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2023 DIGILAW 173 (KAR)

V P Vedanthappa v. State of Karnataka

2023-02-01

SACHIN SHANKAR MAGADUM

body2023
JUDGMENT/ORDER 1. The captioned second appeal is filed by the unsuccessful plaintiff questioning the divergent findings of the Courts below wherein Appellate Court has reversed the judgment and decree of the trial Court granting relief of declaration of title by way of adverse possession and consequently, suit is dismissed by allowing the appeal. These divergent findings are under challenge by plaintiff. 2. For the sake of brevity, the parties are referred to as per their rank before the trial Court. 3. The plaintiff has instituted the present suit seeking relief of declaration of title by way of adverse possession against the defendants/State. The subject matter of the suit is agricultural land bearing Sy.No.33 measuring 9 acres 31 guntas. The plaintiff has contended that one H.Veerappa under Saguvali Chit No.5/1944-45 dtd. 21/7/1944, grant was made in favour of said Veerappa, but, however, failed to pay arrears of land revenue and the same was put in public auction and since there were no bidders, State Government resumed the land. The plaintiff contended that however at no point of time, the said Veerappa was put in possession of the suit schedule property and it was the father of the plaintiff namely Poojari Kenchappa who was in actual cultivation and enjoyment of the suit land. Therefore, plaintiff contended that his father was in continuous possession of suit land without anybody's obstruction since 1962 which was open, continuous and hostile animus to that of defendants. 4. The plaintiff has also contended that inspite of repeated request, Government has refused to issue saguvali chit and therefore, plaintiff was compelled to issue legal notice on 24/9/2008. The plaintiff has also further contended that defendants have failed to grant the land in favour of plaintiff. The present suit is filed alleging that on 4/9/2009, some strangers came near the suit schedule property and threatened the plaintiff to quit the land. 5. On receipt of summons, the defendants authorities tendered appearance and filed written statement through District Government Pleader. The defendants claimed that neither the plaintiff nor his father was in possession of the suit schedule property and on account of cancellation of grant made in favour of one H. Veerappa, the suit land stood vested with the Government. 5. On receipt of summons, the defendants authorities tendered appearance and filed written statement through District Government Pleader. The defendants claimed that neither the plaintiff nor his father was in possession of the suit schedule property and on account of cancellation of grant made in favour of one H. Veerappa, the suit land stood vested with the Government. The defendants claimed that plaintiff's father never cultivated the suit land which is owned by the State and the entries in the records indicate that it is the authorities who are in lawful possession and therefore, the claim of plaintiff that he has perfected his title by way of adverse possession was seriously disputed. 6. The plaintiff and defendants to substantiate their respective claim have contested the proceedings. The plaintiff to substantiate his claim examined himself as PW.1 and 3 independent witnesses as PWs.2 to 4 and relied on documentary evidence vide Exs.P-1 to P-31. Though defendants contested the proceedings by examining jurisdictional Tahsildar as DW.1, the defendants have not opted to adduce any documentary evidence. 7. The trial Court having assessed the pleadings of the parties, oral and documentary evidence answered additional issue No.1 relating to perfection of title by way of adverse possession in the affirmative. The trial Court also answered issue No.1 in the affirmative and recorded a finding that plaintiff is in possession and enjoyment over the suit schedule property as on the date of the suit. The trial Court also held that plaintiff has succeeded in proving the interference and hence, proceeded to decree the suit. 8. The defendants feeling aggrieved by the judgment and decree of the trial Court preferred appeal before the Appellate Court. 9. The Appellate Court being final fact finding authority has independently assessed oral and documentary evidence. While examining the finding of the trial Court on adverse possession, Appellate Court was of the view that mere alleged cultivation by plaintiff as alleged in the plaint will not confer any adversary right against the Government. The Appellate Court was of the view that Exs.P-1 to P-17 does not in any way confer title by way of adverse possession on the plaintiff. The Appellate Court while reversing the finding of the trial Court in regard to adverse possession was of the view that plaintiff has failed to demonstrate that he has perfected his title by way of adverse possession. Consequently, appeal is dismissed. The Appellate Court while reversing the finding of the trial Court in regard to adverse possession was of the view that plaintiff has failed to demonstrate that he has perfected his title by way of adverse possession. Consequently, appeal is dismissed. These divergent findings are under challenge. 10. Learned Senior Counsel appearing for the plaintiff reiterating the grounds urged in the appeal memo would vehemently argue and contend that plaintiff is found to be in possession since 1962 and therefore, the evidence on record clearly demonstrates that plaintiff is found to be in possession for more than statutory period of 30 years. He would vehemently argue and contend that the judgment rendered by the Appellate Court violates the mandate under Rule 31 of Order 41 of CPC. The Appellate Court being final fact finding authority has not reassessed the entire evidence on record independently. Therefore, he would contend that the Appellate Court has superficially dealt with oral and documentary evidence. He would point out that the entire judgment stands vitiated on account of non-appreciation of entire material on record. Taking serious objections to the observations made by the Appellate Court at para 14 and 15, he would contend that there is no proper appreciation of evidence on record. 11. To buttress his arguments and in support of his contention, he has placed reliance on two judgments rendered by the Apex Court in the case of Santosh Hazari vs. Purushottam Tiwari (Deceased) by LRs., (2001) 3 SCC 179 and B.V.Nagesh and Another vs. H.V.Sreenivasa Murthy, (2010) 13 SCC 530 . Referring to the principles laid down by the Apex Court in the judgment cited supra, he would contend that on account of improper adjudication by the Appellate Court, the same would give rise to substantial question of law. By placing reliance on the principles laid down by the Apex Court, he would vehemently argue and contend that the judgment rendered by the Appellate Court does not indicate that it has displayed conscious application of mind. He would further point out that the findings and observations recorded by the Appellate Court is not supported by cogent reasons on all the issues and contentions. Referring to the provisions of Rule 31 of Order 41 of CPC, he would contend that the Appellate Court judgment is not sustainable as proper points are not formulated. 12. He would further point out that the findings and observations recorded by the Appellate Court is not supported by cogent reasons on all the issues and contentions. Referring to the provisions of Rule 31 of Order 41 of CPC, he would contend that the Appellate Court judgment is not sustainable as proper points are not formulated. 12. The second limb of arguments canvassed by the learned Senior Counsel is that there is abundant evidence on record which substantiates the claim of plaintiff that he has perfected his title by way of adverse possession. He has placed reliance on the Full Bench judgment rendered by the Apex Court in the case of Ravinder Kaur Grewal and Others vs. Manjit Kaur and Others, (2019) 8 SCC 729 . Placing reliance on the Full Bench judgment, he would contend that the pleadings and material on record clearly indicates and establishes that plaintiff's possession is found to be adequate in continuity, in publicity and further the possession is clearly found to be adverse and since the evidence on record indicates that plaintiff and his father were found to be in possession since 1962, the plea of adverse possession stands established and therefore, he would contend that Appellate Court erred in reversing the judgment and decree of the trial Court. The reversal of decree passed by the Appellate Court suffers from serious perversity and therefore, he would contend that the appeal is liable to be admitted and substantial question of law would arise for consideration. 13. Learned AGA appearing for respondent Nos.1 to 3 supporting the reasons assigned by the Appellate Court would however vehemently argue and contend that no substantial question of law arises for consideration. If plaintiff has submitted an application requesting the State to regularize his unauthorized occupation, then he is estopped from asserting title by way of adverse possession. Therefore, he would contend that alleged possession, however long, would not in itself constitute adverse possession and therefore, Appellate Court was justified in declining to grant relief of declaration of title by way of adverse possession. 14. Learned counsel appearing for respondent Nos.4 to 6 who were impleaded for the first time before this Court would vehemently argue and contend that the land was resumed in favour of respondent Nos.4 to 6 who were originally the owners of the land in question. 14. Learned counsel appearing for respondent Nos.4 to 6 who were impleaded for the first time before this Court would vehemently argue and contend that the land was resumed in favour of respondent Nos.4 to 6 who were originally the owners of the land in question. She would further contend that possession was delivered to original owners and therefore, the suit filed subsequently by plaintiff in 2009 is based on frivolous claim and therefore, she would contend that Appellate Court was justified in dismissing the suit. 15. Heard learned Senior Counsel appearing for the plaintiff, learned AGA appearing for State and learned counsel appearing for respondent Nos.4 to 6. 16. Before I advert to the facts of the case, it would be useful for this Court to refer to the principles relating to 'adverse possession'. 17. The concept of adverse possession in India is more than a century old concept of law which is primarily based on three fundamental principles. Firstly, competing rights of ownership between the actual owner and the person taking care of the land. Right of a person taking care of the land and making highest and best use of the land would prevail over the actual title holder of the land who does not take care of the land. Secondly, the title of the land should not be kept in abeyance for a long period of time i.e., a situation should not arise in which the title holder of the land is not known. Thirdly, it is presumed that the actual title holder has abandoned his possessory rights despite knowing that some other person is claiming hostile possession over his land but he chooses to keep quite and not taking any action against the said person as provided under the law. 18. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario' that is, peaceful, open and continuous. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario' that is, peaceful, open and continuous. The possession must be adequate in continuity in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. 19. The concept of adverse possession has been well settled by the judicial committee of the Privy Council in 1907 in Perry v Clissold, (1907) A.C. 73 wherein it was held that: "It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period of prescribed by the provisions of the statue of Limitation applicable to the case, his right is forever extinguished and the possessory owner acquires an absolute title." 20. The decision of the Privy Council though not binding on the Supreme Court but still the said decision was upheld by three Judges of the Hon'ble Supreme Court in the case of Nair Service Society vs. K.C. Alexander reported in AIR 1968 SC 1165 . The Hon'ble Apex Court in the case of P.T.Munichikkanna Reddy and Others vs. Revamma and Others, (2007) 6 SCC 59 further laid down certain guidelines regarding the enquiry to be held by the Courts while deciding the plea of adverse possession. The Hon'ble Apex Court has held that; "Therefore, to assess a claim of adverse possession, two-pronged enquiry is required; 1. Application of limitation provision thereby jurisprudentially "willful neglect" element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner. 2. Specific Positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distances from the paper owner, to the adverse possessor. Application of limitation provision thereby jurisprudentially "willful neglect" element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner. 2. Specific Positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distances from the paper owner, 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." 21. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property. Therefore, the plea on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. In DAGADABAI (DEAD) BY LRS V ABBAS @ GULAB RUSTUM PINJARI, (2017) 13 SCC 705 the Hon'ble Apex Court held that a person, who acquires title by adverse possession, has to first admit the ownership of the true owner over the property before claiming ownership on the strength of adverse possession. 22. If plaintiff has to assert hostile animus, it is equally important to ascertain whether defendants have willfully neglected and have abandoned their rights over the suit schedule property despite knowing that plaintiff was asserting hostile possession. Then the Court has to examine and ascertain whether there was any positive intention on the part of the plaintiff to dispossess which would effectively shift the title already distanced from the paper owner to the adverse possessor. 23. The plaintiff has filed the present comprehensive suit alleging that he has perfected his title by way of adverse possession. Ex.P-15 is an application submitted by the plaintiff which is dtd. 30/5/1986 requesting the authorities to mutate his name based on heirship. In the said application, he admits that since the time of his father, they are unauthorized occupants. It would be useful for this Court to cull out Ex.P-15 which reads as under: 24. Under Ex.P-26, which is the legal notice issued by the plaintiff through his lawyer which is dtd. 24/9/2008, plaintiff claims that on account of default by the original grantee H.Veerappa, land was subject matter of public auction, possession was secured from the grantee i.e., Poojari Kenchappa. Under Ex.P-26, which is the legal notice issued by the plaintiff through his lawyer which is dtd. 24/9/2008, plaintiff claims that on account of default by the original grantee H.Veerappa, land was subject matter of public auction, possession was secured from the grantee i.e., Poojari Kenchappa. In the said legal notice, plaintiff claimed that the land was granted to Poojari Kenchappa, his father was in fact in possession of the suit land and therefore, under Ex.P-26, he has requested the concerned authorities to grant the present suit land. Ex.P-26 also goes against the claim of plaintiff that he has perfected his title by way of adverse possession. The element of hostile animus is not found in Ex.P-26. 25. If the application submitted by the plaintiff on 30/5/1986 is looked into, this Court would find that the requisite ingredients of adverse possession are not found. It is also not in dispute that the original owners who failed to pay the arrears of revenue, proceedings were initiated and as there were no bidders, the suit land was resumed by the State. Therefore, what emerges from the records is that the suit land is admittedly a surplus land held by the State. The Apex Court in catena of judgments has held that persons in illegal occupation of Government land/panchayat land, as a matter of right, cannot claim regularization. Regularization of illegal occupation of the Government land/panchayat land has to be only in terms of policy adopted by the State Government and only on satisfaction of conditions stipulated in the Rules. 26. The Apex Court in the case of Mandal Revenue Officers vs. Goundla Venkaiah, AIR 2010 SCW 977 held that where an encroacher or illegal occupant or land grabber of public property raises a plea that he has perfected his title by way of adverse possession, the Court is bound to act with greater seriousness, care and circumspection. The Apex Court in the said case was of the view that any laxity in this regard may virtually result in losing agricultural land held by the State. The agricultural land held by the State has to be preserved. 27. Article 39 of the Constitution of India talks about certain principles of policy to be followed by the State. The Apex Court in the said case was of the view that any laxity in this regard may virtually result in losing agricultural land held by the State. The agricultural land held by the State has to be preserved. 27. Article 39 of the Constitution of India talks about certain principles of policy to be followed by the State. The ownership and control of material resources of the community are so distributed to sub-serve the common good, that is for the welfare of all and also that the operation of economic system does not result in concentration of wealth and means of production to the common detriment. Though land reform efforts has brought in some positive results and millions of hectares of land has been transferred under tenancy reforms legislation, but the land that stood vested with the Government either under the provisions of Karnataka Land Reforms Act or on account of default by the land owners, those lands cannot be casually distributed. Therefore, a person asserting hostile animus against State and claiming title by way of adverse possession has to be dealt with caution. If in a suit seeking relief of declaration by way of adverse possession against State in respect of surplus land are casually entertained, that itself will defeat the purpose of the constitutional scheme envisaged under Article 39 of direct principles of State policy. The State does not possess logistic and manpower to guard vast lands held by the State. The lands even if State resolves to distribute among citizens, the concerned authority is required to examine as to whether person seeking grant or regularization of a Government land is a landless person. 28. In the light of the discussions made supra, now let me examine as to whether plaintiff can simultaneously pursue his claim as an 'unauthorized occupant' and at the same time assert title by way of 'adverse possession'. An 'unauthorized occupation' though not defined under the Land Revenue Act, however, means an occupation in relation to any public land without the authority of the State. Unauthorized occupation necessarily does not contain the ingredients of plea of adverse possession. An unauthorized occupant does not assert hostile animus against the State. In case of an unauthorized occupation, an occupant makes a request to the State to regularize his unauthorized occupation. Under sub-sec. Unauthorized occupation necessarily does not contain the ingredients of plea of adverse possession. An unauthorized occupant does not assert hostile animus against the State. In case of an unauthorized occupation, an occupant makes a request to the State to regularize his unauthorized occupation. Under sub-sec. (3) of Sec. 94 of the Karnataka Land Revenue Act, 1964, the State is authorized and empowered to summarily evict an unauthorized occupant. Therefore, if plaintiff has made an application under Form No.53 of the Karnataka Land Revenue Rules seeking regularization of his unauthorized occupation, then he is estopped from asserting hostile animus against the State. If he is seeking regularization of unauthorized occupation, then the element of hostile animus is found missing in the present case on hand. 29. The evidence on record, therefore, clearly indicates that plaintiff has been persistently pursuing his remedy to regularize his unauthorized occupation. 'Unauthorized occupation' means occupation without authority and includes wrongful use. Therefore, the incidents of unauthorized occupation and perfection of title by way of adverse possession are totally on a different footing. The element of hostile animus is not at all found in unauthorized occupation. Therefore, if the evidence on record indicates that plaintiff intends to seek regularization, then he cannot assert and claim that he has perfected his title by way of adverse possession. If he has perfected his title by way of adverse possession, then there was no occasion for plaintiff to seek regularization of unauthorized occupation. 30. In the light of the principles laid down by the Apex Court in the case of Mandal Revenue Officers (supra), the Courts have to be very cautious when they are dealing with vast lands held by the State. A plea of perfection of title by way of adverse possession against State has to be cautiously examined. State, which is the guardian of vast lands held through its machinery, may not be in a position to guard and protect each and every surplus land held by it. Therefore, possession of plaintiff, if any, cannot be regarded as adverse to the rights of the State inasmuch as plaintiff has been seeking regularization of his alleged unauthorized occupation. There is also no evidence on record to indicate that plaintiff is in possession for a statutory period of 30 years so as to acquire his title against the State by way of adverse possession. There is also no evidence on record to indicate that plaintiff is in possession for a statutory period of 30 years so as to acquire his title against the State by way of adverse possession. If plaintiff's case is that he is in unauthorized occupation, then his alleged continuance in possession cannot be regarded as adverse to the State and therefore, plaintiff could not have acquired any right to the suit land so as to entitle him either to the declaration of title by way of adverse possession or for injunction. 31. As discussed supra, the evidence on record indicates the act of disposition. As rightly held by Appellate Court, plaintiff has failed to establish the positive acts of exclusive ownership exercised by the plaintiff as a trespasser. The judgments cited by the learned Senior Counsel are not at all applicable to the present facts and circumstances of the case. This Court has absolutely no cavil to the principles cited in the above said citations. 32. In the light of the discussions made supra, the findings recorded by the trial Court that plaintiff has succeeded in establishing his hostile animus and that he has perfected his title by way of adverse possession suffers from serious perversity. The reasons and conclusions recorded by the trial Court is found to be in conflict with the principles laid down by the Apex Court on the law relating to adverse possession. More emphasis is given by the trial Court in regard to alleged possession. What is totally missed by the trial Court is that even as on the date of filing of the suit, no documents are produced by the plaintiff to indicate his possession. There are no documents indicating that plaintiff was found to be in lawful possession. The ingredients of hostile animus is not substantiated by the plaintiff by producing cogent and clinching evidence. The Appellate Court has rightly reversed the decree passed by the trial Court. The findings recorded by the Appellate Court is in accordance with law. No substantial question of law arises for consideration. 33. For the foregoing reasons, I pass the following: ORDER The second appeal is dismissed. The pending interlocutory applications, if any, do not survive for consideration and stand disposed of.