Dismissed

M S Shankaranarayana v. State of Karnataka

Karnataka HC15 Jul 2022WP/31760/2011

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the Karnataka Appellate Tribunal's order limiting land restoration to 5 acres 38 guntas. The court held that the Tribunal correctly excluded the remaining 5 acres 8 guntas because a Civil Court had already recorded a final finding that the respondents perfected title by adverse possession over that specific portion.

What did the court decide?

The writ petition was dismissed; the order of the Karnataka Appellate Tribunal limiting restoration to the non-adverse possession portion of the land was upheld.

M S Shankaranarayana Vs State of Karnataka — Landlord and Tenant | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^th DAY OF JULY, 2022

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BEFORE

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THE HON’BLE MR.JUSTICE N.S.SANJAY GOWDA

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WRIT PETITION No.31760 OF 2011 [KLR-RES]

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BETWEEN:

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1 . M S SHANKARANARAYANA

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SINCE DEAD BY HIS LRs.

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1(a) SMT.MANGALA WIFE OF LATE M.S.SHANKARANARAYANA, AGED ABOUT 70 YEARS

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1(b) SRI. M.S.BHARGAVA SON OF LATE M.S.SHANKARANARAYANA, AGED ABOUT 45 YEARS

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BOTH ARE RESIDING AT NO.1127, GEETHA ROAD, CHAMARAJA MOHALLA, MYSORE, MYSORE DISTRICT

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2 . M.S.RAMAN MAJOR S/O LATE M.S.SOORYANARAYANA,

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P-1 AND P-2 ARE REPTD. BY POWER OF ATTORNEY HOLDER: SRI M.S.KRISHNAMURTHY, MAJOR, S/O LATE M.S.SOORYANARAYANA, NO.1127, GEETHA ROAD, CHAMARAJA MOHALLA, MYSORE,

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MYSORE DISTRICT

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3 . M.S.KRISHNAMURTHY MAJOR,S/O M.S.SOORYANARAYANA, NO. 1127, GEETHA ROAD, CHAMARAJA MOHALLA , MYSORE MYSORE DISTRICT

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...PETITIONERS

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(BY SRI.R.KALYAN ADVOCATE FOR SRI.B.C.DHANANJAY, ADVOCATE) AND:

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1 . STATE OF KARNATAKA BY THE SECRETARY TO GOVERNMENT REVENUE DEPARTMENT, M S BUILDING, BANGALORE- 560 001

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2 . THE DEPUTY COMMISSIONER MYSORE DISTRICT, MYSORE

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3 . THE DISTRICT HEALTH & FAMILY WELFARE OFFICER, MYSORE DISTRICT MYSORE

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4 . THE ASSISTANT COMMISSIONER MYSORE SUB-DIVISION, MYSORE MYSORE DISTRICT

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5 . THE TAHSILDAR NANJANGUD TALUK NANJANGUD, MYSORE DISTRICT

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6 . H S BASAVARAJU MAJOR, S/O LATE H N NAGAPPA,

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R/O HULLAHALLI VILLAGE, POST HULLAHALLI, NANJANGUD ROAD, NANJANGUD TALUK MYSORE DISTRICT

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7 . SRI H N SHANTARAJU MAJOR S/O LATE H N NAGAPPA R/O HULLAHALLI VILLAGE, POST HULLAHALLI, NANJANGUD ROAD, NANJANGUD TALUK MYSORE DISTRICT

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…RESPONDENTS

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(By SRI.SESHU V., HCGP FOR R1-R5; SRI.BASAVANNA K.M. ADVOCATE FOR SRI.M.V.HIREMATH ADVOCATE FOR R6 AND R7)

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THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS AND QUASH THE ORDER OF THE KARNATAKA APPELLATE TRIBUNAL, BANGALORE IN APPEAL NO.9 OF 2007 DATED 15.10.2010 VIDE ANNEXURE “B” INSOFAR AS IT AFFECTS INTEREST OF THE PETITIONERS, BY THE ISSUE OF A WRIT OF CERTIORARI AND ETC.

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THIS PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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On 17.09.1955, the Government granted an extent of 11 acres 06 guntas of land in Sy.No.256 of Hullahalli village in favour of M.R.Subramanyam. A saguvali chit was also issued on 14.12.1960 in favour of M.R.Subramanyam. The petitioners are the legatees of said M.R.Subramanyam.

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It may be pertinent to state here that the total extent in Sy.No.256 is stated to be 19 acres 06 guntas and out of the said extent, an extent of 08 acres was already granted in favour of Nagappa–the father of respondent Nos.6 and 7.

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3. It appears that M.R.Subramanyam—the grantee

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had made an application to the Deputy Commissioner stating that he was not put in actual possession of the land bearing Sy.No.256 to an extent of 11 acres 06 guntas of land despite the saguvali chit granted to him and sought for an order to evict the unauthorised

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occupant i.e., Nagappa. The Deputy Commissioner, however, rejected the said application on the ground that Nagappa was in possession of an extent larger than the extent granted to him (8 acres) and the entire land was thus not available for grant in favour of M.R.Subramanyam.

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Being aggrieved by the said order of the Deputy Commissioner, M.R.Subramanyam preferred an appeal to the Karnataka Appellate Tribunal. The Karnataka Appellate Tribunal allowed the appeal and directed Nagappa to be evicted from the area of 06 acres.

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Nagappa being aggrieved preferred Writ Petition No.3873 of 1968 before this Court. A Division Bench of this Court after hearing proceeded to pass an order dated 15.06.1972 (Annexure ‘E’), the operative portion of which reads as follows:

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“………….Suffice it to say that the petitioner was granted only 8 acres. He has no right to remain in possession over the area in excess of

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his grant. He is undoubtedly an unauthorised occupant in the said excess of land.

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It is not disputed that the 3^rd respondent was granted 11 acres and 6 guntas. He was also given the Saguvali Chit. Authorities are bound to put him in possession of the said 11 acres and 6 guntas. Only way to do is to evict the petitioner who is an authorised occupant from 6 acres. Petitioner cannot be heard to say that he has a right to remain in possession of the land in excess of his grant.

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In the result, the writ petition fails and is dismissed with costs of the 3^rd respondent. ...”

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Thus, this Court, way back in the year 1972, held that Nagappa had not claimed any area over and above the extent of 08 acres granted to him and the authorities were bound to put M.R.Subramanyam in possession of 11 acres 06 guntas which was granted to him and the only way to do that was to evict Nagappa who was in unauthorised occupation.

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It appears that despite the order of the Division

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Bench, Nagappa was not evicted from the land that he was in unauthorised possession of.

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Nagappa along with his son, in fact, filed an application before the Deputy Commissioner under Section 25 of the Karnataka Land Revenue Act, 1964 to allow them to remain in the land which they had unauthorisedly occupied since 1945.

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The Deputy Commissioner, however, did not accept the said application and proceeded to dismiss the same and directed the Tahasildar to put M.R.Subramanyam in actual possession of the land in Sy.No.256 by order dated 28.07.1979 (Annexure ‘F’).

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On 28.04.1997, the petitioners had instituted a suit in O.S. No.31 of 1997 seeking for a declaration that the change of Khata made by the Tahasildar in favour of H.N.Shantaraju and H.N.Basavaraju—the sons of H.N.Nagappa in the revenue records by inserting new

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survey number viz., Sy.No.480 is null and void and also sought for a decree of injunction to restrain the State as also the two sons of Nagappa from interfering with their possession.

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In the said suit, it was contended that the suit schedule property was granted to M.R.Subramanyam who had in turn executed a Will in favour of the petitioners and on the basis of the said Will, they had succeeded to the suit schedule property (which was mentioned as 5 acres 08 guntas out of 11 Acres 06 guntas in Sy.No.256) and they were also in possession of the property and despite this, the Tahasildar had committed an illegality by changing the Khata in favour of the sons of Nagappa.

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This suit was contested by the sons of Nagappa. They took up a plea that they had perfected their right by virtue of adverse possession and against the true owner which was the State Government.

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On the basis of the pleadings, apart from several issues, an issue was framed as to whether the defendants prove that they perfected their title to the suit land by adverse possession against the Government ? (Issue No.6)

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The Trial Court on consideration of the evidence adduced, proceeded to hold all the issues against the petitioners. Further, insofar as issue No.6, the Trial Court recorded a finding that the defendants had proved that they had perfected the title over the suit land by adverse possession against the Government. The suit seeking for declaration and for injunction was ultimately dismissed vide judgment and decree dated 12.09.2005 and 17.09.2005 respectively (Annexure ‘C’).

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The dismissal of the suit was not challenged by the legatees of M.R.Subramanyam. As a consequence, the findings recorded that the sons of Nagappa had perfected their title by adverse possession became final, at least insofar as the petitioners are concerned.

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It may also be pertinent to state here that, a few months after the suit was filed by the petitioners, the State Government sanctioned an extent of 05 acres 08 guntas out of 11 acres 06 guntas in Sy.No.256 in favour of the Health and Family Welfare Department for the purpose of establishing a Primary Health Centre.

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The Deputy Commissioner passed the said order on the premise that the original grantee— M.R.Subramanyam had not secured the possession of the land and had not utilised the said land for the purpose for which it had been granted and therefore, public interest would be served if the land was reserved for establishing a Primary Health Centre.

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This order of the Deputy Commissioner was challenged by the legatees of M.R.Subramanyam—the grantee as well as by the sons of Nagappa who claimed to be in unauthorised occupation of 05 Acres 08 Guntas.

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The appeal filed by the legatees of M.R.Subramanyam was numbered as Appeal No.549 of 1997 and the appeal

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filed by the sons of Nagappa was numbered as Appeal No.465 of 1998.

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Both these appeals, by different orders, both dated 08.03.1999, were allowed and the order of the Deputy Commissioner, granting 05 acres 08 guntas out of 11 acres 06 guntas for the purpose of establishing a Primary Health Centre, was set aside and a direction was issued to the Deputy Commissioner in the appeal filed by the petitioners (Appeal No.549 of 1997) to ascertain the exact nature of the land and to find out whether it belongs to the family of the petitioners or it was the Government land, since almost half of it is alleged to be encroached by the sons of Nagappa.

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In the appeal filed by the sons of Nagappa (Appeal No.465 of 1998), the Tribunal directed the Deputy Commissioner to conduct a detailed enquiry as to the ownership of the land, as it was not clear whether the land in question belonged to the sons of M.S.Sooryanaryana or the same was the Government

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property. It was made clear that only after the clear title of the land was ascertained, the Deputy Commissioner should proceed further as directed in the order disposing off the appeal filed by the legatees of M.R.Subramanya.

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On remand, the Deputy Commissioner passed an order dated 23.10.2000 (Annexure ‘M’). This was challenged by the petitioners by filing an appeal before the Karnataka Appellate Tribunal in Appeal No.577 of 2000.

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The Karnataka Appellate Tribunal vide order dated 05.09.2002 allowed the appeal (Annexure ‘K’) and set aside the order of the Deputy Commissioner dated 23.10.2000 and remanded the matter to the Deputy Commissioner for holding an enquiry strictly as directed in its earlier order passed in Appeal No.549 of 1997 on 08.03.1999.

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On remand, the Deputy Commissioner by an order dated 06.11.2006 (Annexure ‘A’), proceeded to cancel the grant made in favour of the petitioners herein.

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Being aggrieved by this order, an appeal was preferred to the Karnataka Appellate Tribunal in Appeal No.09/2007. The Karnataka Appellate Tribunal has by the impugned order dated 15.10.2010 allowed the appeal and set aside the order cancelling the grant in favour of the petitioners by the Deputy Commissioner. The Karnataka Appellate Tribunal has thereafter passed an order directing the Deputy Commissioner to conduct a fresh enquiry after giving opportunity to the parties and take steps to restore the land to the appellants therein to the extent of 05 acres 38 guntas out of 11 acres 06 guntas which had been granted to M.R.Subramanyam.

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However, in respect of the remaining extent of 05 acres 08 guntas, the Karnataka Appellate Tribunal has stated that the petitioners had to seek for a remedy

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before the appropriate forum, in view of the decision rendered in O.S. No.31 of 1997.

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The petitioners, being aggrieved by this portion of the order by which the Karnataka Appellate Tribunal has held that it was open for the petitioners to seek for a remedy before the appropriate forum in respect of 05 acres 08 guntas, have filed the present writ petition.

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As stated above, it is not in dispute that 11 acres 06 guntas of land was granted to M.R.Subramanyam, and 08 acres was granted to Nagappa and consequently, the entire 19 acres 06 guntas in Sy.No.256 stood granted.

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Admittedly, though 11 acres 06 guntas was granted to M.R.Subramanyam, even according to M.R.Subramanyam, he was not put in possession and therefore, he was constrained to approach the Deputy Commissioner on two occasions. As against one order passed by the Deputy Commissioner, a Writ Petition was

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filed which ultimately culminated in the order passed in W.P. No.3873 of 1968.

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However, the petitioners, who are the legatees of M.R.Subramanyam, filed a suit in O.S. No.31 of 1997, seeking for a declaration that the change of Khata in favour of the sons of Nagappa, is illegal and also for a decree of injunction. In the said suit, admittedly, a finding was recorded on issue No.6 to the effect that the sons of Nagappa had perfected the title by way of adverse possession. Unfortunately, the petitioners chose to accept this finding by not preferring an appeal and as a consequence, there is a finding recorded by a competent Civil Court that the sons of Nagappa were in possession and they had perfected their title by way of adverse possession.

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In view of the fact that the Civil Court has recorded

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a finding twenty-two years ago that the sons of Nagappa were in possession of 05 acres 08 guntas, the Karnataka Appellate Tribunal could not have directed restoration of

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possession of 05 acres 38 guntas in favor of the petitioners.

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It is to be stated that the Tribunal was considering only the validity of the order cancelling the grant and while upholding the grant in respect of 11 acres 06 guntas, and when it was directing the Government to restore the grant in favour of the petitioners, it could not obviously ignore the order passed in O.S. No.31 of 1997 passed in respect of 05 acres 08 guntas out of 11 acres 06 guntas.

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It has to be stated here that the Karnataka Appellate Tribunal was dealing with an appeal that had been filed challenging the cancellation of the grant made in favour of the petitioners. In this appeal, the Karnataka Appellate Tribunal only possessed the jurisdiction to determine whether the cancellation was

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proper or improper.

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The Karnataka Appellate Tribunal was also

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informed about the admitted fact that a suit was filed by the petitioners, who were the appellants before it, for injunction and the same was dismissed with a finding that the sons of Nagappa had perfected their title by way of adverse possession in respect of 05 acres 08 guntas out of the total extent of 11 acres 06 guntas.

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In the light of this finding recorded by the Civil Court, it was fundamentally beyond the jurisdiction of the Karnataka Appellate Tribunal to pass any order regarding this extent of 05 acres 08 guntas, which had been decided in a suit.

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The Karnataka Appellate Tribunal was, therefore, justified in coming to the conclusion that the petitioners were entitled for restoration only of the remaining extent of 05 acres 38 guntas when it found that the grant made

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in favour of the predecessor-in-interest was wrongly annulled and was required to be restored. In this view

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of the matter, the order of the Karnataka Appellate Tribunal cannot really be found fault with.

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However, learned counsel for the petitioners sought to contend that the judgment of the Civil Court in O.S. No.31 of 1997 was one without jurisdiction. It was stated that in a suit filed for declaration and injunction, a plea made by two defendants against another defendant that they had perfected their title by way of adverse possession could not have been gone into in the absence of a counter-claim. It was thus stated that the findings recorded by the Civil Court was completely without jurisdiction and since any judgment and decree, passed by a Court which possessed no jurisdiction, was a nullity in the eye of law, the Karnataka Appellate Tribunal was duty bound to direct restoration of even 05 acres 08 guntas which had been the subject matter of O.S. No.31 of 1997.

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The learned counsel for the petitioners placed reliance on several judgments regarding the effect of a

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judgment passed by a Court which possessed no jurisdiction.

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There can be no quarrel with the propositions that a judgment rendered by a Court which did not possess inherent jurisdiction, would be a nullity and the invalidity of the said decree can be raised even in collateral proceedings.

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However, it has to be stated here that the Civil Court did possess the jurisdiction to go into the question as to whether the defendant Nos.2 and 3 therein had perfected their title against defendant No.1—the State, under whom the plaintiffs derived their title. There was no statutory bar for the Civil Court to entertain the plea of adverse possession by defendants 2 and 3.

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It has to be stated here that an argument can be made that the judgment of the Civil Court in recording a finding that the sons of Nagappa had perfected their title by adverse possession, may be an improper finding or an

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illegal finding, but it cannot be said that it is one without jurisdiction. Since, it is only the Civil Court which has jurisdiction to declare that adverse possession of a party had stood perfected when it was for the period prescribed in law.

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Since, the Civil Court did possess jurisdiction to render a finding that the sons of Nagappa had perfected their title by adverse possession, the argument of the learned counsel cannot be accepted.

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The learned counsel also sought to contend that this Court, in exercise of its extraordinary jurisdiction, has the power to direct possession of 05 acres 08 guntas to be handed over to the petitioner, more so, in the light of the order of the Division Bench dated 15.06.1972 in W.P. No.3873 of 1968.

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It has to be stated here that in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India, though this Court is empowered to

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pass appropriate orders, it would not be proper for this Court to upset a finding recorded by the Civil Court which bind the petitioners and which the petitioners had accepted without filing any appeal.

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I am, therefore, of the view that there are absolutely no grounds to entertain this writ petition and the same is accordingly dismissed .

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SD/JUDGE

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RK Ct:AN

M S Shankaranarayana v. State of Karnataka

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M S Shankaranarayana v. State of Karnataka

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