Smt Balera Muthavva vs The Government Of Karnataka
2022 Latest Caselaw 670 Kant

                          1




     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 14TH DAY OF JANUARY, 2022

                       BEFORE

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

         REGULAR SECOND APPEAL NO.1427/2014


BETWEEN:

SMT. BALERA MUTHAVVA
W/O LATE MUTHANNA
AGED ABOUT 61 YEARS
R/AT B SHETTIGERI VILLAGE AND POST
PONNAMPET NAD
S KODAGU-571176.
                                        ...APPELLANT
(BY SRI.MADHUKESHWAR, ADVOCATE FOR
    SRI.SACHIN B S, ADVOCATE)


AND:

1.    THE GOVERNMENT OF KARNATAKA
      REPRESENTED BY
      THE DEPUTY COMMISSIONER
      KODAGU MADIKERI
      NORTH KODAGU - 571201

2.    THE TAHSILDAR
      VIRAJPET TALUK,
      VIRAJPET TOWN
      SOUTH KODAGU-571218

3.    THE REVENUE INSPECTOR
      PONNAMPET, PONNAMPET TOWN
      SOUTH KODAGU-571176
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4.   THE CHIEF EXECUTIVE OFFICER
     ZILLA PANCHAYATH
     KODAGU,
     MADIKERI 571 201.


5.   THE PANCHAYATH DEVELOPMENT OFFICER
     GRAMA PANCHAYATH
     B SHETTIGERI
     SOUTH KODAGU - 571218.
                                         ...RESPONDENTS
(BY SRI.RAJENDRA PRASAD.B, HCGP FOR R1 TO 3;
R4 SERVED;
SRI.K.A.CHANDRASHEKHAR, ADVOCATE FOR R5)


     THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGEMENT & DECREE DTD 16.8.2014 PASSED IN
R.A.NO.47/2013 ON THE FILE OF THE II ADDL. DISTRICT
& SESSIONS JUDGE, KODAGU, MADIKERI, (SITTING AT
VIRAJPET), DISMISSING THE APPEAL AND CONFIRMING
THE JUDGEMENT AND DECREE DTD 26.4.2013 PASSED IN
OS.NO.66/2012 ON THE FILE OF THE SENIOR CIVIL
JUDGE, VIRAJPET.

     THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:


                      JUDGMENT

Present appeal is filed by the appellant/plaintiff

against the judgment and decree dated 16.08.2014

passed in R.A.No.47/2013 on the file of II Additional

District and Sessions Judge, Kodagu-Madikeri

(hereinafter referred to as the 'First Appellate Court')

in and by which, the first appellate court while

dismissing the appeal filed by the appellant/plaintiff

confirmed the judgment and decree dated 26.04.2013

passed in O.S.No.66/2012 on the file of Senior Civil

Judge, Virajpet (hereinafter referred to as the 'trial

Court').

2. The appellant/plaintiff filed the above suit

in O.S.No.66/2012 seeking relief of declaration to

declare that she has acquired the title by adverse

possession in respect of suit schedule property

namely, the land measuring 1 acre in Sy.No.37/26P1

of 'B' Shettigeri village, Ponnampet Nad, South

Kodagu and consequential relief of permanent

injunction restraining the respondents/defendants

from interfering/disturbing her lawful possession and

enjoyment of the suit schedule property.

3. The appellant/plaintiff contended that she

has been in possession and enjoyment of the suit

schedule property having encroached upon the same

in the month of May, 1980 and that she has been

enjoying the said property uninterruptedly and hostile

to interest of the respondents/ defendants/

Government. That she has fenced the suit schedule

property and has been cultivating coffee, pepper and

other plantation crops. That she has put up a

residential house with asbestos sheets consisting of

three rooms. Thus, she had applied to the second

defendant for grant of suit schedule property in her

favour and same is pending consideration before the

second defendant. That after the encroachment, the

revenue department had surveyed and demarcated

the suit schedule property. That the second defendant

has not granted the suit schedule property in her

favour on the grounds that the connected records

were misplaced and not traceable. That she is in

settled possession of suit schedule property. That on

17.02.2012, the second defendant- Tahasildar,

Virajpet had granted 5 cents of land in her favour in

Sy.No.37/26P1. That on 10.01.2012 the fifth

defendant - Panchayath Development Officer, Grama

Panchayath, B Shettigerihalli issued a notice to the

plaintiff alleging that she had encroached upon the

Government Paisari land bearing Sy.No.37/26P2

measuring 1 acre in B Shettigeri village and had called

upon plaintiff to vacate the same. That she had sent

suitable reply on 13.01.2012 contending that she had

encroached upon the said land and that she is in

settled possession and had thus acquired title by way

of adverse possession. That she has produced all

necessary documents before third defendant and had

requested them to not to disturb her possession as

she is in settled lawful possession and enjoyment of

the suit schedule property. Since her requests were

not heeded by the third defendant, she was

constrained to file suit for declaration and injunction.

The defendants despite notice remained ex-parte.

4. The trial court based on the pleadings

framed the following issues;

CA±ÀUÀ¼ÀÄ

"1. PÀ¼ÉzÀ 31 ªÀµÀðUÀ½AzÀ ªÁ¢AiÀÄÄ ¥ÀæwªÁ¢AiÀÄjUÉ UÉÆwÛzÀÝAvÉ zÁªÁ¹ÛAiÀÄ 1 JPÉæ eÁUÉAiÀÄ°è AiÀiÁªÀÅzÉà CrÛ DvÀAPÀ E®èzÉà ¸ÀA¥ÀÆtð ¸Áé¢üãÁ£ÀĨsÀªÀzÀ°è EzÁݼÉAzÀÄ ªÁ¢ gÀÄdĪÁvÀÄ¥Àr¸ÀĪÀ¼ÉÃ?

2. zÁªÁ¹ÛAiÀÄ°è ¥ÀæwPÀÆ® ¸Áé¢üãÀ£ÀzÀ ªÀÄÆ®PÀ vÀ£ÀUÉ ºÀPÀÄÌ ¥Áæ¥ÀÛªÁVzÉAzÀÄ ªÁ¢ gÀÄdĪÁvÀÄ ¥Àr¸ÀĪÀ¼ÉÃ?

3. ¥ÀæwªÁ¢AiÀÄgÀÄ ªÁ¢UÉ zÁªÁ¹ÛAiÀÄ°è ¸Áé¢üãÁ£ÀĨsÀªÀPÌÉ CrØ DvÀAPÀ ¥Àr¹zÁÝgÉAzÀÄ ªÁ¢ gÀÄdĪÁvÀÄ ¥Àr¸ÀĪÀ¼ÉÃ?

4. ªÁ¢AiÀÄÄ zÁªÉAiÀÄ°è PÉýzÀ WÉÆõÀuÉAiÀÄ ¥ÀjºÁgÀ ¥ÀqÉAiÀÄ®Ä CºÀð¼É?

5. ªÁ¢AiÀÄÄ zÁªÉAiÀÄ°è PÉýzÀ SÁAiÀÄA ¥Àæw§AzsÀPÁeÉÕ ¥ÀjºÁgÀ ¥ÀqÉAiÀÄ®Ä CºÀð¼É?

6. AiÀiÁªÀ DzÉñÀ."

5. The appellant/plaintiff examined herself as

P.W.1 and she also examined another witness as

Ex.P.2 and produced 16 documents marked as Ex.P.1

to Ex.P.16. No witness was examined on behalf of

defendants and no documentary evidence was

produced by respondents/defendants.

6. On appreciation of evidence, the trial Court

negatived the contentions of the appellant/plaintiff for

relief of declaration and consequential injunction and

dismissed the suit. Aggrieved by the same,

appellant/plaintiff filed R.A.No.47/2013 before the first

appellate Court.

7. The first appellate court framed the

following points for consideration;

1. Whether the plaintiff proves that she is in exclusive possession and enjoyment of the suit schedule property since 31 years?

2. Whether the plaintiff proves that she has perfected her title by adverse possession over the suit property?

3. Whether the plaintiff proves the interference by the defendant over suit property?

4. Whether the judgment and decree of the trial courts is call for interference by this court and liable for set aside?

5. What order?

On re-appreciation of evidence the first appellate court

dismissed the appeal confirming the judgment and

decree passed by the trial Court. Aggrieved by the

same, appellant/plaintiff is before this Court.

8. Sri. Madhukeshwara, learned counsel

appearing for Sri. Sachin B on behalf of

appellant/plaintiff submitted that;

(a). trial court and first appellate court grossly

erred in dismissing the suit of the appellant/plaintiff

without appreciating the material evidence with regard

to her settled possession over the suit schedule

property.

(b). that appellant/plaintiff has established that

she has been in exclusive, open and unhindered

possession of the suit schedule property hostile to the

interest and title of the respondents on and from May,

1980. That her possession has been established by

her, by examining P.W.2 who is a villager. Referring to

Ex.P.5-notice issued by the third defendant/

respondent learned counsel submits that, even

according to the said notice wherein it is specifically

alleged that the appellant/plaintiff has encroached

upon the suit schedule property which is sufficient

enough proof of her case.

(c). He further submits that though the

appellant/plaintiff has been granted 5 cents of land,

the appellant/plaintiff being in possession of a

remaining extent of land is within the knowledge of

the respondents. Hence, he submits that trial court

and first appellate court have not appreciated this

aspect of the matter giving raise to substantial

question of law to be considered in this appeal. Hence,

he seeks for allowing of the appeal.

9. learned HCGP appearing for

respondents/defendants justifying the judgment and

decree passed by the trial Court and first appellate

Court submits;

(a) that since the appellant/plaintiff has not

produced any iota of evidence with regard to she

being in possession of the property for 30 years and

more prior to the date of filing of the suit, the trial

court and first appellate court were right and justified

in dismissing her suit for declaration and injunction.

(b). that appellant/plaintiff not being in lawful

possession particularly in respect of suit schedule

property as claimed by her, the question of granting

consequential relief of injunction does not arise. Thus,

he submits no substantial question of law arises in the

matter for consideration and hence seeks for dismissal

of appeal.

10. Heard the learned counsel for the parties.

11. The appellant/plaintiff who approached the

court seeking relief of declaration declaring her to be

the absolute owner of the suit schedule property

having acquired the title by way of adverse possession

has not produced any material evidence regarding the

date of commencement of her hostile possession over

the suit schedule property, openly and to the

knowledge of the respondents/defendants. Except

claiming that she encroached upon the property in the

month of May, 1980, no piece of evidence is produced

by her.

12. Ex.P.1 -Saguvali chit dated 17.02.2012

issued by the second defendant/respondent infavour

of the appellant/plaintiff to the extent of 5 cents of

land under Akrama and sakrama scheme. Thus, the

very document-Ex.P.1 would indicate that the claim of

the plaintiff was accepted and considered to the

extent of 5 cents and her unauthorized occupation to

the said extent has been regularized by the

respondents/defendants. The appellant/plaintiff,

therefore, cannot set up a case that she is in

possession of 1 acre of land as sought to be done in

the plaint.

13. Learned counsel for the appellant/plaintiff

vehemently argued with regard to her settled

possession. Referring to the notice at Ex.P.5,

submitted that even according to the case of the

respondents/defendants, the appellant/plaintiff is in

settled possession, albeit, referring herself to be an

encroacher. He submits in substance the said notice

evidenced her settled possession in the suit schedule

property.

14. The trial court at paragraph 11 of the

judgment as referred to the contention of the plaintiff

and reading into Ex.P.5 has found that said notice

pertains to the land measuring 1 acre in

Sy.No.37/26P2, while the plaintiff is claiming to be in

adverse possession of suit schedule property which is

bearing Sy.No.37/26P1. Therefore, the said claim of

the plaintiff cannot be countenanced.

15. In view of the aforesaid aspect of the

matter, oral evidence of the plaintiff and P.W.2

purported villager carries no significance. The trial

court and first appellate court have taken note of

these aspect of the matter and justifiably declined to

grant the relief of declaration and injunction as sought

for by the appellant/plaintiff.

It is made clear that the respondents/defendants

have regularized 5 cents of land and granted Saguvali

chit as per Ex.P.1 dated 17.02.2012 in favour of the

plaintiff. The said extent of land is recognized to be

the land of plaintiff. With the above observation

following order.

           1).     The appeal is dismissed.

           2).     Judgment    and   decree   dated

           26.04.2013              passed        in

O.S.No.66/2012 on the file of Senior

Civil Judge, Virajpet and judgment

and decree dated 16.08.2014 passed

in R.A.No.47/2013 on the file of II

Additional District and Sessions

Judge, Kodagu-Madikeri is confirmed.

Sd/-

JUDGE

RU