Bangalore District Court
K.V.Srinath vs State Of Karnataka on 21 November, 2015
IN THE COURT OF THE LII ADDL.CITY CIVIL & SESSIONS JUDGE: AT
BANGALORE CITY (CCH-53)
Dated this the 21st day of November, 2015
PRESENT: Smt.Yadav Vanamala Anandrao, B.Com., LL.B (Spl.,)
LII Addl. City Civil & Sessions Judge,
Bengaluru City.
O.S.No.7996/2009
PLAINTIFF : K.V.Srinath,
S/o K.Vasudeva Rao,
Aged about 57 years,
R/at Dasarahalli, Bangalore.
(By Sri N.Shankarnarayana Bhat,
Advocate)
-Vs-
DEFENDANTS : 1. State of Karnataka,
Represented by Chief Secretary,
Vidhana Soudha, Bangalore.
2. The Tahsildar,
Bangalore North Taluk,
Bangalore.
3. The Commissioner,
Bangalore Mahanagara Palike,
Corporation Building,
J.C.Road, Bangalore.
4. The Deputy Conservator of Forests,
Bangalore Urban Division,
I Floor, Aranya Bhavana,
Malleshwaram, Bangalore - 03.
(By Sri D.G.P., Advocate, for D.1,D.2 & D.4,
Sri P.V. Advocate, for D.3)
Date of institution of the suit: 14.12.2009
Nature of the suit: Declaration &
Permanent Injunction
Date of commencement of 4.2.2014
2 O.S.No.7996/2009
recording of evidence:
Date on which Judgment was 21.11.2015
pronounced:
Duration:
Days Months Years
7 11 5
JUDGMENT
This suit is filed by the plaintiff against the defendants for declaration that he is the absolute owner of the suit schedule property having perfected his right, title over the same by adverse possession and for permanent injunction against defendants, their men, officials, agents, servants or any other person on their behalf be restrained from interfering and disturbing with the peaceful possession and enjoyment of the suit schedule property and such other reliefs with costs.
(Note:- This case has been transferred from the Court of IX Addl. City Civil & Sessions Judge, Bangalore City, to this court as per Notification dated:01.12.2014.)
2. Brief facts of the case are that the suit schedule property, a site bearing No.104, described in the plaint schedule is now coming within the jurisdiction of B.B.M.P. and that originally it was in the possession of one Smt.Saraswathamma, as she was entered into possession on 15.5.1974 and since then she was enjoying it openly to the knowledge of public at large and the defendants and adverse 3 O.S.No.7996/2009 to their interest without any disturbance. The erstwhile owner Smt.Ramalakshmi Prasad of Sy.No.16/2, 16/3A, 21, 22 and 23 of Dasarahally village, converted the said lands into non-agricultural use in the year 1963, totally measuring 4 acres and formed residential layout and sold to various persons. Sy.No.24, which is classified as government land is abutting the aforesaid survey numbers and layout formed by erstwhile owner. She gave GPA to manage and sell the sites to one S.C.Venkatesh. S.C.Venkaresh negotiated with Smt.Saraswathamma and agreed to sell the site Nos.104, totally measuring 40'x60' and GPA holder of Smt.Ramalakshmi Prasad executed sale deed on 15.5.1974 mentioning the location of the sites and it is identifiable property. The plaintiff has purchased the schedule property from Smt.Saraswathamma and entered into possession. The plaintiff after obtaining necessary licence and approval of the plan, constructed residential house in the year 1979 by by spending life's earnings and after construction, he is in possession and occupation of the said house. The plaintiff is paying property taxes for last nearly 35 years, which was accepted by B.B.M.P. also. Thus the plaintiff and his predecessor-in-tile was/is enjoying since 1974. The possession of the schedule property by these owners was not only open and exclusive, but also with the full knowledge of defendants 4 O.S.No.7996/2009 ever since 15.5.1974. This being so, the right if any, being now claimed by the defendants has become extinguished under Section 27 of the Limitation Act. The 2nd defendant without there being any cause or justification, had issued a show cause notice to the plaintiff dated 13.10.2009 alleging that the plaintiff has encroached an extent of 21.2 meters x 8 meters of land in Sy.No.24 which is classified as government land and calling upon the plaintiff to produce and make available the records to substantiate his right. The defendants are very powerful state machinery are trying to evict the plaintiff illegally without due process law and intended to initiate proceedings under Section 192(A) of Karnataka Land Revenue Act, by issuing notice dated 13.10.2009. The defendant government have no right, title or interest over the suit schedule property, as the plaintiff having perfected his title by continuous, exclusive, undisturbed usage, is not liable to be evicted by the defendants under any pretext. The intended initiation of the action of the defendants would be highly illegal and high handed and the intending eviction of the plaintiff is without due process of law. Therefore, the plaintiff has constrained to file the suit. Thus making the cause of action about the defendants' interference, he has sought for a decree as prayed for.
3. On issuance of suit summons to the defendants after registering the case, defendant Nos.1, 2 and 4 have appeared 5 O.S.No.7996/2009 through D.G.P. and defendant No.3 has appeared through his counsel. Defendant No.3 has filed written statement. But defendant Nos.1, 2 and 4 have not filed the written statement.
The brief contents of written statement reveal that it is denial of the material allegations of the plaint averments in to-to. The suit of the plaintiff is not maintainable or claim of declaration and injunctory relief. It is denied the plaintiff's alleged title by adverse possession peaceful possession and enjoyment over the suit schedule property and specifically denied the alleged interference; and that the suit has been filed with a malafide intention by suppressing the material facts and with ulterior motive and the plaintiff has not come to the court with clean hands; The plaintiff is guilty of suppression of facts and the suit is not maintainable. It is denied the possession of the suit schedule property since more than 30 years and residence in the house constructed on the suit property. It is denied extinguishment of the right of defendants over the suit schedule property; A survey was conducted by revenue department by the Taluk surveyor, North Taluk, in 2006 and a report was submitted to the Tahsildar stating that there are no encroachments in the schedule property area in Sy.No.24 and the schedule property is a lake bed in Dasarahalli village. The show cause notice issued on 13.10.2009, is not known to the defendant No.3. The plaintiff is not at all in possession and 6 O.S.No.7996/2009 enjoyment of the suit schedule property and he has created documents in respect of portion of Sy.No.24 and hence action against it has been duly initiated to evict plaintiff from the disputed area. It is denied specifically the possession of plaintiff for more than 35-40 years and claim of the plaintiff as owner on account of acquisition of title by adverse possession, as alleged. The plaintiff has perfected his title by way of adverse possession for the last 35 years over a statutory period in continuity and the defendants having knowledge ever since from 15.5.1974 is denied. Sy.No.24 is a Tank Bed area and it is the bounden duty of the State to maintain the Tank Bed area. It is taking all the necessary steps with due procedure of law. There is no cause of action arisen to file this suit. Hence, the plaintiff is not entitled for any relief's as claimed for. Accordingly, it is prayed to dismiss the suit.
4. On the basis of the pleadings of the parties, the following issues have been framed:
1) Whether the plaintiff proves that, he is the absolute owner of suit property, by way of adverse possession?
2) Whether the plaintiff proves that his lawful possession of the suit property as on the date of filing of the suit?
3) Whether the defendant no.1 to 4 prove that, the plaintiff is an unauthorized occupant of suit property?7 O.S.No.7996/2009
4) Whether the plaintiff proves the alleged
interference of defendants?
5) Whether the plaintiff is entitled for reliefs as
sought for?
6) What order or decree?
5. To prove the case, the Special Power of Attorney holder of the plaintiff deposed as PW.1 and three witnesses examined as PWs.2 to 4 and relied upon the documents at Exs.P.1 to P.35. On the other hand, defendant No.1, 2 and 4 have not adduced oral and documentary evidence. Whereas, defendant No.3 has adduced the evidence of Asst. Executive Engineer as DW.1 and has relied upon Ex.D.1.
6. Heard the arguments of the learned counsel for the plaintiff and the defendants.
7. Perused the pleadings of the parties, evidence and record on hand.
8. My findings on the above issues are as under:
(1) Issue No.1 .. In the affirmative;
(2) Issue No.2 .. In the affirmative;
(3) Issue No.3 .. In the negative;
(4) Issue No.4 .. In the affirmative;
(5) Issue No.5 .. In the affirmative;
(6) Issue No.6 .. As per final order for the
following:
8 O.S.No.7996/2009
R E A S O N S
9. Issue Nos.1 to 3:- Issue No.5 is the relief oriented issue, which is based on the common discussions to be made on other issue Nos.1 to 4, as the plaintiff has claimed absolute ownership ov6er the suit schedule property by way of adverse possession and also sought for protection of lawful possession and the alleged interference of defendants; and the defendant Nos.1 to 4 through D.3 claimed that the plaintiff is in unauthorized occupant of suit schedule property. So, these issues are linked with each other and the parties led evidence oral and documents on the point. Hence, these issues are taken for common consideration. The burden is casted upon the plaintiff to prove his absolute ownership and possesory right over the suit schedule property and interference of the defendants. On the other hand, defendant No.3 has to prove whether the plaintiff is an unauthorized occupant of the suit schedule property, to the extent of alleged encroached portion as called upon issued under Section 192-A of Karnataka Land Revenue Act, dated 13.10.2009, under Ex.P.33 notice to vacate the same, measuring 21.2 meters x 8 meters (Note: this disputed area alleged to be encroached is considered to be suit site for discussion and adjudication)
10. The learned counsel for the petitioner has advanced his arguments placing reliance on the evidence on record placed by the plaintiff that the plaintiff pleaded and deposed through P.W.1 (GPA/son) that he has acquired the right, title, interest and possessory right over the suit property, by virtue of the claim of the defendants 1 & 2 (Government), to recover possession; but, the 9 O.S.No.7996/2009 right to claim the title to the suit property has been extinguished under Section 27 of the Limitation Act, on account of lapses on the part of the defendants and failure to claim it, prior to limitation period of 30 years and that the plaintiff being in possession, asserting the absolute right since from the day of purchase of the suit schedule property, by him and erstwhile owners and enjoying it without any interruption and obstruction from the defendants and it is open to the public at large and thereby perfected the title over the suit property by way of adverse possession. It is therefore, the action of the defendants through defendant No.2 on issuance of notice of eviction, having no right, title over the suit property by the reason of extinguishment of right, etc., is illegal interference. The plaintiff is/are in possession and enjoyment of suit property.
11. On the other hand, the learned counsel for the defendant No.3 has advanced his arguments referring the defence raised that defendant No.3 has disputed the plaintiff's claim over the suit schedule property, as the absolute title holder having interest and possessory right specifically by way of adverse possession. The assertion made regarding the absolute right over the suit schedule property and it is part of Sy.No.24; and the land sy.No.24, which is identified and to be preserved as tank bed; It is the public/government property and the government now represented 10 O.S.No.7996/2009 by defendant Nos.1 and 2 in this present case and that the plaintiff has no locus-standi to assert his alleged title over the suit schedule property by adverse possession, as there was no encroachment found in the year 2006, when the survey was made. Thus the rival claims of the parties to the suit over the suit property is the ownership and possessory right. Admittedly, the plaintiff is the private person/citizen and the defendant Nos.1, 2 and 4 are nothing but the representatives of the government of Karnataka State and defendant No.3 is the statutory body represented by Commissioner governed by KMC Act.
12. The Special Power of Attorney holder of plaintiff as P.W.1 has reiterated the plaint averments on oath submitting his affidavit in the form of examination-in-chief and relied upon the supporting documents, which are went unrebutted. They are at Ex.P.1 special Power of Attorney; Ex.P.2 Medical report. The original sale deed dated 15.5.1974 is at Ex.P.3, in connection with the property site.
These title deeds corroborate the plaintiff's case that suit property purchased and in pursuance of the said sale deed the name of plaintiff was entered to the property records. They are evidencing the plaintiff's ownership and posssessory right over the suit property. The plaintiff has referred other documents i.e. the original sale deed dated 15.5.1974, is at Ex.P.3, about its possession and 11 O.S.No.7996/2009 enjoyment. The plaintiff has referred the demand register extract at Ex.P.4 & P.5; The tax paid receipts referred to by the plaintiff are at Exs.P.6 to P.11 revealed that the plaintiff was paying the tax with reference to the said purchased property of year 1985-86, 1986-87; Ex.P.12 is the licence giving permission for construction of house of the suit schedule property; Ex.P.13 is the sale deed dated 8.7.1987, in respect of suit schedule property; Ex.P.14 is the licence, Ex.P.12 is the licence giving permission for construction of house of the suit schedule property, to the plaintiff; Ex.P.15 to P.22 are the tax paid receipts of the year 1990-91, 1991-92; Ex.P.23 is the demand register extract. Ex.P.24 to P.31 are the tax paid receipts; Ex.P.33 is the notice issued under Section 192(A) of the Karnataka Land Revenue Act to the plaintiff. Ex.P.34 is the B.B.M.P. Khata extract and Ex.P.35 is the certified copy of the order on Revision Petition No.30/2011. It was between the plaintiff and the defendants.
13. Apart from this to support his case about possession and enjoyment of suit property as owner, the plaintiff has adduced the evidence of one Ashwathaiah, aged 64 years r/o T.Dasarahalli Bangalore, as PW.2 who is residing for the last over 50 years and was doing distribution of news papers in the locality and hence he is well aquatinted with the surrounding layouts formed in Dasrahalli village and that he used to supply the news paper to the plaintiff 12 O.S.No.7996/2009 regularly for last over 30 years. But now he stopped supplying newspaper because of his old age. He has deposed specifically that the suit property being a site consisting of residential house situated at Dasrahalli village Yeshwanthpur Hobli, Bangalore and it is coming within the limits of BBMP. And the plaintiff along with his family members is in possession of the suit schedule property over 40 years. Ever since he is in possession and enjoyment of the same. The plaintiff has adduced the evidence of second witness one J.M.Koneri Varma, aged 77 years r/o T.Dasarahalli Bangalore, as PW.3 who is residing for the last over 40 years and he is well aquatinted with the surrounding layouts formed in Dasrahalli village. He has deposed specifically that the suit property being a site consisting of residential house situated at Dasrahalli village Yeshwanthpur Hobli, Bangalore and it is coming within the limits of BBMP. And the plaintiff along with his family members is in possession of the suit schedule property over 40 years. Ever since he is in possession and enjoyment of the same. The plaintiff has adduced the evidence of another witness one K.V.Venkatagiri, aged 64 years r/o T.Dasarahalli Bangalore, as PW.3 who is residing for the last over 40 years and he is well aquatinted with the surrounding layouts formed in Dasrahalli village. He has deposed specifically that the suit property being a site consisting of residential house situated 13 O.S.No.7996/2009 at Dasrahalli village Yeshwanthpur Hobli, Bangalore and it is coming within the limits of BBMP. And the plaintiff along with his family members is in possession of the suit schedule property over 40 years. Ever since he is in possession and enjoyment of the same.
14. Their evidence is undisturbed while testing their credibility during their cross-examination. Nothing has been brought on record to disbelieve their testimony. It is only denial that they did not have nearby accommodation and their work as alleged by them to support that they have acquaintance with the plaintiff and suit property. Their evidence about acquaintance with the Dasrahalli area and their residence are remained undisputed. They have firmly stated about the plaintiff's possession over the suit property consisting of the structure and residence in the suit schedule property.
15. However, they plead ignorance as to the location of suit property coming within the area of Sy.No.24. They have specifically denied that the plaintiff put up the construction in Sy.No.24. They have specifically ascertained that the plaintiff has constructed the house in the suit schedule site No.104. The suggestion put to these witnesses that the suit site is coming within the area of Sy.No.24, is proof of possession.
14 O.S.No.7996/2009
16. Thus, it is admission on the part of the defendant No.3 with regard to the location of suit site with identification and boundaries coming within the limits of Sy.No.24. It is but natural that these PWs.2 to 4 are not the competent persons to speak about the location of the suit property, whether it comes within Sy.No.24 or not. Sy.No.24 is pertaining to the tank area of Dasarahalli. They are not the witnesses to speak about the issuance of notice by the Tahsildar pertaining to the reason for which it was issued, whether the construction of house over the tank area was unauthorized construction and that it was removed etc. Hence, in this connection their evidence during the cross-examination put by the defendants is irrelevant. Hence, the defendants specifically defendant No.3 has to substantiate the defence as claimed for that government has asserted the right, title and the interest over the suit schedule property and obstructed possession of plaintiff within the statutory period of 30 years and thereby there was obstruction and disturbance of peaceful enjoyment of the plaintiff over the suit property, as owner with possessory right.
17. At this juncture, I would like to consider the legal aspects and the precedents governing the claim of title by adverse possession, consequence of lapse of statutory period to claim possession by the government/local government, and extinguishment of principal right to 15 O.S.No.7996/2009 sue for possession under Section 27 of the Limitation Act and pleadings and proof of plea of adverse possession and general principles having common application to the persons claiming title over the suit property by adverse possession against the government. Because under section 27 of Limitation Act, the right to sue for possession, extinguishes by the reason of lapse of statutory period provided under the Limitation Act and confirms the title upon the person who is in wrongful possession of immoveable property. If he proves his/her actual possession making known to real owner to it about its possession and enjoyment thereupon as of its absolute owner, openly and uninterruptedly for more than such statutory period, adverse to the title of the real owner (hostile title) and acquisition of title after lapse of statutory period the trespassers title becomes perfected by presumption and extinguishment of right of the real/true owner. So with due respect to the decisions, they are duly considered which are relevant and made applicable to the facts and circumstances of the present case on hand and legal rights to be decided and declared by adjudicating of matter in dispute and they are reported in:-
1. AIR 1969 S.C. 1256, in the case of B. Rajendra Singh Vs State of M.P. wherein it is stated that when the plaintiff failed to prove adverse possession against the government as true owner, for the statutory period of 30 years, this suit for declaration of title against the government on the ground of adverse possession would 16 O.S.No.7996/2009 fail as he was failed to prove adverse possession for the period specified in Article 112.
Thus, in this decision the person claiming possession adverse to the right, title and interest of the government, it shall prove it as he is in possession for more than 30 years.
2) AIR 1992 KAR. 270, AIR 1995 KAR 55 & 1995 (4) KLJ
326. The suit under Article 65. The plaintiff can take the claim both under title and also on the basis of acquisition of title by adverse possession alternatively.
3) Limitation for filing a suit for recovery of possession on the bases of title; commences from the date the possession of defendant became adverse to plaintiff. (1990)1 DMC 582 (586) (Ker).
4) In order "to defeat a title by dispossessing the former owner, acts must be done which are inconsistent with his enjoyment of the soil for the purposes for which he intended to use it, and there for it is necessary to look at the position in which the former owner stands towards the lands, as well as to the acts done by the alleged dispossessor." AIR 1917 PC 18(22).
5) Possession implies dominion and control and the consciousness in the mind of the person having dominion of the property that he has it and can exercise it. Occupation only implies bare use of the property without any right to retain it. 1969 A11 WR (HC) 230** ILR (1982) Bom 231 (236). (Absence of actual or physical possession is not the same thing as discontinuance of possession).
6) The principle of law is firmly established that a person, how bases his title on adverse possession, must show by clear and unequivocal evidence that his possession was hostile to the real owner and 17 O.S.No.7996/2009 amounted to a denial of his title to the property claimed. AIR 1935 PC 53 (56).
7) The possession of the defendant was adverse to the plaintiff inasmuch as the plaintiff had stood by while the defendant continued to possess in practical contravention of the plaintiff's alleged rights. AIR 1919 pc 62 (68).
8) Adverse possession is always a unilateral act and there is no question of any contract or agreement giving rise to adverse possession. 1966 Ker LT 1106.
9) Adverse possession is possession which is wrongful. (1903) 27 Bom 408 (412) (DB) ** (1936) 163 Ind Cas 347 (349) (Cal.)
10) Person pleading adverse possession must specifically plead date from which possession, actual or constructive, became hostile (1987) 1 Kant LJ 155 (159) (DB)
11) In order to sustain a claim to land by limitation there must be actual possession of a person claiming as of right by himself or by persons deriving title from him (1902) 29 Ind App 104 (115, 116): 29 Cal 518 (PC)** 1955 Pat LD (Lah) 436 (444) (DB) ** AIR 1941 Pat 422 (425) (db)** AIR 1927 Oudh 141 (142) (DB).
12) Adverse possession, in order to confer title to the property on the possessor must be continuous for the statutory period. AIR 1942 Cal 498 (504) (SB) ** (1985) 2 Andh WR 147 (149) ** AIR 1979 SC 1142.
13) Where the appellants openly and to the knowledge of the respondents continuously remained in possession and enjoyment of property for well over 30 years and the entries in revenue records established that their possession and enjoyment was as owners, the consent of the respondents initially given to appellants to remain in 18 O.S.No.7996/2009 possession does not prevent their possession being adverse. (1994) 1 Mad. LW 211 (213) SC.
14) It is not necessary to prove actual knowledge of the adverse possession on the part of the owner AIR 1934 PC 23 (25) ** AIR 1941 Mad 449 (468) (FB).
15) Where A is in adverse possession of land belonging to B for a period of twelve years or more, B's title is extinguished, and A gets a good title to the land. (1867) 11 Moo Ind App 345 (363) (PC) ** AIR 1958 Ker 178 I(184) (FB).
16) Where the principal right to use for possession is extinguished under S.27 rights accessory thereto will also be extinguished. AIR 1940 PC 116 (123)**
17) A person who claims title to the property by adverse possession must definitely allege and approve how and when adverse possession commenced, what was the nature of his possession and whether the fact of his adverse possession was known to the real owner. A mere suggestion in the relief clause that there was an uninterrupted possession for several 12 years or that the plaintiff had acquired an absolute title is not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea. AIR 1987 Ker 42 (44).
18) If a person assets hostile title even to a tank which as claimed by municipality belonged to it and despite the hostile assertion of title no steps were taken by the owner (i.e. the municipality) to evict the trespasser, his title by prescript would be complete after thirty years. AIR 1981 Supreme Court 707 (710) 1981 UJ (SC) 137.
19) Where a person had made an encroachment upon property vested in a municipality, and was in adverse possession thereof for the statutory period, 19 O.S.No.7996/2009 it was held that right of the municipality was extinguished, and that the right of the public incidental to its right of way also became extinguished. AIR 1916 Mad 613 (614) (DB).
20) The person claiming such title against the government must prove that the adverse possession has extended for a period of sixty years (now thirty years) or more. This is so, even where the suit is not one by the government but one against the government. AIR 1924 PC 150 (154).
21) Where the plaintiff sues the government for a declaration that he has acquired a title against the government by adverse possession for the statutory period, he must prove that his possession has extended for a period of sixty years (now thirty years) AIR 1964 Orissa 233 (234).
18. It is much relevant to consider the page 759, synopsis 5 "Adverse possession against State" of R.Mitra's commentaries on Limitation Act 5th edition reprint 1996, a discussion made and it reads thus:
Adverse possession against State- Adverse possession against State is actual possession, which is adverse to the actual land with intention to hold it and claim it as his own to the exclusion of the State. It must commence with the wrongful dispossession of the rightful owner, i.e. the State at some particular time. Such possession to be adverse must be adequate in continuity, in publicity and in extent to show that the possession was adverse to the State. Possession must be overt act without any attempt or concealment, so that the person against whom time is running ought, if he exercises due vigilance, to be are of what is happening. If the rights of State have been be openly usurped, it cannot be heard to plead that the fact was not bought to its notice. The Limitation Act is indulgent to the State in one respect only, namely, in requiring a much longer period of adverse possession than in the case of a citizen; otherwise there is no discrimination in the statute between the State and the citizen as regards the requisites 20 O.S.No.7996/2009 of adverse possession. It may be added that it is not necessary in order to establish adverse possession that the proof of acts of possession should cover every moment of the requisite period. Though the possession-
"did not prove to have continued every quarter, month or year, yet ordinary possession will be sufficient "ad victeeriam causre, albeit it be proponed" in the terms of a continual possession, "quai probates extremis praesumuntur media", if the distance be not great.
"The fact of possession may be continuous though the several acts of possession are at considerable interval. How many acts will infer the fact is a question of proof and presumption independent of prescription.
19. With due respect of the dictum laid down in the said decision, which are duly considered and hence now coming to the present case on hand, on the basis of facts and circumstances as discussed in the aforesaid paragraphs, it is clear proof of plaintiffs continues uninterrupted possession and enjoyment of suit property to the knowledge of defendants representing government for more than 30 years. This court therefore, comes to the conclusion that the plaintiff has placed all the acceptable and credible materials to believe that since for more than 30 years, by virtue of actual possession of suit schedule property, the plaintiff's vendor's, then present plaintiff's under the sale deed as owner of same i.e. site No.104 (actually in Sy.No.24), have enjoyed the possession of suit property as an absolute owner. He/they got his name entered and paid property tax; and the possession was continued with plaintiff, extended till issuance of notice of the year 2009 by the defendant No.2, who has 21 O.S.No.7996/2009 for the first time asserted against the plaintiff, stating his alleged unauthorized occupantion over the suit property, claiming it as the property of government, identified as Tank Bed. The plaintiff continued the actual possession of suit property getting his name entered as owner and paid property tax and thereby made known to the government/defendants that he is in the actual possession and enjoyment as owner adverse to that of the right of the State/government.
20. The plaintiff has clearly admitted that suit property coming within the limits of Sy.No.24 i.e. the government land. Even if it is so, the concerned defendants/representing the government at the relevant occasion from time to time (earlier coming in group panchayat area and then CMC limits and now BBMP limits), have not asserted any right over the suit property though it is forming part of Sy.No.24. They ought to have been used as Tank Bed, for and within 30 years from 1974, by the government. But such case is not made out and evidence is not placed by the defendant. It has not made efforts at the relevant point of time, to get the plaintiff evicted from the suit property with due process of law, well within the period of 30 years of statutory period. But all the while they expressed their knowledge about the plaintiff's vendor and then plaintiff's actual possession, as owner. It has been proved by virtue of issuing of the 22 O.S.No.7996/2009 khata and receiving the property tax from time to time from the concerned possessor vendor of the plaintiff and the plaintiff himself as referred in the above said paras. These undisputed and unrebutted documents are proving the plaintiff's actual possession and enjoyment of identified suit property forming part of Sy.No.24, as owners, uninterruptedly, openly to the knowledge of the defendant from time to time, adverse to the right of the defendants, who are representing the State Government.
21. It is notable point that site 104 though stated in the sale deed coming within the limits of Sy.No.16/2, 16/3, 21, 22 and 23. But in fact as it is known fact, identified by the government that these sites under the said sale deeds are forming part of Sy.No.24 and not as denoted in Ex.P.13. The plaintiff has clearly pleaded in this regard and acquired his right, title by virtue of lapse of 35 years of his possession and enjoyment. Though he being wrongful possessor of suit site in Sy.No.24, as against the government. On account of extinguishment of right of the State government, the plaintiff has perfected his title to the suit site. The defendant Nos.1, 2 and 4 have not contested the suit though they have represented by their respective counsel. They being representatives of the government, even then failed to cross-examine P.Ws.1 to 4. An adverse inference can be drawn against them, accepting the evidence of 23 O.S.No.7996/2009 plaintiff about the acquisition of title to the suit site. It is not the case of the plaintiff or the defendants that the suit site was located in the Sy.Nos.16/2, 16/3, 21, 22 and 23 and subsequently the original owners and plaintiff had encroached upon the Sy.No.24 i.e., the government land; and that, the plaintiff has claiming excess land; And that such claim is made within the period 30 years earlier to the date of suit filed etc. and hence the plaintiff shall be evicted as an unauthorized occupant; and that plaintiff has his different sites in the lands as denoted in Ex.P.3 and it is in existence.
22. But since beginning, what is claimed is that, the suit site is nothing but the part of the very Sy.No.24 the government land. Thus, it is clear that the title has been flown with possession of suit property forming part of Sy.No.24 to the plaintiff. The sale deed is in respect of site No.104, coming within the area of Sy.No.24 for the last more than 30 years of statutory period. Thus, since from that year of purchase plaintiff's vendor and thereafter the plaintiff has continued the possession of suit site continuously, enjoying it as of rightful owners uninterruptedly.
23. Defendant No.3 is not the owner of Sy.No.24. Defendant No.2 has issued notice dated 13.10.2009 under Section 192(A) of Land Revenue Act stating the alleged encroachment made by plaintiff over Sy.No.24 and appear before him with documents showing ownership 24 O.S.No.7996/2009 over the alleged area. The role of defendant No.3 is nothing but a delegatee and assisting government. No doubt, D.W.1 the Asst. Executive Engineer in the office of Defendant is an authorized representative and he has stated that suit site is coming in Sy.No.24 the government land to be preserved as Tank Bed. The suit site is not property of plaintiff acquiring its title by adverse possession. It is clear proof of plaintiff's lawful possession as on the date of filing of the suit. But this witness D.W.1 is not competent to speak about nature of suit site, ownership and transaction those were taken place earlier to 2010 prior tp joining his service in B.B.M.P., Bangalore North Division, as he has no personal knowledge. Nor produced any authenticated documents to disprove that there was interruption or objections raised by the said State machineries on relevant point of time within 30 years of plaintiff's wrongful possession over the suit property. It is evident that as there was reasonable opportunities available and accrued right to get the possession from the persons in wrongful possession of sites in Sy.No.24; But from his evidence nothing can be gathered except his ignorance about the facts that "plaintiff continues possession since more than 30 years, enjoying it as owner, by paying property tax, getting the respective names changed in the records of suit site (Revenue records) effecting the 25 O.S.No.7996/2009 khata in the name of plaintiffs" His personal knowledge is about issuance of notice to plaintiff by defendant No.2.
24. However certain facts are brought on record by learned counsel for the plaintiff during cross-examination of D.W.1, which are supporting the plaintiff. Since the competent defendants 1, 2 and 4 have not effectively contested the suit and the relevant portion reads thus:
"PÉgÉ EgÀĪÀ eÁUÀªÀÅ zÁ¸ÀgÀºÀ½îAiÀÄ ¸ÀªÉð £ÀAB24 ªÀÄvÀÄÛ ZÉÆPÀ̸ÀAzÀæzÀ ¸ÀªÉð £ÀAB5 DVgÀÄvÀÛzÉ. £Á£ÀÄ zÁªÁ ¸ÀévÀÛ£ÀÄß £ÉÆÃrgÀÄvÉÛãÉ. zÁªÁ ¸ÀévÀÄÛUÀ¼À°è JgÀqÀÄ ªÀÄ£ÉUÀ¼ÀÄ ªÀÄvÀÄÛ MAzÀÄ SÁ° ¤ªÉñÀ£À EzÉ. F ¥ÀæPÀgÀtzÀ zÁªÁ ¸ÀéwÛ£À°è MAzÀÄ ªÀÄ£É EzÉ. ¸ÀzÀj ªÀÄ£É JµÀÄÖ ªÀµÀð ºÀ¼ÉAiÀÄ ªÀÄ£É CAvÀ ºÉüÀ®Ä §gÀĪÀÅ¢®è. ¸ÀzÀj ªÀÄ£ÉAiÀÄ£ÀÄß PÀnÖ ¸ÀĪÀiÁgÀÄ 35 ªÀµÀðPÀÆÌ ªÉÄîàlÄÖ DVzÉ JAzÀgÉ EgÀ§ºÀÄzÀÄ".
"zÁªÁ ¸ÀévÀÄÛ ¸ÀªÉð £ÀAB24gÀ MAzÀÄ ¨sÁUÀ DVgÀÄvÀÛzÉ JAzÀgÉ ¸ÁQëAiÀÄÄ PÉgÉAiÀÄ eÁUÀzÀ°è MvÀÄÛªÀj ªÀiÁr PÀlÖ¯ÁzÀ ªÀÄ£É EzÉ CAvÀ ºÉüÀÄvÁÛgÉ. ¤r.1 EzÀÄ ¥ÀÇtð zÁR¯É C®è JAzÀgÉ ¸ÁQëAiÀÄÄ CzÀ£ÀÄß vÀºÀ¹Ã¯ÁÝgÀgÀÄ £ÀªÀÄUÉ ¸ÀªÉð £ÀAB24PÉÌ EgÀĪÀ zÁR¯É CAvÀ PÉÆnÖgÀÄvÁÛgÉ JAzÀÄ ºÉüÀÄvÁÛgÉ. ¤r.1 £ÀªÀÄä E¯ÁSÉUÉ vÀºÀ¹Ã¯ÁÝgÀgÀ PÀbÉÃj¬ÄAzÀ §A¢gÀÄvÀÛzÉ. ¤r.1PÉÌ E£ÀÄß ¨ÉÃgÉ ¥ÀÅlUÀ¼ÀÄ EzÀÄÝ CªÀÅUÀ¼À£ÀÄß vÀºÀ¹Ã¯ÁÝgÀgÀ PÀbÉÃj¬ÄAzÀ £ÁªÀÅ ¥ÀqÉ¢zÉÝÃªÉ ªÀÄvÀÄÛ D ¥ÀÅlUÀ¼À£ÀÄß E°è ºÁdgÀÄ ªÀiÁrzÀgÉ £ÀªÀÄä ¥ÀæPÀgÀtPÉÌ vÉÆAzÀgÉAiÀiÁUÀÄvÀÛzÉ JA§ GzÉÝñÀ¢AzÀ ºÁdgÀÄ¥Àr¹®è JAzÀgÉ ¸ÀjAiÀÄ®è".
"£À£ÀUÉ ¸ÀzÀj PÉgÉUÉ ¸ÀA§A¢ü¹zÀAvÉ ¸ÀĪÀiÁgÀÄ 35 ªÀµÀðUÀ¼À »AzÉ K£É®è ªÀåªÀºÁgÀUÀ¼ÀÄ D¬ÄvÀÄ CAvÀ £À£ÀUÉ ªÉÊAiÀÄÄQÛPÀ ªÀiÁ»w EgÀĪÀÅ¢®è. EªÀÅUÀ¼À §UÉÎ zÁR¯ÉUÀ¼À£ÀÄß £ÉÆÃr¢ÝÃgÁ JAzÀgÉ ¸ÁQëAiÀÄÄ E¸À« 2007gÀ°è C©üªÀÈ¢Þ¥Àr¸À®Ä PÉgÉAiÀÄ eÁUÀªÀ£ÀÄß ºÀ¸ÁÛAvÀgÀUÉƽ¸À¯ÁVzÉ JAzÀÄ ºÉüÀÄvÁÛg"É.
"zÁªÁ ¸ÀévÀÄÛ MAzÀÄ ¯ÉÊ£ï£À°è §gÀÄvÀÛzÉ JAzÀgÉ ¤d. zÁªÁ D¹ÛAiÀÄ CPÀÌ¥ÀPÀÌzÀ°è ¨ÉÃgÉ ªÀÄ£ÉUÀ¼ÀÄ PÀÆqÀ EªÉ JAzÀgÉ ¤d. zÁªÁ D¹ÛAiÀÄ 26 O.S.No.7996/2009 »A¨sÁUÀzÀ°è PÉgÉAiÀÄ D¹ÛAiÉÄà §gÀÄvÀÛzÉ. zÁªÁ D¹ÛAiÀÄÄ ¸ÀªÉð £ÀAB24gÀ°è §gÀÄvÀÛzÉAiÉÆà ºÉÃUÉ CAvÀ eÁ¬ÄAmï ¸ÀªÉðAiÀÄ£ÀÄß ©©JA¦AiÀĪÀgÀÄ ªÀÄvÀÄÛ gÉ«£ÀÆå E¯ÁSÉAiÀĪÀgÀÄ ªÀiÁrgÀÄvÁÛgÉ. £Á£ÀÄ ªÉÊAiÀÄÄQÛPÀªÁV CzÀgÀ°è ¨sÁVAiÀiÁVgÀĪÀÅ¢®è. F PÁgÀtPÁÌV £À£ÀUÉ ªÉÊAiÀÄÄQÛPÀªÁV ¸ÀªÉð §UÉÎ ªÀiÁ»w E®è JAzÀgÉ ¤d.
"¸ÀA§A¢ü¹zÀ PÀAzÁAiÀÄ E¯ÁSÉAiÀĪÀgÁUÀ°Ã CxÀªÁ ©©JA¦AiÀĪÀgÁUÀ°Ã ªÁ¢UÉ CªÀgÀÄ zÁªÁ D¹ÛAiÀÄ°è C£À¢Pü ÀÈvÀªÁV PÀ¨ÉÓAiÀÄ£ÀÄß ºÉÆA¢¢ÝÃgÁ JAzÀÄ CªÀjUÉ w½¹, E¸À« 2009QÌAvÀ »AzÉ AiÀiÁªÀÅzÉà £ÉÆÃnøÀ£ÀÄß PÉÆnÖ®è JAzÀgÉ ¸ÁQëAiÀÄÄ ©©JA¦AiÀÄ ªÁå¦ÛAiÀÄ°è D¹Û §AzÀ £ÀAvÀgÀ MvÀÄÛªÀjAiÀiÁVzÉ CAvÀ w½zÀ £ÀAvÀgÀ E¸À« 2010gÀ°è vÀºÀ¹Ã¯ÁÝgÀgÀ PÀqɬÄAzÀ £ÉÆÃnøï PÀ¼ÀÄ»¸À¯ÁVzÉ JAzÀÄ ºÉüÀÄvÁÛgÉ. F §UÉÎ zÁR¯ÉUÀ¼ÀÄ £ÀªÀÄä §½ EªÉ. CªÀÅUÀ¼À£ÀÄß F ¥ÀæPÀgÀtzÀ°è ºÁdgÀÄ¥Àr¹®"è.
His version thus supports the plaintiff's possession as continuous and uninterrupted and was not objected, but received the 'Tax' accepting the plaintiff's possession to enjoy it as owner, which is nothing but adverse to the real owner i.e. government represented by its concerned authorized officers, who has allowed to possess it as owner.
25. So D.W.1's evidence does not come to the aid of any of the defendants to disprove the plaintiff's claim of title acquire by adverse possession and extinguishment of right of the State government under Section 27 of Limitation Act, in the manner pleaded and proved by placing the cogent and clinching evidence by the plaintiff. No documents are forthcoming to show that defendant Nos.1 to 4 have undertaken the eviction proceedings with due process of law against 27 O.S.No.7996/2009 plaintiff.. Sy.No.24 is coming within the limits of Dasarahalli. D.W.1 stated that suit property is forming part of Sy.No.24. He has taken charge of his office after filing of this suit i.e. in 2010. He did not know what was its age and whether the plaintiff residing in the constructed house since 35 years. So, evidence un-rebutted on record is of the plaintiff and it has to be believed in that regard. According to him, Sy.No.24 of Dasarahalli and Sy.No.5 of Chokkasnadra entire area of these lands is measuring 27 acres 33 guntas which is tank area; in some portion of these lands some of the public have constructed residential houses and living there. But he says they were encroached upon the government land and they are unauthorized occupants.
26. D.W.1 admits that Defendant No.3 is collecting the property tax from the plaintiff, and it contains the house structure. It is his clear admission that the plaintiff was in possession, living in the constructed house in the suit site as on the date of filing of the suit However, this court cannot restrain the statutory authorities and constitutional machineries representing the State government from taking possession of property of private persons for public purpose. But they shall proceed with due process of law. So also from the possession of unauthorized occupants, it should be with due process of law. The remedy available is to seek declaration of title, for the 28 O.S.No.7996/2009 plaintiff by filing suit before the civil court and certainly the plaintiff has availed this remedy. So title acquires by plaintiff on the ground of possession for more than 30 years cannot be curtailed by any of the defendants representing the State government. Because now, right to take possession after over lapse of 30 years, has been extinguishing. So, the plaintiff's right shall be protected by declaring the title.
27. From the consolidated reading of the said decisions with due respect, and the discussion made with reference to fact and circumstances of the case put forth by the plaintiff and defendant No.3, who have placed oral and documentary evidence, with regard to the legal consequences in connection with the possession, for a statutory period, under Limitation Act and accrual of right etc., what is transpired is about the legal right accrued to a person in adverse possession, for more than statutory period of 30 years against the State; as the title is acquired by prescription. The possession is a substantive right recognized by law. It has to be protected by the civil courts of law, against any person including the State government, as owner.
28. The required ingredients are fulfilled by the plaintiff that the person claiming adverse possession shall plead and prove the dispossession of owner, (date to be pleaded which is done stating the 29 O.S.No.7996/2009 date of purchase of suit property); and that the owner allowing wrong possessor to enjoy the property (for residential purpose used by plaintiff but not as Tank owned by government), other than for such purpose ought to have been used (Tank Bed), and such user shall be open enjoyment, without interruption of State; and it must be actual possession having exclusive control over the property (using the suit property as residential purpose by paying property tax by the plaintiff in the present case). Actual possession and payment of property tax by the plaintiff's vendor and plaintiff etc. are proof of open enjoyment, as owner adverse to the right of State government and it is proof of abandonment of possession by the State government in favour of the plaintiff, since from the year of purchase. It is plaintiff's continued possession and enjoyment, to the exclusion of the State government , who has not obstructed claiming it as Tank Bed, encroached either by vendor of plaintiff's and presently the plaintiff, but it is allowing to enjoy it for residential purpose. The very suit site is not used as Tank Bed. The State government has not tried to evict the said vendor or the plaintiff himself, prior to the statutory period of 30 years.
29. P.Ws.1 to 4 have supported the uninterrupted possession of plaintiff over the suit schedule property for more than 30 years. No body from the public or the State authorities have asserted the possession of the plaintiff as wrongful, over the Tank Bed, and tried 30 O.S.No.7996/2009 to get him evicted with due process of law. Thereby interruption has not been caused within the period 30 years from 1974, i.e., the known date of sale transaction of plaintiff's vendor, though it was his wrongful possession over suit site in the year 1974, but it was undisturbed enjoyment of suit site, as his residence. Thus, it is clear evidence and proof of plaintiff's domine and control over it. It is to the knowledge of the defendants/State and its authorized representatives. So his possession as on the date of filing of the suit was open uninterrupted, continuous for more than 30 years of statutory period and it is hostile to the real owner i.e. State government.
30. Conduct and assertion of title by plaintiff on paying the property tax and enjoying it by constructing residential house etc., are is open denial of claim of the defendants over the suit property as "Tank Bed"
belonging to the government. The conduct of State in not taking any steps for more than 30 years and collecting of property tax from wrongful possessor itself abandoning the possession in favour of the plaintiff, to whom it has allowed to use it as owner without taking any action till extinguishment of right, to recover possession from the plaintiff, much prior to statutory period of 30 years. Till then State government represented by its authorized representatives stood-by, by allowing the plaintiff to enjoy as owner for more than 30 years. 31 O.S.No.7996/2009 It is now extinguished the right to recover possession from the plaintiff. However this court cannot curtail the right and power to be exercised and duty to be performed by State government, permanently in connection with taking of possession of said property. The defendants have to follow the statutory requirement and it shall be with due process of law. The plaintiff, for the above reasons, has perfected his title to the suit property by prescription/adverse possession. So the defendants shall follow the due process of law to acquire the suit property by adopting statutory methods considering the suit property as if it is of private property of a citizen and adopt the due acquisition process known to law. The right of the State government to recover possession by lapse statutory period, has been extinguished under section 27 of the Limitation Act. Now, State cannot deny, alleging the possession of plaintiff as unauthorized, though the suit property forms a Tank Bed, in Sy.No.24, belonged to the State government. The very notice of defendant No.2 for compliance on the ground of unauthorized occupant is patently illegal and without due process of law.
31. So the plaintiff has proved his absolute title to the suit property against the State government/represented by the defendants perfecting his title by adverse possession and prescription. The right of the government to recover the possession from the plaintiff has 32 O.S.No.7996/2009 been extinguished under Section 27 of Limitation Act. For grant of injunctory relief plaintiff has pleaded and adduced evidence in this regard that by issuing the notice, defendant No.2 has denied plaintiffs title. Defendants did not contest the suit except defendant No.3. DW.3 has disputed the claim of plaintiff. It is nothing but interference with plaintiffs possession and enjoyment of suit property. The plaintiff proved his right, title and interest over the suit property by way of adverse possession and extinguishment of right of the State government to recover possession by lapse of more than 30 years of statutory period (under Section 27 of Limitation Act). Hence, he is entitled for declaration of his title and injunctory relief, as prayed for. Plaintiff's possession is not as an unauthorized occupant, as contended by defendant No.3, but it is lawful one. Hence plaintiff is entitled for the reliefs as prayed for. So, issue Nos.1, 2, 4 and 5 are answered in the affirmative. Issue No.3 is answered in the negative.
32. Issue No.6:- In view of the above discussion and conclusion arrived at, it is proceeded to pass the following;
O R D E R The Suit of the plaintiff is hereby partly decreed. The plaintiff is hereby declared that he is the absolute owner of the suit schedule property having perfected his right, title over the same enjoying it openly, continuously, uninterruptedly and adversely to 33 O.S.No.7996/2009 the interest of the defendants for a period of more than 30 years, specifically the disputed area measuring 21.2 mtrs x 8 mtrs.
Consequently, the defendants, their men, officials, agents, servants or any other person on their behalf are hereby restrained from interfering with and disturbing the with plaintiff's peaceful possession and enjoyment pf the suit schedule property, without due process of law.
Parties are directed to bear their own costs.
Draw decree accordingly.
(Dictated to the Judgment Writer directly over computer, corrected and then signed and pronounced by me in the open court on this the 21st day of November, 2015) (Yadav Vanamala Anandrao) LII Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of the witnesses examined for the plaintiff:
P.W.1 Sagar P.W.2 V.T.Ashwathaiah P.W.3 J.M.Koneri Varma
List of the documents marked for the plaintiff:
Ex.P.1 Special Power of Attorney Ex.P.2 Medical Report Ex.P.3 Sale deed Ex.P.4 & P.5 Demand Register Extract Exs.P.6 to P.11 Tax receipt Ex.P.12 Licence Ex.P.13 Sale deed Ex.P.14 Licence Ex.P.15 to P.22 Tax receipts Ex.P.23 Demand Register extract 34 O.S.No.7996/2009 Ex.P.24 to P.32 Tax receipts Ex.P.33 Notice under Section 191-A KMC Act Ex.P.34 B.B.M.P. khata Ex.P.35 Certified copy of the order in CRP 30/11
List of the witnesses examined for the defendants:
D.W.1 Anusha A.M. List of the documents marked for the defendants:
Ex.D.1 Survey sketch
LII Addl. City Civil & Sessions Judge,
Bengaluru.
35 O.S.No.7996/2009