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2022 DIGILAW 212 (KAR)

Kisanpyari v. State of Karnataka

2022-02-15

ALOK ARADHE, M.G.S.KAMAL

body2022
JUDGMENT M.G.S. Kamal, J. - Present writ petition is filed seeking quashment of the order dated 21.03.2019 passed in No. L.G.C.(D) No. 1733/2017 by the Karnataka Land Grabbing Prohibition Special Court (hereinafter referred to as 'the Special Court'), in and by which, the Special Court while dismissing the suit of the petitioners as not maintainable, has directed the Tahsildar, Vijayapura Taluk to initiate proceedings against the petitioners under the provisions of the Karnataka Land Grabbing (Prohibition) Act, 2011 (hereinafter referred to as 'the Act') by filing complaint in Form No. 1 within a period of one month from the date of the receipt of the order and to report the action taken in the matter. 2. The case of the petitioners is that one Jagan Mohan Toshniwal was running a ginning factory and oil mill in the land bearing Survey No. 241 measuring 2 acres 1 gunta of Tikota village, Bijapur taluk and district from the year 1950. That in terms of the order dated 27.05.1964 bearing No. L.B.S.R/1129, the aforesaid land was granted in favour of Sri. Bagirath Toshniwal. That the Assistant Director, Industries and Commerce had issued licence to run the industry and the same was renewed from time to time. That on 23.02.1987, said Bagirath Toshniwal passed away leaving behind his widow and three sons and two daughters. There was a partition amongst his sons in which the aforesaid property was allotted to the share of Giridharlal Toshniwal. Even the said Giridharlal Toshniwal passed away and the petitioners being his legal representatives have succeeded to his estate. That the aforesaid property has been in their lawful possession and enjoyment. 3. That by a notice dated 22.08.2013, petitioners were called upon to hand over the possession of the aforesaid property on the premise that the same being Government land, the petitioners are in unauthorised occupation of the same. Petitioners filed O.S. No. 668/2013 before the First Addl. Civil Judge (Jr. Dn.), Bijapur seeking declaration of they having become absolute owners of the aforesaid property by way of adverse possession and for consequential relief of permanent injunction. That in view of coming into effect of the Act, the matter was transferred to the Special Court. Upon the transfer of said suit, the same was renumbered by the Special Court as LGC(T) NO. 1733/2017. 4. That in view of coming into effect of the Act, the matter was transferred to the Special Court. Upon the transfer of said suit, the same was renumbered by the Special Court as LGC(T) NO. 1733/2017. 4. The Special Court, taking note of the claim of the plaintiff for declaration based on adverse possession and also relying upon the Judgment of the Apex Court reported in Dharampal (Dead) Through L.rs vs. Punjab Wakf Board 2018(11) SCC 449 ) wherein it was held that the plea of adverse possession was not available to the plaintiff but can only be raised by the defendant by way of defence, by its order dated 21.03.2019, dismissed the suit of the petitioners as not maintainable and directed the authorities to take action as referred to above. 5. Learned counsel for the petitioners referring to the Judgment of the Apex Court in the case of Ravinder Kaur Grewal and Others vs. Manjit Kaur and Others ( AIR 2019 SC 3827 ) wherein the Apex Court over-ruling its earlier Judgment in Dharampal (dead), through L.Rs supra, has held that a suit for declaration of title and for restoration of possession on the plea of adverse possession is maintainable under Section 65 of the Limitation Act, submits that in view of the aforesaid position of law, the dismissal of suit by the Special Court was illegal. Hence, sought for allowing of the petition. 6. Heard the learned counsel for the petitioners and perused the records. 7. The Special Court without going into the merits of the case, has dismissed the suit of the petitioners solely relying upon the Judgment of the Apex Court in the case of Dharampal (dead), through L.Rs supra. However, in view of the Judgment of the Apex Court in the case of Ravinder Kaur Grewal supra, a plea of acquisition of title by adverse possession can be claimed by the plaintiff under Article 65 of the Limitation Act and that there is no bar under the Limitation Act, 1963, to sue on aforesaid basis in case of infringement of any rights of a plaintiff, the suit of the petitioners requires to be restored to original file. 8. 8. For the foregoing reasons, this Court is of considered view that the order passed by the Special Court requires to be set aside and the matter be remitted to the Special Court for consideration of the plea of the petitioners in the light of the Judgment of the Apex Court in Ravinder Kaur Grewal case supra and in accordance with law. 9. With the above observation, the petition is disposed of. No opinion is expressed on the merits or otherwise of the case of the petitioners in this order.