Karnataka High Court
Smt Jeanne Pinto vs Deputy Conservator Of Forests on 6 January, 2021
Bench: B.Veerappa, K.Natarajan
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R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JANUARY, 2021
PRESENT
THE HON' BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE K. NATARAJAN
REGULAR FIRST APPEAL No.988/2013
BETWEEN:
SMT. JEANNE PINTO,
W/O LATE WILFRED PINTO
AGED 65 YEARS
AGRICULTURIST AND PLANTER
"NILGIRI ESTATE", BASARIKATTE POST,
MEGUNDA HOBLI, KOPPA TALUK,
CHIKKAMAGALUR DISTRICT,
ALSO RESIDING AT
"EXCELSIOR", UPPER BENDORE,
MANGALORE-575 002.
REPRESENTED BY HER GPA HOLDER
SRI IVOR REGO
AGED 47 YEARS,
S/O W.H.REGO,
"SUSAN" BENDOREWELL
MANGALORE-575002.
...APPELLANT
(BY SRI CYRIL PRASAD PAIS, ADVOCATE)
AND:
1. DEPUTY CONSERVATOR OF FORESTS
KOPPA DIVISION,
KOPPA-577126.
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2. STATE OF KARNATAKA,
BY ITS CHIEF SECRETARY,
VIDHANA SOUDHA,
BANGALORE-560001.
...RESPONDENTS
(BY SMT. T.H. SAVITHA, HIGH COURT GOVERNMENT PLEADER)
*****
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96
OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE DATED 06.03.2013 PASSED IN O.S.
No.98/2008 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE,
CHIKKAMAGALURU AND CONSEQUENTLY DECREE THE SUIT AS
PRAYED FOR.
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, B.VEERAPPA, J, DELIVERED THE
FOLLOWING:
JUDGMENT
The plaintiff filed the present Regular First Appeal against the judgment and decree dated 06.03.2013 made in O.S.No.98/2008 on the file of the Additional Senior Civil Judge and JMFC, Chikkamagaluru, dismissing the suit of the plaintiff for declaration of title by way of adverse possession and permanent injunction in respect of the suit schedule properties.
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2. The appellant/plaintiff filed the suit for declaration that she has acquired title over the suit schedule properties by way of adverse possession and for permanent injunction restraining the defendants from interfering with her possession over the suit schedule properties, contending that the suit item No.1 measuring 18 acres 5 guntas of coffee land in Sy.No.188 and 17 acres 20 guntas of coffee land in Sy.No.189 and suit item No.2 measuring 33 acres 8 guntas of coffee land in Sy.Nos.185, 188, 189 and 229 of Heruru village, Megunda Hobli, Koppa Taluk, Chikkamagaluru District, morefully described in the schedule to the plaint within the reputed boundaries of Nilgiri Coffee Estate owned by the plaintiff. The said lands are revenue lands and the plaintiff's predecessors in title had raised the coffee plantation with the shade trees about hundred years back and are part and parcel of the plaintiff's estate known as 'Nilgiri Coffee Estate' and has been enjoyed as such, as of right, in a peaceful manner and without let or hindrance by the Government or any third party to their knowledge. To prove her possession, the plaintiff produced the notarized copy of the survey report of the ADLR, Chikkamagaluru with the plan attached thereto and the affidavit dated 06.04.1994 of plaintiff's predecessor in title 4 clearly affirming that the plantation described in the schedule to the plaint has been part and parcel of plaintiff's Nilgiri Estate for over hundred years and as such the owners thereof from time to time including the plaintiff and they have perfected title by adverse possession, prescription and limitation against the Government and in particular, against the defendants.
3. It is further contended that the plantation described in the schedule to the plaint has at all time being classified in the revenue records and in the forest records as revenue land, never as forest land, as can be seen from the statement showing Section 4 declared under the Karnataka Forest Act, 1963 areas included in forest reserve as per Deputy Commissioner Notification dated 05.06.2002, wherein the plaintiff's survey numbers are not included; the RTC records showing private ownership of land out of the survey numbers involved in plaintiff's property; the plan showing levy of T.T fine in respect of the property in the neighborhood and relating to the survey numbers involved in plaintiff's property; however, the plaintiff's portion of the survey number is not involved in those T.T. proceedings; records of right showing that Sy.Nos.185, 188, 189 and 229 are described as non 5 forest lands and the index of lands where saguvali chits have been freely granted to portions of land involved in survey numbers of the plaintiff's property.
4. It is further contended that the plaintiff and her predecessors in title have been in possession of the suit schedule properties for more than 100 years by adverse possession to the interest of the State. When the first defendant sent a notice dated 06.10.2008, claiming that the suit schedule properties are forest lands and that they are Government lands and that unless a satisfactory reply is sent, the plaintiff will be forcibly evicted from the properties, the plaintiff promptly replied to the said notice on 27.10.2008 stating that the suit schedule lands are revenue lands and not forest lands. In spite of the same, the defendants are interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule properties and cause of action to file the suit arose on 06.10.2008, when the first defendant sent the notice. Hence, the plaintiff filed the suit for declaration that the plaintiff has acquired title to the plaint schedule property and for consequential injunction restraining the government and its officers from interfering with the possession of the plaintiff and for declaration that the notice dated 06.10.2008 6 issued by the first defendant as null and void and not binding on the plaintiff, etc.
5. The defendant No.1 filed the written statement, denied the averments made in paragraphs 2 to 4 of the plaint and contended that the plaintiff has encroached forest land measuring 68 acres 33 guntas. In this regard, the Range Forest Officer, Koppa Range, booked Forest Offence Case in FOC No.22/1999-2000 dated 31.05.1999. After enquiry, the defendant passed the Order dated 12.11.2008 directing the plaintiff to vacate the entire occupied lands with any crops raised, building created thereon and hand over the land within 30 days. Therefore, the suit filed by the plaintiff for declaration and injunction is not maintainable and is liable to be dismissed.
6. It was further contended that the Appeal filed by the plaintiff before the Appellate Authority came to be dismissed. The documents referred to in paragraph 5 of the plaint pertains to Sringeri Taluk, whereas, the suit schedule properties are situated at Heruru village, Megunda Hobli, Koppa Taluk. The land measuring 68 acres 33 guntas was declared as 'Forest Reserve' and handed over to the forest department by the notification dated 05.06.2002, 7 as per Ex.D.2. The documents relied upon by the plaintiff do not convey any sort of possessive rights or ownership and no revenue records show her name in respect of the suit schedule properties. The map prepared by the defendant authorities during 1992-1993 clearly depicts that the suit schedule properties contain very good wooded growth and similar to notified natural forests, encroached by the plaintiff. Section 33(2)(iii-a) of the Karnataka Forest Act, 1963, prohibits unauthorized occupation of forest land for any purpose. It is further contended that the Hon'ble Supreme Court in the case of T.N.Godavarman Thirumulkpad vs. Union of India and others reported in (2002)9 SCC 502 has held that 'forest' means all statutorily recognized forests, whether designated as reserved, protected or otherwise and 'forest land' will not only include 'forest' as understood in the dictionary sense, but also any area recorded as forest in the Government record. The provisions enacted in the Forest (Conservation) Act, 1980, for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership and classification. As per Section 2 of the Forest (Conservation) Act, 1980, no State Government or other authority shall make, except with the prior approval of the Central 8 Government, any order directing that any forest land or any portion thereof may be used for any non-forest purpose. Therefore, there is no cause of action to file the suit and the suit filed by the plaintiff is without compliance of Section 80 of the Code of Civil Procedure and hence the same is not maintainable and sought to dismiss the suit.
7. Based on the aforesaid pleadings, the Trial Court framed the following issues and additional issue.
ISSUES
1. Whether the plaintiff proves that she is the absolute owner in lawful possession over the suit schedule properties?
2. Whether defendants prove that the suit schedule properties are forest land and plaintiff has encroached the same and accordingly legal action has been taken in accordance with law?
3. Whether the plaintiff proves that the notice dated 06.10.2008 issued by defendant No.1 is null and void and it is not binding on her?
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4. Whether defendants prove that this Court has no jurisdiction to entertain the suit in view of the order passed by the defendants?
5. Whether the plaintiff proves the alleged interference by the defendants?
6. Whether the plaintiff is entitled for the relief of declaration and permanent injunction?
7. What Order or decree?
ADDITIONAL ISSUE "Whether the plaintiff proves that she acquired title to the suit property by adverse possession, prescription and limitation?"
8. In order to prove the case of the plaintiff, the GPA holder of the plaintiff was examined as P.W.1 and the documents Exs.P.1 to 27 were marked. On behalf of the defendants, one witness was examined as D.W.1 and the documents Exs.P.1 to 15 were marked.
9. The Trial Court, considering the oral and documentary evidence on record, recorded a finding that, the plaintiff failed to prove that she is the absolute owner in lawful possession over the suit schedule properties; the defendants proved that the suit 10 schedule properties are forest lands and plaintiff has encroached the same and accordingly, legal action has been taken in accordance with law; the plaintiff failed to prove that the notice dated 06.10.2008 issued by the defendant No.1 is null and void and is not binding on her; the defendants failed to prove that the Trial Court has no jurisdiction to entertain the suit in view of the order passed by the defendants under the Karnataka Forest Act; the plaintiff failed to prove the alleged interference by the defendants; the plaintiff failed to prove that she acquired title to the suit property by adverse possession and therefore, the plaintiff is not entitled to the relief of declaration and permanent injunction. Accordingly, by the impugned judgment and decree dated 06.03.2013, dismissed the suit filed by the plaintiff. Hence, the present Regular First Appeal is filed.
10. We have heard the learned counsel for the parties to the lis.
11. Sri Cyril Prasad Pais, learned counsel for the appellant/plaintiff vehemently contended that the impugned judgment and decree passed by the Trial Court dismissing the suit of the plaintiff for declaration of title by adverse possession and 11 permanent injunction is without any basis and is liable to be set- aside.
12. The learned counsel for the appellant further contended that the Trial Court erred in coming to the conclusion that the suit was filed to declare that the plaintiff is the owner of the suit schedule property. The plea of acquisition of title by adverse possession is an alternative plea put forward by the plaintiff. The finding on the said aspect is erroneous and suffers from non application of mind. The Trial Court failed to notice the fact that the Order dated 06.06.1982 passed by the Amaldar states that, 'on spot inspection and on verification of the trees, plants and the crop in the land, it is found that the bagarhukum cultivation is approximately 30-35 years old. After coming into force of the Karnataka Land Revenue Act, 1964, since T.T fine is to be levied regarding bagarhukum it has decided to levy T.T. fine from the year 1964-65 to 1982-83'. The Trial Court failed to appreciate the report with plan of the Government Surveyor attached to the Assistant Director of Land Records, Chikkamagaluru, which clearly states that coffee cultivation in the property which is the subject matter of the order of the first defendant is in existence for 40-41 years. The 12 encroachment according to the admission of the Government that the land in question has been a full fledged coffee estate even 40 years prior to 1980 i.e., in 1940 or even earlier. The said material has not been considered by the Trial Court.
13. The learned counsel for the appellant further contended that the Trial Court failed to notice that the plaintiff has been in uninterrupted possession of the suit schedule properties for more than 100 years adverse to the interest of the State Government and ought to have granted the decree as prayed for. The Trial Court erred in holding that the plaintiff failed to produce any document to show her title and ownership over the suit schedule properties, ignoring the fact that the suit was filed for declaration of title by way of adverse possession and permanent injunction. Such being the case, obviously, the plaintiff cannot have any document in possession. The plaintiff has been enjoying the suit schedule properties adverse to the interest of the State Government. To show the possession, the plaintiff has produced the RTC and report of the Assistant Director of Land Records. The said documents have not been considered by the Trial Court.
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14. The learned counsel further contended that the eviction order passed by the original authority against the plaintiff under the provisions of the Karnataka Forest Act, 1963, as per Ex.P.16 was subject matter of Appeal before the Appellate Authority. The said material aspect has not been considered by the Trial Court. All along, the suit schedule properties are the revenue lands. The Forest authorities have no right to pass the eviction order and it is exclusively for the Revenue Department to take action. Therefore, the learned counsel contended that the impugned judgment and decree passed by the Trial Court dismissing the suit of the plaint is bad in law and sought to allow the present Regular First Appeal by setting aside the impugned Judgment and decree.
15. In support of his contentions, learned counsel for the appellant relied upon the dictum of the Division Bench of the Madras High Court in the case of Charles Hereward Simpson and others vs. The Government of Tamil Nadu and another reported in 1989(2) MLW 571 paragraphs 40 and 50.
16. Per contra, Smt.Savitha, learned High Court Government Pleader, sought to justify the impugned judgment and decree passed by the Trial Court dismissing the suit of the plaintiff for 14 declaration of title and permanent injunction. Learned HCGP contended with vehemence that the suit schedule properties are forest lands and belongs to reserve forest area which belongs to the Government as stated in paragraph 4 of the written statement. The State Government issued the notification dated 05.06.2002 as per Ex.P.18 declaring that the suit schedule properties are forest lands. The same was not challenged by the plaintiff. Admittedly, the legal notice as per Ex.P.10 was issued by the plaintiff to the Deputy Commissioner and the Tahsildar, but they are not made as parties to the suit. Ex.D.7 dated 10.04.1999-joint survey sketch produced before this Court as per Annexure-R1 clearly depicts that the plaintiff has encroached the Government land. In the plaint, the plaintiff has sought for declaration that the plaintiff has acquired title to the property described in the schedule to the plaint and therefore, question of claiming adverse possession would not arise. The RTC produced by the plaintiff clearly depicts that it is a Government gomala land. After issuance of notification by the State Government, the Deputy Conservator of Forest passed the eviction order under Section 64-A of the Karnataka Forest Act, 1963, against the appellant. That was subject matter of Appeal before the Appellate Authority under Section 64-A(3) of the 15 Karnataka Forest Act, 1963 which came to be dismissed. Against the said order passed by the Appellate Authority, the plaintiff filed W.P.No.47701/2014 before this Court. This Court, considering the entire material on record, by the Order dated 27.08.2019, dismissed the writ petition and the same has reached finality. Therefore, learned HCGP sought to dismiss the present Regular First Appeal with costs.
17. In support of her contentions, the learned High Court Government Pleader relied upon the following dictums of the Hon'ble Apex Court:
(i) T.N.Godavarman Thirumulkpad vs. Union of India and others reported in (2002)9 SCC 502. (ii) T.Anjanappa and others vs. Somalingappa and another reported in (2006)7 SCC 570, paragraph-20. 16
18. In view of the rival contentions urged by the learned counsel for the parties, the only point that arises for our consideration in the present Regular First Appeal is:
"Whether the appellant/plaintiff has made out a case to interfere with the impugned judgment and decree passed by the Trial Court dismissing the suit of the plaintiff for declaration by way of adverse possession and permanent injunction, in the facts and circumstances of the case?"
19. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material including the original records, carefully.
20. It is the specific case of the plaintiff that the plaintiff and her predecessors-in-title have been in possession and enjoyment of the suit schedule properties measuring 68 acres 33 guntas of government land as owners by way of adverse possession. To prove her case, the plaintiff examined her GPA Holder, one Mr.Ivor Rego, as P.W.1, who, reiterating the averments made in the plaint deposed that the plaintiff and her predecessors-in-title have been in possession and enjoyment of the suit schedule properties 17 measuring 68 acres 33 guntas of coffee land in Sy.No.185, 188, 189 and 229 of Heruru village, Koppa Taluk, which are within the reputed boundaries of Nilgiri Coffee Estate owned by the plaintiff and all along, the said lands have been classified as revenue lands in all the records, and even in the forest records they have been shown as revenue lands and at no point of time, they have been shown as forest lands. The plaintiff and her husband late Wilfred Pinto had asserted their title to the suit schedule properties by adverse possession against the Government by issuing a legal notice on 10.11.1999 under Section 80 of the Code of Civil Procedure as per Ex.P.10, to the Secretary, Revenue Department, State of Karnataka, Bengaluru, the Deputy Commissioner, Chikkamagaluru, the Tahsildar, Koppa Taluk and the Range Forest Officer, Koppa Taluk. Late Wilfred Pinto, husband of the plaintiff executed a Release Deed dated 20.11.1999 as per Ex.P.19 and a Will dated 19.08.1998 as per Ex.P.20 in respect of Nilgiri lands which also include suit schedule properties. In the cross- examination, P.W.1 admitted that, in the documents Exs.P.1 to 7, the name of the plaintiff or her ancestors is not shown in respect of the suit schedule properties, but, it is shown as gomala land. It is further admitted that after receipt of the notice from the Deputy 18 Conservator of Forest, except filing the suit, the plaintiff has not taken any action.
21. P.W.1 has further deposed that, to show that they are in possession for more than 100 years, they have the sketch and report prepared by the Assistant Director of Land Records in the year 1980. After that, the plaintiff made an application to the Government seeking grant of the said lands and he is not having any documents to show regarding the application given to the Government and the proceedings on the said application. Except the sketch prepared in the year 1980, they are not having any documents to show that they are in possession of the suit lands from the past 100 years. He has further deposed that he knows about the proceedings pertaining to the transfer of lands in suit survey numbers between the forest department and revenue department, but he cannot tell as to how much land was transferred from forest department to the revenue department and vice versa. He cannot say boundaries to the suit survey numbers. He does not know as to whether survey notice was issued to the forest department while conducting the survey in the year 1980 by the revenue department. He has further deposed that the forest 19 department issued the letter as per Ex.P.16 and questioning the same, he filed an appeal before the Forest Officer and the same is pending. He denied the suggestion that the said appeal and the case before the High Court have been dismissed. The witness deposed that the notification dated 05.06.2002 as per Ex.P.18 has been cancelled and thereafter, the forest department and the revenue department conducted a joint survey and he has produced the documents to show the said notification has been cancelled.
22. The defendant all along contended that the suit filed by the plaintiff for declaration of title in respect of the forest land is not maintainable, as the State Government issued the notification dated 05.06.2002 declaring the suit lands as reserve forest. The plaintiff is an encroacher of forest land and not entitled to the relief of declaration by way of adverse possession and injunction. Though the plaintiff claims that the suit schedule properties are revenue lands, the Deputy Commissioner and Tahsildar are not made as parties to the suit and the notification issued by the State Government declaring the suit schedule properties as reserved forest lands has not been challenged. Therefore the suit is not maintainable.
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23. To prove the said contention on behalf of the defendants, the Range Forest Officer, Koppa, was examined as D.W.1, who, while reiterating the averments made in the written statement, deposed that the suit schedule properties were declared as forest lands by the notification issued by the State Government and the same was published in the State Gazette and the plaintiff has encroached the said government lands for which, a criminal case was also registered against the plaintiff. Further, invoking the provisions of the Karnataka Forest Act, 1963, eviction order came to be passed; and against which an appeal came to be filed by the plaintiff in No.1/2008-09 and the same is pending, and therefore, plaintiff is not entitled to the relief sought for. The defendants produced the authorization letter of D.W.1 as per Ex.D.1, the notification dated 05.06.2002 as per Ex.D.2, RTCs pertaining to the suit properties as per Exs.D.3 to 6, the survey sketch as per Ex.D.7, the order dated 12.11.2008 passed by the defendant No.1 as per Ex.D.8, the FIR registered under the Karnataka Forest Act as per Ex.D.9 and the Order sheet of the appeal as per Ex.D.10. In the cross- examination, D.W.1 deposed that, "the suit schedule properties are the forest lands and that in RTCs as per Exs.D.3 to 6 it is not shown 21 as forest lands but it is shown as government land. It is called as reserve forest land". Nothing has been elicited in the cross- examination of defendant No.1 to prove that the plaintiff has been in possession of the suit schedule properties by way of adverse possession.
24. Though the learned counsel for the appellant contended that the plaintiff is in possession of the lands in question since 1930, adverse to the interest of the State Government, no documents have been produced to prove the same. The survey conducted by the government surveyor in the year 1980 as per Ex.P.9 only depicts that the cultivation of the land by the plaintiff as bagar hukum. The Karnataka Land Revenue Act came to be amended in the year 1990 for regularization of unauthorized cultivation by landless persons. The plaintiff is neither a landless person nor filed any application for regularization. It is also not in dispute that the land was transferred to the forest department, as admitted by P.W.1 in the cross-examination. The State Government issued the notification dated 05.06.2002 as per Ex.P.18 declaring that the suit schedule properties are the forest lands. Admittedly, the said notification issued by the State Government is not challenged. The 22 revenue records produced by the plaintiff does not show the name of the plaintiff.
25. It is also not in dispute that the original authority -Deputy Conservator of Forest passed the eviction Order dated 12.11.2008 in No.B4(DFT)/64(A)CR-73/2007-08 directing the appellant/plaintiff to evict from the land measuring 68 acres 33 guntas in Sy.Nos.185, 188, 189 and 229 of Heruru village, Megunda Hobli, Koppa Taluk. The said eviction order dated 12.11.2008 was subject matter of Appeal before the Chief Conservator of Forest in Appeal No.1/2008- 09, which came to be dismissed by the Order dated 01.07.2014, confirming the eviction order passed by the Original Authority. It is also not in dispute that being aggrieved by the order passed by the forest authorities under Section 64-A(3) of the Karnataka Forest Act, 1963, the plaintiff/appellant filed W.P.No.47701/2014 before this Court. The learned single Judge, considering the entire material on record, by the Order dated 27.08.2019, observed that "the original authority recorded a finding that the petitioner (appellant herein) has admitted that she has encroached forest lands and wanted to claim adverse possession. This does not convey any legal rights to the applicants as on that date. The 23 contention that they have been in occupation of the said lands for more than 100 years is a figment of imagination as the Range Forest Officer, Koppa Range, reported in his report that coffee plants are of 15-18 years old and the factum of legal right over the said property has not been reflected in the revenue records like RTC etc. However, no claim whatsoever has been mentioned against the accused/petitioner in the government records. This means as on today, the exclusive rights of ownership in absolute term is with the State Government only. The petitioner in her statement of objections also admitted that the disputed lands are forest lands and this shows that there is no right whatsoever over the disputed lands, and it belongs to the State Government". This Court further recorded a finding that, "the petitioner is a rich plantation owner having established Nilgiri Coffee Estate. As per the existing Land Grant Rules and the Revenue Acts, only the landless, marginal and poor farmers who do not have sufficient land should be considered under the Government Scheme for regularization. According to the petitioner, the total extent encroached by her is more than 4.30 acres and that she is already in possession of 66 acres 1 gunta of land and has encroached the government land. The act of the petitioner is not only illegal, but also mockery of the existing legal 24 system and social justice. She has damaged the natural tree growth and also enjoyed the benefit out of the said land without paying anything to the government and, the continued illegal occupation is inimical to the provisions of law and against the government. As held by the Hon'ble Supreme Court in the case of T.N.Godavarman Thirumalpad vs. Union of India and others reported in AIR 1997 SC 1228, the petitioner is liable to be evicted from the land in question." Accordingly, this Court, dismissed the writ petition. However, it was made clear that, the impugned orders passed by the Original Authority, confirmed by the Appellate Authority are always subject to the result of RFA No.988/2013 i.e., the present Regular First Appeal. The said order passed by the learned single Judge has reached finality.
26. In the present case, though the plaintiff has not produced any documents to prove that she has been in continuous possession the forest lands adverse to the interest of the State, still filed the suit for declaration of title by adverse possession, after eviction order being passed by the authorities under the Karnataka Forest Act, 1963. Therefore, it is necessary to refer to the provisions of Section 27 of the Limitation Act, which reads as under: 25
"27. Extinguishment of right to property.--At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished."
A careful perusal of the said provision makes it clear that, the plaintiff must plead and prove the date on and from which, she claims to be in exclusive, continuous and undisturbed possession and also that such possession was actual and to the knowledge of the real owner. She also has to show hostile title and communicate it to the real owner. Then only, her right to such property shall be extinguished.
27. Admittedly, in the present case, the plaintiff is claiming that she is in possession of the lands and nobody recognized that she is a trespasser. Therefore, she cannot take the advantage of Section 27 of the Limitation Act, unless she pleaded and proved the exclusive, continuous and undisturbed possession against the knowledge of the real owner.
28. Admittedly, the documents produced by the plaintiff do not depict that she is in possession of the suit schedule properties. The 26 plaintiff is claiming declaration of title by way of adverse possession and filed the suit on 05.11.2008, after issuance of notification dated 05.06.2002 as per Ex.P.18, declaring that the suit schedule properties are the forest lands. Admittedly, the said notification has not been challenged by the plaintiff. The eviction order passed by the Forest Authorities dated 12.11.2008, confirmed by the Appellate Authority dated 01.07.2014 and further confirmed by the learned single Judge of this Court in W.P.No.47701/2014 dated 27.08.2019, have reached finality.
29. The Hon'ble Supreme Court while considering the provisions of Articles 27, 64 and 65 of the Limitation Act, in the case of Ravinder Kaur Grewal and Others -vs- Manjit Kaur and Others reported in AIR 2019 SC 3827 at paragraphs-46, 48 to 50, 53, 57 to 59 and 61, has held as under:
"46. The conclusion reached by the High Court is based on an inferential process because of the language used in the IIIrd Column of Article 65. The expression is used, the limitation of 12 years runs from the date when the possession of the defendant becomes adverse to the plaintiff. Column 3 of Schedule of the Act nowhere suggests that suit cannot be filed by the 27 plaintiff for possession of immovable property or any interest therein based on title acquired by way of adverse possession. There is absolutely no bar for the perfection of title by way of adverse possession whether a person is suing as the plaintiff or being sued as a defendant. The inferential process of interpretation employed by the High Court is not at all permissible. It does not follow from the language used in the statute. The large number of decisions of this Court and various other decisions of the Privy Council, High Courts and of English courts which have been discussed by us and observations made in Halsbury's Laws based on various decisions indicate that suit can be filed by the plaintiff on the basis of title acquired by way of adverse possession or on the basis of possession under Articles 64 and 65. There is no bar under Article 65 or any of the provisions of the Limitation Act, 1963 as against a plaintiff who has perfected his title by virtue of adverse possession to sue to evict a person or to protect his possession and plethora of decisions are to the effect that by virtue of extinguishment of title of the owner, the person in possession acquires absolute title and if actual owner dispossesses another person after extinguishment of his title, he can be evicted by such a person by filing of suit under Article 65 of the Act. Thus, the decision of Gurdwara Sahib v. Gram Panchayat Village Sirthala [Gurdwara Sahib v. Gram Panchayat 28 Village Sirthala, (2014) 1 SCC 669 : (2014) 1 SCC (Civ) 630] and of the Punjab and Haryana High Court cannot be said to be laying down the correct law. More so because of various decisions of this Court to the contrary.
48. The statute does not define adverse possession, it is a common law concept, the period of which has been prescribed statutorily under the law of limitation in Article 65 as 12 years. Law of limitation does not define the concept of adverse possession nor anywhere contains a provision that the plaintiff cannot sue based on adverse possession. It only deals with limitation to sue and extinguishment of rights. There may be a case where a person who has perfected his title by virtue of adverse possession is sought to be ousted or has been dispossessed by a forceful entry by the owner or by some other person, his right to obtain possession can be resisted only when the person who is seeking to protect his possession, is able to show that he has also perfected his title by adverse possession for requisite period against such a plaintiff.
49. Under Article 64 also suit can be filed based on the possessory title. Law never intends a person who has perfected title to be deprived of filing suit under Article 65 to recover possession and to render him remediless. In case of infringement of any other right attracting any 29 other Article such as in case the land is sold away by the owner after the extinguishment of his title, the suit can be filed by a person who has perfected his title by adverse possession to question alienation and attempt of dispossession.
50. Law of adverse possession does not qualify only a defendant for the acquisition of title by way of adverse possession, it may be perfected by a person who is filing a suit. It only restricts a right of the owner to recover possession before the period of limitation fixed for the extinction of his rights expires. Once the right is extinguished another person acquires prescriptive right which cannot be defeated by re-entry by the owner or subsequent acknowledgment of his rights. In such a case suit can be filed by a person whose right is sought to be defeated.
53. There is the acquisition of title in favour of the plaintiff though it is negative conferral of right on extinguishment of the right of an owner of the property. The right ripened by prescription by his adverse possession is absolute and on dispossession, he can sue based on "title" as envisaged in the opening part under Article 65 of the Act. Under Article 65, the suit can be filed based on the title for recovery of possession within 12 years of the start of adverse possession, if any, set up by the defendant. Otherwise right to recover 30 possession based on the title is absolute irrespective of limitation in the absence of adverse possession by the defendant for 12 years. The possession as trespasser is not adverse nor long possession is synonymous with adverse possession.
57. The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser's long possession is not synonymous with adverse possession. Trespasser's possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and large the concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession.31
58. Adverse possession is heritable and there can be tacking of adverse possession by two or more persons as the right is transmissible one. In our opinion, it confers a perfected right which cannot be defeated on re-entry except as provided in Article 65 itself. Tacking is based on the fulfilment of certain conditions, tacking may be by possession by the purchaser, legatee or assignee, etc. so as to constitute continuity of possession, that person must be claiming through whom it is sought to be tacked, and would depend on the identity of the same property under the same right. Two distinct trespassers cannot tack their possession to constitute conferral of right by adverse possession for the prescribed period.
59. We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years' period of adverse possession is over, even owner's right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a 32 suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owner's title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit.
61. Resultantly, we hold that decisions of Gurdwara Sahib v. Gram Panchayat Village Sirthala (supra) and decision relying on it in State of Uttarakhand v.Mandir Sri Lakshmi Sidh Maharaj (AIR 2017 SC 4472) (supra) and Dharampal (dead) through LRs v. Punjab Wakf Board (Supra) cannot be said to be laying down the law correctly, thus they are hereby overruled. We hold that plea of acquisition of title by adverse possession can be 33 taken by the plaintiff under Article 65 of the Limitation Act and there is no bar under the Limitation Act, 1963 to sue on the aforesaid basis in case of infringement of any rights of a plaintiff."
30. The provisions of Section 33(2)(iii-a) of the Karnataka Forest Act, 1963, prohibits unauthorized occupation of land for any purpose. Admittedly, the present plaintiff who is a trespasser and encroacher, filed suit claiming forest land by way of adverse possession is not maintainable and admittedly, eviction orders already being passed by the concerned forest authorities have reached finality.
31. It is impossible for the State and its instrumentalities including local authorities to keep everyday vigilance/ watch over vast tracts of open land owned by them or of which they are public trustees. No amount of vigil can stop encroachments and unauthorized occupation of public land by unscrupulous elements, who act like vultures to grab such land, raise illegal constructions and, at times, succeed in manipulating the State apparatus for getting their occupation/possession and construction regularized. Where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse 34 possession, the Court is duty bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/title of the State of immovable property and give an upper hand to encroachers, unauthorised occupants or land grabbers.
32. The plaintiff is claiming that she is in continuous possession of the lands for more than 100 years. But no documents have been produced to prove her possession and admittedly, the plaintiff is an encroacher of forest lands and already eviction orders have been passed by the authorities under the Karnataka Forest Act, 1963, and the same has reached finality. Therefore, the plaintiff has failed to establish that she acquired title to the suit schedule properties by way of adverse possession.
33. The dictum of the Hon'ble Supreme Court in the case of T.Anjanappa and others vs. Somalingappa and another reported in (2006)7 SCC 570, wherein, at paragraph-20, it is held as under:
"20. It is well recognized proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse 35 possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action."
34. Though the plaintiff claimed that she is in continuous possession for 40 years, the fact remains that she is an encroacher of forest land, as admitted by P.W.1 in the cross-examination, as stated supra. A person who is a trespasser cannot claim adverse possession against the government land, that too a reserve forest land, in view of the provisions of Section 2 of the Karnataka Forest (Conservation) Act, 1980, and in view of the dictum of the Hon'ble Supreme Court in the case of T.N.Godavarman, supra. 36
35. It is not in dispute that all the suit schedule properties totally measuring 68.33 guntas are government lands. According to the petitioner, she is enjoying the said government lands for more than 100 years. Even though the notification dated 05.06.2002 came to be issued as per Ex.P.18 declaring the suit schedule lands as forest lands and eviction order was passed by the original authority under Section 64A of the Karnataka Forest At, 1963, confirmed by the appellate authority and this Court, the government authorities acting either under the provisions of Land Revenue Act or Karnataka Forest Act have not discharged their institutional duty and constitutional obligation to protect the government lands. Thereby, the influential persons in the Society are becoming land grabbers of government lands to a larger extent. It is known that the authorities are taking action on small fishes i.e., encroachers of small extent of lands like 1 or 2 acres. They never bother about whales who encroach more than 50 acres of land. Admittedly, in the present case, appellant has encroached 68 acres 33 guntas of government land. It is high time for the authorities working under the Government to introspect themselves about their duty towards general public and the nation, and discharge their duty to protect 37 the government land. Otherwise, holding higher posts in the State becomes meaningless.
36. It is well settled that every public servant is a trustee of the Society and all in facets of public administration, every public servant has to exhibit honesty, integrity, sincerity and faithfulness in implementation of the political, social, economic and constitutional policies to integrate the nation, to achieve excellence and efficiency in the public administration. A public servant should exhibit transparency in implementation and of accountability for due effectuation of constitutional goals. Though the Hon'ble Apex Court in the case of Godavarman (supra) laid down the guidelines for protecting the forest lands, still the State authorities are silent spectators and allowed land grabbers to encroach government lands especially forest lands. Therefore, it is high time for every successive governments to introspect themselves and take a stringent measures to protect the government lands. Otherwise, one day, the forest lands in the State will vanish and ecological imbalance of the nature will ruin the society. It is duty of the every individual or State to protect and improve the environment, safeguard the forests and wildlife in the country as contemplated 38 under Article 48A of the Constitution of India which provides for protection and improvement of environment and safeguarding of forests and wild life. The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. As per Article 51A(g) of the Constitution of India, it is the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures. It is well settled that not only human beings, but also the living creatures have fundamental right to live with dignity within the meaning of Article 21 of the Constitution of India. Their rights to live are also recognized by the Constitution of India.
37. The Trial Court, considering both oral and documentary evidence on record, recorded a finding that, "To prove and establish that the suit land is the revenue land, the plaintiff has mainly relied upon the entries in the RTC showing the suit land as the gomala land. Of course, in the RTC of the suit property, these lands were shown as gomala land. But, the defendants claim that the Deputy Commissioner, Chikkamagaluru, has already passed an order to notify the suit land as the Reserve Forest land. The plaintiff 39 produced the notification dated 05.06.2002 made by the Government of Karnataka in this regard as per Ex.P.18 and the defendants have also produced the said notification as per Ex.D.2. Once the suit schedule properties are declared as reserve forest lands, by acting under Section 71 of the Karnataka Land Revenue Act, 1964, the contention of the plaintiff that the suit lands are revenue lands, cannot be accepted. Admittedly, the plaintiff has not challenged the notification dated 05.06.2002-Ex.P.18 declaring the suit lands as forest lands. Therefore, the contention of the learned counsel for the appellant that the suit schedule properties are government lands, cannot be accepted".
38. The Trial Court, further recorded a finding that, "it is well settled principle that, party claiming adverse possession must prove his possession and the said possession must be peaceful, open, uninterrupted and continuous. The plaintiff's possession must be adequate in continuity and adverse to the true owner. The adverse possession must start from wrongful dispossession of the original owner and the possession must be actual, visible, exclusive, hostile and continued for the statutory period. Therefore, to claim title by adverse possession, the plaintiff must plead and prove on what date 40 she came into possession and what was the nature of her possession and whether the factum of possession was known to other person and how long her possession was continued and her possession was open and undisturbed. The plea of adverse possession is a question of fact, which must be specifically pleaded and proved. It is also well settled established rule that mere possession, however so long, cannot be termed as an adverse, so to acquire title, unless there is animus or hostility on the part of the person in possession, who is not the real owner. The plea of adverse possession is raised against the government and in respect of the government land the statutory period of hostile possession of government land would be 30 years. Mere continuous possession for whatever duration is not sufficient to acquire the title by adverse possession in respect of government lands. The State is owning lakhs of hectares of land. If the land belonging to the government has been encroached by the adjacent hiduvali land holders and enjoying the same for more than 30 years, one cannot say that he has acquired the title over the government land by adverse possession".
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39. The Trial Court further recorded that, "It is the specific case made out by the plaintiff that the suit land is a revenue land. The plaintiff does not admit the suit land as the forest land. But, the plaintiff has filed the suit against the Deputy Conservator of Forest and State of Karnataka. The plea of adverse possession has to be raised against the true and actual owner of the suit land. Even though the plaintiff claims that the suit land is a revenue land, the plaintiff has not made the Deputy Commissioner, Chikkamagaluru, Tahsildar, Koppa and local Revenue Inspector as party to the suit. When according to the plaintiff, the suit lands are revenue lands, it is to be managed and monitored by local Revenue Inspector, Tahsildar, Koppa and the Deputy Commissioner, Chikkamagaluru. They have not been impleaded as parties to the suit. The plaintiff claims that the suit lands are the revenue lands. When the Deputy Commissioner and Tahsildar are the authorities of the revenue lands, how the plaintiff can raise the plea of adverse possession against the present defendants is not forthcoming and on that ground alone, the suit of the plaintiff is liable to be rejected. It is well settled that without admitting the title of the adversaries, one cannot raise the plea of adverse possession, as it is totally unknown to law. Though the plaintiff is claiming the suit lands by way of 42 adverse possession against the forest department and she does not admit the suit lands as the forest lands and title of the forest department over the suit lands, the plea of adverse possession set up by the plaintiff cannot be accepted."
40. The impugned judgment and decree passed by the Trial Court dismissing the suit of the plaintiff for declaration of title by adverse possession and temporary injunction is based on oral and documentary evidence available on record. The plaintiff has not made out any ground to interfere with the impugned judgment and decree passed by the Trial Court, in exercise of appellate powers of this Court under Section 96 of the Code of Civil Procedure.
41. Though the learned counsel for the appellant/ plaintiff relied upon the dictum of the Madras High Court in the case of Charles Hereward Simpson and others vs. The Government of Tamil Nadu and another reported in 1989(2) MLW 571, it was a case where the plaintiffs and their predecessors in title were exercising dominion over the suit properties asserting rights of ownership over the same for over the statutory period and the defendants had no positive piece of evidence that the suit properties were treated by them as forest lands at any point of time and there was no record 43 to show that the Forest Department was and is in possession of the suit properties. Under those circumstances, the Division Bench of the Madras High Court held that, "the plaintiffs have title to the suit properties on the basis of the title deeds. The plaintiffs and their predecessors in title were in possession of the suit properties for over the statutory period, adverse to the right and title, if any, of the defendants, and thereby they have perfected title by prescription. Therefore, the plaintiffs are entitled to the declaration of title to the suit properties and permanent injunction. Admittedly, in the present case, the defendants have produced the notification dated 05.06.2002 as per Ex.P.18 declaring the suit lands as forest lands. The plaintiff has not challenged the said notification, but subsequently, filed the suit on 05.11.2008 and thereafter, the officers of the Forest Department invoked the provisions of Section 64A of the Karnataka Forest Act, 1963, eviction order came to be passed. It was confirmed by the appellate authority and both the orders were reaffirmed by the learned single Judge of this Court in W.P.No.47701/2014. Therefore, the judgment relied upon by the learned counsel for the appellant/ plaintiff has no application to the facts and circumstances of the present case.
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42. For the reasons stated above, the point raised for consideration in the present Regular First Appeal has to be answered in the negative holding that the appellant/ plaintiff has not made out any ground to interfere with the impugned judgment and decree passed by the Trial Court dismissing the suit of the plaintiff for declaration of title by way of adverse possession and injunction.
43. In view of the above, the impugned judgment and decree passed by the Trial Court is just and proper. The plaintiff has not made out any ground to interfere with the same in exercise of appellate powers of this Court.
44. Accordingly, the Regular First Appeal is dismissed as devoid of any merit, without costs.
45. The Officer not below the rank of Assistant Commissioner who shall be nominated by the District Collector(DC), Chikkamagaluru, is directed to take possession of the lands in question from the appellant, and, if necessary, use appropriate force for that purpose. 45
46. Copy of this Order shall be sent to the Chief Secretary to the Government and the Principal Secretary, Forest Department, to take appropriate steps and ensure protection of government lands.
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