GOVERNMENT OF KERALA & ANR. versus JOSEPH AND OTHERS

Citation: [2023] 11 S.C.R. 264 · Decided: 09-08-2023 · Supreme Court of India · Bench: ABHAY S. OKA · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · cites 20 · see the full citation network in Lexace

Judgment (excerpt)

[2023] 11 S.C.R. 264 : 2023 INSC 693
264
CASE DETAILS
GOVERNMENT OF KERALA & ANR.
v.
JOSEPH AND OTHERS
(Civil Appeal No. 3142 of 2010)
AUGUST 09, 2023
[ABHAY S. OKA AND SANJAY KAROL, JJ.]
HEADNOTES
Issue for consideration : Whether the impugned judgment, arising out 
of Second Appeal meets the established criteria for Second Appeal; and whether 
the respondents are entitled to the relief of adverse possession or is the claim so 
made, barred by the Kerala Land Conservancy Act, 1957.
Adverse possession : Principles of – Land being a government 
poramboke land – Relief of adverse possession sought by the claimants 
contending that they had acquired title to the land in 1940 and had been 
in possession and in continued enjoyment since then – Entitlement to:
Held : Claimants to be granted the enjoyment of the property, clear, 
continuous and hostile possession would have to be established by way of 
cogent evidence and animus possidendi must be demonstrated – On the basis 
of the estimated age of trees, the length of possession of the claimants is being 
calculated – Estimation of age of the trees cannot be termed as suffi  cient proof 
required to disturb the title that rests with the Government – Merely a long period 
of possession, does not translate into the right of adverse possession – Surmises, 
conjectures and approximations cannot serve the basis for taking away the right 
over land resting with the State and place the said bundle of rights in the hands 
of one who did not have any such rights – Findings by the High Court that the 
witnesses established the claimants’ claims by way of adverse possession is 
erroneous – Also, the bar enshrined in s.20 cannot be applied – Furthermore, 
the impugned judgment did not comply with the contours of s. 100 CPC – 
Thus, the order passed by the High Court that the land rightfully belonged to 
265
GOVERNMENT OF KERALA & ANR. v. 
JOSEPH AND OTHERS
the claimants by virtue of the principle of adverse possession set aside – Kerala 
Land Conservancy Act, 1957 – s. 20. [Paras 11, 19, 22, 27, 28, 37 and 38]
Adverse possession: Claim of – Principles governing such claim: 
Held : Possession must be open, clear, continuous and hostile to the 
claim or possession of the other party – All three requirements must co-exist- 
nec vi, i.e., adequate in continuity; nec clam, i.e., adequate in publicity; and nec 
precario, i.e., adverse to a competitor, in denial of title and knowledge – Burden 
of proof rests on the person claiming adverse possession who must show clear 
and cogent evidence to substantiate such claim – Plea of adverse possession 
must be pleaded with proper particulars – Mere possession over a property 
for a long period of time does not grant the right of adverse possession on its 
own – Such clear and continuous possession must be accompanied by animus 
possidendi-intention to possess or in other words, the intention to dispossess 
the rightful owner – In case of Government land, the Court is duty-bound to 
act with greater seriousness, eff ectiveness, care and circumspection. [Paras 
21.1- 21.4, 21.7, 21.8 and 21.10]
Code of Civil Procedure, 1908 – s.100 – Maintainability of second 
appeal under – Requirement of:
Held : Jurisdiction u/s. 100 is exercisable only when the Court 
is convinced that the dispute involves a substantial question of law, and 
proceeding under this jurisdiction sans framing questions of such nature 
renders the proceedings to be “patently illegal – Impugned judgment does 
not refl ect any question of law, either substantial or involving in the case to 
have been framed by the Court in the Second Appeal – In view thereof, the 
impugned judgment erroneous for not complying with the contours of s. 100. 
[Paras 8, 9 and11]
Kerala Land Conservancy Act, 1957 – s. 20 – Saving of suits by 
persons aggrieved by proceedings under this Act – Claim so made, if 
barred by s. 20:
Held : For the bar to apply, the civil suit instituted would have to be 
against an order passed by the competent authority under this Act in respect of 
unauthorised occupation of Government land – On facts, original notice was 
appealed before the Collector who dismissed the same and the said order was 
not challenged –Suit for declaration was fi led before the Civil Court seeking 
266
SUPREME COURT REPORTS 
[2023] 11 S.C.R.
a permanent injunction against any proceedings in respect of eviction and 
also possession and title of the land in question – Disputed property being 
a Government p

Excerpt shown. Read the full judgment & AI analysis in Lexace.