Dismissed

Smt Balera Muthavva v. the Government of Karnataka

Karnataka HC14 Jan 2022RSA/1427/2014

Case brief

AI extract

What is this about?

Regular second appeal against decrees of lower civil and appellate courts dismissing a suit for declaration of title by adverse possession and permanent injunction. The High Court upheld the dismissal, holding the appellant failed to prove hostile possession for the statutory period over the specific one-acre property in dispute.

What did the court decide?

The appeal was dismissed. The judgment and decree of the trial court and the first appellate court were confirmed.

Smt Balera Muthavva Vs the Government of Karnataka — 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 14TH DAY OF JANUARY, 2022

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BEFORE

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THE HON’BLE MR.JUSTICE M.G.S.KAMAL

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REGULAR SECOND APPEAL NO.1427/2014

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BETWEEN:

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SMT. BALERA MUTHAVVA W/O LATE MUTHANNA AGED ABOUT 61 YEARS R/AT B SHETTIGERI VILLAGE AND POST PONNAMPET NAD

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S KODAGU-571176.

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...APPELLANT

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(BY SRI.MADHUKESHWAR, ADVOCATE FOR SRI.SACHIN B S, ADVOCATE)

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AND:

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THE GOVERNMENT OF KARNATAKA REPRESENTED BY

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THE DEPUTY COMMISSIONER

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KODAGU MADIKERI

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NORTH KODAGU - 571201

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THE TAHSILDAR VIRAJPET TALUK, VIRAJPET TOWN

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SOUTH KODAGU-571218

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THE REVENUE INSPECTOR PONNAMPET, PONNAMPET TOWN SOUTH KODAGU-571176

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THE CHIEF EXECUTIVE OFFICER ZILLA PANCHAYATH KODAGU, MADIKERI 571 201.

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THE PANCHAYATH DEVELOPMENT OFFICER GRAMA PANCHAYATH B SHETTIGERI

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SOUTH KODAGU - 571218.

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...RESPONDENTS

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(BY SRI.RAJENDRA PRASAD.B, HCGP FOR R1 TO 3; R4 SERVED; SRI.K.A.CHANDRASHEKHAR, ADVOCATE FOR R5)

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

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

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JUDGMENT

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Present appeal is filed by the appellant/plaintiff against the judgment and decree dated 16.08.2014 passed in R.A.No.47/2013 on the file of II Additional District and Sessions Judge, Kodagu-Madikeri (hereinafter referred to as the 'First Appellate Court')

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in and by which, the first appellate court while dismissing the appeal filed by the appellant/plaintiff confirmed the judgment and decree dated 26.04.2013 passed in O.S.No.66/2012 on the file of Senior Civil Judge, Virajpet (hereinafter referred to as the 'trial Court').

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The appellant/plaintiff filed the above suit in O.S.No.66/2012 seeking relief of declaration to declare that she has acquired the title by adverse possession in respect of suit schedule property namely, the land measuring 1 acre in Sy.No.37/26P1 of 'B' Shettigeri village, Ponnampet Nad, South Kodagu and consequential relief of permanent injunction restraining the respondents/defendants from interfering/disturbing her lawful possession and enjoyment of the suit schedule property.

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The appellant/plaintiff contended that she

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has been in possession and enjoyment of the suit

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schedule property having encroached upon the same in the month of May, 1980 and that she has been enjoying the said property uninterruptedly and hostile to interest of the respondents/ defendants/ Government. That she has fenced the suit schedule property and has been cultivating coffee, pepper and other plantation crops. That she has put up a residential house with asbestos sheets consisting of three rooms. Thus, she had applied to the second defendant for grant of suit schedule property in her favour and same is pending consideration before the second defendant. That after the encroachment, the revenue department had surveyed and demarcated the suit schedule property. That the second defendant has not granted the suit schedule property in her favour on the grounds that the connected records were misplaced and not traceable. That she is in settled possession of suit schedule property. That on 17.02.2012, the second defendantTahasildar, Virajpet had granted 5 cents of land in her favour in

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

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defendant - Panchayath Development Officer, Grama Panchayath, B Shettigerihalli issued a notice to the plaintiff alleging that she had encroached upon the Government Paisari land bearing Sy.No.37/26P2 measuring 1 acre in B Shettigeri village and had called upon plaintiff to vacate the same. That she had sent suitable reply on 13.01.2012 contending that she had encroached upon the said land and that she is in settled possession and had thus acquired title by way of adverse possession. That she has produced all necessary documents before third defendant and had requested them to not to disturb her possession as she is in settled lawful possession and enjoyment of the suit schedule property. Since her requests were not heeded by the third defendant, she was constrained to file suit for declaration and injunction. The defendants despite notice remained ex-parte.

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The trial court based on the pleadings

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framed the following issues;

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"1. PÀ¼ÉzÀ 31 ªÀµÀðUÀ½AzÀ ªÁ¢AiÀÄÄ ¥ÀæwªÁ¢AiÀÄjUÉ UÉÆwÛzÀÝAvÉ zÁªÁ¹ÛAiÀÄ 1 JPÉæ eÁUÉAiÀÄ°è AiÀiÁªÀÅzÉÃ CrÛ DvÀAPÀ E®èzÉÃ ¸ÀA¥ÀÆtð ¸Áé¢üÃ£Á£ÀÄ¨sÀªÀzÀ°è EzÁÝ¼ÉAzÀÄ ªÁ¢ gÀÄdÄªÁvÀÄ¥Àr¸ÀÄªÀ¼ÉÃ?

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zÁªÁ¹ÛAiÀÄ°è ¥ÀæwPÀÆ® ¸Áé¢üÃ£À£ÀzÀ ªÀÄÆ®PÀ vÀ£ÀUÉ ºÀPÀÄÌ ¥Áæ¥ÀÛªÁVzÉAzÀÄ ªÁ¢ gÀÄdÄªÁvÀÄ ¥Àr¸ÀÄªÀ¼ÉÃ?

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¥ÀæwªÁ¢AiÀÄgÀÄ ªÁ¢UÉ zÁªÁ¹ÛAiÀÄ°è ¸Áé¢üÃ£Á£ÀÄ¨sÀªÀPÉÌ CrØ DvÀAPÀ ¥Àr¹zÁÝgÉAzÀÄ ªÁ¢ gÀÄdÄªÁvÀÄ ¥Àr¸ÀÄªÀ¼ÉÃ?

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ªÁ¢AiÀÄÄ zÁªÉAiÀÄ°è PÉÃ½zÀ WÉÆÃµÀuÉAiÀÄ ¥ÀjºÁgÀ ¥ÀqÉAiÀÄ®Ä CºÀð¼É?

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ªÁ¢AiÀÄÄ zÁªÉAiÀÄ°è PÉÃ½zÀ SÁAiÀÄA ¥Àæw§AzsÀPÁeÉÕ ¥ÀjºÁgÀ ¥ÀqÉAiÀÄ®Ä CºÀð¼É?

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AiÀiÁªÀ DzÉÃ±À."

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The appellant/plaintiff examined herself as

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

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

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to Ex.P.16. No witness was examined on behalf of defendants and no documentary evidence was produced by respondents/defendants.

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On appreciation of evidence, the trial Court negatived the contentions of the appellant/plaintiff for relief of declaration and consequential injunction and dismissed the suit. Aggrieved by the same, appellant/plaintiff filed R.A.No.47/2013 before the first appellate Court.

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The first appellate court framed the

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following points for consideration;

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

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

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

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

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5. What order?

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On re-appreciation of evidence the first appellate court dismissed the appeal confirming the judgment and decree passed by the trial Court. Aggrieved by the same, appellant/plaintiff is before this Court.

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Sri. Madhukeshwara, learned counsel appearing for Sri. Sachin B on behalf of appellant/plaintiff submitted that;

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(a). trial court and first appellate court grossly erred in dismissing the suit of the appellant/plaintiff without appreciating the material evidence with regard to her settled possession over the suit schedule property.

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(b). that appellant/plaintiff has established that she has been in exclusive, open and unhindered possession of the suit schedule property hostile to the

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interest and title of the respondents on and from May, 1980. That her possession has been established by her, by examining P.W.2 who is a villager. Referring to Ex.P.5-notice issued by the third defendant/ respondent learned counsel submits that, even according to the said notice wherein it is specifically alleged that the appellant/plaintiff has encroached upon the suit schedule property which is sufficient enough proof of her case.

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(c). He further submits that though the appellant/plaintiff has been granted 5 cents of land, the appellant/plaintiff being in possession of a remaining extent of land is within the knowledge of the respondents. Hence, he submits that trial court and first appellate court have not appreciated this aspect of the matter giving raise to substantial question of law to be considered in this appeal. Hence, he seeks for allowing of the appeal.

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9. learned HCGP appearing for

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respondents/defendants justifying the judgment and decree passed by the trial Court and first appellate Court submits;

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(a) that since the appellant/plaintiff has not produced any iota of evidence with regard to she being in possession of the property for 30 years and more prior to the date of filing of the suit, the trial court and first appellate court were right and justified in dismissing her suit for declaration and injunction.

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(b). that appellant/plaintiff not being in lawful possession particularly in respect of suit schedule property as claimed by her, the question of granting consequential relief of injunction does not arise. Thus, he submits no substantial question of law arises in the matter for consideration and hence seeks for dismissal of appeal.

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Heard the learned counsel for the parties.

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The appellant/plaintiff who approached the court seeking relief of declaration declaring her to be the absolute owner of the suit schedule property having acquired the title by way of adverse possession has not produced any material evidence regarding the date of commencement of her hostile possession over the suit schedule property, openly and to the knowledge of the respondents/defendants. Except claiming that she encroached upon the property in the month of May, 1980, no piece of evidence is produced by her.

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Ex.P.1 -Saguvali chit dated 17.02.2012 issued by the second defendant/respondent infavour of the appellant/plaintiff to the extent of 5 cents of land under Akrama and sakrama scheme. Thus, the very document-Ex.P.1 would indicate that the claim of the plaintiff was accepted and considered to the extent of 5 cents and her unauthorized occupation to the said extent has been regularized by the respondents/defendants. The appellant/plaintiff,

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therefore, cannot set up a case that she is in possession of 1 acre of land as sought to be done in the plaint.

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Learned counsel for the appellant/plaintiff vehemently argued with regard to her settled possession. Referring to the notice at Ex.P.5, submitted that even according to the case of the respondents/defendants, the appellant/plaintiff is in settled possession, albeit, referring herself to be an encroacher. He submits in substance the said notice evidenced her settled possession in the suit schedule property.

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The trial court at paragraph 11 of the judgment as referred to the contention of the plaintiff and reading into Ex.P.5 has found that said notice pertains to the land measuring 1 acre in Sy.No.37/26P2, while the plaintiff is claiming to be in adverse possession of suit schedule property which is

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bearing Sy.No.37/26P1. Therefore, the said claim of the plaintiff cannot be countenanced.

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In view of the aforesaid aspect of the

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matter, oral evidence of the plaintiff and P.W.2 purported villager carries no significance. The trial court and first appellate court have taken note of these aspect of the matter and justifiably declined to grant the relief of declaration and injunction as sought for by the appellant/plaintiff.

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It is made clear that the respondents/defendants have regularized 5 cents of land and granted Saguvali chit as per Ex.P.1 dated 17.02.2012 in favour of the plaintiff. The said extent of land is recognized to be the land of plaintiff. With the above observation following order.

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1). The appeal is dismissed.

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2). Judgment and decree dated 26.04.2013 passed in

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

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Civil Judge, Virajpet and judgment and decree dated 16.08.2014 passed in R.A.No.47/2013 on the file of II Additional District and Sessions

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Judge, Kodagu-Madikeri is confirmed.

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Sd/JUDGE

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Smt Balera Muthavva v. the Government of Karnataka

Case brief

What is this about?

What did the court decide?

Smt Balera Muthavva v. the Government of Karnataka

Case brief

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