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2019 DIGILAW 374 (KAR)

Buddawwa v. Tahasildar Hungund Hungund

2019-02-08

G.NARENDAR

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JUDGMENT : G. Narendar, J. Heard the learned counsel for the petitioners and the learned HCGP. 2. The petitioners have filed a common writ petition being aggrieved by the order of the Deputy Commissioner, the Assistant Commissioner and the Statutory Committee constituted under Section 94-A of the Karnataka Land Revenue Act, 1964 for the purpose of regularizing the unauthorized occupation and cultivation of Government lands. 3. It is the case of the petitioners that all the petitioners and the 5th respondent and one other person had made individual applications for grant of land by way of regularization of their unauthorized occupation and their applications were made in form No.53 as stipulated under the Act. The filing of the applications and the receipt of the same are not disputed. The fact that the application was processed in terms of Section 94-B read with Rule 108-CC of the Karnataka Land Revenue Rules, 1966 is also not disputed. It is also not in dispute that the Committee followed the procedure as stipulated under Rule 108-D. Pursuant to the above, the lands in occupation of the petitioners and the 5th respondent and one other person were inspected and mahazars drawn up and copies of some of the mahazars are also produced along with statement of objections and along with the memo dated 08.02.2019. 4. On perusal of the mahazars, it states that the Revenue Inspector of the Taluk visited the place, enquired with the neighbouring land owners and concluded that the actual income of the petitioners was not above Rs. 8,000/- and they are in actual possession and cultivation of the lands and they did not own any other immovable property in the village. The panchanama is said to be drawn on various dates of November 1999. Thereafter, the panchanama along with the reports were placed before the Committee. The Committee concurred with the report, but on account of an intervening development in the form of judgment of the Civil Court was pleased to reject the application. 5. The fact remains that the petitioners had preferred O.S. No.311/1995, in which suit the Revenue Inspector, the Jurisdictional Tahasildar, the Village Accountant of the concerned Village, the Deputy Commissioner of the District, the President and Secretary of the Vadageri Gram Panchayath were arraigned as defendants. 5. The fact remains that the petitioners had preferred O.S. No.311/1995, in which suit the Revenue Inspector, the Jurisdictional Tahasildar, the Village Accountant of the concerned Village, the Deputy Commissioner of the District, the President and Secretary of the Vadageri Gram Panchayath were arraigned as defendants. The said suit was preferred praying for the relief of declaration and injunction that is to declare that the instant petitioners and the 5th respondent and one other person have acquired title by way of adverse possession and for permanent injunction, thereby restraining the defendants or their men from interfering with the peaceful possession and enjoyment of the suit schedule lands. 6. The Trial Court after full fledged trial was pleased to dismiss the suit of the plaintiffs holding that they have not proved their title. In the opinion of the Court, the very findings are redundant, as it is settled law that a suit for declaration of title on the basis of adverse possession is not maintainable. The said issue is no more res integra, being settled by Hon'ble Apex Court. In that view of the matter, the very attempt by the plaintiffs was a superfluous attempt. 7. Primarily the Committee and the Appellate Authority i.e., the Assistant Commissioner and the Deputy Commissioner, before whom the petitioners have appeared, have in form or the other, have allowed their decisions to be influenced by the finding of the Trial Court. 8. Though the regard, in which the authorities have held the judgment of the Trial Court is to be appreciated, but the fact also remains that the respondent authorities failed to realize that the said dismissal ought not to have factored in their independent consideration of the material on hand to demonstrate their claim as required under the provisions of the Karnataka Land Revenue Act i.e., more particularly Section 94-A read with Rule 108, Chapter XIII-A, Rule 108-C of the Karnataka Land Revenue Act and Rules. In fact the Committee, as established under the provisions of Section 94-A of the Act was required to follow the procedure stipulated under Rule 108-D of the Rules and ought to have independently appreciated the application and the supporting material placed before it. In fact the Committee, as established under the provisions of Section 94-A of the Act was required to follow the procedure stipulated under Rule 108-D of the Rules and ought to have independently appreciated the application and the supporting material placed before it. The mere dismissal of the suit for declaration of title on the basis of adverse possession will not foreclose the right of the parties to remain in possession and establish their right in any proceedings subsequently initiated against them. 9. In this regard, this Court draws sustenance for the above view from the dictum laid down by the Hon'ble Apex Court in the case of Gurdwara Sahib vs. Gram Panchayat Village Sirthala and another reported in, (2014) 1 SCC 669 . The Hon'ble Apex Court in the aforesaid judgment has been pleased to observe as follows: "3. On the basis of pleadings of the parties, the trial court had framed the following issues: 1. Whether the plaintiff is in adverse possession of the suit land since 13.4.1952 as alleged? (OPP) 2. If issue No.1 is proved, whether adverse possession of the plaintiff has matured into ownership? (OPP) 3. Whether plaintiff is entitled to declaration as prayed for? (OPP) 4. Whether the plaintiff is entitled to injunction as prayed for? (OPP) 5. Whether the suit is not maintainable in the present form? (OPP) 6. Relief. 4. In so far as first issue is concerned, it was decided in favour of the plaintiff returning the findings that the appellant was in adverse possession of the suit property since 13.4.1952 as this fact had been proved by plethora of documentary evidence produced by the appellant. However, while deciding the second issue, the court opined that no declaration can be sought on the basis of adverse possession inasmuch as adverse possession can be used as a shield and not as a sword. The learned Civil Judge relied upon the judgment of the Punjab and Haryana High Court in Gurudwara Sahib Sannuali vs. State of Punjab and thus, decided the issue against the plaintiff. Issue No.3 was also, in the same vein, decided against the appellant. 5. The learned Civil Judge relied upon the judgment of the Punjab and Haryana High Court in Gurudwara Sahib Sannuali vs. State of Punjab and thus, decided the issue against the plaintiff. Issue No.3 was also, in the same vein, decided against the appellant. 5. In so far as issue 4 pertaining to relief of injunction is concerned, the learned Civil Judge held that as long uninterrupted possession of the appellant was established, the appellant was entitled to the decree of injunction and the respondents were restraining from dispossessing the appellant forcibly and illegally from the suit land and also restrained from damaging the building of Gurudwara Sahib. Issue 5 was decided against the respondent on the ground that no evidence was led to show how the suit was not maintainable in the present form. While granting relief, the learned Civil Judge partly decreed the suit holding as under: "It is held that plaintiff is in adverse possession over the suit property since 13.4.1952 and defendants are restrained from dispossessing the plaintiff forcibly and illegally from the suit property and further restrained from damaging the building of Gurudwara Sahib except according to due process of law. As discussed above, the remaining relief as sought by the plaintiff is dismissed. Decree sheet be prepared. File be consigned to the record room." 9. However, we also find from the reading of the judgment of the High Court that the High Court has refused the injunction observing that the appellant was not entitled to the same as it is the Gram Panchayat which is the owner of the property in dispute and as the appellant is in possession without any right, it has no right to seek injunction against the Gram Panchayat. This finding is totally perverse and, in fact, unnecessary. In the first instance, there was no occasion or reason for the appellant's counsel to seek this prayer in the Second Appeal. As pointed out above, the relief of injunction had already been granted by the Civil Court and this portion of the decree had not been challenged by the respondents. Decree to this extent in favour of the appellant had attained finality. The First Appellate Court also specifically recorded this fact and observed that by not challenging the judgment and decree passed by the learned Civil Judge, the respondents accepted that the appellant was in adverse possession of the land since 13.4.1952. Decree to this extent in favour of the appellant had attained finality. The First Appellate Court also specifically recorded this fact and observed that by not challenging the judgment and decree passed by the learned Civil Judge, the respondents accepted that the appellant was in adverse possession of the land since 13.4.1952. We, thus, clarify that observations of the High Court that the appellant is not entitled to injunction, were unnecessary and beyond the scope of the appeal." 10. In that view of the matter, this Court is of the considered opinion that the orders impugned are liable to be quashed. Accordingly, the writ petition is allowed. The orders impugned at Annexures C, G and J are quashed. The matter is remitted back to the Committee for reconsideration of the applications, in accordance with law and in the light of the observations made herein above. The consideration and disposal of the applications by the Statutory Committee shall be within an outer limit of twelve weeks from the date on which the Committee is formed. Till such time, the possession of the petitioners shall not be disturbed by the respondents. The Committee while so considering the applications shall also take into consideration the law laid down by the Division Bench of this Court in the case of the State of Karnataka by its Secretary Revenue Department and others vs. Holeyappa and others reported in, (2007) ILR(Kar) 259 and the provisions of Rule 108-I proviso to Rule 108-I of the Karnataka Land Revenue Rules, 1966. In view of the above, there shall be no order as to costs.