Kareem Khan Vs State of Karnataka

THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 25.3.2013 PASSED IN R.A.NO.168/2012 ON THE FILE OF I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, SHIMOGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 20.10.2012 PASSED IN OS.NO.515/2007 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC, SHIMOGA.

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THIS APPEAL, COMING ON FOR ORDERS, 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 appellants challenging the

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judgment and decree dated 25.03.2013 passed in R.A. No.168 of 2012 by the learned I Additional Senior Civil Judge and C.J.M., Shivamogga and the judgment and decree dated 20.10.2012 passed in O.S. No.515 of 2007 by the learned Principal Civil Judge and J.M.F.C., Shivamogga.

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For convenience, the parties are referred to based on their rankings before the Trial Court. The appellants were the legal representatives of the plaintiff and the respondents were the defendants.

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

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The plaintiff filed a suit against the defendants for declaration to declare that the plaintiff is the owner and has acquired title by way of adverse possession and a consequential relief of confirmation of possession over the suit schedule property.

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It is the case of the plaintiff that the suit land was in possession and enjoyment of his father-Usman Khan, who was a tenant under the inamdar before the introduction of the Inams Abolition Act and the inamdar also executed a registered sale deed with respect to the suit schedule property in favour of Usman Khan. Subsequent to the introduction of Inams Abolition Act, Usman Khan had filed an application seeking an order to grant the land and to confirm the possession.

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During his lifetime, Usman Khan had purchased Block No.20 V.S. No.6 and Block No.92 V.S. No.25 under the registered sale deed from the Inamdars. Thereafter, Usman Khan filed an application before the Special Deputy Commissioner for Abolition of Inams, Mysore Division, Mysore. Accordingly, the Deputy Commissioner after holding an enquiry passed an order registering the name of Usman Khan as he was the successor-in-interest of Inamdar. The Deputy Commissioner while passing the order dated 28.12.1963, rejected the application submitted by Usman Khan with respect to Block No.91, holding that he purchased the property from Inamdar without obtaining the permission of the Deputy Commissioner. Usman Khan died in 1964 and subsequent to his death, the plaintiff came in possession and enjoyment of the suit schedule property. It is contended that he is in possession of the suit property, openly to the knowledge of the

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authorities of the Government and the society at large and he is in continuous possession without any interference since, the date of sale deed executed by the Inamdars in favour of the plaintiff’s father i.e., from 01.09.1954. The defendants have no right, title or interest over the suit schedule property. Hence, prays to decree the suit.

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Defendant No.3 filed a written statement and defendant Nos.1 and 2 adopted the written statement filed by defendant No.3 by filing a memo.

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Defendant No. 3 denied the averments made in the plaint and contended that the suit schedule property is vested with the Government and the Government is in possession of the suit schedule property. Neither the plaintiff nor his predecessors-in-title were in possession of the suit schedule property. It is contended that the suit schedule property, being an inam land, vested with the Government after the

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Inams Abolition Act, came into force. Hence, the plaintiff cannot claim to be a tenant. The suit schedule property is Kere Kharabu land, and the entries made in the revenue records are as Kere Kharabu. It is contented that the plaintiff has not acquired any title by way of adverse possession and the suit filed by the plaintiff is not maintainable against defendant Nos.1 to 3 for want of statutory notice. Hence, prays for the dismissal of the suit.

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Defendant No.4 filed a written statement denying the averments made in the plaint. It is contended that it is not within his knowledge of the plaintiff's father was a tenant under the previous inamdar and after the introduction of Inams Abolition Act, the Inamdar executed a registered sale deed with respect to the suit schedule property in favour of one Usman Khan. It is contended that Usman Khan is the grand-father of defendant No.4. The grand-father had four sons. The plaintiff had filed a suit in O.S. No.683 of 1989

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for partition and separate possession and the suit item was included under the claim of partition. The said suit is pending consideration. Thus, it is contended that the plaintiff cannot claim that he has become the absolute owner by virtue of adverse possession and hence, the suit filed by the plaintiff is not maintainable. Hence, on these grounds, prays to dismiss the suit.

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

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" 1. Whether plaintiff proves that he is in lawful possession of suit property as on the date of suit as contended in the plaint?

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Whether plaintiff further proves that his father has validly purchased the suit property as contended in the plaint?

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Whether plaintiff further proves that suit property is agricultural

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land and not " Kere Kharab " as contended in the plaint?

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Whether plaintiff further proves the alleged interference by defendants as contended in the plaint?

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What Order or Decree?

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Additional Issues:

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Whether the plaintiff proves that he has perfected his title as against the defendants by way of adverse possession as alleged?

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Whether the suit filed by the plaintiff is bad for non-joinder of necessary parties?

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Whether the suit filed by the plaintiff is maintainable?

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Whether the plaintiff is entitled for the relief of declaration, confirmation and permanent injunction, as prayed for?"

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The plaintiff, to substantiate his case, examined himself as PW-1, examined two witnesses as PW-2 and PW-3; and marked 15 documents as Exhibits P-1 to P-15.

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On the other hand, on behalf of defendant Nos.1 to 3, defendant No.3 was examined as DW-1, defendant No.4 was examined as DW-2 and no documents were marked.

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The Trial Court, after recording the evidence, hearing both sides and assessing the verbal and documentary evidence, answered issue Nos.1 to 4 in the negative; additional issue Nos.1, 3 and 4 in the negative; additional issue No.2 in the affirmative; issue No.5 - as per the final order, and, the suit of the plaintiff was dismissed vide judgment and decree dated 20.10.2012.

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The plaintiff, aggrieved by the dismissal of suit in O.S. No.515 of 2007 preferred an appeal in R.A. No.168 of 2012 on the file of the learned I Additional Senior Civil Judge and C.J.M., Shivamogga.

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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 findings of the trial Court that the plaintiff has failed to prove his title to the suit property by adverse possession can be sustained?

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Whether the impugned judgment and decree calls for interference?

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What order or decree?"

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The First Appellate Court, after re-appreciating the entire evidence on record, answered point No.1 in the affirmative, point No.2 in the negative and point No.3 as per the final order and consequently, dismissed the appeal with costs throughout and confirmed the judgment and decree passed by the Trial Court.

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The legal representatives of the plaintiff, aggrieved by the impugned judgments, filed this Regular Second Appeal.

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Heard the learned counsel for the LRs of the plaintiff and the learned Additional Government Advocate for defendant Nos.1 to 3.

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Learned counsel for the LRs of the plaintiff submits that the plaintiff is in possession of the suit schedule property for more than five decades without interruption, obstruction and hostile to the defendants, and the plaintiff had perfected his title by adverse possession. He submits that the name of the plaintiff is appearing in the revenue records for more than five decades. Thus, the said aspect was not properly considered by the Courts below and committed an error in passing the impugned judgments. Hence, on these grounds, prays to allow the appeal.

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Per contra , the learned Additional Government Advocate for the State, supported the impugned judgments and contended that the suit land is an inam land and the application filed by the tenant came to be rejected and the said land vested with the Government by operation of law, and the Government is in possession of the suit schedule property. He submitted that the revenue records produced by the plaintiff is not being supported with any credible piece of evidence and that the said revenue records have no evidentiary value in civil cases. The plaintiff has failed to establish that the plaintiff is in possession and enjoyment of the suit schedule property for more than five decades.

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To buttress his arguments, he placed reliance on the judgment of the Hon'ble Apex Court in the case of STATE BANK OF TRAVANKOR VS. ARVINDAN KUNJU AND

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OTHERS reported in AIR 1971 SC 996 .

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The Courts below have concurrently recorded a finding of fact against the plaintiff stating that the plaintiff is not in possession and enjoyment of the suit schedule property. He submits that the impugned judgments passed by the Courts below are just and proper and do not call for any interference at the hands of this Court. Hence, on these grounds, prays to dismiss the appeal.

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This Court admitted the appeal to consider the following substantial question of law:

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"Whether the Courts below failed to consider the plaintiff being the successor-in-interest of an inam land whose possession was not disturbed by the Government for well over the statutory period, had perfected his title to the suit property by adverse possession ? "

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Reg. Substantial Question of Law:

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The plaintiff to substantiate his case examined

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himself as PW-1. He has deposed that his father

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Usman Khan was in possession and enjoyment of the suit schedule property as a tenant and subsequently, after the commencement of the Inams Abolition Act, Usman Khan submitted an application for re-grant of the suit schedule property. The said application was rejected by the concerned authority. Despite rejection, Usman Khan continued in possession of the suit schedule property. The said fact was within the knowledge of the Government officials. The plaintiff has perfected his title by way of adverse possession.

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The plaintiff to substantiate his case produced documents, Exhibit P-1 is the certified copy of the order passed by the Special Deputy Commissioner, which discloses that the application submitted by Usman Khan for re-grant of suit schedule property was rejected; Exhibit P-2 in the RTC extract. In column No.12 of Exhibit P-2, the name of the plaintiff is shown as the owner; Exhibit P-3 is the Mutation Register Extract which discloses that the said

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property was transferred in the name of the plaintiff in 2007; Exhibits P-4 to P-9 are the tax paid receipts; Exhibit P-10 is the office copy of the legal notice, wherein the plaintiff got issued a legal notice to the defendants; Exhibit P-11 is the postal acknowledgment; Exhibit P-12 is the endorsement; Exhibit P-13 is the mahazar; Exhibit P-14 is the certified copy of the order passed by the Special Deputy Commissioner; Exhibit P-15 is the endorsement.

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The plaintiff also examined two witnesses to prove his possession over the suit schedule property and they have deposed that the plaintiff is the absolute owner of the suit schedule property and the plaintiff acquired the title over the suit schedule property by way of adverse possession.

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In rebuttal, on behalf of defendant Nos.1 to 3, the Government official was examined as DW-1, who has

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deposed that the suit land is an inam land and Usman Khan has filed an application for re-grant of suit land. The said application was rejected by the concerned authority. The rejection of the application filed by Usman Khan has attained finality. He has deposed that the suit land vested with the Government by operation of law and the Government is in possession of the suit schedule property.

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Defendant Nos.1 to 3 have not got marked any documents.

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Defendant No.4 was examined as DW-2. He reiterated the written statement averments in the examination-in-chief.

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From the perusal of the entire evidence on record, the plaintiff claims to be in possession of the suit schedule property for more than five decades. However, the documents produced by the plaintiff i.e., Exhibit P-3 is the mutation order passed by the

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Revenue Authorities in 2007 and the RTC extract marked as Exhibit P-2, is for the year 2006-07. To show that the plaintiff was in possession of the suit schedule property for more than five decades, he has not produced any records.

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To consider the case of the plaintiff that the plaintiff has perfected his title by way of the adverse possession, it is necessary to analyse the concept of adverse possession, which involves three elements namely: (i) the property, subject of the adverse possession; (ii) the possession of the property by person having no right to have the said possession (animus possidendi) (iii) the possession adverse to the true owner;

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In the claim of adverse possession, the title is not disputed. The plea of adverse possession raises mixed question of law and fact. Where a person wants to base his title on adverse possession, he

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should specifically set up a plea. Unless the plea is raised, it cannot be entertained. The plea must be raised and it must be shown when the possession became adverse, so that the starting point of limitation against the party affected can be found. Thus, a person acquires a title by way of adverse possession, when he is in continuous and uninterrupted hostile possession for a period of 30 years or more against the Government. To calculate 30 years period, there should be a starting point. Therefore, the law mandates that a person, who seeks a declaration that he had perfected his title by way of adverse possession over a property, he should specifically plead the date from which his possession becomes adverse to that of the true owner.

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Insofar as proof of the adverse possession is concerned, it is a settled principle that a party claiming adverse possession must prove that his

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possession is nec vi nec clam, nec precario , (without force, without secrecy, without permission) i.e., peaceful, open and continuous. The possession must be adequate, in continuity and in publicity; and to show the extent of adverse possession, one 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; (e) his possession was open and undisturbed. It is only on the proof of all these ingredients, the case of adverse possession is said to be established.

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In the instant case, from the perusal of the contents of the plaint, the plaintiff has not stated when the plaintiff came into possession of the suit schedule property and what was the nature of his possession; whether the nature of possession was known to defendant Nos.1 to 3.

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The plaintiff has failed to establish his possession over the suit schedule property for more than 30 years, as the plaintiff himself has produced Exhibits P-2 and P-3 which are only of the year 2006 and 2007. Thus, the plaintiff has failed to establish that he had acquired the title by way of adverse possession.

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Further, the Hon'ble Apex Court in the case of Hemaji Waghaji Jat vs. Bhikha Bhai Khengarbhai Harijan and others, reported in (2009) 16 SCC 517 held in paragraph 18 as follows:

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"18. In Karnataka Board of Wakf Vs. Government of India (2004) 10 SCC 779 at para 11, this Court observed as under:

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"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. Non-use of the property by the owner even for a long time won't affect his title.

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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 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

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his possession has continued, and (e) his possession was open and undisturbed.

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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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The Co-ordinate Bench of this Court in the case of

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BASAWANTHRA SINCE DECEASED BY HIS LRS V.S RAJKUMAR reported in ILR 2009 KAR 1099 had an occasion to examine the plea of adverse possession held in paragraphs 13, 14, which read as follows:

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"13. 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. A 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

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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 date from which his 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.

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In so far as proof of adverse possession is concerned, it is a wellsettled principle that a party claiming

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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. Therefore, a person who claims adverse possession should show:

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(a) On what date he came into possession,

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(b) What was the nature of his possession,

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(c) Whether the factum of possession was known to the other party

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(d) How long his possession has continued, and

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(e) His possession was open and undisturbed.

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It is only on proof of all these

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ingredients the case of adverse possession is said to have been established. 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

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plead and establish all facts necessary to establish his adverse possession."

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The Hon'ble Apex Court in the case of ANNAKILI VS.

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VEDANAYAGAM AND OTHERS REPORTED IN (2007) AIR

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SCW 6892 held in paragraph 22 as follows:

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"22. Claim by adverse possession has two elements:

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(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

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Act. Mere long possession, it is trite, for a period of more than 12 years without anything more do not ripen into a title."

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The Hon'ble Apex Court in the case of L.N. ASWATHAMA AND ANOTHER VS . V.P.PRAKASH reported in AIR (2009) SCW 5439 , held in paragraph 17 as follows:

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"17. The legal position is no doubt well settled. To establish a claim of title by prescription, that is adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi . The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the

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requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence."

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The Hon'ble Apex Court in the case of STATE OF HARYANA VS. MUKESH KUMAR AND OTHERS reported in

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AIR 2012 SC 559 , held in paragraphs 42, 43, and

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"42. We inherited this law of adverse possession from the British. The parliament may consider abolishing the law of adverse possession or atleast amending and making substantial changes in law in the larger public interest. The Government instrumentalities- including the police- in the instant case have attempted to possess land adversely. This, in our opinion, a testament to the absurdity of the law and a black mark upon the justice system's legitimacy. The Government should protect the property of a citizen- not steal it. And yet, as the law currently stands, they may do just that. If this law is to be retained,

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according to the wisdom of the Parliament, then at least the law must require those who adversely possess land to compensate title owners according to the prevalent market rate of the land or property in question. This alternative would provide some semblance of justice to those who have done nothing other than sitting on their rights for the statutory period, while allowing the adverse possessor to remain on property. While it may be indefensible to require all adverse possessors-some of whom may be poorto pay market rates for the land they possess, perhaps some lesser amount would be realistic in most of the cases. The Parliament may either fix a set range of rates or to leave it to the judiciary with the option of choosing from within a set range of rates so as to tailor the compensation to the equities of a given case."

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"43. The Parliament must seriously consider atleast to abolish "bad faith" adverse possession, i.e., adverse possession achieved through intentional

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trespassing. Actually believing it to be their own could receive title through adverse possession sends a wrong signal to the society at large. Such a change would ensure that only those who had established attachments to the land through honest means would be entitled to legal relief."

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"48. The doctrine of adverse possession has troubled a great many legal minds. We are clearly of the opinion that time has come for change."

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Thus, the plaintiff has failed to establish that he is in possession and the same was not disturbed by the Government for more than the statutory period.

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As observed above, admittedly, the suit land is an inam land. After the Inams Abolition Act came into force, and the application of Usman Khan was rejected, by operation of law, the land vested with the Government. Hence, the question of disturbing the alleged possession of the plaintiff over the suit schedule property would not arise and the plaintiff

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had failed to prove that he had perfected his title by

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way of adverse possession.

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Considering the propositions of law laid down by the Hon'ble Apex Court in the cases referred supra , I do not find any grounds to interfere with the impugned judgments.

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