Summary
Plaintiffs who held land since a 1970 registered purchase from a court-auction buyer, with a pattadar passbook and land revenue receipts, were dispossessed by the State in 1995 for a DIET building on the plea that it was assigned land liable to resumption; the High Court reversed the decree in their favour. The Court held that the State, which produced no D-Form patta or record of assignment, had not rebutted the presumption of ownership arising from over twenty years' possession under Section 113 of the Bharatiya Sakshya Adhiniyam (Section 110 of the Evidence Act), that the pattadar passbook vested 'property' within Article 300-A, and that public authorities must respond to Section 80 CPC notices. As the construction was complete, Rs 70 lakhs compensation was directed instead of restoration of possession.
Issues
- Whether the High Court erred in reversing the decree of title on the footing that the suit land was Government-assigned land that could be resumed for a public purpose, when the State produced no D-Form patta or record of assignment.
- What presumption arises under Section 113 of the Bharatiya Sakshya Adhiniyam, 2023 (Section 110 of the Evidence Act, 1872) from the plaintiffs' proven possession for over twenty years, and on whom the onus lies in a title suit against the Government.
- What principles govern suits for declaration of title against the Government, and how burden and onus of proof operate in a suit for possession based on title.
- What is the effect of a pattadar passbook issued under the Andhra Pradesh (Record of Rights in Land and Pattadar Pass Books) Act, 1971, and whether the rights so vested are 'property' under Article 300-A of the Constitution.
- What duty Section 80 CPC casts on the Government when a statutory notice is received, and what consequence follows from ignoring it.
- Whether, the construction being complete, the plaintiffs should be restored to possession or compensated in money.
Provisions considered
- Sections 2(7), 6 and 6-A, Andhra Pradesh (Record of Rights in Land and Pattadar Pass Books) Act, 1971A pattadar holds land directly under the Government and is registered as liable to pay land revenue; under Section 6 every entry in the record of rights is presumed true until the contrary is proved, and under Section 6-A(5) the passbook is the record of title. Recording a right is not by itself conclusive proof of title, but once followed by a pattadar passbook it raises a presumption that the holder has a right in the land. The appellants' passbook and revenue receipts, admittedly issued by the State, together with an unchallenged 1970 sale deed, supported their pattadar title, and the rights so vested were 'property' within Article 300-A. (¶¶ 38, 39, 44, 45, 69, 85, 123)
- Sections 2(1), 2(3), 2(6), 3, 4, 5, 6 and 7, Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977Lands assigned to landless poor persons subject to non-alienation cannot be transferred and are deemed never to have been transferred (Section 3), save bona fide pre-Act purchases by landless poor persons (Section 3(5)); on contravention the Collector may evict and restore or resume the land (Section 4), the possessor bearing the burden of disproving contravention (Section 4(3)). The State's witness admitted that no enquiry under Section 3 was held and neither the D-Form patta nor the date of assignment was produced, so the State failed to prove the land was assigned land at all; reliance on the Full Bench in Dharma Reddy, which dealt only with the Act's retrospectivity, was unnecessary. (¶¶ 46, 50, 52, 54, 56, 57, 64, 65, 86)
- Section 113, Bharatiya Sakshya Adhiniyam, 2023 (corresponding to Section 110, Indian Evidence Act, 1872)Where the question is whether a person shown to be in possession is the owner, the burden of proving that he is not lies on the person who so affirms. The Section draws no distinction between the Government and a private citizen; since the plaintiffs were admittedly in possession for over twenty years before being dispossessed, the onus was on the State to prove a subsisting title. The presumption is rebuttable and arises where possession is prima facie lawful and the contesting party has no title; a revenue record is not a document of title but raises a presumption of possession and its continuity. The State led no credible evidence in rebuttal. (¶¶ 70, 71, 72, 74, 83, 84, 85)
- Section 80 (with Sections 79 and Order XXVII), Code of Civil Procedure, 1908Section 80 bars a suit against the Government until two months after a written notice stating the cause of action and relief, so that the Government may objectively examine the claim, settle it if just, or at least tell the claimant why it is resisted. The appellants served such a notice but received no reply. The Court held that public authorities must take statutory notices seriously and state their stand within the statutory period; where they do not, courts may draw an adverse presumption and treat a stand first taken at trial as an afterthought, as happened here. The Registry was directed to circulate the judgment to all High Courts and Chief Secretaries with emphasis on this chapter. (¶¶ 93, 95, 97, 98, 103, 104, 105, 113, 129)
- Article 300-A, Constitution of IndiaEven treating the appellants merely as occupants with rights of possession, cultivation and enjoyment, the rights vested by the pattadar passbook were 'property' within Article 300-A, of which no person may be deprived save by authority of law, meaning a law made by a competent legislature (Wazir Chand, Bishambhar Dayal, Jilubhai Nanbhai Khachar). The State's forcible taking without any legal process or compensation was an exercise of raw power. (¶¶ 65, 123, 124, 125, 126)
Held
- The approach of both courts below was wrong: the trial court examined only whether the resumption followed proper procedure, while the High Court proceeded on the footing that the land was assigned land whose conditions had been breached, and overlooked the legal effect of the appellants' undisputed possession from 1970 until they were dispossessed. On the evidence, whether the land was assigned to the original holder or owned by him was unclear; if the State asserted assignment it had to prove it, and its witness admitted the State had the record of the year of assignment yet produced neither it nor the D-Form patta, had no knowledge of the mortgage, the mortgage decree, the court auction or the 1970 sale deed, and could not explain the passbook and revenue receipts issued by his own department. (¶¶ 58, 64, 65, 69)
- Whether land is assigned or privately owned, a State needing it for a public purpose must acquire it in accordance with law, in particular under the Land Acquisition Act, on payment of compensation; it cannot resume it by force on the assertion that the occupants are in illegal possession. Here the State, knowing the appellants had been in lawful possession for over twenty years, shut its eyes to the mortgage suit, the civil court decree, the court auction and sale certificate, and the registered sale deed, and took possession without compensation, which was an exhibition of raw power. (¶ 65)
- Only facts that are proved can be taken to exist in a court of law; a party claiming a privileged or protected status for property must prove it (Narayan Anandram Marwadi v. Gowbai, Bombay High Court, 1912, approved). Applied here, in the absence of proof that the land was assigned land, there was no reason to treat it as such. (¶¶ 66, 67, 68)
- Section 113 of the Bharatiya Sakshya Adhiniyam (Section 110 of the Evidence Act) embodies the principle that possession is prima facie proof of ownership: a person in possession may remain until another shows a better title, and once the plaintiff proves possession the burden of proving that he is not the owner lies on the defendant, whether a private party or the Government. The presumption is rebuttable and arises when possession is prima facie lawful and the contesting party has no title; it does not aid a usurper. The appellants proved peaceful possession since 1970, the State failed to prove its title, and the mere fact that the suit land is surrounded by Government parcels does not make it Government land; the appellants therefore have pattadars' title. The High Court's resort to Dharma Reddy, which discussed only the retrospectivity of the 1977 Act, was unnecessary. (¶¶ 72, 74, 76, 79, 83, 84, 85, 86)
- Following R. Hanumaiah, suits for declaration of title against the Government differ from suits against private parties: unoccupied land not vested in any person or local authority is presumed to belong to the Government, and the plaintiff must establish title or possession for thirty years rather than twelve. A decree against the Government must not be passed casually; the trial court must insist on title deeds tracing ownership for over thirty years or adverse possession for thirty years, verify whether the plaintiff is recorded as owner, holder or occupant in revenue or municipal records for over thirty years, and scrutinise the nature of the possession asserted, so that public property is not converted into private ownership. (¶¶ 87, 88)
- The test of 'proved', 'disproved' and 'not proved' in Section 3 of the Evidence Act is the same in civil and criminal cases, but civil cases are decided on a preponderance of probability, with degrees of probability varying with the subject matter. In a suit for recovery of possession based on title the plaintiff must prove his title, but burden of proof (which never shifts) differs from onus of proof (which shifts continuously as evidence is evaluated); once the plaintiff creates a high degree of probability sufficient to shift the onus, the defendant must discharge it, failing which the plaintiff's burden stands discharged and his title proved. (¶¶ 89, 90, 91, 92)
- The object of the notice under Section 80 CPC is to give the Government an opportunity to examine the claim objectively, obtain legal advice, and settle it if just, or at least tell the claimant why it is resisted, thereby avoiding wasteful litigation (Bihari Chowdhary, Geeta Iron and Brass Works, Raghunath Das). Public authorities must take statutory notices seriously and must not sit over them; they are expected to inform the plaintiff of their stand within the statutory period or at least before litigation begins. In appropriate cases courts may draw an adverse presumption against an authority that neither acknowledges the notice nor states its stand, and a stand first taken at trial may be treated as an afterthought, as in this case where the notice went unanswered. (¶¶ 97, 98, 99, 100, 105, 106, 107, 112, 113)
- Although the appeal deserved to be allowed and the suit decreed with restoration of possession, such a decree could not be given effect to since the construction was completed almost thirty years ago and the State could not be asked to demolish it; the State must instead compensate the appellants in money. The Court noted the seven-Judge Full Bench of the Andhra Pradesh High Court in Mekala Pandu holding that a 'no compensation' clause in a D-Form patta is an unconstitutional condition infringing Articles 14 and 31-A (and Article 21 where deprivation of land affects livelihood), and that assignees are entitled to compensation at full market value even where assigned land is resumed for a public purpose in accordance with the terms of the grant. (¶¶ 114, 115, 121, 122)
- The State admitted issuing the pattadar passbook and receiving land revenue from the appellants. Even ignoring the 1970 sale deed and treating them as mere occupants with rights of possession, cultivation and enjoyment, what vested in them by the passbook was 'property' within Article 300-A, which permits deprivation only by authority of law, that is, by or under a law made by a competent legislature; the Executive cannot deprive a person of property without specific legal authority however laudable the motive, and a person dispossessed without authority of law may obtain restoration by mandamus (Wazir Chand, Bishambhar Dayal, Jilubhai Nanbhai Khachar). The right to property is recognised as a basic human right (Delhi Airtech). (¶¶ 123, 124, 125, 126)
- Having regard to the nature of the land, its extent of about three acres and the thirty years spent in litigation, the State was directed to pay Rs 70 lakhs as compensation to the appellants within three months, and the Registry was directed to circulate the judgment to all High Courts and all State Chief Secretaries with emphasis on the discussion of Section 80 CPC. (¶¶ 127, 128, 129)
Result
Appeal disposed of. Respondents directed to pay the appellants Rs 70 lakhs as compensation within three months of the judgment, in lieu of restoration of possession. Registry to circulate the judgment to all High Courts and the Chief Secretaries of all States, with emphasis on the chapter on Section 80 CPC.