Karnataka High Court
Mr Venugopal vs Mr M Rajendra on 14 September, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A.NO.2301 OF 2017 (POS)
BETWEEN:
1. MR. VENUGOPAL
S/O LATE K P BAPU MEATRI
AGED ABOUT 57 YEARS
1A. SMT.SUJAYA VENUGOPAL
W/O LATE VENUGOPAL,
AGED ABOUT 62 YEARS
1B. SMT.SHRUTHI VENUGOPAL,
D/O LATE VENUGOPAL,
AGED ABOUT 45 YEARS
1C. ATHIRA VENUGOPAL
D/O LATE VENUGOPAL
AGED ABOUT 45 YEARS
ALL R/AT NO.DOOR NO.5/63 BEHIND
OLD BUS STAND,
OPP MARKET NAGARKATTE ROAD,
MOODABIDRI-575227
MANGALURU TALUK
(AMENDED AS PER THE COURT ORDER
DATED 02/09/2022)
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2. MR K P SUNIL KUMAR
S/O LATE K P UMADEVI
AGED ABOUT 40 YEARS
3. MR K P THUSHAR
S/O LATE K P UMADEVI,
AGED ABOUT 38 YEARS
ALL ARE RESIDING AT DOOR NO.5/63
BEHIND OLD BUS STAND,
OPP MARKET NAGARKATTE ROAD,
MOODABIDRI-574 227
MANGALURU TALUK
4. SMT. BABITHA
AGED ABOUT 42 YEARS,
W/O LATE K P VIJAYARAJ
DOOR NO.5/63, BEHIND OLD BUS STAND,
OPP MARKET, NAGARAKATTE ROAD,
MOODBIDRI-574 227
MANGALURU TALUK
5. KUM MEGHANA
AGED ABOUT 27 YEARS,
D/O LATE K P VIJAYARAJ
DOOR NO.5/63, BEHIND OLD BUS STAND
OPP MARKET NAGARAKATTE ROAD,
MOODBIDRI-574 227
MANGALURU TALUK
6. MR ANOOJ VIJAYARAJ @ ANUP
AGED ABOUT 23 YEARS,
S/O LATE K P VIJAYARAJ
NO.65, SUVARNA NILAYA,
NEAR MBT BUILDING, K C HALLI
BTM 3RD STAGE, IIM
BENGALURU-560 076
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7. SMT K P CHANDRAVATHI @ SHOBHA
W/O SRI T P SHRIDHARA
AGED ABOUT 50 YEARS,
DOOR NO.5/63 BEHIND OLD BUS STAND,
OPP MARKET NAGARAKATTE ROAD,
MOODBIDRI-574 227
MANGALURU TALUK
...APPELLANTS
(BY SRI MITHUN G.A., ADVOCATE)
AND:
1. MR M RAJENDRA
S/O LATE M JAGATHPALA
SINCE DEAD BY HIS LRS
1A. SMT.VRINDA
W/O LATE M.RAJENDRA,
AGED ABOUT 67 YEARS
1B. MR.ADARSH
S/O LATE M.RAJENDRA,
AGED ABOUT 47 YEARS
1C. MRS. NAIDILA JAYAKEERTHI
D/O LATE M.RAJENDRA,
AGED ABOUT 45 YEARS
RESPONDENTS NO.1A TO C ARE
R/AT ARAMANE, MOODBIDRI-574227
MANGALURU TALUK.
...RESPONDENTS
(BY SRI.K CHANDRANATH ARIGA, ADVOCATE)
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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 13.10.2017 PASSED IN RA
NO.74/2015 ON THE FILE OF THE III ADDL. SENIOR CIVIL JUDGE,
MANGALURU, D.K., (ITINERARY AT MOODABIDRI) ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED
21.02.2013 PASSED IN OS NO.21/2005 ON THE FILE OF THE CIVIL
JUDGE AND JMFC., MOODBIDRI.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 13.09.2022, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by the defendants questioning the judgment and decree passed by the Appellate Court wherein the judgment and decree of the Trial Court is set aside and suit is decreed directing the defendants herein to handover vacant possession of suit 'A' schedule premises.
2. For the sake of brevity, the parties are referred to as per their rank before the Trial Court.
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3. The plaintiff filed a suit for possession in O.S.No.21/2005. The plaintiff claimed to be the owner of suit schedule 'A' property. The plaintiff contended that the property was originally owned by the father of the plaintiff herein. It was further pleaded that defendants are the widow and children of one late K.P.Bapu Mestry. The father of the plaintiff let out the suit schedule premises in favour of defendants ancestor by executing the rent bond dated 06.07.1955 on a monthly rent of Rs.6/- payable by the end of every month. The plaintiff contended that the rent bond expired on 31.06.1956, however, the tenant continued to reside in the building premises as a tenant. The plaintiff further contended that the said K.P.Bapu Mestry made a false claim by filing Form No.7 before the Land Tribunal. The plaintiff contended that he has terminated the tenancy by issuing a quit notice on 18.04.2002 and consequently sought for possession from the defendants and also sought for mesne profits with effect from 01.06.2002.
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4. The defendants, on receipt of summons, contested the proceedings by filing written statement. The defendants contended that husband of defendant No.1 filed Form No.7 before the Land Tribunal and the matter is pending before this Court in W.P.No.1917/2002. The defendants claimed that the matter is seized before this Court and the matter is pending for consideration for entitlement of occupancy rights pertaining to schedule 'A' property and therefore, contended that the present suit needs to be stayed till the final determination of the tenancy dispute. The defendants also contended that the possession held by late Bapu Mestry is hostile animus against the father of plaintiff and therefore, the original tenant Bapu Mestry and his legal heirs have perfected their title by way of adverse possession.
5. The plaintiff to substantiate his claim examined himself as PW.1 and let in documentary evidence vide Exs.P-1 7 to P-11. The defendants though set up a plea of adverse possession, however, did not chose to lead any evidence.
6. The Trial Court in absence of contest answered issue No.4 in the affirmative relating to plea of adverse possession. The Trial Court held that defendants have perfected their title by way of adverse possession. While examining issue No.4, Trial Court by referring to Article 67 of the Limitation Act was of the view that tenancy expired in 1956 and therefore, was of the view that quit notice issued on 18.04.2002 is bad under law. The Trial Court also held that late Bapu Mestry and his legal heirs have perfected their title by way of adverse possession and therefore, the rights, if any, of plaintiff's father and after his death, plaintiff, stood extinguished. The Trial Court also held that there is no valid termination of tenancy and accordingly, answered issue No.2 in the negative.
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7. The plaintiff feeling aggrieved by the judgment and decree of the Trial Court, preferred appeal in R.A.No.74/2015.
8. The Appellate Court has independently assessed the oral and documentary evidence. The Appellate Court having examined the material on record found that original tenant filed Form No.7 before the Land Tribunal and therefore, the controversy in regard to tenancy rights of husband of defendant No.1 was pending consideration. Therefore, Appellate Court was of the view that there is a bar under Section 132 of Karnataka Land Reforms Act. It is in this background, Appellate Court was of the view that plaintiff is entitled for benefit under Section 14 of Limitation Act. The Appellate Court was of the view that question of tenant holding over after determination of lease, landlord cannot be left remediless and is entitled to seek recovery of possession.
9. The Appellate Court while examining the plea of adverse possession was of the view that defendants having set 9 up a plea of adverse possession were required to substantiate the said claim by leading oral and documentary evidence. The Appellate Court was of the view that the entire burden is on the defendants and therefore, by not leading any evidence, the Appellate Court drew adverse inference against the defendants and therefore, did not concur with the findings of the Trial Court on adverse possession. Consequently, appeal was allowed by setting aside the judgment and decree of the Trial Court.
10. Learned counsel appearing for the defendants would vehemently argue and contend that plaintiff has admitted that there is no jural relationship of landlord and tenant since 1976 and therefore, he would contend that the period of limitation commences from 06.12.1976 and therefore, he would contend that the present suit is barred by limitation in terms of Article 67 of the Limitation Act. Learned counsel has raised additional substantial question of law. Referring to Sections 132 and 133 of Land Reforms Act, he 10 would contend that admittedly suit schedule property is a non- residential property and the suit property has never stood vested with the State as on 01.03.1974 and therefore, the bar under Section 132 had no application to the present case on hand and therefore, he would contend that the suit is barred by limitation. He would also contend that the findings recorded by the Appellate Court in regard to valid termination of tenancy is palpably erroneous. He would contend that landlord title was denied way back in 1976 and therefore he would contend that the Appellate Court erred in not examining Article 67 of Limitation Act. He would point out that Article 14 of the Limitation Act has no application to the present case on hand, more particularly Section 14 has no application to the proceedings pending before the Land Tribunal.
11. To buttress his arguments, learned counsel appearing for the defendants has placed reliance on the judgment rendered by this Court in the case of Rajaram 11 Moulsab Kalal and Another vs. Basawwa and Others1 and has vehemently argued that the present suit is barred by limitation under Article 67 of Limitation Act.
12. Per contra, learned counsel appearing for the plaintiff however countering the arguments canvassed by the defendants counsel would contend that the defendants were asserting tenancy rights and the claim made by the defendants was dismissed by this Court in writ proceedings in the year 2007. Therefore, he would contend that the suit for possession by terminating the tenancy by issuing the quit notice was very much maintainable and therefore, he would contend that the judgment and decree rendered by the Appellate Court is in accordance with law.
13. Learned counsel for the plaintiff would also place reliance on the same judgment. Referring to para 9 of the judgment cited supra, he would contend that plaintiff's title was never under challenge till defendants claim before the 1 ILR 1974 Kar 1495 12 Land Tribunal attained finality before this Court. Therefore, he would contend that the question of adverse possession would not arise. He has also placed reliance on the judgment rendered by the Hon'ble Apex Court in the case of Nand Ram (Dead) Through Legal Representatives and Others vs. Jagdish Prasad (Dead) Through Legal Representatives2. Referring to para 39, he would contend that the suit filed by the plaintiff within twelve years of determination of tenancy by efflux of time is within the period of limitation. He would further point out that the Apex Court was of the view that mere non-payment of rent does not amount to forfeiture of tenancy. It only confers right on the landlord to seek possession. The tenancy was determined at the instance of the plaintiff only in the year 2002 and therefore, Article 67 has no application to the present case on hand.
14. Heard learned counsel appearing for the defendants and learned counsel appearing for the plaintiff. I have given 2 (2020) 9 SCC 393 13 my anxious consideration to the judgments rendered by the courts below.
15. It is not in dispute that husband of defendant No.1 was inducted as a tenant under rent bond dated 06.07.1955. The material on record clearly indicates that it was a monthly tenancy and the term of rent bond expired on 31.06.1956. The defendants' ancestor namely Bapu Mestry after coming into force of Land Reforms Act filed Form No.7 and claimed to be a tenant of the land in question. Perusal of para 13 of the Appellate Court judgment, this Court would find that the Land Tribunal rejected Form No.7 and thereafter the present defendants prosecuted the writ petition pending in W.P.No.1917/2002. The Coordinate Bench of this Court on examination of the material on record, however, found that Form No.7 is totally misconceived. The learned Judge found that suit schedule property is a punja land which is non- cultivable land. A categorical finding was recorded indicating that suit property is not at all an agricultural property which is 14 situated within Moodabidri Town surrounded by fish market and vegetable market. A further finding was recorded that original applicant was a businessman dealing with timber and the lease period was only for eleven months. The said writ petition was dismissed on 10.09.2007 and confirmed in writ appeal in W.A.No.2102/2007.
16. If these significant details are taken into consideration, then this Court is of the view that the issue in regard to tenancy was pending for consideration before this Court. The stand taken by the defendants that the suit schedule property is an agricultural land and the original applicant Bapu Mestry was cultivating the land as a tenant is negatived by this Court and the same has attained finality. The plaintiff has filed the present suit by terminating tenancy by issuing quit notice. The plaintiff has terminated the tenancy by issuing quit notice dated 18.04.2002. Insofar as termination of tenancy is concerned, the same has to be gathered from the action initiated by the landlord. Though the 15 rent bond expired on 31.06.1956, in view of pendency of proceedings before the Land Tribunal and this Court, plaintiff had to wait till the Land Tribunal adjudicated the tenancy rights of the applicant. Therefore, till landlord determines the tenancy by issuing a quit notice, the defendants continued to be tenants. Till plaintiff instituted the present suit, defendants have not at all disputed the plaintiff's title. It is only on institution of suit by issuing quit notice, the defendants have set up title by way of adverse possession.
17. If the defendants set up plea of adverse possession, then there is absolutely no burden on the plaintiff. However, since the present suit is one for ejectment, plaintiff has produced sufficient material indicating that there is a valid termination of tenancy. The Appellate Court has rightly dealt with this issue.
18. The concept of adverse possession in India is more than a century old concept of law which is primarily based on 16 three fundamental principles. Firstly, competing rights of ownership between the actual owner and the person taking care of the land. Right of a person taking care of the land and making highest and best use of the land would prevail over the actual title holder of the land who does not take care of the land. Secondly, the title of the land should not be kept in abeyance for a long period of time i.e., a situation should not arise in which the title holder of the land is not known. Thirdly, it is presumed that the actual title holder has abandoned his possessory rights if despite knowing that some other person is claiming hostile possession over his land but he chooses to keep quite and fails to take any action against the said person as provided under the law.
19. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title 17 of true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario' that is, peaceful, open and continuous. The possession must be adequate in continuity in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.
20. The concept of adverse possession has been well settled by the judicial committee of the Privy Council in 1907 in Perry vs. Clissold3, wherein it was held that;
"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 the process of law within the period of prescribed by the provisions of the statue of Limitation applicable to the case, his right is forever 3 (1907) A.C. 73 18 extinguished and the possessory owner acquires an absolute title."
21. The decision of the Privy Council though not binding on the Supreme Court but still the said decision was upheld by three Judges of the Hon'ble Supreme Court in the case of Nair Service Society vs. K.C. Alexander4. The Hon'ble Apex Court in the case of P.T.Munichikkanna Reddy and Others vs. Revamma and Others5 further laid down certain guidelines regarding the enquiry to be held by the Courts while deciding the plea of adverse possession. The Hon'ble Apex Court has held that;
"Therefore, to assess a claim of adverse possession, two-pronged enquiry is required;
1. Application of limitation provision thereby jurisprudentially "willful neglect" element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner.
2. Specific Positive intention to dispossess on the part of the adverse possessor effectively shifts the title 4 AIR 1968 SC 1165 5 (2007) 6 SCC 59 19 already distances from the paper owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property."
22. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Whenever plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property therefore, the pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. In Dagadabai (Dead) by Lrs vs. Abbas @ Gulab Rustum Pinjari6, the Hon'ble Apex Court held that a person who acquires title by adverse possession, has to first admit the ownership of the true owner over the property before claiming ownership on the strength of adverse possession. Defendants having setup adverse title have not 6 (2017) 13 SCC 705 20 chosen to lead rebuttal evidence. In that event, plaintiffs are bound to succeed and is entitled to recover possession.
23. In the light of the discussion made supra, this Court is of the view that the judgment and decree rendered by the Appellate Court is in accordance with law. The findings arrived at by the Appellate Court is based on legal evidence and in absence of rebuttal evidence let in by the defendants. The plaintiff's father had inducted the husband of defendant No.1 by executing rent bond which was only for eleven months. The rent bond expired on 31.06.1956. The defendants have used all possible recourse available to them under law to postpone the handing over of possession. The defendants have been squatting over the property since 1956. In civil litigations, the Courts often encounter dishonest clients who use all possible resources available to them and keep the litigation alive. A frivolous claim was made before the Land Tribunal and almost 31 years was spent only to ascertain as to whether husband of defendant No.1 was tenant of the suit 21 schedule property. This Court has recorded a finding that husband of defendant No.1 was doing timber business and the suit schedule premises was used for business purpose. Therefore, the material on record clearly demonstrates that defendants have made all possible efforts to subvert the adjudicative process by making frivolous claims. The defendants have succeeded in using the court process as an instrument to achieve their malafide intent to squat over the suit premises. The suit schedule property is a residential house located in 22 cents of land in Moodabidri Town. The defendants have succeeded in holding possession illegally for almost 67 years.
24. It is bounden duty of the Courts to ensure that dishonest attempts to surpass the legal process must be effectively curbed and the Court must ensure that there is no wrongful, unauthorized or unjust gain to anyone as a result of abuse of process of Court. One way to curb this tendency is to impose exemplary cost. If the aforesaid significant details are 22 taken into consideration, then this Court is of the view that defendants deserve to be saddled with exemplary cost of Rs.1,00,000/-.
25. For the reasons stated supra, I pass the following:
ORDER The second appeal is dismissed with cost of Rs.1,00,000/- payable to the plaintiff.
Sd/-
JUDGE CA