R. HANUMAIAH & ANR. v.

SECRETARY TO GOVERNMENT OF KARNATAKA REVENUE  DEPARTMENT & ORS.

(Civil Appeal Nos. 1588-1589 of 2008) FEBRUARY 24, 2010*

[R.V. Raveendran and Swatanter Kumar, JJ.]

2010 (4) SCR 904

The Order of the Court was delivered by

O R D E R

R.V.  RAVEENDRAN J. 1.  These appeals by special  leave are by the  plaintiffs in a suit (O.S.No.714 of 1982 before the City Civil Judge, Bangalore  

City) for a declaration of title and consequential relief of permanent injunction  

in  respect  of  Sy.Nos.  30  and  31  of  Jakkasandra  Village,  Begur  Hobli,  

Bangalore South Taluk.

2. The case of plaintiffs in brief is as follows : Plaintiffs are the owners of a  

tank  called  “Maistry  Kere”  bearing  Survey  No.30,  (Old  Survey  No.25)  

measuring 11 acres 21 guntas and land bearing Survey No.31 (Old Survey  

No.26) measuring 1 acre 9 guntas situate in Jakkasandra Village, described  

in the plaint schedule as items 1 and 2. The said tank and land were earlier  

part  of  Block  No.61  measuring  297  Acres  16  Guntas  known as  ‘Dalavai  

Dinne’,  which  belonged  to  their  Great  great  grandfather  –  Kurakalu  

Venkataramana Maistry.  That the said Venkataramana Maistry executed a  

deed of settlement dated 7.1.1874 (Ex. P.2) settling the said Dalavai Dinne  

upon his son Chikkahanumaiah. The said Dalavai Dinne identified as Block  

No.61 was re-surveyed and allotted Re-Survey Nos.16, 19, 20, 21, 23, 27 to  

35. A portion of the said Dalavai Dinne measuring 102 acres was acquired for  

St. John’s Medical College under final notification dated 30.4.1963. Another

extent of 180 acres of land therein was acquired for forming of Koramangala  

Layout,  under final notification dated 28.9.1965. After such acquisition,  the  

appellants were left with only Survey Nos.30 and 31 (suit schedule items 1  

and  2  from  out  of  the  Dalavai  Dinne)  and  they  continued  in  possession  

thereof as owners. The documents trace their title for more than one and half  

centuries; and the suit properties have been owned and possessed by the  

family from around 1850, originally by Venkataramana Maistry, later his son  

Chikkahanumaiah, thereafter his son Kurakalu Ramaiah, thereafter his son  

B.M. Ramaiah, and finally the plaintiffs. When the City Improvement Trusts  

Board  (predecessor  of  Bangalore  Development  Authority)  attempted  to  

interfere with their possession of Maistry Tank (Sy.No.30), the first appellant  

filed a suit (OS No.1 of 1976 in the Court of Civil  Judge, Bangalore Rural  

District  later  renumbered as OS No.1305 of  1980 on the file  of  City Civil  

Court,  Bangalore)  for  a  permanent  injunction.  However,  subsequently  the  

appellants filed a comprehensive suit – O.S.No.714 of 1982, for a declaration  

of  title  and  consequential  injunction  on  15.3.1982  against  Government  of  

Karnataka and Bangalore Development Authority in regard to Sy.Nos.30 and  

31. During the pendency of the second suit, the first suit for injunction was  

dismissed on 16.9.1985 and the appeal filed by the appellant against the said  

dismissal  was  also  dismissed  by  the  High  Court  on  20.12.1994,  with  an  

observation that anything stated in the said judgment with reference to the  

title to the suit land (Sy.No.30) will not affect the pending suit for declaration  

of title in OS No. 714 of 1982.

3.  The respondents  resisted  the  said  suit.  According  to  them,  Survey  

No.30 was a government tank shown as Kharab land in the revenue records.  

Survey  No.31  was  also  government  barren  land  shown  as  Government  

Kharab land in the revenue records. The appellants were neither the owners  

nor were they in possession of the said survey Nos.30 and 31. On the said  

pleadings  necessary  issues  relating  to  title,  adverse  possession,  relief  

claimed were framed and parties  went  to  trial.  Both  sides let  in  oral  and

documentary evidence. After appreciating the evidence, the trial court by its  

judgment dated 19.4.1996 decreed the suit. It held that the appellants had  

made out their title and possession in regard to the suit properties. Feeling  

aggrieved, the respondents filed an appeal and a learned Single Judge of the  

High Court of Karnataka by the impugned judgment dated 4.9.2007, allowed  

the appeal, set aside the judgment and decree of the trial court and dismissed  

the suit. The High Court held that the appellants had neither made out title  

nor  possession  in  respect  of  the  suit  properties.  The  said  judgment  and  

decree is challenged in this appeal by special leave.  

4. The appellants claimed title, and possession on the basis of title. The  

revenue records, in particular Ex. D4, D5, D7 to D12, show the two survey  

numbers as ‘Government tank’ and ‘Government barren land’. The names of  

appellants are not entered as owners in the revenue records. Though several  

documents have been marked by the parties, the entire case of appellants’ in  

regard to title depends upon the documents Ex. P-1, P-2, P-10, P-11, P-12  

and P-18. While the trial court held that these documents established the title  

of the appellants and consequently they were entitled to possession, the High  

Court on re-examination and re-appreciation of the evidence, in particular, the  

said  documents,  held  that  the  appellants  did  not  make  out  any  title  nor  

possession in regard to the suit properties. Therefore, the only question that  

arise for our consideration is whether Ex. P1, P2, P10, P11, P12 and P18  

establish  appellants’  title  to  suit  properties  and  whether  the  High  Court  

committed an error in law in rejecting the said documents. In view of it, we will  

briefly analyse each of these documents.

Re : Ex P.18

5. Exhibit P18 is an extract of the register maintained by the Public Works  

Department  showing  the  details  of  tanks  in  Bangalore  Division.  The  said  

extract is in respect of Serial No.279 from the said register relating to a tank  

described as Maistry Kere or Maistry Palyada Kere in Jakkasandra village,

the extent of the water body being 11 acres. The name of the tank is followed  

by the word ‘private’ in the register and gives particulars of the Achkat area of  

the tank (that is area of land irrigated by the said tank) in the year 1906-07.  

The appellants contend that the description of the tank as ‘private’ in the Tank  

register would demonstrate that the tank did not belong to the government  

and that it was privately owned. The High Court however held that the mere  

use of the word ‘private’ after the description of the tank, will  not establish  

appellant’s title or possession in regard to Survey No.30.

6. The appellants relied on paras 236(b) and 376 of the Mysore Revenue  

Manual in support of their contention that private tanks existed in the State of  

Mysore and that the State Government recognized the natural right of private  

individuals to construct and own tanks. The appellants contended that when  

the records maintained by the Government in the usual course of business,  

showed a particular tank as ‘private’, it was a clear admission that the tank  

was not a government tank but was privately owned. We may refer to the  

provisions  of  the  Mysore  Revenue  Manual  relied  on  by  the  appellants.  

Section IV thereof related to “Private enterprise tanks”. Para 236(b) stated  

that there were about 318 private enterprise tanks in the State. Para 376 of  

the Manual deals with construction of Saguvali Kattes (irrigation tanks) by the  

landholders, the relevant extract of which is extracted below :

“376 (1). The right of land-holders to construct “Saguvali Kattes” on their  

own lands is not affected by :-

(a)  Section  XX,  paragraph  13  of  the  Rules  of  1890  under  the  Land  

Revenue  code,  which  relates  to  the  construction  of  private  tanks  on  

Government unoccupied land: or

(b)  Appendix  F  to  the  said  Rules,  which  relates  to  the  restoration  by  

private individuals of Government tanks and wells long in disuse.

(2) Private individuals have the natural right to construct tanks on their  

own lands (Kandayam or Inam), so long as they do not thereby materially

diminish the water flowing in defined channels through their lands for the  

benefit  of  Government  works and private proprietors lower down such  

channels.

x x x x x x x x

7. A careful reading of para 376 of the Manual shows that a private tank  

can  be  constructed  by  a  private  individual,  either  in  his  own  land  or  on  

Government  unoccupied  land.  It  also  shows  that  private  individuals  may  

restore Government tanks. Therefore it follows that when a tank is described  

as ‘private’ in the tank register, that by itself will not establish that the land  

where the tank is situated is private land. To put it differently, when a tank  

enumerated in the Tank register maintained by the government, adds to the  

description of the tank, by the word ‘private’, it merely shows that the tank in  

question had been constructed by a private individual but it does not lead to  

the inference that the land on which the tank is constructed belonged to a  

private individual.  

8. Para 236 shows that a private land on being converted into a private  

tank  would  not  get  full  exemption  or  remission  from  payment  of  land  

assessment, but was extended only a partial remission. In fact, if a tank was  

constructed on a private land, the land would be continued to be assessed to  

land revenue with appropriate partial remission. On the other hand, if it is a  

Government unoccupied land on which a private individual  is permitted to  

construct the tank, it will continue to be shown as Government kharab land  

and will not be subjected to any land revenue. In this case neither Sy. No.30  

nor Sy.No.31 is assessed to land revenue and are shown as Government  

Kharab land in all revenue records (vide Ex. D7, D8, D9, D10, D11 and D12).  

Unarable  lands  including  tanks  are  described  as  Phut  Kharab.  The  Tank  

register  extract  (Ex.D15)  and  other  documents  produced  by  respondents  

show that Maistry Palya tank (Sl.No.279 in the Register) was breached and  

BDA  had  formed  a  layout  in  a  major  portion  of  the  tank  land  and  the

remaining area was being developed into a park by the forest department.  

We, therefore, cannot accept the contention of the appellant that Ex. P18,  

proves that Survey No.30 was a land owned by a private individual or that it  

did not belong to Government.

Re : Ex. P1 and P2

9. Ex.P2 is the copy of the settlement deed dated 7.1.1874 executed by  

Venkataramana  Maistry  under  which  he  settled  upon  his  son  

Chikkahanumaiah,  the Dalavai  Palya,  which was a land assessed to land  

revenue,  bounded  East  by  Jakkasandra  boarder,  South  by  Sabapathi  

Modaliyar Garden, West by Muni Reddy land and North by Srinangara Kere.  

Ex. P1 which is an extract of Phut Pahani chit of Jakkasandra, relating to  

revenue inspection of 18.6.1871. It shows that Survey No.25 measuring 10  

acres 38 guntas in Jakkasandra village was a tank and described it as Phut  

Kharab land; that it formed part of Block No.61; and that the said tank was  

repaired by one Venkataramana Maistry. The appellants rely on Exs. P1 and  

P2 to prove the title of his ancestor Venkataramana Maistry in regard to the  

old tank situated in Survey No.25 measuring 10 acres 38 guntas and that the  

said survey No.25 was part of Block No. 61 (Dalayai Dinne in Jakkasandra)  

settled  by  Venkataramana  Maistry  on  his  son  under  the  settlement  deed  

(Ex.P2) dated 7.1.1874.  

10.  Phut  Pahani  is  described  in  the  Mysore  Revenue  Manual  as  an  

Inspection Statement  showing  the old  survey numbers  and corresponding  

new numbers of lands and full information regarding tenure and occupancy of  

the land. The Phut Pahani did not relate to nor provide proof of ownership of  

any land. Ex.P1 merely disclosed that when it was inspected on 18.6.1871,  

survey no.25 of Jakkasandra measuring 10 acres 28 guntas was a tank and  

that  it  was  repaired  by  Venkataramana  Maistry.  This  document  therefore  

does not help the appellants to prove title of Venkataramana Maistry to the  

tank. Unless the title to the land on which the tank is situated is established,

the mere fact that the tank was shown to have been maintained or repaired  

by any private individual will not make him the owner of the tank. At best it will  

show that the tank was maintained by him as a private tank for the purpose of  

irrigation.  

11. Ex.P2 (settlement deed) does not refer to the tank. It does not give  

the total extent of the land. It does not disclose whether Sy. Nos. 30 and 31  

formed part of Dalavai Dinne owned by the ancestors of plaintiffs at any point  

of time. The settlement deed merely shows that the Venkataramana Maistry  

had settled certain land known as Dalavai Dinne which was assessed to land  

revenue  to  his  son  Chikkahanumaiah  and does  not  help  the  appellant  to  

establish title to either survey Nos.30 or 31. The fact that the ancestors of the  

appellants  owned a large extent  of  land in  Jakkaasandra village is  not  in  

dispute. In fact the appellant got compensation in regard to 102 acres of land  

acquired for St. John’s Medical College and 180 acres of land acquired for  

Koramangala  Layout  aggregating  to  nearly  282  acres  of  land.  While  the  

settlement  deed  describes  the  land  settled  as  land  assessed  to  land  

Revenue, significantly, survey Nos. 30 or 31 which are now claimed by the  

appellants as part of Dalavai Dinne were never assessed to land revenue, but  

were  always  described  as  Government  Kharab  land.  Ex.P1  and  P2  are  

therefore of no assistance to the appellants.  

Re : Ex. P10 & P11

12. The appellant next relied on Ex.P10 and P11 which are two contract  

notes. Ex.P10 is said to be of the year 1854-55. Ex.P.11 is said to be of the  

year 1865. These are contract notes executed by contractors said to have  

been  engaged  to  Venkataramana  Maistry  for  execution  of  certain  works  

relating to the tank at Dalavai Palya. They are not signed by Venkataramana  

Maistry.  As  noticed  earlier,  the  fact  that  Venkataramana  Maistry  had  

constructed a tank or maintained a tank, will not establish ownership to the  

land  in  which  a  tank  was  situated.  Even  assuming  that  the  documents

(Ex.P10 and P11) are genuine and related to a tank situated in Sy. No.30,  

they  would  not  help  the  appellants  to  establish  title  to   

Sy. No. 30, or Sy. No.31.

Re : Ex.P12

13. Ex.P12 is said to be the Tank Majkur Register Extract maintained by  

the  Assistant  Superintendent  of  Land  Records,  Bangalore  Sub-Division,  

showing that Re-survey No.30 measured 11 acres 21 guntas and the entire  

extent  was karab (tank)  and it  corresponded to  old  survey No.25.  It  also  

records that the tank was dug by father of Ramaiah of Maistry Palya, that it  

was repaired by Ramaiah about  25 years  ago and thereafter  no one has  

repaired it and it is in the state of good repair. The date of inspection or entry  

is not mentioned and it does in no way help the appellants to prove title to the  

land.  

Re : Judgment in Land Acquisition case

14. The appellant next relied upon the certified copy of the judgment of  

the reference court  in LA. Misc. No.307 of 1966 by (Principal  Civil  Judge,  

Bangalore City) and connected cases (which the High Court took on record  

as  evidence  while  hearing  the  appeal).  The  land  acquisition  reference  

proceedings did not relate to Sy Nos. 30 or 31. It is related to other lands and  

the issue before the court was a dispute between the appellant and some  

other claimants.  The judgment sets out  the case of  the parties that  Block  

No.61 called as Dalavai Dinne corresponded to survey Nos.16, 19, 20, 21,  

23,  and  27  to  35  and  also  refers  to  some  of  the  documents  which  are  

produced  in  this  case  also.  There  is  no  adjudication  of  the  title  of  the  

appellants or their ancestors in regard to Survey Nos. 30 or 31. Nor is there  

any finding by the court which can support the appellants’ claim to Sy. No.30  

or Sy.No. 31. Therefore, the High Court has rightly rejected the said judgment  

as not relevant for examining the title of the appellants.

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

15. 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 have 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 government. This follows from  

Article 112 of Limitation Act, 1963, which prescribes a longer period of thirty  

years as limitation in regard to suits by 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.  

16. Many civil courts deal with suits for declaration of title and injunction  

against government, in a casual manner, ignoring or overlooking the special  

features relating to government properties.  Instances of such suits against

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 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.  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 – authorized or  

unauthorized;  permissive;  casual  and  occasional;  furtive  and  clandestine;  

open, continuous and hostile; deemed or implied (following a title).  

17.  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  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. 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  authorized  to  

recognize  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.  

Position in this case

18. Section 67 of Karnataka Land Revenue Act, 1961 declares that all  

tanks and all lands which are not the property of any person are the property  

of  the state government.  Sub-section (1)  thereof  which is  relevant  for  our  

purpose is extracted below :  

“67. Public roads, etc., and all lands which are not the property of  others belong to the Government.—(1) All public roads, streets, lanes  and paths, bridges, ditches, dikes and fences, on or beside the same, the  

bed of the sea and of harbours and creeks below high water mark and of  

rivers, streams, nallas, lakes and tanks and all canals and water-courses  and all  standing and flowing waters,  and all lands wherever situated  which are not the property of individuals or of aggregate of persons

legally capable of holding property, and except in so far as any rights  of such persons may be established, in or over the same, and except as  

may be otherwise provided in any law for the time being in force, are and  are  hereby declared  to  be  with all  rights  in  or  over  the  same or  appertaining thereto, the property of the State Government.  

(emphasis supplied)

Weakness of government’s defence or absence of contest, are not therefore  

sufficient  to  decree declaratory suits  against  the  government.  It  is  for  the  

appellants to establish their title to the suit properties.  

19.  The  respondents  have  relied  upon  several  documents  (mainly  

revenue records) to establish that the suit lands belong to the government. It  

is not be necessary to examine or refer to them, as the core issue is whether  

the  appellants  who  filed  the  suit  for  declaration  of  title  against  the  

government, have made out their title or possession to the suit properties.  

The High Court, being the first appellate court is the final court of fact. It has,  

after  examining  the  evidence  exhaustively  recorded  a  finding  that  the  

appellants have not established their title or possession. We find no error in  

the findings and conclusions of the High Court. We concur with the findings of  

the High Court, though for reasons slightly different from those of the High  

Court. The appellants who came to court claiming title, not having established  

title, their suit is liable to be dismissed.  

20.  One  more  aspect  requires  to  be  noticed.  The  first  appellant  had  

earlier filed a suit (OS No.1 of 1976 renumbered as OS No.1305 of 1980) for  

a  permanent  injunction,  claiming that  he was  in  possession of  Sy.  No.30  

(tank). That suit and appeal therefrom were dismissed by recording a finding  

that  he failed  to  establish  possession.  The observation  of  the  High Court  

while dismissing the appeal from the decision in the earlier injunction suit, that  

the  dismissal  will  not  come in  the  way  of  plaintiff  establishing  title  in  the  

subsequent suit for declaration of title, will not dilute the finding recorded by

the trial court and High Court that the first appellant was not in possession,  

which has attained finality.  

21. No other material has been relied upon by the appellants to establish  

their title or possession. The appellants were not registered as the owners or  

khatedars or occupiers of the suit lands in any revenue records. They did not  

have any document of title referring to the suit properties. The appellants did  

not have possession. Even assuming that the tank in Sy.No. 30 was repaired/  

maintained by the ancestors of plaintiff  at  some point  of  time,  there is no  

document  to show that  the tank was used, maintained or  repaired by the  

appellants or their predecessors during more than half a century before the  

filing of the suit. The suit has to fail.  

22. For the aforesaid reasons, we find no ground to interfere with the  

judgment and decree of the High Court. The appeals are dismissed. The  

application for intervention is also dismissed.