State of Andhra Pradesh vs Kattubadi Fakrubi (died) and Others

Narasimham, J.—This is an appeal against the Judgment of the District Judge, Kurnool, confirming the Judgment of the District Munsif, Nandyala in O. S. No. 148 of 1954.

The appellant herein is the 2nd defendant, the State of Andhra Pradesh represented by the Collector, Kurnool. The Plaintiff 1st respondent died during the pendency of this appeal and her L. Rs. have been brought on record. The suit, had been laid by late Kattubadi Fakrubi for a declaration of her right to sites ABCD and CDEF measuring 12 ft. x 7 ft. and 15 ft. x 7 ft. respectively abutting her houses bearing Municipal Nos. 22/1 and 23/1 in the Nandyala Municipal area. She had also prayed for an alteration in the survey plan prepared for the Nandyal Municipal area wherein the said extents had been shown as part of street No. 1 bearing S. No. 30. It was her case that the demarcation by the Survey Office was wrong and that she was the owner of the sites in question. She was the purchaser of the sites and the houses under a registered sale deed dated 18-5-1943, Ex. A-1 and she had been in enjoyment of the sites in question. She erected a Zinc sheet verandah over the site CDEF and was running a shop in it. She enclosed the site ABCD with ''thatties''. It was her case that her predecessors-in-title were in possession of the sites for over 100 years. It was her further case that when the Municipality of Nandyal objected to her possession of these sites, she obtained decrees against the Municipality in O. S. 113 of 1950 on the file of the District Munsif, Nandyal and O. S. 158 of 1952 on the file of the District Munsif, Dhone and so established her right against the Municipality. It is seen that O. S. 158 of 1952 on the file of the District Munsif, Dhone, was originally filed as O. S. 231 of 1951 in the court of the District Munsif of Nandyal. The present suit was filed on 12-4-1954.

The suit was contested on the pleas that the plaintiff had encroached on these sites which were part of public street No. 1 and that the decrees obtained against the Municipality did not bind the paramount owner, the State of Andhra Pradesh. The defendants put the plaintiff to strict proof of the enjoyment for more than the statutory period.

The learned District Munsif found that the sites formed part of ''Gramanattam'', that the State was the paramount owner; but that the plaintiff had acquired title to the said sites by adverse possession. These findings were affirmed by the District Judge in Appeal. The state has preferred this second appeal.

Two contentions have been urged before me for the Government firstly, that a suit for alteration of the boundaries contemplated u/s 14 of the Madras Survey and Boundaries Act, 1923 (Act No. VIII of 1923) had to be instituted within three years from the date of the Notification u/s 13 and that inasmuch as the Notification after survey was issued in March 1933, as stated by the plaintiff herself in para 4 of the plaint the suit instituted in 1954 was barred by time; and secondly, that the concurrent finding of the Courts below that the plaintiff had acquired title by adverse possession is not based on legal evidence but on presumptions and probabilities which do not form legal evidence to support that finding.

It is stated by the learned Government pleader that the first point was unfortunately not urged before the Courts below; but, that he could invite the attention of this court to the plea of the statutory bar as enacted u/s 14, of which the court shall take judicial notice.

Point I. Section 14 of the Madras Survey and Boundaries Act enacts in terms as under:

Any person deeming himself aggrieved by the determination of any boundary u/s 9, 10or 11 may, subject to the provisions of parts II and III of the Indian Limitation Act, 1908 institute a suit within three years from the date of the notification u/s 13to set aside or modify the said determination and the survey shall, if necessary, be altered in accordance with the final decree in the suit and the alteration, if any, shall be noted in the record.

The plaintiff in para 4 of the plaint referred to the notification u/s 13 as having been issued in March 1933. It is repeated in the cause of action para, para 6, Para 4 of the plaint further stated that the plaintiff had filed the suit u/s 14 for a declaration of her right to the sites ABCD and CDEF and for an alteration of the survey boundaries. This part of the plaintiff''s case was missed by the defendants, which is indeed regrettable. It would, therefore appear on the plaint averments that the plaintiffs suit was barred by time.

However, both the courts have accepted the suit based on an independent cause of action for declaration of title. The learned Government pleader has not placed before me any authority that such a suit would not be maintainable. While, therefore, upholding the said objection, I would scrutinise this case in so far as the plaintiff''s title has been upheld on the foot of an independent cause of action.

Point 2: The second question is, if the courts below have based their finding of adverse possession on any legal evidence. At the outset the learned counsel for the respondents has taken objection that the question of adverse possession is one of fact and such a finding of fact cannot be interfered with in second appeal. This argument is met by the learned Government Pleader by inviting reference to the decision of the Privy Council in Lachmeswar singh v. Manowar Hossain, ILR 19 Cal 253 (PC) where it was observed that the question whether possession was adverse or not was often one of fact, but it might also be a conclusion of law, or a mixed question.

The finding of the court below is assailed before me on the ground that there is no legal evidence to support that finding and that presumptions and probabilities do tot form evidence. It cannot be said that this aspect of case which is presented before me, cannot be gone into in second appeal.

The facts bearing on this question, as found by the lower appellate court, are that it was established that the plaintiff''s predecessors-in-title had been in continuous and open enjoyment of the sites since 1923 which covered a period of 30 years. The lower appellate court further found that P. W. 2 stated that he knew the sites being in the enjoyment of the barbers for over 50 years. After referring to this evidence the lower appellate court has stated in para 9 of the judgment thus:

So taking the circumstances and probabilities in the case into consideration, there can be no doubt that these sites were in the possession and enjoyment by the plaintiffs predecessors even for over 60 years and a presumption to that effect has to be drawn under the circumstances.

It is this part of the judgment of the lower appellate court that is assailed as absolutely untenable in law. The argument pressed before me is that a party, who sets up a title by adverse possession, has to affirmatively prove his or her possession for over the statutory period and that presumptions and probabilities cannot be substituted for evidence.

There can be no doubt that the said proposition contended for is unexceptionable. Adverse possession has to satisfy necessarily the tests of adequacy, continuity, exclusiveness and publicity. The party, who asserts this, has necessarily to bear out his case with reference to these necessary elements. Manifestly, the judgment of the lower appellate court labours under a serious infirmity. The same infirmity as has been referred to is apparent in the judgment of the court of first instance also. The proposition is settled. However, the learned Government pleader has invited my attention to certain authorities which I shall presently refer.

In Secretary of State v. Chellikani Rama Rao ILR 39 Mad 617: (AIR 1916 PC 21) Lord Shaw, who delivered the Judgment of the Board, held in considering the claim of adverse possession to island formed in the bed of the sea near the mouth or delta of the river Godavari that

Nothing is better settled than that the onus of establishing title to property by reason of possession for a certain requisite period lies upon the person asserting such possession.

In the concluding part of the judgment, it was observed thus at page 633 (of ILR Mad): (at p. 27 of AIR):

That fact is fundamental until adverse possession against the Crown is complete, that is to say, is for the period of sixty years, that fundamental fact remains, aim that fact forms "subsisting title''. And it is no part of the obligation of the Crown to fortify their own fundamental right by any enquiry into possession or the acceptance of any onus on that subject.

The principle of this decision has been applied in subsequent cases.

In Krishna Sastri and Others Vs. Singaravelu Mudaliar and Others, while dealing with the question of adverse possession, it was observed thus at page 785 :

This subordinate Judge relies on oral statements of witnesses that plaintiff''s family was in possession for a very long period, but except for the statement of plaintiffs witness No. 1 that this family was in possession for 150 years, a fact which is certainly not within his personal knowledge, there is no evidence which fixes the date of possession as early as 1851, and this is essential in order to prove adverse possession for 60 years. It is not sufficient to prove possession for a long period but as pointed out by the Privy Council in ILR 39 Mad 617: (AIR 1916 PC 21) possession for the whole period of 60 years must be affirmatively proved. In the present case there is no such evidence, but only evidence of long possession which the Subordinate Judge has held to be for over 60 years on the general probabilities. This, he is not justified in doing and we cannot therefore accept his finding.

Secretary of State Vs. Sreeramamurthi and Others, is another case where it was held that adverse possession for over the statutory period could not be presumed from a finding that possession was proved for a period short of 60 years.

Jayarama Naidu and Others Vs. Secy. of State, reiterated that presumptions could not be accepted as proof. The case related to ''grama natham'' which belonged to the Crown. The lower Courts had found that the plaintiffs did not prove enjoyment for more than 30 years. It was contended that the said enjoyment raised a presumption that they held the property by immemorial right Repelling that contention, the learned judges held that when a plaintiff came to court for declaration of his title against the Crown, he could call to his aid no presumption that his possession had extended a day longer than he could prove. It was categorically held that he must prove that his possession had extended to 60 years adversely to the Crown and could succeed only by the strength of his own case, and not by casting the burden of proving the contrary on the Crown. They affirmed that the elementary doctrine was applied by their Lordships of the Privy Council in ILR 39 Mad 617: (AIR 1916 PC 21) and that the said doctrine was beyond discussion.

It is obvious therefore that the lower appellate Court''s judgment based on presumptions and probabilities cannot be supported. It would be curious to say that when enjoyment for over 50 years was accepted, it would be tantamount to an enjoyment for over 60 years. That shows an utter absence of sense of time and computation of the statutory period. The law could certainly not be interpreted that way.

Further, I have to say that there is no such presumption to operate retrospectively. The rule of evidence is in favour of presuming the continuity of things shown to exist at a prior date. There is no rule of evidence by which one can presume backwards. Section 114 of the Evidence Act does not go so far as to enable the Court to presume that the present state of things existed in the past without any proof from the party who is required to satisfy the court on the point.

In AIR 1927 37 (Nagpur) the learned Chief Justice had pithily stated thus:

The presumption is prospective rather than retrospective in operation. The presumption of continuity has an operation in the future, because if it be shown that a particular state of things was existing at a particular time, that state of things will be presumed to continue in the absence of anything to the contrary.

I do not, therefore, see any cogency in the reasoning that person who has been proved to have been in possession for over 50 years must be presumed to have been in possession for over 60 years.

The lower Court''s finding that title has been perfected by the plaintiff by adverse possession is manifestly erroneous and as such set aside. The plaintiff''s suit would be dismissed with costs throughout. The appeal is allowed with costs. No leave.