Karnataka High Court
The State Of Karnataka And Ors vs Amresh Kumar S/O Pandharinath Doijodi on 13 December, 2013
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IN THE HIGH COURT OF KARNATAKA
GULBARGA BENCH
DATED THIS THE 13TH DAY OF DECEMBER 2013
BEFORE
THE HON'BLE MR. JUSTICE K.N.KESHAVANARAYANA
R.S.A. No.7032/2013
BETWEEN:
1. THE STATE OF KARNATAKA
THROUGH ITS CHIEF SECRETARY TO GOVT.,
BANGALORE-1 - 560001
2. THE STATE OF KARNATAKA
THROUGH THE DEPUTY COMMISSIONER
BIDAR-585401
3. THE INSPECTOR GENERAL OF PRISONS
GOVERNMENT OF KARNATAKA
BANGALORE-560009
4. THE SUPERINTENDENT OF JAIL
BIDAR DIST., BIDAR-585401
5. THE JOINT DIRECTOR OF LAND RECORDS
GULBARGA-585101
6. THE ASST. DIRECTOR OF LAND RECORDS
BIDAR-585401
...APPELLANTS
(BY SRI S.K.BABSHETTY, GOVT. ADV.)
2
AND:
AMRESH KUMAR
S/O PANDHARINATH DOIJODI
AGED ABOUT 41 YEARS
OCC: AGRICULTURE
R/O RANGREZ GALLI, BIDAR-585401
...RESPONDENT
(BY SRI RATNAKAR &
KHADME UMESH, ADVOCATES)
*****
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 20.04.2012
PASSED IN R.A.No.16/2008 ON THE FILE OF THE ADDL. DIST.
AND SESSIONS JUDGE AT BIDAR, WHEREIN, THE APPEAL WAS
ALLOWED AND THE JUDGMENT AND DECREE DATED
29.09.2007 PASSED IN O.S.No.15/1998 ON THE FILE OF THE
ADDL. CIVIL JUDGE (SR.DN) AT BIDAR WAS SET ASIDE.
THIS M.F.A COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is by the defendants 1 to 6 in O.S.No.15/1998 on the file of the Additional Civil Judge (Sr.Dn.), Bidar, and is directed against the judgment and decree dated 20.04.2012 passed by the Additional District Judge at Bidar, in R.A.No.16/2008, allowing the said appeal of respondent-plaintiff and decreeing the suit filed by him in O.S.No.15/1998 on the file of the 3 Additional Civil Judge (Sr.Dn), Bidar, by setting aside the judgment and decree dated 29.09.2007 passed in the said suit dismissing the suit of the respondent- plaintiff for declaration of title and possession.
2. The subject matter of the suit is land to the extent of 29 guntas in Sy.No.48/A-3 situated in Gulluar Haveli village now in Bidar city.
3. For the sake of convenience, parties herein will be referred with reference to their ranking in the Trial Court.
4. Plaintiff filed the suit for the relief of declaration of his title and for possession of the suit schedule property interalia contending that the land bearing Sy.No.48 totally measuring 22acres 3guntas was Madad-Mash- Inam land and one Shamshoddin Quadri was Inamdar. That after the abolition of the Inam, the entire extent of land in the said survey number was regranted to 4 Shamshoddin Quadri as per the order dated 02.11.1963 passed by the then Special Deputy Commissioner for inam under the provisions of Hyderabad Inam Abolition Act. That subsequently the said land was divided into two portions as Hissa A and B. Wherein Hissa-A consists 18 acres 4 guntas standing in the name of Shamshoddin Quadri and Hissa-B consists 3 acres 39 guntas came to be shown in the name of jail garden. Subsequently, under a registered sale deed 11.10.1966 Shamshoddin Quadri sold Sy.No.48/A measuring 18 acres 4 guntas in favor of Smt Jharnabai W/o late Ambaji Doijode, the paternal grandmother of the plaintiff. That pursuant to the same, subsequently mutation was also effected in the name of grandmother of the plaintiff in respect of the said extent of land. That the possession of the entire extent of land 18acres 4 guntas was delivered to the grandmother of the plaintiff on the date of the sale deed and since then she remained in possession of the same. That subsequently, 5 the said Jharnabai divided the land owned by her amongst her three sons by name Pandharinath (father of the plaintiff), Dayanand and Ananthram where under each sons got 6 acres, while Ananthram got 4 guntas more. That Pandharinath, father of the plaintiff got his share of 6 acres of land towards southern side of Sy.No.48/A, and thereafter mutation was sanctioned on 22.02.1973 by the revenue authorities with the consent of the brothers. That after the death of plaintiff's father in the year 1977, the plaintiff succeeded to the estate of his father, which include suit schedule property and got his name mutated in the revenue records. That in the year 1983 plaintiff applied to 2nd defendant for conversion of land to non-agricultural purpose, however, the file was closed for non production of some documents and in the year 1987 after collecting all the documents the plaintiff again applied for conversion of the land to non-agricultural purpose before the Deputy Commissioner, Bidar, in file No.CON/CR-76/87-88 and 6 the Deputy Commissioner after verifying the documents and ascertaining about title and possession of the land by the plaintiff granted permission sought, on 08.04.1998. That however during the course of demarcation, it was found that the land in plaintiff's possession measures 05 acres 11 guntas in Sy.No.48/A-3, while the Jail Authorities are in possession of 4 acres 28 guntas. That at that time, the plaintiff came to know that the Jail Authorities have encroached upon to an area of 29 guntas and are in illegal possession of said extent of land. That immediately he sought for survey of the land before the Survey Authorities and after survey, it was found that the jail authorities have encroached plaintiff's property to an extent of 29 guntas in Sy.No.48/A-3. That in spite of repeated request for redelivery of the possession of the encroached area, the authorities have not taken any necessary action. Therefore the plaintiff filed the suit.
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5. The defendants 2, 4 and 6 filed joint written statement denying the case of the plaintiff, that the land was an Inam land and that Shamshoddin Quadri was the Inamdar and that Shamshoddin Quadri was regranted the land. They denied the factum of the sale by Shamshoddin Quadri in favour of the grandmother of the plaintiff. They also denied that the plaintiff is in possession of any portion of the Sy.No.48. They asserted that the State Government is the owner of land to an extent of 4acres 28 guntas and that they are in possession of the same for a long period and that their title to that extent of land has been declared in O.S.No.292/1997. Therefore they sought for dismissal of the suit.
6. On the basis of aforesaid pleadings of the parties, the trial Court framed the following issues:
1. Whether plaintiff proves that, he is the owner of land to the extent of 29 guntas 8 (Suit land) towards the eastern side of Gullar Haveli Bidar in land Sy.No.48/A-3 of Gullar Haveli Bidar as per the boundaries shown in the plaint?
2. Whether the defendant No.2, 4 and 6 proves that defendant No.1 is the owner and possessor of land sy.no.48/B measuring 4 acres 28 guntas of Gullar Haveli Bidar?
3. Whether the plaintiff further proves that defendant No.4 is in illegal possession of the suit land?
4. Whether the plaintiff is entitled for the recovery of possession of the suit land from defendants?
5. Whether the plaintiff is entitled for the mesne profit?
6. Whether the plaintiff is entitled for the correction of ROR of the suit land?
7. What order or decree?9
7. In support of his case, the plaintiff examined himself as PW.1 and relied on documentary evidence Exs.P.1 to P.15. On the other hand, Superintendent of District Prison was examined as DW.1, however, the defendants did not produce any documentary evidence. The trial Court on appreciation of oral and documentary evidence, by judgment dated 29.09.2007, though answered issue No.1 in the affirmative holding that the plaintiff has proved that he is the owner of the suit land measuring 29 guntas in Sy.No.48/A-3 and though answered issue No.2 partly in the affirmative holding that the defendants have proved that they are owners of 3acres 39 guntas and not 4 acres 28 guntas and that defendant No.4 is an illegal possession of the suit schedule property measuring 29 guntas by answering issue No.3 in the affirmative, dismissed the suit by answering issue No.4 in the negative holding that the suit is barred by law of limitation, on the ground that the plaintiff ought to have filed the suit for possession 10 within 12 years from the date of sale deed in favour of grandmother of the plaintiff.
8. Aggrieved by the said judgment and decree, the plaintiff filed appeal before the lower Appellate Court. The Appellate Court after hearing both sides during the course of arguments, framed the following points for consideration:
(i) Whether the plaintiff proves his
ownership and title over the suit
property?
(ii) Whether the plaintiff further proves that
4th defendant is in illegal possession of the suit land?
(iii) Whether the suit is barred by limitation?
(iv) Whether the plaintiff is entitled for declaration and recovery of possession?
(v) Whether the judgment and decree passed by the Trial Court is erroneous, illegal and liable to be interfered with?
(vi) What order?
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9. The Appellate Court answered points No.1, 2, 4 and 5 in affirmative and point No.3 in negative holding that plaintiff has proved his ownership and title over the suit schedule property and that the 4th defendant is in illegal possession of the suit land, therefore, plaintiff is entitled for declaration of title and recovery of possession and that the suit is not barred by limitation. In that view of the matter, the lower Appellate Court allowed the appeal by setting aside the judgment and decree passed by the trial Court and by decreeing the suit, declared the title of the plaintiff over the suit schedule property and directed 4th defendant namely Superintendent of Prison to hand over the vacant possession of the suit land to the plaintiff within three months from the date of the judgment.
10. Aggrieved by the said judgment and decree the defendants are in appeal before this Court. Having heard the learned Government Pleader Sri 12 Sharanabasappa K. Babshetty and Sri Ratnakar, learned counsel appearing for the respondent-plaintiff and on perusal of the judgment of the Courts below, in my considered opinion, the appeal does not involve any question of law, much less substantial question of law warranting consideration by this Court.
11. The learned Government Pleader during the course of arguments vehemently contended that having regard to the fact that the plaintiff has not placed any acceptable evidence to show that Shamshoddin Quadri, the vendor of grandmother of the plaintiff was in possession on the suit land on the date of the alleged sale deed and therefore could not have delivered the possession of the suit land to purchaser, as such the lower Appellate Court is not justified in reversing the judgment of the trial Court on the specific finding that the suit filed by the plaintiff for possession is barred by time.
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12. Though defendants before the trial Court had denied the entire case of the plaintiff, during the course of the trial, they did not seriously dispute as to the fact that the land bearing Sy.No.48 was a Inam land and that the said land was regranted in favour of Shamshoddin Quadri, Inamdar in the year 1963. In fact the trial Court during the course of the judgment relying on Ex.P15, certified copy of the order dated 02.01.1963 passed by the Special Deputy Commissioner for Inam Abolition Gulbarga Division, Gulbarga, has held that land bearing Sy.No.48 measuring 22 acres 3 guntas being an Inam land was regranted in favour of Shamshoddin Quadri, Inamdar. The lower Appellate Court has concurred with those findings of the trial Court. The defendants have not placed any evidence to rebut this positive evidence placed by the plaintiff with regard to the regrant of the land bearing Sy.No.48 in favour of Shamshoddin Quadri.
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13. Plaintiff by producing certified copy of the registered sale deed dated 11.10.1965, has proved that an extent of 18 acres 4 guntas in Sy.No.48 was sold in favour of Jharnabai, grandmother of the plaintiff. The recitals of the sale deed marked as Ex.P14 in Urdu and Ex.P14-A its English translation indicates that the possession of the land shown was delivered to the purchaser of the land on the date of sale. The revenue documents produced by the plaintiff marked as Ex.P3 the mutation registered extract for the year 1965-66 would indicate that on the basis of sale deed, the name of purchaser of 18acres and 4 guntas came to be mutated as owner and Khatedar of the said extent. Ex.P4 the mutation register extract by the year 1972-73 issued by the office of the Tahsildar, Bidar, would go to show that the land to an extent of 18 acres 4 guntas owned by Jharnabai was divided amongst her three sons as stated in the plaint and names of each of three 15 sons of Jharnabai were mutated in the revenue records in respect of the extent, which fall to the share of each one of them. The RTC extracts marked as per Ex.P6 for the year 1981-82 to1991-92 also establish that the plaintiff's name has been shown in column No.9 as well as column No.12(2) to an extent of 6 acres in Sy.No.48/A. In Ex.P9 RTC extract in respect of Sy.No.48/A for the year 1963-64 to 1966-67 and in Ex.P10 RTC extract for the year 1993-94 to 1996-97, the name of sarkari jail is found both in column No.9 and 12(2) to an extent of 3 acres 39 guntas. From these documents it is clear that the plaintiff has proved his title to the extent of 6 acres in Sy.No.48/A. Further the documents produced which are correspondence originating from the office of the Assistant Director of Land Records and the Deputy Commissioner, marked as Ex.P1, P2, P11 and P12 would go to show that somewhere in 1987-88 the land was surveyed at the request of plaintiff and surveyor found that the jail 16 authorities are in possession of excess area of 29 guntas in Sy.No.48/A owned by the plaintiffs.
14. Per contra the defendants have not placed any documentary evidence to show as to how they acquired title to an extent of 4 acres 28 guntas in Sy.No.48/A. Nevertheless, the revenue records would indicate that Jail Authorities are in possession of land to an extent of 3 acres 39 guntas from the year 1963-64. It was only in the year 1988, the Jail Authorities were found in possession of excess area to an extent of 39 guntas in Sy.No.48/A owned by the plaintiff. Therefore, in the light of these overwhelming evidence, both the Courts below are justified in holding that the plaintiff has proved his title over the suit schedule property and defendants have failed to prove that they are the owners of the suit schedule property. The Courts below have rightly held that the defendants are in illegal possession of 29 guntas of land described in the suit schedule. The 17 question would be whether the plaintiff is entitled for relief of possession. As noticed supra, the trial Court dismissed the suit on the ground that suit is barred by limitation, since suit is filed beyond 12 years from the date of sale in favour of the grandmother of the plaintiff and the lower Appellate Court has reversed it.
15. As could be seen from the averments made in written statement, defendants have not pleaded adverse possession. It is not the case of the defendants that they have perfected their title to suit schedule property by adverse possession. They have not pleaded the ingredients of adverse possession. On the other hand the defendants specifically contended that they are the owners of the land to an extent of 4 acres 28 guntas and are in possession of the same as absolute owners. Both Courts below, as noticed supra, have concurrently held that the defendants have failed to prove that they are owners of land to an extent of 4 acres 28 guntas. The 18 said finding is in inconsonance with the overwhelming documentary evidence produced by the plaintiff. On the other hand, the defendants have not placed any evidence to prove their ownership of the land bearing Sy.No.48A. It is well settled law that merely because a person remains in possession for a long period, that itself would not become adverse possession. Under Article 65 of the Limitation Act, 1963, a suit for possession of immovable property or interest therein can be filed within a period of 12 years from the date when possession of the defendant becomes adverse to the interest of plaintiff. In the light of language of Article 65 of the Limitation Act, it is clear that the suit for possession based on title can be dismissed on the ground of limitation only if the defendant's possession is adverse to the interest of the plaintiff. For that purpose defendants' will have to plead all the ingredients of adverse possession and prove the same by adducing acceptable evidence.
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16. In the case on hand, as noticed supra, the defendants have not pleaded adverse possession nor have tried to prove that their possession was adverse to the interest of the plaintiff. Therefore, the suit filed by the plaintiff for relief of possession could not have been dismissed by the trial Court on the ground that the suit is barred by limitation. It is well recognized position in law that a title holder of an immovable property is entitled to remain in possession of the same. Once plaintiff approaching the Court seeking relief of possession based on title establishes his title over the property, he would be entitled to get back the possession of the property from the defendant, unless the defendant establishes that the right of plaintiff to get possession of the property has been extinguished on account of his acquiring the title to the property by adverse possession. In the case on hand, since the defendant has not set up the plea of adverse possession, 20 the lower Appellate Court, in my considered, opinion is justified in holding that the relief of possession is not barred by limitation as held by the trial Court. The finding recorded by the trial Court on this aspect of the matter was contrary to the very provision of Article 65 of the Limitation Act, and also opposed to the settled principles of law governing the suit for possession based on title. In this view of the matter, the judgment of the lower Appellate Court reversing the judgment and decree of the trial Court dismissing the suit of the plaintiff and granting decree for possession of the suit schedule property, does not suffer from any perversity or illegality. Therefore, the appeal, in my opinion, does not involve any question of law. The learned counsel for the plaintiff submitted that the decree granted by the lower Appellate Court has been executed and the plaintiff has taken possession of the suit schedule property through process of the court. The learned Government Pleader is not in a position to dispute this 21 submission. This indicates that this appeal has become infructous. Therefore, the appeal has no merit. Hence, the appeal is dismissed.
Consequently, the applications I.A.1/2013 filed for condonation of delay and I.A.2/13 filed for stay does not survive for consideration and accordingly they are dismissed.
SD/-
JUDGE sdu