Allowed

Sri.Ramaiah v. the Chief Secretary

Karnataka HC3 Jun 2022RFA/1007/2021

Case brief

AI extract

What is this about?

Regular first appeal against dismissal of a suit for declaration and permanent injunction over temple inam land. The plaintiff claimed ownership by adverse possession since his 1960 purchase. The court found his possession open, continuous and hostile for over thirty years, held the land was not public utility land, set aside the trial court's judgment and decreed the suit.

What did the court decide?

Judgment and decree dated 04.09.2021 set aside; suit decreed declaring the plaintiff owner of the schedule property by adverse possession, with permanent injunction restraining the defendants from int

Sri.Ramaiah Vs the Chief Secretary — Property and Title | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 03^RD DAY OF JUNE 2022

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BEFORE

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THE HON’BLE MR. JUSTICE M.I.ARUN

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REGULAR FIRST APPEAL No.1007 OF 2021 (DEC-INJ)

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BETWEEN:

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SRI.RAMAIAH SON OF DASARA CHIKKA HOTTENNA @ HOTTEPPA AGED ABOUT 70 YEARS RESIDENT OF PANATHUR VILLAGE AND POST VARTHUR HOBLI BANGALORE EAST TALUK BANGALORE 560 103 ... APPELLANT

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(BY SRI.HARISH H. V., ADV.)

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AND:

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1 . THE CHIEF SECRETARY GOVERNMENT OF KARNATAKA VIDHANA SOUDHA BANGALORE 560 001

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2 . THE DEPUTY COMMISSIONER BANGALORE URBAN DISTRICT D C COMPOUND, KEMPEGOWDA ROAD BANGALORE 560 009

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3 . THE ASSISTANT COMMISSIONER BANGALORE NORTH SUB DIVISION VISVESHWARAIAH TOWER BANGALORE 560 001

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4 . THE TAHSILDAR BANGALORE EAST TALUK KRISHNARAJAPURAM BANGALORE 560 016 ... RESPONDENTS

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(BY SRI.SUBRAMANYA R., AAG A/W SRI.SRINIVAS GOWDA R., AGA FOR R1 TO R4)

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THIS RFA FILED UNDER SECTION 96(1) OF THE CPC, AGAINST THE JUDGMENT AND DECREE DATED 04.09.2021 PASSED IN O.S.NO.25232/2008 ON THE FILE OF THE XXVI ADDITIONAL CITY CIVIL JUDGE, MAYO HALL, BANGALORE, DISMISSING THE SUIT FOR DECLARATION AND INJUNCTION.

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THIS RFA HAVING BEEN HEARD AND RESERVED ON 20.04.2022 FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, M.I.ARUN J., DELIVERED THE FOLLOWING:

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J U D G M E N T

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Aggrieved by the judgment and decree passed in O.S.No.25232/2008 dated 04.09.2021 by the XXVI

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Additional City Civil Judge at Mayohall, Bangalore (CCH-20), plaintiff therein has preferred this appeal.

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For the sake of convenience, parties are referred to as per their status before the trial Court.

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The case of the plaintiff is that 1 acre 38

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guntas of land in Sy.No.5 of Bhoganahalli Village,

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Varthur Hobli, Bengaluru East Taluk was granted in favour of the Poojari/Archak of Sri.Muthurayaswamy Temple by the Special Deputy Commissioner for Inam Abolition, Bengaluru vide order dated 16.07.1958. The said Archak sold the land in favour of the plaintiff as per the sale deed dated 01.10.1960 and the plaintiff in turn sold the same in favour of one Nazeer in the year 1966. But however, he repurchased the same from the same Nazeer in the year 1967 and he has been in continuous possession of the same since the date of the first purchase on 01.10.1960 without any hindrance or interference and he contends that he has become owner of the property by way of adverse possession. It is further submitted that some of the villagers in order to knock off the property filed a false suit in O.S.No.626/2003 which was renumbered as O.S.No.280/2004. The 2^nd defendant in order to harass

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the plaintiff has tried to interfere and disrupt the possession of the plaintiff and hence for the said

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reasons, the plaintiff filed the aforementioned suit with the following reliefs:-`

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(i) “To declare that the plaintiff is the owner of schedule property acquired by way of adverse possession and continues in possession of the suit property right from 1960.

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(ii) To grant an order of permanent injunction restraining the defendants from taking any decisions and from dispossessing the plaintiff from the suit schedule property in any manner either by defendants or from their agents, servants or any persons claiming through under them..

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(iii) To grant any other relief or reliefs as this Hon’ble court deems fit pass under the circumstances of this case.”

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The said original suit went uncontested and

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hence, the same was allowed by judgment and decree dated 12.10.2011. The same was challenged by the defendants in RFA No.126/2013 and this Court by its order dated 06.01.2021 was pleased to remand the

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matter back to the trial Court permitting the defendants to file the written statement and contest the suit.

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Thereafter, all the defendants being the State filed the written statement through defendant No.4 wherein, it is contended that the land in question was granted in favour of Sri.Muthurayaswamy Temple and not in favour of the Archak and the alienation of the property in favour of the plaintiff by the Archak of the temple was illegal and that the plaintiff has failed to prove his adverse possession and on the said ground the defendants prayed for dismissal of the original suit.

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Based on the pleadings, the trial Court framed

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the following issues:-

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(i) Whether the plaintiff proves that the occupancy right had been granted in respect of the suit schedule land in favour of one Dasappa-Priest of Sri. Muthurayaswamy Temple of

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Bhoganahalli village by the Spl.Deputy Commissioner for Inam Abolition?

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(ii) Whether the description of the schedule property is correct?

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(iii) Whether the plaintiff proves that he has purchased the suit schedule land from his predecessor-in-title as averred at para-3 of the plaint?

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(iv) Whether the plaintiff proves that he was in possession of the suit schedule property as on the date of the suit?

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(v) Whether the plaintiff proves that he has acquired title to the suit schedule property by way of adverse possession against the defendants?

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(vi) Whether the plaintiff is entitled to the declaration and permanent injunction as sought for?

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(vii) What order or decree?

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The plaintiff to prove his case has examined

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three witnesses and got marked Exs.P.1 to P.48. The defendants have examined one witness and got marked

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Exs.D.1 to D.10.

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Based on the pleadings and evidence let in,

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the trial Court has answered the aforementioned issues

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in the following manner:-

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Issue No.1: In the Negative Issue No.2: In the Affirmative. Issue No.3: In the Negative. Issue No.4: In the Negative. Issue No.5: In the Negative. Issue No.6: In the Negative. Issue No.7: As per final order.

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The trial Court has dismissed the suit. Aggrieved

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by the same, the plaintiff has preferred this appeal.

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As a Court of First Appeal, I have examined

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the pleadings and evidence let in before the trial Court. The question that arises for consideration in the instant appeal is:-

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Whether the trial Court erred in concluding that the plaintiff has failed to establish his title to the property by way of adverse possession?

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Ex.D.7 is the Certified copy of the order sheet in INM Case No.149/1957-58. It reads as

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under:-

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“16-7-58 Order

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Under Section 10 of the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954.

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S.No.5: This is a sthal inam granted by the inamdar in favour of Sri.Muthurayaswami temple of this village and has to be regarded as a religious inam although it is not recognized in the quit rent register. Therefore the above land is registered in favour of the temple under section 4 of the Act, Dasappa the priest being allowed to enjoy the land as Poojari as long as he performs the temple duties.”

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The above document is not in dispute. It establishes the fact that the land in question is granted in favour of Sri.Muthurayaswamy Temple with the Poojari being allowed to enjoy the land as long as he performs the temple duties. The owner of the land is the temple and not the Poojari.

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Ex.P.1 is the certified copy of the sale deed

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dated 01.10.1960 by which the Archak of the temple sold the property in favour of the plaintiff herein and the plaintiff was put in possession of the property. The said sale deed is not in dispute. Ex.P.2 is the certified copy of the sale deed dated 13.07.1966 by which the plaintiff sold the property in favour of one Nazeer and Ex.P.3 is the sale deed dated 24.02.1967 by which, the plaintiff purchased back the property from the said Sri.Nazeer. Above said sale deeds are not in dispute.

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Ex.P.5 and 6 are the RTC for the years 1969-

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70 to 1981-82 which records in Column No.11 that the property has been sold to the plaintiff herein. Ex.P.4 is the mutation register and M.R.23/88-89 records that the plaintiff has purchased the property by registered sale deed bearing No.2939 dated 10.10.1960. Thereafter, the name of the plaintiff is found in Column

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No.9 of RTC continuously. The aforementioned documents are also not in dispute.

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When this was the position, the Special Deputy Commissioner, Bengaluru District in RRT (2) CR.22/ 2006-2007 initiated proceedings against the plaintiff and his vendor Dasappa and concluded that the land was allotted to Sri.Muthurayaswamy Temple and that the said Dasappa had no right to alienate the land and the land being the Government land, being violated illegally by the said Dasappa by way of selling the same in favour of plaintiff, has passed an order resuming the land to Government, free from all encumbrances by evicting those who are in possession. The said order is produced as Ex.P.43. The order passed by the Special Deputy Commissioner was challenged by the plaintiff in W.P.No.9983/2009. This Court while refusing to interfere with the order passed by the Special Deputy Commissioner also taking into consideration that

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O.S.No.25232/2008 was already pending, has observed

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as follows:-

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“6. Be that as it may, even as pointed out by the learned AGA if in terms of Section 10 (3) of the Inams Abolition Act, 1977, the land had vested in the state government then the revenue entry to show this legal position cannot be characterized as one illegal or lacking in jurisdiction. However, it is made clear that the view expressed by the Deputy Commissioner one way or the other is neither conclusive nor binds a civil court. It is open to the petitioner to approach the Civil Court and seek suitable relief.”

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The aforementioned order passed by the Special Deputy Commissioner and the order passed in W.P.No.9983/2009 are not in dispute.

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On the strength of the observations made in W.P.No.9983/2009, also, the plaintiff has sought to contest O.S.No.25232/2008 wherein, he has sought to

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perfect his title to the property by way of adverse possession.

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The plaintiff has examined himself as PW-1 and has deposed in his examination–in–chief that he first purchased the property in question by a sale deed dated 01.10.1960 and since then he has been continuous unhindered possession of the property to the best knowledge of defendants and other general public and villagers. He has deposed that he has got the necessary revenue documents mutated in his name and has paid up to date tax and that he has been in continuous possession for 47 years without any hindrance or interference. He has stated, though he had initially sold the property to Nazeer in 1966 and repurchased the same in 1967, he never parted possession of the property.

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He has been subjected to cross-examination and his evidence in so far as it relates to his possession

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of the property being continuous and unhindered from past 47 years, adverse to the interest of the true owner has not been impeached.

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PW-2 is the adjacent land owner of the property in question. He has supported the case of the plaintiff and has categorically stated that the plaintiff is in enjoyment of the suit schedule property since 01.10.1960 continuously without any interference or hindrance and that the possession of the plaintiff is to the knowledge of the defendants and other villagers from that time. The defendants for reasons best known to them have not cross-examined him.

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PW-3 is also an erstwhile owner of another adjacent property and he has also deposed similarly as PW-2 and he has also not been cross-examined.

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The deposition of the aforementioned witnesses and the exhibits mentioned above clearly establishes the possession of the plaintiff in respect of

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the suit schedule property being adequate in continuity, adequate in publicity, adverse to the defendants in denial of their title and in their knowledge. Further, the order passed by the Special Deputy Commissioner at Ex.P-43 by which he has sought to resume the land to the Government free from all encumbrances by evicting those who are in possession shows that the plaintiff was in possession as on the date of passing of the order and it is not the case of the defendants that the said order has been implemented.

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Defendants have examined defendant No.4, the jurisdictional Tahsildar as DW-1. He has no personal knowledge about the property concerned and his knowledge is based on the records available with the defendants and based on the same has deposed that the plaintiff does not have adverse possession over the same. However, in the cross-examination he admits the sale deed dated 01.10.1960 and the RTCs,

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mutation entries and the krishi pass book reflecting the name of the plaintiff as the owner of the property.

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Section 27 of the Limitation Act, reads as

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under:-

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“Extinguishment of right to property.- At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.”

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Article 112 of the Limitation Act, 1963, reads

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as under:-

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Description of Suit	Period of Limitation	Time from which period begins to run
112. Any suit (except a suit before the Supreme Court in the exercise of	Thirty Years	When the period of limitation
its original jurisdiction)		would
by or on behalf of the		begin to
Central Government or		run under
any State Government,		this Act
including the		against a
Government of the State of Jammu and Kashmir.		like suit by a private person.

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Section 27 of the Limitation Act provides that on the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. It means, if the suit is not filed within the period of limitation prescribed, then not only the period of limitation comes to an end, but, his right will also come to an end and it stands extinguished.

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For a suit to be filed by a State Government,

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as in the instant case, the period of limitation as per Article 112 of the Limitation Act, 1963 is 30 years.

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The Hon’ble Supreme Court in the case of R.Hanumaiah and another vs. Secretary to Government of Karnataka, Revenue Department

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and others reported in (2010) 5 SCC 203, at paragraph Nos.19 to 23 has held as under:-

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“Nature of Proof required in suit for declaration of title against the Government.

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19. Suits for declaration of title against the government, though similar to suits for declaration of title against private individuals differ significantly in some aspects. The first difference is in regard to the presumption available in favour of the government. All lands which are not the property of any person or which are not vested in a local authority, belong to the government. All unoccupied lands are the property of the government, unless any person can establish his right or title to any such land. This presumption available to the government, is not available to any person or individual. The second difference is in regard to the period for which title and/or possession have to be established by a person suing for declaration of title. Establishing title/possession for a period exceeding twelve years may be adequate to establish title in a declaratory suit against any individual. On the other hand, title/possession for a period exceeding thirty years will have to be established to succeed in a declaratory

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suit for title against government. This follows from Article 112 of Limitation Act, 1963, which prescribes a longer period of thirty years as limitation in regard to suits by government as against the period of 12 years for suits by private individuals. The reason is obvious. Government properties are spread over the entire state and it is not always possible for the government to protect or safeguard its properties from encroachments. Many a time, its own officers who are expected to protect its properties and maintain proper records, either due to negligence or collusion, create entries in records to help private parties, to lay claim of ownership or possession against the government. Any loss of government property is ultimately the loss to the community. Courts owe a duty to be vigilant to ensure that public property is not converted into private property by unscrupulous elements.

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20. Many civil courts deal with suits for declaration of title and injunction against government, in a casual manner,

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ignoring or overlooking the special features relating to government properties. Instances of such suits against government being routinely decreed, either ex parte or for want of proper contest, merely acting upon the oral assertions of plaintiffs or stray revenue entries are common. Whether the government contests the suit or not, before a suit for declaration of title against a government is decreed, the plaintiff should establish, either his title by producing the title deeds which satisfactorily trace title for a minimum period of thirty years prior to the date of the suit (except where title is claimed with reference to a grant or transfer by the government or a statutory development authority), or by establishing adverse possession for a period of more than thirty years. In such suits, courts cannot, ignoring the presumptions available in favour of the government, grant declaratory or injunctive decrees against the government by relying upon one of the principles underlying pleadings

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that plaint averments which are not denied or traversed are deemed to have been accepted or admitted.

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21. A court should necessarily seek an answer to the following question, before it grants a decree declaring title against the government : whether the plaintiff has produced title deeds tracing the title for a period of more than thirty years; or whether the plaintiff has established his adverse possession to the knowledge of the government for a period of more than thirty years, so as to convert his possession into title. Incidental to that question, the court should also find out whether the plaintiff is recorded to be the owner or holder or occupant of the property in the revenue records or municipal records, for more than thirty years, and what is the nature of possession claimed by the plaintiff, if he is in possession – authorized or unauthorized; permissive; casual and occasional; furtive and clandestine; open, continuous and hostile; deemed or implied (following a title).

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22. Mere temporary use or occupation without the animus to claim ownership or mere use at sufferance will not be sufficient to create any right adverse to the Government. In order to oust or defeat the title of the government, a claimant has to establish a clear title which is superior to or better than the title of the government or establish perfection of title by adverse possession for a period of more than thirty years with the knowledge of the government. To claim adverse possession, the possession of the claimant must be actual, open and visible, hostile to the owner (and therefore necessarily with the knowledge of the owner) and continued during the entire period necessary to create a bar under the law of limitation. In short, it should be adequate in continuity, publicity and in extent. Mere vague or doubtful assertions that the claimant has been in adverse possession will not be sufficient. Unexplained stray or sporadic entries for a year or for a few years will not be sufficient and should be ignored.

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23. As noticed above, many a time it is possible for a private citizen to get his name entered as the occupant of government land, with the help of collusive government servants. Only entries based on appropriate documents like grants, title deeds etc. or based upon actual verification of physical possession by an authority authorized to recognize such possession and make appropriate entries can be used against the government. By its very nature, a claim based on adverse possession requires clear and categorical pleadings and evidence, much more so, if it is against the government. Be that as it may.”

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The Hon’ble Supreme Court in the case of

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Ravinder Kaur Grewal and others vs. Manjith Kaur

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and others reported in (2019) 8 SCC 729, at paragraph Nos.51, 52, 53, 60 and 63 has held as under:-

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“51. The statute does not define adverse possession, it is a common law concept, the

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period of which has been prescribed statutorily under the law of limitation Article 65 as 12 years. Law of limitation does not define the concept of adverse possession nor anywhere contains a provision that the plaintiff cannot sue based on adverse possession. It only deals with limitation to sue and extinguishment of rights. There may be a case where a person who has perfected his title by virtue of adverse possession is sought to be ousted or has been dispossessed by a forceful entry by the owner or by some other person, his right to obtain possession can be resisted only when the person who is seeking to protect his possession, is able to show that he has also perfected his title by adverse possession for requisite period against such a plaintiff.

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52.Under Article 64 also suit can be filed based on the possessory title. Law never intends a person who has perfected title to be deprived of filing suit under Article 65 to recover possession and to render him remediless. In case of infringement of any other right attracting any other Article such as in case the land is sold away by the owner after the extinguishment of his title, the suit can be filed by a person who has perfected

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his title by adverse possession to question alienation and attempt of dispossession.

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53.Law of adverse possession does not qualify only a defendant for the acquisition of title by way of adverse possession, it may be perfected by a person who is filing a suit. It only restricts a right of the owner to recover possession before the period of limitation fixed for the extinction of his rights expires. Once right is extinguished another person acquires prescriptive right which cannot be defeated by re-entry by the owner or subsequent acknowledgment of his rights. In such a case suit can be filed by a person whose right is sought to be defeated.

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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

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title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser’s long possession is not synonym 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.

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63. When we consider the law of adverse possession as has developed vis-à-vis to property dedicated to public use, courts have been loath to confer the right by adverse possession. There are instances when such properties are encroached upon and then a plea of adverse possession is raised. In Such cases, on the land reserved for public utility, it is desirable that rights should not accrue. The law of adverse possession may cause harsh consequences, hence, we are constrained to observe that it would be advisable that

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concerning such properties dedicated to public cause, it is made clear in the statute of limitation that no rights can accrue by adverse possession.”

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Thus, adverse possession is not a right conferred by any statute. It is a common law concept, wherein upon extinguishment of rights by virtue of lapse in the period of limitation within which a person has to institute a suit, the other person gets a right of adverse possession. A person to claim adverse possession should be in possession of the property which should be adequate in continuity, adequate in publicity, adverse to competitor in denial of title and to his knowledge. A suit can be filed by a person who has perfected his title by adverse possession to question alienation and attempt of dispossession. Law of adverse possession does not entitle only the defendant for acquisition of title by way of adverse possession, but it may be perfected by a person who is filing a suit. However, Courts while entertaining a plea of adverse possession against the Government should be vigilant

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and careful as it is possible that parties may set up a claim of adverse possession against the Government in connivance with Government servants and when the land is reserved for public utility, no rights can accrue by adverse possession.

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In the instant case, the property was

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purchased by the plaintiff by way of a sale deed in the year 1960. The sale deed is an invalid document as the vendor had no title to the property. The land was granted to the temple and the vendor/Archak only had a right to utilize the proceeds of land for his benefit as long as he performed temple duties and he had no right to alienate the same. The plaintiff thereafter sold the property in favour of one Nazeer in the year 1966, but purchased back the same in the year 1967 and thereafter, he has been in continuous unhindered possession of the same claiming to be owner of the property in full knowledge of the general public including the villagers and the defendants. The

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revenue documents produced, show that from the year 1969-70, the sale in favour of the plaintiff is acknowledged and thereafter, he has been recognized as the owner also in the revenue entries. The deposition of the plaintiff witnesses in respect of plaintiff being in possession of the property continuously since he purchased the property till proceedings were initiated against him in the year 2006

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as per the order passed by the Special Deputy Commissioner at Ex.P.43, which is beyond 30 years with adequate publicity, adverse to the defendants has not been impeached in the cross-examination. Further, the property in question was granted to the temple to be utilized for the exclusive benefit of the Archak/Poojari of the temple and thus, under the given peculiar facts and circumstances of the case, the property cannot be considered to be a land reserved for public utility as held by the Supreme Court in (2019) 8

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SCC 729 (Ravinder Kaur Grewal and others vs Manjith Kaur and others).

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The defendants have contended that the

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claim of the plaintiff to the property is based on title as well as adverse possession and have relied upon the judgment passed in (2020) 15 SCC 218 (Narasamma and others vs. A. Krishnappa) to

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canvass the proposition that when such a claim is made, the plaintiff is not entitled for any relief on the ground of adverse possession. Factually, the said contention has to be held as incorrect as the prayer in the plaint pertains to declaring the plaintiff as the owner of the schedule property by way of adverse possession and the said case laws does not support the case of the defendants.

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It is further contended by the defendants that an Archak or a Poojari is like a servant or caretaker and when the property is allotted to a

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temple, he cannot set up the claim of adverse possession and a mere mentioning of the name of the Poojari in the revenue records does not give him any right and the defendants have relied upon the decision of the Supreme Court reported in (2021) 10 SCC 222 (State of Madhya Pradesh and others vs. Pujari Utthan Avam Kalyan Samiti and another) .

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The said preposition also does not come to the rescue of the defendants as in the instant case, the Poojari/Archak has alienated the property in favour of plaintiff in the year 1960 itself and the suit for adverse possession is filed not by Archak or Poojari, who was there when the land was granted in favour of the temple but by the plaintiff who is a subsequent purchaser.

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The defendants also relied upon the judgment of Supreme Court reported in (2010) 2 SCC 461 (Mandal Revenue Officer vs. Goundla

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Venkaiah and another) and (2019) 8 SCC 729 ( Ravinder Kaur Grewal and others vs Manjith

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Kaur and others) and contends that an encroacher is not entitled to file a suit for adverse possession. In the instant case, the possession of the plaintiff as already stated above is adequate in continuity and adequate in publicity and adverse to a competitor in denial of title and his knowledge and he cannot be termed as an encroacher. The defendants have also contended that the Archak of the temple was having only permissive possession and not an adverse possession and he cannot file a suit for adverse possession and they rely upon the judgment of Supreme Court in (2010) 5 SCC 203 ( R.Hanumaiah and another vs. Secretary to Government of Karnataka, Revenue Department and others) . However, as already stated above, it is the original Archak, who was there when the temple was granted the property can be considered to be in permissive possession and not the plaintiff. The trial

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Court erred in not appreciating the aforementioned facts and has erroneously dismissed the suit.

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For the aforementioned reasons, the

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judgment and decree passed by the trial Court is liable to be set aside and the suit has to be decreed as prayed for. Hence, the following:-

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ORDER

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(i) The judgment and decree dated 04.09.2021 passed in O.S.No.25232/2008 by the XXVI Additional City Civil Judge at Mayohall, Bangalore (CCH-20) is hereby set aside.

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