Andhra HC (Pre-Telangana)
State Of A.P. Rep. By M.R.O. vs G. Venkamma And Ors. on 20 November, 2001
Equivalent citations: 2002(2)ALT321
Author: G. Rohini
Bench: G. Rohini
ORDER G. Rohini, J.
1. The State of Andhra Pradesh is the petitioner in all the three writ petitions which are directed against a common order dated 22-11-1994 passed by the Special Court under the A.P. Land Grabbing (Prohibition) Act. 1987 - hereinafter referred to as the 'Special Court' in L.G.C. Nos. 40 to 42 of 1994.
2. W.P. No. 19615 of 1998 has been filed seeking a writ of Certiorari calling for the records relating to the order dated 22-11-1994 made in L.G.C. No. 40 of 1994 on the file of the Special Court, and to quash the same. Similarly, Writ Petition No. 20277 of 1998 has been filed assailing the order of the Special Court made in L.G.C. No. 41 of 1994 whereas Writ Petition No. 19871 of 1998 has been filed assailing the order in L.G.C. No. 42 of 1994 on the file of the Special Court under the A.P. Land Grabbing (Prohibition) Act. Since all the aforesaid three writ petitions arise out of a common order of the Special Court and since common questions of fact as well as law arise for consideration, these three writ petitions are heard and decided together by the following order.
3. The brief facts which are common in all the three writ petitions, are as follows:
The State of Andhra Pradesh, represented by the Mandal Revenue Officer, Secunderabad Mandal filed O.P. Nos. 350 of 1988; 349 of 1988 and 346 of 1988 on the file of the Special Tribunal, Hyderabad District under Section 7(1) of the A.P. Land Grabbing (Prohibition) Act, 1987-hereinafter referred to as "the Act", seeking a declaration that the respondents herein are land grabbers in respect of certain extents of land in Survey No. 157/1 of Thokatta village, Secunderabad Mandal and to evict them from the schedule land of respective petitioners. Subsequently, on transfer to the Special Court under the A.P. Land Grabbing (Prohibition) Act, O.P. Nos. 350 of 1988; 349 of 1988 and 346 of 1988 have been re-numbered as L.G.C. Nos. 40/94; 41/94 and 42/94 respectively.
4. The case of the writ petitioner, who was also petitioner in the aforesaid L.G.C, 40 to 42 of 1994, is that the Government is the owner of the land in Survey No. 157/1 to an extent of 2 acres 29 guntas in Thokatta village. Subsequently the said survey number has been sub-divided as Survey No. 157/11 as per the Supplemental Sethwar. It has been alleged that the respondents in L.G.C Nos. 40 to 42 of 1994 have grabbed the land in Survey No. 157/11 to the extents of 1200 sq. yards, 1200 sq. yards and 1300 sq. yards, respectively without any lawful entitlement. Accordingly the aforesaid Land Grabbing Cases have been filed to declare the respondents as land grabbers and to evict them from the petition schedule lands.
5. The respondents herein, who were the respondents in the aforesaid Land Grabbing cases, filed counters before the Special Court denying the allegations made by the petitioner and stating that the respondents and their ancestors have been in occupation of the petition schedule lands since about 60 years prior to the filing of the Land Grabbing cases. The respondents also stated that they are holding patta in respect of the adjacent land in Survey Nos. 151 to 155 and in the petition schedule land they dug an irrigation well and constructed cattle sheds and houses for their farm workers and the said land has been in their uninterrupted possession and enjoyment for the past more than 60 years. They also pleaded that after the abolition of the jagirs, the land in question was wrongly shown as 'Gairen Poramboke' and as per the circulars issued by the Government after the abolition of Jagirs all such lands shall be treated as poramboke patta of the cultivators and as such they acquired title to the lands in question. They contended that they cannot be treated as land grabbers and the writ petitions are liable to be dismissed.
6. On the basis of the pleadings of the respective parties the Special Court framed the following issues, which are common in all the three cases.
(1) Whether the petitioner is the owner of the petition schedule site?
(2) Whether the respondents have perfected their title over the petition schedule site by adverse possession?
(3) Whether the respondents are land-grabbers within the meaning of Section 2 (d) and (e) of the Act?
(4) To what relief?
7. All the three cases were clubbed and tried together before the Special Court. Both the parties let-in common evidence in support of their respective cases.
8. Before the Special Court the petitioner got examined two witnesses as P.W.1 and P.W.2 and marked Exs. A-1 to A-15 documents. On behalf of the respondents one witness has been examined as R.W.1 and Ex. B-1 to B-9 documents have been marked. On the basis of the evidence on record, the Special Court found on issue No. 1 that in view of the entries in Ex. A-4, there is no dispute that the land in Survey No. 157/1 is the Government land and that therefore the Government is the owner of the petition schedule land in all the three L.GCs. However, on issue No. 2, the Special Court found that in all the three L.G.Cs the respondents perfected their title over the extents that are said to be in their occupation, by adverse possession. Accordingly, the Special Court held that the possession of the respondents is lawful and they are not land grabbers within the meaning of Section 2(d) and (e) of the Act and dismissed all the three L.G.C. Nos. 40, 41 and 42 of 1994 by a common order dated 22-11-1994. Assailing said order the present three writ petitions have been filed.
9. We have heard the learned Government Pleader appearing for the petitioner and Sri G. Gopala Rao and Sri M.V. Durga Prasad learned counsel appearing for the respondents in all the three writ petitions.
10. The learned Government Pleader. while assailing the finding of the Special Court on issue No. 2 that the respondents have perfected their title by adverse possession submitted that the respondents are mere encroachers into the Government land and it cannot be said that they perfected their title by adverse possession only on the ground of their continuous possession. The learned Government pleader further contended that since the respondents claimed ownership in respect of the land in question they cannot be permitted to raise the plea of adverse possession, and therefore, the impugned order of the Special Court holding in favour of the respondents that they perfected their title by adverse possession is erroneous. In support of his submission, the learned Government Pleader relied upon the decisions of the Supreme Court in Annasaheb Bapusaheb Patil v. Bahvant Babusalieb Patil and State of Rajasthan v. Harphool Singh .
11. On the other hand, the learned Counsel appearing for the respondents submitted that the impugned order is in accordance with law and is unassailable. They further submitted that though the Special Court dismissed L.G.Cs. on 22-11-1994 and even the petition filed by the Government seeking review of the said order was dismissed on 21-3-1995, the petitioner failed to approach this Court within a reasonable time, and therefore, the present writ petitions filed in June, 1998 cannot be entertained and are liable to be dismissed on the ground of laches. The learned counsel also pointed out that in the interregnum period the respondents have developed the lands in question and constructed residential flats and sold them to third parties. Since the interest of third parties is involved the learned counsel contended that the equity is in favour of the respondents and the relief as sought in the writ petitions cannot be granted. Further on the merits of the case the learned counsel contended that on the basis of the evidence both oral and documentary, adduced before the Special Court, the respondents have clearly established that they are in possession of the land in question for more than 30 years with the knowledge of the Government, and therefore, the finding of the Special Court that the respondents perfected their title by adverse possession does not warrant any interference and the petitioner is not entitled for any relief in these writ petitions.
12. So far as the contention of the respondents on the ground of 'laches' is concerned, we are satisfied with the reasons stated by the petitioner in the affidavits filed in support of the writ petitions explaining the delay. Hence, the said objection is rejected and we proceed to consider the matter on merits.
13. In the light of the contentions raised by both the parties the points that arise for consideration in these writ petitions are:
(i) Whether the respondents discharged the burden placed on them to prove by clear evidence their open and hostile possession for more than 30 years? and
(ii) Whether the finding of the Special Court that the respondents have perfected their title to the lands in question by adverse possession is based on evidence on record?
14. In Annasaheb Bapusaheb Patil v. Balwant Babusaheb Patil (1 supra), relied upon by the learned Government Pleader appearing for the petitioner, the Supreme Court held as follows:
"Article 65 of the Schedule to the Limitation Act, 1963 prescribes that for possession of immovable property or any interest therein based on title, the limitation of 12 years begins to run from the date the defendant's interest becomes adverse to the plaintiff. Adverse possession means a hostile assertion i.e., a posession which is expressly or impliedly in denial of title of the true owner. Under Article 65 burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts alleged by a person constitute adverse possession regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession therefore must show by clear and unequivocal evidence his possession was hostile to the real owner and amounted to a denial of his title to the property claimed.
"Where possession can be referred to a lawful title it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title cannot divest another of that title by pretending that he had no title at all".
15. In State of Rajasthan v. Harphool Singh (2 supra), the Supreme Court, while reiterating the ingredients to be satisfied for establishing adverse possession, held as follows:
"Indisputably the State was the owner and the question is as to whether its title has been extinguished and the plaintiff had acquired and perfected title to the same by adverse possession. In order to substantiate such a claim of adverse possession the ingredients of open hostile and continuous possession with the required animus as laid down by the courts should be proved for a continuous period of 30 years".
16. It is well settled that the burden of proof is on the party claiming adverse possession. There must be a pleading that his possession is open, continuous and hostile to the real owner and he must establish the same by clear evidence.
17. In the instant case, it can be seen that the respondents while contesting the land Grabbing Cases, instituted by the Government, filed counters categorically pleading that irrigation well, cattle shed and farm houses existing on the land in question. were constructed by them and they are in continuous and uninterrupted possession and enjoyment of the said land for the past more than 60 years. They also asserted that as per the Circulars issued by the Government, after abolition of jagirs, the poramboke land in which irrigation wells are situated shall be treated as poramboke patta of the cultivator, and as such they acquired title and ownership to the land in question. They further stated in their counters that the land in question which is in their occupation was wrongly shown as 'Gairan Poramboke', but they were in actual possession of the same in assertion of their own right. They also specifically denied the allegation that they are Sand grabbers of the said land.
18. In support of their case in the counter the respondents filed Exs. B-1 to B-9 documents through R.W. 1 who is one of the respondents in L.G.C. No. 40 of 1984. So far as their possession is concerned, the Mandal Revenue Officer, Secunderabad, who deposed as P.W.1, himself stated in the chief-examination that the respondents are in possession of the land in question from 1962 onwards. P.W.1 and also P.W.2, who is the Mandal Surveyor in the Office of P.W.1, further admitted the existence of cattle shed and well in the said land. That apart, Exs. B-3 to B-8, extracts of 'Faisal Pattis' for the years 1954-55 to 1960-61, filed by the respondents support their case that cattle shed and well constructed by them are in existence even by the year 1954 and they have been in continuous occupation and enjoyment of the same. The said Exs. B-3 to B-8 contain relevant entries to show the existence of the cattle shed in the land in question. The respondents also got marked Ex. B-2, which is a copy of Circular dated 17-1-1955, issued by the Government of Hyderabad, Board of Revenue regarding grant of patta in respect of poramboke lands in which irrigating wells are situated, to establish their case that by virtue of the said orders issued by the Government, the land in question where irrigation well dug by them is existing has been treated as poramboke patta land conferring title and ownership on them. It is also pertinent to note that as long back as in the year 1966 proceedings were initiated against the respondents and their predecessors-in-title for eviction under the Madras Land Encroachment Act. A copy of the order dated 10-10-1966 issued by the Revenue Divisional Officer, Hyderabad (West) in an appeal arising out of the said proceedings has been marked as Ex. B-1 on behalf of the respondents. It is clearly mentioned in the said proceedings that apart from of the land in Survey Nos. 151 to 156 the respondents were also in possession and enjoyment of the land in Survey No. 157/1 and an irrigation well and cattle sheds and dwelling houses belonging to the respondents herein were existing on the land in question which was alleged to be encroached by them. From the said order, in which the Revenue Divisional Officer set aside the eviction order passed by the Tahsildar under the Land Encroachment Act and directed demarcation of the land in question, it is clear that the respondents have been in possession to the knowledge of the Government asserting their own right to the land in question and denying the title of the Government.
19. On appreciation of the said evidence on record, the Special Court has rightly given a finding that the respondents have been in possession of the land in question even from the year 1954 and they perfected their title by adverse possession. We are satisfied that the finding of the Special Court is based on the evidence on record and cannot be said to be perverse.
20. As can be seen from the evidence adduced on behalf of the respondents, as discussed above, the claim of the respondents as to their ownership in respect of the land in question, has been substantiated and they have also successfully established their open and continuous possession asserting their title. It is also clear from the material on record that their possession is to the knowledge of the Government and as a matter of fact they have been contesting the proceedings initiated by the Government for eviction claiming title and ownership to the land in question. Therefore, in our considered view the essential ingredients of open, hostile and continuous possession of the respondents asserting their ownership and denying title of the Government are clearly established. Even the Exs, A-5 to A-14 documents marked on behalf of the petitioner make it clear that the Government is well aware of the possession of the respondents and the proceedings initiated for eviction of the respondents on the ground of illegal encroachment were being resisted by the respondents claiming ownership and title. Therefore, we do not find any force in the contentions raised by the learned Government Pleader. The decisions cited by the learned Government Pleader laid down the ingredients to be satisfied for establishing adverse possession and as expressed above, we are satisfied that the respondents, on the basis of the evidence adduced, clearly established that they perfected their title by adverse possession.
21. So far as the question whether the respondents proved their occupation for a continuous period of 30 years prior to the filing of the land grabbing cases is concerned, it is pertinent that there cannot be any dispute with regard to their possession from 1962 i.e., for 26 years, since the same has been admitted both by P.Ws. 1 and 2. However, the respondents asserted their possession for the past about 60 years and filed Exs. B-3 to B-8 documents which contain entries regarding existence of cattle shed on the land in question from the years 1954-55 onwards. The respondents relying upon the judgment of the Supreme Court in Ambika Prasad v. Ram Ekbal Rai contended that as held by the Apex Court and on the basis of the evidence adduced on their behalf, a presumption of continuous backward possession shall be drawn in their favour.
22. Under Section 114 of the Evidence Act, 1872, the Court may presume the existence of any fact which it thinks likely to have happended, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. While referring to illustration (d) to Section 114 under which a presumption of future continuance may be drawn as to the thing or state of things shown to be in existence, the Supreme Court in Ambika Prasad v. Ram Ekbal Rai AIR 1966 SC 605 held that in appropriate cases an inference of continuity of a thing or state of things backwards may also be drawn though on this point. Section 114 of the Evidence Act does not give a separate illustration.
23. The observations of the Apex Court in Para-15 of the Judgment are as follows:
"If a thing or a state of things is shown to exists, an inference of its continuity within a reasonably proximate time both forwards and backwards may sometimes be drawn. The presumption of future continuance is noticed in illustration (d) to Section 114 of the Indian Evidence Act, 1872. In appropriate cases, an inference of the continuity of a thing or state of things backwards may be drawn under this section, though, on this point the section does not give a separate illustration. The rule that the presumption of continuance may operate retrospectively has been recognised both in India and England.... The presumption of continuity weakens with the passage of time. How far the presumption may be drawn both backwards and forwards depdends upon the nature of the thing and the surrounding circumstances".
24. In the instant case the possession of the respondents in respect of the land in question has been admitted by the Government from the year 1962. That apart, the witnesses examined on behalf of the Government have also admitted in their evidence as to the existence of cattle shed and well in the said land, though they have not taken any plea that prior to 1962 anybody else was in possession of the land in question. On the other hand, it is the specific case of the respondents that they have constructed irrigation well and cattle sheds in the land in question and the same have been in their continuous possession and enjoyment for the past more than 60 years along with the adjacent land in Survey Nos. 151 to 155 which is their patta land. They also produced Exs. B-3 to B-8 documents which are extracts of Faisal pattis for the years 1954-55 to 1960-61 containing entries showing the existence of cattle shed constructed by them on the land in question to substantiate their claim that the said land has been in their possession and enjoyment.
25. When the possession of the respondents from the year 1962 is not disputed and the existence of cattle sheds prior to 1962 is also not in dispute and when it is not the case of the Government that anybody else was in possession prior to 1962, there is no reason to disbelieve the consistent stand taken by the respondents that they constructed the cattle sheds and they have been in possession and enjoyment of the land in question. The respondents in support of their claim that they have been in possession of the land in question for the past about 60 years, produced Exs. B-3 to B-8 documents which substantiate their claim at least from the year 1954-55. In the circumstances, in our considered opinion, it is a fit case where an inference of continuity of possession of the respondents for six years backwards from 1962 can be safely drawn as held by the Supreme Court in Ambika Prasad v. Ram Ekbai Raj (3 supra). If such presumption is drawn as to the possession of the respondents from the year 1954, there is no dispute that they have been in possession of the land in question for the past more than 30 years by the date of filing of the Land Grabbing cases. Therefore, we hold that the finding of the Special Court that the respondents have perfected their title by adverse possession is justified and is in accordance with law. Accordingly, it must be held that that the respondents are not land grabbers within the meaning of Section 2(d) and (e) of the Act. Both the points raised in the writ petition are answered accordingly.
26. For the reasons stated supra, we hold that the findings of the Special Court that the respondents have perfected their title by adverse possession and they are not land grabbers within the meaning of Section 2(d) and (e) of the Act do not suffer from any error apparent on the face of the record warranting exercise of jurisdiction under Article 226 of the Constitution of India by issuing a writ of Certiorari.
27. Accordingly, Writ Petition Nos. 19615; 20277 and 19871 of 1998 are dismissed. However, in the circumstances, there shall be no order as to costs.
W.P.M.F.No. 23614 of 1999:
Immediately after pronouncing the judgment in the batch of writ petitions dismissing the writ petitions, counsel for the respondents in W.P. No. 19615 of 1998 submitted before us that during the pendency of these writ petitions, respondents in W.P.No. 19615 of 1998 were evicted from the mulgies on 3-9-1999. Learned counsel therefore pleads that in view of the dismissal of the writ petitions Hied by the Mandal Revenue Officer, Tirumalgherry Mandal, Hyderabad District, a direction be issued to the petitioner in W.P.No. 19615 of 1998 for restoring the five mulgies to the petitioners in this W.P.M.P. Agreeing to the said submission we direct the Mandal Revenue Officer/ Tirumalgherry Mandal, Hyderabad District to restore the five mulgies to the petitioners in W.P.M.P. No. 23614 of 1999, who are the respondents in W.P. No. 19615 of 1998 within two months from the date of receipt of a copy of the order.
W.P.M.P. No. 23614 of 1999 is accordingly ordered.