How to appreciate evidence regarding fact and extent of encroachment in suit for removal of encroachment?

 The Cadesteral Surveyor, therefore, will have first to ascertain the boundary marks and boundaries of undisputed and unencroached area of the land, based on undisputed boundary marks, as seen in the public record, and thereafter measure the extent of encroachment. {Para 35}

36. If such report of the Commissioner is proved, as rendered, keeping in view the requirements of rules relating to measurement and if it withstands the test of cross-examination, unless admitted document, alone can be the foundation as to proof of fact and of extent of encroachment.

37. In the present case, the procedure, as emerging from foregoing discussion, has not admittedly been adopted.

38. The Substantial Questions of Law are answered as follows:

Answers to Substantial Questions of Law Nos. [1] and [2]:

[i] Fact of encroachment may be proved partly by oral evidence;

[ii] the extent of encroachment cannot be proved in absence of public records and procedure emerging from Section 36 and Section 60 of Evidence Act;

[iii] it would be impermissible to record a finding as to the fact and extent of encroachment, if any, without ascertaining the fact and extent of encroachment by measurement, based on public record and undisputed and/or settled boundaries of respective lands and measurement of surrounding lands, as may be required.

Answer to Substantial Question of Law No. [3]:

[v] it would not be proper to dismiss the suit simply because the Court Commissioner has not adopted a correct procedure of measurement and the exercise of re-measurement, according to rules, will have to be got done through Court Commissioner again and again, if necessary, because failures of Cadesteral Surveyors are not attributable to parties to the suit.

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 97 of 2009

Decided On: 04.05.2009

Vijay shrawan shende and Ors. Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:

A.H. Joshi, J.

Citation: 2009 (5) MHLJ 279,MANU/MH/0370/2009.

Read full Judgment here: Click here

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Under which circumstances plaintiff can prove encroachment by oral evidence?

PROOF OF FACT OF ENCROACHMENT

24. If there be undisputed boundaries, encroachment can be a question or a matter of fact, which can be seen by a person where encroachment was witnessed. Fact of encroachment also could be a matter of oral evidence, if the admitted boundaries are destroyable, and have been destroyed in presence of witness by the party making the encroachment.

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 97 of 2009

Decided On: 04.05.2009

Vijay shrawan shende and Ors. Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:

A.H. Joshi, J.

Citation: 2009 (5) MHLJ 279,MANU/MH/0370/2009

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Can a court pass disadvantageous order against the appellant's interest beyond their prayers and pleadings in an appeal?

 However, it appears that in the appeal filed by the Petitioner, the Appellate Authority has directed to evict the Appellant from the premises allotted to her. The direction to evict the Appellant from the premises allotted to her cannot be allowed to sustain for the simple reason that, in an appeal filed by the Petitioner, no disadvantageous order to his interest beyond the prayers and pleading in the appeal can be allowed. Therefore, this Court is of the opinion that the direction of the Competent Authority as confirmed by the Appellate Authority by the impugned judgment and order dated 15th November, 2011 to evict the Appellant from the premises allotted to her, deserves to be interfered with and the same is quashed and set aside. However, the rest of the impugned judgment and order dismissing the appeal.

16. However, if the Authorities feel it appropriate in accordance with the relevant provisions to initiate proceeding against the Petitioner to evict the Petitioner from the premises allotted to her for breach of Rules and Regulations, in that case, the Authorities would be free to initiate separate proceeding and merely because in this petition this Court has quashed and set aside the direction of the Appellate Authority to evict the Appellant from the premises allotted to her, is no impediment to initiate such action. It is merely because no disadvantageous order can be passed in an appeal filed by the Petitioner beyond the prayers and pleadings, this Court has set aside the direction of the Appellate Authority to evict the Appellant from the premises allotted to her. In light of the above, the writ petition is allowed to above extent.

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 9149 of 2011

Decided On: 10.09.2013

 Vachalabai Haribhau Lingayat  Vs. Estate Manager, Aurangabad

Hon'ble Judges/Coram:

Sambhaji Shiwaji Shinde, J.

Citation: 2014(2) MHLJ 190,MANU/MH/1442/2013

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Whether the court can permit demolition of some part of religious places for the purpose of road widening?

 Thus, in the above decision the Court holds that if such places of worship are taken away for the purposes of carrying out the expansion of the road, it would not mean in any manner that a religious structure is being disrespected.

18. In the present case too, this Court is of the view that the larger public interest would outweigh the concerns raised by both the places of worship i.e., the Mandir as also the Masjid. There is no gainsaying that places of worship cannot be encroaching public land and hindering developmental activities meant for the larger segment of the public. In order to make the said pedestrian pathway uniform and so as to not inconvenience the pedestrians on the said busy stretch of the road which also has access to the Delhi Metro station, this Court is of the opinion that the PWD ought to be permitted to make the pedestrian pathway uniform. For the said purpose, if some portion of the Mandir/Masjid is to be broken/demolished, the same would have to be permitted by the Court.

2023/DHC/001358

 IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(C) 16609/2022.

DEVENDRA KUMAR & ORS. Vs  STATE (NCT OF DELHI) & ORS.

CORAM:JUSTICE PRATHIBA M. SINGH

Date of Decision: 23rd February, 2023

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Whether it is duty of the court to give mandatory injunction in cases of trespass?

  The entire circumstances revealed from the evidence on record unerringly point to the fact that the Appellant had encroached upon land belonging to the Respondent and without bona fides effected constructions which is verandah which is extension of residential building. The object of estoppel, as held in Madanappa's case, would be defeated if the said illegality is recognized and allowance is granted therefor. In the contextual situation, a decision of a learned Single Judge of High Court of Andhra Pradesh in N.C. Subbayya v. Pattan Abdulla Khan (1956) 69 LW (Andhra) 52 extracted in agreement in the decision by the learned Single Judge of High Court of Madras in the decision in Bodi Reddy v. Appu Goundan MANU/TN/0426/1970 : (1971) ILR 2 Madras 155, is worthy to be looked into. In the decision the learned Single Judge of the High Court of Andhra Pradesh after posing a question "has the court an absolute discretion to award damages instead of a mandatory injunction where there is a trespass by the Defendant on the Plaintiff's land?" held thus:

To say the building erected in such circumstances should not be directed to be removed and only damages could be awarded would, in my opinion, be ineffective, to sanction a condemnation of the Plaintiff's property and an appropriation of it for the Defendant's use.... To confine the relief to compensation in such a case is tantamount to allowing a trespasser to purchase another man's property against that man's will. No man should be compelled to sell his property against his will at a valuation and no person should be encouraged to do a wrongful act or commit a trespass relying on the length of his purse and his ability to pay damages for it.

To say that a small strip of building site could thus be appropriated by a trespasser would be to admit a Rule of law which can be applied limitlessly. In cases of trespass, the Court should ordinarily grant an injunction directing the Defendant to remove the encroachment and restore possession of the vacant site to the Plaintiff. Neither serious inconvenience to the Defendant--trespasser nor the absence of serious injury to the Plaintiff is a ground for depriving the latter for his legal right to the property.

As held by the learned Single Judge we are of the considered view that in a case where the owner of the land filed suit for recovery of possession of his land from the encroacher and once he establishes his title, merely because some structures are erected by the opposite party ignoring the objection, that too without any bona fide belief, denying the relief of recovery of possession would tantamount to allowing a trespasser/encroacher to purchase another man's property against that man's will. In Bodi Reddy's decision (supra) the learned Judge held that in a suit for recovery of possession filed within the period of limitation provided under Limitation Act, the doctrine of laches or acquiescence has no place to defeat the right of the Plaintiff to obtain the relief on his establishing his title.  {Para 20}

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 6182-6183 of 2009

Decided On: 02.02.2023

Baini Prasad (D) Thr. LRs. Vs. Durga Devi

Hon'ble Judges/Coram:

B.R. Gavai and C.T. Ravikumar, JJ.

Author: C.T. Ravikumar, J.

Citation: MANU/SC/0088/2023.

Read full Judgment here: Click here

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Whether the court can grant benefit of S 51 of Transfer of Property Act to encroacher of land?

Section 51 of the TP Act reads thus:

51. Improvements made by bona fide holders under defective titles.--When the transferee of immoveable property makes any improvement on the property believing in good faith that he is absolutely entitled thereto, and he is subsequently evicted there from by any person having a better title, the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell his interest in the property to the transferee at the then market value thereof irrespective of the value of such improvement. The amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction. When, under the circumstances aforesaid, the transferee has planted or sown on the property crops which are growing when he is evicted therefrom, he is entitled to such crops and to free ingress and egress to gather and carry them.

8. A perusal of Section 51, TP Act would reveal that even after the pre-requisites for the enforceability of equity enacted in it are satisfied, the right to election for one of the two alternatives provided under that Section would still rest with the person evicting. In other words, he may elect either to pay the value of improvements made by the Defendant who satisfies a description of "transferee" for the purpose of this Section and take the land or sell out his interests in the land to the transferee at the market value of the property, irrespective of the value of such improvements.

9. Section 51, TP Act is a general provision dealing with improvements effected by a transferee to the transferred property in the manner specifically provided thereunder. Thus, a bare perusal of Section 51, TP Act would reveal that in order to acquire the 'right to require' in the manner provided thereunder one should be a 'transferee' within the meaning of the TP Act and for the purpose of the said section. In short, Section 51 applies in terms to a transferee who makes improvements in good faith on a property believing himself to be its absolute owner. 

10. The original Appellant has failed to establish that he is a "transferee" within the meaning of the TP Act and for the purpose of Section 51, TP Act. In order to attract the Section the occupant of the land must have held possession under colour of title, his possession must not have been by mere possession of another but adverse to the title of the true owner and he must be under the bone fide belief that he has secured good title to the property in question and is the owner thereof. In short, Section 51 gives only statutory recognition to the above three things. At the same time, in the case on hand, the concurrent findings of the courts below is that the Respondent herein is the owner of the land in question and the original Appellants had encroached upon it and effected construction. The Appellants herein have failed to establish the above mentioned three things. The evidence on record would also go to show that even the construction was effected in deviation of the approved plan.

11. In the light of the concurrent findings on the questions of ownership and encroachment, as noted above, it can only be held that it was after encroaching upon the land in question and ignoring the absence of any title that he made structures thereon at his own risk. Once it is so found, the original Appellant cannot be treated as a 'transferee' within the meaning of the TP Act and for the purpose of Section 51, TP Act. Therefore, we have no hesitation to hold that the Appellants are not entitled to rely on the provision Under Section 51, TP Act to seek for restoration of the modification made by the First Appellate Court with respect to demolition and possession. The Appellants, rightly, did not take up the plea of adverse possession and in the circumstances, being not a transferee for the purpose of Section 51 TP Act, he cannot legally require the Respondent either to pay the value of improvements and take back the land or to sell out the land to him at the market value of the property, irrespective of the value of the improvements. 

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 6182-6183 of 2009

Decided On: 02.02.2023

Baini Prasad (D) Thr. LRs. Vs. Durga Devi

Hon'ble Judges/Coram:

B.R. Gavai and C.T. Ravikumar, JJ.

Author: C.T. Ravikumar, J.

Citation: MANU/SC/0088/2023

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Whether municipal Corporation can remove any encroachment over Municipal property after giving 48 hours notice?

 We are, therefore, not inclined to accept the plea that RMC has powers to remove any encroachment over the municipal property merely by a notice providing 48 hours' time. No such power for removing the encroachments over the municipal property by a simple notice has been conferred by the Legislature either to the Municipal Commissioner or the Chief Executive Officer or any other officer of the municipality, except acting in accordance with the procedure established by law. {Para 47}

JHARKHAND HIGH COURT

LPA No. 143 of 2022

Suresh Tirkey v The Governor With Connected Matters

 Pronounced on 10/08/2022

Per, Shree Chandrashekhar, J .

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Supreme Court Directions for eviction of unauthorized occupants over Gram Panchayat land

We find no merit in this appeal. The Appellants herein were trespassers who illegally encroached on to the Gram Panchayat land by using muscle power/money power and in collusion with the officials and even with the Gram Panchayat. We are of the opinion that such kind of blatant illegalities must not be condoned. Even if the Appellants have built houses on the land in question they must be ordered to remove their constructions, and possession of the land in question must be handed back to the Gram Panchayat. Regularizing such illegalities must not be permitted because it is Gram Sabha land which must be kept for the common use of villagers of the village. The letter dated 26.9.2007 of the Government of Punjab permitting regularization of possession of these unauthorized occupants is not valid. We are of the opinion that such letters are wholly illegal and without jurisdiction. In our opinion such illegalities cannot be regularized. We cannot allow the common interest of the villagers to suffer merely because the unauthorized occupation has subsisted for many years. {Para 13}

22. Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/Poramboke/Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1132/2011 

Decided On: 28.01.2011

 Jagpal Singh and Ors. Vs. State of Punjab and Ors.

Hon'ble Judges/Coram:

Markandey Katju and Gyan Sudha Misra, JJ.

Author: Markandey Katju, J.

Citation: MANU/SC/0078/2011

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Can Wakf tribunal decide suit relating to encroachment and tenancy over wakf property?

 It is clear that the Legislature has

added the underlined portion in the earlier

Section 83. If the amended Section 83(1) is

perused, it is quite apparent that any dispute,

question or other matter relating to Waqf

property, eviction of a tenant or determination of

rights and obligation of the lessor and the lessee

of such property i.e. Waqf property is to be

decided by the Waqf Tribunal. The amended

provision came into effect on 1st November 2013 and

naturally when the Waqf Tribunal decided the

Application on 5th May 2014, it was within its

jurisdiction to consider the dispute of tenancy

also, which was raised. This is apart from the

fact that the basic dispute the Tribunal was

dealing with, was whether or not the Applicant was

a trespasser as found under Section 54 of the Waqf

Act. To decide that dispute, it was required to

deal with the defence of the claim of tenancy.

10. Tribunal considered the admitted facts,

the law and opportunity given to applicant by

C.E.O. and rejected the application. The Applicant

is unable to show that the impugned order is not

correct, legal or proper. Consequently, there is

no substance in the Revision application.{Para 9}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CIVIL REVISION APPLICATION NO.127 OF 2014

Ishtaque Ali Sayyad Ali, Vs  Maharashtra State Wakf Board,

CORAM: A.I.S. CHEEMA, J.

DATED : 17TH FEBRUARY, 2015.

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Madras HC: Officers Can't Promote Encroachers By Allotting Alternative Lands In Absence Of Statutory Provision

 Learned Additional Advocate General could not refer to any provision of law, which mandates the State Government to allot a land to the encroachers. However, he prayed that till alternative lands are allotted, the encroachments may not be removed.

 {Para 4}

5. The encroachments are on the water-bodies. The allotment ofalternative lands to the encroachers, would only promote the tendency to encroach on the Government land and the water-bodies. For years, the Officers remained silent spectators and failed to take any action in reference to the encroachments on the water-bodies. Therefore, there is a total failure on the part of the Officers concerned to remove the encroachments on the waterbodies and even on catchment-areas. The encroachment of the water-bodies would lead to shrinkage of the water-bodies, destroying them to the maximum and creating acute water scarcity. At times, in the absence of storage facilities to store the water during rainy season, it causes floods.

6. In view of the above, learned Additional Advocate General could not clarify as to why the Officers are promoting the encroachers by allotting alternative lands else-where. It may be a Government policy or decision. However, in the absence of any statutory provision, it would lead to promoting encroachment of the lands on the water-bodies and the same cannot be endorsed.

THE  CHIEF JUSTICE and D.BHARATHA CHAKRAVARTHY, J

(The Order of the Court was made by The Honourable Chief Justice)

Dated: 23.03.2022

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Can Municipal corporation refuse to remove unauthorized construction on a public road if it is a religious structure?

 As noted above, once the Apex Court had way back in the year 2009 directed that no such unauthorized construction would be

permitted by any of the States or the UTs, in the name of any temples, church, mosque etc., it was incumbent upon the respondents to ensure that these directions of the Apex Court are meticulously complied with. In my view, in the light of these directions issued by the Apex Court way back in 2009 and lastly in 2018, the respondents could not have been permitted to carry out any unauthorized constructions on any public land. The encroachment in question which has taken place only on account of the utter negligence on the part of respondent no. 1, is clearly in blatant violation of the specific directions issued by the Supreme Court. In the light of these facts, the respondents cannot be permitted to take the plea that the matter still needs to be referred to the religious committee for its approval. From a perusal of the report of the concerned SHO noted hereinabove, it is crystal clear that the aforesaid unauthorized platform is not really being used as a religious structure as neither any prayers are being held there nor any offerings being made nor is any priest available at the site.”

5. As this Court reads the Circular of 05 May 2014 as well as the

observations entered in W.P.(C) 10949/2021, it is manifest that the state respondents remain duty bound to remove all unauthorised constructions which may exist on public land. The mere fact that those encroachments represent religious structures, a place of worship or are given the colour of a religious structure cannot possibly detract or dilute from that obligation. This position also stands duly explained and enunciated by the Supreme Court in its two orders which were noticed by the learned Judge in W.P.(C) 10949/2021. On a conjoint reading of the Circular as well as the decision in W.P.(C) 10949/2021, it is evident that all that the Circular intends to achieve is to ensure that the removal of encroachments is conducted in a structured manner and untoward incidents or a law and order situation being created avoided. The contents of that Circular also cannot be read as tempering the primal obligation of the respondents, namely to remove all unauthorised constructions, religious or otherwise.

IN THE HIGH COURT OF DELHI AT NEW DELHI

 W.P.(C) 12715/2021

KINGS FURNISHING AND SAFE CO Vs THE COMMISSIONER & ORS.

CORAM:

HON'BLE MR. JUSTICE YASHWANT VARMA

Dated: 14.03.2022

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What is the nature of proof required in suits for declaration of title against the Government?

 This brings the Court to the question of the onus of the Plaintiffs of proving their ownership of the suit property. It is well-settled that in cases of government land, there is a greater responsibility of Courts in ascertaining title of third parties. In fact, the plaintiff in such cases must establish his clear right, title and nature of possession in the property, superior to that of the Government authority and there is a presumption in favour of the Government. In such cases, the Supreme Court has clearly observed that it is not sufficient to show possession or adverse possession merely by some stray revenue entries or records. This position was elaborated upon by the Supreme Court in R. Hanumaiah and Ors. v. Secretary to Government of Karnataka, Revenue Department and Ors., (2010) SCC 203:

“Nature of proof required in suits for declaration of title against the Government {Para 30}

15. Suits for declaration of title against the government, though similar to suits for declaration of title against private individuals differ significantly in some aspects. The first difference is in regard to the presumption available in favour of the government. All lands which are not the property of any person or which are not vested in a local authority, belong to the government. All unoccupied lands are the property of the government, unless any person can establish his right or title to any such land. This presumption available to the government, is not available to any person or individual. The second difference is in regard to the period for which title and/or possession have to be established by a person suing for declaration of title. Establishing title/possession for a period exceeding twelve years may be adequate to establish title in a declaratory suit against any individual. On the other hand, title/possession for a period exceeding thirty years will have to be established to succeed in a declaratory suit for title against government. This follows from Article 112 of Limitation Act, 1963 which prescribes a longer period of thirty years as limitation in regard to suits by government as against the period of 12 years for suits by private individuals. The reason is obvious. Government properties are spread over the entire state and it is not always possible for the government to protect or safeguard its properties from encroachments. Many a time, its own officers who are expected to protect its properties and maintain proper records, either due to negligence or collusion, create entries in records to help private parties, to lay claim of ownership or possession against the government. Any loss of government property is ultimately the loss to the community. Courts owe a duty to be vigilant to ensure that public property is not converted into private property by unscrupulous elements.

16. Many civil courts deal with suits for declaration of title and injunction against government, in a casual manner, ignoring or overlooking the special features relating to government properties. Instances of such suits against government being routinely decreed, either ex parte or for want of proper contest, merely acting upon the oral assertions of plaintiffs or stray revenue entries are common. Whether the government contests the suit or not, before a suit for declaration of title against a government is decreed, the plaintiff should establish, either his title by producing the title deeds which satisfactorily trace title for a minimum period of thirty years prior to the date of the suit (except where title is claimed with reference to a grant or transfer by the government or a statutory development authority), or by establishing adverse possession for a period of more than thirty years. In such suits, courts cannot, ignoring the presumptions available in favour of the government, grant declaratory or injunctive decrees against the government by relying upon one of the principles underlying pleadings that plaint averments which are not denied or traversed are deemed to have been accepted or admitted. A court should necessarily seek an answer to the following question, before it grants a decree declaring title against the government : whether the plaintiff has produced title deeds tracing the title for a period of more than thirty years; or whether the plaintiff has established his adverse possession to the knowledge of the government for a period of more than thirty years, so as to convert his possession into title.

Incidental to that question, the court should also find out whether the plaintiff is recorded to be the owner or holder or occupant of the property in the revenue records or municipal records, for more than thirty years, and what is the nature of possession claimed by the plaintiff, if he is in possession - authorized or unauthorized; permissive; casual and occasional; furtive and clandestine; open, continuous and hostile; deemed or implied (following a title).

17. Mere temporary use or occupation without the animus to claim ownership or mere use at sufferance will not be sufficient to create any right adverse to the Government. In order to oust or defeat the title of the government, a claimant has to establish a clear title which is superior to or better than the title of the government or establish perfection of title by adverse possession for a period of more than thirty years with the knowledge of the government. To claim adverse possession, the possession of the claimant must be actual, open and visible, hostile to the owner (and therefore necessarily with the knowledge of the owner) and continued during the entire period necessary to create a bar under the law of limitation. In short, it should be adequate in continuity, publicity and in extent. Mere vague or doubtful assertions that the claimant has been in adverse possession will not be sufficient. Unexplained stray or sporadic entries for a year or for a few years will not be sufficient and should be ignored. As noticed above, many a time it is possible for a private citizen to get his name entered as the occupant of government land, with the help of collusive government servants. Only entries based on appropriate documents like grants, title deeds etc. or based upon actual verification of physical possession by an authority authorized to recognize such possession and make appropriate entries can be used against the government. By its very nature, a claim based on adverse possession requires clear and categorical pleadings and evidence, much more so, if it is against the government. Be that as it may.”

31. Thus, the Plaintiffs had a heavy onus to establish the following:

(i) That they had acquired the suit property through legally recognized documents such as registered sale deed, allotment from governmental authorities, etc. However, no such documents were produced by the Plaintiffs.

(ii) That the Plaintiffs were in possession of the suit property which falls in Khasra No.48/7 – this ought to have been established by positive evidence and not by an inference.

(iii) That the Plaintiffs had to rely on documents proved in accordance with law, even to establish possession – however, in this case, only some spattering revenue records which were marked and not even exhibited, were relied upon by the Plaintiffs.

32. The plaint in the present case is bereft of any pleadings as to how ownership/title was acquired by the Plaintiffs to the land in question. It is relevant to note that even paragraph 2 of the plaint shows the manner in which the Plaintiffs state that the suit property is not acquired by the Land Acquisition Collector and was not handed over to the DDA. This reflects the

state of mind of the Plaintiffs who seem to have themselves had an apprehension that the suit property may be falling in the acquired portion of the land.

36. In view of the above settled legal position, that mere sporadic or stray entries in the revenue records cannot confer title, and the facts mentioned above, this Court is of the opinion that the Plaintiff has failed to establish that there is any substantial question of law which deserves to be adjudicated upon in the present second appeal. In fact, from the evidence which has emerged from the record, it is clear that apart from some mention in khasra girdawaris, there are no other concrete documents which have been filed by the Plaintiff to discharge the heavy onus that is placed on him.

IN THE HIGH COURT OF DELHI AT NEW DELHI

 RSA 64/2020

NATHU RAM  Vs D.D.A & ANR

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Whether a public body can dispossess a party if the court rejects his application for interim relief after hearing both parties?

  In the present case also, similar to the decision in Prabhagiya Van Adhikai (supra), the manner in which the possession of Plaintiff/his family members is shown in some khasra girdawaris, that too as agriculturists and cultivators, for some sporadic periods but not continuously, does raise doubts as to whether they were in continuous possession or not. Therefore, the mere mention in some years of khasra girdawari showing possession, cannot by itself confer ownership and title in respect of such precious land. {Para 24}

25. In so far as the Trial Court’s finding stating that DDA cannot dispossess the Plaintiffs without due process of law, is concerned, this is clearly an erroneous approach inasmuch as even if the Plaintiffs are stated to be in settled possession, it is not necessary for the DDA to file a suit to take possession from them. The DDA can, as a Defendant, establish before the Court that the Plaintiffs are in possession of a government land and the same can result in dismissal of the suit. Due process of law, as is settled in several judgments of the Supreme Court and this Court, does not always require initiation of action by the owner/ Government. Dismissal of a suit by a competent Court of law after affording proper opportunity to the parties, is also a recognized mode of following the due process of law. On this issue, the observations of the Supreme Court in Maria Margarida Sequeira Fernandes & Ors. v. Erasmo Jack De Sequeira (Dead) through LRs, (2012) 5 SCC 370, are as under:

“81. Due process of law means nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity for the Defendant to file pleadings including written statement and documents before the Court of law. It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated by a competent Court.

82. The High Court of Delhi in a case Thomas Cook (India) Limited v. Hotel Imperial, 2006 (88) DRJ 545 : (AIR 2007) (NOC) 169) held as under:

"28. The expressions 'due process of law', 'due course of law' and 'recourse to law' have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed 'forcibly' by the true owner taking law in his own hands. All these expressions, however, mean the same thing - ejectment from settled possession can only be had by recourse to a court of law. Clearly, 'due process of law' or 'due course of law', here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner.

Now, this 'due process' or 'due course' condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence.”

26. This position was reiterated by this Court in Bal Bhagwan v. Delhi Development Authority [CM (M) 416/2019, decided on 18th December, 2020] holding that the ‘due process’ condition would be sufficiently met if a person in settled possession is dispossessed by the dismissal of an application for interim injunction, as long as the rights of the parties are adjudicated upon and opportunity is given to them to present their case. On the question of ‘due process’, this Court has observed as under:

“The issue as to what constitutes ‘due process’ is thus settled beyond any doubt. The Plaintiff, who is claiming possession, can be dispossessed in the suit for injunction filed by him. Due process does not always mean that the owner has to file the suit to prove his title. So long as a Court of law has examined the documents and has given a fair hearing to the parties concerned, the compliance of due process has taken place. Moreover, due process of law also does not mean the final adjudication after trial. It merely means an opportunity being given to present the case before the Court of law and the rights of the parties being adjudicated. It does not mean the whole trial, as per Maria Margarida (supra).

62. The main question to be determined is whether the Plaintiff, who is in settled possession, can be dispossessed in an application under Order XXXIX Rules 1 & 2 CPC. The answer is a clear yes.”

27. A special leave petition against this decision in Bal Bhagwan (supra) was also dismissed by the Supreme Court on 19th April, 2021, in SLP(C) No. 4247 / 2021 titled Bal Bhagwan v. DDA.

28. Recently in Mehvish Adil & Ors v. Delhi Wakf Board & Ors., [CRP 223/2019, decided on 15th December, 2021] this Court has observed in respect of Waqf land, which is also in the nature of a public land, as under:

“33. As held in Maria Margarida Sequeira Fernandes & Ors. v. Erasmo Jack De Sequeira (Dead) through LRs, (2012) 5 SCC 370, ‘due process’ need not always mean a process initiated by the owner it can be any judicial proceedings where the respective contentions of the parties are adjudicated in a free and fair manner and with proper opportunity being afforded to the parties. The observations of the Supreme Court in Maria Margarida (supra) are as under:

35. Thus, it is the settled legal position that ‘due process’ need not mean only an active process initiated by the owner of the property. It can even mean rejection of relief in a proceeding initiated by the occupants/encroachers or persons in possession.”

29. In view of this legal position, the requirement of adhering to due process of law has been satisfied in the present case and the Plaintiffs are not being dispossessed contrary to law.

40.  As government authorities continue to defend against suits filed by such occupants, the public is deprived of the use and enjoyment of the said land which has been acquired for public purposes. Thus, it is incumbent upon the Trial Courts, to consider the maintainability of such suits at the initial stage in a manner that they deem appropriate, so as to ensure that such long delays do not take place, especially in respect of government land.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

 RSA 64/2020

NATHU RAM  Vs D.D.A & ANR

CORAM:

JUSTICE PRATHIBA M. SINGH

Date of decision: 01st February, 2022

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Whether trespasser can claim that the land belongs to him based on the imposition of Non-agricultural tax and penalty on him?

 From the above it is clearly discernible that the N.A.

order does not give any entitlement of right or title to the plaintiffs in the suit open space. Needless to state that the open space belongs to one Dyanesh Kamlakar Samant as per the revenue record. Therefore it is beyond any reasonable doubt that the Plaintiffs are ranked encroachers in respect of the suit structures as well as the suit open space. The N.A. assessment order itself states that an application was made by Plaintiff Nos. 1 and 2 along with two others seeking to levy assessment in respect of the structures and the open space used by both for commercial purpose. The provision of section 45 of the MLRC

Act clearly envisage that it pertains to penalty for so using the land without permission of the Collector. The contents of the N.A. order levied penalty to the extent of ten times of the fine of the annual commercial assessment for the use of the structures and the open space. To construe that the N.A. order puts the Plaintiffs in settled possession and confers title on the Plaintiffs in respect of the open space is a fallacy and an erroneous proposition of law adopted by the Plaintiffs in their submissions. Such a position cannot be countenanced by the Court which requires to look at documentary evidence of title or existence of the names of the Plaintiffs in the primary revenue record pertaining to the suit land. In absence of any documentary evidence of title, the Plaintiffs' case of settled position and having right, title and interest conferred on the Plaintiffs by the N.A. order dated 26.01.2005 stands rejected.{Para 12}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

APPEAL FROM ORDER (ST) NO.4532 OF 2021

WITH

INTERIM APPLICATION (ST) NO.4533 OF 2021

Ramesh R. Pandey Vs Municipal Corporation of Greater Mumbai 

CORAM : MILIND N. JADHAV, J.

PRONOUNCED ON : MAY 18, 2021

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When is Municipal Corporation justified to remove encroachment done on the street?

 Perusal of the counter affidavit, map and the

photographs of the site in question clearly show

that, first, the stalls/structures of the respondents

were found erected on the sewer line/chamber;

Second, these structures/stalls were not erected by

the respondents with the permission of the

Commissioner as required under Section 312 (1) of

the Act; Third, no sanctioned map was filed by the

respondents to prove that the structures were legal;

and fourth, the stalls/structures were causing

obstruction to public at large and were causing

encroachment on the street (Bandra Station Road),

which is very narrow. {Para 22}

23. In the light of the aforementioned four factors

being present, we are of the considered opinion that

the appellant (Commissioner) was justified in

invoking the powers under Section 314 of the Act

against the respondents on 26.05.2018 for removal

of their stalls/structures. Since the action to

remove the stalls/structures was taken under

Section 314 of the Act, it was not necessary to give

any prior notice to the respondents though a

circular was issued on 05.10.2015 requesting the

respondents to remove their stalls/structures from

the site in question.

24. We are, therefore, unable to find any illegality

or arbitrariness or unreasonableness in the action

taken by the Commissioner under Section 314 of

the Act, which resulted in removal of the

respondents’ stalls/structures.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos.17271732

OF 2019

Municipal Corporation of  Greater Mumbai  Vs Rafiqunnisa M. Khalifa

Author: Abhay Manohar Sapre, J.

Dated: February 18, 2019.

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Whether Landlord can file composite suit seeking eviction of the tenant from tenanted property and encroached property?

 In Sopan Sukhdeo Sable and others v. Assistant Charity Commissioner and others, MANU/SC/0071/2004 : AIR 2004 SC 1801, the Hon'ble Supreme Court has held that a plaint is to be read in its entirety and not in piece. Whether relief could be granted on the pleaded facts and evidence adduced is totally different from the relief claimed. All the relevant claims may not be allowed to a party on the pleadings and evidence adduced. Whether part of the relief cannot be granted by the Civil Court is a different matter from saying that because of a combined claim of reliefs the jurisdiction is ousted or no cause of action is disclosed. Where the main dispute related to the question of continuance of tenancy and the period of tenancy of the appellant with the trust and other reliefs were regarding enquiry into affairs of the trust, the application would not have been rejected on the ground that the civil court lacks jurisdiction on account of institution of composite suit or on account of any misjoinder of cause of action. In this case, the Hon'ble Supreme Court held that reliefs relatable to sections 51 and 51 of the Bombay Public Trust Act, 1950, ought to have been segregated from the other reliefs in relation to tenancy and continuance of tenancy, since, such other reliefs were well within the jurisdiction of the civil court. Accordingly, adjudication of the suit was restricted only upon question of tenancy, terms of tenancy and the period of tenancy. For rest of the reliefs, plaintiff was permitted to make such application as warranted in law for relinquishment and/or giving up claim of other reliefs. From this, it is quite clear that even assuming that the suit in the present case was a composite suit seeking eviction not only from the tenanted premises but also from the encroached premises, that by itself, was not sufficient to dismiss the entire suit as not maintainable. As noted earlier, upon reading of the plaint in its entirety and the context in which the pleadings appear, it cannot be said that the relief was prayed for even in respect of encroached portion. In any case, the ratio of Sopan Sable (supra) is a clear answer to the issue that the suit could not have been dismissed in its entirety on the alleged ground that the same was a composite suit.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Civil Revision Application No. 60 of 2015

Decided On: 05.02.2018

 Mangilal Mishrimal Bafna  Vs. Nemichand Khetmal Jain 

Hon'ble Judges/Coram:

M.S. Sonak, J.

Citation:  2018(4)AllMR 104,

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Whether should the court appoint a court commissioner if there is no averment regarding encroachment?

 I find it rather difficult to accede to the broad submission on behalf of the respondents that the fact that the other side has an opportunity to object to the report of the Court Commissioner and may cross-examine the Court Commissioner would obviate the examination of the justifiability of the appointment of the Court Commissioner itself. It is pertinent to note that in the case of Kolhapuri Bandu Lakade (Supra), this Court had made it clear that the suit therein was instituted for declaration and restoration of possession after removing the encroachment by the respondent/defendant therein. A positive case of encroachment at the hands of the defendants was, apparently, made out in the said case.

18. In the case at hand, as observed earlier, the tenor of the plaint indicates that the suit was instituted to pre-empt the defendants from causing encroachment over the suit land. What tilts the scale is the fact that the area of the suit land bearing survey No. 70/6 was stated to be of 15 Are. According to the plaintiffs, the defendants attempted to commit encroachment over an area admeasuring 3 are from the southern and northern side. In the context of the total area of 15 Are, the encroachment to the tune of 3 Are each from southern and northern side can be neither said to be insignificant nor in-consequential. It is not the case that even subsequent to the institution of the suit, the plaintiffs made a positive assertion that the defendants have committed encroachment over a particular area of the suit land. Observations of the learned Civil Judge in the impugned order to the effect that the plaintiffs submitted that during the pendency of the suit, the defendants encroached upon the land to the extent of 3 Are, are not borne out by either the averments in the plaint or any other material on record.

19. The fact that in the application for appointment of the Court Commissioner (Exh. 100) also, there was no whisper about encroachment at the hands of the defendants could not have been ignored by the learned Civil Judge. As narrated above, a general assertion was made in the said application that the appointment of the Court Commissioner to measure the suit land would assist the Court in the determination of the controversy on merits. In this view of the matter, it would be rather hazardous to draw an inference that the plaintiffs had instituted the suit for removal of encroachment and recovery of the possession of the portion of the suit land. Thus, the justifiability of the appointment of the Court Commissioner on the premise that there was a dispute about the encroachment over the suit land becomes questionable.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 4078 of 2018

Decided On: 28.08.2019

Arjun Rambhau Dhankude Vs. Bhanudas Ramchandra Murkute

Hon'ble Judges/Coram:

N.J. Jamadar, J.

Citation: 2020(2) MHLJ 145

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Whether court should dismiss suit for removal of encroachment relying on court commissioner report?

The fact that the Local Commissioner's report, and for that matter a properly drawn up report, is requisite in the present case for the purpose of elucidating the matter in dispute is not of any debate, for the order dated 24.01.1991 passed by the First Appellate Court having attained finality whereby, additional issues were remitted for finding on the basis of Local Commissioner's report. In the given set of facts and circumstances, we are clearly of the view that if the report of the Local Commissioner was suffering from an irregularity i.e., want of following the applicable instructions, the proper course for the High Court was either to issue a fresh commission or to remand the matter for reconsideration but the entire suit could not have been dismissed for any irregularity on the part of Local Commissioner. To put it differently, we are clearly of the view that if the Local Commissioner's report was found wanting in compliance of applicable instructions for the purpose of demarcation, it was only a matter of irregularity and could have only resulted in discarding of such a report and requiring a fresh report but any such flaw, by itself, could have neither resulted in nullifying the order requiring appointment of Local Commissioner and for recording a finding after taking his report nor in dismissal of the suit. Hence, we are unable to approve the approach of High Court, where after rejecting the Commissioner's report, the High Court straightway proceeded to dismiss the suit. The Plaintiffs have been asserting encroachment by the Defendants on their land and have also adduced oral and documentary evidence in that regard. As noticed, the First Appellate Court had allowed the appeal and decreed the suit filed by the Plaintiff not only with reference to the Commissioner's report but also with reference to the other evidence of the parties. Unfortunately, the High Court appears to have overlooked the other evidence on record.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 8285 of 2009

Decided On: 04.02.2019

 Ram Lal Vs. Salig Ram and Ors.

Hon'ble Judges/Coram:

Abhay Manohar Sapre and Dinesh Maheshwari, JJ.

Citation: 2020(1) MHLJ 170

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Whether plaintiff can get title on government land by adverse possession if he pays penalty in encroachment case?

The court further observed that plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."

(Emphasis laid)

11. Ext. 3, rent receipt, shows that the father of the plaintiffs paid penalty in Encroachment Case No. 1/82. This Court in the case of Abu Bakkar Habib (MANU/OR/0020/2017 : AIR 2017 Ori 36) held that when penalty is paid, the plaintiff admits the title of the State. The possession is not hostile to the real owner and amount to a denial of title to the property claimed.

12. The plaintiffs have failed to prove the date of entry into the suit land. Their father paid the penalty. The element of hostile animus is absent. The findings of the courts below with regard to acquisition of title by the plaintiffs are perverse. The substantial question of law has been answered accordingly.

IN THE HIGH COURT OF ORISSA

S.A. No. 7 of 1997

Decided On: 25.01.2019

State of Orissa  Vs.  Jaladhar Sha and Ors.

Hon'ble Judges/Coram:

Dr. Akshaya Kumar Rath, J.

Citation: AIR 2019 Orissa 48

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Whether appointment of court commissioner to measure suit property is necessary to ascertain encroachment??

Although these two documents are on record, the material thing that needs consideration is whether the plaint map prepared by PW 3 Balwant 'retired Talathi' could be relied upon to hold that there is an encroachment on plaintiffs land and if there is one ,what is the extent. This is the only map (Exh. 76) on record, as far as measurement of the site is concerned. It appears to me that it would not be proper to rely on this measurement map, for the site does not seem to have been measured scientifically and after notice to the defendant. PW 3 Balawant in examination-in-chief says that he measured the site on the basis of 1920 map and it was shown to him by Surendrasing the plaintiff. It is not clear if it was a Survey map drawn by Government agency or department or a private map. Whatever that was, that too should have been placed on record. He admits in cross-examination that he had not seen the title-deed of either party. He also states that the map is drawn as told by Surendrasing. He says that he does not know the number of the map and he did not bring those notes of measurement before the court. It is obvious that the map was drawn as suggested by Surendrasing the plaintiff. It is not a measurement done independently and on basis of authenticated documents. He does not say if he had seen any document before he measured. One, therefore, wonders as to how then he could determine the boundaries of the plots of the plaintiff as well that of the defendant. He does not say if he found any fixed mark of survey department at any spot and that he measured it taking that point as base point. It is, therefore, clear that the measurement map (Exh. 26) cannot be taken as a correct map. The courts below, therefore, should have appointed a Commissioner to measure not only the plot of the plaintiff but that of defendant also with reference to defendant's sale deed (Exh. 65) and also with reference to survey map (Exh. 61). It also appears that plaintiff had filed on record a certified copy of the sanction plan of house of plaintiff and it is at Article 'B'. This sanction plan of plaintiff's house is of the year 1923. Obviously, it is a very old document and material document to determine the exact extent of the land of plaintiff's site. Since sale deed of the plaintiff's site is not available, this document would be of immense help at the time of the measurement. In fact, therefore, the above documents would certainly have helped the measurer to measure the land and for the court to determine the question of encroachment correctly. To my mind, therefore, the courts below erred in not appointing a Commissioner to measure the site of the plaintiff and defendant both with reference to these documents. In order that the suit is finally and effectually decided, it is, therefore, desirable to have measurement of the both the sites which measurement can be undertaken by Surveyor from the City Survey Department.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 67 of 1996

Decided On: 29.01.2008

 Shamlata  Vs. Vishweshwar Tukaram Giripunje and Ors.

Hon'ble Judges: 

C.L. Pangarkar, J.

Citation: AIR 2008 Bom 155

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