Kerala High Court
Thomas vs Lonappan on 12 January, 2016
Author: A. Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
WEDNESDAY, THE 19TH DAY OF OCTOBER 2016/27TH ASWINA, 1938
RSA.No. 285 of 2006 (A)
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AGAINST THE JUDGMENT & DECREE IN AS 131/2002 of PRINCIPAL SUB COURT,
IRINJALAKUDA DATED 12.01.2016
AGAINST THE JUDGMENT & DECREE IN OS 1130/1998 of THE ADDITIONAL
MUNSIFF COURT, IRINJALAKUDA DATED 11.07.2002
APPELLANT/APPELLANT/2ND DEFENDANT:
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THOMAS, S/O.VARAMPILAVIL OUSEPH,
ELINJIPRA VILLAGE & DESOM, MUKUNDAPURAM TALUK.
BY ADV. SRI.K.G.BALASUBRAMANIAN
RESPONDENTS/RESPONDENTS/PLAINTIFF AND 1ST DEFENDANT:
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1. LONAPPAN, S/O.KOLUVANNUKKARAN LONAPPAN,
ELINJIPRA VILLAGE & DESOM, MUKUNDAPURAM TALUK.
2. KODASSERY GRAMA PANCHAYATH,
REPRESENTED BY SECRETARY,
ELINJIPRA VILLAGE & DESOM, MUKUNDAPURAM TALUK.
R1 BY ADVS. SRI.C.S.AJITH PRAKASH
SRI.SADANANDA PRABHU
R2 BY ADVS. SRI.M.N.MANOJ
SRI.SHEEJO CHACKO
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09.09.2016,
THE COURT ON 19.10.2016 DELIVERED THE FOLLOWING:
C.R.
A. HARIPRASAD, J.
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R.S.A.No.285 of 2006
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Dated this the 19th day of October, 2016
JUDGMENT
This second appeal raises some important substantial questions of law. After carefully perusing the appeal memorandum and the records and on hearing the learned counsel for the contesting parties, the substantial questions of law reframed are thus:
1. Whether a suit for declaration to the effect that the plaintiff has acquired title by adverse possession and limitation is maintainable ?
2. Whether, in the facts and circumstances of the case, the courts below erred in not holding that the provisions contained in the Panchayath Act, 1960 and the Panchayath Raj Act, 1994 prevented a plea of adverse possession against a Grama Panchayath?
3. Nuisance by trespass being a continuous wrong, can a person claim adverse possession over a R.S.A.No.285/2006 2 public land, as cause of action arises on every day of its continuation, as there being no limitation?
4. Whether, in the facts and circumstances of the case, a decree for injunction could have been granted against the 2nd respondent Grama Panchayath, the true owner of the property in question?
2. Heard the learned counsel Sri.K.G.Balasubramanian for the appellant, Sri.Sadanantha Prabhu for the 1st respondent and Sri Sheejo Chacko for the 2nd respondent.
3. 2nd defendant in the suit is the appellant. The plaintiff and the 1st defendant are the respondents. Contentions raised in the plaint in short are as follows: The plaint schedule property belongs to the 1st respondent/plaintiff. No other person has any right, interest or possession over the property. The extent of the property, after measuring it out by a Commissioner, is found to be 6.016 cents. The plaintiff had reduced the property into his possession about 42 years before R.S.A.No.285/2006 3 institution of the suit and put up boundaries. Initially, he had put up a thatched hut in the property. Thereafter, he constructed a tiled house. He is residing in the house with his family. He dug a well too in the property about 25 years ago. That apart, he has improved the property by planting various fruit bearing trees. In recognition of his possessory title over the property, the 2nd respondent (1st defendant) Grama Panchayath had assigned a door number to his house. He has been remitting building tax in respect of the house. From 27.07.1981 onwards, he enjoys electric supply to his house. A ration card is also issued to the plaintiff in his house address. The plaintiff has prescribed title over the property by open, peaceful, long and unobstructed exclusive possession for more than the statutory period. A public road passes through the southern side of the plaint schedule property and the plaint schedule property does not form part of the said road. When the defendants tried to meddle with his enjoyment of the property, the plaintiff approached the trial court for a R.S.A.No.285/2006 4 declaration that he has prescribed title by adverse possession and limitation and also for a prohibitory injunction against the 1st defendant Grama Panchayath from interfering with his possession.
4. The 1st defendant filed a written statement opposing the action. According to the Grama Panchayath, the plaintiff claims right over a road puramboke which is vested in the Panchayath under Section 169 of the Kerala Panchayath Raj Act, 1994 (in short, the Panchayath Raj Act). The claim of the plaintiff that he has been in possession of the property for 42 years is totally false. He encroached upon the Panchayath puramboke comprised in Survey Nos.137/5, 138/9 and 140/1 of Elinjipra Village and unauthorisedly occupied the same. The Grama Panchayath admitted that he had constructed a house and dug a well and also planted certain fruit bearing trees. According to the Grama Panchayath, all of them are of recent origin. The Grama Panchayath admitted that it had assigned a number to the building constructed by the plaintiff. It is the case R.S.A.No.285/2006 5 that the plaintiff had assured the Grama Panchayath that he would vacate the premises as and when required by them. According to the Grama Panchayath, the plaintiff never possessed the property asserting a hostile title. In fact, he is in possession over the property acknowledging and admitting the title of the Panchayath. The plaintiff, therefore, has not prescribed any title by adverse possession and limitation. Report submitted by the Tahasildar, Mukundapuram revealed that the plaint schedule property is part of a road puramboke. Therefore, the Panchayath is entitled to take action to evict the plaintiff under the Panchayath Raj Act.
5. The 2nd defendant also opposed the plaint claim contending that the plaintiff occupies the property blocking his access to the Panchayath road. He has every right to have an access to the road from each point of his property touching the road. As the plaintiff had put up structures and planted trees blocking his access, it causes nuisance to him.
R.S.A.No.285/2006 6
6. The trial court passed a decree declaring the plaintiff's possessory title to the plaint schedule property and granted an injunction restraining the defendants from dispossessing the plaintiff from the plaint schedule property. Aggrieved by the decision, the defendants separately filed appeals before the lower appellate court. That court heard the appeals together and disposed them by a common judgment. Both the appeals were dismissed by the lower appellate court. The Panchayath did not challenge the decree dismissing their appeal and therefore, it has become final.
7. Considering the importance of the first question, I shall deal with it elaborately so that determination of other questions could be made easy.
8. Before going into the decision in Gurudwara Sahib v. Grama Panchayat Village Sirthala and Another 2014 (1) SCC 669], the one on which the appellant relies on to build up his case, I shall consider the relevant aspects regarding the law of adverse possession R.S.A.No.285/2006 7 and limitation with special reference to the Limitation Act, 1963 (in short, the Act of 1963).
9. A constitution Bench of the Supreme Court in Nav Rettanmal v. State of Rajasthan [1963 (1) SCJ 426] has held that the statutes of limitation are designed to effectuate a beneficient public purpose, viz., to prevent the taking away from one what he has for long been permitted to consider his own and on the faith of which he plans his life, habits and expenses. It is also held that the Limitation Act, though a "statute of repose" and intended for quieting titles and in that sense looks at the problem from the point of view of the defendant with a view to provide for him a security against stale claims, addresses itself at the same time also to the position of the plaintiff. Various authors on this subject hold an opinion that this law is an Act of peace. According to them, long dormant claims are often more of cruelty than of justice in them.
10. Seminal work by U.N.Mithra on the Law of Limitation & Prescription (Tagore Law of Lectures - R.S.A.No.285/2006 8 1882) says thus:
"The law of limitation is founded on public policy, its aim being to secure the quiet of the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. It incorporates principles of great benefit to the Community. The statute discourages litigation by burying in one common receptacle all the accumulations of past times which are unexplained and have not from lapse of time become inexplicable. It has been said by John Voet, with singular felicity, that controversies are limited to a fixed period of time, why they should be immortal while men are mortal.
Rules of limitation are founded on
considerations of public policy. They have been
viewed by some as an "infamous power created by positive law to decrease litigation and encourage dishonest defences." This is not wholly sound. In sooth, the law of limitation affords a guarantee to the litigant public that after the lapse of a particular period of time prescribed by the law, the cause of action rests. The object of the rules of limitation is preventive and not curative. They interpose a statutory bar after a certain period and give a quietus to suits to enforce an existing right. Lapse of limitation ordinarily bars only the remedy and does not extinguish the title of the claimant." R.S.A.No.285/2006 9
11. The statement that 'law of limitation ordinarily bars only the remedy and does not distinguish the title of the claimant' is subject to the only exception to be found in Section 27 of the Act of 1963. The corresponding provision was Section 28 of the Limitation Act of 1908 (old Act).
12. The provisions in the Act of 1963 relevant for this case are Section 27 and Article 65. Section 27 of the Act reads as follows:
"Extinguishment of right to property. - At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished."
13. The Privy Council, long time before, had held that the principle in Section 28 of the old Act is that if a person having a right to possession suffers his right to be barred by the law of limitation, his title itself is extinguished in favour of the party in possession (see Gunga Govind Mandal v. The Collector of Twenty-four Pergunahs, 11 Moo IA 345 (PC). Long line of decisions can be found in support of the R.S.A.No.285/2006 10 proposition that Section 27 of the Act of 1963 expressly provides that when there exists a cause of action in favour of a person to file a suit for possession, then, if the suit is not filed within the period of limitation prescribed and the period of limitation stands determined, then not only the period of limitation comes to an end, but his right will also come to an end and it will stand extinguished. It is also the law that this Section assists the person in possession to acquire prescriptive title by adverse possession.
14. Learned author U.N.Mithra in his classical work while dealing with Section 27 of the Act of 1963 has stated thus:
"There is no law which enjoins the duty on the person who asserts adverse possession to bring the same to the notice of the competitor to perfect a title by adverse possession. What has to be proved is that the possession required was adequate in continuity, publicity and in assertion of his own right against the real owner. In other words, possession must be overt and not taken in concealment. It has to be seen whether under the circumstances of each case, the competitor was in a position to know, if he was R.S.A.No.285/2006 11 vigilant, the actual position regarding the property in question."
15. But the above view does not derive support from some recent decisions of the Supreme Court. In some cases, the Supreme Court has taken a view that a person in wrongful possession has to communicate his hostility to the real owner. (See Krishnamurthy S.Settur v. O.V.Narsimha Shetty [2007 (3) SCC 569]. In P.T.Murichikkanna Reddy & Others v. Revamma & Others [2007 (6) SCC 59], the apex Court has viewed the plea of adverse possession from an angle of human rights issue. However, those decisions cannot have any impact on the case on hand, as ingredients of adverse possession have been clearly established by pleadings and proof.
16. Coming back to the subject, Article 65 of the Act of 1963 is the other relevant provision which requires consideration for a proper adjudication of this case. Article 65 replaced Article 144 of the Act of 1908. The noticeable changes in Article 65 are that the words "based on title" in R.S.A.No.285/2006 12 Column I are new and the words "not hereby otherwise specifically provided for" in the former Article 144 of old Act have been omitted in Article 65. The present Article says that a suit for possession of immovable property or any interest therein based on title will have to be instituted within 12 years when the possession of the defendant becomes adverse to the plaintiff. On a reading of the provision, it is evident that the suit visualized under this Article is one for possession of immovable property or any interest therein based on title. A suit for possession is not necessarily confined to a suit for physical possession alone. An interest in immovable property does not, in many cases, admit of physical possession. Suits against trespassers on property mortgaged or leased will apparently fall within Article 65. It has been held in Sitamma v. Sithapathi Rao [1937 (2) MLJ 606] that the principles of Article 65 would have to be applied in the case of a suit for possession under a gift deed, where the properties were in the possession of tenants, and to attorn to him.
R.S.A.No.285/2006 13
17. In Ribera and Others v. Kurien and Others [1966 KLT 1084], a Division Bench of this Court has held that if a party, who is out of possession for 12 years and whose suit for possession is therefore barred, is again let into possession, he is not remitted to his old title. The principle is, that when title of the former owner has been extinguished by prescription, his title is not restored and he will be treated only as a trespasser, should he come into possession again. This dictum clearly spells out that a fully matured right derived by adverse possession and limitation does not merely extinguish a title, but also confer title on the possessor. Privy Council in Masjid Sahib Ganj v. S.G.P.Committee [AIR 1940 P.C.116] has held that with the extinguishment of the right to possession all rights accessory thereto also will perish.
18. The classical requirements of adverse possession, ever since the decision of their Lordships of the Judicial Committee of the Privy Council in Corea v. Appuhany [1912 A.C.230], are nec vi (neither by force), nec clam R.S.A.No.285/2006 14 (neither secretly) and nec precario (neither by licence or permission). It is found that the inevitable and inseparable ingredients to title of adverse possession are corpus possessendi and animus possidendi continuously for over the statutory period. It has been well said that adverse possession commences in wrong and is maintained against right.
19. The decision rendered by the Lord Chancellor, The Earl of Halsbury, Lord Macnaghten, Lord Davey, Lord Robertson, Lord Atkinson, Sir Ford North, and Sir Arthur Wilson of the Judicial Committee of the Privy Council in Perry v. Clissold and Others [1907 A.C.73] has been treated as locus classicus by a three Judge Bench of the Supreme Court in Nair Service Society Limited v. K.C.Alexander and Others [AIR 1968 SC 1165]. Before dealing with N.S.S. case (supra), I shall firstly deal with Perry's case (supra).
20. The facts in Perry's case, stated shortly are that the rightful owner of a certain land in New South Wales, R.S.A.No.285/2006 15 Australia, which was resumed by the Minister of Public Instruction was unknown and was out of possession. But one person had entered into possession of the property as a vacant land and he had enclosed it by a substantial fencing. Thenceforth, up to the date of resumption, he held exclusive possession thereof without notice of any adverse claim. He received rents and paid rates and taxes in respect of the land, which stood in his name in the rate-books of the municipality. It was held that the possessor was not a mere trespasser, but had a possessory title, good at the date of resumption against everyone. It is further held that such a person had a prima facie case for compensation within the meaning of the relevant statute. Their Lordships laid down the proposition of law, which reads as follows:
"It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by process of law within the period prescribed by the R.S.A.No.285/2006 16 provisions of the Statute of Limitations applicable to the case, his right is for ever extinguished, and the possessory owner acquires an absolute title."
21. The Supreme Court, while dealing with N.S.S. case has considered the scope of the aforementioned principles. Of course, the Supreme Court was dealing with a suit wherein the rival parties claimed possessory title over the Government puramboke lands. The Supreme Court noticed the fact that the Government was not made a party to the suit. In the course of discussion, the Supreme Court has made a reference to Perry's case and held that possession is good against all but the true owner. The above quotation from Perry's case was approved expressly in paragraph 22 of the judgment. It has been held in the above paragraph that a similar view had been consistently taken in India and the amendment of Indian Limitation Act has given approval to the proposition accepted in Perry's case and may be taken out declaratory of the law in India.
22. In the light of the aforementioned principles, I shall look into the decision in Gurudwara Sahib's case R.S.A.No.285/2006 17 (supra). The appellant Gurudwara Sahib was the original plaintiff in the suit. The suit was for a declaration to the effect that it had become the owner of the suit property by adverse possession and that the revenue record showing the ownership of the 1st respondent (Grama Panchayath) was liable to be corrected in the name of the appellant and for a prohibitory injunction. The suit was partly decreed by the trial court and granted the relief of injunction. In the first appeal also, the appellant could not succeed in getting the declaratory decree as prayed for. The second appeal preferred before the High Court was also unsuccessful. Hence, the appellant approached the Supreme Court with a special leave petition, which was allowed. In the facts and circumstances of that case, in paragraph 8, the Supreme Court held:
"There cannot be any quarrel to this extent that the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed R.S.A.No.285/2006 18 against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence."
23. Learned counsel appearing for the 1st respondent contended that the aforementioned proposition cannot be blindfoldedly applied to all cases. It is his further submission that this view expressed by two learned Judges in Gurudwara Sahib's case is contrary to the law declared by a Division of three learned Judges of the Supreme Court in Sarangadeva Periya Matam and Another v. Ramaswami Goundar [AIR 1966 SC 1603]. In the light of this argument, it has become necessary to look into the facts in Sarangadeva's case .
24. Sri Sarangadeva Periya Matam of Kumbakonam was the inamholder of the lands in dispute. In 1883, the then mathadhipathi granted a perpetual lease in a portion of the inam lands to one Chinna Gopiya Gounder, the grandfather of the plaintiff-respondent. Since 1883 until January 1950, Chinna Gopiya Goundar and his descendants were in uninterrupted possession and enjoyment of the suit lands. In R.S.A.No.285/2006 19 1915, the mathadhipathi died without nominating a successor. Since 1915, the descendants of Chinna Gopiya Goundar did not pay any rent to the math. Between 1915 and 1939, there was no mathadhipathi. One Basavan Chetti was in management of the math for a period of 20 years from 1915. Later a mathadhipathi was elected by disciples of the math in 1939. In 1928, the Collector of Madurai passed an order resuming the inam lands, and directing full assessment of the lands and payment of the assessment to the math for its upkeep. After resumption, the lands were transferred from the "B" Register of inam lands to the "A" Register of ryotwari lands and a joint patta was issued in the name of the plaintiff and other persons in possession of the lands. The plaintiff continued to possess the suit lands until January 1950, when the math obtained possession of the lands. On 18th February, 1954, the plaintiff instituted the suit against the math, represented by its mathadhipathi, claiming recovery of possession of the suit lands. The plaintiff claimed that he had acquired title to the lands by adverse possession and by the issue of a ryotwari patta in his favour on the resumption of R.S.A.No.285/2006 20 the inam. The trial court decreed the suit and the first appellate court reversed the decree of the trial court. On a second appeal, the High Court restored the judgment of the trial court. Then the defendants approached the Supreme Court by a special leave.
It can be seen from the facts narrated in the judgment that the plaintiff claimed title to the suit lands on the following grounds:
1. Since 1915, he and his predecessors-in-interest were in adverse possession of the lands, and on expiry of 12 years in 1927 he acquired prescriptive title to the lands under Section 28 read with Article 144 of the Indian Limitation Act, 1908;
2. By the resumption proceedings and grant of ryotwari patta, a new tenure was created in his favour and he acquired full ownership in the lands; and
3. In any event, he was in adverse possession of lands since 1928 and on the expiry of 12 years R.S.A.No.285/2006 21 in 1940 he acquired prescriptive title to the lands under Section 28 read with Article 134-B of the Indian Limitation Act, 1908.
25. In the above said factual settings, the Supreme Court considered the rival contentions and after relying on various decisions touching upon the subject, the law, as stated below, has been clearly laid down. Where on the death of the mathadhipathi in 1915 and in the absence of a legally appointed mathadhipathi, by operation of Article 144 read with Section 28 of the Limitation Act, 1908, the title of the math (lessor) to the suit lands became extinguished in 1927 and the plaintiff (lessee) acquired title to the lands by prescription. Holding so, the Supreme Court dismissed the appeal filed by the defendants.
26. It is very much clear from the above decision that a Division Bench of the Supreme Court, consisting of three learned Judges, were of the definite view that there is no bar in filing a suit for recovery of possession based on a claim of prescriptive title acquired by adverse possession R.S.A.No.285/2006 22 and limitation. When a suit for recovery of possession based on such a title could be maintained, legally there can be no bar in instituting a suit for a declaration of title and consequential reliefs. This proposition is beyond any possible or plausible challenge. That is all the more clear for the reason that a suit for recovery of possession on the basis of title is a comprehensive suit, wherein indirectly a claim for declaration of title is also raised. In other words, the relief of recovery of possession of property on the basis of title acquired by prescription, if granted, will tantamount to an implied declaration as to his entitlement to recover possession. Therefore, I am clear in my mind that if a suit for recovery of possession based on prescriptive title acquired by adverse possession and limitation can be maintained, a suit for declaration of title and consequential reliefs can also be maintained for the above said legal logic.
27. It is pertinent to note that the binding precedent in Sarangadeva's case and the view expressed in N.S.S. case were not brought to the notice of the Supreme Court R.S.A.No.285/2006 23 while the Court disposed of the case in Gurudwara Sahib's case. Certainly, this Court is bound to follow any decision rendered by the Supreme Court, as it is the law of the land by virtue of Article 141 of the Constitution of India. It is an indisputable proposition in law that when there is a conflict of views expressed by the Supreme Court in two decisions, one rendered by a Bench of lesser member of Judges and the other by a Bench of more Judges, then certainly the latter decision will be the binding precedent and it will have to be followed. The view taken by the Supreme Court in N.S.S. case (supra) may appear to be an obiter dictum. Nevertheless, it is indisputable that even an obiter dictum by the Supreme Court is binding on all other courts. Precedential principles are well settled in this country by binding pronouncements. If there is any conflict between two decisions of the apex Court, one by a larger Bench and the other by a smaller Bench, then unless the subsequent smaller Bench has considered and/or explained the principles stated in the larger Bench decision, the Courts in the country are bound to follow the decision of the larger bench as it is the R.S.A.No.285/2006 24 binding precedent. Similarly, the view expressed by the Supreme Court, in the form of an obiter dictum, is also binding on other courts. As these propositions are firmly settled by catena of decisions, I do not intent to burden this judgment by citing all the precedents on these aspects.
28. For the above said reasons, I am of the view that the decision in Sarangadeva's case, has to be followed as a precedent in the light of the definite findings therein, contrary to the law laid down in Gurudwara Sahib's case. The opinion expressed in N.S.S. case also fortifies my view. The corollary is that the decision in Gurudwara Sahib's case cannot be applied to all cases, regardless of the facts and circumstances. The law declared in Sarangadeva's case and the view expressed in N.S.S. case will rule the field.
29. A decision rendered by a learned Single Judge in Mohini v. Thimmappa [2015 (4) KLT 759] has been brought to my notice. The statement of law in paragraph 11 that a suit for declaration of title by adverse possession can only be treated as a suit for declaration of a legal character may not be a correct view in the light of the aforementioned R.S.A.No.285/2006 25 legal principles. Such a claim in many cases, may be well above a mere declaration of a legal character for the reasons mentioned above. Similarly, the observation by the learned Single Judge that the plea of adverse possession is only a shield and not a sword and that a suit for declaration of title over a property by adverse possession and limitation is not maintainable also cannot be said to be good law in the light of the principles in Sarangadeva's case and the observations in N.S.S. case (supra). Therefore, I find that a suit for declaration of title prescribed by adverse possession and limitation is maintainable for the aforementioned reasons and the point under discussion can only be held in favour of the plaintiff/1st respondent. It is sufficiently clear from the evidence in the case that the contention of the Grama panchayath that the 1st respondent constructed a pacca house and dug a well with the permission of the Grama Panchayath has not at all been established. The courts below correctly found that the 1st respondent entered the property with an open assertion of hostility and reduced the same into his possession. It fact the Grama Panchayath has acknowledged R.S.A.No.285/2006 26 his possessory right by their conduct. Further more, the Grama Panchayath has not chosen to challenge the lower appellate court's decree. All these aspects strengthen the case of the 1st respondent.
30. Second point arising for determination is regarding the impact of the law relating to Grama Panchayaths. It is the definite case of the 1st respondent that he trespassed upon a public property about 42 years before the suit and initially constructed a hut and later, a tiled house. It is his case that he dug a well and constructed a compound wall. And thereafter he planted fruit bearing trees. All these facts have been concluded by the findings of the courts below in his favour and such factual aspects cannot be re-agitated at this stage of the proceedings.
31. The Kerala Panchayath Act, 1960 (in short, 'the Act of 1960') was replaced by the Kerala Panchayath Raj Act, 1994. Section 28 of the Panchayath Raj Act reveals this fact.
32. Section 62 of the Act of 1960 is almost akin to Section 169 of the Panchayath Raj Act. The relevant provision in Section 169 of the Panchayath Raj Act reads as follows: R.S.A.No.285/2006 27
"Vesting of Public roads in Village Panchayats--(1) Notwithstanding anything contained in the Kerala Land Conservancy Act, 1957 (8 of 1958), or in any other law for the time being in force, all public roads other than those classified by the Government as National highway, State Highway or major district roads, bridges, culverts, ditches, dykes, fences on or beside the same protective devices and all adjacent land not being private property appertaining thereto, within the Panchayat area ie.--
(a) xxx xxx xxx xxx xxx xxx
xxx xxx xxx xxx xxx xxx
(b) xxx xxx xxx xxx xxx xxx
xxx xxx xxx xxx xxx xxx
(c) in the Village Panchayats -- other village roads, paths and lanes within the Village Panchayat area.
Together with all pavements, stones and other materials and other things installed therein, all drains culverts made alongside or under such roads and all works, materials and things appurtaining thereto may be deemed as transferred to and vested absolutely in the Panchayat area.
2. Subject to the provisions of this Act, all rights and liabilities of the Government in relation to the public roads and other properties, materials and things vested in the Panchayat under sub-section (1) or sub- R.S.A.No.285/2006 28 section (4) shall, from the date of such vesting, be the rights and liabilities of the Panchayat.
3. xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx
4. xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx
5. It shall not be lawful for any persons to occupy any land which is transferred to and vested in a Panchayat under sub-section (1) or sub-section (4), whether a poramboke or not, without prior permission from the Panchayat concerned.
Explanation.-- For the removal of doubts it is hereby declared that the erection of any wall, fence or building or the putting up of any overhanging structure or projection (whether on a temporary or permanent basis) on or over any land aforesaid shall be deemed to be occupation of such land."
33. Learned counsel for the appellant, relying on the definition of 'public road' in Section 2(xxxv) of the Panchayath Raj Act, contended that the land in question, being a road puramboke, will be included in the said definition. It is his contention that the legal principles enunciated in Section 27 of the Limitation Act should yield to the Panchayath Raj Act. I R.S.A.No.285/2006 29 am afraid, this submission is unacceptable for many reasons. Firstly, the principles in Section 27 and Article 65 of the Limitation Act are part of a general law dealing with the rights in immovable properties. The provisions in the Limitation Act applies not only to citizens, but also to the properties owned by the State or other statutory entities. The provisions in the Panchayath Raj Act are intended to deal with the administration and management of the properties owned by Grama Panchayaths inter alia various other things. By no stretch of legal reasoning, it can be held that the properties owned by a Grama Panchayath, functioning under the provisions of the Panchayath Raj Act, are not amenable for the general law of limitation. It is true, some special powers have been conferred on the Grama Panchayath to evict an encroacher. But that will not insulate it from the operation of the law of limitation. It is all the more important to note the scope of law in Article 112 of the Act of 1963, which says that, any suit by or on behalf of the Central Government or any State Government will be barred by the expiry of 30 years when the period of limitation would begin R.S.A.No.285/2006 30 to run under the Limitation Act against a like suit by a private person. It has been held that the Article applies to every kind of suits mentioned therein. In the light of this provision in the Limitation Act, it cannot be contended that the Grama Panchayath constituted under the Panchayath Raj Act is above the law of limitation. Hence, this contention is only to be repelled.
34. Third point raised by the learned counsel for the appellant is that nuisance of trespass, being a continuous wrong, no person can claim adverse possession over a public land as the cause of action arises on everyday during its continuation, and therefore, there is no period of limitation. To support this contention, a decision by the Supreme Court in Hari Ram v. Jyoti Prasad [2011 KHC 4075] is relied on. Facts in the case would show that the suit was filed by the plaintiff against the defendants, alleging that they caused obstruction on a public street. It is also seen that a petition was filed under Section 133 of the Code of Criminal Procedure, 1973, before the Sub Divisional Magistrate in respect of the alleged obstruction. In that background, the R.S.A.No.285/2006 31 Supreme Court held that so long any obstruction or obstacle is created against free and unhindered access and movement in the road, the wrongful act continues, thereby preventing the persons to use the public road freely and unhindered. In the factual settings, it was found that the nuisance caused thereby being a continuing source of wrong and injury, cause of action is created as long as such injury continues. The statement of law in the above case cannot be applied to the facts and circumstances of the case on hand. This is a case wherein the plaintiff has specifically pleaded and proved that he had trespassed upon a puramboke about 42 years before the suit and he constructed buildings thereon and made other improvements in the property. It has also been pleaded and proved that the Grama Panchayath, as well as other statutory authorities, recognized his possession and extended facilities for his convenient enjoyment of the house. Ext.A1 series are the building tax receipts showing that the Grama Panchayath received tax for the building belonging to the plaintiff. Both the courts below, on facts, found the contention of the plaintiff favourably that his uninterrupted possession for more R.S.A.No.285/2006 32 than 30 years was with the knowledge of the Government authorities and the officers of Grama Panchayath. This question of fact settled cannot be upset in this second appeal. Therefore, the plaintiff has established that he was holding the property with an open assertion of ownership and expressing hostility to the Grama Panchayath, who was the owner of the property at one point of time.
35. Appellant's case that he suffers nuisance on account of the blockade created by the 1st respondent in entering a nearby public road also cannot be sustained. Regarding the right of access to highways, the law is clear and settled. A person owning a property abutting a highway (a pathway over which the public has a right of passage) has a right to have access at each point where the highway touches his property. Here, the appellant has no case that such a right has been blocked by the 1st respondent. It is the evidence that the 1st respondent had trespassed upon a puramboke lying by the side of a road, to which the appellant cannot legally claim any right of access.
36. Even if the case of the appellant, that the trespass R.S.A.No.285/2006 33 amounted to a nuisance, is accepted, he cannot claim any relief in the suit filed by the 1st respondent. Obvious reasons are that the appellant should have initiated appropriate legal proceedings before expiring the time prescribed for maturing the 1st respondent's right into a prescriptive title and also relief should have been claimed against the owner of the property, namely, the Grama Panchayath. Going by the case of the appellant, the act of the 1st respondent caused obstruction in walking through the puramboke land and then reaching a public road abutting the land. In other words, he has no case that his direct access to a public road had been obstructed by the 1st respondent. It is pertinent to note that the Grama Panchayath has allowed the decree passed by the courts below to become final. It is therefore evident that the appellant's grievance cannot be legally recognized.
37. From the nature of pleadings and evidence adduced, it cannot be said that the appellant has set up a case of public nuisance, caused by the act of the 1st respondent. According to him, he suffers only a private nuisance for which he should have taken appropriate action. Notwithstanding R.S.A.No.285/2006 34 that the nuisance by trespass could be treated as a continuous wrong, the right of action ordinarily lies with the owner of land trespassed upon. A fullfledged right of the 1st respondent obtained by adverse possession and limitation cannot be stultified by a plea of nuisance, that too by a person who has not asserted any right in an appropriate proceedings. Hence this point is decided against the appellant.
38. Learned counsel for the appellant vehemently contended that the courts below ought not to have granted a decree for permanent prohibitory injunction against the Grama Panchayath. It is well settled that a suit for injunction by a trespasser against the true owner can be maintained only if he establishes that he is in settled possession of the property. (see Ramegowda (dead) by Lrs. v. M.Varadappa Naidu (dead) by Lrs. [2004 (1) SCC 769]). In this case it has been established that the plaintiff, by exhibiting a hostile animus to the owner, namely, the Grama Panchayath, has possessed the property in exclusion of the owner and all others and thereby acquired a title by prescription. Therefore, there is no legal infirmity in granting a decree for R.S.A.No.285/2006 35 prohibitory injunction at the request of the title holder against the erstwhile owner of the property. Therefore, this point also has to be decided against the appellant.
In the result, the appeal is found to be devoid of any merit and hence, I hereby dismiss the same. There is no order as to costs.
Sd/-
A. HARIPRASAD
JV JUDGE