Karnataka High Court
Shamrao S/O Nagappa Myakal Ors vs Meghu S/O Kalu on 25 July, 2024
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NC: 2024:KHC-K:5376
RSA No. 7009 of 2011
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF JULY, 2024
BEFORE
THE HON'BLE Mrs JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.7009 OF 2011 (DEC/INJ)
BETWEEN:
1. SHAMRAO S/O NAGAPPA MYAKAL,
AGE: 65 YEARS, OCC: AGRI.,
R/O. TOWN CHINCHOLI,
2. ANANTHKUMAR S/O SHAMRAO MYAKAL,
AGE: 29 YEARS, OCC: AGRI.,
3. SRINIVAS S/O SHAMRAO MYAKAL,
AGE: 32 YEARS, OCC: AGRI.,
ALL R/O. TOWN CHINCHOLI,
DIST: GULBARGA.
...APPELLANTS
Digitally signed (BY SRI S.B. HANGARKI, ADVOCATE)
by SWETA
KULKARNI
Location: HIGH AND:
COURT OF
KARNATAKA
1. MEGHU S/O KALU,
SINCE DECEASED BY HIS LR'S.
(A) BIKIBAI W/O MEGHUNAYAK,
AGE: 65 YEARS, OCC: HOUSEHOLD.
(B) GOVIND S/O MEGHUNAYAK,
AGE: 40 YEARS, OCC: AGRI.,
(C) MOHAN S/O MEGHUNAYAK,
AGE: 38 YEARS, OCC: AGRI.,
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RSA No. 7009 of 2011
(D) VIJAYKUMAR S/O MEGHUNAYAK,
AGE: 36 YEARS, OCC: AGRI.,
(E) RAJU S/O MEGHUNAYAK,
AGE: 30 YEARS, OCC: AGRI.,
(F) RUKMABAI D/O MEGHUNAYAK,
AGE: 55 YEARS, OCC: HOUSEHOLD.
(G) BICHAMMA,
W/O DECEASED SHANKER S/O MEGHUNAYAK,
AGE: 45 YEARS, OCC: HOUSEHOLD
(H) SRIKANTH,
S/O DECEASED SHANKER S/O MEGHUNAYAK
AGE: 25 YEARS, OCC: AGRI.,
(I) SUDHAK,
S/O DECEASED SHANKER S/O MEGHUNAYAK,
AGE: 23 YEARS, OCC: AGRI.,
ALL R/O. VILLAGE CHANDAPUR,
TQ. CHINCHOLI, DIST: GULBARGA.
...RESPONDENT
(BY SRI SANJEEV KUMAR C PATIL, ADV. FOR R1(B) AND R1(E);
NOTICE FOR R1(A), R1(C) AND R1(D), R1(F), R1(G) TO
R1(I)-SERVED)
THIS RSA FILED UNDER SECTION 100 OF CPC, PRAYING
TO SETASIDE THE JUDGMENT AND DECREE DATED:
27.09.2010 IN R.A. NO.20/2010 PASSED BY THE CIVIL JUDGE
(S.D.) CHINCHOLI CONFIRMING THE JUDGMENT AND DECREE
DATED: 17.03.2009 IN O.S. NO.121/2002 ON THE FILE OF THE
CIVIL JUDGE (J.D.) CHINCHOLI, IN DISMISSING THE COUNTER
CLAIM OF THE APPELLANTS. AND THE COUNTER CLAIM FOR
DECLARATION OF TITLE AND POSSESSION MADE BY THE
APPELLANTS IN THE SUIT BE ALLOWED/DECREED IN THE
INTEREST OF JUSTICE AND EQUITY.
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NC: 2024:KHC-K:5376
RSA No. 7009 of 2011
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE Mrs JUSTICE K S HEMALEKHA
ORAL JUDGMENT
(PER: HON'BLE Mrs JUSTICE K S HEMALEKHA) The defendants are before this Court in the regular second appeal against the judgment and decree dated 17.03.2009 in O.S No.121/2002 on the file of Civil Judge (Jr.Dn.) and JMFC at Chincholi, whereby, the counterclaim made by the defendants was dismissed and confirmed by the First Appellate Court in R.A No.20/2010 dated 27.09.2010 on the file of Civil Judge (Sr.Dn.) and JMFC at Chincholi.
2. Parties herein are referred to as per the rank before the Trial Court for the sake of convenience.
3. Suit seeking relief of declaration and for permanent injunction in respect of land bearing Sy.No.40/1 measuring 20 guntas out of 5 acres of land -4- NC: 2024:KHC-K:5376 RSA No. 7009 of 2011 towards Eastern side of the plaintiff's land (herein after referred to as "suit property" for short).
4. The plaint avers that one Magdoomsab s/o Omersab was the original owner of land bearing Sy.No.40/1 totally measuring 10 acres 7 guntas situated at Chandapur village. Magdoomsab had given the said land to the plaintiff for the purpose of cultivation on half crop basis about 10 to 12 years and on the basis of cultivation made by the plaintiff, the name of the plaintiff was entered in the cultivators column of the suit property. After coming into force of Karnataka Land Reforms Act, 1961, Form No.7 was filed by the plaintiff before the Land Tribunal Chincholi, seeking occupancy rights as a tenant of Sy.No.40/1 to the extent of 10 acres 7 guntas. The Land Tribunal granted occupancy rights in favour of the plaintiff to the extent of 5 acres towards the Western side, the Form No.10 was issued in favour of the plaintiff.
5. It is further stated that the defendants in the year 1991 purchased the remaining land of Sy.No.40 to -5- NC: 2024:KHC-K:5376 RSA No. 7009 of 2011 the extent of 5 acres 7 guntas from the previous owner Magdoomsab under registered sale deed in favour of defendant Nos.2 and 3. After the purchase of the land by defendant Nos.2 and 3, survey was conducted and the defendants came to know to an extent of 20 guntas towards the Southern side of their land is encroached by the plaintiff. It is the case of the plaintiff that he is in possession of the suit area in addition to the area granted to him by the Land Tribunal and this fact was very well known to the defendants after they have purchased from Magdoomsab and the defendants have not taken any steps to take possession of the suit area from the plaintiff to the extent of 20 guntas and contended that alternatively perfected their right and title over the suit property by way of adverse possession.
6. On notice, the defendants appeared and filed their written statement on 09.03.2004, inter alia, denying the plaint averments and contending that the Land Tribunal has granted occupancy right in favour of the -6- NC: 2024:KHC-K:5376 RSA No. 7009 of 2011 plaintiff to the extent of Western portion 5 acres 7 guntas in land Sy.No.40 and defendant No.2 has purchased an area of 2 acres 24 guntas under registered sale deed dated 06.05.1991, defendant No.3 has purchased an area of 2 acres 23 guntas through registered sale deed dated 06.05.1991 out of the said Eastern remaining area of 5 acres 7 guntas of land Sy.No.40 from its previous owner and possessor, namely, Magdoomsab and defendant Nos.2 and 3 are in possession of their respective areas purchased.
7. It is stated that one Shivaji began to encroach the land Sy.No.40/2 belonging to defendant Nos.2 and 3, during the year 1992 and as such, defendants had filed an application to the Taluka surveyor to survey the said land, the Taluka surveyor had surveyed the land Sy.No.40/2 on 28.05.1993 in the presence of defendant Nos.2 and 3, the plaintiff, Vasantkumar, Bhimrao, Shivaji and the panchas, during the said survey it was revealed that the plaintiff has encroached an area of 20 guntas, the Western portion of -7- NC: 2024:KHC-K:5376 RSA No. 7009 of 2011 the Sy.No.40/2 and the Shivaji encroached an area of 26 guntas, the Southern portion of Sy.No.40/2 of village Chandapur belonging to defendant Nos.2 and 3. It is contended that the plaintiff has encroached an area of 20 guntas of land Sy.No.40/2, stating these grounds, the defendants sought to dismiss the suit.
8. The defendants filed application on 16.11.2004 seeking for amendment of the written statement and by seeking for relief of possession in respect of 20 guntas of land encroached area by the plaintiff towards Western portion of the Sy.No.42/2 by way of counterclaim. The plaintiff filed objections to the application filed by the defendants under Order XI Rule 17, the Trial Court on consideration allowed the application permitting the defendant to amend the written statement and to introduce the counterclaim on 03.09.2005. The defendants amended the written statement setting up a counterclaim seeking possession of encroached portion of 20 guntas of land in Sy.No.40/2.
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9. The Trial Court on basis of the pleading framed the following issues:
1. "Whether the plaintiff proves that, he is owner in possession and enjoyment of suit property?
2. Whether the plaintiff proves the interference by the defendants?
3. Whether the plaintiff acquire the title of suit property by way of adverse possession?
4. Whether the defendant proves that, they are owner in possession and enjoyment of suit property?
5. Whether the plaintiff entitled for the relief as sought for in the plaint?
6. Whether the defendants are entitled counter claim?
7. What order or decree?"
10. The Trial Court on the basis of pleading, oral and documentary evidence arrived at a conclusion that:
1. The plaintiff has failed to prove that he is owner in possession of the suit property.
2. That the plaintiff has failed to prove his interference by the defendants. -9-
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3. That the plaintiff has acquired the title of the suit property by way of adverse possession.
4. That the defendants failed to prove that they are the owners in possession and enjoyment of the suit property.
By the judgment and decree the suit of the plaintiff was dismissed and the counterclaim made by the defendants was also dismissed.
11. Aggrieved, the defendants preferred R.A No.20/2010 before the First Appellate Court and the plaintiff filed cross objections. The First Appellate Court concurred with judgment and decree of the Trial Court and dismissed the appeal as well as the cross appeal filed by the plaintiff. Aggrieved, the defendants are before this Court. No appeal is preferred by the plaintiff against the dismissal of the suit.
12. This Court, while admitting the appeal, framed the following substantial questions of law on 26.02.2018:
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1. "Were the Courts below justified in rejecting the counter claim of the defendants, when they have taken a specific contention that they are the owners with regard to declaration and for possession?
2. Were the defendants prove that they are the owners, in possession and enjoyment of the suit property based on oral and documentary evidence on record?
3. Were the Courts below justified in dismissing the counter claim as well as the relief of possession.
when they have taken a specific contention that they are the owners of western portion of land measuring 0-20guntas in Sy. No.40/2 of Chandapur village and for possession?
4. Were the Courts below justified in dismissing the counter claim as well as appeal for declaration and possession in the facts and circumstances of the case?"
13. Heard Sri S. B. Hangarki, learned counsel for the appellants and Sri Sanjeev Kumar C. Patil, Learned counsel for the respondent Nos.1(b) and 1(e) on the substantial questions of law framed by this Court and perused the judgment and decree of the Courts below including the original documents.
14. The concurrent findings of facts of the Courts below are interfered, when there is a perversity and
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NC: 2024:KHC-K:5376 RSA No. 7009 of 2011 illegality in the orders passed by the Courts below and bearing in mind the settled proposition of law, the material on records are perused. Suit seeking for declaration and permanent injunction in respect of the suit property, the claim of the plaintiff is that he is in possession of the suit property by way of adverse possession, the counterclaim introduced by the defendants by way of amendment to his written statement is seeking relief of declaration of their title to the suit property and for possession, the defendants got the survey done by the Taluka Surveyor in the year 1993 and in the year 1993, it was revealed that the plaintiff had encroached an area of 20 guntas of land. The plaintiff's plea is that he has perfected his title by way of adverse possession to prove his adverse possession, the principles and essential ingredients that are necessary are that:
(a) Possession must be open, clear, continuous and hostile to the claim or possession of the other party.
(b) The essential ingredients must co-exist
(i) nec vi i.e., adequate in continuity
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(ii) nec clam l.e., adequate in publicity
(iii) nec precario adverse to a competitor, in denial of title and knowledge, which means the adverse possession is proved only when possession is peaceful, open, continuous and hostile, and merely a long period of possession, does not translate into a right of adverse possession. Merely on the basis of denial of another's title over the property for that would be violative of the basic rights of the actual owner.
15. When the plaintiff has taken a plea of adverse possession invariably he admits the title of the defendants, the plaintiff has to establish that his possession is in adverse to the knowledge of the defendants and hostility, both the Courts have held that the plaintiff has failed to prove his title over the suit property by way of adverse possession. No appeal has been preferred by the plaintiff and the said order has attained finality.
16. The possession of the plaintiff came to the knowledge of the defendants in the year 1993. The
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NC: 2024:KHC-K:5376 RSA No. 7009 of 2011 plaintiff has failed to establish as to when his possession has become adverse to the knowledge of the defendants, Article 65 of the Limitation Act, 1963 comes to the aid of the defendants for seeking possession. Article 65 of the Limitation Act reads as under:
"Description of suit Period of Time form limitation which period begins to run
65. For possession of Twelve When the immovable property or any years possession of interest therein based on the defendant title. becomes Explanation. For the adverse to the purposes of this article- plaintiff
(a) where the suit is by a remainderman, a reversioner (other than a landlord) or a devisee, the possession of the defendant shall be deemed to become adverse only when the estate of the remainderman, reversioner or devisee, as the case may be, falls into possession;
(b) where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, possession of the defendant shall be deemed to become adverse only when the female dies;
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(c) where the suit is by a purchaser at a sale in execution of a decree when the judgment-debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment-debtor who was out of possession."
17. Article 65 of the Limitation Act prescribes a limitation of 12 years from the date the possession of the defendants becomes adverse to the plaintiff. It is not in dispute that the Taluka Surveyor conducted the survey in the year 1993 and it is at that point of time the defendants came to know about the encroachment by the plaintiff upon the suit property, the defendants filed his written statement on 09.03.2004, counterclaim by way of proposed amendment was sought on 16.11.2004. The Trial Court allowed the application on 03.09.2005 and permitted the defendants to introduce the counterclaim. The counterclaim seeking declaration and possession was within 12 years when the possession became adverse to the knowledge of the plaintiff. Both the Courts have fell in
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NC: 2024:KHC-K:5376 RSA No. 7009 of 2011 error in dismissing the counterclaim and the judgment suffers from illegality and perversity warranting interference by this Court. Accordingly, the substantial questions of law framed by this Court are answered in favour of the appellants and against the respondents and this Court pass the following:
ORDER I. The regular second appeal is allowed. II. The judgment and decree of the Courts below in respect to counterclaim is allowed. The plaintiff/respondent is directed to hand over the possession of 20 guntas of land within three months from the date of release of this order.
Sd/-
(K S HEMALEKHA) JUDGE AT List No.: 1 Sl No.: 29 CT: VD