Karnataka High Court
Lakshmamma vs State Of Karnataka on 22 January, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
-1-
NC: 2024:KHC:3239
RSA No. 85 of 2021
C/W RSA No. 33 of 2021
RSA No. 55 of 2021
RSA No. 72 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 85 OF 2021 (DEC/INJ)
C/W
REGULAR SECOND APPEAL NO. 33 OF 2021 (DEC/INJ)
REGULAR SECOND APPEAL NO. 55 OF 2021(DEC/INJ)
REGULAR SECOND APPEAL NO. 72 OF 2021 (DEC/INJ)
IN RSA NO.85/2021
BETWEEN:
MOLLEGOWDA
SINCE DECEASED BY HIS LRS
1. SMT JAYAMMA
W/O LATE SRI MOLLEGOWDA
AGED ABOUT 73 YEARS
R/AT NO.146
Digitally BELAVADI VILLAGE AND POST
signed by MYSORE-570 018.
SUMA B N
Location: High
Court of 2. SRI. M. CHAMARAJU
Karnataka
S/O LATE SRI. MOLLEGOWDA
AGED ABOUT 47 YEARS
R/AT NO.146
BELAVADI VILLAGE AND POST
MYSORE-570018.
3. SMT. B.M. NAGARATHNAMMA
D/O LATE SRI MOLLEGOWDA
AGED ABOUT 45 YEARS
R/AT NO.146
-2-
NC: 2024:KHC:3239
RSA No. 85 of 2021
C/W RSA No. 33 of 2021
RSA No. 55 of 2021
RSA No. 72 of 2021
BELAVADI VILLAGE AND POST
MYSORE-570 018.
4. SMT. JAYALAKSHMI
D/O LATE SRI MOLLEGOWDA
AGED ABOUT 43 YEARS
R/AT NO.146
BELAVADI VILLAGE AND POST
MYSORE-570 018.
5. SMT. M. GEETHA
D/O LATE SRI MOLLEGOWDA
AGED ABOUT 41 YEARS
R/AT NO.146
BELAVADI VILLAGE AND POST
MYSORE-570 018.
...APPELLANTS
(BY SRI. SHARATH S. GOWDA, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REP. BY ITS DEPUTY COMMISSIONER
D C OFFICE COMPLEX
KRISHNARAJA BOULEVARD ROAD
K G KOPPAL
MYSURU-570 001.
2. THE ASSISTANT COMMISSIONER
MYSURU REVENUE SUB-DIVISION
D C OFFICE COMPLEX
KRISHNARAJA BOULEVARD ROAD
K G KOPPAL
MYSURU-570 001.
3. THE TAHSILDAR
OFFICER OF THE TAHSILDAR
-3-
NC: 2024:KHC:3239
RSA No. 85 of 2021
C/W RSA No. 33 of 2021
RSA No. 55 of 2021
RSA No. 72 of 2021
MINI VIDHANASOUDHA
NAZARBAD MOHALLA
MYSORE-570 010.
...RESPONDENTS
(BY SMT. AZRA J. DUNDGE, AGA)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 29.02.2020
PASSED IN RA.No.49/2019 ON THE FILE OF THE VII
ADDITIONAL DISTRICT JUDGE, MYSURU, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 10.12.2018 PASSED IN O.S.No.325/2011 ON THE FILE
OF THE II ADDITIONAL SENIOR CIVIL JUDGE, MYSURU.
IN RSA NO.33/2021
BETWEEN:
LAKSHMAMMA
SINCE DEAD, LRS
1. SRI. YOGANAND
S/O LATE SRI MAHADEVU
AGED ABOUT 45 YEARS
R/AT NAGANAHALLI
KASABA HOBLI, MYSORE-570 003.
2. SMT. PRABHAVATHI
D/O LATE SRI MAHADEVU
AGED ABOUT 44 YEARS
R/AT NAGANAHALLI
KASABA HOBLI, MYSORE-570 003.
-4-
NC: 2024:KHC:3239
RSA No. 85 of 2021
C/W RSA No. 33 of 2021
RSA No. 55 of 2021
RSA No. 72 of 2021
3. SMT. RUKMINI
D/O LATE SRI MAHADEVU
AGED ABOUT 42 YEARS
R/AT NAGANAHALLI
KASABA HOBLI, MYSORE-570 003.
4. SMT. PRAMILA
D/O LATE SRI MAHADEVU
AGED ABOUT 40 YEARS
R/AT NAGANAHALLI
KASABA HOBLI, MYSORE-570 003.
5. SRI. BASAVARAJU
S/O LATE SRI MAHADEVU
AGED ABOUT 38 YEARS
R/AT NAGANAHALLI
KASABA HOBLI, MYSORE-570 003.
...APPELLANTS
(BY SRI. SHARATH S. GOWDA, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REP BY ITS DEPUTY COMMISSIONER
D.C. OFFICE COMPLEX,
KRISHNARAJA BOULEVARD ROAD,
K.G. KOPPAL, MYSURU-570 001.
2. THE ASSISTANT COMMISSIONER
MYSURU REVENUE SUB DIVISION
D.C.OFFICE COMPLEX,
KRISHNARAJA BOULEVARAD ROAD
K.G.KOPPAL
MYSURU-570 001.
-5-
NC: 2024:KHC:3239
RSA No. 85 of 2021
C/W RSA No. 33 of 2021
RSA No. 55 of 2021
RSA No. 72 of 2021
3. THE TAHSILDAR
OFFICER OF THE TAHSILDAR
MINI VIDHANASOUDHA
NAZARBAD MOHALLA
MYSORE-570 010.
...RESPONDENTS
(BY SMT. AZRA J. DUNDGE, AGA)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 29.02.2020
PASSED IN R.A.No.46/2019 ON THE FILE OF THE VII
ADDITIONAL DISTRICT JUDGE, MYSURU, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 10.12.2018 PASSED IN O.S.No.328/2011 ON THE FILE
OF THE II ADDITIONAL SENIOR CIVIL JUDGE, MYSURU.
IN RSA NO.55/2021
BETWEEN:
SMT.CHAMAKKA
W/O LATE SRI CHAMUNDEGOWDA
AGED ABOUT 62 YEARS
R/AT BELAVADI VILLAGE
YELAWALA HOBLI
MYSORE TALUK
PIN CODE-571 130.
...APPELLANT
(BY SRI. SHARATH S. GOWDA, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REP. BY ITS DEPUTY COMMISSIONER
D C OFFICE COMPLEX
KRISHNARAJA BOULEVARD ROAD
-6-
NC: 2024:KHC:3239
RSA No. 85 of 2021
C/W RSA No. 33 of 2021
RSA No. 55 of 2021
RSA No. 72 of 2021
K G KOPPAL
MYSURU-570001.
2. THE ASSISTANT COMMISSIONER
MYSURU REVENUE SUB-DIVISION
D C OFFICE COMPLEX
KRISHNARAJA BOULEVARD ROAD
K G KOPPAL, MYSURU-570 001.
3. THE TAHSILDAR
OFFICER OF THE TAHSILDAR
MINI VIDHANSOUDHA
NAZARBAD MOHALLA
MYSORE-570 010.
...RESPONDENTS
(BY SMT. AZRA J. DUNDGE, AGA)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 29.02.2020
PASSED IN R.A.No.47/2019 ON THE FILE OF THE VII
ADDITIONAL DISTRICT JUDGE, MYSURU, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 10.12.2018 PASSED IN O.S.No.326/2011 ON THE FILE
OF THE II ADDITIONAL SENIOR CIVIL JUDGE, MYSURU.
IN RSA NO.72/2021
BETWEEN:
SHIVALINGEGOWDA
S/O LATE CHAMUNDEGOWDA
AGED ABOUT 64 YEARS
R/AT BELAVADI VILLAGE
YELAWALA HOBLI
MYSURU TALUK-571130.
-7-
NC: 2024:KHC:3239
RSA No. 85 of 2021
C/W RSA No. 33 of 2021
RSA No. 55 of 2021
RSA No. 72 of 2021
...APPELLANT
(BY SRI. SHARATH S. GOWDA, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REP. BY ITS DEPUTY COMMISSIONER
D C OFFICE COMPLEX
KRISHNARAJA BOULEVARD ROAD
K G KOPPAL
MYSURU-570 001.
2. THE ASSISTANT COMMISSIONER
MYSURU REVENUE SUB-DIVISION
D C OFFICE COMPLEX
KRISHNARAJA BOULEVARD ROAD
K G KOPPAL
MYSURU-570001.
3. THE TAHSILDAR
OFFICER OF THE TAHSILDAR
MINI VIDHANASOUDHA
NAZARBAD MOHALLA
MYSORE-570010.
...RESPONDENTS
(BY SMT. AZRA J. DUNDGE, AGA)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 29.02.2020 PASSED IN
R.A.NO.48/2019 ON THE FILE OF THE VII ADDITIONAL
DISTRICT JUDGE, MYSURU DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 10.12.2018
PASSED IN O.S.NO.327/2011 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE, MYSURU.
-8-
NC: 2024:KHC:3239
RSA No. 85 of 2021
C/W RSA No. 33 of 2021
RSA No. 55 of 2021
RSA No. 72 of 2021
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals by plaintiffs aggrieved by Judgment and decrees of even date dated 10.12.2018 passed in O.S.Nos.325/2011, 328/2011, 326/2011 and 327/2011 on the file of II Additional Senior Civil Judge, Mysore (trial Court), dismissing the suit of the plaintiffs which were confirmed by the Judgment and orders of even date dated 29.02.2020 in R.A.Nos.49/2019, 46/2019, 47/2019 and 48/2011 on the file of VII Additional District Judge, Mysore (First Appellate Court).
2. Since all these appeals arise out of a common claim, common cause of action for common relief against common respondents they are taken up for analogous hearing and disposal.
-9-
NC: 2024:KHC:3239 RSA No. 85 of 2021 C/W RSA No. 33 of 2021 RSA No. 55 of 2021 RSA No. 72 of 2021
3. The above suits were filed by the respective plaintiffs for the relief of declaration of they having perfected title in respect of the schedule properties by way of adverse possession and consequential relief of permanent injunction restraining the defendants from interfering with their peaceful possession and enjoyment over the same and for the declaration that the mutation entries under reference No.99/2010-11 dated 29.03.2011 and RTC entry pertaining to land in Sy.No.218 is null and void and for relief of mandatory injunction to restore the entries.
4. It is the case of the plaintiffs that one late Chamundegowda was the kartha of the family and was an agriculturist. That he was in occupation of an extent of 8 acres 11 guntas of land in Sy.No.218 of Belavadi Village, Mysore Taluk carrying out agricultural activities. That he had made an application for grant of said properties under dharkasth. The respondent authorities had assured that
- 10 -
NC: 2024:KHC:3239 RSA No. 85 of 2021 C/W RSA No. 33 of 2021 RSA No. 55 of 2021 RSA No. 72 of 2021 the grant would be conferred on him. The respondent authorities had also collected revenue assessed on the said property and had even issued receipts and Patta book in his name. He was thus under the belief that the authorities would grant the land in his favour. He had raised Mango trees, Coconut trees, Tamarind trees, Neem and Nilgiri trees etc. He had also installed a borewell. However on 23.02.1972 the revenue authorities served an intimation on him alleging he had encroached upon the said land. Said Chamudegowda passed away in the year 1975. That upon his demise his sons continued the avocation of agriculture and were expecting issuance of grant certificate. That in view of discord amongst the family members, one of the sons of Chamundegowda namely Mahadevu had filed a suit in O.S.No.141/2000 against the plaintiffs and others in which a preliminary decree was passed. A final decree was also drawn.
- 11 -
NC: 2024:KHC:3239 RSA No. 85 of 2021 C/W RSA No. 33 of 2021 RSA No. 55 of 2021 RSA No. 72 of 2021
a) In the year 2008 plaintiffs and other members of the family of late Chamundegowda were requested by the revenue authorities to submit an application for the purpose of confirmation of rights in respect of the aforesaid land. Accordingly they made an application. However, during the first week of March, 2011 plaintiffs were informed that the defendant authorities were in the process of taking possession of the property from the plaintiffs. On enquiry plaintiffs learnt that the Regional Commissioner, Mysore in the proceedings in LRDCR 103/2009-10 had recorded and described the property as `Government Kharab Land' and had noted that the plaint schedule property along with other properties had been in unlawful possession of the lineal descendants of Chamundegowda and that the request made by the plaintiffs to confirm the grant was rejected. When the plaintiffs approached the authorities there was no favourable response.
- 12 -
NC: 2024:KHC:3239 RSA No. 85 of 2021 C/W RSA No. 33 of 2021 RSA No. 55 of 2021 RSA No. 72 of 2021
b) It is further contended that despite the above, plaintiffs continued to be in possession and enjoyment of the aforesaid property as before based on earlier possession and holding of Chamundegowda continuously from the year 1945-46. Thus, it is claimed that plaintiffs and other descendents of Chamundegowda have been in open, continuous assertive possession of the aforesaid property against the respondent-State from the year 1945-46 which is more than 30 years as required under law. That the State had not made any attempts to clear the encroachment. Thus, the plaintiffs have perfected their title by way of adverse possession and thus entitled to be declared as absolute owners of the schedule property. Hence, the suit.
5. Defendants 1 to 3 appeared. Defendant No.3 filed written statement on his behalf and also on behalf of defendants 1 and 2. It is contended that the so called kartha of the family had no right, title or interest over the
- 13 -
NC: 2024:KHC:3239 RSA No. 85 of 2021 C/W RSA No. 33 of 2021 RSA No. 55 of 2021 RSA No. 72 of 2021 entire extent of land measuring 8 acres 11 guntas. That his occupation was illegal and unauthorised. That he in collusion with some of the revenue officials had managed to get his name entered in the RTC records. The land is Kharab land and could not be granted under dharkasth or on temporary cultivation basis. Illegal occupation cannot be treated as Bagar Hukum. That there is no provision under the Land Revenue Act and Rules for grant of land under dharkasth. Even if it is to be made it can only be to the extent of 4.38 acres to one person in a family. That there is no record to show that Chamundegowda had filed any application seeking grant of land. The revenue authorities never assured grant of land to Chamundegowda. A survey was conducted upon the complaints received by revenue authorities and found that he was an encroacher of the Government land and was cultivating the same unauthorisedly. Thereafter plaintiffs filed application under Section 50 of the Karnataka Land Revenue Act before the Committee seeking regularization
- 14 -
NC: 2024:KHC:3239 RSA No. 85 of 2021 C/W RSA No. 33 of 2021 RSA No. 55 of 2021 RSA No. 72 of 2021 of unauthorised occupation in the year 1991. The said application was dismissed by the Committee on 15.07.1998. The land falls within 10 kilometers radius of city of Mysore and it was reserved for public purpose. The said order has attained finality. Thereafter on 29.08.2008 second son of Chamundegowda filed an application before the Principal Secretary to the Government seeking regularization and issuance of saguvali chit. Upon an enquiry in the matter it was found that no records were available as regards the hangami saguvali in the name of Chamundegowda. Report in this regard was submitted to the Government. On 15.06.2010 Government directed the Deputy Commissioner, Mysore to evict encroachers of 8 acres 11 guntas of land in Sy.No.218 of Belavadi Village and take possession thereof. Accordingly on 05.03.2011 District Administration evicted plaintiffs and assumed the actual physical possession of the schedule land which is now in the possession and control of the Government. On these and others grounds sought for dismissal of the suit.
- 15 -
NC: 2024:KHC:3239 RSA No. 85 of 2021 C/W RSA No. 33 of 2021 RSA No. 55 of 2021 RSA No. 72 of 2021
6. Based on the pleadings, trial Court framed following issues in all the above referred suits:
"1. Whether the plaintiff proves that, Sri. Chamundegowda occupied property in Sy.No.218 of Belavadi village measuring 8 acres 11 guntas and applied for Darkast and Khatha is recorded at Khatha No.37?
2. Whether the plaintiff proves that, he is in continuous declarative, assertive possession of suit schedule property and thereby she has perfected her title by way of adverse possession?
3. Whether the plaintiff proves that, the defendants are trying to dispossess her from the suit schedule property?
4. Whether the 3rd defendant proves that, the Government has already taken possession of the suit schedule property?
5. Whether the plaintiff is entitled for the relief of Declaration of his title and Permanent injunction?
6. What order or Decree?".
7. After recording of evidence of the respective parties and on appreciation of oral and documentary evidence, the trial Court answered issue No.1 partly in the affirmative, issue Nos.2, 3 and 5 in the negative and issue No.4 in the affirmative and consequently dismissed the
- 16 -
NC: 2024:KHC:3239 RSA No. 85 of 2021 C/W RSA No. 33 of 2021 RSA No. 55 of 2021 RSA No. 72 of 2021 suits by its Judgment and decree dated 10.12.2018. Being aggrieved by the same plaintiffs preferred regular appeals as referred to hereinabove before the first appellate Court. Considering the grounds urged, the first appellate Court framed the following points for its consideration in all the aforesaid regular appeals:
"1. Whether Appellants have urged valid grounds to permit them to adduce additional evidence as prayed in I.A.II?
2. Whether the appellants/plaintiffs proves that they are the owners and in possessions of suit schedule property and entitled for the relief of declaration and injunction as sought?
3. Whether appellants prove that the Trial Court was not justified in dismissing their suit?
4. Whether the interference of this Court is necessary?
5. What Order?".
8. On reappreciation of evidence, the first appellate Court dismissed the appeals confirming the Judgment and decree passed by the trial Court. Aggrieved by the same the plaintiffs are before this Court.
- 17 -
NC: 2024:KHC:3239 RSA No. 85 of 2021 C/W RSA No. 33 of 2021 RSA No. 55 of 2021 RSA No. 72 of 2021
9. Sri.Sharath S. Gowda, learned counsel appearing for the appellants reiterating the grounds urged in the memorandum of appeals submitted that the trial Court and first appellate Court failed to appreciate the case of the plaintiffs that they are in possession and enjoyment of the schedule property openly to the knowledge of respondent-State for more than 30 years and that no action has been initiated against the plaintiffs by the respondent authorities to take possession of the property within the said period of 30 years. He submits that plaintiffs produced adequate material evidence in support of their claim regarding their continued possession to the knowledge of the respondents which factor has not been appreciated. He submits that an intimation dated 23.02.1972 was issued by the revenue authorities claiming that Chamundegowda had encroached upon the subject property and thereafter till filing of the suit in the year 2011 no action has been taken by the respondents to take possession of the property. Thus, the time period of 30
- 18 -
NC: 2024:KHC:3239 RSA No. 85 of 2021 C/W RSA No. 33 of 2021 RSA No. 55 of 2021 RSA No. 72 of 2021 years ought to have been reckoned on and from 23.09.1972 as contemplated under Article 65 of the Limitation Act. Hence, he submits that substantial questions of law would arise for consideration in the matter.
10. Smt.Azra J. Dundge, learned Additional Government Advocate on the other hand submitted that the trial Court and first appellate Court have not only considered the contentions urged by the appellants but have also appreciated the fact that Chamundegowda himself had made an application seeking grant of land in his favour and after demise of said Chamundegowda his children also had filed application seeking regularization of their occupation. Therefore, she submits there is no question of consideration of claim of plaintiffs for relief of adverse possession and same has been rightly rejected by the trial Court and first appellate Court. She submits that no substantial question of law arises for consideration and sought for dismissal of the appeals.
- 19 -
NC: 2024:KHC:3239 RSA No. 85 of 2021 C/W RSA No. 33 of 2021 RSA No. 55 of 2021 RSA No. 72 of 2021
11. Heard and perused the records.
12. There is no dispute of the fact that Chamundegowda was in possession of 8 acres 11 guntas of land in Sy.No.218 and his possession has been admitted by the respondent authorities. However, it is contended that Chamundegowda was an encroacher and was in unauthorised occupation of the land. It is also the case of the plaintiffs that after issuance of notice by the revenue authorities in the year 1972 Chamundegowda had approached the authorities seeking grant of said land and that he was assured by the authorities that the land would be granted to him. The plaintiffs after the demise of Chamundegowda had apparently filed a suit for partition and had obtained the decree based on which they had also made an application for registration of their names in the revenue records which was rejected. An application has been made by the plaintiffs thereafter seeking regularization of unauthorised occupation which has also
- 20 -
NC: 2024:KHC:3239 RSA No. 85 of 2021 C/W RSA No. 33 of 2021 RSA No. 55 of 2021 RSA No. 72 of 2021 been dismissed by the authorities and there has been no challenge to the said order. Records also reveal that matter was pursued before the Principal Secretary to the Government by one of the sons of Chamundegowda seeking regularization of his possession and issuance of saguvali chit which is also dismissed by the respondents on 15.06.2010. Government thereafter had directed to evict the encroachers and take possession of the land. These aspects of the matter have not been disputed by the plaintiffs. The trial Court and first appellate Court on appreciation of these aspects of the matter and in the light of principles governing the claim of adverse possession particularly against the Government have come to the conclusion that plaintiffs have failed to prove and establish the ingredients of adverse possession. When Chamundegowda during his life time and the plaintiffs thereafter had filed applications after applications seeking regularization of their occupation which were rejected by the respondent authorities the question of plaintiffs
- 21 -
NC: 2024:KHC:3239 RSA No. 85 of 2021 C/W RSA No. 33 of 2021 RSA No. 55 of 2021 RSA No. 72 of 2021 continuing in possession of the subject land openly with hostile intention against the State would not arise. The trial Court and first appellate Court in the facts and circumstances of the matter have rightly dismissed the suit warranting no interference. No substantial question of law would arise for consideration in these appeals. Accordingly appeals are dismissed.
Notwithstanding the dismissal of the appeals, it is open for the plaintiffs to pursue such remedy seeking grant of land if available and permissible under law.
Sd/-
JUDGE SBN