The Chief Secretary Vs Smt Saraswathamma

THE RFA IS FILED UNDER SECTION 96 R/W ORDER XLI RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 24.02.2000 PASSED IN OS No. 21/1998 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE (SR.DN.), BANGALORE ALLOWING AND DECREEING THE SUIT FOR DECLARATION AND INJUNCTION.

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THIS APPEAL, COMING ON FOR FURTHER ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE R. NATARAJ

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ORAL JUDGMENT

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This appeal is filed challenging the judgment and decree dated 24.02.2000 in O.S.No.21/1998 on the file of the II Additional Civil Judge (Sr.Dvn), Bengaluru District, Bengaluru.

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I.A.No.1/2023 is filed for condonation of delay of

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7,878 days in filing the appeal. It is stated in the affidavit accompanying the application that the respondent had filed O.S.No.21/1998 for declaration that she had perfected her title to the suit property by adverse possession. It is stated that the appellants were placed ex parte in the said suit. It is alleged that the notice issued in the suit was not served either on the official concerned or by way of affixture or by publication in a

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newspaper. It is contended that the respondent did not comply with Section 80 of the Code of Civil Procedure, 1908 (henceforth referred to as ‘CPC’). It is also contended that the appellants came to know of the ex parte judgment and decree only on 10.07.2023, when contempt petition No.1102/2022 was taken up by this Court.

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(ii) It is claimed that soon after coming to know of the decree, the same was brought to the notice of the Deputy Commissioner and he corresponded with the Secretary of the Revenue Department and steps are now taken to challenge the ex parte judgment and decree passed in O.S.No.21/1998.

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(iii) It is further claimed that the respondent had filed W.P.No.22874/2000 and this Court had directed the authorities to consider the representation of the respondent for change of khatha. It is claimed that the husband of the respondent had filed an application for regularization of his unauthorized cultivation and the same was rejected on 04.04.1998 and that the same was not brought to the notice of the trial Court in O.S.No.21/1998.

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(iv) It is also claimed that the suit property is within 18 Kilometers from the Bruhat Bengaluru Mahanagara Palike (BBMP) limits and therefore, the respondent was not entitled for regularization of her unauthorized cultivation. Thus, it is claimed that the ex parte judgment and decree passed in O.S.No.21/1998 is without reference to the rejection of the application filed by the respondent's husband for regularization of the unauthorized cultivation. Besides this, it is contended that the land in question is valuable government land and that the question of claiming perfection of title by adverse position does not arise.

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(i) An additional affidavit is filed by the appellants in support of this application wherein it is stated that the husband of the respondent had filed an application in Form No.50 on 21.07.1991 seeking regularization of his unauthorized cultivation and that the said application was rejected by the committee on 04.04.1998 and that the rejection of the application was not challenged by the respondent and hence attained finality. Contrary to their earlier stand, the appellants claimed that the respondent had issued a notice under Section

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80 of CPC to the appellants. However, material facts regarding earlier proceedings initiated by the respondent’s husband for regularization of unauthorized cultivation and the consequent rejection of the application was not disclosed in the notice. Therefore, it is claimed that the respondent has not approached the Court with clean hands.

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(ii) It is next contended that the name of the respondent was entered in the revenue records of the suit property on 05.02.2020 and that the said entries do not confer any title on the respondent in the absence of any lawful grant by the State Government.

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(iii) It is stated that on 29.06.2000, the respondent filed W.P.No.22874/2000 to consider her representation for change of khatha and this Court in terms of an order dated 21.07.2000, allowed the writ petition and directed Tahasildar to consider the representation. The respondent made a representation to the Assistant Commissioner, Bengaluru North Sub-Division on 05.08.2000 and on 28.04.2005 respectively for change of khatha and the said representations were pending for consideration. Therefore, it is claimed that the respondent

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herself was seeking regularization and recognition of her claim through administrative processes even after obtaining the decree in O.S.No.21/1998.

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(iv) It is further claimed that on 15.11.2018, the respondent filed an appeal before the Assistant Commissioner, Bengaluru North Sub-Division in R.A.No.BN/233/2018-19, for entering her name in the RTC based on the decree in O.S.No.21/1998 and the Assistant Commissioner by an order dated 08.03.2019, directed the Tahasildar to mutate the name of the respondent in the revenue records. It is contended that the Assistant Commissioner without proper records and without calling for records from the Tahasildar’s office had passed an incorrect order and based on the same, Special Tahsildar had effected mutation in M.R.No.H5/2019-2020 dated 05.02.2020 and entered the name of the respondent in the revenue records.

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(v) It is also contended that the respondent filed W.P.No.2363/2020 for a writ in the nature of mandamus to direct the implementation of the order passed by the Assistant Commissioner and this Court disposed of the Writ Petition on

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28.02.2020 as by that time entries were already carried out in the name of the respondent. It is contended that the authorities before entering the name of the respondent should have checked the records and claimed that effecting khatha in respect of the suit property, caused financial loss to the state exchequer , as the suit property belonged to the State Government.

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(i) It is also contended that on 21.07.2020, the respondent filed an application for phodi of the subject land before the appellant No.3, the respondent filed W.P.No.16061/2022, which was disposed of in terms of an order dated 08.09.2022 directing the Tahasildar to conduct phodi within a period of four weeks.

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(ii) Thereafter, the respondent initiated CCC No.1102/2022 and the communication dated 07.10.2023 was addressed by the law officer to the appellants and it was only then that the appellants came to know about the ex parte decree passed in O.S.No.21/1998.

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(iii) It appears that on 08.11.2023, the appellant No.1 issued a government order to file an appeal against the ex

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parte judgment and decree passed in O.S.No.21/1998. The appellants contend that the sequence of events mentioned above clearly establishes that the respondent was pursuing multiple proceedings and has suppressed material facts, particularly the rejection of Form No.50 on 04.04.1998. Therefore, it is claimed that the ex parte judgment and decree obtained by the respondent is fraudulent and is therefore liable to be set aside.

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(i) This application is opposed by the respondent, who has filed a statement of objections contending that the respondent had filed O.S.No.21/1998 for declaration that the respondent had perfected her title to the suit property by adverse possession. She contends that her husband was in actual cultivation and enjoyment of the suit property from the year 1965 till he died on 20.11.1996. Thereafter, the respondent continued in possession of the suit property, which was known to the appellants.

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(ii) It is also contended that the summons in the suit in O.S.No.21/1998 was served on the appellants on 20.01.1998, as the same is admitted in paragraph No.5 of the memorandum

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of appeal. As the appellants did not appear before the trial Court, they were placed ex parte and the trial Court proceeded to decree the suit based on the documents marked in the suit. She contends that the reasons mentioned by the appellants for condonation of 7,878 days is not acceptable, as they are neither just nor proper and are not sufficient to condone the delay.

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The learned Additional Advocate General appearing for the appellants reiterated the above contentions and submitted that the appellants were not served with the summons in the suit and therefore, the appellants could not defend the suit filed by the respondent. He contends that the appellants came to know of the decree only when the contempt petition was filed to compel the compliance of the order passed in W.P.No.16061/2022. He submits that the respondent has suppressed material fact and has obtained a decree, which is fraudulent and hence, the delay caused in filing this appeal has to be condoned, as fraudulent decrees can be upset even in collateral proceedings. He therefore contends that the delay of 7,878 days in filing the appeal may be condoned.

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(i) Per contra, the learned Senior Counsel for respondent No.1(A) and 1(B) submits that the suit was disposed of on 24.02.2000 and thereafter, W.P.No.22874/2000 was filed for a direction to consider the representation for change of khatha and that the said writ petition was disposed of on 21.07.2000. He contends that even then, the appellant did not wake up and did not file the appeal. Thereafter, the proceedings were initiated before the Assistant Commissioner, who passed an order dated 08.03.2019 directing the Tahasildar to transfer the name of the respondent in the revenue records. Since the said order of the Assistant Commissioner was not complied, W.P.No.2363/2020 was filed for a direction to the Assistant Commissioner to implement the order. However, in the meanwhile, the name of the respondent was entered in the revenue records pursuant to acceptance of M.R.No.H5/2019-20 and hence, W.P.No.2363/2020 was disposed of.

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(ii) He contends that even then, the appellants did not

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wake up and filed an appeal in time. Thereafter, the respondent filed W.P.No.16061/2022 for bifurcation of the suit property from the larger survey number and assigning a new survey

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number and the said writ petition was disposed of in terms of an order dated 08.09.2022. He contends that a contempt petition was thereafter filed to implement the order passed in W.P.No.16061/2022. Thus, he contends that the appellants are not diligent but have been negligent in defending the suit and in filing a highly belated appeal. Therefore, he submits that there is no justifiable reason to condone the enormous delay of 7,878 days in filing the appeal.

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I have considered the submissions made by the learned Additional Advocate General for the appellants and the learned Senior Counsel for the respondent Nos.1(a) and 1(b).

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The records of the trial Court disclose that the summons issued to the defendants in the suit namely the appellants herein, was served on the Deputy Commissioner of Bengaluru District on 20.01.1998. Likewise, the notice issued to the Tahsildar, Bengaluru North Taluk was served on 20.01.1998. The notice issued to the Government of Karnataka, represented by the Chief Secretary was served on 20.01.1998. As a matter of fact, the appellants in their appeal at paragraph No.5 have stated as follows:

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“The Plaintiff has paid the process fee on 17.01.1998 and the suit summons is personally served on the Defendants/Appellant Nos.1 to 3 on 20.01.1998, within 5 days from the date of paying the process fee and on 22.01.1998, the Defendants/Appellants were placed ex-parte."

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Therefore, it is more than evident that the appellants were aware of filing of the suit by the respondent. Therefore, the appellants were bound to be diligent, more particularly when the respondent had sought for declaration of title by adverse possession in respect of a property, which belongs to the appellant No.1. The appellants have laid low for nearly 23 years, by which time the respondent had taken out further steps for getting her name entered in the revenue records and also for bifurcation of the property and assignment of a new survey number. Therefore, the appellants cannot now contend that they had no knowledge about the suit filed by the respondent in O.S.No.21/1998. It is profitable to refer to the judgment of the Hon'ble Apex Court in the case of State of Madhya Pradesh and others vs. Bherulal [(2020) 10 SCC 654] where it was held:

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"6. We are also of the view that the aforesaid approach is being adopted in what we have categorised earlier as “certificate cases”. The object appears to be to obtain a certificate of dismissal from the Supreme Court to put a quietus to the issue and thus, say that nothing could be done because the highest Court has dismissed the appeal. It is to complete this formality and save the skin of officers who may be at default that such a process is followed. We have on earlier occasions also strongly deprecated such a practice and process. There seems to be no improvement. The purpose of coming to this Court is not to obtain such certificates and if the Government suffers losses, it is time when the officer concerned responsible for the same bears the consequences. The irony is that in none of the cases any action is taken against the officers, who sit on the files and do nothing. It is presumed that this Court will condone the delay and even in making submissions, straightaway the counsel appear to address on merits without referring even to the aspect of limitation as happened in this case till we pointed out to the counsel that he must first address us on the question of limitation."

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The claim of the appellants that the respondents have suppressed material facts particularly about the filing of an application before the committee for regularization of unauthorized cultivation and the consequent rejection of the application, is a question that would arise for consideration only

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when the appellant gets over the delay of 7,878 days in filing this appeal. Assuming that the respondent had filed an application for regularization of unauthorized cultivation and that the said application was rejected, since the respondent had based her claim for adverse possession on the ground that her husband was in possession prior to 1970, the mere rejection of the application for regularization of unauthorized cultivation could not come in the way of the trial Court taking up the suit for considering the question whether the respondent is entitled for declaration of title by prescription.

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Since this Court is of the opinion that there is no satisfactory material produced by the appellant to establish that the appellant was prevented by sufficient cause in filing the appeal within the prescribed time, the application does not merit consideration. Consequently, I.A.No.1/2023 is dismissed and resultantly, the appeal also stands dismissed .

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Sd/(R. NATARAJ) JUDGE

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BKN

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List No.: 1 Sl No.: 15

The Chief Secretary v. Smt Saraswathamma

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The Chief Secretary v. Smt Saraswathamma

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