Bangalore District Court
Singasandra Education Society vs State Of Karnataka on 3 January, 2024
KABC010122052018
IN THE COURT OF THE XVI ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-12) AT BENGALURU
Dated this the 3rd Day of January 2024
PRESENT:Smt. Jyothsna D., LL.B.,LL.M.,
XVI Addl. City Civil & Sessions Judge,
Bengaluru.
ORIGINAL SUIT No.3310/2018
PLAINTIFF : Singasandra Education Society,
(Regd), Singasandra Village,
Channakeshava Nagar,
Bengaluru -560 100.
Presented by is President
(By Sri. Shanmukhapapa - Advocate)
-VERSUS-
DEFENDANTs: 1. State of Karnataka,
represented by its Principal
Secretary, Revenue Department,
M.S.Buildings, Bengaluru.
2. Deputy Commissioner,
Bengaluru Urban District,
Bengaluru.
3. Asst.Commissioner,
Bengaluru South,
Bengaluru.
(D.1 to 3 by III Addl. District Government
Pleader)
2 O.S. No.3310/2018
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Date of Institution of the Suit : 27.04.2018
Nature of the Suit (Suit on : Declaration &
pronote, Suit for declaration Injunction
and possession, Suit for injun-
ction etc,)
Date of the commencement : 06.07.2018
of recording of the evidence
Date on which the Judgment : 03.01.2024
was pronounced
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Year/s Month/s Day/s
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Total duration : 05 08 06
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(JYOTHSNA.D)
XVI Addl. City Civil & Sessions
Judge, Bengaluru.
JUDGMENT
Plaintiff has filed this suit against the defendants for Judgment and decree to declare that the Plaintiff is the absolute owner in possession and enjoyment of the suit schedule properties having acquired the title by way of adverse possession and also for grant of permanent injunction restraining the defendants, their men, agents, representatives, subordinates or any person or persons Cont'd..
3 O.S. No.3310/2018acting under or through them from in any way interfering with the peaceful possession and enjoyment of the suit schedule properties by the Plaintiff.
2. The brief facts of the suit of the plaintiff are that :-
The plaintiff is a Society registered under the provisions of the Societies Registration Act formed in the year 1973 with the objects of establishing institutions to cater to the educational needs of the children belonging to weaker sections of the Society staying in and around Singasandra village under the name and style of 'Channakeshava School', running in both Kannada and English mediums, in the land bearing Sy.No.42 and 41 of Singasandra Village, measuring approximately 2 acres 07 guntas. It is further stated that, presently there are 2000 students studying in the institution who belong to weaker sections of he society and a majority of them are the children of street-vendors who cannot afford to pay huge fees as charged by the private institutions. Cont'd..4 O.S. No.3310/2018
It is further stated that considering the plight of the children of Singasandra and other adjoining villages, the Plaintiff-Society made a request to the Government for grant of land for setting up an educational institution and accordingly, the State Government had granted land measuring 4 acres in Sy.No.42 and 41 of Singasandra Village vide Letter No.RD 283 LGB 74 dated 29.01.1977 at an upset price of Rs.2,725/- per acre plus conversion charges. Since the financial position of the Plaintiff-Society was not good in the year 1977 and it had no sufficient funds to pay the land cost, the Plaintiff-Society had requested the Government to grant some time to pay the said amount. However, in view of non-payment of the land price, the grant order was not confirmed in favour of the Plaintiff- Society. It is further stated that in the meanwhile, there was change in the management of Plaintiff-Society and the new management lost sight of paying the amount to the Government towards the land cost so as to get the grant confirmed in its favour. However, the Plaintiff-Society continued to remain in possession of the said land where an Cont'd..5 O.S. No.3310/2018
educational institution is being run. In fact, the RTCs in respect of land in Sy.No.41 and 42 of Singasandra Village, the existence of school is reflected in Col.No.12 and thus, it is crystal clear that the Plaintiff-Society is in physical possession and enjoyment of the land so granted in its favour.
It is further stated that subsequent to the communication vide RD 283 LG8 74 dated 29.01.1977 by the Government regarding grant of land in favour of Plaintiff-Society, the Government has granted 2 acres of land from out of 4 acres in favour of Karnataka Land Army Corporation. Pursuant to the said grant, the said Land Army Corporation had filed a suit in OS No.1623/2006 only for bare injunction as against the Plaintiff-Society which came to be dismissed on 14.08.2012. The said Land Army Corporation was trying to interfere with the peaceful possession and enjoyment of the land proposed to be granted in favour of the Plaintiff-Society and hence, the Plaintiff-Society had filed a suit in OS No.223/2006 seeking relief of permanent injunction, making claim in respect of 3 Cont'd..6 O.S. No.3310/2018
acres of land. The Plaintiff-Society had also filed a Writ Petition No.23974/1998 before the Hon'ble High Court of Karnataka challenging the grant made in favour of Land Army Corporation to an extent of 2 acres and the Hon'ble High Court of Karnataka vide its Order dated 18.12.1998, had dismissed the said Writ Petition. As against the said order, Plaintiff-Society preferred Writ Appeal No.614/1999 and the said appeal also came to be dismissed confirming the grant made in favour of Land Army Corporation. However, the defendants took possession of the land to an extent of 2 acres and the Plaintiff-Society remained in possession of balance extent of about 2 acres 07 guntas of land which is more fully described in the plaint schedule A & B and the Plaintiff-Society continued to remain in possession and enjoyment of the same for the last 44 years.
It is further stated that the Plaintiff-Society had also filed a suit in OS No.4637/2007 in respect of the suit schedule properties against the Government and along with the suit, an application for grant of interim order of Cont'd..7 O.S. No.3310/2018
injunction was also filed for which the Government had filed objections stating that the grant is not confirmed in favour of the Plaintiff-Society. However, it is an admitted fact that the Plaintiff-Society continues to remain in possession and enjoyment of the suit schedule properties for the last 44 years. It is further stated that though the Government proposed the grant in the year 1977, the Plaintiff-Society had started educational institution in the year 1973 itself in the very same village in Sy.No.42 and 41.
It is further stated that in view of the fact that a school is being run in the schedule properties, this court after hearing the said application filed under Order 39 Rule 1 and 2 of CPC in OS No.4637/2007, had confirmed the order of injunction on the ground that the Plaintiff-Society is in physical possession and enjoyment of the schedule properties for the last 30 years by its order dated 06.09.2007 and thus, it is well established that the Plaintiff-
Society has been in possession of the suit schedule properties for the last 44 years without any let or hindrance whatsoever adverse to the interest of the defendants. It is Cont'd..
8 O.S. No.3310/2018further stated that the defendants are fully aware of the fact that the Plaintiff-Society has been in possession and enjoyment of the schedule properties. The 3rd defendant called upon the Plaintiff to pay the land value as fixed in the year 1977, but the Plaintiff could not be able to pay the same. The defendants herein at no point of time dispossessed the plaintiff nor took any steps to take possession of the suit schedule property and thereby the plaintiff has established its right over the suit schedule property from 1977 onwards to the knowledge of the defendants and thereby the Plaintiff acquired the title to the suit schedule property by way of adverse possession. It is further stated that in view of the fact that the suit schedule property comes under the jurisdiction of BBMP, the BBMP directed the Plaintiff-Society to pay taxes in respect of the suit schedule property and the Plaintiff-Society started paying taxes to the BBMP and thereby Government has recognized the ownership and possession of the plaintiff for the last 44 years. Thus, the suit schedule property enjoyed by the Plaintiff is hostile to the interest of the defendants Cont'd..
9 O.S. No.3310/2018and thereby the Plaintiff has acquired title by way of adverse possession as the rights of the defendants over the suit schedule property has been extinguished long back. It is further stated that the revenue department had made entries in the RTCs to show that the Plaintiff-Society has been in physical possession and enjoyment of the suit schedule property and therefore, it is an admitted fact that the defendants did not take any action and allowed the plaintiff to enjoy the suit schedule property adverse to the interest of the defendants.
It is further stated that recently, the Education Department, Government of Karnataka has issued a Circular stating that in order to seek renewal of permission to run an educational institution, the ownership of the land is required to be established as otherwise, the permission so granted will not be renewed. Thus, in view of the said circular, the education of 2000 students studying in the school run by the Plaintiff-Society has been jeopardized. That apart, the teachers employed by the Plaintiff-Society who are completely depending upon the salaries drawn by them by Cont'd..
10 O.S. No.3310/2018working in the school would be rendered jobless causing untold hardship and financial inconveniences. Hence, the Plaintiff has filed this suit and prayed to decree the suit.
3. In pursuance of the suit summons, the defendant 1 to 3 remained absent and hence, they were placed exparte. Subsequently, the defendants No.1 to 3 appeared through counsel and filed their written statement. After the amendment of plaint, the defendants No.1 to 3 also filed their additional written statement.
4. In the written statement, the defendants No.1 to 3 have contended that the suit filed by the Plaintiff is not maintainable either in law or on facts and the same is liable to be dismissed in limine. It is further contended that the defendant is a statutory body of state Government and the plaintiff has not issued statutory notice under Section 80 of CPC before filing the suit. Earlier, the land under dispute was intended to be granted in favour of the Plaintiff and Plaintiff failed to pay the minimal amount for grant offered by the government and the grant offer stood canceled. It is further contended that later, the Government allotted two Cont'd..
11 O.S. No.3310/2018acres out of 4 acres earlier offered to the plaintiff society to the Land Army and the same was challenged by the Plaintiff Society in writ and later in the Writ Appeal and both got dismissed and the Plaintiff Society did not prefer any SLP before Supreme Court and hence, the matter has attained finality. It is further contended that the plaintiff has no legal right and it is law of the land that adverse possession cannot be invoked by the plaintiff and it is only a defence available to such persons of any suit filed against them. There is no cause of action to the suit and denying all the averments made in the plaint, the defendants 1 to 3 prayed for dismissal of the suit.
5. In the additional written statement, the defendants have further contended that there is no merit in the suit filed by the Plaintiff and the Plaintiff has tried to improve the pleadings by filing amended plaint. The plaintiff is claiming relief on the ground that he is in adverse possession of the suit schedule property and seeking declaration to that effect. It is further contended that the Plaintiff cannot seek relief under adverse possession, since Cont'd..
12 O.S. No.3310/2018his claim does not tally with the claim of adverse possession. The party seeking adverse possession shall be in possession of a property not belonging to him, but in possession continuously in case of a government property for a period of 30 years with the knowledge of the government without the consent and without any disturbance throughout the period of 30 years. In the present case, even though the Plaintiff is in possession of the suit property, it is not without the consent of the defendants who are representing the government which is the owner of the property. It is further contended that the plaintiff himself admits that he had preferred an application for grant of the land and after scrutinizing his application, the then Deputy Commissioner of Bengaluru had sanctioned the land subject to payment of the upset price fixed by the Government and notice was also issued to the plaintiff. The Plaintiff admits the said facts, but did not pay the amount of upset price fixed by the State Government and hence, the Plaintiff cannot say that he is in possession with the knowledge without the consent without Cont'd..
13 O.S. No.3310/2018disturbance consecutively for a period of 30 years. It is further contended that there was consent for grant and the plaintiff failed to perform his part of duty of making payment. The State Government had allotted 2 acres out of originally 4 acres grant to Land Army. The Plaintiff had unsuccessfully challenged the grant to the land army before the Hon'ble High Court of Karnataka and now, he is in possession of only 2 acres of land wherein the Plaintiff is running an educational institution. The Plaintiff has built multi-storied school complex which is worth crores of rupees and it is surprising that the plaintiff is claiming that due to financial difficulty, they could not pay the meager amount of about Rs.2,500/- fixed as upset price and therefore, the Plaintiff has not approached this court with clean hands. It is further contended that the educational institution run by the plaintiff is a Government aided institution. The entire salary of the employees of the institution is being paid by the Government in the form of grant-in-aid. During the year 2018, the Government amended the grant-in-aid Act and Rules to the effect that Cont'd..
14 O.S. No.3310/2018being eligible to receive the grant-in-aid, the institution must own its own building and since there was no title to the Plaintiff Society to claim the grant-in-aid they have preferred this suit. There is absolutely no cause of action for the plaintiff to file this suit since there was grant consent by the government, but the plaintiff failed to pay the upset price. It is further contended that since the Plaintiff Society is running an educational institution and claimed that more than 2000 students are studying in the school, even now they can approach the respondents based on the earlier grant, but by paying the present market value of the land to the Government and the defendants can consider such a request and contended that plaintiff has no case to seek declaration by way of adverse possession and accordingly prayed for dismissal of the suit.
6. On the basis of the above pleading of the parties, the following issues and additional issues have been framed by this Court -
1. ವಾದಿಯು ಕಳೆದ 30 ವರ್ಷಗಳಿಗೆ ಹೆಚ್ಚು ಅವಧಿಯಿಂದ ಪ್ರತಿವಾದಿಯರಿಗೆ ಗೊತ್ತಿರುವಂತೆ ಪ್ರತಿಕೂಲವಾಗಿ ದಾವಾ ಆಸ್ತಿಯ ಸ್ವಾಧೀನದಲ್ಲಿರುವರೇ ಮತ್ತು ಆ ಮೂಲಕ ದಾವಾ ಆಸ್ತಿಗೆ ಮಾಲೀಕರಾಗಿರುವರೇ ?
Cont'd..
15 O.S. No.3310/2018
2. ಪ್ರತಿವಾದಿಯು ವಾದಿಯ ದಾವಾ ಆಸ್ತಿಯ ಸ್ವಾಧೀನಕ್ಕೆ ತೊಂದರೆಯುಂಟು ಮಾಡಿರುವವರೇ ?
3. ಪ್ರತಿಕೂಲನಾತೆಯಿಂದ ಮಾಲಿಕರಾಗಿದ್ದೇವೆ ಎಂದು ದಾವೆ ಹೂಡಲು ವಾದಿಗೆ ಬರುವುದಿಲ್ಲ ಎಂದು ಪ್ರತಿವಾದಿ ಸಾಬೀತು ಪಡಿಸುವರೇ ?
4. ಯಾವ ಡಿಕ್ರಿ ಅಥವಾ ಯಾವ ಆದೇಶ ?
Additional Issue:
1. Whether the defendants prove that the suit is not maintainable?
7. In order to prove the suit of the plaintiff, the Plaintiff got examined one Sri. Rajashekar Gowda - President of the Plaintiff Society as PW.1 and got marked documents as Ex.P.1 to P15. However, on the death of PW.1, his evidence was discarded and Sri. S.Nagaraj who was the new President of Plaintiff Society was examined as PW.2 and through him got marked Exs.P.1 to P.49.
8. On the other hand, the defendants have neither adduced any evidence nor marked any documents on their behalf.
9. Heard the arguments and perused the materials placed on record.
Cont'd..
16 O.S. No.3310/2018
10. the findings of this court on the above issues are as follows:
Issue No.1 & 2 - In the negative, Issue No.3 - In the affirmative, Issue No.4 - As per final order, Addl.Issue No.1- In the negative, for the following -
REASONS
11. Issue Nos.1 to 3 : These three issues are interconnected to each other, hence they are taken up together to avoid repeated discussions on facts and circumstances of the case.
12. Admittedly, the Plaintiff has filed this suit seeking for a declaration, declaring that the Plaintiff is the absolute owner in possession and enjoyment of the suit schedule properties having acquired title by way of adverse possession and consequently for a relief of permanent injunction restraining the defendants in any way from interfering with the peaceful possession and enjoyment of the Suit Schedule properties by the plaintiff. Cont'd..
17 O.S. No.3310/2018
13. The gist of the above narrated case of the plaintiff is that, the plaintiff Society started an educational institution in the year 1973 in the name and style of Channakeshava School in the land bearing Sy.No 42 and 41 of Singasandra Village measuring approximately 2 acres 07 guntas which is allegedly by adverse possession. The state government was pleased to grant land measuring 4 acres in Sy.No 42 and 41 of Singasandra Village vide letter No RD.283.LGB.74 dated 29-01-1977 at an upset price of Rs 2,725/- per acre plus conversion charges. Since the financial position of the plaintiff Society was not good in the year 1977 and it had no sufficient funds to pay the land cost, the plaintiff-Society had requested the Government to grant some time to pay the said amount. But for non-payment of the said land price, the grant order was not confirmed in its favour. But the plaintiff-Society was/is in physical possession and enjoyment of the said land granted in its favour through above named school. Subsequent to the above mentioned grant letter, the Government has granted 2 acres of land out of 4 acres in favour of Karnataka Land Army Corporation Cont'd..
18 O.S. No.3310/2018and the said Land Army Corporation had filed a suit in OS No.1623/2006 for bare injunction against the plaintiff Society which came to be dismissed on 14-08-2012. The plaintiff Society had also filed a Writ Petition No.23974/98 challenging the grant made in favour of Land Army Corporation to an extent of 2 acres which was dismissed on 18-12-1998. The Writ Appeal No.614/1990 filed against this order was also dismissed by confirming the grant made in favour of Land Army Corporation. The defendants took possession of the land to an extent of 2 acres, but this plaintiff Society remained in possession of balance extent of about 2 acres 7 guntas of land which is described in plaint A schedule and B schedule in respect of which the plaintiff- Society continues to remain in possession and enjoyment for the last 44 years. According to the plaintiff Society, it has filed suit for permanent injunction against the Land Army Corporation in respect of land proposed to be granted in favour of plaintiff Society in OS No.223/2006. Further stated that though the Government proposed the grant in the year 1977, the plaintiff Society had started educational Cont'd..
19 O.S. No.3310/2018institution in the year 1973 itself in Sy.No.42 and 41. Further, it has filed OS No.4637/2007 in respect of suit schedule properties against the Government, in which it is an admitted fact that the plaintiff Society continues to remain in possession and enjoyment of the schedule properties for the last 44 years without any let or hindrance whatsoever adverse to the interest of the defendants. Subsequently, the plaintiff amended the plaint by inserting about the subsequent event about confirming of the injunction order in OS No.4637/2007 and about the establishment of hostile to the interest of the defendants. In paragraph 18 of the plaint, it is stated that as per Surveyor Report demarcating the land which is in possession of plaintiff-society that is the schedule properties measuring about 2 acres 07 guntas which mentioned in plaint schedules is in physical possession and enjoyment of plaintiff society.
14. At the first instance, the defendant Nos. 1 to 3 filed written statement by denying plaint averments, contending that the suit is not maintainable as there is no Cont'd..
20 O.S. No.3310/2018cause of action as the allotment of 2 acres of land out of 4 acres to Land Army corporation attained finality as the plaintiff Society has not preferred any SLP the before Hon'ble Supreme Court. That itself shows that there is 2 acres remained after allotment of 2 acres to said land Army Corporation.
15. Later after filing of amended plaint, these defendants filed detailed written statement by denying the adverse possession. But on perusal of the plaint, prayer for declaration of ownership of plaintiff by way of adverse possession is made in original plaint while filing of the suit. In paragraph 5 of additional written statement, it is contended that the plaintiff himself admits that he had preferred an application for grant of the land and after scrutinizing his application, the then Deputy Commissioner of Bengaluru had sanctioned the land subject to payment of upset price fixed by the government and notice was also issued to the plaintiff. The plaintiff although admits these facts, but did not pay the amount of upset price fixed by the State Government and hence the plaintiff cannot say that Cont'd..
21 O.S. No.3310/2018he is in possession with the knowledge without the consent without disturbance, consecutively for a period of thirty years.
16. But surprisingly, in paragraph 6 of the additional written statement, it is stated by the defendants that since there was consent for grant and the plaintiff failed to perform his part of duty of making the payment, the State Government had allotted 2 acres out of originally 4 acres grant to Land Army. The plaintiff had unsuccessfully challenged the grant to the Land Army before the Hon'ble High Court of Karnataka, Bengaluru. Now, he is in possession for only 2 acres of land wherein the plaintiff is running an educational institution. It is very surprising to note that the plaintiff is claiming that due to financial difficulty, they could not pay meager amount of about Rs.2,500/- per acre fixed as upset price. The plaintiff have built multi-storeyed school complex which is worth crores of rupees. Then the defendants by their own words admitted that there is a portion of property remained in the possession of the plaintiff after granting of the land to Land Cont'd..
22 O.S. No.3310/2018Army and they admitted that plaintiff is in possession for only 2 acres of land wherein it is running an educational institution. And also admitted the huge investment of the plaintiff over the suit schedule property for construction of school building.
17. Again in paragraph 7 of the additional written statement, it is admitted that the educational institution run by the plaintiff society is a government aided institution. The entire salary of the employees of the institution is being paid by the government in the form of grant-in-aid. It is during the year 2018, the Government amended the grant- in-aid Act and Rules to the effect that being eligible to receive the grant-in-aid, the institution must own building. Since there was no title to the plaintiff Society to claim the grant-in-aid, they have filed this suit. But in paragraph 4 of this statement, it is contended that the party seeking adverse possession shall be in possession of a property not belonging to him but in possession continuously in case of government property for a period of thirty years with the knowledge of the government without the consent and Cont'd..
23 O.S. No.3310/2018without any disturbance throughout the period of thirty years. They further contended that in this case, even though the plaintiff is in possession of the suit property, it is not without the consent of the defendants who are representing the government which is the owner of the property. But these defendants have not produced any documents to show that the plaintiff is in possession without their consent such as there is no documents to show that defendants have taken action against the possession of plaintiffs that to make it clear that there is no consent for their admitted possession over the suit schedule property.
18. The above is the discussion on pleadings of both the sides though there is admission by the defendants about the possession of the plaintiff society over the suit schedule property, but it is well known that the possession is different from adverse-possession. Now this Court gone through the documentary and oral evidence. Earlier, on 06-07-2018, one Sri Rajashekar Gowda, the President of plaintiff Society has entered into the witness box as PW1 and filed sworn affidavit in chief under which all plaint averments were Cont'd..
24 O.S. No.3310/2018reiterated. Exs.P1 to Ex.P 15 were got marked through him in support of the case. But before his cross examination, he is reported to be dead and his evidence was discarded. Later on 05-03-2019, Sri S Nagaraj, subsequent President of the plaintiff Society entered into witness box as PW2 and filed sworn affidavit in lieu of examination in chief as PW2 , in which all plaint averments are reiterated. He has produced additional documents and Exs.P.1 to Ex.P 35 are got marked through him. In the said documents, Exs.P 1 to Ex.P 6 are the RTCs pertaining to Sy.No.42 and 41 which are plaint A and B Schedule properties which show that the said properties are "Sarkari Mufath Kaavalu" which are possessed by "Uchitha Niveshana mattu Paatashaale. Ex.P 7 is the certified copy of order on IA No.2 filed under Order 39 Rule 1 and 2 in OS No.4637/2007 filed by the plaintiff herein against the State in respect of plaint schedule A property herein. In that case, the same averments of this plaint was found, but that suit was filed for the relief of permanent injunction against the State. In page No.9 of the said order, it is mentioned that there is no dispute as far as existence of Cont'd..
25 O.S. No.3310/2018the school building in the suit schedule property. Ex.P.8 is the copy of letter to the Assistant Commissioner in respect of his grant letter No.LNDCR.19/77, dated 30-04-1971 in which, there is mention about grant of land to the plaintiff Society. Ex.P.9 is the Survey Sketch prepared by Land Surveyor of Bengaluru South Taluk in which he specifically mentioned that in Sy.No.42, there is 2 acres of land which is kept for grant to Singasandra Education Society and in the said land, there exists Sri Chennakeshava High School which belongs to plaintiff Society. Ex.P.10 is the statement of the Surveyor annexed to Ex.P.9, in which he has stated that the said survey was made as per application to measure the land which is to be granted to the school maintained by plaintiff Society and he affirmed that there was no objection received while surveying the said property which is the suit schedule property herein. Exs.P.11 and 12 are the notices of said survey. Ex.P.13 is the Form No.5 dated 30-01-2003, but by mistake in chief examination, it is noted as Form No 4. Through this document, Sri Channakeshava High School, Singasandra obtained recognition (khayam Maanyathe). Cont'd..
26 O.S. No.3310/2018Ex.P.14 is the Form 3 dated 10-02-2016 issued by the Joint Director, Bengaluru South District through which the recognition with aid given to Sri Channakeshava High School, Singasandra. In this document, in the first column, the registration number of school is given as E7(E)GNN 35/1977-78 dated 01-07-1978, which makes clear that the said school is in existence since 1978 ie., 40 years prior to filing of this suit. Ex.P.15 is the certified copy of memo dated 14-06-1973 issued by the Office of the Director of Public Instruction in Mysore, Bangalore in which the permission granted to open private High Schools with conditions and in serial No.7 of the said document reflects the name of plaintiff Society which makes it clear that in the year 1973 itself, the school came into existence. Exs.P.16 to 19 are the documents pertaining to the strength of students in the said school. Ex.P.20 is the document about staff strength. Exs.P. 21 and 22 are the documents about the staff salary. Exs.P.23 to 34 are the photographs and Ex.P.35 is the CD which contains Exs.P.23 to 34. These photographs show the entrance of school and existence of Sri Channakeshava High Cont'd..
27 O.S. No.3310/2018School, Chennakeshava Nagara, its students and staff members of the school. These photographs reveal that the said school provides education to the numerous children which is the stepping stone to build the future of nation. If this school was established in the year 1978 as noted in Ex.P.14, then already it has produced numerous senior students who were the backbone of system in the society. Next to that, in his further evidence, PW2 has produced 14 tax paid receipts which were marked as Exs.P 36 to 49 which show that the plaintiff society paid tax for the period 2008-2009 to 2021-2022. These documentary evidence show that the plaintiff Society has established a school named Sri Channakeshava High School, Singasandra in plaint schedule properties that is the land comprised in Sy.No 41 and 42 of Singasandra village. This school obtained recognistion from the concerned authority of the Government. The documents show specific number of students and staff members of the said school and the surveyor identified the property of that school. Cont'd..
28 O.S. No.3310/2018
19. Now, in cross examination of PW2, there is nothing elicited contra to the plaintiff's case. In the argument of the learned ADGP, she has highlighted that this suit has no ground on the basis of non-payment of upset price (kimmattu) which is admitted by PW2 in paragraph 2 of his cross examination. But non payment of said price within the specified time is not ground for disproving the adverse possession. In his cross examination, he has stated that they had started to construct building in the year 1977 itself. It is wellknown that the authority which provides grant in aid to private schools is the Government. As per Exs.P.1 to 6, the suit schedule property is Government land and this plaintiff Society is in possession of said property from 1977 and school was recognised in the year 1978 as per Ex.P 14, then from 1978 till date, no action has been taken to dispossess the plaintiff from the possession of plaint schedule properties, but on that basis, we cannot say that its possession is hostile to the interest of the defendants by 40 years as the property enjoyed by the plaintiff is known to the defendants because in the above documentary evidence Cont'd..
29 O.S. No.3310/2018nowhere the plaintiff Society brought to the notice of the defendants that they are in possession of the property by way of adverse possession and they prayed for grant of the land to their institution which is already existed in that property and thereby, the plaintiff has lost right to claim the the property by means of adverse possession.
20. On the other hand, the defendants have filed their written statement through their learned counsel and cross examined PW2, but did not take any pain to lead their evidence to defend their side.
21. Moreover, the learned counsel for plaintiff relied upon ILR 1996 KAR 1340 (Alla Baksh vs Mohd.Hussain), wherein it is observed that;
"13. As it is well settled that the decisions of the Privy Council and the Supreme Court mentioned above that possession of a person under an invalid Deed of Transfer after entering into possession of it, prima facie becomes hostile and adverse to that of the real owner when the transferee claims ownership on the basis of that invalid Deed and that on completion of continuous possession for the requisite period of 12 years or more, such person acquires title by Cont'd..30 O.S. No.3310/2018
adverse possession. In my opinion, the Courts below did not commit any error of law or of jurisdiction in dismissing the Plaintiff's claim and in holding that defendant acquired title by adverse possession, particularly when the case pleaded by the plaintiff has not been established at all."
Here in this case the, plaintiff has failed to established Section 27 and Article 65 of Limitation Act as once the real owner that is the Government accepted the possession of the plaintiff over the suit schedule property and granted the said land to the plaintiff, but it was not successful because of default or failure of the plaintiff to pay upset price. Then at that time itself, it lost the nature of adverse possession and if there is no action taken by the defendant to dispossess the plaintiff from said property, it does not mean that plaintiff's possession is adverse to the interest of the defendant.
22. In support of the case, again he relied upon (2019)8 SCC 729 (Ravinder Kaur Grewal and others vs Manjit Kaur and others), wherein it is noted that; Cont'd..
31 O.S. No.3310/2018
"A. Limitation Act, 1963 - S. 27 and Arts. 65 & 64 - Acquisition of ownership by possession - Effect of elapse of period prescribed for loss of ownership by adverse possession - Nature of rights acquired by adverse possessee thereupon -- Remedy available to person who perfects his title to property by adverse possession (Art. 65), and even to person in settled possession who is yet to perfect his title by adverse possession (Art. 64)
-- (1) Firstly, held, once 12 years' period of adverse possession is over, the owner's right to eject the person in adverse possession (adverse possessee/ possessory owner) is lost and the possessory owner acquires the right, title and interest possessed by the outgoing person/owner, as the case may be, against whom he has established the period of prescription.
- (2) Secondly, held, such adverse possessee/possessory owner can not only seek to protect his title as defendant in a suit but can also file suit for declaration of his title and for permanent injunction restraining defendant from interfering with his possession, where owner whose title stood extinguished, or any other Cont'd..32 O.S. No.3310/2018
person seeks to dispossess him from property - This would include the case where the property is sold away by the owner after the extinguishment of his title: in which case also a suit can be filed by a person who has perfected his title by adverse possession to question alienation and attempt of dispossession - Rulings of Supreme Court holding that person who had perfected his title by adverse possession could only protect his title as defendant in a suit, but could not file a suit for declaration of his title/ protection of his possession, overruled.
- (3) Thirdly, held, even before ripening of his title by adverse possession, possessory suit under Article 64 can be maintained by person in settled possession against person seeking to dispossess him by force without recourse to law - Possession confers enforceable right under S. 6 of Specific Relief Act, 1963 - Specific Relief Act, 1963 -- Ss. 6 and 5 - Property Law - Possession"
And further explained that;
" 52. Under Article 64 also suit can be filed based on the possessory title. Law never intends a person who has perfected title to be deprived of filing suit under Article 65 Cont'd..33 O.S. No.3310/2018
to recover possession and to render him remediless. In case of infringement of any other right attracting any other Article such as in case the land is sold away by the owner after the extinguishment of his title, the suit can be filed by a person who has perfected his title by adverse possession to question alienation and attempt of dispossession.
53. Law of adverse possession does not qualify only a defendant for the acquisition of title by way of adverse possession, it may be perfected by a person who is filing a suit. It only restricts a right of the owner to recover possession before the period of limitation fixed for the extinction of his rights expires. Once the right is extinguished another person acquires prescriptive right which cannot be defeated by re-entry by the owner or subsequent acknowledgment of his rights. In such a case suit can be filed by a person whose right is sought to be defeated." Though for thefirst instance this citation give weight to plaintiff's case but by worms eye view, it is clear that by its documentary evidence it is successful to prove only to the extent of its possession over the plaint schedule Cont'd..34 O.S. No.3310/2018
property, but not the adverse possession. Though defendants admitted the possession of the plaintiff in its written statement, it does not mean that plaintiff is succeeded in proving adverse possession.
23. Next to that, he has relied upon 2007(9)SCC 641 and AIR 1999 sc 1441 (Vidhyadhar vs Mankikrao and another, and in both the citations, it is held thus;
"16. Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbaksha Singh v. Gurdial Singh, AIR 1927 PC 230.
24. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh, AIR 1930 Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh, AIR 1931 Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat, AIR 1970 Madh Pra 225, Cont'd..
35 O.S. No.3310/2018also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (AIR 1927 PC 230) (supra). The Allahabad High Court in Arjun Singh v. Virender Nath, in AIR 1971 Allahabad 29 held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand, AIR 1974 Punj and Har 7, drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box."
And;
"(A)Evidence Act (1 of 1872), S.114 - Adverse inference - Party to suit - Not entering the witness box - Give rise to inference adverse against him."
25. As stated above herein this case, the defendants have not entered into witness box to defend their side by disproving plaintiff's case which leads to adverse inference against them in this suit for declaration by adverse possession, but only on that basis, the Court cannot conclude that plaintiff society is in adverse possession. It is duty of the plaintiffs' side to prove their case by their own Cont'd..
36 O.S. No.3310/2018documentary evidence which corroborates with their oral evidence and what is pleaded by them. Including the above, the concept on which the suit for adverse possession is based that is the legal maxim 'vigilantibus non-dormientibus subvenit lex' which means that the law favours only the active citizens and not those who are dormant or in other words, are not concerned about their rights. But the plaintiff surrendered his right under adverse possession as on date of filing application for grant of the land and even after sufficient opportunity it has not paid the required government fee. Therefore, in view of the same, the possession of the plaintiff, in all probabilities cannot be said to be of adverse by hostile to the defendants a discussed supra.
26. As per The ratio given in the case of Brijesh Kumar and Anr v. Shardabai (Dead) by Legal Representatives and Ors in Civil Appeal No.1090/2008 dated 12.09.2019, the Hon'ble Supreme Court explicitly men- tioned that to constitute the adverse possession there must be an assertion of a hostile possession in denial of the title Cont'd..
37 O.S. No.3310/2018of the true owner. The onus would be on the respondent to prove the nature of the possession as specifically observing that;
"15. Animus possidendi as is well known is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that possession was open and undisturbed. A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. The courts always take unkind view towards statutes of limitation overriding property rights. The plea of adverse possession is not a pure question of law but a blended one of fact and law." Here in this case as observed above the plaintiff has Cont'd..38 O.S. No.3310/2018
proved his possession over the suit schedule property, but it lost the nature of adverse possession, if any, at the time of approaching the Government that is the defendant seeking the grant of said land. At that time once the government ordered the grant by notification and directed the plaintiff to pay upset price but this plaintiff failed to pay the same within time stipulated and continued in possession over the suit schedule property. At that time itself, the plaintiff surrendered its right to claim the adverse possession. In such circumstances plaintiff has remedy somewhere else than filing the suit for adverse possession.
27. There are classic judgments by the Hon'ble Apex Court on the suit for adverse possession such as in P Lakshmi Reddy v. L Lakshmi Reddy, (1957 SCR 195), Hon'ble Justice Jagannadhadas, speaking for a three judge Bench of this Court dwelt on the "classical requirement" of adverse possession:
"4. Now, the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario. (The Secretary of State for India v. Debendra Lal Khan Cont'd..39 O.S. No.3310/2018
[(1933) LR 61 IA 78, 82]. The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor." The court cited the following extract from U N Mitra's "Tagore Law Lectures on the Law of Limitation and Prescription": "7...An adverse holding is an actual and exclusive appropriation of land commenced and continued under a claim of right, either under an openly avowed claim, or under a constructive claim (arising from the acts and circumstances attending the appropriation), to hold the land against him (sic) who was in possession. (Angell, Sections 390 and 398). It is the intention to claim adversely accompanied by such an invasion of the rights of the opposite party as gives him a cause of action which constitutes adverse possession." (6th Edition, Vol. I, Lecture VI, at page 159) This Court held:
"7...Consonant with this principle the commencement of adverse possession, in favour of a person implies that the person is in actual possession, at the time, with a notorious hostile claim of exclusive title, to repel which, the true owner would then be in a position to maintain an action. It would follow that whatever may be the animus or intention of a person wanting to acquire title by adverse possession his adverse possession cannot commence until he obtains actual possession with the requisite animus." In Karnataka Board of Wakf v. Government of India, (2004) 10 SCC 779, Cont'd..40 O.S. No.3310/2018
Justice S Rajendra Babu, speaking for a two judge Bench held that:
"11...Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. 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." The ingredients must be set up in the pleadings and proved in evidence. There can be no proof sans pleadings and pleadings without evidence will not establish a case in law.
28. In Annakili v. A Vedanayagam, (2007) 14 SCC 308, this Court emphasized that mere possession of land would not ripen into a possessory title. The possessor must have animus possidendi and hold the land adverse to the title of the true owner.
29. Here in this case, if we apply above citations to present case, though Ex.P.14 shows that the said school was Cont'd..41 O.S. No.3310/2018
established in the year 1978, but as per plaint documents itself show that plaintiff itself applied for grant of land by the true owner and that true owner granted the land and directed the plaintiff to pay some nominal upset price and get the title over the suit schedule property. After failure of the plaintiff to pay said amount, the defendant has not tried to dispossess the plaintiff and by that itself does not mean that plaintiff is in adverse possession. After such incident nowhere the plaintiff tried to bring to the notice of the defendant that plaintiff is in adverse possession. The statutory notice also dispensed after filing of the suit under Section 80(2) of CPC which shows that if plaintiff is in such an adverse possession, he has not utilized the time for giving the notice to the defendant about its adverse possession.
30. As per facts and circumstances of the case and above discussions, plaintiff Society clearly established its possession over the suit schedule property but not the ad- verse possession over the suit schedule property and in the Cont'd..42 O.S. No.3310/2018
result, this court answers Issue Nos.1 & 2 in the Nega- tive and Issue No 3 in the Affirmative.
31. Additional Issue No. 1:
The main contention of the defendants is that suit is not maintainable for non issuance of statutory notice to the defendants under Section 80 of CPC. But on perusal of order sheet dated 28-04-2018, the statutory notice against the defendants was dispensed in Order on IA filed by the plain- tiff under Section 80(2). More than that, as already dis- cussed above, in order to prove this issue, the defendants have not adduced any evidence and therefore, an adverse inference has to be drawn against the defendants as the Plaintiff-Society had no opportunity to cross-examine the defendants' witnesses. The Plaintiff is claiming adverse possession from 1973 onwards in which the Plaintiff established an educational institution without any disturbance and obstructions whatsoever by the defendants. The Plaintiff's possession over the Suit Schedule land right from 1973 onwards is not in dispute. But it does not mean that they are in adverse possession. The Cont'd..43 O.S. No.3310/2018
defendants insisted for payment of upset price in respect of the Suit Schedule land on the basis of the approval given by the Government of Karnataka for grant of the Suit Schedule land. The said letter is produced and marked as Ex.P.8. The said letter at Ex.P.8 refers to earlier correspondence dated 05.05.1977. However, the Plaintiff-Society could not able to pay the said upset price as according to the Plaintiff-Society it was not having sufficient funds to pay the said amount. But the plaintiff has not adduced any evidence as to why it failed to pay said amount and at that incident itself it lost its nature of adverse possession. Despite the same, the Plaintiff-Society continues to remain in possession of the Suit Schedule land where it has been running an educational institution since 1973 onwards and the same is not questioned by the defendants. Though number of petitions were filed, no action as such was initiated by the defendants and thereby, it is an admitted fact that the plaintiff is in physical possession and enjoyment of the Suit Schedule land right from 1973 onwards, but as discussed above it is Cont'd..44 O.S. No.3310/2018
mere possession over the property but not the adverse possession.
32. But as per paragraph 17 of the plaint it is stated that plaintiff society is in physical possession and enjoyment of the schedule properties which is admitted by the defendant. And in paragraph 18 and 19 it is stated that the suit is filed for the reason that recently the Education Department, Government of Karnataka has issued a Circular stating that in order to seek renewal of the permission to run an educational institution, the ownership of the land is required to be established as otherwise the permission so granted will not be renewed. Thus, in view of this circular, the education of 2000 students studying in the school run by the Plaintiff-Society has been jeopardized. That apart, the teachers employed by the Plaintiff-Society who are completely depending upon the salaries drawn by them by working in the school run by the Plaintiff-Society would be rendered jobless causing untold hardship and financial inconveniences. Under these circumstances, the Plaintiff is constrained to file this suit seeking for a declaration Cont'd..45 O.S. No.3310/2018
declaring that the Plaintiff is in physical possession and enjoyment of the schedule properties openly hostile to the interest of the Defendants and thus, the Plaintiff-Society has established its title to the schedule properties by way of adverse possession. Except the schedule properties, no other land is owned and possessed by the Plaintiff-Society so as to run an educational institution. Therefore, it is just and necessary to declare the Plaintiff as the owner in possession and enjoyment of the schedule properties so as to enable it to get the permission renewed from the Education Department. But as discussed above plaintiff has failed to prove adverse possession but proved its possession.
33. The prayer No.(b) in this suit is for the relief of permanent injunction. But nowhere in the plaint it is pleaded about interference of the defendant over the suit schedule property. But here in this case, there is no claim about unlawful interference. When Issue No. 2 is answered in the Negative, then the Court cannot grant the consequential relief of permanent injunction, but it is also true that the Cont'd..46 O.S. No.3310/2018
possession is admitted by the defendants and there is no evidence lead by the defendantss contrary to the same. As there is a school and future of numerous students and life of number of staff members depends on that school, this Court deems it just and proper to direct the defendants to proceed in the matter in accordance with law. Hence the defendants have utterly failed to prove this Issue. Therefore Additional Issue No.1 answered in the Negative.
34. Issue No 4 :- As discussed supra, the plaintiff has not made out his case and, therefore for the foregoing reasons and discussions and considering the findings on the above issues, suit of the plaintiff liable to be dismissed without cost under the above circumstances. Accordingly this court proceeds to pass the following:
ORDER Suit of the Plaintiff is hereby dismissed. No Order as to costs.
(Dictated to Steno Grade I on computer typed by him, revised by me and after corrections, pronounced in open Court on this the 3rd day of December 2024.) (JYOTHSNA D.,) XVI Addl. City Civil & Sessions Judge, Bengaluru.
Cont'd..47 O.S. No.3310/2018
ANNEXURE WITNESS EXAMINED FOR THE PLAINTIFF:
P.W.1 : Sri. Rajashekar Gowda (Discarded)
P.W.2 : Sri. S. Nagaraj
DOCUMENT/S MARKED ON BEHALF OF
PLAINTIFF:
Ex.P.1 to 5 5 RTC extract in respect of "A" schedule property Ex.P.6 One RTC extract in respect of survey No.41 for the year 2015-16 Ex.P.7 Certified copy of orders on I.A.No.2 dated 06-09-2007 passed in O.S. 4637/2007 Ex.P.8 Copy of the letter to Assistant Commissioner, Bengaluru.
Ex.P.9 Sketch prepared by Taluk Surveyor dated 01-04-2017 in respect of survey No.42 Ex.P.10 Statement by the Taluk Surveyor dated 01-04-2017 Ex.P.11 Notice issued by Taluk Surveyor Ex.P.12 Notice issued by Taluk Surveyor dated 01-04-2017 Ex.P.13 Form No.4 dated 30-01-2003 issued by Joint Director, Bengaluru South District Ex.P.14 Form No.3 dated 10-02-2016 issued by Joint Director, Bengaluru South District Ex.P.15 Certified copy of memo dated 14-06-1973 issued by office of the Director of Public Instruction in Mysore, Bengaluru.
Ex.P.16 to Statement of students strength list (four) 19 Cont'd..48 O.S. No.3310/2018
Ex.P.20 Staff fleet strength extract
Ex.P.21 Staff salary payment list (2)
and 22
Ex.P.23 to 12 Photographs
34
Ex.P.35 1 C.D
Ex.P.36 Tax Paid Receipts
to P.49
WITNESS/ES EXAMINED FOR THE DEFENDANTs:
- NIL -
DOCUMENT/S MARKED ON BEHALF OF DEFENDANTs:
- NIL -
(JYOTHSNA D.,) XVI Addl. City Civil & Sessions Judge, Bengaluru.
Cont'd..
49 O.S. No.3310/2018
08.06.2021
Judgment pronounced in open
Court vide separate detailed
order. The operative portion is as
hereunder:
ORDER
Suit of the Plaintiff is hereby
dismissed.
No Order as to costs.
XVI Addl. City Civil & Sessions Judge,
Bengaluru
Cont'd..