1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 18TH DAY OF NOVEMBER, 2013 BEFORE THE HON'BLE MR[CASE NUMBER] JUSTICE ASHOK B[CASE NUMBER] HINCHIGERI R[CASE NUMBER]F[CASE NUMBER]A[CASE NUMBER]No[CASE NUMBER]487 OF 2013 BETWEEN: Sri [ENTITY], S/o[CASE NUMBER]Late [ENTITY], Aged about 60 years, R/of Laggare Village, Yeshwanthpura Hobli, Bangalore North Taluk - 560 058[CASE NUMBER] Appellant (By Sri [ENTITY], Advocate) AND: 1[CASE NUMBER] Sri [ENTITY] S/o[CASE NUMBER]Late Muddappa, Aged about 42 years, R/o[CASE NUMBER]Laggare Village, Yeshwanthapura Hobli, Bangalore North Taluk - 560 058[CASE NUMBER] 2[CASE NUMBER] Sri [ENTITY], S/o[CASE NUMBER] Late Muddappa, Aged about 40 years, R/o[CASE NUMBER]Laggare Village, Yeshwanthapura Hobli, Bangalore North Taluk - 560 058[CASE NUMBER] Respondents (By Sri [ENTITY], Advocate for Caveator/respondents) 2 This RFA is filed under [SECTION] [ACT], against the judgment and decree dated 28[CASE NUMBER]02[CASE NUMBER]2013, passed in [CASE NUMBER], on the file of the XII Addl[CASE NUMBER] City Civil & Sessions Judge, Bangalore, dismissing the suit for declaration, injunction and possession and etc[CASE NUMBER] This RFA, coming on for hearing this day, the Court delivered the following: JUDGMENT
This appeal is directed against the judgment and decree, dated 28[CASE NUMBER]02[CASE NUMBER]2013 passed by the Court of the XII Addl[CASE NUMBER] City Civil and Sessions Judge, Bangalore, in [CASE NUMBER][CASE NUMBER]
2[CASE NUMBER] The facts of the case in brief are that the land at Sy[CASE NUMBER]No[CASE NUMBER]1 of Laggere Village, Yeshwanthapur Hobli, Bangalore, measures 4 acres 29 guntas[CASE NUMBER] The appellant's father [ENTITY] filed Form No[CASE NUMBER]7 for the grant of occupancy rights in respect of 32 guntas of land out of the said total extent[CASE NUMBER] The occupancy rights were granted by the Land Tribunal, Bangalore Taluk, by its order, dated 20[CASE NUMBER]08[CASE NUMBER]1976 in his favour[CASE NUMBER] The Land Tribunal's order was challenged by the landlords by filing [CASE NUMBER][CASE NUMBER] The said proceedings culminated in the compromise between the landlord and the appellant's father, whereunder the landlord indicated her acceptance and confirmation of the grant of the occupancy rights in favour of the appellant's father in respect of the land in question[CASE NUMBER] Thereafter, the mutation entry was effected in favour of the appellant's father[CASE NUMBER] Complaining that the respondents have got the survey of the lands done without the knowledge of the appellant and that by virtue of the survey sketch prepared thereon, the respondents are encroaching 11 guntas of land on the northern side, the appellant filed the suit seeking the relief of declaration that he is the owner of the 32 guntas of land, the particulars of which are set out in Schedule 'A' for the recovery of possession of 100 ft[CASE NUMBER] x 120 sq[CASE NUMBER]ft[CASE NUMBER] from the respondents, the particulars of which are set out in Schedule 'B'[CASE NUMBER]
3[CASE NUMBER] The respondent - defendants filed the written statement denying that the survey took place behind the back of the appellant[CASE NUMBER] The respondents stated that the documents produced by the appellant are sham[CASE NUMBER] The gist of the respondents' defence is that the occupancy rights in respect of 38 guntas of the land at Sy[CASE NUMBER]No[CASE NUMBER]1 was granted to the respondents' father[CASE NUMBER] They have partitioned the property; each of them is at present the recorded owner of 19 guntas[CASE NUMBER] The respondents took exception to the appellant's approaching the civil court after 27 years[CASE NUMBER] They denied that the appellant was in possession of 32 guntas[CASE NUMBER] The respondents also took exception to the suppression of the material fact by the appellant, who had earlier filed [CASE NUMBER] for bare injunction[CASE NUMBER] He also takes exception to the filing of the I[CASE NUMBER]A[CASE NUMBER] for withdrawing the said suit with the liberty to file a fresh suit on the same cause of action but not pressing it[CASE NUMBER]
4[CASE NUMBER] The respondent - defendants denied the cause of action for the institution of the second suit[CASE NUMBER] They claimed to be in possession of 38 guntas of land; they also claimed to have developed the 38 guntas, in respect of which the occupancy rights were granted[CASE NUMBER]
5[CASE NUMBER] Based on the rival pleadings, the Trial Court formulated the following issues:
1) Whether plaintiff proves that himself and other co-owners are the title holders and possessors of 0-32 guntas in Sy[CASE NUMBER]No[CASE NUMBER]1 ('A' Schedule property)?
2) Whether the plaintiff proves the identity and boundaries of 'A' Schedule property?
3) Whether the plaintiff proves that 'B' Schedule property measuring 0-11 guntas is part and parcel of 'A' schedule property?
4) Whether the plaintiff proves that during the survey of Sy[CASE NUMBER]No[CASE NUMBER]1 of [CASE NUMBER], the extent of 'A' schedule property was reduced from 0-32 guntas to 0-21 guntas as pleaded in para 6 of the plaint?
5) Whether the plaintiff proves that the defendants have encroached 11 guntas measuring East to West: 110 ft[CASE NUMBER] and North to South 110 ft[CASE NUMBER] ('B' schedule property)?
6) Whether the plaintiff proves cause of action?
7) Whether the defendants prove that as per survey conducted in 1984-85, the father of the plaintiff Late [ENTITY] was in possession of 0-21 guntas only and not 0-32 guntas?
8) Whether the suit is bad for non-joinder of necessary parties as pleaded in para 21 of the written statement?
9) Whether the defendants prove that they are in possession and enjoyment of 0-38 guntas in Sy[CASE NUMBER]No[CASE NUMBER]1?
10) Whether the plaintiff is entitled for the reliefs?
11) What order or decree?
Addl[CASE NUMBER] Issue No[CASE NUMBER]1: Whether the suit is in time?
6[CASE NUMBER] The appellant got himself examined as PW1, marking the documents at Exs[CASE NUMBER] P1 to P17[CASE NUMBER] The respondent No[CASE NUMBER]1 was examined as DW1 on behalf of the respondents, marking 26 documents in Ex[CASE NUMBER]D series[CASE NUMBER]
7[CASE NUMBER] On considering the pleadings, oral and documentary evidence placed on its record, the Trial Court answered the contentious issues against the appellant and dismissed the suit[CASE NUMBER] Aggrieved by the said judgment and decree, this appeal is instituted by the plaintiff[CASE NUMBER]
8[CASE NUMBER] Sri [ENTITY], the learned counsel for the appellant submits that it is not in dispute that the occupancy rights are granted to the appellant's father in respect of 32 guntas and to the respondents' father in respect of 38 guntas in the land at Sy[CASE NUMBER]No[CASE NUMBER]1 of Laggere village[CASE NUMBER] Nobody can have any objection to the appellant being in possession of 32 guntas and the respondents in possession of 38 guntas[CASE NUMBER] If the respondents are in possession in excess of 38 guntas, it cannot but be concluded that they have made the encroachment on the suit schedule property[CASE NUMBER]
9[CASE NUMBER] He submits that he had made the I[CASE NUMBER]A[CASE NUMBER] for the appointment of the Court Commissioner and if the Court Commissioner submits the report that the appellant is in possession of the land measuring 32 guntas, the appellant shall be out of the Court[CASE NUMBER] For this fact-finding exercise, the respondents should not have any objection[CASE NUMBER]
10[CASE NUMBER] Sri [ENTITY] submits that the prime reason for the Trial court for dismissing the suit is that the appellant has not produced any title-deed[CASE NUMBER] He has filed [CASE NUMBER] for the production of additional documents[CASE NUMBER] The occupancy certificate (Form No[CASE NUMBER]10) is produced with the said I[CASE NUMBER]A[CASE NUMBER] The said certificate unequivocally shows that the Land Tribunal has granted the occupancy rights in respect of 32 guntas of land[CASE NUMBER]
11[CASE NUMBER] Sri [ENTITY] fairly submits that the faulty pleadings of the lawyer are putting the appellant to loss and prejudice[CASE NUMBER]
12[CASE NUMBER] He submits that the filing of the first suit [CASE NUMBER] is indeed averred in the plaint in the suit in [CASE NUMBER], from which this appeal has arisen[CASE NUMBER] He submits that the earlier suit ([CASE NUMBER]) was for bare injunction and the subsequent suit ([CASE NUMBER]) is a comprehensive and duly constituted suit for declaration, recovery of possession, permanent injunction, etc[CASE NUMBER] The causes of action for filing the two suits are entirely different[CASE NUMBER]
13[CASE NUMBER] The learned counsel submits that [SECTION] to the Schedule to the [ACT] has no application for this case, because the respondent - defendants have not pleaded adverse possession in the written statement[CASE NUMBER] He submits that the 12 years' limitation for re-claiming the possession is prescribed from the date of dispossession, if the suit is based on previous possession as per [SECTION][CASE NUMBER]
14[CASE NUMBER] He also read out Head Note from the Apex Court's judgment in the case of [PRECEDENT][CASE NUMBER] It reads as follows:
"India inherited law of adverse possession from the British[CASE NUMBER] Supreme Court directed, the Parliament would consider abolishing the law of adverse possession or at least amending and making substantial changes in law in the larger public interest[CASE NUMBER] The Government instrumentalities, including the police, in the instant case attempted to possess land aversely[CASE NUMBER] This is a testament to the absurdity of the law and a black mark upon the justice system's legitimacy[CASE NUMBER] The Government should protect the property of a citizen - not steal it[CASE NUMBER] And yet, as the law currently stands, they may do just that[CASE NUMBER] If this law is to be retained, according to the wisdom of the Parliament, then at least the law must require those who adversely possess land to compensate title owners according to the prevalent market rate of the land or property in question[CASE NUMBER] This alternative would provide some semblance of justice to those who have done nothing other than sitting on their rights for the statutory period, while allowing the adverse possessor to ramain on property[CASE NUMBER] While it may be indefensible to require all adverse possessors some of whom may be poor to pay market rates for the land they possess, perhaps some lesser amount would be realistic in most of the cases[CASE NUMBER] The Parliament may either fix a set range of rates or to leave it to the judiciary with the option of choosing from within a set range of rates so as to tailor the compensation to the equities of a given case[CASE NUMBER]
The parliament must seriously consider at least to abolish "bad faith" adverse possession, i[CASE NUMBER]e[CASE NUMBER], adverse possession achieved through intentional trespassing[CASE NUMBER] Actually believing it to be their own could receive title through adverse possession sends a wrong signal to the society at large[CASE NUMBER] Such a change would ensure that only those who had established attachments to the land through honest means would be entitled to legal relief[CASE NUMBER]
Considering the instant case if the Police Department of the State with all its might is bent upon taking possession of any land or building in a clandestine manner, then, perhaps no one would be able to effectively prevent them[CASE NUMBER] It is the bounden duty and obligation of the Court to ascertain the intention of the Parliament while interpreting the law[CASE NUMBER] Law and justice, more often than not, happily coincide only rarely we find serious conflict[CASE NUMBER] The archaic law of adverse possession is one such[CASE NUMBER] A serious re-look is absolutely imperative in the larger interest of the people[CASE NUMBER]
Adverse possession allows a trespasser a person guilty of a tort, or even a crime, in they eye of law to gain legal title to land which he has illegally possessed for 12 years[CASE NUMBER] How 12 years of illegality can suddenly be converted to legal title is, logically and morally speaking, baffling[CASE NUMBER] This outmoded law essentially asks the judiciary to place its stamp of approval upon conduct that the ordinary Indian citizen would find reprehensible[CASE NUMBER] The doctrine of adverse possession has troubled a great many legal minds[CASE NUMBER] The time has come for change[CASE NUMBER] If the protectors of law become the grabbers of the property (land and building), then, people will be left with no protection and there would be a total anarchy in the entire country[CASE NUMBER]
Hence it can be concluded, there is an urgent need for a fresh look of the entire law on adverse possession[CASE NUMBER] Considering the circumstances it would be proper to recommend Union of India to immediately consider and seriously deliberate either abolition of the law of adverse possession and in the alternate to make suitable amendments in the law of adverse possession[CASE NUMBER]"
15[CASE NUMBER] Per contra, Sri [ENTITY], the learned counsel for the respondents submits that the Trial Court's order appointing the Court Commissioner is set side by this Court by its order, dated 19[CASE NUMBER]06[CASE NUMBER]2012 passed in [CASE NUMBER] (Annexure-R5 with the respondents' common statement of objections to the appellant's said I[CASE NUMBER]As)[CASE NUMBER] He submits that this Court has set aside the Trial Court's order appointing the Court Commissioner on the ground that the appellant's father had the notice of the survey work[CASE NUMBER] He submits that the appellant has admitted that his father was aware of the survey work in 1985[CASE NUMBER]
16[CASE NUMBER] Sri [ENTITY] submits that the suit is hopelessly barred by limitation[CASE NUMBER] He submits that Schedule to [SECTION] of the [ACT] prescribes 12 years' limitation period for seeking the recovery of the immovable property[CASE NUMBER] Admittedly, the survey report has come out in 1985, showing the appellant's father's extent of the land as 21 guntas[CASE NUMBER] It was open to the appellant/his father to file the suit any time before 1997[CASE NUMBER] As the appellant and his father had the knowledge of the respondent's possession of what is described as 'B' schedule property from 1985 and as the respondents continued to be in the settled possession of the lands in question, the appellant cannot be permitted to unsettle the settled matters[CASE NUMBER] In support of his submissions, he has relied on the Apex Court's decision in the case of [PRECEDENT][CASE NUMBER]
17[CASE NUMBER] For contending that the second suit ([CASE NUMBER]) is hit by [SECTION] of [ACT], he relies on the Apex Court's judgment in the case of [PRECEDENT][CASE NUMBER]
18[CASE NUMBER] He submits that the appellant has unsuccessfully tried to have the plaint amended in [CASE NUMBER][CASE NUMBER] On the rejection of his amendment application, he is not justified in filing a fresh suit[CASE NUMBER] The admissions made in the plaint in [CASE NUMBER] cannot be erased by taking recourse to an amendment[CASE NUMBER] For advancing this contention he has relied on the Apex Court's judgment in the case of [PRECEDENT][CASE NUMBER]
19[CASE NUMBER] The learned counsel submits that the appellant has admitted that the suit property neither got measured nor surveyed before he filed the suit[CASE NUMBER] He submits that the appellant is taking advantage of the community to which he belongs[CASE NUMBER] He belongs to Scheduled Caste[CASE NUMBER] The respondents belong to Lingayath Community[CASE NUMBER] On day-today basis, he is making the galata[CASE NUMBER] He has been threatening that he would go to any extent to see that the respondents do not enjoy the 'B' schedule property[CASE NUMBER]
20[CASE NUMBER] Sri [ENTITY] submits that there is no averment whatsoever, which is indicative of the exact date of the dispossession of the appellant from the suit schedule property[CASE NUMBER] He submits that, if [SECTION] and [SECTION] have no application, then the only invokable Article is [SECTION][CASE NUMBER] The said Article prescribes the limitation period of three years for making any application for which no period of limitation is provided[CASE NUMBER] He submits that the respondent - defendants are using the adverse possession not as a sword but as a shield[CASE NUMBER]
21[CASE NUMBER] The submissions of the learned counsel have received my thoughtful consideration[CASE NUMBER]
22[CASE NUMBER] My perusal of the judgment and decree under appeal reveals that the Trial Court has answered the first three issues (extracted supra) in the negative because the appellant has not produced the title-deed in respect of 'A' schedule property[CASE NUMBER] The Trial Court observed:- "In the present suit on hand, the plaintiff has not produced any title-deeds[CASE NUMBER] The matter would have been different had he filed Form No[CASE NUMBER]10 issued as per the provisions of the [ACT]"[CASE NUMBER]
23[CASE NUMBER] In these appeal proceedings, the appellant has made I[CASE NUMBER]A[CASE NUMBER]No[CASE NUMBER]2 invoking [SECTION] of [ACT] for the production of additional evidence[CASE NUMBER] Along with the said I[CASE NUMBER]A[CASE NUMBER], he has filed the Occupancy Certificate in Form No[CASE NUMBER]10 in respect of Schedule 'A' property[CASE NUMBER] I allow this I[CASE NUMBER]A[CASE NUMBER] for two reasons: (a) The Occupancy Certificate in Form No[CASE NUMBER]10 is relevant for deciding the contentious issue between the parties[CASE NUMBER] The factor while considering the I[CASE NUMBER]A[CASE NUMBER] for production of additional evidence is whether the Appellate Court is able to pronounce the judgment on the material placed before it without taking into consideration the additional evidence sought to be produced[CASE NUMBER] (b) The appellant is virtually an unlettered ruralite[CASE NUMBER] The way he has signed the vakalath and the affidavit shows that he has signed with great difficulty[CASE NUMBER] I have minutely gone through what he has said in the course of cross-examination[CASE NUMBER] He has stated that he is illiterate, that he does not know the contents of his affidavit evidence, that he does not know when the Land Tribunal has passed the order, that he does not know when his father died, that he does not know what was his age at the time of survey and that he does not know whether the respondents have encroached the schedule 'B' property[CASE NUMBER] This being the appellant's ignorance-level, it can not be believed that he deliberately withheld From No[CASE NUMBER]10 Certificate from the Trial Court[CASE NUMBER]
24[CASE NUMBER] The Trial Court has answered jointly issue Nos[CASE NUMBER] 4 to 7 against the appellant, because he has not challenged the survey sketch (Ex[CASE NUMBER]P8)[CASE NUMBER] If the appellant is to be found at fault for not challenging the said survey sketch, it has to be proved that he had the notice of the survey proceedings[CASE NUMBER] The Surveyor himself is not examined[CASE NUMBER] No independent witness is examined[CASE NUMBER] No mahazar, if any, drawn at the time of survey is produced[CASE NUMBER] No official from the Land Tribunal is examined for showing whether or not the actual measurement at the appellant's land and the respondents' land preceded the granting of the occupancy right by the Land Tribunal[CASE NUMBER]
25[CASE NUMBER] What is involved is the party's valuable right in the immovable property[CASE NUMBER] It cannot be decided based on the stray admissions of an ignorant villager[CASE NUMBER]
26[CASE NUMBER] Based on the survey sketch (Ex[CASE NUMBER]P8), the Trial Court has answered issue No[CASE NUMBER]9 by holding that the respondents are in possession and enjoyment of 38 guntas of land at Sy[CASE NUMBER]No[CASE NUMBER]1 of Laggere Village[CASE NUMBER] The appellant has no objection and can have no objection to the respondents being in possession of 38 guntas[CASE NUMBER] But what has to be found is whether the respondents are in excess of the land measuring 38 guntas granted to the respondent's father[CASE NUMBER]
27[CASE NUMBER] The Trial Court has answered issue No[CASE NUMBER]9 that the respondents are in possession of 38 guntas of land[CASE NUMBER] But the question is whether the respondents are in possession of the land exceeding 38 guntas[CASE NUMBER] That the respondents are entitled to be in possession of 38 guntas is also precisely the case of the appellant[CASE NUMBER]
28[CASE NUMBER] While holding that the suit is not in time (additional issue), the Trial Court has reckoned the limitation from the date of the submission of the survey report[CASE NUMBER] The possibility of the appellant/his father continuing to be in possession of 32 guntas for some years even after the preparation of the survey sketch, cannot be ruled out[CASE NUMBER]
29[CASE NUMBER] The Trial Court's difficulty in arriving at the right conclusions arises from the faulty pleadings, as fairly submitted by Sri [ENTITY][CASE NUMBER]
30[CASE NUMBER] For all the aforesaid reasons, I allow this appeal by setting aside the judgment and decree under appeal and remand the matter to the Trial Court[CASE NUMBER] Liberty is reserved to both the parties to lead additional evidence[CASE NUMBER] Needless to observe that all the issues including the period of limitation is kept open[CASE NUMBER] The parties and/or their respective learned advocates are directed to be present before the Trial Court on 4[CASE NUMBER]12[CASE NUMBER]2013 without waiting for any notice from the Trial Court[CASE NUMBER] The parties shall co-operate with the Trial Court in the speedy disposal of the matter[CASE NUMBER] The Trial Court shall dispose of the remanded matter as expeditiously as possible and in any case within an outer limit of six months from 4[CASE NUMBER]12[CASE NUMBER]2013[CASE NUMBER]
31[CASE NUMBER] No orders are required to be passed on [CASE NUMBER] for the appointment of the Court Commissioner[CASE NUMBER] If the evidence placed on its record does not enable the Trial Court to adjudicate the matter regarding the demarcation of the boundaries, identity of the lands, exact extent of the possession of the rival parties in respect of the lands in question, it may have to appoint the Court Commissioner either based on the application of the parties or suo motu[CASE NUMBER] To elucidate the matter in dispute, it is always open to the Trial Court to appoint the Court Commissioner[CASE NUMBER]
32[CASE NUMBER] It is profitable to refer to the Madras High Court's judgment in the case of [PRECEDENT], wherein it is held that when one party complains of the encroachment of the adjoining land and the other party denies it, the best evidence could be obtained only by the appointment of the Court Commissioner[CASE NUMBER]
33[CASE NUMBER] I may usefully refer to this Court's decision in the case of [PRECEDENT][CASE NUMBER] In the said case it is held that where the dispute relates to the accuracy of the sketch of the suit property, the need for the appointment of Commissioner under [SECTION] for measuring and demarcating the suit property would arise only after the parties have adduced evidence in regard to matters in issue in the suit in order to better appreciate the evidence[CASE NUMBER]
34[CASE NUMBER] This Court in its decision in the case of [PRECEDENT] has this to say in paragraph No[CASE NUMBER]8:
"8[CASE NUMBER] The need to have resort to [SECTION], [SECTION] ought to be felt by the Court for purpose of elucidating certain details which, in its opinion, can neither be had from the records and nor can be produced by the parties by way of oral and documentary evidence[CASE NUMBER] The details so required by the Court ought to be such that in their absence determination of issues in dispute cannot be effectively adjudicated upon necessitating the appointment of Commissioner on its own or at the instance of either of the parties[CASE NUMBER] Where the Court is of the opinion that the matters in dispute could be effectively adjudicated upon by having resort to the evidence available on record, the Court at its discretion can refuse to direct appointment of Commissioner[CASE NUMBER] In the case on hand the Court-below on more than one occasion referred to the sufficiency of evidence on record for deciding the rival claims of the parties[CASE NUMBER] When the Court itself is of the view that elucidation of any matter is not required for purpose of deciding the case, the order passed by it rejecting the [CASE NUMBER][CASE NUMBER]XI filed for appointment of Commissioner cannot be found fault with[CASE NUMBER] In the view that I have taken, I find that the Court below has not exercised its jurisdiction illegally or with material irregularity calling for interference at the hands of this Court[CASE NUMBER]"
35[CASE NUMBER] The question of the appointment of the Court Commissioner has to be examined by the Trial Court independently of the consideration shown in the earlier round[CASE NUMBER] In the earlier round, the Trial Court's order appointing the Court Commissioner was set aside by this Court only on the ground that the Trial Court was not right in concluding that the respondents have not produced any material to show that the father of the appellant had been served with the notice of survey[CASE NUMBER]
36[CASE NUMBER] No order as to costs[CASE NUMBER]
JUDGE Cm/MD