Dismissed

The State of Karnataka v. Krishnappa

Karnataka HC19 Jun 2023RSA/894/2012

Case brief

AI extract

What is this about?

The High Court dismissed the State's second appeal, affirming the first appellate court's decree declaring the plaintiffs' title by adverse possession over government land. It held that a suit for declaration based on adverse possession is maintainable, and the plaintiffs and their predecessor had possessed the land openly for over 30 years after the father's claim for occupancy was rejected in 19

What the court decided

AI extract

The State of Karnataka Vs Krishnappa — Property and Title | Karnataka HC (2023)

¶1

NC: 2023:KHC:21494 RSA No. 894 of 2012

¶2

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 19^TH DAY OF JUNE, 2023

¶5

BEFORE

¶6

THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR REGULAR SECOND APPEAL NO. 894 OF 2012 (DEC/INJ)

¶7

BETWEEN:

¶8

THE STATE OF KARNATAKA REVENUE DEPT REPRESENTED BY ITS SECRETARY M S BUILDING, AMBEDKAR VEEDHI BANGALORE 560 001

¶9

THE SPECIAL DEPUTY COMMISSIONER BANGALROE DISTRICT BANGALORE 560 001

¶10

THE TAHASHILDAR BANGALORE EAST TALUK K R PURAM HOBLI, BANGALORE 560034

¶11

…APPELLANTS

¶12

(BY SRI. LAXMINARAYAN N HEGDE., ADVOCATE)

¶13

Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA

¶14

AND:

¶15

KRISHNAPPA S/O LATE B MUNIYAPPA AGED 60 YEARS SINCE DEAD BY LR's

¶16

1(a) SMT. PRAMILAMMA AGE 68 YEARS W/O LATE KRISHNAPPA

¶17

1(b) SRI. RAGHAVENDRA AGE 40 YEARS S/O LATE KRISHNAPPA

¶18

¶19

NC: 2023:KHC:21494 RSA No. 894 of 2012

¶20

1(c) SRI. RAJIV KRISHNA AGE 40 YEARS S/O LATE KRISHNAPPA

¶21

RAMANJANEYA AGED 55 YEARS S/O LATE B MUNIYAPPA

¶22

MAHENDRAKUMAR AGED 46 YEARS S/O B MUNIYAPPA

¶23

ALL ARE R/O NO.109/2 PATTANDUR AGRAHAR VILLAGE K R PURAM HOBLI, BANGALORE 560066

¶24

…RESPONDENTS

¶25

(BY SRI. K.G. SADASHIVAIAH., ADVOCATE FOR C/R's AND ALSO FOR LR's OF R1; V/O DATED 21.10.21, APPEAL ABATES AGAINST R1; SRI. S. RAGHUNATH GOWDA., ADVOCATE FOR SRI. B.K. SANJAY, BIJOY KRISHNAPPA, ADVOCATES FOR R3)

¶26

THIS RSA FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 10.2.2012 PASSED IN R.A.NO.127/2011 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-II, BANGALORE RURAL DISTRICT, BANGALORE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED11.3.2011 PASSED IN O.S.NO.2518/2007 ON THE FILE OF THE II ADDL. SR. CIVIL JUDGE, BANGALORE (R) DISTRICT, BANGALORE.

¶27

THIS RSA, COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶28

JUDGMENT

¶29

This appeal is filed praying to setting aside the

¶30

judgment and decree passed in RA No.127/2011 dated

¶31

10.2.2012 by District and Session Judge, Fast Track

¶32

Court-II, Bangalore Rural District, Bangalore and prayed to

¶33

NC: 2023:KHC:21494 RSA No. 894 of 2012

¶34

¶35

confirm the judgement and decree passed in

¶36

OS No.2518/2007 dated 11.3.2011 passed by the II Additional Senior Civil Judge, Bangalore (R) District, Bangalore.

¶37

The parties are referred to as per their rankings in the trial Court.

¶38

The appellants are defendants and respondents are plaintiffs before the trial Court in

¶39

OS No.2518/2007.

¶40

It is the case of the plaintiffs before the trial

¶41

Court that they are sons of one late B.Muniyappa, Pattandur, Agrahara Village, K.R.Puram Hobli, Bangalore East Taluk. Their father late B.Muniyappa s/o Late Bathayappa had purchased agricultural land bearing Sy.No.109/02 measuring 3 acres 6 guntas of Pattandur Agrahara Village, Whitefield, Bangalore East Taluk from one Smt.Anjinamma w/o late Lakshmaiah under a registered sale deed dated 17.10.1959 for a sum of

¶42

4 - NC: 2023:KHC:21494 RSA No. 894 of 2012

¶43

Rs.700/-. The said land earlier was purchased by Smt.Nagamma daughter of Pillaga under registered sale deed dated 4.8.1951. After the purchase of the land, the said B. Muniyappa, father of plaintiffs has developed the property by investing all his earned money and grown Coconut and Arecanut tress in land which are stated to be aged 30 years as on the date of filing of the suit. It is further stated that he has constructed three residential houses and enjoyed the property from ever since the date of purchase without any sort of obstruction or interference.

¶44

The said B. Muniyappa died on 29.2.2000 and plaintiffs being the sons have succeeded to his estate. After the death of their father, the plaintiffs continued to be in possession and enjoyment of the property and also were paying the tax. The name of B. Muniyappa was entered in all the revenue records from its date of purchase. The entire village Pattanduru Agrahara is Inam Village. All the land in and around the said village are

¶45

NC: 2023:KHC:21494 RSA No. 894 of 2012

¶46

¶47

vested with the government under the provision of Mysore (Personal and Miscellaneous) Inam Abolition Act with effect from the 15.3.1955. Father of the plaintiffs had filed an application before the defendant No.2 for grant of land under Section 5 of Inam Abolition Act but his claim came to be rejected by the 2^nd defendant by order dated 3.9.1962. He had challenged the said orders by preferring an appeal before the Mysore Revenue Appellant Tribunal in Appeal No.983/1965. The said appeal came to be dismissed on 26.2.1965 with liberty to the plaintiffs father to make necessary application through his vendor. Thereafter the original vendor of the property Smt. Anjanamma made an application under Section 5 read with Section (7)(1) of Inam Abolition Act 1954 for registration an occupant of the schedule property and the same was not considered. It is further stated that subsequent to the orders of the 2^nd defendant in dismissing the claim of B.Muniyappa, from then he became as an unauthorized occupant. It is stated that plaintiffs thereafter are not owners and disclaiming the title and

¶48

6 - NC: 2023:KHC:21494 RSA No. 894 of 2012

¶49

continued to be in possession and enjoyment of the suit schedule property from 1959 to the knowledge of the defendants. It is stated that plaintiff possession is continued and uninterrupted even after the orders of the defendant dated 3.2.1963. The plaintiffs contended that claim to the ownership and title over the suit schedule property and continued to be in possession and enjoyment of the suit schedule property to the knowledge of the defendant and without any obstruction. So, they continued to be in possession and enjoyment of the property for more than 30 years. All the revenue records disclose their continuous and unobstructed possession.

¶50

6. After the demise of B.Muniyappa, the plaintiffs

¶51

being his legal heirs made an application to the 3^rd defendant for change of Khatha by inheritance. The 3^rd defendant recommended to 2^nd defendant to take action under Section 136(3) of Karnataka Land Revenue Act by its orders in RRT dispute 15/2001-02 dated 9.10.2001. It is contended that Tahsildar has not issued any notice to

¶52

7 - NC: 2023:KHC:21494 RSA No. 894 of 2012

¶53

the plaintiffs and therefore, the report of the 3^rd defendant is not in accordance with law. He stated that on the basis of the report sent by 3^rd defendant, the 2^nd defendant has passed orders by canceling the revenue entries, which were in the name of Muniyappa and directed the 3^rd defendant to enter the name of government in revenue record and ordered to resume the land to the Government free from encumbrance by evicting those persons who were in possession and enjoyment of the property. It is stated that the said order is without any jurisdiction. It is further stated that plaintiffs continued to be in possession of the suit schedule property and their possession is for more than 30 years and therefore they perfected their title by way of adverse possession.

¶54

Defendants No.1 to 3 who are the appellants

¶55

herein, who are the representatives of the State have not entered their appearances in the trial Court and they have been placed exparte.

¶56

NC: 2023:KHC:21494 RSA No. 894 of 2012

¶57

¶58

The 2^nd plaintiff has been examined as PW 1

¶59

and got marked Ex.P1 to P51. The trial Court after hearing the arguments has formulated the following points for consideration:-

¶60

1. Whether the plaintiff prove that they acquired the title over the suit proper by adverse possession?

¶61

2. Whether the plaintiffs prove the alleged interference from the defendants?

¶62

3. Whether the plaintiffs are entitled to the relief of declaration and injunction?

¶63

4. What order of decree?

¶64

The trial Court after appreciating the evidence

¶65

on records has answered points No.1 to 3 in the negative and dismissed the suit of the plaintiff.

¶66

Aggrieved by the said judgment and decree the

¶67

plaintiffs filed an appeal in RA No.127/2011 on the file of Fast Track Court-II, Bangalore Rural District, Bangalore. During the pendency of the appeal the appellants/plaintiffs filed an application for leading additional evidence and the

¶68

NC: 2023:KHC:21494 RSA No. 894 of 2012

¶69

¶70

First Appellate Court allowed the same and PW1 has been further examined and got marked Exs.P.55 and 56 and he has been cross examined by the learned counsel for the respondents-defendants.

¶71

After hearing the arguments on both sides, the

¶72

First Appellate Court has formulated the following points for consideration:

¶73

1. Whether the appellant proves that the judgment and decree the trial Court is arbitrary and capricious with regard to the findings given to the land in Sy.No.32 and 109/2 are one and the same?

¶74

2. Further proves that the due consideration of all the points summarily is contrary to Order 20 Rule 5 of code of Civil Procedure?

¶75

3. Further, whether the appellant proves that the Trial Court has failed to note the scope of claiming adverse possession under section 65 of the Limitation Act and necessary ingredients required to be proved for adverse possession?

¶76

4. Further, whether the appellant proves that the Trial Court has failed to notice the interference of

¶77

10 -

¶78

NC: 2023:KHC:21494 RSA No. 894 of 2012

¶79

the respondent as per the orders passed in Ex.P.59, for change of revenue entries in the name of Government?

¶80

5. What order?

¶81

The First Appellate Court answered points No.1 to 3 in affirmative and point No.4 in the negative and allowed the appeal and decreed the suit of the plaintiffs by judgment and decree dated 10.2.2012. It is aggrieved by the said judgment and decree passed by the First Appellate Court, the defendants have filed the second appeal. This appeal came to be admitted to consider the following substantial questions of law:

¶82

(i) Whether the lower appellate Court is justified in reversing the judgment and decree passed by the trial Court dismissing the suit of the plaintiff filed for declaration and permanent injunction, when the suit itself is not maintainable?

¶83

(ii) Whether the lower Appellate Court is justified in reversing the judgment and decree of the Trial Court declaring the title by way of adverse possession and granting injunction, when the suit itself is not maintainable, in view of the provisions of

¶84

NC: 2023:KHC:21494 RSA No. 894 of 2012

¶85

11 -

¶86

Section 34 of the Specific Relief Act, 1963, in view of the dictum of the Hon’ble Supreme Court in the case of Gurudwara Sahib vs. Grama Panchayat Village Sirthala and another reported in (2014)1 SCC 669?

¶87

Heard learned Government Advocate for the appellant and learned counsel for the legal representative for respondents No.1 and learned counsel for the respondent No.3.

¶88

The learned counsel for the appellants contends that, the plaintiffs have filed the suit seeking declaration of title on the basis of their adverse possession and no suit seeking declaration of title by adverse possession can be filed and what most available to the plaintiffs is a defence of adverse possession in a suit filed by the appellants. The plea of adverse possession cannot be used as sword and it is to be used as a shield. Therefore, he contended that the suit of the plaintiffs is not maintainable and on that point he places reliance on the decision of the Hon’ble Apex Court in the case of Gurudwara Sahib vs. Grama

¶89

12 -

¶90

NC: 2023:KHC:21494 RSA No. 894 of 2012

¶91

Panchayat Village Sirthala and another reported in (2014) 1 SCC 669 . He further, contends that plaintiffs claim over the suit schedule property is on the basis of sale deed exhibit P4 dated 17.10.1959 and vendor of the plaintiff had no title to execute the said sale deed as the suit schedule property was vested with the State as on 1.2.1957 by virtue of the Inam Abolition Act. The plaintiffs claim of possession over the suit scheduled property is based on an invalid/void document and their possession over the suit schedule property cannot be a termed as adverse possession. He further argued that the plaintiffs have not stated in the entire plaint when their possessions became adverse possession to the true owner i.e., the State. The father of the plaintiffs made an application claiming occupancy rights over the suit schedule property and the same came to be rejected by order dated 3.2.1962 and plaintiffs father challenged the same before the Mysore Appellate Tribunal and his appeal also came to be dismissed by order dated 26.2.1965. He further argued that the plaintiffs have not pleaded Animus in the

¶92

13 - NC: 2023:KHC:21494 RSA No. 894 of 2012

¶93

plaint, therefore their claim for adverse possession is not tenable as Animus is lacking. The plaintiffs bonafide believe that they are owners as they claim title over the suit scheduled property. There was no Animus possidendi during the lifetime of father of plaintiffs. He further argued that plaintiffs not stated the date of commencement of adverse possession in the plaint. Even though plaintiffs continue to be in the possession of the suit schedule property for long years their possession does not amount to adverse possession as Animus is lacking.

¶94

The learned counsel for legal representatives of respondent No.1 and learned counsel for respondent No.3 have urged the following points;

¶95

This suit filed by the plaintiffs seeking declaration based on adverse possession is maintainable. The decision relied on by the appellants in the case of Gurudwara Sahib (supra) has been over ruled, in the decision of the Hon’ble Apex Court in the case of Ravinder Kaur Grewal and others vs. Manjit Kaur

¶96

14 - NC: 2023:KHC:21494 RSA No. 894 of 2012

¶97

and Others reported in (2019) 8 SCC 729. Wherein

¶98

the Hon’ble Apex Court has held that law of adverse possession does not qualify only a defendant or acquisition of title by way of adverse possession, it may be perfected by a person who is filing the suit.

¶99

They further contend that, the plaintiffs’ father who was in possession of the suit scheduled property by virtue of the sale deed (Ex.D4) dated 17.10.1959 and coming to know that the land is vested with the State and their vendor is not having the title to sell the property. Plaintiffs’ father made an application claiming occupancy right and his claim came to be rejected by order dated 3.2.1962 by Special Deputy Commissioner and the same has been challenged before the Mysore Appellate Tribunal which also dismissed the appeal of the plaintiffs father by order dated 26.5.1965. Thereafter i.e., after 26.2.1965 the plaintiffs father disclaimed the property as he has challenged the said order of the Mysore Appellate Tribunal dated 26.2.1965 and from that date, possession of the

¶100

15 - NC: 2023:KHC:21494 RSA No. 894 of 2012

¶101

plaintiffs father over the suit schedule property has became adverse for the true owner i.e., the State. The State has not taken any action against the plaintiff’s father during his lifetime to recover the possession of the suit schedule property, even though it is the owner of the suit schedule property. The plaintiffs father continued to be in possession of the suit schedule property by disclaiming his ownership from 26.2.1965 till his death and after his death plaintiffs continue to enjoy the possession and their possession is adverse to the interest of true owner i.e., the State. They contend that the plaintiffs father and plaintiffs were aware that the land is vested with the State and the State is the owner and knowing about the same, they enjoyed the possession over the suit schedule property for more than 30 years and their possession has become adverse possession as against the State and therefore they have perfected the title to the suit schedule property by adverse possession.

¶102

NC: 2023:KHC:21494 RSA No. 894 of 2012

¶103

16 -

¶104

The learned counsels for respondents placed

¶105

reliance on the following decisions:

¶106

1. Sri.Ramaiah Vs. Chief Secretary & Ors. RFA No. 1007/2021

¶107

2. Des Raj and ors. Vs. Bhagat Ram (Dead) by Lrs. And Ors. Reported in (2007) 9 SCC 641

¶108

3. Annakili vs. A. Vedanayagam and Ors. Reported in AIR 2008 SC 346

¶109

4. Danappa Revappa Kolli vs. Gurupadappa Mallappa Pattanashetti reported in ILR 1990 KAR 610

¶110

The plaintiffs filed a suit seeking declaration of the title over a suit scheduled property by way of adverse possession and also sought relief of injunction. The appellants-Defendants contended that the suit itself is not maintainable, in view of the dictum of the Hon’ble Apex Court in the case of Gurudwara Sahib (supra). In the said decision Hon’ble Apex Court has held that even if the plaintiff is in adverse possession, he cannot seek a declaration to the effect that such an adverse possession

¶111

17 - NC: 2023:KHC:21494 RSA No. 894 of 2012

¶112

has matured into ownership. The said decision of Hon’ble Apex Court in the case of Gurudwara Sahib (supra) has been overruled, in the case of Ravinder Kaur Grawal (supra), wherein it is held as under:

¶113

51. 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.

¶114

Therefore, inview of the above law laid down by

¶115

the Hon’ble Apex Court, the suit of the plaintiffs seeking declaration of title by way of adverse possession is maintainable.

¶116

NC: 2023:KHC:21494 RSA No. 894 of 2012

¶117

18 -

¶118

Section 27 of the Limitation Act reads as under:

¶119

"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."

¶120

20. Article 112 of the Limitation Act, 1963 reads as

¶121

under:

¶122

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 its original jurisdiction) by or on behalf of the Central Government or any State Government, including the Government of the State of Jammu and Kashmir.	Thirty Years	When the period of limitation would begin to run under this Act against a like suit by a private person.

¶123

19 - NC: 2023:KHC:21494 RSA No. 894 of 2012

¶124

Section 27 of the Limitation Act provides that on 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. If the suit is not filed within the period of limitation prescribed, then not only the limitation will come to an end and it stands extinguished.

¶125

For a suit to be filed by the State Government, as in the instant case, the period of limitation as per Article 112 of the Limitation Act, 1963 is 30 years.

¶126

The Hon’ble Apex Court in the case of R.Hanumaiah and another Vs. Secretary to Government of Karnataka, Revenue Department and others reported in (2010) 5 SCC 203 at Paragraph Nos.19 to 23, has held as under:

¶127

“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

¶128

20 -

¶129

NC: 2023:KHC:21494 RSA No. 894 of 2012

¶130

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 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

¶131

21 -

¶132

NC: 2023:KHC:21494 RSA No. 894 of 2012

¶133

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.

¶134

20. Many civil courts deal with suits for declaration of title and injunction against government, in a casual manner, i gnoring 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 principles underlying pleadings that plaint averments which are

¶135

22 -

¶136

NC: 2023:KHC:21494 RSA No. 894 of 2012

¶137

not denied or traversed are deemed to have been accepted or admitted.

¶138

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).

¶139

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

¶140

23 -

¶141

NC: 2023:KHC:21494 RSA No. 894 of 2012

¶142

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.

¶143

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."

¶144

24 -

¶145

NC: 2023:KHC:21494 RSA No. 894 of 2012

¶146

The Hon’ble Apex Court in the case of Ravinder

¶147

Kaur Grewal and others Vs. Manjith Kaur and others

¶148

reported in (2019) 8 SCC 729 has held as under:

¶149

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

¶150

49. 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

¶151

25 -

¶152

NC: 2023:KHC:21494 RSA No. 894 of 2012

¶153

sold away by the owner after the extinguishment of his title, the suit can be filed by a person who has perfected his title by adverse possession to question alienation and attempt of dispossession.

¶154

57. 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 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 the large 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.

¶155

NC: 2023:KHC:21494 RSA No. 894 of 2012

¶156

26 -

¶157

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

¶158

Thus, the 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. However, the Courts while entertaining the plea of adverse possession

¶159

27 - NC: 2023:KHC:21494 RSA No. 894 of 2012

¶160

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

¶161

In the instant case, the property purchased by the plaintiffs’ father by way of a sale deed dated 17.10.1959 (Ex.P4). It is not in dispute that the land purchased by the plaintiffs’ father is situated in Pattandur Agrahara village and it is an Inam village and by advent of Inams Abolition Act, 1954 with effect from 05.03.1955, the lands situated in that village have vested with the State as on 01.02.1959. The plaintiffs’ father’s vendor Smt.Anjanamma had no title to sell the suit schedule property and therefore, the plaintiffs’ father did not acquire title under the sale deed - Ex.P4. The plaintiffs’ father who continued in possession of the suit schedule property filed application seeking occupancy rights and

¶162

28 - NC: 2023:KHC:21494 RSA No. 894 of 2012

¶163

coming to know that the land is vested with the State, the said application filed by the plaintiffs’ father seeking occupancy rights came to be rejected by the Special Deputy Commissioner by order dated 03.02.1962. The plaintiffs’ father challenged the said order before the Mysuru Appellate Tribunal and his appeal came to be dismissed by order dated 26.02.1965. Thereafter, the plaintiffs’ father did not challenge the said order. It is stated in the plaint and in the evidence of PW1 that the plaintiffs’ father disclaimed the suit schedule property after the order passed on 26.02.1965. The plaintiffs’ father died in the year 2000 and till then, he was in possession of the suit schedule property to the knowledge of the State and after his death, the plaintiffs’ being his legal representatives, continued in possession, till the filing of the suit. The appellants herein who were the defendants in the Trial Court have not contested the suit. Therefore, the averments made in the plaint and the evidence of PW1 remained unchallenged.

¶164

NC: 2023:KHC:21494 RSA No. 894 of 2012

¶165

29 -

¶166

Learned counsel for the appellants would contend that in the plaint, there is no specific mention of the date as to when the possession of the plaintiffs’ became adverse to the State and the terms animus is lacking in the averments of the plaint.

¶167

Learned counsel for the respondents would contend that the pleadings are muffosil pleadings and they have to be construed liberally. On that point, he placed reliance on the decision of the Hon’ble Apex Court in the case of Des Raj and Ors. Vs. Bhagat Ram (Dead) by LRs and Ors reported in (2007) 9 SCC 641 , wherein it is held as under:

¶168

“10. We have noticed hereinbefore the factual aspects of the matter which are neither denied nor disputed. Admittedly, the plaintiff - respondent had remained in possession for a long time i.e. since 1953. It may be true that in his plaint, the plaintiff did not specifically plead ouster but muffosil pleadings, as is well known, must be construed liberally. Pleadings must be construed as a whole.

¶169

NC: 2023:KHC:21494 RSA No. 894 of 2012

¶170

30 -

¶171

11. In Devasahayam (D) by LRs. v. P. Savithramma and Ors. MANU/SC/0568/2005 : AIR2006SC779, this Court opined:

¶172

The pleadings as are well-known must be construed reasonably. The contention of the parties in their pleadings must be culled out from reading the same as a whole. Different considerations on construction of pleadings may arise between pleadings in the mofussil court and pleadings in the Original Side of the High Court.”

¶173

In a case of this nature, where long and continuous possession of plaintiffs’ father and after his death by the plaintiffs stands admitted, the only question which arose for consideration by the Courts below was, as to whether they had been in possession of the suit schedule property in hostile declaration of his title vis-à-vis the State and they were in know thereof. Mere assertion of title itself may not be sufficient unless the plaintiffs prove animus possidendi.

¶174

NC: 2023:KHC:21494 RSA No. 894 of 2012

¶175

31 -

¶176

The claim of adverse possession has two

¶177

elements:

¶178

(i) The possession of the plaintiffs should

¶179

become adverse to the defendant.

¶180

(ii) The plaintiffs must continue to remain in possession for a period of 30 years, if the property belongs to the Government.

¶181

Animus possidendi as is well known, is a requisite ingredient of an adverse possession.

¶182

It is now a well settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. The person must have animus possidendi to hold the title of the true owner.

¶183

In Swaroop Singh Vs. Banto and Ors.

¶184

reported in AIR 2005 SC 4407 , the Hon’ble Apex Court held as under:

¶185

32 -

¶186

NC: 2023:KHC:21494 RSA No. 894 of 2012

¶187

“29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant’s possession becomes adverse. (See Vasantiben Prahaldji Nayak V.Somnath Muljibhai Nayak).

¶188

The Co-ordinate Bench of this Court in the case

¶189

of Danappa Revappa Kolli Vs. Gurupadappa Mallappa Pattanashetti reported in ILR 1990 Kar 610 has held as

¶190

under:

¶191

“Apart from the actual and continuous possession which are among other ingredients of adverse possession there should be necessary animus on the part of the person who intends to perfect his title by adverse possession. A person who under the bonafide belief thinks that the property belongs to him and as such he has been in possession, such possession cannot at all be adverse possession because it lacks necessary animus for perfecting the title by adverse possession.”

¶192

In the case on hand, the claim of the plaintiffs’ father seeking occupancy rights over the suit schedule

¶193

NC: 2023:KHC:21494 RSA No. 894 of 2012

¶194

33 -

¶195

property came to be rejected by the Special Deputy Commissioner, by order dated 03.02.1962 and his appeal has been dismissed by Mysuru Appellate Tribunal by order dated 26.02.1965. The plaintiffs’ father disclaimed the suit schedule property from the date of order passed by the Mysuru Appellate Tribunal. The possession of the plaintiffs’ father from 26.02.1965 became adverse to the State.

¶196

The State even though answered that the suit schedule property vested with the State, has not taken any action to recover possession of the suit schedule property from the plaintiffs’ father during his lifetime. The plaintiffs’ father died in the year 2000. The plaintiffs’ father after disclaiming the property, continued to be in possession, till his death in the year 2000. The plaintiffs’ father had animus , he was aware that the State is the owner, but, he continued his possession. After the death of plaintiffs’ father, the plaintiffs continued in possession of the suit schedule property, till the date of filing the suit.

¶197

34 - NC: 2023:KHC:21494 RSA No. 894 of 2012

¶198

The plaintiffs’ claim to mutate their names in the revenue records of the suit schedule property has been rejected by the Special Deputy Commissioner (Defendant No.2) by order dated 14.09.2007 and there is an order for resuming the said land to the State.

¶199

Therefore, the plaintiffs’ possession over the suit schedule property and possession of the plaintiffs’ father over the suit schedule property is beyond 30 years with adequate publicity with adverse possession to the defendants.

¶200

Therefore, considering all these aspects, the First Appellate Court has rightly decreed the suit of the plaintiffs. Accordingly, the substantial questions of law (i) and (ii) are answered in the affirmative and the appeal is dismissed .

¶201

SR,GH

¶202

List No.: 1 Sl No.: 14

¶203

Sd/JUDGE

The State of Karnataka v. Krishnappa

Case brief

What is this about?

What the court decided

The State of Karnataka v. Krishnappa

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Shri K N Abhilash Vs Shri N Chandrappa

Sri Munikempanna Vs Sri Ramachandrappa

Shri Rohit S/O Nagappa Vaddar Vs the State of Karnataka

Mahadevaiah S/O Late Nagappa Vs Sannaramaiah S/O Late Sannaramaiah

Smt Munilakshmamma Vs Narayanaswamy

M.C. Naveen Kumar Vs R.S. Siddegowda