KONDA LAKSHMANA BAPUJI v. GOVT. OF ANDHRA PRADESH AND ORS.

On a careful perusal of the judgment of the Special Court on the question of title of the first respondent and that of the appellant and his lessor-Inamdar we are satisfied that neither any relevant material was excluded from consideration nor any irrelevant material was relied upon by the Special D Court in recording its finding. There was, therefore, no scope for the High Court to interfere with those findings. In our view, the High Court committed no error of law in not interfering with the findings of the Special Court in regard to the title of the first respondent and absence of title in the appellant to the land in dispute [See : Omar Salay Mohamed Sail v. Commissioner of Income-tax, Madras, AIR (1959) SC 1238. On the conclusions arrived at by E us no interference is warranted by this Court in this appeal filed under Article 136 of the Constitution of India. [See : Mehar Singh & Ors. v. Shiromani Gurudwara Prabandhak Committee, [2000] 2 SCC 97.

To complete the discussion on the lawful entitlement, the appellant's claim of title to the land in dispute by prescription remains to be examined. F The contention of Mr. Parasaran is that the appellant, who has been in possession of the land since 1954 on the basis of Ext. B-39 (an unregistered agreement for perpetual lease), perfected his title by adverse possession as on the date of the suit on November 25, 1985. G Mr. Altaf Ahmad, on the other hand, relied on the conduct of the appellant to show that he had no requisite animus to possess the land in dispute adverse to the title and interest of the first respondent and that the essential requirements of adverse possession were not satisfied as neither the appellant had the requisite animus nor he fulfilled the requirement of possession of the land in dispute for the statutory period of 30 years; both the Special H

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A Court as well as the High Court concurrently held that the appellant did not perfect his title to the land in dispute by adverse possession and that finding would not be open to challenge in this appeal.

The Special Court, on the pleadings of the parties, framed issue No. 5 noted above. The onus of proving that issue is on the appellant who claims title by adverse possession.

The question of a person perfecting title by adverse possession is a mixed question of law and fact. The principle of law in regard to adverse possession is firmly established. It is a well-settled proposition that mere possession of the land, however long it may be, would not ripe into possessory title unless the possessor has 'animus possidendi' to hold the land adverse to the title of the true owner. It is true that assertion of title to the land in dispute by the possessor would, in an appropriate case, be sufficient indication of the animus possidendi to hold adverse to the title of the true owner. But such an assertion of title must be clear and unequivocal though it need not be addressed to the real owner. For reckoning the statutory period to perfect title by prescription both the possession as well as the animus possidendi must be shown to exist. Where, however, at the commencement of the possession there is no animus possidendi, the period for the purpose of reckoning adverse possession will commence from the date when both the actual possession and • assertion of title by the possessor are shown to exist. The length of possession to perfect title by adverse possession as against the Government is 30 years.

The appellant (defendant) in his written statement averred that he was claiming title under Mohd. Nooruddin Asrari who was successor of the original lnamdar Sheik Naimatullah Shah. The land in dispute is a part of the maqta land which was in his possession from November 28, 1954 under an agreement for perpetual lease which was confirmed under the registered lease deed executed on December 11/12, 1957. He alleged that he constructed a small structure in 1955 and thereafter, having taken due permission, constructed a pucca building. He denied that the said land came in his possession in 1958 as alleged in the plaint. He stated that he had been in possession adverse to the plaintiff-the first respondent since November 28, 1954 for more than 30 years prior to the filing of the suit on November 25, 1985. It is further averred that his predecessor-in-title being in possession of the said land for innumerable years prior to 1954 in their own right as Inamdar, he is entitled to tack on their possession to perfect his title by adverse possession.

H The first respondent-plaintiff, perhaps with a view to foreclose the plea

KONDA LAKSHMANA BAPUJJ v.GOVT.OF A.P. [S.S.M. QUADRl,J.] 69J

of adverse possession, stated in the plaint itself that the possession of the appellant-defendant could not amount to adverse possession for many reasons; the appellant raised the building with the permission of the court while O.S. No. 13 of 1958 filed by Rasheed Shahpurji Chenoy was pending before the Additional Chief Judge, City Civil Court, Hyderabad, after giving an undertaking and in view of the undertaking his possession partakes the character of permissive possession; he paid Siwaijama and applied for occupancy certificate. The first respondent had instituted eviction proceeding by issuing notice against the defendant under Section 6 of the Land Encroachment Act.

To appreciate the plea of the first respondent that the appellant's C possession of the land in dispute has the character of permissive possession so he cannot acquire title by adverse possession, it will be appropriate to refer to th;! averments in the plaint to understand their true import, which are as follows :

"The suit lands in the beginning were open and vacant tank bed lands and the defendant raised the building "Jala Drushyam" with the permission of the Court while 0.S. No. 13 of 1958 was pending before the Court of the Additional Chief Judge, City Civil Court, > Hyderabad, and the undertaking of the defendant given in the shape of a bond, while seeking permission to construct the said building, was to the effect that he would not claim any compensation from the plaintiff for the building raised on the suit-lands in case the same are ultimately declared and held to be the Government lands ............ The possession of the defendant in view of his undertaking in the above suit partakes the character ofpermissive possession and in that view of the matter also the defendant cannot claim adverse possession p against the plaintiff. (emphasis supplied)" In the concise statement filed along with the application dated March 22, 1992 before the Special Court the first respondent stated :

"Pending O.S. No. 13 of 1958 the respondent herein (the appellant) constructed a building Jala Drushyam. After the dismissal of the suit. G The Government of A.P. initiated eviction proceedings. The possession of the respondent (the appellant) in view of his undertaking given in the Trial Court amounts to permissive possession. "

From the above averments, it is evident that permission was granted by the Court to the appellant to construct the building 'Jala Drushyam'. Therefore, H

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A the said building could be said to be a construction with permission of the Court and not unauthorised. But certainly the appellant's possession of the land in dispute, if otherwise adverse to the title of the first respondent, does not acquire the character of permissive possession on the ground the appellant sought permission of the Court to erect a building thereon. We are, therefore, of the view that the said averments cannot come in the way of the appellant B in acquiring title by adverse possession if other requirements of adverse possession are satisfied.

As to the period of the appellant's possession, Mr. Parasaran contended, that though Ex. B-40 perpetual lease agreement was registered on December C 12, 1957 yet it would relate back to the date of Ex. B-39 (28.l l.1954) which would be the date of commencement of possession. He sought to derive support from Thakur Kishan Singh (Dead) v. Arvind Kumar, [1994] 6 SCC

In the instant case Ex. B-39 (unregistered perpetual lease agreement dated .November 28, 1954) was not registered subsequently. Ex. B-40 the perpetual lease deed dated l l.12.1957 is a different document which was registered on 12.12.1957. Therefore, Ex. B-40 would relate back to the date of its execution . G i.e. l l.12.1957 on its subsequent registration on 12.12.1957 but not on the date of execution of Ex. B-39 i.e. 28.l l.l 954. The Principle laid down in the above case is, therefore, of no benefit to the appellant. .

The Special Court found that the appellant's possession could not be ascribed to the date of the agreement for lease deed dated 28. l l.1954 (Ex. H B-39) or registered lease deed dated" I l.12.1957 (Ex. B-40) which were

J KONDA LAKSHMANA BAPUJI v. GOVT. OF A.P. [S.S.M. QUADRI, J.) 693

excluded from consideration. In regard to Ex. B-39 the Special Court held that it was a tampered document; the survey numbers of the land leased were given in it as Survey Nos. 9/15 and 9/17 which were altered to appear as Survey Nos. 9/15 to 9/18 and the extent of the land was not mentioned therein. The Special Court noted that in the absence of original of Ex. B-40, it was not possible to say whether Ex. B-40 also suffered from the same vice of subsequent alteration in the survey numbers, therefore, it declined to rely on Ex. B-40 also. In view of the criticism of the Special Court we perused the Urdu documents Ex. B-39 and Ex. B-40 Survey Nos."9/15 and 9/17" (Ex. B-39) were altered to appear as "9il5 to 9/18''. This is visible to the naked eye. The alteration was not authenticated so the criticism of the Special Court is well-founded. It is also noticed that the original of Ex. B-40 was not filed in the Court and no case is made out to lead secondary evidence. Further in Exs. B-13 and B-14 (which are discussed above) it is specifically mentioned that S. Nos. 9/17 and 9/18 which were selected for the offices of the Secretariat were retained with the Government. If that be so, it remained unexplained as to how the appellant obtained the said S.. Nos. on lease from the said D Nooruddin. This clearly shows the contradiction in the claim of the appellant which makes it unacceptable. After excluding the said documents from consideration the Special Court held that the solitary statement of the appellant that his adverse possession commenced from November 28, 1954, could not be accepted to hold that he has been in continuous possession for a period E of 30 years as no receipt of payment of rent (nuzul) under the perpetual lease agreement Ex. B-39 was filed to prove that the appellant has been in possession of the said land from November 28, 1954. The Special Court counted the period of possession of the land in dispute from the date the appellant obtained permission for construction of the house under Ex. B-42 dated 09.08.1958 and the preceding correspondence under Exs. B-60 to B-62 between March, F 1958 and August, 1958. Pointing out that the suit was filed on November 25, 1985, so the period of30 years was not completed from 1958, it rejected the plea of adverse possession.

In regard to the a."limus of the appellant to possess the land in dispute G adverse to the interest of the first respondent, the Special Court pointed out that the appellant applied for occupancy certificate to the concerned authority under the Inams Abolition Act which nullified the animus of adverse possession. The Special Court also relied on Ex. A-42 (Ex. B-43) issued by the State demanding siwai jamabandi on May 14, 1960 and payment of the same under Exs. A-44 and A-45 dated June 30, 1960 to show that the requisite H

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A animus was Jacking. These documents were put to the appellant when he was in the witness box and he admitted the same. On the basis of the above evidence the Special Court came to the conclusion that the appellant failed to prove adverse possession. In the said writ petition the High Court did not find any illegality in the approach or decision of the Special Court and B declined to interfere with the said finding.

We have already noted above the requirements of adverse possession. In Balkrishan v. Satyaprakash & Ors., J.T. [2001] 2 SC 357, this Court held:

"The Jaw with regard to perfecting title by adverse possession is c well settled. A person claiming title by adverse possession has to prove three "nee" - nee vi, nee clam and nee precario. In other words, he must show that his possession is adequate in continuity in publicity and in extent. In S. M. Karim v. Mst. Bibi Sakina, AIR (1964) SC 1254 speaking for this Court, Hidayatullah, J. (as he then was) observed D thus:

"Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found." E In that case the requirement of animus possidendi v•as not adverted to as on facts it was shown to be present; the controversy, however, was about the other ingredient of adverse possession. It is clear that it must be shown by the person claiming title by prescription that he has been in possession of the land for the statutory period which is adequate in continuity in publicity and in extent with the animus of holding the land adverse to the true owner.

Mr. Parasaran, however, contended and reiterated in his written submissions that possession in assertion of one's own title was animus of adverse possession and that passing an adverse order against the appellant or the appellant himself filing an application to any statutory authorities for occupancy certificate would not interrupt his adverse possession of the land in dispute. It was also contended that as a derivative title holder he was entitled to tack his possession to that of his predecessor-in-interest and that in any event the presumption of the continuity of state of things backwards could also be drawn as the appellant's possession from 1958 was accepted

KONDA LAKSHMANA BAPUJI v. GOVT. OF A.P. [S.S.M. QUADRI, J.] 695

and the possession earlier to 1958 should also be presumed. A Regarding the animus of the appellant, admittedly he claimed as a lessee under the Inamdar. Indeed in his written statement filed in Rasheed Shahpurji Chenoy' suit (O.S. No. 13 of 1958 on the file of Additional Chief Judge, City Civil Court, Hyderabad) he claimed to be a lessee under the Inamdar. He, however, did not assert title to the land in dispute in himself nor did he lay any claim on the ground of adverse possession. Even otherwise there is no material to show that between November 28, 1954 (unregistered perpetual lease agreement, assuming it to be free from interpolation and admissible as agreement for lease and (Ex. B-40) registered lease deed dated December 11, 1957 (assuming that the secondary evidence is admissible) and the date of filing of the written statement on January 28, 1987 the appellant claimed title to the land in dispute otherwise than under Ex. B-40 much less by way of asserting adverse title. It is only in the written statement filed in the present suit that he pleaded adverse possession for the first time. The possession of the said land from the date of Ex. B-39, 1954, till the date of the filing of the written statement in 1987 cannot, therefore, be treated as adverse because there was no animus possidendi during the said period. Before the date of filing the written statement he never claimed title to the land in dispute adverse to the State. On the other hand, he paid siwai jamabandi and applied for occupation of rights. Indeed in his deposition as R.W. l in chief examination before the Special Court he stated, E "on being satisfied about the nature of the Inam, I entered into an agreement of perpetual lease on 28.11.1954 with Inamdar as per Ex. B-39 .............. .I have taken possession from the Maqtedar under Ex. B-39 on 28-11-1954. Since then I am in occupation uninterruptedly and enjoying the same." F We found no assertion of title by adverse possession in his deposition. Further there is nothing on record to show that his lessor, Mohd. Nooruddin Asrari, ever claimed the land in dispute adverse to the State. On these facts there is no scope to invoke the principle of tacking the possession of the Inamdar or presumption of continuity of possession backward. G·

There can be no doubt that passing of adverse order against the appellant would not cause any interruption in his possession [See : Balkrishan v. Satyaprakash (supra)]. So also filing of application before statutory authority under Inams Abolition Act for occupancy rights, in our view, causes no H

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A interruption in the continuity of possession of the appellant but it does abrogate his animus to hold the land in derogation of the titie of the state and breaks the chain of continuity of the animus.

In the light of the above discussion we hold that the appellant neither proved factum of possession of the land in dispute for period of 30 years nor succeeded in showing that he had animus possidendi for the whole statutory period. Therefore, we cannot but maintain the confirming view of the High Court that the appellant failed to acquire title to the land in dispute by adverse possession. We may also add that the lessee of a Maqtedar (the Inamdar) cannot acquire title to the demised land by adverse possession either as against the State or the Maqtedar (Inamdar) so long as his possession under the lease continues.

Mr. Parasaran has contended that should the point of adverse possession be found against the appellant, the principle of lost grant would apply as the appellant has been in possession of the land in dispute for a considerable length of time under an assertion of title. In support of his contention he placed reliance on Manohar Das Mohanta v. Charu Chandra Pal and Ors., AIR (1955) SC 228.

The principle of lost grant is a presumption which arises in cases of .. immemorial user. It has its origin from the long possession and exercise of right by user of an easement with the acquiescence of the owner that there must have been originally a grant to the claimant which had been lost. The presumption of lost grant was extended in favour of possessor of land for a considerably long period when such user is found to be in open assertion of title, exclusive and uninterrupted. However, when the use is explainable, the presumption cannot be called in aid. A constitution Bench of this Court explained the principle in Monohar Das Mohanta (supra) thus,

"The circumstances and conditions under which a presumption of lost grant could be made are well settled. When a person was found in possession and enj0yment of land for a considerable period of time under an assertion of title without challenge, Courts in England were inclined to ascribe a legal origin to such possession, and when on the facts a title by prescription could not be sustained, it was held that a · presumption could be made that the possession was referable to a grant by the owner entitled to the land, but that such grant had been lost. It was a presumption made for securing ancient and continued H

KONDA LAKSHMANA BAPUJI v. GOVT. OF AP. [S.S.M. QUADRI, J.] 697

possession, which could not otherwise be reasonably accounted for. A But it was not a 'presumptio juris et de jure'. A presumptio juris et de jure, means an irrebuttable presumption, is one which the law wi!l not suffer to be rebutted by any counter-evidence, but establishes as conclusive; whereas a presumption juris tantum is one which holds good in the absence of evidence to the contrary, but may be rebutted. B [Juris et de jure -Of law and of right] and the Courts were not found to raise it, if the facts in evidence went against it.

"It cannot be the duty of a judge to presume a grant of the non- existence of which he is convinced" observed Farwell, J, in - 'Attorney- General v. Simpson', 1901-2 Ch. 671 at p. 698 (A)." C [para 7 page 230]

In that case the possession of the defendant was claimed to be for over 200 years but there was no finding on the length of possession. On the ground, inter alia, that the land was part of Mal lands (assessed land) within the zamindari, it was held that there was no scope for applying presumption of lost grant. In the case on hand the appellant traces his possession from 1954 under an unregistered perpetual lease from the erstwhile Inamdar (Maqtedar). Therefore, the presumption of lost grant will not be available to the appellant.

Thus, it follows that the appellant has unauthorisedly come into possession of the land in dispute of the first respondent without lawful entitlement.

Now reverting to the other ingredient of the definition of the expression

- .... 'land grabbing' - intention of the appellant -embodied in the phrase "with a view to" illegally taking possession of the land in dispute or entering into the land fi>f any of the purposes mentioned in clause ( e) of Section 2, the Special Court discussed exhaustively both the documentary evidence on record F

and the oral evidence of the appellant under the caption - design of the first appellant in obtaining the documents of title and resisting possession - and concluded that he was fully aware of the infirmity of the title of his vendor G for want of confirmation of the grant by the civil administrator and subsequent mutation proceedings, willingly suffered siwai jama assessment, paid the same and raised structures when a suit was pending and therefore he was a land grabber. The High Court having noted the discussion of the Special Court on the said issue and having adverted to the evidence, declined to interfere with that finding in the writ petition. H

698 SUPREME COURT REPORTS [2002] I S.C.R.

A The requisite intention which is an important ingredient of the land grabber, though not stated specifically, can be inferred by necessary implication from the averrnents in the petition and the plaint and the deposition of witness like any other fact. If a person comes into occupation of any Government land under the guise of a perpetual lease executed by an unauthorised person having no title to or interest in the land it cannot but be with a view to illegally takiRg possession of such land. We make it clear that we are expressing no opinion on the point whether those averrnents would constitute 'mensrea' for purposes of offence under the Act.

We have carefully gone through the concise statement accompanying the application filed by the first respondent before the Special Court on March 20, 1992 and the plaint in O.S. No. 1497 of 1985 filed by the first respondent in the Court of the IV Additional Judge, City Civil Court, Hyderabad. It is also averred that the appellant occupied the land in dispute in the year 1958 and raised building "Jala Drushyam" and on coming to know of it the first respondent took action for his eviction under Section 6 D of the Land Encroachment Act. It is also stated that the claim of the appellant to the land in dispute is not proper, valid or legal as it never belonged to Naimatullah Shah Maqta and even otherwise the land ceased to be Inam land from July 20, 1955 and had vested in the first respondent and none of the heirs of Naimatullah Shah had come forward to be declared as occupant E under the Inam Abolition Act. The land in dispute is described by the first respondent as land grabbed and a declaration is sought from the Special Court that the appellant is a land grabber.

It may be observed here that though it may be apt yet it is not necessary

F for any petitioner who invokes the jurisdiction of the Special Court/Special Tribunal to use in his petition under Sections 7(1) and 8( I) of the Act, the actual words employed in the relevant provisions of the Act, namely, grabbing of the land without any lawful entitlement and with a view to or with the intention of (a) illegally taking possession of such lands or (b) enter into or - create illegal tenancies, leases or licences agreements or any other illegal agreements in respect of such lands; or (c) to construct unauthorised structures thereon for sale or hire; or (d) to give such lands to any person on (i) rental or (ii) lease and licence basis for construction, or (iii) use and occupation of unauthorised structures, as the case may be. Prima facie it will satisfy the requirements of the Act if the petitioner alleges that the respondent is a land grabber or that he has grabbed the land. What is pertinent is that the allegations in the petition/plaint, in whatever language made, should make out the

KONDA LAKSHMANA BAPUJI v. GOVT. OF A.P. [S.S.M. QUADRI, J l 699 ingredients of land grabbing against such a person or his being a land grabber within the meaning of those expressions under the Act, as explained above. It is only when the allegations made in the petition/plaint are proved the activity of taking possession of the land will fall within the meaning of land grabbing that such a possessor can be termed as a "land grabber" within the meaning of that expression under the Act. B It is generally true that in the absence of necessary pleadings in regard to the ingredients of the definition of "land grabbing" no finding can validly be recorded on the basis of the evidence even if such evidence is brought on record. Mr. Parasaran cited the judgment of this Court in Sri Venkataramana Devaru & Ors. v. The State of Mysore & Ors., [1958) SCR 895 at 906 to C support his submission that without necessary pleading, the evidence on record cannot be looked into. However, it is a settled position that if the parties have understood the pleadings of each other correctly, an issue was also framed by the Court, the parties led evidence in support of their respective cases, then the absence of a specific plea would make no difference. In Nedunuri D Kameswaramma v. Sampati Subba Rao, [1963) 2 SCR 208, Hidayatullah, J. (as he then was) speaking for a three-Judge Bench of this Court observed at page No. 214 thus :

"Though the appellant had not mentioned a Karnikam service inam, parties well understood that the two cases opposed to each other were of Dhannila Sarvadumbala inam as against a Karnikam service inam. The evidence which has been led in the case clearly showed that the respondent attempted to prove that this was a Dharmila inam and to refute that this was a Karnikam service inam. No doubt, no issue was framed, and the one, which was framed, could have been more elaborate; but since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mis- trial which vitiates proceedings." G The same view is expressed by this Court in the following two cases : Kali Prasad (Dead) by Lrs. & Ors. v. Mis.Bharat Coking Coal Ltd. & Ors.; (1989] Sup!. I SCC 628 and Sardul Singh v. Pritam Singh & Ors., [1999] 3 SCC 522.

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A Now, in the instant case the appellant has never pleaded before the Special Court that necessary pleading in regard to the requirements of land grabbing is lacking in the case. On the other hand, he understood the averments in the petition read with the plaint correctly as allegations of land grabbing as can be seen from the affidavit containing objections to the Gazette B Notification dated April I, 1992, referred to above, filed on April 16, 1992. (affidavit was attested on April 10, 1992). He stated "I deny the petitioner's allegation of land grabbing whatsoever, made in its petition dated 20.³.1992". He further stated that the documents filed by him and the first respondent "nullify the petitioners allegation of land grabbing, claim of title over the land and claim of right to get the possession of the land and the building..... ". C On this pleading the Special Court framed issue No. 6 aforementioned. The parties adduced evidence, oral and documentary, on that issue. We have already discussed documentary evidence above. PW I in his statement categorically stated that the appellant was a land grabber. What is surprising to note is that there was no cross-examination on that aspect. What is more surprising is that in his deposition he did not even state that he was not a land grabber and the land in dispute was not a grabbed land. We have not taken this as his admission but only an aspect in appreciation of oral evidence.

The Special Court is, therefore, correct in discussing the evidence on record under the caption 'design' in view of the pleading on that aspect, adverted to above and the High Court rightly upheld the same. We have already pointed out that the activity of grabbing of any land should not only be without any lawful entitlement but should also be, inter alia, with a view to illegally taking possession of such lands. These two ingredients are found against the appellant.

F It is nonetheless submitted by Mr. Parasaran that the plaint mentions that the possession of the appellant partakes the character of permissive possession and this averment negates the very concept of land grabbing. It is no doubt true that if the possession is permissive then it cannot be treated as illegal for purposes of clauses (d) and (e) of sub-section (2) of the Act. We G have already discussed above with regard to the alleged plea of permissive possession and held that those averments in the plaint would not constitute plea of 'permissive possession'.

In the light of the above discussion, we have no option but to sustain the view of the High Court in approving the finding of the Special Court ori H Issue No. 6, that the appellant falls within the mischief of the definition of

KONDA LAKSHMANA BAPUJI v. GOVT. OF A.P. [S.S.M QUADRI, J.] 701

the expression "land grabber" under the Act. A In the result, we uphold the judgment and order of the High Court under challenge declining to interfere with the judgment and decree of the Special Court. The appeal is dismissed; the parties shall bear their own costs.

T.N.A. Appeal dismissed. B