IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE S.R.KRISHNA KUMAR R.S.A.NO.1998 OF 2007 (INJ) BETWEEN:
1. YOGAPPA GOWDA S/O GIRIYAPPA GOWDA AGED ABOUT 57 YEARS R/O KILAGARU KAIRGUNDA GRAMA P.O. MASTIKATTE HOSANAGAR TALUK SHIVAMOGGA DISTRICT – 577 418.
2. SMT. SHARADAMMA W/O YOGAPPA GOWDA AGED ABOUT 50 YEARS R/O KILAGARU KAIRGUNDA GRAMA P.O. MASTI GRAMA HOSANAGAR TALUK SHIVAMOGGA DISTRICT – 577 418. (BY SRI. R.V. JAYAPRAKASH, ADVOCATE) AND:
1. KADAPPA GOWDA S/O KRISHNA GOWDA AGED ABOUT 49 YEARS R/O KILAGARU KAIRGUNDA GRAMA P.O. MASTI GRAMA …APPELLANTS HOSANAGAR TALUK SHIVAMOGGA DISTRICT – 577 418.
2. MURTHY S/O ANNAPPA GOWDA AGED ABOUT 35 YEARS R/O KILAGARU KAIRGUNDA GRAMA P.O. MASTI GRAMA HOSANAGAR TALUK SHIVAMOGGA DISTRICT – 577 418.
…RESPONDENTS (BY SRI. UMESH MOOLIMANI, ADVOCATE FOR SRI. S.V.PRAKASH, ADVOCATE FOR R-1 R-2 SERVED) THIS APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED: 25.10.2006 PASSED IN R.A.NO.60/1998 ON THE FILE OF THE ADDL.CIVIL JUDGE (SR.DN), JMFC, SAGAR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED: 28.10.1998 PASSED IN O.S.NO. 7/1994 ON THE FILE CIVIL JUDGE (JR.DN) AND JMFC., HOSANAGAR.
THIS APPEAL COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT This second appeal is directed against the impugned judgment and decree dated 25.10.2006 passed in R.A.No.60/1998 by the lower appellate Court allowing the appeal filed by the defendants and thereby dismissing the suit filed by the respondents-plaintiffs.
2. For the sake of convenience, parties are referred to by their respective ranks in the trial Court.
3. The Respondent No.1-plaintiff Kadappagowda filed a suit in O.S.No.7/1994 before the Court below for a decree of permanent injunction restraining the defendants from interfering with his possession and enjoyment of the suit schedule property. It was specifically contended that land bearing Survey No.106 totally measuring 185 acres 38 guntas was reserved for cattle grazing out of which, plaintiff cultivated areca, sugarcane and banana crops. It was also contended that the plaintiff, an agriculturist by occupation was in actual and peaceful settled possession and enjoyment of the said land for more than 20-25 years prior to filing of the suit. The plaintiff also alleged that since he was in unauthorized cultivation and occupation of the suit schedule property, he had paid necessary T.T fine to the State Government and the income from the land was his only source of income. It was further contended that in addition to the aforesaid T.T fine, the plaintiff had also paid property tax in respect of the schedule property and that the revenue records, in particular the RTC for the years 1976-79 showed the name of the plaintiff as being in possession of the suit schedule property for more than 20-25 years. It was contended that the defendants with malafide intention attempted to interfere with the plaintiff’s possession and enjoyment of the schedule property and this lead to the plaintiff filing the present suit for permanent injunction. The second defendant filed his written statement denying the plaint allegations. It was contended that the plaintiff has no manner of right, title and interest or possession over the suit schedule property and since the plaintiff already owned and possessed 2 acres of wet land and 23 guntas of Bagayat land, the plaintiff was not eligible for regularization of the suit schedule property. It was contended that the plaintiff has encroached upon the suit schedule property and has filed the present suit with a malafide intention of regularization of his unauthorized occupation. Under these circumstances, the defendant No.2 sought for dismissal of the suit. Based on the pleadings of the parties, the trial Court framed the following issues:
“ 1. Whether the plaintiff proves that he is in possession of the Suit Schedule Property as an un-authorized and occupant since over 20 years of period and on the date of the Suit?
2. Whether the plaintiff proves that the Defendants illegally interfered with his possession of the Suit Schedule Property?
3. What decree or order?”
4. On behalf of the plaintiff, he examined himself as P.W.1 and Exs.P.1 to P.4 were marked on his behalf. On behalf of the defendants, defendant No.2 was examined as D.W.1 and Exs.D1 to D4 were marked on his behalf.
5. By judgment and decree dated 28.10.1998, the trial Court dismissed the suit filed by the plaintiff inter alia holding that since the plaintiff was in unauthorized possession/occupation of the suit schedule property, his illegal possession and enjoyment cannot be protected, particularly when the suit schedule property undisputedly was a gomal land. The trial Court placed reliance on a judgment of this Court reported in S.Siddappa and others vs. State of Karnataka and another (ILR 1998 KAR 2757) to come to the conclusion that a gomal land should be preserved and reserved for the purpose for which it is specified, i.e., grazing of cattle and even if the plaintiff were to be found in unauthorized cultivation/ occupation/possession of a gomal land, it is impermissible in law to grant injunction in favour of the plaintiff. Under these circumstances, the trial Court dismissed the suit filed by the plaintiff.
6. Aggrieved by the said judgment and decree passed by the trial Court, the unsuccessful plaintiff preferred an appeal in R.A.No.60/1998 before the lower appellate Court. By the impugned judgment and decree dated 25.10.2006, the lower appellate Court reversed the judgment and decree passed by the trial Court and decreed the suit of the plaintiff. Aggrieved by the impugned judgment and decree, the defendants 2 and 3 are before this Court.
7. While admitting this appeal, this Court on 26.02.2009, formulated the following substantial question of law:
“Whether the appreciation of evidence by the lower appellate Court is perverse?”
8. When the matter was taken up for hearing, Sri.R.V.Jayaprakash, learned counsel for the appellant submitted that the suit for permanent injunction in respect of the gomal land filed by the plaintiff was not maintainable in the light of judgment of this Court reported in the case of S.R.Suryanarayana Rao vs. Keriyamma and another (1978)2 KLJ 135), wherein it has been held that gomal land being land reserved for the use of village cattle, one villager cannot exclude the other from the use of such land and consequently, a suit for permanent injunction in respect of the said land was not maintainable.
9. In view of the said judgment referred to above, an additional substantial question of law is framed as hereunder:
“Whether the lower appellate Court was justified in granting a decree for permanent injunction in respect of a gomal land on the ground that the plaintiff was in possession of the suit schedule property as on the date of the suit?”
10. I have heard the learned counsel for the parties on both the substantial questions of law referred to supra.
11. Since both substantial questions of law are inter- connected and they have a bearing on disposal of this appeal, they are taken up together.
12. The facts involved in the present case are not in dispute. On the plaintiff’s own showing, the suit schedule property is a gomal land in respect of which he is in unauthorized occupation, possession and cultivation. In order to show that the plaintiff was in long, continuous, uninterrupted, actual and physical settled possession and enjoyment of the suit schedule property and that he was cultivating the same, the plaintiff has produced Ex.P.1, the notice issued by the Tahsildar informing the plaintiff that he was in unauthorized cultivation of the suit schedule property and that he was liable to be evicted from the same. A perusal of the said notice dated 07.04.1980 at Ex.P.1 will indicate that the said notice has been issued under Section 94(1) of the Karnataka Land Revenue Act, 1964 specifically contending that the plaintiff was in unauthorized occupation and enjoyment of the suit schedule property to the knowledge of the State Government which was the true owner of the same. So also Ex.P.2 is the receipt evidencing that the plaintiff has paid T.T fine in respect of the suit schedule property for regularization of his unauthorized occupation. Similarly, Ex.P.3 is the RTC prior to filing of the suit which would indicate that the plaintiff is in physical possession and enjoyment of the suit schedule property. Lastly, Ex.P.4 is the receipt indicating that the plaintiff has paid property tax in respect of the suit schedule property.
13. In his evidence, the plaintiff who is examined as P.W.1 has categorically stated that he has requested the State Government to regularize his unauthorised occupation of the suit schedule property.
14. The aforesaid unimpeached evidence of P.W.1 and the unimpeached documentary evidence at Exs.P1 to P4 clearly establishes that the plaintiff was in actual and physical cultivation, possession and enjoyment of the suit schedule property for more than 20 years prior to filing of the suit. It is relevant to state that the defendant No.2 except producing the RTCs which would indicate that the defendants are in possession of an adjacent land, has not produced any evidence to establish their right, title and interest or possession over the suit schedule property. Under these circumstances, the lower appellate Court was fully justified in coming to the conclusion that the plaintiff had successfully established that he was in actual and physical cultivation, possession and enjoyment of the suit schedule property and that the defendants do not have any manner of right, title and interest or possession over the same.
15. The lower appellate Court also took notice of the fact that if at all anybody has any better right, title and interest or possession over the suit schedule property, it is the State Government since the property was a gomal land. The lower appellate Court also noted that the State Government has every right to evict the plaintiff or reject his claim for regularization of unauthorized occupation. It was however held by the lower appellate Court that unless the State Government takes a decision in this regard against the plaintiff, the plaintiff was entitled to protect his possession and the defendants who claim under the State Government on the ground that the land is a gomal land meant for grazing cattle are not entitled to obstruct or interfere with the plaintiff’s possession and enjoyment of the suit schedule property. Under these circumstances, after re-appreciating the entire oral and documentary evidence on record, the lower appellate Court held Point No.(i) in the affirmative and came to the conclusion that the judgment and decree passed by the trial Court that the plaintiff was not in possession and enjoyment of the suit schedule property was perverse, not sustainable and warranted interference by the lower appellate Court. Consequently, the lower appellate Court proceeded to decree the suit filed by the plaintiff. A perusal of the impugned judgment and decree passed by the lower court will clearly establish that the court has correctly and property appreciated the entire material on record to come to the conclusion that the plaintiff was in settled actual and physical, lawful and peaceful possession and enjoyment of suit schedule property and that the defendants did not have any manner of right, title, interest or possession over the same particularly when the defendants did not have any manner of right, title, interest or possession over the same. This finding of the Court below being just and proper, the same does not warrant interference at the hands of this Court particularly when the appreciation of the evidence by the lower appellate court can not be termed as perverse, capricious, arbitrary or apposed to law. Accordingly, substantial question of law No.1 is answered against the appellant.
16. In so far as Substantial Question of Law No.2 is concerned, as stated above, learned counsel for the appellant places reliance on the judgment of this Court reported in S.R.Suryanarayana Rao’s case supra to contend that the question posed by this Court while deciding the said matter was whether the plaintiff was entitled to an injunction in respect of the land admitted or proved to be a gomal land. It was contended that on the plaintiffs own showing, the suit schedule property was a gomal land and consequently, the Court could not come to the aid of a party who is unlawful and unauthorized possession of a gomal land and an injunction cannot be granted in his favour.
17. Per contra, learned counsel for the respondent- plaintiff contends that firstly, the evidence on record clearly establishes that the plaintiff was in settled, actual , physical, lawful and peaceful possession and enjoyment of the suit schedule property and consequently, was entitled to a decree for permanent injunction against every one including the true owner. In this context, it is contended that it is not in dispute that if it is in respect of a gomal land, the true owner would be the State Government and the right of the other villagers such as the defendants herein to graze their cattle on gomal land would be subservient to the right of the true owner which is the State Government, particularly when the defendants claim their right to graze the cattle under the State Government. He further submits that it is well settled that even a trespasser or a person in unauthorized occupation in settled possession is entitled to protect his possession as against the whole world including the true owner which would also be entitled to evict the person only after following due process of law. It is therefore contended that having regard to the undisputed fact that the true owner was the State Government and the defendants-villagers claiming under the State Government did not have any independent or exclusive right over the suit schedule property so as to obstruct or interfere with the plaintiff’s peaceful possession and enjoyment particularly when the request for regularization of unauthorized occupation made by the plaintiff was still pending with the State Government. Under these circumstances, it is contended by the learned counsel for the respondents that till the State Government takes a decision with regard to either evicting the plaintiff from the suit schedule property or regularizing his uauthorised occupation, it was not open for the defendants to interfere with or obstruct the plaintiff’s possession and enjoyment of the suit schedule property. It is therefore, contended that there was absolutely no merit in the appeal and the same was liable to be dismissed.
18. In so far as the judgment reported in S.R.Suryanarayana Rao’s case referred to supra relied upon by the learned counsel for the appellant was concerned, it was contended by the learned counsel for the respondents that in the said judgment, this Court has not considered well settled principle of law that a person in settled possession and enjoyment was entitled to protect his possession even as against the true owner. It was therefore, contended that in the face of the undisputed fact that the State Government was the true owner and the State Government was not a party and the defendant only claimed to be villager subservient to the true owner, the said judgment would not have any application to the facts of the instant case.
19. Having heard the learned counsels for the parties on the substantial question of law No.(ii), I am of the view that the question whether even a trespasser in settled possession is entitled to injunction even against the true owner is res integra in the light of the decision of the Hon’ble Supreme Court in the case of Ramegowda vs. M.Varadappa Naidu reported in 2004(1) SCC 769 wherein it is held as hereunder:
“8. It is thus clear that so far as the Indian law is concerned, the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking the law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.
9. It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. Illustratively, we may refer to Munshi Ram v. Delhi Admn. [AIR 1968 SC 702 : (1968) 2 SCR 455 : 1968 Cri LJ 806] , Puran Singh v. State of Punjab [(1975) 4 SCC 518 : 1975 SCC (Cri) 608] and Ram Rattan v. State of U.P. [(1977) 1 SCC 188 : 1977 SCC (Cri) 85] The authorities need not be multiplied. In Munshi Ram case [AIR 1968 SC 702 : (1968) 2 SCR 455 : 1968 Cri LJ 806] it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In Puran Singh case [(1975) 4 SCC 518 : 1975 SCC (Cri) 608] the Court clarified that it is difficult to lay down any hard-and-fast rule as to when the possession of a trespasser can mature into settled possession. The “settled possession” must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase “settled possession” does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The Court laid down the following tests which may be adopted as a working rule for determining the attributes of “settled possession” (SCC p. 527, para 12):
(i) that the trespasser must be in actual physical possession of the property over a sufficiently long period;
(ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case;
(iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and (iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner, has no right to destroy the crop grown by the trespasser and take forcible possession.
10. In the cases of Munshi Ram [AIR 1968 SC 702 : (1968) 2 SCR 455 : 1968 Cri LJ 806] and Puran Singh [(1975) 4 SCC 518 : 1975 SCC (Cri) 608] the Court has approved the statement of law made in Horam v. R. [AIR 1949 All 564 : 50 Cri LJ 868] wherein a distinction was drawn between the trespasser in the process of acquiring possession and the trespasser who had already accomplished or completed his possession wherein the true owner may be treated to have acquiesced in; while the former can be obstructed and turned out by the true owner even by using reasonable force, the latter may be dispossessed by the true owner only by having recourse to the due process of law for reacquiring possession over his property.
11. In the present case the trial court has found the plaintiff as having failed in proving his title. Nevertheless, he has been found to be in settled possession of the property. Even the defendant failed in proving his title over the disputed land so as to substantiate his entitlement to evict the plaintiff. The trial court, therefore, left the question of title open and proceeded to determine the suit on the basis of possession, protecting the established possession and restraining the attempted interference therewith. The trial court and the High Court have rightly decided the suit. It is still open to the defendant-appellant to file a suit based on his title against the plaintiff-respondent and evict the latter on the former establishing his better right to possess the property.”
20. A perusal of the judgment in S.R.Suryanarayana Rao’s case supra would indicate that this Court has not dealt with the principle laid down by the Apex Court, i.e., whether an occupant in settled possession can be dispossessed without a discourse of law. As held by the Apex Court even a trespasser in possession is entitled to injunction even against the true owner if he proves that he was in settled possession and enjoyment of the property. As stated earlier, the evidence on record clearly establishes that the plaintiff successfully established his actual physical, settled, lawful possession over the suit schedule property.. As stated earlier, the true owner of the suit schedule property in respect of which the plaintiff has been found to be in possession is the State Government and the defendants who claim their right of grazing cattle over the suit schedule property through the Sate Government are not entitled to put forth any better or higher claim over the property than the State Government particularly when the right of the defendants are subservient to the State Government. It is not in dispute that the State Government so far has not taken any decision either pursuant to the notice at Ex.P1 or for regularization of unauthorized occupation made by the plaintiff.
21. As rightly contended by the learned counsel for the respondents, in the absence of any decision taken by the State Government with regard to either evicting the plaintiff from the suit schedule property pursuant to Ex.P1 or regularizing the plaintiff’s unauthorized occupation of the suit schedule property, the defendants who claim their right of grazing cattle only under the State Government are not entitled to interfere with the plaintiff’s possession and enjoyment of the suit schedule property.
In view of the discussion made above, substantial questions of law Nos.(i) and (ii) are answered accordingly.
22. It is further made clear that the defendants are entitled to approach the State Government to take necessary steps to evict the plaintiff from the suit schedule property and restore the land for the purpose of grazing their cattle. It is also made clear that the protection of possession granted by the plaintiff herein by dismissing this appeal will not be construed or treated as granting an injunction in favour of the plaintiff as against the State government or any other villager in the village.
23. In view of the discussion made above, I do not find any merit in the appeal and the same is hereby dismissed subject to the clarifications and observations made above. No costs.
In view of dismissal of the appeal, I.A.No.2/2007 for stay is also dismissed.
Sd/- JUDGE bnv*