Karnataka High Court
L Rama Reddy S/O Late Linga Reddy vs The Commissioner on 4 October, 2012
Author: A.S.Bopanna
Bench: A S Bopanna
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 4TH DAY OF OCTOBER 2012
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
R.F.A. NO. 306/2011
Between :
L. Rama Reddy S/o late Linga Reddy
Aged about 71 years
Presently residing at No.10/1
26th Main Road, H.S.R. Layout
Agara Village, Agara Post
Bangalore -560 034. ... Appellant
(By Sri V. Lakshminarayana, Adv. for
Sri K.H. Somashekar)
And :
The Commissioner
Bangalore Development Authority
T. Chowdaiah Road
Bangalore -560 020 .. Respondent
(By Sri U. Abdul Khadar, Adv.)
This R.F.A. is filed under Section 96 of CPC, against
the judgment and decree dated 15.11.2010, passed in
O.S.No.8279/2000 on the file of the XVI Addl. City Civil
Judge, Bangalore (CCH-12), dismissing the suit for
declaration.
This appeal having been reserved for judgment,
coming on for pronouncement this day, the Court
pronounced the following :
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JUDGMENT
The appellant herein is the unsuccessful plaintiff in O.S.No.8279/2000. The suit was filed seeking for a declaration that the plaintiff is the owner of the suit schedule property by way of adverse possession. The Court below after considering the rival contentions has dismissed the suit by its judgment and decree dated 15.11.2010. The plaintiff is therefore before this Court in this appeal.
2. The parties would be referred to in the same rank as assigned to them before the Court below for the purpose of convenience and clarity.
3. The case of the plaintiff is that the property bearing Sy.No.146 of Agara village measuring 21 acres 33 guntas which belong to the joint family of A.P.Ramaiah was acquired by the defendant Bangalore Development Authority for formation of H.S.R.Layout. It was acquired under preliminary notification dated 15.12.1984 and final notification dated 28.12.1986. The entitlement of the plaintiff is claimed to 20 guntas 3 of the said land as per the judgment and decree passed in LAC No.410/1987. The said 20 guntas of land is the subject matter of the suit. The plaintiff claims to have constructed compound wall and AC sheet shed and house in the said land. It is his case that there is a tomb of his elder brother late L.Krishna Reddy who died on 22.05.1971. The licence for construction and the grant of electricity connection is referred to. In that view the plaintiff contends that he had given two representations dated 26.12.1990 and 10.08.1992 seeking reconveyance of the schedule property. He further contends that he has not received the compensation though the award was made and the amount was deposited in Court. The plaintiff contends that he continued to be in possession of the property as on the date of filing the suit, though possession was taken on 15.07.1987 by the defendant hostile to the rights of the defendant.
4. The plaintiff further contends that he had filed writ petition No.18044/2000 seeking regularisation of 4 the possession of the plaintiff. However, the same was dismissed on the basis of a common judgment. But, leave was granted to the persons in settled possession to file civil suits. The plaintiff contends that the defendant had admitted the settled possession of the defendant in the writ petition. It is therefore contended that the possession is adverse to the interest of the true owner and such possession is for to the knowledge of the defendant and such possession is for more than 12 years. The plaintiff therefore contends that he having put up structures and remaining in settled possession for more than 12 years without any kind of interference from the defendants, the title of the defendant BDA stood extinguished. The plaintiff also contends that the defendant has acquired the other lands measuring 7 acres 13 guntas belonging to the plaintiff and the suit schedule property is the only source for his family which consists of two sons who are educated and unemployed and the land in question is to be used for establishing automobile engineering shop. The spot inspection report is referred to contend regarding the 5 existence of the structures. The plaintiff therefore has filed the suit seeking for declaration that he is the owner by adverse possession.
5. The defendant on being served with the suit summons has appeared and filed the detailed written statement. The fact relating to the acquisition of the properties as contended by the plaintiff for the formation of HSR layout is not disputed. However, the date of notification as stated by the plaintiff is contended to be incorrect. The defendant further denies that the plaintiff has constructed compound wall and AC sheet shed and house and that the tomb of his brother exists in the property. The further contention with regard to the building licence and electricity connection is also disputed. The documents in that regard is alleged to be concocted. The defendant contends that since the property has vested with them, the question of reconveyance does not arise. It is contended by them that the possession of the schedule property was taken by them on 15.07.1987 and the 6 filing of the writ petition though is admitted, it is stated that the defendant has not admitted the settled possession of the plaintiff as contended. Insofar as the notification for acquisition, it is contended that the preliminary notification was in fact dated 15.12.1984 which was duly published on 17.01.1985 and the final notification is dated 28.11.1986 published in the gazette of 25.12.1986. The notices have thereafter been served on the notified khathedars and the award dated 17.06.1987 was passed pursuant to which possession was taken on 15.07.1987 and the same was also handed over to the engineering section for formation of the layout. It is contended that the defendant has formed the layout and allotted the sites to the eligible applicants. It is their case that the allottees of the sites have been put in possession of the respective sites. It is contended that in view of the valid acquisition, the property has vested in the authority free from encumbrances. Since the plaintiff has been divested in accordance with law, the possession as claimed cannot be accepted nor can it be adverse to the interest of the 7 defendant. The defendants therefore have sought for dismissal of the suit.
6. The Court below on taking note of the rival contentions has framed four issues for its consideration which read as hereunder:
1. Whether plaintiff proves that, he is in lawful possession and exclusive enjoyment of suit schedule property as on the date of filing of suit?
2. Whether plaintiff further proves that, he has perfected his title to the suit schedule property by way of adverse possession against defendant?
3. Whether the plaintiff is entitled for the declaration as prayed?
4. To what order or decree?
7. In order to discharge the burden cast on the parties, the plaintiff has examined himself as PW.1 and has also examined three witnesses as PWs.2 to 4. He has relied upon the documents at Ex.P1 to P 13(a). The defendants on the other hand have examined the Officers working in the defendant authority as DW.1 and DW.2 and the documents at Exhs.D1 to D6 have been marked.
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8. Heard Sri V. Lakshminarayana, learned counsel on behalf of Sri K.H. Somashekar learned counsel for the plaintiff, Sri U. Abdul Khader, learned counsel for the defendants and perused the appeal papers including the records received from the Court below.
9. The case on behalf of the plaintiff is that though the property measuring 21 acres 23 guntas had been acquired by the defendant, the plaintiff has continued to remain in possession of an extent of 20 guntas which is described in the suit schedule. Such possession is claimed to be adverse to the interest of the defendant and as such, the plaintiff is seeking for declaration. The plaintiff contends that though another extent of 7 acres 13 guntas has been voluntarily handed over by the plaintiff, the instant extent of 20 guntas wherein AC sheets sheds were located had not been taken over in accordance with law.
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10. From the pleadings of the rival parties and from the oral evidence as well as the admissions of P.W.1 in his cross-examination coupled with the evidence of D.W.1 and D.W.2 and the documents marked as Ex.D1 and D2, the fact that the suit schedule property measuring 20 guntas was also the subject matter of acquisition under the preliminary notification and the final notification dated 28.11.1986 cannot be in dispute nor it is disputed. The fact that the award dated 17.06.1987 was passed in respect of the lands including the suit schedule property is disclosed from Ex.D3. Though the defendants have produced the mahazar dated 15.07.1987 at Ex.D4 and also the notification published under Section 16(2) of L.A. Act at Ex.D5 as evidence for taking possession including the suit schedule property, the plaintiff is disputing that physical possession has been taken in respect of the suit schedule property. In that regard, the plaintiff has also got the mahazar marked as Ex.P10 along with the inspection report to contend that possession of AC sheet sheds were not taken and that 10 he continued to remain in possession. Hence, the only question for consideration is as to whether the possession of the property in fact remained with the plaintiff and continued to be so as on the date of suit and also as to whether the same was adverse to the interest of the defendant?
11. The learned counsel for the plaintiff relying on Exhs.P7 to P9 regarding the representation given seeking reconveyance would contend that the plaintiff had approached this Court in W.P.No.18044/2000 (BDA). The Division Bench of this Court by its order dated 18.08.2000 (Ex.P12), though had rejected the prayer, the plaintiff would still have the benefit of seeking the remedy before the Civil Court to protect the possession as held by this Court in the case of John B. James and others -vs- Bangalore Development Authority and another [2001 (1) Kar.L.J. 364 (DB)], provided the ingredients stipulated are satisfied. In the said decision, this Court has held that if the contention is that the land has not vested at all in BDA, then the 11 remedy of such petitioners lies in a suit where they can prove their possession. Insofar as the plots with structures, this Court has observed that where unauthorised structures are put and amenities are provided but, the BDA does not take steps to resist the trespasser's attempt, but acquices, then such person can be said to be in settled possession but will not include litigious possession. It is further held that where settled possession is claimed for more than 12 years after the land is vested with BDA, it is open to such person to approach the Civil Court for declaration of title by establishing adverse possession for more than 12 years.
12. The learned counsel for the defendant on the other hand relied on the decision of the Hon'ble Supreme Court in the case of State of Bihar -vs- Dhirendra Kumar and Others [(1995) 4 SCC 229] and in the case of Laxmi Chand and Others -vs- Gram Panchayat, Kararia and others (AIR 1996 SC
523) to contend that a civil suit is not maintainable to 12 challenge the process of acquisition. The said decisions would apply to a situation if the notification for acquisition is called in question. However, in the instant suit, it is not such situation but the question is whether the erstwhile landowner has continued in possession notwithstanding the fact that there was valid acquisition. The learned counsel for the defendant has further relied on the decision of the Hon'ble Supreme Court in the case of Balwant Narayan Bhagde -vs- M.D. Bhagwat and Others (AIR 1975 SC 1767) wherein it is held that when the Tahsildar has taken the possession and even if the erstwhile landowner has entered upon the land and resumed possession of it the very next moment after the land was actually taken possession after it has vested, that will not obliterate the consequences of vesting. There can be no two opinions on that position of law enunciated by the Hon'ble Supreme Court. But, the question herein is as to whether even after vesting, the plaintiff has satisfied the requirements of adverse possession and whether the statutory period has lapsed so as to seek for a 13 declaration as stated by the Division Bench of this Court.
13. The learned counsel for the plaintiff at the outset would refer to the evidence tendered by the plaintiff as P.W.1 wherein he has stated that he has constructed AC sheet shed and house and the tomb of his deceased brother is also situate therein. He refers to the statement said to have been made in W.P.No.18044/2000 about the possession of 20 persons and he claims that he has been in adverse possession for more than 12 years though possession was taken on 15.07.1987. However, in the cross-examination, he admits about the entire acquisition process. Though taking of possession is denied, he admits that BDA has formed layout in the entire area but states that it is except this land. The fact of the Exhs.P1 and P2 not standing in his name and bearing no number of the property is admitted. He has not obtained licence for construction is admitted. One Sri Nanjunda Reddy is examined as P.W.2 to support the case of the plaintiff 14 that he is in possession and carrying on agriculture and shed is there. Apart from his admissions relating to the acquisition, he states that there is no agricultural operation but sand is being stored. The affidavit of Sri Krishna Reddy (P.W.3) is produced as evidence and it is in similar lines. Thereafter one Sri Jabbar Sab who is a witness to the possession mahazar at Ex.P10 is examined as P.W.4. Though he states about the mahazar, according to him, the plaintiff continued and carried on agricultural operation and about 10 years back BDA had demolished the sheds and thereafter the plaintiff shifted his house to HSR Layout. He has no doubt denied all suggestions put to him.
14. As against the said oral evidence, on behalf of the plaintiff, the defendant examined Sri Shankar Reddy, First Division Clerk as D.W1 who stated with regard to the procedure followed for acquisition and the layout formed. The learned counsel for the plaintiff would refer to his cross-examination to point out that he has not visited the spot and that he admits the 15 existence of AC sheet sheds as shown in the mahazar. One Sri Ireddy, Assistant Engineer was examined as D.W.2 who states about there being structures and that layout being formed. Learned counsel for the plaintiff would again refer his cross-examination about admitting that Ex.P11 refers to construction of compound wall and that he admits the photographs produced relate to the suit property.
15. In that background, the learned counsel for the plaintiff would refer to Ex.P10 and inspection report to point out that the same refers to the property of different persons and with regard to the plaintiff's property it is shown that the AC sheet sheds were in existence and in such event, physical possession should have been taken and there is no material to show that the plaintiff was present and handed over possession. The decision in the case of Prahlad Singh and Others
-vs- Union of India and Others [(2011) 5 SCC 386] is referred to contend that only on actual possession being taken, the land would vest in the acquiring authority as 16 held therein. The learned counsel for the defendant would however point out that the said decision cannot be of assistance in the instant case since, apart from a valid mahazar, the plaintiff himself has admitted in his notice dated 12.10.2000 (Ex.P-8) that possession was taken on 15.07.1987. The learned counsel for the plaintiff in order to repel the said contention has relied on the decision in the case of Nagubai Ammal and Others -vs- B. Shama Rao and Others (AIR 1956 SC
593) wherein it is held that the admission made will be presumed to be so but such admission must be clear and unambiguous. The decision in the case of United India Insurance Co.Ltd., and Another -vs- Samir Chandra Chaudhary [(2005) 5 SCC 784] wherein it is held that though admission is the best evidence, it may be explained or shown to be wrong is the position enunciated. It is therefore contended that the documents show that AC sheet shed was there and possession was not taken. In that background, though it was sought to be explained that the Advocate had stated so in the notice issued by him and it should not 17 be treated as admission, what is seen is that this fact of possession being taken has been asserted in the plaint as also the affidavit evidence of PW-1 i.e., the plaintiff.
16. In addition to the said position, even if such sheds were there when possession was taken and when the plaintiff contends physical possession was not taken, there is nothing to show that the sheds continued to exist as on the date of filing the suit to claim that he is in continuous adverse possession. First and foremost, the documents at Exhs.P-1 to P-4 i.e., the licence and electricity bill are relied. There is nothing to indicate that it relates to the suit property. The representation dated 26.12.1990 (Ex.P-5) and 10.08.1992 (Ex.P-6) will defeat the case of the plaintiff that his possession even after 1987 is adverse to the interest of the defendant and even subsequently representation dated 24.05.2000 (Ex.P-7) is made seeking for re-conveyance. That apart, except asserting that he had continued in possession, there is no material to show that he had exercised ownership right by paying taxes or producing material to show that he was openly enjoying the property. The photographs 18 relied on by the plaintiff at Ex.P-13 even if accepted to be that of the suit schedule property, it neither indicates the existence of the sheds or house and not even a compound wall as claimed. The tomb is of no consequence to establish possession. In addition, though it was not the case as put forth by the plaintiff, the mahazar witness who was examined as PW-4 by the plaintiff himself has stated in his affidavit evidence recorded on 02.02.2010 that the sheds have been demolished by the BDA about 10 years back and if that is calculated backwards it would be around February 2000 and in any event after the filing of the suit on 07.12.2000 there was no complaint of demolition thereafter which will indicate that in any case, it was earlier to the suit. Hence, the continued possession either on account of not taking possession or the adverse possession for the statutory period after entering upon possession and continuing to be so as on the date of the suit cannot be accepted in the instant facts of the case.
17. The learned counsel for the plaintiff by further referring to a Full Bench decision of this Court sought 19 to contend that even if possession was taken under the Mahazar at Ex.P-10, it is drawn by the Revenue Inspector and there is nothing to indicate that the Competent Authority has either authorised or accepted the report. The said contention in my view would not be available in the instant suit since the same was not pleaded and contended in the suit so as to put the defendant on notice to establish that aspect if need be. Secondly acquisition was not challenged on that ground at any earlier point in time but throughout re- conveyance was prayed. Lastly, when adverse possession itself is not established that question would not arise.
18. In addition to all the above contentions, the learned counsel for the plaintiff would refer to the additional document which is produced along with I.A.No.1/12 filed under Order 41 Rule 27 of CPC. The said document is the Judgment and decree passed in O.S.No.8751/2000 wherein in respect of another item of land acquired under the same notification, the Court 20 below has decreed the suit. The learned counsel for the plaintiff also relied on the decision in the case of Tirumala Tirupati Devasthanams -vs- K.M. Krishnaiah [(1998) 3 SCC 331] wherein it is held that judgment not inter parties is admissible in evidence for assertion of a right to property in dispute. In any event, considering that the said judgment in O.S.No.8751/2000 relates to another property under the same acquisition, the application is allowed and the same is taken on record subject to consideration of its relevance.
19. In that regard, in order to consider as to whether it will aid the case of the plaintiff herein, a perusal of the same at the outset would indicate that it was a suit for permanent injunction wherein the rigour is not the same as in a suit seeking for declaration of ownership by adverse possession. That apart, the plaintiff therein had filed an earlier suit in O.S.No.7015/1991 and the contention was that there was a RCC building and in addition to the inspection 21 report; the contention in the suit was that it was not acquired. Though the BDA filed written statement adverting to the acquisition, no documents were produced nor evidence tendered. On the other hand, the BDA filed a memo admitting that it is a built up area and liberty was sought to take possession which was an admission, that the possession was not taken. The conduct of BDA in that suit in fact appears to be strange. Be that as it may, ultimately the same being a suit for injunction it has been decreed in part reserving liberty to the defendant-BDA to proceed in accordance with law. Though the same was subsequently affirmed in RFA No.255/2005 and the order dated 18.07.2005 passed therein is also produced along with the application, I do not find that the same would be of any assistance in the instant proceedings wherein a full fledged trial has taken place and the defendants have placed all materials which have been noticed by the Court below and on re-appreciation, I do not find it expedient to accept the contention of the plaintiff. 22
For all the reasons stated above, I am of the opinion that the Court below has not committed any error so as to call for interference in this appeal.
In the result, the appeal is dismissed. The parties shall bear their own costs.
Sd/-
JUDGE Akc/bms