Karnataka High Court
Gurusiddayya S/O Veerabhadrayya ... vs The Deputy Commissioner And Ors on 3 January, 2022
Bench: S.R.Krishna Kumar, K S Hemalekha
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 3RD DAY OF JANUARY 2022
PRESENT
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
AND
THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA
REGULAR FIRST APPEAL NO.200020/2014
BETWEEN:
1. Gurusiddayya S/o Veerabadrayya
Aged about 40 years, Occ: Agriculture & Coolie
2. Smt. Shanthamma W/o Veerabadrayya
Aged about: 70 Years, Occ: Household
3. Amruthamathi W/o Amarayya
Aged about: 47 Years, Occ: Household
4. Dodda Sugayya S/o Veerabadrayya
Aged about: 45 Years, Occ: Agriculture
5. Sanna Sugayya S/o Veerabadrayya
Aged about: 42 Years, Occ: Agriculture
All are R/o Raglparvi Village
Tq. Sindhanur, Dist. Raichur-584 101
... Appellants
(By Sri Mahantesh Patil, Advocate)
2
AND:
1. The Deputy Commissioner
Raichur, Dist. Raichur-584101
2. The Director of Family & Child Welfare
Bangalore-560001
3. The District Health Officer
Raichur, Dist. Raichur-584101
4. The Taluka Health Officer
Sindhanur, Dist. Raichur-584101
5. The Medical Officer
PHC Ragalparvi Village
Dist. Raichur-584101
6. The Chief Secretary
Zilla Panchayat, Raichur-584101
7. The Executive Officer
Taluka Panchayat, Sindhanur
Dist. Raichur-584101
8. The Assistant Commissioner
Lingasugur, Dist. Raichur-584 101
9. The Tahsildar
Sindhanur, Dist. Raichur-584 101
... Respondents
(By Sri Mallikarjun C. Basareddy, HCGP for R1 to R5;
Sri Venkatesh C. Mallabadi, Advocate for R6 & R7)
This Regular First Appeal is filed under Section 96 of CPC,
praying to allow the appeal and set aside the impugned judgment and
decree dated 18.01.2014 passed by Senior Civil Judge at Lingasugur
Sitting at Sindhanur in O.S.No.70/2012 insofar as it relates to partly
dismissing the suit in O.S.No.70/2012 filed by the appellants, declining to
grant other reliefs.
This appeal coming on for Hearing, this day, S.R.Krishna Kumar
J., delivered the following:
3
JUDGMENT
The unsuccessful plaintiffs in O.S.No.70/2012 on the file
of the Senior Civil Judge, Lingausugur Sitting at Sindhanur (for
short, 'the Trial Court') have preferred this appeal aggrieved
by the impugned judgment and decree dated 18.01.2014
passed by the Trial Court whereby their suit for declaration,
mandatory injunction and other reliefs in respect of the suit
schedule property bearing Sy.No.95/A presently Sy.No.95/1 +
4, measuring 1 acre 1 gunta of Ragalparvi village was partly
decreed by the Trial Court. It is relevant to state that
aggrieved by the judgment and decree partly decreeing the
suit of the plaintiffs, the respondents/defendants have not
preferred any appeal before this court
2. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court.
3. Heard the learned counsel for the plaintiffs and
learned High Court Government Pleader for respondent Nos.1
to 5, 8 and 9 as well as learned counsel for the respondent
Nos.6 and 7 and perused the material on record.
4. Briefly stated, it was the specific contention of the
plaintiffs before the Trial Court that the suit schedule property
originally belong to their father one Sri Veerabhadrayya who
was the absolute owner in lawful and peaceful possession of
the enjoyment of the same. It was contended that upon death
of Sri Veerabhadrayya on 03.03.1993, the suit schedule
property devolved upon the plaintiffs herein who succeeded to
the estate of said Sri Veerabhadrayya including the suit
schedule property. It is contended that clandestinely, the
respondent Nos.1 to 5, 8 and 9 got their name mutated in the
revenue records, pursuant to which, the plaintiffs got issued
statutory notice dated 14.05.2012. In response thereto, the
respondent No.5, Medical Officer issued a reply inter alia
stating that the suit schedule property was used for the
purpose of putting up a Government Hospital and the same
was voluntarily handed over by the aforesaid
Sri Veerabhadrayya in favour of the defendants and
consequently the plaintiffs did not have right, title and interest
and possession over the suit schedule property. Plaintiffs
have contended that in view of the denial of the title and
possession of the plaintiffs over the suit schedule property by
the defendants, the plaintiffs have filed the instant suit seeking
declaration, mandatory injunction and other reliefs over the
suit schedule property against the defendants.
5. The order sheet of the trial court indicates that
while the suit against the defendant No.2 was dismissed,
defendant No.6 was placed ex parte. Defendant Nos.1 to 5
and 7 to 9 have filed written statement inter alia contending
that the plaintiffs did not have any right, title or interest over
the suit schedule property. It was contended that the original
owner had voluntarily permitted the defendants to put up
construction of a hospital over the suit schedule property and
that the Health Department which is in possession and
enjoyment of suit schedule property did not promise to pay the
value of the suit schedule property either to the deceased
Veerabhadrayya or to the plaintiff herein. It was further
contended that the suit is barred by limitation and that since
the aforesaid Veerabhadrayya had voluntarily handed over the
suit schedule property in favour of the defendants for the
purpose of putting up a hospital, the plaintiff who claim to be
the legal representative and heirs of the deceased
Veerabhadrayya were estopped from putting forth any claim
over the suit schedule property. It was therefore contended
that the suit is devoid of merit and that the same is liable to be
dismissed.
6. Based on the aforesaid pleadings, the trial court
framed the following issues.
1) Whether the plaintiff's prove that they are
the owners of the suit schedule property?
2) Whether the plaintiff's prove that name of
the Government Hospital illegally entered
in column No.11 of RTC in respect of suit
property?
3) Whether the plaintiff's prove that the
defendants/ Government illegally
constructed hospital building in the suit
schedule property?
4) Whether the plaintiff's prove that the
Government has promised to pay the value
of the suit property to Late
Veerabhadraiah?
5) Whether the defendants prove that the
owner of the suit property had voluntarily
allowed the Government to construct the
hospital building in order to help the public
of Ragalaparvi village, accordingly hospital
building and compound wall constructed in
the year 1971 and name of the hospital
entered in column No.11 of RTC?
6) Whether the defendants prove that the
plaintiff's are estopped from filing the
present suit as contended in para 16 of
written statement?
7) Whether the defendants prove that the suit
against defendant No.6 and 7 is not
maintainable without mandatory sanction
from Zilla Panchayat?
8) Whether the plaintiff's are entitled for reliefs
of declaration?
9) Whether the plaintiff's are entitled for relief
of mandatory injunction?
10) Whether the plaintiff's are entitled damages
as prayed for?
11) What order or decree?
7. On behalf of the plaintiffs, plaintiff No.1 got
examined himself as PW1 and Ex.P1 to Ex.P51 were marked
on his behalf. On behalf of the defendants, two witnesses as
DW1 and DW2 were examined and no documents were
marked.
8. After hearing the parties, the trial court proceeded
to answer issues No.1 to 4 in the negative thereby coming to
the conclusion that the plaintiffs had not established their title
over the suit schedule property and that the defendant had not
illegally constructed hospital building in the suit schedule
property. So also, while answering issues Nos.5 and 6, the
trial court came to the conclusion that the owner of the suit
property had voluntarily allowed and permitted the State
Government to put up a hospital building on the suit schedule
property and that the plaintiffs were estopped from filing the
present suit. Accordingly, answering all other consequential
issues, the trial court rejected the claim of the plaintiff with
regard to title and possession; however, taking a sympathetic
view towards the plaintiff by coming to the conclusion that the
plaintiff did not have any other landed property, the trial court
directed the State Government to pay a minimum
compensation of Rs.75,000/- to the plaintiff and thereby the
suit of the plaintiff was partly decreed only to the said extent.
9. As stated supra, while the plaintiff has challenged
the impugned judgment and decree rejecting their claim for
ownership, possession and compensation payable in their
favour in accordance with law, the defendants-State has not
preferred any appeal against the impugned judgment and
decree.
10. During the pendency of this appeal, the plaintiffs
have filed an application IA 1/2015 U/o 41 Rule 27 CPC for
permission to produce additional evidence. So also the
plaintiffs-plaintiffs have filed yet another application IA 1/2021
seeking permission to produce some more additional
documents. According to the plaintiffs, during the pendency of
the present appeal, the defendants has taken necessary steps
to initiate acquisition proceedings in respect of suit schedule
property under the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 and consequently the said documents
are relevant and material for the purpose of adjudication of the
present appeal particularly when the acquisition proceedings
initiated by defendants during the pendency of this appeal
clearly establish that the plaintiffs were the owners of the suit
schedule property and that were entitled to compensation
payable under the said Act (for short ' the said Act of 2013').
11. We have heard the learned counsel for the
plaintiffs and the learned High Court Government Pleader for
the defendants No.1 to 5, 6 to 9 and perused the material on
record.
12. The following points arise for our consideration in
the present appeal.
i) Whether I.A.No.1/2015 & I.A.No.1/2021
deserve to be allowed?
ii) Whether the trial court was justified in rejecting
the claim of title, possession and mandatory
injunction in support of the suit schedule property put
forth by the plaintiffs-plaintiffs?
iii) Whether the trial court was justified in rejecting
the prayer for compensation by way of damages
sought for by the plaintiffs in the suit?
iv) What order or decree?
Point No.(i):
13. Before the adverting rival contention, it is
necessary to consider the aforesaid two applications IA
1/2015 and IA 1/2021 filed by the plaintiffs-plaintiffs for
permission to produce additional evidence.
14. The material on record indicates that it is the
specific contention of the plaintiffs that the suit schedule
property originally belongs to their father Veerabhadrayya and
that the defendants has utilized the suit schedule property
illegally without acquiring the same or by following due
process of law and without paying the requisite compensation
in favour of the plaintiffs thereby violating Article 31 and Article
300-A of the Constitution of India. It is submitted that even
after 44th amendment to the Constitution in the year 1978,
right to property continues to be a valuable constitutional right
as well as a human right and the same has been recognized
by the Apex Court as well as this court in several judgments
including the decision in the case of Vidya Devi V/s The State
of Himachal Pradesh and others, Civil Appeal No.60-61 of
2020 dated 08.01.2020. It is also the specific of the plaintiffs
that the initiation of acquisition proceedings in respect of the
suit schedule property clearly establish that the suit schedule
property had been taken over and utilized by the defendants
without taking recourse to acquisition proceeding and without
following due process of law and consequently the impugned
judgment and decree passed by the trial court, holding that the
plaintiffs are not the owners of the suit schedule property is
clearly erroneous and the same deserves to be set aside,
particularly in the light of the documents now sought to be
produced by way of additional evidence before this court in
relation to acquisition proceeding of the suit schedule property
initiated by the defendants.
15. We have carefully considered the applications
and the documents produced along with the same as well as
rival submissions in this regard.
16. A perusal of the material on record including the
impugned judgment and decree passed by the trial court and
the documents produced along with the applications and the
averments in the affidavit made in support of the applications
will clearly indicate that in the light of the issues in controversy
involved in this appeal in relation to right title, interest and
possession of the plaintiffs and their predecessor-in-title in
respect of the subject lands, the documents now sought to be
produced by way of additional evidence, which go to show that
defendants have themselves initiated acquisition proceeding
in relation to the suit schedule property, the said documents
are relevant material and essential to decide the issues in
controversy between the parties. Under these circumstances,
we are of the view that the applications IA 1/2015 and IA
1/2021 deserve to be allowed and accordingly the same are
hereby allowed and the documents produced by the plaintiffs-
plaintiffs along with the said applications are received on
record.
Point Nos.(ii) to (iv):
17. The next question that arise for consideration
after receiving the aforesaid documents on record, whether
the facts and circumstances in the instant case require
deciding the present appeal on the basis of the aforesaid
additional documents or whether it is necessary to remit the
matter back to the trial court for reconsideration afresh in the
light of the aforesaid documents. In this context, it is relevant
to refer to Order 41 Rule 28 and 29 CPC which reads as
under.
28. Mode of taking additional evidence. -
Wherever additional evidence is allowed to be
produced, the Appellate Court may either take such
evidence, or direct the Court from whose decree the
appeal is preferred, or any other subordinate Court,
to take such evidence and to send it when taken to
the Appellate Court.
29. Points to be defined and recorded. - Where
additional evidence is directed or allowed to be
taken, the Appellate Court shall specify the points to
which the evidence is to be confined and record on
its proceedings the points so specified.
18. It is well settled that when additional evidence is
sought to be produced before the appellate court and such
permission is granted by the appellate court, the appellate
court would have two options viz. either direct the additional
evidence to be taken by remitting the matter back to the trial
court or directing the evidence to be taken by appellate court
itself. In the facts and circumstances of the instant case, as
stated supra, the documents sought to be produced by way of
additional evidence are undisputed documents comprising of
correspondence, endorsement etc., in relation to acquisition
proceeding sought to be initiated by the defendants-State
themselves in respect of the suit schedule property; the said
documents which are originate from the defendants-State
themselves, are not disputed by the defendants-State and
consequently there is no warrant to remit the matter back to
the trial court for de novo trial and in our view, it is just and
proper to dispose of this appeal on the basis of the aforesaid
documents/ records which originate from the defendants-State
itself. Accordingly, exercising are powers under Order 41
Rule 28 and 29 of CPC read with Order 41 Rule 33 and 151
and 107 CPC, we are of the considered opinion that the
matter does not require to be remanded back to the trial court
and the present appeal is to be decided by considering the
aforesaid additional documents.
19. A perusal of the impugned judgment and decree
passed by the trial court will indicate that despite the
defendants not putting forth any pleadings or proof with regard
to their right, title, interest or possession over the subject lands
coupled with the aforesaid averments made in the written
statement, in the light the oral and documentary evidence
produced by the plaintiff, the trial court clearly fell in error in
coming to the conclusion that the plaintiffs had not established
their title over the suit schedule property. In this context, it is
relevant to state, that having come to the conclusion that the
suit schedule property originally belonged to Veerabhadrayya,
the predecessor in title of the plaintiffs coupled with fact that
the defendants has not adduced any evidence to establish
that title in the suit schedule property had stood transferred
from Veerabhadrayya and / or the plaintiffs in favour of the
defendants in a manner known to law, we are of the
considered view that defendants have failed to establish that
the State Government had acquired valid and legal title and
possession over the suit schedule property. The trial court
also failed to consider and appreciate the various admissions,
inconsistence, discrepancies and contradiction in the
pleadings and evidence adduced by the defendants coupled
with the unimpeached evidence of the plaintiff, all of which
clearly point to the fact that while the plaintiff had discharged
their initial burden of proving their right title interest and
possession over the suit schedule property by producing oral
and documentary evidence, the same had not been either
rebutted or displaced by the defendants who had not
produced any document evidence in support of their claim. In
other words except for stating that the plaintiffs' father,
Veerabhadrayya had voluntarily handed over the suit schedule
property to the defendants for the purpose of putting up a
construction of a hospital, the defendants had not placed any
material to establish that title in the suit schedule property had
been transferred in favour of the defendants in a manner
known to law. Under these circumstances also, we are of the
view that the impugned judgment and decree passed by the
trial court is unsustainable in law.
20. Insofar as the finding recorded by the trial court
with regard to long enormous delay on the part of plaintiff in
filing the suit is concerned, it is well settled that insofar the
State Government is concerned, limitation is governed by
Article 65 R/w Article 112 of the Limitation Act and in order to
constitute adverse possession by the State Government
against a private party who is the owner of the property, all
necessary ingredients of adverse possession viz. hostile
animus etc., are essential and required to maintain the
defence of adverse possession. In the instant case, the State
Government has neither pleaded nor proved that it has
perfected its title over the suit schedule property by law of
prescription and averse possession. On the other hand, it is
the specific plea of put forth by the State Government that the
plaintiff's father Veerabhadrayya had voluntarily permitted the
State Government to construct of hospital on the suit schedule
property and consequently mere delay on the part of said
Veerabhadrayya or the plaintiffs to claim ownership and the
possession over the suit schedule property cannot be made
the basis to reject the said claim of the plaintiffs.
21. While it is true that the claim for mandatory
injunction by a decree for demolition is discretionary in nature
and can be rejected if there is long and inordinate delay and
acquiescence on the part of the party permitting such
unauthorized construction to be put up, the said principle
cannot be extended to deny the claim of title and possession
by the rightful owner as against the person without valid or
legal title and possession. Viewed from this angle also, the
finding of the trial court while answering issue Nos.1 to 4 and
rejecting the claim of title and possession by the plaintiff is
erroneous and the same also deserves to be set aside. Upon
revaluation and re-appreciation of entire oral and documentary
evidence on record, we are of the considered opinion that the
impugned judgment and decree passed by the trial court
answering issues No.1 to 4 against the plaintiffs and thereby
the rejecting the claim of title is perverse, capricious and illegal
and arbitrary and the same deserves to be set aside.
22. The material on record clearly indicates that by
way of alternative prayer, the plaintiffs have sought for decree
for damages by way of compensation from the date of
dispossession by the defendants-State. As stated supra, we
have already come to the conclusion that the plaintiffs and
their father were the absolute owners of the suit schedule
property and that they have been illegally dispossessed by the
defendants who have taken possession of the suit schedule
property and have utilized the same for the purpose of
construction of hospital without taking recourse to acquisition
proceeding and without following due process of law. In view
of the illegal dispossession of the plaintiffs and their father
from the subject land by the defendants without taking
recourse to acquisition proceedings and without following due
process of law, plaintiffs are not only entitled to compensation
but also interest for the delayed payment as held by the Apex
Court in the case of R.L.Jain (D) by LRs V/s Dda & Others -
(2004) 4 SCC 79 and reiterated recently in the case of
Gayabai Digambar Puri (Died) through LR. V/s The
Executive Engineer & Ors.- 2022 LIVELAW (SC) 15.
23. The next question that would arise for
consideration is with regard to the compensation payable in
favour of the plaintiffs. The trial court has recorded a finding
that by way of equity the plaintiff would be entitled to receive
Rs.75,000/-. However, in the light of the documents produced
by way of additional evidence, which clearly disclose that the
defendants have taken steps to initiate acquisition proceeding
under the said Act of 2013, our powers U/o 41 Rule 33 CPC
R/w Order 7 Rule 7 and Section 107 & 151 CPC, we are of the
considered opinion that the residuary prayer sought for by the
plaintiffs seeking grant of such other relief that this court may
deem fit to grant and by moulding the relief No.3 with regard
to payment of compensation, we deem it just and proper to
direct the defendants to complete the acquisition proceeding
already sought to be initiated by them and pay compensation
in favour of the plaintiffs in accordance with law.
24. We have decided to adopt this course of action in
the present appeal in the special / peculiar facts and
circumstances of the instant case only with a view to avoid
multiplicity of proceedings and to shorten the litigation and in
the light of the material on record which clearly indicates that
the defendants-State do not have any right over the suit
schedule property coupled with fact that the defendants have
already initiated acquisition proceeding in respect of the suit
schedule property. Accordingly, the impugned judgment and
decree passed by the trial court deserves to be set aside and
substituted by this judgment and decree. Point Nos.(ii) to (iv)
are answered accordingly in favour of the plaintiffs-appellants.
In the result, we pass the following:
ORDER
i) Appeal is hereby allowed.
ii) The impugned judgment and decree dated
18.01.2014 is hereby set aside and the suit of the
plaintiffs is partly decreed in the following terms.
a) The plaintiffs are declared as absolute owners of
the suit schedule property.
b) The defendants No.1 to 5, 8 and 9 are directed
to take necessary steps to complete the
acquisition proceedings in accordance with law
under the provisions of the Right to Fair
Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act,
2013 and pay compensation in respect of the
suit schedule property in favour of plaintiffs as
expeditiously as possible.
Sd/-
JUDGE
Sd/-
JUDGE
BL / SMP
