JUDGMENT
Syed Shah Mohammed Quardi, J.
1. These two appeals are from the common judgment of a
Division Bench of the High Court of Andhra Pradesh in Writ
Petition (C) No. 3414 of 1982 and Appeal Suit No. 2291 of
1986 dated 24th January, 1989.
2. The appeals arise on the same facts and one set of the
parties is common. The subject matter of litigation is an
extent of acres 2423.37 in Jatprole Jagir, Kollapur Taluk,
Mahboobnagar District in the erstwhile the Nizam’s State of
Hyderabad. After the accession of the Nizam’s State of
Hyderabad with the Union of India, the Andhra Pradesh
(Abolition of Jagirs) Regulations, 1358 Fasli (hereinafter
referred to as ‘the Regulation’) came into force on September
20, 1949. Under that Regulations, all Jagirs, including the
Jatprole Jagir, stood abolished from that date and their
administration stood vested in the State. Raja S.V.
Jagannadha Rao was the last Jagirdar. Respondent No.s 3 and 4
are his legal representatives [hereinafter referred to as ‘the
Pattedars’]. It is the case of the pattedars that when the
State took over the Jagir, the Forest Department of the State
took under its control the forest land, measuring acres
1,20,824. However, the lands comprised in Survey No. 11 of
Asadpur village measuring acres 1523 and Survey No. 168 of
Malachintnapalli village measuring acres 9000 continued to
remained in the possession of the Raja as his patta lands.
Soon thereafter, Notification No. 282 under Section 29 of the
Andhra Pradesh (Telengana Area) Forest Act, 1355 Fasli [for
short, ‘the Forest Act’] was issued on December 4, 1950. The
notification enumerated fourteen villages comprising of an
extent of 93,030 acres of Kollapur taluk Mahboobnagar
District, which was named as Kollapur range. It appears that
a notification under Section 30 of the Forest Act was also
issued but that notification is not on record. In the year
1953, re-survey of the erstwhile Jagir was conducted. The
lands in question, namely, Survey No. 40 (old) was assigned
Survey No. 11 and Survey No. 241 (old) was assigned Survey
No. 168; however, the finalisation of the survey was done in
1962. The Pattedars filed an application under Section 87 of
the Andhra Pradesh (Telengana Area) Land Revenue Act, 1317
Fasli [for short, ‘the Land Revenue Act’] to rectify the
mistake noted in the settlement record pursuant to the said
re-survey. The mistake was alleged to be that the name of the
Khatedar was not shown against the said survey numbers which
were shown as ‘Mahasura’ (protected). The District Collector,
after conducting the necessary enquiry and on a joint
inspection in which the Land Record Assistant and the Forest
Range Officer participated and in which working plan was
produced showing the area as the patta of the late Jagirdar,
passed an order on April 25, 1966 directing rectification of
the settlement record. Based on the said order, the Director
of Settlement rectified the records and issued a supplementary
setwar on May 11, 1966.
3. Under the Forest Act, a person who transports forest
produce is required to obtain transit permit. Though in the
past, the Pattedars were transporting forest produce on
obtaining transit permits, it was, however, denied to them on
their application made on October 14, 1966. It is worth
noticing that the Tehsildar of those villages recommended
granting of transit permits showing the lands as patta lands.
It was for the first time that the Forest Department appeared
to have taken the plea that the lands in question were forest
lands and the Chief Conservator of Forest (Appellant No. 1 in
Civil Appeal No. 8580 of 1994) expressed that the lands in
question were forest land and doubted they were patta lands of
the Pattedars. The doubt expressed by the Chief Conservator
of Forest in regard to the nature of the said lands led to a
further probe into the matter as to whether the lands
comprised in the aforementioned survey numbers were treated as
part of Jagir at the time of taking over the Jagir or whether
they were treated as patta lands of the Raja. In view of the
queries made by the Chief Conservator of Forest, the
Collector, Mahboobnagar District formulated as many as five
questions and directed the Tehsildar to furnish replies
thereto. On May 2, 1972, the Tehsildar replied that the lands
in question were patta lands and assessed to land revenue;
there was nothing on record to show that they were taken over
along with the Jagir and other forest area under the
supervision of the Government. A letter No. D.Dis.J/2706/72
dated 21st October, 1972 from the R.D.O. addressed to the
Collector discloses that from the accounts maintained for the
period prior to the re-survey in the year 1953, rectification
of the record and issuance of supplementary setwar, it was
proved that the lands in question were the personal property
of the late Raja. Further, on January 16, 1974, a letter was
addressed by the Director of Settlement to the Chief
Conservator of Forest that the lands in question were in
possession of the respondents prior to the abolition of Jagirs
and that the matter did not require any further examination as
the rectification of record was made under Section 87 of the
Land Revenue Act. There is a reference to the report of the
R.D.O. dated 31st October, 1975, which was made on inspection
and after making local enquiries, stating that the lands were
in possession of the Pattedars as private patta land. While
so, the Government of Andhra Pradesh proposed to acquire the
lands in question which were likely to be submerged upon
completion of the Srisailam Project. Two notification were
issued under Section 4 of the Land Acquisition Act, 1894. The
first was issued on January 31, 1975 proposing to acquire 410
acres out of the land in Survey No. 11 in Asadpur village and
the second was issued on November 4, 1976 proposing to acquire
an extent of 45 acres and 20 guntas of land in Survey No. 168
in Malachintapalli village for Srisailam Project. However,
the Government of Andhra Pradesh issued orders cancelling the
said notifications issued under Section 4 of the Land
Acquisition Act, 1894 and withdrawing from the acquisition, on
the ground that the said lands were Government lands, on
February 16, 1978. The said order was assailed by the
Pattedars in Writ Petition (C) No. 2084 of 1978 before the
High Court of Andhra Pradesh. The High Court quashed the
recital in the impugned order of the Government that the said
lands belonged to the Government but in other respects
maintained the same by partly allowing the writ petition on
February 21, 1979. This gave rise to filing of a declaratory
suit by the Pattedars and ordering further enquiry into the
matter by the Government of Andhra Pradesh.
4. In view of the dispute between the two departments of
the Government with regard to the title to the lands in
question, the Government of Andhra Pradesh issued orders on
17th August, 1979 directing the Commissioner of Survey,
Settlement and Land Record to make an enquiry under Section
166-B of the Land Revenue Act and to pass a speaking order
after hearing the parties concerned. While the enquiry was
pending, the Pattedars filed the suit (O.S. No. 73 of 1979,
which was re-numbered as O.S. 7 of 1984) in the court of the
learned Subordinate Judge, Wanaparthy, Mahboobnagar District,
for a declaration of title, recovery of compensation for the
lands in question and for rendition of accounts. Pursuant to
the said order of the Government, the Commissioner conducted
an enquiry, heard both the parties and opined that the
order of the Collector, passed under Section 87 of the
Land Revenue Act, was correct and did not call for any
interference therewith. That order was passed by the
Commissioner on December 5, 1981. The Government apparently
accepted that order of the Commissioner as no further steps
were taken by it to correct or set aside that order. However,
the doubt in the mind of the Chief Conservator of Forest still
persisted and he filed Writ Petition (C) No. 3414 of 1982 in
the High Court of Andhra Pradesh challenging the order of the
Commissioner of Survey, Settlement and Land Record dated
December 5, 1981.
5. The trial court, after conducting trial and on
consideration of the evidence on record, decreed the suit with
costs, insofar as the reliefs of declaration of title and
rendition of accounts but declined the relief of award of
compensation/damages by judgment and decree dated March 25,
1985. Aggrieved by the judgment and decree of the learned
Subordinate Judge, the defendants – the Land Acquisition
Officer, Mahboobnagar District and the Government of Andhra
Pradesh represented by the Collector, Mahboobnagar – filed
Appeal No. 2291 of 1986, before the High Court of Andhra
Pradesh. The afore-mentioned Writ Petition (C) No. 3414 of
1983 and Appeal No. 2291 of 1986 were heard together and
dismissed by a Division Bench of the High Court by a common
judgment on April 21, 1989, which is the subject matter of
challenge in the appeals before us.
6. Mr. P.P. Rao, learned senior counsel appearing for
the Pattedars-respondents in Civil Appeal No. 8530 of 1994
and Mr. Harish N. Salve, learned senior counsel appearing
for the Pattedars-respondents in Civil Appeal No. 9097 of
1995, raised a preliminary objection as to the maintainability
of the writ petition filed by the Chief Conservator of Forest
as well as the appeal arising therefrom. Article 300 of the
Constitution of India, it is contended, provides that the
Government of a State may sue or be sued in the name of the
State; Section 79 of the code of Civil Procedure, 1908
directs that the State shall be the authority to be named as
plaintiff or defendant in a suit by or against the Government
and Section 80 thereof directs notice to the Secretary to that
State or the Collector of the District before the institution
of the suit; and Rule 1 of Order 27 lays down as to who
should sign the pleadings. No individual officer of the
Government under the scheme of the Constitution or the Code of
Civil Procedure can file a suit or initiate any proceeding in
the name of the post he is holding, which is not a juristic
person. Ms. K. Amreswari, learned senior counsel appearing
for the appellants, has argued that before filing the appeal,
the Chief Conservator of Forest had obtained orders and,
therefore, the writ petition and the appeal should be deemed
to be filed by the Government of Andhra Pradesh; not naming
the Government of Andhra Pradesh in the writ petition as the
petitioner or in the appeal as the appellant is only a
procedural matter and, therefore, it is not fatal to the
maintainability of the writ petition and the appeal.
7. To appreciate the contention of the learned senior
counsel, it will be useful to refer to the relevant provisions
of the Constitution of India [for short, ‘the Constitution’]
and the Code of Civil Procedure, 1908 [for short, ‘the
C.P.C.’]. Article 300 of the Constitution falls in Chapter
III, which deals with property, contract, rights, liabilities,
obligations and suits. Article 300 reads as follows:
“300. Suits and proceedings.– (1) The
Government of India may sue or be sued by the
name of the Union of India and the Government
of a State may use or be sued by the name of
the State and may, subject to any provisions
which may be made by Act of Parliament or of
the Legislature of such State enacted by virtue
of powers conferred by this Constitution, sue
or be sued in relation to their respective
affairs in the like cases as the Dominion of
India and the corresponding Provinces or the
corresponding Indian States might have sued or
been sued if this Constitution had not been
enacted.
(2) If at the commencement of this
Constitution–
(a) any legal proceedings are pending to which
the Dominion of India is a party, the Union of
India shall be deemed to be substituted for the
Dominion in those proceedings; and
(b) any legal proceedings are pending to which
a Province or an Indian State is a party, the
corresponding State shall be deemed to be
substituted for the Province or the Indian State
in those proceedings.”
8. From a perusal of the provision, extracted above, it is
evident that the Government of India as also the Government of
a State may sue or be sued by the name of the Union of India
or by the name of the State respectively, subject, of course,
to any provisions which may be made by Act of Parliament or of
Legislature of such State by virtue of powers conferred by the
Constitution.
9. Section 79 of the C.P.C. deals with suits by or
against the Government. It reads thus:
“79. Suits by or against Government.– In a
suit by or against the Government, the
authority to be named as plaintiff or
defendant, as the case may be, shall be–
(a) in the case of a suit by or against the
Central Government, the Union of India; and
(b) in the case of a suit by or against a
State Government, the State.”
10. A plain reading of Section 79 shows that in a suit by
or against the Government, the authority to be named as
plaintiff or defendant, as the case may be, in the case of the
Central Government, the Union of India and in the case of the
State Government, the State, which is suing or is being sued.
11. Order 27 of Rule 1, as mentioned above, deals with
suits by or against the Government or by officers in their
official capacity. Rule 1 of Order 27 C.P.C. says that in
any suit by or against the Government, the plaint or the
written statement shall be signed by such person as the
Government may be general or special order appoint in that
behalf and shall be verified by any person whom the Government
may so appoint.
12. In needs to be noted here that a legal entity – a
natural person or an artificial person – can sue or be sued in
his/its own name in a court of law or a Tribunal. It is not
merely a procedural formality but is essentially a mater of
substance and considerable significance. That is why there
are special provisions in the Constitution and the Code of
Civil Procedure as to how the Central Government or the
Government of a State may sue or be sued. So also there are
special provisions in regard to other juristic persons
specifying as to how they can sue or be sued. In giving
description of a party it will be useful to remember the
distinction between misdescription or misnomer of a party and
misjoinder or non-joinder of a party seeing or being sued. In
the case of misdescription of a party, the court may at any
stage of the suit/proceedings permit correction of the cause
title so that the party before the court is correctly
described; however a misdescription of a party will not be
fatal to the maintainability of the suit/proceedings. Though
Rule 9 of Order 1 of C.P.C. mandates that no suit shall be
defeated by reason of the misjoinder or non-joinder of
parties, it is important to notice that the proviso thereto
clarifies that nothing in that Rule shall apply to non-joinder
of a necessary party. Therefore, care must be taken to ensure
that the necessary party is before the court, be it a
plaintiff or a defendant, otherwise, the suit or the
proceedings will have to fail. Rule 10 of Order 1 C.P.C.
provides remedy when a suit is filed in the name of wrong
plaintiff and empowers the court to strike out any party
improperly joined or to implead a necessary party at any stage
of the proceedings.
13. The question that needs to be addressed is, whether the
Chief Conservator of Forest as the petitioner/appellant in the
writ petition/appeal is a mere misdescription for the State of
Andhra Pradesh or whether it is a case of non-joinder of the
State of Andhra Pradesh – a necessary party. In a lis dealing
with the property of a State, there can be no dispute that the
State is the necessary party and should be impleaded as
provided in Article 300 of the Constitution and Section 79 of
C.P.C., viz., in the name of the State/Union of India, as the
case may be, lest the suit will be bad for non-joinder of the
necessary party. Even post in the hierarchy of the posts in
the Government set-up, from the lowest to the highest, is not
recognised as a juristic person nor can the State be treated
as represented when a suit/proceeding is in the name of such
offices/posts or the officers holding such posts, therefore,
in the absence of the State in the array of parties, the cause
will be defeated for non-joinder of a necessary party to the
lis, in any court or Tribunal. We make it clear that this
principle does not apply to a case where an official of the
Government acts as a statutory authority and sues or pursues
further proceeding in its name because in that event, it will
not be a suit or proceeding for or on behalf of a State/Union
of India but by the statutory authority as such.
14. Under the scheme of the Constitution, Article 131
confers original jurisdiction on the Supreme Court in regard
to a dispute between two States of the Union of India or
between one or more States and the Union of India. It was not
contemplated by the framers of the Constitution or the C.P.C.
that two departments of a State or the Union of India will
fight a litigation in a court of law. It is neither
appropriate nor permissible for two departments of a State or
the Union of India to fight litigation in a court of law.
Indeed, such a course cannot but be detrimental to the public
interest as it also entails avoidable wastage of public money
and time. Various departments of the Government are its limbs
and, therefore, they must act in coordination and not in
confrontation. Filing of a writ petition by one department
against the other by invoking the extraordinary jurisdiction
of the High Court is not only against the propriety and polity
as it smacks of indiscipline but is also contrary to the basic
concept of law which requires that for suing or being sued,
there must be either a natural or a juristic person. The
States/Union of India must evolve a mechanism to set at rest
all inter-departmental controversies at the level of the
Government and such matters should not be carried to a court
of law for resolution of the controversy. In the case of
disputes between public sector undertakings and Union of
India, this Court in Oil and Natural Gas Commission v.
Collector of Central Excise (1992 Suppl. (2) S.C.C. 432)
called upon the Cabinet Secretary to handle such matters. In
Oil and Natural Gas Commission and Anr. v. Collector of
Central Excise (1995 Suppl. (4) S.C.C. 541), this Court
directed the Central Government to set up a Committee
consisting of representatives from the Ministry of Industry,
the Bureau of Public Enterprises and the Ministry of Law, to
monitor disputes between Ministry and Ministry of the
Government of India, Ministry and public sector undertakings
of the Government of India and public sector undertakings in
between themselves, to ensure that no litigation comes to
court or to a Tribunal without the matter having been first
examined by the Committee and its clearance for litigation.
The Government may include a representative of the Ministry
concerned in a specific case and one from the Ministry of
Finance in the Committee. Senior officers only should be
nominated so that the Committee would function with status,
control and discipline.
15. The facts of this appeal, noticed above, make out a
strong case that there is a felt need of setting up of similar
committees by the State Governments also to resolve the
controversy arising between various departments of the State
or the State and any of its undertakings. It would be
appropriate for the State Governments to set up a Committee
consisting of the Chief Secretary of the State, the
Secretaries of the concerned departments, the Secretary of Law
and where financial commitments are involved, the Secretary of
Finance. The decision taken by such a committee shall be
binding on all the departments concerned and shall be the
stand of the Government.
16. Now, reverting to the facts of the case on hand, we are
of the view that after the said statutory order of the
Commissioner of Survey, Settlement and Land Record, the matter
should have rested there. We have, therefore, no hesitation
incoming to the conclusion that it was not only inappropriate
but also illegal for the Chief Conservator of Forest, though
he might have done so in all good faith, to have questioned
the order of the Commissioner of Survey, Settlement and Land
Record before the High Court of Andhra Pradesh in Writ
Petition (C) No. 3414 of 1982. The Chief Conservator of
Forests as the petitioner can neither be treated as the State
of Andhra Pradesh nor can it be a case of misdescription of
the State of Andhra Pradesh. The fact is that the State of
Andhra Pradesh was not the petitioner. Therefore, the writ
petition was not maintainable in law. The High Court, had it
deemed fit so to do, would have added the State of Andhra
Pradesh as a party; however, it proceeded, in our view
erroneously, as if the State of Andhra Pradesh was the
petitioner which, as a matter of fact, was not the case and
could not have been treated as such. As the writ petition
itself was not maintainable, it follows as a corollary that
the appeal by the Chief Conservator of Forests is also not
maintainable. We are unable to accept the contention of Ms.
Amreswari that merely because the concerned officer had
obtained the permission of the Government to file an appeal,
which is not placed before us, the writ petition and the
appeal should be treated as an appeal by the Government of
Andhra Pradesh. The permission granted to the concerned
authority might be a permission to file an appeal which cannot
reasonably be construed as authorisation to file the appeal in
his own name, contrary to law. It could only be a permission
to file the appeal in the name of the State of Andhra Pradesh
in accordance with the provisions of the Constitution and the
C.P.C. We may also record that in spite of the Pattedars
taking objection to that effect at the earliest, no steps were
taken to substitute or implead the State of Andhra Pradesh in
the writ petition in the High Court or in the appeal in this
Court.
17. Now, we shall deal with Civil Appeal No. 9097 of 1995,
which arises out of the suit filed by the respondents herein.
The respondents-plaintiff claimed in the suit that the land
measuring 748.24 acres out of Survey No. 11 of Asadpur village
and land measuring 45.20 acres out of Survey No. 168 of
Malachintapalli village in Kollapur Taluk, Mahboobnagar
District be declared as the patta lands of the plaintiffs and
they be awarded compensation for the said lands, which was
submerged in the Srisailam Project. The said lands were
claimed to be ancestral patta lands and constituted private
Home-Farm land of Plaintiff No. 1 and his father and were being
enjoyed as grazing land for their cattle and for cattle
breeding farm. The plaintiffs had been paying land revenue in
respect of those lands since the abolition of Jagir in 1949.
The appellants denied that the suit land was patta land and
home-farm land of the pattedars. It was pleaded that they
were forest lands of the State. To establish their claim, the
Pattedars produced two witnesses. The first witness was one
of the Pattedars and the second was the Tehsildar of the Jagir
Jatprole for the period November, 1937 to September, 1949.
They also filed supplementary setwar, Exhibit A-1. During the
period 1954 to 1958, permission was granted to the Pattedars
by the Government for cutting forest wood; permission letters
were filed as Exhibits A-2 to A-9. These documents show the
exercise of right as owner over the suit lands. Exhibit A-10
was filed to prove that in the village map, the suit lands
were shown as patta lands. In support of the plea for payment
of the land revenue after the abolition of Jagir from 1951 to
1974, Exhibits A-11 to A-26 were filed. Those receipts
related to Asadpur village. Exhibits A-27 to A-44 are
receipts for payment of land revenue in respect of the land in
Malachintapalli village. To prove that prior to the abolition
of Jagirs, the suit lands were under the control of the last
Jagirdar, Exhibits A-46 to A-50 were filed which relate to the
period 1312 Fasli to 1328 Fasli and show the expenditure
incurred by the last Jagirdar in respect of the suit lands.
The pahani patrika for the period 1972-1973 and 1983-84 were
also filed as Exhibit A-53 to A-55 but they may not be really
relevant because they relate to the period after the dispute
had arisen between the parties. As against this evidence not
an iota of evidence was placed on record by the Government to
establish that the lands were taken over at the time of
abolition of the Jagirs or that they form part of the forest
area and/or otherwise vested in the Government. The trial
court as well as the Division Bench of the High Court believed
the oral and documentary evidence to decree the suit of the
pattedars for declaration of title and for rendition of
accounts. However, the relief of compensation was declined.
18. Mr. Salve has heavily relied upon the presumption in
Section 110 of the Evidence Act to support the judgment and
order under challenge. He submits that in view of the long
uninterrupted possession of the pattedars title to the land in
their favour has to be presumed and it would be for the
appellant-State to prove that they are not the owners of
the land. Ms. Amreswari has contended that, on the facts,
the presumption is not attracted.
Section 110 of the Evidence Act reads thus:
“110. Burden of proof as to ownership.–When
the question is whether any person is owner of
anything of which he is shown to be in
possession, the burden of proving that he is
not the owner is on the person who affirms that
he is not the owner.”
19. It embodies the principle that possession of a property
furnishes prima facie proof of ownership of the possessor and
casts burden of proof on the party who denies his ownership.
The presumption, which is rebuttable,is attracted when the
possession is prima facie lawful and when the contesting party
has no title.
20. This Court in Nair Service Society Limited v. K.C.
Alexander and Ors. observed,
“the possession may prima facie raise a
presumption of tile no one can deny but this
presumption can hardly arise when the fats are
known. When the facts disclose no title in
either party, possession alone decides.”
21. The pattedars proved their possession of the lands in
question from 1312 Fasli (1902 A.D.) as pattedars. There is
long and peaceful enjoyment of the lands in question but no
proof of conferment of patta on the late Raja and the facts
relating to acquisition of title are not known. The
appellant-State could not prove its title to the lands. On
these facts, the presumption under Section 110 of the Evidence
Act applies and the appellants have to prove that the
pattedars are not the owners. The appellants placed no
evidence on record to rebut the presumption. Consequently,
the pattedars title to the land in question has to be upheld.
22. We have gone through the judgment of the trial court
as also of the High court. We have perused the notification
issued under Section 29 of the Forest Act. It shows that as
many as fourteen villages are enumerated therein. Villages
Asadpur and Malachintapalli do not figure in the notification.
Even otherwise also, the notification does not show anything
more than the fact that the Government has formed a protected
forest area. That by itself does not extinguish the rights of
the private owners of the land nor does it show that the lands
in question vest in the State. A plain reading of the
statutory order passed by the Commissioner of Survey,
Settlement and Land Record under Section 166-B of the Land
Revenue Act on December 5, 1981 places the matter beyond doubt
that the suit lands were patta lands of the Pattedars. For
all these reasons, in our view, the High Court has committed
no error in confirming the said order of the Commissioner of
Survey, Settlement and Land Record and the judgment and
decree of the trial court.
23. Inasmuch as no cross appeal was filed by the said pattedars-respondents in regard to the denial of relief of the
compensation, the interim order passed by this Court on
December 1, 1994 directing payment of one-half of the
compensation shall stand vacated.
24. In the result, the appeals are dismissed with costs.