Karnataka High Court
K N Nagarajappa vs State Of Karnataka on 10 January, 2022
Bench: N S Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
RSA No.732 OF 2015 (DEC/INJ)
BETWEEN:
K.N. NAGARAJAPPA,
SON OF LATE NANDYAPPA,
AGED ABOUT 61 YEARS,
R/O YELAVATTI VILLAGE,
NIDIGE HOBLI,
SHIVAMOGGA TALUK.
... APPELLANT
(BY SRI.VARADARAJ R HAVALDAR, ADV.,)
AND:
1. STATE OF KARNATAKA,
BY ITS CHIEF SECRETARY,
VIDHANA SOUDHA,
DR. B.R. AMBEDKAR STREET,
BENGALURU - 560 001.
2. THE REVENUE COMMISSIONER
AND SECRETARIAT TO THE
GOVT. OF KARNATAKA,
REVENUE DEPARTMENT, 5TH FLOOR,
M.S. BUILDING,
DR. B.R. AMBEDKAR STREET,
BENGALURU - 560 001.
2
3. THE DEPUTY COMMISSIONER,
SHIVAMOGGA DISTRICT,
SHIVAMOGGA - 577 201.
4. THE ASST. COMMISSIONER,
SHIVAMOGGA SUB-DIVISION,
SHIVAMOGGA - 577 201.
5. THE TAHSILDAR,
SHIVAMOGGA TALUK,
SHIVAMOGGA - 577 201.
6. RUDRAPPA,
S/O PARAMESHWARAPPA,
AGED ABOUT 56 YEARS,
7. K.C. SADASHIVAPPA,
SON OF CHANNABASAPPA,
AGED ABOUT 45 YEARS,
RESPONDENTS 6 & 7 ARE
RESIDING OF YELAVATTI VILLAGE,
NIDIGE HOBLI,
SHIVAMOGGA TALUK.
8. L.G.NAGARAJ,
S/O GOVINDE GOWDA,
AGED 66 YEARS,
R/O YELAVATTI VILLAGE,
NIDIGE HOBLI,
SHIVAMOGGA TALUK.
... RESPONDENTS
(BY SMT.B.G.NAMITHA MAHESH, AGA FOR R1 TO R5)
THIS APPEAL IS FILED UNDER SEC.100 OF CPC,1908
AGAINST THE JUDGMENT AND DECREE DATED
16/12/2014 PASSED IN R.A.NO.176/2013 ON THE FILE OF
THE II ADDITIONAL SENIOR CIVIL JUDGE AT
SHIVAMOGGA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED
3
19.09.2013 PASSED IN O.S.NO.450/2004 ON THE FILE OF
THE IV ADDL.CIVIL JUDGE JMFC, SHIVAMOGGA.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This is a second appeal by the unsuccessful plaintiffs.
2. The plaintiffs filed a suit seeking for declaration that
they had perfected their title by way of averse possession
in respect of 'B' schedule property and 'C' schedule
property. They also sought for consequential decree of
injunction.
3. 'B' schedule and 'C' schedule properties were the
portions of the plaint 'A' schedule property and was a cart
track passing through Sy.Nos.29, 30, 37 and 38 of
Yelavatti village.
4. It was the case of the plaintiffs that this cart track
used to pass through Sy.Nos.37, 38, 29 and 30 of Yelavatti
village and the cart track originated from Yelavatti village
and would go to Hosudi. It was stated that in the survey
record and village map, a cart track was shown. However,
they contended that for more than 50 years ago, the cart
track had been brought under cultivation by the
predecessors of the plaintiffs and therefore, the plaintiffs
were in adverse possession of the said property.
5. The suit was contested by the State and also by the
private defendants. It was stated that the property in
question was a public way and the cart track was clearly
demarcated in the village map. It was stated that the
allegation that they had encroached upon the cart track
over 50 years ago was incorrect. It was alleged that if the
suit was decreed, the public at large would be put to
untold hardship and injury.
6. The trial Court on consideration of the pleadings
framed the following nine issues:
"1. Whether the plaintiff prove that the plaintiff
No.1 has held possessed and enjoyed the
plaint 'B' schedule property adversely to the
right, title and interest of 1st defendant over
the statutory period and thereby perfected his
title over the same as absolute owner?
2.Whether the plaintiffs prove that the plaintiff
No.2 has held possessed and enjoyed the
plaint 'C' schedule property adversely to the
right, title and interest of 1st defendant over
the statutory period and thereby perfected his
title over the same as absolute owner?
3. Whether the suit is maintainable?
4. Whether the suit is barred by time?
5. Whether the suit is bad for non joinder of
necessary parties?
6. Whether the suit is properly valued and
whether the Court fee paid is correct?
7. Whether the plaintiff is entitled for the relief
of declaration as sought for?
8. Whether the plaintiff is entitled for the relief
of permanent injunction as sought for?
9. What decree or order?"
7. The plaintiffs examined themselves as PWs.1 and 2
and got exhibited 22 documents. One Sri.L.G.Ramesha
and Sri.Erana Gowda were examined as PWs.3 and 4.
8. On behalf of the defendants, defendant No.7 was
examined as DW1, defendant No.5 was examined as DW3
and one Sri.B.Revappa was examined as DW2. In all, the
four documents were exhibited on behalf of the
defendants.
9. The trial Court after analyzing the evidence, noticed
the following admission made by the plaintiffs:
"£Á£ÀÄ F zÁªÉAiÀÄ°è PÉýzÀ gÀ¸ÛÉ AiÀÄ®ªÀnÖ¬ÄAzÀ
ºÉƸÀÆrUÉ ºÉÆÃUÀĪÀAvÀºÀ gÀ¸ÉÛ. ºÉƸÀÆr UÁæªÀÄzÀªg
À ÄÀ D
gÀ¸ÛAÉ iÀÄ£ÀÄß G¥ÀAiÉÆÃV¸ÀÄwÛzÀÝgÀÄ CAzÀgÉ ¸Àj."
10. It is clear from the above admission that the
plaintiffs themselves admitted that there existed a road
and the villagers of Hosudi were using the said road.
11. The trial Court also noticed that earlier suit had been
filed against the father of plaintiff Nos.1 and 2 in OS
No.541/1975 and hence, the question of the plaintiffs
being in uninterrupted possession did not arise. The trial
Court after taking note of the fact that the plaintiff had not
even mentioned the boundaries of the property could not
claim that they were in possession of the suit property.
The trial Court, accordingly dismissed the suit.
12. In the appeal, the appellate Court after
re-appreciating the evidence confirmed the finding
recorded by the trial Court and dismissed the appeal.
13. In my view, the finding of fact recorded by the
Courts below that there was a cart track which was being
used by the villagers cannot be found fault with, having
regard to the fact that the plaintiff himself had admitted
that the suit road was being used by the villagers of
Hosudi.
14. It is to be stated here that adverse possession
cannot be set up in respect of a cart track mentioned in
the village map. A mere plea that the plaintiffs were in
possession adverse to the interest of the State would not
entitle the plaintiffs to extinguish the character of the cart
track It is to be stated here that the public cart track is
always dedicated to the public and no private individual
can acquire title over it even by way of adverse
possession. A plea of adverse possession can essentially be
taken only against the property of any individual or against
the State in respect of a particular property of the State. A
cart road being a public way would stand vested in the
public at large and cannot be said to be the exclusive
property of the State though the property may stand
vested in the State by virtue of it being a public way. In
my view, the plea of adverse possession cannot be
available in respect of a public way, such as a cart track.
15. I am therefore of the view that there is no question
of law, much less, a substantial question of law arising for
consideration in this appeal and consequently, the appeal
is dismissed.
Sd/-
JUDGE
GH
