Law Web: Trespasser is not entitled to get compensation under land acquisition Act

In presence of the true owner, which fact clearly distinguishes the instant case from that of 1907 AC 76 (F), even a licensee was held to be not entitled to be compensated, See - Shankar Govind v. Kisan, AIR 1917 Nag 28 (T). A trespasser cannot claim greater recognition than a licensee. In competition with true ownership, the possession of the non-applicant even if adverse on the date of the reference could not before it ripened into title, be considered as an interest entitled to be compensated under the Land Acquisition Act.11

33. The rule is well established that so long is the relationship of a landlord and a tenant subsists, the tenant cannot set up any title by adverse possession however notoriously he may proclaim title in himself and deny the title of the landlord. That the landlord takes no steps to contest the (sic) hostile assertion improves in no way his position in : - 'Karimullakhan v. Bhanu Pratapsingh', MANU/NA/0054/1948 : AIR 1949 Nag 265 at p. 269 (L); - 'Seshamma(sic) v. Chickaya Hegude, 25 Mad 507 at p. 511 (sic) - 'Gopal Chandra v. Satya Bhanu', MANU/WB/0727/1925 : AIR 1926 Cal 634 at p. 635 (N) and --- 'Bejoy Chand Mahatab v. Gurupada Haldar', 32 Cal WN 720 (O).

34. The relationship between a licensor and a license is analogous to that between a lessor and a lessee Sec - 'Clark v. Adie', (1877) 2 AC 423 at pp. (435-36 (P) and - 'Doe v. Baytup', (1835) 111 ER 384 (Q).

35. On the finding of the President, the non applicants possession of the eastern portion of the house commenced as a licensee. The President did not find that Sitaram had done anything to terminate the license or that the license had been determine in any other manner. If that be so, the licensee who secured possession by leave could not in law be permitted to alter the character of such possession by his own assertions and claim to hold the land adversely to the licensor with a view to bencluing himself by recourse to the Limitation Act.

The rule is founded on the plainest notions of justice and fair play.

36. In - 'Ambu Nair v. Secy. of State', ATR 1924 PC 150 (R), the case referred to by Hidayatullah J., their Lordships observed that a licensee could not claim title only from possession however long unless it was proved that the possession was adverse to that of the licensor, to his knowledge and with his acquiescence. The President did not find that apart from the fact that Sitaram was aware of the hostile assertion of title by the non-applicant, there was anything else which made the licensee to act to his prejudice.

The doctrine as to a person lying by so as to create an equity against him arises,"if he knows facts which are unknown to the other persons acting in violation of the right which those acts give, and does not inform them about it, but ties by and lets them run into a trap": per Lord In-tice Cotton, - 'Russell v. Watts', (1883) 25 Ch D 559 576 (S). Here, the non-applicant was quite aware of bin true position and the mere inactivity of Sitaram could not improve the non-applicant's position.

37. The position then is, there could not, at any rate he adverse possession till Sitaram died on 26-12-1940 and the subsequent possession till 3-7-1952 could not ripen into ownership.

38. The learned Counsel for the non applicant contends that he was not in the position of a licensee in the absence of anything to show that there was any grant made by Sitaram in favour of Maroti On this point I notice no disagreement between the two learned Judges and the point does not arise for my decision. The learned Counsel for the non applicant submit that the adverse possession continued beyond 8-7-1952. As on this Point also both the learned Judges are agreed that possession beyond that date cannot (sic) for the benefit of the non-applicant, it cannot be raised for my decision.

39. In presence of the true owner, which fact clearly distinguishes the instant case from that of 1907 AC 76 (F), even a licensee was held to be not entitled to be compensated, See - Shankar Govind v. Kisan, AIR 1917 Nag 28 (T). A trespasser cannot claim greater recognition than a licensee. In competition with true ownership, the possession of the non-applicant even if adverse on the date of the reference could not before it ripened into title, be considered as an interest entitled to be compensated under the Land Acquisition Act.

AIR 43 1956 Nagpur 11

IN THE HIGH COURT OF NAGPUR

Misc. Petn. No. 56 of 1954

Decided On: 01.02.1955

Appellants: Tulsiram Tukaram
Vs.
Respondent: K.L. Pande and Ors.

Hon'ble Judges/Coram:
Sinha, C.J., S. Kaushalendra Rao and Hidayatullah, JJ.

Property - Land Acquisition - Article 226 /227 of Indian Constitution of India, 1950; Land Acquisition Act; Nagpur Improvement Trust Act - Petitioner challenged judgment passed by Respondent President of tribunal directing that compensation awarded under Land Acquisition proceedings be divided half and half between Petitioner and his uncle, second Respondent -Further he contended that will was not valid as it had not been properly executed and attested as also on ground that will had not been made by testator when he was in a proper disposing state of mind, and that it had been obtained by undue influence and fraud having been practiced on executants - Held - On contention that Tribunal had disregarded well established principles of law bearing on question of acquisition of title by adverse possession in deciding that Second Respondent had qualified for sharing compensation money with Petitioner by perfecting his title to a share in property by adverse possession -It was held that it was not so as a Mistake apparent on face of record did not include such mistakes as a tribunal or a judicial body made in deciding mixed questions of law and fact - Further on contention that Petitioner started his enquiry into amount of compensation in 1948 that enquiry would mark beginning of list and would thus, stop running of time against Petitioner- But it was well settled that enquiry before Land Acquisition Officer or Collector loading to fixation of amount of compensation was not concerned with question of title - Such an enquiry couldn't have effect of stopping adverse possession and there was nothing in Land Acquisition Act or in Nagpur Improvement Trust Act to indicate that Respondent No. 2's possession ceased to be adverse from date enquiry into amount of compensation began - Result of that enquiry amounted to nothing more than an offer on behalf of public authorities of amount thus fixed as minimum price for property acquired, an offer which would or would not be accepted by owner of property- Second Respondent had been in possession from a much earlier date and according to him adverse possession had begun some time in 1923, when he claimed property by partition in his grandfather's lifetime; but as there was no definite indication of his having claimed title to property earlier than 1939 Tribunal had taken year 1939 as starting point of adverse possession -Neither Petitioner nor his grandfather, testator, in his lifetime, took any steps to eject second Respondent, who had clearly claimed title in himself in respect of a share in property - Thereby , second Respondent had perfected his title by adverse possession and there was no escape from conclusion at which Tribunal arrived - Appeal dismissed.

ORDER

Sinha, C.J.

1. By this petition under Articles 226 and 227 of the Constitution, the Petitioner impugns the decision of the first Respondent, who is the President of the Tribunal constituted under Section 61, Nagpur Improvement Trust Act, directing that the compensation awarded under the Land Acquisition proceedings be divided half and half between the Petitioner and his uncle, the second Respondent. The third and fourth Respondents are respectively the Nagpur Improvement Trust and the Land Acquisition Officer, Nagpur.

2. A house numbered in the acquisition proceedings as Trust Serial No. 206 was proposed for acquisition on 18-1-1946. This house had been acquired by Sitaram, father of the second Respondent mid grandfather of the Petitioner, by a sale deed of the year 1910. This house was in the occupation of Sitaram and his family, including the disputants in these proceedings, until Sitaram died on 26-12-1940. He left a will dated 7-8-1930 giving the property entirely to the Petitioner, thus disinheriting his son, the second Respondent.

Acquisition proceedings started before the 4th Respondent on 26-1-1948. Upon notice to the parties, the Petitioner claimed the entire compensation to the exclusion of his uncle who claimed a moiety share therein on the ground that the house was ancestral property which could not have been bequeathed by his father excluding him from a share therein, that he had been in possession of the eastern half of the house as a remit of a partition effected during his father's lifetime in 192(sic), and that at any rate he had perfected a title by adverse possession in respect of the moiety share claimed by him.

He also challenged the validity of the will on the ground that it had not been properly executed and attested as also on the ground that the will had not been made by the testator when he was in a proper disposing state of mind, and that it had been obtained by undue influence and fraud having been practised on the executant. The Petitioner's grandmother, that is to say Sitaram's widow, also filed a claim to a one-third share in the compensation money.

3. The proceedings before the Land Acquisition Officer continued till 3-7-1952, when he made an award giving Rs, 2,175 as compensation for the property sought to be acquired and referred the matter to the Tribunal for deciding the question of the conflicting titles claimed by the three persons aforesaid and for apportionment of the compensation under Section 30, Land Acquisition Act.

4. The first Respondent as the President of the duly constituted Tribunal raised a number of issues, most of which be decided in favour of the Petitioner. He held that the house in question was the self-acquired properly of Sitaram, which He had the power to dispose of by will, and that he did actually so dispose it of in favour of the Petitioner. Thus He negatived the title of the second Respondent or of his mother based on the allegation that the property was ancestral in Sitaram's hands, He held the will propounded by the Petitioner as having been validly executed and attested when Sitaram was in a proper disposing state of mind without any fraud or undue influence having been exercised upon him.

But he decided that the Petitioner and the second Respondent were entitled to share the compensation money half and half on the ground that the latter had perfected his title to a moiety share in the property by adverse possession for a continuous pedioa of more than 12 years from 12-2-1039 to die date of taking over possession by the Improvement Trust, some date early in 1953. It is this order which is challenged before us.

5. This case was argued before us as if we were functioning as an appellate Court sitting in appeal on the decision given by the Tribunal. But functioning as we do in this case under Articles 226 and 227 of the Constitution, our jurisdiction is not appellate but only supervisory.

According to the most recent decision of their Lordships of tin Supreme Court in - "T.C. Basappa v. T. Nagappa', Mil 1954 SC 440 (A) a writ in the nature of a certiorari is available only to adjudicate upon the validity of judicial acts, including in that expression quasi-judicial functions, by tribunals or administrative bodies, in contradistinction to ministerial acts. In the exercise of that power, this Court has to see if the Tribunal in the instant case has acted in excess of its legal authority. The following observations of their Lordships at page 444 are quite apposite to the maker in the present controversy:

The second essential feature of a writ of "certiorari" is that the control which is exercised through it over judicial or quasi-judicial tribunals or bodies is not in an appellate but supervisory capacity. In granting a writ of "certiorari" the superior court does not exercise the powers of an appellate tribunal.

It does not review or reweigh the evidence upon which determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal, The supervision of the superior court exercised through writs of "certiorari" goes on two points, as has been expressed by Lord Sumner in - 'King v. Nat Bell Liquors Ltd. 1922 2 AC 128 156 (B).

One is the area of inferior jurisdiction and the qualifications and conditions of its exercise the other is the observance of law in the course of its exercise. These two heads normally cover all the grounds on which a writ of "certiorari" could be demanded.

6. In the instant case it has not been contended that the Tribunal had not the jurisdiction to enter upon the determination of the matter in controversy in this case. What has been contended is that though it had the jurisdiction to entertain and determine the controversy it has done so wrongly.

It has not been contended either that the Tribunal has acted "in flagrant disregard of the rules of procedure" or in violation of the principles of natural justice (to use die exact words of their Lordships). The case has been sought to be brought within the purview of the following words of their Lordships:

An error in the decision or determination itself may also be amenable to a writ of "certiorari" but it must be a manifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law.

It has been contended that in deciding that the second Respondent had qualified for sharing the compensation money with the Petitioner by perfecting his title to a moiety share in the property by adverse possession the Tribunal has disregarded well established principles of law bearing on the question of acquisition of title by adverse possession. In my opinion that is not so. Mistake apparent on the face of the record does not include such mistakes as a tribunal or a judicial body makes in deciding mixed questions of law and fact.

Adverse possession is a mixed question of law and fact. The Court had before it evidence on which it could have come to the conclusion to which it has done. It has not been contended that there is no evidence in support of the conclusion of the Tribunal.

7. After the latest pronouncement of their Lordships of the Supreme Court as to the limits of interference by this Court under Article, 226 of the Constitution there can be no doubt, in my opinion, that every mistake of fact or law does not warrant interference by this Court. If the Court were exercising its functions as a Court of appeal from the decision in question, certainly we could have gone into all the facts and the law bearing upon those facts. But, in my opinion, we are precluded from doing so.

The utmost that can be said and has been said against the decision of the Tribunal is that it had gone wrong on a mixed question of law and fact. But a mere mistake on such a question, in my opinion, would not entitle this Court to interfere with the decision given in this case.

8. Assuming, however, that we can examine the conclusion of the Tribunal on the question whether or not the second Respondent had perfected his title by adverse possession, no clear authority has been brought to our notice during the arguments to the effect that adverse possession begun, as found in this case in 1939 was interrupted by the land acquisition proceedings.

It has been sought to be argued that when the first notification was issued early in 1946 as aforesaid, or at any rate when the Land Acquisition Officer started his enquiry into the amount of compensation early in 1948, the running of time by the adverse possession of the second Respondent was stopped, and that therefore the requisite period of 12 years' continuous hostile possession was not there.

9. So far a the first notification of 1946 goes, under Section 4, Land Acquisition Act, it only meant that it was notified that the land was needed for a public-purpose thereupon entitling any public officer to enter upon and survey the land and do other such acts on the land as he may think necessary. Under Section 23 of the Act it is with reference to the date of that notification that the market value of the land has to be determined by the Collector in the first instance. But that late has no relevance to the question now before (sic) running of adverse possession which had already begun is not stopped by anything proposed to be done in pursuance of the notification under Section 4, Land Acquisition Act.

10. But it was further argued on behalf of the Petitioner that when the Land Acquisition Officer started his enquiry into the amount of compensation in 1948 that enquiry would mark the beginning of the lis and would thus, stop the running of time against the Petitioner. But it is well settled that the enquiry before the Land Acquisition Officer or the Collector loading to the fixation of the amount of compensation is not concerned with the question of title. The proceedings before him are of an administrative and not of a judicial character: see - 'Ezra v. Secy. of State', 32 Ind App 93 (PC) (C).

Such an enquiry cannot have the effect of stopping adverse possession. There is nothing in the Land Acquisition Act or in the Nagpur Improvement Trust Act to indicate that Respondent No. 2's possession ceased to be adverse from the date the enquiry into the amount of compensation began. The result of that enquiry amounts to nothing more than an offer on behalf of the public authorities of the amount thus fixed as the minimum price for the property acquired, an offer which may or may not be accepted by the owner of the property.

Furthermore, there is nothing in those Acts to prevent the Petitioner from instituting his suit for ejectment of the second Respondent. The Petitioner knew all the time, at least early in 1939 as indicated in the judgment impugned, that the second Respondent was claiming title to a moiety -hare in the property adversely to the true owner. His cause of action for a suit in ejectment accrued then, if not earlier. The learned President of the Tribunal has fixed upon the year 1939 as the starting point of adverse possession, not because Respondent No. 2's possession began at about that time but because there is a clear indication in the record of his having declared to the true owner that he the second Respondent was clawing a share in the property.

The second Respondent had been in possession (sic) much earlier date. According to him adverse possession had begun some time in 1923, when he claimed the property by partition in his grandfather's lifetime; but as there was no definite indication of his having claimed title to the property earlier than 1939 the Tribunal has taken the year 1939 as the starting point of adverse possession.

Neither the Petitioner nor his grandfather, the testator, in his lifetime, took any steps to eject the second Respondent, who had clearly claimed title in himself in respect of a share in the property. Unfortunately for the Petitioner the proceedings before the Land Acquisition Officer continued until the award was made on 3-7-1952.

By that time, certainly, the second Respondent had perfected his title which was inchoate at the initiation of the proceedings. Unless the Petitioner could succeed in showing that the proceedings before the Land Acquisition Officer were of a judicial character, thus stopping the naming of time, it must be held that the Petitioner by his own inaction has allowed the second Respondent to perfect his title by adverse possession.

11. It is well settled that proceedings before the Court, in the instant case before the President of the Tribunal, are of a contentious nature because one of the functions of the Tribunal is to determine any question of conflicting titles that may have been raised in respect of the compensation for the property to be acquired. The determination by the Court of a question referred under Section 30, Land Acquisition Act is final in the sense that it is res- judicata between the parties to the dispute: vide - 'Ramachandra Rao v. Ramachandra Rao AIR 1922 PC 80 (D) and - 'Mt. Bhagwati v. Mt. Ramkali',MANU/PR/0013/1939 : AIR 1939 PC 133 (E). But the reference under S- 30 to the Tribunal was made, in July, 1952.

Hence, it may be said that upon that reference being made the question of title became a live issue between the contending parties and the running of time may be said to have stopped at that date. But even so, the second Respondent had completed the twelve years period of adverse possession before that date. Hence, in my opinion, there is no error in the judgment of the Tribunal on the question of adverse possession, assuming that this question is open to us.

12. The matter may be looked at from another point of view. The running of time may be said to stop as against the true owner from the date on which the property would vest for public purposes in the authority acquiring it. But even in such a ease a person whose possessory title has not ripened into a full title by adverse possession for the requisite period has been held to be entitled to compensation: see - Perry v. Clissold', 1997 AC 73 (F).

In that case the rightful owner was unknown and out of possession, and the person in possession had not prescribed for the full term of year's in order to clothe him with full title. Even then their Lordships of the Privy Council held that he was entitled to compensation. In the instant case under Section 16, Land Acquisition Act, the Collector could have taken possession of the property after making the award under Section 11 and thereupon the property would vest in the Government, or such other authority as may have acquired the property for a public purpose, free from all encumbrances.

That date in the instant case would be 3-7-1952, But by that date the second Respondent had perfected his title by adverse possession. In my opinion, therefore, there is no escape from the conclusion at which the Tribunal arrived.

13. It must therefore be held that there is no merit in this application. It is accordingly dismissed with costs. Hearing fee Rs. 100, to be equally divided between the second Respondent (one set) and Respondents 3 and 4 (the other set).

Hidayatullah, J.

14. I have had the advantage of perusing the order proposed by my Lord the Chief justice, I entirely agree with him that the essential feature of a writ of 'certiorari' is not appellate jurisdiction and this Court will not, in the exorcise of its functions under Article 226 of the Constitution construe evidence and reopen findings of fact. It was laid down in AIR 1954 SC 410 (A) that interference can ordinarily be if a question of jurisdiction (sic) or where the inferior tribunal has not observed the law in the course of the exercise of (sic) jurisdiction. This failure to observe the law, if (sic) be permitted to (sic) a qualification, must be (sic) I propose to confine myself strictly within these limits.

15. No question of jurisdiction as such is in- volv'd(sic) nf(sic) benfit) (sic) tribunal but not substantially observed the law .The property acquired is a house which it has now been found as a fact belonged to one Sitaram as his sell inquired property (vide finding on point No.3 - para 18 Sitaram made a will on August 7, 1936 in be genuine and effective (vide finding on points Nos. 8 to 14- Para. 18).

The claim of the second Respondent Maroti that the property was unoestrul(sic) and that Sitaram had partitioned the property in 1923 between his two sons and had allotted to Maroti the eastern half of the house was found against Maroti (vide findings on points 1 to 4 --paras. 8 to 16). It has also been found that Maroti was not in adverse possession of that portion in his right from 1928 (point No. 5 - paragraph 17). The nature of Maroti's possession was described by the tribunal in that paragraph thus:

The non-applicant No.1, his son, occupied the eastern portion as a licensee.

It was, however, found that Maroti was in possesion of the eastern portion of the house until he was required to vacate it by the authorities.

16. The tribunal then went on to hold that though the possession of Maroti was permissive in nuture, he set up a title in himself in 1939. In that year Sitaram made a contract for the sale of the house with one Dr. Nathulal. Maroti then made an application to police on 12-2-1939 (Exhibit N.A. 15) for protection of his possession. He also served a notice on Dr. Nathulal on 3-6-1939 (Exhibit N.A. 16) informing him that Sitaram and Tukaram (another son of Sitaram) had no right to sell his share.

A similar notice was also sent to another intending purchaser Shioshapkar on 17-4-1939 (Exhibit N.A. 17). We are not concerned with the civil suit sled in 1942 by Dr. Nathulal for the refund of earnest money. Maroti had also contested the claim of the Petitioner to get his name recorded after Sitaram's death on 26-12-1940, but unsuccessfully'. The learned Judge deciding the case thus held that:

In view of these, facts, there can be no doubt that Maroti had set up in himself an adverse title to the portion over which he was in possession to the Knowledge of Sitaram and Tulsiram right from 1939.

The learned Judge also held that 'under the will, Tulsiram became the sole owner of the disputed house after the death of Sitaram'. (vide paragraph 18).

17. According to the learned Judge, Maroti's possesion was adverse from 1939 to 1953 when the house was taken over by the authority from him and thus this adverse possession ripened into ownership while the proceedings for acquisition were pending. The learned Judge relying upon - 'Nrishinghan- charan Nandi v. Nagendrahala, MANU/WB/0277/1932 : AIR 1933 Cal 522 (G) held that the acquisition proceedings did not have the effect of halting the limitation which have the effect of halting the limitation which had commenced in 1939. The conclusion of the learned Judge may be stated in his own words thus:

The emerging position is this Maroti was in adverse possession of the house occupied by him the castern half portion of it from 1939 to 1953.

In this case, the Collector's award was given on 3-7-1952 and possession was taken, so far as Maroti's share was concerned in the beginning of 1933. As shown, adverse possession had commenced even during the lifetime of Sitaram in 1939. therefore, Maroti had perfected his title to a half share of the house towards east by adverse possession before the whole house was acquired. It follows therefore that Tulsiam and Maroti will shan(sic) the compensation equally.

As a result, the: compensation amounting to Rs. 2,175/- was ordered to be equally divided between the two claimants but since Maroti perfected his title to the portion of the house in his possession during the proceedings and also resisted the will on various grounds, the costs were ordered to be borne as incurred.

18. The decision of the Tribunal was given on a reference under Section 30, Land Acquisition Act, by the Land Acquisition. Officer, The acquisition of the lands was notified oil 18-1-1946, As a result of the notification and the consequent notices, the Petitioner and the second Respondent put in their statements. Both claimed to he owners, the Petitioner by virtue of the will and the second Respondent by virtue of his adverse possession from 1923 to 1946.

When the finding about ownership was given, it was found as a fact that adverse possession did not begin in 1923. Even conceding that it began in 1930, it is manifest that the second Respondent could not claim any interest beyond his inchoate rights as a person prescribing adversely to the Petitioner. However, I do not place the date of the commencement of the adverse possession in 1939.

If the second Respondent was a mere licensee he could not prescribe adversely against Sitaram except with the latters knowledge and acquiescence (See Mohammad Dawoodkhan v. Mt. Banubi (See - AIR 1950 Nag 127 (H) and - 'Ambu Nair v. Seey, (sic) of State', AIR 1924 PC 150 (I)). In the second case (which was followed by me in the first) their Lordships observed:

Their Lordships think that a licensee cannot claim title only from possession however long unless it is proved that the possession was adverse to that of the licensor, to his knowledge and with his acquiescence.

The first requirement was satisfied in this case but not the second of which there is no proof whatever. It thus appears that the tribunal assumed wrongly that adverse possession started in 1939. Adverse possession could only start on 26-12-1940 when Sitaram died and the present Petitioner succeeded to the house on the strength of the will and the license came to an end.

19. That, however, does not end the matter. Though my Lord the Chief Justice has traced adverse possession only up to 3-7-1952 (vide paragraphs 10 and 12), the Tribunal traces it to 1953- when possession of the property was actually taken. It is clear that: by 3-7-1952 adverse possession begun in December 1940 had not ripened into ownership.

Thus the vital question which arises in this case is whether a person in possession as a trespasser on the day he puts in his statement of claint and on the date of reference under Section 30 of the Act can ask to be compensated as owner on the sole ground that he was not dispossessed and the necessary period of prescription expired while the proceedings on the reference were going on.

20. Now, under the Land Acquisition Act compensation is paid for such interest as the claimant possesses. The relevant consideration for the determination of the interest is the right disturbed and acquired and not anything else.

Indeed, the acquisition officer merely determines the market-value of the total interest acquired and, together with certain additions and subtractions in consonance with the principles laid down in Sections 23 and 24, arrives at the figure of compensation. He then apportions the compensation between the various persons interested. If my dispute, arises as to the apportionment or as lo the persons to whom the same is payable, the Collector refers such dispute to the decision of the Court (Section 30).

21. In the present case, long before possession was taken, the Land Acquisition Officer gave the award on 3-7-1952 and referred the dispute to the Tribunal for deciding the title of the parties and for making due apportionment. The authority of the Tribunal was limited to this question only and on 3-7-1952 no question of extinction of the title of the Petitioner had arisen.

The dispute referred, if decided as it was referred, could only end in one way. Once the Tribunal had found that the adverse possession did not commence in 1923, the Tribunal, was bound to hold that it commenced, on 26-12-1940. The Tribunal was further bound to decide that on the date of reference the title of the Petitioner was intact and between the rival claimants, one was entitled to be compensated as owner and the cither for disturbed possession.

22. In AIR 1922 PC 80 (D), their Lordships of the Privy Council analysed acquisition proceedings and, after stating that the duty of the Collector is to make an award which fixes the compensation, observed:

When once the award as to the amount has become final, all questions as to fixing of compensation are then at an end; the duty of the Collector in case of dispute as to the relative rights of the persons together entitled to the money is to place the money under the control of the Court, and the parties then can proceed to litigate in the ordinary way to determine what their right and title to the property may be.

See also - Prag Narain v. Collector of Agra', MANU/PR/0005/1932 : AIR 1932 PC 102 (J).

23. Under the scheme of the Act, such disputes if referred by the Collector have to be decided by the Court and the decision is final. By Section 26 it is a decree. As observed by Wadsworth J. in - 'Swaminatha v. Kuppuswami", MANU/TN/0050/1938 : AIR 1938 Mad 955 (K), the Court has to decide these matters and cannot relegate the parties to a separate suit.

Once this position is readied, it is obvious that the Court having to decide the dispute referred to it was bound to decide the dispute as on the date of reference (3-7-1952). On that date adverse possession was not ripe inasmuch as it began only on 26-12-1940. 'Nrishinghacharan Nandi v. Nagcndrabala Debee (G) (cit. sup.)', did not involve, this question at all end is not an authority to the contrary.

24. This error is apparent on the face of the record. I may state that in the case of (1907) AC 78 (F), the original owner was not known and the person in possession was regarded as continuing to prescribe. In the Australian High Court Dr. Cullen conceded that such could not be the case in the presence of the real owner and the case cannot, be treated, as an authority for the present fact.

25. Differing respectfully from my Lord, I am of opinion that the order should be quashed as involving an error of law apparent on its face and the case remitted for disposal according to law.

The Petitioner is enticed to his costs and also to withdraw the security deposit made by him.

R. Kaushalendra Rao J.

26. This matter comes on a difference between Sinha C.J. (as he then was, hereinafter referred to as Sinha C.J.) and Hidayatullah J. (as he then was hereinafter referred to as Hidayatullah. J.).

27. The following two questions are referred to my decision:

(i) Is there such an error in the judgment of the Tribunal which can be said to be an error apparent on the face of the record within the meaning of the recent decision of the Supreme-Court in MANU/SC/0098/1954 : AIR 1954 SC 440 (A)?

(ii) Was the Tribunal in such an error in deciding that the second Respondent had acquired to the property in question title by adverse possession during the acquisition proceedings?

28. The petition under Articles 226 and 227 of the Constitution was filed by the applicant impugning the order of the President of the Tribunal constituted, under Section 61, Nagpur Improvement Trust Act, By that order made on a reference under Section 30, Land Acquisition Act, the President held that the third non-applicant Maroti (hereinafter called the non-applicant was entitled to half of the compensation money for the house acquired, The facts leading to the reference are found stated in the opinion of Sinha C.J. and need not be- repeated.

29. The President found,

. . . the house belonged to Sitaram, being: his self-acquired property. The non-applicant no. 1, his son (Maroti), occupied the eastern portion (sic) a licensee. (Para 17)

The President proceeded to further find.

. . . there can be no doubt that Maroti had set up in himself an adverse title to the portion over which he was in possession to the knowledge of Sitaram and Tulsiram right from 1939. (para 22)

The President concluded.

Maroti was in adverse possession of the house occupied by him, the eastern half portion of it front 1939 to 1953. (Para 23).

30. Sinha C.J. observed:

Neither the Petitioner nor his grandfather, the testator, in his lifetime, took any steps to eject the second Respondent, who had clearly claimed title in himself in respect of a share in the property. Unfortunately for the Petitioner the proceedings before the Land Acquisition Officer continued until the award was made on 3-7-1952. by that time, certainly, the second Respondent, had perfected his title which was inchoate at the initiation of the proceedings.

In his Lordship's opinion, there was no error in the judgment of the Tribunal on the question on adverse possession. Further, according to his Lordship, a mistake apparent on the face of the records does not include such mistakes as a tribunal or (sic) judicial body makes in deciding a mixed question of law and fact like that of adverse possession.

31. Hidayatullah J. observed:

If the second Respondent was a more licensee he could not proscribe adversely against Sitaram except with the latter's knowledge and acquiescence.

Though the learned Judge held that the first requirement was satisfied in the case, there was no proof of the second whatever. According to his Lordship, adverse possession started only on 26-12 1940, when Sitaram admittedly died, and so the Tribunal assumed wrongly that adverse possession started in 1939. This, in his Lordship's view is the error apparent on the face of the record.

32. Thus arise the two questions stated above. But the crux of the matter is that according to (sic) C.J. the non-applicant perfected his title by adverse possession between early (sic) and 3-7-1952, while according to Hidayatullah j. there could be no adverse possession, at any rate, till December 1940 and so could not ripen into ownership by 8-7-1952. So, it will be convenient to answer the second question first.

The rule is founded on the plainest notions of justice and fair play.

37. The position then is, there could not, at any rate he adverse possession till Sitaram died on 26-12-1940 and the subsequent possession till 3-7-1952 could not ripen into ownership.

40. The error in the order of the President having thus been established, it become necessary to answer the first question which is whether it can be said to be an error apparent on the face of the record within the meaning of the recent decision of the Supreme Court in MANU/SC/0098/1954 : AIR 1954 SC 440 (A). To this question I have no hesitation in giving an answer in the affirmative. To quote Mukherjea J.:

In granting a writ of certiorari the superior court does not exercise the power of an appellate tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it consider to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal.
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An error in the decision or determination itself may also be amenable to a writ of certiorari but it must be a manifest error apparent on the face of the proceedings i.e. when it is based on clear ignorance or disregard of the provisions of law.

MANU/SC/0098/1954 : AIR 1954 SC 440 (A) at p. 444.

41. For the President to have proceeded on the view that adverse possession commenced prior to the death of Sitaram was to commit a palpable error of law which is patent in the extracts made earlier from the order of the President without the necessity to review or reweigh the evidence.

42. In conclusion I would answer both the question in the affirmative. The papers will now be submitted to the Division bench.

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Thursday, 12 September 2013

Trespasser is not entitled to get compensation under land acquisition Act

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