The law on claim by way of tacking on the period of adverse
possession enjoyed by his predecessor against the real owner is settled.
The submissions of learned senior counsel for the respondents are not
acceptable to that extent. In the case of Gurbinder Singh (supra) the
Supreme Court had an opportunity to deal with Article 144 and Section
2(4) of the Limitation Act, 1908. The said case was a case of one
trespasser trespassing against another trespasser and there is no
connection between the two, therefore, in law, their possession could not
be tacked on to one another. The Hon'ble Supreme Court held that the
burden is on the defendant to establish that he was in adverse
possession for 12 years before the date of the suit and for computation of
this period, he can avail of the adverse possession of any person or
persons through whom he claims but not the adverse possession of
independent trespassers. In the said case, though the Hon'ble Supreme
Court dismissed the Appeal, it held that tacking on period from earlier
trespasser is permissible in law.
possession enjoyed by his predecessor against the real owner is settled.
The submissions of learned senior counsel for the respondents are not
acceptable to that extent. In the case of Gurbinder Singh (supra) the
Supreme Court had an opportunity to deal with Article 144 and Section
2(4) of the Limitation Act, 1908. The said case was a case of one
trespasser trespassing against another trespasser and there is no
connection between the two, therefore, in law, their possession could not
be tacked on to one another. The Hon'ble Supreme Court held that the
burden is on the defendant to establish that he was in adverse
possession for 12 years before the date of the suit and for computation of
this period, he can avail of the adverse possession of any person or
persons through whom he claims but not the adverse possession of
independent trespassers. In the said case, though the Hon'ble Supreme
Court dismissed the Appeal, it held that tacking on period from earlier
trespasser is permissible in law.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 1424 OF 2004
WITH
CIVIL APPLICATION NO. 221 OF 2013 IN F.A. NO. 1424 OF 2004
Shivram Mahadev Shinde
Vs.
Maharashtra Housing & Area Development
Authority & Anr.
CORAM : MRS.MRIDULA BHATKAR, J.
PRONOUNCED ON : 23rd DECEMBER, 2015
Citation: 2016(2) ALLMR521
This Appeal is directed against the judgment and order dated 20th
September, 2004 passed by the learned Judge of the City Civil Court
thereby dismissing the Short Cause Suit No. 1357 of 1979. The original
plaintiff no. 1 Shivram Mahadev Shinde claiming adverse possession
against the Government, filed a suit for possession and injunction in
respect of land admeasuring 25 acres and 12.34 gunthas bearing Survey
no. 29 (Part), 30-C, 30-D, 41/1 (Part), 41/2, 41/3 and 41/4 (Part), 41-B/1,
42-B/2 and Plot Nos. 1 to 11-12 (Part) of private scheme No. “A” at
Village Pahadi, Goregaon Taluka, Borivali, Mumbai.
2. It is the case of the plaintiff no. 1/Shivram Shinde that he was in
possession of the suit land since 1944. He has entered into an
agreement with one Jagan Babu Thakur on 15th June, 1949 for cultivating
the land for two years, i.e., from 15th June, 1949 to 14th June, 1951
(Exhibit 6). On 9th April, 1970 Tahsildar of Village Pahadi issued notice
that in the year 1956 that the original plaintiff had encroached upon the
land and cultivated para grass. It is his case that panchnama was
conducted by Talati, which shows that the land was in possession of the
plaintiff/appellant, so he paid the penalty for that and continued to do so.
He entered into Sale Deed with plaintiff no. 2 in the year 1955 of the suit
land. It is also a case of the plaintiff no. 1 that he had lodged written
complaint to P.S.I. on 5thJanuary, 1979 against MHADA board and
Tahsildar. On 26th August, 1979 the appellant entered into an agreement
with one Devraj Gundecha/plaintiff no. 2 and sold the said land by
registered agreement of sale. Therefore, the plaintiff/appellant claimed
that he is in possession of the suit land without any interruption since last
more than 30 years and claimed declaration of title by way of adverse
possession and also injunction against the defendants. The written
statement was not filed by the State, but it was filed by
MHADA/defendant no. 1 who denied that the plaintiff no. 1 was in
possession of the land. All the averments made and contentions raised
by the plaintiff are denied by the defendants in the written statement. It is
contended that the State of Maharashtra is the owner of the land and has
acquired this land for MHADA for the purpose of constructing houses for
public. He submitted that the award was passed of the said land and
name of Government of Maharashtra and MHADA were entered in the
record of rights of the said land. It was further specifically denied that
appellant is having a hostile and open possession since last 30 years,
however, the Government has sent a notice in the year 1970 demanding
penalty for unauthorized occupation by the plaintiff. The fact of
possession of the entire land for 30 years is also denied. It is further
contended that the plaintiff is not cultivating para grass on the entire land
and the suit be dismissed.
3. After considering the pleadings in the plaint and the written
statement, the trial Court framed issues and gave findings as follows:
S.No. Issues Findings
1 Whether this Court has jurisdiction to
entertain and try the suit
This Court has
jurisdiction to try the suit.
2 Whether the plaintiffs prove that the suit
lands are in their possession openly,
continuously and adversely for 12 or
more years ?
Plaintiffs have failed to
prove that the suit lands
are in their possession
openly, adversely for 12
or more years.
3 Whether the order of the Tahsildar,
Borivali, dated 11.4.1979 in Case No.
RTS/WS/183 is not binding on the
plaintiffs?
Not proved, Plaintiffs
should have adopted
proper course.
4 Whether the plaintiffs are entitled to
claim Rs.5000/- together with interest
@ Rs.6% p.a. as damages from the
defendants
Plaintiff is not entitled to
any damages.
5 Whether the plaintiffs are entitled to
claim Rs.1080/- as loss of income or
profit for the period from January 1979
till the date of the suit together with
interest @ 6% p.a. of the amount?
Against plaintiff
6 Whether the plaintiffs are entitled to
menses profit from the date of the suit
till removal of earth dumped at the rate
of 500/- per month
Against plaintiff
7 Whether the plaintiff is entitled to Against plaintiff
declaration and injunction prayed for
8 What order and decree Suit is dismissed
4. The plaintiffs have examined one witness PW-1 Ramakant
Yashwant Desai. The original plaintiff Shivram Shinde was not alive
when the matter reached for evidence. So witness Mr. Desai, who
claimed to be present at the time of transactions by plaintiff no. 1 and the
actions taken by the plaintiff in respect of suit property, gave evidence.
The Government did not file written statement and did not examine any
witness. However, MHADA filed its written statement, cross-examined
the witness of the plaintiff and also examined witnesses D.W. Rajendra
Kotecha on their behalf. After considering the oral as well as
documentary evidence of both the parties, the trial Court answered the
issues as above. The trial Court dismissed the suit with costs. Being
aggrieved by the said judgment and order, this Appeal is filed.
5. The points of determination are - (i) Whether the appellants/original
plaintiffs have perfected title by adverse possession and entitled to reliefs
as prayed? (ii) Whether the learned trial Judge has erred in appreciating
evidence to decide plaintiffs' claim of adverse possession.
Submissions of the appellants
6. The learned counsel Mr. Setalvad for the appellants submitted that
the suit is for the adverse possession and the possession of the
appellants is in fact admitted by the Government. The appellant is in
possession of the suit premises since 1944. By notice dated 9th April,
1970, the Tahsildar demanded penalty from the appellants by showing
encroachment by them from 1956. The learned counsel submitted that
the appellants have adduced documentary evidence to show that the
appellants are in possession of the suit property at least from 15th June,
1949. He relied on the agreement entered into by the original plaintiff
Shivram Shinde with Jagan Babu Thakur dated 15th June, 1949 for
cultivation of para grass for a period of two years from 15th June, 1949 to
14th June, 1951 (Exhibit 6). He relied on Agreement of Sale dated 25th
April, 1955 (Exhibit 7) between Shivram Shinde and Devraj Gundecha for
11 acres of land. He further relied on judgment dated 11th September,
1959 in Case No. 535/P/1969 (Exhibit 8) which was given against the
plaintiff by the Court of Presidency Magistrate, 24th Court, Borivli. He
submitted that these documents establish that original plaintiff was in
possession of the suit premises at that relevant time. He further relied on
other documents, i.e., a letter of Tahsildar dated 9th April, 1970 (Exhibit 9)
for unauthorized cultivation of grass stating that there is encroachment
since 1956. He pointed out that original plaintiff Shivram Shinde sent
letter to Tahsildar, Borivali on 20th January 1978, which is marked at
Exhibit 10, very specifically claiming adverse possession. Thereafter on4th April, 1978 Tahsildar recorded the statement of Shivram Shinde which
is marked at Exhibit 11. Pursuant to that correspondence, a panchnama
of the spot was drawn on 11th April, 1978 (Exhibit 12). Thereafter on 11th
April, 1978 original plaintiff entered into Supplementary Agreement of 25
acres of the land by way of rectification of the earlier agreement dated
25th April, 1955 wherein the area of suit land was mentioned as 11 acres
(Exhibit 13). He further submitted that on 25th January, 1979 Shivram
Shinde/original plaintiff made written complaint to P.S.I. against MHADA
board and Tahsildar (Exhibit 14) and on 26th August, 1979 original plaintiff
entered into Agreement of Sale with Devraj Gundecha (Exhibit 15). He
submitted that all the agreements are registered on 26th September, 1979
and Power of Attorney was executed by Shivram Shinde in favour of
Gundecha Builders (Exhibit 16). He pointed out that Power of Attorney
(Exhibit 16) was signed by Ramakant Desai (PW-1) as witness and thus,
his evidence is authentic and supported by this document. Shivram
Shinde died in 1982 after filing of the suit. His death certificate dated 23rd
September, 1982 (Exhibit 17) is produced. After death of Shivram
Shinde, his minor son Dhanesh and wife were brought on record. The
learned senior counsel argued that no effective cross is taken on the
documents by the defendants. He submitted that Government was
aware that the plaintiff was in possession of the land and it was open,
hostile and continuous possession. The Government though relied on
number of documents especially on Section 4 notice and award under
Land Acquisition Act, no documentary evidence is produced by either by
Mhada or Government. The Government did not file written statement to
show that the Government was not interested in the property and was
fully aware that the plaintiff is having his long possession. The evidence
of plaintiff is uncontroverted by the defendants. Though it was claimed
that award was passed on 6th September, 1951 it was not placed on
record. He submitted that though it was contended in the written
statement and said on oath by the witness of the defendants that the
State has taken possession of the land at the time of acquisition, nothing
is placed on record to show physical or symbolic possession was taken
by MHADA. Moreover, actual physical possession is contemplated under
the acquisition. He further submitted that the learned Judge of the Trial
Court has committed an error in rejecting the case of the plaintiff on the
ground of adverse possession. The learned Judge did not properly
examine the documentary and oral evidence produced by the plaintiffs to
show that they are in hostile and continuous possession since 1944. The
defendants failed to produce documents in support of their claim of
acquisition and passing award, therefore, fact of acquisition should not
have been accepted by the trial Court.
7. Mr. Setalvad argued that when Contempt Petition No. 131 of 2010
was filed, settlement talks continued between the parties. The
Government has introduced a policy known as 60:40 policy, i.e., to offer
40% of the share to the occupants and use 60% for development by
MHADA. The petitioners have received a letter from the Chief Officer of
MHADA on 29th August, 2001. In response to that, the appellants sent
letter on 17th September, 2001. Another letter dated 18th October, 2001
was sent by MHADA. The letter dated 19th October, 2001 was sent by
the lawyer of plaintiff to MHADA showing the willingness to accept the
proposal. MHADA prepared an office note on 29th August, 2008 in
respect of settling the matter by availing of 60:40 policy. However,
thereafter the respondents committed contempt, as the talks were not
materialized and on 3rd December, 2012 a contempt notice was sent by
Chitnis Vaiti, lawyer of the petitioner. However, the said notice is not
replied by the respondents. As on today, the respondents did not deny
taking forceful possession of the northern portion of the property and
thus, they have committed clear contempt of Court. He relied on the
reply dated 8th March, 2013 filed by Vandana Georikar, Assistant Land
Manager MHADA. He submitted that affidavit filed by the respondents is
with complete impunity and contempt by the respondents is writ large and
obvious, so the consequence must follow.
8. The learned senior counsel Mr. Setalvad on the point of adverse
possession relied on the following decisions:
(i) Balwant Narayan Bhagde vs. M.D. Bhagwat & Ors.,
reported in (1976) 1 SCC 700.
(ii) Pralhad Singh & Ors. vs. Union of India & Ors., reported in
(2011) 5 SCC 386 on the point of acquisition of land and
passing award.
(iii) Bajranglal Gangadhar Khemka & Anr. vs. M/s. Kapurchand
Ltd., reported in 1951 Indian Law Reports 125 on the point
of contempt proceedings.
(iv) Bank of Baroda vs. Sadruddin Hasan Daya & Anr., reported
in (2004) 1 SCC 360 on the point of contempt.
Submissions of the respondents
9. The learned senior counsel Ms. Anklesaria appearing for MHADA
has submitted that it is a case of land grabbing by the builder Gundecha,
i.e. plaintiff no.2. She submitted that this builder is claiming suit land
illegally in the name of original plaintiff Shivram Shinde, who was
illiterate, poor person and was never in possession of a single guntha of
the suit land. It is a very peculiar modus operandi of this builder to claim
adverse possession of a huge Government land. She submitted that the
land which is shown as 25 acres and 12½ guntha is in fact much more,
i.e. upto 50 acres of land having market value of more than 500 crores.
The plaintiff was never having open, hostile & continuous possession of
Government land and the claim of the plaintiffs in the property by adverse
possession is false and not tenable in law. Though there was a
conveyance between Shivram Shinde and Gundecha in the year 1955
and thereafter in the year 1978, that is a bogus transaction. It was
claimed that Shivram Shinde, who is in actual possession of the suit
property, has transferred the land to Gundecha, and if it was so, how can
Shivram claim adverse possession from the Government when he was
not in possession of the suit land when he filed the suit and thereafter till
Gundecha was impleaded in 1998 as plaintiff no. 2. The suit is not filed
by Gundecha, i.e. plaintiff no. 2. She submitted that in Suit No. 1357 of
1979, Gundecha Builders were not party initially but they joined as a
party to the suit on 23rd August, 1998 and therefore, there are no
pleadings against Gundecha in the written statement filed by MHADA.
She submitted that this land of Government was “Gurcharan” land (cattle
grazing) and same fact is mentioned in the so-called agreement entered
into by Gundecha and Shivram Shinde. In the year 2009, Dhanesh, son
of Shivram Shinde attained majority and therefore, Deed of Affirmation
was executed by Gundecha and Dhanesh Shinde. This is a massive
fraud played by Gundecha on the Court. Shivram Shinde died and
thereafter Deed of Conveyance was executed on 13th February, 2008
between Kusum Shinde and Gundecha builders. She submitted that this
Agreement was admitted in rejoinder and therefore, it can be relied by the
Government. In the said agreement it is mentioned that it was a
“Government Gurcharan land” (cattle grazing). She argued that the
description of suit land is very vague and deliberately nothing specific is
mentioned in the suit. The portion of survey numbers are mentioned,
however, their areas are not mentioned. She submitted that assuming if
decree was to be passed, in whose favour could the decree have been
passed, as admittedly Shivram Shinde has sold and transferred the land
to Gundecha and Gundecha was not a plaintiff initially when title by
adverse possession was claimed. In support of her submissions, she
referred to section 6(a) of the Transfer of Property Act, which puts bar on
transfer, which in anticipation the person will acquire title. She submitted
that there is difference in permissive possession and adverse possession
and encroachment. Shivram Shinde may be encroacher for some portion
of the land but he was never in continuous, open and hostile possession
of the suit land. She argued that the plaintiff did not plead that he was in
actual physical possession of the suit land. In support of her submissions
on adverse possession, she relied on the judgment of the Hon'ble
Supreme Court in the case of Hemaji Waghaji Jat vs. Bhikhabhai
Khengarbhai Harijan & Ors., reported in AIR 2009 SC 103 in which the
Hon'ble Supreme Court has very heavily shunned the instances of such
land grabbing. From the date of entry of the person, the period for
adverse possession is required to be computed. In the present case, no
date of entry of the original plaintiff on the suit land is mentioned so there
is no such adverse possession. Thus, the period of necessary 30 years
of adverse possession is missing. She further submitted that Shivram
Shinde is no more and personal cause of action dies with the person.
She submitted that under section 20 of the Maharashtra Land
Revenue Code, all open lands belong to the Government. Therefore,
encroachment notice is given by Tahsildar under section 22 of the Code
and thereafter the plaintiff was charged with penalty for encroachment of
the land, which he was liable to pay for encroachment. She submitted
that grass cutting agreement (Exhibit 6) was only for two years and it is
bogus. She submitted that on 27th September, 1986 the plaintiff wrote to
Government and demanded the land to be given to him on lease. The
learned counsel submitted that if such demand is made, then the claim of
adverse possession is destroyed by the plaintiff himself. She argued that
name of Government and MHADA is shown on 7/12 extract. The
evidence of Ramakant Desai is doubtful. She submitted that
Shivram/original plaintiff was staying at Malad and hence it is not possible
for him to be in possession of a huge land of 25 acres situated at village
Pahadi. She further submitted that it is the plaintiff who has to prove his
case independently and weakness in the case of the defendant cannot be
used to prove the case of the plaintiff.
10. The learned senior counsel Ms. Anklesaria relied on the following
decisions:
(i) Gurudwara Sahib vs. Gram Panchayat Village Sirthala
delivered on 16th September, 2013 in Civil Appeal No. 8244
of 2013.
(ii) Amirchand Tulsiram Gupta vs. Vasant Dhanaji Patil,
reported in 1992 (2) Bom. C.R. 22.
(iii) Dharamarajan & Ors. vs. Valliammal & Ors. reported in AIR
2008 SC 850 on the point of adverse possession.
(iv) Chatti Konati Rao & Ors. vs. Palle Venkata Subba Rao,
reported in AIR 2011 SC 1480.
(v) Hemaji Waghaji Jat vs. Bhikhabhai Khengarbhai Harijan &
Ors., reported in AIR 2009 SC 103.
(vi) Union of India & Ors. vs. Vasavi Coop. Housing Society Ltd.
& Ors., reported in AIR 2014 SC 937.
(vii) Shanmugam vs. Ariya Kshatriay Rajakula Vamsathu
Madalaya Nandhavana Paripalanai Sangam, reported in
AIR 2012 SC 2010.
11. The learned senior counsel Ms. Anklesaria relying on the case of
Shanmugam has submitted that the Court would be fully justified if heavy
punitive costs will be imposed on the appellants for abuse of legal
process.
12. The learned senior counsel Mr. Setalvad, by way of reply, has
argued that the submissions of learned counsel that the possession
cannot be tacked on is incorrect. He relied on number of judgments:
(i) Full Bench judgment of the Supreme Court in the case of
Gurbinder Singh & Anr. vs. Lal Singh & Anr., reported in AIR
1965 SC 1553 (V 52 C 262).
(ii) Ram Piari vs. Budh Sen, reported in (1920) Volume XLIII
165 (Allahabad).
(iii) Rajasekaran & Ors. vs. Elumalai Goundan & Ors. reported
in (1976) 1 MLJ 1288.
(iv) Sajjad Husain vs. Qurban Ali Beg, reported in AIR 1926
Allahabad 697.
(v) Balkrishan vs. Satyaprakash & Ors., reported in (2001) 2
SCC 498.
(vi) Ramayya vs. Kotamma & Ors., reported in Indian Law
Report Reports Volume XLV 370.
13. In reply, he further argued that law of tacking on and breaking the
continuity of possession is totally different. The person who claims
adverse possession can get the benefit of the period of adverse
possession enjoyed by his predecessor and that period can be joined
and it is available to the person who claims adverse possession. On the
point of examination and appreciation of evidence, he relied on the
following decisions:
(i) State of UP cs. Nahar Singh (Dead) & Ors., reported in
(1998) 3 SCC 561. He relied on paragraphs 13 and 14 of
the said ruling.
(ii) The National Insurance Co. Ltd. vs. Dayanand Margeppa
Pedde, Prakash Dhanraj Soniminde and Sudhakar Baburao
Shinde, reported in 201 Vol. 112 (2) Bom. L.R. 0677.
The learned senior counsel Mr. Setalvad had vehemently argued that the
neither the Government nor MHADA tendered any documentary
evidence except one and thus the Court cannot look into the other
documents which are only produced by the defendants. So, the fact of
acquisition by Government is not at all proved. Hence, the judgment and
order of the trial Court be set aside and the Appeal be allowed and action
be taken as prayed in the Contempt Petition.
Reasoning – on Law
14. The first point formulated by me is in respect of proof of title by
adverse possession. The law of adverse possession branches out of the
law of limitation. Article 65 states that if the possession for immovable
property or any interest therein based on title is of 12 years, then the
possession of the defendant becomes adverse to the plaintiff. A title by
adverse possession can be prescribed also against the Government, so
the Government does not enjoy any immunity or privilege where the
adverse possession is claimed. However, some concession of longer
period of claiming adverse possession is given in favour of the
Government under Article 112 of the Limitation Act where the period of
limitation to run is for 30 years. In the corresponding Article 149 of the
Limitation Act of 1908 (old), it is made clear that the Article applies also
to Government like a private person. The concept of adverse possession
is borrowed from British Law. The common law recognizes the theory
earlier of “nullum tempus occurrit regi”, which means, no time affects the
Crown. The reason for this was that the State should not suffer for the
negligence of its officers or for their fraudulent hand-in-glove transactions
with the adverse party. However, common law fixed a period of 60 years
limitation in respect of suits on behalf of or against the Crown and the
same was adopted by the Indian Law under Article 149 (Old) and
subsequently by way of amendment period is reduced from 60 to 30
years under Article 112 (new). However, the reason for giving a longer
period to the Government when a party claims adverse possession is
obvious; because the Government is not one person but is a body of
persons taking decisions following procedural wrangles and moving like a
python who is very slow in its action. There is no dispute that adverse
possession must be proved for the whole period which is claimed. It
cannot be proved piecemeal. There must be proof as to the date, time
and manner in which the possession became open and adverse and the
owner is out of the possession. It is to be remembered that a person
pleading adverse possession cannot claim equity in his favour since he is
trying to defeat the rights of the true owner. The acquisition by adverse
possession is an exception to law of acquisition of title through lawful
means and therefore, it is to be pleaded with certainty and to be proved
to the hilt. Thus, for the claim of adverse possession, a person should be
in continuous, exclusive, open and peaceful possession for 12 years
when he claims against the private parties and for 30 years, when he
claims against the Government.
15. In the case of Hemaji Waghaji Jat (supra) the Hon'ble Supreme
Court while dealing with the issue of adverse possession under Articles
64 and 65 of the Limitation Act has expressed that there is urgent need of
a fresh look regarding the law on adverse possession and they have
recommended the Union of India to seriously consider and make suitable
changes in the law of adverse possession. The Division Bench has
expressed that the law as it exists is extremely harsh for the true owner
and a windfall for a dishonest person who has illegally taken possession
of the property of the true owner.
16. In the case of Union of India & Ors. vs. Vasavi Coop. Housing
Society Ltd. (supra), the Hon'ble Supreme Court held “It is trite law that,
in a suit for declaration of title, burden always lies on the plaintiff to make
out and establish a clear case for granting such a declaration and the
weakness, if any, of the case set up by the defendants would not be a
ground to grant relief to the plaintiff.”
17. In the case of Shanmugam (supra), a watchman claimed title by
adverse possession over one “Dharamshala”. The Hon'ble Supreme
Court held that only by obtaining ration card and the house tax receipts,
the appellant cannot strengthen his claim of adverse possession. The
Division Bench laid down that certain facts are to be established by the
person who claims possession; the date of entry into possession, how he
came into possession, who is in possession of the titled documents so
also the subsequent conduct are to be answered.
18. In the case of Balwant Narayan Bhagde (supra), the mode of
taking possession of the land under sections 16 and 17(1) of Land
Acquisition Act, 1894 was discussed. The Hon'ble Supreme Court made
distinction between symbolical possession and delivery of actual
possession. It was held that taking possession under section 16 and 17
means taking possession on the spot and it is neither possession on
paper nor symbolical possession which is understood in civil law. It can
be in the form of a declaration by beat of drum or by a written declaration.
As to the mode of taking possession, the act is silent. In the case in
hand, the case of the defendant is that the land was acquired by the
Government and the possession was handed over to MHADA along with
a huge land of 203 acres. Therefore, the acquisition of the said land can
be proved by presenting the award before the Court. In the present case,
the acquisition of the land is not challenged by the persons from whom
the land was acquired. Moreover, a bigger portion of the land is acquired
by the Government. Here, the facts on which the claim of adverse
possession is made are entirely different.
19. In the case of Prahlad Singh (supra) the Hon'ble Supreme Court
has held that panchnama is to be prepared in the presence of
independent witnesses and signature is to be obtained on panchnama.
Until the actual possession is not taken, legal presumption of vesting
cannot be raised. However, the Hon'ble Supreme Court in the said case
held that no hard and fast rule can be laid down as to what act would be
sufficient to taking of possession.
20. In the case of Gurudwara Sahib (supra), the Hon'ble Supreme
Court held that if the plaintiff is found in adverse possession, he cannot
seek declaration to that effect that such adverse possession has matured
in ownership. The adverse possession can be used as a shield or
defence.
21. In the case of Amirchand Tulsiram Gupta (supra), the Division
Bench of Bombay High Court while dealing with Article 65 of the
Limitation Act of adverse possession, held that it is necessary for the
party claiming adverse possession to set out the dates from which the
parties started claiming adversely to the other party.
22. In the case of Dharamarajan (supra) the Hon'ble Supreme Court
has taken a view that in the absence of any revenue record, there is no
question of title over the land and the claim of adverse possession on the
suit property by the plaintiff fail.
23. In the case of Balkrishan (supra), the appellant who is the original
plaintiff had filed the suit for declaration of his title on the ground of
adverse possession. The appellant had purchased the land from two
persons in the year 1960 and the suit land was under attachment by
orders of the Tahsildar. Interalia, the suit property was auctioned and one
Mr. Mohan Singh had purchased it in the name of his minor son Rajendra
Singh. Thereafter Rajendra Singh through his father filed an application
under the Land Revenue Code against the appellant for restoration of
possession. So, the suit was filed by the appellant for declaration. The
suit was dismissed on the ground that the sale was not valid. In the year
1970 Tahsildar ordered the appellant to put the heir of Mohan Singh in
possession of the suit land. The said order was challenged before the
SDO. The suit was filed for declaration. The trial Court found that the
appellant was in continuous possession of the suit land and perfected his
title by adverse possession, therefore, the suit was decreed. The appeal
was dismissed by the District Judge. The Second Appeal preferred by
the respondents was allowed rejecting the claim of adverse possession,
hence Civil Appeal was filed before the Hon'ble Supreme Court.
The question before the Hon'ble Supreme Court was when the
order of Tahsildar to deliver the possession of the suit land was passed
against the appellant, whether appellant had perfected his title by
adverse possession. The Hon'ble Supreme Court stated that the
claimant had to show that his possession is adequate in continuity, in
publicity and in extent. The Hon'ble Supreme Court held that though the
Tahsildar had passed the order and if that order is not acted upon or
executed, the appellant continued in possession of the suit land and,
therefore, the continuity of his possession was neither interrupted, nor
lost. Mere passing of an order of ejectment against a person claiming to
be in adverse possession neither causes his dispossession, nor
discontinuation of his possession which alone breaks the continuity of
possession. The facts of the present case are entirely different. In the
case of Balkrishna there was an attachment order running against the
appellants. In the present case, the award was passed and lands were
acquired from the previous land owners during the period which is
claimed. Moreover, the plaintiff no. 1 could not prove his continuous,
peaceful, hostile possession over the suit land.
24. In the case of Ramayya (supra) it is held that there was continuity
of possession, the person holding possession being the next presumptive
heir of the deceased. Such adverse possession in succession if
continuous and without break, would bar the true owner under article 142
of the Limitation Act.
25. Nahar Singh (supra) case was in respect of explaining the delay in
filing the FIR. In the said case, it is stated that in the absence of crossexaminatin
on the explanation of delay, the evidence of PW-1 remained
unchallenged and it should have been believed by the Court.
26. Thus a person who claims adverse possession against a private
person and the Government has to establish his claim by adducing
sufficient evidence on the point that he was enjoying continuous,
uninterrupted, peaceful possession for a period of 12 and 30 years
respectively. Thus, the adverse possession is not a pure question of law
but blended with facts. On this background, as First Appeal is a
continuation of the suit, the documentary as well as oral evidence
adduced by the plaintiffs as well as the defendants is required to be
looked into.
27. This is a civil trial. A document needs to be proved as per the
procedure laid down in the Evidence Act. On mere presentation of the
document, it never gets proved except upon some exceptions under the
law. In the case of Dayanand Margeppa Pedde (supra), while dealing
with the issue of compensation and proof of insurance policy, the Division
Bench held that “Mere production of the policy without getting it admitted
in evidence in accordance with law would not enable the Insurance
Company to place any reliance on it.” A person who relies on it has to
prove the contents therein. Unless the contents in the documents are
proved, it cannot be admitted and read in the evidence. In admitting or
exhibiting the document, parties are made aware that the court is going to
take into account the contents therein for the purpose of determining the
issues before the Court. It is a responsibility of the Court while accepting
the document in the evidence, i.e., admitting the same in the evidence, to
exhibit it so that the evidence is identified. Thus, the parties are aware
that they must meet that evidence. This basic procedure of proving the
documents thus ensures fair trial to the parties. No strict proof of the
facts is required in civil trial. On the basis of preponderance of
probabilities which are brought before the Court, the parties can prove
their assertions. However, a party who asserts a case has to prove it. In
a civil suit also, the initial burden is on the plaintiff and never on the
defendants but onus shifts after plaintiff discharges his burden to prove
his case and then the defendants' evidence can be looked into.
28. The law on claim by way of tacking on the period of adverse
possession enjoyed by his predecessor against the real owner is settled.
The submissions of learned senior counsel for the respondents are not
acceptable to that extent. In the case of Gurbinder Singh (supra) the
Supreme Court had an opportunity to deal with Article 144 and Section
2(4) of the Limitation Act, 1908. The said case was a case of one
trespasser trespassing against another trespasser and there is no
connection between the two, therefore, in law, their possession could not
be tacked on to one another. The Hon'ble Supreme Court held that the
burden is on the defendant to establish that he was in adverse
possession for 12 years before the date of the suit and for computation of
this period, he can avail of the adverse possession of any person or
persons through whom he claims but not the adverse possession of
independent trespassers. In the said case, though the Hon'ble Supreme
Court dismissed the Appeal, it held that tacking on period from earlier
trespasser is permissible in law.
29. In the case of Ram Piari (supra) the Allahabad High Court held
that “a person who is in possession of land without title has, while he
continues in possession and before the statutory period has elapsed, a
transmissible and inheritable interest in the property, but that interest is
liable at any moment to be defeated by the entry of the rightful owner and
if such person is succeeded in possession by one claiming through him
who holds till the expiration of the statutory period, such a successor has
then as good a right to the possession as if he himself had occupied for
the whole period.” (Halsbury's Laws of England, Vol. 19, p.157).
30. In the case of Rajasekaran (supra), the appellants were the
owners of the suit land. The respondents/defendants claimed adverse
possession. The appellants' case was that the defendants were
independent trespassers and that a trespasser could not tack on the
previous adverse possession of an earlier trespasser. It was held that
the defendants are entitled to tack on the period of adverse possession of
the person through whom they derived title and thus, they can prove
adverse possession over the statutory period.
31. In the case of Sajjad Husain (supra) it is said that tacking of the
periods of possession by two successive trespassers is permissible when
one derives title from the other.
32. Therefore, Gundecha, as per the case of the plaintiffs, got actual
possession in the year 1955 of some portion of the suit land. So they are
entitled to claim possession since 1944 claimed by their predecessor
Shivram Shinde as they have stepped in the shoes of Shivram Shinde if it
is proved accordingly. However, on facts, plaintiffs Shivram Shinde and
Gundechas both have miserably failed for want of cogent, credible
evidence to establish 12 or 30 years continuous, peaceful open
possession. If this is the case of the plaintiff, then Shivram Shinde, who
filed the suit in the year 1979, in fact cannot claim adverse possession
against the Government because as per his case, he had lost the
possession of the part of the suit land , i.e., 11 acres of the suit land in the
year 1955 and thereafter in the year 1978. As per the case of the
plaintiff, Shivram Shinde had given possession of the 11 acres of the suit
land to Gundecha in the year 1955. Thus, Shivram Shinde who claimed
adverse possession was not in possession of the entire suit land for 12
years or more than that. He claims the starting point of possession in the
year 1944. Since then if it is calculated and his case is accepted as it is,
he had handed over the possession of the 11 acres out of entire suit land
in the year 1955 to Gundecha. Gundechas were impleaded in the suit in
the year 1998 so they are not plaintiffs who filed the suit. In fact as per
Shivram Shinde's case in the plaint he had handed over the possession
to Gundecha in the year 1955, he has lost the actual possession as per
his case. The said portion of 11 acres of land is also not identifiable and
not shown as measured and marked separately. This is the first and
basic flaw in the claim of adverse possession. Thus, no cause of action
was available to Shivram Shinde based on adverse possession. He was
a material witness. Gundechas are entitled to claim the benefit of years
for which plaintiff no.1/ Shivram Shinde was in possession of the suit land
adverse to the title of the owner. However, plaintiff no. 2/Gundecha who
should have stepped in the box, did not do so. The evidence of plaintiffs,
i.e., Shivram Shinde or Gundechas cannot be substituted by Ramakant
Desai.
On witnesses
33. In the present suit, both the parties have tendered evidence of one
witness each. One Ramakant Desai was examined by the plaintiffs and
Rajendra Kotecha by the defendants. Let me discuss the evidence of
Ramakant Yashwant Desai. He has stated that he is residing at
Goregaon (West), i.e., the premises belonging to Housing Board. He
was working as a Clerk in the Police Department since 1945. He stated
that he knew the original plaintiff-Shivram since 1948 through one friend
Joseph Gulban and Joseph was a common friend of Shivram and the
witness. This is how they became friends in the year 1948. Shivram was
residing at Malad and he was cultivating para grass near Goregaon on
several plots, admeasuring 25 acres and 12.3/4 gunthas. Then he
pointed out a plan which is marked as Annexure-I and he identified the
boundaries. Annexure-I is a paper plan which is drawn by City Survey
officer. There is a marking of red line made by a person who drew the
plan. Nothing can be proved on the basis of Exhibit 5.
34. His evidence that the original plaintiff was cultivating and in
possession of the land since 1948 is merely an oral evidence except one
agreement of 1949, he has not produced or proved that fact. Any person
can come and stand in the box and depose in such a manner. It is
necessary that the family members of Shivram Shinde or legal heirs
should have produced some proof of cultivating of para grass, sale of the
para grass and the amount earned by him. Ramakant Desai deposed
that cultivation and possession was known to the concerned revenue
officers, i.e. Talathi and Tahsildar. That evidence has no value because
evidence of a person about the fact of knowledge of other person in
absence of any corrboration cannot be accepted. The corroboration
claimed is of Exhibit 9, a letter of demand of penalty. However, that is
only for encroachment for cultivating grass as an encroacher for some
years and not on complete possession. Rather the Tahsildar has
objected to it and interrupted the encroachment. Ramakant Desai stated
that Shivram was illiterate and he could only put his signature. Thus, it
shows that whatever correspondence was brought on record by Shivram
Shinde was not in fact done by him but it can be safely inferred that it was
done by present plaintiff nos. 2 Gundecha in the name of Shivram. His
evidence that Shivram Shinde used to take him to Talati's office and the
Talati used to question him about the possession and cultivation of grass
is a clever manipulation. He deposed that he knew everything what
Shinde did about the land. Such evidence can be given by any person
who is tutored, trained and planted as a witness. The witness makes a
statement on oath that Shivram has constructed several sheds and
chawls on the land. However, bare statement cannot be believed by the
Court unless financial capacity of Shivram Shinde is brought on record.
So also the census number of the structures could have been produced.
It is not shown that Shinde was financially so well off to construct such
chawls or sheds and manage a big property of minimum 25 acres.
proved. Desai speaks about agreement dated 15th June, 1949 with
Jaganbabu Thakur for cutting grass from 15th June, 1949 to 14th June,
1951 (Exhibit 6) which is a trump card of the plaintiffs. Desai claims that
he was present at the time of agreement and he also identified the thumb
impression of Jaganbabu Thakur who had put it in his presence and in
the presence of one witness Sakaram Joshi. The signature of Sakaram
is on the document and Desai's signature is not seen on the document.
As per the Evidence Act, the author of the document or the witnesses
before whom it is executed has to prove the document. Either Shivram
Shinde or Jaganbabu Thakur or Sakaram Joshi should have entered the
box. The best evidence is to be produced by the party. Whether
Sakharam Joshi or Jaganbabu Thakur was available at the time of
evidence is not brought on record. If at all Ramakant Desai was so close
to Shivram as stated by him, it was conspicuous to note that Shivram did
not obtain signature of Ramakant Desai as a witness on the said
agreement and also the agreement of sale of land in the year 1955. He
stated that the agreement was entered into on 25th April, 1955 and this
person was present throughout, however, he is not a witness to such an
important evidence, i.e. Agreement to sell the land. He has deposed that
he was aware that in 1968 Shivram Shinde started paying agricultural
assessment charges. He is also fully aware that Shinde was arrested on
2
nd January, 1969 at 8 a.m. for committing theft of grass on the land. He
remembered the date of judgment, i.e., 11th September, 1969 when
Shivram Shinde was acquitted. He knew that original plaintiff has
received Tahsildar's notice dated 9th April, 1970 regarding payment of
agricultural assessment charges. On 20th January, 1978 Shinde wrote a
letter to Tahsildar, Borivali in his presence. He identified the signature on
the said letter. At the time of recording of the statement of Shinde by the
Tahsildar, he was present. Again, when supplementary agreement dated
11th April, 1978 was made between Gundecha and Shivram Shinde, he
was present. On 5th January, 1979 original plaintiff filed a written
complaint against the State for illegally filling soil on his land. He is also
aware that Power of Attorney was executed by Shinde in favour of
Gundecha in 1979.
35. This cannot be considered as an evidence contemplated under the
Evidence Act which is to be believed and relied upon by a Judge. Under
Order 18 Rule 4 examination-in-chief of the witness shall be on affidavit
and copy thereof shall be supplied to the opposite party. However, it is
expected that the witness should state the true facts of whatever he has
witnessed. The present affidavit-in-chief is nothing but a copy of the
plaint. Desai is not the plaintiff. If this witness was present throughout at
the time of all important instances in respect of the suit land along with
Shivram, then in the plaint, Shivram Shinde ought to have mentioned
Desai's name as a witness. Nowhere in the plaint the name of this
witness is appearing. He did not sign as a witness to any document, i.e.
Agreement dated 15th June, 1949 between Shivram Shinde and
Jaganbabu Thakur (Exhibit C), Agreement of Sale dated 25th April, 1955
(Exhibit 5) between Shivram Shinde and Devraj Gundecha, judgment
dated 11th September, 1959 in Case No. 535/P/1969 (Exhibit 8), Tahsildar
recorded the statement of Shivram Shinde (Exhibit 11), a panchnama of
the spot was drawn on 11th April, 1978 (Exhibit 12). original plaintiff
entered into Supplementary Agreement on 11th April, 1978 (Exhibit 13),on
25th January, 1979 Shivram Shinde made written complaint to P.S.I.
against MHADA board and Tahsildar (Exhibit 14) and on 26th August,
1979 original plaintiff entered into Agreement of Sale with Devraj
Gundecha (Exhibit 15). Only Power of Attorney (Exhibit 16) is signed by
Ramakant Desai (PW-I) as a witness. Except this, nowhere name of
Ramakant Desai is appearing on any contemporaneous document.
Shivram Shinde died on 23rd September, 1982 and minor son of Shivram
Shinde was definitely 18 years old on 23rd September, 1982 when he was
brought on record.
36. These all statements and evidence of Ramakant Desai that he
was present at the time of all relevant agreements or transactions are
completely shadowed with dishonesty and falsity and have failed to
inspire confidence in the Court. His presence looks like a comet. This
witness is used for the only purpose of proving the so-called documents.
The document of 1949 to 1951 of cutting of para grass cannot be
believed because neither of the parties nor witness were examined. The
submissions of the learned senior counsel that when the evidence of
Ramakant Desai was recorded in the year 2002, the document was 30
years old and therefore, it is to be read in evidence under the
presumption of Section 90 is correct. A document can be taken on record
if it is 30 years old. Under Section 90 if the document is produced from
proper custody, the presumption exists about the execution and
attestation of that document. Such presumption is rebuttable. Moreover,
though execution and attestation is presumed, the truthfulness of the
contents therein is a matter of challenge and proof. The document of
1949 is proved only to the extent that it was entered into between the
parties. However, the contents therein cannot be believed as true
because of the false evidence of Mr. Ramakant Desai and the
inconsistent conduct of the plaintiffs. If such agreement of grass cutting
was entered into in the years 1949 to 1951, then further agreements or
any provision regarding grass cutting should have been produced or
brought on record. The case of the plaintiff was that throughout 30 years
he was cultivating para grass which is a special type of grass, then
obviously he must have entered into contracts of grass cutting for further
25 years. However, nothing is shown to that effect. Obviously, it is a
sham agreement to meet the requirement of the time to show starting
point of adverse possession. It is an eyewash.
37. The witness says that he was present at the time of all the
transactions pertaining to said land with Shivram Shinde. The
competency of this witness to give evidence in this matter is to be
questioned. Undoubtedly he is a puppet witness of present appellant no.
2. The presence of witness at all relevant times should be natural and
supported by corroboration and it should create confidence in the mind of
the Judge to accept his presence as natural. That is not the case.
38. It is the case of Ramakant Desai that Shivram Shinde wrote a
letter to Tahsildar on 20th January, 1978. In 1978 he claimed 35 years of
the enjoyment of the land and constructed several huts on it and he was
producing rice. There were paddy fields, however, he has not produced
any evidence to show that he was cultivating grass and paddy fields in all
25 acres of land. It is not possible for one person to cultivate and look
after 25 acres of land without the help of the labourers. If at all Shivram
Shinde was really cultivating the land and taking the crop of paddy, then it
was easily possible to produce documentary evidence to show sale of
paddy crop, accounts thereof, so also evidence of labourers/some
villagers. He has not produced any evidence of Shinde's financial
capacity to maintain such huge land. The letter dated 20th January, 1978
(Exhibit 10) is in fluent English and this cannot be written by Shivram
Shinde. Ramakant Desai deposed that he was present when Shivram
wrote letter to Tahsildar. He also mentioned that Shivram Shinde was
illiterate and he could only sign. If this was so, then he should have
stated who had written this letter for Shinde. Nothing is mentioned by
him and this shows that Shivram Shinde was definitely not the author of
this letter, but it is written by somebody else for Shivram Shinde and the
witness has no knowledge about it. The evidence of witness Desai is a
specimen of how the litigant abuses the process of law and can lie on
oath before the Court for his wrongful gain.
39. His deposition in the cross-examination that the recitals in the
affidavit are as per his memory cannot be believed. This witness was
working as a clerk in the Police department since 1945. He gave
evidence in the year 2002 when he was 80 years old. In the year 1948-
49 he was around 27 years of age. It is not acceptable that he could give
the dates of the agreements from 1949, so also the dates of letter,
complaint given by Shivram Shinde and the contents therein. In the
cross-examination, he stated that in 1958 he resigned from Government
service and was looking after the affairs of Shivram Shinde, Khaskar
Bros. Joseph and Ors., on renumeration, depending on the nature of
work. If this was true, why was his name not mentioned as a witness?
He was not given Power of Attorney by Shivram Shinde when he filed the
suit, as Shivram Shinde was illiterate. It was necessary for the legal heirs
of Shivram Shinde to come forward and give evidence for Shivram
Shinde. Similarly, plaintiff no. 2 also did not tender any evidence to show
that they were in possession of the suit land for more than 30 years, as
they stepped in the shoes of Shivram Shinde.
40. If evidence of Mr. Desai is accepted, then anybody can prove any
document by deposing that “though I cannot identify the signature or
thumb impression of the persons, I was present at the time of execution”
and the documents can be exhibited. Such evidence can be given,
however, it should be credible to inspire confidence in the mind of a
Judge which can be easily tested on the basis of other circumstances
and then only that document can be accepted as genuine. He has
deposed that he knew Devraj Gundecha who was a person referred in
the Agreement dated 25th April, 1955 (Exhibit 7). He admitted that he did
not know the office of Advocate Talathi and whatever he has deposed in
paragraph 13 that he used to visit the office of Advocate Talathi with
Shivram Shinde is incorrect. He stated that he did not know whether
Tahsildar has rejected Shinde's application for correction of record of
rights. He was given an opportunity to substantiate his evidence by some
documentary proof about his presence at the time of agreement or any
draft of the agreement corrected by him, however he could not.
41. I have no hesitation to state that to protect the property of the
State or the nation, is the responsibility of the Government. The
Government is a bundle of persons holding different posts with power
and authority. If one or two officers in the said system succumb to
different pressures or temptations or are totally inert and perform their
functions which are ex-facie contrary to the interest of the State or of the
nation, then those decisions or the correspondence or the omissions
should be weighed cautiously. Sometimes the power is used or unused
in such a skilful, flexible manner that no illegality can be seen on the
surface. However, after close scrutiny, if a Judge finds that it is against
the interest of the State, then the Judge needs to marshal evidence,
reading between the lines, to reach the truth, the whole truth, as for the
said purpose oath is administered to the witness by the Judge.
42. The learned senior counsel on the point of adverse possession
took support of the interim order passed by the learned Judge of the City
Civil Court at Exhibit 5 dated 27th April, 1979 and by that order, the relief
of injunction was granted in favour of the plaintiffs. However, it was an
interim order passed when the parties had not tendered evidence. Thus,
that cannot be given much importance when the oral as well as
documentary evidence is tendered by the parties and suit is dismissed on
merits.
43. The respondent/defendant MHADA examined one witness, namely,
Rajendra Kotecha, who was in employment of MHADA. He denied the
case of the plaintiffs totally on the point of possession, so also continuous
hostile possession. He gave evidence consistent with the contentions
raised in the written statement which was filed on 26th March, 1979 by
one Mr. A.B. Thakur, Executive Engineer of MHADA. No useful
admissions are sought in the cross-examination of the witness Rajendra
Kotecha. He was an Assistant Land Manager in MHADA. His evidence
was criticized further on the point that he had no personal knowledge in
respect of land as he joined MHADA in the year 1978. A witness may not
have a personal knowledge, as it is an act of semi-government
organization but he was competent to give evidence because of his post
and the job assigned to him. The record maintained by the office is
useful and authentic source of knowledge. He has stated that in the year
1948 MHADA/defendant no. 1 gave proposal for acquisition of vacant
land admeasuring total about 242 acres, which includes the suit lands
and the entire procedure of land acquisition was followed by the State of
Maharashtra for MHADA and award was passed in respect of the said
lands on 6th September, 1951. The physical possession was taken over
by the Government from the respective owners of the land during 1949 to
1951. The State Government also paid the compensation of nearly about
14 lakhs to these owners. Then these owners preferred Reference under
section 18 of the Act for enhancement. By the judgment dated 10th
November, 1953, the compensation amount was increased by learned
Civil Judge Senior Division, Thane. The certified copy of the said
judgment dated 30th November, 1953 is produced, which is marked as
Exhibit 21, in support of his evidence. He deposed that on or about 12th
October, 1955, as per the policy of the Government, MHADA gave back
possession to the Government, as MHADA did not have sufficient funds
to develop the land. However, in the year 1960, again these lands were
handed over by the Government to MHADA and the possession was also
given by the Government to the Housing Board to protect the suit land.
He has deposed that on this land, MHADA has taken the possession of
the suit land for development of their various housing schemes for public.
Some huts and structures were found in the year 1976 and they were
censused and identity cards were also issued by the Government.
However, no structure of the plaintiff was found on the land.
44. Referring on Exhibit 9, the letter of the Tahsildar, the learned
senior counsel Mr. Setalvad argued that the Government thus was aware
of the encroachment made by the plaintiffs and the Government has
accepted the penalty and assessment charges for the same but did not
file any suit for possession against the plaintiffs. This argument is an
abortive attempt to foist admission of possessory title of the plaintiffs in
the mouth of the respondents/defendants. The Government has never
admitted the possession of the plaintiffs on such a huge land of 25 acres
and that is for a long period of 12 years much less of the 30 years. The
Government claims its possession and has given MHADA actual
possession though some formalities were not completed. The case of
the plaintiffs fall in the category of encroachers who have encroached
upon some portion of the land and the plaintiffs have no documents or
any other evidence to show their actual physical continuous possession
for 30 years of the entire suit land. Besides Exhibit 6, which is the
agreement between private parties of the year 1949 and 1955, no
document is produced showing actual possession prior to 1970.
Tahsildar gave notice on 9th April, 1970 (Exhibit 9) for unauthorized
cultivation of grass and stated that it is an encroachment since 1956.
Besides this, all the documents are of 1978 and thereafter.
45. The learned senior counsel Mr. Setalvad for the appellants, on the
point of adverse possession and the right of the owner who is having the
title in the land, placed more reliance on the judgment of the Full Bench
of Supreme Court in the case of Gurbinder Singh (supra). He submitted
that in the said judgment, the Hon'ble Supreme Court held that when a
defendant in possession of the property is sued by a person who has title
to it but is out of possession, what he has to show in defence is that he or
any one through whom he claims has been in possession for more than
the statutory period. He submitted that today plaintiff no. 2 is in
possession of the suit land since long and if the respondent/MHADA
wants the possession back, it has to file a suit for possession. However,
MHADA chose not to file a suit for possession since so many years
atleast from the year 1979 till today and therefore, any claim of MHADA is
hereafter time barred. These arguments are fallacious. The facts and
law laid down in the case of Gurbinder Singh (supra) cannot be
stretched to apply to the facts of the present case. In the case of
Gurbinder Singh, there was a dispute between the private parties and
the Supreme Court had to consider whether under Article 144 of the
Limitation Act the suit is barred by time and what was the starting point of
limitation set out in Column 3 of Article 144 of the Limitation Act of 1908.
In the said ruling, the status of an independent trespasser and whether
the possession can be tacked on in respect of independent trespasser to
constitute adverse possession for required period was the issue dealt
with. In the case in hand, the Government was already in possession of
the suit premises and the Government has acquired the land including
the suit land from its true owners by paying compensation. This fact
cannot be dislodged and ignored by the Court. From the facts, it appears
that the Government never lost its possession against the plaintiffs, who
were encroachers on the Government land and it was continuously
objected to, interfered with and thus was never peaceful and continuous.
Hence, there was no need for the Government to file a suit for
possession against the plaintiffs . The Government was restricted from
ousting the plaintiffs by the order of the Court in the year 1979 since the
suit was filed.
46. A person who claims adverse possession has to show the
exclusion of the possession of the owner. In the present case, the
Government was throughout in the possession, however, the appellants
oft and on might have been in possession of some portion of land by way
of encroachment, but the Government did not lose its possession. To
claim adverse possession, it is necessary to establish that the
Government was excluded from the possession. The suit land is an open
Government 'Gurcharan' land' (cattle grazing land). Under section 20 of
the Maharashtra Land Revenue Code it belongs to the Government.
However, under section 22 of the Code, it can be used by the people but
the Collector has right to preserve that land for specific purpose and can
impose penalty for encroachment or unauthorized use of the same. In
the present case, no exclusion of the Government was proved at any
time.
47. In the present case, the learned senior counsel for the appellants/
defendants rightly pointed out that neither MHADA nor State of
Maharashtra tendered documentary evidence on the point of acquisition,
except only one document Exhibit 18, i.e. the order passed by the Civil
Judge, Thane dated 30th
November, 1953. In the present case, the
learned trial Judge of the City Civil Court in the impugned judgment in
paragraph 16 has considered three documents - (i) award under section
11 of the Land Acquisition Act; (ii) order passed by the Civil Judge, Thane
on 30th November, 1953; and (iii) the resolution of the Government dated
1
st October, 1979. However, the learned senior counsel Mr. Setalvad has
objected that two documents, i.e. award under section 11 of Land
Acquisition Act and resolution of the Government dated 1st October, 1979
were never produced before the Court and therefore, these two
documents ought not to have been referred or relied by the learned trial
Judge. However, the order passed by the Civil Judge, Thane dated 30th
November, 1953 (Exhibit 18) is the order of the Court which can be relied
fully on the point of the findings and contents therein.
48. It is true that in fact the award was produced. However, the learned
trial Judge did not exhibit the said document. May be by mistake.
Therefore, I also cannot rely on the said document. The award is the
direct evidence on the point of acquisition. However, the fact of
acquisition can be proved by indirect but other concrete documentary
evidence. The defendants produced a very important document, i.e., the
judgment of the Civil Court in group of Reference matters in the land
acquisition cases bearing no. 49 of 1957 & Ors. The said judgment is the
certified copy of the Civil Court and marked as Exhibit 21. The contents
in the said judgment can be very well read in the evidence and on the
basis of the order passed therein, the facts of acquisition, compensation
and existence of real owners are satisfactorily established by the
defendants. The Reference under section 18 was filed because there
was acquisition of lands. In the absence of acquisition and award by the
Government, there would not have been payment of compensation and
no reference would have been filed by the owners of the land. It is to be
noted that the judgment passed by the Civil Court is elaborate touching
all the aspects of acquisition. The list of the acquired land is also
mentioned in paragraph 2 of the said judgment. Survey numbers which
is the subject matter of this suit are also the numbers of those suit lands
and are mentioned in the list. Thus, it shows that the claimants, who
were the real owners of the lands have received compensation and as
the Civil Court has accepted that after acquisition, the possession and
title of the land vests in the Government. Thus, it shows that the true
owners came forward when their lands were acquired and they were
dispossessed of the lands. The plaintiffs did not come forward and did
not file any claim. The submissions of learned senior counsel for the
appellants that the defendants could not prove the acquisition of the land
and possession taken by the Government at the time of acquisition thus
cannot be accepted.
49. A criminal case No. 535 of 1969 in State of Maharashtra vs.
Gangaram Gangu, one more and Shivram Shinde was filed and it was in
respect of theft of para grass in the year 1969, i.e., on plot no. 30B Meeta
nagar Colony, Goregaon under section 179 of the Indian Penal Code.
The incident had taken place on 2nd January, 1969 at around 8 a.m. In
the said criminal trial, Shivram and other two persons were acquitted.
The Presidency Magistrate in the judgment has mentioned that the
appellant appears to be in possession of the plot no. 30B. The learned
senior counsel tried to capitalize this finding of the Presidency Magistrate
in favour of the appellant. After going through the said judgment, it is
found that FIR was given by the watchman of MHADA, who was
appointed by MHADA to protect the lands which includes suit land. He
caught these three persons when they were cutting para grass. It is to be
noted that it was not a suit for title or possession but it was a criminal
case about the theft. In the judgment the trial Court has stated that
whether it was a para grass or not or whether plot no. 30B belonged to
MHADA or not could not be proved and so these persons were acquitted.
On the contrary, this shows that the so-called possession of the appellant
was neither peaceful nor continuous. MHADA has appointed a
watchmen to take care of the property since 1969.
50. Certain documents produced by the plaintiffs are required to be
assessed. In the letter written by Shivram Shinde to Tahsildar on 20th
January, 1978 (Exhibit 10), he has mentioned that the names of different
persons are shown in the piece of land in the revenue record. In 1953-54
MHADA's name was mentioned. Pursuant to the complaint, the
statement of Shivram was recorded on 4th April, 1978 by Talati (Exhibit
11). The contents in the letter reveals that he has stated that he did not
get compensation at the time of acquisition. This shows that he himself
was aware of the acquisition and if at all he did not receive the
compensation, why he did not challenge the award as other owners did?
Thus it can be safely inferred that at the most he has encroached
intermittently on some portions of the suit land which is not sufficient
evidence to prove adverse possession. This shows that his claim of
adverse possession was inconsistent and interfered with and not
peaceful. In the said letter he has mentioned that he has been cultivating
para grass on the land and money for cultivation was paid by Devraj
Gundecha. Thus, it appears that he was cultivating para grass for
Gundecha in the year 1978. Exhibit 12 is the Supplementary Agreement
of Sale dated 11th April, 1978 between Shivram Shinde and Devraj
Gundecha. Earlier by an Agreement dated 20th April, 1955 Shivram
Shinde has given the possession of 11 acres of land to Gundecha and by
this Supplementary Agreement, remaining 16 acres and odd land was
given to him. The Agreement shows that the vendee was put in sole and
absolute possession of the land on 26th August, 1979.
51. According to the plaintiff, the suit was filed by Shivram Shinde for
adverse possession on 13th March, 1979 and 5-6 months thereafter he
handed over the possession to Gundecha. Immediately in the year 1979-
80, Gundecha did not apply to implead himself as a party-plaintiff, but
plaintiff no. 2 Gundecha joined suit in the year 1998. Thus, from August
1979 till 1998 in fact the plaintiff who claimed adverse possession was
not in possession of the suit land and in fact even if plaintiff's case is
taken as it is, he has lost the cause of action in respect of so called 11
acres of unidentified land in the year 1955 itself.
52. The learned counsel has referred to 60:40 policy where a person
claims adverse possession against the Government, 60% is kept by the
Government and 40% is offered to the transferee who is in possession of
the property. In present case, such talks were going on and the officer of
the MHADA has sent letters to these appellants and the learned counsel,
therefore, submitted that there is an option open for the Government to
give him 40% land. The learned senior counsel Ms. Anklesaria has
denied that such policy can be offered to the appellants. She submitted
that the appellant does not deserve to get any portion of the land of the
Government and even though some correspondence was made by some
officers in MHADA, ultimately the Government has closed such offer.
53. It appears from the submissions of learned senior counsel Ms.
Anklesaria that the Government is not interested in giving any offer to the
appellant and the Government denies his claim of adverse possession
and claims full land, as the Government has already acquired and is in
possession of the entire land.
54. Thus, considering this legal position and the evidence in this case, I
am of the view that the appellants have failed to prove their case. The
judgment of the trial Court is hereby maintained. First Appeal is
dismissed with costs.
55. It is to be noted that in the pending Appeal, four to five parties have
filed applications and out of them, Ayub Mohd. Aamir Shaikh appears to
be a slum lord and many huts are constructed therein. Those structures
are scattered. Therefore, nobody knows when these structures were
constructed. Thus, it is evident that the appellants were not in
possession of the entire land when they filed the suit. Some structures
were censused in the year 1976-77. A commissioner was appointed by
the City Civil Court in Suit No. 1678 of 2008 which was filed by Kusum
Shivram Shinde against Anwar Hussein Baba Miya Dafedar & Ors.
Some temporary structures are created in some portion of the suit land.
It is to be noted that this is a huge Government land which the
Government has handed over to MHADA for construction of houses for
lower and middle income group. So, this land is going to be used for
public purpose. It is not physically possible for the Government to
supervise the suit land especially in Mumbai when the land is
aggressively encroached by the people due to over population. A judicial
note is taken that in case of Government land for which some scheme is
launched for the public cause, it is stalled immediately either by the slum
lords or by the encroachers by approaching the Court and by
manipulating the facts and documents. These attempts are required to
be defeated, otherwise public cause gets frustrated and the land is
grabbed by encroachers illegally only on the basis of muscle power. To
preserve the land of the government for public cause for which it is
reserved, is the duty of the Court to uphold the Rule of Law. Therefore, I
am of the view that the suit filed by the appellants is entirely bogus,
malafide and false with the only intention to grab the land with the help of
some Government employees which ought not to be allowed. It is only
possible by imposing exemplary costs on appellant no.2, considering the
damage to the public cause and State wealth. For this, I rely on the
judgment of the Supreme Court in the case of Shanmugam vs. Ariya
Kshatriay Rajakula Vamsathu Madalaya Nandhavana Paripalanai
Sangam (supra). Accordingly, the costs of Rs.1,00,00,000/- (Rupees
One crore only) is imposed on appellant No.2 M/s.Gundecha Builders,
which shall be paid to MHADA, within a period of four weeks from today.
Civil Application No. 3962 of 2006
56. The applicants Jhanbhumi Cooperative Housing Society Ltd. has
made this application to allow the applicants to intervene in this Appeal
and direct the respondent no. 3/Gundecha Builders and respondent no.
4/State of Maharashtra to modify the order dated 21st December, 2004.
57. On 21st December, 2004. this Court granted injunction against the
original respondent not to restrict the plaintiffs from entering and using
the suit land, so also not to carry out any development. The applicants
are a Cooperative Housing Society representing 350 members having
their huts on the suit land and they have been residing there. They
formed this Housing Society and they want it to be declared as a slum
colony. So, they approached the State Government for the same,
however, the Collector by a letter dated 7th June, 2005 informed that their
scheme cannot be considered in view of the order of injunction granted
by the High Court in favour of the appellants.
58. The applicants cannot be impleaded as party to the proceedings,
as the applicants have no locus. Hence the Civil Application is
dismissed.
Civil Application No. 44 of 2008
59. This Application is filed by Dynamic Cooperative Housing Society
(Proposed). It represents 380 hutment dwellers who are occupying
5013.44 sq. mtrs, CTS No. 50A (Part) and it is contended that their
property is known as Old Hanuman Nagar, Teen Dongree. It is declared
as slum in Government Gazette dated 13th October, 1977. They moved
an application for declaration as slum colony, however, nothing is done
by the Government.
60. The applicants are neither necessary nor proper parties in the
original suit to determine the issues therein and, therefore, Civil
Application is dismissed.
Civil Application no. 2163 of 2013
61. This Application is filed by MHADA against the plaintiffs for seeking
permission to clear properties on suit land which are illegally encroached
by slum dwellers and evict them in accordance with law and permit
MHADA to utilize the vacated land for public purpose.
62. As the Appeal is dismissed, MHADA is free to carry on the activity
for public purpose. Civil Application is allowed.
Civil Application No. 4678 of 2013
63. This Application is moved by Ayub Mohd. Amir Shaikh praying that
he is proper and necessary party and therefore, he be allowed to
intervene in the Appeal. He learnt that respondent/MHADA are in the
process of distributing the suit property with the appellants in the ratio of
60:40 and he claims that he is the owner of the property bearing S.No.
29, CTS No, 1 Part, CTS No. 2 Part, CTS No. 50, CTS No. 50/1 to 149 at
Village Goregaon Pahadi admeasuring 27 acrs and 12 ½ gunthas since
2004. He submitted that he has filed Suit No. 293 of 2013 in the High
Court in respect of suit property. This applicant was not party to the suit.
He claims that he has filed separate suit No. 239 of 2013 and on 8th
October, 2013, this Court has directed that whatever construction of the
applicant is standing on the land, the defendants in that suit were
restrained from demolishing the same without due process of law. Under
such circumstances, the Application is rejected especially in view of the
fact that he has not told from whom he has purchased the land and also
because of the finding of this Court that MHADA is the owner of the suit
land and has title and possession over the suit land through the
Government.
64. Civil Application is dismissed.
Civil Application No. 4436 of 2013
65. 151 applicants have filed this application that they be allowed to
intervene the matter as the party respondents in First Appeal. According
to them, Ayub Mohd. Aamir Shaikh is the owner of the property and he is
a landlord. From this, it appears that Ayub Mohd. Aamir Shaikh is a slum
lord. The applicant is neither a proper nor a necessary party to determine
the issues in this suit upon his mere claim of ownership without
particulars. Hence, this Application is not required to be entertained.
Hence, Civil Application is dismissed.
Civil Application (St.) No. 24273 of 2015
66. This application is filed by Kusum Shivram Shinde, Dhanesh
Shinde, partner of Gundecha Builders and Paras Devraj Gundecha
against MHADA and it is prayed to direct the respondents to consdier the
applicants' proposal for settlement submitted by them pursuant to
Architect's letter dated 7th November, 2008.
67. The learned senior counsel for the appellants has pointed out and
referred to a letter of their counsel dated 17th September, 2001 written to
Chief Officer, MHADA regarding the proposal of 60:40 and their
willingness to accept 60:40 formula with some conditions.
68. This issue is already dealt with in the main appeal. Hence, the
Civil application is dismissed.
Civil Application No. 126 of 2015
69. This Application is filed by Anwar Hussein Baba Miya Dafedar. He
has submitted that he is in possession of a structure admeasuring 25.20
sq. mtrs. bearing census no. 170(10), Id. no. 68LHS given by MMRDS
and so he be made party to the proceedings. It is submitted that a Court
Commissioner was appointed and his report dated 14th October, 2008
was submitted and the existence of his structure is shown in the Court
Commissioner's report.
70. The applicant is not a necessary or proper party to determine the
issues in the above suit merely by virtue of having a structure on the suit
land. Therefore, the Application is rejected.
Civil Application no. 221 of 2013
71. This Application is filed by the applicant Kusum Shivram Shinde
praying for temporary injunction restraining respondent nos. 1 and 2 and
their employees/servants including security guard from distributing the
appellant's possession on the entire suit land and also digging work and
carrying out construction. Thus, this Application is mainly for directing the
defendants not to deploy security guards.
72. In the Application, the applicant has referred to the injunction
granted by this Court on 21st December, 2004 in Civil Application no.
4061 of 2004 and also the earlier interim order passed in Suit No. 1357 of
1979 on 26th April, 1979 by the City Civil Court and same was continued
by an order dated 21st December, 2004. It appears that in between,
MHADA deployed security guards to protect the property.
73. No order is required to be passed in this Application, as the Appeal
is disposed of. Hence, Civil Application is dismissed.
Contempt Petition No. 27 of 2013
74. This Contempt Petition was filed by the appellant/petitioner. A suit
was filed for adverse possession by the plaintiffs and as the plaintiffs
were in actual possession of the suit land, they prayed for injunction
against the defendants that they should not start any development
activities especially like filling the land or entering on the land. The
learned senior counsel submitted that MHADA was never put in
possession by the Government. The learned Judge of the City Civil
Court while allowing the motion of plaintiff no. 1, injuncted the defendants
by an order dated 26th April, 1979 in Notice of Motion No. 1188 of 1979
from entering the open land and to do other developmental activities. In
Civil Application No. 4061 of 2004 filed by the appellants, the learned
Single Judge of this Court, while admitting the appeal, by an order dated
21st December, 2004 granted injunction in terms of prayer clause (a).
Thereafter, pending Appeal, Civil Application No. 5670 of 2005 was filed
by MHADA for vacating the order dated 21st December, 2004. He relied
on the order passed by the High Court on 22nd December, 2006 in Civil
Application No. 1626 of 2006 for expeditious hearing of First Appeal. He
further submitted that as the persons from MHADA entered the land and
were carrying on the activity of levelling the land, the plaintiff filed another
Contempt Petition No. 131 of 2010 before the High Court in this Appeal.
In the said Petition, when MHADA and Government appeared before the
learned Single Judge of this Court, they gave undertaking to the Court
that they did not want to take possession. The said undertaking was
accepted by this Court and accordingly an order was passed on 25th
January, 2012. The learned Judge observed that no case is made out to
initiate action for contempt, as the undertaking is accepted that the
defendants did not want to take possession from the petitioners. It is
contended that thereafter, MHADA employed their security guards on the
land and violated the undertaking given before this Court. Therefore, the
petitioners are constrained to file second Contempt Petition No. 27 of
2013 against MHADA.
75. In the case of Bajranglal Gangadhar Khemka (supra), it was held
that when a party gives an undertaking to the Court which is accepted by
the Court, then it has a force of the order of the Court and breaking of
such undertaking amounts to willful disobedience of the Court's order.
76. This Contempt Petition is filed by the original plaintiffs against the
respondents that the respondents be sentenced to civil imprisonment for
six months for committing contempt - (i) by appointing security guards on
the northern side portion of the suit properties; (ii) temporarily preventing
the petitioners and their security guards and other persons claiming
through the petitioners from entering the northern side portion of the suit
properties; and (iii) taking steps to carry out development and
construction work on the northern side portion of the suit properties;
thereby violating the order passed by this Court on 21st December, 2004
in Civil Application No. 4061 of 2004.
77. The plaintiffs have filed Civil Application No. 4061 of 2004 in First
Appeal praying that the respondents be restrained by an order of
injunction from obstructing, disturbing or interferring in any manner with
the peaceful and quite possession and enjoyment of applicant no. 2, i.e.,
Gundecha Builders, of the suit properties. On this Application, this Court
by an order dated 21st December, 2004 passed an order as follows:
“In view of the facts and circumstances, the Application is
made absolute in terms of prayer clause (a). However, liberty
is granted to the respondents to move the Court for early
hearing, if they so wish.”
78. The learned senior counsel for the petitioners submitted that the
petitioners/plaintiffs were in possession of the suit land. Interim order
was already passed by the learned Judge of the City Civil Court on 27th
April, 1979. On the point of possession, he relied on paragraph 15 of the
said order of the City Civil Court. The learned Judge has held that mere
perusal of the extract from the record of rights would show that the name
of Housing Commissioner which was entered at one stage has been
deleted by pencil entered in respect of plot nos. 6 and 7 which is a part of
the suit land. The learned senior counsel highlighted a portion in the
order when counsel Mr. Pandit who is appearing for the respondent has
conceded before the Court that defendant no. 1, i.e., MHADA had not
been officially put in possession of the suit lands by virtue of any
resolution passed by the State Government. The learned senior counsel
submitted that a statement made by the counsel is to be accepted as true
and thus it shows that MHADA was never in possession of the suit land
and thus the plaintiffs were in possession of the suit land and as the
defendants have appointed their security guards and have entered on the
northern portion of land, have committed breach of the order of this
Court.
79. The learned senior counsel Ms. Anklesaria opposed this petition
and submitted that no contempt is committed of the order passed by this
Court. She submitted that plaintiffs/appellants had filed one more
Contempt Petition bearing no. 131 of 2010 which was decided by this
Court by its order dated 25th January, 2012. At that time, the State
Government has given a public notice claiming the ownership and has
directed to remove the encroachment on the property. She submitted
that this Court has held that the case was not made out to initiate action
against civil contempt under Contempt of Courts Act, 1971. So also, any
further relief of injunction which was prayed in the said application was
refused in contempt proceedings.
80. The fact that the land belongs to the Government is not disputed.
It is the case of the Government of acquisition of the suit land for MHADA
for construction of the houses for the people. Therefore, the Government
has handed over the land to MHADA. The meaning and import of the
statement made by the counsel Mr. Pandit for the defendant/respondent
as mentioned in paragraph 15 of the interim order passed by the City
Civil Court on 29th April, 1979 is not what it is projected by the plaintiffs.
The statement is made that defendant no. 1 had not been officially put in
possession of the suit lands by virtue of any resolution passed by the
State Government. It does not mean that MHADA was not put in
possession of the lands. The meaning is that the necessary notification
was not taken out to take the possession officially, but the State
Government has handed over the informal possession to MHADA as a
caretaker. In the said paragraph, Mr. Pandit has pointed out the contents
of the letter dated 29th January, 1976 which states that Housing
Commissioner of MHADA shall protect the lands (as if the lands belongs
to the Board) pending the final orders of the Government. Thus, it shows
that de facto MHADA was in possession of the suit lands. The order of
this Court was not to prevent, obstruct, disturb or interfere the possession
and enjoyment, if any, of the plaintiffs. The plaintiffs are seen to be
encroachers and thus, there is no such evidence to show that their
movements were obstructed by MHADA. The appointment of security
guards to protect the property cannot be labelled as wilfull disobedience
of the order. The ownership vests with MHADA and therefore, it was
necessary for MHADA to appoint the security guards to protect the
property from further encroachment. Thus, protection given to the lands
cannot be interpreted as obstruction caused to the encroachers in the
land which has already been encroached upon.
81. Under such circumstances, no case is made out for contempt of
the willful disobedience. Hence the Contempt Petition is rejected.
82. The learned Counsel for the appellants submits that the interim
injunction which was continued throughout right from 1979 till today, be
continued. However, the learned Counsel for the Respondents opposes
this prayer.
83. In the circumstances, as the interim injunction was granted earlier
by the trial Court and also continued by this Court, it is extended till
29.1.2016.
84. In the result, the First appeal and the Contempt Petition are
dismissed. Civil applications are also disposed for the reasoning given
above.
(MRS.MRIDULA BHATKAR, J.)
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 1424 OF 2004
WITH
CIVIL APPLICATION NO. 221 OF 2013 IN F.A. NO. 1424 OF 2004
Shivram Mahadev Shinde
Vs.
Maharashtra Housing & Area Development
Authority & Anr.
CORAM : MRS.MRIDULA BHATKAR, J.
PRONOUNCED ON : 23rd DECEMBER, 2015
Citation: 2016(2) ALLMR521
This Appeal is directed against the judgment and order dated 20th
September, 2004 passed by the learned Judge of the City Civil Court
thereby dismissing the Short Cause Suit No. 1357 of 1979. The original
plaintiff no. 1 Shivram Mahadev Shinde claiming adverse possession
against the Government, filed a suit for possession and injunction in
respect of land admeasuring 25 acres and 12.34 gunthas bearing Survey
no. 29 (Part), 30-C, 30-D, 41/1 (Part), 41/2, 41/3 and 41/4 (Part), 41-B/1,
42-B/2 and Plot Nos. 1 to 11-12 (Part) of private scheme No. “A” at
Village Pahadi, Goregaon Taluka, Borivali, Mumbai.
2. It is the case of the plaintiff no. 1/Shivram Shinde that he was in
possession of the suit land since 1944. He has entered into an
agreement with one Jagan Babu Thakur on 15th June, 1949 for cultivating
the land for two years, i.e., from 15th June, 1949 to 14th June, 1951
(Exhibit 6). On 9th April, 1970 Tahsildar of Village Pahadi issued notice
that in the year 1956 that the original plaintiff had encroached upon the
land and cultivated para grass. It is his case that panchnama was
conducted by Talati, which shows that the land was in possession of the
plaintiff/appellant, so he paid the penalty for that and continued to do so.
He entered into Sale Deed with plaintiff no. 2 in the year 1955 of the suit
land. It is also a case of the plaintiff no. 1 that he had lodged written
complaint to P.S.I. on 5thJanuary, 1979 against MHADA board and
Tahsildar. On 26th August, 1979 the appellant entered into an agreement
with one Devraj Gundecha/plaintiff no. 2 and sold the said land by
registered agreement of sale. Therefore, the plaintiff/appellant claimed
that he is in possession of the suit land without any interruption since last
more than 30 years and claimed declaration of title by way of adverse
possession and also injunction against the defendants. The written
statement was not filed by the State, but it was filed by
MHADA/defendant no. 1 who denied that the plaintiff no. 1 was in
possession of the land. All the averments made and contentions raised
by the plaintiff are denied by the defendants in the written statement. It is
contended that the State of Maharashtra is the owner of the land and has
acquired this land for MHADA for the purpose of constructing houses for
public. He submitted that the award was passed of the said land and
name of Government of Maharashtra and MHADA were entered in the
record of rights of the said land. It was further specifically denied that
appellant is having a hostile and open possession since last 30 years,
however, the Government has sent a notice in the year 1970 demanding
penalty for unauthorized occupation by the plaintiff. The fact of
possession of the entire land for 30 years is also denied. It is further
contended that the plaintiff is not cultivating para grass on the entire land
and the suit be dismissed.
3. After considering the pleadings in the plaint and the written
statement, the trial Court framed issues and gave findings as follows:
S.No. Issues Findings
1 Whether this Court has jurisdiction to
entertain and try the suit
This Court has
jurisdiction to try the suit.
2 Whether the plaintiffs prove that the suit
lands are in their possession openly,
continuously and adversely for 12 or
more years ?
Plaintiffs have failed to
prove that the suit lands
are in their possession
openly, adversely for 12
or more years.
3 Whether the order of the Tahsildar,
Borivali, dated 11.4.1979 in Case No.
RTS/WS/183 is not binding on the
plaintiffs?
Not proved, Plaintiffs
should have adopted
proper course.
4 Whether the plaintiffs are entitled to
claim Rs.5000/- together with interest
@ Rs.6% p.a. as damages from the
defendants
Plaintiff is not entitled to
any damages.
5 Whether the plaintiffs are entitled to
claim Rs.1080/- as loss of income or
profit for the period from January 1979
till the date of the suit together with
interest @ 6% p.a. of the amount?
Against plaintiff
6 Whether the plaintiffs are entitled to
menses profit from the date of the suit
till removal of earth dumped at the rate
of 500/- per month
Against plaintiff
7 Whether the plaintiff is entitled to Against plaintiff
declaration and injunction prayed for
8 What order and decree Suit is dismissed
4. The plaintiffs have examined one witness PW-1 Ramakant
Yashwant Desai. The original plaintiff Shivram Shinde was not alive
when the matter reached for evidence. So witness Mr. Desai, who
claimed to be present at the time of transactions by plaintiff no. 1 and the
actions taken by the plaintiff in respect of suit property, gave evidence.
The Government did not file written statement and did not examine any
witness. However, MHADA filed its written statement, cross-examined
the witness of the plaintiff and also examined witnesses D.W. Rajendra
Kotecha on their behalf. After considering the oral as well as
documentary evidence of both the parties, the trial Court answered the
issues as above. The trial Court dismissed the suit with costs. Being
aggrieved by the said judgment and order, this Appeal is filed.
5. The points of determination are - (i) Whether the appellants/original
plaintiffs have perfected title by adverse possession and entitled to reliefs
as prayed? (ii) Whether the learned trial Judge has erred in appreciating
evidence to decide plaintiffs' claim of adverse possession.
Submissions of the appellants
6. The learned counsel Mr. Setalvad for the appellants submitted that
the suit is for the adverse possession and the possession of the
appellants is in fact admitted by the Government. The appellant is in
possession of the suit premises since 1944. By notice dated 9th April,
1970, the Tahsildar demanded penalty from the appellants by showing
encroachment by them from 1956. The learned counsel submitted that
the appellants have adduced documentary evidence to show that the
appellants are in possession of the suit property at least from 15th June,
1949. He relied on the agreement entered into by the original plaintiff
Shivram Shinde with Jagan Babu Thakur dated 15th June, 1949 for
cultivation of para grass for a period of two years from 15th June, 1949 to
14th June, 1951 (Exhibit 6). He relied on Agreement of Sale dated 25th
April, 1955 (Exhibit 7) between Shivram Shinde and Devraj Gundecha for
11 acres of land. He further relied on judgment dated 11th September,
1959 in Case No. 535/P/1969 (Exhibit 8) which was given against the
plaintiff by the Court of Presidency Magistrate, 24th Court, Borivli. He
submitted that these documents establish that original plaintiff was in
possession of the suit premises at that relevant time. He further relied on
other documents, i.e., a letter of Tahsildar dated 9th April, 1970 (Exhibit 9)
for unauthorized cultivation of grass stating that there is encroachment
since 1956. He pointed out that original plaintiff Shivram Shinde sent
letter to Tahsildar, Borivali on 20th January 1978, which is marked at
Exhibit 10, very specifically claiming adverse possession. Thereafter on4th April, 1978 Tahsildar recorded the statement of Shivram Shinde which
is marked at Exhibit 11. Pursuant to that correspondence, a panchnama
of the spot was drawn on 11th April, 1978 (Exhibit 12). Thereafter on 11th
April, 1978 original plaintiff entered into Supplementary Agreement of 25
acres of the land by way of rectification of the earlier agreement dated
25th April, 1955 wherein the area of suit land was mentioned as 11 acres
(Exhibit 13). He further submitted that on 25th January, 1979 Shivram
Shinde/original plaintiff made written complaint to P.S.I. against MHADA
board and Tahsildar (Exhibit 14) and on 26th August, 1979 original plaintiff
entered into Agreement of Sale with Devraj Gundecha (Exhibit 15). He
submitted that all the agreements are registered on 26th September, 1979
and Power of Attorney was executed by Shivram Shinde in favour of
Gundecha Builders (Exhibit 16). He pointed out that Power of Attorney
(Exhibit 16) was signed by Ramakant Desai (PW-1) as witness and thus,
his evidence is authentic and supported by this document. Shivram
Shinde died in 1982 after filing of the suit. His death certificate dated 23rd
September, 1982 (Exhibit 17) is produced. After death of Shivram
Shinde, his minor son Dhanesh and wife were brought on record. The
learned senior counsel argued that no effective cross is taken on the
documents by the defendants. He submitted that Government was
aware that the plaintiff was in possession of the land and it was open,
hostile and continuous possession. The Government though relied on
number of documents especially on Section 4 notice and award under
Land Acquisition Act, no documentary evidence is produced by either by
Mhada or Government. The Government did not file written statement to
show that the Government was not interested in the property and was
fully aware that the plaintiff is having his long possession. The evidence
of plaintiff is uncontroverted by the defendants. Though it was claimed
that award was passed on 6th September, 1951 it was not placed on
record. He submitted that though it was contended in the written
statement and said on oath by the witness of the defendants that the
State has taken possession of the land at the time of acquisition, nothing
is placed on record to show physical or symbolic possession was taken
by MHADA. Moreover, actual physical possession is contemplated under
the acquisition. He further submitted that the learned Judge of the Trial
Court has committed an error in rejecting the case of the plaintiff on the
ground of adverse possession. The learned Judge did not properly
examine the documentary and oral evidence produced by the plaintiffs to
show that they are in hostile and continuous possession since 1944. The
defendants failed to produce documents in support of their claim of
acquisition and passing award, therefore, fact of acquisition should not
have been accepted by the trial Court.
7. Mr. Setalvad argued that when Contempt Petition No. 131 of 2010
was filed, settlement talks continued between the parties. The
Government has introduced a policy known as 60:40 policy, i.e., to offer
40% of the share to the occupants and use 60% for development by
MHADA. The petitioners have received a letter from the Chief Officer of
MHADA on 29th August, 2001. In response to that, the appellants sent
letter on 17th September, 2001. Another letter dated 18th October, 2001
was sent by MHADA. The letter dated 19th October, 2001 was sent by
the lawyer of plaintiff to MHADA showing the willingness to accept the
proposal. MHADA prepared an office note on 29th August, 2008 in
respect of settling the matter by availing of 60:40 policy. However,
thereafter the respondents committed contempt, as the talks were not
materialized and on 3rd December, 2012 a contempt notice was sent by
Chitnis Vaiti, lawyer of the petitioner. However, the said notice is not
replied by the respondents. As on today, the respondents did not deny
taking forceful possession of the northern portion of the property and
thus, they have committed clear contempt of Court. He relied on the
reply dated 8th March, 2013 filed by Vandana Georikar, Assistant Land
Manager MHADA. He submitted that affidavit filed by the respondents is
with complete impunity and contempt by the respondents is writ large and
obvious, so the consequence must follow.
8. The learned senior counsel Mr. Setalvad on the point of adverse
possession relied on the following decisions:
(i) Balwant Narayan Bhagde vs. M.D. Bhagwat & Ors.,
reported in (1976) 1 SCC 700.
(ii) Pralhad Singh & Ors. vs. Union of India & Ors., reported in
(2011) 5 SCC 386 on the point of acquisition of land and
passing award.
(iii) Bajranglal Gangadhar Khemka & Anr. vs. M/s. Kapurchand
Ltd., reported in 1951 Indian Law Reports 125 on the point
of contempt proceedings.
(iv) Bank of Baroda vs. Sadruddin Hasan Daya & Anr., reported
in (2004) 1 SCC 360 on the point of contempt.
Submissions of the respondents
9. The learned senior counsel Ms. Anklesaria appearing for MHADA
has submitted that it is a case of land grabbing by the builder Gundecha,
i.e. plaintiff no.2. She submitted that this builder is claiming suit land
illegally in the name of original plaintiff Shivram Shinde, who was
illiterate, poor person and was never in possession of a single guntha of
the suit land. It is a very peculiar modus operandi of this builder to claim
adverse possession of a huge Government land. She submitted that the
land which is shown as 25 acres and 12½ guntha is in fact much more,
i.e. upto 50 acres of land having market value of more than 500 crores.
The plaintiff was never having open, hostile & continuous possession of
Government land and the claim of the plaintiffs in the property by adverse
possession is false and not tenable in law. Though there was a
conveyance between Shivram Shinde and Gundecha in the year 1955
and thereafter in the year 1978, that is a bogus transaction. It was
claimed that Shivram Shinde, who is in actual possession of the suit
property, has transferred the land to Gundecha, and if it was so, how can
Shivram claim adverse possession from the Government when he was
not in possession of the suit land when he filed the suit and thereafter till
Gundecha was impleaded in 1998 as plaintiff no. 2. The suit is not filed
by Gundecha, i.e. plaintiff no. 2. She submitted that in Suit No. 1357 of
1979, Gundecha Builders were not party initially but they joined as a
party to the suit on 23rd August, 1998 and therefore, there are no
pleadings against Gundecha in the written statement filed by MHADA.
She submitted that this land of Government was “Gurcharan” land (cattle
grazing) and same fact is mentioned in the so-called agreement entered
into by Gundecha and Shivram Shinde. In the year 2009, Dhanesh, son
of Shivram Shinde attained majority and therefore, Deed of Affirmation
was executed by Gundecha and Dhanesh Shinde. This is a massive
fraud played by Gundecha on the Court. Shivram Shinde died and
thereafter Deed of Conveyance was executed on 13th February, 2008
between Kusum Shinde and Gundecha builders. She submitted that this
Agreement was admitted in rejoinder and therefore, it can be relied by the
Government. In the said agreement it is mentioned that it was a
“Government Gurcharan land” (cattle grazing). She argued that the
description of suit land is very vague and deliberately nothing specific is
mentioned in the suit. The portion of survey numbers are mentioned,
however, their areas are not mentioned. She submitted that assuming if
decree was to be passed, in whose favour could the decree have been
passed, as admittedly Shivram Shinde has sold and transferred the land
to Gundecha and Gundecha was not a plaintiff initially when title by
adverse possession was claimed. In support of her submissions, she
referred to section 6(a) of the Transfer of Property Act, which puts bar on
transfer, which in anticipation the person will acquire title. She submitted
that there is difference in permissive possession and adverse possession
and encroachment. Shivram Shinde may be encroacher for some portion
of the land but he was never in continuous, open and hostile possession
of the suit land. She argued that the plaintiff did not plead that he was in
actual physical possession of the suit land. In support of her submissions
on adverse possession, she relied on the judgment of the Hon'ble
Supreme Court in the case of Hemaji Waghaji Jat vs. Bhikhabhai
Khengarbhai Harijan & Ors., reported in AIR 2009 SC 103 in which the
Hon'ble Supreme Court has very heavily shunned the instances of such
land grabbing. From the date of entry of the person, the period for
adverse possession is required to be computed. In the present case, no
date of entry of the original plaintiff on the suit land is mentioned so there
is no such adverse possession. Thus, the period of necessary 30 years
of adverse possession is missing. She further submitted that Shivram
Shinde is no more and personal cause of action dies with the person.
She submitted that under section 20 of the Maharashtra Land
Revenue Code, all open lands belong to the Government. Therefore,
encroachment notice is given by Tahsildar under section 22 of the Code
and thereafter the plaintiff was charged with penalty for encroachment of
the land, which he was liable to pay for encroachment. She submitted
that grass cutting agreement (Exhibit 6) was only for two years and it is
bogus. She submitted that on 27th September, 1986 the plaintiff wrote to
Government and demanded the land to be given to him on lease. The
learned counsel submitted that if such demand is made, then the claim of
adverse possession is destroyed by the plaintiff himself. She argued that
name of Government and MHADA is shown on 7/12 extract. The
evidence of Ramakant Desai is doubtful. She submitted that
Shivram/original plaintiff was staying at Malad and hence it is not possible
for him to be in possession of a huge land of 25 acres situated at village
Pahadi. She further submitted that it is the plaintiff who has to prove his
case independently and weakness in the case of the defendant cannot be
used to prove the case of the plaintiff.
10. The learned senior counsel Ms. Anklesaria relied on the following
decisions:
(i) Gurudwara Sahib vs. Gram Panchayat Village Sirthala
delivered on 16th September, 2013 in Civil Appeal No. 8244
of 2013.
(ii) Amirchand Tulsiram Gupta vs. Vasant Dhanaji Patil,
reported in 1992 (2) Bom. C.R. 22.
(iii) Dharamarajan & Ors. vs. Valliammal & Ors. reported in AIR
2008 SC 850 on the point of adverse possession.
(iv) Chatti Konati Rao & Ors. vs. Palle Venkata Subba Rao,
reported in AIR 2011 SC 1480.
(v) Hemaji Waghaji Jat vs. Bhikhabhai Khengarbhai Harijan &
Ors., reported in AIR 2009 SC 103.
(vi) Union of India & Ors. vs. Vasavi Coop. Housing Society Ltd.
& Ors., reported in AIR 2014 SC 937.
(vii) Shanmugam vs. Ariya Kshatriay Rajakula Vamsathu
Madalaya Nandhavana Paripalanai Sangam, reported in
AIR 2012 SC 2010.
11. The learned senior counsel Ms. Anklesaria relying on the case of
Shanmugam has submitted that the Court would be fully justified if heavy
punitive costs will be imposed on the appellants for abuse of legal
process.
12. The learned senior counsel Mr. Setalvad, by way of reply, has
argued that the submissions of learned counsel that the possession
cannot be tacked on is incorrect. He relied on number of judgments:
(i) Full Bench judgment of the Supreme Court in the case of
Gurbinder Singh & Anr. vs. Lal Singh & Anr., reported in AIR
1965 SC 1553 (V 52 C 262).
(ii) Ram Piari vs. Budh Sen, reported in (1920) Volume XLIII
165 (Allahabad).
(iii) Rajasekaran & Ors. vs. Elumalai Goundan & Ors. reported
in (1976) 1 MLJ 1288.
(iv) Sajjad Husain vs. Qurban Ali Beg, reported in AIR 1926
Allahabad 697.
(v) Balkrishan vs. Satyaprakash & Ors., reported in (2001) 2
SCC 498.
(vi) Ramayya vs. Kotamma & Ors., reported in Indian Law
Report Reports Volume XLV 370.
13. In reply, he further argued that law of tacking on and breaking the
continuity of possession is totally different. The person who claims
adverse possession can get the benefit of the period of adverse
possession enjoyed by his predecessor and that period can be joined
and it is available to the person who claims adverse possession. On the
point of examination and appreciation of evidence, he relied on the
following decisions:
(i) State of UP cs. Nahar Singh (Dead) & Ors., reported in
(1998) 3 SCC 561. He relied on paragraphs 13 and 14 of
the said ruling.
(ii) The National Insurance Co. Ltd. vs. Dayanand Margeppa
Pedde, Prakash Dhanraj Soniminde and Sudhakar Baburao
Shinde, reported in 201 Vol. 112 (2) Bom. L.R. 0677.
The learned senior counsel Mr. Setalvad had vehemently argued that the
neither the Government nor MHADA tendered any documentary
evidence except one and thus the Court cannot look into the other
documents which are only produced by the defendants. So, the fact of
acquisition by Government is not at all proved. Hence, the judgment and
order of the trial Court be set aside and the Appeal be allowed and action
be taken as prayed in the Contempt Petition.
Reasoning – on Law
14. The first point formulated by me is in respect of proof of title by
adverse possession. The law of adverse possession branches out of the
law of limitation. Article 65 states that if the possession for immovable
property or any interest therein based on title is of 12 years, then the
possession of the defendant becomes adverse to the plaintiff. A title by
adverse possession can be prescribed also against the Government, so
the Government does not enjoy any immunity or privilege where the
adverse possession is claimed. However, some concession of longer
period of claiming adverse possession is given in favour of the
Government under Article 112 of the Limitation Act where the period of
limitation to run is for 30 years. In the corresponding Article 149 of the
Limitation Act of 1908 (old), it is made clear that the Article applies also
to Government like a private person. The concept of adverse possession
is borrowed from British Law. The common law recognizes the theory
earlier of “nullum tempus occurrit regi”, which means, no time affects the
Crown. The reason for this was that the State should not suffer for the
negligence of its officers or for their fraudulent hand-in-glove transactions
with the adverse party. However, common law fixed a period of 60 years
limitation in respect of suits on behalf of or against the Crown and the
same was adopted by the Indian Law under Article 149 (Old) and
subsequently by way of amendment period is reduced from 60 to 30
years under Article 112 (new). However, the reason for giving a longer
period to the Government when a party claims adverse possession is
obvious; because the Government is not one person but is a body of
persons taking decisions following procedural wrangles and moving like a
python who is very slow in its action. There is no dispute that adverse
possession must be proved for the whole period which is claimed. It
cannot be proved piecemeal. There must be proof as to the date, time
and manner in which the possession became open and adverse and the
owner is out of the possession. It is to be remembered that a person
pleading adverse possession cannot claim equity in his favour since he is
trying to defeat the rights of the true owner. The acquisition by adverse
possession is an exception to law of acquisition of title through lawful
means and therefore, it is to be pleaded with certainty and to be proved
to the hilt. Thus, for the claim of adverse possession, a person should be
in continuous, exclusive, open and peaceful possession for 12 years
when he claims against the private parties and for 30 years, when he
claims against the Government.
15. In the case of Hemaji Waghaji Jat (supra) the Hon'ble Supreme
Court while dealing with the issue of adverse possession under Articles
64 and 65 of the Limitation Act has expressed that there is urgent need of
a fresh look regarding the law on adverse possession and they have
recommended the Union of India to seriously consider and make suitable
changes in the law of adverse possession. The Division Bench has
expressed that the law as it exists is extremely harsh for the true owner
and a windfall for a dishonest person who has illegally taken possession
of the property of the true owner.
16. In the case of Union of India & Ors. vs. Vasavi Coop. Housing
Society Ltd. (supra), the Hon'ble Supreme Court held “It is trite law that,
in a suit for declaration of title, burden always lies on the plaintiff to make
out and establish a clear case for granting such a declaration and the
weakness, if any, of the case set up by the defendants would not be a
ground to grant relief to the plaintiff.”
17. In the case of Shanmugam (supra), a watchman claimed title by
adverse possession over one “Dharamshala”. The Hon'ble Supreme
Court held that only by obtaining ration card and the house tax receipts,
the appellant cannot strengthen his claim of adverse possession. The
Division Bench laid down that certain facts are to be established by the
person who claims possession; the date of entry into possession, how he
came into possession, who is in possession of the titled documents so
also the subsequent conduct are to be answered.
18. In the case of Balwant Narayan Bhagde (supra), the mode of
taking possession of the land under sections 16 and 17(1) of Land
Acquisition Act, 1894 was discussed. The Hon'ble Supreme Court made
distinction between symbolical possession and delivery of actual
possession. It was held that taking possession under section 16 and 17
means taking possession on the spot and it is neither possession on
paper nor symbolical possession which is understood in civil law. It can
be in the form of a declaration by beat of drum or by a written declaration.
As to the mode of taking possession, the act is silent. In the case in
hand, the case of the defendant is that the land was acquired by the
Government and the possession was handed over to MHADA along with
a huge land of 203 acres. Therefore, the acquisition of the said land can
be proved by presenting the award before the Court. In the present case,
the acquisition of the land is not challenged by the persons from whom
the land was acquired. Moreover, a bigger portion of the land is acquired
by the Government. Here, the facts on which the claim of adverse
possession is made are entirely different.
19. In the case of Prahlad Singh (supra) the Hon'ble Supreme Court
has held that panchnama is to be prepared in the presence of
independent witnesses and signature is to be obtained on panchnama.
Until the actual possession is not taken, legal presumption of vesting
cannot be raised. However, the Hon'ble Supreme Court in the said case
held that no hard and fast rule can be laid down as to what act would be
sufficient to taking of possession.
20. In the case of Gurudwara Sahib (supra), the Hon'ble Supreme
Court held that if the plaintiff is found in adverse possession, he cannot
seek declaration to that effect that such adverse possession has matured
in ownership. The adverse possession can be used as a shield or
defence.
21. In the case of Amirchand Tulsiram Gupta (supra), the Division
Bench of Bombay High Court while dealing with Article 65 of the
Limitation Act of adverse possession, held that it is necessary for the
party claiming adverse possession to set out the dates from which the
parties started claiming adversely to the other party.
22. In the case of Dharamarajan (supra) the Hon'ble Supreme Court
has taken a view that in the absence of any revenue record, there is no
question of title over the land and the claim of adverse possession on the
suit property by the plaintiff fail.
23. In the case of Balkrishan (supra), the appellant who is the original
plaintiff had filed the suit for declaration of his title on the ground of
adverse possession. The appellant had purchased the land from two
persons in the year 1960 and the suit land was under attachment by
orders of the Tahsildar. Interalia, the suit property was auctioned and one
Mr. Mohan Singh had purchased it in the name of his minor son Rajendra
Singh. Thereafter Rajendra Singh through his father filed an application
under the Land Revenue Code against the appellant for restoration of
possession. So, the suit was filed by the appellant for declaration. The
suit was dismissed on the ground that the sale was not valid. In the year
1970 Tahsildar ordered the appellant to put the heir of Mohan Singh in
possession of the suit land. The said order was challenged before the
SDO. The suit was filed for declaration. The trial Court found that the
appellant was in continuous possession of the suit land and perfected his
title by adverse possession, therefore, the suit was decreed. The appeal
was dismissed by the District Judge. The Second Appeal preferred by
the respondents was allowed rejecting the claim of adverse possession,
hence Civil Appeal was filed before the Hon'ble Supreme Court.
The question before the Hon'ble Supreme Court was when the
order of Tahsildar to deliver the possession of the suit land was passed
against the appellant, whether appellant had perfected his title by
adverse possession. The Hon'ble Supreme Court stated that the
claimant had to show that his possession is adequate in continuity, in
publicity and in extent. The Hon'ble Supreme Court held that though the
Tahsildar had passed the order and if that order is not acted upon or
executed, the appellant continued in possession of the suit land and,
therefore, the continuity of his possession was neither interrupted, nor
lost. Mere passing of an order of ejectment against a person claiming to
be in adverse possession neither causes his dispossession, nor
discontinuation of his possession which alone breaks the continuity of
possession. The facts of the present case are entirely different. In the
case of Balkrishna there was an attachment order running against the
appellants. In the present case, the award was passed and lands were
acquired from the previous land owners during the period which is
claimed. Moreover, the plaintiff no. 1 could not prove his continuous,
peaceful, hostile possession over the suit land.
24. In the case of Ramayya (supra) it is held that there was continuity
of possession, the person holding possession being the next presumptive
heir of the deceased. Such adverse possession in succession if
continuous and without break, would bar the true owner under article 142
of the Limitation Act.
25. Nahar Singh (supra) case was in respect of explaining the delay in
filing the FIR. In the said case, it is stated that in the absence of crossexaminatin
on the explanation of delay, the evidence of PW-1 remained
unchallenged and it should have been believed by the Court.
26. Thus a person who claims adverse possession against a private
person and the Government has to establish his claim by adducing
sufficient evidence on the point that he was enjoying continuous,
uninterrupted, peaceful possession for a period of 12 and 30 years
respectively. Thus, the adverse possession is not a pure question of law
but blended with facts. On this background, as First Appeal is a
continuation of the suit, the documentary as well as oral evidence
adduced by the plaintiffs as well as the defendants is required to be
looked into.
27. This is a civil trial. A document needs to be proved as per the
procedure laid down in the Evidence Act. On mere presentation of the
document, it never gets proved except upon some exceptions under the
law. In the case of Dayanand Margeppa Pedde (supra), while dealing
with the issue of compensation and proof of insurance policy, the Division
Bench held that “Mere production of the policy without getting it admitted
in evidence in accordance with law would not enable the Insurance
Company to place any reliance on it.” A person who relies on it has to
prove the contents therein. Unless the contents in the documents are
proved, it cannot be admitted and read in the evidence. In admitting or
exhibiting the document, parties are made aware that the court is going to
take into account the contents therein for the purpose of determining the
issues before the Court. It is a responsibility of the Court while accepting
the document in the evidence, i.e., admitting the same in the evidence, to
exhibit it so that the evidence is identified. Thus, the parties are aware
that they must meet that evidence. This basic procedure of proving the
documents thus ensures fair trial to the parties. No strict proof of the
facts is required in civil trial. On the basis of preponderance of
probabilities which are brought before the Court, the parties can prove
their assertions. However, a party who asserts a case has to prove it. In
a civil suit also, the initial burden is on the plaintiff and never on the
defendants but onus shifts after plaintiff discharges his burden to prove
his case and then the defendants' evidence can be looked into.
28. The law on claim by way of tacking on the period of adverse
possession enjoyed by his predecessor against the real owner is settled.
The submissions of learned senior counsel for the respondents are not
acceptable to that extent. In the case of Gurbinder Singh (supra) the
Supreme Court had an opportunity to deal with Article 144 and Section
2(4) of the Limitation Act, 1908. The said case was a case of one
trespasser trespassing against another trespasser and there is no
connection between the two, therefore, in law, their possession could not
be tacked on to one another. The Hon'ble Supreme Court held that the
burden is on the defendant to establish that he was in adverse
possession for 12 years before the date of the suit and for computation of
this period, he can avail of the adverse possession of any person or
persons through whom he claims but not the adverse possession of
independent trespassers. In the said case, though the Hon'ble Supreme
Court dismissed the Appeal, it held that tacking on period from earlier
trespasser is permissible in law.
29. In the case of Ram Piari (supra) the Allahabad High Court held
that “a person who is in possession of land without title has, while he
continues in possession and before the statutory period has elapsed, a
transmissible and inheritable interest in the property, but that interest is
liable at any moment to be defeated by the entry of the rightful owner and
if such person is succeeded in possession by one claiming through him
who holds till the expiration of the statutory period, such a successor has
then as good a right to the possession as if he himself had occupied for
the whole period.” (Halsbury's Laws of England, Vol. 19, p.157).
30. In the case of Rajasekaran (supra), the appellants were the
owners of the suit land. The respondents/defendants claimed adverse
possession. The appellants' case was that the defendants were
independent trespassers and that a trespasser could not tack on the
previous adverse possession of an earlier trespasser. It was held that
the defendants are entitled to tack on the period of adverse possession of
the person through whom they derived title and thus, they can prove
adverse possession over the statutory period.
31. In the case of Sajjad Husain (supra) it is said that tacking of the
periods of possession by two successive trespassers is permissible when
one derives title from the other.
32. Therefore, Gundecha, as per the case of the plaintiffs, got actual
possession in the year 1955 of some portion of the suit land. So they are
entitled to claim possession since 1944 claimed by their predecessor
Shivram Shinde as they have stepped in the shoes of Shivram Shinde if it
is proved accordingly. However, on facts, plaintiffs Shivram Shinde and
Gundechas both have miserably failed for want of cogent, credible
evidence to establish 12 or 30 years continuous, peaceful open
possession. If this is the case of the plaintiff, then Shivram Shinde, who
filed the suit in the year 1979, in fact cannot claim adverse possession
against the Government because as per his case, he had lost the
possession of the part of the suit land , i.e., 11 acres of the suit land in the
year 1955 and thereafter in the year 1978. As per the case of the
plaintiff, Shivram Shinde had given possession of the 11 acres of the suit
land to Gundecha in the year 1955. Thus, Shivram Shinde who claimed
adverse possession was not in possession of the entire suit land for 12
years or more than that. He claims the starting point of possession in the
year 1944. Since then if it is calculated and his case is accepted as it is,
he had handed over the possession of the 11 acres out of entire suit land
in the year 1955 to Gundecha. Gundechas were impleaded in the suit in
the year 1998 so they are not plaintiffs who filed the suit. In fact as per
Shivram Shinde's case in the plaint he had handed over the possession
to Gundecha in the year 1955, he has lost the actual possession as per
his case. The said portion of 11 acres of land is also not identifiable and
not shown as measured and marked separately. This is the first and
basic flaw in the claim of adverse possession. Thus, no cause of action
was available to Shivram Shinde based on adverse possession. He was
a material witness. Gundechas are entitled to claim the benefit of years
for which plaintiff no.1/ Shivram Shinde was in possession of the suit land
adverse to the title of the owner. However, plaintiff no. 2/Gundecha who
should have stepped in the box, did not do so. The evidence of plaintiffs,
i.e., Shivram Shinde or Gundechas cannot be substituted by Ramakant
Desai.
On witnesses
33. In the present suit, both the parties have tendered evidence of one
witness each. One Ramakant Desai was examined by the plaintiffs and
Rajendra Kotecha by the defendants. Let me discuss the evidence of
Ramakant Yashwant Desai. He has stated that he is residing at
Goregaon (West), i.e., the premises belonging to Housing Board. He
was working as a Clerk in the Police Department since 1945. He stated
that he knew the original plaintiff-Shivram since 1948 through one friend
Joseph Gulban and Joseph was a common friend of Shivram and the
witness. This is how they became friends in the year 1948. Shivram was
residing at Malad and he was cultivating para grass near Goregaon on
several plots, admeasuring 25 acres and 12.3/4 gunthas. Then he
pointed out a plan which is marked as Annexure-I and he identified the
boundaries. Annexure-I is a paper plan which is drawn by City Survey
officer. There is a marking of red line made by a person who drew the
plan. Nothing can be proved on the basis of Exhibit 5.
34. His evidence that the original plaintiff was cultivating and in
possession of the land since 1948 is merely an oral evidence except one
agreement of 1949, he has not produced or proved that fact. Any person
can come and stand in the box and depose in such a manner. It is
necessary that the family members of Shivram Shinde or legal heirs
should have produced some proof of cultivating of para grass, sale of the
para grass and the amount earned by him. Ramakant Desai deposed
that cultivation and possession was known to the concerned revenue
officers, i.e. Talathi and Tahsildar. That evidence has no value because
evidence of a person about the fact of knowledge of other person in
absence of any corrboration cannot be accepted. The corroboration
claimed is of Exhibit 9, a letter of demand of penalty. However, that is
only for encroachment for cultivating grass as an encroacher for some
years and not on complete possession. Rather the Tahsildar has
objected to it and interrupted the encroachment. Ramakant Desai stated
that Shivram was illiterate and he could only put his signature. Thus, it
shows that whatever correspondence was brought on record by Shivram
Shinde was not in fact done by him but it can be safely inferred that it was
done by present plaintiff nos. 2 Gundecha in the name of Shivram. His
evidence that Shivram Shinde used to take him to Talati's office and the
Talati used to question him about the possession and cultivation of grass
is a clever manipulation. He deposed that he knew everything what
Shinde did about the land. Such evidence can be given by any person
who is tutored, trained and planted as a witness. The witness makes a
statement on oath that Shivram has constructed several sheds and
chawls on the land. However, bare statement cannot be believed by the
Court unless financial capacity of Shivram Shinde is brought on record.
So also the census number of the structures could have been produced.
It is not shown that Shinde was financially so well off to construct such
chawls or sheds and manage a big property of minimum 25 acres.
proved. Desai speaks about agreement dated 15th June, 1949 with
Jaganbabu Thakur for cutting grass from 15th June, 1949 to 14th June,
1951 (Exhibit 6) which is a trump card of the plaintiffs. Desai claims that
he was present at the time of agreement and he also identified the thumb
impression of Jaganbabu Thakur who had put it in his presence and in
the presence of one witness Sakaram Joshi. The signature of Sakaram
is on the document and Desai's signature is not seen on the document.
As per the Evidence Act, the author of the document or the witnesses
before whom it is executed has to prove the document. Either Shivram
Shinde or Jaganbabu Thakur or Sakaram Joshi should have entered the
box. The best evidence is to be produced by the party. Whether
Sakharam Joshi or Jaganbabu Thakur was available at the time of
evidence is not brought on record. If at all Ramakant Desai was so close
to Shivram as stated by him, it was conspicuous to note that Shivram did
not obtain signature of Ramakant Desai as a witness on the said
agreement and also the agreement of sale of land in the year 1955. He
stated that the agreement was entered into on 25th April, 1955 and this
person was present throughout, however, he is not a witness to such an
important evidence, i.e. Agreement to sell the land. He has deposed that
he was aware that in 1968 Shivram Shinde started paying agricultural
assessment charges. He is also fully aware that Shinde was arrested on
2
nd January, 1969 at 8 a.m. for committing theft of grass on the land. He
remembered the date of judgment, i.e., 11th September, 1969 when
Shivram Shinde was acquitted. He knew that original plaintiff has
received Tahsildar's notice dated 9th April, 1970 regarding payment of
agricultural assessment charges. On 20th January, 1978 Shinde wrote a
letter to Tahsildar, Borivali in his presence. He identified the signature on
the said letter. At the time of recording of the statement of Shinde by the
Tahsildar, he was present. Again, when supplementary agreement dated
11th April, 1978 was made between Gundecha and Shivram Shinde, he
was present. On 5th January, 1979 original plaintiff filed a written
complaint against the State for illegally filling soil on his land. He is also
aware that Power of Attorney was executed by Shinde in favour of
Gundecha in 1979.
35. This cannot be considered as an evidence contemplated under the
Evidence Act which is to be believed and relied upon by a Judge. Under
Order 18 Rule 4 examination-in-chief of the witness shall be on affidavit
and copy thereof shall be supplied to the opposite party. However, it is
expected that the witness should state the true facts of whatever he has
witnessed. The present affidavit-in-chief is nothing but a copy of the
plaint. Desai is not the plaintiff. If this witness was present throughout at
the time of all important instances in respect of the suit land along with
Shivram, then in the plaint, Shivram Shinde ought to have mentioned
Desai's name as a witness. Nowhere in the plaint the name of this
witness is appearing. He did not sign as a witness to any document, i.e.
Agreement dated 15th June, 1949 between Shivram Shinde and
Jaganbabu Thakur (Exhibit C), Agreement of Sale dated 25th April, 1955
(Exhibit 5) between Shivram Shinde and Devraj Gundecha, judgment
dated 11th September, 1959 in Case No. 535/P/1969 (Exhibit 8), Tahsildar
recorded the statement of Shivram Shinde (Exhibit 11), a panchnama of
the spot was drawn on 11th April, 1978 (Exhibit 12). original plaintiff
entered into Supplementary Agreement on 11th April, 1978 (Exhibit 13),on
25th January, 1979 Shivram Shinde made written complaint to P.S.I.
against MHADA board and Tahsildar (Exhibit 14) and on 26th August,
1979 original plaintiff entered into Agreement of Sale with Devraj
Gundecha (Exhibit 15). Only Power of Attorney (Exhibit 16) is signed by
Ramakant Desai (PW-I) as a witness. Except this, nowhere name of
Ramakant Desai is appearing on any contemporaneous document.
Shivram Shinde died on 23rd September, 1982 and minor son of Shivram
Shinde was definitely 18 years old on 23rd September, 1982 when he was
brought on record.
36. These all statements and evidence of Ramakant Desai that he
was present at the time of all relevant agreements or transactions are
completely shadowed with dishonesty and falsity and have failed to
inspire confidence in the Court. His presence looks like a comet. This
witness is used for the only purpose of proving the so-called documents.
The document of 1949 to 1951 of cutting of para grass cannot be
believed because neither of the parties nor witness were examined. The
submissions of the learned senior counsel that when the evidence of
Ramakant Desai was recorded in the year 2002, the document was 30
years old and therefore, it is to be read in evidence under the
presumption of Section 90 is correct. A document can be taken on record
if it is 30 years old. Under Section 90 if the document is produced from
proper custody, the presumption exists about the execution and
attestation of that document. Such presumption is rebuttable. Moreover,
though execution and attestation is presumed, the truthfulness of the
contents therein is a matter of challenge and proof. The document of
1949 is proved only to the extent that it was entered into between the
parties. However, the contents therein cannot be believed as true
because of the false evidence of Mr. Ramakant Desai and the
inconsistent conduct of the plaintiffs. If such agreement of grass cutting
was entered into in the years 1949 to 1951, then further agreements or
any provision regarding grass cutting should have been produced or
brought on record. The case of the plaintiff was that throughout 30 years
he was cultivating para grass which is a special type of grass, then
obviously he must have entered into contracts of grass cutting for further
25 years. However, nothing is shown to that effect. Obviously, it is a
sham agreement to meet the requirement of the time to show starting
point of adverse possession. It is an eyewash.
37. The witness says that he was present at the time of all the
transactions pertaining to said land with Shivram Shinde. The
competency of this witness to give evidence in this matter is to be
questioned. Undoubtedly he is a puppet witness of present appellant no.
2. The presence of witness at all relevant times should be natural and
supported by corroboration and it should create confidence in the mind of
the Judge to accept his presence as natural. That is not the case.
38. It is the case of Ramakant Desai that Shivram Shinde wrote a
letter to Tahsildar on 20th January, 1978. In 1978 he claimed 35 years of
the enjoyment of the land and constructed several huts on it and he was
producing rice. There were paddy fields, however, he has not produced
any evidence to show that he was cultivating grass and paddy fields in all
25 acres of land. It is not possible for one person to cultivate and look
after 25 acres of land without the help of the labourers. If at all Shivram
Shinde was really cultivating the land and taking the crop of paddy, then it
was easily possible to produce documentary evidence to show sale of
paddy crop, accounts thereof, so also evidence of labourers/some
villagers. He has not produced any evidence of Shinde's financial
capacity to maintain such huge land. The letter dated 20th January, 1978
(Exhibit 10) is in fluent English and this cannot be written by Shivram
Shinde. Ramakant Desai deposed that he was present when Shivram
wrote letter to Tahsildar. He also mentioned that Shivram Shinde was
illiterate and he could only sign. If this was so, then he should have
stated who had written this letter for Shinde. Nothing is mentioned by
him and this shows that Shivram Shinde was definitely not the author of
this letter, but it is written by somebody else for Shivram Shinde and the
witness has no knowledge about it. The evidence of witness Desai is a
specimen of how the litigant abuses the process of law and can lie on
oath before the Court for his wrongful gain.
39. His deposition in the cross-examination that the recitals in the
affidavit are as per his memory cannot be believed. This witness was
working as a clerk in the Police department since 1945. He gave
evidence in the year 2002 when he was 80 years old. In the year 1948-
49 he was around 27 years of age. It is not acceptable that he could give
the dates of the agreements from 1949, so also the dates of letter,
complaint given by Shivram Shinde and the contents therein. In the
cross-examination, he stated that in 1958 he resigned from Government
service and was looking after the affairs of Shivram Shinde, Khaskar
Bros. Joseph and Ors., on renumeration, depending on the nature of
work. If this was true, why was his name not mentioned as a witness?
He was not given Power of Attorney by Shivram Shinde when he filed the
suit, as Shivram Shinde was illiterate. It was necessary for the legal heirs
of Shivram Shinde to come forward and give evidence for Shivram
Shinde. Similarly, plaintiff no. 2 also did not tender any evidence to show
that they were in possession of the suit land for more than 30 years, as
they stepped in the shoes of Shivram Shinde.
40. If evidence of Mr. Desai is accepted, then anybody can prove any
document by deposing that “though I cannot identify the signature or
thumb impression of the persons, I was present at the time of execution”
and the documents can be exhibited. Such evidence can be given,
however, it should be credible to inspire confidence in the mind of a
Judge which can be easily tested on the basis of other circumstances
and then only that document can be accepted as genuine. He has
deposed that he knew Devraj Gundecha who was a person referred in
the Agreement dated 25th April, 1955 (Exhibit 7). He admitted that he did
not know the office of Advocate Talathi and whatever he has deposed in
paragraph 13 that he used to visit the office of Advocate Talathi with
Shivram Shinde is incorrect. He stated that he did not know whether
Tahsildar has rejected Shinde's application for correction of record of
rights. He was given an opportunity to substantiate his evidence by some
documentary proof about his presence at the time of agreement or any
draft of the agreement corrected by him, however he could not.
41. I have no hesitation to state that to protect the property of the
State or the nation, is the responsibility of the Government. The
Government is a bundle of persons holding different posts with power
and authority. If one or two officers in the said system succumb to
different pressures or temptations or are totally inert and perform their
functions which are ex-facie contrary to the interest of the State or of the
nation, then those decisions or the correspondence or the omissions
should be weighed cautiously. Sometimes the power is used or unused
in such a skilful, flexible manner that no illegality can be seen on the
surface. However, after close scrutiny, if a Judge finds that it is against
the interest of the State, then the Judge needs to marshal evidence,
reading between the lines, to reach the truth, the whole truth, as for the
said purpose oath is administered to the witness by the Judge.
42. The learned senior counsel on the point of adverse possession
took support of the interim order passed by the learned Judge of the City
Civil Court at Exhibit 5 dated 27th April, 1979 and by that order, the relief
of injunction was granted in favour of the plaintiffs. However, it was an
interim order passed when the parties had not tendered evidence. Thus,
that cannot be given much importance when the oral as well as
documentary evidence is tendered by the parties and suit is dismissed on
merits.
43. The respondent/defendant MHADA examined one witness, namely,
Rajendra Kotecha, who was in employment of MHADA. He denied the
case of the plaintiffs totally on the point of possession, so also continuous
hostile possession. He gave evidence consistent with the contentions
raised in the written statement which was filed on 26th March, 1979 by
one Mr. A.B. Thakur, Executive Engineer of MHADA. No useful
admissions are sought in the cross-examination of the witness Rajendra
Kotecha. He was an Assistant Land Manager in MHADA. His evidence
was criticized further on the point that he had no personal knowledge in
respect of land as he joined MHADA in the year 1978. A witness may not
have a personal knowledge, as it is an act of semi-government
organization but he was competent to give evidence because of his post
and the job assigned to him. The record maintained by the office is
useful and authentic source of knowledge. He has stated that in the year
1948 MHADA/defendant no. 1 gave proposal for acquisition of vacant
land admeasuring total about 242 acres, which includes the suit lands
and the entire procedure of land acquisition was followed by the State of
Maharashtra for MHADA and award was passed in respect of the said
lands on 6th September, 1951. The physical possession was taken over
by the Government from the respective owners of the land during 1949 to
1951. The State Government also paid the compensation of nearly about
14 lakhs to these owners. Then these owners preferred Reference under
section 18 of the Act for enhancement. By the judgment dated 10th
November, 1953, the compensation amount was increased by learned
Civil Judge Senior Division, Thane. The certified copy of the said
judgment dated 30th November, 1953 is produced, which is marked as
Exhibit 21, in support of his evidence. He deposed that on or about 12th
October, 1955, as per the policy of the Government, MHADA gave back
possession to the Government, as MHADA did not have sufficient funds
to develop the land. However, in the year 1960, again these lands were
handed over by the Government to MHADA and the possession was also
given by the Government to the Housing Board to protect the suit land.
He has deposed that on this land, MHADA has taken the possession of
the suit land for development of their various housing schemes for public.
Some huts and structures were found in the year 1976 and they were
censused and identity cards were also issued by the Government.
However, no structure of the plaintiff was found on the land.
44. Referring on Exhibit 9, the letter of the Tahsildar, the learned
senior counsel Mr. Setalvad argued that the Government thus was aware
of the encroachment made by the plaintiffs and the Government has
accepted the penalty and assessment charges for the same but did not
file any suit for possession against the plaintiffs. This argument is an
abortive attempt to foist admission of possessory title of the plaintiffs in
the mouth of the respondents/defendants. The Government has never
admitted the possession of the plaintiffs on such a huge land of 25 acres
and that is for a long period of 12 years much less of the 30 years. The
Government claims its possession and has given MHADA actual
possession though some formalities were not completed. The case of
the plaintiffs fall in the category of encroachers who have encroached
upon some portion of the land and the plaintiffs have no documents or
any other evidence to show their actual physical continuous possession
for 30 years of the entire suit land. Besides Exhibit 6, which is the
agreement between private parties of the year 1949 and 1955, no
document is produced showing actual possession prior to 1970.
Tahsildar gave notice on 9th April, 1970 (Exhibit 9) for unauthorized
cultivation of grass and stated that it is an encroachment since 1956.
Besides this, all the documents are of 1978 and thereafter.
45. The learned senior counsel Mr. Setalvad for the appellants, on the
point of adverse possession and the right of the owner who is having the
title in the land, placed more reliance on the judgment of the Full Bench
of Supreme Court in the case of Gurbinder Singh (supra). He submitted
that in the said judgment, the Hon'ble Supreme Court held that when a
defendant in possession of the property is sued by a person who has title
to it but is out of possession, what he has to show in defence is that he or
any one through whom he claims has been in possession for more than
the statutory period. He submitted that today plaintiff no. 2 is in
possession of the suit land since long and if the respondent/MHADA
wants the possession back, it has to file a suit for possession. However,
MHADA chose not to file a suit for possession since so many years
atleast from the year 1979 till today and therefore, any claim of MHADA is
hereafter time barred. These arguments are fallacious. The facts and
law laid down in the case of Gurbinder Singh (supra) cannot be
stretched to apply to the facts of the present case. In the case of
Gurbinder Singh, there was a dispute between the private parties and
the Supreme Court had to consider whether under Article 144 of the
Limitation Act the suit is barred by time and what was the starting point of
limitation set out in Column 3 of Article 144 of the Limitation Act of 1908.
In the said ruling, the status of an independent trespasser and whether
the possession can be tacked on in respect of independent trespasser to
constitute adverse possession for required period was the issue dealt
with. In the case in hand, the Government was already in possession of
the suit premises and the Government has acquired the land including
the suit land from its true owners by paying compensation. This fact
cannot be dislodged and ignored by the Court. From the facts, it appears
that the Government never lost its possession against the plaintiffs, who
were encroachers on the Government land and it was continuously
objected to, interfered with and thus was never peaceful and continuous.
Hence, there was no need for the Government to file a suit for
possession against the plaintiffs . The Government was restricted from
ousting the plaintiffs by the order of the Court in the year 1979 since the
suit was filed.
46. A person who claims adverse possession has to show the
exclusion of the possession of the owner. In the present case, the
Government was throughout in the possession, however, the appellants
oft and on might have been in possession of some portion of land by way
of encroachment, but the Government did not lose its possession. To
claim adverse possession, it is necessary to establish that the
Government was excluded from the possession. The suit land is an open
Government 'Gurcharan' land' (cattle grazing land). Under section 20 of
the Maharashtra Land Revenue Code it belongs to the Government.
However, under section 22 of the Code, it can be used by the people but
the Collector has right to preserve that land for specific purpose and can
impose penalty for encroachment or unauthorized use of the same. In
the present case, no exclusion of the Government was proved at any
time.
47. In the present case, the learned senior counsel for the appellants/
defendants rightly pointed out that neither MHADA nor State of
Maharashtra tendered documentary evidence on the point of acquisition,
except only one document Exhibit 18, i.e. the order passed by the Civil
Judge, Thane dated 30th
November, 1953. In the present case, the
learned trial Judge of the City Civil Court in the impugned judgment in
paragraph 16 has considered three documents - (i) award under section
11 of the Land Acquisition Act; (ii) order passed by the Civil Judge, Thane
on 30th November, 1953; and (iii) the resolution of the Government dated
1
st October, 1979. However, the learned senior counsel Mr. Setalvad has
objected that two documents, i.e. award under section 11 of Land
Acquisition Act and resolution of the Government dated 1st October, 1979
were never produced before the Court and therefore, these two
documents ought not to have been referred or relied by the learned trial
Judge. However, the order passed by the Civil Judge, Thane dated 30th
November, 1953 (Exhibit 18) is the order of the Court which can be relied
fully on the point of the findings and contents therein.
48. It is true that in fact the award was produced. However, the learned
trial Judge did not exhibit the said document. May be by mistake.
Therefore, I also cannot rely on the said document. The award is the
direct evidence on the point of acquisition. However, the fact of
acquisition can be proved by indirect but other concrete documentary
evidence. The defendants produced a very important document, i.e., the
judgment of the Civil Court in group of Reference matters in the land
acquisition cases bearing no. 49 of 1957 & Ors. The said judgment is the
certified copy of the Civil Court and marked as Exhibit 21. The contents
in the said judgment can be very well read in the evidence and on the
basis of the order passed therein, the facts of acquisition, compensation
and existence of real owners are satisfactorily established by the
defendants. The Reference under section 18 was filed because there
was acquisition of lands. In the absence of acquisition and award by the
Government, there would not have been payment of compensation and
no reference would have been filed by the owners of the land. It is to be
noted that the judgment passed by the Civil Court is elaborate touching
all the aspects of acquisition. The list of the acquired land is also
mentioned in paragraph 2 of the said judgment. Survey numbers which
is the subject matter of this suit are also the numbers of those suit lands
and are mentioned in the list. Thus, it shows that the claimants, who
were the real owners of the lands have received compensation and as
the Civil Court has accepted that after acquisition, the possession and
title of the land vests in the Government. Thus, it shows that the true
owners came forward when their lands were acquired and they were
dispossessed of the lands. The plaintiffs did not come forward and did
not file any claim. The submissions of learned senior counsel for the
appellants that the defendants could not prove the acquisition of the land
and possession taken by the Government at the time of acquisition thus
cannot be accepted.
49. A criminal case No. 535 of 1969 in State of Maharashtra vs.
Gangaram Gangu, one more and Shivram Shinde was filed and it was in
respect of theft of para grass in the year 1969, i.e., on plot no. 30B Meeta
nagar Colony, Goregaon under section 179 of the Indian Penal Code.
The incident had taken place on 2nd January, 1969 at around 8 a.m. In
the said criminal trial, Shivram and other two persons were acquitted.
The Presidency Magistrate in the judgment has mentioned that the
appellant appears to be in possession of the plot no. 30B. The learned
senior counsel tried to capitalize this finding of the Presidency Magistrate
in favour of the appellant. After going through the said judgment, it is
found that FIR was given by the watchman of MHADA, who was
appointed by MHADA to protect the lands which includes suit land. He
caught these three persons when they were cutting para grass. It is to be
noted that it was not a suit for title or possession but it was a criminal
case about the theft. In the judgment the trial Court has stated that
whether it was a para grass or not or whether plot no. 30B belonged to
MHADA or not could not be proved and so these persons were acquitted.
On the contrary, this shows that the so-called possession of the appellant
was neither peaceful nor continuous. MHADA has appointed a
watchmen to take care of the property since 1969.
50. Certain documents produced by the plaintiffs are required to be
assessed. In the letter written by Shivram Shinde to Tahsildar on 20th
January, 1978 (Exhibit 10), he has mentioned that the names of different
persons are shown in the piece of land in the revenue record. In 1953-54
MHADA's name was mentioned. Pursuant to the complaint, the
statement of Shivram was recorded on 4th April, 1978 by Talati (Exhibit
11). The contents in the letter reveals that he has stated that he did not
get compensation at the time of acquisition. This shows that he himself
was aware of the acquisition and if at all he did not receive the
compensation, why he did not challenge the award as other owners did?
Thus it can be safely inferred that at the most he has encroached
intermittently on some portions of the suit land which is not sufficient
evidence to prove adverse possession. This shows that his claim of
adverse possession was inconsistent and interfered with and not
peaceful. In the said letter he has mentioned that he has been cultivating
para grass on the land and money for cultivation was paid by Devraj
Gundecha. Thus, it appears that he was cultivating para grass for
Gundecha in the year 1978. Exhibit 12 is the Supplementary Agreement
of Sale dated 11th April, 1978 between Shivram Shinde and Devraj
Gundecha. Earlier by an Agreement dated 20th April, 1955 Shivram
Shinde has given the possession of 11 acres of land to Gundecha and by
this Supplementary Agreement, remaining 16 acres and odd land was
given to him. The Agreement shows that the vendee was put in sole and
absolute possession of the land on 26th August, 1979.
51. According to the plaintiff, the suit was filed by Shivram Shinde for
adverse possession on 13th March, 1979 and 5-6 months thereafter he
handed over the possession to Gundecha. Immediately in the year 1979-
80, Gundecha did not apply to implead himself as a party-plaintiff, but
plaintiff no. 2 Gundecha joined suit in the year 1998. Thus, from August
1979 till 1998 in fact the plaintiff who claimed adverse possession was
not in possession of the suit land and in fact even if plaintiff's case is
taken as it is, he has lost the cause of action in respect of so called 11
acres of unidentified land in the year 1955 itself.
52. The learned counsel has referred to 60:40 policy where a person
claims adverse possession against the Government, 60% is kept by the
Government and 40% is offered to the transferee who is in possession of
the property. In present case, such talks were going on and the officer of
the MHADA has sent letters to these appellants and the learned counsel,
therefore, submitted that there is an option open for the Government to
give him 40% land. The learned senior counsel Ms. Anklesaria has
denied that such policy can be offered to the appellants. She submitted
that the appellant does not deserve to get any portion of the land of the
Government and even though some correspondence was made by some
officers in MHADA, ultimately the Government has closed such offer.
53. It appears from the submissions of learned senior counsel Ms.
Anklesaria that the Government is not interested in giving any offer to the
appellant and the Government denies his claim of adverse possession
and claims full land, as the Government has already acquired and is in
possession of the entire land.
54. Thus, considering this legal position and the evidence in this case, I
am of the view that the appellants have failed to prove their case. The
judgment of the trial Court is hereby maintained. First Appeal is
dismissed with costs.
55. It is to be noted that in the pending Appeal, four to five parties have
filed applications and out of them, Ayub Mohd. Aamir Shaikh appears to
be a slum lord and many huts are constructed therein. Those structures
are scattered. Therefore, nobody knows when these structures were
constructed. Thus, it is evident that the appellants were not in
possession of the entire land when they filed the suit. Some structures
were censused in the year 1976-77. A commissioner was appointed by
the City Civil Court in Suit No. 1678 of 2008 which was filed by Kusum
Shivram Shinde against Anwar Hussein Baba Miya Dafedar & Ors.
Some temporary structures are created in some portion of the suit land.
It is to be noted that this is a huge Government land which the
Government has handed over to MHADA for construction of houses for
lower and middle income group. So, this land is going to be used for
public purpose. It is not physically possible for the Government to
supervise the suit land especially in Mumbai when the land is
aggressively encroached by the people due to over population. A judicial
note is taken that in case of Government land for which some scheme is
launched for the public cause, it is stalled immediately either by the slum
lords or by the encroachers by approaching the Court and by
manipulating the facts and documents. These attempts are required to
be defeated, otherwise public cause gets frustrated and the land is
grabbed by encroachers illegally only on the basis of muscle power. To
preserve the land of the government for public cause for which it is
reserved, is the duty of the Court to uphold the Rule of Law. Therefore, I
am of the view that the suit filed by the appellants is entirely bogus,
malafide and false with the only intention to grab the land with the help of
some Government employees which ought not to be allowed. It is only
possible by imposing exemplary costs on appellant no.2, considering the
damage to the public cause and State wealth. For this, I rely on the
judgment of the Supreme Court in the case of Shanmugam vs. Ariya
Kshatriay Rajakula Vamsathu Madalaya Nandhavana Paripalanai
Sangam (supra). Accordingly, the costs of Rs.1,00,00,000/- (Rupees
One crore only) is imposed on appellant No.2 M/s.Gundecha Builders,
which shall be paid to MHADA, within a period of four weeks from today.
Civil Application No. 3962 of 2006
56. The applicants Jhanbhumi Cooperative Housing Society Ltd. has
made this application to allow the applicants to intervene in this Appeal
and direct the respondent no. 3/Gundecha Builders and respondent no.
4/State of Maharashtra to modify the order dated 21st December, 2004.
57. On 21st December, 2004. this Court granted injunction against the
original respondent not to restrict the plaintiffs from entering and using
the suit land, so also not to carry out any development. The applicants
are a Cooperative Housing Society representing 350 members having
their huts on the suit land and they have been residing there. They
formed this Housing Society and they want it to be declared as a slum
colony. So, they approached the State Government for the same,
however, the Collector by a letter dated 7th June, 2005 informed that their
scheme cannot be considered in view of the order of injunction granted
by the High Court in favour of the appellants.
58. The applicants cannot be impleaded as party to the proceedings,
as the applicants have no locus. Hence the Civil Application is
dismissed.
Civil Application No. 44 of 2008
59. This Application is filed by Dynamic Cooperative Housing Society
(Proposed). It represents 380 hutment dwellers who are occupying
5013.44 sq. mtrs, CTS No. 50A (Part) and it is contended that their
property is known as Old Hanuman Nagar, Teen Dongree. It is declared
as slum in Government Gazette dated 13th October, 1977. They moved
an application for declaration as slum colony, however, nothing is done
by the Government.
60. The applicants are neither necessary nor proper parties in the
original suit to determine the issues therein and, therefore, Civil
Application is dismissed.
Civil Application no. 2163 of 2013
61. This Application is filed by MHADA against the plaintiffs for seeking
permission to clear properties on suit land which are illegally encroached
by slum dwellers and evict them in accordance with law and permit
MHADA to utilize the vacated land for public purpose.
62. As the Appeal is dismissed, MHADA is free to carry on the activity
for public purpose. Civil Application is allowed.
Civil Application No. 4678 of 2013
63. This Application is moved by Ayub Mohd. Amir Shaikh praying that
he is proper and necessary party and therefore, he be allowed to
intervene in the Appeal. He learnt that respondent/MHADA are in the
process of distributing the suit property with the appellants in the ratio of
60:40 and he claims that he is the owner of the property bearing S.No.
29, CTS No, 1 Part, CTS No. 2 Part, CTS No. 50, CTS No. 50/1 to 149 at
Village Goregaon Pahadi admeasuring 27 acrs and 12 ½ gunthas since
2004. He submitted that he has filed Suit No. 293 of 2013 in the High
Court in respect of suit property. This applicant was not party to the suit.
He claims that he has filed separate suit No. 239 of 2013 and on 8th
October, 2013, this Court has directed that whatever construction of the
applicant is standing on the land, the defendants in that suit were
restrained from demolishing the same without due process of law. Under
such circumstances, the Application is rejected especially in view of the
fact that he has not told from whom he has purchased the land and also
because of the finding of this Court that MHADA is the owner of the suit
land and has title and possession over the suit land through the
Government.
64. Civil Application is dismissed.
Civil Application No. 4436 of 2013
65. 151 applicants have filed this application that they be allowed to
intervene the matter as the party respondents in First Appeal. According
to them, Ayub Mohd. Aamir Shaikh is the owner of the property and he is
a landlord. From this, it appears that Ayub Mohd. Aamir Shaikh is a slum
lord. The applicant is neither a proper nor a necessary party to determine
the issues in this suit upon his mere claim of ownership without
particulars. Hence, this Application is not required to be entertained.
Hence, Civil Application is dismissed.
Civil Application (St.) No. 24273 of 2015
66. This application is filed by Kusum Shivram Shinde, Dhanesh
Shinde, partner of Gundecha Builders and Paras Devraj Gundecha
against MHADA and it is prayed to direct the respondents to consdier the
applicants' proposal for settlement submitted by them pursuant to
Architect's letter dated 7th November, 2008.
67. The learned senior counsel for the appellants has pointed out and
referred to a letter of their counsel dated 17th September, 2001 written to
Chief Officer, MHADA regarding the proposal of 60:40 and their
willingness to accept 60:40 formula with some conditions.
68. This issue is already dealt with in the main appeal. Hence, the
Civil application is dismissed.
Civil Application No. 126 of 2015
69. This Application is filed by Anwar Hussein Baba Miya Dafedar. He
has submitted that he is in possession of a structure admeasuring 25.20
sq. mtrs. bearing census no. 170(10), Id. no. 68LHS given by MMRDS
and so he be made party to the proceedings. It is submitted that a Court
Commissioner was appointed and his report dated 14th October, 2008
was submitted and the existence of his structure is shown in the Court
Commissioner's report.
70. The applicant is not a necessary or proper party to determine the
issues in the above suit merely by virtue of having a structure on the suit
land. Therefore, the Application is rejected.
Civil Application no. 221 of 2013
71. This Application is filed by the applicant Kusum Shivram Shinde
praying for temporary injunction restraining respondent nos. 1 and 2 and
their employees/servants including security guard from distributing the
appellant's possession on the entire suit land and also digging work and
carrying out construction. Thus, this Application is mainly for directing the
defendants not to deploy security guards.
72. In the Application, the applicant has referred to the injunction
granted by this Court on 21st December, 2004 in Civil Application no.
4061 of 2004 and also the earlier interim order passed in Suit No. 1357 of
1979 on 26th April, 1979 by the City Civil Court and same was continued
by an order dated 21st December, 2004. It appears that in between,
MHADA deployed security guards to protect the property.
73. No order is required to be passed in this Application, as the Appeal
is disposed of. Hence, Civil Application is dismissed.
Contempt Petition No. 27 of 2013
74. This Contempt Petition was filed by the appellant/petitioner. A suit
was filed for adverse possession by the plaintiffs and as the plaintiffs
were in actual possession of the suit land, they prayed for injunction
against the defendants that they should not start any development
activities especially like filling the land or entering on the land. The
learned senior counsel submitted that MHADA was never put in
possession by the Government. The learned Judge of the City Civil
Court while allowing the motion of plaintiff no. 1, injuncted the defendants
by an order dated 26th April, 1979 in Notice of Motion No. 1188 of 1979
from entering the open land and to do other developmental activities. In
Civil Application No. 4061 of 2004 filed by the appellants, the learned
Single Judge of this Court, while admitting the appeal, by an order dated
21st December, 2004 granted injunction in terms of prayer clause (a).
Thereafter, pending Appeal, Civil Application No. 5670 of 2005 was filed
by MHADA for vacating the order dated 21st December, 2004. He relied
on the order passed by the High Court on 22nd December, 2006 in Civil
Application No. 1626 of 2006 for expeditious hearing of First Appeal. He
further submitted that as the persons from MHADA entered the land and
were carrying on the activity of levelling the land, the plaintiff filed another
Contempt Petition No. 131 of 2010 before the High Court in this Appeal.
In the said Petition, when MHADA and Government appeared before the
learned Single Judge of this Court, they gave undertaking to the Court
that they did not want to take possession. The said undertaking was
accepted by this Court and accordingly an order was passed on 25th
January, 2012. The learned Judge observed that no case is made out to
initiate action for contempt, as the undertaking is accepted that the
defendants did not want to take possession from the petitioners. It is
contended that thereafter, MHADA employed their security guards on the
land and violated the undertaking given before this Court. Therefore, the
petitioners are constrained to file second Contempt Petition No. 27 of
2013 against MHADA.
75. In the case of Bajranglal Gangadhar Khemka (supra), it was held
that when a party gives an undertaking to the Court which is accepted by
the Court, then it has a force of the order of the Court and breaking of
such undertaking amounts to willful disobedience of the Court's order.
76. This Contempt Petition is filed by the original plaintiffs against the
respondents that the respondents be sentenced to civil imprisonment for
six months for committing contempt - (i) by appointing security guards on
the northern side portion of the suit properties; (ii) temporarily preventing
the petitioners and their security guards and other persons claiming
through the petitioners from entering the northern side portion of the suit
properties; and (iii) taking steps to carry out development and
construction work on the northern side portion of the suit properties;
thereby violating the order passed by this Court on 21st December, 2004
in Civil Application No. 4061 of 2004.
77. The plaintiffs have filed Civil Application No. 4061 of 2004 in First
Appeal praying that the respondents be restrained by an order of
injunction from obstructing, disturbing or interferring in any manner with
the peaceful and quite possession and enjoyment of applicant no. 2, i.e.,
Gundecha Builders, of the suit properties. On this Application, this Court
by an order dated 21st December, 2004 passed an order as follows:
“In view of the facts and circumstances, the Application is
made absolute in terms of prayer clause (a). However, liberty
is granted to the respondents to move the Court for early
hearing, if they so wish.”
78. The learned senior counsel for the petitioners submitted that the
petitioners/plaintiffs were in possession of the suit land. Interim order
was already passed by the learned Judge of the City Civil Court on 27th
April, 1979. On the point of possession, he relied on paragraph 15 of the
said order of the City Civil Court. The learned Judge has held that mere
perusal of the extract from the record of rights would show that the name
of Housing Commissioner which was entered at one stage has been
deleted by pencil entered in respect of plot nos. 6 and 7 which is a part of
the suit land. The learned senior counsel highlighted a portion in the
order when counsel Mr. Pandit who is appearing for the respondent has
conceded before the Court that defendant no. 1, i.e., MHADA had not
been officially put in possession of the suit lands by virtue of any
resolution passed by the State Government. The learned senior counsel
submitted that a statement made by the counsel is to be accepted as true
and thus it shows that MHADA was never in possession of the suit land
and thus the plaintiffs were in possession of the suit land and as the
defendants have appointed their security guards and have entered on the
northern portion of land, have committed breach of the order of this
Court.
79. The learned senior counsel Ms. Anklesaria opposed this petition
and submitted that no contempt is committed of the order passed by this
Court. She submitted that plaintiffs/appellants had filed one more
Contempt Petition bearing no. 131 of 2010 which was decided by this
Court by its order dated 25th January, 2012. At that time, the State
Government has given a public notice claiming the ownership and has
directed to remove the encroachment on the property. She submitted
that this Court has held that the case was not made out to initiate action
against civil contempt under Contempt of Courts Act, 1971. So also, any
further relief of injunction which was prayed in the said application was
refused in contempt proceedings.
80. The fact that the land belongs to the Government is not disputed.
It is the case of the Government of acquisition of the suit land for MHADA
for construction of the houses for the people. Therefore, the Government
has handed over the land to MHADA. The meaning and import of the
statement made by the counsel Mr. Pandit for the defendant/respondent
as mentioned in paragraph 15 of the interim order passed by the City
Civil Court on 29th April, 1979 is not what it is projected by the plaintiffs.
The statement is made that defendant no. 1 had not been officially put in
possession of the suit lands by virtue of any resolution passed by the
State Government. It does not mean that MHADA was not put in
possession of the lands. The meaning is that the necessary notification
was not taken out to take the possession officially, but the State
Government has handed over the informal possession to MHADA as a
caretaker. In the said paragraph, Mr. Pandit has pointed out the contents
of the letter dated 29th January, 1976 which states that Housing
Commissioner of MHADA shall protect the lands (as if the lands belongs
to the Board) pending the final orders of the Government. Thus, it shows
that de facto MHADA was in possession of the suit lands. The order of
this Court was not to prevent, obstruct, disturb or interfere the possession
and enjoyment, if any, of the plaintiffs. The plaintiffs are seen to be
encroachers and thus, there is no such evidence to show that their
movements were obstructed by MHADA. The appointment of security
guards to protect the property cannot be labelled as wilfull disobedience
of the order. The ownership vests with MHADA and therefore, it was
necessary for MHADA to appoint the security guards to protect the
property from further encroachment. Thus, protection given to the lands
cannot be interpreted as obstruction caused to the encroachers in the
land which has already been encroached upon.
81. Under such circumstances, no case is made out for contempt of
the willful disobedience. Hence the Contempt Petition is rejected.
82. The learned Counsel for the appellants submits that the interim
injunction which was continued throughout right from 1979 till today, be
continued. However, the learned Counsel for the Respondents opposes
this prayer.
83. In the circumstances, as the interim injunction was granted earlier
by the trial Court and also continued by this Court, it is extended till
29.1.2016.
84. In the result, the First appeal and the Contempt Petition are
dismissed. Civil applications are also disposed for the reasoning given
above.
(MRS.MRIDULA BHATKAR, J.)
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