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2010 DIGILAW 323 (KAR)

Y. v. SUBBA RAO VS ABDUL SHUKUR

2010-03-15

ANAND BYRAREDDY

body2010
JUDGMENT Heard the Counsel for the parties. The parties are referred to by their rank before the Trial Court for the sake of convenience. 2. The appellant was the plaintiff before the Trial Court. The suit was for a declaration that the plaintiff was the absolute owner of the suit property having perfected his title by adverse possession and for consequential injunction against the defendants. It was the plaintiffs case that he and his ancestors are agriculturists and residents of Yedragodu locality from time immemorial. It is claimed that the father of the plaintiff had obtained land in Survey No. 850 measuring 2 acres 35 guntas and Survey No. 851 measuring 3 acres 33 guntas on moolageni lease from one Thimmappaiah under the registered document dated 13-4-1927. Survey No. 852 of Mavinakere measuring about 4 acres 2 guntas, which was Government land and which situated to the North of Survey No. 850 and Survey No. 851, was fenced by the father of the plaintiff along with Survey Nos. 850 and 851 and was being cultivated continuously and openly along with the said lands obtained on moolageni lease and had planted coffee, areca, coconut, mango and jack&uit and other plantation crops. It is claimed that the father of the plaintiff had also constructed two tanks in Survey No. 852 and was using the water for cultivation purposes and after the death of the father of the plaintiff, the plaintiff claims to be in continuous possession and cultivation of the said lands to the knowledge of the defendants. It is further contended that with the enactment of the Karnataka Land Reforms Act, 1961 the plaintiff had filed a declaration in respect of Survey Nos. 850 and 851 and the Land Tribunal had granted occupancy rights to the plaintiff in respect of Survey Nos. 850 and 851. It is claimed that the first defendant is a well-to-do businessman residing in Kalasa Town, which is about 8 kilometers from the suit property. The first defendant and his family members own several immoveable properties in Mavinakere as well as in Dakshina Kannada District. He was a member of the Land Tribunal, Mudigere and a member of the Kalasa Panchayat. It is claimed that the first defendant is a well-to-do businessman residing in Kalasa Town, which is about 8 kilometers from the suit property. The first defendant and his family members own several immoveable properties in Mavinakere as well as in Dakshina Kannada District. He was a member of the Land Tribunal, Mudigere and a member of the Kalasa Panchayat. Though the first defendant had never cultivated the land in the suit schedule property, he had influenced the second defendant to obtain a grant of the suit property and attempted to dispossess the plaintiff making efforts to have the grant of the suit property. The plaintiff and his son had also made an application to the second defendant for the grant of the suit schedule property on 30-7-1991. It is claimed that the Taluk Surveyor had measured the suit property and had even reported the cultivation of the suit property by the plaintiff in the year 1991. Inspite of the same, the second defendant was making arrangements to grant the land in favour of the first defendant. In this regard, the plaintiff had got issued a legal notice on 21-9-1997. Though the defendants had received the notice, there was no reply. It is therefore, the plaintiffs claim that the plaintiff having perfected his title by adverse possession, the defendants could not interfere with the same and hence the suit. The first defendant had contested the suit and in his written statement had denied the plaint allegations. On the other hand, he contended that the suit property had been granted in his favour and that this grant was upheld by the High Court of Karnataka and claimed to be in possession of the suit property and having invested huge amounts of money in its development. That it was only an effort of the plaintiff prior to the suit to make it appear that he was cultivating the suit property along with his other lands. And his specific objections for the grant of land in• favour of the defendant had been rejected by the revenue officials. The grant order having been challenged before the Karnataka Appellate Tribunal, the same had been dismissed by an order dated 5-11-1990. And his specific objections for the grant of land in• favour of the defendant had been rejected by the revenue officials. The grant order having been challenged before the Karnataka Appellate Tribunal, the same had been dismissed by an order dated 5-11-1990. The plaintiff thereafter having filed a writ petition in W.P. No. 5887 of 1991, the writ petition was also dismissed on 4-2-1998 upholding the grant in favour of the defendant which material has been suppressed by the plaintiff and therefore, the plaintiff is not entitled to any relief in equity in view of this mischievous attempt on the part of the plaintiff. Defendants 2 and 3 namely, the Tahsildar and the State Government respectively, have also filed a written statement to assert that Survey No. 852 was Government Kharab land and was granted to the first defendant on 30-9-1984. And on 7-9-1985, the Deputy Commissioner, Chikmagalur had held a local inspection and it was noticed that there was new fencing by the plaintiff to encompass the said Survey No. 852 and therefore, it was an offence committed by the plaintiff. However, insofar as the grant that has been sanctioned in favour of the first defendant, saguvali chit was yet to be issued as the tree value on the land was to be fixed by the forest department and therefore, contended that the suit be dismissed. 3. On these pleadings, the Trial Court framed several issues, mainly placing the burden on the plaintiff to prove that he had perfected his title by adverse possession over the suit property and whether the defendants proved that the land was granted to defendant 1 and that he was in possession of the same? The Trial Court negatived the case of the plaintiff and held in favour of the defendants. This having been carried in appeal, the First Appellate Court has affirmed the finding of the Trial Court. It is against these concurrent findings that the present second appeal is filed. 4. The suostantial question of law that was framed by this Court while admitting the appeal was as follows.- ''Whether the Courts below were justified in holding that the plea of adverse possession was not available to the plaintiff as he did not raise the said plea in the proceedings before the Land Reforms Tribunal and the High Court and asserted the same for the first time in the Civil Court?" 5. Senior Advocate Sri Padubidri Raghavendra Rao, appearing for the Counsel for the appellant contends that there was substantial material to establish that the plaintiff and his father had been in possession of the suit property for well-over the statutory period to have perfected the title by adverse possession against the defendants, including the State. It is also in evidence that the plaintiff has be m asserting his possession of the land as is evidenced from several proceedings, which are not in dispute, even prior to the sanctioning of the grant in favour of the first defendant. It is the admitted position that the plaintiff was found to be in possession of the land even according to the written statement of defendants 2 and 3. If this be so, the question of the first defendant being put in possession without dispossessing the plaintiff in accordance with law cannot be countenanced and therefore, the very basis of the claim of the first defendant that he has been put in possession of the land is a falsity. Even according to the defendant 2 and, the saguvali chit was yet to be issued to the first defendant as the forest department has not yet determined the value of the trees and therefore, the possession of the plaintiff could not have been negated. The circumstances as admitted by the defendants themselves would disclose the concerted effort to confer possession of the land on the first defendant without dispossessing the plaintiff in accordance with law. Insofar as the substantial question of law that is framed for consideration is concerned, the plea of adverse possession in respect of Survey No. 852 and the plaintiff having perfected his title over the property not having been raised either before the Land Tribunal or in proceedings before this Court, is not relevant as these are not the Fora, before which such a contention could have been raised and in respect of the claim for adverse possession has therefore been aptly raised in the suit, out of which, this appeal arises and that was the appropriate forum and the remedy available to the plaintiff which has been exercised. Therefore, even if the plea of adverse possession could not be held in favour of the plaintiff, the plaintiffs possession of the suit property as on the date of the suit though sought to be vaguely denied, is firmly established as is evident from the pleadings of the defendants 2 and 3. Hence, the Courts below ought to have protected the plaintiffs possession from being dispossessed of the lands otherwise than under due process of law. Therefore, the Courts below were in error in not recognising the plaintiffs possession inspite of abundant material available in this regard. 6. The Counsel for the respondents, on the other hand, seeks to justify the judgments of the Courts below and would submit that it is incorrect to contend that the defendants 2 and 3 have admitted the plaintiffs possession of the land. The Deputy Commissioner who had visited the spot has only noted that there was an attempt on the part of the plaintiff to fence the suit property. This is not an admission of the plaintiffs continuous, peaceful and lawful possession of the suit property. The claim of having perfected title by adverse possession therefore is not available to the plaintiff. 7. As observed by the Trial Court, the admission of D.W. 2 that the plaintiff was in possession of the suit property is of no avail as he was not speaking from personal knowledge and there was no other material on the basis of which the said witness was speaking and it is in that background that the Trial Court has held that the suit property was Government land which has been sanctioned for grant to defendant. But neither the plaintiff nor the defendants could claim possession of the land as saguvali chit was yet to be issued to defendant. Insofar as the substantial question of law that is raised is concerned, the plaintiffs claim that he has perfected his title by adverse possession is not established on the face of it. The circumstances that require to be pleaded and established in laying a claim to have perfected title as against the Government by adverse possession is much more stringent than it would be against a private individual. The plaintiff seeking to set up the plea of adverse possession against the State Government is, on the face of it, untenable. The circumstances that require to be pleaded and established in laying a claim to have perfected title as against the Government by adverse possession is much more stringent than it would be against a private individual. The plaintiff seeking to set up the plea of adverse possession against the State Government is, on the face of it, untenable. The admitted circumstance that the plaintiff was seeking grant of the suit property by regularisation of his alleged occupation itself would defeat any such claim to have perfected title by adverse possession. And the further circumstance that this was not declared in other proceedings which was not referred to in the plaint would compound the defect in the plaintiffs claim. The plaintiff not having established lawful possession of the suit property as on the date of the suit would not be entitled to the relief of permanent injunction against the State Government. The pleadings and material would at best indicate that there as an attempt on the part of the plaintiff to exercise possession over the suit property prior to the suit. The plea of adverse possession and in what circumstances it would be tenable, is well-settled by the following decisions: (1) Karnataka Wakf Board, Bangalore v State of Karnataka and Others; (2) Madhavkrishna v Chandra Bhaga2; (3) State of Rajasthan v Harpool Singh (dead) through his L.Rs3. Therefore, it certainly is fatal to the plaintiffs case that there was no indication of the plaintiffs plea of adverse possession in earlier proceedings and it is a contradiction-in-terms to seek grant of land from the State Government and also to claim adverse possession. Therefore, the substantial question of law is answered in the affirmative. The appeal accordingly fails and is dismissed.