In the High Court of Karnataka Circuit Bench at Dharwad
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IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD Dated this the 4 th day of July, 2013 BEFORE THE HON’BLE MR. JUSTICE N. KUMAR REGULAR SECOND APPEAL NO. 969 OF 2006 BETWEEN: 1. Shri Annasaheb Kallappa Awati Age: 54 years Occ: Agriculture R/o Nanadi – 591 244 Taluk Chikodi District Belgaum 2. Shri Kallappa Satyappa Awati Age: 65 years Occ: Agriculture R/o Nanadi – 591 244 Taluk Chikodi District Belgaum 3. Shri Appasaheb Dundappa Awati Age: 52 years Occ: Agriculture R/o Nanadi – 591 244 Taluk Chikodi District Belgaum 2 4. Shri Andani Mallappa Awati Age: 80 years Occ: Agriculture R/o Nanadi – 591 244 Taluk Chikodi District Belgaum 5. Shri Siddu Rama Awati Since deceased by his L.Rs., 5(a) Smt. Dundawwa W/o Siddu Awati Age: 60 years Occ: Agriculture R/o Nanadi – 591 244 Taluk Chikodi District Belgaum 5(b) Shri Laxman Siddu Awati Age: 45 years Occ: Agriculture R/o Nanadi – 591 244 Taluk Chikodi District Belgaum 5(c) Shri Balappa Siddu Awati Age: 30 years Occ: Agriculture R/o Nanadi – 591 244 Taluk Chikodi District Belgaum 5(d) Shri Rudrappa Siddu Awati Age: 24 years Occ: Agriculture R/o Nanadi – 591 244 Taluk Chikodi District Belgaum 3 5(e) Champawwa @ Pammakka D/o Siddu Awati Age: 22 years Occ: Household work R/o Nanadi – 591 244 Taluk Chikodi District Belgaum 6. Shri Mallappa Ishwar Awati Age: 58 years Occ: Agriculture R/o Nanadi – 591 244 Taluk Chikodi District Belgaum 7. Shri Shivappa Satyappa Awati Age: 50 years Occ: Agriculture R/o Nanadi – 591 244 Taluk Chikodi District Belgaum 8. Shri Basappa Babu Awati Age: 53 years Occ: Agriculture R/o Nanadi – 591 244 Taluk Chikodi District Belgaum ...Appellants (By Sri B.S. Kamate, Advocate) AND: 1. The Government of Karnataka Represented by its Secretary Law Dept., 4 Vidhana Soudha Bangalore – 1 2. The Government of Karnataka Represented by Deputy Commissioner Belgaum – 590 001 3. The Chairman Taluka Panchayat Committee Chikodi – 591 201 District Belgaum 4. The Chairman Zilla Panchayat Nanadi – 591 201 A/p Nanadi Taluk Chikodi District Belgaum 5. The Pradhan/Secretary Village Panchayat Nanadi – 591 201 A/p Nanadi Taluk Chikodi District Belgaum 6. The Tahsildar Chikodi – 591 201 Taluk: Chikodi District Belgaum 7. Shri Shankar Rama Awati Since deceased by his L.Rs., 7(a) Smt. Neelawwa W/o Shankar Awati Age: 60 years Occ: Agriculture 5 R/o Bhadagaon, Taluk: Gadhinglaj District Kolhapur 7(b) Shri Bhimarao Shankar Awati Age: 30 years Occ: Agriculture R/o Bhadagaon, Taluk Gadhinglaj District Kolhapur 7(c) Parvati D/o Shankar Awati Age: 28 years Occ: Agriculture R/o Bhadagaon, Taluk Gadhinglaj District Kolhapur ...Respondents (By Anand K. Navalagimath, HCGP for R1, 2, 6; Sri Ravi S. Balikai, Advocate for R5; R3, 4, R7 (a and c) are served) This RSA filed under Section100 CPC against the judgment and decree dated 10-11-2005 passed in RA No.54/1999 on the file of the Presiding Officer (District & Sessions Judge), Fast Track Court-I, Chikodi, dismissing the appeal and confirming the judgment and decree dated 6-4- 1999 passed in OS No.115/1990 on the file of the Prl. Civil Judge (Jr.Dn.) & Prl. JMFC, Chikodi. This RSA coming on for admission this day, the Court delivered the following: J U D G M E NT This is plaintiffs’ appeal challenging the concurrent findings recorded by the courts below that the plaintiffs have 6 failed to establish the case of adverse possession over the suit scheduled property. 2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit. 3. The subject matter of the suit is land bearing Survey No.198/B measuring 12 acres 15 guntas situated at Nanandi Village, Chikkodi Taluk. 4. The case of the plaintiffs is that originally survey No.198 was forming a big block. Thereafter, it has been divided in the ancestral members of the plaintiffs’ family, out of which R.S No.198/B measuring 12 acres 15 guntas has been acquired by the Taluk Development Board for Burial Ground on 25.06.1944. The remaining area of the said survey number had been left in possession of Samast Awati Samaj as per their wahivat and enjoyment. In the year 1970, the suit scheduled property was given to the Taluka 7 Development Board to V.P.C. Nanadi for management and accordingly, ME No.2083 came to be effected and certified on 01.07.1970 under order of the Circle Officer, Sadalaga No.1137, dated 13.05.1970. The plaintiffs and their ancestors were in actual possession and wahivat of the suit scheduled property since time immemorial till today, inspite of the alleged acquisition by the respective authorities. The defendants’ possession is of paper possession and physical, actual enjoyment and wahiwat of the suit survey number is in the hands of plaintiffs at present and with their ancestors previously. The Samst Awati Samaj is enjoying the suit property and they are paying the assessment of land to the revenue authorities and their names appears in the record of rights since long and this property was used only for the purpose of raising groundnuts by the plaintiffs. 5. The acquisition proceedings were objected by the ancestors of the plaintiffs and their father, number of times 8 and thereafter, the plaintiffs since 1965-1967 requested to the respective defendants to drop the proceedings to which it was acquired but the defendants have not made any efforts or taken any action against the request made by the plaintiffs. The suit land is barren and also maradi land and the said land is not fit for burial ground as contended by defendants in the alleged acquisition proceedings. Since from the date of the alleged acquisition the defendants have not used the suit land for which it had been acquired and therefore, the order passed by the Assistant Superintendent of Land Records exempting the land revenue on 29.11.1941 would not survive. The defendants have recovered the assessment of the land and the land revenue from the plaintiffs and their ancestors. The plaintiffs have not received any compensation amount for the alleged acquisition nor they have served with any notices as required under the Land Acquisition Act. The suit land is situated in between the plaintiffs’ family and other Samsat Awati Samaj on either side of the suit alnd, the land of the plaintiffs’ 9 family is situated and it would be difficult for the plaintiffs to cultivate their portions if the suit land is used as is burial ground. The suit land is situated about 3-4 Kms. away from the Village Nanadi and since from inception of acquisition not a single dead body is buried in the said area because there cannot be a ditch of more than ½ feet or minimum 1 feet. At least for a burial of a body there must be a ditch of maximum 6 feet in depth and 3 feet in breadth and as such the possible diagram for the purpose of burying the dead body is not possible in the suit land. Defendant No.5 in collusion with some of the busy bodies of the village are trying to use the land for the purpose of burying the dead bodies of Lingayat Samaj. The said Lingayat Samaj has already a burial ground within the vicinity of Nanadi Village since long and they are using the said area of Survey No.8, 11 and RS No.12 as a burial ground. The Lingayat Samaj is also not interested in getting the suit land as burial ground as it is unfit and away from the village Nanadi. It is the political move of the Mandal panchayt and some of the 10 prominent leaders in the village who were bent upon to harass these plaintiffs by one or the other way. One Sri Joshi alias Kulkarni’s land in RS No.11 out of which the half portion was and is used for the burial of dead bodies of Lingayat Samaj, which is adjacent to the Nanadi Village. The possession and enjoyment of the plaintiffs over the suit scheduled property is well known to the villagers and defendants concerned since more than 100 years. Thus, even though the defendants have acquired the alleged land, these plaintiffs are in actual possession for more than 30 years adversely against the title of the defendants, if any, and thus the defendants have perfected their title by way of adverse possession over the suit property. Now it is likely that the defendants may dispossess these plaintiffs from the suit land by one or the other reasons. Hence, the plaintiffs are constrained to file a suit for declaration and consequential relief of injunction against the defendants from disturbing their peaceful possession and enjoyment over the suit property. They have complied with the 11 mandatory requirement of Section 80 of CPC. Therefore, they sought for declaration that they have become the owners by adverse possession over suit property and the consequential relief of injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property of the plaintiffs. 6. After service of summons defendants entered appearance but did not file written statement nor participated in the proceedings. The plaintiffs in order to substantiate their claim, examined Appasaheb as PW-1 and Sadashiv Satteppa as PW-2. They produced 19 documents, which are marked as Exs.P-1 to P-19. No evidence is adduced on behalf of defendants. 7. The trial Court on appreciation of the aforesaid oral and documentary evidence on record held that if the entire pleadings is read as a whole, it does not satisfy the requirement of a proper plea of adverse possession.