Karnataka High Court
Mr Veerabhadriah vs Mr M Babajan on 7 January, 2022
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
CIVIL REVISION PETITION NO.324 OF 2010 (RES)
BETWEEN:
MR VEERABHADRIAH
S/O LATE RUDRAIAH,
AGED ABOUT 70 YEARS,
R/AT SITE BEARING NO.13,
FORMED IN SY NO.41,
MALAGALU VILLAGE,
YESHAWANTHPUR HOBLI,
BANGALORE NORTH TALUK,
BANGALORE DISTRICT 560 054.
1. SMT. JAYAMMA
W/O LATE VEERABHADRAIAH,
AGED ABOUT 50 YEARS,
2. SHIVA KUMAR
S/O LATE VEERABHADRAIAH,
AGED ABOUT 37 YEARS,
3. SHASHIKUMAR
S/O LATE VEERABHADRAIAH,
AGED ABOUT 35 YEARS,
ALL ARE RESIDING AT NO.13,
MALAGALA VILLAGE,
YESHAWANTHPUR HOBLI,
BANGALORE NORTH TALUK,
BANGALORE DISTRICT 560 054.
AMENDED V.C.O DATED 06.01.2016
...PETITIONERS
(BY SRI.A. SAMPATH, ADVOCATE)
2
AND:
1. MR M BABAJAN
S/O.MOHAMMED GHOUS,
R/AT NO.8, 16TH MAIN, AGRAHARA DASARAHALLI,
BANGALORE 560 079.
2. MR K N DAYANAND MURTHY.
S/O.B NARASIMHAIAH,
MAJOR, R/AT.NO.5, VAIBHAVA LAKSHMI
NARASIMHA NILYA, 7TH MAIN ROAD,
BEHIND AMBHAMAHESHWARI TEMPLE,
17TH DIVISION, KAMAKSHIPALYA,
BANGALORE 560 079.
...RESPONDENTS
(NOTICE TO R1 IS H/S V/O DT:21.10.2011
BY SRI.MAHESH R & RAJENDRA V.G,
ADVOCATES FOR R2)
THIS CIVIL REVISION PETITION IS FILED UNDER SECTION
115 OF CPC, AGAINST THE ORDERS DATED 18.09.2010 PASSED
IN O.S.7635/2003 ON THE FILE OF THE XIV-ADDL. CITY CIVIL
JUDGE, BANGALORE, DISMISSING THE SUIT FOR
RESTORATION OF POSSESSION AND MESNE PROFITS.
THIS CIVIL REVISION PETITION COMING ON FOR FINAL
HEARING THROUGH VIDEO CONFERENCING, THIS DAY, THE
COURT MADE THE FOLLOWING:-
ORDER
Petitioners being the unsuccessful plaintiffs, are
knocking at the doors of Writ Court for assailing the judgment
& decree dated 18.9.2010, whereby their suit for possession in
O.S.No.7635/2003 has been dismissed; the first respondent
having been served with notice, has chosen to remain
unrepresented; however, the second respondent is represented
by his lawyers who are absent when this old matter is taken
up for consideration.
2. Having heard the learned counsel for the petitioners
and having perused the Petition Papers, this Court declines to
grant indulgence in the matter for the following reasons:
(a) Admittedly, the subject property has already been
acquired by the Bangalore Development Authority vide
Notification dated 16.08.1985 and there being no challenge to
the same, this acquisition has attained finality; once the
property is acquired and decades have lapsed since such
acquisition, a very strong presumption as to acquired property
being in the possession of the acquiring body or the beneficiary
of the acquisition arises u/s 114 of the Indian Evidence Act,
1872; no contra material having been produced, there is no
rebuttal of such presumption; therefore, the asserted
possession of the petitioners cannot be accepted.
(b) Learned trial Judge having individually perused
Ex.P-1 to P-30 which included certain family photographs as
well has arrived at a conclusion that the petitioners have failed
to establish the possession of the subject property; the reason
assigned by the learned trial Judge as to why these 30
documents do not establish petitioners possession over the
subject property cannot be faltered; such a finding cannot be
interfered by a writ court exercising a limited supervisory
jurisdiction constitutionally vested in it under Article 227 vide
SADHANA LODH vs. NATIONAL INSURANCE CO. LTD.
(2003) 3 SCC 524.
(c) Petitioners suit was founded on the asserted
possession of the subject property; when the BDA admittedly
had acquired the same, the possession follows the acquisition;
a person who arguably continues physical possession of said
property cannot contend that such a possession is a juridical
possession within the meaning of Sec.6 of the Specific Relief
Act, 1963; said section employs the expression "he has been
in possession"; possession consists of two ingredients which
Salmond on Jurisprudence, 7th Edn. at pages 297-308
mentions viz., (i) corpus possessionis and (ii) animus
possidendi. The former, he says, comprises of both the power
to use the thing possessed and the existence of grounds for the
expectation that the possessor's use will not be interfered with;
the later consists of an intent to appropriate to oneself the
exclusive use of the thing possessed. Learned Author
P.J.Fitzgerald who edited 'Salmond on Jurisprudence' 12th
edition (at page 272) writes "(i) The distinction between animus
and corpus was made in Roman law: Dig.41.2.3.1., and has
been accepted by such jurists as Savigny, Thering, Pollock,
Salmond and Holmes". Apex Court too in the case of
POONARAM vs. MOTIRAM AIR 2019 SC 813 has discussed
this aspect quoting Salmond as under:
"13. The crux of the matter is that a person
who asserts possessory title over a particular
property will have to show that he is under
settled or established possession of the said
property. But merely stray or intermittent acts
of trespass do not give such a right against
the true owner. Settled possession means
such possession over the property which has
existed for a sufficiently long period of time,
and has been acquiesced to by the true
owner. A casual act of possession does not
have the effect of interrupting the possession
of the rightful owner. A stray act of trespass,
or a possession which has not matured into
settled possession, can be obstructed or
removed by the true owner even by using
necessary force. Settled possession must be
(i) effect, (ii) undisturbed, and (iii) to the
knowledge of the owner or without any
attempt at concealment by the trespasser.
There cannot be a straitjacket formula to
determine settled possession. Occupation of a
property by a person as an agent or a servant
acting in the instance of the owner will not
amount to actual legal possession. The
possession should contain an element of
animus possidendi......
(d) There is a certain juridical difference between
'possession' and 'occupation'. Ramnath Aiyer in his "The Law
Lexicon" 3 rd Edition 2012 writes:
"Possession and occupation: Bare occupation
and possession are two different things. The
concept of possession, at any rate as it is
understood in legal terminology, is a complex
one which need not include actual occupation.
It comprises rather the right to possess, and
the right and ability to exclude others from
possession and control coupled with a mental
element, namely, the animus possidendi, that
is to say, knowledge of these rights and the
desire and intention of exercising them if need
be. The adverse possession of which the law
speaks does not necessarily denote actual
physical ouster from occupation but an ouster
from all those rights which constitute
possession in law. It is true that physical
occupation is ordinarily the best and the most
conclusive proof of possession in this sense
but the two are not the same. It is also true
that there must always be physical ouster
from these rights but that does not
necessarily import physical ouster from
occupation especially when this is of just a
small room or two in a house and when this
occupation is shared with others. The nature
of the ouster and the quantum necessary
naturally varies in each case. AIR 1941 Nag
357."
If we hear the inner voice of Jurist Ramnath Aiyer's above
version and keep the Apex Court observations in mind, the
occupation of the Petitioners over the acquired land that too
after the land owner received the compensation for the
acquisition, cannot be termed as "possession" as meant in
Sec.6 of the Act; therefore the said provision is not invocable.
(e) The vehement submission of learned counsel for
the petitioners that despite acquisition of the property, his
predecessor-in-title continued in possession and that under an
agreement taken from him, his clients continued to be in
possession even if assumed to be true, cannot be addressed by
this court in the absence of arraignment of the Bangalore
Development Authority as a party to the suit since it is a
proper party if not a necessary party to the suit proceedings in
the light of Apex Court decision in RAZIA BEGUM VS.
SAHEBZADI ANWAR BEGUM, AIR 1958 SC 886; if the suit is
decreed by reversing the impugned decree, that would
arguably affect the possessory interest of BDA.
In the above circumstances, this petition being devoid of
merits, is liable to be dismissed and accordingly, it is, costs
having been made easy.
Records to be sent to the Trial Court, forthwith.
A copy of the this order be sent to the Commissioner,
Bangalore Development Authority, Bengaluru.
Sd/-
JUDGE
cbc
