Karnataka High Court
The Golden Valley Educational Trust vs The Vokkaligara Sangha on 25 September, 2013
Author: N.Kumar
Bench: N.Kumar
®
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 25TH DAY OF SEPTEMBER 2013
PRESENT:
THE HON'BLE MR.JUSTICE N.KUMAR
AND
THE HON'BLE MR.JUSTICE V.SURI APPA RAO
REGULAR FIRST APPEAL NO.1262 OF 2006
BETWEEN:
THE GOLDEN VALLEY
EDUCATIONAL TRUST OORGAM
KOLAR GOLD FIELDS
KOLAR DISTRICT
REPRESENTED BY ITS PRESIDENT ...APPELLANT
(By Sri B. K. SAMPATH KUMAR, ADVOCATE)
AND:
THE VOKKALIGARA SANGHA
K.R.ROAD, V.V.PURAM
BANGALORE-560004
REPRESENTED BY ITS SECRETARY ...RESPONDENT
(By Sri G. GANGI REDDY, ADVOCATE)
THIS RFA IS FILED U/S 96 OF CPC AGAINST THE
JUDGEMENT AND DECREE DT.18.3.2006 IN
O.S.NO.6106/1994 ON THE FILE OF THE VIII ADDL. CITY
CIVIL JUDGE, BANGALORE CITY, (CCH:15), DISMISSING
THE SUIT FOR DECLARATION, PERMANENT INJUNCTION
AND MANDATORY INJUNCTION.
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THIS RFA COMING ON FOR HEARING, THIS DAY,
N.KUMAR, J., DELIVERED THE FOLLOWING:
JUDGMENT
This is a plaintiff's appeal against the judgment and decree of the trial Court, which has dismissed the suit of the plaintiff for declaration, mandatory injunction and permanent injunction.
2. For the purpose of convenience, the parties are referred to as they are referred to in the suit. PLEADINGS
3. The subject matter of the suit is all that piece and parcel of the land bearing Sy.No.128 (old No.51) situated at Srigandhadakaval, Bangalore North Taluk to the extent of 11.23 acres which is more particularly described in the plaint as 'A' schedule property i.e., the first item. The second item is all that piece and parcel of the land in Sy.No.129 (old No.51) situates at Srigandhadakaval, Bangalore North Taluk to the extent of 15 acres, which is more particularly described in the schedule and referred to as schedule 'B' property.
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4. Plaintiff is a registered Trust running Educational Institutions. Their case is in order to expand the educational activities to rural areas, the plaintiff along with the defendant who are also similarly placed, approached the Government of Karnataka for grant of certain lands for the sole object of establishing Educational Institutions in rural areas. The Government of Karnataka was pleased to accord sanction to grant 25 acres of land out of the total extent of 47 acres 11 guntas available in Sy.No.51 of Srigandhadakaval, Bangalore North Taluk in favour of the plaintiff i.e., 10 acres at an upset price of Rs.300/- per acre and 15 acres on lease for a period of 30 years.
5. Similarly, the Government of Karnataka accorded sanction to grant the remaining extent available in Sy.No.51 to an extent of 20 acres to the defendant i.e., Vokkaligara Sangha i.e., 10 acres at an upset price of Rs.300/- per acre and 10 acres on lease for 30 years. The said Government order is dated 12.1.1967.
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6. The case of the plaintiff is that the plaintiff as well as the defendant have been in possession of the lands respectively which is granted by the Government. The names of the plaintiff and defendant have been jointly entered in the RTC and pahani showing the extent of land of 25 acres to the plaintiff and 20 acres of land to the defendant. The copies of the RTC and pahanis are produced. Later on, new survey numbers have been allotted to old Sy.No.51 as new Nos.128, 129 and 130 showing the lands of the respective grantees. The copies of the new survey numbers allotted to the parties are also produced. As per the new survey numbers, plaintiff's new Sy.No.128 refers to 11.23 acres of land, which is the 'A' schedule property (which includes 1.23 acres of phot karab). New Sy.No.129 refers to 15 acres which is the 'B' schedule property. Sy.No.130 refers to 10 acres of land which was sold to the defendant and the balance of 10 acres bears the old No.51, which belongs to the defendant. The defendant has put up some school, college and polytechnic buildings in the land granted to them. However, looking to their location, the plaintiff's feeling is that there may be some encroachment by the defendant into the land of the plaintiff due to the fact 5 that there was no marking based on the new survey numbers when the new survey numbers 128 and 129 were given. The plaintiff submits, based on new survey numbers corresponding RTC and pahani have been entered for the year 1993-94 in respect of the lands of the plaintiff in Sy.No.128 for 11.23 acres and in Sy.No.129 for 15 acres and copies of the latest RTC's are also produced. The plaintiff has spent huge amount for growing eucalyptus trees which have come to the reaping stage now. Recently, the defendant filed an appeal in R.A.128/1994 before the Assistant Commissioner, Bangalore Sub-division challenging the RTC entries and claiming ownership for the total extent of 47 acres 11 guntas in Sy.No.51 which includes the plaintiff's 25 acres of land. The next date of hearing in R.A. was 20.10.1994 and the plaintiff would suitably defend the said appeal. The plaintiff also filed a police complaint with the jurisdictional police. The defendant is creating hurdles to cut and remove the nilgiri trees for which the plaintiff is the owner and therefore, the suit is filed alleging that the cause of action in the suit arose on 16.8.1994 when the defendant filed an appeal in R.A.16/1994 before the Assistant Commissioner, Bangalore North Taluk and subsequently. 6 Initially the suit was for a decree of permanent injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the 'A' and 'B' schedule properties. Subsequently, the plaint was amended introducing paras 5A, 5B, 5C and 5D virtually reiterating the allegations made in the earlier plaint with slight elaborations and sought for a relief of declaration of title, for a mandatory injunction and after demolition, delivery of their possession.
7. The defendant has filed a detailed written statement traversing all the allegations in the plaint. Their case is, the activities of the plaintiff Trust is restricted only to KGF. They have no institutions of any sort in Bangalore except in KGF. Plaintiff was not at all an applicant for grant of the schedule property. The Government of Karnataka granted the land to the defendant-Sangha with the sole intention of helping the defendant which has enormous educational activities in and around Bangalore District. According to the Land Grant Rules, no grant can be made of more than 10 acres of land to any institution. In the said circumstances, with some understanding, the grant was made for two institutions i.e., for defendant and plaintiff. 7 After the grant was made, this defendant alone is in possession and enjoyment of the entire extent of land in Sy.No.51. The Chairman of the plaintiff-Trust Sri M V Krishnappa himself laid the foundation stone for the construction of High School building of defendant Sangha in the suit property. The said foundation stone with the name of Sri M V Krishnappa is still in existence in the building situated on the schedule property. The Chairman of the plaintiff-Trust has accepted the possession of the defendant. The said foundation was laid as far back as in the year 1974 ie., on 26.5.1974. If the grant of entire extent of land including the suit property was not extended to this defendant, the Chairman of the plaintiff-Trust would not have laid the foundation stone for building construction in the suit property. This fact of laying foundation stone for the building of the defendant-Sangha was also acknowledged by then Mayor of Bangalore City Corporation Sri T D Naganna who sent congratulatory message to the Secretary of defendant Sangha on 25.5.1974. The land revenue and tax was also paid by the defendant in respect of suit property from the year 1980 onwards. The RTC records of the suit property stands in the name of the defendant, which clearly 8 shows that the defendant is in possession of the suit property. The plaintiff was never in possession of the suit property nor they know where the suit property is actually situated. The suit property is completely in possession, control and in management of this defendant. During June 1994, the plaintiff made an application to the revenue authorities to change the RTC entries to the suit property from the name of the defendant to the name of the plaintiff. Without any notice to the defendant, the revenue authorities changed the entries that stood in the name of the defendant to the name of the plaintiff. Even Sy.No.51 which consists of 47.11 acres was bifurcated by way of Sy.No.51, 128, 129 and 130 without any notice to this defendant and behind the back of the defendant. The said entries and the action of the revenue authorities had been challenged by the defendant by filing an appeal before the Assistant Commissioner, Bangalore Sub-Division, Bangalore in R.A.128/1994-95. The Assistant Commissioner by his order dated 02.09.1994 has stayed the operation of the revenue entries made in favour of the plaintiff. The said case is pending. Up to June 1994, the defendant's name was there in all the revenue records and only in the month of June 1994, the old Sy.No.51 was 9 bifurcated and alleged Sy.Nos.128 and 129 was given to the plaintiff. The said order of the revenue authority has been stayed by the Assistant Commissioner as aforesaid. At no point of time, the plaintiff was in possession of the suit property. The earlier RTC entries in the name of defendant are produced. It is admitted that joint revenue entries were there in the RTC up to 1980 only. Thereafter, no joint entries were found in the revenue records and only the defendant's name was found in all the revenue records from 1980 up to June 1994. They have constructed high school building in the year 1975 itself and classes are being run upto S.S.L.C. from 1975 to this day. The defendant has put up building consisting of two floors in the suit property and the said building was Centre for S.S.L.C. examination for many years. The defendant has obtained license and permission to put up construction on the suit property from the then Village Panchayath. No survey of the land was conducted at any time in order to bifurcate the survey No.51 which is in peaceful possession of the defendant. The defendant has constructed another big building in the suit property next to the High School building. In the said building the defendant - Sangha is running Junior College, 10 First Grade College, Job Oriented course, Middle Schools and IT Course, for over several years. This building construction was started in the year 1981 for construction of basement, ground and first floor and it was completed in 1984. Now, the above courses are being run in the said building. The defendant has spent more than Rs.1.00 Crore for putting up building of 172 squares. Apart from that, the defendant has built the attenders quarters of 7.5 squares and also a building for ITI Course for about 35.75 squares. Thus, the construction of building worth of Crores had been put up by this defendant on the suit property and is in actual possession of the same from the past many years. The plaintiff has never objected to the said construction or objected to the possession of the defendant at any time in the past. No proceedings are lodged against such construction or possession of the suit property by the defendant. The plaintiff has not objected to even conducting of classes or running the courses in the suit property and the construction put up thereon by the defendant. The defendant is in actual possession and enjoyment of the entire suit property from time immemorial. The possession of the defendant was not at all disputed or objected to by the 11 plaintiff over many years. The Bangalore Development Authority issued a notification under Section 17 of the BDA Act for acquisition of the suit property on 31.12.1987. In the said notification also, the defendant's name was shown as having been in possession of property. This defendant approached the BDA and requested that many educational institutions have come up on the suit property and hence, the entire land should be deleted from the purview of the acquisition. On the request of the defendant, the BDA passed a Resolution, de-notifying the suit property from the acquisition. The BDA has acquired a portion of suit property for formation of ring road in Sy.No.51 and they have issued acquisition notice. They also agreed to grant compensation for acquisition of portion of suit property to this defendant. All these things clearly show that this defendant is in possession of the property. It is true that there are some Niligiri trees standing on the suit property. In fact, from the beginning the Niligiri trees were in the suit property, which was grown initially by the Government. The said trees were auctioned in public by the defendant. The amount realized in public auction of Niligiri trees on suit property was retained to the extent of 50% by this defendant and the remaining 12 50% of the amount was remitted to the Government as the Government had grown the trees. The defendant has spent large sums of money to grow the existing Niligiri trees on the suit property. It is false to state that defendant has encroached the land of the plaintiff from the date of grant. This defendant is in possession and enjoyment of the land in question. This defendant in its own right, has put up many building construction on the suit property. The present Chairman of the plaintiff is an Ex-Deputy Commissioner of the State Service and after the retirement he has influenced the Revenue Authorities to make wrong entries in favour of plaintiff in view of the fact that the suit lands have become more valuable in the recent years. The plaintiff with a view to knock off the valuable property of the defendant has concocted the documents behind the back of this defendant and has filed this suit. Therefore, there is no cause of action for the suit and accordingly, they state that the suit itself is not maintainable. Therefore, they sought for dismissal of the suit.
8. After amendment of the plaint, they also filed an additional written statement reiterating the very same 13 allegations. It was contended that the plaintiff cannot seek a declaration of title in respect of a land alleged to have been granted in his favour by the Government. Since the plaintiff is seeking declaration in respect of the land belonging to the Government, the Government is a necessary party to the suit. In the absence of the Government, the suit is bad for non-joinder of necessary parties. The plaintiff is also not entitled to the relief of mandatory injunction as the constructions are done in the year 1975. The defendant had spent huge sums of money for the construction of these buildings and having seen the construction work undertaken by the defendant and having allowed the defendant to construct these buildings at an enormous cost, it is not open for the plaintiff now to seek its demolition. The prayer of mandatory injunction is hopelessly barred by limitation. The relief of declaration is also hopelessly barred by limitation. The alleged grant in favour of the plaintiff is in the year 1967. The defendant came into possession of the lands alleged to have been granted in favour of the plaintiff immediately under the circumstances already narrated in the written statement. The construction of the buildings began in 1975 and has completed within a short span of 14 time thereafter. The relief of declaration is also barred by limitation. The plaintiff is also not specific as regards the prayer for possession. Regarding what portion of the land in Sy.No.128 it is seeking delivery of possession is not at all clear and is left as vague as possible. The schedule appended at the end of the plaint also does not tally with the description of the property in the plaint with regard to the exact measurement. Therefore, the defendant sought for dismissal of the appeal.
9. The Trial Court in the light of the aforesaid pleadings framed originally four issues on 25.08.1995 and subsequently framed another four issues on 04.09.2001 and subsequently, it also raised two more additional issues. They are as under:
ISSUES
1. Whether the Plaintiff trust has been in possession and enjoyment of the suit schedule A and B properties?
2. Whether the Defendants Sangha has been in possession and enjoyment of the entire extent of land in old Sy.No.51?15
3. Whether the plaintiff-Trust is entitled to permanent injunction?
4. What Order or decree?
ADDITIONAL ISSUES
1. Whether the plaintiff proves that Government of Mysore granted to him 10 acres of land in Sy.No.128 on long term lease of 30 years for educational purposes?
2. Whether the plaintiff proves that the defendant had encroached portion in Sy.No.128 and 129 as stated in plaint Para No.5(d)?
3. Whether the plaintiff is entitled to declaratory relief as prayed for?
4. Whether the plaintiff is entitled to mandatory injunction as sought?
ADDITIONAL ISSUES
1. Whether the suit is barred by Limitation?
2. Whether the suit is bad for non-joinder of necessary parties?
16EVIDENCE
10. The plaintiff in order to substantiate his claim examined one Sri.G.H.Sawkar as P.W.1 and also examined one Sri.Chandrashekar as P.W.2. They produced 16 documents, which are marked as Ex.P1 to Ex.P16. On behalf of the defendants, one Sri Guthala Gowda was examined as D.W.1 and Sri Deviprasad as D.W.2 and Sri C.Siddaramaiah as D.W.3. They also produced 27 documents, which are marked as Ex.D1 to Ex.D27. The Trial Court also appointed a Commissioner for local investigation. The Commissioner after issuing notice to both the parties conducted the spot inspection and has answered the memo of Instructions filed by the plaintiff as well as the defendant and has submitted a report on 05.10.1999. Both the parties have not filed any objections to the Commissioner's report. Therefore, the Commissioner's report is taken on record and looked into by the Trial Court as a piece of evidence. FINDINGS OF THE TRIAL COURT
11. We see from the judgment of the Trial Court that the learned Judge has not considered the issues in the manner it is framed. He has re-arranged the issues in the 17 judgment. After hearing the learned counsel for the parties and on appreciation of both oral and documentary evidence on record held the plaintiff has proved that the Government of Mysore granted to them 10 acres of land in Sy.No.128 and 15 acres of land in Sy.No.129 on long term lease of 30 years for educational purpose. It has recorded a categorical finding that from the oral and documentary evidence available on record that, it is evident that 'A' schedule property was granted at an upset price of Rs.300/- per acre and 'B' Schedule property was given on lease to the plaintiff- Trust for a period of 30 years. Therefore, the issue regarding title is answered in the affirmative and in favour of the plaintiff.
12. Further, the Trial Court held that the evidence clearly establishes that the defendant is in possession of the suit property from the year 1974 onwards. When such is the case, it cannot be said that the plaintiff was in possession of the suit property as on the date of the suit. The plaintiff has failed to prove that it was in possession of the suit property as on the date of the suit or earlier to it. Accordingly, the said issues were held against the plaintiff. It further held 18 that the defendant is in possession of the entire extent of land in Sy.No.51. When the plaintiff has not exercised his right or possession over the suit property ever since the date of grant, the contention of the plaintiff that the defendant has encroached a portion of the land in Sy.Nos. 128 and 129 is not acceptable. Insofar as the plea regarding limitation is concerned, the Trial Court held that the relevant Article applicable is Section 65 of the Limitation Act. After referring to various judgments relied on, it was held that since the defendant is in possession of the suit property for more than 20 years it has to be held that the possession of the defendant is far more than the prescribed period and hence, the possession of defendant has become adverse in the year 1974. From 1974, plaintiff ought to have filed the suit within 12 years. Plaintiff has not done so. In the circumstances, the suit of the plaintiff is barred by limitation. The Trial Court has held that the suit is not bad for non-joinder of Government. It was held that the defendant is in adverse possession of the suit property since 1974 and has perfected its title to the said property by adverse possession, the suit filed by the plaintiff is barred by limitation and as such, the plaintiff cannot be declared as 19 the owner of the suit property. Insofar as 'B' Schedule property is concerned, it was granted on lease for a period of 30 years from 12.01.1967. The said 30 years period has expired on 12.01.1997. The plaintiff does not have any manner of right in `B' schedule property. The plaintiff, by not paying the rents in spite of the demand, has not exercised its right over 'B' Schedule property and therefore, the plaintiff is not entitled to the relief of declaration of its title to the suit property. When defendant is in possession of the property and plaintiff is not in possession, the question of grant of decree for permanent injunction against the defendant would not arise. Insofar as the mandatory injunction is concerned as the plaintiff kept quiet without initiating any action against the defendant restraining it from putting up construction and allowed the defendant to construct buildings and run Educational Institutions for a period more than 20 years as on the date of the suit, the plaintiff is guilty of acquiescence and therefore, not entitled to the decree of mandatory injunction. Therefore, the suit of the plaintiff came to be dismissed. Aggrieved by the said judgment and decree of the Trial Court, the plaintiff is in appeal.
20ARGUMENTS IN APPEAL
13. Sri B. K. Sampat Kumar, learned counsel appearing for the appellant assailing the impugned judgment and decree of the Trial Court contended that the plaintiff and defendant were granted land by the Government under the very same order. The Trial Court after looking into the said Government Order has declared that the plaintiff is the owner of 'A' Schedule property and lessee in respect of 'B' Schedule Property. The defendant has not pleaded adverse possession. The evidence adduced on record does not establish that the possession of the defendant was adverse, at any point of time prior to the date of the suit. Without a plea and without evidence it has declared that the defendant has perfected its title to the property by adverse possession, a finding, which is not based on plea and evidence and therefore, liable to be set-aside. He further submitted that as the properties were not measured, boundaries fixed, phoding work was done when the defendant was putting up construction, the plaintiff did not realize that some constructions are put up in the 'B' Schedule property. It is only in the year 1994 when the survey was conducted, phoding work was done, the plaintiff realized that the 21 defendant has put up construction in the plaintiff's property. Immediately thereafter, suit is filed for mandatory injunction. Therefore, not only the suit is in time but the suit is filed immediately on coming to know of the said encroachment and construction. The Trial Court committed a serious error in refusing the said relief not only on the ground of bar of limitation, but also on the ground of delay and latches. He further submitted that admittedly, in `A' schedule property, as is clear from the Commissioner's Report, till today no constructions are put up. It is a vacant land. The constructions are put up only on the lease hold land, which is the 'B' Schedule property. The Trial Court has declared the plaintiff's title. As the land being vacant, possession follows title. When the defendant tried to encroach upon the property, the plaintiff not only filed a suit but also filed an application for order of temporary injunction, which was granted by the Trial Court after hearing both the parties. The said order was challenged by the defendant in Miscellaneous First Appeal No.171/1995, which was disposed of confirming the order of the Trial Court but directing the plaintiff not to put up any structures other than those, which has already been put up and also 22 directing the plaintiff not to interfere with the running of the College and Institutions established by the defendant. This clearly goes to show that in respect of the vacant land, plaintiff was in possession not only on the date of the suit, but also during the pendency of the proceedings. But unfortunately, the Trial Court without properly appreciating these undisputed facts, has recorded a finding that plaintiff is not in possession from the date of grant and on the date of suit and it is the defendant, who is in possession of the suit property, which is contrary to the legal evidence on record. Therefore, the plaintiff was entitled to a decree of permanent injunction. The suit for declaration having been filed in the year 1994, immediately after the defendant challenged the title of the plaintiff by filing an appeal before the Assistant Commissioner against the new numbers given to the old Sy.No.51 after survey and phoding and therefore, the suit filed is in time and is not barred by time. This is not a suit where the plaintiff is seeking recovery of possession based on title and therefore, Article 65 of the Limitation Act is not attracted and the learned Trial Judge proceeded to hold that in view of Article 65 of the Limitation Act, the suit is barred by time. Therefore, he submits that seen from any angle, the 23 judgment and decree of the Trial Court is unsustainable, requires to be set-aside and the suit of the plaintiff is to be decreed as prayed for.
14. Per contra, Sri G. Gangireddy, learned counsel appearing for the defendant supported the impugned order contending that though the grant was made by the Government in favour of the plaintiff and defendant jointly, in reality it was a grant only in favour of the defendant. From the date of grant, till today, it is the defendant, who is in possession of the entire property. The plaintiff never was put in possession of any portion of the land granted. In fact the plaintiff has not complied with the terms of the grant and therefore, the grant in his favour stood cancelled. When that being the case, the question of granting of declaration of title in favour of the plaintiff in respect of the plaint schedule property does not arise. The Commissioner's report, both oral and documentary evidence on record clearly establish that the plaintiff did not know the location of the schedule property. The plaintiff has not stepped into the schedule property. From the date of grant, it is only the defendant, who is in possession of the property. In fact the person, who 24 has been examined by the plaintiff is the Power of Attorney Holder, whose evidence is of no assistance in establishing the case of the plaintiff. Therefore, he submits that the finding recorded by the Trial Court that the plaintiff is not in possession and defendant is in possession of the entire property is valid and does not call for interference. Further he submitted that the defendant started putting up construction in the year 1974. In fact the evidence on record shows that Chairman of the plaintiff-Trust Mr.M.V.Krishnappa laid the foundation stone in the year 1974 for the construction of High School building of defendant Sangha in the suit property. The Chairman of the Plaintiff Trust has accepted the possession of the defendant. Therefore, if the property had been owned by the plaintiff, he would not have laid the foundation stone for construction. The said foundation stone was laid as far back as in the year 1974 and in installments constructions have been put up, Crores of Rupees have been invested in such constructions, Schools and Colleges are being run and the plaintiff has not moved its little finger to stop the construction and to question the construction and therefore, has acquiesced with the said construction and therefore, the plaintiff is not 25 entitled to decree of mandatory injunction as rightly held by the Trial Court. The cause of action for the suit arose in the year 1974. The suit is filed in the year 1994. The suit for declaration is to be filed within three years from the date of cause of action. Hence, the suit is barred by limitation. The plaintiff is not in possession, defendant is in possession. Even if the plaintiff is claiming possession on the basis of title, the suit ought to have been filed within twelve years from the date of dispossession or the possession of the defendant became adverse to the plaintiff and therefore, suit for possession is also barred by the law of limitation in view of Article 65 of the Limitation Act. Therefore, he submits that seen from any angle, the judgment and decree of the Trial Court cannot be found fault with. No case for interference is made for. Hence, he sought for dismissal of the appeal.
POINTS FOR CONSIDERATION
15. In the light of the aforesaid facts and rival contentions, the points that arise for our consideration in this appeal are as under:
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(1) Whether the plaintiff has established its title to 'A' & 'B' Schedule properties?
(2) Whether the plaintiff is entitled to a decree of Mandatory Injunction?
(3) Whether the plaintiff is in possession of the 'A' & 'B' Schedule property excluding the constructions, if any, made in the said land or Whether the defendant is in possession of the entire schedule property as contended by them?
(4) Whether the suit is barred by Law of Limitation?
(5) Whether the plaintiff is entitled to a decree of permanent injunction?.
POINT NO.1: RE: TITLE
16. The plaintiff in the plaint has specifically pleaded that the Government of Mysore in its order No.RD.53 GNA 64 dated 12.01.1967 granted 25 acres of land to the plaintiff and 20 acres of land to the defendant in Sy.No.51 of Srigandada Kaval, Magadi Main Road, Bangalore North Taluk. Out of 25 acres of land granted to the plaintiff, 10 acres was granted at an upset price of Rs.300/- per acre and 15 acres on long term lease of 30 years period. Similarly in the said Government order dated 12.01.1967, the Government granted to the defendant 10 acres on upset 27 price of Rs.300/- per acre and 10 acres of land on long term lease for a period of 30 years. The grant of these lands to the plaintiff and to the defendant is only for Educational purposes. Therefore, it is clear that the grant in favour of the plaintiff as well as in favour of the defendant was under
the very same Government order dated 12.01.1967 to the extent mentioned therein. It is also pleaded that Sy.No.51 measures in all 47 acres 11 guntas. Traversing these allegations in the plaint, in para No.2 of the written statement, it is pleaded that the Government of Karnataka granted the land to the defendant-Sangha with the sole intention of helping the defendant, which has enormous educational activities in and around Bangalore District.
According to the Land Grant Rules, no grant could be made to any Institution more than 10 acres of land. In the said circumstances, with some understanding, the grant was made for two institutions i.e., for defendant and plaintiff.
After the grant was made, the defendant alone is in possession and enjoyment of the entire extent of land in Sy.No.51. Therefore, it is clear that the Government order, under which the grant was made is not in dispute, which is marked in this case as Ex.P1. Both plaintiff and defendant 28 are claiming title to the property under the very same grant order. If the case of the defendant is to be accepted that according to the Land Grant Rules, no grant could be made to any Institutions, exceeding 10 acres of the land and therefore, with some understanding the grant was made for two Institutions then, the grant would be vitiated by mis-
representation and fraud, which disentitles both the plaintiff and defendant from claiming title to the said property.
However, the said plea has remained only as a plea and it is not substantiated by any evidence and therefore, much value cannot be attached to such a pleading. Therefore, we have to find out from the grant order as to which is the land granted to the plaintiff, which is the land granted to the defendant and whether plaint schedule property is the subject matter of grant in favour of the plaintiff. The following recital in Ex.P1 clinches the whole issue:
"Sanction is accorded to grant 25 acres of land out of the total extent of 47 acres 11 guntas of land available in Sy.No.51 of Srigandada Kaval in favour of Golden Valley Educational Trust, i.e., 10 acres at an upset price of Rs.300/- per acre for non-agricultural purposes, to put up buildings etc., and 15 acres on lease at a nominal rent 29 equal to the land revenue for a period of 30 years at the place marked 'A' in the sketch appended to local records.
Sanction is also accorded to grant 20 acres of land out of the remaining area i.e., 20 acres 11 guntas available in Survey No.51 of Srigandada Kaval in favour of Vokkaligara Sangha for the purpose of running Educational Institutions - 10 acres are granted at an upset price of 300 per acre and the remaining 10 acres on lease for a period of 30 years at a nominal rent equal to the Land Revenue at the place marked `B' in the revenue sketch appended to the local records..
17. Therefore, the recitals in the grant is clear, unambiguous and the properties, which were granted to the plaintiff and the defendant are clearly mentioned. Sy.No.51 measures 47 acres 11 guntas, out of which 25 acres was granted to the plaintiff, 20 acres was granted to the defendants and remaining 2 acres 11 guntas was not granted to any one. If the case of the defendant is to be believed that there was no bifurcation of the land, which is granted to them and both the parties also did not immediately take any steps to get the land bifurcated, boundaries fixed, phoding is done, it only means that both of 30 them were in joint possession of this extent of 45 acres. If the defendant is in possession of the entire extent of 45 acres, the plaintiff also would be in possession as a co-owner and the defendant's possession would be that of the plaintiff.
Therefore, their case that they are in exclusive possession and plaintiff is not in possession of any portion falls to the ground. The schedule property was granted to the plaintiff under the said Government order. D.W.1 Guthala Gowda was a Member of the defendant-Sangha, but later became the President of Vokkaligara Sangha as well as the General Secretary of the Defendant- Sangha in the year 1972, in his cross-examination has deposed as under:
"It is true to suggest that the said land was granted in favour of the plaintiff - Sangha and defendant-Sangha. It is also true to suggest that the Government has granted land to defendant Sangha 10 acres on upset price and another 10 acres for lease for a period of 30 years. It is also true to suggest that the Government has granted land in favour of plaintiff Sangha 25 acres of land. Out of that 10 acres on upset price basis and 15 acres on lease basis for a period of 30 years. It is also true to suggest that the ownership of lands lies with the Government. It 31 is true to suggest that the Government imposed some conditions on the said land."
18. Thus Ex.P1 coupled with the admission in the written statement and the evidence of D.W.1 in the cross- examination clearly establishes the plaintiff's title to the plaint schedule property. That is why the Trial Court has rightly declared that the plaintiff has proved his title to 'A' and 'B" Schedule property. The said finding being based on the admission of the defendant in the written statement as well as the evidence from the order of grant as per Ex.P1, it cannot be found fault with. Therefore, we affirm the finding recorded by the Trial Court that the plaintiff has established his title to 10 acres of land in Sy.No.51 of Srigandada Kaval and 15 acres of leasehold rights in its favour.
19. However, the plaintiff is claiming title to 10 acres of land in Sy.No.128 and leasehold rights in respect of 15 acres of land in Sy.No.129 which were earlier part of Sy.No.51 of the Srigandada Kaval Village. The evidence on record shows that the grant was made as per Ex.P1 on 12th January 1967. The plaintiff was granted 25 acres of land, 32 defendant was granted 20 acres of land out of 47 acres 11 guntas in Sy.No.51. It is also not in dispute that mutation entries were made in the name of both the plaintiff and defendant from the date of grant till 18.02.1983. It is from 1983-84 onwards, the plaintiff's name is deleted and only the defendants name is shown in respect of the entire extent of land in Sy.No.51. The evidence of P.W.1, the Principal of one of the Colleges run by the plaintiff, who was also one of the Trustees to the plaintiff-Trust shows that the plaintiff approached the Revenue/Survey Authorities for bifurcation of their property. After survey, the Director of Survey, Settlement and Land Records bifurcated the said Sy.No.51 into Sy.Nos.128, 129 and 130 and Sy.No.51 was also retained. The mutation entries were also made in respect of the schedule property in favour of the plaintiff and in respect of the remaining extent of land, in favour of the defendant. The defendant has challenged the said entries by preferring an appeal in R.A.128/1994-95 before the Assistant Commissioner, Bangalore North Taluk. The said appeal was allowed on 11.10.1996. During the pendency of this appeal, a copy of the said order was produced by the defendant by filing an application under Order 41 Rule 27 of the Code of 33 Civil Procedure for permission to adduce evidence. As in the plaint itself, the plaintiff has referred to the filing of the appeal and now that during the pendency of the suit, the said appeal was allowed, it is necessary to allow the application for additional evidence in order to look into the said order which would have a bearing in deciding the case on merits. Hence, the application for additional evidence was allowed. The said order of the Assistant Commissioner allowing the appeal was taken on record. A perusal of the order shows that the Assistant Commissioner has set out in detail the rival contention elaborately but he has not considered any one of them. Absolutely, there is no discussion, but in the operative portion of the order, all that has been said is the case is remanded to the Tahsildar to pass an order on merits. The said order discloses it was an appeal filed under Section 136 of the Karnataka Land Revenue Act of 1964 i.e., mutating the name of the plaintiff in respect of old Sy.No.51 and new Sy.no.128 and 129. The main ground urged was, the mutation entry has been made behind the back of the defendant without hearing them as their name was there in the RTC before the change was effected. Without assigning any reasons, the Assistant 34 Commissioner has passed the order remanding the matter back to the Tahsildar for fresh consideration. That was an appeal preferred against an order made under sub-section (4) of Section 4 or an entry specified under sub-section (6) of Section 129. Section 129 deals with the registering of mutation and register of disputed cases. Therefore, it is clear, the subject matter of the said proceedings was in respect of mutating the name of the plaintiff in respect of Sy.Nos.128 & 129. The fact that Sy.No.51 was surveyed and the Director of Land Survey, Settlement and Land Records has passed an order directing bifurcation of Sy.No.51 into Sy.Nos.128, 129 130 and 51, is not challenged. In fact, when a Commissioner came to be appointed by the Trial Court, both the parties filed memo of instructions. The Commissioner visited the spot. During local investigation, the defendant filed an additional memo of instructions on 10.07.1997 to the following effect:
"The undersigned prays that the Commissioner, with the help of the Surveyor, is to locate the boundaries of Sy.Nos.128, 129, 130 and Sy.No.51 and extent and fix the boundaries according to the Survey Map".
35
20. Before the Commissioner, the learned Advocate appearing for the plaintiff as well as the defendant have expressed their opinion that the above additional memo of instructions have to be attended first, so that all the points will be covered, if all the survey numbers are bifurcated and boundaries are fixed. Accordingly, the fixation of boundaries and also laying of stones, writing of letters to identify the boundaries of each survey number with the help of marked stones as per the map brought by the Surveyor from the Survey Department was done. The identification and fixing of boundaries in Sy.No.128 were taken up and the rough sketch and boundaries measurements were also detailed in the Commissioner's Report. It is as under:
SKETCH SURVEY NO.128 A to B is 265 feet A to D is 1.254 feet D to E is 1,085 feet E to F is 231 feet C to F is 1, 093 feet D to C is 224 feet Nagarbhavi Main Road is a 100 Feet Road, Cross Road is 40 feet Road, Rest of the area covered with Eucalyptus trees.
36
SKETCH
SURVEY NO.129
A to D is 1,254 feet
D to E is 1,085 feet
E to G is 274 feet
G to H is 627 feet
H to I is 330 feet
I to A is 161 feet
SKETCH
SURVEY NO.130
NORTH BY PROPERTY NO.129
G to M is 16.6. feet
I to J is 435 feet
J to K is 155 feet
K to L is 462 feet
L to M is 680 feet
M to H is 610 ½ feet
SKETCH
SURVEY NO.51
G to M is 16.6. feet
G to E is 274 feet
E to N is 474 feet
N to O is 280 feet
O to P is 450 feet
P to Q is 930 feet
Q to L is 276 feet
21. The Commissioner has also observed that old Sy.No.51 is bifurcated into four survey numbers, viz., 128, 129, 130 and 51 and all the survey numbers are identified, bifurcated with stone markings and each survey number is already enclosed with rough sketch and measurements.37
22. PW-1 has also spoken about the bifurcation of Sy.No.51 and carving out Sy.Nos.128, 129 and 130.
23. We have perused the evidence of PW-2 who is a Civil Contractor of the Plaintiff Trust who has deposed that the Department has bifurcated the Sy.No.51 into four parts assigning new numbers, Sy.No.128, 129 and 130 during the process of resumption of these survey numbers. The defendants land measuring 10 acres is retained in Sy.No.51 and 10 acres which was granted at an Upset Price is renumbered as Sy.No.130. The plaintiff's land which was bifurcated from Sy.No.51 is assigned new Sy.Nos.as 128, for 10 acres of land granted at an Upset Price, and Sy.No.129 for 15 acres of land granted on lease. On and from the date of re-assignment of new survey numbers, the old Sy.No.51 lost its validity for the entire extent of land measuring 47 acres 11 guntas and Sy.No.51 restricted to only 10 acres of land. The RTC for 10 acres of land in Sy.No.51 could be written in the name of defendant's Sangha and not to the entire extent of 47 acres 11 guntas.38
24. DW-3, the Founder Head Master of the High School run by the Defendant, in his examination-in-chief has stated that according to the records, the old Sy.No.51 was for the entire area. Recently, during the year December 1994, they came to know that the said survey number is bifurcated and divided into four parts. They are Sy.No.128, 129, 130 and 51. The new building and servants quarters are situated in Sy.No.129.
25. DW-1, the President and the Secretary of the Defendant Sangha in cross-examination has deposed that, according to the Written Statement Para No.9, it is mentioned that as there is no bifurcation of Sy.No.128 and 129, he does not know whether the said survey numbers are bifurcated or not? He has denied the suggestion that the Defendant Sangha has obstructed the peaceful possession of the Plaintiff Sangha. He also has deposed that he came to know the bifurcation of the suit schedule property into four parts in the year 1994. The same was done by the Land Survey Department. He did not enquire which portion was allotted to the Defendant Sangha. He is not aware whether the Plaintiff Sangha owns Sy.No.128 and 129 based on the 39 grant records. He also does not know whether the RTC is based on the grant order. The Polytechnic building belonging to the Defendant Sangha and other building of the Defendant Sangha are situated in Sy.No.129. He cannot say whether the buildings are situated in Sy.No.130. He cannot say exactly whether in Sy.No.128 buildings are situated or not?
26. From this evidence on record, it is clear that in the year 1994, the Survey Authorities effected bifurcation of Sy.No.51 and gave new Sy.Nos.128, 129 and 130, retaining Sy.No.51 for the plaintiff. They have no grievance in so far as bifurcation is concerned. The grievance is that, after bifurcation, mutation entries have been made in the name of the plaintiff in respect of Sy.Nos.128 and 129 behind their back as their name was there earlier which has not been deleted. The factum of bifurcation of Sy.No.51, assigning new survey numbers by the Survey Department in the year 1994 is not in dispute. The land granted to the plaintiff is now renumbered as Sy.No.128 and 129. Thus the plaintiff has established his title to 'A' and 'B' schedule property.40
POINT NO.2: MANDATORY INJUNCTION
27. Now, the question is in the plaint schedule property, i.e., Sy.Nos.128 & 129 whether defendants have put up any construction and if so, whether a decree for mandatory injunction could be granted for demolishing the said buildings and restoring possession of the said lands to the appellant. Both the parties rely on the Commissioner's report. In Sy.No.128, the Commissioner has stated there is [a] watchman shed measuring East to West 50 feet, North to South 30 feet with A.C. sheet roof belonging to Vokkaligara Sangha; [b] a pump house with bore well measuring 10 feet X 10 feet belonging to Vokkaligara Sangha; [c] Nagarabhavi Main Road; [d] Golden Valley Shed measuring East to West 15 feet and North to South 29 feet; [e] two name boards of Golden Valley Educational Trust. The remaining land is covered with eucalyptus trees. The Commissioner was called upon to find out whether there was any construction and to whom the said construction belongs. The said matter is to be decided by the Court. Therefore, the report stating that the said buildings belongs to Vokkaligara Sangha or belonging to Golden Valley Educational Trust is to be excluded from the said Report and it is for the Court to 41 decide to whom the said buildings really belong. But, from the aforesaid undisputed material, it is clear, in an area of 10 acres land, i.e., Sy.No.128 which was granted to the plaintiff for an Upset Price except small constructions like watchman shed, pump house, the rest of the land is covered with eucalyptus trees. Therefore, the contention that the defendant is in exclusive possession of the property is not substantiated nor there is any construction of Schools and Colleges constructed therein. However, in Sy.No.129, the Commissioner's Report sets out the constructions which are in existence. This is the area where the Junior College, Middle School, High School, Degree College building, Two Sports Grounds, One Pump House, Open toilets retaining walls, One shed, One Cycle Stand are all constructed, i.e., in the 'B' Schedule property.
28. In the written statement, the defendant has specifically pleaded that the Chairman of the Plaintiff - Trust, viz., Sri.M.V.Krishnappa, himself laid the foundation stone for the construction of High School building of Defendant - Sangha in the suit property. The said foundation stone with the name of Sri.M.V.Krishnappa is 42 still in existence in the building situated on the schedule property. The Chairman of the Plaintiff Trust has accepted the possession of the defendant. The said foundation was laid as far back as in the year 1974, i.e., on 26.05.1974.
29. PW-1 in his evidence has attempted to give an explanation. He has deposed that Late M.V.Krishnappa was their Founder Chairman. He was also a Member of Parliament. He had presided over a function conducted by the defendant in connection with the laying of a foundation stone for construction of a school building. He had presided over the said function of the defendant under the impression that the proposed construction of the school building was in the lands granted in favour of the defendant. There is no such record that they were with the defendant. He has further deposed that the buildings are located on the eastern and northern side of Nagarabhavi road. Those buildings are constructed by the defendant. He does not know how many buildings are constructed. He does not know, when those buildings were constructed. About 12 years back, he saw those buildings. He does not know if all the buildings were simultaneously constructed or they were constructed in a 43 phased manner. It may be that late M.V.Krishnappa, then a Parliament member laid foundation stone for building. He do not know if the foundation stone showing the name of late M.V.Krishnappa and date of laying the foundation stone and is still existing in the building was within the knowledge of late M.V.Krishnappa. He has denied the suggestion that late M.V.Krishnappa after giving the suit schedule property to the defendant laid the foundation stone. He also denies the suggestion that even after the suit schedule property was handed over to the defendant by late M.V.Krishnappa, the plaintiff and its trustees kept quiet without any demur for more than 25 years. The defendant has constructed the High School building, Junior College Building and ITI Building. He has not seen the servant's quarters and office building. He do not know in the said premises, the Assistant Engineers and Junior Engineers reside. There are stone buildings in the defendant's property.
30. PW-2 also has deposed that late Sri.M.V.Krishnappa being a Parliamentarian, laid the foundation stone for construction of school building of 44 Defendant's Sangha on its property, but not on the plaintiff's trust land granted by the Government in Sy.No.51.
31. DW-1 has also deposed that they have started the High School and 1,500 students are studying. They are also running the Junior College in the suit schedule property. There are two separate buildings for High School and College. There is also ITI building and servants quarters in the suit schedule property. The defendant Vokkaligara Sangha College buildings faces newly formed BDA Road. In Sy.No.129, the first building is College building and then servants quarters. The defendant Vokkaligara Sangha ITI Building is situated in Sy.No.51. The Polytechnic building belonging to the Defendant Sangha and other buildings belonging to the Defendant Sangha are situated in Sy.No.129. He cannot say whether the buildings are situated in Sy.No.130. He cannot say exactly in Sy.No.128 whether any buildings are situated or not?
32. The aforesaid evidence on record clearly establishes that the plaintiff has not put up any constructions. It is the defendants who have put up those 45 constructions and the commencement of construction was in the year 1974 and the construction has been done in stages. Now, the Commissioner's report which is not in dispute shows the said constructions are in Sy.No.129 and the evidence on record shows roughly those constructions are situated in an area of about 03 acres. In the remaining extent of 12 acres, the leased portion continuous to be vacant. It is quite possible that as both the plaintiffs and defendants were granted land under the same order of the Government and there was no proper bifurcation of the land granted to them and that both of them had applied together and they were in good terms, those constructions are put up by the defendant on the assumption that it is in their land. The fact that the Plaintiff's President was a Member of the Parliament laid the foundation stone in the year 1974 only show that there was absolutely no dispute or no conflict of interest as on that date. Probably, it is only in the year 1994 that the plaintiff applied for bifurcation and phoding of the land they realized that some of these constructions put up by the defendant are in 'B' schedule property, i.e., in Sy.No.129. When after bifurcation also, the defendant tried to put up constructions, it was objected to. Probably, that is 46 the point of difference of opinion between the plaintiff and the defendant. The defendants challenged the mutation entries by filing an appeal and when the defendants attempted to encroach upon the property after bifurcation, the plaintiff filed a suit approaching the City Civil Court for bare injunction and subsequently, after realizing that some of those constructions are put up in their land, the plaint was amended to seek declaration of title and for mandatory injunction.
33. Now, the question is, at this length of time, after holding that the 'B' schedule property was leased to the plaintiff by the Government, can the Court issue an order of mandatory injunction to demolish the construction put up by the defendant with consent or on account of confusion for want of bifurcatison.
34. In this context it is necessary to notice the law on the point.
JOHN GEORGE WOODROFFE, in his TAGORE LAW LECTURES on the Law relating to Injunctions, 6th Edn., speaking about the issue of mandatory injunctions, adds: 47
".... It seems, however, in this country (India) that, subject to the provisions of S.57 of the Specific Relief Act, the principles governing the grant of Injunctions are the same, whether the acts sought to be restrained are a breach of contract or a tort. In both cases there must be no acquiescence and damages must not be a sufficient remedy, and the restoration of things to their former condition must be the only relief which will meet the requirements of the case. Where there is one definite thing to be done about which there can be no doubt the Court will grant a mandatory Injunction. There is no real distinction as to the conditions under which mandatory and other Injunctions are granted. Prompt action is essential if a mandatory Injunction is the desired remedy. Where a plaintiff has not brought his suit or applied for an Injunction at the earliest opportunity, but has waited till the act complained of by him has been completed, and then asks for a mandatory Injunction, such an Injunction will not in general be granted. (Ulagappan Ambalam v.
Chidambaram Chetty, 29 Mad. 497 (1906); Ravuru Punnamma v. Lakkaraju Venkatasubba Rao, AIR 1953 Mad. 456). The Court will seldom interfere to pull down a building which has been erected without complaint, Benode Coomaree Dosee v. Soudaminey Dossee, 16 Cal. 252) and 48 unless very serious damage would otherwise result will not order a building already finished to be pulled down.
But in a more recent Madras case it was held that a landlord should not have a mandatory Injunction for demolition of a building unless he has not only objected to such building but has also taken legal steps to prevent it. (29 Mad.
497)..."
35. The House of Lords, in REDLAND BRICKS LTD., v. MORRIS [1970 AC 662 (HL)], had an occasion to consider the general principles on which mandatory injunction is issued. Lord Upjohn, discussing the aspect at page 665 of the reported case and recalling the general principles, has observed:
"... The grant of a mandatory injunction is, of course, entirely discretionary and unlike a negative injunction can never be 'as of course'. Every case must depend essentially upon its own particular circumstances. Any general principles for its application can only be laid down in the most general terms:49
1. A mandatory injunction can only be granted where the plaintiff shows a very strong probability upon the facts that grave damage will accrue to him in the future. As Lord Dunedin said in 1919 it is not sufficient to say 'timeo' (Attorney-
General for the Dominion of Canada v. Ritchie Contracting Supply Co., (1919) AC 999, 1005 PC). It is a jurisdiction to be exercised sparingly and with caution but in the proper case unhesitatingly.
2. Damages will not be a sufficient or adequate remedy if such damage does happen. This is only the application of a general principle of equity, it has nothing to do with Lord Cairos' Act or Shelfer's case (1895) 1 Ch. 287.
3. Unlike the case where a negative injunction is granted to prevent the continuance of recurrence of a wrongful act, the question of the cost to the defendant to do works to prevent or lessen the likelihood of a future apprehended wrong must be an element to be taken into account;
(a) Where the defendant has acted without regard to his neighbour's rights or has tried to steal a march on him or has tried to evade the jurisdiction of the Court or, to sum it up, has acted wantonly and quite 50 unreasonably in relation to his neighbour, he may be ordered to repair his wanton and unreasonable acts by doing positive work to restore the status quo even if the expense to him is out of all proportion to the advantage thereby accruing to the plaintiff. As illustrative of this, see Woodhouse v.
Newry Navigation Co., (1898) 1 IR 161;
(b) but where the defendant has acted reasonably though in the event wrongly, the cost of remedying by positive action his earlier activities is most important for two reasons. First, because no legal wrong has yet occurred (for which he has not been recompensed at law and in equity) and, in spite of gloomy expert opinion, may never occur or possibly only upon a much smaller scale than anticipated. Secondly, because if ultimately heavy damage does occur the plaintiff is in no way prejudiced for he has his action at law and all his consequential remedies in equity. * * *
4. If in the exercise of its discretion the Court decided that it is a proper case to grant a mandatory injunction, then the Court must be careful to see that the defendant knows exactly in fact what he has to do and this means not as a 51 matter of law but as a matter of fact, so that in carrying out an order he can give his contractors the proper instructions."
36. This Court, speaking in this aspect, in the case of MIRZA SATTAR BAIG V. TAJUDDIN (1964 MYS. LJ SUPP. 879), has observed thus:
"The issuance of a mandatory injunction is discretionary and rests entirely in the discretion of the Court. It is not in every case that the plaintiff who complains against an injury caused to his property by the defendant can obtain a decree for mandatory injunction. Before the plaintiff could claim such mandatory injunction, he should establish that he did not stand by and allow the injury to be caused to him. If the evidence discloses that the plaintiff did make it possible to the defendant to cause that injury such as unauthorized construction and never took any step such as the institution of a suit and an application for injunction restraining the defendant when such unauthorised construction was in progress and comes to the Court with his suit only after such unauthorised construction was completed, the case would not be one for a mandatory injunction but only for damages."52
37. A Bench of the Patna High Court in the case of DR. ABDUL KHAIR V. MISS SHEILLA MYRTLA JAMES, (AIR 1957 PAT 308) has held as under:-
"Generally speaking if a party having an interest to prevent an act being done, has full notice of its having been done, and acquiesces in it, so as to induce a reasonable belief that he consents to it, and the position of others is altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice than he would have had if it had been done by his previous license. An estoppel does not itself give a cause of action, it prevents a person from denying a certain state of affairs. The plaintiff and defendants were neighboring plot owners. In constructing their house the defendants made encroachment on Plaintiff's land. None of the parties knew their respective rights in regard to the encroached land, and both were labouring under some sort of mistake about their respective right in the said land. Only when the defendants' construction had progressed for several months, and when a boundary dispute cropped up between the parties, and when the plaintiff measured the land that he learnt that the portion an which the defendants. were constructing the building belonged to him, and immediately 53 thereafter he brought a suit for possession". In that case it has been held that no building equity has arisen in favour of the defendants, nor any equitable rights have sprung up in their favour, which can prevent the plaintiff, in the circumstances of the case, to claim possession by demolition of the building on the encroached portion of his land.
38. The Rajasthan High Court in the case of CHHAGANLAL V. KESARLAL [AIR 1959 RAJ. 97], it is held as under:-
"if one of the joint owners makes a construction over a common property, which is incapable of partition, the proper remedy to be given to the other co-owner is the mandatory injunction for restoration of the joint property to its original condition by the demolition of the new construction."
39. The Rajasthan High Court in the case of MOOLCHAND V. CHHOGA [AIR 1963 Raj. 25], it is held as under:-
"a mandatory injunction is a discretionary relief and delay is a factor which has to be taken into 54 account while granting it, where a case for grant of this relief is otherwise made out and that such delay, however to be a disqualifying circumstance, must amount to waiver or abandonment of the rights sought to be enforced or acquiescence in the act complained of or laches, after the act is done."
40. A Division Bench of the Madras High Court in the case of ASSOCIATED CEMENT COMPANIES, LTD. V. L. S. RAMAKRISHNA GOUNDER (AIR 1965 Mad 318) has held as under:-
"The respondent did not perhaps know at that time that he was trespassing upon Government property, There was every reason for it. Nearly five years after the buildings were put up, the appellant sent a notice to the respondent complaining that in putting up the buildings the latter had trespassed into a portion of the property leased out to them by the Government. The respondent contested the title of the appellant to that extent of property. The former then instituted a suit out of which this appeal arises in 1958 for recovery of possession of 79 cents of land which had been occupied by the respondent and for a mandatory injunction directing him to remove the superstructure put up thereon. Both 55 the Courts below found that the appellant had title to the property and they accordingly passed a decree for possession. The learned appellate Judge, however, realized that the appellant could have discovered the encroachment even at the time of construction of the building by the respondent, But he was of the view that having regard to the nature of the land and the circumstances under which the encroachment was noticed, the appellant could not be held to have acquiesced in the action of the defendants in putting up the buildings. One can easily see from the judgment of the lower appellate Court that but for the indifferent attitude adopted by the appellants the respondents could not have been encouraged to put up the buildings.
It is not pretended that the appellant was not aware of the buildings coming up Notwithstanding the view expressed by the appellate Judge, one can easily see that there must have been some kind of acquiescence on the part of the appellant while the respondent was putting up his buildings. The respondent feeling aggrieved by the judgment of the lower appellate Court filed a second appeal to this Court. Veeraswami, J., while affirming the title of the appellant to 79 cents of land held that in the circumstances, it would be unjust to pass a 56 decree for possession of the property. The learned Judge accepted the finding of the lower Court that the appellants could, if they had eared, have found out in time that the respondent was trying to encroach upon their property and when they permitted the latter to complete their construction, it was evident that they were acquiescing in the act of the respondent. He, therefore, considered that this was not a case for directing delivery of possession. Inasmuch as there was a prayer in the plaint for the grant of equitable relief by way of mandatory injunction, the learned Judge held that it would be competent for the Court to substitute in the place of the relief sought a decree for compensation, It will be clear from what we have stated above, that although an owner of property will have undoubted right to recover possession of it from a trespasser albeit that the latter had put up a construction upon it, an exception does exist to such a rule when the owner is precluded by any conduct on his part from claiming possession. That is not really denying the owner his right to recover possession from the trespasser but a rule of estoppel which prevents the owner from claiming the property to be his so far as the other side is concerned,"57
41. The Rajasthan High Court in the case of NARAINDAS V. ATMARAM [AIR 1974 RAJ. 144.] it is held that, a suit for mandatory injunction brought only after defendant constructed a pucca gate, was not maintainable.
42. The Allahabad High Court in the case of PRABHOO V. DOODHNATH (AIR 1978 ALL. 178), it is observed thus:
"One co-owner has not in law any right to appropriate land to himself out of joint land against the consent of his co-owners. High handed action by one co-owner cannot be encouraged by Courts of law. Unless some special equity is shown in favour of the defendant in a suit for demolition of constructions, which are in the process of being made by him without the consent of the co-owners, a decree for demolition should not be refused especially when the co- owners have come to Court at the earliest. One of the tests to determine whether a mandatory injunction should or should not be granted is whether the plaintiffs, who objected to the constructions being made by a co-owner on a joint land, did so at the earliest or waited till the constructions had been completed. In the first case injunction would normally be issued, 58 whereas if the constructions had been allowed to be completed, an injunction would normally be refused, as the basis for refusing injunction would be that by their conduct in not objecting at the earliest stage, the joint co-owners had induced the maker of constructions to believe that he could make it, and in doing so spent money and effort."
43. From the aforesaid decisions, the law in respect of mandatory injunction could be summarized as under:-
The grant of a mandatory injunction is, of course, entirely discretionary and unlike a negative injunction can never be 'as of course'. A mandatory injunction can only be granted where the plaintiff shows a very strong probability upon the facts that grave damage will accrue to him in the future. It is a jurisdiction to be exercised sparingly and with caution but in the proper case unhesitatingly. Where the defendant has acted without regard to his neighbour's rights or has tried to steal a march on him or has tried to evade the jurisdiction of the Court or, to sum it up, has acted wantonly and quite unreasonably in relation to his neighbour, he may be ordered to repair his 59 wanton and unreasonable acts by doing positive work to restore the status quo even if the expense to him is out of all proportion to the advantage thereby accruing to the plaintiff.
The principles governing the grant of Injunctions are the same, whether the acts sought to be restrained are a breach of contract or a tort. In both cases there must be no acquiescence and damages must not be a sufficient remedy, and the restoration of things to their former condition must be the only relief which will meet the requirements of the case. Prompt action is essential if a mandatory Injunction is the desired remedy. Where a plaintiff has not brought his suit or applied for an Injunction at the earliest opportunity, but has waited till the act complained of by him has been completed, and then asks for a mandatory Injunction, such an Injunction will not in general be granted. The Court will seldom interfere to pull down a building which has been erected without complaint. A landlord should not have a mandatory Injunction for demolition of a building unless he has not only objected to such building but has also taken legal steps to prevent it. But where the defendant has acted reasonably though in the event wrongly, the cost of remedying by positive action his earlier activities is most 60 important for two reasons. Firstly, because no legal wrong has yet occurred (for which he has not been recompensed at law and in equity) and, in spite of gloomy expert opinion, may never occur or possibly only upon a much smaller scale than anticipated. Secondly, because if ultimately heavy damage does occur the plaintiff is in no way prejudiced for he has his action at law and all his consequential remedies in equity. The Court in the exercise of its discretion will be guided by consideration of justice, equity and good conscience and that it is not possible for the Court to lay down inflexible rule as to the circumstances in which the relief for demolition and injunction should be granted or refused. A mandatory injunction is a discretionary relief and delay is a factor which has to be taken into account while granting it, where a case for grant of this relief is otherwise made out and that such delay, however to be a disqualifying circumstance, must amount to waiver or abandonment of the rights sought to be enforced or acquiescence in the act complained of or laches, after the act is done. One of the tests to determine whether a mandatory injunction should or should not be granted is whether the plaintiffs, who objected to the constructions being made by a co-owner on a joint 61 land, did so at the earliest or waited till the constructions had been completed. In the first case injunction would normally be issued, whereas if the constructions had been allowed to be completed, an injunction would normally be refused, as the basis for refusing injunction would be that by their conduct in not objecting at the earliest stage, the joint co-owners had induced the maker of constructions to believe that he could make it, and in doing so spent money and effort. Before the plaintiff could claim such mandatory injunction, he should establish that he did not stand by and allow the injury to be caused to him. If the evidence discloses that the plaintiff did make it possible to the defendant to cause that injury such as unauthorized construction and never took any step such as the institution of a suit and an application for injunction restraining the defendant when such unauthorised construction was in progress and comes to the Court with his suit only after such unauthorised construction was completed, the case would not be one for a mandatory injunction but only for damages.62
ACQUIESCENCE
44. At pages 1050 of Vol.II of 'Sarkar on Evidence', Eleventh Edition, the observations of Lord Campbell in Cairncross v. Lorimer (1860) 3 LT 130) are extracted, and they are as under:
"Generally speaking if a party having an interest to prevent an act being done has full notice of its being done, and acquiesce in it, so as to induce a reasonable belief that he consents to it and the position of others is altered by their giving credit to his sincerity, he has no more right right to challenge the act to their prejudice than he would have had if it had been done by his previous license."
45. At page 4984 of Field's 'Law of Evidence', 10th Edition, 1972 it is observed as under:
"Acquiescence does not simply mean standing by. It does not mean quiescence only. It means assent, after the party has come to know of his right".
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46. At page 1051 the observation of Cottenhas, L.C. in Duke of Leeds v. Amherst (1946) 78 RR 47) is extracted and it is this:
"If party having a right, stands by and sees another dealing with the property in a manner inconsistent with that right and makes no objection while the act is in progress, he cannot afterwards complain. That is the proper sense of the word acquiescence."
47. The following passages also are found at page 1051:
"In order to constitute acquiescence not only (1) full knowledge of one's right is required, but (2) there must be some lying by him to the detriment of the other side. For it is elementary that there can be no acquiescence without full knowledge both of the right infringed and of the acts which constitute the infringed and of the act which constitute the infringement. Acquiescence implies that a person who is said to have acquiesced did so with knowledge of his rights and the other person acted in the bona fide belief that he was acting within his rights. The absence of either of these elements makes the doctrine 64 inapplicable.. Acquiescence does not simply mean standing by. It does not mean quiescence only. It means assent after the party has come to know of his right. There is a distinction between acquiescence occurring while the act is in progress, and acquiescence taking place after the act has been completed. In the former case the acquiescence is acquiescence under such circumstances as that assent may be reasonably inferred from it. In the latter case when the act is completed without any knowledge or without any assent of the person whose right is infringed, the matter is to be considered on very different legal considerations."
48. At page 1053 we find the following passages:-
"It is of the essence of the acquiescence that the party acquiescing should be aware of and by words and conduct should represent that he assents to what is violation of his rights and that the person to whom such representation is made should be ignorant of the other party's rights and should have been deluded by the representation into thinking that his wrongful action was assented to by the other party."65
"The laws as to equitable estoppel by acquiescence has been very clearly stated by Fry, J. in Wilmott v. Barber ( (1880) 15 Ch 96) thus:
'It has been said that the acquiescence which will deprive a man of his legal rights must amount to fraud, and in my view that is an abbreviated statement of a very true proposition. A man is not to be deprived of his legal rights unless he has acted in such a way as would make if fraudulent for him to set up those rights. What, then, are the elements or requisites necessary to constitute fraud of that description?
In the first place, the plaintiff (i.e., the party pleading acquiescence) must have made a mistake as to his legal rights;
Secondly, the plaintiff must have expended some money or must have done some act (not necessarily upon the defendant's land) on the faith of the mistaken belief;
Thirdly, the defendant, the possessor of the legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff. If he does not know of it, he is in the same position as the plaintiff, and the doctrine of acquiescence is found upon conduct with a knowledge of your legal rights;66
Fourthly, the defendant, the possessor of the legal right, must know of the plaintiff's mistaken belief of his rights. If he does not, there is nothing which calls upon him to assert his own rights:
Lastly, the defendant, the possessor of the legal right must have encouraged the plaintiff in his expenditure of money, or in the other acts which he has done, either directly or by abstaining from asserting his legal right. Where all these elements exist, there is fraud of such a nature as will entitle the court to restrain the possessor of the legal right from exercising it, but in my judgment nothing show of this will do."
49. The following passage occurs at page 1054:
"Mere non-interference is not enough.
Acquiescence with full notice in act "prejudicial to one's self so as to induce reasonable belief of his consent, followed by consequent alteration of other's position is necessary. Where knowledge on the part of the person to be estopped is not proved, the doctrine of acquiescence does not apply ..."
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50. The Patna High Court in the case of SARJUG DEVI V. DULHIN KISHORI KUER [AIR 1960 PAT 474] has held as under:-.
"Where a person (who purchases land from person having no title to it) in possession of land, not in mistaken belief of his rights but in assertion of his rights which he correctly believed to be his, builds structures on the land and the Person who is entitled to possession knows of this, the latter is not estopped by acquiescence from bringing a suit for Possession when the person in Possession, had he exercised care and diligence expected of a man of ordinary prudence, would have easily discovered where the true title lay".
51. Acquiescence does not simply mean standing by. It does not mean quiescence only. It means assent after the party has come to know of his right. If party having a right, stands by and sees another dealing with the property in a manner inconsistent with that right and makes no objection while the act is in progress, he cannot afterwards complain. That is the proper sense of the word acquiescence. There is a distinction between acquiescence occurring while the act is 68 in progress, and acquiescence taking place after the act has been completed. In the former case the acquiescence is acquiescence under such circumstances as that assent may be reasonably inferred from it. It is of the essence of the acquiescence that the party acquiescing should be aware of and by words and conduct should represent that he assents to what is violation of his rights and that the person to whom such representation is made should be ignorant of the other party's rights and should have been deluded by the representation into thinking that his wrongful action was assented to by the other party. In order to constitute acquiescence not only (1) full knowledge of one's right is required, but (2) there must be some lying by him to the detriment of the other side. For it is elementary that there can be no acquiescence without full knowledge both of the right infringed and of the acts which constitute the infringed and of the act which constitute the infringement. Acquiescence implies that a person who is said to have acquiesced did so with knowledge of his rights and the other person acted in the bona fide belief that he was acting within his rights. The absence of either of these elements makes the doctrine inapplicable. It has been said that the 69 acquiescence which will deprive a man of his legal rights must amount to fraud, and that is an abbreviated statement of a very true proposition. In the first place, the plaintiff (i.e., the party pleading acquiescence) must have made a mistake as to his legal rights. Secondly, the plaintiff must have expended some money or must have done some act (not necessarily upon the defendant's land) on the faith of the mistaken belief. Thirdly, the defendant, the possessor of the legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff. If he does not know of it, he is in the same position as the plaintiff, and the doctrine of acquiescence is found upon conduct with a knowledge of your legal rights. Fourthly, the defendant, the possessor of the legal right, must know of the plaintiff's mistaken belief of his rights. If he does not, there is nothing which calls upon him to assert his own rights. Lastly, the defendant, the possessor of the legal right must have encouraged the plaintiff in his expenditure of money, or in the other acts which he has done, either directly or by abstaining from asserting his legal right. Where all these elements exist, there is fraud of such a nature as will entitle the court to restrain the possessor of the legal right from 70 exercising it. Generally speaking if a party having an interest to prevent an act being done, has full notice of its having been done, and acquiesces in it, so as to induce a reasonable belief that he consents to it, and the position of others is altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice than he would have had if it had been done by his previous license. Mere non-interference is not enough. Acquiescence with full notice in act "prejudicial to one's self so as to induce reasonable belief of his consent, followed by consequent alteration of other's position is necessary. Where knowledge on the part of the person to be estopped is not proved, the doctrine of acquiescence does not apply.
DISCRETION
52. In the light of the aforesaid legal position, in the instant case, the defendant has put up the construction openly to the knowledge of the plaintiff. Admittedly, the plaintiff's President laid the foundation stone for the building in the year 1974 and thereafter, from time, to time, the constructions are put up. High School, Colleges and polytechnics are run and virtually, it has become a group of 71 institutions consisting of several schools and colleges. Crores of Rupees have been spent for construction of buildings and thousands of students are studying in those institutions. Even if there was a confusion and the plaintiffs honestly believed that the said land belongs to the defendant and therefore, they did not objected for it, now, it transpires that if the land belongs to them, it would not give them a right to seek for demolition of the land by way of decree of mandatory injunction. The suit is filed in the year 1994. The construction is started in the year 1974. For 20 long years, the constructions were made, utilized and the plaintiff did not object to the same. On the contrary, they consented for the said constructions and acquiesced with the said construction. It was contended, where the parties are un- aware of the rights in disputed property both are acting on some mistake about the respective rights in regard to such land, there cannot be any acquiescence. This is not a case where both the parties were acting in mistake. In so far as the defendant is concerned, it is his specific case, the land where they have constructed buildings belongs to them exclusively and they go to the extent of saying, though the grant was made in favour of the plaintiff, if it was really 72 meant for them. Though it is difficult to accept the said contention, it would not constitute a bonafide mistake on the part of both of them. When the grant specifically provided for the extent of land granted to the plaintiff and the defendant, if the plaintiff has not taken any steps to get the property identified, even after a decade from the date of grant and even when the defendants started putting up constructions, if they have not chosen to verify the said constructions in their land or in the defendant's land, it does not lie in their mouth to say 10 years thereafter, they came to know that the constructions are put up in their land, it does not amount to acquiescence which is not acceptable. Therefore, the learned Trial Judge was right in holding that these defendants have put up those constructions and the plaintiff's have acquiesced to the said constructions and the plaintiff is not entitled for a decree of mandatory injunction.
53. In the case of CHEDDILAL V. CHHOTYLAL [AIR 1951 ALL. 1999], a Full Bench of the Allahabad High Court, considering the aspect of issuance of mandatory injunction, has held as under:-
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"The Court in the exercise of its discretion will be guided by consideration of justice, equity and good conscience and that it is not possible for the Court to lay down inflexible rule as to the circumstances in which the relief for demolition and injunction should be granted or refused."
The Trial Court has exercised the discretion keeping in mind justice, equity and good conscience. It did not want the construction which commenced in the year 1974, which has been there for the last 40 years, where schools and colleges are run being pulled down. Similarly, it is a granted land. The plaintiff has not used it for the purpose for which it was granted. However, defendants have used it for the said purpose and therefore the question of compensating the plaintiff also would not arise. Therefore we do not see any justification to interfere with the order of the trial Court declining to grant the decree for mandatory injunction. POINT NO.3: POSSESSION
54. The suit is one for declaration and for permanent injunction. The plaintiff has not sought the relief of possession. According to the plaintiff, he is in possession 74 of 'A' and 'B ' schedule properties from the date of grant till the date of the lease and subsequently. Therefore, he has sought for a decree of permanent injunction. Now, the defendants specific case is, though a joint grant was made, it was made as a grant to the defendant only and therefore, from the date of grant, the defendant is in exclusive possession of the schedule properties along with the properties granted to them. As the plaintiff has not sought the relief of possession, the plaintiff is not entitled to the relief of declaration or possession.
55. The order of grant is not in dispute. It is also not in dispute that the grant was in the name of the plaintiff and defendant and both their names were mutated in the revenue records, that was the position till 1983. In the year 1983, the name of the plaintiff was deleted and only the name of the defendant is continued. Further, in the year 1994, when bifurcation of Sy.No.51 was made by the Survey Authorities, the name of the plaintiff has been entered in respect of Sy.No.128 and 129, which is the 'A' and 'B' schedule property in the sketch. These entries are challenged by the defendant by preferring the appeal. 75
56. When once the revenue records show that from the date of grant till 1982-83, the name of both the plaintiff and defendant are in possession of the land granted, if both of them are in possession of the entire land granted, then their possession would be that of co-owners. The possession of one is the possession of the another, in which event, when the defendants claim exclusive possession, they have to prove ouster. Neither there is any plea nor there is any evidence. On the contrary, their case is, the plaintiff never stepped into the land from the date of grant, they have continued to have possession of the land. Once the name of the plaintiff and defendants are mutated in accordance with law, the presumption is both of them are in possession. However, in 1983, the name of the plaintiff was deleted and only the name of the defendant was entered. If the plaintiff has relinquished his interest in favour of the defendant, his name cannot be continued. There is no mutation order and there was no request for deleting the name of the plaintiff. Therefore, the mutation in the name of the defendant for the entire property from the year 1983 onwards is without any basis. Presumption of possession as contained in Section 133 of the KLR Act arises only when an entry in the Record 76 of Rights and the certified entries in the Register of Mutation are made in accordance with law. Then the Court shall presume the entries to be true until the contrary is proved or a new entry is lawfully substituted thereof. Therefore, only when an entry is made in accordance with law, a presumption under Section 133 can be raised. The defendant in order to have the benefit of that presumption that they are in possession of the entire property from 1983 onwards, must produce evidence to show how they acquired title to the plaintiff's property and that an order came to be passed directing mutation in their name in respect of the entire property. Admittedly, even to this date, the defendants have not acquired any title to the property granted to the plaintiffs. There is no mutation order passed in the year 1983 deleting the name of the plaintiff and mutating the name of the defendant in respect of the plaintiff's property. Therefore, mere entry of the defendant's name in the revenue records do not establish possession of the defendant over the plaint schedule property. The evidence on record shows, the plaintiff made a request for bifurcation, and bifurcation order was passed. The plaintiff's land was given Sy.No.128 and Sy.No.129. Therefore, 77 mutation entries were made in his name which would go to show that the plaintiff is a lawful owner of the plaint schedule property and he was taking lawful steps to get his property identified and mutation entries were made in his name. Further, on that date, he filed this suit seeking a relief of decree of permanent injunction as there was a threat of interference by the defendants, he also filed an application for an order of temporary injunction. The Trial Court after considering the rival contentions, granted an order of temporary injunction. The said order of temporary injunction was challenged by the defendants before this Court in M.F.A.No.171/1995. The said appeal was dismissed, however with certain observations and safeguards, protecting the interest of the defendants. One such safeguard was that the plaintiff was directed not to put up any structures other than those which were already been put up and which are mentioned in the affidavit and to maintain the character of the property as it stands, till the disposal of the suit. Consequently, the appellant was restrained from interfering with the colleges and institutions which are being run by the defendant. Except for that modification, the order of temporary injunction granted was 78 confirmed. That means, the finding of the Trial Court that the plaintiff was in possession prior to the date of the suit was affirmed and the plaintiff had the benefit of the order of injunction from the date of the suit till the date of the disposal of this suit. The oral evidence on record also establishes that in Sy.No.128, i.e., the 'A' schedule property except some sheds, no constructions are there. Eucalyptus trees are grown and they exist even to this day. Similarly, in the 'B' schedule property, constructions are there in about 03 acres of land and the remaining extent of land continues to remain vacant with eucalyptus trees.
57. PW-1 in his examination-in-chief has stated that during the year 1969, the land was vacant with few standing trees. Some eucalyptus trees were grown on that land. They have produced tax paid receipts. They are in possession of the land. From the beginning, from the date of grant, they were paying the land revenue. In the RTC, for the year 1966-67, there is an entry in Column No.2 as the Golden Valley Educational Trust and the Vokkaligara Sangha. In the same Records of Rights, i.e., in Ex.P4, upto 1971-73 in Columns No.1 & 2, it bears the name of the plaintiff and 79 defendant and it also shows as Vokkaligara Sangha and Golden Valley Educational Trust. Even in Ex.D2, the names of the plaintiff and defendant were entered up to 1979-80. After 1981 onwards, the name of the plaintiff is not entered. In 1981-82 only, the name of the defendant is entered. The Bangalore Development Authority initiated acquisition proceedings as the name of the defendant was only entered in the RTC in the year 1987. The acquisition proceedings were initiated in the name of the defendant only. Further, on representation made by the defendant, the acquisition proceedings were dropped. In fact, the acquisition were dropped to the total extent of 67 acres.
58. From the aforesaid documentary and oral evidence on record, it is clear that the title of the plaintiff is not in dispute. The land in question is a vacant land. When the pahanis stood in the name of both the plaintiff and defendant from the date of grant till 1982-83 and when the defendant has not produced any positive evidence of ouster of the plaintiff from the schedule property, having regard to the relationship between the plaintiff and defendant from the date of grant till 1994, it is clear that the plaintiff is in 80 possession of the plaint schedule property except to the extent of the area where the constructions are put up. Possession follows title. Therefore, the contention that the plaintiffs suit for declaration without seeking the relief of possession is without any substance. The plaintiff is in possession on the date of the suit. As an attempt was made to create a cloud on plaintiff's title by denying the same, the plaintiff was constrained to file a suit seeking declaration only, without seeking the relief of possession and such a suit is maintainable.
ADVERSE POSSESSION
59. The trial Court proceeded to hold that the buildings were constructed by the defendant about 20 years back. The plaintiff never objected either at the time of construction of the building in the suit property or at the time of running the institutions in various buildings by the defendant. The evidence of P.Ws-1 and 2 will clearly establish that defendants are in possession of the suit property to the knowledge of the plaintiff since 1974. Sri M V Krishnappa, who was the Chairman of the plaintiff-Trust presided over the function for laying foundation for 81 construction of High School building in the year 1974 itself. It is evident that plaintiff was aware of defendant's possession of the suit property as far back as 1974. Right from 1974, the defendant is in continuous possession of the suit property. When the suit property was granted in favour of the plaintiff and when the defendant is in possession of the suit property to the knowledge of the plaintiff ever since from 1974 and when plaintiff has not objected for the possession of the defendant, it has to be held that defendant is in adverse possession of the suit property right from 1974.
60. This finding of the trial Judge shows his incorrect understanding of law of adverse possession. Section 27 of the Limitation Act, deals with extinguishment of right to property. It provides that at the determination of the period prescribed to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. The words, 'period hereby limited' in the Section mean, the period of limitation prescribed by the schedule to the Limitation Act. The relevant Article is Article 65 of the Limitation Act, Article 64 has no application because, it is not a case where the defendant has not 82 pleaded that he has dispossessed the plaintiff at any point of time. On the contrary, the specific plea taken is, the plaintiff was never put in possession. Therefore Article 65 is the provision on which reliance is placed. The starting point for limitation under Article 65 is when the possession of the defendant becomes adverse to the plaintiff. Therefore it is not the date from which he entered possession of the property, it is the date from which the possession of the defendant became adverse. The evidence on record do not disclose firstly when the defendant entered into possession of the suit property at all except to the extent of about 3 acres where they have put up construction. Further it is not their case that the defendant's possession is adverse to that of the plaintiff. If defendant is not in possession at all, the plea of adverse possession cannot succeed and the question of plaintiff's right to property getting extinguished would not arise. Even if the defendant claims to be in possession, mere possession would not lead to any right accruing in favour of the defendant conferring title by adverse possession. In a claim for adverse possession, the title is not disturbed. What is alleged is only its extinguition. In the matter of adverse possession, the Courts have to find out the plea taken by the 83 defendant in the written statement. A plea of adverse possession being based on facts have to be raised to that effect. It is not necessarily a legal plea. It is a mixed question of law and fact. When the defendant wants to base title on adverse possession, he should specifically set up the plea. Unless the plea is raised, it cannot be entertained. A plea must be raised and it must be shown when possession became adverse, so that the starting point of limitation against the party affected may be found. A person acquires title by way of adverse possession when he is in continuous, uninterrupted, hostile possession over a period of 12 years. In order to calculate 12 years period there should be a starting point. The date of commencement of adverse possession is very crucial for calculating the period of 12 years. Therefore, the law mandates that the person who seeks a declaration that he has perfected his title by way of adverse possession should specifically plead the date from which his possession becomes adverse to that of the opposite party against whom the said plea is set up. It is from that date if the party shows continuous, uninterrupted possession for a period of 12 years, then the right of the opposite party to the property stands extinguished and the 84 party who has set up the plea would acquire title by way of adverse possession. Therefore, in the absence of crucial pleadings, which constitute adverse possession, the party cannot claim that he has perfected their title by adverse possession. The concept of adverse possession involves three elements, namely, (1) property, the subject of adverse possession; (2) possession of that property by a person having no right to its possession and (3) the possession being adverse to the true owner. Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. Where possession could be referred to a lawful title, it will not be considered to be adverse. 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. A person pleading adverse possession has no equities in his favour because adverse possession is commenced in wrong and aimed against right. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.
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61. It is in this background, if we look at the written statement filed by the defendant, it is averred that after the grant was made the defendant alone is in possession and enjoyment of the entire extent of land in Sy.No.51. The then Chairman of the plaintiff-Trust, viz., Sri. M.V. Krishnappa himself laid the foundation stone for the construction of High School building of defendant Sangha in the suit property. The chairman of the plaintiff-Trust has accepted the possession of the defendant. If the grant of entire extent of land including the suit property was not intended to the defendant, the Chairman of the plaintiff-Trust would not have laid the foundation stone for building construction in the suit property. The payment of tax, mutation entries from year 1980 onwards in the name of defendant clearly shows that defendant is in possession of the suit property. The plaintiff was never in possession of the suit property nor they know where the suit property actually exist. The suit property is completely in possession, control and management of this defendant. From the date of grant till the date of the suit, the defendant is in possession. It is in his own right, he has put up construction thereon. 86
62. There is no whisper of adverse possession. Defendant never admits the plaintiff's title. He has not pleaded that his possession is adverse to the interest of the plaintiff. It is not a case where plaintiff is dispossessed. On the contrary, their specific case is that chairman of the plaintiff-Trust in the year 1974 laid the foundation stone for the construction of High School building. Therefore there is no hostility between the defendant and the plaintiff. Unfortunately, though there was no plea of adverse possession, though there was no issue regarding adverse possession, the trial Court proceeded to hold that the defendant has perfected his title to the suit schedule property by adverse possession. A finding which is totally contrary to the material on record.
63. The said case is made out by the defendant by referring to the judgments, which have no application to the facts of the case. Article 65 of the Limitation Act deals with the suit for possession based on title. Mere possession over a statutory period will not become adverse possession. However, in this case, the said judgments have no application and the Trial Court was mislead by the 87 judgments by holding that the defendants have continued by adverse possession and therefore, the plaintiff is not in possession. The said finding is contrary to the evidence on record, runs counter to the decision on which reliance is placed and therefore, the said finding of the Trial Court requires to be set aside and accordingly, it is hereby set aside. The plaintiff has proved his possession over the plaint schedule property except to the extent of constructions which are put up by the defendant in Sy.No.129 which is the 'B' schedule property.
LIMITATION FOR DECLARATION:
64. It was contended, the suit is one for declaration of title and the same is barred by time as the suit ought to have been filed within three years from the date of the plaintiff's title being denied. Article 58 of the Limitation Act deals with the period of limitation for filing a suit for declaration of title. The cause of action arises when the plaintiff's title is denied. The evidence on record shows both the plaintiff and defendants were granted land under the very same Government order. After the order, the plaintiffs and defendants name was entered in the revenue records 88 together. In the year 1983, the name of the plaintiff was deleted without notice to the defendants without there being an order. The plaintiff approached the Authorities for bifurcation of Sy.No.51. Accordingly, survey was conducted. Bifurcation was conducted and plaintiffs land was given Sy.No.128 and Sy.No.129. It is at that stage, when mutation entries were made according to the said bifurcation, the defendant preferred an appeal before the Assistant Commissioner challenging those mutation entries. That could be taken as the date on which the defendant denied the title of the plaintiffs to the suit schedule property. It was in the year 1994, when the defendant filed the appeal and got the matter stayed. When the title of the plaintiff was denied and there was an attempt to encroach upon the property, immediately the plaintiff has rushed to the Court for decree of temporary injunction in the year 1994 itself. Subsequently, the plaint was amended to include the relief of declaration, mandatory injunction and therefore, the suit having been filed within three years from the date of denial of title, it is well within time. The finding recorded by the Trial Court, that the limitation is to be computed from 1974, when the construction was put up by the defendant in 89 Sy.No.129, do not hold good in so far as the vacant land is concerned. Even in the year 1974, the evidence on record shows the plaintiff's President laid the foundation stone. It only shows there was no denial of title. Obviously as there was no bifurcation of property, out of confusion or vagueness or mistake, the construction was permitted to be put up. Certainly, there was no denial of title and that cannot be the starting point for limitation for declaration of title. Therefore, the Trial Court did not properly appreciate the material on record and committed a serious error in holding that the suit is barred by law of limitation.
POINT NO.5: PERMANENT INJUNCTION
65. Once, the plaintiff has established his title to the suit schedule property and plaintiff is held to be in possession of the property, when the evidence on record shows that there was an attempt to encroach upon the property, police complaints were lodged, litigations are pending, certainly there is a threat to the right of the plaintiff to enjoy the property peacefully. Therefore, the plaintiff is entitled to decree for permanent injunction also. 90 VIOLATION OF TERMS OF GRANT
66. It is contended, though there is a grant in favour of the plaintiff, plaintiff has violated the terms of the grant. Consequently, the plaintiff is not entitled to any declaration of title as on the date the suit is filed, there is violation of terms of the grant. The defendant has also contended in the written statement as the land was granted in favour of one Institution, an application was made by these two Institutions with the intention of taking nearly 45 acres of land between them and therefore, the plaintiff has no right. If the grant is taken with that intention and by playing fraud on the Government, not only the grant made in favour of the plaintiff but also in favour of the defendant is liable to be set aside. But, however, grant of declaration by the Court would not come in the way of the Government initiating proceedings against the plaintiff and the defendant for violation of the terms of the grant. At any rate, that would not come in the way of entertaining the suit and grant any declaration when the plaintiff has filed the suit and prayed for declaration. At this stage, it is relevant to point out that in 10 acres granted to the defendant for an Upset Price in 'A' schedule property. The total extent mentioned is 11 acres 91 23 guntas with 01 acre 23 guntas is a Pada land, out of which 01 acre 23 guntas is not granted to the plaintiff. Therefore, the plaintiff is only entitled to the extent of 10 acres. In so far as Sy.No.129 is concerned, the total extent of land leased is 15 acres for 30 years. It is in these 15 acres, the constructions are put up in 03 acres of land. Therefore, the question of this Court granting any declaration that the plaintiff is the owner of this property would not arise. All that this Court can do is to hold that the plaintiff is entitled to only lease-hold rights in respect of about 12 acres of land excluding the constructions which are found in about in 03 acres of land and in so far as that land is concerned, the plaintiff is entitled to decree of permanent injunction.
ADDITIONAL EVIDENCE
67. The plaintiff has filed an application for production of additional receipts showing that he has paid the taxes and also khatha certificate. They are post-litem documents. They are not required to decide the title of the plaintiff as the plaintiff' has to prove his title as on the date of the suit and those documents are not really required for 92 deciding the case on merits. Therefore, the application is dismissed.
68. In the result, we pass the following order:
(a) Appeal is partly allowed.
(b) The judgment and decree of the Trial Court dismissing the suit of the plaintiff is hereby set aside.
(c) The plaintiff is declared as the owner of the land bearing Sy.No.128 (old No.51) measuring 10 acres situated at Srigandada Kaval, Bangalore North Taluk. The plaintiff is also entitled to the lease hold rights in Sy.No.129 (old No.51) measuring roughly about 12 acres excluding the constructions put up in Sy.No.129.
(d) The suit of the plaintiff for mandatory injunction directing the defendant to pull down any building structures/ constructions standing in the schedule property and for delivery of 93 possession of the said constructed portion is hereby dismissed.
(e) The plaintiff is also entitled for decree of permanent injunction restraining the defendants, its office-bearers, agents or its supporters claiming through or under defendant from interfering with the peaceful possession and enjoyment of the schedule properties, excluding the constructions.
(f) Appeal is allowed with proportionate costs.
Sd/-
JUDGE Sd/-
JUDGE bkp/RBV/SPS/dh*