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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:

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     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.