STATE OF KERALA Vs. PATHROSE MATHAI

JUDGEMENT

(1.) THE State of Kerala, who is the defendant in a suit for declaration of title and other incidental reliefs, is the appellant before me. THE plaintiff claimed title to the plaint property shown in the plaint as measuring 5. 141 cents comprised in S. No. 168/1a of Pathanamthitta Village. This is a narrow strip of land adjoining the registered holding of the plaintiff comprised in S. No. 219/5 of the same Village. THE plaintiff's case is that this narrow strip was treated all along by him and his predecessors-in-interest as part of the registered holding comprised in S. No. 219/5 and improvements had been effected in the property including the plaint property. A Land Conservancy Case L. C. No. 52 of 1957, was taken up by the state against the plaintiff's mother, who was at that time in possession, and an order for eviction was passed. According to the plaintiff, under an Udampady of 1957, S. No. 219/5 was allotted to the plaintiff's share, and the property so allotted really included the plaint property also. THE order of eviction passed in L. C. No. 52 of 1957 is challenged as not correct, since according to the plaintiff the property really belonged to him as part of his registered holding. In the alternative, he would contend that in view of the long continuous and hostile possession of the plaint property by the plaintiff and his predecessors-in-interest for more than 60 years, title thereto has been perfected by adverse possession. THErefore, the plaintiff seeks a declaration of his title over the plaint property and also seeks a declaration to the effect that the order passed by the Tahsildar in L. C. Case No. 52 of 1957 was not binding on him or on the plaint property. THE State in its written statement contended that the plaint property is not comprised in S. No. 219/15, that it is part of S. No. 168/1a, that the plaintiff has no title to the plaint 5. 141 cents in respect of which the Land Conservancy case was taken and that improvements in the property alleged to have been made by the plaintiff and his predecessors-in-interest would be only 20 to 28 years. It is also the case of the State that in respect of (he plaint property a poramboke case was taken up as early as in 1097 as Poramboke File No. 41 of 1097 against the the father of the plaintiff, that at that time the property was in the possession of the plaintiff's father, and that the plaintiff or his predecessors-in-interest were never in adverse possession. THE trial court found that the earlier poramboke case of 1097 was in respect of the property which was subject matter of the latter case. L. C 52 of 1957 and that pursuant to the earlier case the plaintiff's father, who was then in possession, had surrendered possession as evidenced by Ext. P3. THErefore, it was held that there was a clear interruption in the running of time for the requisite statutory period and, therefore, the plaintiff could not claim any title by adverse possession. In this view, the suit was dismissed by the trial court. THE lower appellate court, to which the plaintiff appealed, found that the proceedings in the poramboke case of 1097 did not relate to the property in L. C. 52 of 1957, and that, therefore, the trial court was in error in thinking that there was an interpretation of the adverse possession. On the question of adverse character of the possession the lower appellate court found that the evidence of the witnesses in the case established the plaintiff's case. THErefore in reversal of the decree of the trial court, the plaintiff's suit was allowed. It is this decree that is challenged by the State in this appeal.

(2.) IT is not now disputed before me that the plaint property is part of S. No. 168/1 A. The registered holding of the plaintiff is s. No. 219/5. The State would challenge the finding of the lower appellate court that the property for which Land Conservancy proceedings were taken in 1957 was the same as that which was the subject-matter of the earlier case of 1097. On this question reliance has been placed by the lower appellate court on exts. D9, P7, and P8. The mahazar prepared in connection with the earlier L. C case on the 20th of Kanni,1097, is Ext. D9. That shows that it was for part of s. No. 168/1 A, adjoining S. No. 219/5 and enjoyed by the registered holder of s. No. 219/5 that proceedings were taken for eviction. IT is pointed out that this mahazar shows that there were no trees in the plot which was the subject matter of the counter case. What is mentioned in Ext. D9 is The plaintiff relies on Ext. P7 report prepared in this case by the commissioner to show that in the suit property there are rubber trees and coconut trees, which are more or less of the same age as the trees in the adjoining registered holding, S. No 219/5. Ext. P8, which is the mahazar prepared by the commissioner and referred to in Ext. P7 report, gives the age of the trees in the plaint property. The counsel for the plaintiff would draw my attention to the age of item No. 9, a coconut tree, which was shown as 60 to 62 years old, and item No. 13, a coconut tree, which is more or less of the same height as item No. 9, whose age is not shown in the mahazar. Some of the rubber trees are shown as 40 years old. This mahazar is prepared in the year 1961, nearly about 40 years after Ext. D9. Based upon these, the plaintiff's counsel argues that since the property in respect of which land conservancy proceedings were taken in 1097 did not contain any trees; it could not be the suit property in which it is seen that the trees should have been in existence in 1097. Though the State in its written statement has contended that the trees in the plaint property are only 20 to 28 years old, in the objection to the commissioner's report filed in this case it is not pursued. No doubt, when dw. 1, the Clerk of the Taluk Office is examined on behalf of the State he swears that the trees in the plaint property are only 20 to 28 years old. This is in terms of the written statement. But in objecting to the age of the trees as noted by the commissioner in Ext. P8 what the defendant would state in the written objections filed in court is that they are not above 50 years old. I do not see how this will help the defendant's case. If the trees are more than 40 years old then such trees must have been in existence in 1097. Unless the statement in Ext D9 that there were no trees in the property which was the subject matter of these proceedings is satisfactorily explained, the conclusion reached by the lower appellate court could appear to be reasonable. No explanation is attempted. Hence the finding of the lower court on this point has to be upheld.

(3.) THE counsel for the respondent relies on the decision in Itti Itti v. THE Dewan of Travancore (5 T. L. J. 348) which is referred to in the judgment of the lower appellate court also for the position that when the plaintiff proves that he has been in possession of Government land, say for 25 years, before the suit and there is no evidence on behalf of the State that it had been in possession within 50 years of the suit (that is the period under the Travancore Limitation Act, corresponding to Art. 149 of the Indian limitation Act, 1908) then the plaintiff must be held to have acquired title to the portion. THE lower appellate court seems to have failed to note the later decisions of the Travancore High Court itself and also of other High Courts. THE period within which a suit has to be instituted by the State as against the person in possession for recovery of property being 60 years under Art. 149 of the Indian Limitation Act of 1903, in order that the plaintiff may succeed on the basis of title by prescription, he has to show that he has been in possession of Government land for more than 60 years. Even if he shows that he has been in possession for a fairly long term but less than the period specified under Art. 149 the burden does not shift to the State to show that it had been in possession within the period of 60 years. THEre is also no presumption that a person who enters government land, improves the same & keeps possession, is exercising acts hostile to the title of the State. This is because it is not uncommon for persons to enter upon Government land & reclain and improve such land in the hope of ultimately getting registry or lease of such land. Of course, in such a case the plaintiff can succeed if he is able to prove acts which are inconsistent with an intention to hold property subordinate to the State. This question arose for consideration by a Full Bench of the Travancore High Court in Sircar v. Krishnan Marthandan (20 T. L. J. 1054 ). THE Full Bench laid down the following proposition: " (i) When a person is in possession of land which is not found to be registered in the name of the occupier there is no presumption that such possession is adverse to the Sirkar. This is the case whether the possession is of Poramboke lands as defined in the Land Conservancy Regulation or of land lying within the boundaries of the registered holding. But long possession of a land lying within the boundaries of the registered holding is prima facie evidence in support of the title of the holder of the land and may raise a presumption that such land forms part of the registered holding. (ii) When an occupier proves adverse possession against the Sirkar for more than 12 years from the date of suit no presumption can be drawn that the occupier had been in adverse possession against the Sirkar for the statutory period of fifty years. Adverse possession against the Sirkar for the statutory period of 50 years must be affirmatively proved by the party who claims prescriptive title against the Sirkar. (iii) When the claimant does not succeed in showing that the land occupied by him is part of his registered holding, and when the land is found to be Sirkar Poramboke land, the occupier can still show that he has acquired title to the land by adverse possession. S. 18 of the Land Conservancy regulation is not a bar to such a course". THE common practice in the State of Travancore of people entering upon Government waste land in the hope that the Government will permit them to continue in possession and eventually grant their prayer for registry is referred to in the decision in Sankaran v. Perumal (XLlll T. L. R. 255 ). It has been held therein that possession by a person, who enters any Government land with the hope that it will be registered in his name, is not adverse possession but only precarious possession. But a Division Bench of this Court had occassion to consider this question in Sankara Pillai v. Balakrishna Pillai (AIR. 1957 Kerala 141 ). Approving the dictum in XLIII T. L. R. 255 it was held by this Court that: "possession by a person who entered on Government land with the hope that it may be registered in his name was not adverse possession but only precarious possession and cannot avail against the government or a person acquiring title from the Government". In Sankara Pillai v. Balakrishna Pillai the plaintiff who obtained registry of Puduval land from the State sued to evict a trespasser who had been in possession for much more than twelve years and who set up a plea of adverse possession. THE question was whether the character of his possession of puduval land was such as could be said to be adverse. Dealing with this question Varadaraja Iyengar, J. , speaking for the Bench said: "it seems to us, however, that the argument of learned counsel for the second defendant, has proceeded on an entirely wrong assumption that his client could set up his previous 'possession' from 1103, assuming it was true as against the plaintiff under either of the Art. 142 or 144 of the Limitation Act. But that was not possible in as much as the defendants' 'possession' in fact did not amount to a possession in law, i. e. did not involve an amimus possidend or occupation with the intention of excluding the owner and other people THE defendants' possession was at all relevant times only in expectation of a registry (i. e.), in subordination to or subject to the recognition of the right or the title of the true owner sirkar. And such 'possession' could neither bring about 'dispossession' under Art. 142 nor generate adverse possession under Art. 144. So it was held in Sankaran v. Perumal, 43 Trav. LR. 255 that possession by a person who entered on Government land with the hope that it may be registered in his name was not adverse possession but only precarious possession and cannot avail against the Government or a person acquiring title from the Government. 'similarly in' oommer v. Outho, 57 Trav. LR. 955 (FB) where the suit for recovery was filed within 11 years 8 months of the registry of certain puthuval property in the name of the plaintiff, it was held that the defendant could not tack on four months of his previous possession. " THE counsel for the respondent relied on a decision of the Andhra Pradesh High Court in Abbyya v. State of Andhra Pradesh (AIR. 1960 a. P. 134 ). It was held in that case that: "proof of possession by plaintiff for a sufficiently long period of time although short of the full period of 60 years was sufficient where the title of the Government to the property in dispute was neither admitted nor proved, to enable a presumption to be drawn in his favour that he had prescribed title by possession for 60 years. " It was further held therein that: "where the plaintiff's possession over a period of time has been established, the burden of proving that the plaintiff had no right to remain in possession by reason of the fact that the Government are owners would be on the Government. " I am not prepared to agree with this proposition. THE above observations in the judgment were obiter. On the facts of that case, their Lordships were not called upon to pronounce on this question. This decision has been referred to and distinguished by a later decision by the orissa High Court in State of Orissa v. Pithambar Patra (AIR. 1964 Orissa 233.)It was held in that case: "it is the settled position of law that the onus to establish adverse possession is on the person who claims the same so as to displace the lawful title of the real owner. It is equally well settled that to make out a case of adverse possession, the possession must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the real owner. In a suit against the State for declaration of title based on adverse possession the burden of proving his possession for the statutory period is on the plaintiff. Proof of mere long continued possession for any length of time unless such possession clearly amounted to adverse possession for a period of 60 years, is not enough for establishing the hostile title of the plaintiff. Further, proof of mere long and continued possession does not shift the onus to the State to establish that it had title and possession within sixty years from the date of suit. " I am in respectful agreement with this view. It would appear from that judgment that the Andhra Pradesh decision had already been noticed by the Court on an earlier occasion and had been distinguished. THE position therefore appears to be this: THE possession of Government land by an encroacher however long, may not by itself be sufficient to establish hostile title of such person. It has to be shown that such possession was adverse. On the mere proof of long possession the onus does not shift to the State to show that it had possession within the period prescribed by Art. 149 of the limitation Act of 1903.