Smt Jeanne Pinto vs Deputy Conservator Of Forests
2021 Latest Caselaw 198 Kant

                             1
                                                         R
        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 6TH DAY OF JANUARY, 2021

                          PRESENT

            THE HON' BLE MR. JUSTICE B. VEERAPPA

                            AND

            THE HON'BLE MR. JUSTICE K. NATARAJAN

            REGULAR FIRST APPEAL No.988/2013

BETWEEN:

SMT. JEANNE PINTO,
W/O LATE WILFRED PINTO
AGED 65 YEARS
AGRICULTURIST AND PLANTER
"NILGIRI ESTATE", BASARIKATTE POST,
MEGUNDA HOBLI, KOPPA TALUK,
CHIKKAMAGALUR DISTRICT,
ALSO RESIDING AT
"EXCELSIOR", UPPER BENDORE,
MANGALORE-575 002.
REPRESENTED BY HER GPA HOLDER
SRI IVOR REGO
AGED 47 YEARS,
S/O W.H.REGO,
"SUSAN" BENDOREWELL
MANGALORE-575002.
                                                   ...APPELLANT

(BY SRI CYRIL PRASAD PAIS, ADVOCATE)

AND:

1.     DEPUTY CONSERVATOR OF FORESTS
       KOPPA DIVISION,
       KOPPA-577126.
                                   2



2.    STATE OF KARNATAKA,
      BY ITS CHIEF SECRETARY,
      VIDHANA SOUDHA,
      BANGALORE-560001.
                                                    ...RESPONDENTS

(BY SMT. T.H. SAVITHA, HIGH COURT GOVERNMENT PLEADER)

                                *****
     THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96
OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE DATED 06.03.2013 PASSED IN O.S.
No.98/2008 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE,
CHIKKAMAGALURU AND CONSEQUENTLY DECREE THE SUIT AS
PRAYED FOR.


     THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, B.VEERAPPA, J, DELIVERED THE
FOLLOWING:


                        JUDGMENT

The plaintiff filed the present Regular First Appeal against the

judgment and decree dated 06.03.2013 made in O.S.No.98/2008

on the file of the Additional Senior Civil Judge and JMFC,

Chikkamagaluru, dismissing the suit of the plaintiff for declaration

of title by way of adverse possession and permanent injunction in

respect of the suit schedule properties.

2. The appellant/plaintiff filed the suit for declaration that she

has acquired title over the suit schedule properties by way of

adverse possession and for permanent injunction restraining the

defendants from interfering with her possession over the suit

schedule properties, contending that the suit item No.1 measuring

18 acres 5 guntas of coffee land in Sy.No.188 and 17 acres 20

guntas of coffee land in Sy.No.189 and suit item No.2 measuring 33

acres 8 guntas of coffee land in Sy.Nos.185, 188, 189 and 229 of

Heruru village, Megunda Hobli, Koppa Taluk, Chikkamagaluru

District, morefully described in the schedule to the plaint within the

reputed boundaries of Nilgiri Coffee Estate owned by the plaintiff.

The said lands are revenue lands and the plaintiff's predecessors in

title had raised the coffee plantation with the shade trees about

hundred years back and are part and parcel of the plaintiff's estate

known as 'Nilgiri Coffee Estate' and has been enjoyed as such, as of

right, in a peaceful manner and without let or hindrance by the

Government or any third party to their knowledge. To prove her

possession, the plaintiff produced the notarized copy of the survey

report of the ADLR, Chikkamagaluru with the plan attached thereto

and the affidavit dated 06.04.1994 of plaintiff's predecessor in title

clearly affirming that the plantation described in the schedule to the

plaint has been part and parcel of plaintiff's Nilgiri Estate for over

hundred years and as such the owners thereof from time to time

including the plaintiff and they have perfected title by adverse

possession, prescription and limitation against the Government and

in particular, against the defendants.

3. It is further contended that the plantation described in the

schedule to the plaint has at all time being classified in the revenue

records and in the forest records as revenue land, never as forest

land, as can be seen from the statement showing Section 4

declared under the Karnataka Forest Act, 1963 areas included in

forest reserve as per Deputy Commissioner Notification dated

05.06.2002, wherein the plaintiff's survey numbers are not

included; the RTC records showing private ownership of land out of

the survey numbers involved in plaintiff's property; the plan

showing levy of T.T fine in respect of the property in the

neighborhood and relating to the survey numbers involved in

plaintiff's property; however, the plaintiff's portion of the survey

number is not involved in those T.T. proceedings; records of right

showing that Sy.Nos.185, 188, 189 and 229 are described as non

forest lands and the index of lands where saguvali chits have been

freely granted to portions of land involved in survey numbers of the

plaintiff's property.

4. It is further contended that the plaintiff and her predecessors

in title have been in possession of the suit schedule properties for

more than 100 years by adverse possession to the interest of the

State. When the first defendant sent a notice dated 06.10.2008,

claiming that the suit schedule properties are forest lands and that

they are Government lands and that unless a satisfactory reply is

sent, the plaintiff will be forcibly evicted from the properties, the

plaintiff promptly replied to the said notice on 27.10.2008 stating

that the suit schedule lands are revenue lands and not forest lands.

In spite of the same, the defendants are interfering with the

plaintiff's peaceful possession and enjoyment of the suit schedule

properties and cause of action to file the suit arose on 06.10.2008,

when the first defendant sent the notice. Hence, the plaintiff filed

the suit for declaration that the plaintiff has acquired title to the

plaint schedule property and for consequential injunction restraining

the government and its officers from interfering with the possession

of the plaintiff and for declaration that the notice dated 06.10.2008

issued by the first defendant as null and void and not binding on

the plaintiff, etc.

5. The defendant No.1 filed the written statement, denied the

averments made in paragraphs 2 to 4 of the plaint and contended

that the plaintiff has encroached forest land measuring 68 acres 33

guntas. In this regard, the Range Forest Officer, Koppa Range,

booked Forest Offence Case in FOC No.22/1999-2000 dated

31.05.1999. After enquiry, the defendant passed the Order dated

12.11.2008 directing the plaintiff to vacate the entire occupied

lands with any crops raised, building created thereon and hand over

the land within 30 days. Therefore, the suit filed by the plaintiff for

declaration and injunction is not maintainable and is liable to be

dismissed.

6. It was further contended that the Appeal filed by the plaintiff

before the Appellate Authority came to be dismissed. The

documents referred to in paragraph 5 of the plaint pertains to

Sringeri Taluk, whereas, the suit schedule properties are situated at

Heruru village, Megunda Hobli, Koppa Taluk. The land measuring

68 acres 33 guntas was declared as 'Forest Reserve' and handed

over to the forest department by the notification dated 05.06.2002,

as per Ex.D.2. The documents relied upon by the plaintiff do not

convey any sort of possessive rights or ownership and no revenue

records show her name in respect of the suit schedule properties.

The map prepared by the defendant authorities during 1992-1993

clearly depicts that the suit schedule properties contain very good

wooded growth and similar to notified natural forests, encroached

by the plaintiff. Section 33(2)(iii-a) of the Karnataka Forest Act,

1963, prohibits unauthorized occupation of forest land for any

purpose. It is further contended that the Hon'ble Supreme Court in

the case of T.N.Godavarman Thirumulkpad vs. Union of India

and others reported in (2002)9 SCC 502 has held that 'forest'

means all statutorily recognized forests, whether designated as

reserved, protected or otherwise and 'forest land' will not only

include 'forest' as understood in the dictionary sense, but also any

area recorded as forest in the Government record. The provisions

enacted in the Forest (Conservation) Act, 1980, for the

conservation of forests and the matters connected therewith must

apply clearly to all forests so understood irrespective of the

ownership and classification. As per Section 2 of the Forest

(Conservation) Act, 1980, no State Government or other authority

shall make, except with the prior approval of the Central

Government, any order directing that any forest land or any portion

thereof may be used for any non-forest purpose. Therefore, there

is no cause of action to file the suit and the suit filed by the plaintiff

is without compliance of Section 80 of the Code of Civil Procedure

and hence the same is not maintainable and sought to dismiss the

suit.

7. Based on the aforesaid pleadings, the Trial Court framed the

following issues and additional issue.

ISSUES

1. Whether the plaintiff proves that she is the absolute owner in lawful possession over the suit schedule properties?

2. Whether defendants prove that the suit schedule properties are forest land and plaintiff has encroached the same and accordingly legal action has been taken in accordance with law?

3. Whether the plaintiff proves that the notice dated 06.10.2008 issued by defendant No.1 is null and void and it is not binding on her?

4. Whether defendants prove that this Court has no jurisdiction to entertain the suit in view of the order passed by the defendants?

5. Whether the plaintiff proves the alleged interference by the defendants?

6. Whether the plaintiff is entitled for the relief of declaration and permanent injunction?

7. What Order or decree?

ADDITIONAL ISSUE

"Whether the plaintiff proves that she acquired title to the suit property by adverse possession, prescription and limitation?"

8. In order to prove the case of the plaintiff, the GPA holder of

the plaintiff was examined as P.W.1 and the documents Exs.P.1 to

27 were marked. On behalf of the defendants, one witness was

examined as D.W.1 and the documents Exs.P.1 to 15 were marked.

9. The Trial Court, considering the oral and documentary

evidence on record, recorded a finding that, the plaintiff failed to

prove that she is the absolute owner in lawful possession over the

suit schedule properties; the defendants proved that the suit

schedule properties are forest lands and plaintiff has encroached

the same and accordingly, legal action has been taken in

accordance with law; the plaintiff failed to prove that the notice

dated 06.10.2008 issued by the defendant No.1 is null and void and

is not binding on her; the defendants failed to prove that the Trial

Court has no jurisdiction to entertain the suit in view of the order

passed by the defendants under the Karnataka Forest Act; the

plaintiff failed to prove the alleged interference by the defendants;

the plaintiff failed to prove that she acquired title to the suit

property by adverse possession and therefore, the plaintiff is not

entitled to the relief of declaration and permanent injunction.

Accordingly, by the impugned judgment and decree dated

06.03.2013, dismissed the suit filed by the plaintiff. Hence, the

present Regular First Appeal is filed.

10. We have heard the learned counsel for the parties to the lis.

11. Sri Cyril Prasad Pais, learned counsel for the

appellant/plaintiff vehemently contended that the impugned

judgment and decree passed by the Trial Court dismissing the suit

of the plaintiff for declaration of title by adverse possession and

permanent injunction is without any basis and is liable to be set-

aside.

12. The learned counsel for the appellant further contended that

the Trial Court erred in coming to the conclusion that the suit was

filed to declare that the plaintiff is the owner of the suit schedule

property. The plea of acquisition of title by adverse possession is

an alternative plea put forward by the plaintiff. The finding on the

said aspect is erroneous and suffers from non application of mind.

The Trial Court failed to notice the fact that the Order dated

06.06.1982 passed by the Amaldar states that, 'on spot inspection

and on verification of the trees, plants and the crop in the land, it is

found that the bagarhukum cultivation is approximately 30-35

years old. After coming into force of the Karnataka Land Revenue

Act, 1964, since T.T fine is to be levied regarding bagarhukum it

has decided to levy T.T. fine from the year 1964-65 to 1982-83'.

The Trial Court failed to appreciate the report with plan of the

Government Surveyor attached to the Assistant Director of Land

Records, Chikkamagaluru, which clearly states that coffee

cultivation in the property which is the subject matter of the order

of the first defendant is in existence for 40-41 years. The

encroachment according to the admission of the Government that

the land in question has been a full fledged coffee estate even 40

years prior to 1980 i.e., in 1940 or even earlier. The said material

has not been considered by the Trial Court.

13. The learned counsel for the appellant further contended that

the Trial Court failed to notice that the plaintiff has been in

uninterrupted possession of the suit schedule properties for more

than 100 years adverse to the interest of the State Government

and ought to have granted the decree as prayed for. The Trial

Court erred in holding that the plaintiff failed to produce any

document to show her title and ownership over the suit schedule

properties, ignoring the fact that the suit was filed for declaration of

title by way of adverse possession and permanent injunction. Such

being the case, obviously, the plaintiff cannot have any document in

possession. The plaintiff has been enjoying the suit schedule

properties adverse to the interest of the State Government. To

show the possession, the plaintiff has produced the RTC and report

of the Assistant Director of Land Records. The said documents

have not been considered by the Trial Court.

14. The learned counsel further contended that the eviction order

passed by the original authority against the plaintiff under the

provisions of the Karnataka Forest Act, 1963, as per Ex.P.16 was

subject matter of Appeal before the Appellate Authority. The said

material aspect has not been considered by the Trial Court. All

along, the suit schedule properties are the revenue lands. The

Forest authorities have no right to pass the eviction order and it is

exclusively for the Revenue Department to take action. Therefore,

the learned counsel contended that the impugned judgment and

decree passed by the Trial Court dismissing the suit of the plaint is

bad in law and sought to allow the present Regular First Appeal by

setting aside the impugned Judgment and decree.

15. In support of his contentions, learned counsel for the

appellant relied upon the dictum of the Division Bench of the

Madras High Court in the case of Charles Hereward Simpson and

others vs. The Government of Tamil Nadu and another

reported in 1989(2) MLW 571 paragraphs 40 and 50.

16. Per contra, Smt.Savitha, learned High Court Government

Pleader, sought to justify the impugned judgment and decree

passed by the Trial Court dismissing the suit of the plaintiff for

declaration of title and permanent injunction. Learned HCGP

contended with vehemence that the suit schedule properties are

forest lands and belongs to reserve forest area which belongs to the

Government as stated in paragraph 4 of the written statement. The

State Government issued the notification dated 05.06.2002 as per

Ex.P.18 declaring that the suit schedule properties are forest lands.

The same was not challenged by the plaintiff. Admittedly, the legal

notice as per Ex.P.10 was issued by the plaintiff to the Deputy

Commissioner and the Tahsildar, but they are not made as parties

to the suit. Ex.D.7 dated 10.04.1999-joint survey sketch produced

before this Court as per Annexure-R1 clearly depicts that the

plaintiff has encroached the Government land. In the plaint, the

plaintiff has sought for declaration that the plaintiff has acquired

title to the property described in the schedule to the plaint and

therefore, question of claiming adverse possession would not arise.

The RTC produced by the plaintiff clearly depicts that it is a

Government gomala land. After issuance of notification by the

State Government, the Deputy Conservator of Forest passed the

eviction order under Section 64-A of the Karnataka Forest Act,

1963, against the appellant. That was subject matter of Appeal

before the Appellate Authority under Section 64-A(3) of the

Karnataka Forest Act, 1963 which came to be dismissed. Against

the said order passed by the Appellate Authority, the plaintiff filed

W.P.No.47701/2014 before this Court. This Court, considering the

entire material on record, by the Order dated 27.08.2019,

dismissed the writ petition and the same has reached finality.

Therefore, learned HCGP sought to dismiss the present Regular

First Appeal with costs.

17. In support of her contentions, the learned High Court

Government Pleader relied upon the following dictums of the

Hon'ble Apex Court:

   (i)         T.N.Godavarman Thirumulkpad vs. Union of

               India and others reported in (2002)9 SCC




   (ii)        T.Anjanappa and others vs. Somalingappa

               and another reported in (2006)7 SCC 570,

               paragraph-20.

18. In view of the rival contentions urged by the learned counsel

for the parties, the only point that arises for our consideration in

the present Regular First Appeal is:

"Whether the appellant/plaintiff has made out a case to interfere with the impugned judgment and decree passed by the Trial Court dismissing the suit of the plaintiff for declaration by way of adverse possession and permanent injunction, in the facts and circumstances of the case?"

19. We have given our thoughtful consideration to the arguments

advanced by the learned counsel for the parties and perused the

entire material including the original records, carefully.

20. It is the specific case of the plaintiff that the plaintiff and her

predecessors-in-title have been in possession and enjoyment of the

suit schedule properties measuring 68 acres 33 guntas of

government land as owners by way of adverse possession. To

prove her case, the plaintiff examined her GPA Holder, one Mr.Ivor

Rego, as P.W.1, who, reiterating the averments made in the plaint

deposed that the plaintiff and her predecessors-in-title have been in

possession and enjoyment of the suit schedule properties

measuring 68 acres 33 guntas of coffee land in Sy.No.185, 188,

189 and 229 of Heruru village, Koppa Taluk, which are within the

reputed boundaries of Nilgiri Coffee Estate owned by the plaintiff

and all along, the said lands have been classified as revenue lands

in all the records, and even in the forest records they have been

shown as revenue lands and at no point of time, they have been

shown as forest lands. The plaintiff and her husband late Wilfred

Pinto had asserted their title to the suit schedule properties by

adverse possession against the Government by issuing a legal

notice on 10.11.1999 under Section 80 of the Code of Civil

Procedure as per Ex.P.10, to the Secretary, Revenue Department,

State of Karnataka, Bengaluru, the Deputy Commissioner,

Chikkamagaluru, the Tahsildar, Koppa Taluk and the Range Forest

Officer, Koppa Taluk. Late Wilfred Pinto, husband of the plaintiff

executed a Release Deed dated 20.11.1999 as per Ex.P.19 and a

Will dated 19.08.1998 as per Ex.P.20 in respect of Nilgiri lands

which also include suit schedule properties. In the cross-

examination, P.W.1 admitted that, in the documents Exs.P.1 to 7,

the name of the plaintiff or her ancestors is not shown in respect of

the suit schedule properties, but, it is shown as gomala land. It is

further admitted that after receipt of the notice from the Deputy

Conservator of Forest, except filing the suit, the plaintiff has not

taken any action.

21. P.W.1 has further deposed that, to show that they are in

possession for more than 100 years, they have the sketch and

report prepared by the Assistant Director of Land Records in the

year 1980. After that, the plaintiff made an application to the

Government seeking grant of the said lands and he is not having

any documents to show regarding the application given to the

Government and the proceedings on the said application. Except

the sketch prepared in the year 1980, they are not having any

documents to show that they are in possession of the suit lands

from the past 100 years. He has further deposed that he knows

about the proceedings pertaining to the transfer of lands in suit

survey numbers between the forest department and revenue

department, but he cannot tell as to how much land was transferred

from forest department to the revenue department and vice versa.

He cannot say boundaries to the suit survey numbers. He does not

know as to whether survey notice was issued to the forest

department while conducting the survey in the year 1980 by the

revenue department. He has further deposed that the forest

department issued the letter as per Ex.P.16 and questioning the

same, he filed an appeal before the Forest Officer and the same is

pending. He denied the suggestion that the said appeal and the

case before the High Court have been dismissed. The witness

deposed that the notification dated 05.06.2002 as per Ex.P.18 has

been cancelled and thereafter, the forest department and the

revenue department conducted a joint survey and he has produced

the documents to show the said notification has been cancelled.

22. The defendant all along contended that the suit filed by the

plaintiff for declaration of title in respect of the forest land is not

maintainable, as the State Government issued the notification dated

05.06.2002 declaring the suit lands as reserve forest. The plaintiff

is an encroacher of forest land and not entitled to the relief of

declaration by way of adverse possession and injunction. Though

the plaintiff claims that the suit schedule properties are revenue

lands, the Deputy Commissioner and Tahsildar are not made as

parties to the suit and the notification issued by the State

Government declaring the suit schedule properties as reserved

forest lands has not been challenged. Therefore the suit is not

maintainable.

23. To prove the said contention on behalf of the defendants, the

Range Forest Officer, Koppa, was examined as D.W.1, who, while

reiterating the averments made in the written statement, deposed

that the suit schedule properties were declared as forest lands by

the notification issued by the State Government and the same was

published in the State Gazette and the plaintiff has encroached the

said government lands for which, a criminal case was also

registered against the plaintiff. Further, invoking the provisions of

the Karnataka Forest Act, 1963, eviction order came to be passed;

and against which an appeal came to be filed by the plaintiff in

No.1/2008-09 and the same is pending, and therefore, plaintiff is

not entitled to the relief sought for. The defendants produced the

authorization letter of D.W.1 as per Ex.D.1, the notification dated

05.06.2002 as per Ex.D.2, RTCs pertaining to the suit properties as

per Exs.D.3 to 6, the survey sketch as per Ex.D.7, the order dated

12.11.2008 passed by the defendant No.1 as per Ex.D.8, the FIR

registered under the Karnataka Forest Act as per Ex.D.9 and the

Order sheet of the appeal as per Ex.D.10. In the cross-

examination, D.W.1 deposed that, "the suit schedule properties are

the forest lands and that in RTCs as per Exs.D.3 to 6 it is not shown

as forest lands but it is shown as government land. It is called as

reserve forest land". Nothing has been elicited in the cross-

examination of defendant No.1 to prove that the plaintiff has been

in possession of the suit schedule properties by way of adverse

possession.

24. Though the learned counsel for the appellant contended that

the plaintiff is in possession of the lands in question since 1930,

adverse to the interest of the State Government, no documents

have been produced to prove the same. The survey conducted by

the government surveyor in the year 1980 as per Ex.P.9 only

depicts that the cultivation of the land by the plaintiff as bagar

hukum. The Karnataka Land Revenue Act came to be amended in

the year 1990 for regularization of unauthorized cultivation by

landless persons. The plaintiff is neither a landless person nor filed

any application for regularization. It is also not in dispute that the

land was transferred to the forest department, as admitted by

P.W.1 in the cross-examination. The State Government issued the

notification dated 05.06.2002 as per Ex.P.18 declaring that the suit

schedule properties are the forest lands. Admittedly, the said

notification issued by the State Government is not challenged. The

revenue records produced by the plaintiff does not show the name

of the plaintiff.

25. It is also not in dispute that the original authority -Deputy

Conservator of Forest passed the eviction Order dated 12.11.2008

in No.B4(DFT)/64(A)CR-73/2007-08 directing the appellant/plaintiff

to evict from the land measuring 68 acres 33 guntas in Sy.Nos.185,

188, 189 and 229 of Heruru village, Megunda Hobli, Koppa Taluk.

The said eviction order dated 12.11.2008 was subject matter of

Appeal before the Chief Conservator of Forest in Appeal No.1/2008-

09, which came to be dismissed by the Order dated 01.07.2014,

confirming the eviction order passed by the Original Authority. It is

also not in dispute that being aggrieved by the order passed by the

forest authorities under Section 64-A(3) of the Karnataka Forest

Act, 1963, the plaintiff/appellant filed W.P.No.47701/2014 before

this Court. The learned single Judge, considering the entire

material on record, by the Order dated 27.08.2019, observed that

"the original authority recorded a finding that the petitioner

(appellant herein) has admitted that she has encroached forest

lands and wanted to claim adverse possession. This does not

convey any legal rights to the applicants as on that date. The

contention that they have been in occupation of the said lands for

more than 100 years is a figment of imagination as the Range

Forest Officer, Koppa Range, reported in his report that coffee

plants are of 15-18 years old and the factum of legal right over the

said property has not been reflected in the revenue records like RTC

etc. However, no claim whatsoever has been mentioned against

the accused/petitioner in the government records. This means as

on today, the exclusive rights of ownership in absolute term is with

the State Government only. The petitioner in her statement of

objections also admitted that the disputed lands are forest lands

and this shows that there is no right whatsoever over the disputed

lands, and it belongs to the State Government". This Court further

recorded a finding that, "the petitioner is a rich plantation owner

having established Nilgiri Coffee Estate. As per the existing Land

Grant Rules and the Revenue Acts, only the landless, marginal and

poor farmers who do not have sufficient land should be considered

under the Government Scheme for regularization. According to the

petitioner, the total extent encroached by her is more than 4.30

acres and that she is already in possession of 66 acres 1 gunta of

land and has encroached the government land. The act of the

petitioner is not only illegal, but also mockery of the existing legal

system and social justice. She has damaged the natural tree

growth and also enjoyed the benefit out of the said land without

paying anything to the government and, the continued illegal

occupation is inimical to the provisions of law and against the

government. As held by the Hon'ble Supreme Court in the case of

T.N.Godavarman Thirumalpad vs. Union of India and others

reported in AIR 1997 SC 1228, the petitioner is liable to be evicted

from the land in question." Accordingly, this Court, dismissed the

writ petition. However, it was made clear that, the impugned

orders passed by the Original Authority, confirmed by the Appellate

Authority are always subject to the result of RFA No.988/2013 i.e.,

the present Regular First Appeal. The said order passed by the

learned single Judge has reached finality.

26. In the present case, though the plaintiff has not produced any

documents to prove that she has been in continuous possession the

forest lands adverse to the interest of the State, still filed the suit

for declaration of title by adverse possession, after eviction order

being passed by the authorities under the Karnataka Forest Act,

1963. Therefore, it is necessary to refer to the provisions of

Section 27 of the Limitation Act, which reads as under:

"27. Extinguishment of right to property.--At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished."

A careful perusal of the said provision makes it clear that, the

plaintiff must plead and prove the date on and from which, she

claims to be in exclusive, continuous and undisturbed possession

and also that such possession was actual and to the knowledge of

the real owner. She also has to show hostile title and communicate

it to the real owner. Then only, her right to such property shall be

extinguished.

27. Admittedly, in the present case, the plaintiff is claiming that

she is in possession of the lands and nobody recognized that she is

a trespasser. Therefore, she cannot take the advantage of Section

27 of the Limitation Act, unless she pleaded and proved the

exclusive, continuous and undisturbed possession against the

knowledge of the real owner.

28. Admittedly, the documents produced by the plaintiff do not

depict that she is in possession of the suit schedule properties. The

plaintiff is claiming declaration of title by way of adverse possession

and filed the suit on 05.11.2008, after issuance of notification dated

05.06.2002 as per Ex.P.18, declaring that the suit schedule

properties are the forest lands. Admittedly, the said notification

has not been challenged by the plaintiff. The eviction order passed

by the Forest Authorities dated 12.11.2008, confirmed by the

Appellate Authority dated 01.07.2014 and further confirmed by the

learned single Judge of this Court in W.P.No.47701/2014 dated

27.08.2019, have reached finality.

29. The Hon'ble Supreme Court while considering the provisions

of Articles 27, 64 and 65 of the Limitation Act, in the case of

Ravinder Kaur Grewal and Others -vs- Manjit Kaur and

Others reported in AIR 2019 SC 3827 at paragraphs-46, 48 to

50, 53, 57 to 59 and 61, has held as under:

"46. The conclusion reached by the High Court is based on an inferential process because of the language used in the IIIrd Column of Article 65. The expression is used, the limitation of 12 years runs from the date when the possession of the defendant becomes adverse to the plaintiff. Column 3 of Schedule of the Act nowhere suggests that suit cannot be filed by the

plaintiff for possession of immovable property or any interest therein based on title acquired by way of adverse possession. There is absolutely no bar for the perfection of title by way of adverse possession whether a person is suing as the plaintiff or being sued as a defendant. The inferential process of interpretation employed by the High Court is not at all permissible. It does not follow from the language used in the statute.

The large number of decisions of this Court and various other decisions of the Privy Council, High Courts and of English courts which have been discussed by us and observations made in Halsbury's Laws based on various decisions indicate that suit can be filed by the plaintiff on the basis of title acquired by way of adverse possession or on the basis of possession under Articles 64 and 65. There is no bar under Article 65 or any of the provisions of the Limitation Act, 1963 as against a plaintiff who has perfected his title by virtue of adverse possession to sue to evict a person or to protect his possession and plethora of decisions are to the effect that by virtue of extinguishment of title of the owner, the person in possession acquires absolute title and if actual owner dispossesses another person after extinguishment of his title, he can be evicted by such a person by filing of suit under Article 65 of the Act. Thus, the decision of Gurdwara Sahib v. Gram Panchayat Village Sirthala [Gurdwara Sahib v. Gram Panchayat

Village Sirthala, (2014) 1 SCC 669 : (2014) 1 SCC (Civ) 630] and of the Punjab and Haryana High Court cannot be said to be laying down the correct law. More so because of various decisions of this Court to the contrary.

48. The statute does not define adverse possession, it is a common law concept, the period of which has been prescribed statutorily under the law of limitation in Article 65 as 12 years. Law of limitation does not define the concept of adverse possession nor anywhere contains a provision that the plaintiff cannot sue based on adverse possession. It only deals with limitation to sue and extinguishment of rights. There may be a case where a person who has perfected his title by virtue of adverse possession is sought to be ousted or has been dispossessed by a forceful entry by the owner or by some other person, his right to obtain possession can be resisted only when the person who is seeking to protect his possession, is able to show that he has also perfected his title by adverse possession for requisite period against such a plaintiff.

49. Under Article 64 also suit can be filed based on the possessory title. Law never intends a person who has perfected title to be deprived of filing suit under Article 65 to recover possession and to render him remediless. In case of infringement of any other right attracting any

other Article such as in case the land is sold away by the owner after the extinguishment of his title, the suit can be filed by a person who has perfected his title by adverse possession to question alienation and attempt of dispossession.

50. Law of adverse possession does not qualify only a defendant for the acquisition of title by way of adverse possession, it may be perfected by a person who is filing a suit. It only restricts a right of the owner to recover possession before the period of limitation fixed for the extinction of his rights expires. Once the right is extinguished another person acquires prescriptive right which cannot be defeated by re-entry by the owner or subsequent acknowledgment of his rights. In such a case suit can be filed by a person whose right is sought to be defeated.

53. There is the acquisition of title in favour of the plaintiff though it is negative conferral of right on extinguishment of the right of an owner of the property. The right ripened by prescription by his adverse possession is absolute and on dispossession, he can sue based on "title" as envisaged in the opening part under Article 65 of the Act. Under Article 65, the suit can be filed based on the title for recovery of possession within 12 years of the start of adverse possession, if any, set up by the defendant. Otherwise right to recover

possession based on the title is absolute irrespective of limitation in the absence of adverse possession by the defendant for 12 years. The possession as trespasser is not adverse nor long possession is synonymous with adverse possession.

57. The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser's long possession is not synonymous with adverse possession. Trespasser's possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and large the concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession.

58. Adverse possession is heritable and there can be tacking of adverse possession by two or more persons as the right is transmissible one. In our opinion, it confers a perfected right which cannot be defeated on re-entry except as provided in Article 65 itself. Tacking is based on the fulfilment of certain conditions, tacking may be by possession by the purchaser, legatee or assignee, etc. so as to constitute continuity of possession, that person must be claiming through whom it is sought to be tacked, and would depend on the identity of the same property under the same right. Two distinct trespassers cannot tack their possession to constitute conferral of right by adverse possession for the prescribed period.

59. We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years' period of adverse possession is over, even owner's right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a

suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owner's title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit.

61. Resultantly, we hold that decisions of Gurdwara Sahib v. Gram Panchayat Village Sirthala (supra) and decision relying on it in State of Uttarakhand v.Mandir Sri Lakshmi Sidh Maharaj (AIR 2017 SC 4472) (supra) and Dharampal (dead) through LRs v. Punjab Wakf Board (Supra) cannot be said to be laying down the law correctly, thus they are hereby overruled. We hold that plea of acquisition of title by adverse possession can be

taken by the plaintiff under Article 65 of the Limitation Act and there is no bar under the Limitation Act, 1963 to sue on the aforesaid basis in case of infringement of any rights of a plaintiff."

30. The provisions of Section 33(2)(iii-a) of the Karnataka Forest

Act, 1963, prohibits unauthorized occupation of land for any

purpose. Admittedly, the present plaintiff who is a trespasser and

encroacher, filed suit claiming forest land by way of adverse

possession is not maintainable and admittedly, eviction orders

already being passed by the concerned forest authorities have

reached finality.

31. It is impossible for the State and its instrumentalities

including local authorities to keep everyday vigilance/ watch over

vast tracts of open land owned by them or of which they are public

trustees. No amount of vigil can stop encroachments and

unauthorized occupation of public land by unscrupulous elements,

who act like vultures to grab such land, raise illegal constructions

and, at times, succeed in manipulating the State apparatus for

getting their occupation/possession and construction regularized.

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 duty bound to act with greater seriousness,

care and circumspection. Any laxity in this regard may result in

destruction of right/title of the State of immovable property and

give an upper hand to encroachers, unauthorised occupants or land

grabbers.

32. The plaintiff is claiming that she is in continuous possession of

the lands for more than 100 years. But no documents have been

produced to prove her possession and admittedly, the plaintiff is an

encroacher of forest lands and already eviction orders have been

passed by the authorities under the Karnataka Forest Act, 1963,

and the same has reached finality. Therefore, the plaintiff has

failed to establish that she acquired title to the suit schedule

properties by way of adverse possession.

33. The dictum of the Hon'ble Supreme Court in the case of

T.Anjanappa and others vs. Somalingappa and another

reported in (2006)7 SCC 570, wherein, at paragraph-20, it is held

as under:

"20. It is well recognized proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse

possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action."

34. Though the plaintiff claimed that she is in continuous

possession for 40 years, the fact remains that she is an encroacher

of forest land, as admitted by P.W.1 in the cross-examination, as

stated supra. A person who is a trespasser cannot claim adverse

possession against the government land, that too a reserve forest

land, in view of the provisions of Section 2 of the Karnataka Forest

(Conservation) Act, 1980, and in view of the dictum of the Hon'ble

Supreme Court in the case of T.N.Godavarman, supra.

35. It is not in dispute that all the suit schedule properties totally

measuring 68.33 guntas are government lands. According to the

petitioner, she is enjoying the said government lands for more than

100 years. Even though the notification dated 05.06.2002 came to

be issued as per Ex.P.18 declaring the suit schedule lands as forest

lands and eviction order was passed by the original authority under

Section 64A of the Karnataka Forest At, 1963, confirmed by the

appellate authority and this Court, the government authorities

acting either under the provisions of Land Revenue Act or

Karnataka Forest Act have not discharged their institutional duty

and constitutional obligation to protect the government lands.

Thereby, the influential persons in the Society are becoming land

grabbers of government lands to a larger extent. It is known that

the authorities are taking action on small fishes i.e., encroachers of

small extent of lands like 1 or 2 acres. They never bother about

whales who encroach more than 50 acres of land. Admittedly, in

the present case, appellant has encroached 68 acres 33 guntas of

government land. It is high time for the authorities working under

the Government to introspect themselves about their duty towards

general public and the nation, and discharge their duty to protect

the government land. Otherwise, holding higher posts in the State

becomes meaningless.

36. It is well settled that every public servant is a trustee of the

Society and all in facets of public administration, every public

servant has to exhibit honesty, integrity, sincerity and faithfulness

in implementation of the political, social, economic and

constitutional policies to integrate the nation, to achieve excellence

and efficiency in the public administration. A public servant should

exhibit transparency in implementation and of accountability for

due effectuation of constitutional goals. Though the Hon'ble Apex

Court in the case of Godavarman (supra) laid down the guidelines

for protecting the forest lands, still the State authorities are silent

spectators and allowed land grabbers to encroach government lands

especially forest lands. Therefore, it is high time for every

successive governments to introspect themselves and take a

stringent measures to protect the government lands. Otherwise,

one day, the forest lands in the State will vanish and ecological

imbalance of the nature will ruin the society. It is duty of the every

individual or State to protect and improve the environment,

safeguard the forests and wildlife in the country as contemplated

under Article 48A of the Constitution of India which provides for

protection and improvement of environment and safeguarding of

forests and wild life. The State shall endeavour to protect and

improve the environment and to safeguard the forests and wildlife

of the country. As per Article 51A(g) of the Constitution of India, it

is the duty of every citizen of India to protect and improve the

natural environment including forests, lakes, rivers and wildlife and

to have compassion for living creatures. It is well settled that not

only human beings, but also the living creatures have fundamental

right to live with dignity within the meaning of Article 21 of the

Constitution of India. Their rights to live are also recognized by the

Constitution of India.

37. The Trial Court, considering both oral and documentary

evidence on record, recorded a finding that, "To prove and establish

that the suit land is the revenue land, the plaintiff has mainly relied

upon the entries in the RTC showing the suit land as the gomala

land. Of course, in the RTC of the suit property, these lands were

shown as gomala land. But, the defendants claim that the Deputy

Commissioner, Chikkamagaluru, has already passed an order to

notify the suit land as the Reserve Forest land. The plaintiff

produced the notification dated 05.06.2002 made by the

Government of Karnataka in this regard as per Ex.P.18 and the

defendants have also produced the said notification as per Ex.D.2.

Once the suit schedule properties are declared as reserve forest

lands, by acting under Section 71 of the Karnataka Land Revenue

Act, 1964, the contention of the plaintiff that the suit lands are

revenue lands, cannot be accepted. Admittedly, the plaintiff has

not challenged the notification dated 05.06.2002-Ex.P.18 declaring

the suit lands as forest lands. Therefore, the contention of the

learned counsel for the appellant that the suit schedule properties

are government lands, cannot be accepted".

38. The Trial Court, further recorded a finding that, "it is well

settled principle that, party claiming adverse possession must prove

his possession and the said possession must be peaceful, open,

uninterrupted and continuous. The plaintiff's possession must be

adequate in continuity and adverse to the true owner. The adverse

possession must start from wrongful dispossession of the original

owner and the possession must be actual, visible, exclusive, hostile

and continued for the statutory period. Therefore, to claim title by

adverse possession, the plaintiff must plead and prove on what date

she came into possession and what was the nature of her

possession and whether the factum of possession was known to

other person and how long her possession was continued and her

possession was open and undisturbed. The plea of adverse

possession is a question of fact, which must be specifically pleaded

and proved. It is also well settled established rule that mere

possession, however so long, cannot be termed as an adverse, so

to acquire title, unless there is animus or hostility on the part of the

person in possession, who is not the real owner. The plea of

adverse possession is raised against the government and in respect

of the government land the statutory period of hostile possession of

government land would be 30 years. Mere continuous possession

for whatever duration is not sufficient to acquire the title by adverse

possession in respect of government lands. The State is owning

lakhs of hectares of land. If the land belonging to the government

has been encroached by the adjacent hiduvali land holders and

enjoying the same for more than 30 years, one cannot say that he

has acquired the title over the government land by adverse

possession".

39. The Trial Court further recorded that, "It is the specific case

made out by the plaintiff that the suit land is a revenue land. The

plaintiff does not admit the suit land as the forest land. But, the

plaintiff has filed the suit against the Deputy Conservator of Forest

and State of Karnataka. The plea of adverse possession has to be

raised against the true and actual owner of the suit land. Even

though the plaintiff claims that the suit land is a revenue land, the

plaintiff has not made the Deputy Commissioner, Chikkamagaluru,

Tahsildar, Koppa and local Revenue Inspector as party to the suit.

When according to the plaintiff, the suit lands are revenue lands, it

is to be managed and monitored by local Revenue Inspector,

Tahsildar, Koppa and the Deputy Commissioner, Chikkamagaluru.

They have not been impleaded as parties to the suit. The plaintiff

claims that the suit lands are the revenue lands. When the Deputy

Commissioner and Tahsildar are the authorities of the revenue

lands, how the plaintiff can raise the plea of adverse possession

against the present defendants is not forthcoming and on that

ground alone, the suit of the plaintiff is liable to be rejected. It is

well settled that without admitting the title of the adversaries, one

cannot raise the plea of adverse possession, as it is totally unknown

to law. Though the plaintiff is claiming the suit lands by way of

adverse possession against the forest department and she does not

admit the suit lands as the forest lands and title of the forest

department over the suit lands, the plea of adverse possession set

up by the plaintiff cannot be accepted."

40. The impugned judgment and decree passed by the Trial Court

dismissing the suit of the plaintiff for declaration of title by adverse

possession and temporary injunction is based on oral and

documentary evidence available on record. The plaintiff has not

made out any ground to interfere with the impugned judgment and

decree passed by the Trial Court, in exercise of appellate powers of

this Court under Section 96 of the Code of Civil Procedure.

41. Though the learned counsel for the appellant/ plaintiff relied

upon the dictum of the Madras High Court in the case of Charles

Hereward Simpson and others vs. The Government of Tamil

Nadu and another reported in 1989(2) MLW 571, it was a case

where the plaintiffs and their predecessors in title were exercising

dominion over the suit properties asserting rights of ownership over

the same for over the statutory period and the defendants had no

positive piece of evidence that the suit properties were treated by

them as forest lands at any point of time and there was no record

to show that the Forest Department was and is in possession of the

suit properties. Under those circumstances, the Division Bench of

the Madras High Court held that, "the plaintiffs have title to the suit

properties on the basis of the title deeds. The plaintiffs and their

predecessors in title were in possession of the suit properties for

over the statutory period, adverse to the right and title, if any, of

the defendants, and thereby they have perfected title by

prescription. Therefore, the plaintiffs are entitled to the declaration

of title to the suit properties and permanent injunction. Admittedly,

in the present case, the defendants have produced the notification

dated 05.06.2002 as per Ex.P.18 declaring the suit lands as forest

lands. The plaintiff has not challenged the said notification, but

subsequently, filed the suit on 05.11.2008 and thereafter, the

officers of the Forest Department invoked the provisions of Section

64A of the Karnataka Forest Act, 1963, eviction order came to be

passed. It was confirmed by the appellate authority and both the

orders were reaffirmed by the learned single Judge of this Court in

W.P.No.47701/2014. Therefore, the judgment relied upon by the

learned counsel for the appellant/ plaintiff has no application to the

facts and circumstances of the present case.

42. For the reasons stated above, the point raised for

consideration in the present Regular First Appeal has to be

answered in the negative holding that the appellant/ plaintiff has

not made out any ground to interfere with the impugned judgment

and decree passed by the Trial Court dismissing the suit of the

plaintiff for declaration of title by way of adverse possession and

injunction.

43. In view of the above, the impugned judgment and decree

passed by the Trial Court is just and proper. The plaintiff has not

made out any ground to interfere with the same in exercise of

appellate powers of this Court.

44. Accordingly, the Regular First Appeal is dismissed as devoid

of any merit, without costs.

45. The Officer not below the rank of Assistant Commissioner who

shall be nominated by the District Collector(DC), Chikkamagaluru,

is directed to take possession of the lands in question from the

appellant, and, if necessary, use appropriate force for that purpose.

46. Copy of this Order shall be sent to the Chief Secretary to the

Government and the Principal Secretary, Forest Department, to

take appropriate steps and ensure protection of government lands.

Sd/-

JUDGE

Sd/-

JUDGE

kcm