Doreswamy Gowda vs State of Karnataka

K.L. Manjunath

The concurrent findings of the courts below are called in question in this second appeal by the unsuccessful plaintiff. Heard the learned counsel for the appellant and the Government Advocate for the respondents.

The facts leading to this appeal are as hereunder:

The appellant/plaintiff filed the suit against defendants No. 1 to 4 to declare him as the absolute owner of the suit property having perfected the title by way of adverse possession and also for a consequential relief of perpetual injunction. The defendants are-the State of Karnataka-the Deputy Commissioner, Mysore, the Assistant Commissioner, Mysore, and the Tahsildar, Mysore Taluk. The suit property is 04 acres 16 guntas of land in Sy. No. 37, Block III of Shyadanahalli village, Mysore Taluk. According to the plaint averments the plaintiff''s grand father Doddahatti Annaiah was cultivating the land as an absolute owner to an extent of 11 acres from 1950 without any obstruction. The Government under darkast had granted 4 acres 8 guntas at the first instant in the year 1957 and later 2 acres 6 guntas was granted to him during his lifetime. His grand father died in the year 1980 and thereafter grant certificate was issued to his legal representative. However, his grand father as well as the father of the plaintiff continued to be in unlawful possession of the suit land which was adjoining to the granted land claiming adverse possession. Contending that the defendants are trying to evict the plaintiff the suit was filed for declaration of title and for injunction.

The defendants contested the suit on the ground that only 4 acres 8 guntas of land was granted to the grand father of the appellant on 27.5.1997 and an additional extent of 2 acres 6 guntas of land was granted subsequently. Having come to know that an attempt was made to grab the suit land by the plaintiff the Revenue Inspector attached to the village submitted a report stating that there is an encroachment and action has been taken against the plaintiff and it was denied that plaintiff has perfected his title by way of adverse possession.

Based on the above pleadings the following issues were famed by the court below:

Whether plaintiff proves that his grand father was in continuous uninterrupted cultivation, use and enjoyment of suit schedule property since 1950 as pleaded?

Whether defendants prove that suit is not properly valued and Court Fee paid thereon is not correct?

Whether defendants prove that plaintiff has not issued statutory notice as per Sec.80 of C.P.C. as such the plaint deserved to be returned for compliance?

Whether plaintiff proves that he is entitled for the relief of adverse possession of suit property as pleaded?

Whether plaintiff proves that he is entitled for the relief as claimed?

What order or decree?

In order to prove the respective contention the plaintiff got himself examined as PW.1 and one Mahadev was examined as PW.2 and he relied upon Ex. P1 to P.39. The trial court held issues No. 1, 2, 4 and 5 in the negative and issue No. 3 partly in affirmative. Ultimately the trial court came to the conclusion that the plaintiff has failed to prove adverse possession. Accordingly, the suit came to be dismissed.

Aggrieved by the JUDGMENT and decree of the trial court the appellant filed an appeal before the District Judge, Mysore, in R.A. No. 641/10. The lower appellate court after considering the arguments advanced by the parties formulated the following points for its consideration.

Whether the plaintiff has perfected is title by adverse possession to the plaint schedule property?

Whether the plaintiff is entitled for decree of declaration as prayed?

Whether the plaintiff proves that he is entitled for consequential relief of permanent injunction as sought?

Whether the judgment and decree of the Court below is erroneous, calling for interference by this Court?

and held all the points in negative and dismissed the appeal. Aggrieved by the concurrent findings of the courts below the preset appeal is filed.

After hearing the counsel for the appellant and the respondent this court does not see any substantial question of law arises in this appeal for the following reasons.

Admittedly, the lands were granted to the grand father of the appellant on two occasions. One in the year 1957 and anther in the year 1992. No documents are placed by him to show that either the appellant''s grand father or his father were enjoying the suit property adversely. Sy. No. 37 of Shadahalli village is a very large extent of land. When the land was granted in 1957 it is not the case of the appellant that his grand father was unauthorizedly cultivating and therefore it was granted to him. Atleast when the application was made for second time in his application he could have stated that he was in unauthorized cultivation and perfected his title by way of adverse possession. The very fact that he has sought grant of land on two occasions would reveal that he was never in possession of the land adverse to the interest of the state. When the plaintiff has failed to plead and prove the animus of adverse possession, both the courts below have rightly rejected the contention whether the plaintiff was in adverse possession or not is a question of fact and not a question of law. This court cannot interfere with the concurrent findings of the courts below.

Accordingly, this appeal is dismissed.