Karnataka High Court
Ufm Sri Mohandas S/O. Rama Salaskar vs State Of Karnataka on 14 February, 2024
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NC: 2024:KHC-D:3544
RSA No. 100923 of 2023
C/W RSA No. 100833 of 2023
RSA No. 100835 of 2023
RSA No. 100878 of 2023
RSA No. 100920 of 2023
RSA No. 100931 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 14TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE R.NATARAJ
REGULAR SECOND APPEAL NO.100923/2023(DEC/INJ)
C/W
REGULAR SECOND APPEAL NO.100833/2023
REGULAR SECOND APPEAL NO.100835/2023
REGULAR SECOND APPEAL NO.100878/2023
REGULAR SECOND APPEAL NO.100920/2023
REGULAR SECOND APPEAL NO.100931/2023
IN R.S.A. NO.100923/2023:
BETWEEN:
SMT. MITRA W/O. PANDURANG KALGUTKAR,
AGE: 66 YEARS, OCC: HOUSEHOLD,
R/O: HOUSE NO.214, BAITHKHOL VILLAGE,
KARWAR - 581 301.
...APPELLANT
(BY SRI K. L. PATIL, ADVOCATE)
Digitally
signed by AND:
MANJANNA
E
1. STATE OF KARNATAKA, REPRESENTED BY THE
DEPUTY COMMISSIONER, KARWAR,
UTTAR KANNADA - 581 301.
2. PORT OFFICER, KARWAR POST,
KARWAR - 581 301, UTTAR KANNADA.
...RESPONDENTS
(BY SMT. VIDYAVATI M. KPTTURSHETTAR,
ADVOCATE FOR CAVEATOR/R2)
THIS RSA IS FILED UNDER SECTION 100 OF CPC., 1908,
AGAINST THE JUDGMENT AND DECREE DATED 08.06.2023 PASSED
IN R.A.NO.06/2022 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
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NC: 2024:KHC-D:3544
RSA No. 100923 of 2023
C/W RSA No. 100833 of 2023
RSA No. 100835 of 2023
RSA No. 100878 of 2023
RSA No. 100920 of 2023
RSA No. 100931 of 2023
JUDGE, KARWAR, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 15.06.2022, PASSED IN
O.S. NO.196/2020 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE
AND JMFC-II, KARWAR DISMISSING THE SUIT FILED FOR
INJUNCTION AND DECLARATION & ETC.
IN R.S.A. NO.100833/2023:
BETWEEN:
JOHN S/O. RUZAR CARVALHO,
AGE: 62 YEARS, OCC: MECHANIC,
R/O: HOUSE NO.217, BAITHKHOL
VILLAGE, KARWAR - 581 301.
...APPELLANT
(BY SRI K. L. PATIL, ADVOCATE)
AND:
1. STATE OF KARNATAKA, REPRESENTED BY THE
DEPUTY COMMISSIONER, KARWAR,
UTTAR KANNADA - 581 301.
2. PORT OFFICER,
KARWAR PORT, KARWAR,
UTTAR KANNADA - 581 301.
...RESPONDENTS
(BY SMT. VIDYAVATI M. KPTTURSHETTAR,
ADVOCATE FOR CAVEATOR/R2)
THIS RSA IS FILED UNDER SECTION 100 OF CPC., 1908,
AGAINST THE JUDGMENT AND DECREE DATED 08.06.2023 PASSED
IN R.A.NO.02/2022 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE, KARWAR, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 15.06.2022, PASSED IN
O.S. NO.193/2020 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE
AND JMFC-II, KARWAR DISMISSING THE SUIT FILED FOR
INJUNCTION AND DECLARATION & ETC.
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NC: 2024:KHC-D:3544
RSA No. 100923 of 2023
C/W RSA No. 100833 of 2023
RSA No. 100835 of 2023
RSA No. 100878 of 2023
RSA No. 100920 of 2023
RSA No. 100931 of 2023
IN R.S.A. NO.100835/2023:
BETWEEN:
SABASTIN W/O. MATHESH CARVALHO,
AGE: 59 YEARS, OCC: HOUSEHOLD,
R/O: HOUSE NO.212, JAILWADA
BAITHKHOL VILLAGE, KARWAR - 581 301.
...APPELLANT
(BY SRI K. L. PATIL, ADVOCATE)
AND:
1. STATE OF KARNATAKA REPRESENTED BY THE
DEPUTY COMMISSIONER, KARWAR,
UTTAR KANNADA - 581 301.
2. PORT OFFICER, KARWAR PORT, KARWAR,
UTTAR KANNADA - 581 301.
...RESPONDENTS
(BY SMT. VIDYAVATI M. KPTTURSHETTAR,
ADVOCATE FOR CAVEATOR/R2)
THIS RSA IS FILED UNDER SECTION 100 OF CPC., 1908,
AGAINST THE JUDGMENT AND DECREE DATED 08.06.2023 PASSED
IN R.A.NO.03/2022 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE, KARWAR, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 15.06.2022, PASSED IN
O.S. NO.198/2020 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE
AND JMFC-II, KARWAR DISMISSING THE SUIT FILED FOR
INJUNCTION AND DECLARATION & ETC.
IN R.S.A. NO.100878/2023:
BETWEEN:
JEEVAN S/O. RATNAKAR PEDNEKAR,
AGE: 47 YEARS, OCC: DRIVER, R/O: HOUSE NO.215A,
BAITHKHOL VILLAGE, KARWAR.
...APPELLANT
(BY SRI K. L. PATIL, ADVOCATE)
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NC: 2024:KHC-D:3544
RSA No. 100923 of 2023
C/W RSA No. 100833 of 2023
RSA No. 100835 of 2023
RSA No. 100878 of 2023
RSA No. 100920 of 2023
RSA No. 100931 of 2023
AND:
1. STATE OF KARNATAKA, REPRESENTED BY THE
DEPUTY COMMISSIONER, KARWAR,
UTTAR KANNADA - 581 301.
2. PORT OFFICER, KARWAR PORT, KARWAR,
UTTAR KANNADA - 581 301.
...RESPONDENTS
(BY SMT. VIDYAVATI M. KPTTURSHETTAR,
ADVOCATE FOR CAVEATOR/R2)
THIS RSA IS FILED UNDER SECTION 100 OF CPC., 1908,
AGAINST THE JUDGMENT AND DECREE DATED 08.06.2023 PASSED
IN R.A.NO.05/2022 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE, KARWAR, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 15.06.2022, PASSED IN
O.S. NO.194/2020 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE
AND JMFC-II, KARWAR DISMISSING THE SUIT FILED FOR
INJUNCTION AND DECLARATION & ETC.
IN R.S.A. NO.100920/2023:
BETWEEN:
UFM SRI MOHANDAS S/O. RAMA SALASKAR,
AGE: 55 YEARS, OCC: PENSIONER,
R/O: HOUSE NO.215, BAITHKHOL VILLAGE,
KARWAR - 581 301.
...APPELLANT
(BY SRI K. L. PATIL, ADVOCATE)
AND:
1. STATE OF KARNATAKA REPRESENTED BY THE
DEPUTY COMMISSIONER, KARWAR,
UTTAR KANNADA - 581 301.
2. PORT OFFICER, KARWAR PORT, KARWAR,
UTTAR KANNADA - 581 301.
...RESPONDENTS
(BY SMT. VIDYAVATI M. KPTTURSHETTAR,
ADVOCATE FOR CAVEATOR/R2)
-5-
NC: 2024:KHC-D:3544
RSA No. 100923 of 2023
C/W RSA No. 100833 of 2023
RSA No. 100835 of 2023
RSA No. 100878 of 2023
RSA No. 100920 of 2023
RSA No. 100931 of 2023
THIS RSA IS FILED UNDER SECTION 100 OF CPC., 1908,
AGAINST THE JUDGMENT AND DECREE DATED 08.06.2023 PASSED
IN R.A.NO.04/2022 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE, KARWAR, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 15.06.2022, PASSED IN
O.S. NO.192/2020 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE
AND JMFC-II, KARWAR DISMISSING THE SUIT FILED FOR
INJUNCTION AND DECLARATION & ETC.
IN RSA.NO.100931/2023:
BETWEEN:
ANAND RAO S/O. MANGESH TAMES,
AGE: 73 YEARS, OCC: PENSIONER,
R/O: HOUSE NO.216, BAITHKHOL VILLAGE,
KARWAR - 581 301.
...APPELLANT
(BY SRI K. L. PATIL, ADVOCATE)
AND:
1. STATE OF KARNATAKA,
REPRESENTED BY THE
DEPUTY COMMISSIONER, KARWAR,
UTTAR KANNADA - 581 301.
2. PORT OFFICER, KARWAR PORT, KARWAR,
UTTAR KANNADA - 581 301.
...RESPONDENTS
(BY SMT. VIDYAVATI M. KPTTURSHETTAR,
ADVOCATE FOR CAVEATOR/R2)
THIS RSA IS FILED UNDER SECTION 100 OF CPC., 1908,
AGAINST THE JUDGMENT AND DECREE DATED 08.06.2023 PASSED
IN R.A.NO.07/2022 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE, KARWAR, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 15.06.2022, PASSED IN
O.S. NO.195/2020 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE
AND JMFC-II, KARWAR DISMISSING THE SUIT FILED FOR
INJUNCTION AND DECLARATION & ETC.
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NC: 2024:KHC-D:3544
RSA No. 100923 of 2023
C/W RSA No. 100833 of 2023
RSA No. 100835 of 2023
RSA No. 100878 of 2023
RSA No. 100920 of 2023
RSA No. 100931 of 2023
THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
RSA No.100923/2023 is filed by the unsuccessful plaintiffs in O.S No.196/2020 challenging the judgment and decree dated 15.06.2022 passed by the Addl. Civil Judge & JMFC-II, Karwar dismissing the suit as well as the judgment and decree dated 08.06.2023 passed by the Principal Senior Civil Judge, Karwar in R.A No.6/2022, by which, the first appellate court confirmed the judgment and decree of the trial court.
RSA No.100833/2023 is filed by the unsuccessful plaintiffs in O.S No.193/2020 challenging the judgment and decree dated 15.06.2022 passed by the Addl. Civil Judge & JMFC-II, Karwar dismissing the suit as well as the judgment and decree dated 08.06.2023 passed by the Principal Senior Civil Judge, Karwar in R.A No.02/2022, by which, the first appellate court confirmed the judgment and decree of the trial court. -7-
NC: 2024:KHC-D:3544 RSA No. 100923 of 2023 C/W RSA No. 100833 of 2023 RSA No. 100835 of 2023 RSA No. 100878 of 2023 RSA No. 100920 of 2023 RSA No. 100931 of 2023 RSA No.100835/2023 is filed by the unsuccessful plaintiffs in O.S No.198/2020 challenging the judgment and decree dated 15.06.2022 passed by the Addl. Civil Judge & JMFC-II, Karwar dismissing the suit as well as the judgment and decree dated 08.06.2023 passed by the Principal Senior Civil Judge, Karwar in R.A No.03/2022, by which, the first appellate court confirmed the judgment and decree of the trial court.
RSA No.100878/2023 is filed by the unsuccessful plaintiffs in O.S No.194/2020 challenging the judgment and decree dated 15.06.2022 passed by the Addl. Civil Judge & JMFC-II, Karwar dismissing the suit as well as the judgment and decree dated 08.06.2023 passed by the Principal Senior Civil Judge, Karwar in R.A No.05/2022, by which, the first appellate court confirmed the judgment and decree of the trial court.
RSA No.100920/2023 is filed by the unsuccessful plaintiffs in O.S No.192/2020 challenging the judgment and decree dated 15.06.2022 passed by the Addl. Civil Judge & JMFC-II, Karwar dismissing the suit as well as the judgment and decree dated 08.06.2023 passed by the Principal Senior Civil Judge, Karwar -8- NC: 2024:KHC-D:3544 RSA No. 100923 of 2023 C/W RSA No. 100833 of 2023 RSA No. 100835 of 2023 RSA No. 100878 of 2023 RSA No. 100920 of 2023 RSA No. 100931 of 2023 in R.A No.04/2022, by which, the first appellate court confirmed the judgment and decree of the trial court.
RSA No.100931/2023 is filed by the unsuccessful plaintiffs in O.S No.195/2020 challenging the judgment and decree dated 15.06.2022 passed by the Addl. Civil Judge & JMFC-II, Karwar dismissing the suit as well as the judgment and decree dated 08.06.2023 passed by the Principal Senior Civil Judge, Karwar in R.A No.07/2022, by which, the first appellate court confirmed the judgment and decree of the trial court.
2. The plaintiffs filed the aforesaid suits for declaration of their ownership and for perpetual injunction in respect of the house property where they are residing. The plaintiffs claimed that the suit property was owned by their ancestors. In terms of a preliminary notification dated 29.01.1962, the State Government initiated acquisition of their land on the ground that the same was required for development of the Karwar Port. This was followed by a final notification dated 04.03.1964. An award was passed on 31.03.1971. However, the plaintiffs claimed that no steps were taken to take over actual -9- NC: 2024:KHC-D:3544 RSA No. 100923 of 2023 C/W RSA No. 100833 of 2023 RSA No. 100835 of 2023 RSA No. 100878 of 2023 RSA No. 100920 of 2023 RSA No. 100931 of 2023 possession of the suit land and no steps were taken to evict them from their residences. The plaintiffs claimed that they are in possession and occupation of the same and were in settled possession of the property that was acquired. The plaintiffs claimed that they had filed several writ petitions and writ appeals challenging the acquisition which were all dismissed. Thereupon, the defendant No.2 issued a notice dated 13.11.2020, calling upon them to hand over possession of the suit property by or before 30.11.2020, failing which, it threatened to take forcible possession of the property. The plaintiffs therefore claimed that they were in adverse possession from the year 1971 onwards with the notice and knowledge of the defendants and therefore the defendants have lost their rights to recover possession.
3. The defendants contested the suit and claimed that the suits were liable to be dismissed in limine. They contended that the plaintiffs have sought for similar reliefs before this Court in the writ petitions filed under Articles 226 and 227 of Constitution of India to declare that the land acquisition
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NC: 2024:KHC-D:3544 RSA No. 100923 of 2023 C/W RSA No. 100833 of 2023 RSA No. 100835 of 2023 RSA No. 100878 of 2023 RSA No. 100920 of 2023 RSA No. 100931 of 2023 proceedings initiated by the State Government and the award dated 31.03.1971 had lapsed. The said writ petitions and other proceedings were all dismissed and this Court held that the plaintiffs were in permissive possession. It also held that the plaint did not disclose when the plaintiffs trespassed in to the land and from what date their right fructified into a right by prescription. The defendant No.2 claimed that whenever notices were issued to the plaintiffs to vacate the premises, they filed writ petitions before this Court and obtained interim orders. Therefore they contended that the plaintiffs do not have any subsisting right, title or interest to remain in possession of the suit properties.
4. Based on these contentions, the trial court framed issues and set down the case for trial:
a) Whether the plaintiff proves that they are owners of suit schedule property by way of adverse possession?
b) Whether the plaintiff proves that the defendants are interfering in peaceful possession and enjoyment of the suit schedule property?
c) Whether the plaintiff is entitled for the relief claimed?
d) What order or decree?
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NC: 2024:KHC-D:3544
RSA No. 100923 of 2023
C/W RSA No. 100833 of 2023
RSA No. 100835 of 2023
RSA No. 100878 of 2023
RSA No. 100920 of 2023
RSA No. 100931 of 2023
5. The respective plaintiffs adduced evidence and also marked several documents to claim that they were in possession of the property, notwithstanding the award passed in the year 1971 and the consequent notification under Section 16 (2) of the Land Acquisition Act, 1894. The defendants examined an official as DW-1 who stated in detail the proceedings initiated by the plaintiffs before various Courts.
6. Based on the oral and documentary evidence, the trial court held that the State Government had taken up rehabilitation for displaced families and they were allowed to continue in possession of the acquired property subject to the condition that they would be evicted as and when the lands were required urgently for the development of the Port and that till they are evicted, they shall pay nominal rent to the department of Ports. It held that the land acquisition proceedings were challenged by the plaintiffs in Writ Petition Nos.22344/2005 and 41376/2003. A Coordinate Bench of this Court held "case of the petitioners that they continued to be in possession of the land and the land is not used for the purpose
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NC: 2024:KHC-D:3544 RSA No. 100923 of 2023 C/W RSA No. 100833 of 2023 RSA No. 100835 of 2023 RSA No. 100878 of 2023 RSA No. 100920 of 2023 RSA No. 100931 of 2023 of which it is being acquired has no substance". It was further held in the Writ Petition Nos.110545/2017-110549/2017 that the occupation of the plaintiffs over the acquired land that too after receiving the compensation and after taking alternate site under the rehabilitation scheme cannot be termed as possession at all, but is only permissive occupation or more or less that of a license. It also noticed that before the Division Bench of this Court in Writ Appeal No.100276/2019 and connected appeals, the plaintiffs claimed that they were not in unauthorized occupation, but were in settled possession of the respective properties. However, in the present suit they claimed that they were unauthorized occupants occupying the property belonging to the defendants. Therefore it held that the plaintiff cannot blow hot and cold at the same time.
7. The trial court also held that the plaintiffs were unable to prove that they had perfected their title to the suit properties by adverse possession as the necessary requirements of a claim for adverse possession namely, nec vi, nec calm and nec precario were the absent in the case. The
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NC: 2024:KHC-D:3544 RSA No. 100923 of 2023 C/W RSA No. 100833 of 2023 RSA No. 100835 of 2023 RSA No. 100878 of 2023 RSA No. 100920 of 2023 RSA No. 100931 of 2023 trial court therefore held that the plaintiffs did not make out a case for declaration of title by adverse possession and consequently, dismissed the suit. The plaintiffs filed the respective appeals before the first appellate court, which were also dismissed. Consequent thereto, the plaintiffs have approached this Court in this Regular Second Appeal.
8. Learned counsel for the plaintiffs contended that though the award was passed in the year 1971, no steps were taken to recover the possession of property from the plaintiffs and therefore plaintiffs are entitled to continue in possession of the property until they are lawfully dispossessed. He submits that the plaintiffs are willing to pay rent to the department of Ports and as their possession is admitted by the defendants, the plaintiffs are entitled to continue in possession of the suit properties.
9. Per contra, the learned counsel for the defendants submitted that the properties in question form part of a larger area, which was acquired by the State Government and is now sought to be used for the purpose of the Port as well as for the
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NC: 2024:KHC-D:3544 RSA No. 100923 of 2023 C/W RSA No. 100833 of 2023 RSA No. 100835 of 2023 RSA No. 100878 of 2023 RSA No. 100920 of 2023 RSA No. 100931 of 2023 purpose of terminals at the port. She submits that the plaintiffs have no right to claim perpetual injunction let alone adverse title in respect of the property and therefore the suit filed by them was rightly dismissed by the trial court and was rightly upheld by the first appellate court. She contends that the predecessors of the plaintiffs have received the compensation way back in the year 1971, and also an incentive site was granted to each one of them, some of whom had already disposed off those sites, while some of them did not take possession of the said sites. She therefore contends that the plaintiffs cannot on one hand claim advantage and on the other claim that they have continued in possession of the property acquired. She relied upon the judgment of the apex court in the case of M. B. BETTASWAY Vs THE COMMISSIONER, BENGALURU DEVELOPMENT AUTHORITY AND ANOTHER and contends that once the land was vested in the State Government, no suit for even injunction is maintainable in respect of the property.
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NC: 2024:KHC-D:3544 RSA No. 100923 of 2023 C/W RSA No. 100833 of 2023 RSA No. 100835 of 2023 RSA No. 100878 of 2023 RSA No. 100920 of 2023 RSA No. 100931 of 2023
10. I have considered the submissions made by the learned counsel for the plaintiffs as well as the learned counsel for the defendants.
11. The plaintiffs admit that the land in question was acquired by the State Government for the purpose of the Karwar Port. It was not seriously disputed by the plaintiffs that the compensation determined was paid to their predecessors and that incentive sites were allotted to them under the rehabilitation programme. Therefore, once the acquisition stood concluded, the plaintiffs had no right to sue for even injunctory reliefs. The plaintiffs were therefore not entitled to any relief of declaration that they have perfated their right by adverse possession. Nonetheless, some photographs show that some of the plaintiffs are in possession of some houses, for which the plaintiffs must have been compensated. Nonetheless, the notification under Section 16(2) presupposes that possession of the land was taken over and handed over to the concerned defendant. Therefore, the plaintiff cannot claim that they are in settled possession. In this regard, it is
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NC: 2024:KHC-D:3544 RSA No. 100923 of 2023 C/W RSA No. 100833 of 2023 RSA No. 100835 of 2023 RSA No. 100878 of 2023 RSA No. 100920 of 2023 RSA No. 100931 of 2023 profitable to refer to the judgment of the Apex Court in the case of BANGALORE DEVELOPMENT AUTHORITY AND OTHERS Vs BRIJESH REDDY AND OTHERS. Nonetheless, the plaintiffs are entitled to some relief at the hands of their Court so that they could shift to some other alternate location or to the site which is handed over to the predecessors of the plaintiffs under the rehabilitation scheme.
12. In that view of the matter, though the plaintiffs have not made out any case for interference with the judgment and decree of the trial court, this Court considers it appropriate to grant reasonable time to the plaintiffs to quit and deliver back vacant possession of the respective suit property to the defendants.
13. Consequently, these appeals are dismissed. However, the plaintiffs are granted time till 31.01.2025, to quit and deliver vacant possession of the premises to the defendants. This is however subject to the plaintiffs filing an affidavit undertaking that they shall not induct any third person in to the property in question and shall not file any other
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NC: 2024:KHC-D:3544 RSA No. 100923 of 2023 C/W RSA No. 100833 of 2023 RSA No. 100835 of 2023 RSA No. 100878 of 2023 RSA No. 100920 of 2023 RSA No. 100931 of 2023 litigation before any Court in any manner whatsoever and shall hand over possession voluntarily by 31.01.2025. The plaintiffs shall file an affidavit as stated above, within ten days from today. It the plaintiffs fail to do so, they shall not be entitled to the benefit of this order.
14. In view of disposal of the appeal on merits, pending IAs, if any, also stand disposed off.
SD/-
JUDGE PMP List No.: 1 Sl No.: 56 CT-ASC