Claiming Adverse Possession After Encroachment Into Public Road Not Admissible: Kerala High Court

The Kerala High Court has ruled that a petitioner claiming the right of adverse possession after encroaching into a public road cannot be treated as a usual plea of adverse possession. 

Holding so, Justice A. Badharudeen dismissed a petition filed under Article 227 of the Constitution of India seeking title over property by adverse possession when the petitioners had failed to present a prima facie case in their favour. 

"Encroachment into public road and thereafter claiming right of adverse possession cannot be equated at par with the plea of adverse possession in other circumstances. Therefore, I am of the view that the plaintiffs miserably failed to prove a prima facie case to substantiate the contention regarding right of adverse possession claimed by them."

The petitioners herein filed a suit seeking to declare their title over plaint properties, formerly part of old National Highway, by adverse possession and limitation. Later, they filed an application seeking an interim injunction restraining the District Collector and the State from forcefully evicting them from plaint schedule items till the disposal of the suit

The respondents resisted the application and it was thereby dismissed by the Sub Judge. The petitioners approached the Additional District Judge who also confirmed the impugned order.

Aggrieved by this, they moved the High Court. 

Advocate T.N.Manoj appearing for the petitioners argued that they assert right of adverse possession over the plaint `B' schedule items and it was contended before the trial court specifically that they have been in possession and enjoyment of the plaint `B' schedule item for the last 40 years in continuation of their predecessors. 

Government Pleader Denny Devassy submitted that the new National Highway road came into existence just 10 years ago and till then the old National Highway was used. When the new road was formed, the petitioners encroached upon the old Highway and extended their business to the encroached portions, it was alleged.

Therefore, the petitioners cannot assert having used the same for 45 years since the same was used as the National Highway prior to construction of the new road abutting the same. 

He added that the eviction proceedings were initiated against the petitioners, who unauthorisedly occupied a portion of the old National Highway road, in obedience to a judgment passed by this Court in 2019.

The Court found that the petitioners had no documents prima facie to substantiate their possession for a period of 45 years. In fact, the available materials showed that by exploiting the inaction of the Government officials in resisting encroachment in a time-bound manner, the petitioners encroached on the public road and made the same as part of their shop rooms.

Further, it was noted that since the petitioners were carrying out business excluding the encroached area, there is no likelihood of any irreparable injury to them if the encroachment is removed, and the irreparable injury would be to the Government and the public in general since the public property to be maintained for the use of the general public at the whims and fancy of the Government and in such properties, nobody could be allowed to retain possession.

Thus it was decided that the balance of convenience was also in favour of the Government. as rightly found by the trial court as well as the appellate court.

Thereafter, the Court analysed the circumstances where it can interfere by its supervisory powers under Article 227 of the Constitution.

As laid down in Jai Singh v. Municipal Corporation of Delhi [(2010) 9 SCC 385], although jurisdiction under Article 227 is, in some ways, wider than that under Article 226, the High Court is expected to exercise such wide powers with great care, caution and circumspection.

It cannot be exercised like a 'bull in a china shop', to correct all errors of the judgment of a court or tribunal, acting within the limits of its jurisdiction. 

So under Article 227, a High Court can interfere with the order of the court or tribunal only when there has been a patent perversity in the orders of the tribunal and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.

A division bench had established this position in Sobhana Nair K.N. v. Shaji S.G.Nair [2016 (1) KHC1] :

"no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law."

The Court further noted that it is settled law that it cannot sit in appeal over the findings recorded by the trial court as well as the first appellate court.

Moreover, supervisory jurisdiction cannot be exercised to correct errors of the order of the lower courts but to find out grave dereliction of duty or flagrant abuse of fundamental principles of law or justice or to meet absolute illegality.

As such, the petition was dismissed. 

Case Title: Mini & Ors. v. Assistant Executive Engineer & Ors

Citation: 2022 LiveLaw (Ker) 101

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