Karnataka High Court
Sri S M Siddalingaiah vs The Chief Secretary on 19 November, 2024
Author: S.G.Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE S.G.PANDIT
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
R.F.A. No.1306 OF 2010
BETWEEN
1. SRI S.M.SIDDALINGAIAH,
AGED ABOUT 76 YEARS,
S/O LATE SRI MUNIYAPPA,
@ HAALINA MUNIYAPPA
SINCE DEAD BY HIS LRS.,
1A) SIDDALINGAMMA,
W/O LATE S.M.SIDDALINGAIAH
AGED ABOUT 77 YEARS
1B) S.SHASHIDHARA
S/O LATE S.M.SIDDALINGAIAH
AGED ABOUT 45 YEARS
1A) AND 1B) BOTH ARE RESIDING AT
NO.78, BEHIND GOVERNMENT SCHOOL,
SHIVAKOTE VILLAGE,
HESARAGHATTA HOBLI,
BANGALORE NORTH TALUK,
BENGALURU 560 089.
1C) S.SIDDAGANGAMMA
W/O D.C.RAJANNA
AGED ABOUT 41 YEARS,
R/A DODDANALLURAHALLI VILLAGE,
JADIGENAHALLI HOBLI,
HOSAKOTE TALUK 562 114
BANGALORE RURAL DISTRICT
2
1D) S.SARVAMANGALA
W/O NAGARAJU S,
AGED ABOUT 46 YEARS,
R/A BEHIND GOVERNMENT SCHOOL,
SHIVAKOTE VILLAGE,
HESARAGHATTA HOBLI,
BANGALORE NORTH TALUK,
BENGALURU 560 089.
1E) S.KOMALA,
W/O M.S.SADASHIVAIAH,
AGED ABOUT 48 YEARS,
R/A MUNIYAPPANAPALYA VILLAGE,
MATHAHALLI POST, DASANAPURA HOBLI,
BANGALORE NORTH TALUK,
BENGALURU 562123
1F) S.PUSHPA,
W/O M.P.SOMASHEKARAIAH,
AGED ABOUT 50 YEARS,
R/A MATHAHALLI POST,
DASANAPURA HOBLI,
BANGALORE NORTH TALUK,
BENGALURU 562123.
1G) S.SUMALATHA
W/O SRI MAHESH
D/O LATE MALLAMMA
AGED ABOUT 33 YEARS,
R/A NEAR BASAVANNA TEMPLE
THOTAGERE VILLAGE,
DASANAPURA HOBLI,
BANGALORE NORTH TALUK,
BENGALURU 562123
SINCE DEAD BY LRS.,
1G1) MAHESH S,
S/O SOMAIAH
AGED ABOUT 37 YEARS
1G2) HARSHA M
S/O MAHESH,
AGED ABOUT 12 YEARS
3
1G3) KISHAN M,
S/O MAHESH,
AGED ABOUT 7 YEARS
1G2) AND 1G3) ARE MINORS,
REP.BY THEIR NEXT FRIEND & NATURAL
GUARDIAN, THEIR FATHER I.E.,
(1G1) MAHESH S.
1G1) TO 1G3) ARE RESIDING AT
GUDDADAHALLI VILLAGE,
HESARAGHATTA POST, HESARAGATTA HOBLI,
BANGALORE NORTH TALUK,
BANGALORE 560088
1H) S.SUJATHA @ NANDINI
W/O S.R.RENUKA PRASAD,
D/O LATE MALLAMMA,
AGED ABOUT 31 YEARS.
1I) S.MANJULA
W/O REVANNA
D/O LATE MALLAMMA
AGED ABOUT 29 YEARS
1H) AND 1I) ARE RESIDING AT
THORENAGASANDRA VILLAGE,
MATHAHALLI POST,
DASANAPURA HOBLI,
BANGALORE NORTH TALUK,
BANGALORE 562123
1J) S.NIRMALA
W/O NATARAJU S,
D/O LATE MALLAMMA,
AGED ABOUT 29 YEARS,
RESIDING AT HONNASANDRA VILLAGE,
DASANAPURA HOBLI,
BANGALORE NORTH TALUK.
2) SRI SHIVANNA
AGED ABOUT 64 YEARS,
S/O LATE MUNIYAPPA
@ HAALINA MUNIYAPPA
4
RESIDING AT
SHIVAKOTE VILLAGE, HESARAGHATTA HOBLI,
BANGALORE NORTH TALUK,
BANGALORE 560 089.
...APPELLANTS
(BY SRI S.SRIVATSA, SENIOR ADVOCATE ALONG WITH
SRI B.VIJAY SHETTY, ADVOCATE)
AND
1. THE CHIEF SECRETARY ,
GOVERNMENT OF KARNATAKA,
VIDHANA SOUDHA,
BANGALORE 560 001.
2. THE DEPUTY COMMISSIONER,
BANGALORE URBAN DISTRICT,
K.G.ROAD,
BANGALORE 560 009.
3. THE TAHSILDAR,
BANGALORE NORTH TALUK (ADDL.)
YELAHANKA,
BANGALORE 560 064.
RESPONDENTS
(BY SMT.SARITHA KULKARNI, HCGP)
THIS RFA IS FILED U/SEC.96 OF CPC, AGAINST THE JUDGMENT
AND DECREE DATED 30.01.2010 PASSED IN OS.NO.1468/2007 ON THE
FILE OF THE II ADDL. CIVIL JUDGE (SR.DN), BANGALORE RURAL
DISTRICT, BANGALORE, DISMISSING THE SUIT FOR DECLARATION
AND PERMANENT INJUNCTION.
THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT ON
24.09.2024, COMING ON FOR PRONOUNCEMENT THIS DAY,
POONACHA J, DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE S.G.PANDIT
and
HON'BLE MR JUSTICE C.M. POONACHA
5
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE C.M. POONACHA)
The present first appeal is filed by the plaintiffs under
Section 96 of the Code of Civil Procedure, 19081 challenging the
judgment and decree dated 30.01.2010 passed in O.S.
No.1468/2007 by the II Addl. Civil Judge (Sr.Dn.,), Bangalore
Rural District, Bangalore2, whereunder the suit for declaration and
permanent injunction filed by the plaintiffs has been dismissed by
the Trial Court.
2. The parties will be referred to as per their ranking
before the Trial Court, for the sake of convenience.
3. It is the case of the plaintiffs that the property bearing
Sy.No.150 measuring a total extent of 6 acres, 18 guntas situated
at Shivakote, Hesaraghatta Hobli, Bangalore North Taluk is a
gomal land and the same was granted under EKSAL to one Sri
Lingappa in the year 1944-45 and the lease was renewed during
the year 1945-46 and 1946-47 under the Grow More Food
Scheme. That the suit property is an extent of 4 acres from the
Hereinafter referred to as the 'CPC'
Hereinafter referred to as the 'Trial Court'
larger extent of 6 acres, 18 guntas in the said Sy.No.150 of
Shivakote village, Hesaraghatta Hobli, Bangalore North Taluk 3.
4. It is the further case of the plaintiff that since the said
Lingappa was not a resident of the said village, he leased the said
land to Sri Muniyappa @ Haalina Muniyappa, who is the father of
the plaintiffs and that the father of the plaintiffs was in
uninterrupted possession over the entire extent of 6 acres, 18
guntas in said Sy.No.150. It is the further case of the plaintiffs
that on 19.3.1949 the original grantee namely, Lingappa entered
into an Agreement of Sale with the father of the plaintiffs agreeing
to sell the total extent of 6 acres, 18 guntas after making katha in
his name and received a sum of `585/- as total sale consideration.
That the grant was not confirmed or renewed after 1946-47 in
favour of Lingappa.
5. That a Mahazar was conducted on 19.5.1952 and
11.6.1952 by the Revenue Inspector and it was found that the
plaintiffs were in possession and enjoyment of an extent of 6
acres, 18 guntas in Sy.No.150. The father of the plaintiffs applied
for grant of the said 6 acres, 18 guntas of land in his name and
the Tahsildar recommended for grant at an upset price of `50/-
Hereinafter referred to as the 'suit property'
per acre. That one Sri Narayanappa and a few others also applied
for grant in the said survey number. That it was recommended
for disposal of the land in a public auction. However, the Revenue
Commissioner, vide Official Memorandum No.C4/ADR 291/1953-
54, dated 6.5.1954 granted the land under the Military Concession
Rules to Sri Narayana Rao Jadhav (Yadav). Being aggrieved,
appeals were filed before the State Government by the father of
the plaintiffs and others. Vide order dated 5.4.1957 passed in
Case No.335 and 335A/55-56 (R. BLR), the Board of Revenue
remanded the case to the Deputy Commissioner for disposal in
accordance with Rule 41(a) & (b) of the Land Revenue Rules,
consequent to which, the Deputy Commissioner in Revenue
Misc.No.132/1956-57, vide order dated 29.10.1957 granted 2
acres, 18 guntas of land to the father of the plaintiff at `50/- per
acre and the remaining 4 acres of land i.e., the suit property was
granted to four persons namely, Sri Narayanappa, Sri Guruva
Bovi, Sri Munithimma and Sri Arasappa at one acre each with a
direction that the said four grantees should pay proper
compensation charges to Sri Muniyappa i.e., the father of the
plaintiffs for improvements effected and that Sri Narayana Rao
Jadhav (Yadav) should select land elsewhere. Being aggrieved,
Muniyappa, the father of the plaintiffs, Lingappa and Narayana
Rao Jadhav (Yadav) preferred appeals before the Divisional
Commissioner in RA Nos.20, 48 and 51 of 1957-58. Vide order
dated 19.5.1958, the Divisional Commissioner dismissed the
appeals of Muniyappa and Lingappa and allowed the appeal of Sri
Narayana Rao Jadhav (Yadav) and granted the land to him under
the Military Concession Rules. Being aggrieved, Sri Muniyappa
and others preferred an appeal before the Mysore Appellate
Tribunal, Bangalore4, in RTLR No.565/1957-58, which vide order
dated 7.1.1959 was disposed of directing that Sri Muniyappa, the
father of the plaintiffs be allotted 2 acres, 18 guntas of land and
the balance be allotted to Sri Narayana Rao Jadhav (Yadav), who
shall compensate Sri Muniyappa for the improvements made in
the land, which compensation shall be determined by the
Tahsildar.
6. It is the further case of the plaintiffs that the Survey
Department after durast gave a new number to the granted land
of 2 acres, 18 guntas in favour of the father of the plaintiffs and
the said property was assigned Sy.No.164, which has till date not
been changed by the revenue authorities. That the Tahsildar
Hereinafter referred to as the 'Tribunal'
assessed the value of the improvements effected by Sri
Muniyappa at `1,000/- and issued several notices to Sri Narayana
Rao Jadhav (Yadav) directing him to pay the amount to the
Treasury and a final notice was issued on 29.2.1964, which has
not been complied with. Hence, it was recommended for
cancellation of the grant. Accordingly, the Divisional
Commissioner passed an order for cancellation of the grant made
in favour of Sri Narayana Rao Jadhav (Yadav). That the
government filed a review petition before the Tribunal against the
order dated 7.1.1959 passed in RTLR No.565/1957-58. That the
said review petition was allowed vide order dated 29.11.1963
passed in Case No.8/1962 and it was ordered that in the event
the father of the plaintiffs, Sri Muniyappa or Sri Narayana Rao
Jadhav (Yadav) not paying the compensation as ordered, the
Government will be at liberty to grant the land under the
provisions of the Mysore Land Revenue Code, 1888.
Subsequently, the grant has been cancelled as per Government
Order No.189 LND 64, dated 21.7.1964 and the land has been
resumed to the Government. That even though the land has been
resumed to the Government, the father of the plaintiffs, Sri
Muniyappa who was in unauthorized occupation of the land i.e.,
the suit property. Vide Office memo No.CD LND 117/C697/1962-
63, dated 14.8.1964, the father of the plaintiffs was ordered to be
evicted and the land was ordered to be disposed of in a separate
public auction and that the direction for payment of amount to Sri
Muniyappa be dealt as a separate issue.
7. It is the further case of the plaintiffs that their father,
vide application filed on 30.9.1964 requested for grant of the suit
property i.e., an extent of 4 acres in Sy.No.150 in his favour
contending, inter alia, that he is in possession of the land for 18
years and has effected improvements in the same. A report was
called for from the Assistant Commissioner, Bangalore on the said
application. It is the further case of the plaintiffs that the
Assistant Commissioner, vide his memo bearing No.B2 LN, DSR
180/60-61, dated 27.1.1965, issued an eviction notice to the
father of the plaintiffs Sri Muniyappa to vacate the land. Being
aggrieved, Sri Muniyappa filed an appeal in PR No.65/64-65
before the Deputy Commissioner, Bangalore Urban District and
vide order dated 10.9.1965, it was ordered that since the father of
the plaintiffs has been in continuous possession and enjoyment of
the suit property including the extent of 2 acres, 18 guntas
granted him (which was renumbered as Sy.No.164), according to
the terms of the Government Order No.78 LND 61, dated
18.5.1961, the said Muniyappa was entitled to claim for grant of
land by virtue of his having been in possession and enjoyment of
the land for over six years prior to 18.5.1961. It was also
observed that the said Muniyappa had improved the land and had
incurred considerable cost.
8. It is the further case of the plaintiffs that the land
which was granted to the father of the plaintiffs i.e., 2 acres, 18
guntas was partitioned between the plaintiffs and their father vide
Partition Deed dated 24.3.1968. That said Muniyappa died in the
year 1969-70 and the plaintiffs being the sons of Muniyappa, were
also in joint possession and enjoyment of the suit property. That
the suit property has been utilized for agriculture and the plaintiffs
have made the land fertile and they are solely depending upon the
suit property for their livelihood. That they are growing various
agricultural crops in the suit property and hence, the same shows
that the plaintiffs were in uninterrupted, hostile, open, continuous
possession and enjoyment of the suit property to the knowledge
of the whole world. That the act of the plaintiffs discloses that
they are in hostile possession of the suit property from the
beginning itself denying the right of the true owner.
9. It is the further case of the plaintiffs that after the
death of their father, they filed an application dated 28.10.2004
before the Assistant Commissioner, Bangalore North Sub Division,
Bangalore, to regularize the above land in favour of the plaintiffs,
but vide endorsement dated 21.10.2005 in RRT (CR)
No.167/2004-05 the same is not regularized on the ground that
the suit property is a government gomal land and the same comes
under the Green Belt Area and the land is situated within 18 kms.,
from the City Municipal Council. It is the case of the plaintiffs that
they have perfected their title by way of adverse possession and
they are in exclusive possession of the suit property for more than
40 years. It is further contended that on 2.1.2007, the Tahsildar,
Bangalore North Taluk (third defendant in the suit), came to the
suit property and threatened to vacate the plaintiffs by cutting the
crops which was resisted. Hence, the plaintiffs filed the suit for
declaration that they are the absolute owners of in possession of
the suit property and for injunction to restrain the defendants or
their henchmen or anybody else from interfering with their
peaceful possession and enjoyment of the suit property.
10. The defendants entered appearance in the suit and
the third defendant i.e., the Tahsildar, Bangalore North Taluk filed
his written statement contesting the case of the plaintiffs. It is
the contention of the defendants that the father of the plaintiffs as
well as the plaintiffs are in unauthorized occupation of the
government land. That the plaintiffs father did not have title to
the suit property and that their application to regularize their
unauthorized occupation has been rejected. Hence, it is
contended that the plaintiffs are not entitled to file the suit
claiming adverse possession as they are not in continuous
uninterrupted possession of the suit property. It was further
contended that vide Mahazar dated 21.5.2007 the possession of
the property has been taken by the defendants and the act of the
defendants who are the government authorities, in taking the
possession on its own does not amount to any illegal act. It is
further contended that the government is the owner of the suit
property and the earlier proceedings have not culminated in a
grant to the plaintiffs' father or his predecessor in title. That the
application for regularization of the unauthorized occupation has
been rejected by the government.
11. The Trial Court consequent to the pleadings of the
parties framed the following issues:
i. "Whether the plaintiffs prove that they are the
absolute owners of the suit schedule property?
ii. Whether the plaintiffs prove that they are in
the possession of the suit property as on the
date of the suit?
iii. Whether the plaintiffs prove the alleged
interference from the defendants?
iv. Whether the plaintiffs are entitle for the relief
of declaration?
v. Whether the plaintiffs are entitle for the relief
of permanent injunction?
vi. What order or decree?"
12. Plaintiff No.1 has been examined as PW.1 and plaintiff
No.2 has been examined as PW.2. PWs.3 to 8 are witnesses
examined on behalf of the plaintiffs. Exs.P1 to P83 have been
marked in evidence. Defendant No.3 - Tahsildar, Bangalore North
Taluk, has been examined as DW.1. Exs.D1 to D6 have been
marked in evidence. The Trial Court, by its judgment and decree
dated 30.1.2010 dismissed the suit. Being aggrieved, the present
appeal is filed.
13. Heard the submissions of learned Senior Counsel Sri
S.Srivatsa appearing along with learned counsel Sri B.Vijay
Shetty, for the appellants and Smt.Saritha Kulkarni, learned HCGP
for the respondents.
14. It is the contention of the learned Senior Counsel for
the appellants/plaintiffs that there is abundant material on record
to demonstrate that the father of the plaintiffs and thereafter the
plaintiffs, have been in continuous and uninterrupted possession
of the suit property along with the extent of 2 acres, 18 guntas of
land which was granted in favour of the father of the plaintiffs. It
is further contended that the said possession being continuous,
uninterrupted and hostile to the true owner, i.e., the government,
the plaintiffs have demonstrated that their possession is adverse
to the true owner and hence, they are entitled to the relief of
adverse possession as claimed by them. It is further contended
that the Trial Court has misdirected itself in dismissing the suit.
Hence, he seeks for allowing the present appeal and for decreeing
the suit.
15. Per contra, learned HCGP appearing for the
respondents/defendants contends that admittedly the possession
of the father of the plaintiffs and the plaintiffs have been
unauthorized and their application to grant the suit property in
their favour has been rejected. It is further contended that the
Bagar Hukum Committee in its meeting has rejected the request
of the plaintiffs for grant of the suit property in their favour. It is
further contended that the plaintiffs are not in possession of the
suit property on 21.5.2007 and on 21.5.2007 the defendants have
taken possession of the suit property from the plaintiffs. It is
further contended that the possession of the father of the
plaintiffs or the plaintiffs prior to the date of the defendants taking
possession can by no stretch of imagination be construed as
adverse possession to the true owner i.e., the government. It is
further contended that the Trial Court has rightly dismissed the
suit filed by the plaintiffs and the judgment and decree of the Trial
Court ought not to be interfered with by this court in the present
appeal. Hence, she seeks for dismissal of the above appeal.
16. Both the learned counsels have relied upon various
judgments, which shall be considered to the extent the same are
necessary for adjudication of the questions that arise for
consideration in the present appeal.
17. The submissions of both the learned counsels have
been considered and the material on record has been perused
including the records of the Trial Court.
18. The questions that arise for consideration are:
i. Whether the plaintiffs have demonstrated that they
have been in possession of the suit property adverse
to the true owner i.e., the government?
ii. Whether the Trial Court was justified in dismissing the
suit?
Re.question Nos.(i) and (ii)
19. It is forthcoming from the order dated 5.4.1957
passed in Case No.335 & 335A/55-56 (RBLR) by the Tribunal
(Ex.P9) that the appeals filed by the father of the plaintiffs and
others, wherein, the case of the father of the plaintiffs who was
the appellant in Appeal No.335/55-56 has been considered and
has been ordered as follows:
"The contention of Muniappa, the appellant in
appeal No. 335/55-56 is that the land in question was
granted to one Dhobi Lingappa on eksal Tenure in the
year 1945 and that the grant was renewed from time to
time. He claims to be the tenant under that grantee.
According to him in 1947 there was an agreement
between the said Lingappa and himself by which former
agreed to sell the land to the appellant for Rs. 585/-. He
claims to hold a stamped receipt passed by the grantee.
Therefore he claims to have cultivated the land for
several years and to have paid TT in respect of that land.
It is on this ground he prays that the land in question be
granted to him. Admittedly Dhobi Lingappa was given the
lease of this land for one year 1945. Although it is alleged
by the appellant that this sale was submitted no evidence
has been brought on record to show that. It is difficult to
accept his oral allegation that lease was so continued
although the same is supported by Lingappa also. The
mere continuation of an agreement to sell in his favour is
also of no avail. For the first time Dhobi Lingappa himself
had no right in the land. Hence he could convey no right
in the land, consequently the appellant could claim no
right as through Lingpappa. Besides what he claims is not
conveyed by any registered deed. In our opinion
appellant got no right and is not entitled to any
preference in the matter of grant of the land. His
possession is clearly unauthorized. He cannot made a
capital out of such a possession. His claim has been
rightly rejected."
(emphasis supplied)
20. However, in the said appeal, it was noticed that the
procedure under Rule 41(a) and (b) has not been followed and it
was ordered as follows:
"........... In our opinion it would be sufficient
compliance of the provisions of rule 41(a) if after the
receipt of the petition the Revenue Commissioner sent it
on to the Amlidar for further action. From the record we
find that his earlier application in respect of Sy.No. 151
was so directed to the Amildar. That procedure should
have been followed when the second application for
Sy.No. 150 was given. The next requirement of clause (b)
is also mandatory. If the application was forwarded to the
Amildar he would have registered it in the register in the
taluka form No. 2. Without availing both these steps the
Revenue Commissioners directly granted the land himself
possibly because he thought that the question availability
of the land was already investigated by the revenue
authorities. Even then we are of opinion that he should
have followed the mandatory provisions of Rule 41(a and
b). We therefore direct that the case may be remanded
for regularizing the procedure. In doing so we wish to
mention that we are not passing any observations against
the grant of the land to the respondent (2) on merit. We
keep that question open for consideration by the revenue
authorities when the case goes back on remand.
The appeals are partly allowed in that the question
of grant in favour of respondent be reconsidered on
remand after following proper procedure. So far as the
claim of the appellants in both the cases are concerned,
they are rejected. After following the procedure the
revenue authorities are free to dispose of the land
according to law."
(emphasis supplied)
21. Subsequent to the order dated 5.4.1957, the Deputy
Commissioner vide order dated 29.10.1957 passed an order
granting 2 acres, 18 guntas of land to the father of the plaintiffs
and remaining 4 acres to others, which was the subject matter of
order dated 19.5.1958 passed by the Divisional Commissioner.
Subsequently, the father of the plaintiffs preferred case No.RTLR
565/57-58 and four others preferred LR No.155/58 before the
Tribunal. Vide order dated 17.1.1959 (Ex.P10), the Tribunal after
noticing the order of the Mysore Board of Revenue held as follows:
"These observations do not amount to rejection of
the claims of the appellants once for all as contended for
the respondent. The Board has specifically observed that
the appeals are partly allowed in that the question of
grant in favour of the respondent has to be reconsidered
on remand. Accordingly when the matter came up before
the Deputy commissioner, he has taken into consideration
the claims of all the 5 appellants and also of the
respondent. But on the ground that the 5 appellants in
these two appeals were earlier applicants, the entire
extent of Survey Number has been distributed among
them ignoring the claim of the respondent. But the
learned Divisional Commissioner in appeal has ignored
the claim of all the applicants and granted entire extent of
6A-18G to the respondent. We are afraid that both the
authorities have not looked into the equities of the case
and the Deputy commissioner was not, in our opinion,
right in ignoring the claim of the respondent once for all.
At the same time Muniappa is the first of these two
appeals cannot also be denied even a portion of the
survey Number though his claim is for the entire survey
Number.
4. Muniappa the appellant in App. RTLR. 565/57-8 has
been in possession of the survey Number from 1945-6
having entered into an agreement with Dhobi Lingappa
and also having parted with a large sum of Rs.585/- to
acquire owner-ship in the land, he is the earlier applicant
for the survey Number. Under these circumstances, we
consider that the grant of 2A-18G of land out of survey
Number to this appellant, as ordered by the Deputy
commissioner, is just and equitable. But so far as the
distribution of the remaining 4 acres at one acre to each
of the appellants in the second appeal, we do not think it
is a just distribution, and that they should be preferred to
the respondent who is an Ex-Service man and who is to
be provided with land in recognition of his service in the
army. The learned Divisional commissioner, in our opinion
should not have ignored, the claim of Muniappa who is
said to have effected improvements on the land after he
came into the possession of the land through Dhobi
Lingappa. The Distribution of 4 acres among the
appellants in appeal 155/58 at one acre to each will serve
no purpose as each one is granted a small extent and it
would not be of much benefit to them. The 4 appellants
S.R. Narayanappa, Munithimmiah, Guruva Boyi and
Arasappa may apply for land elsewhere and the 4 acres of
land granted to these four appellants shall be granted to
the respondent Narayana Rao yadav, who is ex-service
man. This in our opinion would be a fair, just and
equitable distribution of the small extent of 6A-18G of
land available and accordingly we direct that Muniappa
the appellants shall be allotted 2A-18G of land out of the
survey Number and the balance shall be allotted to the
respondent Narayana Rao Yadav who shall also
compensate the appellants Muniappa for any
improvements he might have effected when the land was
in his possession and which has to be determined by the
Tahsildar in this behalf.
5. In the Result, appeal 565/57-8, Muniappa is partly
allowed as he has been granted only a portion of the
survey number, and appeal 155/58 is dismissed."
(emphasis supplied)
22. Subsequently, the State of Mysore represented by the
Deputy Commissioner, Bangalore, preferred Review Petition
No.8/62 before the Mysore Revenue Appellate Tribunal to review
the order dated 7.1.1959 passed in RTLR 565/57-58 i.e., the
appeal preferred by the father of the plaintiffs. Vide order dated
29.11.1963 (Ex.P12) the said review petition was allowed and
ordered as follows:
"6. ............ What he makes is that, as he has spent a
large amount on the improvement of the entire land, it
would be fair that, in the event of the second-
respondent being unable to pay the compensation
ordered, he (respondent No.1) should be granted the
land rather than the Government be enabled to resume
it. We do not think it is right for us here to grant
respondent No. 1's request. The right given to the
government to resume the land does not debar
respondent No. 1 from moving the proper Revenue
Authority for a grant of that land, and if and when such
an application comes to be made, it will be for that
authority to decide - whether the grant should or should
not be made.
7. The second point made by respondent No. (1) is that
the Tribunal, in para 4 of it judgment, has observed that
"respondent No.2 shall also compensate Muniappa for
any improvements he might have effected when the land
was in his possession and it has to be determined by the
Tahsildar in this behalf, " and he (respondent No.1) fears
that he may not be able to get this compensation in the
event of government resuming the land. We may at once
say that this fear is wholly unfounded. whether
respondent No.2 gets the land or the government
resumes it, it will always be open to respondent No.1 to
move the Tahsildar for the compensation aforesaid. The
State Representative also, with commendable fairness, in
argument before us, has alleged respondent No. 1's
apprehension in this behalf.
8. In these circumstances and for these reasons, the
petition is allowed. At the end of para 5 of the Tribunal
order dated the 17th January 1953, in RTLR NO.565/57-
58, the following will be added:-
"In the event of either Appellant Muniappa or the
Respondent Narayana Rao yadav not paying the
compensation ordered, the government will be at liberty
to resume the grant under the provisions of the Mysore
Land Revenue Code, 1888, and the Rules made
thereunder."
(emphasis supplied)
23. It is also relevant to notice that the Deputy
Commissioner, Bangalore Urban District, Bangalore, in Appeal
No.PR 65/64-65 filed by the father of the plaintiff noticed that
pursuant to the order dated 29.11.1963 (Ex.P12) Sri Narayana
Rao Jadhav (Yadav) not having paid the improvements,
recommended that the grant made in favour of said Sri Narayana
Rao Jadhav (Yadav) be cancelled and accordingly, vide GO No.189
LND 64, dated 21.7.1964 the grant was cancelled and the land
was resumed to the government. Thereafter, it was ordered as
follows:
"Since the land has been resumed to Government
Sri. Muniyappa who is in unauthorised occupation of land
was ordered to be evicted and the land disposed of in
public auction with direction that the question of payment
of compensation to Sri. Muniyappa may be dealt as a
separate issue as per this office memo No. CDis LND
117.0697/62-63 dated 14-8-1964. Sri. Muniyappa has
presented an application to the office through his counsel
on 30-9-1964 requesting for grant of 4 acres of land in
his favour. As the petitioner urged in his petition that he
is in possession of the land for the last 18 years and he
has effected improvements, a detailed repot was called
for from the Assistant Commissioner Bangalore Sub
Division and the several points urged in the petition (vide
this office letter No. LND 220/64-65 dated 22-10-1964)
The assistant Commissioner Bangalore Sub-Division
in his Memo No. B2 BN-BSR 180/60-61 dated 27-1-1965
has issued eviction notice to the appellant to vacate the
land. It is against the above order of the Assistant
Commissioner that the appellant has come up in appeal
to this court.
ORDER
I have heard the learned counsel for the appellant and
perused the records. The land has been resumed to
Government and is now Government land available for
disposal under the land grant rules 1960. The appellant
has been in possession and enjoyment of the entire
survey number measuring 6 acres 18 guntas from the
year 1946-47. Out of this land, he has been granted an
extant of 2 acres, 18 guntas of land and the remaining
extent was granted to Sri. Narayana Rao Jadav. As Sri
Narayan Rao Jadav did not pay the compensation as
ordered by the Mysore Revenue Appellant tribunal inspite
of service of notices on him the grant of 4 acres of land
made in his favour has been cancelled. The land has been
resumed to Government and is available for disposal
under the land grant rules. The Appellant has been
continuously enjoying this portion of the survey number
also through out inspite of this portion having been
granted to Narayana Rao Jadav. Accordingly to the terms
of the Government order RD 78 LND 61/ dated 18-5-1961
the appellant is entitled to claim grant of the land to him
by virtue of his having been in possession and enjoyment
of the land for a period of over 6 years prior to 18-5-
1961. The records reveal that he has improved this land
at considerable expense. This is why the Revenue
Commissioner and the Mysore Revenue Appellant Tribunal
ordered that Sri. Narayana Rao Jadav the grantee of 4
acres 18 guntas of lands should compensate him for the
expenditure incurred by him to improve the land. The
appellant is prepared to forgo his claim for compensation
if the land is granted to him. He claims that he is an
insufficient holder and is entitled to the grant of this land.
The records are therefore returned to the Assistant
Commissioner to examine and submit suitable proposals
if he finds that the appellant is really an insufficient holder
as contended by him and is entitled to the grant of this
land under the Lands Grant Rules. With this direction the
appeal is allowed and the records returned to the
Assistant Commissioner for further action."
(emphasis supplied)
24. It is relevant to note here that although the father of
the plaintiffs claimed to be in possession of the entire extent of 6
acres, 18 guntas in Sy.No.150, vide order dated 17.1.1959
(Ex.P10) the father of the plaintiffs was granted 2 acres, 18
guntas of land from out of the said Sy.No.150 which has been
subsequently assigned Sy.No.164. Hence, the suit property in the
present suit is only an extent of 4 acres in the said Sy.No.150.
The said extent of 4 acres i.e., the suit property was ordered to
be granted to Narayana Rao Jadhav (Yadav), vide order dated
29.11.1963 (Ex.P12) passed by the Tribunal and it was also
ordered that in the event said Narayana Rao Jadhav (Yadav) did
not pay the compensation towards the improvements made, the
government would be at liberty to cancel the said grant, which it
has done vide GO No.189 LND 64, dated 21.7.1964. Hence, the
land has been resumed by the government.
25. It is the contention of the plaintiffs that the father of
the plaintiffs and thereafter the plaintiffs have been in
unauthorized occupation of the land and hence, the said
unauthorized occupation is animus to the true owner i.e., the
government and hence, the plaintiffs are entitled to the
declaration as sought for. However, it is relevant to note that
although it is the contention of the plaintiffs that their father and
thereafter they have been in possession of the land, the plaintiffs
have failed to aver any specific date from which they were in
possession of the land by claiming to be the owner of the said
land and hence, the "animus" to possess the land as owners was
made known to the true owner i.e., the government.
26. On the contrary, it is relevant to note that the
plaintiffs made an application on 28.10.2004 to the Assistant
Commissioner, Bangalore North Sub Division, Bangalore, to
regularize the land in their favour. Hence, it is clear from the said
act of the plaintiffs, that they have never possessed the land by
claiming themselves to be the owners and by demonstrating the
said "animus" to the true owner i.e., the government.
27. At this juncture, it would be relevant to notice the law
regarding adverse possession. Although both the learned counsels
relied upon various judgments, it is suffice to notice the following
judgments wherein, the position of law is clear and forthcoming.
27.1. A three judge bench of the Hon'ble Supreme Court in
the case of Ravinder Kaur Grewal v. Manjit Kaur 5 has held
that a person is entitled to sue for a declaration that he is the
owner by way of adverse possession and the said adverse
possession is not merely entitled to be used as a shield or a
defence. Further, the Hon'ble Supreme court has held as follows:
"60. The adverse possession requires all the three
classic requirements to co-exist at the same time,
namely, nec vi i.e. adequate in continuity, nec clam i.e.
adequate in publicity and nec precario i.e. adverse to a
competitor, in denial of title and his knowledge. Visible,
notorious and peaceful so that if the owner does not take
care to know notorious facts, knowledge is attributed to
him on the basis that but for due diligence he would
have known it. Adverse possession cannot be decreed on
a title which is not pleaded. Animus possidendi under
hostile colour of title is required. Trespasser's long
possession is not synonymous with adverse possession.
Trespasser's possession is construed to be on behalf of
the owner, the casual user does not constitute adverse
possession. The owner can take possession from a
trespasser at any point in time. Possessor looks after the
property, protects it and in case of agricultural property
by and large the concept is that actual tiller should own
the land who works by dint of his hard labour and makes
the land cultivable. The legislature in various States
confers rights based on possession."
(emphasis supplied)
(2019) 8 SCC 729
27.2. The Hon'ble Supreme Court in the case of
Government of Kerala v. Joseph6 has traced the history of law
regarding adverse possession and has held as follows:
"21. Before proceeding to do so, it is essential to take
note of the law governing such a claim. After a perusal
and consideration of various judgements rendered by this
Court, the following principles can be observed : ......
21.1 Possession must be open, clear, continuous and
hostile to the claim or possession of the other party; all
three classic requirements must coexist- nec vi, i.e.,
adequate in continuity; nec clam, i.e., adequate in
publicity; and nec precaro, i.e., adverse to a competitor,
in denial of title and knowledge; .....
21.2 The person claiming adverse possession must show
clear and cogent evidence to substantiate such claim;
...........
21.3 Mere possession over a property for a long period of
time does not grant the right of adverse possession on its
own; ..........
21.4 Such clear and continuous possession must be
accompanied by animus possidendi - the intention to
possess or in other words, the intention to dispossess the
rightful owner; ............
21.5 Such a plea is available not only as a defence when
title is questioned, but is also available as a claim to a
person who has perfected his title; ..........
21.6 Mere passing of an ejectment order does not cause
brake in possession neither causes his dispossession;
21.7 When the land subject of proceedings wherein
adverse possession has been claimed, belongs to the
Government, the Court is duty-bound to act with greater
seriousness, effectiveness, care and circumspection as it
AIR 2023 SC 3988
may lead to Destruction of a right/title of the State to
immovable property. .....
21.8 A plea of adverse possession must be pleaded with
proper particulars, such as, when the possession became
adverse. The court is not to travel beyond pleading to
give any relief, in other words, the plea must stand on its
own two feet. ......
21.9 Claim of independent title and adverse possession at
the same time amount to contradictory pleas. ...........
21.10 Burden of proof rests on the person claiming
adverse possession. ............
21.11 The State cannot claim the land of its citizens by
way of adverse possession as it is a welfare State. ...."
(emphasis supplied)
28. It is clear from the aforementioned, that the plea of
adverse possession is not only available as a defence when title is
questioned, but also available as a claim to a person who has
perfected his title. However, the person claiming adverse
possession must show clear and cogent evidence to substantiate
such claim that the possession must be clear and continuous and
must be accompanied by "animus possidendi" i.e., the intention to
dispossess the rightful owner. It is further clear that mere
possession over a property for a long time does not grant the
right of adverse possession of its owner. That in order to claim
adverse possession the possessor should hold the property and
must hold the same adverse to the title to the true owner for the
said purpose. Hence, the person claiming adverse possession
should specifically plead and prove the date on which he came in
possession of the property, the nature of possession as well as the
knowledge to the true owner as also the duration of such
possession.
29. In the present case, although the plaintiffs have
averred that their predecessors and subsequently, they have been
in possession of the suit property, there is neither plea nor proof
as to the date on which they asserted their possession hostile to
that of the true owner i.e., the defendants/the government and
thereafter, the period of time when they continued in possession
adverse to that of the true owner. It is also clear that the burden
of proof rests on the person claiming adverse possession.
Further, though the plaintiffs have claimed that their predecessors
and subsequently they have been in continuous possession of the
suit property, they have failed either to plead or prove the date
from which they have remained in possession adverse to that of
the true owner i.e., the government. On the contrary, not only
have they admitted position that their possession is unauthorized,
they have continued to request the government to grant them the
property/land as is forthcoming from the application dated
28.10.2004, which request has admittedly not been favourably
considered.
30. It is further relevant to note that it is the specific
contention of the learned HCGP appearing on behalf of the
defendants that the grant was cancelled as is forthcoming from
the proceedings dated 7.6.2002 of the Bagar Hukum Saguvali
Sabe (Ex.D1). It is further relevant to note that the defendants
have specifically contended that they have taken possession of the
suit property on 21.5.2007 itself as is forthcoming from Ex.D5.
31. The Trial Court while considering the case of the
plaintiffs has noticed that the father of the plaintiffs who was
granted 2 acres, 18 guntas in Sy.No.150 and the remaining 4
acres (i.e., the suit property) is government land. Further, the
Trial Court, noticing Exs.P1 to P31 has recorded a finding that the
said documents are the RTC extracts pertaining to the property
measuring 2 acres, 21 guntas in Sy.No.150 and that Ex.P32 is the
RTC pertaining to the suit property and it is in the name of the
government as on 2006-2007. The Trial Court has further noticed
that Exs.P36 to P53 are tax paid receipts and that the said
receipts are not pertaining to the suit property. The Trial Court
has further held that all other revenue documents produced by
the plaintiffs are not pertaining to the suit property.
32. The Trial Court has also meticulously scrutinized the
oral evidence adduced by both the parties.
33. It is further relevant to note that the Tahsildar
(defendant No.3) has examined himself as DW.1 and he has
specifically deposed that the application submitted by the plaintiffs
for regularization of the unauthorized cultivation has been
rejected as the suit property comes under the Green Belt Area
within 18 kms., of the City Municipal Council. It is further
relevant to note that the certified copy of the Bagar Hukum
Sakrama Committee meeting held on 7.6.2002 has been marked
as Ex.D1. Ex.D5 is the certified copy of the letter issued by the
Tahsildar disclosing that 4 acres of land in Sy.No.150 have been
taken possession by the government. Hence, Ex.D5 ie., certified
copy of the letter issued by the Tahsildar stating that there was no
objection from the villagers to auction 4 acres of land in
Sy.No.150 has also been noticed. The Trial Court has further
noticed that the plaintiffs are not denying the auction proceedings
conducted in respect of the suit property. Hence, the Trial Court
has recorded a finding that the plaintiffs are not in uninterrupted
possession of the suit property. Further, it was held that Exs.D3
to D5 substantiates the testimony of DW.1 that the government
has taken possession of the suit property from the plaintiffs.
34. It is clear and forthcoming from the aforementioned
that the appellants have miserably failed to demonstrate that they
are entitled to seek for a declaration as sought for in the plaint on
the basis that they are in adverse possession of the suit property.
Further, the appellants have failed in demonstrating that the
findings of the Trial Court are in any manner erroneous as being
contrary to any specific oral or documentary evidence on record.
35. In view of the aforementioned, question Nos.(i) and
(ii) framed for consideration are answered in the negative.
36. Having regard to the discussion made above, the
appeal filed by the appellants is dismissed with costs.
SD/-
(S.G.PANDIT)
JUDGE
SD/-
(C.M. POONACHA)
JUDGE
nd/-
