SRI. D.C. RAVIKUMAR v. SRI. RAVIKUMAR

(BY SRI. N. RAVINDRANATH KAMANTH, SENIOR ADVOCATE FOR SRI. P.M. SIDDAMALLAPPA, ADVOCATE FOR R1; SRI. T.P. MALIPATIL, AGA FOR R2 TO R8; VIDE ORDER DT.20.11.2023 APPELLANT IS TREATED AS LRs OF DECEASED RESPONDENT NO.9) THIS MSA IS FILED UNDER ORDER XLIII RULE 1(U) OF CPC, AGAINST THE JUDGMENT AND DECREE DATED

02.11.2019 PASSED IN RA.NO.15047/2018 ON THE FILE OF THE V ADDL. DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, DEVANAHALLI. ALLOWING THE APPEAL AND SETTING ASIDE THE ORDER DATED 01.10.2018 PASSED ON I.A.NO.6 AND 8 IN O.S.NO.484/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI, ALLOWING THE I.A.NO.6 U/O 7 RULE 11(a) AND (d) R/W SEC.151 OF CPC, AND I.A.NO.8 FILED U/O 7 RULE 11 OF CPC FOR REJECTION OF PLAINT. THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri G. Vikram, learned counsel for the appellant, Sri N.Ravindranath Kamath, Senior Counsel appearing for Sri P.M.Siddamallappa, learned counsel for - 4 - NC: 2024:KHC:36949 MSA No. 36 of 2020 respondent no.1 and Sri T.P.Malipatil, learned AGA appearing for respondent nos. 2 to 8.

2. This second appeal is filed by the defendant in OS No. 484/2012 challenging the order passed by the first appellate Court in RA No.15047/2018 dated 2nd November

3. Facts in brief which are utmost necessary for disposal of this second appeal are as under: The first respondent in this appeal was the plaintiff before the Civil Judge (Sr.Dn.)and JMFC, Devenahalli. He filed suit in OS No.484/2012 seeking a declaration that he became the owner by adverse possession in respect of land bearing Sy.No.415 measuring 2 acres 7 guntas, out of 07 acres 07 guntas situated at Devanahalli Village, Kasaba Hobli, Devanahalli Taluk, bounded East by land of Sadu Muniswamappa, West by remaining land of plaintiff in Sy.No.415 measuring 5 acres, North by land of Gare - 5 - NC: 2024:KHC:36949 MSA No. 36 of 2020 Anjinappa and South by land of Jadeyappa and Sons (in short `suit property').

4. Plaintiff further claimed that he was a tenant in respect of the property and he had filed an application before the Land Tribunal after the amendment to the Land Reforms Act effected seeking occupancy rights in respect of the suit property. The application was dismissed and reached finality before this Court.

5. Thereafterwards, he filed a suit to protect his possession over the suit property basing his claim as adverse possession. The cause of action paragraph in the plaint reads as under: "The Plaintiff submit that the land bearing survey No.415, totally measuring 7 acres 07 guntas situated at Devanahalli village, Kasaba Hobli, Devanahalli Taluk, Bangalore Rural District, which is more fully described in the schedule hereunder and herein after called the suit schedule property for the purpose of this suit. The Suit schedule property was a tenanted land. The father of Plaintiff Gare Ramanna was a tenant under his landlord Channaveerappa @ Uttanallapps, father of Eighth Defendant herein. The tenant Gare Ramanna was inducted as tenant under oral lease much earlier to 1960 and ever since then Plaintiff's father continued to be a tenant under the father of Eighth Defendant till his - 6 - NC: 2024:KHC:36949 MSA No. 36 of 2020 death. The understanding between the landlord and the tenant, the terms of tenancy created was to share the crop equally at the time of harvesting. After the death of the father of the Eighth Defendant, father of Plaintiff continued to be a tenant under the father of Eighth Defendant. It is after came into force of Karnataka Land Reforms Act, Plaintiff's father filed Form No.7 before the Land Tribunal, Devanahalli for grant of occupancy right with respect to the entire land bearing survey No.415, measuring 7 acres 07 guntas of Devanahalli village, Kasaba Hobli, Devanahalli Taluk. The Land Tribunal considering the said Form No.7 in case No.LRF.5/1974- 75 vide its order dated 25-11-1978 pleased to grant occupancy right in favour of the father of Plaintiff to the extent of 5 acres instead of 7 acres 07 guntas in survey No.415 of Devanahalli Village, Kasaba Hobli, Devanahalli Taluk. As he was an illiterate, used to have his signature in Kannada language he could not know about the fact granting occupancy right less extent then the land for which claims right of occupancy right. After deposit of premium before the Land Tribunal, the Land Tribunal issued tenancy certificate in Form no.10 and thereby confirmed the occupancy right in the name of father of Plaintiff".

6. Defendant No.9, who was originally not a defendant in the suit, was impleaded subsequently, filed the application under Order 7 Rule 11 CPC so also the other defendant namely, the Government filed a similar application. Those applications were numbered as I.A.Nos.6 and 8 respectively. - 7 - NC: 2024:KHC:36949 MSA No. 36 of 2020

7. Plaintiff filed detailed objection statement resisting the application filed under Order 7 Rule 11 (a) and (d) read with Section 151 of CPC. The allegations found in the applications filed by defendants nos. 1 to 7 and 9 would go to show that plaintiff all along claimed that he is the tenant in respect of the property and fought the litigation for more than two decades at all levels maintaining that he is tenant of the property. When he failed in all his attempts, he has chosen to cling on to the property by filing the suit in OS No.484/2012 claiming right over the suit property by adverse possession which is per se impermissible having regard to the Rules of Pleadings in respect of the adverse possession so also the imaginary cause of action raised in the plaint. Plaintiff having resisted the application, addressed the arguments on the application.

8. Learned trial Judge, on considering the rival contentions of the parties, noted that at an undisputed point of time, the plaintiff fought the litigation as a tenant - 8 - NC: 2024:KHC:36949 MSA No. 36 of 2020 all along and ultimately when all his attempts failed to get the occupancy rights in his favour, he has chosen to file the suit, and allowed the applications filed by defendant nos. 1 to 7 and 9 vide I.A.Nos.6 and 8 and rejected the plaint.

9. Learned trial Judge also took into consideration the principles of law enunciated by the Hon'ble Apex Court on the subject including the principles of law enunciated in T. Arivandandam v. T.V. Satyapal1.

10. Being aggrieved by the rejection of the plaint, plaintiff filed an appeal before the first appellate Court in RA No.15047/2018.

11. Learned Judge in the first appellate Court, after securing the records, on hearing the parties, took into the consideration that the embargo found in the Land Reforms Act, taking into considerations of provisions of Section 133 of Karnataka Land Reforms Act and has held that the suit 1 AIR 1977 SC 2421 - 9 - NC: 2024:KHC:36949 MSA No. 36 of 2020 is definitely maintainable as suit is one for once for seeking declaration that the plaintiff has perfected the title of the suit property by virtue of adverse position.

12. The learned Judge in the First Appellate Court also took into consideration principles of law enunciated by the Hon'ble Apex Court in the case of Ravinder Kaur Grewal and Others v. Manjit Kaur and Others2 reported in. The learned Judge in the First Appellate Court bestowed its attention to paragraphs No.58 and 59 of the said judgment and has held that the plaintiff can use the factum of adverse possession as a sword and then maintain a suit and allowed the appeal and restored the suit for further consideration which is that judgment under challenged in the second appeal.

13. Sri. Vikram, learned counsel for the appellant reiterating the grounds in the appeal memorandum vehemently contended that the approach of the first 2 2019 SCC Online SC 975 - 10 - NC: 2024:KHC:36949 MSA No. 36 of 2020 Appellate Court in quoting the principle of law and enunciated in Ravinder Kaur Grewal (supra) has got nothing to do with the case on hand and so also the opinion expressed by the Court that Section 133 of Karnataka Land Reforms Act would not act as a bar to maintain the suit is per se incorrect and sought for allowing the appeal.

14. He further emphasised that what is to be looked into is the conduct of the plaintiff in some how clinging on to the property after all his efforts failed to establish that he is the tenant of the property and he is entitled to occupancy rights over the property and all of a sudden turned around and seek the title over the property by virtue of adverse possession. Therefore, the order of the first Appellate Court needs to be set aside by allowing the appeal.

15. Per contra, Sri. Ravindranath Kamath, the learned Senior Counsel representing the plaintiff supported the impugned order of the first Appellate Court. - 11 - NC: 2024:KHC:36949 MSA No. 36 of 2020

16. He further contended that the right of a plaintiff to seek a declaration that he is the owner of the property by virtue of the adverse possession is sufficiently pleaded in the plaint and when the same is denied by the defendants No.1 to 7 and 9, there was a triable issue which needs to be established by the parties by placing evidence on record. When such is the factual aspect in a given case, brushing aside the right of the plaintiff at the threshold is uncalled for and therefore, sought for dismissal of the appeal.

17. He also emphasized that the material on record would go to show that the plaintiff is in continuous possession for a more than three decades over the suit property and no positive action hitherto has been taken by the appellant herein so also the other defendants. Therefore, by conduct of the defendants nos.1 to 7 and 9, it is to be construed that the plaintiff continues to be in possession of suit property uninterruptedly all these years. - 12 - NC: 2024:KHC:36949 MSA No. 36 of 2020

18. Therefore, dismissing the suit at the threshold by accepting the request made under Order 7 Rule 11(d) for rejection of the plaint has resulted in grave miscarriage of justice which has been set right by the learned judge in the first Appellate Court by exercising the power vested with the first Appellate Court under Section 96 CPC and therefore, he sought for dismissal of the appeal.

19. Learned AGA representing the respondents submits that Government had also filed the similar application that of defendant nos.1 to 7 and 9 and got a result in favour of the Government in getting the suit dismissed and therefore suitable orders be passed.

20. Having heard the parties in detail, on perusal of material on record meticulously, on such perusal it is found that admittedly, at an undisputed point of time, the plaintiff approached the Land Tribunal in respect of the suit property seeking occupancy rights by taking advantage of the amendment brought to the Land Reforms - 13 - NC: 2024:KHC:36949 MSA No. 36 of 2020 Act. His application was registered in No.LRF.CR.4/1999-

2000. It may not be out of place here to mention that first application soon after the promulgation of the Land Reforms Act filed by the plaintiff was numbered as LRF No.5/1974-75. The plaintiff had claimed total 7 acres and 7 guntas of land in the said application at the first instance which includes the suit property. The Land Tribunal, after holding necessary enquiry, granted occupancy rights in favour of the plaintiff to the extent of five acres of land in survey no.415. In the same order Land Tribunal rejected the application in respect of 2 acres 07 guntas.

21. It is pertinent to note that the plaintiff did not take any further steps on rejection of 2 acres 07 guntas and kept quiet. In other words, he was satisfied with the grant of occupancy rights in respect of 5 acres of land in survey no.415.

22. However, when there was an amendment to the Land Reforms Act, he filed another application which was - 14 - NC: 2024:KHC:36949 MSA No. 36 of 2020 numbered as LRF.CR No.4/1999-2000 for the remaining 2 acres 07 guntas of land. Land Tribunal, considering the rival contentions of the parties rejected his application. While so rejecting, Land Tribunal also consideration the grant of occupancy rights in respect of 5 acres of the land.

23. Being not satisfied with the order of the Land Tribunal, plaintiff filed an appeal before the Land Reforms Appellate Tribunal. Thereafter, he has filed a Writ Petition before this Court when the Appellate Tribunal stood abolished. Thereafter, the matter was referred to the Karnataka Appellate Tribunal. Plaintiff suffered an adverse order before Appellate Tribunal and challenged the same before this Court and got an adverse order.

24. In other words, all efforts made by the plaintiff to get the occupancy rights in respect of the suit property claiming that he is a tenant in respect of the suit property - 15 - NC: 2024:KHC:36949 MSA No. 36 of 2020 failed. Suppressing all those real material facts, all of a sudden, he filed the suit in OS No.484/2012.

25. It is pertinent to note that the last lap of litigation that was fought by the plaintiff, plaintiff before this Court was 14.12.2011 wherein an adverse order was passed against him in WP No.10894/2008.

26. In other words, till upto the final order in the said writ petition, his status was only a tenant. Such a person, who, all along claimed on oath that he is a tenant in respect of the suit property till upto the year 2011, how can he be permitted to claim ownership of the property by way of adverse possession is a moot question which is to be decided by this Court in this appeal.

27. In this regard, when the cause of action paragraph in the plaint referred to supra is analyzed, there is overwhelming opposition to the plaint averments by the defendant. The conduct of the plaintiff in making averments before the trial Court that he has perfected title - 16 - NC: 2024:KHC:36949 MSA No. 36 of 2020 over the suit property for more than 30 years is per se falsehood especially when he has been litigating before this Court even in the year 2011 claiming that he is a tenant. It is in such circumstances, the principles of law enunciated in Arivandandam supra would come into play. Their Lordships in Arivandandam have cautioned the trial Court that in such type of litigations, the litigation should be thrown out of Court at the threshold by nipping at the bud such unwanted litigation. The Hon'ble Apex Court also cautioned that against such unscrupulous elements, criminal action must be triggered. However, the defendant No.9 or defendants nos. 1 to 8 did not choose to do so. After having suffered an order under Order 7 Rule 11(d) plaintiff should have allowed the matter to rest there. Instead, he filed an appeal before the first appellate Court and learned Judge in the first appellate Court not noticing the minimum requirements for maintaining the suit for adverse possession, not only entertained the appeal but also allowed the appeal. - 17 - NC: 2024:KHC:36949 MSA No. 36 of 2020

28. In this regard, it is just and necessary for this Court to recaptulate the Rules of Pleadings, whenever a person approaches the Court with a prayer that he has become the owner in respect of immovable property by virtue of adverse possession.

29. Law in this regard is no longer res integra. Earlier a learned Single Judge of this Court Baswanthrao since deceased by his LRs v. Rajkumar3, has held as under: "12. Possession is one of the few phenomena considered to be the most complex in the legal labyrinth and it becomes all the more abstruse when the term is prefixed by the epithet ‘adverse’ and nobody finds it simple to understand which is by nature adverse. The most outstanding feature of the complexity of the concept is that the claimant placing his foot on the plea of adverse possession claims his own title to a property to which the title of another is not disputed. The concept of adverse possession involves three elements, namely, (1) property, the subject of adverse possession; (2) possession of that property by a person having no right to its possession (Animus possidendi); (3) the possession being adverse to the true owner. 3 ILR 2009 KAR 1099 - 18 - NC: 2024:KHC:36949 MSA No. 36 of 2020 is raised,

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 its extinction. Aplea 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 tide on it, he should specifically set up the plea. Unless the plea it cannot be entertained. Aplea 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. In so far as proof of adverse possession is concerned, it is a well-settled principle that a party claiming adverse possession must prove that his possession is “nec vi, nec clam, nec precario”, that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. Therefore, a person who claims adverse possession should show: (a) On what date he came into possession, (b) What was the nature of his possession, (c) Whether the factum of possession was known to the other party - 19 - NC: 2024:KHC:36949 MSA No. 36 of 2020 (d) How long his possession has continued, and (e) His possession was open and undisturbed. It is only on proof of all these ingredients the case of adverse possession is said to have been established. A person pleading adverse possession has no equities in his favour, since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."

30. Applying the principles enunciated in the said judgment to the facts of this case, it is crystal clear that the plaint does not contain the very first parameter to maintain a suit based on adverse possession namely, from what date, the defendants started enjoying the property investing the title in real owner to claim adverse possession. When the very first parameter is not available on record, using jugglery of words would not fulfil the requirement of the parameters to maintain a suit for adverse possession.

31. Unfortunately, the learned Judge in the first appellate Court did not bestow his attention to the said aspect of the matter, deviated to the maintainability of - 20 - NC: 2024:KHC:36949 MSA No. 36 of 2020 the suit in view of Section 133 of the Karnataka Land Reforms Act. What was to be considered by the learned Judge in the first appellate Court was, whether such a suit for declaration was maintainable in view of the plaintiff contending he was tenant till upto to the year 2011, all of a sudden filed a suit for declaration in the year 2012.

32. Unfortunately, there is no discussion on the said aspect of the matter in the order of the first appellate Court. Furthermore, there cannot be any dispute as to the principles of law enunciated in the judgment of the Hon'ble Apex Court in the Ravindra Kaur supra. However, the question is, whether the plaintiff fulfilled all necessary parameters in the pleadings to maintain a suit for declaration claiming title based on adverse possession perusal of plaint would establish that no such parameters are pleaded.

33. Therefore, in view of the foregoing discussion, this Court is of the opinion that the order of the first appellate Court suffers from serious legal infirmity in - 21 - NC: 2024:KHC:36949 MSA No. 36 of 2020 setting aside the rejection of the plaint by the trial Court whereby, this Court is required to interfere with the order of the first appellate Court by exercising the power vested in this Court under Order XLIII Rule 1(u) of CPC.

34. Resultantly, following: ORDER (i) Appeal allowed. (ii) Order dated 2.11.2019 passed by the V Addl.District Sessions Judge, Devanahalli, Bengaluru Rural District in R.A.No.15047/2018 is hereby set aside and order 1.10.2018 passed by the learned Senior Civil Judge and JMFC, Devanahalli in rejecting the plaint in OS No.484/2012 vide orders on IA Nos.6 and 8 is hereby confirmed. (iii) No order as to costs. Sd/- (V SRISHANANDA) JUDGE Sk/- List No.: 1 Sl No.: 69