What does this mean for ancestral land owners?
Burden of proof lies on the person claiming ownership over a property: In case of a suit for declaration of title and for permanent injunction; the burden of proof lies on the individual claiming to be the owner of the property and the same has to be proved with faultless evidence.
Revenue records do not confer ownership over a property: Mutation entries, cist receipts, pattadar passbooks, and adangal entries or even bank mortgage documents do not confer ownership over the property and are not proof of title. Such documents at best show possession or cultivation and for revenue collection purposes. Merely because a lender (bank) accepted it as a proof, does not do away with the requirement of the court having to be satisfied as to ownership.
Ancestral ownership must be proved by title and pedigree, not lineage, surname, or association: Where possession is contrary to some of the records, possession has to be accompanied with lawful title and the same must be established through registered deeds or other legally recognized documents.
Who the ancestor was,
How the ancestor acquired title, and
Lawful devolution of that title. In the absence of documentary evidence showing ancestral ownership, a declaratory suit cannot succeed merely on lineage or family name.
What does the Evidence Act say?
Recently there was a case in the Andhra Pradesh High Court where the court refused to grant ownership of ancestral land to a family, even though they had secured a mutation in their name and had taken out a bank loan against the same land, claiming their forefathers had lived on and owned this land.The brothers who claimed to have owned this land had filed this civil suit asserting their ownership of the said agricultural parcels, claiming these lands were passed down to them through their ancestors. They primarily relied on pattadar passbooks, cist (land tax) receipts, and loan records to demonstrate their possession and cultivation of the agricultural lands in question.The high court clarified that cist receipts or entries in the pattedar passbooks, being the mutation entries, would not prove title to the lands.The brothers explained that they live as a joint family and that their family had experienced mental health issues about 12 years back, leading to one member’s disappearance, whose whereabouts remained unknown. So, he was presumed to be dead. The brothers also said that after they grew up and after the death of their father, they developed the land and had been cultivating by employing modern tools, irrigating the land with bore-well water.The brothers argued before the court that they have raised crops by pledging the original documents with Syndicate Bank and that the Revenue Divisional Officer, Nandyal and Mandal Revenue Officer, Rudravaram issued title deeds for the land in their favour and those title deeds were pledged with the Syndicate Bank for raising this crop loan.The Andhra Pradesh High Court said that the mortgage loan was taken on November 12, 2007 and by that time, the court case was already under way and pending. Therefore, this reason (the land being mortgaged by the brothers for crop financing) held no legal weight to establish their title over the land based on that document.The Andhra Pradesh High Court said that it cannot be presumed that the brothers took the loan against the land and thus they were the owners. Lastly, the brother’s lawyer raised this argument that as per Evidence Act ‘possession follows title’ rule must be applied in this case.The Andhra Pradesh High Court said that ‘possession follows title’ can only be applied if it is evident that the presumption of ownership is rebuttable and that the presumption can be raised only when the possession is valid or lawful.In this case, the Andhra Pradesh High Court said that even if they temporarily accept the brothers’ lawyer’s argument that the brothers were in possession, even then, they still needed to prove that their possession was legitimate and that they maintained it in a way that was obviously not unlawful.The Andhra Pradesh High Court said: “In the absence of there being any document showing the title and the possession not to be unlawful, the presumption under Section 110 of the Evidence Act cannot be invoked.”Thus the brothers lost their claim over the land.Jayesh H, Co-founder at Juris Corp, a law firm, explains what this judgement means for ancestral land owners:According to Jayesh, while claiming rights over an ancestral property, it must be proved by placingVishal Gehrana, Advocate on Record, associated with Karanjawala & Co, says that Section 110 of the Evidence Act may appear attractive, but its scope is far narrower than many assume.According to Gehrana, this Section says that if a person is shown to be in possession, the burden shifts to the opponent to prove that the possessor is not the owner.Gehrana says: “It permits a rebuttable presumption of ownership in favour of a person in possession only in limited situations, i.e., where the possession appears lawful and the opposing party cannot show a better title, or where the nature of the land makes physical possession difficult to establish. Even then, the presumption is cautious, not automatic.”According to Gehrana, the related principle that “possession follows title” operates in a different direction.It means that where a person has established title and actual possession is uncertain, the law presumes possession to be with the title holder. It does not mean that a person can claim title purely because he asserts or has possession over the property.Gehrana says: “That distinction explains why the Andhra Pradesh High Court declined to apply Section 110 in this case. The plaintiffs failed to establish a lawful title either in themselves or through their ancestors, while official records consistently pointed to a competing title vested in a religious institution under the Endowments administration.”There was no admission of possession by the brothers, and some of the documents relied upon had been generated during the pendency of the dispute, which weakened their evidentiary value.Therefore, Gehrana says the dismissal of that case in Andhra Pradesh High Court was not based solely on the absence of ancestral title deeds. It flowed from a combination of factors, i.e., clear contrary public records, the lack of credible proof of possession, and the limited role that Section 110 is meant to play.Gehrana says: “When public record recognises another’s title and the temple’s chain of ownership is missing, the presumption under Section 110 has no room to operate. This judgment leaves little doubt that in title declaratory suits, substance matters more than form, and real title, not administrative or financial footprints, decides the day.”Jayesh points out that in the Andhra Pradesh High Court case, the family had argued that mutation entries and revenue records should prove ownership under Section 110 of the Evidence Act, since possession usually implies ownership.According to Jayesh, the High Court disagreed, stating that revenue records and mutation entries are not proof of title, they only serve administrative purposes like collecting land revenue.These records can show who is in possession, but they do not establish ownership or justify a declaration of title.Jayesh says: “Because the plaintiffs (brothers) could not show how the property came to them from their ancestors, relying only on these records was not enough to claim ownership under Section 110.”