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2014 DIGILAW 258 (KAR)

H. A. Venkataswamappa v. State of Karnataka

2014-02-28

ASHOK B.HINCHIGERI

body2014
JUDGMENT This appeal is preferred by the plaintiff aggrieved by the dismissal of his suit (O.S.No.422/2006) by the Court of the Civil Judge (Sr.Dn.) and JMFC, Anekal by its judgment and decree, dated 14.8.2009. 2. The plaintiff’s version in brief is that the plaintiff’s father Sri Chikkannaiappa was in peaceful possession, cultivation and enjoyment of the plaint ‘A’ and ‘B’ schedule lands from 1957-58. His father has been in possession, occupation and enjoyment of schedule ‘C’ lands from 1950. On the death of his father in 1978-79, the plaintiff continued to be in possession of the three schedule lands. He filed the suit seeking the relief of declaration that he has perfected his title by way of adverse possession. He also sought the relief of permanent injunction restraining the defendants (respondents herein) from interfering in his possession and enjoyment of the schedule lands. 3. For the reasons best known to themselves, the respondents did not take part in the suit proceedings. They were placed exparte. Based on the pleadings in the plaint, the Trial Court formulated the following points for its consideration: 1. Whether the plaintiff proves that he has perfected his title and ownership in respect of the suit schedule property by way of adverse possession? 2. Whether the plaintiff is entitled for permanent injunction? 3. What Order or decree? 4. The plaintiff got himself examined as PW1. He also adduced the evidence of an independent witness, H.A.Mohammed Peer as PW2. The documents at Ex.P1 to Ex.P43 are marked for the plaintiff. Based on the pleadings, oral and documentary evidence placed on its record, the Trial Court answered the points against the plaintiff and dismissed the suit. 5. Aggrieved by the same, this appeal is filed. 6. Sri M.Ram Bhat, the learned Senior Counsel appearing for Sri G.S.Patil for the appellant submits that the mahazar at Ex.P19 in respect of ‘C’ schedule land clearly shows that the appellant’s father was in its possession. He submits that the RTCs at Ex.P17 and Ex.P18 also contain the particulars of the crops grown on Schedule ‘A’ and ‘B’ lands and also the name of the appellant’s father. The supporting record of rights in respect of schedule ‘C’ land are at Ex.P21 to Ex.P25. The revenue documents unmistakably show the possession of the appellant’s father and of the appellant for over 30 years. The supporting record of rights in respect of schedule ‘C’ land are at Ex.P21 to Ex.P25. The revenue documents unmistakably show the possession of the appellant’s father and of the appellant for over 30 years. For buttressing the submission that the length of occupation of the lands held by the appellant’s father has to remain accrued to the length of occupation of the appellant, he read out the following portion from M.Krishnaswami’s Law of Adverse Possession published by Law Book Company (9th Edition – 1979). It reads as follows: “Where a father or other relation is in possession of the disputed property adversely to the plaintiff and on his death, the defendants, as the heirs of the deceased, continue in possession, in these circumstances, the defendants are entitled to tack their possession with that of their father, or other relation, and thereafter they acquire a right by adverse possession….” 7. The learned Senior Counsel further submits that as the respondent – defendants have not resisted the claim of the appellant – plaintiff, the suit ought to have been decreed by the Trial Court. 8. Smt.B.P.Radha, the learned High Court Government Pleader appearing for the respondents submits that the appellant is baselessly claiming that he has perfected his title by way of adverse possession on the precious Government lands totally measuring 5 acres. She submits that the appellant’s representation at Ex.P41 shows that his/his father’s possession was not peaceful. She submits that the appellant has failed to demonstrate that he and/or his father have been in continuous and uninterrupted possession of the schedule lands. She submits that for being in unauthorised occupation, the respondents imposed the fine on the appellant by passing (T.T.Fine order) in respect of schedule ‘A’ and ‘B’ lands. She submits that the record of rights at Ex.P2 to Ex.P7 are from 1973 to 1995 in respect of schedule ‘A’ land. She submits that the record of rights at Ex.P8 to Ex.P17 are in respect of schedule A and B schedule lands for the years 1959 to 1969. She submits that the record of rights at Ex.P18 and Ex.P21 are in respect of ‘B’ schedule land and for the year 1969 to 1991. She submits that the record of rights at Ex.P23 is in respect of schedule ‘C’ land and for the year 1965-66. She submits that the record of rights at Ex.P18 and Ex.P21 are in respect of ‘B’ schedule land and for the year 1969 to 1991. She submits that the record of rights at Ex.P23 is in respect of schedule ‘C’ land and for the year 1965-66. Thus, even if all the records of rights are taken into account, in respect of none of the three schedule lands, the appellant is in a position to show that he and his father were in possession for 30 years continuously. 9. The submissions of the learned counsel have received my thoughtful consideration. I have browsed through the L.C.Rs. No explanation is forthcoming as to why the respondents did not take part in the suit proceedings. But then, remaining exparte by the concerned authorities either because of negligence or because of malafides or for any other reason cannot automatically and mechanically result in the decreeing of the suit. Even when there is no contest by the defendants, the courts are bound to look into all the materials placed on its record and then take a decision in the matter. 10. The first question that falls for my consideration is whether the appellant plaintiff has laid the requisite foundation in the plaint for the plea of adverse possession. As held by the Madras High Court in the case of SUNDARAVILLI v. NARAYAN SWAMI reported in AIR 2005 Madras 303, clear and distinct pleading of plea of adverse possession is necessary. This Court in its decision in the case of BASWANTHRAO SINCE DECEASED BY HIS LRS. v. RAJKUMAR reported in ILR 2009 KAR 1099, has expressed the considered view that the law mandates that the plaintiff who seeks a declaration that he has perfected his title by way of adverse possession should specifically plead the date from which his possession becomes adverse to that of the defendant. The relevant portions from the said decision are extracted hereinbelow: “13. Adverse possession is a question of fact and in a claim of adverse possession, the title is not disputed; what is alleged is only his extinction. A plea of adverse possession being based on facts which have to be raised to that effect, is not necessarily a legal plea. The plea of adverse possession raises a mixed question of law and fact. A plea of adverse possession being based on facts which have to be raised to that effect, is not necessarily a legal plea. The plea of adverse possession raises a mixed question of law and fact. Where a person wants to base his title on it, he should specifically set up the plea. Unless the plea is raised, it cannot be entertained. A plea must be raised and it must be shown when possession became adverse, so that the starting point of limitation against the party affected can be found. The prayer clause may not be taken as a substitute for a plea. A person acquires title by way of adverse possession when he is in continuous, uninterrupted, hostile possession over a period of 12 years. In order to calculate 12 years period there should be a starting point. Therefore, the law mandates that the plaintiff who seeks a declaration that he has perfected his title by way of adverse possession should specifically plead the date from which his possession becomes adverse to that of the defendant. It is from that date if the plaintiff shows continuous, uninterrupted possession for a period of 12 years, then the right of the defendant to the property stands extinguished and the plaintiff would acquire title by way of adverse possession.” 11. But the averments in the plaint in this case are unspecific, to say the least. When exactly the appellant’s father came in adverse possession is not pleaded. The vague pleadings do not meet the foundational requirement. There must be specific pleading and evidence. But in this case, both the requirements are lacking. 12. The second question that falls for my consideration is whether the appellant – plaintiff proves that his possession is peaceful, open and continuous? To examine this question, the documentary evidence placed on the record has to be considered. 13. No documents are produced in respect of any of the three schedule lands to show that the appellant and/or his father have been in possession for an interrupted period of 30 years or more. On the other hand, (T.T.fine order) (Ex.P27 and 28) show that the fine was imposed on the appellant for being in possession of the land unauthorisedly. The appellant’s representation (Ex.P41) submitted to the Tahsildar on 17.9.1991 shows that the revenue authorities tried to evict the appellant. 14. On the other hand, (T.T.fine order) (Ex.P27 and 28) show that the fine was imposed on the appellant for being in possession of the land unauthorisedly. The appellant’s representation (Ex.P41) submitted to the Tahsildar on 17.9.1991 shows that the revenue authorities tried to evict the appellant. 14. Similarly, the appellant’s representation (Ex.P42) submitted to the Chief Secretary and the Tahsildar on 3.4.1998 also shows that revenue authorities tried to dispossess him. The appellant’s representation (Ex.P43) submitted to the Tahsildar on 19.9.1991 is also reflective of the same position. 15. Ex.P41 states that the appellant’s father has been in possession of the schedule ‘A’ and ‘B’ lands for 35 years. However, in Ex.P42, which is representation in respect of both the lands at Survey Nos.112 and 281, the appellant states that he has been in possession of the said lands for 30 years and since the time of his father. Thus, there is also some discrepancy as to in which year the appellant’s father occupied the schedule land adverse to the true owner, that is the Government. 16. The T.T.Fine orders (Ex.P27 and 28), the appellant’s representations (Ex.P41, Ex.P42 and Ex.P43) show that he and his father have not been in peaceful possession of the schedule lands. These documents disentitle the appellant to claim that he has perfected his title based on the adverse possession. There must be an express or implied repudiation of the rights of the true owners and open assertion of the person in possession of the property to claim adverse possession. The Full Bench of this Court, in the case of T.N.ANANTHA BALARAJE URS v. SMT.GUNAMBA NANJARAJE URS reported in AIR 2005 NOC 430 (Karnataka) has this to say: “In order to establish ouster in cases involving adverse possession, the defendant has to prove three elements, viz. nec vi, nec clam and nec precario. In other words, he must show that his possession is adequate, in continuity, in publicity and in extent and adverse to the true owner. How and at what point of time, the defendant started prescribing hostile title, was for him to plead and prove, which in the instant case, he has utterly failed. nec vi, nec clam and nec precario. In other words, he must show that his possession is adequate, in continuity, in publicity and in extent and adverse to the true owner. How and at what point of time, the defendant started prescribing hostile title, was for him to plead and prove, which in the instant case, he has utterly failed. Mere long possession for a period of more than 12 years by the defendant without intention to possess the suit land adverse to the title of the plaintiff and to the latter’s knowledge cannot result in acquisition of title by prescription……..” 17. Further, what cannot go unnoticed is that the land at Survey No.281 is PɼÀ(tank area), which is reserved for public purpose. The tank area is meant for the public. It cannot be diverted to subserve the private interests. 18. Coming down heavily on the unauthorized occupants, the Hon’ble Supreme Court has this to say in paragraph No.13 of its decision in the case of JAGPAL SINGH vs. STATE OF PUNJAB reported in AIR 2011 SC 1123 : “13. We find no merit in this appeal. The appellants herein were trespassers who illegally encroached on to the Gram Panchayat land by using muscle power/money power and in collusion with the officials and even with the Gram Panchayat. We are of the opinion that such kind of blatant illegalities must not be condoned. Even if the appellants have built houses on the land in question they must be ordered to remove their constructions, and possession of the land in question must be handed back to the Gram Panchayat. Regularizing such illegalities must not be permitted because it is Gram Sabha land which must be kept for the common use of villagers of the village. The letter dated 26.9.2007 of the Government of Punjab permitting regularization of possession of these unauthorized occupants is not valid. We are of the opinion that such letters are wholly illegal and without jurisdiction. In our opinion such illegalities cannot be regularized. We cannot allow the common interest of the villagers to suffer merely because the unauthoized occupation has subsisted for many years.” 19. Coming down very heavily on the landgrabbers, the Apex Court in the case of MANDAL REVENUE OFFICER v. GOUNDLA VENKAIAH AND ANOTHER reported in (2010) 2 SCC 461 has held as follows: “47. We cannot allow the common interest of the villagers to suffer merely because the unauthoized occupation has subsisted for many years.” 19. Coming down very heavily on the landgrabbers, the Apex Court in the case of MANDAL REVENUE OFFICER v. GOUNDLA VENKAIAH AND ANOTHER reported in (2010) 2 SCC 461 has held as follows: “47. In this context, it is necessary to remember that it is well neigh impossible for the State and its instrumentalities including the local authorities to keep every day vigilance/watch over vast tracts of open land owned by them or of which they are the public trustees. No amount of vigil can stop encroachments and unauthorised occupation of public land by unscrupulous elements, who act like vultures to grab such land, raise illegal constructions and, at times, succeeded in manipulating the State apparatus for getting their occupation/possession and construction regularized. It is our considered view that where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, the Court is dutybound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/title of the State to immovable property and give an upper hand to the encroachers, unauthorised occupants or land grabbers. 48. In State of Rajasthan v. Harphool Singh, this Court considered the question whether the respondents had acquired title by adverse possession over the suit land situated at Nohar Bhadra Road at Nohar within the State of Rajasthan. The suit filed by the respondent against his threatened dispossession was decreed by the Trial Court with the finding that he had acquired title by adverse possession. The first and second appeals preferred by the State Government were dismissed by the lower appellate Court and the High Court respectively. This Court reversed the judgments and decrees of the courts below as also of the High Court and held that the plaintiff-respondent could not substantiate his claim of perfection of title by adverse possession. Some of the observations made on the issue of acquisition of title by adverse possession which have bearing on this case are extracted below:(SCC P.660, para 12). “12. Some of the observations made on the issue of acquisition of title by adverse possession which have bearing on this case are extracted below:(SCC P.660, para 12). “12. So far as the question of perfection of title by adverse possession and that too in respect of public property is concerned, the question requires to be considered more seriously and effectively for the reason that it ultimately involves destruction of right/title of the State to immovable property and conferring upon a thirdparty encroacher title where he had none. The decision in P. Lakshmi Reddy v. L. Lakshmi Reddy adverted to the ordinary classical requirement that it should be nec vi, nec clam, nec precario that is the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. It was also observed therein that whatever may be the animus or intention of a person wanting to acquire title by adverse possession, his adverse possession cannot commence until he obtains actual possession with the required animus. ………… 51. In P.T. Munichikkanna Reddy v. Revamma, the Court considered various facets of the law of adverse possession and laid down various propositions including the following: (SCC pp.66 & 68, paras 5 & 8). “5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile……… 8. ……… to assess a claim of adverse possession, twopronged enquiry is required: 1. Application of limitation provision thereby jurisprudentially ‘wilful neglect’ element on part of the owner established. Successful application in this regard distances the title of the land from the paperowner. 2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paperowner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property.” (emphasis in original) 52. 2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paperowner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property.” (emphasis in original) 52. In view of above discussion, we hold that the respondents miserably failed to establish that they had acquired title over the schedule land by adverse possession and the High Court was not at all justified in upsetting the orders passed by the Special Tribunal and Special Court.” 20. On appreciation of the pleadings, evidence and on consideration of the legal position, the Trial Court has arrived at the conclusion. Consequently, the appeal fails and the same is dismissed. 21. No order as to costs.