Karnataka High Court
State Of Karnataka And Ors. vs M. Muniraju on 25 February, 2002
Equivalent citations: AIR2002KANT287, ILR2002KAR2923, 2003(1)KARLJ291, AIR 2002 KARNATAKA 287, 2002 AIR - KANT. H. C. R. 1616, (2002) ILR (KANT) (3) 2923, (2003) 1 KANT LJ 291, (2002) 3 ICC 767, (2002) 4 CIVLJ 418
Author: V. Gopala Gowda
Bench: V. Gopala Gowda
JUDGMENT V. Gopala Gowda, J.
1. These second appeals are filed by the defendants-State Government and others questioning the legality and correctness of the judgments and decrees passed by the Principal Civil Judge (Senior Division), Bangalore Rural District, in R.A. Nos. 39 and 1 to 3 of 1997 affirming the judgments and decrees passed in O.S. Nos. 237 of 1996, 481, 399 and 479 of 1993 respectively by the Principal Munsiff, Bangalore and sought for setting aside the impugned judgments and decrees passed in the regular appeals and original suits respectively.
2. The cause of action for institution of the original suits, except the O.S. No. 237 of 1996, the judgment and decree of which challenged is in R.S.A. No. 960 of 1997, is one and the same. The reliefs sought for in these appeals is one and the same. Except in the O.S. No. 237 of 1996 filed by the plaintiff for declaration of title and consequential relief of permanent injunction in respect of the suit schedule property, the other original suits are for bare permanent injunction against the defendants in respect of the respective suit schedule properties.
3. These appeals were heard together with the consent of the learned Counsels for the parties. As the appellants/defendants are one and the same though the plaintiffs are different in all these appeals and since common substantial questions of law were framed by this Court at the time of admission and hearing of these appeals, all the appeals are being disposed of by this common judgment.
4. For the sake of convenience, the rank of the parties is referred to as per their rank in the original suits.
5. The brief facts are stated as hereunder for the purpose of considering the rival contentions of the parties and to answer the same with reference to the substantial and additional questions of law framed by this Court which are extracted in this common judgment.
In R.S.A. No. 960 of 1997 arising out of O.S. No. 237 of 1996, the plaintiff has filed the original suit in respect of 2 acres and 20 guntas of dry land, Sy. No. 1 of Kadugodi Plantation, Bidarahalli Hobli, Bangalore South Taluk contending that he is the absolute owner and Khatedar of the land in question and his name as Khatedar of the land in question and his name has been entered in the RTC records as per documents produced as Exs. P. 10, P. 11 and P. 14. It is stated that he has been declared as the absolute owner in possession by the Trial Court in O.S. No. 551 of 1994 and pursuant to the said decree he applied to the Tahsildar and Deputy Tahsildar of Bangalore South Taluk, requesting them to regularise the Revenue entries in his name in respect of the suit schedule property but defendant 4 in the said original suit has not passed any order within four months from the date of submission of the said application. Therefore, it is stated since the defendants 3 and 4 have violated and disobeyed the orders of this Court in W.P. No. 32653 of 1995 by the plaintiff. The plaintiff filed Contempt of Courts Case in CCC No. 101 of 1996 before this Court against some of the defendants and in the meanwhile, the plaintiff received a letter dated 27-1-1996 on 2-2-1996 rejecting his application. Thereafter, he submitted one more application on 26-2-1996, copy of which was given to the Deputy Commissioner. The second defendant has issued an endorsement on the application filed by the plaintiff for issuing the order passed on his application stating that since it is the office correspondence, the certified copy of the order shall not be issued to him as demanded by the plaintiff. The plaintiff further contended that he has been in continuous possession and enjoyment of the suit schedule property for more than 30 years uninterruptedly thereby he acquired title by adverse possession of the suit schedule property. It is further alleged that the defendants have not taken action under the provisions of the Karnataka Land Revenue Act, 1964 and the Karnataka Land Revenue Rules of 1966 (in short called as 'Act' and 'Rules'), against the plaintiff in respect of the suit schedule land for eviction and that he belongs to Adi Karnataka by caste. It is further stated that, the land in question was allotted to him by a Society known as Kadugodi Samyukta Vyavasaya Sahakari Sangha Limited (in short 'Society') way back in 1935. Ignoring the same, defendant 2 asserted that he has taken back the lands given to the poor Harijans by an office memo without giving notice to the plaintiff. It is alleged that the said action of the second defendant is contrary to law. The plaintiff filed W.P. No. 6747 of 1996 before this Court against that order and the said petition came to be disposed of by this Court as withdrawn with a liberty given for him to approach the competent Civil Court seeking appropriate relief in the matter. It is stated that pursuant to the said observation and liberty given to the plaintiff, he filed the original suit before the Trial Court against the defendants for grant of the reliefs stated supra.
6. The plaintiff has further stated that as per the order dated 27-1-1996 passed by the Deputy Tahsildar, the 4th defendant, he has been in continuous uninterrupted possession and enjoyment of the suit schedule property for more than 30 years. It is asserted that after 30 years, dispossession of the plaintiff from the land in question is not permissible in law in view of the limitation prescribed under Article 65 of the Indian Limitation Act, 1963. Therefore, it is urged on behalf of the plaintiff that the right of the first defendant-Government in respect of the suit schedule property has been extinguished. Hence, it is contended by the learned Counsel for the plaintiff that the Deputy Commissioner was not authorised in law to take the suit land from the plaintiff which was actually handed over to him about 30 years back by the Society. Alternatively, it is pleaded that the plaintiff has perfected his title by adverse possession by virtue of long and continuous possession and enjoyment of the land in question.
7. It is further stated, as per. Section 128 of the KLR Act, 1964 and Rules 65 to 68 of the Rules, any acquisition of land by a person has to be reported to the Tahsildar. On such application being filed, the jurisdictional Tahsildar is bound to enter his name in the mutation register after giving due notice to all interested persons under the rules. If there is any dispute regarding the title, the same has to be determined by the Revenue Officer under the provisions of Sub-sections (3) and (4) of Section 129 of the Act. It is alleged that without following the said procedure prescribed under the rules, rejection of the application of the plaintiff by the 4th defendant is illegal and arbitrary. It is further contended that the plaintiff has been paying land revenue tax in respect of the land in question. According to him, the KIADB acquired the lands from the similarly placed persons as that of this plaintiff in the same survey number and paid compensation at the rate of Rs. 30,000 per acre by acquiring the land under the provisions of the Land Acquisition Act, 1894. Therefore, the plaintiff and others filed writ petitions before this Court claiming compensation. Therefore, the plaintiff has sought for grant of judgment and decree of declaratory relief and consequential relief of permanent injunction in his original suit in respect of the suit schedule property.
8. In respect of other connected appeals, the original suits are filed by the plaintiffs in O.S. No. 479 of 1993 in R.S.A. No. 1004 of 1997, O.S. No. 481 of 1993 in R.S.A. No. 1005 of 1997 and O.S. No. 399 of 1993 in R.S.A. No. 1003 of 1997 claiming that they have been in lawful and continuous uninterrupted possession of 4 acres or 3 acres of land respectively and prayed for grant of permanent injunction in respect of the respective suit schedule properties restraining the defendants, their agents, subordinate employees and any other person claiming through them from interfering with plaintiffs possession and enjoyment of their respective suit schedule properties and from demolishing any structure and building constructed therein. The original suits were filed by the plaintiffs represented by their General Power of Attorney holder by name Mr. Gulzar Khan S/o Ibrahim Khan empowering him to do all acts in respect of their respective suit schedule properties. The plaintiffs have alleged that they have entered into an agreement of sale of their properties in question in favour of third parties, received consideration amount from them under agreements of sale and they have constructed houses on the schedule properties. It is asserted that large suras of money have been invested on construction and most of the houses have RCC roofing. It is stated that electricity is also obtained to some of the houses/buildings and the same are being used for residential purpose.
9. It is further alleged by the plaintiffs that even though the defendants have no right, title or interest over the respective suit schedule properties, they have tried to dispossess the plaintiffs and the purchasers of the respective suit schedule properties illegally. The defendants and their officials tried to demolish the houses and the structures in the schedule properties on the pretext of executing the orders passed by the second defendant. Further, it is contended by the plaintiffs that they were not at all served with notices as required under the provisions of the KLR Act and the KLR Rules and no enquiry has been held by them prior to passing the orders referred to supra. It is stated that the alleged trespassers of the suit properties must be evicted by the defendants with due process of law as held by the Apex Court in catena of cases.
10. The plaintiffs allege that, due to illegal interference by the defendants, they have been compelled to issue legal notices under Section 80 of the CPC to the defendants calling upon them to desist from their illegal interference in respect of the respective suit schedule properties and the notices have been duly served on the defendants in accordance with law. It is stated that they have neither replied the notices nor complied with demands made therein. Plaintiffs have also issued notices under Section 125 of the Karnataka Co-operative Societies Act, 1959 (in short "KCS Act"), to the third defendant who has neither replied nor complied with the demands made therein.
11. The defendants have contested the suits by filing detailed written statement in each of the original suits traversing various plaint averments and disputing the legal rights of the plaintiffs as claimed by them upon the lands in question.
12. On the basis of the pleadings, the Trial Court framed issues, in O.S. No. 237 of 1996 relating to R.S.A. No. 960 of 1997 was tried separately and the plaintiff has examined two witnesses as P.Ws. 1 and 2 and got marked Exs. P. 1 to P. 27. On behalf of defendants D.W. 1 was examined and Exs. D. 1 to D. 6 were produced and marked. Original suits pertaining to the connected appeals had been clubbed together and recorded common evidence. In support of the claim of the plaintiffs, they have examined their power of attorney holder Mr. Gulzar Khan as P.W. 1 and they produced documents and marked as Exs. P. 1 to P. 45. On behalf of defendants D.W. 1, Mr. Lingegowda was examined and documents were marked as Exs. D. 1 to D. 6. After the trial, in respect of first R.S.A. No. 960 of 1997 the Trial Court passed judgment and decree on 23-11-1996 declaring the plaintiff as owner and granted permanent injunction in respect of the suit schedule property as prayed in the said suit. In respect of other suits, the Trial Court passed common judgment and separate decrees dated 5-10-1996 granting permanent injunction against the defendants in respect of the respective suits schedule properties.
13. Aggrieved by the said judgments and decrees passed in the original suits, the regular appeals were filed under Section 96 of the CPC by the defendants before the first Appellate Court questioning the correctness, legality and validity of the same. The first Appellate Court after hearing the rival contentions urged by the parties had formulated its points and answered the same concurring with the findings of the Trial Court after re-appreciation of evidence on record and assigning its own reasons. The regular appeals have been dismissed by impugned judgments and decrees. The defendants, aggrieved by the same have filed these regular second appeals framing the substantial and additional questions of law in the memorandum, of appeals.
14. This Court, while admitting the appeals, framed the following substantial questions of law for consideration:
1. Whether the suit is maintainable in the absence of statutory notice issued to the appellants under Section 80 of the CPC?
2. Whether filing an application under Section 80(1) of the CPC absolves the respondent from non-issuing of statutory notice under Section 80 of the CPC?
3. When the respondent asserts the ownership in possession of the suit schedule property, can be allowed to take a contention of adverse possession to declare him as the owner of the property?
4. Can the resumption of land by the Deputy Commissioner as per the orders dated 10-2-1993 and 16-5-1995 be questioned in the suit without approaching the proper forum?
The following additional substantial question of law is framed in R.S.A. No. 960 of 1997 by filing the memo dated 22-2-2001 by the defendants/appellants:
"1. Whether the Courts below were right in holding that the plaintiff had perfected his title by adverse possession on the mere statement that he was in possession of the lands in question for more than thirty years without deciding as to whether the alleged possession of the plaintiff was hostile and open as against the appellants herein and whether it was continuous and peaceful throughout?"
Following additional substantial questions of law are also raised by way of memos dated 24-2-2001 and 2-3-2001 filed in R.S.A. Nos. 1003 to 1005 of 1997:
Memo dated 24-2-2001:
"4. When the plaintiffs have no title to the property, whether they can be allowed to alienate the lands for the purpose of construction and whether the General Power of Attorney holder gets the right to maintain the suit?
7. In view of the provision of the KLR Act and the ULC Act, whether the plaintiffs are entitled for the equitable reliefs sought for by them?
8. When the lands are within the green belt area as declared by the Government, whether the plaintiffs have a right for converting it to non-agricultural purpose, without any authority?"
Memo dated 2-3-2001:
"1. Whether the Courts below were right in relying upon a copy of Ex. P. 58, which was inadmissible in evidence, without verifying the original or in the absence of foundation laid by the plaintiff to admit the same in evidence and when the same was not proved by the plaintiff by adducing his evidence.
2. When the plaintiff has not marked Ex. P. 58, a Xerox copy and when he has not proved the same, could the Courts below rely upon the same, merely because it was referred to in the defendants evidence, to decree the suit, and could Ex. P. 58 could have been relied upon to decree all the three suits".
15. After hearing the learned Counsels appearing for the respective parties at length and after going through the impugned judgments of the Trial Court as well as the first Appellate Court and the material evidence on record, this Court proceeds to answer the substantial question No. 3 framed at the time of admission and additional substantial questions of law No. 1 framed by Memo dated 22-2-2001 as hereunder.--
16. The legal submissions made on behalf of the learned Counsels for the parties would be referred to while answering the questions of law with a view to avoid repetition of facts and contentions urged by the learned Counsels for the parties.
The case of the plaintiff in O.S. No. 237 of 1996 is that he is the absolute owner in possession and enjoyment of the land with different katha numbers totally measuring 2 acres 20 guntas situated at Kadugodi Plantation Village; filed the applications before the defendants 3 and 4 requesting them to regularise the RTC entries in the record of rights in respect of the land in question, that they neither considered his applications nor responded, thereby they have failed to discharge then statutory duty; that the 4th defendant sent a letter dated 27-1-1996 by registered post received by him on 2-2-1996 intimating that the application dated 16-1-1996 has bet" rejected; that the 2nd defendant made an endorsement stating that it is office correspondence between him and the other defendants; and therefore it was not possible to issue the certified copy of the endorsement. It is the further case of the plaintiff that he is in continuous and uninterrupted possession and enjoyment of the land in question for more than 30 years, therefore he claims title by adverse possession of the suit schedule land. With reference to Article 65 of the Indian Limitation Act, 1963, the period prescribed therein is over to take back possession of the land in question from the plaintiff and as per Section 67 of the KLR Act the right of the Government in respect of the land in question was extinguished. Therefore, it is pleaded that the 2nd defendant is not authorised in law to take back possession of the land from the plaintiff. Therefore, plaintiff had stated that the grant of declaratory relief and consequential relief of permanent injunction prayed for by him in the plaint is justified. Further, it is pleaded by him at paragraph (8) of the plaint that after the land was acquired by the KIADB including the plaintiff, such of those members of the Society who have been in continuous possession and enjoyment of their respective portions of land became the absolute owners, for the remaining 253 acres. The RTC entries are in his name upto 1993-94, katha was made in the name of the plaintiff about 35 years back and the land revenue was collected from him by the Revenue Department. Therefore, it is urged that he became the absolute owner in possession and enjoyment of the suit land. The KIADB and the State Government paid compensation at Rs. 30,000 (thirty thousand) per acre in respect of the land which was acquired by them, to the interested persons and for enhancement of compensation the plaintiff and others filed W.P. Nos. 7775 and 7931 to 8007 of 1996 before this Court and they have been agitating for award of higher compensation. It is contended that the possession of the property cannot be taken away by the Government by mere office note of the 2nd defendant. At paragraph 11 of the plaint it is stated that the cause of action arose for the suit on 27-1-1996 when the fourth defendant passed order and pursuant to the order passed by this Court in the writ petition reserving liberty to him to file the original suit in respect of the suit schedule property.
17. Mr. Ramachandra Reddy, learned Special Government Advocate appearing on behalf of the defendants had taken me through the written statement filed by them, and has contended that they have denied the claim and right of the plaintiff with reference to the plaint averments. He has contended that there is no specific pleadings in the plaint for grant of declaratory relief that plaintiff has perfected title by adverse possession in respect of the land in question. It is further stated that there is no substantive and positive evidence on record for grant of the reliefs by the Courts below in favour of the plaintiff. Further, it is urged that the plaint averments are contrary to the provisions of the KLR Act and the law laid down by the Apex Court and this Court. Reliance is placed upon the judgment of this Court in Laxmamma v. State of Karnataka and Ors., 1983(1) Kar. L.J. 417 : AIR 1988 Kant. 237 (paragraphs 4 and 8), in support of the proposition that there shall be grant order and grant certificate issued in favour of the grantee under the provisions of the KLR Act and the Karnataka Land Grant Rules, 1969 (in short "KLG Rules") to claim ownership upon the suit schedule land. The limitation prescribed for claiming adverse possession under the provision of Indian Limitation Act, 1963 is 30 years. He has placed reliance upon judgment of the Apex Court in Parwatabai v. Sonabai and Ors., AIR 1997 SC 381 : (1997)1 SCC 531 : JT 1996(7) SC 661, at paragraph (4) in which case it is held that by mere pleading of adverse possession of the land in question, the decree of the declaration shall not be granted by the Court and there shall be a specific pleading in the plaint as to the exact date from which adverse possession started for claiming the adverse possession of the land and unless such plea is pleaded and proved, plaintiff is not entitled for the grant of declaratory relief. The learned Counsel also placed reliance upon another judgment of the Apex Court in Thakur Kishan Singh (dead) by L.Rs v. Arvind Kumar, AIR 1995 SC 73 : (1994)6 SCC 591, at paragraph (5) in support of the proposition that mere possession of the plaintiff of the suit land howsoever length of time does not result in converting the permissive possession into adverse possession for grant of the declaratory relief. It is further urged that in respect of the suit schedule property the possession of the plaintiff is permissive possession and therefore he is not entitled for the reliefs as prayed for by him. In respect of the same proposition of law he has also placed reliance upon another judgment of Apex Court in Roop Singh (dead) through L.Rs v. Ram Singh (dead) through L.Rs, AIR 2000 SC 1485 : (2000)3 SCC 708 para (7) wherein it is held that permissive long time possession of the property does not convert into adverse possession. The Counsel contended that there shall be overt act on the part of the licensee in making assertion of long time permissive possession into adverse possession to show hostile animus and possession adverse to the knowledge of the real owner, hostile title and mere continuance in unauthorised possession even for a period of more than 12 years is not enough to claim that he had perfected his title for adverse possession. The plaintiff has claimed the adverse possession neither as licensee nor asserting hostile title in respect of the land in question. In support of this submission, he has placed reliance upon the judgments of the Apex Court in Gaya Parshad Dikshit v. Dr. Nirmal Chander and Anr., AIR 1984 SC 930 : (1984)2 SCC 286 para 1 and State Bank of Travancore v. Arvindan Kunju Panicker and Ors., AIR 1971 SC 996, para 9; wherein the Apex Court has held that there shall be an overt act on the part of the plaintiff to substantiate his adverse possession of the land to the knowledge of the true owner. Further, disclaiming title of the true owner, shall establish that he remained exclusively in possession to the knowledge of defendants, hostile to their title which they have acquiesced of the same. In support of his submission he has placed reliance upon the judgment of the Apex Court in Madhavkrishna v. Chandra Bhaga , JT 1996(9) SC 632 : (1997)2 SCC 203, para 5. Further reliance is placed upon the judgment of this Court in Sunkamma v. H. Ramayya Reddy and Ors., 2000(1) Kar. L.J. 366 : ILR 2000 Kar. 2681 in support of the submission that this Court can interfere with the concurrent findings on facts in exercise of its jurisdiction and power under Section 100 of the CPC if this Court finds that the Courts below have ignored the preponderance of the case and allowed the judgment to be influenced by inconsequential matter and not considered the relevant evidence on record. He submits that there is erroneous approach to the matter as the Courts below failed to draw proper inferences from the proved facts and have failed to apply law in proper perspective to the fact situation of the case with reference to the law laid down by the Apex Court and other High Courts.
18. After hearing, I have carefully gone through the judgment of the Trial Court in respect of the original suit pertaining to the R.S.A. No. 960 of 1997. The Trial Judge while answering the issues framed in the original suit has referred to the evidence on record and recorded his findings at paragraphs 22 to 30 of the judgment. It would be suffice for this Court to refer to the findings recorded by the learned Trial Judge at paragraph 25 of the judgment wherein he has referred to the grant of land in favour of the father of the plaintiff and records his finding holding that it is an admitted fact that the land in question was granted in favour of his father, which finding is not factually correct for the reason that the claim of the plaintiff that there was grant of land in his favour is disputed in the written statement by the defendants. The Trial Court referred to the katha numbers of the property and also the RTC extracts and held that the land was granted by the Society in favour of the father of the plaintiff. There is reference to Ex. P. 14-Patta Book which was issued to the plaintiff which discloses possession of 4 acres of land, tax paid receipts, Exs. P. 15 and P. 16 and record of rights, Ex. P. 17 in respect of the land in question, which documents disclose the release of the property from the Forest Department in favour of the Revenue Department for the purpose of distributing the same to the landless persons through the Society, which fact is evidenced in the document at Ex. P. 18. At paragraph 26, the judgment and decree obtained by the plaintiff in O.S. No. 551 of 1994 is referred to by the Trial Court, upon which much reliance is placed by the plaintiff. These defendants were not parties to the said original suit. At paragraph 27 of the judgment of the Trial Court there is a reference that a portion of the property was granted by the Society in favour of the plaintiffs father and that by oversight the names of other three different persons has been entered in the Revenue Records. Further, there is also a reference to the admission regarding possession of the property by the plaintiff for a period of 30 years by the defendants. The Trial Court has recorded its findings on the basis of the documents referred to above holding that the land was granted by the Society to its members and they have been in possession and enjoyment by cultivating the land as per the terms and conditions of the grant order. A further finding has been erroneously recorded, in the judgment of the Trial Court that normally there will be a non-alienation clause in the grant order for a period of 10 to 15 years and that once the land is granted, the ownership is conferred on the grantee. Reference is also made to the acquisition of the land granted to the similarly placed persons as that of this plaintiff by the KIADB and payment of compensation to them, order passed in writ petition filed by the plaintiff and others seeking for enhancement of compensation amount in respect of the land in question as per Ex. P. 26, a finding of fact is recorded by the Trial Court in this regard in favour of the plaintiff holding that he is the owner of the property. The said documents will not establish the title of the plaintiff to the suit schedule property.
19. The first Appellate Court in R.A. No. 39 of 1997 on the basis of the rival contentions urged by the parties formulated three points for its consideration at paragraph 19 of the impugned judgment. The findings recorded by the learned Trial Judge on Issue Nos. 1 and 2 are concurred with by the first Appellate Court holding that there is grant certificate issued either by the Society or by the Government as the land was handed over to the Society for distribution of the same in favour of the landless SC/ST persons for their rehabilitation. The reliance placed upon the RTC extract documents by the plaintiff has been exclusively referred to by the first Appellate Court and concurred with the findings of the Trial Court's judgment. It has also referred to the Exs. D. 3 to D. 5 with regard to the entries made in the name of the Government in respect of the suit schedule property and much reliance is placed upon the said documents for recording its findings at paragraphs 26 to 28 of the impugned judgment in favour of the plaintiff. Further, reliance is placed upon the katha extracts, P. 10, 11, 14 and 17, record of rights at Ex. P. 18 and reference is also made to the evidence of D.W. 1 at paragraph 24 in the impugned judgment wherein he has stated that the Government has granted the land in favour of the Society upon appreciation of that evidence on record. It was found by the first Appellate Court that D.W.1 has stated that actual physical possession of the land was not taken from the plaintiff though the order was passed by the 2nd defendant on 10-2-1993. Generally, 15 years prohibition for non-alienation of the suit land is made and on the basis of the said finding, the first Appellate Court has affirmed the finding of the Trial Court holding that the plaintiff is entitled for judgment and decree as prayed for by him as he has perfected his title against the State Government by adverse possession of the suit schedule property. The correctness of the concurrent findings of the Courts below are required to be examined by this Court to find out whether the same are in conformity with the provisions of the KLR Act, the Land Grant Rules and the law laid down by the Apex Court and this Court referred to in the earlier paragraphs of this judgment with reference to the rival legal submissions made at the Bar.
20. As could be seen from the documents at Exs. P. 17 and P. 18 it is an undisputed fact that the land in question was released by the Forest Department to the Revenue Department of the Karnataka State Government. It is also an undisputed fact that the land was assigned in favour of the Society for the purpose of distributing the same in favour of its members who belong to SC/ST and who are landless people for their upliftment and rehabilitation. It is also an undisputed fact that the plaintiffs father in O.S. No. 237 of 1996 was given permissive possession of the land in question by the Society and he was in possession and enjoyment of the same.
21. The law laid down by the Division Bench of this Court in the case of Laxmamma, supra, at paragraphs 72 and 74, is that the grant of the Government land and the issuance of the grant certificate under the provisions of the Act and the Land Grant Rules in favour of the grantee by the Government is mandatory in law. In the instant case, it is not the case of the plaintiff that there was either grant order passed or grant certificate issued by the competent Land Grant Authority in favour of the father of the plaintiff. On the other hand, the case of the plaintiff is that the Society has given permissive possession of the land in question to plaintiffs father for his cultivation. The Society is not the Competent Authority under the provisions of the KLR Act and the Land Grant Rules, 1969 for grant of the Government land in favour of the plaintiffs father. The Competent Authority has to satisfy under the provisions of the Act and Rules for grant of the land. The material evidence placed on record by the parties would clearly go to show that there was no grant of land in favour of the plaintiffs father late Doddamarappa.
22. Mr. Varadarajan, learned Counsel on behalf of the plaintiff submitted that the plaintiff has been in possession of the suit schedule property though there was no grant order and contended that issuance of the grant order is only a formality under the provisions of the Land Grant Rules. According to him the fact remains that the plaintiff has been in actual possession and enjoyment of the property. He has placed reliance in support of his submission upon the Land Grant Rules and the provisions of Sections 2 and 3 of the Government Grants Act, 1885 and urged that certain provisions of the Transfer of Property Act are not applicable to the facts of the present case and therefore submitted that the law laid down by the Division Bench of this Court in Laxmamma's case referred to supra has no application to the present case. Per contra, the learned Special Government Advocate Mr. Ramachandra Reddy for the defendants submit that the Government Grant Act is not applicable to the facts of the case. The Government lands are required to be granted in favour of the eligible persons by the Competent Authority in exercise of its power under Rule 7 of the Karnataka Land Grant Rules. Therefore, the contentions urged by the learned Counsel for the plaintiff are not tenable in law. Further, the plaintiff has asserted in the plaint that he is the owner in possession of the property by virtue of the grant order made by the Society.
23. I have already held that the Society is not the Competent Authority for grant of the land in favour of the plaintiffs father under the provisions of the Act and the Land Grant Rules. The Courts below have erroneously recorded their finding on the question of grant of land that , there is an admission on the part of the defendants that there was grant of land in favour of the father of the plaintiff, which is factually incorrect. Therefore, the finding recorded in that regard in the impugned judgment is an erroneous finding on fact. There is neither admission of the defendants nor evidence to that effect on record that there was grant order passed by the Competent Authority in respect of the suit schedule property under the rules and Saguvali Certificate was issued in favour of the plaintiffs father. As there is no admission, by the defendants either in their pleading or in the evidence on record regarding the grant of land in favour of the father of the plaintiff, as incorrectly recorded by the Courts below in the impugned judgments and therefore the same are vitiated on account of perverse findings. Further, based on the Katha Certificates, Exs. P. 10, P. 11 and P. 14 and the RTC extracts, Exs. P. 9 to P. 13, the patta book, Ex. P. 14, tax paid receipts, Exs. P. 15 and P. 16, record of rights and index of lands, Exs. P. 17 to P. 19 in respect of the suit schedule property and Ex. P. 20, certified copy of the judgment and decree passed in O.S. No. 551 of 1994, the Courts below have erroneously recorded the finding on the evidence on record holding that the plaintiff has been in possession and enjoyment of the land in question by virtue of the alleged grant order passed by the Society, which finding is not based on correct facts as the claim of the plaintiff regarding his possession is a disputed fact, which fact is not proved by the plaintiff by producing positive and cogent evidence. Therefore, the Trial Court has grossly erred in accepting the said documents in favour of the plaintiff, as they are not title deeds of the property for recording its finding holding that the plaintiff has been in possession and enjoyment by adverse possession of the suit schedule property against the interest of the State Government. Therefore, it is wrongly held by the Trial Court that he is entitled for declaratory and consequential relief as prayed in the original suit. Both the Courts below have completely lost sight of the relevant and material fact evidence on record and the legal position on the question namely, that the revenue records are not title deeds of the plaintiff, at best the said documents would go to show that from 1985-86 onwards the plaintiff has been in permissive possession of the suit land. In the absence of grant order and grant certificate required to be issued by the Competent Authority in exercise of its power under the provisions of Rule 7 of the Land Grant Rules, the finding recorded by the Courts below holding that the plaintiff has established his case and showed that he is the owner of the land in question is not only an erroneous finding but also suffers from error in law as the same is contrary to the law declared by the Division Bench of this Court in Laxmamma's case referred to supra.
24. The Courts below while answering the contentious issues framed by the Trial Court and the points formulated by the first Appellate Court, have gravely erred in answering the same in favour of the plaintiff without examining the correct legal position with regard to the adverse possession of the land by the plaintiff with reference to the provisions of the Limitation Act as contemplated under Article 65 of the Act. The plaintiff has not pleaded in the plaint as to from what point of time the limitation started running for claiming adverse possession of the land in question against the State Government who is the real owner. Mere permissive possession of the land shall not confer any right and title whatsoever upon the plaintiff for grant of the declaratory and consequential reliefs as prayed for in his favour in respect of the suit land. The Courts below have not taken into consideration of the defence taken by the defendants regarding permissive possession of the land. The same should have been accepted by the Courts below as correct, having regard to the non-production of the grant order and saguvali chit in respect of the land in question by the plaintiff. The Courts below have erroneously recorded the findings on disputed questions of fact in the impugned judgments in favour of the plaintiff.
25. No overt act on the land by the plaintiff is either pleaded or evidence adduced in this regard as required in law for claiming adverse possession or unauthorised possession of the land in question by the plaintiff. Therefore, the findings recorded by the Courts below in the impugned judgments are erroneous in law. No right and title was established by the plaintiff for grant of the declaratory relief of ownership of the land in question declaring him that he is the owner of the land in question. Further, no limitation is either specified or disclosed in the plaint averments and proved the claim of adverse possession and therefore the grant of the reliefs in favour of the plaintiff suffers from illegality and irregularity.
26. The cause of action as pleaded by the plaintiff in the plaint, to claim that the defendants have acquiesced their right, title of ownership on the land in question and for grant of declaratory relief as prayed by him, there shall be pleadings to that effect as held by the Apex Court in the case of Madhavkrishna, supra, at paragraph 5, the relevant portion of which case is extracted hereunder:
"5. . . The plea of adverse possession as against Mansaram was not pleaded. In this case, except repeating the title already set up but which was negatived in the earlier suit, namely, that they had constructed the house jointly with Mansaram, there is no specific plea of disclaiming the title of the respondents from a particular date, the hostile assertion thereof and then of setting up adverse possession from a particular date to the knowledge of the respondents and of their acquiescence. Under these circumstances, unless the title is disclaimed and adverse possession with hostile title to that of the Mansaram and subsequently as against the appellant is pleaded and proved, the plea of adverse possession cannot be held proved. In this case, such a plea was not averred nor evidence has been adduced. The doctrine of adverse possession would arise only when the party has set up his own adverse title disclaiming the title of the plaintiff and established that he remained exclusively in possession to the knowledge of the appellant's title hostile to their title and that the appellant had acquiesced to the same. . . ".
In view of the law laid down by the Apex Court in the above said case regarding adverse possession, the plaintiff has not established his case by adducing positive and substantive evidence on record to show that he has perfected his title, by adverse possession of 30 years in respect of the land in question and therefore the grant of reliefs in his favour by the Courts below is illegal, hence the impugned judgments are liable to be set aside.
27. The submission made by the learned Counsel appearing on behalf of the defendants, Mr. Ramachandra Reddy, are tenable and the reliance placed upon the judgments by him which are referred to in the earlier paragraphs of this judgment, and the law laid down in these cases with all fours, applicable to the facts of the present case. The submission made by him is well-founded and therefore the same must be accepted by this Court. On the other hand, the submission of the learned Counsel appearing for the plaintiff is wholly untenable in law as the same is contrary to the provisions of the KLR Act, the Land Grant Rules, the Limitation Act and also the law declared by the Apex Court and this Court in the cases referred to supra.
28. The learned Special Government Advocate for the defendants has rightly placed strong reliance upon the judgment of the Apex Court in the case of State of Rajasthan v. Harphool Singh (dead) through L.Rs, (2000)5 SCC 652 in support of the proposition that where possession in respect of public property is claimed by a person, more effective and serious consideration requires for the Courts, because it involves the possible destruction of the right, title of the State and also in support of the proposition that the power and jurisdiction of this Court under Section 100 of the CPC shall be exercised where there are glaring inconsistencies and contradictions in the evidence and issues raised are serious in nature and the claim of the plaintiff would be in destruction of title of the State. In such circumstances the High Court is not hampered by the provisions of Section 100 of the CPC from interfering even with the concurrent findings of fact of the lower Courts.
29. The plaintiffs in O.S. Nos. 399, 479 and 481 of 1993 pertaining to connected appeals have not established their claim of adverse possession in respect of the suit schedule properties that they have been in hostile and continuous possession throughout against the interest and title of the first defendant who is the true owner of the lands in question as claimed by them. The plaintiffs have not specified the dates from which period they have been in adverse possession of the suit schedule properties to the knowledge of the true owner. There is neither pleading as required in law nor evidence placed on record in that regard in the original suits by the plaintiffs. On the other hand, they have pleaded that they have been in possession of the respective suit schedule lands pursuant to the grant order made by the Society. The Co-operative Society referred to supra has neither power to grant the lands in question nor it is the owner of the property to transfer the same in favour of the plaintiffs as contemplated under the provisions of the Transfer of Property Act. Therefore, it can only give permissive possession of the lands in favour of its members for cultivation with a view to rehabilitate themselves. Either under the provisions of the Transfer of Property Act or any other law without compliance with the requirements of the Indian Registration Act of 1908, the properties could not have been transferred in the name of the plaintiffs by the Society. The land in question was assigned by the Government in favour of the Society for the limited purpose of giving permissive possession in favour of its members who belong to SC/ST community for joint cultivation. It is neither pleaded by the plaintiffs in the plaints nor the material evidence is placed on record before the Courts below to prove their contentions that the Co-operative Society had the authority in law either to transfer the lands in question in favour of these plaintiffs or it had the power to grant the same in their favour in accordance with law. In the absence of the same, and the material evidence placed on record would clearly show that they have not been in adverse possession of the suit schedule lands as claimed by them. At paragraph 25 of the impugned judgment of the Trial Court and at paragraph 23 of the judgment of first Appellate Court findings are erroneously recorded holding that the grant of schedule lands in favour of the plaintiffs is an admitted fact which is factually incorrect. Therefore, the said findings in the impugned judgments are not only erroneous in law for the reason that there is no admission made by the defendants either in the written statement or in the evidence of D.W. 1. On the other hand, the Courts below have failed to give a positive finding on the issue on the basis of the material and substantive evidence on record. Therefore, this Court has to hold that the findings recorded by the Courts below are on the basis of surmises, conjectures and assumptions by the Courts below without any legal foundation and basis. The findings of the Courts below in this regard are bad in law and the same are vitiated and therefore the impugned judgments are liable to be set aside.
30. Further, the Courts below have failed to take into consideration that mere permissive possession of the plaintiffs of the suit schedule lands for any length of time with an animus against the true owner is not sufficient to establish adverse possession. In this regard, the learned Counsel for the defendants/appellants has rightly placed reliance upon a catena of judgments of the Apex Court, which are:
(a) Parwatabai's case, supra (paras 3 and 4);
(b) Thakur Kishan Singh's case, supra (para 5);
(c) Gaya Parshad Dikshit's case, supra (para 1);
(d) State Bank of Travancore's case, supra (para 9);
(e) Madhavkrishna's case, supra (para 5);
(f) Papaiah v. State of Karnataka, 1996(7) Kar. L.J. 853 (SC) (para 6);
(g) Roop Singh's case, supra (para 7); j
(h) Madhavkrishna's case, supra (para 5);
(i) Periasami (dead) by L.Rs v. P. Periathambi and Ors., (1995)6 SCC 523
(para 6).
31. The Courts below have lost sight of another vital aspect of the case, namely, the plaintiffs themselves have clearly pleaded in their plaints that the land was assigned to the Society by the State Government and the same has been allotted to them by way of permissive possession for their joint cultivation. The right of the plaintiffs for joint cultivation of the suit schedule properties have been lost by them, when they formed house sites and constructed the buildings as admitted by them in the pleadings. Added to this the action of the plaintiffs in entering into agreements of sale of the Government property with third properties as admitted by them in their pleadings and in the evidence and further allowing the agreement holders to construct houses/buildings, upon the suit schedule properties, is not only illegal but unjustified in law as the plaintiffs have no manner of right, title and interest to sell the land and allow the so-called purchasers to put up the buildings. The plaintiffs have wrongly assumed title over the lands in question which is not vested with them. Therefore, the defendants have rightly exercised their statutory power and duty under the provisions of the KLR Act to prevent the illegal acts of the plaintiff in respect of the suit schedule properties.
32. The land in question is the Government land and it is included within the green belt area in the Comprehensive Development Plan prepared under the provisions of the KTCP Act and no conversion order has been obtained by them from the Competent Authority for change of land use from agricultural to non-agricultural purpose. Therefore, the grant of permanent injunction in favour of the plaintiffs is not only contrary to the provisions of Sections 71, 96, 99 and 104 of the KLR Act but also the law laid down by the Apex Court in the cases of Uttar Pradesh Sales Tax Service Association v. Taxation Bar Association, Agra and Ors., AIR 1996 SC 98 (paras 3 and 25) and Radha. Ballabh v. State of Uttar Pradesh, 1995 Supp. (3) SCC 119 (para 1).
33. Further, the Courts below failed to notice the defence taken in the written statements filed by the defendants, the facts pleaded by the plaintiffs and non-production of the relevant documents to show that the land in question was granted in their favour by the appropriate granting authority in accordance with the provisions of the KLR Act and the Land Grant Rules. The Government has got the power under the provisions of Section 67 of the KLR Act to resume the land and use the same for proper purposes to discharge its social obligation towards the weaker sections of the society. The defendants Counsel Mr. D.S. Ramachandra Reddy has rightly placed reliance upon the judgment of the Apex Court in the case of Chairman, Ramappa Gundappa Sahakari Samyakta Besava Sangha Limited and Anr. v. State of Mysore and Ors., AIR 1974 SC 856 : (1974)2 SCC 221 (paras 8 and 9), which are extracted as hereunder:
"8. The sole point that falls for decision is whether the High Court is right in holding that the Government resolution of 1931 confers on the writ petitioners (respondents 4 and 5 herein) a right "to cultivate the lands in perpetuity conditionally on the payment of the amounts due on account of the land revenue for the same and on the fulfillment of the other terms incorporated in Ex. D." Certainly, if an indefeasible right in property has been vested in the petitioners, as the High Court thinks, there may be something to be said in favour of its ultimate finding, but we have no doubt whatever that the land belonged to Government, that it was free to give leases or rights to cultivate to whomsoever it chose, that its policies could change from time to time in accordance with its own social objectives and that any order modifying or nullifying the earlier policy decision by a subsequent resolution cannot be deprivatory of anyone's rights. At the most, the 1931 decision of Government raised hopes and expectations. What is more, the right to cultivate was precarious and seasonal depending on the recession of the water level during summer, and it is impossible to predicate the vesting of any right in the adjoining owners on the strength of Ex. D. In short, the writ petitioners had no right to property created in their favour by Ex. D of 1931, and in its absence the writ petition itself was unsustainable.
9. If every policy statement or direction of Government regarding disposal of State property were construed as irreversibly creating right to property in prospective beneficiaries strange consequences would follow. An administrative decision of the last century would hold Government prisoner perpetually and deny it the power to alter its policies and programmes, according to its understanding of the needs of the people. Moreover, how can an interest in immovable property--and that in perpetuity--be created by a mere Government proceeding? Nor could the Bombay Land Revenue Code confer such right in real property merely from the circumstance that seasonal cultivation was permitted by the State to be carried on by neighbouring landholders. The provisions of the Code pressed into inept service by the contesting respondents cannot by statutory operation transform an ephemeral permission to cultivate Government land into a permanent estate in it. For we cannot predicate a tenure, much less an unlimited tenure here, as contemplated in Section 68. It is a curious social sidelight of this erroneous construction that even if tank beds and reservoirs get silted up by ploughing up the top soil the State will be helpless to prevent it even though the area is part of the irrigation project".
34. The learned Special Government Advocate further rightly contends that the Courts below have failed to take into consideration of the relevant facts, namely, the Government did not pass on any title in respect of the suit schedule property in favour of the Co-operative Society as there is no grant order passed and Saguvali Certificate issued in its favour. Therefore, the said Society, in turn, could not have transferred the title of properties in favour of the plaintiffs. It follows that no title has been conferred upon them under the provisions of the Transfer of Property Act, They have not produced any document to substantiate the contention that the land was granted in favour of the Society and it had in turn transferred the same in favour of the plaintiffs by following the procedure contemplated under the provisions of the Transfer of Property Act and complying with the requirements under the provisions of the Indian Registration Act of 1908. The Courts below have lost sight of the above relevant facts while recording their findings on the contentious issues and points framed by them while answering them in the impugned judgments. In this view of the matter the findings recorded by the Courts below in the impugned judgments are perverse in law and also suffers from error in law. Therefore, the common substantial question of law No. 3 framed at the time of admission and additional substantial question of law No. 1 in R.S.A. No. 960 of 1997 would arise in these appeals and the same is answered in favour of the defendants.
Answer regarding substantial question No. 435. In O.S. No. 237 of 1996, prayer No. 2 is to call for the records of the 2nd defendant relating to the orders dated 10-2-1993 and 16-5-1995 and to set aside the same on the ground that those orders were passed by the defendant 2 in violation of the statutory obligation, irregular, unlawful and violative of principles of natural justice. According to the learned Counsel for the plaintiffs the above orders are contrary to the law laid down by this Court in K. Ramajois v. The Chief Secretary, Government of Karnataka and Ors., 1996(1) Kar. L.J. 495 para 5, judgments of the Apex Court in Firm Seth Radha Kishan (deceased) represented by Hari Kishan and Ors. v. Administrator, Municipal Committee, Ludhiana, , Munshi Ram and Ors. v. Municipal Committee, Chheharta, Nathoo Lal v. Durga Prasad, AIR 1954 SC 355 wherein it is held that jurisdiction of the Civil Courts under Section 9 of the CPC is not a bar to entertain suit in respect of the order passed by the Competent Authority in exercise of the power under the provisions of Section 67 of the KLR Act. Learned Counsel Mr. Varadarajan on behalf of the plaintiff submitted that the Civil Court under. Section 9 has got jurisdiction even in respect of the orders passed by the authority under the provisions of the KLR Act as the same is passed in contravention of the statutory provisions under Section 39 and Rule 7 of the Land Grant Rules, that the 2nd defendant is not the Competent Authority for resuming the land as he is not the granting authority either under the Land Revenue Code of 1888 or the Land Grant Rules, that opportunity was not given to the plaintiff before passing the orders dated 10-2-1993 and 16-5-1995. Therefore, it is urged by the learned Counsel that though the plaintiff has not exhausted the alternative statutory remedy provided under the provisions of the Act and the suit is maintainable in law with regard to the challenge to the aforesaid order passed by the 2nd defendant. According to the learned Counsel for the plaintiffs the Civil Court is required to examine the relief claimed on the basis of the pleadings and legal submissions and the prayer for grant of consequential relief can be granted by the Civil Court in exercise of its jurisdiction. In support of this submission, he has placed reliance upon the Constitution Bench judgments of the Apex Court in Dhulabhai v. State of Madhya Pradesh and Anr., AIR 1969 SC 78 : (1968)3 SCR 662, Premier Automobiles Limited v. Kamlakar Shantaram Wadke and Ors., AIR 1975 SC 2238 : 1975-II-LLJ-445 (SC), Rajasthan State Road Transport Corporation and Anr. v. Krishna Kant, AIR 1995 SC 1715 and also the judgments of this Court in H.K. Dasappa Setty (dead) by L.Rs v. K.N. Thammanna Gowda and Anr., 1983(2) Kar. LJ. 191 : AIR 1983 Kant. 153 and 1982(1) Kar. L.J. 61 (sic). The learned Counsel submits that while passing the orders in exercise of the power by the second defendant either under Section 67 of the KLR Act read with either Rule 39 or Rule 25 of the Rules, he was required to statutorily adhere to the rules and he should have given an opportunity of hearing to the plaintiff. That has not been done by the second defendant in this case. Therefore, the learned Counsel submits that the prayer made at Column No. 2 in the original suit is maintainable against the defendants and the provision of Section 63 of the KLR Act is no bar for institution of the suit filed by the plaintiff.
36. On the other hand, learned Counsel for the defendants argued that without challenging the said orders by filing statutory appeal as provided under the provision under Section 49 of the KLR Act, which is an effective statutory alternative remedy provided to the plaintiff and without exhausting the said remedy available to him, he has filed the suit and sought for the relief. Hence, the suit is not maintainable in law. The learned Counsels for the defendants further submitted that the plaintiff could not have prayed for the said relief as the Civil Court has no jurisdiction to grant the said relief in view of under Section 63 of the KLR Act. It is also further submitted that though the said contention was not raised before the Courts below by the defendants, since the same is a legal contention, as held by the Apex Court in catena of cases, it can be urged at any time. Therefore, learned Counsel for the defendants has urged that the above said substantial question of law would arise in these appeals and requested this Court to answer the same in favour of the defendants.
37. The legal contentions urged by the learned Counsels for the parties has been carefully examined by this Court in the light of Section 63 of the KLR Act and Section 9 of the CPC. The Civil Court's jurisdiction under Section 63 of the KLR Act is expressly barred in respect of the proceedings against the State Government on account of any act or omission of the State Government or any Revenue Officer. Unless the plaintiff first proves that prior to the institution of the suit he had exhausted the remedy of appeal as provided in law for the time being in force, within the period of limitation prescribed in the statute, it is not possible in law for the plaintiff to institute the original suit challenging the orders referred to above passed by the second defendant. Against the orders dated 10-2-1993 and 16-5-1995 of the second defendant, the plaintiff had a right of statutory appeal to the Karnataka Appellate Tribunal under Section 49-C of the KLR Act, 1964. Undisputedly, the statutory appeal was not presented by the plaintiff before the KAT within the period prescribed under the provisions of Section 51 of the KLR Act against those orders. The plaintiff had the right to urge all the grounds in the appeal, including the ground that the 2nd defendant passed the orders dated 10-2-1993 and 16-5-1995 against the plaintiff without complying with the mandatory provisions of the Act, Rules and in compliance with the principles of natural justice in respect of the land in question. In view of the clear bar under Section 63 of the KLR Act suit filed by the plaintiff was not maintainable. It follows that Section 9 of the CPC will not come to the rescue of the plaintiff. In addition to that Sub-section (3) of Section 67 of the KLR Act reads as under:
"(3) Any person aggrieved by an order made under Sub-section (2) or in appeal or revision therefrom may institute a civil suit contesting the order within a period of one year from the date of such order and the final decision in the civil suit shall be binding on the parties".
In view of this clear provision also, the plaintiff should have instituted the suit only after exhausting the remedies of appeal and revision. The same are not exhausted.
38. Section 67 of the KLR Act, 1964 confers power upon the Deputy Commissioner to determine the claim of ownership, title and interest over the land in question by the plaintiff. The 2nd defendant has exercised his power under the provisions of the Act and the Rules referred to supra and passed the orders which are appealable under Section 49-C and the said alternative remedy of filing statutory appeal as provided to him is not exhausted by the plaintiff before invoking the Civil Courts jurisdiction under Section 9 of the CPC as provided under Section 63 of the Act. Law has been laid down by the Apex Court in this regard in the cases of Firm Seth Radha Kishan, supra (para 7) and Munshi Ram, supra, (paragraph 24) and the judgment of this Court in K. Ramajois' case, supra wherein this Court after interpreting the provisions of Section 63 of the KLR Act and Section 9 of the CPC has held that original suit is not maintainable without exhausting the statutory remedy of appeal. The relevant paragraphs 7 and 24 of the reported cases of the Apex Court referred to supra are extracted as hereunder:
Firm Seth Radha Kishan's case, supra:
"7. Under Section 9 of the Code of Civil Procedure the Court shall have jurisdiction to try all suits of civil nature excepting suits of which cognizance is either expressly or impliedly barred. A statute, therefore, expressly or by necessary implication, can bar the jurisdiction of Civil Courts in respect of a particular matter. The mere conferment of special jurisdiction on a Tribunal in respect of the said matter does not in itself exclude the jurisdiction of Civil Courts. The statute may specifically provide for ousting the jurisdiction of Civil Courts, even if there was no such specific exclusion, if it creates a liability not existing before and gives a special and particular remedy for the aggrieved party, the remedy provided by it must be followed. The same principle would apply if the statute had provided for the particular forum in which the remedy could be had. Even in such cases, the Civil Court's jurisdiction, is not completely ousted. A suit in a Civil Court will always lie to question the order of a Tribunal created by a statute, even if its order is, expressly or by necessary implication, made final, if the said Tribunal abuses its power or does not act under the Act but in violation of its provisions".
Munshi Ram's case, supra:
"24. It is well-recognised that where a Revenue Statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner, and all other forums and modes of seeking it are excluded. Construed in the light of this principle, it is clear that Sections 84 and 86 of the Municipal Act bar, by inevitable implication, the jurisdiction of the Civil Court where the grievance of the party relates to an assessment or the principle of assessment under this Act".
In view of the law laid down in the above said cases by the Apex Court, without filing appeal by the plaintiff as provided under Section 49-C of the KLR Act to the KAT, since the jurisdiction of the Civil Court under Section 9 of the CPC has been expressly barred under Section 63 of the KLR Act the plaintiff could not have invoked Civil Court's jurisdiction to institute the original suit seeking the second prayer in the suit. There fore, this Court has to hold that in view of the express bar as contem plated under Section 63 of the KLR Act filing of the suit by the plaintiff seeking the consequential relief in respect of the orders passed by the defendant 2 is not permissible in law. Though this legal plea was not raised before the Trial Court or before the first Appellate Court by the defendants, since the said question is a legal question as held by the Apex Court in catena of cases holding that the legal plea can be raised by a party at any stage of the proceedings, the above said substantial question of law has been rightly raised by the defendants and framed by 1 this Court. After going through the provisions of Section 63 of the KLR Act and the law laid down by the Apex Court and this Court in the cases cited supra, the submission of the learned Counsel for the defendants is well-founded and the same must be accepted. On the other hand, in view of my findings recorded in this judgment on the rival contentions urged on behalf of the parties, the submission made on behalf of the learned Counsel for the plaintiff Mr. Varadarajan placing reliance upon the judgments of Apex Court and this Court are misplaced and the law laid down in those cases are inapplicable as Section 63 of the KLR Act expressly bars the Civil Court's jurisdiction, and the submissions made by the learned Counsel placing reliance upon the said cases is wholly untenable in law and therefore the same cannot be accepted by this Court. For the reasons recorded above, the said substantial question of law is answered in favour of the defendants.
Answer to substantial question Nos. 1 and 239. The first and second substantial questions of law framed on 12-8-1998, which are common in all these appeals are answered as hereunder:
The learned Counsel appearing on behalf of the defendants Sri D.S. Ramachandra Reddy, submitted that the original suit filed by the plaintiffs are not maintainable as Section 80(1) of the CPC provides that no suit shall be instituted against the Government or against Public Officer in respect of any act purporting to be done by the State or Public Officer. Without complying with the mandatory requirement as provided under Sub-section (1) of Section 80 of the CPC original suits were filed. It is contended that no notice under Section 80(1) of the CPC was either delivered or left at the office of the defendants. In this regard, it has been specifically urged in the memorandum of appeals that Notices, Exs. P. 15 and P. 16 which have been issued under Section 80 of the CPC and Section 125 of the KCS Act, to the defendants. Administrator of the Panchayat and Liquidator of the Society under certificate of postings vide Exs. P. 17 to P 19 are not in accordance with the above provisions of the CPC and the KCS Act. It is urged by the plaintiffs Counsel that the fact of issuing and receipt of said legal notices by Administrator of the Panchayat and Liquidator of the Society, is not specifically denied by them in their written statement as required under Order 8, Rule 5 of the CPC. Therefore, the learned Counsel for the plaintiffs has prayed for answering the said question of law against the defendants. As could be seen from the written statements filed in the suits relating to R.S.A. Nos. 1003 to 1005 of 1997 the defendants have not specifically denied the plaint averments except general denial of the plaint averments. It is urged by the learned Counsel for the plaintiffs that the ground urged in the appeals and the substantial question of law framed by this Court do not arise for consideration of this Court in view of the judgments of the Supreme Court in (1996)1 SCC 104 (sic); Badat and Company, Bombay v. East India Trading Company, AIR 1964 SC 538; Mudlappa v. Srinidhi Textiles, Madhugiri, 2000(2) Kar. L.J. Sh. N. 32 and Oriental Insurance Company Limited, Bangalore v. S. Savitha, 1995(6) Kar. L.J. 31 : ILR 1996 Kar. 435. Further, reliance is placed by the learned Counsel for the plaintiffs on Sub-section (3) of Section 80 of the CPC which contemplates that suit instituted against Government or a public servant shall not be dismissed by mere reason of any error or defect in the notice under Section 80(1) of the CPC. The issuance of notices under Section 80(1) of the CPC is a mixed question of fact and law, the Trial Court and the first Appellate Court on the basis of the material evidence placed on record have recorded a finding of fact holding that the notices have been issued and served upon the defendants. Therefore, the learned Counsel for the plaintiffs submit that the legal contention urged on behalf of the defendants for the first time before this Court in this regard is not tenable in law and the same shall not be entertained by this Court as it would not constitute substantial question of law. Hence, the learned Counsel for the plaintiffs has prayed this Court to answer the said substantial question of law in the negative, against the defendants.
40. With reference to the above rival contentions urged by the learned Counsels for the parties, this Court has recorded its findings on the above said questions of law with its reasons as hereunder:
The plaintiffs have not either delivered or left the notices at the office of the defendants as required under Section 80(1) of the CPC. As could be seen from the order sheet dated 6-4-1996 in the O.S. No. 237 of 1996, the plaintiffs Counsel has filed an application under Section 80(2) of the CPC seeking permission of the Court to institute the suit and to dispense with issuance of notice to the defendants on the ground that the matter was urgent in nature. The learned Trial Judge on 8-4-1996 has granted exemption for issuing notice as required under the said provision in exercise of his power under Section 80(2) of the CPC. A contention was raised by the 3rd defendant in the written statement regarding maintainability of suit for non-issuance of notice under Section 80 of the CPC. This aspect of the matter was raised in the regular appeal filed by the defendants before the first Appellate Court and same has not been properly considered by it and answered the same by recording its finding with reasons. Therefore, the substantial questions of law arise in this regard in this original suit.
41. To consider the legal submissions made by the learned Counsels for the parties on the above said questions of law, I have carefully examined the pleadings, the documents, Exs. P. 15 to P. 19 and the evidence on record pertaining to the other original suits out of which the connected second appeals are filed. No doubt there is no specific denial by the defendants in their written statements regarding non-issuance of notices by the plaintiffs as provided under Section 80(1) of the CPC either by service of the same upon the defendants or left the same in the offices of the Administrator of Panchayat and Liquidator of the Society. The copies of notices sent to them are produced at Exs. P. 15 and P. 16.
Exs. P. 17 to P. 19 are the certificates of postings, as acknowledgements to show that notices were sent and served upon the defendants. The learned Counsel for the defendants had placed reliance upon the judgment of the Apex Court in Balraj Taneja and Anr. v. Sunil Madan and Anr., AIR 1999 SC S381 : (1999)8 SCC 396 : JT 1999(6) SC 473 paragraphs 28 and 29 in support of the proposition that Order 8, Rules 1 to 5 of the CPC provide for filing written statements by the defendants disclosing their defence. If the defendants have not denied specifically the facts pleaded in the plaint or by necessary implication or even if there is an admission in the written statement with regard to some plaint averments, the plaintiffs are still required to prove the essential fact and the Courts cannot blindly pass judgments on the basis of the pleadings of the parties. Paragraphs 28 and 29 of the aforesaid judgment reads as hereunder:
"28. Having regard to the provisions of the Order 12, Rule 6; Order 5, Rule 8, is special proviso thereto; as also Section 58 of the Indian Evidence Act, this Court in Razia Begum u Sahebzadi Anwar Begum and Ors., AIR 1958 SC 886 observed as under (para 9 of AIR):
"In this connection, our attention was called to the provisions of Rule 6 of Order 12 of the Code of Civil Procedure, which lays down that, upon such admissions as have been made by the Prince in this case, the Court would give judgment for the plaintiff. These provisions have got to be read along with Rule 5 of Order 8 of the Code with particular reference to the proviso which is in these terms:
Provided that the Court may in its discretion require any fact so admitted to be proved otherwise that by such admission".
The proviso quoted above, is identical with the proviso to Section 58 of the Indian Evidence Act, which lays down that facts admitted need not be proved. Reading all these provisions together, it is manifest that the Court is not bound to grant the declarations prayed for, even though the facts alleged in the plaint, may have been admitted".
The Court farther observed (at page 892, para 9 of AIR):
"Hence, if the Court, in all the circumstances of a particular case, takes the view that it would insist upon the burden of the issue being fully discharged, and if the Court, in pursuance of the terms of Section 42 of the Specific Relief Act, decides, in a given case; to insist upon clear proof of even admitted facts, the Court could not be said to have exceeded its judicial powers".
"29. As pointed out earlier, the Court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor the Court should proceed to pass judgment blindly merely because a written statement has not been filed by the defendants traversing the facts set out by the plaintiff in the plaint filed in the Court. In a case, specially where a written statement has not been filed by the defendant, the Court should be a little cautious in proceeding under Order 8, Rule 10 of the CPC. Before passing the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of Court's satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the Court can conveniently pass a judgment, against the defendant who has not filed the written statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the Court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression "the Court may, in its discretion, require any such fact to be proved" used in sub-rule (2) of Rule 5 of Order 8, or the expression "may make such order in relation to the suit as it thinks fit" used in Rule 10 of Order 8".
In view of the law laid down by the Apex Court in the case cited supra, the legal contention urged on behalf of the defendants as to whether notices as required under Section 80(1) of the CPC were neither served nor delivered or received at the Office of the Secretary to the State Government or 2nd defendant-Deputy Commissioner or other defendants who are public officers is required to be examined. The same has been examined by this Court with reference to Exs. P. 15 and P. 16. It is no doubt true that the copies of the said legal notices were sent to the defendants and other officers and Exs. P. 17 to P. 19 are the certificate of posting to show that notices sent to them in terms of Section 80(1) of the CPC.
42. In the above context it is pertinent to note that there were three original suits filed in O.S. Nos. 399, 479 and 481 of 1993. But Exs. P. 15 and P. 16 are only two legal notices in respect of one Thimmarayappa and others, who are plaintiffs in O.S. No. 399 of 1993. In respect of other two original suits no notices were sent as per Section 80(1) of the CPC. Exs. P. 17 to P. 19 are copies of certificate of postings pertaining to Exs. P. 15 and P. 16. The learned Counsel for the defendants has placed reliance upon the judgment of the Apex Court in K. Narasimhaiah v. B.C. Singri Gowda and Ors., AIR 1966 SC 330 wherein the Apex Court has considered the word "giving" when complete and held at paragraph (11) as follows.--
"(11) "Giving" of anything as ordinarily understood in the English language is not complete unless it has reached the hands of the person to whom it has to be given. In the eye of law however ''giving" is complete in many matters where it has been offered to a person but not accepted by him. Tendering of a notice is in law therefore giving of a notice even though the person to whom it is tendered refuses to accept it. We can find however no authority or principle for the proposition that as soon as the person with a legal duty to give the notice dispatches the notice to the address of the person to whom it has to be given, the giving is complete. We are therefore of opinion that the High Court was wrong in thinking that the notices were given to all the Councillors on the 10th October".
In view of the law laid down by the Apex Court in the aforesaid case, this Court has to hold that mere despatch of notices to the address of the persons is not sufficient, but it must be actually either delivered or tendered to the person/s to whom they are required to be given under Section 80(1) of the CPC. Further, the learned Counsel for the defendants has also rightly placed strong reliance upon the judgment of this Court in the case of Chandrappa v. K. Subramanya, 1995(2) Kar. L.J. 175 : ILR 1995 Kar. 1555 while interpreting the provisions of Section 21(1)(a) of the repealed Karnataka Rent Control Act, 1961 in the matter of issuance of notice to the party, this Court has examined the effect of sending of notice under certificate of posting and held at paragraphs 11 and 12 that the certificate of posting produced to show that notice was sent to the tenant by the landlord merely evidence the fact of posting of the postal article but the same does not amount to evidence of delivery or left at the addressee, even though the address given on the postal article is found to be correct. Keeping in view the law laid down by this Court, it has examined the submissions of the learned Counsel for the defendants with reference to the evidence of P.W. 1 and the legal notices which were alleged to have been sent as per Exs. P. 15 and P. 16 under certificates of posting as per Exs. P. 17 to P. 19 to the defendants and others.
43. The P.W. 1, who claims to be the General Power of Attorney holder of the plaintiffs, has spoken to in his evidence before the Trial Court with reference to the office copies of the legal notices addressed to the defendants as per Exs. P. 15 and P. 16 stated about sending them under certificates of posting at Exs. P. 17 to P. 19. But he has not stated that the said notices have been either delivered to the persons to whom they were addressed or left at the Office of the Secretary of the first defendant or the 2nd defendant. In the absence of production of the acknowledgments evidencing the factum of either delivery or leaving the same in the office of the defendants, service of notice upon them is not proved as required under Section 80(1) of the CPC. Mere production of certificates of posting do not evidence the fact of either delivery or leaving the postal articles at the addresses mentioned in those certificates of posting as per Exs. P. 17 to P. 19 even though the addresses given on the postal articles are found to be correct.
44. For the reasons stated above, this Court has to hold that the mandatory requirement under Section 80(1) of the CPC has not been complied with by the plaintiffs either by delivery of the notices upon the defendants or leaving the same in their offices. Therefore, the institution of the suits by the plaintiffs against the State Government and others and the grant of the reliefs as prayed in the original suits by the Courts below are void ab initio in law.
45. The submission made by the learned Counsel for the plaintiffs is that the service of notices upon the defendants under Section 80(1) of the CPC shall not be strictly viewed by this Court as provided under Section 80(3) of the CPC. Having regard to the clear law on the issue, the findings recorded by the Trial Court, which are confirmed by the first Appellate Court, are not tenable in law as they are not, only erroneous but also suffers from error in law. The Courts below have not examined the real intentment and object of issuance of notice to the State Government and public officers before institution of the original suit as required under Section 80(1) of the CPC. Further, P.W. 1-Gufzar Khan, the General Power of Attorney holder of the plaintiffs, has not stated in his evidence that notices have been either delivered or left at the offices of the defendants as required under Sub-sections (1) and (3) of Section 80 of the CPC.
46. For the reasons stated supra, the contentions urged in this regard by the learned Counsel for the plaintiffs placing reliance upon the decisions of the Apex Court and this Court also must fail as those cases are misplaced and not applicable to the facts of this case. Accordingly, the substantial questions of law in this regard is answered against the plaintiffs and in favour of the defendants.
47. On the substantial question of law No. 4 raised by the defendants Counsel by filing the memo dated 24-2-2001, this Court proceeds to answer the same as hereunder.--
48. Since this Court already answered the common substantial questions of law framed at the time of admission particularly question No. 3 and additional substantial question No. 1 in R.S.A. No. 960 of 1997 framed pursuant to the memo dated 22-2-2001 filed by the defendants have been extensively examined and considered with reference to the concurrent findings recorded by the Courts below in the impugned judgments and answered the same by assigning valid and cogent reasons in favour of the defendants holding that the plaintiffs have no right, title, interest upon the suit schedule property and they have neither perfected their title by adverse possession as claimed by them or they are in lawful possession of the suit schedule properties, therefore they have no right to alienate the same in favour of third parties by executing agreement of sales. Accordingly, the first portion of substantial question of law referred to above is answered against the plaintiffs.
It is an undisputed fact that the O.S. Nos. 399, 479 and 481 of 1993 were instituted by the plaintiffs represented by their power of attorney holder, Gulzar Khan. The General Power of Attorneys executed in his favour by the plaintiffs in O.S. No. 399 of 1993 is dated 28-1-1992, in O.S. No. 479 of 1993 is dated 24-1-1991 and in respect of the suit in O.S. No. 481 of 1993, the power of attorney is dated 20-2-1991. They are produced as document No. 1 at the time of institution of the suits before the Trial Court. P.W. 1, the Power of Attorney holder on behalf of the plaintiffs, has spoken to the General Power of attorney documents executed by the plaintiffs. The original power of attorney documents had been produced and marked as Ex. P. 21, dated 23-3-1996 in O.S. No. 479 of 1993, Ex. P. 46, dated 23-3-1996 in O.S. No. 481 of 1993 and Ex. P. 1, dated 28-1-1992 in O.S. No. 399 of 1993. The suits were instituted by the General Power of Attorney holder Mr. Gulzar Khan on the basis of the Xerox copies of the power of attorneys dated 28-2-1992, 24-1-1991 and 20-2-1991 respectively, which are produced as document No. 1 in the respective original suits before the Trial Court. At the time of adducing evidence in the suits, the originals of the same are not produced in respect of O.S. Nos. 479 and 481 of 1993. However, in respect of the said suits the General Power of Attorney dated 23-3-1996 as per Exs. P. 21 and P. 46 respectively had been produced and marked.
49. In the above connection, learned Counsel for the plaintiffs has contended that there is ratification of the earlier power of attorneys executed by the plaintiffs in favour of the General Power of Attorney holder in respect of the O.S. Nos. 479 and 481 of 1993 subsequently by the plaintiffs, which is permissible in law. In support of the said contention, he has placed strong reliance upon the provisions of Sections 182, 186 and 187 of the Indian Contract Act, 1872 and also upon the judgments in T.R. Bhavani Shankar Joshi and Anr. v. Gordhandas Jamnadas and Anr., AIR 1943 PC 66 and Hukumchand Insurance Company Limited v. Bank of Baroda and Ors., 1977(2) Kar. L.J. 194 : AIR 1977 Kant. 204 at para (9). The learned Counsel for the plaintiffs state that by virtue of the action of the principal, namely, the plaintiffs herein, in executing the subsequent power of attorney dated 23-3-1996 as per Exs. P. 21 and P. 46 in favour of their General Power of Attorney holder, the holder had the authority to institute the original suits in O.S. Nos. 479 and 481 of 1993 before the Trial Court against the defendants.
50. The learned Counsel for the defendants has rebutted the above contention of the plaintiffs Counsel by placing strong reliance upon the following three judgments of the Bombay High Court, Privy Council and the Madhya Pradesh High Court in T.R. Pratt (Bombay) Limited v. E.D. Sassoon and Company Limited and Anr., AIR 1936 Bom. 62, Imperial Bank of Canada v. Mary Victoria Begley, AIR 1936 PC 193 and National Textile Corporation (MP) Limited, Bhopal v. M.P. Electricity Board, Jabalpur, AIR 1980 MP 32. In those cases the ratifica tion of earlier action of the principal has been considered and it has been held in Imperial Bank of Canada's case, supra, as under.--
"(c) Principal and Agent--Ratification--For this doctrine, agent should not act for himself.
.... The first essential to the doctrine of ratification, with its necessary consequence of relating back, is that the agent shall not be acting for himself, but shall be intending to bind a named or ascertainable principal (Halsbury's Laws of England, Edn. 2, page 231; Heath v. Chitton, (1844) 12 M and W 632 and Eastern Construction Company v. National Trust Company, 1914 AC 197 : 83 LJPC 122 : 110 LT 321. If the suggestion of ratification in this case is analysed it comes to this, that the agent having put some of the principal's money in his pocket, the latter "ratifies" the act. For the reason given this is not possible as a legal conception, since the agent did not take and could not be deemed to have taken, the money for himself as agent for the principal. If the act had been authorised, the contract between the principal and the agent would have been the ordinary contract of loan. That indeed seems to have been what McElroy suggested to Chambers, if he suggested anything honest at all. There can be no room here for the application of the doctrine of ratification, The point was clearly put in the judgment of the Chief Justice:
McElroy was not professing to act as her (Mrs. Begley's) agent in paying the Bank, and the Bank was not receiving the money from anybody acting as the appellant's agent. This is a most important consideration because it follows that, as McElroy did not profess to represent the appellant (Mrs. Begley) in paying the Bank, his act in doing so was not one which the appellant could validly make her own by ratification".
In view of the law laid down in the judgments referred to supra it has to be held that the power of attorney holder has failed to show that he had the authority to institute O.S. Nos. 479 and 481 of 1993 on behalf of the plaintiffs as on the date of their institution before the Trial Court. Since P.W. 1, had produced the Xerox copies of the GPA as document No. 1 along with the plaints at the time of institution of the suits, production of the subsequent power of attorneys as per Exs. P. 21 and P. 46 do not arise at all and these documents do not amount to ratification of the earlier power of attorneys executed by the plaintiffs in favour of P.W. 1 and he had the authority to institute the original suits and prosecute the same before the Courts below.
51. The contention regarding the original authority given by the plaintiffs for institution of the suits and subsequently the same were ratified by executing separate GPA in favour of P.W. 1 as per Exs. P. 21 and P. 46, is untenable as the General Power of Attorney holder had no power or authority to institute the said suits against the defendants. In view of the law laid down by the various High Courts and Privy Council referred to supra, by virtue of the alleged ratification of the earlier power of attorneys produced as document No. 1, dated 24-1-1991 and 20-2-1991 respectively, the agent cannot be deemed to have taken the authority on behalf of the principal for prosecution of the cases by producing originals subsequently which bear altogether different dates.
52. For the reasons stated supra, the latter portion of the substantial question of law with regard to the authority of the General Power of Attorney holder for instituting and prosecuting the cases on behalf of the plaintiffs requires to be answered against the plaintiffs and in favour of the defendants holding that the GPA holder Mr. Gulzar Khan, P.W. 1 had no authority to institute the above two suits. Hence, the suits on this count are also liable to be dismissed.
53. The additional substantial questions of law Nos. 7 and 8, which are framed as per the memo dated 23/24-2-2001 filed by the defendants after due notice to the plaintiffs Counsel are taken up together to answer the same.
54. According to the plaintiffs, the land was given by the Government to the Society for the purpose of joint cultivation by its members who belong to SC/ST for their rehabilitation. The second defendant under Sub-section (2) of Section 67 of the KLR Act, 1964, has got the power to determine the rights of the parties in respect of the land in question as the plaintiffs have claimed their rights against the Government as the owners. The defendants are required to discharge their statutory duties under Sections 38 and 96 and other relevant provisions of the KLR Act to protect the Government land in the larger interest of public. The Apex Court in the decision of Uttar Pradesh Sales Tax Service Association's. case, supra, at paragraphs 3 and 25, has succinctly laid down the law with regard to the power and scope of the High Court under Article 226 of the Constitution of India for issuing the appropriate writs. It has been clearly held in that case that the High Court has no power to issue a writ or order prohibiting a Statutory Authority from discharging its statutory functions under statutory enactment or transferring the functions of that authority to another jurisdiction. Exercise of such power by the High Courts generates rippling effect on the subordinate judiciary and statutory functionaries. In the writ petition filed by the Advocates in that case seeking issuance of a writ of mandamus or direction prohibiting the statutory authority namely, the Appellate Authority under Section 9 of the Uttar Pradesh Sales Tax Act, 1948 from discharging their quasi-judicial functions and issuing the State Government to withdraw all powers from it and transfer the pending cases to any other authority, was held to be not sustainable in law. It was held that the High Court has no power and jurisdiction under the constitutional provisions to issue such writ or order or direction to the Statutory Authorities. The same view has been taken by the Apex Court with reference to the provisions of the Income-tax Act of 1961, wherein the Apex Court has in unequivocal terms held that the High Court cannot exercise its powers and jurisdiction under Article 226 of the Constitution of India for issuance of a writ of mandamus to the Statutory Authority to act contrary to the provisions of the statutory enactments. The ratio laid down by the Apex Court in the above said case with all fours applicable to the facts of these appeals as the plaintiffs have specifically prayed for grant of Dermanent injunction restraining the defendants from interfering with the plaintiffs' possession and enjoyment of their respective suit schedule properties and from demolition of structures and buildings either by themselves, agents, servants or anybody working under their direction. The grant of such relief in favour of the plaintiffs is in contrary to the statutory powers conferred upon the defendants under the provisions of the KLR Act, 1964 and Rules 1966 thereby preventing them from discharging their statutory duties in the public interest. The plaintiffs have not produced any documents to show that they have been in possession of the respective suit schedule properties on their own independent rights. On the other hand, their possession of the lands in question is permissive since the land was given to them for joint cultivation by the Society for their rehabilitation. As the said land was assigned to the Society by the State Government for the aforesaid purpose, the permissive possession of the lands by the plaintiffs can be taken away by the defendants in exercise of their powers under the provisions of the KLR Act and the KLR Rules to protect the Government property, when the members of the said 'Society' act to the detriment interest of the property. If the permanent injunction granted is allowed to remain in force, then it would be contrary to the statutory provisions of the KLR Act and the KLR Rules. That would affect the public interest. Therefore, the reliefs granted by the Courts below in favour of the plaintiffs is not only contrary to the provisions of Sections 38, 67 and 96 and other relevant provisions of the KLR. Act, 1964, but also the law declared by the Apex Court in the cases referred to supra. Further, the relief of permanent injunction granted by the Courts below in favour of the plaintiffs on the basis of their claim is contrary to Section 67(2) of the KLR Act.
55. Having regard to the undisputed fact that grant orders and sagavali chits in respect of the suit lands have not been either passed or issued by the Competent Authority under the provisions of either the Mysore Land Revenue Code of 1888 or the KLR Act of 1964 and the Land Grant Rules in favour of the plaintiffs, and therefore the suit lands are not alienated lands in terms of the provisions of Section 2(1) of the KLR Act, 1964. The Deputy Commissioner, has got power under the provisions of Section 67(2) of the Act to decide the rights of the parties and take possession of the properties to the State Government to safeguard and protect the same from its misuse by the plaintiffs, in interest of public.
56. The substantial questions of law No. 8 as framed by this Court involve in these appeals for consideration of this Court. The land in question is situated in the green belt area as declared and notified by the State Government in the 'CDF approved by it under the provisions of the Karnataka (Town and Country) Planning Act, 1961 (in short "KTCP Act"). The land has not been converted from agricultural purpose to non-agricultural purpose as required under Section 95 of the KLR Act and Rule 108 of the KLR Rules. No documents are produced by the plaintiffs to show that they have obtained necessary conversion orders from the Deputy Commissioner who is the Competent Authority under the provisions of the KLR Act for the purpose of construction of either the farmhouses or dwelling-houses upon the suit schedule properties. On the other hand, the plaintiffs themselves have pleaded that houses have been constructed. The same is contrary to the provisions of the 'KTCF Act and also provisions of the KLR Act. The plaintiffs have committed grave illegality in putting up constructions upon the suit lands. The nature of the Revenue land is not changed as there are no conversion orders obtained by them from the second defendant as required under Section 95 and Rule 108 of the KLR Rules. In fact no such conversion could have been granted by the second defendant in respect of the lands in question in view of the provisions of the 'KTCP' Act, 1961, undisputedly the land in question is included in the green belt area in the Comprehensive Development Plan prepared by the planning Authority. Without changing the land use for the purpose for which it is earmarked in the CDP. and obtaining necessary permission for residential use by making an application to residential use by making an application to the State Government under Section 14A of the KTCP Act, neither the plaintiffs nor any other persons claiming through them can construct houses/structures as claimed by them upon the land in question. If the impugned judgments and decrees passed in favour of the plaintiffs by the Courts below are allowed to sustain, the same will prevent the defendants from exercising their statutory powers and discharging their statutory duties both under the provisions of the KLR Act, 1964 and the KTCP Act, 1961. Therefore, the impugned judgments and decrees are liable to be set aside. Accordingly, the additional substantial question of law Nos. 7 and 8 are answered in favour of the defendants keeping in view the law laid down by the Apex Court in the case cited supra.
57. Insofar as the additional substantial questions of law Nos. 1 and 2, framed as per the memo filed in Court dated 2-3-2001, are concerned, the Courts below have placed much reliance upon the Xerox copy of the document, Ex. P. 58, and therefore the findings recorded in the impugned judgments in this regard on the issues and points framed by the Courts below are wholly unsustainable. The said document was marked through defendants witness D.W. 1. The said document is the Hiduvali Certificate said to have been issued by the Liquidator of the Society, who was not conferred with the right or power in respect of the suit schedule properties to transfer or grant the land in favour of the plaintiffs. The contention of the plaintiffs in this regard is wholly untenable in law. The Courts below should have adopted a pragmatic approach in dealing with the Government property keeping in view the provisions of Order 27, Rules 2 and 8-B of the CPC. The Apex Court in the judgment of Periyar and Pareekanni Rubbers Limited v. State of Kerala, AIR 1990 SC 2192 after interpreting the above said provisions of the CPC, at para 9 of the said judgment, has held that any concession made by the Government Pleader in the trial cannot bind the Government as it is obviously always unsafe to rely on the wrong or erroneous concession made by the Counsel appearing for the State unless it is in writing on instructions from the responsible person, otherwise it would cause undue and heavy burden on the public exchequer. Therefore, the Courts below should not have placed reliance upon the said document having regard to the defence taken by the defendants in their written statements wherein it has been specifically stated that the land in question was not granted by the Government to the plaintiffs. On the other hand, it has been specifically stated that the land in question was assigned in favour of the Co-operative Society to distribute the same to its members by giving permissive possession, for their cultivation as a measure of their upliftment and to rehabilitate them. In the absence of grant orders passed and Saguvali Certificates issued in favour of the plaintiffs in respect of the suit schedule property by the defendants in accordance with law, and having regard to the admitted facts by them that the lands in question was given by the Co-operative Society in their favour as claimed by them. In that view of the matter the Courts below should have examined the authority of the Co-operative society for grant of the Government land in their favour under the provisions of the KLR Act and the Land Grant Rules. The document at Ex. P. 58 is not the original. It is a Xerox copy, which is the secondary evidence placed on record by marking the same through D.W. 1. It is not produced and marked as required under the provisions of the Indian Evidence Act. Ex. P. 58 is not a substantive piece of evidence and it is inadmissible in evidence under the provisions of the Indian Evidence Act. There is no foundation laid before the Courts below by the plaintiffs for adducing secondary evidence to prove the contents of the same by examining competent person as their witness in the original suits.
58. Apart from the illegality and invalidity grant of lands in question by the Liquidator of the Society as claimed by the plaintiffs, the Courts below should have carefully examined the admissibility of the document, Ex. P. 58 in evidence keeping in view the provisions of Sections 63, 65 and 66 of Chapter V of the Indian Evidence Act read with Sections 101 to 103 of Chapter VII and also the law laid down by the Apex Court in the cases of Lallan Prasad Chunnilal Yadav v. S. Ramamurthi and Ors., AIR 1993 SC 396 (paras 24 and 25), Sital Das v. Sant Ram and Ors., AIR 1954 SC 606 (para 16), Smt. Chandrakantaben J. Modi and Narendra Jayantilal Modi v. Vadilal Bapalal Modi and Ors., AIR 1989 SC 1269 : (1989)2 SCC 630 (paras 13 and 14), Government of Andhra Pradesh and Ors. v. Karri Chinna Venkata Reddy and Ors., AIR 1994 SC 1865 (paras 1 and 2) and Sait Tarajee Khimchand and Ors. v. Yelamarti Satyam and Ors., AIR 1971 SC 1865 (para 15). Even if the said document is marked in the original suits through the defendants witness, it is not admissible in the evidence and therefore that should not have been construed as a substantive piece of evidence on record in favour of the plaintiffs by the Courts below, The Courts below should not have recorded the findings in their favour in the impugned judgments while answering the contentious issues.
59. Apart from the reasons recorded supra in the judgment, regarding the admissibiiity of the said document, there is no grant of land made either by the Society or by the Government in favour of the plaintiffs. Therefore, the Courts below have seriously committed an error in law by placing reliance upon the aforesaid document and considering the same as substantive piece of evidence in favour of the plaintiffs and recording the findings that suit land was granted in their favour by the Society, It is a well-established principle of law that construction of document is a substantial question of law as held by the Apex Court in the judgments of Saniakumari and Ors. v. Lakshmi Amma Janaki Amma (dead) by L.Rs and Ors., AIR 2000 SC 3009 : (2000)7 SCC 60, Bhusawal Borough Municipality v. Amalgamated Electricity Company Limited, Bhusawal and Anr., AIR 1966 SC 1652 : (1964)5 SCR 905 and Jadu Gopal Chakravarty (dead) by L.Rs v. Pannalal Bhowmick and Ors., AIR 1978 SC 1329 : (1978)3 SCC 215.
60. Though, it has been contended by the defendants in the written statement that Ex. P. 58 is a bogus document, that aspect of the case has not been considered and decided by the Courts below even though the said contention has been referred to in the impugned judgments of the Courts below at paragraphs 25 and 38 respectively. Further, the said document is referred by the Courts below only in respect of the suit in O.S. No. 399 of 1993. No reliance has been placed upon the said document by the Courts below in respect of other two suits. In spite of that, a finding has been wrongly recorded in respect of all the original suits except O.S. No. 237 of 1996 holding that there was a grant in favour of the plaintiffs. Therefore, the impugned judgments suffer from error in law in the absence of grant orders passed by the competent Land Grant Authority under the provisions of the KLR Act and the Land Grant Rules. The liquidator of the Society has no power either to grant the land or transfer the properties in favour of the plaintiffs.
61. The Courts below should have noticed that the document Ex. P. 58 is only dated 19-2-1991 whereas the claim of the plaintiffs in respect of the suit schedule properties except the schedule property in O.S. No. 237 of 1996 is that the grant was made in their favour about 50 years back. Hence, the said documents should not have been accepted by the Courts below.
62. Learned Counsel appearing on behalf of the plaintiffs placed strong reliance upon Section 100 of the CPC contending that there is no substantial question of law in the appeals much less the questions framed by this Court and raised during the course of arguments by filing memos. The defendants must show that the findings recorded in the impugned judgments are either erroneous or suffer from error in law to invoke the power and jurisdiction of this Court under Section 100 of the CPC. Reliance was placed upon the judgment of the Apex Court in the case of Santosh Hazari v. Purushottam Tiwari (deceased) by L.Rs., AIR 2001 SC 965 : (2001)3 SCC 179 : 2001(1) Supreme 642 in support of the proposition that framing of substantial question of law is sine qua non for exercise of power and jurisdiction of this Court to interfere with the impugned judgments, particularly when the findings recorded by the Courts below are concurrent, an obligation is cast upon the defendants to state precisely in the memorandum of appeals that the substantial questions of law that would arise in the appeals and this Court must be satisfied with the substantial questions of law arise for its consideration. Secondly, he has placed reliance upon another judgment of the Apex Court in Kashibai v. Parwatibai, (1995)6 SCC 213 : 1995 AIR SCW 4631 (headnote item (c)), with reference to Section 100(4) of the CPC to contend that unless the defendants show that the findings recorded in the impugned judgments are erroneous for want of evidence on record or suffers from error in law, this Court shall not interfere with the impugned judgments. Reliance is also placed upon the judgment of the Apex Court in 1996 SAR (Civil) 852, in support of the proposition that there is no scope under Section 100 of the CPC for this Court for interference and the findings cf the Courts below must not be interfered with when they are concurrent and interference must be avoided unless warranted by compelling reasons. It is further contended that this Court shall not re-appreciate the evidence on record just to replace the findings of the lower Courts by substituting its own reasons. The aforesaid law is laid down at paragraph 10 of the judgment referred to above. Reliance is also placed upon the judgment of the Apex Court in 2001 SAR (Civil) 82, by the learned Counsel on behalf of the plaintiffs in the connected appeals, wherein the Apex Court at paragraphs 3 and 4 in the above referred case-law is laid down holding that the power of the second Appellate Court is very limited as the High Court, without considering the pleadings and evidence on record has to answer the questions formulated, keeping in view the findings of the lower Appellate Court in the impugned judgments which is the final Court on facts and appreciation of evidence on record to answer the points formulated by it. The learned Counsel for the plaintiffs on the basis of evidence on record has submitted that the first Appellate Court has rightly recorded its findings on the contentious issues concurring with the findings of the Trial Court by assigning valid and cogent reasons. Therefore, it is urged that the second Appellate Court is not entitled to reverse the findings of the first Appellate Court and interfere with the impugned judgments.
63. Further, the learned Counsel for the defendants submits that even though the findings recorded by the Courts below on the contentious issues and points are in favour of the plaintiffs, still this Court has to exercise its second appellate power and jurisdiction as the substantial questions of law as framed by this Court are involved for consideration in these appeals. The learned Counsel has placed reliance upon the law laid down by this Court in the case of Sunkamma, supra. At paragraph 10 of the said judgment, this Court has succinctly laid down the law following the judgments of the Apex Court in Jagdish Singh v. Natthu Singh, AIR 1992 SC 1604; Kochukakkada Aboobacker v. Atahkasim, AIR 1996 SC 3111 : (1996)7 SCC 389; Madati Lal v. Mst. Gopi, AIR 1980 SC 1754; Major Singh v. Rattan Singh (dead) by L.Rs. and Ors., AIR 1997 SC 1906 : (1997)3 SCC 546 : ILR 1997 Kar. 2373 (SC) and D.S. Thimmappa v. Siddaramakka, AIR 1996 SC 1960 : (1.996)8 SCC 365 and various other judgments, that the concurrent findings of the Courts below can be interfered with by this Court in exercise of the power and jurisdiction, if the circumstances stated supra are shown to be in existence in the case.
64. The learned Counsel for the defendants has rightly placed reliance upon the judgment of the Apex Court in the case of State of Rajasthan, supra, in support of the proposition that the concurrent findings recorded by the Courts below based on surmises and conjecture are perverse. Further, it is held that if the findings are not based on legally acceptable evidence, or the findings are patently contrary to law as declared by Supreme Court, the same cannot have any immunity from interference within the hands of the Appellate Court in exercise of its second appellate power and jurisdiction.
65. The concurrent findings recorded by the Courts below are opposed to the provisions of the KLR Act and the Land Grant Rules, Section 80(1) and (3) read with Order 27, Rules 2 and 8-B of the CPC, provisions of the Indian Evidence Act, the Indian Contract Act and the KTCP Act of 1961 and the law laid down by the Apex Court and this Court referred to supra, which has affected the rights of the defendants in respect of the suit schedule property. This important aspect of the case is not properly appreciated, considered and answered in favour of the defendants by the Courts below. On the other hand, in utter disregard to the law laid down by the Apex Court, this Court and Privy Council the impugned judgments are passed by the Courts below against the defendants and therefore these are fit cases to interfere with the impugned judgments and to set aside the same though the findings recorded therein by the Courts below are concurrent.
66. In the course of addressing arguments in these appeals by the learned Counsels for the parties, two impleading applications were filed, one by Dalith Co-ordination Committee, Bangalore Urban District represented by its President along with certain Xerox copies of the paper cuttings dated 22-2-2001. The other impleading application was filed by one Sri H. Narayanaswamy, party-in-person dated 23-2-2001 requesting this Court to permit them to come on record. The applicants claim that they have not interest in these proceedings. The learned Counsel appearing for one of the respondents/plaintiff in R.S.A. No. 1005 of 1997 filed his objection statement opposing the impleading applications. According to the Counsel, the impleading applicants have no right to come on record either to oppose or defend the judgments and decrees passed by the Courts below.
67. The defendants have filed these appeals before this Court challenging the legality and validity of the impugned judgments and decrees passed by the first Appellate Court in affirming the judgments and decrees of the Trial Court. The rights claimed by the plaintiffs in the original suits are individual in nature and decrees are granted in their favour individually. Therefore, the impleading applicants are neither necessary nor proper parties to these proceedings. Hence, the applications are liable to be rejected. Accordingly, the same are rejected.
68. For the reasons stated supra, the appeals succeed and the impugned judgments and decrees passed by the Courts below in the original suits are liable to be set aside. Accordingly, I pass the following orders:
69. These second appeals are allowed. The impugned judgments and decrees passed by the Courts below are hereby set aside and the above original suits are dismissed. The plaintiffs shall pay the costs throughout to the defendants.