| Headnote |
Issue for consideration : Whether the impugned judgment, arising outof Second Appeal meets the established criteria for Second Appeal; and whetherthe respondents are entitled to the relief of adverse possession or is the claim somade, barred by the Kerala Land Conservancy Act, 1957.Adverse possession : Principles of – Land being a governmentporamboke land – Relief of adverse possession sought by the claimantscontending that they had acquired title to the land in 1940 and had beenin possession and in continued enjoyment since then – Entitlement to:Held : Claimants to be granted the enjoyment of the property, clear,continuous and hostile possession would have to be established by way ofcogent evidence and animus possidendi must be demonstrated – On the basisof the estimated age of trees, the length of possession of the claimants is beingcalculated – Estimation of age of the trees cannot be termed as suffi cient proofrequired to disturb the title that rests with the Government – Merely a long periodof possession, does not translate into the right of adverse possession – Surmises,conjectures and approximations cannot serve the basis for taking away the rightover land resting with the State and place the said bundle of rights in the handsof one who did not have any such rights – Findings by the High Court that thewitnesses established the claimants’ claims by way of adverse possession iserroneous – Also, the bar enshrined in s.20 cannot be applied – Furthermore,the impugned judgment did not comply with the contours of s. 100 CPC –Thus, the order passed by the High Court that the land rightfully belonged to the claimants by virtue of the principle of adverse possession set aside – KeralaLand Conservancy Act, 1957 – s. 20. [Paras 11, 19, 22, 27, 28, 37 and 38]Adverse possession: Claim of – Principles governing such claim:Held : Possession must be open, clear, continuous and hostile to theclaim or possession of the other party – All three requirements must co-existnecvi, i.e., adequate in continuity; nec clam, i.e., adequate in publicity; and necprecario, i.e., adverse to a competitor, in denial of title and knowledge – Burdenof proof rests on the person claiming adverse possession who must show clearand cogent evidence to substantiate such claim – Plea of adverse possessionmust be pleaded with proper particulars – Mere possession over a propertyfor a long period of time does not grant the right of adverse possession on itsown – Such clear and continuous possession must be accompanied by animuspossidendi-intention to possess or in other words, the intention to dispossessthe rightful owner – In case of Government land, the Court is duty-bound toact with greater seriousness, eff ectiveness, care and circumspection. [Paras21.1- 21.4, 21.7, 21.8 and 21.10]Code of Civil Procedure, 1908 – s.100 – Maintainability of secondappeal under – Requirement of:Held : Jurisdiction u/s. 100 is exercisable only when the Courtis convinced that the dispute involves a substantial question of law, andproceeding under this jurisdiction sans framing questions of such naturerenders the proceedings to be “patently illegal – Impugned judgment doesnot refl ect any question of law, either substantial or involving in the case tohave been framed by the Court in the Second Appeal – In view thereof, theimpugned judgment erroneous for not complying with the contours of s. 100.[Paras 8, 9 and11]Kerala Land Conservancy Act, 1957 – s. 20 – Saving of suits bypersons aggrieved by proceedings under this Act – Claim so made, ifbarred by s. 20:Held : For the bar to apply, the civil suit instituted would have to beagainst an order passed by the competent authority under this Act in respect ofunauthorised occupation of Government land – On facts, original notice wasappealed before the Collector who dismissed the same and the said order wasnot challenged –Suit for declaration was fi led before the Civil Court seeking a permanent injunction against any proceedings in respect of eviction andalso possession and title of the land in question – Disputed property beinga Government property, was the only ground that was met – Primaryrequirement of the civil suit being in connection with an action taken by theGovernment was not met thus, the bar enshrined in s.20 cannot be applied.[Paras 17-19]Practice and procedure – Litigation pending for a long time –Remittance of matter:Held: Prudence would not be served by sending back the matterpending for four decades. [Para 12] |
