Smt. Kisanpyari vs The State Of Karnataka
2022 Latest Caselaw 2414 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 15TH DAY OF FEBRUARY, 2022

                         PRESENT

         THE HON'BLE MR.JUSTICE ALOK ARADHE

                           AND

         THE HON'BLE MR.JUSTICE M.G.S. KAMAL

      WRIT PETITION. NO.18676 OF 2019 (KLGP)


BETWEEN:

1.    SMT. KISANPYARI
      W/O GIRIDHARLAL TOSHNIWAL
      AGED ABOUT 71 YEARS
      R/AT TIKOTA TALUK
      VIJAYAPURA DISTRICT - 586 130.

2.    SRI. MAHESH
      S/O GIRIDHARLAL TOSHNIWAL
      AGED ABOUT 51 YEARS
      R/AT TIKOTA TALUK
      VIJAYAPURA DISTRICT - 586 130.

3.    SRI. MANOJ
      S/O GIRIDHARLAL TOSHNIWAL
      AGED ABOUT 47 YEARS
      R/AT TIKOTA TALUK
      VIJAYAPURA DISTRICT - 586 130.

4.    SRI. MUKESH
      S/O GIRIDHARLAL TOSHNIWAL
      AGED ABOUT 45 YEARS
      R/AT TIKOTA TALUK
      VIJAYAPURA DISTRICT - 586 130.
                              2

5.   SMT. MANISHA
     W/O SUNIL RATHI
     AGED ABOUT 49 YEARS
     R/AT MATOSHREE VRUDRASHARAM BACK SIDE
     KARVE NAGAR
     PUNE - 411 052.
                                       ... PETITIONERS
(BY SRI. MADHUKAR M. DESHPANDE, ADVOCATE (P/H)


AND:

1.     THE STATE OF KARNATAKA
       REPRESENTED BY THE DEPUTY COMMISSIONER
       VIJAYAPURA DISTRICT
       VIJAYAPURA - 586 101.

2.     THE ASSISTANT COMMISSIONER
       VIJAYAPURA, KANAKADASA BADAVANE
       VIJAYAPURA - 586 101.

3.     THE TAHASILDAR
       VIJAYAPURA TALUK
       VIJAYAPURA DISTRICT - 586 101.

4.     THE FIRST GRADE REVENUE INSPECTOR
       TIKOTA CIRCLE
       TIKOTA TALUK, VIJAYPURA - 586 130.
                                          ... RESPONDENTS

(BY. SRI. B. RAJENDRA PRASAD, HCGP FOR RESPONDENT)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED:21.03.2018 VIDE ANNEX-A PASSED BY THE KARNATAKA
LAND GRABBING PROHIBITION SPECIAL COURT, BANGALORE
(COURT HALL-2) IN L.G.C. (T) NO.1733/2017 (O.S.
No.668/2013) AND DECREE THE SUIT INSTITUTED BY THE
PETITIONERS IN L.G.C (T) NO.1733/2017 (O.S. NO.668/2013)
AND ETC.

      THIS PETITION COMING ON FOR PRELIMINARY HEARING
THIS DAY, M.G.S.KAMAL J, MADE THE FOLLOWING:
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                       ORDER

Present writ petition is filed seeking quashment

of the order dated 21.03.2019 passed in No.

L.G.C.(D) No.1733/2017 by the Karnataka Land

Grabbing Prohibition Special Court (hereinafter

referred to as 'the Special Court'), in and by which,

the Special Court while dismissing the suit of the

petitioners as not maintainable, has directed the

Tahsildar, Vijayapura Taluk to initiate proceedings

against the petitioners under the provisions of the

Karnataka Land Grabbing (Prohibition) Act, 2011

(hereinafter referred to as 'the Act') by filing

complaint in Form No.1 within a period of one month

from the date of the receipt of the order and to report

the action taken in the matter.

2. The case of the petitioners is that one Jagan

Mohan Toshniwal was running a ginning factory and

oil mill in the land bearing Survey No.241 measuring

2 acres 1 gunta of Tikota village, Bijapur taluk and

district from the year 1950. That in terms of the

order dated 27.05.1964 bearing No.L.B.S.R/1129, the

aforesaid land was granted in favour of Sri.Bagirath

Toshniwal. That the Assistant Director, Industries and

Commerce had issued licence to run the industry and

the same was renewed from time to time. That on

23.02.1987, said Bagirath Toshniwal passed away

leaving behind his widow and three sons and two

daughters. There was a partition amongst his sons in

which the aforesaid property was allotted to the share

of Giridharlal Toshniwal. Even the said Giridharlal

Toshniwal passed away and the petitioners being his

legal representatives have succeeded to his estate.

That the aforesaid property has been in their lawful

possession and enjoyment.

3. That by a notice dated 22.08.2013,

petitioners were called upon to hand over the

possession of the aforesaid property on the premise

that the same being Government land, the petitioners

are in unauthorised occupation of the same.

Petitioners filed O.S.No.668/2013 before the First

Addl. Civil Judge (Jr.Dn.), Bijapur seeking declaration

of they having become absolute owners of the

aforesaid property by way of adverse possession and

for consequential relief of permanent injunction. That

in view of coming into effect of the Act, the matter

was transferred to the Special Court. Upon the

transfer of said suit, the same was renumbered by the

Special Court as LGC(T) NO.1733/2017.

4. The Special Court, taking note of the claim of

the plaintiff for declaration based on adverse

possession and also relying upon the Judgment of the

Apex Court reported in DHARAMPAL (DEAD)

THROUGH L.Rs VS. PUNJAB WAKF BOARD -

2018(11) SC 449) wherein it was held that the plea

of adverse possession was not available to the

plaintiff but can only be raised by the defendant by

way of defence, by its order dated 21.03.2019,

dismissed the suit of the petitioners as not

maintainable and directed the authorities to take

action as referred to above.

5. Learned counsel for the petitioners referring

to the Judgment of the Apex Court in the case of

RAVINDER KAUR GREWAL AND OTHERS vs.

MANJIT KAUR AND OTHERS (AIR 2019 SC 3827)

wherein the Apex Court over-ruling its earlier

Judgment in Dharampal (dead), through L.Rs

supra, has held that a suit for declaration of title and

for restoration of possession on the plea of adverse

possession is maintainable under Section 65 of the

Limitation Act, submits that in view of the aforesaid

position of law, the dismissal of suit by the Special

Court was illegal. Hence, sought for allowing of the

petition.

6. Heard the learned counsel for the petitioners

and perused the records.

7. The Special Court without going into the

merits of the case, has dismissed the suit of the

petitioners solely relying upon the Judgment of the

Apex Court in the case of Dharampal (dead),

through L.Rs supra. However, in view of the

Judgment of the Apex Court in the case of

RAVINDER KAUR GREWAL supra, a plea of

acquisition of title by adverse possession can be

claimed by the plaintiff under Article 65 of the

Limitation Act and that there is no bar under the

Limitation Act, 1963, to sue on aforesaid basis in case

of infringement of any rights of a plaintiff, the suit of

the petitioners requires to be restored to original file.

8. For the foregoing reasons, this Court is of

considered view that the order passed by the Special

Court requires to be set aside and the matter be

remitted to the Special Court for consideration of the

plea of the petitioners in the light of the Judgment of

the Apex Court in RAVINDER KAUR GREWAL case

supra and in accordance with law.

9. With the above observation, the petition is

disposed of. No opinion is expressed on the merits or

otherwise of the case of the petitioners in this order.

Sd/-

JUDGE

Sd/-

JUDGE

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