Karnataka High Court
Chikkabasavaiah vs Smt Bhagyalakshmi on 13 June, 2012
1 RSA 953/10
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 13TH DAY OF JUNE, 2012
BEFORE:
THE HON'BLE MR. JUSTICE A.S. PACHHAPURE
REGULAR SECOND APPEAL No.953 OF 2010
BETWEEN:
Chikkabasavaiah,
S/o. Late Madaiah,
Aged about 65 years,
R/at Holehundi village,
Hampapura Hobli,
H.D. Kote Taluk-571 114.
Mysore District. ... APPELLANT/S
[By Sri. P.Mahesha & Sri. Krishna B.J., Advs.]
AND:
1. Bhagyalakshmi,
W/o. Kapanaiah,
Aged about 56 years,
2. Mahesh,
S/o. Bhagyalakshmi,
Aged about 34 years,
Both are residing at:
Door No.40, Model House,
3rd Cross, Ashokpuram,
Mysore-570 008. ... RESPONDENT/S
[By Sri. S. Ramamurthy, Adv. for R1.
R2 is served.]
***
2 RSA 953/10
This RSA is filed u/Section 100 of CPC., against
the Judgment and Decree dated:28.01.2010, passed in R.A.
No.57/2009, on the file of the Presiding Officer, Fast
Track Court, Hunsur, dismissing the appeal and confirming
Judgment and Decree dated 08.04.2003, passed in O.S.
No.60/1994 on the file of the Civil Judge (Jr.Dn.) and
JMFC, H.D. Kote.
This RSA coming on for Final Hearing, this day the
Court delivered the following:
JUDGMENT
The appellant has challenged the Judgment and Order of the trial Court, dismissing the suit for declaration and injunction, which is confirmed in the appeal by the first appellate Court.
2. The facts relevant for the purpose of this appeal are as under:
The parties are referred to as they were referred in the original proceedings, for the sake of convenience.
The appellant herein is the plaintiff, whereas the respondents are the defendants in the suit before the trial Court. The appellant/plaintiff made a claim for declaration of his title to the suit property, which is the land bearing Sy. No.23/1, measuring 1 acre 6 guntas of Holehundi village, morefully described in the schedule 3 RSA 953/10 to the plaint and also for injunction restraining the defendants from causing obstruction of the peaceful possession and enjoyment of the suit property. The plaintiff claim that he has been in possession of the suit property since the year 1979 and started to cultivate the suit land without permission of the 1st defendant and has been in continuous, uninterrupted and peaceful possession of the suit property to the knowledge of the defendants all along since from the year 1979 till the date of the suit.
He filed a declaration to the Land Tribunal to declare him as tenant of the suit property and he states that at the instance of the 1st defendant, he did not pursue matter. Therefore, his application filed before the Land Tribunal was rejected. His name appears in the revenue records since from the year 1979 till the date of the suit. In the year 1994, there was an obstruction to his possession by the defendants and therefore, he claimed the aforesaid reliefs.
The 1st defendant filed the written statement admitting the plaintiff's possession of the suit property stating that she permitted the plaintiff to cultivate the 4 RSA 953/10 land till the year 1993. It is further claim of the 1st defendant that subsequent to rejection of the declaration filed by the plaintiff for grant of occupancy rights, on the humanitarian consideration she asked to cultivate the land on oral gutta. Denying the averment that the plaintiff has acquired a title by adverse possession, she sought dismissal of the suit.
The trial Court framed the following issues:
1. Whether the plaintiff proves that he is the absolute owner of the suit schedule property?
2. Whether the plaintiff further proves that he has perfected his title by adverse possession over the suit schedule property?
3. Whether the plaintiff proves that he is in possession of the suit schedule property?
4. What relief the parties are entitled to?
5. What Order or Decree?5 RSA 953/10
The plaintiff examined himself as P.W.1 and got marked the documents Exs.P1 to 17. There was no cross- examination of the plaintiff by the defendants or their counsel. The trial Court after hearing learned counsel for the parties and on appreciation of the material on record, dismissed the suit.
The plaintiff preferred an appeal, which was also dismissed on merits. Aggrieved by the concurrent findings, the plaintiff has approached this Court in the second appeal.
3. The following substantial question of law is raised vide Order dated 15.11.2010:
Whether the judgment relied upon by the lower appellate Court in the case of Basawanth Rao since dead by LRs. Vs. Raj Kumar [ILR 2009 Kar. 1099] could be applied to the facts of the case in the face of the judgment of the Supreme Court in Puran Singh and others Vs. The State of Punjab [AIR 1975 SC 1674] which has been followed by this Court in Sathyam @ Ramaiah and Others Vs. Karnataka Milk Federation Co- operative Limited [ILR 1999 Kar. 1451] in similar circumstances?6 RSA 953/10
4. I have heard learned counsel for the parties.
5. It is the contention of the learned counsel for the appellant that the plaintiff has proved the possession over the suit property since from the year 1979 till the date of institution of the suit and though the trial Court declined to grant the relief of declaration, could have granted a decree for injunction restraining the defendants from causing obstruction to the peaceful possession of the plaintiff over the suit property. He further contends that the plaintiff has been in settled possession of the suit property all along from the year 1979 till the date of the suit and the plaintiff cannot be dispossessed except in due course of law.
Per contra, learned counsel for the 1st respondent submits that when the main relief of declaration has been refused, the Court has no authority to grant consequential relief and a person who is in unauthorized possession cannot be granted a decree for possession to protect the unlawful possession of the suit property by the plaintiff. Hence, he submits that the Courts below were justified in dismissing the suit of the plaintiff 7 RSA 953/10 and that the substantial question of law is to be answered in his favour and therefore sought for dismissal of the appeal.
6. The defendants have not entered the witness- box. The plaintiff is examined as P.W.1 and his witness as P.Ws.2 and 3 respectively. There was no cross- examination either by the 1st defendant or her counsel. It is in the evidence of P.Ws.1 to 3 that the suit property is in possession of the plaintiff all along since from the year 1979 till the date of the suit. The plaintiff has also produced the record of rights-Exs.P1 to 7, revenue receipts-Exs.P8 to 13 and Exs.P15 to 17 and all the documents produced by the plaintiff supports his version so far as possession of the suit property is concerned. The plaintiff's request for the relief of declaration was rejected by the trial Court solely because the plaintiff has once filed Form No.VII to the Land Tribunal and it came to be rejected. So, when once he claimed the tenancy rights over the suit property against the 1st defendant, the Courts below declined to grant the relief of declaration of title on the basis of adverse possession. But, any how, so far as the possession is concerned, there is concurrent finding of 8 RSA 953/10 the Courts below and even defendant No.1 in her written statement in para 1 states that the plaintiff's cultivation is very much in her knowledge and the defendant being a lady had permitted the plaintiff to cultivate the land and in accordance with gutta the plaintiff till the year 1993 had been approaching the defendant and rendering the portion of the produce that was being cultivated by the plaintiff. Furthermore, the plaintiff in para 3 of the plaint alleges that he is in possession of the suit property from the year 1979 and he has been in continuous and uninterrupted possession to the knowledge of the defendants till the date of the suit. This averment made in the plaint had not been denied in the written statement.
7. In the context of the finding and the material placed on record referred to supra, it could be said that the plaintiff had proved his possession and it is only because the plaintiff had filed a declaration for grant of occupancy rights, the relief of declaration has not been granted. Otherwise, so far as possession is concerned, he is in continuous possession and there is no material on record to prove that there was any obstruction at any time till the cause of action made out 9 RSA 953/10 by the plaintiff. This possession of the plaintiff which is continuous, peaceful possession and unobstructed could be said as settled possession and therefore, this Court has to consider whether the settled possession of the plaintiff is to be protected by granting a decree for injunction.
8. On this aspect of the matter, learned counsel for the appellant has relied upon the decision of the apex Court reported in ILR 2006 Kar. 1047 [Rame Gowda (D) by LRs. Vs. M.Varadappa Naidu (D) by Lrs. and another]; wherein, the Apex Court referring to the question relating to the settled possession has held as under:
"It is clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if be can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse 10 RSA 953/10 to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner."11 RSA 953/10
So also, this Court in a decision reported in ILR 1999 Kar. 1451 [Sathyam @ Ramaiah & Ors. Vs. Karnataka Milk Federation Co-operative Ltd.] has held:
"Relying on PURAN SINGH & OTHERS vs. STATE OF PUNJAB AIR 1975 SUPREME COURT 1674 the High Court held that where a Trespasser is in Settled Possession of the Land, is entitled to resist or defend his possession even as against the rightful owner who tries to dispossess him."
As could be seen from the decisions and the principles laid down by this Court and also the Apex Court, though a person is in unauthorized possession or is in possession as a trespasser and the said possession is a settled possession, is entitled to protection of his possession by way of injunction and such person could be dispossessed only in due course of law and not otherwise.
9. On the aforesaid principle, learned counsel for the respondents has placed reliance on the decision of this Court reported in 1972(1) Mys.L.J. 633 [Siddanna Vs. Kamalabai & another], wherein this Court held: 12 RSA 953/10
"That under the provisions of the
Hyderabad Tenancy and Agricultural Lands
Act, 1950, there was a general prohibition for creation of leases after three years from the commencement of the Act except as provided in S.7 of the Act. The plaintiff had not obtained the permission of the Collector as provided under S.7(2) of the Act. The lease fell under S.6 and therefore it would be a void one. Hence his possession was not lawful and he was not entitled to a decree for perpetual injunction."
In the decision reported in ILR 1988 Kar. 215 [Raghavendra Rao Vs. Dodda Ramalingappa], this Court held:
"A trespasser is not entitled to an Order of temporary injunction as against a true owner. A person having possessory title can maintain a suit for possession against another person who has no better title than himself. Such a possessory title will not be available as against a true owner of the property.
The principle is that possession is good against all but the true owner.
Therefore, as the plaintiff has been found 13 RSA 953/10 to be in unlawful possession of the disputed portion of the land which is of the ownership of defendants, the lower appellate Court has rightly refused to grant the decree and dismissed the appeal."
Further, the High Court of Delhi had an occasion to consider this aspect while considering the grant of temporary injunction under the provision of Section 39 Rule 1 CPC. In a decision reported in AIR 1996 Delhi 351 [D.T.T.D.C. Vs. M/s. D.R. Mehara and Sons], the Delhi High Court held that a licencee is not entitled to injunction against the owner, notwithstanding the provisions of Section 6 of the Specific Relief Act.
10. From the decisions referred to supra, it is made clear that the Courts declined to grant protection of a possession of a trespasser, for a long period when the principle of settled possession was not taken into consideration in those days. The principle of settled possession is developed since from the year 1994-95 by the Courts and it was for the first time considered by the Apex Court in the decision referred to supra. Settled possession is less than the adverse possession and a person cannot take the law in his hands to 14 RSA 953/10 dispossess, even a trespasser who is in settled possession of the property and the only way left open to him is to approach the Court by instituting a suit for possession unless the suit property is handed over. So, in the context of the decision referred to supra by this Court and also the Apex Court, in the recent times, the principle of settled possession is accepted by the Courts though the possession is unauthorized or is a possession of trespasser. The principle of settled possession was emerged on the basis of a decision reported in AIR 1975 Supreme Court 1674 [Puran Singh and Ors. Vs. The State of Punjab], the Apex Court took into consideration the nature of possession which may entitle a trespasser to exercise the right of private defence of property and person should contain the following attributes:
"(i) the trespasser must be in actual physical possession of the property over a sufficiently long period;
(ii) the possession must be to the knowledge either express or implied of the owner or without any attempt at concealment and which contains an element of animus possidendi. The nature of possession of the trespasser would however be a matter to 15 RSA 953/10 be decided on facts and circumstances of each case;
(iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced in by the true owner; and
(iv) one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession, in which case the trespasser will have a right of private defence and the true owner will have no right of private defence."
So, it is on the basis of this decision, the Apex Court in the decision reported in ILR 2006 Kar. 1047 [Rame Gowda (D) by Lrs. Vs. M.Varadappa Naidu (D) by Lrs. and Another] laid-down the principle. Therefore, this Court is of the opinion that the plaintiff has proved the settled possession and he is entitled to the protection if his possession when it is obstructed or threatened. 16 RSA 953/10 The plaintiff has made clear in the plaint and also in the evidence that there was an obstruction to his peaceful possession and therefore has sought for the relief of injunction as well.
11. At this juncture, it is necessary to consider the second contention raised by learned counsel as regards the grant of injunction when the relief of declaration is declined by the Courts. This Court had an occasion to consider the provisions of Sections 34, 35, 36 and 37 of the Specific Reliefs Act. In a decision reported in 2007(5) Kar.L.J. 73 [Shivappa Shetty (dead) by L.Rs. and Ors. Vs. B.A.Srikanta Shetty (dead) by L.Rs. and Ors.]. The facts in the decision reveal that the plaintiff in the suit has claimed a relief of declaration by virtue of an adverse possession and also injunction and the suit came to be dismissed. The Appellate Court allowed the appeal and granted a decree of injunction and in the appeal before this Court it is held:
"The plaint does not disclose any ingredient relating to adverse possession. On the contrary, the plaint averments amply disclose that the plaintiff continued in possession of the properties after the 17 RSA 953/10 death of his wife as her sole legal representative since 1951. It is not in dispute that the properties were given possession of by Areshetty to the plaintiff's wife for her and her husband's maintenance. Thus, the entire possession of the plaintiff and his wife was permissive in nature and it continued so even after the death of plaintiff's wife. Nowhere in the plaint it is mentioned as to when the possession of the plaintiff became adverse to the interest of the defendants. The averments relating to hostile animus are totally absent in the pleadings. Even in the evidence of P.W.1, except stating in one sentence that he is in adverse possession of the property, the plaintiff has not uttered anything to show that he has and had hostile animus against defendants. It is well-settled that the concept of adverse possession contemplates a hostile possession i.e., a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. Also a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title 18 RSA 953/10 to the property claimed. Permissive possession does not become hostile till there is an assertion of an adverse possession to the knowledge of the owner. The permissive character of the possession can be inferred from the attending circumstances even without direct evidence. If possession is found to be permissive at the inception, the possessor cannot prescribe or sustain title or any claim adversely to the grantor of the possession. [para 13]"
Further more, the High Court of Madras in a decision reported in CDJ 2011 MHC 2014 [G.Murugan Vs. G.Thangaraj], in which the plaintiff has filed the suit for declaration, injunction and alternatively for partition. The suit came to be dismissed. The appellate Court confirmed the decree of dismissal and when the plaintiff approached the High Court in second appeal, the decree was modified by granting the relief of permanent injunction in favour of the plaintiff.
12. On the basis of the principles laid-down in the decisions referred to supra, if the facts on hand are taken into consideration, admittedly, the plaintiff is not entitled to the declaration as he has not proved his 19 RSA 953/10 title by adverse possession to grant a decree to declare him as a owner. But, when the main relief is to be refused, there appears to be no obstacle either under the provisions of the Specific Relief Act or under any law to protect the possession of the plaintiff by granting a lesser relief, which has been sought for by the plaintiff. Though the learned counsel for the 1st respondent relied upon the decision reported in ILR 2009 Kar. 1099 [Basawanthrao since deceased by his LRs. Vs. Rajkumar], wherein the suit was filed for a declaration and injunction and the plaintiff had claimed title to the suit property on the basis of the adverse possession. The trial Court decreed the suit and in the appeal before this court it was held that the plaintiff has not proved his title by adverse possession and therefore, the appeal was allowed and the Judgment and Decree of the trial Court was set aside by dismissing the suit both for the relief of declaration and injunction. It is true that this Court has not granted the alternate relief of injunction. But, as could be seen from the contents, it is very much clear that no question was raised before the Court as to whether a lesser relief could be granted when the main relief is refused. Even there was no claim by 20 RSA 953/10 the respondent before the Court to protect his possession by granting injunction at least when the decree was set aside by this Court. So, when no such question was raised and this Court has not considered that aspect of the matter, in the absence of any principle laid-down by the Court in the aforesaid decision, it cannot be said that the claim of the appellant herein for the lesser relief could be declined.
13. Now, to advert to the claim made by the appellant herein as the appellant has proved the possession over the suit property since from the year 1979 till the date of institution of the suit, though the relief of declaration has been declined by the Courts below, this Court has to grant the relief of injunction to protect his possession and he cannot be dispossessed by the defendants by taking the law into their hands. The only way left open for the respondents is to approach the Court for the relief of possession. Though it is the submission of the learned counsel for the 1st respondent that the 1st respondent is a old lady and is fighting the litigation for the last more than 10 years, that cannot be a ground for her to dispossess the plaintiff by unlawful means. When the law provides a procedure to 21 RSA 953/10 take possession, the respondents/defendants have to adopt the said procedure and claim the relief to take possession in due course of law. Hence, the substantial question of law raised is held in affirmative holding that a person in settled possession of the property is entitled to protect his possession except his dispossession in due course of law. The respondents/defendants are at liberty to approach the Court for a relief of possession.
In the result, the appeal is partly allowed, confirming the decree of the trial Court so far as refusal of the decree for declaration and a decree for permanent injunction is granted as prayed for by the appellant in the suit. Draw a decree accordingly.
Sd/-
JUDGE.
Ksm*