Karnataka High Court
Smt M S Meenakshamma vs State Of Karnataka on 30 June, 2014
Bench: K.L.Manjunath, Ravi Malimath
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 30TH DAY OF JUNE 2014
PRESENT
THE HON'BLE MR.JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR.JUSTICE RAVI MALIMATH
REGULAR FIRST APPEAL NO.459 OF 2013
BETWEEN:
Smt.M.S.Meenakshamma
Aged about 81 years
W/o A.G.Manjunatha Gowda,
R/a Halakere Village,
Mudigere Taluk,
Chikmagalore District.
Pin:577 132. ...APPELLANT
(By Sri P.P.Hegde, Advocate)
AND:
1. State of Karnataka
Rep. by Chief Secretary
The Govt. of Karnataka
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Vidhana Soudha,
Bangalore - 01.
2. The Deputy Commissioner
Office of DC Chikmagalore District,
Chikmagalore City
Pin: 577 101. ...RESPONDENTS
(By Smt.S.Susheela, AGA for R1 & R2)
*****
This RFA is filed under Section 96 R/w Order XLI,
Rule 1 of CPC, against the judgment and decree dated
01.02.2013 passed in O.S.No.218/2007 on the file of
the Addl. Senior Civil Judge and JMFC, Chikmagalore,
dismissing the suit for declaration and injunction.
This RFA coming on for orders this day,
K.L.Manjunath J., delivered the following:-
JUDGMENT
Though the matter is listed for admission, with the consent of the learned counsel appearing for the parties, the matter is taken up for final disposal.
2. Heard the counsel for the appellant and the learned Government Advocate for respondent no.1 and 2.
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3. The appellant who was plaintiff in O.S. No.218/2007, before the City Civil Judge (Senior Division), Chikmagalore, has preferred this appeal challenging the legality and correctness of the judgment and decree dated 01.02.2013.
4. The appellant / plaintiff filed a suit for declaration and injunction to declare that she has perfected her title by adverse possession in respect of Suit Schedule 'A' and 'B' properties and for injunction restraining the Special Deputy Commissioner, Chikmagalore from interfering with her lawful possession of plaint 'A' schedule property which is measuring 6 acres of land situated in Survey No.248 of Halekere Village and 'B' Schedule property which is measuring 25 acres situated in survey No.47/p of Halekere village.
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5. According to her, the suit property was a Government land, which was unauthorisedly cultivated and enjoyed by one B.Manezes, from 1967 to 1971, by encroaching the same. Later on, B.Manezes, sold his Hiduvali land and delivered the possession of the same along with the encroached land to one Mohammed Ismail. The Mohammed Ismail was in possession of 'A' Schedule property and he filed an application for regularization of the unauthorized cultivation, which application came to be rejected on 04.06.1983 by the Special Deputy Commissioner, Chikmagalore.
6. Against the rejection of the application, Mohammed Ismail had preferred an appeal before the State Government, which application also came to be rejected. Immediately after the rejection the said Mohammed Ismail no action is taken by the respondents. The plaintiff being the transferee is lawfully cultivating the land adverse to the interest of 5 the Government and Mohammed Ismail has also executed a sale agreement in favour of the plaintiff.
7. Thereafter, plaintiff filed the suit to declare that she has become the absolute owner of the property by way of adverse possession in respect of the both Schedule 'A' and 'B' properties. The respondents- defendants contested the suit denying the allegations made by the plaintiff. According to the respondents, if any person is under unauthorized cultivation and encroached the Government land in view of Section-94 of the Karnataka Revenue Act, the Government can evict such unauthorized cultivation. According to them, the claim of Mohammed Ismail for regularization was rejected in limine and thereafter, if the plaintiff has cultivated the land unauthorisedly claiming through Mohammed Ismail is not entitled for relief. Therefore, they requested the court to dismiss the suit. 6
8. Based on the above, the court below framed the following issues:
"1. Whether the plaintiff proves that she is in actual possession and enjoyment over the suit schedule property since 4.11.1976?
2. Whether the plaintiff has perfected her title by way of adverse possession?
3. Whether the plaintiff proves the alleged interference by the defendants?
4. Whether the plaintiff is entitled for the relief of declaration and permanent injunction?
5. What order or decree?"
9. In order to prove their respective contentions, the plaintiff got herself examined as PW-1 and she also relied upon the evidence of PW-2 and PW-3 and got marked Exhibits P1 to P12. The trial court after considering the entire evidence answered all the issues in negative and dismissed the suit. Challenging the same, the present appeal is filed.
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10. The main contention of the appellant counsel before us is that the trial court has committed an error in dismissing the suit. According to him even if the application of Mohammed Ismail for regularization has been rejected, it was the duty of the Revenue Authority to evict him within the time stipulated. Since no such action was taken against Mohammed Ismail who was an unauthorized occupant and when he has transferred the lands to the appellant it has to be considered as a continuous possession of the appellant and that the appellant was in cultivation and enjoyment of the suit property adverse to the interest of the Government. Therefore, he contends that the trial court did not appreciate the contention of the appellant that she has perfected her title by way of adverse possession.
11. Per contra, the learned Government Advocate submits that the suit filed by the appellant 8 was not maintainable because the plaintiff was in unlawful possession and did not perfected her title by way of adverse possession. If she is in adverse possession, she cannot file a suit for declaratory relief on her own way filing a suit for regularisation. She further submits that a suit has been filed in the year 2007 as per Exhibit-P10. A notice was got issued in the year 1998 for eviction of the appellant from unauthorized cultivation. Considering the sale deeds dated 15.06.1977 and 15.06.1977, as per Exhibits-P8 and P9 and Exhibit-P10. the Notice issued by the Tahsildar, Mudigere, the appellant cannot contend that she has perfected her title by way of adverse possession, since before expiry of 30 years the Government has taken steps to evict the appellant from the possession. In the circumstances, learned Government Advocate requests the court to dismiss the appeal. 9
12. Having heard the counsel for the parties, what is required to be considered by this Court in this appeal is:
"Whether the appellant is entitled for a declaratory relief,, declaring her as an absolute owner by way of adverse possession?"
13. The appellant is not disputing that in respect of plaint 'A' schedule property, his vendor Mohammed Ismail was under unauthorized cultivation and the application filed by Mohammed Ismail for regularization is rejected. When she files an application for regularization she stated that Mohammed Ismail never claimed adverse possession. Therefore, the possession prior to the purchase made by the plaintiff by Mohammed Ismail cannot be considered as a continuous possession. In addition to that, the plaintiff is claiming right through the sale deeds of the year 1976 10 as per Exhibit-P8 and P9. Under Exhibits-P8 and P9 no where it is stated about the unauthorized cultivation of Mohammed Ismail and B.Manezes. Lands are sold as if her vendors were the absolute owners. If the appellant has purchased the property from the vendors as their absolute property, she cannot contend that she has perfected her title by way of adverse possession.
14. The Hon'ble Supreme Court on considering various judgments on adverse possession in its judgment reported 2014 (1) SCC 669, in the case of Gurdwara Sahib vs. Gram Panchayat Village Sirthala and Another, wherein the Hon'ble Supreme Court held that the plea of adverse possession can only be taken as a defence, since such a plea is to be considered as a shield or defence. Hence on this ground also, we do not find any good ground to interfere with the impugned order.
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15. Viewed from any angle, there is nothing on record to show that Schedule 'A' and 'B' were in possession adverse to the interest of the state government and that the appellant has perfected her title. As rightly pointed out by the Government Advocate the plea of the adverse possession can be considered as a shield but not as a sword. In the circumstances, we do not find any merit in this appeal.
In the result, the appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE JJ