Dismissed

Kamalesh Reddy v. the Principal Secretary

Karnataka HC3 Nov 2023RSA/911/2013

Case brief

AI extract

What is this about?

This second appeal challenged the dismissal of a suit for declaration of title and permanent injunction. The High Court held that the appellants failed to prove continuous, hostile, and open possession of the public property required to extinguish the State's title under the Limitation Act.

What did the court decide?

The appeal was dismissed, and the judgments and decrees of the courts below were confirmed.

Kamalesh Reddy Vs the Principal Secretary — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:39231 RSA No. 911 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI

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REGULAR SECOND APPEAL NO. 911 OF 2013 (DEC/INJ)

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BETWEEN:

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KAMALESH REDDY S/O PRATHAPA REDDY AGED ABOUT 46 YEARS

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MAHENDRA REDDY S/O LATE NARASIMHA REDDY SINCE DEAD BY LR'S

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2(A) INDRANI W/O MAHENDRA REDDY

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Digitally signed by R DEEPA Location: High Court of Karnataka

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2(B) NARENDRA REDDY S/O MAHENDRA REDDY BOTH ARE R/AT No.78 T.K. ROAD PATETHERI CHANNAPATNA TOWN RAMANAGARA - 571 501

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MADHUSUDHANA REDDY S/O LATE NARASIMHA REDDY AGED ABOUT 53 YEARS R/AT SY NO.78 TATTEKERE VILLAGE KASABA HOBLI

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CHANNAPATNA TALUK – 571 501.

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…APPELLANTS

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(BY SRI. MANJUNATH K.C.E, ADVOCATE FOR SRI. G. MANIVANNAN, ADVOCATE)

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AND:

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THE PRINCIPAL SECRETARY REVENUE DEPARTMENT GOVERNMENT OF KARNATAKA 5^TH FLOOR, M S BUILDIG DR B R AMBEDKAR VEEDHID BANGALORE-1

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THE DY. COMMISSIONER RAMANAGARA DISTRICT MINI VIDHANA SOUDHA RAMANAGARAM-571511

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THE ASST. COMMISSIONER RAMANAGARAM DIVISION RAMANAGARAM-571511

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THE TAHSILDAR CHANNAPATNA TALUK CHANNAPATNA 571 501

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…RESPONDENTS

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(BY SRI. MAHANTESH SHETTAR, AGA)

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THIS RSA IS FILED U/S. 100 ORDER XLII RULE 1 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 8.2.2013 PASSED IN R.A.NO.17/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC., CHANNAPATTANA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 11.2.2010 PASSED IN OS.NO.243/2003 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN) & JMFC., CHANNAPATNA.

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

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JUDGMENT

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This second appeal is filed by the appellants

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challenging the judgment and decree dated 08.02.2013,

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passed in R.A.No.17/2012 by the Senior Civil Judge & JMFC, Channapatna, Ramanagar District and the judgment and decree dated 11.02.2010, passed in O.S.No.243/2003 by the Principal Civil Judge (Jr.Dn.) & JMFC, Channapatna.

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For the sake of convenience, parties are referred to as per their ranking before the trial Court. The appellants are the plaintiffs and respondents are the defendants.

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The brief facts leading rise to filing of this appeal are as under:

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Plaintiffs filed a suit for declaration of title and permanent injunction. It is the case of the plaintiffs that plaintiffs' ancestors were in possession of the suit schedule property. Thereafter the plaintiffs are in possession of the suit schedule property continuously without any interference or animus obstruction from the defendants or anybody and adverse and animus to the interest of the defendants from the year 1956 and made several representations for regularization of occupation on several

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occasions. The revenue authorities effected entries in the revenue records and names of the plaintiffs and their ancestors are appearing in the revenue records. Plaintiffs invested huge amount and constructed a farm house in the suit schedule property and are growing commercial crops. It is contended that the plaintiffs filed Form No.7 before the competent authority for regularization of land as it belongs to the Mujarai i.e., Kengal Anjaneya Swamy Temple. The said application came to be rejected by the competent authority. Plaintiffs aggrieved by the said order, preferred writ petitions in W.P.Nos.14155 & 14580/1997 before this Court. The said writ petitions came to be rejected. Plaintiffs have been in continuous possession adverse to the title of the defendant. Hence they have perfected their title by way of adverse possession. Defendants tried to dispossess the plaintiffs from the said property. Hence the plaintiffs were constrained to file the instant suit.

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Defendants No.4 and 5 filed written statement

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and the other defendants adopted the same. It is denied that the plaintiffs are the owners of the suit schedule property. It is contended that the suit Sy.No.78 totally measures 20 acres and it belongs to the Government and there was earlier proceedings with respect to the suit property. It is denied that the plaintiffs are in possession of the suit schedule property since from 1956. It is contended that the father of the plaintiffs namely Prathap Reddy and one Ramabovi were cultivating 5 acres of land each under the tenancyship of temple. So, after the Land Reforms Act came into force in the year 1974, the father of plaintiffs filed Form No.7 for grant of occupancy rights. The Land Tribunal rejected the said application. The father of the plaintiffs and said Ramabovi filed writ petitions in W.P.Nos.763/1990 and 764/1990. The said writ petitions came to be dismissed on 12.06.1997. Thereafter, once again the father of the plaintiffs and Ramabovi filed applications before the Assistant Commissioner, Ramanagar and the said applications were

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also dismissed. Against said order, once again writ petitions were preferred before this Court in W.P.Nos.14155 & 14580/1997, which came to be dismissed on 24.02.2003. Aggrieved by the said order, they preferred writ appeal in W.A.No.19696/2003, which came to be dismissed on 02.06.2003. Such being the case, the father of the plaintiffs as well as the plaintiffs have not succeeded in the said proceedings. Hence the suit filed by the plaintiffs for the relief of declaration of title and permanent injunction, is not maintainable. Hence there is no cause of action to file the suit. On these grounds, sought for dismissal of the suit.

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The Trial Court, on the basis of the above said

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pleadings, framed the following issues:

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1. Whether the plaintiffs prove that they have perfected their title to the suit property by way of adverse possession?

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1. Whether the plaintiffs prove that they are entitled for declaration as prayed by them?

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1. Whether the plaintiffs prove that they are entitled for permanent injunction as prayed by them?

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1. Whether the Court fee paid by the plaintiffs is insufficient?

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1. What order or decree ?

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In order to prove the case of the plaintiff, the plaintiff No.2 examined himself as PW-1 and got examined one witness as PW-2 and got marked 38 documents as Exs.P1 to P38. The official of the defendants was examined as DW-1 and got marked 1 document as Ex.D1.

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The trial Court considering the oral and documentary evidence of the parties, answered issue Nos.1, 2 and 4 in negative, issue No.3 partly in affirmative and consequently decreed the suit of the plaintiffs in part, wherein the relief of declaration of title is dismissed and restrained the defendants by way of permanent injunction from interfering with the peaceful possession and enjoyment of the suit property by the plaintiffs until they are evicted under due process of law.

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The plaintiffs aggrieved by the judgment and decree passed in the above said suit dismissing the relief

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of declaration of title, filed an appeal in R.A.No.17/2012. The First Appellate Court, after hearing the parties, has

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framed the following points for consideration:

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1) Whether the appellants have made out sufficient grounds to interfere with the impugned judgment and decree of the trial Court?

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2) What order?

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The First Appellate Court, on re-appreciating the

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oral and documentary evidence, answered point No.1 in negative and consequently dismissed the appeal filed by the plaintiffs, confirming the judgment and decree passed by the trial Court. The plaintiffs, aggrieved by the judgments and decrees passed by the courts below dismissing the suit for declaration of title, have filed this second appeal.

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Heard learned counsel for the plaintiffs.

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Learned counsel for the plaintiffs submits that

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the ancestors of the plaintiffs were in possession of the suit schedule property since from 1956 and further after

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the death of their ancestors, the plaintiffs came in possession of the suit schedule property and the plaintiffs in order to establish their possession over the suit schedule property, have produced RTC extracts i.e., Exs.P13 to P18. He submits that the plaintiffs are in possession of the suit schedule property for more than 30 years without any interference by the defendants and that too with the knowledge of the defendants, the plaintiffs have perfected their title by way of adverse possession. The courts below have not properly considered the material placed on record by the plaintiffs and passed the impugned judgments and decrees. Hence he submits that the courts below have committed an error in passing the impugned judgments and decrees. On these grounds, prays to allow the appeal.

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Perused the records and considered the submissions of learned counsel for the plaintiffs.

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It is the case of the plaintiffs that the plaintiffs are in possession of the suit schedule property. Prior to

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them, their ancestors were in possession of the suit schedule property since from 1956. In order to show that the plaintiffs' ancestors were in possession of the suit schedule property, the plaintiffs have not produced any record. On the contrary, the plaintiffs have produced the RTC extracts at Exs.P13 to P18, which discloses that the plaintiffs are in possession of the suit schedule property since from 1974. After the Land Reforms Act came into force, the father of the plaintiffs and one Ramabovi filed applications in Form No.7 in respect of land bearing Sy.No.78. The Land Tribunal rejected the said applications on the ground that suit land is a gomal land. The father of the plaintiffs and said Ramabovi aggrieved by the order passed by the Land Tribunal, preferred a writ petition in W.P.Nos.763 & 764/1990, which came to be dismissed on 12.08.1997. Again, father of plaintiffs and Ramabovi filed the applications before the Assistant Commissioner for regularization of their unauthorized occupation. The said applications also came to be rejected. Against the said order, father of plaintiffs and Ramabovi filed writ petitions

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in W.P.Nos.14155 & 14580/1997 which came to be dismissed vide order dated 24.02.2003. The plaintiffs aggrieved by the order passed in the aforesaid writ petition, preferred a writ appeal in W.A.No.19696/2003 which came to be dismissed on 02.06.2003. Further, the plaintiffs have failed to establish that the plaintiffs are in possession of the suit schedule property for more than 30 years. Perusal of Ex.P14 - RTC extract discloses the name of Prathap Reddy which is shown only for the year 198586. Thereafter for the year 1986-87, in the cultivator's column, it is shown as 'Sarkari Gomaala' and in the cultivator's column it is kept blank from the year 1990 to 2003. From the perusal of the revenue records produced by the plaintiffs, it discloses that the plaintiffs are not in possession of the suit schedule property for more than 30 years continuously, open, hostile to the claim and asserting the ownership. Further, though the name of 'State' is shown in the cultivator column in the RTC extract for the year 1985-86, the plaintiffs have not challenged the said entries. The said entries have attained finality.

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The plaintiff at one stretch claims to be in possession of suit property as a tenant and at another stretch claims to be in possession of the suit property as owner. The plea of the plaintiff is inconsistent. The plaintiff cannot take inconsistent plea in the plaint.

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So far as the question of perfection of title by adverse possession is concerned, the question requires to be considered more seriously and effectively for the reason that it ultimately involves destruction of right/title of the State to immovable property and conferring upon a third party encroacher title where plaintiff has none. Indisputably, the State is the owner of the suit schedule property and question is as to whether its title has been extinguished and the plaintiff has acquired and perfected title to the same by adverse possession. In order to substantiate such a claim of adverse possession, the ingredients of open, assertive, hostile to the claim and continuous possession with the required animus for a continuous period of 30 years. The burden of proving

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adverse possession is always on the person who asserts the same by clear and unequivocal evidence must coexist. These essential requirements are absent in the instant case. Further there were several rounds of litigation between the plaintiff and defendants prior to the filing of the suit. Hence the plaintiffs have failed to prove that they are in continuous possession for more than 30 years and also failed to prove the ingredients of Article 65 of the Limitation Act i.e., adverse possession, and that too in respect of public property.

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The trial Court considering the evidence on record, held that the plaintiffs are in possession of the property and granted the relief of permanent injunction, but declined to grant the relief of declaration of title on the ground that the plaintiffs could not be held to have substantiated their claim of perfection of title by adverse possession of public property. The courts below have legitimately come to a right conclusion in this case and rightly passed the impugned judgments and decrees.

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The First Appellate Court on re-appreciation of the evidence on record, held that the plaintiffs have failed to prove that they are the owners of the suit schedule property by way of adverse possession and also recorded a finding that the father of the plaintiffs has filed Form No.7 which came to be rejected by the Land Tribunal and the said order was confirmed by this Court in the writ petition and plaintiffs have also filed a writ appeal which also came to be dismissed. Hence the plaintiffs are not in possession of the suit schedule property continuously, hostile, assertive and open, as owners. Both the courts below have considered the oral and documentary evidence and rightly passed the impugned judgments and decrees holding that the plaintiffs have failed to prove that they became the owners by way of adverse possession.

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The Hon'ble Supreme Court in the case of GOVERNMENT OF KERALA & ANR. VS. JOSEPH & ORS. reported in 2023 LiveLaw (SC) 621 disposed on 09.08.2023, held that when the land subject of

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proceedings wherein adverse possession has been claimed, belongs to the Government, the Court is duty bound to act with greater seriousness, effectiveness, care and circumspection as it may lead to destruction of a right/title of the State to immovable property. The principle laid down by the Hon'ble Apex Court is aptly applicable to the present case in hand. I do not find any substantial question of law that arise for consideration in this appeal and any grounds to interfere with the impugned judgments and decrees.

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In view of the aforesaid facts and circumstances,

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I proceed to pass the following:

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ORDER

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The appeal is dismissed. Consequently, the judgments and decrees passed by the courts below are confirmed. No order as to the costs.

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SD/-

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JUDGE

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RD

Kamalesh Reddy v. the Principal Secretary

Case brief

What is this about?

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Kamalesh Reddy v. the Principal Secretary

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