Karnataka High Court
The Karnataka Theosophical Federation vs Balakrishna Ashrama Mulbagal Town on 24 September, 2010
Bench: K.L.Manjunath, B.Manohar
VUWV 1 VVVIV
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 243'" DAY OF SEPTEMBER, 2010
PRESENT
THE I-ION'BLE MR.JUSTICI3 K.L.MANJUNAT}_'i~ L
AND
THE HON'BLE
R.F.A. No.20[20_Qj1_§_" A ~ 3
BETWEEN: ' V'
The Karmataka Theosophical
Federation (a regcl. Society" .
under the Societies' Registr--.at.iQn'._ g_' V ''
Act No.3 0f1904~). A
Sri Krishnarajencira.RoaC1, _ '
Banga10re--560 004., j
Represented by its _. , _ O'
Secretary
Smt.K.Parvatha3mm-:i_.V ' ' ', APPELLANT
_ {By S1'j._Shreyas JéLy*ae.tmhe1, Adv.)
Bé1a1d:shr;é"'A,$h§ahda.
Mulbagal TQWni,_
;-- Kolar District.»
_ . _ .4 Represented by its
" " V Tseereetary "
_ K_;L.VPattabhirama Setty
" O' A 8/0 1ate"K.LakshIninarayana
" ___"'SettjJ. RESPONDENT
A V A» A G.Papi Reddy, Adv.) *=i=* E'/, _. 3 _.
were constructed by the plaintiff and the plaintiff --- societyheld number of functions from time to time. In the year the purpose of storing food grains, a portion of the * taken by the Deputy Commissioner,_.K.o1_ar and V"i3*3l7l1ty_ if Commissioner also paid rents to the 7.plai'ntiff recognisirig*--.the.:
plaintiffs title. It is contended "that; in the the plaintiff had leased the suit schedule-..p_roperty'in_ of the defendant in the year _a ._of Rs.2/--. Later the plaintiff passedithe the lease on 23.09.1945 and '__.tl1_ei1 been in lawful possession The defendant without kr1owlVe'dge., ,,the:'pl.aintiff behind its back obtained khatha in its,4_n*ame" anti »--tl?i'e.44same was objected to by the plaintiff-_§ 'Society. Hovyeveizr, the Municipal Council, Mulbagal, objections of the plaintiff. Therefore, the plaintiffVfiled'..anVA:appeal before the Assistant Commissioner, lvdliolar, "'=::hall'ex1g«ing the khatha made in the name of the fivdrrhich appeal came to be dismissed. In the Clizieanwhile, the defendant also obtained a license and plan for ':'con_s.truction of building in collision with the municipal '-«authorities. Aggrieved by the same, the plaintiff filed an appeal before the Deputy Commissioner, Kolar, in Municipal Appeal W C _ 4 _ No.8 / 1987 , which appeal came to be allowed. Aggrieved by the said order, the defendant filed an appeal before the Director of Municipal Administration, who in turn, set aside the "order passed by the Deputy Commissioner, Kolar, granting perrriisésion to the authorities to initiate proceedings 1_1I1(Zlt_?.'-.':_:wl'..l'1"t":l..,:'L;;i1TC1_x' .
Revenue Act. In View of the illegal action of"the.::delfendaIit,l' "
plaintiff filed the suit to declare the'..:society' 1 abso_lu'»€€*l owner of the property and to setsasf1_de the Assistant Commissioner, Kolar Sublidiyision, in name of the defendant and to 'd_ef_eiidant to handover possession to the plaintiff andfor Inesne
3. ThelV'v..Adeie11daiiti'-. "the suit by denying the averments rnac1_e"in According to the defendant, .Anjaneya_i;lShetty said to be the donor of the plaintiff had l.'1i1.o the Gift Deed on 15.09.1933 in Favour of the plaiiitiifand plaintiff did not become the owner of the lllproperty under the said Gift Deed. it is also denied that the :'l.v'plai'r;.tiff_. has "constructed a hall known as Sri Ramachandra the same was opened on 08.12.1938. It is also denied the year 1947 a portion of the property was leased to the lll"--«.Ay"Governrnent to store the food grains and the Deputy as Commissioner, Kolar, has recognised the plaintiff as the owner of the property by paying the rents. The defendant also the defendant was a tenant under the plaintiff on of Rs.2/- from 1938 and it is also denied. that tl'"1:é'V:vlease.'.fwas' terminated as per the resolution dated the defendant, the plaintiff was neigfer_ptheA.owjnerVV of property* V and that the defendant is,.the "the pro'perty.:§and that there was no relationship of
4. The defendpantpjg set ullxccording to the defendant, one the owner of the property underflthe oral sale in favour of Raniaiah lot since the value of the land was less _than"-Rs'. 1,063/A¥;--._b'g"i't1e said Rarnaiah Shetty in turn schedule" property in the year 1932 for i ;'piii*pose to construct an ashrani by name Balalzrishnai and to conduct religious functions and marriages to advance philanthropic interest among the inenibers oi the Vysya community. According to the defendant, up Shetty had no right to execute the Gift Deed in favour . V A "ithe plaintiff and the defendant has been enjoying the property as an absolute owner by constructing an ashram in the year (V 1934 after obtaining permission from the revenue authorities. Subsequently some of the buildings were taken over by the Government for public purpose to use the same for storin_.g'i.the food grains from the defendant and after compietion__o'f' _ for the purpose for which the building was ~.. Commissioner, the possession was har1dedp_ove.r"to 'th'e--._dei'en'daAr1tA' in the year 1945 and therefore the _plaintif_fCcannoVt'leonvtendflthat the Deputy Commissioner has reoiognised the as the owner and rents were paid bgfhlllthe-ljyijléputy Commissioner. Alternatively, the defendant also plea of adverse possession on the:.grou'_nd tiE1at§it:...i1a's beenvenjoying the property since 1933:Y_till«.tliisv day the_:k1"i_ovirledge of the entire World and this was known to the when an attempt was made by the pla1'xITi_§tiff\ to claimownership from the Deputy Commissioner objected to by the defendant. In the cirC'urns__t_a.r1ces',~v"the; defendant requested the Court to dismiss the suit.
Based on the pleadings, the following issues were framed the Court below:
C 1) Whether the plaintiff proves his title to the suit schedule property. if so whether the plaintiff is entitied to possession of the suit schedule property? (3/by ii]
iii) iv] V} Vi} Whether the suit schedule property is an agricultural land or the land situated within the Municipal limits of Mulabagal Municipality?
Whether the plaintiff is entitled to get the respect of the suit schedule property name from the name of the defendant?
Whether the defendant proves utheilysuit property, which belonged to a'one"--I._{oppara:11 was purchased under'ai1.._oral sale for less '3fhEll.'lmRS.l0O'~. ' by one Ramaiah Shetty of ll/lu1bagal"to_vvi1?v':
Whether the de_fen.da1.it the suit schedule property was donated l:-,~yi"t;he__said<Rarnaiah Shetty for establishing an . one 1 'Balakrishna Ashram"
Io'r--.cAatlvancl.ng philanthropic interest among the m_e1nbers'of'tii1e Vgrsya community? Whether Vthelvdeiengdant proves in the alternative that in ' V the eVent"of plaintifl' proving his title. the plaintiff :_--.rhasA lost'Vits""right to the suit property due to the , defendant being in adverse possession of the property V 1 tlieyear 1932?
prove their respective contentions, on behalf of all 10 Witnesses were examined as P.Ws.l to 10 plaintiff relied upon EXSP1 to P91. On behalf of the it tlel'eI'1clant, in all, three witnesses were examined as D.Ws.l to 3 and Exs.Dl to 1345 were relied upon by the defendant. The Trial Court, after considering the evidence let in by the parties, held issue Nos.1, 3, 4 & 5 in negative, in regard to issue No.2 it is held that the suit property is an agriculturai land constructions over it, issue No.6 in affirmative and""issue_l'l\Jo.'7. against the plaintiff. Ultimately, the suit came to be dismissed. Being aggrievecl;byfthe«.v is before us in this appeal.
7. We have heard Mr.Shreyas____tl'ayas.imha, 'learned counsel appearing for the appellant'«..aridA learned counsel appearing for the respondent; V
8. Though--. are" urged in the appeal memo, learned counsellt for" appellant has raised the following contentions only at' the time of his arguments. ---. .... we .,., :"Aceo1*-ding to:l:iriri«,._vthe Trial Court has committed an error in disfnissigng the plaintiff has proved the Gift Deed V'lexecuted.. by.,\\,"\\\jirij.aneya Shetty as per Ex.P2 in the year 1933. The _C,ourt"did not consider that the defendant was a tenant plaintiff on a monthly rent of Rs.2/- and in the year .:].9.4_:6.'.':47, the Deputy Commissioner has recognised the title of plaintiff by paying rent to the plaintiff in respect of the " property taken by the Government to store the food grains at the at relevant point of time. He further contends that the Trial.--Court did not consider that the khatha made in the name' defendant by the Assistant Commissioner will V' prove the title of the defendant. He further if defendant, which has set up an indepeiident"title*u_nde1' sale, did not place any material that théC..g,Aui.t"'schedule*at property was gifted to the = Shetty.
According to him, when th§y~..Aefendar§.t a title claiming through Ramaiah Shetty, the title, the defendant in respect of the property of the grounds, he requests the Court to aliowu the alppeall 'aside the judgment and decree of the Trial C'ourt._ of his arguments, he has relied upon ljudgmen-tslivof the Supreme Court in the case of V" ;t§.T.ivitr1_u*icHfie:i{A1§1m_a REDDY 8: OTHERS vs. REVAMMA 3.: OTHERS {AIR 2007' so f1753).V'land.V.:in the case of RPRAKASH 8! ANOTHER vs. *vsMT.G§P.,MARfr*ttAij\«1MA {M2 2000 KAR 1223). AA Per. contra, Mr.Papi Reddy, learned counsel for the C '1"e:s'p.o'1ident submits that the grounds urged by the learned "coun_sel for the appellant are not tenable since the plaintiff who claimed ownership in respect of the property under the Gift Deed as per Ex.P2 dated 15.09.1933 did not prove that the donor ;
.._1G.._ Anganeya Shetty had title to the property. Even if Ex.P2 is accepted for the sake of arguments, the defendant has perfected its title by way of adverse possession since at no point"o_f".tiine the defendant was a tenant under the plaintiff. V' him, since 1932 the defendant is in __lawful posfsesé;.i_m{"a.§;;;_m;"
absolute owner and has established 7._the"'same».'by_:"producing several documents. According t-ojliim, when thef"p'lai_1itiff made._* an attempt to claim ownership by cia.inii.ng rent as the owner, an enquiry was conducted i.nRfregard;Vi_ of the plaintiff and the defendant._'Ihe deferidant a categorical statement that the the property and not the plaintiff. documents produced by the plaintiff, counsel for the /defendant contends that the documepngtslf 11amely'E>§sV.P8,: P9 and P11 would disclose that the 'plaintiffVf"l;as' faile'd._in its attempt to prove its ownership and it was"'wel1__witiiiri:tlie:'knowledge of the plaintiff that since the date Ex.Pl"~].., the' defendant is claiming ownership in respect of the adverse to the interest of the plaintiff. Documents p'1'oduce--d.iby the defendant would reveal that right from the year onwards, the khata was transferred to the name of the "defendant and the defendant has constructed several buildings including temple after obtaining permission from various W11"
authorities and that the defendant has been in uninterrupted possession right from the year 1932. Therefore, he contenLd.sfthat the Trial Court was justified in dismissing the contends that even if the respondent--defendan_t"ha.s:*set'-up_title"
by itself claiming through Ramaiah:=,AShe-tty; the:4..defer1dant:;;vis entitled to claim the adverse posese_ssion"againstplaintiff vas,:VK the defendant has proved the adverse' pgosse'ssio:n'v'byproducing the documents. He thereforethe filed by the plaintiff is barred by dismissed. In support of his arguir1et1ts,:='._heghas the judgment of the Hon'ble casefof L.N.Aswathama 8:
Another P.-.Pral§ash- sow 5439).
10. Having heard the learned the counsel for the parties, the points thlatgparisefor ourconsideration in this appeal are:
V _ the appellant proves that it is the owner of A' V 'theptaint schedule property?
it] .. llfvhether the respondent proves that the respondent "has perfected its title by way of adverse possession?
iii) Whether the judgment and decree passed by the Z"n'aI Court is required to be set aside?
W 13 W
11. it is not in dispute that the appellant is claiming title under Ex.P2, a registered Gift Deed dated 15.09.193_3'._to have been executed by Anjaneya Shetty in favour €):l7:"l'.lf1v€i_ The attestors and so also the donor_of .Ex.P2 order to examine them as witness:-p t«';'.x~.P2 registered document of more than 30'*~years beenf produced from proper custody by the plaintiff claiming to be the" When such a document is produced before custody, the contents of the presumption attached to a document of 3V0'::-grleéflajtrsrll eanno't«.be'l--dolt§ibted. It is no doubt true that the piairitiff plr'0.d:uee'd other documents to show how Anjaneya Shettylhecaniel.lthel"owner of the property acquiring title _ to the" property. Even if such documents are not produced, in theidypresumption attached to Ex.P2, we hold that the plaintitfphas:l'pro\}e'd"'its title to the schedule property; The case of V it the defendant-before the Court below is that Ramaiah Shetty had 'acqtiired the schedule property under oral sale from Kopparani and later Ramaiah Shetty has permitted the 'defendant to come up for the benefit of Vysya community people it of Mulbagal in the year 1932 and since then the defendant is in uninterrupted possession of the property. It is the case of the $1 W13- plaintiff that a prayer hall was constructed and was narr.--e_d as Sri Ramachandra Lodge and the same was being conduct public functions. But it is the specific'.,':case:Vd'o:f V' plaintiff that somewhere in the year.-"1938, tl1ef_V'4p'iaintfiff'_fhas, leased the schedule property in favour, the monthly rent of Rs.2/~. In orderTtod_ showyttliep fre_lati:'onsh'ip of landlord and tenant, the plaintiff 'produc'ed._anyE evidence and the relationship is notllprfoved plaintiff and the defendant as landlord _and;ten'an:t 'attempt is made to establish the same cannot be acceptablefdto,da:'iy; plaintiff is a registered society, records. When the defendant is denying thefrelationshiapfplof and tenant, the burden of _VproVing,_§:&such relationship: is on the plaintiff and not on the v'A'~defendparit._':'f1'h.eA"pvlaintiff has relied upon the resolution said to haye_ the year 1945 to terminate the lease of the defendant. 'ii-"athe plaintiff has relied upon the resolution to i.".:"t--er1r1ii1ate '1;1'1.e lease, it would have produced any documents to 'wliether the defendant has surrendered the lease pursuant to...the said resolution. If there is a resolution to terminate the tenancy and if the defendant has not Vacated the premises, in such an event, it was for the plaintiff to approach the Court and {V M 14 u get possession through Court under due process of law...__ But there is no oral or documentary evidence to show whenjt'h.e'*«Ie'a.se was surrendered by the defendant or when the taken by the plaintiff. ._
12. When the plaintiff contends that the entire leased to the defendant on a monthly rent of 4';:..;Wevivcannot'w V understand how the plaintiff cany_co:ntenti_y that "a.pAortlon of the property was given to the to store the food grains at a relevantvpoint of irrpthcl :'19l45. In the year 1947, an attemptgto claim a monthly rent of Commissioner, Kolar, in respect of b11i1ding"*OClcupiedLthe Commissioner claiming itself as the ovynerlof tlieyyproperty. But as per Ex.P9, the Deputy §1irecte'c'1Wthe Amaldar of the Taluk to hold an enpquiry=and_l'su'brnit a report in the matter; since there was a rival the defendant. Ex.P11 is produced by the Lwphypplaintiffl, which is a statement of the President of the defendant on' 16.06.1947 in an enquiry conducted by the Amaldar of Taluk on the orders passed by the Deputy llcornmissioner, Kolar. From the reading of Ex.Pi.I, it is clear that the defendant has set up ownership by itself from 1932 and _.:E5n..
that in the year 1933. temples were constructed and from then onwards, they have been conducting several religious".functions and they are in possession of the property and was let out by the defendant to store.:the-food thé]Ten..t V was claimed by the defendant from the and it has denied the right of thepilaintiffinrespect the plaint" V C' schedule property. From EXP1 by the..plaintiff, it is clear to the Court that the an independent right and uninterrupted ioyynership against the claim of contends that the Deputy of the plaintiff, the rentsiflyvere ,tl'1e:"('3«oVernment to the plaintiff, the plaintiff has not produced ariysinaterial before the Court, that the rents were paid Deputy Commissioner, Kolar. Therefore, _of«the plaintiff that the premises was leased to the GolveriiirnentWternpdrarily to store food grains and the C_&overn'men.t has paid the rent to the plaintiff requires to be it":7.4A'ne£gaALtiyed.. '=--From EXPII. one can hold that the defendant has ownership in respect of the plaint schedule property if ':'against the claim of the plaintiff. In View of EXP} 1, it was well A"--Within the knowledge of the plaintiff that the defendant has set up adverse possession against the plaintiff. But for the reasons 8' W15- best known to it, no action has been taken by the plaintiff to evict the defendant in accordance with law. Even when the plaintiff has produced certain documents relating to the dispute between the parties in registering the khata, the Commissioner, Kolar Sub--DiVision, Kolar has r_egistere.d i- khatha in the name of the defendant and against" in the"
appeal filed by the appellant before the Deputyee. the Deputy Commissioner set aside" thellorder and 'tfnereaftier iiaf. the Revision Petition, the DirectorvlvffcflpflviunicipafAdministration has restored the khatha togthe 1.jameVf"of: Vthe.gdefendant. These documents are not at all in the documents produced the defendant has produced Ex.D1 to Ex.D45. Ex;Dl istheeittractdssued by the Municipal Council, _Mulabagal; for the' year 1£3i54~55 which shows that the khatha V.Vstands_pin the name of the defendant and the same has been ass'essedg.ftovft"i1e the taxes are paid by the defendant. Vvfvilfhen the de'fend'ant has produced the documents to show that it if " 'Thais' not been 'paying rent as it is the owner of the property right ffifomftheiyear 1953-54, when the plaintiff who claims to be the if of the property has not even produced any documents to
-show that at least prior to 1954, the khatha was standing in the " name of the plaintiff and the taxes were paid by the plaintiff, the ex W _.
Court should also observe that no where in the plaint, the plaintiff has stated when the defendant has dispossessed_l'the plaintiff. The suit is filed not only for declaration of * for possession. In the body of the pla_i_n.t,_the contends if that the plaintiff has been in possession when the plaintiff was dispossessed by the d.efendajnt--.,ha.s notat"
been stated so by the defendant.__viSin:ce._thel not in possession of the property~--..._at any ;tirne~v.conveniently or in an ingenious manner has notstated. that when it lost possession. 'pf defendant has established itslposslessioln'inl"respectt the property right from the year of 'the documents produced by the plaintiff well" the:-.defendant. "Then the plaintiff contends' that the A. plaintiff has leased the property to the lldefendant the defendant was put in possession of the property as stated supra the plaintiff has not placed ltvany material' A show when the plaintiff has taken back ""'lAi.",4possesVsion "from the defendant by terminating the tenancy in 'acco.rdannce with law. When the defendant is contending that at it "1119 point of time it was a tenant under the plaintiff and when it
-contends that the defendant is in continuous possession as the " owner and also claiming adverse possession against the plaintiff QT,-
_ 18 _ and the documents produced by the plaintiffs and the defendant would reveal the actual possession and enjoy1neni"i--of'--«.Vi:i}e property by the defendant uninterruptedly atleasi; ~ onwards, in View of Ex.P11 and Ex.D series, t_i*1is"'Coi;ri"'has to it hold that the plaintiff has failed to prove dispossessed by the defendantfl V is possession of the property years uninterruptedly, it cannot iih.at"i«thei"deiendant has not perfected its title by way~- In this background, this pletzlsiarninexlthefiapplicability of the judgment relied..VuponVby' cpunsei for the parties in the case oiv_P.T.M1:1Srr¢:afin:AmnAv~~REnDY & OTHERS vs. REVAMMA 8:
OTHERS [Amé2oo'"r~ sVc"17§:sp), rg;1;e;+¢1n it has held in paragraph-36 to 38 as 'hereunder'. A. it it « _ E38. be borne in mind that the respondent had hpn1=c:h_ased 1 acre 21 guntas out of the 5 acres 25 "Qantas a duly registered deed dated 1.9.1993. 'Appe~1tant""bought the entire chunk of 5 acres 23 guntas subserjuent to the respondents transaction. The validity A it of. such sale is not the question in the instant case but transaction relating to 1 acre 23 guntas remains an important surrounding circumstance to assess the nature of appeiianfs possession. The question is whether it is a case of mistaken possession ignoramus of QM ._.l9._ the previous sale or adverse possession having the mental element in the requisite degree to disposse's.s§'.._ Also much depends on the answer to the query A' the starting point of adverse possession: whe'ndcan.V:thel ' possession be considered to have ..become'.a'dver_se'?"i In the facts and circumstances of this ca,se,j. the "possession f of appellant was effected throughvétheisale deeds; it 11.04.1934 and 05.07.1936.._'Therefore, the l'a,11eé,;eae fact of adverse possession bears a"p_ronounc'ed.._pblackdfrop of 1933 sale deed passing guntas "to the respondent.
37. Are \_ye':yto~~_say'A sale :with doubtful antecede_n.ts..[u1 guntas) sloiightmto be perfected or completed.thiroughfadveriseppossession? But that aspect of the under consideration herein. As has alrea'c_ly"been_ drne'11tioned.,::adVerse possession is a right which cornes iritolélplayiizoét just because someone loses his right to reclaim the? property out of continuous and iyililftil neglect bu't'-also on account of possessor's positive » 1"intent'togdispossess. Therefore it is important to take V -into before stripping somebody of his lawful title, ',\yheth_er'i' there is an adverse possessor worthy and exliiibiting more urgent and genuine desire to dispossess .. and step into the shoes of the paper-owner of the if '._pp1f'operty. This test forms the basis of decision in the instant case.
38. The argument for a more intrusive inquiry for adverse possession must not be taken to be against the law of limitations. Limitation statutes as statutes of gig' M20-
repose have utility and convenience as their purpose. Nevertheless, there has been change on this front as well which have been noticed by us heretobefore." i3. The Apex Court in the case of L.N.ASWA'I'HAMA & vs. RPRAKASH (2009 AIR sow 5439) - Head Note-B (pa:ag1ja'ph='rs)_; h;«_is~~. held that even though the defence of the defendan._t_flis Vbigsed on ., the title, it can also claim adverse popssessiojné'altern.:atively:_Aln' view of the fact that burden is heavy on defendant to its adverse possession. this Court hasxlto exarninesvvhether really the respondent--defendant'ha.'s_ pr«f5VedAt1'1e.es~sential conditions of adverse possession. So far as" this Vpoin.-t..isv.cor1lCerned. We have already answered'l?in paragraph that the defendant claimed ownership'a.gainst"'the"p1aintiff and it is well within the knowledge of the ._plaintiff'- froin the date of Ex.P11 and further pfwe that ._the «defendant continued its possession asicould be seen from Ex.D series. Therefore, we are._of the 'opinion that even if the defendant has not proved title t"o_the property, the defendant has successfully proved ' the question of adverse possession and we are of the view that
--.the'f»:lefendant has been in uninterrupted possession claiming title hostile to the interest of the plaintiff from 1947 and plaintiff who was never in possession of the property, did not file the suit 6/,
-21"
In time and therefore the plaintiff is not entitied to get relief of possession.
14. In the result, at} the points are held against the appeiiant and in favour of the respondent. Accordingly, thiS*.iS dismissed. Parties to bear their respective costs. say...
h' Tudqe PKS