Karnataka High Court
Anand Rao S/O. Mangesh Tamse vs State Of Karnataka on 14 February, 2024
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NC: 2024:KHC-D:3544
RSA No. 100923 of 2023
C/W RSA No. 100833 of 2023
RSA No. 100835 of 2023
RSA No. 100878 of 2023
RSA No. 100920 of 2023
RSA No. 100931 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 14TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE R.NATARAJ
REGULAR SECOND APPEAL NO.100923/2023(DEC/INJ)
C/W
REGULAR SECOND APPEAL NO.100833/2023
REGULAR SECOND APPEAL NO.100835/2023
REGULAR SECOND APPEAL NO.100878/2023
REGULAR SECOND APPEAL NO.100920/2023
REGULAR SECOND APPEAL NO.100931/2023
IN R.S.A. NO.100923/2023:
BETWEEN:
SMT. MITRA W/O. PANDURANG KALGUTKAR,
AGE: 66 YEARS, OCC: HOUSEHOLD,
R/O: HOUSE NO.214, BAITHKHOL VILLAGE,
KARWAR - 581 301.
...APPELLANT
(BY SRI K. L. PATIL, ADVOCATE)
Digitally
signed by AND:
MANJANNA
E
1. STATE OF KARNATAKA, REPRESENTED BY THE
DEPUTY COMMISSIONER, KARWAR,
UTTAR KANNADA - 581 301.
2. PORT OFFICER, KARWAR POST,
KARWAR - 581 301, UTTAR KANNADA.
...RESPONDENTS
(BY SMT. VIDYAVATI M. KPTTURSHETTAR,
ADVOCATE FOR CAVEATOR/R2)
THIS RSA IS FILED UNDER SECTION 100 OF CPC., 1908,
AGAINST THE JUDGMENT AND DECREE DATED 08.06.2023 PASSED
IN R.A.NO.06/2022 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
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RSA No. 100923 of 2023
C/W RSA No. 100833 of 2023
RSA No. 100835 of 2023
RSA No. 100878 of 2023
RSA No. 100920 of 2023
RSA No. 100931 of 2023
JUDGE, KARWAR, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 15.06.2022, PASSED IN
O.S. NO.196/2020 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE
AND JMFC-II, KARWAR DISMISSING THE SUIT FILED FOR
INJUNCTION AND DECLARATION & ETC.
IN R.S.A. NO.100833/2023:
BETWEEN:
JOHN S/O. RUZAR CARVALHO,
AGE: 62 YEARS, OCC: MECHANIC,
R/O: HOUSE NO.217, BAITHKHOL
VILLAGE, KARWAR - 581 301.
...APPELLANT
(BY SRI K. L. PATIL, ADVOCATE)
AND:
1. STATE OF KARNATAKA, REPRESENTED BY THE
DEPUTY COMMISSIONER, KARWAR,
UTTAR KANNADA - 581 301.
2. PORT OFFICER,
KARWAR PORT, KARWAR,
UTTAR KANNADA - 581 301.
...RESPONDENTS
(BY SMT. VIDYAVATI M. KPTTURSHETTAR,
ADVOCATE FOR CAVEATOR/R2)
THIS RSA IS FILED UNDER SECTION 100 OF CPC., 1908,
AGAINST THE JUDGMENT AND DECREE DATED 08.06.2023 PASSED
IN R.A.NO.02/2022 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE, KARWAR, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 15.06.2022, PASSED IN
O.S. NO.193/2020 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE
AND JMFC-II, KARWAR DISMISSING THE SUIT FILED FOR
INJUNCTION AND DECLARATION & ETC.
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NC: 2024:KHC-D:3544
RSA No. 100923 of 2023
C/W RSA No. 100833 of 2023
RSA No. 100835 of 2023
RSA No. 100878 of 2023
RSA No. 100920 of 2023
RSA No. 100931 of 2023
IN R.S.A. NO.100835/2023:
BETWEEN:
SABASTIN W/O. MATHESH CARVALHO,
AGE: 59 YEARS, OCC: HOUSEHOLD,
R/O: HOUSE NO.212, JAILWADA
BAITHKHOL VILLAGE, KARWAR - 581 301.
...APPELLANT
(BY SRI K. L. PATIL, ADVOCATE)
AND:
1. STATE OF KARNATAKA REPRESENTED BY THE
DEPUTY COMMISSIONER, KARWAR,
UTTAR KANNADA - 581 301.
2. PORT OFFICER, KARWAR PORT, KARWAR,
UTTAR KANNADA - 581 301.
...RESPONDENTS
(BY SMT. VIDYAVATI M. KPTTURSHETTAR,
ADVOCATE FOR CAVEATOR/R2)
THIS RSA IS FILED UNDER SECTION 100 OF CPC., 1908,
AGAINST THE JUDGMENT AND DECREE DATED 08.06.2023 PASSED
IN R.A.NO.03/2022 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE, KARWAR, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 15.06.2022, PASSED IN
O.S. NO.198/2020 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE
AND JMFC-II, KARWAR DISMISSING THE SUIT FILED FOR
INJUNCTION AND DECLARATION & ETC.
IN R.S.A. NO.100878/2023:
BETWEEN:
JEEVAN S/O. RATNAKAR PEDNEKAR,
AGE: 47 YEARS, OCC: DRIVER, R/O: HOUSE NO.215A,
BAITHKHOL VILLAGE, KARWAR.
...APPELLANT
(BY SRI K. L. PATIL, ADVOCATE)
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RSA No. 100923 of 2023
C/W RSA No. 100833 of 2023
RSA No. 100835 of 2023
RSA No. 100878 of 2023
RSA No. 100920 of 2023
RSA No. 100931 of 2023
AND:
1. STATE OF KARNATAKA, REPRESENTED BY THE
DEPUTY COMMISSIONER, KARWAR,
UTTAR KANNADA - 581 301.
2. PORT OFFICER, KARWAR PORT, KARWAR,
UTTAR KANNADA - 581 301.
...RESPONDENTS
(BY SMT. VIDYAVATI M. KPTTURSHETTAR,
ADVOCATE FOR CAVEATOR/R2)
THIS RSA IS FILED UNDER SECTION 100 OF CPC., 1908,
AGAINST THE JUDGMENT AND DECREE DATED 08.06.2023 PASSED
IN R.A.NO.05/2022 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE, KARWAR, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 15.06.2022, PASSED IN
O.S. NO.194/2020 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE
AND JMFC-II, KARWAR DISMISSING THE SUIT FILED FOR
INJUNCTION AND DECLARATION & ETC.
IN R.S.A. NO.100920/2023:
BETWEEN:
UFM SRI MOHANDAS S/O. RAMA SALASKAR,
AGE: 55 YEARS, OCC: PENSIONER,
R/O: HOUSE NO.215, BAITHKHOL VILLAGE,
KARWAR - 581 301.
...APPELLANT
(BY SRI K. L. PATIL, ADVOCATE)
AND:
1. STATE OF KARNATAKA REPRESENTED BY THE
DEPUTY COMMISSIONER, KARWAR,
UTTAR KANNADA - 581 301.
2. PORT OFFICER, KARWAR PORT, KARWAR,
UTTAR KANNADA - 581 301.
...RESPONDENTS
(BY SMT. VIDYAVATI M. KPTTURSHETTAR,
ADVOCATE FOR CAVEATOR/R2)
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RSA No. 100923 of 2023
C/W RSA No. 100833 of 2023
RSA No. 100835 of 2023
RSA No. 100878 of 2023
RSA No. 100920 of 2023
RSA No. 100931 of 2023
THIS RSA IS FILED UNDER SECTION 100 OF CPC., 1908,
AGAINST THE JUDGMENT AND DECREE DATED 08.06.2023 PASSED
IN R.A.NO.04/2022 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE, KARWAR, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 15.06.2022, PASSED IN
O.S. NO.192/2020 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE
AND JMFC-II, KARWAR DISMISSING THE SUIT FILED FOR
INJUNCTION AND DECLARATION & ETC.
IN RSA.NO.100931/2023:
BETWEEN:
ANAND RAO S/O. MANGESH TAMES,
AGE: 73 YEARS, OCC: PENSIONER,
R/O: HOUSE NO.216, BAITHKHOL VILLAGE,
KARWAR - 581 301.
...APPELLANT
(BY SRI K. L. PATIL, ADVOCATE)
AND:
1. STATE OF KARNATAKA,
REPRESENTED BY THE
DEPUTY COMMISSIONER, KARWAR,
UTTAR KANNADA - 581 301.
2. PORT OFFICER, KARWAR PORT, KARWAR,
UTTAR KANNADA - 581 301.
...RESPONDENTS
(BY SMT. VIDYAVATI M. KPTTURSHETTAR,
ADVOCATE FOR CAVEATOR/R2)
THIS RSA IS FILED UNDER SECTION 100 OF CPC., 1908,
AGAINST THE JUDGMENT AND DECREE DATED 08.06.2023 PASSED
IN R.A.NO.07/2022 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE, KARWAR, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 15.06.2022, PASSED IN
O.S. NO.195/2020 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE
AND JMFC-II, KARWAR DISMISSING THE SUIT FILED FOR
INJUNCTION AND DECLARATION & ETC.
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RSA No. 100923 of 2023
C/W RSA No. 100833 of 2023
RSA No. 100835 of 2023
RSA No. 100878 of 2023
RSA No. 100920 of 2023
RSA No. 100931 of 2023
THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
RSA No.100923/2023 is filed by the unsuccessful
plaintiffs in O.S No.196/2020 challenging the judgment and
decree dated 15.06.2022 passed by the Addl. Civil Judge &
JMFC-II, Karwar dismissing the suit as well as the judgment
and decree dated 08.06.2023 passed by the Principal Senior
Civil Judge, Karwar in R.A No.6/2022, by which, the first
appellate court confirmed the judgment and decree of the trial
court.
RSA No.100833/2023 is filed by the unsuccessful plaintiffs
in O.S No.193/2020 challenging the judgment and decree dated
15.06.2022 passed by the Addl. Civil Judge & JMFC-II, Karwar
dismissing the suit as well as the judgment and decree dated
08.06.2023 passed by the Principal Senior Civil Judge, Karwar
in R.A No.02/2022, by which, the first appellate court
confirmed the judgment and decree of the trial court.
NC: 2024:KHC-D:3544
RSA No.100835/2023 is filed by the unsuccessful plaintiffs
in O.S No.198/2020 challenging the judgment and decree dated
15.06.2022 passed by the Addl. Civil Judge & JMFC-II, Karwar
dismissing the suit as well as the judgment and decree dated
08.06.2023 passed by the Principal Senior Civil Judge, Karwar
in R.A No.03/2022, by which, the first appellate court
confirmed the judgment and decree of the trial court.
RSA No.100878/2023 is filed by the unsuccessful plaintiffs
in O.S No.194/2020 challenging the judgment and decree dated
15.06.2022 passed by the Addl. Civil Judge & JMFC-II, Karwar
dismissing the suit as well as the judgment and decree dated
08.06.2023 passed by the Principal Senior Civil Judge, Karwar
in R.A No.05/2022, by which, the first appellate court
confirmed the judgment and decree of the trial court.
RSA No.100920/2023 is filed by the unsuccessful plaintiffs
in O.S No.192/2020 challenging the judgment and decree dated
15.06.2022 passed by the Addl. Civil Judge & JMFC-II, Karwar
dismissing the suit as well as the judgment and decree dated
08.06.2023 passed by the Principal Senior Civil Judge, Karwar
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in R.A No.04/2022, by which, the first appellate court
confirmed the judgment and decree of the trial court.
RSA No.100931/2023 is filed by the unsuccessful plaintiffs
in O.S No.195/2020 challenging the judgment and decree dated
15.06.2022 passed by the Addl. Civil Judge & JMFC-II, Karwar
dismissing the suit as well as the judgment and decree dated
08.06.2023 passed by the Principal Senior Civil Judge, Karwar
in R.A No.07/2022, by which, the first appellate court
confirmed the judgment and decree of the trial court.
2. The plaintiffs filed the aforesaid suits for declaration
of their ownership and for perpetual injunction in respect of the
house property where they are residing. The plaintiffs claimed
that the suit property was owned by their ancestors. In terms
of a preliminary notification dated 29.01.1962, the State
Government initiated acquisition of their land on the ground
that the same was required for development of the Karwar
Port. This was followed by a final notification dated 04.03.1964.
An award was passed on 31.03.1971. However, the plaintiffs
claimed that no steps were taken to take over actual
NC: 2024:KHC-D:3544
possession of the suit land and no steps were taken to evict
them from their residences. The plaintiffs claimed that they are
in possession and occupation of the same and were in settled
possession of the property that was acquired. The plaintiffs
claimed that they had filed several writ petitions and writ
appeals challenging the acquisition which were all dismissed.
Thereupon, the defendant No.2 issued a notice dated
13.11.2020, calling upon them to hand over possession of the
suit property by or before 30.11.2020, failing which, it
threatened to take forcible possession of the property. The
plaintiffs therefore claimed that they were in adverse
possession from the year 1971 onwards with the notice and
knowledge of the defendants and therefore the defendants
have lost their rights to recover possession.
3. The defendants contested the suit and claimed that
the suits were liable to be dismissed in limine. They contended
that the plaintiffs have sought for similar reliefs before this
Court in the writ petitions filed under Articles 226 and 227 of
Constitution of India to declare that the land acquisition
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proceedings initiated by the State Government and the award
dated 31.03.1971 had lapsed. The said writ petitions and other
proceedings were all dismissed and this Court held that the
plaintiffs were in permissive possession. It also held that the
plaint did not disclose when the plaintiffs trespassed in to the
land and from what date their right fructified into a right by
prescription. The defendant No.2 claimed that whenever
notices were issued to the plaintiffs to vacate the premises,
they filed writ petitions before this Court and obtained interim
orders. Therefore they contended that the plaintiffs do not
have any subsisting right, title or interest to remain in
possession of the suit properties.
4. Based on these contentions, the trial court framed
issues and set down the case for trial:
a) Whether the plaintiff proves that they are owners of
suit schedule property by way of adverse possession?
b) Whether the plaintiff proves that the defendants
are interfering in peaceful possession and enjoyment of
the suit schedule property?
c) Whether the plaintiff is entitled for the relief
claimed?
d) What order or decree?
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5. The respective plaintiffs adduced evidence and also
marked several documents to claim that they were in
possession of the property, notwithstanding the award passed
in the year 1971 and the consequent notification under Section
16 (2) of the Land Acquisition Act, 1894. The defendants
examined an official as DW-1 who stated in detail the
proceedings initiated by the plaintiffs before various Courts.
6. Based on the oral and documentary evidence, the
trial court held that the State Government had taken up
rehabilitation for displaced families and they were allowed to
continue in possession of the acquired property subject to the
condition that they would be evicted as and when the lands
were required urgently for the development of the Port and that
till they are evicted, they shall pay nominal rent to the
department of Ports. It held that the land acquisition
proceedings were challenged by the plaintiffs in Writ Petition
Nos.22344/2005 and 41376/2003. A Coordinate Bench of this
Court held "case of the petitioners that they continued to be in
possession of the land and the land is not used for the purpose
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of which it is being acquired has no substance". It was further
held in the Writ Petition Nos.110545/2017-110549/2017 that
the occupation of the plaintiffs over the acquired land that too
after receiving the compensation and after taking alternate site
under the rehabilitation scheme cannot be termed as
possession at all, but is only permissive occupation or more or
less that of a license. It also noticed that before the Division
Bench of this Court in Writ Appeal No.100276/2019 and
connected appeals, the plaintiffs claimed that they were not in
unauthorized occupation, but were in settled possession of the
respective properties. However, in the present suit they
claimed that they were unauthorized occupants occupying the
property belonging to the defendants. Therefore it held that
the plaintiff cannot blow hot and cold at the same time.
7. The trial court also held that the plaintiffs were
unable to prove that they had perfected their title to the suit
properties by adverse possession as the necessary
requirements of a claim for adverse possession namely, nec vi,
nec calm and nec precario were the absent in the case. The
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trial court therefore held that the plaintiffs did not make out a
case for declaration of title by adverse possession and
consequently, dismissed the suit. The plaintiffs filed the
respective appeals before the first appellate court, which were
also dismissed. Consequent thereto, the plaintiffs have
approached this Court in this Regular Second Appeal.
8. Learned counsel for the plaintiffs contended that
though the award was passed in the year 1971, no steps were
taken to recover the possession of property from the plaintiffs
and therefore plaintiffs are entitled to continue in possession of
the property until they are lawfully dispossessed. He submits
that the plaintiffs are willing to pay rent to the department of
Ports and as their possession is admitted by the defendants,
the plaintiffs are entitled to continue in possession of the suit
properties.
9. Per contra, the learned counsel for the defendants
submitted that the properties in question form part of a larger
area, which was acquired by the State Government and is now
sought to be used for the purpose of the Port as well as for the
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purpose of terminals at the port. She submits that the plaintiffs
have no right to claim perpetual injunction let alone adverse
title in respect of the property and therefore the suit filed by
them was rightly dismissed by the trial court and was rightly
upheld by the first appellate court. She contends that the
predecessors of the plaintiffs have received the compensation
way back in the year 1971, and also an incentive site was
granted to each one of them, some of whom had already
disposed off those sites, while some of them did not take
possession of the said sites. She therefore contends that the
plaintiffs cannot on one hand claim advantage and on the other
claim that they have continued in possession of the property
acquired. She relied upon the judgment of the apex court in the
case of M. B. BETTASWAY Vs THE COMMISSIONER,
BENGALURU DEVELOPMENT AUTHORITY AND ANOTHER
and contends that once the land was vested in the State
Government, no suit for even injunction is maintainable in
respect of the property.
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10. I have considered the submissions made by the
learned counsel for the plaintiffs as well as the learned counsel
for the defendants.
11. The plaintiffs admit that the land in question was
acquired by the State Government for the purpose of the
Karwar Port. It was not seriously disputed by the plaintiffs that
the compensation determined was paid to their predecessors
and that incentive sites were allotted to them under the
rehabilitation programme. Therefore, once the acquisition
stood concluded, the plaintiffs had no right to sue for even
injunctory reliefs. The plaintiffs were therefore not entitled to
any relief of declaration that they have perfated their right by
adverse possession. Nonetheless, some photographs show that
some of the plaintiffs are in possession of some houses, for
which the plaintiffs must have been compensated.
Nonetheless, the notification under Section 16(2) presupposes
that possession of the land was taken over and handed over to
the concerned defendant. Therefore, the plaintiff cannot claim
that they are in settled possession. In this regard, it is
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profitable to refer to the judgment of the Apex Court in the
case of BANGALORE DEVELOPMENT AUTHORITY AND
OTHERS Vs BRIJESH REDDY AND OTHERS. Nonetheless,
the plaintiffs are entitled to some relief at the hands of their
Court so that they could shift to some other alternate location
or to the site which is handed over to the predecessors of the
plaintiffs under the rehabilitation scheme.
12. In that view of the matter, though the plaintiffs
have not made out any case for interference with the judgment
and decree of the trial court, this Court considers it appropriate
to grant reasonable time to the plaintiffs to quit and deliver
back vacant possession of the respective suit property to the
defendants.
13. Consequently, these appeals are dismissed.
However, the plaintiffs are granted time till 31.01.2025, to quit
and deliver vacant possession of the premises to the
defendants. This is however subject to the plaintiffs filing an
affidavit undertaking that they shall not induct any third person
in to the property in question and shall not file any other
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litigation before any Court in any manner whatsoever and shall
hand over possession voluntarily by 31.01.2025. The plaintiffs
shall file an affidavit as stated above, within ten days from
today. It the plaintiffs fail to do so, they shall not be entitled to
the benefit of this order.
14. In view of disposal of the appeal on merits, pending
IAs, if any, also stand disposed off.
SD/-
JUDGE
PMP
CT-ASC
