  those  orders as liable  for  cancellation  or modification.  If the effect of those orders  were  transfer and  vesting  of title in the  Municipalities,  no  question divesting  of  title  would or could  arise.  Resolution  77 itself was subsequent to Resolution 37 but excluded  certain lands from the scope of Resolution 37. This could only be on the  basis that the title had not vested in the  Municipali- ties under Resolution 37.     Again  this  authorisation itself was cancelled  by  the Government  of  Gujarat under Order No.  LMN  546-14576-A.G. dated  26.3.63.  But since a number of  Municipalities  made representation to the Government to reconsider the same, the Government  reconsider the entire case and decided that  the right  to sell plots of land given under Resolution  No.  37 dated 19th January, 1948 by the State of Bhavnagar to all 230 the Municipalities of Old Bhavnagar States, and the right to give the same on rent-lease and to take the income therefrom shall be enjoyed by the Municipalities subject to the condi- tions  mentioned in the letter of the Government dated  10th August, 1965. These conditions read as follows:               "1. The right to sell the land and to give  it               on  rent-lease and to get the out come  there-               from shall apply to the land of the Government               coming  within the limit to  the  Municipality               decided fixed on the date of the Order of  the               State  of Bhavnagar i.e. dt. 19.1.48. And  the               same  shall  not  apply to  the  land  falling               within the extended limit if the limit of  the               Municipality is increased.               2.  The  procedure to be followed  for  giving               this  land  in  sale or  on  rent-lease  shall               generally  be followed according to the  rules               of  Government, that is to say public  auction               shall be made.               3. If the approximate value of the land to  be               given on sale or on rent-lease comes to  Rs.25               per sq. metre or it is more than that the sale               or  the lease-land shall be  considered  final               after permission of the revenue department  of               the Government for sale or lease is obtained.               4.  The sale or rent-lease of this land  shall               be  done according to the purpose  decided  in               the  scheme  following  the  Town  Development               Scheme of the Municipality, that is to say  if               the  locality  is  fixed  in  the  development               scheme  for industrial or residential  purpose               the  land of the suit locality shall be  given               for that particular purpose. And if some lands               are  fixed to be reserved for keeping open  or               for  the purpose of garden or for some  public               purpose  in the development scheme,  the  said               land  shall not be given on sale or  on  lease               for private purpose.               5.  The Municipalities shall have  to  deposit               the income obtained from sale or rent-lease of               the land of the aforesaid land of the  Govern-               ment, in a separate fund and the same shall be               used  for the work of the development  of  the               city town" These conditions are inconsistent with the plaintiff’s  case of absolute 231 ownership  in themselves. We have, therefore, no doubt  that what  was conferred on the Municipality under Resolution  37

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dated  19th January, 1948 was only a right or an  authorisa- tion to sell the land as representing the Government but not a vesting of the title itself in the Municipality.     The other documents relied on by the learned counsel  in support of his contention that the title itself should  have been  vested in the Municipality may now be noticed. Ex.  95 dated  2lst July, 1950 is a copy of the proceedings  of  the Board  of Officers of the Defence Department in  which  they have  described  detailed inventory  of  Defence  department assets,  accommodations, installations,  furniture,  fitting and  connected stores pertaining to Saurashtra state  forces in  Bhavnagar.  In this while referring to  the  suit  lands which was stated to be in their possession a remark has been made to the effect:               "The Bhavnagar Municipality claims the land in               question on the basis that the whole assets of               the  Bhavnagar  town planning  Department  had               been transferred to them by the orders of  his               Highness,  Bhavnagar, State in 1948  and  they               are  collecting the Revenue from the  farmers.               The  claim will subsequently have to be  veri-               fied." We  are  unable to see how on the basis of this  letter  the Municipality could claim a title. At best it may be  treated as evidence that in July, 1950 the Municipality made a claim for  the land. But at the same time it may be  pointed  that the document is evidence against the Municipality in so  far as  it  treated the properties as belonging to  the  Defence Department  of the Government of India and that the  Defence Department  were in possession of the same. In the two  let- ters  Ex.  73 dated 30.11.1950 and Ex. 72 dated  15.6.  1951 which  are communications from the Government of  Saurashtra it is only stated that suit lands do not vest to the Govern- ment of Saurashtra. As seen earlier, possession of the lands were  handed  over by the Government of India to  the  State Government  only on 7.7. 1952 and, therefore, these  letters cannot  be of any help to the appellant. However, it may  be mentioned, that the Government of Saurashtra have  corrected themselves  in their communication dated 6th May,  1952  and stated  that the claim of the plaintiff that the lands  were vested in Bhavnagar Municipality was erroneous and that  the land  is  vested and is in the possession of  Government  of India. The plaintiff have also admitted that the  structures in Rasala Lines are not shown to be that of the Municipality in the Municipal records and even in the plaint they did not claim the 232 structures  as  belonging to the Municipality. In  the  suit notice  the plaintiff have also not claimed that  they  "en- tered into and remained in possession" of the land as stated in  the  plaint para 5. It is also in  evidence  that  these buildings  were there long before 1948 and that,  therefore, the land alone could not have been vested in the Municipali- ty  without buildings. In fact, the Resolution No. 37  dated 19th  January,  1948 which is relied on does  not  make  any distinction  and it refers to only lands and not  buildings. We, therefore, agree with the finding of the High Court that possession of the land was also not taken by the Municipali- ty  at any time. It is not open to the appellant to rely  on the  principle that possession follows title. In  this  case not only there is evidence to show that physical  possession was with the defendant but also there could not be any legal possession  with the plaintiff as the title to the  land  is not vested in them. Since the suit itself is for  possession based on title and the plaintiff have not proved title it is

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not  necessary for the defendant to plead or  prove  adverse possession.     In  the  result the appeal fails and  it  is  dismissed. However,  the  parties will bear their respective  costs  in this Court. Y.  Lal                                         Appeal  dis- missed. 233