Karnataka HC in Saiyad Gulam Vohiddin & Ors. vs. Deputy Commissioner, Koppal & Ors. [05.02.2019]

IN THE HIGH COURT OF KARNATAKA (DHARWAD BENCH)

Writ Appeal Nos. 100133-134 of 2017 (GM-RES)

Decided On: 05.02.2019

Saiyad Gulam Vohiddin and Ors.

Versus

Deputy Commissioner, Koppal and Ors.

Hon'ble Judges/Coram:

B.V. Nagarathna and A.S. Bellunke, JJ.

Counsels:

For Appellant/Petitioner/Plaintiff: C.R. Hiremath

For Respondents/Defendant: Veena Hegde, AGA

DECISION

B.V. Nagarathna, J.

1. The legality and correctness of order dated 07.07.2015 passed in Writ Petition Nos. 11697-111741 of 2014 and Writ Petition Nos. 111742-111744 of 2014 is assailed by some of the writ petitioners in these appeals.

2. Though these appeals are listed for preliminary hearing along with I.A. No. 1 of 2017 seeking condonation of long delay of 563 days in filing the appeal, we have nevertheless heard learned counsel for appellants on merits.

3. The appellants herein were the writ petitioners, who assailed Annexure-A, being Resolution dated 31.10.2014 passed by the sixth respondent-Chairman of the City Ashraya Committee, Koppal, and also Member of Legislative Assembly, Koppal and sought a direction to the first and second respondents to consider and pass an order of allotment as per the list of beneficiaries produced at Annexures-'E' and 'G' under the Integrated Housing and Slum Development Programme (IHSDP- hereinafter referred to as "Centrally Sponsored Scheme" for the sake of convenience). Learned single Judge, who considered the writ petitions, by the impugned order, has dismissed the same by holding that the petitioners have no vested right to seek allotment of the houses constructed under the Centrally Sponsored Scheme at Bahaddoorbandi Road. That the Government can allot any house either constructed under the Centrally Sponsored Scheme or under Ashraya Scheme for houseless poor persons. Therefore, the petitioners cannot contend that they must be allotted houses only at Bahaddoorbandi Road and not the houses constructed under Ashraya scheme. Learned single Judge has also held that Annexure-A is an order which is in the interest of social justice of all parties and that there is no infirmity in the said order.

4. We have heard learned counsel for the appellants on several dates. This matter was listed before this Court on 14th November, 2018. Thereafter, on 20th November, 23rd November, 12th December, 19th December, 21st December, 2018 and even subsequently on 8th January 2019, 23rd January, 25th January and today (05th February, 2019). Today, we have heard learned counsel for the appellants in the pre-lunch session as well in the post-lunch session, as also learned Additional Government Advocate for respondent No. 1.

5. Briefly stated the facts are that, land bearing Sy. No. 438 measuring five acres six guntas situate at Bahaddoorbandi Road, Koppal, was handed over to the Slum Development Board for construction of 238 houses under the Centrally Sponsored Scheme-IHSDP. The Slum Development Board constructed the said houses through Koppal District Nirmithi Kendra. Thereafter, by Communication dated 09.03.2011, 3rd respondent took possession of the constructed houses and settled the bill. The Deputy Commissioner, Koppal-first respondent herein issued a notification dated 01.03.2012 calling for applications from the eligible, poor and houseless persons for allotment of constructed houses under the said scheme. A paper advertisement dated 01.03.2012 was also issued. 145 applications were received. After scrutiny, 130 applicants were found eligible for allotment of houses and accordingly, a list of 130 beneficiaries was prepared and the appellants herein claim to be the beneficiaries amongst 130 persons in the said list. So far as the remaining houses are concerned, another paper advertisement dated 04.12.2012 was issued calling for applications from the eligible persons for allotment of houses. A large number of applications were received. In response to the same, Karnataka Slum Development Board prepared a list of 238 persons but no steps were taken for allotment to those persons who were found eligible for allotment of houses under the Scheme.

6. The persons who thought they were eligible, formed an association and requested the Deputy Commissioner for allotment of houses as per the list of beneficiaries prepared. Since the Deputy Commissioner did not take any step, petitioners preferred Writ Petition No. 84786 of 2013 and connected writ petitions before this Court seeking a direction to the Deputy Commissioner as well as the Slum Development Board to consider the representations of the petitioners for allotment of houses. This Court by order dated 06.12.2013 issued a direction to the Commissioner, Slum Development Board to consider the representation of the petitioners and take appropriate decision. But, according to the appellants herein, no decision was taken. It appears that, in the meanwhile, some persons have illegally occupied the houses constructed under the Scheme and are utilizing the said houses not only for residential purpose but also for commercial purpose. Since petitioners' representations were not considered, they filed Contempt Petitions in CCC No. 100386 of 2014 and CCC Nos. 100394-399 of 2014 for disobedience of the order of this Court. But, the contempt proceedings have been dropped as no direction was issued to the Deputy Commissioner to consider the representations of the petitioners and a direction was issued only to the Commissioner, Slum Clearance Board. Subsequently, an application was filed in the writ petitions and this Court on 07.07.2014 modified its earlier order dated 06.12.2013 and issued a direction to the Deputy Commissioner to consider petitioners' representations. In spite of the said order, there was no consideration.

7. Petitioners once again filed contempt petition in CCC No. 100918 of 2014 for non-consideration of the case of the petitioners for allotment of houses. According to the appellants herein, the sixth respondent in order to avoid contempt of Court proceedings, passed the impugned order dated 31.10.2014 Annexure-A without considering the case of the petitioners. Consequently, the contempt proceedings were dropped. Being aggrieved by order at Annexure-A, petitioners filed the writ petitions and sought for a direction to consider their case for allotment of houses as per the list of beneficiaries produced at Annexures 'E' and 'G'. Learned single Judge after hearing the respective parties, has dismissed the writ petitions. Being aggrieved, some of the writ petitioners have preferred these appeals.

8. We have heard learned counsel for the appellants and learned Additional Government Advocate for respondent No. 1 in detail and perused the material on record.

9. At the outset, it must be stated that land bearing Sy. No. 438 totally measuring 10 acres 17 guntas situate at Bahaddoorbandi town, Koppal, belonged to one Syed Zulla Khader who gifted five acres, six guntas of land in favour of the Commissioner, City Municipal Council, Koppal, as per consent letter dated 14.02.2006 and he subsequently executed a registered gift deed 07.06.2006 in favour of the Commissioner CMC, Koppal, on behalf of the Sate. The object and purpose of the gift was to provide houses for the poor and the needy who belong to minority and backward communities. The Deputy Commissioner by his order dated 07.04.2006 accepted the condition imposed by the owner while making the gift of the land. The said land was handed over to the Karnataka Slum Clearance Board for construction of houses. The Slum clearance Board in turn handed over the said extent of land to Koppal District Nirmithi Kendra, Koppal on 14.12.2007 for formation of a layout and for construction of houses.

10. In the meanwhile, the list of beneficiaries was prepared by the then Deputy Commissioner and the then Commissioner, City Municipal Council, Koppal, signed the list of beneficiaries even before construction of the houses. After the construction of the houses by the Nirmithi Kendra, a letter was addressed on 09.03.2011 requesting respondent No. 3 to take possession of the constructed houses and to settle the dues. As already noted, when the said developments were on, certain persons, whose names may not have been included in the list of beneficiaries, had illegally occupied the houses and had even got electricity and water connections. But, in response to the newspaper advertisement calling for applications from the eligible persons, the petitioners and others submitted their application. As already stated, 130 applications were received, 104 persons were found eligible for allotment of the houses and thereafter, again another advertisement was issued on 04.12.2012. Consequently, Karnataka Slum Development Board prepared a list of 238 persons as the beneficiaries. But, all the houses constructed under the Scheme had been illegally occupied by persons, even without any Hakkupatras or allotment letters being issued to them.

11. It appears that some of the unauthorised occupants/encroachers had filed Writ Petition Nos. 62862-866 of 2012 [GM-RES] before this Court challenging the advertisement issued by the Deputy Commissioner calling for applications and this Court had granted an interim order. On the other hand, the petitioners filed Writ Petition No. 84786 of 2013 seeking a writ of mandamus to allot the houses to them as beneficiaries. On account of non-impleadment of the direction of this Court, CCC No. 100918 of 2014 and connected cases were filed for disobedience of the order passed by this Court. In order to end the dead-lock, ultimately a meeting was called under the Chairmanship of City Ashraya Committee, Koppal Officers of City Municipal Council, Koppal and the President of Municipality, Koppal to discuss and sort out the matter. It was found that out of 249 occupants, 207 persons had filed applications pursuant to the notification issued by the Deputy Commissioner and 42 persons though had not filed application, being house-less poor persons and being eligible for allotment of houses, had occupied the houses. The District Administration though decided to take steps for eviction of the illegal occupants, there has been not much progress in the matter on account of the interim stay order granted by this Court in Writ Petition Nos. 62862-866 of 2012. Accordingly, as per Annexure 'A' order, it was decided that priority would be given to the petitioner and other beneficiaries for allotment of the houses not necessarily under the Centrally Sponsored Scheme. Being aggrieved by the decision in Annexure 'A, the writ petitions were filed.

12. As already noted, the learned single Judge has held that the petitioners cannot insist that they be given allotment under the Centrally Sponsored Scheme at Bahaddoorbandi Road. That Annexure 'A' order states that petitioners would be accommodated under any other Centrally sponsored scheme or State sponsored scheme of housing to the persons who are poor and needy. In the circumstances, learned single Judge has dismissed the writ petitions.

13. The contention of the learned counsel for the appellants is that under Annexure 'E', the names of the appellants are found along with other persons. Said Annexure 'E' is a communication which has been issued by the Assistant Executive Engineer, Karnataka Slum Development Board, Gadag sub-division, Gadag to the Deputy Commissioner, Koppal District. That the names of the appellants herein find a place in that list of 130 beneficiaries, which list is appended to Annexure 'E'. Thereafter, the Deputy Commissioner did not take steps for issuance of list of beneficiaries and thereafter, the distribution of Hakkupatras to the eligible beneficiaries and grant possession of houses built under the Centrally Sponsored Scheme to beneficiaries such as the appellants herein. It is contended that while on the one hand, the names of the appellants who are beneficiaries find a place in the list appended to Annexure 'E', no final list was issued for the purpose of handing-over of Hakkupatras and possession of the houses to them. In the meanwhile, there has been illegal occupation of the houses by certain persons whose names may not find a place in the list appended to Annexure 'E'. That their illegal occupation has not been terminated by the State Government and by the authorities concerned by taking adequate and effective steps. As a result, the petitioners/appellants herein have been deprived of a basic housing facility under the Centrally Sponsored Scheme, although their names are found in the list appended to Annexure 'E'. It is contended that the in-action on the part of the State Government has caused prejudice and deprivation of a housing facility to the petitioners while the State Government has remained silent and virtually acquiesced to illegal occupation of the houses constructed under the Central Sponsored Scheme by certain persons. Therefore, learned counsel for the appellants contended that a direction may be issued to the State Government to allot the houses under the Centrally Sponsored Scheme to the appellants herein by removing the illegal occupants or to allot any vacant houses constructed under the said Scheme to the appellants herein.

14. At the outset, we may observe that in the absence of illegal occupants being made parties to these proceedings, no direction could be issued to the State Government to evict them. Even if any person is in illegal occupation of a Government property and who would have to be evicted it would have to be in accordance with law. In the absence of such illegal occupants being heard in the matter by this Court, a general direction cannot be issued to the State Government to remove all illegal occupants of the houses built under the said scheme. This is not public interest litigation where justice is sought to be secured to the public at large. We must not lose sight of the fact that the petitioners/appellants herein are also aspirants for the very same houses which have been illegally occupied by certain persons. It is also noted by us that the concerned respondents have taken steps by issuance of eviction notices to the illegal occupants.

15. In the circumstances, the next question that would arise is as to what relief could be granted to the appellants herein.

16. Of course, learned single Judge has said that the appellants cannot insist for allotment of houses in Bahaddoorbandi Road and that their case would be considered on the basis of their eligibility and entitlement in any Centrally Sponsored Scheme or State Sponsored Housing Scheme in accordance with law. We cannot find fault with the said observation of the learned single Judge. After all, Annexure 'E' is not a final list which has been prepared from which it could be implied that the writ petitioners or the appellants herein would be entitled to issuance of Hakkupatras or allotment letters as well as possession of houses in the Centrally Sponsored Scheme. The said list at Annexure 'E' is appended to a communication issued by the Assistant Executive Engineer of the Slum Development Board to the Deputy Commissioner to take further steps in the matter. Unfortunately, even before the Deputy Commissioner could take any concrete steps in the matter so as to consider issuance of Hakku Patras or allotment letters to 130 eligible applicants, there had been illegal occupation of the houses constructed under the Centrally Sponsored Scheme. In view of the said deadlock, the question is as to what relief could be granted to the appellants.

17. Learned single Judge has observed that since the appellants cannot insist on being allotted houses only at Bahaddoorbandi Road, the houses constructed under the Ashraya Scheme could be allotted to the appellants or in any of the houses constructed under any other Centrally Sponsored Scheme. In the circumstances, we direct respondent No. 1 to consider Annexure 'E' communication issued by Assistant Executive Engineer of the Slum Development Board, Gadag sub-division, Gadag along with the list containing the names of 130 persons in which the appellants' names are found and to take steps to allot houses to the appellants in the Centrally Sponsored Scheme, if any such houses are available or in any other State Sponsored Scheme or under Ashraya Scheme or under any other scheme, so that the grievance ventilated by the appellants in these appeals are assuaged by giving a preference to them.

18. It is needless to observe that although there has been no formal list prepared by the Deputy Commissioner pursuant to Annexure 'E' communication dated 16.11.2012, but having regard to the earlier direction by this Court and the directions issued in these appeals, respondent No. 1 to consider the case of the appellants along with other original aspirants and allot houses to them in accordance with law. The said exercise shall be carried out within a period of two years from the date of receipt of copy of this judgment.

19. We would also like to refer to the decision of Hon'ble Supreme Court in the case of Jagpal Singh v. State of Punjab, reported in  (2011) 11 SCC 396 : (AIR 2011 SC 1123) relied upon by the learned counsel for the appellants. In the said case, the appellants therein were neither owners nor tenants of the land in dispute in the said case which was recorded as pond situated in village Rohar Jagir, Tehsil and District Patiala. The trespassers and unauthorised occupants of the land made constructions on the village pond and steps were taken by the Grama Panchayat, Rohar Jagir to evict the appellants therein who unauthorisedly occupied the aforesaid land which belonged to Grama Panchayat, Rohar Jagir. Since the appellants therein had illegally occupied the said land, a first information report was filed against them, but of no avail. Though illegal constructions on the said land were put up, instead of ordering for eviction of those unauthorised occupants, the Deputy Commissioner Patiala had held that it would not be in the public interest to dispossess them, hence, directed Grama Panchayat, Rohar to recover the cost of land as per the Collector's rate from the respondents/appellants therein. The Collector colluded in regularising the illegality on the ground that the appellants therein had spent huge sums of money by constructing houses in the said lands. It appears that some persons had appealed to the learned Commissioner against the order of the Collector and the appeal was allowed. The Commissioner had held that the officials of Grama Panchayat had colluded with the appellants therein and it had not even opposed the order passed by the Collector in which directions had been issued, nor filed any appeal against the Collector's order. The Commissioner was of the view that the regularising of such grant of illegal encroachment was not in the interest of the Grama Panchayat. Against the order of the Commissioner, a writ petition was filed before the learned single Judge of the Punjab and Haryana High Court which was dismissed, against which an appeal was filed before the Division Bench, which also affirmed the order of the learned single Judge.

20. The Hon'ble Supreme Court also dismissed the appeal. But, at the same time, opined that the appellants therein were trespassers, who illegally encroached upon the Grama Panchayat land in collision with the officials and even with the Grama Panchayat and that such kind of illegalities could not be regularized by citing M.I. Builders (P) Ltd. v. Radhey Shyam Sahu, reported in (1999) 6 SCC 464 : (AIR 1999 SC 2468) and Friends Colony Development Committee v. State of Orissa, reported in (2004) 8 SCC 733 : (AIR 2005 SC 1). The Hon'ble Supreme Court observed that the State Government had permitted allotment of Grama Panchayat land to private persons and commercial enterprises on payment of money which was illegal and should not be ignored. A pond must not be allotted to anybody for construction of a house or any such allied purpose. Ultimately, the Hon'ble Supreme Court issued directions to all State Governments that they should prepare schemes for eviction of illegal/unauthorised occupants of Grama Sabha/Grama Panchayat/Poramboke/Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village and eviction of illegal occupants should be after giving them a show-cause notice and a brief hearing. That regularisation should be permitted only in exceptional cases where lease has been granted under some Government Notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there was already a school, dispensary or other public utility on the land.

21. Of course, the aforesaid directions were issued by the Hon'ble Supreme Court having regard to the mis-utilisation and illegal occupation of a pond in a village. But the essence of the directions issued by the Hon'ble Supreme Court would squarely apply in the instant case as the respondents and particularly, the State Government not being able to take steps to evict the illegal occupants have not been in a position to make allotments to the eligible persons as per the list appended to Annexure 'E'. It is in the face of such a deadlock that concrete directions cannot be issued to the State Government to allot the very same houses which are in illegal occupation to the eligible persons whose names are found in the list appended to Annexure 'E' to the appellants herein.

22. In the circumstances, by ignoring the delay of 523 days in filing these appeals, we dispose off these appeals in the aforesaid terms. In view of the disposal of the appeals, all other pending applications stand disposed.

Sri Jayaram Reddy v. State of Karnataka & Ors. [Order dated 13.02.2014]

IN THE HIGH COURT OF KARNATAKA AT BANGALORE 

DATED THIS THE 13TH DAY OF FEBRUARY 2014 

BEFORE THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI 

R.F.A.No.2541 OF 2007 (DEC) 

BETWEEN: 

Sri Jayarama Reddy, Since dead by L.Rs. 

1. Sri H.V.Srinivasa Reddy, Aged about 68 years, Brother of late Jayarama Reddy, Son of late H.M.Veerappa Reddy, Residing at No.2, 1st Cross, Near Maruthi Brick Works, Chinnappanahalli, Marathahalli Post, Bangalore - 560 037. 

2. Sri H.V.Muniswamy Reddy, Aged about 64 years, Brother of late Jayarama Reddy, Son of late H.M.Veerappa Reddy, Residing at No.2, 1st Cross, Near Maruthi Brick Works, Chinnappanahalli, Marathahalli Post, Bangalore - 560 037. 

3. Sri H.V.Venkatesha Reddy, Aged about 62 years, Brother of late Jayarama Reddy, Son of late H.M.Veerappa Reddy, Residing at No.95, 1st Cross, Near Maruthi Brick Works, Chinnappanahalli, Marathahalli Post, Bangalore - 560 037. 

4. Sri H.V.Gurumurthy Reddy, Aged about 64 years, Brother of late Jayarama Reddy, Son of late H.M.Veerappa Reddy, Residing at No.2, 1st Cross, Near Maruthi Brick Works, Chinnappanahalli, Marathahalli Post, Bangalore - 560 037. 

5. Sri H.V.Babu Reddy, Aged about 58 years, Son of late H.R.Venkataswamy Reddy, Residing at No.138, 3rd Cross, Near Maruthi Brick Works, Chinnappanahalli, Marathahalli Post, Bangalore - 560 037. 

6. Smt.Sarojamma, Aged about 68 years, Wife of Late Jayarama Reddy. 

7. Sri J.Chandrashekar, Aged about 45 years, Son of late Jayarama Reddy. 

8. Sri J.Vishwanath, Aged about 35 years, Son of late Jayarama Reddy. Near Maruthi Brick Works, Chinnappanahalli, Marathahalli Post, Bangalore - 560 037. 

... Appellants 

 (By Sri S.Channaraya Reddy and Sri C.Shankar Reddy, Advocates) 

AND: 

1. State of Karnataka, By its Chief Secretary, Vidhana Soudha, Bangalore - 560 001. 

2. The Deputy Commissioner, Bangalore Urban District, Bangalore - 560 001. 

3. Smt.Subhashini S. Aged about 44 years, W/o.Late N.Venugopal Reddy, Residing at No.539, Near Railway Track, Munnekolala, Marathahalli Post, Bangalore - 37. 

4. Sri R.Lokesh, Aged about 37 years, Son of N.Ramaswamy, Residing at No.176/2, Patel Narayanaswamy Layout, 4 Siddapura, Ramagondanahalli Post, Bangalore - 560 066. 

5. Sri K.Obul Reddy, Aged about 48 years, Son of late K.Venkata Reddy. 

6. Smt.K.Sulochanamma, Aged about 35 years, Wifeof Sri K.Obul Reddy, Both impleading applicants 5 and 6 are residents of No.5, 1st Cross, Ayyappa Layout, Behind KMF, Munnekolalu, Marathahalli Post, Bangalore - 560 037. 

7. Sri P.Abhishek Reddy, Aged about 30 years, Son of Prasad Reddy K.R. Residing at No.32/A, RBI Colony, 2nd Cross, 3rd Block, Jayanagar East, Bangalore - 560 011. 

... Respondents

(By Smt.B.P.Radha, HCGP for R1 & R2: Sri L.Harish Kumar, Advocate for R3 - R7) 

This RFA is filed under Section 96 CPC, against the judgment and decree dated 13.11.2007 passed in OS.No.4922/2001 on the file of the IX Additional City Civil and Sessions Judge, Bangalore (CCH-10), dismissing the suit for declaration and injunction and etc. This RFA, coming on for final disposal, this day, the Court delivered the following: 

JUDGMENT

The plaintiff has preferred this appeal aggrieved by the dismissal of the suit (O.S.No.4922/2001) by the Court of the IX Additional City Civil and Sessions Judge, Bangalore by its judgment and decree, dated 13.11.2007.

2. The facts of the case in brief are that the appellant - plaintiff claimed that his father had occupied the suit schedule property unauthorisedly prior to 1963. The revenue authorities even levied the T.T. fine for the unauthorised occupation and cultivation of the land by the appellant's father. On the demise of his father, the appellant continued to be in possession of the suit schedule property. He filed the suit seeking the relief of declaration that he has perfected his title by way of adverse possession. The Deputy Commissioner, Bangalore Urban District filed the written statement denying the plaint averments and allegations. It was stated therein that the land bearing Sy.No.99 measures 10 acres 30 guntas and that it is a gomal land. The T.T. fine is levied on those who cultivate the Government lands unauthorisedly. It does not give any right to them to claim the title or possession. The land at Sy.No.99 is used up for the formation of the sites which are distributed to the siteless persons. The RTC for the year 2004-2005 shows that the schedule properties are in the possession of the Government.

3. Based on the rival pleadings, the Trial Court formulated the following issues:

"1. Whether the plaintiff proves that he has been in continuous possession and enjoyment of the suit land from the time of his father adverse to the interest of defendants as pleaded in the plaint?

2. Whether the plaintiff proves that he has perfected his title to the suit land by way of adverse possession as pleaded in the plaint?

3. Whether the defendants prove that the suit land they have already formed the sites and allotted them to the poor persons free of cost and they have put up the houses in the said sites as contended in the written statement?

4. Whether the defendants prove that the suit is not properly valued and the court fee paid on the plaint is insufficient?

5. Whether the plaintiff proves that he is entitled for the declaration of his title to the suit land as sought for in the suit?

6. What order or decree?"

4. On behalf of the appellant, he himself and two others were examined as PWs. 1 to 3 marking the documents at Exs. P1 to P14. The official of the second defendant was examined as DW1 marking 6 documents in the Ex. D series. On considering the pleadings, oral and documentary evidence placed on its record and applying the case-law, the Trial Court answered the contentious issues against the appellant and dismissed the suit. Aggrieved by the same, this appeal is filed.

5. Sri C.Shankar Reddy, the learned counsel for the appellant submits that the respondents have not produced any document to show as to how many sites are formed out of which lands, how many sites are allotted, to whom they are allotted, etc.

6. Sri Reddy submits that the revenue records from 1963-1973 show the possession of the appellant's father till 1970. The Tahsildar passed the eviction order which was however set aside by the Assistant Commissioner in the appeal filed by the appellant's father. He submits that only that part of the Tahsildar's order, which imposed the T.T.fine, was upheld by the Assistant Commissioner. Thereafter no fresh eviction proceedings are initiated. He submits that the Assistant Commissioner's said order is at Ex.P10.

7. He denies the official conversion that the land at Sy.No.99 measures 10 acres 30 guntas. According to him, all the lands standing at Sy.Nos. 98, 99, 100 and 101 together measure 10 acres 30 guntas. He submits that the land at Sy.No.99 measured 2 acres 30 guntas. Later it is shown in the revenue records that it measures 3 acres.

8. He submits that this Court by its interim order, dated 07.01.2008 restrained the respondent Nos. 1 and 2 from disturbing the possession of the schedule property of the appellant on forming the view that it is the appellant who is in possession of the suit schedule property. He submits that the appellant has already made two I.A.s. for the appointment of the Court Commissioner for inspecting the lands in question.

9. Sri Reddy read out the Head Note (B) of the decision of the Hon'ble Supreme Court in the case of KSHITISH CHANDRA BOSE vs. COMMISSIONER OF RANCHI reported in AIR 1981 SC 707. It is as follows:

"(B). Limitation Act (36 of 1963), Articles 64, 65 - Adverse possession - Proof - Possession must be open and without any attempt at concealment - Not necessary, however, that possession must be so effective as to bring it to the specific knowledge of owner. Judgments of Patna High Court dated 17.2.1967 and 30.9.1970, Reversed."

10. He also read out paras 11 and 12 from the Apex Court's judgment in the case of BALAKRISHAN vs. SATYAPRAKASH AND OTHERS reported in AIR 2001 SC 700, which is extracted hereinbelow:

"11. In our view this conclusion of the High Court is erroneous. The fact remained that in spite of order of the Tahsildar against the appellant which was not acted upon nor executed, the appellant continued in possession of the suit land and therefore, the continuity of his possession of the suit land was neither interfered nor lost. Mere passing of an order of ejectment against a person claiming to be in adverse possession neither causes his dispossession nor discontinuation of his possession which alone breaks the continuity of possession.

12. The fact that under Section 250(2) of the M.P.L.R. Code read with Section 38 thereof the Tahsildar was bound to restore possession of the suit land would, in our view, make no difference and it is difficult to accept the contention that failure of the Tahilsdar in handing over possession would have the effect of causing discontinuation of possession of the suit land by the appellant so as to prevent such possession from ripening into adverse possession after statutory period."

11. The learned counsel has also relied on this Court's decision in the case of ALLA BAKSH vs. MOHD. HUSSAIN reported in ILR 1996 Kar.1340. Its second head-note relied upon by him reads as follows:

"Held:

Simply possession for 12 years may not become adverse. The possession for 12 years be continuous possession and it must be hostile in its nature...... Possession of a person having no title in the property under invalid Deed of Transfer, his possession from the date of his entering into possession under that invalid Deed becomes prima facie adverse to that of the owner. When he continues in possession for a period of more than 12 years, title by adverse possession accrues in favour of that person as owner........ Possession of a person under an invalid Deed of Transfer after entering into possession of it, prima facie becomes hostile and adverse to that of the real owner when the transferee claims ownership on the basis of that invalid Deed and that on completion of continuous possession for the requisite period of 12 years or more, such person acquires title by adverse possession."

12. Smt.B.P.Radha, the learned Government Pleader for the respondent Nos. 1 and 2 submits that the records of rights at Exs. D4 and D5 clearly show that the land at Sy.No.99 measures 10 acres 30 guntas. She submits that the documents produced by the appellant are all cooked up ones. There is no document to show that the appellant has been in possession of the suit schedule property for 30 years continuously, which is the pre-requirement for claiming the title based on adverse possession. She submits that the record of rights produced by the appellant are only for a period of 10 years from 1963 to 1973.

13. The learned Government Pleader submits that the appellant has not discharged his burden of establishing that he was in adverse possession of the suit schedule property. The passing of the eviction orders imposing T.T. fine, etc., clearly show that his possession can be anything but certainly not peaceful. To buttress her submission, she relies on this Court's decision in the case of BASWANTHRAO SINCE DECEASED BY HIS LRS. Vs. RAJKUMAR reported in ILR 2009 Kar.1099. Para 13 read out by her, reads as follows:

"13. Adverse possession is a question of fact and in a claim of adverse possession, the title is not disputed; what is alleged is only his extinction. A plea of adverse possession being based on facts which have to be raised to that effect, is not necessarily a legal plea. The plea of adverse possession raises a mixed question of law and fact. Where a person wants to base his title on it, he should specifically set up the plea. Unless the plea is raised, it cannot be entertained. A plea must be raised and it must be shown when possession became adverse, so that the starting point of limitation against the party affected can be found. The prayer clause may not be taken as a substitute for a plea. A person acquires title by way of adverse possession when he is in continuous, uninterrupted, hostile possession over a period of 12 years. In order to calculate 12 years period there should be a starting point. Therefore, the law mandates that the plaintiff who seeks a declaration that he has perfected his title by way of adverse possession should specifically plead the date from which his possession becomes adverse to that of the defendant. It is from that date if the plaintiff shows continuous, uninterrupted possession for a period of 12 years, then the right of the defendant to the property stands extinguished and the plaintiff would acquire title by way of adverse possession."

14. She submits that the Apex Court has come out very heavily on the land-grabbers in the case of MANDAL REVENUE OFFICER vs. GOUNDLA VENKAIAH AND ANOTHER reported in (2010) 2 SCC 461. The portions relied upon by her are as follows:

"47. In this context, it is necessary to remember that it is well-neigh impossible for the State and its instrumentalities including the local authorities to keep every day vigilance/watch over vast tracts of open land owned by them or of which they are the public trustees. No amount of vigil can stop encroachments and unauthorised occupation of public land by unscrupulous elements, who act like vultures to grab such land, raise illegal constructions and, at times, succeeded in manipulating the State apparatus for getting their occupation/possession and construction regularized. It is our considered view that where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse 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 to immovable property and give an upper hand to the encroachers, unauthorised occupants or land grabbers.

48. In State of Rajasthan v. Harphool Singh, this Court considered the question whether the respondents had acquired title by adverse possession over the suit land situated at Nohar- Bhadra Road at Nohar within the State of Rajasthan. The suit filed by the respondent against his threatened dispossession was decreed by the Trial Court with the finding that he had acquired title by adverse possession. The first and second appeals preferred by the State Government were dismissed by the lower appellate Court and the High Court respectively. This Court reversed the judgments and decrees of the courts below as also of the High Court and held that the plaintiff- respondent could not substantiate his claim of perfection of title by adverse possession. Some of the observations made on the issue of acquisition of title by adverse possession which have bearing on this case are extracted below:- (SCC P.660, para 12) 

"12. So far as the question of perfection of title by adverse possession and that too in respect of public property is concerned, the question requires to be considered more seriously and effectively for the reason that it ultimately involves destruction of right/title of the State to immovable property and conferring upon a third-party encroacher title where he had none. The decision in P. Lakshmi Reddy v. L. Lakshmi Reddy adverted to the ordinary classical requirement -- that it should be nec vi, nec clam, nec precario -- that is the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. It was also observed therein that whatever may be the animus or intention of a person wanting to acquire title by adverse possession, his adverse possession cannot commence until he obtains actual possession with the required animus.

............

51.. In P.T. Munichikkanna Reddy v. Revamma, the Court considered various facets of the law of adverse possession and laid down various propositions including the following: (SCC pp.66 & 68, paras 5 & 8) "5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile.........

8. .......... to assess a claim of adverse possession, two-pronged enquiry is required:

1. Application of limitation provision thereby jurisprudentially 'wilful neglect' element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner.

2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper-owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property." (emphasis in original)

52. In view of above discussion, we hold that the respondents miserably failed to establish that they had acquired title over the schedule land by adverse possession and the High Court was not at all justified in upsetting the orders passed by the Special Tribunal and Special Court."

15. Sri L.Harish Kumar, the learned counsel appearing for the respondent Nos. 3 to 7 submits that Government has formed the layout carved out of the lands at Sy.Nos.98, 99, 100 and 101 of Munnekolalu Village. The layout so formed is called Ashwathnagar Layout. He submits that the Government has allotted the lands to the landless people and that the Hakkupatras are issued to them in the year 1972. The respondent Nos. 3 to 7 have purchased the sites from the original allottees in the year 2012.

16. The submissions of the learned counsel have received my thoughtful consideration.

17. The first question that falls for my consideration is whether the appellant - plaintiff has laid the requisite foundation in the plaint for the plea of adverse possession. As held by Madras High Court in the case of SUNDARAVILLI vs. NARAYAN SWAMI, reported in AIR 2005 Mad.303, clear and distinct pleading of plea of adverse possession is necessary. This Court in its decision in the case of BASWANTHRAO vs. RAJKUMAR, reported in ILR 2009 Kar.1099, has expressed the considered view that the law mandates that the plaintiff who seeks a declaration that he has perfected his title by way of adverse possession should specifically plead the date from which his possession becomes adverse to that of the defendant.

18. But the averments in the plaint in this case are unspecific, to say the least. Let alone furnishing the date or month from which the adverse possession is claimed, the appellant - plaintiff does not even furnish the year in which he or his father claim to be in adverse possession. Para 3 of the plaint reads as follows:

"3. The Plaintiff, through his predecessor in title i.e., his father, Sri H.M.Veerappa Reddy, unauthorisedly occupied the Government Gomala land, bearing Survey No.99 of Munekolalu Village, Bangalore South Taluk, to an extent of 3 Acres, which is specifically described in the schedule annexed to this Plaint at its bottom, prior to the year 1963. The scheduled land was brought under cultivation prior to 1963 and the Defendants made attempts to prevent the Plaintiff from cultivation. But the Plaintiff's predecessor in title holding-on to the lands.........."

19. Such vague pleadings do not meet the foundational requirement. Mere possession will not be sufficient to constitute adverse possession. There must be specific pleading and evidence. But in this case, both the requirements are lacking.

20. The second question that falls for my consideration is whether the appellant - plaintiff proves that his possession is peaceful, open and continuous? To examine this question, it is necessary to see how the appellant - plaintiff's case is spelt out in para No.4 of the plaint.

"4......the authorities went on levying heavy T.T. fine as a pressure tactics to see that the plaintiff voluntarily desert the land described in the schedule, so that it may revert back to the Revenue Department. .......the Defendants refuse to do so inter-alia, harassing the plaintiff every time threatening him that he would be forcibly evicted unless he voluntarily delivers the vacant possession to the State Government................."

21. The afore-extracted averments from the plaint indicate that the appellant - plaintiff has not been in peaceful possession of the suit schedule property. The averments regarding the imposition of T.T. fine by the Government on the appellant's father and harassment on the appellant to deliver the possession disentitle the appellant to claim that he has perfected his title based on the adverse possession. There must be an express or implied repudiation of the rights of the true owners and open assertion of the person in possession of the property to claim adverse possession. The Full Bench of this Court, in the case of T.N.ANANTHA BALARAJE URS vs. SMT.GUNAMBA NANJARAJE URS reported in AIR 2005 NOC 430 (Karnataka) has this to say:

"In order to establish ouster in cases involving adverse possession, the defendant has to prove three elements, viz. nec vi, nec clam and nec precario. In other words, he must show that his possession is adequate, in continuity, in publicity and in extent and adverse to the true owner. How and at what point of time, the defendant started prescribing hostile title, was for him to plead and prove, which in the instant case, he has utterly failed. Mere long possession for a period of more than 12 years by the defendant without intention to possess the suit land adverse to the title of the plaintiff and to the latter's knowledge cannot result in acquisition of title by prescription.............."

22. Further, it has come in the cross-examination of DW1 that in 1991, the appellant's father Veerappa Reddy had given an application for the regularization of the unauthorized occupation. As held by the Apex Court in the case of MANDAL REVENUE OFFICER (supra), such an application completely demolishes the appellant - plaintiff's case that he has acquired the title by adverse possession.

23. For the aforesaid reasons, I answer the second question against the appellant.

24. The authorities relied upon by the appellant's side do not come to its rescue in any way. Misc.Civil No.5297/2009 and 21964/2009 for the appointment of the Court Commissioner are also turned down, as the question of elucidating the matter is not involved.

25. Coming down heavily on the unauthorized occupants, the Hon'ble Supreme Court has this to say in para 13 of its decision in the case of JAGPAL SINGH vs. STATE OF PUNJAB reported in AIR 2011 SC 1123:

"13. We find no merit in this appeal. The appellants herein were trespassers who illegally encroached on to the Gram Panchayat land by using muscle power/money power and in collusion with the officials and even with the Gram Panchayat. We are of the opinion that such kind of blatant illegalities must not be condoned. Even if the appellants have built houses on the land in question they must be ordered to remove their constructions, and possession of the land in question must be handed back to the Gram Panchayat. Regularizing such illegalities must not be permitted because it is Gram Sabha land which must be kept for the common use of villagers of the village. The letter dated 26.9.2007 of the Government of Punjab permitting regularization of possession of these unauthorized occupants is not valid. We are of the opinion that such letters are wholly illegal and without jurisdiction. In our opinion such illegalities cannot be regularized. We cannot allow the common interest of the villagers to suffer merely because the unauthorized occupation has subsisted for many years."

26. On proper appreciation of the pleadings, evidence and on consideration of the legal position, the Trial Court has arrived at proper conclusions. Consequently, the appeal fails and the same is dismissed.

27. Now that the main matter itself is disposed of, nothing survives for any consideration of Misc. Civil No.1206/2009 for vacating the interim order. It is dismissed as having become unnecessary. No order as to costs.

PR Balachandra v. Deputy Commissioner & Ors. [Order dated 22.11.2012]

IN THE HIGH COURT OF KARNATAKA AT BANGALORE 

DATED THIS THE 22ND DAY OF NOVEMBER 2012 

BEFORE 

THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI 

WRIT PETITION NO.40278 OF 2011 (KLR-RES) 

BETWEEN: 

P.R.Balachandra, S/o P.Ramachandra Rao, Aged about 47 years, R/o Kerekoppa Village, Anandapuram Hobli, Sagar Taluk, Shimoga District-577417.                                                 ... Petitioner

(By Sri R.V.Jayaprakash, Advocate) 

AND: 

1. The Deputy Commissioner, Shimoga District, Shimoga - 577 201.

2. The Assistant Commissioner, Sagar Sub-Division, Sagar, Shimoga District-577 401. 

3. The Tahsildar, Sagar Taluk, Sagar, Shimoga District-577 401. 

4. Konanakatte Venkatesha, S/o K.N.Narayanappa, -2- Aged about 42 years, Kerekoppa Village, Varadamoola Post, Sagar Taluk, Shimoga District-577 401.                     ... Respondents

(By Sri R.B.Satyanarayana Singh, HCGP for R-1 to R-3, Sri Krishnamurthy, Advocate for Esskay Associates for R-4) 

This writ petition is filed under Articles 226 & 227 of the Constitution of India praying to quash Annx-L, the order dated 26.11.2010 in case No.N.C.R.C.R. 31/07-08 passed by the Tahsildar, Sagar Taluk and Taluk Executive Magistrate, Sagar Taluk, Shimoga District (respondent No.3) Annexure-N and etc. This writ petition, coming on for preliminary hearing in 'B' group, this day, the court made the following: 

ORDER

The petitioner has raised the challenge to the order, dated 26.11.2010 (Annexure-L) passed by the Tahsildar, Sagar Taluk, the order, dated 19.09.2011 (Annexure-N) passed by the Assistant Commissioner, Sagar Sub-Division and the order, dated 10.10.2011 (Annexure-P) passed by the Deputy Commissioner, Shimoga District.

2. The facts of the case in brief are that the petitioner's father Ramachandra Rao purchased the property in question from one Tejappa Shetty in 1981. The said property fell to the share of the petitioner in the family partition. The petitioner demolished the dilapidated structure standing thereon and constructed a residential building after obtaining the sanction of the local body (Bheemanakone Grama Panchayat) for the building plans. When thus stood the state of affairs, the fourth respondent complained to this Court against the petitioner and two others in Public Interest Litigation (W.P.No.17073/2008) that they have encroached the Government gomal land. He ventilated the public grievance before the Division Bench stating that the representations submitted to the authorities to take action against the petitioner and others have been of no avail. The Division Bench, by its judgment, dated 31.07.2009 (Annexure-H) disposed of the petition with a direction to the Government, Deputy Commissioner and the Tahsildar to issue notice to the petitioner and others and take appropriate action after affording reasonable opportunity to them to give explanation for their unauthorised occupation. In compliance with the Division Bench's judgment, the Tahsildar issued the notice, dated 22.10.2009 (Annexure-J) to which the petitioner submitted his reply, dated 03.11.2009 (Annexure-K). The Tahsildar on considering the petitioner's reply passed the impugned order to remove the structure unauthorisedly raised on the Government land at Sy.No.121/A of Kerekoppa village within one month. Aggrieved by the said order, dated 26.11.2010 (Annexure-L), the petitioner filed an appeal before the Assistant Commissioner. The appeal came to be dismissed by the Assistant Commissioner by his order, dated 19.09.2011 (Annexure-N). Thereafter, the petitioner filed the second appeal before the Deputy Commissioner which also came to be dismissed on 10.10.2011 (Annexure-P).

3. Sri R.V.Jayaprakash, the learned counsel for the petitioner submits that the petitioner's father is a bonafide purchaser of the land from Tejappa Shetty for a lawful consideration. He submits that it is only on verifying the title-deeds and satisfying itself that the local body granted the approval for the building plans. He submits that the Demand Register extracts from 1971-72 show the names of Tejappa Shetty and many other persons in respect of the properties forming part of kaneshkumari lands, so submits Sri Jayaprakash. He further submits that the land in question is a gramthana land.

4. The learned counsel for the petitioner submits that under Sections 39 and 94 of the Karnataka Land Revenue Act, 1964 ('the said Act' for short), the revenue authorities cannot go into the questions of title. In support of his submissions, he relied on the Apex Court's judgment in the case of GOVERNMENT OF ANDHRA PRADESH vs. THUMMALA KRISHNA RAO AND ANOTHER reported in AIR 1982 SC 1081 wherein it is held that the Government cannot resort to evict the persons summarily, if complicated questions of title are involved.

5. He has also relied on this Court's decision dated 25.02.2011 passed in W.P.Nos.34067-72/2010. He read out paras 11, 13, 19 and 20 which are extracted hereinbelow:

"11. It is also asserted that 28 guntas of land which is Devi kere, is a property of the government in terms of Section 67(3) of the Act and therefore it was always open to the petitioners to approach the Deputy Commissioner for holding an enquiry by him and as the petitioners have not approached the Deputy Commissioner and instead have approached this court by filing the present petitions, nor have filed any civil suit to establish their disputed rights etc., the petitions are not maintainable and they are to be dismissed.

............

13. It is further asserted that the petitioners being in illegal possession of the government land, are liable for eviction under Section 94 of the Act. It is also urged that in terms of the provisions of Sections 39, 67 and 94 of the Act, the tahsildar, who has been empowered to take such actions by the enabling notifications of the state government in terms of notification dated 7-9-2010, is competent to issue the notices.

..........

19. It is to be noticed that these statutory provisions are one required to be exercised in different situations and for different purposes. Even assuming that the state government has delegated the powers exercisable by the Deputy Commissioner under Section 94 of the Act in favour of tahsildars, in exercise of its power under Secession 195 of the Act, that will not prevent the notice from being rendering invalid due to usurpation of jurisdiction by the tahsildar, of the powers exercisable by the Deputy Commissioner under Sections 39 and 67 of the Act.

20. But, more importantly, even power under Section 94 of the Act is to be exercised in a situation where it is for the purpose of penalizing unauthorised occupants of land and also to take follow up action for evicting them by resorting to summary eviction proceedings. But, even this power can be exercised only after the competent authority had determined that the persons sought to be evicted under sub-section (3) of Section 94 of the Act, is in fact in unauthorized occupation of the government land and not even before that. The provision of sub-section (3) of Section 94 of the Act reading as under:

..........

6. Relying on the Apex Court's judgment in the case of CHIEF CONSERVATOR OF FORESTS, GOVT.OF A.P. vs. COLLECTOR AND OTHERS reported in (2003) 3 SCC 472, he would contend that the possession of the property furnishes prima facie proof of ownership of the possessor and casts burden of proof on the party who denies his ownership.

7. Sri Jayaprakash submits that the Tahsildar is not justified in taking the precipitative or coercive steps at this stage. Tejappa Shetty was in possession of the property in question from 1971 to 1981. The petitioner and his father were in possession from 1981 onwards. They have constructed the house. At this juncture, the revenue authorities are not justified in unsettling the settled position.

8. He submits that even assuming that the power to evict is available to the revenue authorities, the same has to be exercised within the reasonable time, as held by the Apex Court in the case of MANSARAM vs. S.P.PATHAK AND OTHERS reported in AIR 1983 SC 1239.

9. Sri R.B.Sathyanarayana Singh, the learned High Court Government Pleader appearing for the respondent Nos. 1 to 3 submits that no documents, whatsoever are produced in support of the predecessor- in-title, Tejappa Shetty owning the property in question. He submits that as Tejappa Shetty himself did not have the title, the title allegedly conveyed by him does not mean anything in reality. He submits that the Tahsildar has strictly acted in accordance with the Division Bench's judgment passed in the Public Interest Litigation (W.P.No.17073/2008). He submits that the land in question is a Government gomal land.

10. Sri Krishnamurthy, the learned counsel appearing for the respondent No.4 submits that the petitioner has encroached the Government gomal land. He brings to my notice the record of rights (Annexure- R1) to show that 17 acres 25 guntas of the land at Sy.No.121/A is free pasturage land for the cattle.

11. He submits that the property in question is not a small house-property, as is being made out. It measures 54 x 195 ft aggregating to almost ¼ of an acre.

12. He submits that the stray entries made in the Property Register extract did not have the effect of conferring any title on any party. Similarly, the building licence granted by the local body is also not the title deed. Based on the approval granted to the building plan, nobody can claim the title.

13. The last submission of Sri Krishna Murthy is that the petitioner is a habitual land-grabber. He has illegally occupied one more acre of the land at Sy.No.17.This land is tank land (¨sÀlÖgÀPg É É). In this regard, he brings to my notice the Tahsildar's order, dated 05.12.2006 (Annexure-R5) passed in exercise of the power conferred by Section 94(3) of the said Act directing the revenue inspector to have the encroachment cleared.

14. The submissions of the learned counsel have received my thoughtful consideration.

15. It is trite position in law that the rights of the purchaser cannot be higher or better than those of the sellers. Unless it is shown that the Tejappa Shetty had a saleable right, the petitioner or his father cannot be said to have derived any title to the property. The facts of the present case and the facts of the reported cases are entirely different. In the case of GOVERNEMENT OF ANDHRA PRADESH (supra), the controversy involved was whether the three plots or lands were included in the acquisition notifications. In W.P.Nos.34067- 72/2010, the parties had acquired the right, title and interest on participating in the auction sale conducted by the Hassan City Municipality.

16. The entries in the Demand Register do not constitute the title. They are only fiscal entries which enable a party to pay the property tax. Similarly just because the plan is sanctioned by the local body, it would not have the effect of the perfecting the title of a party. In the recent case of JAGPAL SINGH AND OTHERS vs. STATE OF PUNJAB AND OTHERS reported in AIR 2011 Supreme Court 1123 the Apex Court has come down very heavily on the regularisation of the unauthorised occupation of grama panchayat lands. It has held that regularizing such illegal encroachments cannot be permitted. The common interest of the villagers cannot be allowed to suffer merely because the unauthorised cultivation has subsisted for many years. The unauthorised occupants are liable to be evicted. The Government gomal land is for the free pasturage for the cattle in the village. Unless it is de-reserved on holding the enquiry that it is not required for free pasturage based on the conducting of the cattle census, it cannot be diverted for any purpose.

17. The submission that the land is a gramthana or kaneshumari land does not commend itself to me. It makes no difference for the petitioner's case, as Tejappa Shetty himself did not have any title to the property in question.

18. The petitioner's conduct also dis-entitles him to get any relief at the hands of this Court. Annexure R5 order, dated 05.12.2006 passed by the Tahsildar shows that the petitioner had occupied one acre on the Government land standing at Sy.No13 of Kerekoppa Village.

19. For all the aforesaid reasons and not finding any error in the orders passed by the Tahsildar, the Assistant Commissioner and the Deputy Commissioner, I uphold them and dismiss this petition. No order as to costs.

Sd/-

JUDGE

Sri Kim Ji Patil v. State of Karnataka [Order dated 05.03.2013]

  IN THE HIGH COURT OF KARNATAKA AT BANGALORE

WRIT PETITION NOS.10374-10375 OF 2013 [KLR,RR/SUR]

Sri Kim Ji Patil, S/O Late Kesharaharjee Patil, Residing at No. 807, Mohan Building, Chickpet, Bangalore 560 053
Represented by his GPA Holder Sri Mahesh Kishanchand, S/O Kishanchand, aged about 44 years, Residing No. 21/1, Craig Park Layout, 
M.G. Road, Bangalore 560 001
                                                                                                ...PETITIONER

Versus
State of Karnataka, Rep. by its Revenue Secretary, Multistoried Building, Bangalore Division, 560 001.
 The Deputy Commissioner, Bangalore Rural District, V.V. Towers Podium Block, Bangalore 560 001
The Assistant Commissioner, Doddaballapur Sub Division, V.V. Towers Podium Block, Bangalore 560 001.
The Thasildar, Devanahalli Taluk, Devenahalli, Bangalore Rural District, 562 110.
                                                                                            ...RESPONDENTS



 THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 15.1.2013 VIDE ANNEXURES-A AND B ANDETC. THESE PETITIONS COMING ON FOR PRELIMINARY 
 BEFORE HEARING THIS DAY, THE COURT MADE THE FOLLOWING: 

HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI

ORDER

1. Smt.M.C.Akkamahadevi, the learned Additional Government Advocate is directed to take notice for the respondents.

2. The petitioner's grievance is over the two notices, both dated 15.1.2013 (Annexures-A and B) issued by the Tahsildar under Sections 39 and 94 of the Karnataka Land Revenue Act, 1964. The impugned notices require the petitioner to produce the documents for showing that he has not encroached the Government property. It further states that, if the petitioner fails to vacate the encroachment, the encroachment would be removed by the Tahsildar's office and that the costs of removing the encroachment would be recovered from the petitioner as if they are the land-revenue arrears.

3. Sri K.Chandrashekara, the learned counsel for the petitioner submits that the petitioner has not encroached any property. He submits that the petitioner is the bonafide purchaser of the property in question. He submits that the respondents have conducted the survey operations without notifying the petitioner. He submits that the impugned notices are virtually in the nature of the orders. They contain an ultimatum that within 15 days, the petitioner has to vacate the encroachment.

4. Smt.M.C.Akkamahadevi, the learned Additional Government Advocate submits that the petitioner is not justified in challenging the show cause notices. They only call upon him to furnish the reply with the supporting documents. She submits that no reply whatsoever is furnished by the petitioner.

5. The submissions of the learned Advocates have received my thoughtful consideration.

6. It is not clear whether the petitioner has submitted the reply and the supporting documents to the Tahsildar to show that he has not encroached any portion of the government lands. If the petitioner has submitted the reply and the supporting documents, the Tahsildar shall pass appropriate orders thereon before taking any coercive steps. If the petitioner has not given the reply, for the reasons best known to himself, one more opportunity shall be given to the petitioner. Because what is involved is the party's interest in the immovable properties.

7. The petitioner is directed to give the reply or show cause that he has not encroached the lands in question, within one week from today. If the petitioner files a reply within one week from today, the same shall be considered by the Tahsildar in accordance with law and the orders shall be passed thereon. It is only on the consideration of the petitioner's objections/reply and the passing of the orders thereon that the Tahsildar would take the coercive steps. If the petitioner fails or defaults in giving the reply within one week, the Tahsildar shall proceed as if the petitioner has no tenable reply in the matter and decide the case in accordance with law.

8. Until such time that the Tahsildar passes the order, status quo in respect of the possession shall be maintained.

9. Before parting with this case, it is necessary to refer to the Apex Court's judgment in the case of JAGPAL SINGH & ORS. v. STATE OF PUNJAB & ORS., reported in AIR 2011 SC 1123, wherein it is held that the common interest of the people cannot be allowed to suffer merely because unauthorised occupation has subsisted for many years. It is not only the power, but the duty of the Tahsildar to have the unauthorised occupation vacated. Paragraph No.13 of the said decision is extracted hereinbelow:-

13. We find no merit in this appeal. The appellants herein were trespassers who illegally encroached on to the Gram Panchayat land by using muscle power/money power and in collusion with the officials and even with the Gram Panchayat. We are of the opinion that such kind of blatant illegalities must not be condoned. Even if the appellants have built houses on the land in question they must be ordered to remove their constructions, and possession of the land in question must be handed back to the Gram Panchayat. Regularizing such illegalities must not be permitted because it is Gram Sabha land which must be kept for the common use of villagers of the village. The letter dated 26.9.2007 of the Government of Punjab permitting regularization of possession of these unauthorized occupants is not valid. We are of the opinion that such letters are wholly illegal and without jurisdiction. In our opinion such illegalities cannot be regularized. We cannot allow the common interest of the villagers to suffer merely because the unauthorized occupation has subsisted for many years".

10. These petitions are allowed but to the extent indicated hereinabove. No order as to costs.

Sd/-

Sri.V.Nagarajan vs The Deputy Commissioner

Bangalore District Court

Sri.V.Nagarajan vs The Deputy Commissioner on 7 November, 2019

IN THE COURT OF THE XLII ADDL., CITY CIVIL & SESSIONS JUDGE AT

                BENGALURU CITY (CCH.NO.43).

                PRESENT: Sri.P.SRINIVASA,

                                  B.A.L., LL.M.,

                         XLII ADDL., CITY CIVIL AND

                        SESSIONS JUDGE, BENGALURU.

            Dated this the 7th day of November, 2019.

                        O.S.No.4440/2015

 Plaintiffs:-            1.   Sri.V.Nagarajan,

                              S/o.S.Veerappa Naidu,

                              Aged about 62 years,

                         2.   Smt.Jayalakshmi,

                              W/o.V.Nagarajan,

                              Aged about 54 years,

                         Both are R/at No.1 (Site No.18),

                         "Lakshmi Nilaya", 4th Cross,

                         9th Main, Nanjappa Reddy Layout,

                         HRBR, 1st Block, Banaswadi,

                         Bangalore-560 043.

                               (By Adv. B.Roppesha)

                               

 Defendants:- 1.   The Deputy Commissioner,

                              Bangalore East Taluk,

                              Bangalore-560 009.

                         2.   The Assistant Commissioner,

                              Bangalore North Taluk,

                              Bangalore-560 009.

                                                        Judgment

                         2             O.S.No.4440/2015

                         3.       The Thasildar,

                                  Krishnarajapuram,

                                  Bangalore East Taluk,

                                  Bangalore-560 049.

                           (Defs.1 to 3 by Adv. Kiran Pradeep)

Date of institution of the suit      :   22.05.2015

Nature of the suit                   :   Permanent Injunction

Date of commencement of              :   28.07.2016

Recording of the evidence

Date on which the Judgment           :   07.11.2019

was pronounced

Total Duration                       :    Years      Months     Days

                                           04          05        15

                                 (P.SRINIVASA)

                 XLII ADDL., CITY CIVIL & SESSIONS JUDGE,

                                BENGALURU CITY.

                              JUDGEMENT

The plaintiffs have filed the above suit for permanent injunction and costs.

2. The plaintiffs' case in brief as under:-

Originally, Sy.No.248 of Banasawadi Village, measuring 2 acres 16 guntas was owned by one Ankanna Reddy and after his death, his children partitioned the above said property and all the Judgement sons of Ankanna Reddy got 24 guntas each in Sy.No.248 as per the Partition Deed dated 21.02.1969 and revenue records are mutated in their names. The legal representatives of Ankanna Reddy formed revenue layout and sold site No.18, Khata No.766, carved out of Sy.No.248 of Banasawadi Village i.e., suit schedule property to one K.Krishna. Said K.Krishna sold the suit schedule property to one K.Geetha Krishnan and T.R.Sudarsanam vide., registered Sale Deed dated 29.09.1997. Said K.Geetha Krishnan and T.R.Sudarsanam sold the suit schedule property in favour of plaintiffs vide., Sale Deed dated 28.11.2001. The plaintiffs are the absolute owner and in possession and enjoyment of the suit schedule property. The khatha of the said property stands in the name of the plaintiff and they are also paying taxes to the concerned authority. After obtaining sanctioned plan from BBMP, the plaintiffs have constructed house consisting ground and first floor in the suit schedule property and they are residing in the said house. The plaintiffs received notice dated 09.07.2012 from defendant No.3 under Section 192-A of the Karnataka Land Revenue Act, alleging that as per survey report conducted on 06.07.2009 the plaintiffs have constructed house by encroaching Sy.No.211. The plaintiffs have filed reply to the said notice contending that the said survey was conducted without notice to them and they have not encroached any portion of Sy.No.211 of Judgement Banasawadi Village and they have constructed their house in Sy.No.248 of Banasawadi Village and requested defendant No.3 to drop the proceedings. The defendant No.3 without considering the objections filed by the plaintiffs and without passing any orders, after lapse of 2 years issued another notice dated 29.12.2014 under Section 94 and 104 of the Karnataka Land Revenue Act, calling upon the plaintiffs to vacate the suit schedule property. After receipt of the said notice, the plaintiffs approached the defendants and requested them to consider their reply but, once again issued notice in the 1st week of April, 2015 and threatened to vacate the plaintiffs from the suit schedule property. Hence, the plaintiffs filed W.P.No.15254/2015 on 22.04.2015 before the Hon'ble High Court of Karnataka and Hon'ble High Court of Karnataka was pleased to direct the plaintiffs to file objections before the defendants and the defendants to consider said objections and pass necessary orders, until such time, defendants not to take any coercive action. As per the orders passed in the said writ petition, the plaintiffs filed detailed reply to the defendants on 04.05.2015 and on 06.05.2015 appeared before the defendants and filed another representation requesting the defendants not to precipitate the matter until a decision taken by the Hon'ble High Court of Karnataka in W.P.No.15255/2015. On 07.05.2015, the defendants Judgement and their officials came near the schedule property to conduct survey of Sy.No.248 of Banasawadi Village. The defendants without responding to the plaintiffs request, continued their illegal acts and brought JCBs near the suit schedule property and threatened to demolish the building. With great difficulty, the plaintiffs were able to resist the illegal acts of the defendants. Hence, the plaintiffs have filed the above suit for permanent injunction.

3. In response to the suit summons, the defendants 1 to 3 appeared before the court through their counsel and filed the written statement before this court. In the written statement, the defendants have contended that Sy.No.211 of Banasawadi Village is a Government land, measuring 42 acres 38 guntas and the suit schedule property is part of said Sy.No.211 of Banasawadi Village. The defendants have denied plaintiff's title over the suit schedule property. The defendants have contended that plaintiffs' vendors had no title over the suit schedule property and Sale Deed executed by plaintiffs' vendors is non-est, illegal and doesn't confirm any title to the plaintiffs. Sy.No.211 of Banasawadi Village is a sarakari kere and suit schedule property comes within Sy.No.211 of Banasawadi Village. The layout alleged to be formed by plaintiffs' vendor is illegal and it is formed without any authority of law and it is formed on the Government land hence, Judgement plaintiffs' vendors had no right or title over the suit schedule property. Further, the defendants have contended that BBMP or BDA or any other authorities have no authority to issue khatha certificate or to approve building plan in respect of sarakari kere i.e., Government land in the name of the plaintiffs or any other persons. The title documents and tax paid receipts are manipulated and obtained with oblique motive to knock of the Government land. Further, the defendants have contended that by issuing notices to the encroachers and in the presence of the encroachers and general public twice survey was conducted to ascertain the encroachment. The plaintiffs have constructed their house by encroaching Sy.No.211 i.e., Government land. The plaintiffs' possession over the Government land is illegal and same is liable to be evicted. The defendants have denied the plaint averment that on 1st week of April 2015, the defendants tried to dispossess the plaintiffs. The defendants admit issuance of notices to the encroachers including the plaintiffs. The defendants are statutory authorities and they are discharging their statutory duty to remove illegal encroachments in Sy.No.211 of Banasawadi Village. The plaintiffs cannot seek equitable relief of injunction, restraining the authorities in exercising the statutory right in accordance with law. The defendants have initiated action against every individuals who have encroached different portion Judgement of Sy.No.211 of Banasawadi Village. The defendants have issued notices and after holding an enquiry, the defendants have passed order under Karnataka Land Revenue Act dated 23.04.2015, holding that encroachment should be removed. The plaintiffs have not challenged the said order dated 23.04.2015 passed by the Tahasildar, which has attained finality. The plaintiffs have alternative remedy and they cannot invoke civil court and present suit is not maintainable. The plaintiffs have not approached the with clean hands and they have suppressed material facts. The Government of Karnataka has taken decision to remove illegal encroachments over Government land in and around Bengaluru. The Government of Karnataka had constituted a committee headed by Sri.A.T.Ramaswamy and said committee submitted a report and thereafter, Government of Karnataka has taken action to remove illegal encroachment. To confirm the encroachment, survey was also held and the Government has set up special task force to remove illegal encroachment. If injunction is granted, it will defeat the very purpose of decision taken by the Government, to save and protect the Government lands. The relief sought by the plaintiffs is against public interest. The Government is entitle to take possession of the land which is illegally occupied by the plaintiffs by evicting them or demolishing the structure. Hence, prayed that suit may be dismissed with costs.

Judgement

4. On the basis of above pleadings, below mentioned issues arise for consideration:-

ISSUES

1. Whether the plaintiffs prove their lawful possession over the suit schedule property as on the date of the suit?

2. Whether the plaintiffs prove the alleged interference of the defendants?

3. Whether the plaintiffs are entitled for the relief of permanent injunction?

4. What order or decree?

5. To prove the case of the plaintiffs, plaintiff No.1 examined himself as PW-1 and marked Ex.P1 to P21. The defendant No.3 examined as DW-1 and got marked Ex.D1 to D5.

6. Heard arguments. The learned counsel for defendants 1 to 3 has relied upon the following citations reported in:

1. Judgment passed by the Hon'ble Supreme Court of India in Civil Appeal No.1132/2011 @ SLP(C) No.3109/2011, in the case of Jagpal Singh and others v. State of Punjab and others.

2. Order passed by the Hon'ble High Court of Karnataka, Dharwad Bench, in W.P.Nos.104463/2014 & 110042-58/2014 Judgement (KLR-RES) dated 10.12.2014, in the case of Fakirappa Kareppa Hanchinamani and others v. The State of Karnataka and others.

3. Order passed by the Hon'ble High Court of Delhi at New Delhi In RFA.No.116/2019, in the case of Ashok Atree v. Municipal Corporation of Delhi and another.

4. LAWS (APH) 2006 6 167, in Writ Petition 162890 of 1996, in the case of S.V.Ramanna v. District Collector.

5. AIR 1962 Madras 149, in the case of Alagi Alamelu Achi v. Ponniah Mudaliar.

7. My findings on the above said issues are as follows:-

              Issue No.1    :-    In the Negative.

              Issue No.2    :-    In the Negative.

              Issue No.3    :-    In the Negative.

              Issue No.4    :-    As per final order.

                                  for the following:-

 REASONS

8. Issue Nos.1 to 3:- These issues are taken up together for consideration to avoid repetition of facts, evidence and convenience.

9. PW-1 in his examination-in-chief has stated that Sy.No.248 of Banaswadi Village, measuring 2 acres 16 guntas originally belonged to one Ankanna Redd and after his death, his Judgement children partitioned the said property and as per Partition Deed dated 21.02.1969, 24 guntas each in Sy.No.248 was allotted to the sons of Ankanna Reddy. In support of the said contention, the plaintiffs have produced certified copy of Partition Deed dated 21.02.1969 at Ex.P2. Ex.P2 is more than 30 years old document, hence, presumption has to be raised regarding execution of Ex.P2. Hence, this court can rely upon Ex.P.2. From the recitals of the Ex.P2, it discloses that all the children of Ankanna Reddy have partitioned their family properties including Sy.No.248 and 24 guntas each is allotted to the share of sons of Ankanna Reddy. The defendants are not claiming any right, title or possession over Sy.No.248 of Banasawadi Village. Further, PW-1 in his examination-in-chief has stated that legal representatives of Ankanna Reddy formed revenue layout and sold site No.18 i.e., suit schedule property to one K.Krishna. Said K.Krishna sold the suit schedule property to K.Geetha Krishnan and T.R.Sudarsanam vide., registered Sale Deed dated 29.09.1997. Said K.Geetha Krishnan and T.R.Sudarsanam sold the suit schedule property to plaintiffs vide., Sale Deed dated 28.11.2001. Further, PW-1 has stated that khatha of the suit schedule property is mutated in the name of the plaintiffs and they are paying taxes to the concerned authorities and by obtaining sanctioned plan from BBMP they have constructed residential house consisting ground and first Judgement floor in the suit schedule property and the plaintiffs are residing the said house along with their family members. In support of plaintiffs' contention, the plaintiffs have produced original Sale Deed dated 28.11.2001 at Ex.P1, certified copy of of the Sale Deed dated 29.09.1997 executed in favour of K.Geetha Krishnan and T.R.Sudarsanam at Ex.P3, Khatha Certificate, Khatha Extract, Tax Paid Receipt, Sanctioned Plan, photographs, electricity and water bills and receipts and encumbrance certificate before this court at Ex.P3 to P14. Advocate for the plaintiffs argued that suit schedule property is carved out from Sy.No.248 of Banasawadi Village and the plaintiffs have purchased the suit schedule property vide., registered Sale Deed and they have constructed house in the suit schedule property and residing in the said suit schedule property and the plaintiffs are the absolute owner and in possession of the suit schedule property and the defendants illegally tried to interfere with plaintiffs' possession. Hence, plaintiffs are entitle for permanent injunction. Per contra, advocate for the defendants argued that suit schedule property is situated in Sy.No.211 of Banasawadi Village and Sy.No.211 is a Government land i.e., sarakari kere and plaintiffs have put up construction by encroaching Sy.No.211 of Banasawadi Village. Further, argued that plaintiffs are not in lawful possession of the suit schedule property. The defendants have discharged their duty Judgement as per law and the plaintiffs are not entitle for the relief of injunction against true owner i.e., Government. Hence, prayed that suit may be dismissed. It is pertinent to note that, plaintiffs' claim that they are the absolute owners of the suit schedule property. Per contra, the defendants contend that suit schedule property is situated in the Government land i.e., sarakari kere therefore, Government is the owner of the suit schedule property. The defendants have produced RTC of Sy.No.211 of Banasawadi Village at Ex.D2. From Ex.D2, it goes to show that Sy.No.211 is a Government land i.e., sarakari kere. From the pleadings and evidence of both parties, it discloses that both parties are claiming title over the suit schedule property. In AIR 2008 Supreme Court page 2033, in the case of Anathula Sudhkar v. P.Buchi Reddy (Dead) by L.Rs. & Others, wherein the Hon'ble Supreme Court has held with regard to the relief of injunction in respect of immovable property as follows:-

(A) Specific Relief Act (47 of 1963), S.38 - Prohibitory injunction relating to immovable property - Suit for - Scope of.

The position in regard to suits for prohibitory injunction relating to immovable is summarised as under:

(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for Judgement declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff' lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.

(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of the title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.

(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific or implied). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the Court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the Court will relegate the parties to the remedy by way of comprehensive suit Judgement for declaration of title, instead of deciding the issue in a suit for mere injunction.

(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clearly title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The Court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.

Further, the Hon'ble Supreme Court has held as follows:-

(B) Specific Relief Act (47 of 1963). Ss.34, 38 - Suit for injunction simpliciter - Maintainability - Plaintiffs claim for possession purely based on title through 'R' who claimed to be owner in pursuance of oral gift in year 1961 without property being mutated in her name - Whereas defendant claimed title from original owner who was registered as owner in revenue records - Complicated question of title involved - Could be examined only in a title suit, for Judgement declaration and consequential reliefs, and not in a suit for injunction simpliciter.

11.1 Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.

11.2 Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.

11.3 Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.

From the above judgment, it is clear that if plaintiffs' title to the property is in dispute or under a cloud and where the defendants Judgement asserts title thereto and there is also a threat of dispossession from the defendants, the plaintiff has to sue for declaration of title and consequential relief of injunction. In the present case, the defendants are claiming that suit schedule property is a Government land and as per plaintiffs' case the defendants are trying to evict the plaintiffs from the suit schedule property. Therefore, there is a cloud over the title of the plaintiffs. Hence, on the above said ground the present suit for bare injunction without seeking the relief of declaration is not maintainable under law.

10. Both parties admit existence of house in the suit schedule property. The plaintiffs contend that suit schedule property is situated in Sy.No.248 of Banasawadi Village. It is pertinent to note that, in the Sale Deed i.e., Ex.P1 there is no recital to the effect that suit schedule property is situated in Sy.No.248 of Banasawadi Village. Similarly, in Ex.P3 (i.e., Sale Deed of plaintiffs' vendors) there is no recital to the effect that suit schedule property is situated in Sy.No.248 of Banasawadi Village. The plaintiffs have not produced any documentary evidence before this court to show the location of suit schedule property in Sy.No.248 of Banasawadi Village. Therefore, adverse inference has to be drawn against the plaintiffs. On the other hand, the defendants in order to show that suit schedule Judgement property is situated in Sy.No.211 of Banasawadi Village, have produced certified copy of order passed by the Tahasildar in N.C.R.C.R.170/09-10 dated 23.04.2015, RTC of Sy.No.211, Survey Sketch, Banasawadi Village Map and Settlement Akaarbandu at Ex.D1 to D7. From Ex.D2 i.e., RTC, it discloses that Sy.No.211 is a Government land. Ex.D1 is the proceedings initiated by Tahasildar under Karnataka Land Revenue Act against the encroachers of Sy.No.211 of Banasawadi Village including the plaintiffs herein. From Ex.D1, it discloses that plaintiff No.1 is arrayed as Respondent No.56 in the said proceedings. It is pertinent to note that, PW-1 in his cross-examination admits that he has signed the order sheet of the said proceedings. From the above admission of PW-1, it clearly goes to show that plaintiff No.1 has participated in the proceedings before the Tahasildar. In the said proceedings, the Tahasildar has held that the plaintiffs and other encroachers have encroached Sy.No.211 of Banasawadi Village i.e., Government land. From Ex.D3 i.e., Sketch, it discloses that suit schedule property is situated in Sy.No.211 of Banasawadi Village i.e., Government land. The plaintiffs contend that survey was not conducted in their presence and notices were not issued to them. It is pertinent to note that, in Ex.D1 i.e., order of the Tahasildar, the Tahasildar has categorically stated that at the request of the encroachers survey Judgement was ordered and notices were issued to the encroachers and general public and survey was conducted in the presence of encroachers and general public. There is no reason to disbelieve the order of the Tahasildar. Therefore, contention of the plaintiffs that survey was conducted without notice to the plaintiffs and in their absence, cannot be accepted. From the survey sketch produced Ex.D3, it clearly demonstrates that suit schedule property is situated in Sy.No.211 of Banasawadi Village i.e., Government land. The defendants have produced sufficient documentary evidence to show that suit schedule property is situated in Government land. Therefore, plaintiffs are in unauthorized and illegal possession of the Government land. Hence, the contention of the plaintiffs that they are in lawful possession of the suit schedule property cannot be accepted.

11. PW-1 in his evidence has stated that the defendants are illegally trying to interfere with plaintiffs' possession and are trying to evict the plaintiffs from the suit schedule property. It is pertinent to note that, the defendants have produced sufficient material evidence before this court to show that suit schedule property is situated in Sy.No.211 of Banasawadi Village i.e., Government land. Admittedly, the defendants 1 to 3 are Government Authorities. The defendants 1 to 3 are empowered under law to take necessary legal action to evict unauthorized / Judgement illegal occupants from the Government lands. Therefore, contention of the plaintiffs that defendants illegally tried to interfere with their possession cannot be accepted.

12. Advocate for the plaintiffs argued that the plaintiffs are in possession of the suit schedule property. Hence, they are entitle for permanent injunction.

In (2011) 11 Supreme Court Cases 396, in the case of Jagpal Singh and others v. State of Punjab and others, wherein the lordships have held as under:

"A. Panchyats and Zilla Parishads - Common village land / Community land / Commons -

Encroachment of Gram Panchayat land - Regularization of - Impermissibility - Held, illegal encroachments of village / Gram Panchayat lands shall not be regularized - Long duration of occupation or huge expenditure in making constructions thereon or political connections are no justification for regularizing such illegal occupations - However, regularization may be permitted where lease is granted to landless labourers or members of Scheduled Castes / Scheduled Tribes, or where there is already a school, dispensary or other public utility on said land - In present case, appellant unauthorizedly encroached village pond of Gram Panchayat by filling it and raising constructions thereon - Collector directing regularization of land by Judgement recovering its cost, since huge money was spent by appellants on said land - Held, Gram Sabha land must be kept for use of villagers of the village

- Common interest of villagers shall not suffer merely because unauthorized occupation has been subsisting for many years - Hence, regularization Letter dt.26-9-2007 by State Government in favour of unauthorized occupants, held, illegal, not valid and without jurisdiction - Constructions must be removed and possession shall be restored to Gram Panchayat - Further held, orders issued by all State Governments permitting Gram Sabha land to private persons and commercial enterprises on payment of money are illegal and should be ignored - All State Governments are directed to prepare schemes for eviction of illegal / unauthorized occupants of Gram Sabha / Gram Panchayat / promboke / shamlat land and restoration of Gram Panchayat - Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961) - S.7 - Constitution of India - Arts.39(b) and 300-A - Utilization of community resources for common good - Tenancy and Land Laws - Land Grabbomg - encroachment of Gram Panchayat land - Regularization of - Impermissibility."

In the Order passed by the Hon'ble High Court of Karnataka, Dharwad Bench, in W.P.Nos.104463/2014 & 110042-58/2014 (KLR-RES) dated 10.12.2014, in the case of Fakirappa Kareppa Hanchinamani and others v. The State Judgement of Karnataka and others, wherein the lordships have held as follows:

"3. It is submitted by the Additional Government Advocate that an interim direction is issued by the Division Bench of this Court headed by the Hon'ble Chief Justice which is pending in W.P.No.15500/2013 and connected matters wherein specific direction is issued to revenue department to initiate necessary proceedings to clear encroachments. In that view of the matter, question of entertaining these writ petitions by quashing the notices issued by 5 th respondent pursuant to direction issued by second respondent in implementation of the report of Sri.V.Balasubramanian Committee and also the interim directions issued by the Division Bench of this Court in W.P.No.15500/2013 and connected matters does not arise. Accordingly, these writ petitions are dismissed."

From the above citations it is clear that, unauthorized occupants of Government land / gomala land etc. are not entitle for relief of injunction. In the present case, the plaintiffs are occupying the Government land unauthorizedly therefore, they are not entitle for the discretionary relief of injunction. In the light of the above discussion, I answer Issue Nos.1 to 3 in the Negative.

13. Issue No.4:-

In view of my above discussion, I proceed to pass the following:

Judgement ORDER Suit of the plaintiffs is dismissed with costs.

Draw decree accordingly.

(Dictated to the Judgement Writer, typed by her, the transcript thereof corrected and then pronounced by me, in the open court, this the 7th day of November, 2019) (P.SRINIVASA) XLII Addl., City Civil & Sessions Judge, Bengaluru City.

ANNEXURE I. List of witnesses examined on behalf of:

(a) Plaintiffs' side:

PW.1 - Sri.V.Nagarajan

(b) Defendants' side:

DW.1 - Sri.N.Tejas Kumar II. List of documents exhibited on behalf of:

      (a)     Plaintiff's side:

        Ex.P1             :       Original Sale Deed dated

                                  28.11.2001

        Ex.P2             :       Certified copy of Partition Deed

                                  dated 21.02.1969

        Ex.P3             :       Certified copy of Sale Deed dated

                                  29.09.1997

        Ex.P4             :       Khatha Certificate

        Ex.P5             :       Khatha Extract

        Ex.P6             :       Tax Paid Receipt

                                                           Judgement

      Ex.P7           :    Sanctioned Plan

      Ex.P8 & 9       :    2 Photos

      Ex.P10          :    CD

      Ex.P11          :    Electricity Bill

      Ex.P12          :    Water Bill

      Ex.P13 & 14     :    Encumbrance Certificates

      Ex.P15          :    Certified copy of Order passed in

                           W.P.No.15254/2015 (KLR-RES)

      Ex.P16          :    Documentation dated 03.05.2015

      Ex.P17          :    Representation dated 06.05.2015

      Ex.P18          :    Certified copy of order passed in

                           W.P.No.19659/2015 (KLR-RES)

      Ex.P19          :    Tax Paid Receipt

      Ex.P19(a)       :    Acknowledgement

      Ex.P20          :    Electricity Bill

      Ex.P21          :    Water Bill

     (a) Defendants' side:

      Ex.D1           :    Certified copy of Orders passed by

                           Tahsildar in Case

                           No.N.C.R.C.R.170/09-10 dated

                           23.04.2015

      Ex.D2           :    RTC

      Ex.D3           :    Certified copy of Survey Sketch of

                           Re-Survey No.211, Banasawadi

                           Village

      Ex.D3(a)        :    Encroachment made by the

                           plaintiff

      Ex.D4           :    Village Map

      Ex.D4(a)        :    Survey No.211 in Village Map

      Ex.D5           :    Aakarbandh

XLII ADDL., CITY CIVIL & SESSIONS JUDGE BENGALURU CITY.

                  Digitally signed by SRINIVASA

                  DN: cn=SRINIVASA,ou=HIGH

                  COURT OF

                  KARNATAKA,o=GOVERNMEN

SRINIVASA         T OF

                  KARNATAKA,st=Karnataka,c=           Judgement

                  IN

                  Date: 2019.11.08 15:48:13 IST

 Source: https://indiankanoon.org/doc/185222723/