Kamotra Puttappa vs Talawara Kittala Kriyappa

A.V. Chandrashekara, J.—The present appeal is filed u/s 100 of Civil Procedure Code, 1908 being aggrieved by the judgment passed in R.A. No. 48 of 2007 pending on the file of Fast Track Court-III, Hospet. The appellants herein were plaintiffs and respondents herein were defendants in O.S. No. 142 of 2005 which was pending on the file of Court of Additional Civil Judge (Senior Division), Hospet. Parties are referred to as per their ranking in the Trial Court.

The suit filed for relief of declaration of title that plaintiffs have acquired title by adverse possession in respect of 8.42 acres of land situated in Sy. No. 304-D of Dasanahalli Village of Hadagali Taluk has been allowed vide considered judgment dated 25-7-2007. The said judgment and decree was called in question by the defendants in appeal filed u/s 96 of CPC in R.A. No. 48 of 2007. After perusing the grounds in the appeal memo and after perusing the entire records, the First Appellate Court has allowed the appeal and consequently the suit of the plaintiffs is dismissed. It is this divergent judgment of the First Appellate Court is called in question on various grounds as set out in this appeal memo.

The facts leading to filing of the suit are as follows:

The suit property was originally a Government land. The plaintiffs were stated to be in possession of this property unlawfully from 1965-1966 and when this was known to the defendants in the year 1982, they went to the extent of getting the mutation effected in their favour in respect of suit schedule property and got deleted the names of the plaintiffs. Since then, the defendants started to interfere with the title and possession and hence, the plaintiffs were forced to file a suit for relief of declaration on the ground of perfecting the title by way of adverse possession and for consequential relief of injunction.

The defendants appeared before the Trial Court and denied all the plaint averments and they had called upon the plaintiffs to strictly prove the contents of the plaint. According to the defendants, the suit land originally belonged to Government of Karnataka and has been granted in favour of defendant 1 in the year 1982. Since then, they are in lawful possession of the same. With these pleadings, the defendants had requested the Court to dismiss the suit.

On the basis of the above pleadings following issues had been framed by the Trial Court:

Whether the plaintiff proves that they are the owners and in possession of the suit schedule property?

Whether the defendant proves that the suit property is belongs to the Government of Karnataka and the same is assigned to the defendant 1 and they are in possession?

Whether the defendant proves that suit is not properly valued and the Court fee paid is insufficient?

Whether the plaintiffs are entitled for the reliefs sought for?

What order or decree?

On behalf of the plaintiffs, two witnesses were examined as P.Ws. 1 and 2 and in all 34 exhibits have been marked. On behalf of the defendants, defendant 2 has been examined as D.W. 1 and two other witnesses have been examined and 15 exhibits have been marked.

After hearing the learned Counsel for the parties, the learned Judge of the Trial Court had chosen to decree the suit as prayed for granting relief of declaration of title on the ground of perfecting their title by way of adverse possession and consequential relief of injunction vide considered judgment dated 25-7-2007. Against the said judgment and decree, an appeal came to be filed in R.A. No. 48 of 2007 u/s 96 of CPC by the defendants and several grounds had been raised. After perusing the grounds raised in the appeal and perusing the records and hearing arguments, the learned First Appellate Court has allowed the appeal and consequently the suit has been dismissed. It is this divergent findings is called in question on various grounds as set out in this appeal memo.

Several substantial questions of law have been proposed in paragraph 17 of the appeal memo, which reads as follows:

(a) Whether the decision of the lower Appellate Court without considering the important piece of admission made by the defendants in their cross-examination so far as the raising of the loan by the plaintiffs on the security of the suit land in question and the dispute in respect of a Banni Tree situated in the suit land between the plaintiff and neighbouring landowner which clearly shows that the plaintiffs were in possession of the suit land in question?

(b) Whether the lower Appellate Court has committed an error in interfering with the order passed by the Trial Court which was based on the correct appreciation of the facts and evidence on record merely on the ground that other view is also possible?

(c) Whether the lower Appellate Court has committed an error in not considering the plaint averments in its proper perspective and holding that there was no averments in the plaint regarding the plaintiffs perfecting the title by adverse possession when particularly there is clear unambiguous specific averments have been made by the plaintiffs in the plaint? Whether the said misreading of the pleadings and evidence by the lower Appellate Court has caused substantial injustice to the plaintiffs and whether the findings recorded by the lower Appellate Court calls for any interference?

(d) Whether the lower Appellate Court has committed an error in dismissing the suit irrespective of the fact that, even though the plaintiffs have failed to prove that they perfected their title by way of adverse possession and they are not entitled for a declaratory relief in view of the fact that they are in possession the suit property the relief of injunction can be granted in favour of the plaintiffs?

(e) Whether it is not permissible for the Courts to mould and grant the lesser relief irrespective of the fact that the plaintiffs are not entitled for the larger relief of the declaration and injunction?

(f) Whether in the facts and circumstances of the case the lower Appellate Court has committed an error in not granting the injunction in favour of the plaintiffs that they cannot be dispossessed from the suit land unless in accordance with law?

(g) Whether the decision of the lower Appellate Court in interfering with correct and just orders passed by the Trial Court on untenable grounds is required to be interfered with?

The learned Counsel for the appellant has argued on the aspect of admitting the appeal. It is his case that overwhelming evidence is placed on record to prove that the plaintiffs have been in continuous possession of the suit property right from 1965-1966 and uninterrupted revenue entries indicating the names of the plaintiffs have been ignored by the First Appellate Court. It is further argued that defendants very well knew that when the order of grant was made in their favour by the Tahsildar, Hadgali, the plaintiffs were still in possession of the property and they had not been evicted by the Revenue Authorities. It is further argued that worst-cum-worst, the First Appellate Court should have granted the relief of permanent injunction or in the alternative limited injunction should have been granted on the basis of the settled possession. It is his case that First Appellate Court has adopted wrong approach to the real state of affairs by ignoring the material evidence on record.

After hearing the arguments and perusing the records, it is evident that the land in question originally belonged to the Government. Tahsildar, Hadgali granted this land in favour of defendant 1 on 9-2-1982. Ex. D. 1 is the grant order. If really the plaintiffs were in possession of the properties as contended by them in the Trial Court and First Appellate Court, Government could not have granted this property. Normal presumption is that Government will grant a land only if it is in its possession or it will grant a land to the person by regularising unauthorised occupation of such a person. If really plaintiffs were in possession of the properties, nothing came in their way to make an application to the Tahsildar seeking regularisation of such unauthorised occupation. Certain revenue entries depicted in the revenue records indicating the names of the plaintiffs have been relied upon to contend that these entries have been entered as per the provision of Karnataka Land Revenue Act, 1964 and that presumption has been rightly drawn by the Trial Court and same has not been considered by the First Appellate Court. Insofar as reasonable inference to be drawn by reading the backward and forward entries of the revenue records, Section 114 of Indian Evidence Act, 1872 will be relevant. If there are entries for few years only, the said entries can be ignored. What should be the approach in attaching due importance to the entries in revenue records has been well dealt by Hon''ble Supreme Court in the case of Ambika Prasad Thakur and Others Vs. Maharaj Kumar Kamal Singh and Others, . Presumption available u/s 114 of the Karnataka Land Revenue Act has also been dealt in the said decision rendered by the Bench consisting of three Hon''ble Judges.

In view of certain entries found for certain years, prior to filing of the suit, the defendants approached the Revenue Authorities for deletion of the same and they were deleted in column (9). What is argued by the learned Counsel for the appellants is that column 12(2) of RTC continuously depicted the name of plaintiff. It is ununderstandable as to how his name could not find place in column (9) if he was in possession openly to the knowledge and adversely to the interest of the original owner. Crucial date so far as defendant''s title is concerned i.e., 9-2-1982, date on which the grant was made and from that day, defendant became the absolute owner of the property in question. When exactly the plaintiffs came into possession of the suit property is not forthcoming. The First Appellate Court has made a specific discussion about the absence of crucial pleadings to prove the extraordinary aspect of adverse possession. The evidence of P.W. 1 in regard to the knowledge of issue of phatta in favour of defendant 1 by Government is inconsistent. P.W. 1 has deposed that he came to know that phatta being issued in favour of defendant 1 by the Government only in the year 2005.

It is to be seen that moment grant was made, the name of the grantee came to be incorporated in column (9) earmarked for indicating the name of khatedar and nature of acquisition of title. Hence, much credibility is not attached to the evidence of P.W. 2 while reassessing the evidence on the ground holding that P.W. 2 was not aware of the revenue records and survey number of the suit land.

If really the plaintiffs were in possession of the property from 1965 or from 1982, they would have continuously paid the land revenue. They have paid revenue only for past 3 years. Though names of defendants were entered in the record of rights from 1982, 1983 to 1985, 1986. The plaintiffs got entered their names in column 12(2) during the year 1986-1987 and hence much credence is not attached to these entries by the First Appellate Court as no uninterrupted new entries are found. Exs. D. 13 and D. 14-RTC of Sy. No. 304-D indicate that the land earlier belonged to Government and now in the ownership of the defendants. Decision in the case of Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan and Others, has been relied upon by the First Appellate Court. In the said decision recommendation is made to the Government to delete the provision from the Limitation Act, 1963 as the said concept is illegal and irrational. The burden is always heavy on the person who takes up the plea of adverse possession u/s 104 of the Indian Evidence Act. Unless the initial burden is effectively discharged, the onus does not shift on the other side more particularly person pleading adverse possession has to admit title of advisory.

Taking into consideration the various decision of the Apex Court about plea of adverse possession and after reassessing the entire evidence in the light of the principles enunciated by the Supreme Court, the First Appellate Court has rightly held that the plaintiffs have not proved title by way of adverse possession. What is argued before this Court is that the First Appellate Court could have granted limited relief of injunction against unlawful possession on the basis of settled possession. This Court cannot accept the said contention. The First appellate Court has held that the documents relied upon by the plaintiffs, have to be read as a whole and when read do not make out a case being in possession for a reasonable length of time to claim limited relief of injunction against unlawful possession on the basis of the settled possession. Viewed from any angle, is no interference called for against a well-reasoned judgment passed by the First Appellate Court. Hence, the appeal is liable to be dismissed.

ORDER

The appeal filed u/s 100 of CPC is dismissed as unfit for admission. The judgment of the First Appellate Court passed in RA No. 48 of 2007 is upheld. There is no order as to costs.