IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN REGULAR SECOND APPEAL No.1674/2012 (DEC/INJ) BETWEEN 1. B.K. SUNDARI W/O. LATE KARIAPPA RAI, AGED ABOUT 71 YEARS, 2. B.K. JANARDHAN S/O. LATE KARIAPPA RAI, AGED ABOUT 48 YEARS, 3. B.K. RADHAKRISHNA S/O. LATE KARIAPPA RAI, AGED ABOUT 43 YEARS, 4. B.K. RAVI S/O. LATE KARIAPPA RAI, AGED ABOUT 40 YEARS, ALL ARE RESIDING AT BILIGERI VILLAGE, MADIKERI TALUK, KODAGU DISTRICT – 571 201.
(BY SRI T.A. KARUMBAIAH, ADVOCATE) ...APPELLANTS AND 1. STATE OF KARNATAKA BY ITS CHIEF SECRETARY, VIDHANA SOUDHA, BANGALORE –1.
2. REVENUE INSPECTOR OF HAKATHUR CIRCLE, MADIKERI TALUK – 571 201.
3. THE DEPUTY COMMISSIONER KODAGU, MADIKERI – 571 201.
4. TAHSILDAR MADIKERI TALUK, MADIKERI – 571 201.
5. DEPUTY DIRECTOR OF PUBLIC INSTRUCTIONS, MADIKERI – 571 201.
… RESPONDENTS (BY SMT. SAVITHRAMMA, HCGP FOR R1-R5) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CIVIL PROCEDURE CODE, AGAINST THE JUDGMENT AND DECREE DATED 05.07.2012 PASSED IN R.A.No.2/2010 ON THE FILE OF SENIOR CIVIL JUDGE, MADIKERI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 30.05.2006 PASSED IN O.S.No.11/2005 ON THE FILE OF PRINCIPAL CIVIL JUDGE (JR.DN), MADIKERI.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the appellants/plaintiffs being aggrieved by the judgment and decree passed by the Senior Civil Judge, Madikeri (hereinafter referred to as the ‘1st Appellate Court’) in RA.No.2/2010 for having allowed the appeal filed by the defendants by judgment dated 05.07.2012, wherein the 1st Appellate Court has set aside the decree passed by the Prl. Civil Judge (Jr.Dn.), Madikeri (hereinafter referred to as the ‘trial Court’) in O.S.No.11/2005 dated 30.05.2006.
2. Heard the arguments of learned counsel for the appellants as well as the learned HCGP for the respondents.
3. The status of the parties before the Trial Court is retained for the sake of convenience.
4. The case of the plaintiffs in brief before the trial Court is that the plaintiffs filed a suit as against the defendants seeking relief of declaration that they are in exclusive possession of the suit schedule property measuring 15 cents of land in Sy.No.334 of Biligeri Village, Madikeri Taluk, more fully described in the plaint schedule (hereinafter referred to as the ‘schedule property’) and they perfected their title by way of adverse possession openly peacefully, continuously as of their right and adverse to the interest of defendants and also seeking for permanent injunction restraining the defendants, their agents, servants from interfering with peaceful possession and enjoyment of the property. It is also contended that they are in possession of the property since 1970 and they constructed a wooden pole thatched house. Thereafter, in the year 1974, the husband of 1st plaintiff filed an application before the Land Tribunal for granting of occupancy right in his favour, which came to be dismissed and subsequently, the suit was filed by defendant Nos.4 and 5 who controls the Hakathoor Modern Primary School. The plaintiff No.1 filed a suit in OS.No.139/1992 against the Hakathoor Primary School before the Civil Judge (Jr.Dn.), Madikeri, and obtained the decree and against the said decree, the Head Master of the school filed R.A.No.14/1996 before the Civil Judge (Sr.Dn.), Madikeri, which came to be dismissed on 07.08.2003. In the meantime, the school authority filed a eviction suit against the plaintiffs in O.S.No.178/1996 on the file of Prl. Civil Judge (Sr.Dn.), Madikeri, which came to be dismissed on 05.10.2002 and no appeal has been preferred against the said suit. Defendant No.2 who is the son of defendant Nos.1 and 3 has filed O.S.No.151/1987 on the file of Addl. Munsiff, Madikeri for the relief of permanent injunction, which came to be dismissed on 03.01.1991. Since then, the plaintiffs are in possession and enjoyment of the schedule property. Hence, prayed for allowing the suit.
5. Pursuant to the notice, the defendants though appeared before the Court through the learned District Government Pleader, but not chosen to file any written statement. Plaintiff No.1 examined as PW.1 and also examined one more witness as P.W.2 and marked 26 documents as Exs.P.1 to P26.
6. Based on rival pleadings, the trial Court framed the following points:
1. Whether the plaintiffs are entitled for reliefs as prayed for?
2. What order?
7. After considering the evidence on record, the trial Court answered point No.1 in affirmative and ultimately, decreed the suit. Assailing the same, the defendants filed RA.No.2/2010. The 1st Appellate Court after hearing the arguments allowed the appeal preferred by the defendants and set aside the decree passed by the trial Court. Assailing the same, the plaintiffs are before this Court by way of this second appeal.
8. Learned counsel for the appellants/plaintiffs strenuously contended that the plaintiff obtained the decree in his favour in O.S.No.151/1987 as well as O.S.No.139/1992 restraining the obstructers from interfering with the peaceful possession and enjoyment of the suit schedule property. Since 1970 the husband of 1st plaintiff is in peaceful possession and enjoyment of the property. The husband of 1st plaintiff has constructed the house and they are paying taxes from the year 1979. Even the husband of 1st plaintiff filed an application for re-grant of land by filing Form No.7 in the year 1976, which clearly go to shows that from the year 1970, the plaintiffs are in possession and enjoyment of the suit schedule property and thereby, they perfected the title by way of adverse possession. The trial Court has rightly decreed the suit by considering the evidence on record. The defendants have not at all filed the written statement and they were allowed to examine the witnesses. The 1st Appellate Court has committed an error in reversing the judgment passed by the trial Court and allowing the appeal preferred by the defendants, which is not sustainable under law. The judgment in O.S.No.178/1996 which was filed by the School Authorities and the Chairman of the Village Panchayath came to be dismissed on 05.10.2002 and O.S.No.139/1992 was filed by plaintiff No.1 against the same School Authorities and O.S.No.151/1987 was filed by defendant No.2, which came to be dismissed on 03.01.1991. These documents and decrees shows that the plaintiffs are in possession and enjoyment of the suit schedule property for more than 35 years. Such being the case, defendant No.4 who is the Deputy Director of Public Instructions has filed eviction suit in OS.No.178/1996, which came to be dismissed on 05.10.2002 holding that the school is not the owner of the suit schedule property and against the said judgment, no appeal has been preferred by the said Hakathoor Primary School.
9. Per contra, learned HCGP for the respondents has contended that though the defendants have not filed any written statement before the trial Court, but the 1st Appellate Court has rightly re-appreciated the evidence. The plaintiffs have not produced any document to show that they have perfected the title. The defendants are not made as parties in the earlier suits i.e., in OS.No.151/1987, O.S.No.178/1996 or O.S.No.139/1992. Absolutely, there is no interference with the property. Therefore, prayed for dismissal of the appeal.
10. Upon hearing the learned counsel for both the appellants as well as learned HCGP for the respondents, the substantial questions of law involved in this appeal are as under:
1. Whether the plaintiffs by filing the suit against the defendants perfected the title by way of adverse possession?
2. Whether the 1st Appellate Court is justified in reversing the judgment and decree passed by the trial Court, even though, the plaintiffs perfected the title and enjoyment of the property for more than 35 years?
11. Insofar as first substantial question of law is concerned as to whether the plaintiffs can file a suit against the defendants for perfecting the title by way of adverse possession and is there any bar for filing such a suit?
In this regard, learned counsel for the appellants has contended that though, in the earlier decisions of the Hon’ble Apex Court and various High Courts in the Country as held that only the defendant can take defence in the suit filed by the plaintiff by way of perfecting the title by adverse possession and cannot file a suit. However, the Hon’ble Apex Court in recent judgment in the case of Ravinder Kaur Grewal and Others Vs. Manjit Kaur and Others Radhakrishna Reddy (D) through Lrs., Vs. G.Ayyavoo and Others, reported in AIR 2019 SC 3827, while considering the appeal at paragraph No.46 and 61 has held as under:
“46. The conclusion reached by the High Court is based on an inferential process because of the language used in the III rd Column of Article 65. The expression is used, the limitation of 12 years runs from the date when the possession of the defendant becomes adverse to the plaintiff. Column No.3 of Schedule of the Act nowhere suggests that suit cannot be filed by the plaintiff for possession of immovable property or any interest therein based on title acquired by way of adverse possession. There is absolutely no bar for the perfection of title by way of adverse possession whether a person is suing as the plaintiff or being sued as a defendant. The inferential process of interpretation employed by the High Court is not at all permissible. It does not follow from the language used in the statute. The large number of decisions of this Court and various other decisions of Privy Council, High Courts and of English courts which have been discussed by us and observations made in Halsbury Laws based on various decisions indicate that suit can be filed by plaintiff on the basis of title acquired by way of adverse possession or on the basis of possession under Articles 64 and 65. There is no bar under Article 65 or any of the provisions of Limitation Act, 1963 as against a plaintiff who has perfected his title by virtue of adverse possession to sue to evict a person or to protect his possession and plethora of decisions are to the effect that by virtue of extinguishment of title of the owner, the person in possession acquires absolute title and if actual owner dispossesses another person after extinguishment of his title, he can be evicted by such a person by filing of suit under Article 65 of the Act. Thus, the decision of Gurudwara Sahib v. Gram Panchayat, Sirthala (supra) and of the Punjab & Haryana High Court cannot be said to be laying down the correct law. More so because of various decisions of this Court to the contrary.
61. Resultantly, we hold that decisions of Gurudwara Sahab v. Gram Panchayat Village Sirthala (supra) and decision relying on it in State of Uttarakhand v. Mandir Shri Lakshmi Siddh Maharaj (supra) and Dharampal (dead) through LRs v. Punjab Wakf Board (supra) cannot be said to be laying down the law correctly, thus they are hereby overruled. We hold that plea of acquisition of title by adverse possession can be taken by plaintiff under Article 65 of the Limitation Act and there is no bar under the Limitation Act, 1963 to sue on aforesaid basis in case of infringement of any rights of a plaintiff”.
12. In view of the judgment of the Hon’ble Apex Court that there is no bar for the plaintiffs to file a suit to perfect the title by way of adverse possession. Such being the case, the suit of the plaintiffs is sustainable and maintainable for perfecting the title by way of adverse possession. Accordingly, answered the first substantial question of law in favour of the plaintiffs as against the defendants.
13. Insofar as second substantial question of law is concerned as to whether the 1st Appellate Court justified in deciding the case holding that there is no evidence to prove the adverse possession?
14. In this regard, admittedly, the defendants have not filed any written statement before the trial Court, whereas the 1st plaintiff examined herself as P.W.1 and examined one more witness as P.W.2 and got marked 26 documents as Exs.P.1 to P.26. Exs.P.21 and P.22 are the certified copies of the judgment and decree in OS.No.178/1996 wherein the Head Master of the Government Model Primary School and the Chairman of the Village Panchayath, Hakathoor, filed a suit against the defendants for ejecting them from the suit schedule property on the ground that scheduled property was granted to the School Authorities in the year 1958, but the said suit came to be dismissed by the trial Court on 05.10.2002. The reference is also available in the said judgment, where defendant No.2 who is the son of defendant Nos.1 and 3 (in earlier suit in O.S.No.178/1996) has instituted O.S.No.151/1987 before the Addl. Munsiff, Madikeri, for permanent injunction which came to be dismissed on 03.01.1991. Admittedly, there is no appeal filed against the said judgment. Though, the defendants are not party to the said suit, however, the Chairman of the Village Panchayath, Hakathoor and the Head Master of the Government Model Primary School has filed this suit.
15. These judgments clearly go to show that the plaintiffs are in possession and enjoyment of the suit schedule property from the year 1970 and it is also referred that in the year 1974 the husband of the 1st plaintiff namely Kariyappa Rai filed an application before the Land Tribunal under the Land Reforms Act, 1974 for re-granting of the land, which came to be dismissed and it is also not in dispute that the suit in O.S.No.139/1992 was filed by plaintiff No.1 and obtained the decree. This decree was obtained by the plaintiffs in their favour, which clearly goes to show that they are in possession and enjoyment of the property for more than 30 years as on the date of filing the suit in the year 2005. The trial Court also considered the tax paid receipts. Ex.P.1 is the Jamabandi which reveals that the owner of the land is Government. Exs.P.2 to P.7 are the tax paid receipts pertaining to the dates of 21.1.1979, 15.02.1994, 23.03.1993, 04.03.1981, 10.03.1995 etc., which all go to show that the plaintiffs are paying the taxes from 1979 till 2001. Ex.P.14 is the certificate issued by the Hakathoor Grama Panchayath, which also shows that plaintiff No.1 and her husband are in possession of the house property from 1970. Ex.P.19 is another certificate issued by the President of the Grama Panchayath, Hakathoor, which states that the plaintiffs are residing in the suit schedule property from 1970 till date. Ex.P.26 is the receipt for payment of house tax by plaintiff No.1. These documents clearly corroborates with the evidence of P.Ws.1 and 2 and they are able to prove that they are in possession and enjoyment of the suit schedule property for more than 35 years. The trial Court has rightly decreed the suit by appreciating the evidence. Even though, the defendants have permitted to cross-examine the P.Ws.1 and 2, but nothing elicited to disbelieve their evidence. Even though the defendants have not chosen to file the written statement, but contested the case. However, the defendants have not chosen to resume the land in question for the Government except filing the appeal before the 1st Appellate Court. The 1st Appellate Court has not properly appreciated the evidence and documents produced by the plaintiffs before the trial Court. Absolutely, there is no evidence let in by the defendants before the trial Court. Such being the case, the 1st Appellate Court has committed error in setting aside the judgment and decree passed by the trial Court. In the absence of nil evidence on the side of defendants, considering the evidence on record and in view of the judgment of the Hon’ble Apex Court stated supra, the plaintiffs are successful in proving the title by way of adverse possession by enjoying the property for more than 35 years. Therefore, they are entitled for decree. The judgment passed by the 1st Appellate Court is not correct and not supported any documentary or oral evidence on the side of the defendants, which requires to be set aside. Hence, I pass the following ORDER The appeal filed by the appellants/plaintiffs is allowed. The judgment of the 1st Appellate Court in RA.No.2/2010 dated 05.07.2012 is hereby set aside and the judgment and decree of the trial Court in OS.No.11/2005 dated 30.05.2006 is hereby confirmed.
SD/- JUDGE PB