Karnataka Industrial Areas Development Board Vs Sunitha Naik

A R SANTHOSH KUMAR S/O. ANANDA NAIK, AGED 14 YEARS, MINOR, REPRESENTED BY THEIR NATURAL GUARDIAN JAYA NAIKA S/O SOMLA NAIK RESIDENT OF YALAVATTII VILLAGE, YALAVATTII POST, MALLEBENNUR HOBLI, HARIHARA - 577 601.

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A R SUMANTH KUMAR S/O.ANANDA NAIK, AGED 12 YEARS, MINOR, REPRESENTED BY THEIR NATURAL GUARDIAN JAYA NAIKA S/O SOMLA NAIK RESIDENT OF YALAVATTII VILLAGE, YALAVATTII POST, MALLEBENNUR HOBLI, HARIHARA - 577 601.

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STATE OF KARNATAKA RERPESENTED BY ITS CHIEF SECRETARY, VIDHANA SOUDHA, BANGALORE-560001.

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SRI. M. IQBAL HUSSAIN S/O MOMTAZ HUSSAIN AGED 69 YEARS FLAT No.5, II MAIN, II CROSS REHAMAT NAGAR R.T. NAGAR POST BENGALURU - 560 032.

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…RESPONDENTS

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(BY SRI. M V REVANASIDDAIAH, ADVOCATE FOR C/R1 -R3 SRI. B.J. ESHWARAPPA, AGA FOR R4 SRI. S. SREEVATSA, SR. COUNSEL FOR SRI. R. GOPAL, ADVOCATE FOR R5)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 7.9.2013 PASSED IN R.A.NO.44/2011 ON THE FILE OF II ADDITIONAL DISTRICT AND SESSIONS JUDGE, DAVANAGERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 19.4.2011 PASSED IN OS.NO.13/2010 ON THE FILE OF SENIOR CIVIL JUDGE, HARIHARA.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This appeal is filed by the appellant challenging the judgment and decree dated 07.09.2013 passed in RA No. 44 of 2011 by the learned II Additional District and Sessions Judge, Davanagere, and the judgment and decree dated 19.04.2011 passed in OS No. 13 of 2010 by the learned Senior Civil Judge, Harihara.

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For convenience, the parties are referred to based on their rankings before the trial Court. The appellants

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were defendant Nos.2 and 3, respondent No.1 to 3

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were the plaintiffs and respondent No.4 was defendant No.1.

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Brief facts leading rise to the filing of this appeal are as follows:

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The plaintiffs filed a suit against the defendants for a declaration to declare that they are the owners in possession and enjoyment of the suit schedule property by way of adverse possession and also sought for permanent injunction.

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It is the case of the plaintiffs that, one Anandaa Naik, son of Somla Naik, the Plaintiffs' father who died on 17.10.2007. Ananda Naik’s wife, during his lifetime had left him and the plaintiffs gone out of the family deserting him and the plaintiffs. Ananda Naik during his lifetime made a will dated 10.04.2007 bequeathing his property for succession after his death as per his desire. Mr.Ananda Naik himself was

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an advocate and himself has made the will bequeathing his properties as he wished. The plaintiffs have succeeded to the estate of the deceased Ananda Naik under a testamentary succession. The said will was executed when he was in a sound disposing state of mind, though he was suffering from cancer, and he passed away on 17.10.2007.

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Plaintiff No.1 is the daughter and plaintiff Nos.2 and 3 are the sons of the deceased Ananda Naik. He appointed one Jaya Naik, his own younger brother, as a guardian and next friend of both persons and properties of the plaintiffs under the said will itself. Therefore, Jaya Naik has signed, verified and filed the plaint for and on behalf of the minor plaintiffs as their guardian and next friend.

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Originally the suit schedule property was owned by Mazan Bi, wife of Chaman Sab and the said land was

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standing in her name till her death. After her death the property was transferred in the name of her son Fayaz. He got transferred the property in his name. Thereafter, he sold the same in favour of Ananda Naik, Govindraj and Iqbal Hussain for a valuable consideration of ₹2,75,000/- under the registered sale deed dated 29.09.1997. After that Govindaraj and Iqbal Hussain relinquished their right in favour of Ananda Naik regarding the suit schedule property on 22.05.1998 by executing a registered release deed. Thus, Ananda Nayak became the sole owner of the entire suit schedule property. Deceased Ananda Naik had filed a suit in O.S.No.116 of 1998 challenging the acquisition proceedings and after establishment of Court at Harihar, it was re-numbered as OS No.47 of 2004. In the said suit, the plaint was returned on the ground that the Civil Court has no jurisdiction to decide the validity of the acquisition proceedings. Ananda Naik aggrieved by the return of plaint,

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preferred a Civil Revision petition in CRP No. 379 of 2006, which came to be dismissed by order dated 23.03.2007 and confirmed the return of plaint. The plaintiffs being the legal representatives of the deceased Ananda Naik and the legatees under the will dated 10.04.2007 filed a writ petition in WP No. 8965 of 2008 for quashing the acquisition notification issued in 1949. The said writ petition came to be dismissed on the ground of delay and latches on 19.11.2008. The plaintiffs filed a writ appeal in WA No.2045 of 2008 against said order. The said writ appeal came to be dismissed for default by an order dated 15.04.2009. It is contended that the suit land was acquired in 1949 under the notification dated 04.05.1949 and published in the Karnataka Gazette dated 19.05.1949. Meanwhile, defendant Nos.2 and 3 intended to acquire the suit land for the board under the notification dated 04.06.1981 under Section 28(1) of KIADB Act. But later it was dropped

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in the final notification on the ground that it was already acquired in 1949 and final notification was issued on 04.05.1949. It is contended that Mazan Bi was in possession of the suit schedule property since from 1989 till her death, and after her death her son

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fayaz came in possession of the suit schedule property and continued in possession of the suit schedule property as the owner. Fayaz had sold the suit schedule property under the registered sale deed in favour of Ananda Naik, Govindraj and Iqbal Hussain. They became the absolute owner and they came in possession of the suit schedule property on 29.09.21997 till 22.05.1998 i.e., the date of relinquishment. Thereafter, by virtue of will, the plaintiffs have acquired the title by way of adverse possession. It is contended that, the plaintiffs are in possession of the suit schedule property for more than 60 years beyond the statutory period of 30 years uninterruptedly, openly, peacefully and

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continuously. It is contended that, defendant No.3 tried to dispossess the plaintiff from the suit schedule property. Hence, a cause of action arose for the plaintiffs to file a suit for declaration and perpetual injunction. Accordingly, prays to decree the suit.

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Defendant No.1 appeared through the counsel i.e., Addl. Government Pleader, but has not filed a written statement.

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Defendant Nos.2 and 3 filed a written statement denying the averments made in the plaint and it is contended that the suit schedule property was acquired by the government in 1949 itself and possession of the suit schedule property was taken. It is contended that the said property was handed over by the government to defendant Nos.2 and 3. Defendant Nos.2 and 3 formed the lay out and allotted the sites to the allottees/beneficiaries. It is contended that defendant No.1 taken the possession

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of the suit schedule property. Neither the plaintiffs nor his predecessor are in possession of the suit schedule property. The plaintiffs have not acquired any right, title or interest over the suit schedule property by way of adverse possession. Hence, prays

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to dismiss the suit.

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The Trial Court, based on the pleadings of the parties framed the following issues:

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(1) Does plaintiffs prove that the suit schedule property was originally owned & possessed by one Mazan Bi W/o Chaman Sab on the date of 4-5-1949 & 19-5-1949?

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(2) Does plaintiffs prove that the suit land was acquired by the defendants under a Preliminary Notification No. LB 96-384 VP 59/48/4 dt.4-5-1949 published in the Official Gazette dt.4-5-1949 and final notification published in the Official Gazette dt. 19-5-1949?

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(3) Does plaintiffs further prove that even after acquisition of land by the defendants, the original owner Mazan Bi was in peaceful possession & enjoyment of suit land till her

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death un-interruptedly, openly, peacefully & continuously to the knowledge of defendants?

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(4) Does plaintiffs further prove that after the death of original owner Mazan Bi, her legal heir Fayaz was in possession & enjoyment of the suit land to the knowledge of defendants un-interruptedly, openly, peacefully & continuously till 29-9-1997?

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(5) Does plaintiffs further prove that this Fayaz sold the suit land to Govinda Raj, Iqbal Hussain & deceased Anandaa Naik jointly for a valuable consideration of Rs.2,75,000-00 through a Regd. Sale Deed dt.29-9-1997?

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(6) Does plaintiffs further prove that Govinda Raj, lobal Hussain & deceased Anandaa Naik were jointly in peaceful possession & enjoyment of the suit schedule property uninterruptedly, openly, peacefully & continuously till 22-5-1998 to the knowledge of defendants?

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(7) Does plaintiffs further prove that Govinda Raj & Iqbal Hussain have jointly executed a Regd. Relinquishment Deed in favour of the deceased Anandaa Naik on 22-5-1998?

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(8) Does plaintiffs further prove that after 22-51998, deccased Anandaa Naik exclusively was peaceful possession & enjoyment of suit land un-interruptedly, openly, peacefully & continuously till his death, i.e., 17-4-2007 to the knowledge of defendants?

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(9) Does plaintiffs further prove that they being the legal representatives of deceased Anandaa Naik took over the possession of suit schedule property and continued the same to the knowledge of defendants?

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(10) Does plaintiffs further prove that right from the original owner till the death of Anandaa Naik including the plaintiffs, the suit schedule property was in their peaceful possession & enjoyment un-interruptedly, openly, peacefully & continuously to the knowledge of defendants more than statutory period of 30 years?

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(11) Does plaintiffs prove that they have perfected their title over the suit property by way of adverse possession?

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(12) Does defendants prove that the suit is hit by principles of res-judicata?

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(13) Does d'efendant Nos.2 & 3 prove that the possession of the suit schedule land came to them in the year 1984 as pleaded in the written statement of defendants?

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(14) Does plaintifis further prove the interference alleged against the defendants?

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(15) Does plaintiffs are entitled for the relief of declaration?

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(16) Does plaintiffs are entitled for the relief of permanent injunction?

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(17) What Order or Decree?

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The plaintiffs to substantiate their case, Jaya Naik i.e., the next friend/guardian was examined as PW1, examined one witness as PW2 and marked 32 documents as Ex.P1 to Ex.P32. In rebuttal, the Deputy Development Officer of Defendant No.2 i.e., KIADB was examined as DW1, examined four witnesses as DW2 to DW5 and marked 24 documents as Ex.D1 to Ex.D24.

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The Trial Court, after recording the evidence, hearing

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both sides and after assessing the verbal and documentary evidence answered issue Nos.1 to 11, 14 and 16 in the affirmative, issue Nos.12, 13 and 15 in the negative and issue No.17 as per the final order. The suit was decreed vide judgment dated 19.04.2011 and it was declared that the plaintiffs are in possession and enjoyment of the suit schedule property as a successors in title of true (legal) owner

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deceased father Ananda Naik and also legatees/beneficiaries under the Will dated 10.04.2007 executed by the deceased father Anandaa Naik in their favour. Consequently, the defendants are hereby permanently restrained from causing any kind of interference in the peaceful possession and enjoyment of the plaintiffs over the suit schedule property and the plaintiffs' prayer for a declaration that they have perfected their title over

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the suit schedule property by way of adverse possession was rejected.

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Defendant Nos.2 and 3 aggrieved by the judgment and decree passed in OS No.13 of 2010 preferred an appeal in RA No. 44 of 2011 on the file of learned II Additional District and Sessions Judge, Davanagere.

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The first appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration:

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"1) Whether the defendants prove that the suit land was acquired by the defendants under preliminary notification No.LB 96-384 VP 59/48/4 dated 04.05.1949 and also under final notification published in the official gazette dated 19.05.1949?

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2) Whether the plaintiffs prove that even after acquisition of land by the defendants, the original owner Mazan Bi was in peaceful possession and enjoyment of suit land till her death and after her death her legal heir Fayaz continued to be in possession of the suit land?

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3) Whether the plaintiffs further prove that said Fayaz sold the suit land to Govinda Raj, Iqbal Hussain and deceased Anandaa Naik jointly for a valuable consideration of Rs.2,75,000/- through a registered sale deed dated 29.09.1997, and they were in joint possession and enjoyment of the suit schedule property continuously till 22.5.1998?

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4) Whether the plaintiffs further prove that Govinda raj and Iqbal Hussain have jointly executed a registered relinquishment deed in favour of the deceased Anandaa Naik on 22.05.1998?

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5) Whether the judgment and decree passed by the Court requires to be interfered by this Court?

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6) What order?"

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The First Appellate Court, after re-appreciating the entire evidence on record, answered point Nos. 1 to 4 in the affirmative, point No.5 in the negative, and point No.6 as per the final order. The appeal was dismissed vide judgment dated 07.09.2013

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confirming the judgment and decree passed by the trial Court in OS No. 13 of 2010.

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Defendant Nos.2 and 3 aggrieved by the impugned judgments, filed this Regular Second Appeal.

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Heard the learned counsel Sri. Monesh Kumar for defendant Nos. 2 and 3 , learned Senior counsel Sri. Sreevatsa for the plaintiffs and learned Additional Government Advocate for respondent No.4/defendant No.1.

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Learned counsel for defendant Nos.2 and 3 submits that the suit schedule property was acquired by the government by issuing a preliminary notification in 1949 and final notification in 1949 and the possession of the suit schedule property was taken by the government in accordance with law. The said land was transferred by the government in favour of defendant no. 2 and defendant no. 3. He submits that defendant Nos.2 and 3 due to inadvertence got

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issued a notification under Section 28(1) of the KIADB Act. Subsequently it was withdrawn. He submits that the defendants no. 2 and 3 formed a layout out and allotted the sites to the intending allottees/its beneficiaries. He submits that the intending allottees are in possession of the suit schedule property. He submits that the plaintiffs have filed a suit in O.S.No.116 of 1998, it was renumbered as O.S.No.47 of 2002 challenging the acquisition proceedings. The Civil Court returned the plaint on the ground that the Civil Court has no jurisdiction to decide the validity of the acquisition proceedings. He submits that the plaintiffs aggrieved by the order of return of plaint in OS No. 47 of 2002 preferred a Civil revision petition in CRP No. 379 of 2006. This Court dismissed the revision petition filed by the plaintiffs. He submits that the plaintiffs are not in possession of the suit schedule property and the suit is land vested with the government. The said

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aspect was not adequately considered by the Courts below. He also submitted that the plaintiffs father i.e., Anandaa Naik purchased the suit property. He is entitled for a compensation however, not entitled to the property.

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To buttress his arguments, he has placed a reliance on the judgments of the Hon'ble Apex Court in the cases of Commissioner, Bangalore Development Authority Vs. K.S. Narayan in Appeal (Civil) No. 8307 of 2002, disposed on 11.10.2006 and The Commissioner, Bangalore Vs. Brijesh Reddy and another in Civil Appeal No.1051 of 2013. disposed of on 08.02.2013 . Hence, on these grounds, he prays to allow the appeal.

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Per contra , learned Senior Counsel for the plaintiffs submits that the suit schedule property was originally owned and possessed by Mazan Bi wife of Chaman, and she died leaving behind her son by name Fayaz.

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He sold the suit schedule property in favour of Anandaa Naik, Govindaraj and Iqbal Hussain under a registered sale deed dated 29.09.1997. He submits that though the defendants initiated acquisition proceedings in 1949, however, no award was passed and since the date of final notification, Mazan Bi was in possession over the suit schedule property till her death.

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After her death, Fayaz came in possession of the suit schedule property, and he sold the suit schedule property in favour of Anandaa Naik, Govindaraj and Iqbal Hussain.

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Iqbal Hussain and Govindaraj executed a relinquishment deed relinquishing their rights in favour of Anandaa Naik by a registered relinquishment deed dated 22.05.1998. Thus, the plaintiffs became the absolute owners of the suit schedule property and he also submits that the

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plaintiff and his predecessors-in-title are in

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possession of the suit schedule property for more than six decades without any obstruction and interference, and acquired the title by way of an adverse possession. He submits that although the plaintiffs have not claimed the relief of declaration of title, but still the Court can grant a relief of declaration.

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To buttress his arguments, he has placed reliance on the judgment of the Hon'ble Apex Court in the case of (i) Srinivas Ram Kumar vs. Mahabeer Prasad and others reported in AIR 1951 SC 177 (ii) Bhagwati Prasad vs. Chandramouli reported in 1965 SCC Online SC 111 ; and (iii) decision of the Privy Council, reported in (1898) 21 Allahabad Series 53 (PC) .

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Hence, he submits that though the Trial Court held that the plaintiffs have failed to prove that the

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plaintiffs have acquired the title by way of an adverse possession, however, it has rightly decreed the suit for declaration declaring that the plaintiffs are in possession of the suit schedule property.

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He also submits that the State has not taken the possession by due process of law and the plaintiffs and their predecessors have continued in possession of the property for six decades. Hence, on these grounds, he prays to dismiss the appeal.

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This Court vide order dated 23.03.2015 admitted the appeal to consider the following substantial questions of law:

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(i) Whether the Courts below were justified in entertaining a suit to decide the issue relating to the possession in respect of the property which was the subject matter of the acquisition under the Gazette Notification dated 19.05.1949 (Exhibit D12)?

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(ii) Whether the Courts below have committed an error in construing the document at Exhibits D14 to D24 and despite the same in coming to a conclusion that the possession has continued with the plaintiffs?

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Reg. Substantial Questions of Law Nos.1 and 2:

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Substantial questions of law Nos.1 and 2 are inter-linked with each other. Hence, taken for a common discussion.

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The plaintiffs filed a suit for declaration to declare that they are the absolute owners in possession of the suit schedule property, and they acquired it by way of adverse possession. It is the case of the plaintiffs that the suit schedule property was owned and possessed by Mazan Bi and the said land was acquired by defendant No.1 under the notification dated 19.05.1949. Thereafter, defendant No.1 has not taken any further steps to conclude the

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acquisition proceedings. Mazan Bi continued to be in possession of the suit schedule property till her death and after her death, her son by name Fayaz continued to be in possession of the suit schedule property as the owner. He sold the suit schedule property in favour of Anandaa Naik, Govindaraj and Iqbal Hussain under the registered sale deed and subsequently, Govindaraj and Iqbal Hussain have relinquished their rights in favour of Anandaa Naik and Anandaa Naik executed a Will bequeathing the schedule property in favour of the plaintiffs and they became the absolute owners by virtue of the Will executed by Ananda Naik. The plaintiffs and their predecessors are in possession of the suit title property for more than 50 years without interruption, obstruction and claim to be the owners of the suit schedule property and they have acquired the title by way of adverse possession.

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To substantiate their case, the plaintiffs have produced the following documents:

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Exhibit P1 is a certified copy of the Will dated 10.04.2007, which discloses that the Will was executed by Anandaa Naik, bequeathing the suit schedule property in favour of the plaintiffs, and they became the absolute owners by the Will executed by Anandaa Naik.

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Exhibits P-2 to P-6 are Form Nos.3 of the suit schedule property for 1957-58 to 1960-61, and 1964-65.

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Exhibit P7 is Form No.4 notice given to the Mazan Bi by the Assistant Commissioner, Davanagere SubDivision, on 11.06.1981 calling upon Mazan Bi, as to why the land should not be acquired.

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Exhibit P8 is a certified copy of the order sheet of O.S. No.47 of 2002 wherein Ananda Naik filed a suit in O.S. No.47 of 2002 challenging the acquisition

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proceedings. The Trial Court passed an order on 10.06.2005 stating that the Court has no jurisdiction to try the suit. It is ordered that the plaint shall have to be returned to the plaintiff.

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Exhibit P9 is the notice dated 25.09.1998 issued by the plaintiff to the defendant to produce the documents.

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Exhibit P10 is the reply to Exhibit P9 issued on 06.10.1998.

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Exhibit P11 is the application filed by Anandaa Naik in OS No. 116 of 1998 under Order XI Rule 12 of CPC.

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Exhibit P12 is the objection to the said application filed in OS No. 116 of 1998.

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Exhibit P13 is the copy of RTC of suit land.

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Exhibit P14 is also a copy of RTC extract of suit land.

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Exhibits P15 is the certified copy of the judgment and order on preliminary issue passed in OS No.47 of

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2002 (Old No.116 of 1998) passed by the Civil Judge, Junior Division, Harihar, wherein the Court returned the plaint to the plaintiff i.e., Anandaa Naik.

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Anandaa Naik aggrieved by the order passed on the preliminary issue in OS No.47 of 2002 preferred a Civil Revision petition in CRP No.379 of 2006 on the file of this Court. This Court, vide Order dated 23.03.2007 dismissed the revision petition. The same is marked as Exhibit P16.

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After the dismissal of revision petition, the plaintiffs filed a writ petition in WP No.8965 of 2008 challenging the acquisition proceedings i.e., Gadget Notification dated 04.05.1969. This Court vide order dated 19.11.2008 dismissed the writ petition. The same is marked as Exhibit P17.

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The plaintiff aggrieved by the order passed by the writ Court in WP No.8965 of 2008, filed a writ appeal in WA No.2045 of 2008. The said writ appeal was

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dismissed for non-prosecution by order dated 15.04.2009. The same is marked as Ex.P18.

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Exhibit P19 is a certified copy of the registered sale deed dated 29.09.1997, which discloses that Faiyaz has executed a registered sale deed in favour of Ananda Naik, Govindraj and Iqbal-Hussainin respect of the suit schedule property.

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Exhibit P20 is the original registered relinquishment deed, wherein Govindraj and Iqbal Hussain have relinquished their rights regarding suit property in favour of Anandaa Naik on 22.05.1998.

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Exhibit P21 is a copy of the order dated 21.07.1997 passed by the Tahsildar for change of RTC.

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Exhibit P22 is the mutation extract.

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Exhibit P23 is the RTC extract of the suit schedule property for 1997-98.

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Exhibits P24 to 26 are the patta receipts.

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Exhibit P27 is the tax paid receipt.

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Exhibit P28 is the endorsement dated 28.12.1996 issued by the KIADB Bangalore.

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Exhibits P29 and P30 are the gazette notifications.

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Exhibits P31 and P32 are the plaint and written statement in OS No. 47 of 2002 (Old OS No. 116 of 1998)

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During the cross examination of PW-1, it is suggested that the said suit land was acquired by the Government in 1949 and the Government – State has taken the possession of the suit schedule property. The said fact has been denied by PW-1 and it was also suggested to PW-1 that PW-2 had no right to execute a registered sale deed in favour of Anandaa Naik, Govindraj and Iqbal Hussain and they have not acquired any right, title or interest over the suit schedule property, under the registered sale deed executed by Fayaz. It is also suggested that the

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Govindraj and Iqbal Hussain had no right, title or interest to execute the relinquishment deed in favour of the Anandaa Naik. The said suggestions were denied by PW-1.

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The plaintiff examined Fayaz as PW-2, who was the vendor of Anandaa Naik, Govindraj and Iqbal Hussain, who has deposed that after the death of his mother he succeeded to the suit schedule property, and sold the same in favour of Anandaa Naik, Govindraj and Iqbal Hussain and he put them in the possession of the suit schedule property and they were in possession of the suit schedule property.

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In rebuttal, G.H.Sreedhar who is the Deputy Development Officer – KIADB was examined as DW-1 and he has deposed that the plaintiff’s father Anandaa Naik had filed a suit regarding the suit schedule property in O.S. No.116/1998 and the said suit was renumbered as O.S.No.47/2002 and the

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plaint was returned on the ground of maintainability and the jurisdiction of the Court. Against the order passed in O.S.No.47/2002, Ananda Naik filed a Civil Revision Petition in C.R.P.No.376/2006. The said revision petition came to be dismissed. After the dismissal of the civil revision petition, the plaintiffs filed a writ petition in W.P.No.8965/2008 challenging the acquisition notification. The said writ petition came to be dismissed and his father fought the litigation upto the High Court and now having been frustrated, the instant suit was filed on the same subject matter of the dispute regarding suit schedule property. It is also deposed that the plaintiffs claim is based on the plea of adverse possession, and Ananda Naik in his suit in O.S.No.116/1998, has not pleaded a single word throughout his pleadings regarding his acquisition of title over the suit schedule property by way of adverse possession. He has deposed that the KIADB is the owner in possession of the suit schedule

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property. It is deposed that the suit schedule property was acquired in 1949, under a valid notification for the purpose of formation industrial suburb at Harihar town and the defendants - KIADB were put in possession in 1984. It was published in the Karnataka Gazette dated 19.05.1949. Thereafter, the KIADB issued a preliminary notification under Section-28(1) of KIADB Act and later on after coming to know about the acquisition of 1949, they have withdrawn the preliminary notification issued under Section-28(1) of KIADB Act before publication of the final notification under Section-24 of the KIADB Act.

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The defendants are in possession and enjoyment of the suit schedule property. The defendants, to prove their defence, have produced the following documents:

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Exhibit-D1 is a certified copy of the order passed in the W.P.No.8138/2002 against the Deputy Commissioner and others, challenging the order

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passed by the Tahsildar, wherein the Tashildar has passed an order to enter the name of the plaintiffs in the revenue records. This Court vide order dated 09.02.2004 allowed the writ petition and directed the Tahsildar and authorities to continue the name of KIADB in the revenue records and it was made clear that in the event Ananda Naik succeeds in the suit, it was open for him to move the revenue authorities for necessary changes in the revenue records for bringing it in conformity with the judgment passed in O.S.No.116/1998 that may be passed.

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Exhibit-D2 to D11 are the RTC extracts which discloses that the KIADB/Ananda Naik is the owner of the suit schedule property for respective durations.

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Exhibit – D12 is a copy of the notification dated 04.05.1949 i.e., issued u/s. Section-4(1) of the Land Acquisition Act and Exhibit-D13 is the final notification issued under Section-6(1) of the Land Acquisition Act dated 09.05.1949.

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Exhibit-D14 is the certified copy of the sale agreement dated 21.12.2000, wherein Ananda Naik KIADB entered into an agreement of sale with the third party.

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Exhibit-D15 is the schedule to the sale agreement.

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Exhibit-D16 is the mutation register extract.

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Exhibit-D17 is the allotment letter issued by the Karnataka Industrial Area Development Board dated 13.08.2009, wherein the KIADB had formed a Layout and allotted one site in favour of M/s. Government Tool Room and Training Centre.

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Exhibit-D18 is the letter regarding handing over the possession certificate in favour of the M/s. Government Tool Room and Training Centre, wherein the Karnataka Industrial Area Development Board handed over the possession on 08.01.2010 and allottee is in possession of the suit schedule property.

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Exhibit-D19 is the possession certificate dated 08.01.2010 issued by KIADB.

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Exhibit D20 is a copy of sketch.

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Exhibit-D21 is the lease-cum-sale agreement executed on 15.01.2010 by the Karnataka Industrial Area Development Board in favour of the MANAGING DIRECTOR of the M/s. Government Tool Room and Training Centre.

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Exhibits-D22 and is the sketch of the land allotted in favour of the M/s. Government Tool Room and Training Centre.

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Exibit-D23 is the possession certificate dated 31.10.1984 which discloses that the possession was given to the KSIDC.

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Exhibit-D24 is the letter issued by the Karnataka State Small Industries Development Corporation Limited to the Executive Engineer, KIADB dated

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02.05.1983. Further, the defendant also examined

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the allottees in whose favour the sites were allotted.

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From the perusal of the entire evidence on record, it is an undisputed fact that one Mazan Bi was the owner in possession the suit schedule property. The said land was acquired by the Government by issuing Section-4(1) Notification dated 04.05.1949 and issued a final Notification under Section-6(1) dated 09.05.1949 and the possession of the suit property was taken by the Government.

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After issuing the final notification Mazan Bi continued to be in possession of the suit schedule property and she died leaving behind PW-2 i.e., Fayaz as her Legal Heir and it is alleged that he succeeded the suit schedule property. Thereafter, he sold the suit schedule property in favour of Ananda Naik, Govindraj and Iqbal Hussain. Govindraj and Iqbal Hussain executed a relinquishment deed in favour of Ananda Naik relinquishing their right, title and

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interest over the suit property to Ananda Naik. Ananda Naik, during his life time filed a suit in OS.No.47/2002 (renumbered as O.S.116/1998) challenging the acquisition proceedings i.e., under Section-4(1) and 6(1). The Trial Court returned the

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plaint on the ground that the Court has no jurisdiction to entertain the suit challenging the acquisition possession. Against the order passed in O.S. No.47/2002, Ananda Naik filed a civil revision petition in C.R.P.No.379/2006. The revision petition came to be dismissed vide an order dated 23.03.2007. After the dismissal of the revision petition, Ananda Naik challenged the notifications issued by the Government in W.P.8965/2008. The said writ petition came to be dismissed vide order dated 19.11.2008 on the ground of delay and latches, since there was a delay of more than 5 decades in approaching the writ Court. The plaintiffs claim that Mazan Bi, his son and Ananda Naik were in

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possession of the suit property as absolute owners without interruption, obstruction claiming themselves as the owners of the suit schedule property and they have perfected their title by way of adverse possession. To claim the plea of adverse possession,

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the plaintiff must plead that as to what date the plaintiff and his vendor came in possession of the suit schedule property, what was their nature of the possession and whether the factum of their possession was known to the other party and how long the possession was continued and possession was open and undisturbed.

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It is only on the proof of all these ingredients, the case of adverse possession is said to have been established. A person pleading adverse possession has no equity his or her favour, since they are trying to defeat the rights of the true owner. It is for them to clearly plead and establish all the ingredients/ points necessary to establish the plea of adverse

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possession. Admittedly, in the instant case, the plaintiffs are claiming through Mazan Bi, after issuing the final notification. Mazan Bi continued in possession of the suit schedule property till her death, and after her death Fayaz continued to be in possession of the suit schedule property till the suit property was sold in favour of Ananda Naik, Govindraj and Iqbal Hussain. After the purchase of the suit schedule property, all the three viz., Ananda Naik, Govindraj and Iqbal Hussain continued to be in possession of the suit schedule property. Thereafter, Govind Raj and Iqubal Hussain relinquished their right in favour of Ananda Naik. Admittedly, as of the date of the execution of the registered sale deed in favour of Ananda Naika, Govind Raj and Iqbal Hussain, Fayaz had no right, title or interest over the suit schedule property. Further, although the plaintiffs claim that they have perfected their title by way of an adverse possession, the plaintiffs have not

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admitted the title of the defendants. Without admitting the title of the defendants, the plaintiffs cannot acquire the right by way of adverse possession.

¶261

This Court in the case of R. Prakash Vs. Smt. G.P Marathamma reported in ILR 2000 KAR 1223 on the question, whether adverse possession can be claimed by the defendant denying the title of the plaintiffs who is the true owner, held that without admitting the title of the plaintiffs, the defendants raising a question of adverse possession is not known to law. Admittedly, in the instant case, the plaintiffs have not admitted the title of the defendant Nos.2 and 3 lon the suit schedule property. Without admitting the title of the defendant Nos.2 and 3, the plaintiff cannot raise the question of plea of adverse possession.

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The Coordinate Bench of this Court in the case of Baswanthrao Since Deceased by his LRs Vs.

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Rajkumar, reported in ILR 2009 KAR 1099 had an

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occasion to examine the plea of the adverse possession and held at para No.13, which reads as follows:

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“Adverse possession is a question of fact and in a claim of adverse possession, the title is not disputed; what is alleged is only its extinction. The plea of adverse possession being based on facts which have to be raised to that effect, is not necessarily a legal plea. The plea of adverse possession raises a mixed question of law and fact. Where a person wants to base his tide on it, he should specifically set up the plea. Unless the plea is raised, it cannot be entertained. A plea must be raised and it must be shown when possession became adverse, so that the starting point of limitation against the party affected can be found. The prayer clause may not be taken as a substitute for a plea. A person acquires title by way of adverse possession when he is in continuous, uninterrupted, hostile possession over a period of 12 years. In order to calculate 12 years period there should be a starting point. Therefore, the law mandates that the plaintiff who seeks a declaration that he has perfected his title by way of adverse possession should specifically plead the late from which his

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possession becomes adverse to that of the defendant. It is from that date if the plaintiff shows continuous, uninterrupted possession for a period of 12 years, then the right of the defendant to the property stands extinguished and the plaintiff would acquire title by way of adverse possession.”

¶273

The Hon’ble Apex Court, in the case of Annakili Vs.

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A. Vedanayagam and Others reported in 2007

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(14) SCC 308 , held in paragraph No.22 as follows:

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“22. Claim by adverse possession has two elements : (1) the possession of the defendant should become adverse to the plaintiff; and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. 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. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in said capacity for the period prescribed under the Limitation Act. Mere long possession, it is

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trite, for a period of more than 12 years without anything more do not ripen into a title.”

¶280

The Hon’ble Apex Court in the case of Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai

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Harijan and Others reported in (2009) 16 SCC 517 , in paragraph Nos.20 to 30, held as follows:

¶282

“20. In Karnataka Board of Wakf v. Govt. of India [(2004) 10 SCC 779] at para 11, this Court observed as under: (SCC p. 785)

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“11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Nonuse of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is ‘nec vi, nec clam, nec precario’, that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.”

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The Court further observed that: (SCC p. 785, para 11)

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“11. … Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.”

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21. In Saroop Singh v. Banto [(2005) 8 SCC 330] this Court observed: (SCC p. 340, paras 2930)

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“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 Prahladji Nayak v. Somnath Muljibhai Nayak [(2004) 3 SCC 376] .)

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30. ‘Animus possidendi’ is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Md. Mohammad Ali v. Jagdish Kalita [(2004) 1 SCC 271] .)”

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22. This principle has been reiterated later in M. Durai v. Muthu [(2007) 3 SCC 114] . This Court observed as under: (SCC p. 116, para 7)

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“7. … in terms of Articles 142 and 144 of the old Limitation Act, the plaintiff was bound to prove his title as also possession within twelve years preceding the date of institution of the suit under the Limitation Act, 1963, once the plaintiff proves his title, the burden shifts to the defendant to establish that he has perfected his title by adverse possession.”

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23. This Court had an occasion to examine the concept of adverse possession in T. Anjanappa v. Somalingappa [(2006) 7 SCC 570] . The Court observed that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his title was hostile to the real owner and amounted to denial of his title to the property claimed. The Court further observed that: (SCC p. 577, para 20)

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“20. … The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action.”

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24. In a relatively recent case in P.T. Munichikkanna Reddy v. Revamma [(2007) 6 SCC

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59] this Court again had an occasion to deal with the concept of adverse possession in detail. The Court also examined the legal position in various countries particularly in English and American systems. We deem it appropriate to reproduce relevant passages in extenso. The Court dealing with adverse possession in paras 5 and 6 observed as under: (SCC pp. 66-67)

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“5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. (See Downing v. Bird [100 So 2d 57 (Fla 1958)] ; Arkansas Commemorative Commission v. City of Little Rock [227 Ark 1085 : 303 SW 2d 569 (1957)] ; Monnot v. Murphy [207 NY 240 : 100 NE 742 (1913)] ; City of Rock Springs v. Sturm [39 Wyo 494 : 273 P 908 : 97 ALR 1 (1929)] .)

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6. Efficacy of adverse possession law in most jurisdictions depends on strong limitation statutes by operation of which right to access the court expires through efflux of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one's right to bring an action for the recovery of property that has been in the

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adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or colour of title. (See American Jurisprudence, Vol. 3, 2d, p. 81.) It is important to keep in mind while studying the American notion of adverse possession, especially in the backdrop of limitation statutes, that the intention to dispossess cannot be given a complete go-by. Simple application of limitation shall not be enough by itself for the success of an adverse possession claim.”

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(emphasis in original)

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25. There is another aspect of the matter, which needs to be carefully comprehended. According to Revamma case [(2007) 6 SCC 59] the right of property is now considered to be not only a constitutional or statutory right but also a human right. In the said case, this Court observed that: (SCC p. 77, para 43)

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“43. Human rights have been historically considered in the realm of individual rights such as, right to health, right to livelihood, right to shelter and employment, etc. but now human rights are gaining a multifaceted dimension. Right to property is also considered very much a part of the new dimension. Therefore, even claim of adverse possession has to be read in that context. The activist approach of the English courts is quite visible from the judgments of Beaulane Properties Ltd. v. Palmer [(2005) 3

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WLR 554 : (2005) 4 All ER 461] and JA Pye (Oxford) Ltd. v. United Kingdom [(2005) 49 ERG 90] . The Court herein tried to read the human rights position in the context of adverse possession. But what is commendable is that the dimensions of human rights have widened so much that now property dispute issues are also being raised within the contours of human rights.”

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26. With the expanding jurisprudence of the European Court of Human Rights, the Court has taken an unkind view to the concept of adverse possession in the recent judgment of JA Pye (Oxford) Ltd. v. UnitedKingdom [(2005) 49 ERG 90] which concerned the loss of ownership of land by virtue of adverse possession. In the said case, “the applicant company was the registered owner of a plot of 23 hectares of agricultural land. The owners of a property adjacent to the land, Mr and Mrs Graham (the Grahams) occupied the land under a grazing agreement. After a brief exchange of documents in December 1983 a chartered surveyor acting for the applicants wrote to the Grahams noting that the grazing agreement was about to expire and requiring them to vacate the land.” The Grahams continued to use the whole of the disputed land for farming without the permission of the applicants from September 1998 till 1999. In 1997, Mr Graham moved the Local Land Registry against the applicant on the ground that he had obtained

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title by adverse possession. The Grahams challenged the applicant company's claims under the Limitation Act, 1980 (the 1980 Act) which provides that a person cannot bring an action to recover any land after the expiration of 12 years of adverse possession by another.

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27. The judgment was pronounced in JA Pye (Oxford) Ltd. v. Graham [(2000) 3 WLR 242 : 2000 Ch 676] . The Court held in favour of the Grahams but went on to observe the irony in law of adverse possession. The court observed that the law which provides to oust an owner on the basis of inaction of 12 years is “illogical and disproportionate”. The effect of such law would “seem draconian to the owner” and “a windfall for the squatter”. The court expressed its astonishment on the prevalent law that ousting an owner for not taking action within limitation is illogical. The applicant company aggrieved by the said judgment filed an appeal and the Court of Appeal reversed the High Court decision. The Grahams then appealed to the House of Lords, which, allowed their appeal and restored the order of the High Court.

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28. The House of Lords in JA Pye (Oxford) Ltd. v. Graham [(2003) 1 AC 419 : (2002) 3 WLR 221 : (2002) 3 All ER 865 (HL)] observed that the Grahams had possession of the land in the ordinary

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sense of the word, and, therefore, the applicant company had been dispossessed of it within the meaning of the Limitation Act of 1980.

¶327

29. We deem it proper to reproduce the relevant portion of the judgment in Revamma case [(2007) 6 SCC 59] : (SCC p. 79, paras 51-52)

¶328

“51. Thereafter the applicants moved the European Commission of Human Rights (ECHR) alleging that the United Kingdom law on adverse possession, by which they lost land to a neighbour, operated in violation of Article 1 of Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’).

¶329

52. It was contended by the applicants that they had been deprived of their land by the operation of the domestic law on adverse possession which is in contravention with Article 1 of Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’), which reads as under:

¶330

‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

¶331

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.’ ”

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This Court in Revamma case [(2007) 6 SCC 59] also mentioned that the European Council of Human Rights importantly laid down three-pronged test to judge the interference of the Government with the right of “peaceful enjoyment of property”: (SCC p. 79, para 53)

¶336

“53. … [In] Beyeler v. Italy [ [GC], No. 33202 of 1996 §§ 108-14 ECHR 2000-I] , it was held that the ‘interference’ should comply with the principle of lawfulness and pursue a legitimate aim (public interest) by means reasonably proportionate to the aim sought to be realised.”

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The Court observed: (Revamma case [(2007) 6 SCC 59] , SCC pp. 79-80, paras 54-56)

¶338

“54. … ‘The question nevertheless remains whether, even having regard to the lack of care and inadvertence on the part of the applicants and their advisers, the deprivation of their title to the registered land and the transfer of beneficial ownership to those in unauthorised possession struck a fair balance with any legitimate public interest served.

¶339

In these circumstances, the Court concludes that the application of the provisions of the 1925 and 1980 Acts to deprive the applicant companies of their title to the registered land imposed on them an individual and excessive burden and upset the fair balance between the demands of the public interest on the one hand and the applicants’ right to the peaceful enjoyment of their possessions on the other.

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There has therefore been a violation of Article 1 of Protocol 1.'

¶344

55. The question of the application of Article 41 was referred for the Grand Chamber Hearing of the ECHR. This case sets the field of adverse possession and its interface with the right to peaceful enjoyment in all its complexity.

¶345

56. Therefore it will have to be kept in mind the courts around the world are taking an unkind view towards statutes of limitation overriding property rights.”

¶346

30. Reverting to the facts of this case, admittedly, the appellants at no stage had set up the case of adverse possession, there was no pleading to that effect, no issues were framed, but even then the trial court decreed the suit on the ground of adverse possession. The trial court judgment being erroneous and unsustainable was set aside by the first appellate court. Both the first appellate court and the High Court have categorically held that the appellant has miserably failed to establish title to the suit land, therefore, he is not entitled to the ownership. We endorse the findings of the first appellate court upheld by the High Court.”

¶347

Considering the expositions of law referred supra, though the plaintiffs filed a suit for declaration to

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declare that they have acquired a title by way of adverse possession, the Trial Court dismissed the suit of the plaintiff for relief of a declaration that they have acquired a title by way of adverse possession and granted a declaration that the plaintiffs are in

¶352

possession over the suit schedule property. Admittedly, the plaintiffs have not sought a relief to declare that the plaintiffs are the absolute owners of the suit schedule property. In the absence of prayer, the Trial Court granted a relief of a declaration of title. The Trial Court committed an error in a declaring that the plaintiffs are the absolute owners in possession of the suit schedule property. In the absence of prayer, the Trial Court granted a consequential relief of injunction restraining the defendant from interfering in the peaceful possession and enjoyment of the plaintiffs over the suit schedule property. Defendant Nos.2 and 3, aggrieved by the judgment and decree passed by the Trial Court

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declaring the plaintiffs as absolute owners without seeking the relief, filed an appeal in RA No.44/2011.

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The First Appellate Court, without re-appreciating the entire evidence on record, confirmed the judgment and decree passed by the Trial Court. Admittedly, the plaintiff did not prefer any appeal challenging the dismissal of a suit for declaration that they have acquired the property by way of an adverse possession.

¶358

Further, the Hon’ble Apex Court, in the case of Bachhaj Nahar Vs. Nilima Mandal and Another reported in (2008) 17 SCC 491 , held that,

¶359

“13. … … When there is no prayer for a particular relief and no pleadings to support such a relief, and when the defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice. … …”

¶360

Admittedly, in the case on hand, the plaintiff sought

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declaration based on adverse possession. However,

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the Courts below rejected the relief regarding adverse possession and granted the relief of declaration to the effect that the plaintiffs are in possession and enjoyment over the suit schedule property, though such a relief was not sought for.

¶365

The Courts below ought not to have granted such a relief in the absence of the prayer to that effect.

¶366

It is settled law that, when the Trial Court has dismissed the suit for relief of a declaration, the plaintiff is not entitled for the consequential relief of declaration to declare that the plaintiff is the absolute

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owner in the absence of a prayer and a relief of permanent injunction. The said view is supported by the judgment of the Hon'ble Apex Court in the case of Padhiyar Prahladji Chenaji (Deceased) Through LRs Vs. Maniben Jagmalbhai (Deceased) Through LRs reported in (2022) 12 SCC 128 , which reads as follows:

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“25. An injunction is a consequential relief and in a suit for declaration with a consequential relief of injunction, it is not a suit for declaration simpliciter, it is a suit for declaration with a further relief. Whether the further relief claimed has, in a particular case as consequential upon a declaration is adequate must always depend upon the facts and circumstances of each case. Where once a suit is held not maintainable, no relief of injunction can be granted. Injunction may be granted even against the true owner of the property, only when the person seeking the relief is in lawful possession and enjoyment of the property and also legally entitled to be in possession, not to disposes him, except in due process of law.”

¶372

Admittedly, in the instant case, it is a suit for declaration to declare that the plaintiff had acquired a title by way of adverse possession with a further relief of a permanent injunction. From the perusal of the judgment passed by the Trial Court, wherein the Trial Court held that the plaintiffs have failed to establish that they have acquired a title by way of

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adverse possession, in paragraph No.85, which reads

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as follows:

¶378

“85. In view of these facts & circumstances of the case, what I am of the opinion is that plaintiffs have miserably failed to prove the starting point of time of their hostile title against the Govt. Even otherwise, Govt. cannot be considered as the owner of suit land as it does not vest in the Govt. as provided U/S.16(1) of the L.A. Act. Therefore the plaintiffs also cannot claim adverse possession against the Govt. who is not owner.”

¶379

The Trial Court also failed to consider the well

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established principle of law that the plaintiff who comes to the Court must establish his stand independently, and cannot depend upon the weakness of the defendant. The Trial Court has failed to consider the well established principle of law. Admittedly, in the instant case the plaintiffs are claiming to be the owner of the suit schedule property by way of adverse possession. Therefore, it is for the plaintiffs to prove that they have acquired a title by way of adverse possession.

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The Hon'ble Apex Court in the case of Union of

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India vs. Vasavi Co-operative Housing Society

¶385

Ltd., reported in AIR 2014 SC 937 , held that, the plaintiff in a suit for declaration of title and possession could succeed only on the strength of his

¶386

own title and that could be done only by adducing sufficient evidence to discharge the onus, which is on him, irrespective of the question whether the defendants have proved their case or not; even if the title set up by the defendants is found against, in the absence of establishment of plaintiff's own title, plaintiff must be non-suited. The said aspect was not considered by the Courts below and committed an error in passing the impugned judgments. The impugned judgments passed by the Courts below are arbitrary and erroneous.

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The Trial Court has failed to consider the documents produced by the defendant i.e., Exhibit D12 which discloses that the final notification was issued on

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HC-KAR

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09.05.1949 acquiring the suit schedule property. The final notification issued on 09.05.1949 had attained finality as Ananda Naik has challenged the said notification in a writ petition, and the writ petition came to be dismissed by this Court. Further, the defendants also produced the documents marked as Exhibits D14 to D24. The Trial Court, without considering the said aspects, decreed the suit of the plaintiff declaring that the plaintiffs are in absolute possession of the suit property in the absence of prayer.

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In view of the above discussion, I answer substantial question of law No.1 in the negative and substantial question of law No.2 in the affirmative. Accordingly, I proceed to pass the following:

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ORDER

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