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TMI Blog2013 (9) TMI 1197X X X X Extracts X X X X X X X X Extracts X X X X ..... of 15 acres, which is more particularly described in the schedule and referred to as schedule 'B' property. 4. Plaintiff is a registered Trust running Educational Institutions. Their case is in order to expand the educational activities to rural areas, the plaintiff along with the defendant who are also similarly placed, approached the Government of Karnataka for grant of certain lands for the sole object of establishing Educational Institutions in rural areas. The Government of Karnataka was pleased to accord sanction to grant 25 acres of land out of the total extent of 47 acres 11 guntas available in Sy.No.51 of Srigandhadakaval, Bangalore North Taluk in favour of the plaintiff i.e., 10 acres at an upset price of ₹ 300/- per acre and 15 acres on lease for a period of 30 years. 5. Similarly, the Government of Karnataka accorded sanction to grant the remaining extent available in Sy.No.51 to an extent of 20 acres to the defendant i.e., Vokkaligara Sangha i.e., 10 acres at an upset price of ₹ 300/- per acre and 10 acres on lease for 30 years. The said Government order is dated 12.1.1967. 6. The case of the plaintiff is that the plaintiff as well as the defend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R.A.16/1994 before the Assistant Commissioner, Bangalore North Taluk and subsequently. Initially the suit was for a decree of permanent injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the 'A' and 'B' schedule properties. Subsequently, the plaint was amended introducing paras 5A, 5B, 5C and 5D virtually reiterating the allegations made in the earlier plaint with slight elaborations and sought for a relief of declaration of title, for a mandatory injunction and after demolition, delivery of their possession. 7. The defendant has filed a detailed written statement traversing all the allegations in the plaint. Their case is, the activities of the plaintiff Trust is restricted only to KGF. They have no institutions of any sort in Bangalore except in KGF. Plaintiff was not at all an applicant for grant of the schedule property. The Government of Karnataka granted the land to the defendant-Sangha with the sole intention of helping the defendant which has enormous educational activities in and around Bangalore District. According to the Land Grant Rules, no grant can be made of more than 10 acres of land to any institutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner by his order dated 02.09.1994 has stayed the operation of the revenue entries made in favour of the plaintiff. The said case is pending. Up to June 1994, the defendant's name was there in all the revenue records and only in the month of June 1994, the old Sy.No.51 was bifurcated and alleged Sy.Nos.128 and 129 was given to the plaintiff. The said order of the revenue authority has been stayed by the Assistant Commissioner as aforesaid. At no point of time, the plaintiff was in possession of the suit property. The earlier RTC entries in the name of defendant are produced. It is admitted that joint revenue entries were there in the RTC up to 1980 only. Thereafter, no joint entries were found in the revenue records and only the defendant's name was found in all the revenue records from 1980 up to June 1994. They have constructed high school building in the year 1975 itself and classes are being run upto S.S.L.C. from 1975 to this day. The defendant has put up building consisting of two floors in the suit property and the said building was Centre for S.S.L.C. examination for many years. The defendant has obtained license and permission to put up construction on the suit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of portion of suit property to this defendant. All these things clearly show that this defendant is in possession of the property. It is true that there are some Niligiri trees standing on the suit property. In fact, from the beginning the Niligiri trees were in the suit property, which was grown initially by the Government. The said trees were auctioned in public by the defendant. The amount realized in public auction of Niligiri trees on suit property was retained to the extent of 50% by this defendant and the remaining 50% of the amount was remitted to the Government as the Government had grown the trees. The defendant has spent large sums of money to grow the existing Niligiri trees on the suit property. It is false to state that defendant has encroached the land of the plaintiff from the date of grant. This defendant is in possession and enjoyment of the land in question. This defendant in its own right, has put up many building construction on the suit property. The present Chairman of the plaintiff is an Ex-Deputy Commissioner of the State Service and after the retirement he has influenced the Revenue Authorities to make wrong entries in favour of plaintiff in view of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 25.08.1995 and subsequently framed another four issues on 04.09.2001 and subsequently, it also raised two more additional issues. They are as under: ISSUES 1. Whether the Plaintiff trust has been in possession and enjoyment of the suit schedule A and B properties? 2. Whether the Defendants Sangha has been in possession and enjoyment of the entire extent of land in old Sy.No.51? 3. Whether the plaintiff-Trust is entitled to permanent injunction? 4. What Order or decree? ADDITIONAL ISSUES 1. Whether the plaintiff proves that Government of Mysore granted to him 10 acres of land in Sy.No.128 on long term lease of 30 years for educational purposes? 2. Whether the plaintiff proves that the defendant as stated in plaint Para No.5(d)? 3. Whether the plaintiff is entitled to declaratory relief as prayed for? 4. Whether the plaintiff is entitled to mandatory injunction as sought? ADDITIONAL ISSUES 1. Whether the suit is barred by Limitation? 2. Whether the suit is bad for non-joinder of necessary parties? EVIDENCE 10. The plaintiff in order to substantiate his claim examined one Sri.G.H.Sawkar as P.W.1 and also examined one Sri.Chandrashekar as P.W.2. They produced 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e defendant has encroached a portion of the land in Sy.Nos. 128 and 129 is not acceptable. Insofar as the plea regarding limitation is concerned, the Trial Court held that the relevant Article applicable is Section 65 of the Limitation Act. After referring to various judgments relied on, it was held that since the defendant is in possession of the suit property for more than 20 years it has to be held that the possession of the defendant is far more than the prescribed period and hence, the possession of defendant has become adverse in the year 1974. From 1974, plaintiff ought to have filed the suit within 12 years. Plaintiff has not done so. In the circumstances, the suit of the plaintiff is barred by limitation. The Trial Court has held that the suit is not bad for non-joinder of Government. It was held that the defendant is in adverse possession of the suit property since 1974 and has perfected its title to the said property by adverse possession, the suit filed by the plaintiff is barred by limitation and as such, the plaintiff cannot be declared as the owner of the suit property. Insofar as 'B' Schedule property is concerned, it was granted on lease for a period of 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has put up construction in the plaintiff's property. Immediately thereafter, suit is filed for mandatory injunction. Therefore, not only the suit is in time but the suit is filed immediately on coming to know of the said encroachment and construction. The Trial Court committed a serious error in refusing the said relief not only on the ground of bar of limitation, but also on the ground of delay and latches. He further submitted that admittedly, in `A' schedule property, as is clear from the Commissioner's Report, till today no constructions are put up. It is a vacant land. The constructions are put up only on the lease hold land, which is the 'B' Schedule property. The Trial Court has declared the plaintiff's title. As the land being vacant, possession follows title. When the defendant tried to encroach upon the property, the plaintiff not only filed a suit but also filed an application for order of temporary injunction, which was granted by the Trial Court after hearing both the parties. The said order was challenged by the defendant in Miscellaneous First Appeal No.171/1995, which was disposed of confirming the order of the Trial Court but directing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly establish that the plaintiff did not know the location of the schedule property. The plaintiff has not stepped into the schedule property. From the date of grant, it is only the defendant, who is in possession of the property. In fact the person, who has been examined by the plaintiff is the Power of Attorney Holder, whose evidence is of no assistance in establishing the case of the plaintiff. Therefore, he submits that the finding recorded by the Trial Court that the plaintiff is not in possession and defendant is in possession of the entire property is valid and does not call for interference. Further he submitted that the defendant started putting up construction in the year 1974. In fact the evidence on record shows that Chairman of the plaintiff-Trust Mr.M.V.Krishnappa laid the foundation stone in the year 1974 for the construction of High School building of defendant Sangha in the suit property. The Chairman of the Plaintiff Trust has accepted the possession of the defendant. Therefore, if the property had been owned by the plaintiff, he would not have laid the foundation stone for construction. The said foundation stone was laid as far back as in the year 1974 and in in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 15 acres on long term lease of 30 years period. Similarly in the said Government order dated 12.01.1967, the Government granted to the defendant 10 acres on upset price of ₹ 300/- per acre and 10 acres of land on long term lease for a period of 30 years. The grant of these lands to the plaintiff and to the defendant is only for Educational purposes. Therefore, it is clear that the grant in favour of the plaintiff as well as in favour of the defendant was under the very same Government order dated 12.01.1967 to the extent mentioned therein. It is also pleaded that Sy.No.51 measures in all 47 acres 11 guntas. Traversing these allegations in the plaint, in para No.2 of the written statement, it is pleaded that the Government of Karnataka granted the land to the defendant-Sangha with the sole intention of helping the defendant, which has enormous educational activities in and around Bangalore District. According to the Land Grant Rules, no grant could be made to any Institution more than 10 acres of land. In the said circumstances, with some understanding, the grant was made for two institutions i.e., for defendant and plaintiff. After the grant was made, the defendant alone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e defendants and remaining 2 acres 11 guntas was not granted to any one. If the case of the defendant is to be believed that there was no bifurcation of the land, which is granted to them and both the parties also did not immediately take any steps to get the land bifurcated, boundaries fixed, phoding is done, it only means that both of them were in joint possession of this extent of 45 acres. If the defendant is in possession of the entire extent of 45 acres, the plaintiff also would be in possession as a co-owner and the defendant's possession would be that of the plaintiff. Therefore, their case that they are in exclusive possession and plaintiff is not in possession of any portion falls to the ground. The schedule property was granted to the plaintiff under the said Government order. D.W.1 Guthala Gowda was a Member of the defendant-Sangha, but later became the President of Vokkaligara Sangha as well as the General Secretary of the Defendant- Sangha in the year 1972, in his cross-examination has deposed as under: "It is true to suggest that the said land was granted in favour of the plaintiff - Sangha and defendant-Sangha. It is also true to suggest that the Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chedule property in favour of the plaintiff and in respect of the remaining extent of land, in favour of the defendant. The defendant has challenged the said entries by preferring an appeal in R.A.128/1994-95 before the Assistant Commissioner, Bangalore North Taluk. The said appeal was allowed on 11.10.1996. During the pendency of this appeal, a copy of the said order was produced by the defendant by filing an application under Order 41 Rule 27 of the Code of Civil Procedure for permission to adduce evidence. As in the plaint itself, the plaintiff has referred to the filing of the appeal and now that during the pendency of the suit, the said appeal was allowed, it is necessary to allow the application for additional evidence in order to look into the said order which would have a bearing in deciding the case on merits. Hence, the application for additional evidence was allowed. The said order of the Assistant Commissioner allowing the appeal was taken on record. A perusal of the order shows that the Assistant Commissioner has set out in detail the rival contention elaborately but he has not considered any one of them. Absolutely, there is no discussion, but in the operative portion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under: SKETCH SURVEY NO.128 A to B is 265 feet A to D is 1.254 feet D to E is 1,085 feet E to F is 231 feet C to F is 1, 093 feet D to C is 224 feet Nagarbhavi Main Road is a 100 Feet Road, Cross Road is 40 feet Road, Rest of the area covered with Eucalyptus trees. SKETCH SURVEY NO.129 A to D is 1,254feet D to E is 1,085feet E to G is 274feet G to H is 627feet H to I is 330feet I to A is 161feet SKETCH SURVEY NO.130 NORTH BY PROPERTY NO.129 G to M is 16.6.feet I to J is 435 feet J to K is 155 feet K to L is 462 feet L to M is 680 feet M to H is 610 ½ feet SKETCH SURVEY NO.51 G to M is 16.6.feet G to E is 274 feet E to N is 474 feet N to O is 280 feet O to P is 450 feet P to Q is 930 feet Q to L is 276 feet 21. The Commissioner has also observed that old Sy.No.51 is bifurcated into four survey numbers, viz., 128, 129, 130 and 51 and all the survey numbers are identified, bifurcated with stone markings and each survey number is already enclosed with rough sketch and measurements. 22. PW-1 has also spoken about the bifurcation of Sy.No.51 and carving out Sy.Nos.128, 129 and 130. 23. We have perused the evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .128 buildings are situated or not? 26. From this evidence on record, it is clear that in the year 1994, the Survey Authorities effected bifurcation of Sy.No.51 and gave new Sy.Nos.128, 129 and 130, retaining Sy.No.51 for the plaintiff. They have no grievance in so far as bifurcation is concerned. The grievance is that, after bifurcation, mutation entries have been made in the name of the plaintiff in respect of Sy.Nos.128 and 129 behind their back as their name was there earlier which has not been deleted. The factum of bifurcation of Sy.No.51, assigning new survey numbers by the Survey Department in the year 1994 is not in dispute. The land granted to the plaintiff is now renumbered as Sy.No.128 and 129. Thus the plaintiff has established his title to 'A' and 'B' schedule property. POINT NO.2: MANDATORY INJUNCTION 27. Now, the question is in the plaint schedule property, i.e., Sy.Nos.128 & 129 whether defendants have put up any construction and if so, whether a decree for mandatory injunction could be granted for demolishing the said buildings and restoring possession of the said lands to the appellant. Both the parties rely on the Commissioner's report. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Chairman. He was also a Member of Parliament. He had presided over a function conducted by the defendant in connection with the laying of a foundation stone for construction of a school building. He had presided over the said function of the defendant under the impression that the proposed construction of the school building was in the lands granted in favour of the defendant. There is no such record that they were with the defendant. He has further deposed that the buildings are located on the eastern and northern side of Nagarabhavi road. Those buildings are constructed by the defendant. He does not know how many buildings are constructed. He does not know, when those buildings were constructed. About 12 years back, he saw those buildings. He does not know if all the buildings were simultaneously constructed or they were constructed in a phased manner. It may be that late M.V.Krishnappa, then a Parliament member laid foundation stone for building. He do not know if the foundation stone showing the name of late M.V.Krishnappa and date of laying the foundation stone and is still existing in the building was within the knowledge of late M.V.Krishnappa. He has denied the suggestion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Government and there was no proper bifurcation of the land granted to them and that both of them had applied together and they were in good terms, those constructions are put up by the defendant on the assumption that it is in their land. The fact that the Plaintiff's President was a Member of the Parliament laid the foundation stone in the year 1974 only show that there was absolutely no dispute or no conflict of interest as on that date. Probably, it is only in the year 1994 that the plaintiff applied for bifurcation and phoding of the land they realized that some of these constructions put up by the defendant are in 'B' schedule property, i.e., in Sy.No.129. When after bifurcation also, the defendant tried to put up constructions, it was objected to. Probably, that is the point of difference of opinion between the plaintiff and the defendant. The defendants challenged the mutation entries by filing an appeal and when the defendants attempted to encroach upon the property after bifurcation, the plaintiff filed a suit approaching the City Civil Court for bare injunction and subsequently, after realizing that some of those constructions are put up in their land, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad an occasion to consider the general principles on which mandatory injunction is issued. Lord Upjohn, discussing the aspect at page 665 of the reported case and recalling the general principles, has observed: "... The grant of a mandatory injunction is, of course, entirely discretionary and unlike a negative injunction can never be 'as of course'. Every case must depend essentially upon its own particular circumstances. Any general principles for its application can only be laid down in the most general terms: 1. A mandatory injunction can only be granted where the plaintiff shows a very strong probability upon the facts that grave damage will accrue to him in the future. As Lord Dunedin said in 1919 it is not sufficient to say 'timeo' (Attorney- General for the Dominion of Canada v. Ritchie Contracting Supply Co., (1919) AC 999, 1005 PC). It is a jurisdiction to be exercised sparingly and with caution but in the proper case unhesitatingly. 2. Damages will not be a sufficient or adequate remedy if such damage does happen. This is only the application of a general principle of equity, it has nothing to do with Lord Cairos' Act or Shelfer's case (189 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id make it possible to the defendant to cause that injury such as unauthorized construction and never took any step such as the institution of a suit and an application for injunction restraining the defendant when such unauthorised construction was in progress and comes to the Court with his suit only after such unauthorised construction was completed, the case would not be one for a mandatory injunction but only for damages." 37. A Bench of the Patna High Court in the case of DR. ABDUL KHAIR V. MISS SHEILLA MYRTLA JAMES, (AIR 1957 PAT 308) has held as under:- "Generally speaking if a party having an interest to prevent an act being done, has full notice of its having been done, and acquiesces in it, so as to induce a reasonable belief that he consents to it, and the position of others is altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice than he would have had if it had been done by his previous license. An estoppel does not itself give a cause of action, it prevents a person from denying a certain state of affairs. The plaintiff and defendants were neighboring plot owners. In constructing their house the defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant to that extent of property. The former then instituted a suit out of which this appeal arises in 1958 for recovery of possession of 79 cents of land which had been occupied by the respondent and for a mandatory injunction directing him to remove the superstructure put up thereon. Both the Courts below found that the appellant had title to the property and they accordingly passed a decree for possession. The learned appellate Judge, however, realized that the appellant could have discovered the encroachment even at the time of construction of the building by the respondent, But he was of the view that having regard to the nature of the land and the circumstances under which the encroachment was noticed, the appellant could not be held to have acquiesced in the action of the defendants in putting up the buildings. One can easily see from the judgment of the lower appellate Court that but for the indifferent attitude adopted by the appellants the respondents could not have been encouraged to put up the buildings. It is not pretended that the appellant was not aware of the buildings coming up Notwithstanding the view expressed by the appellate Judge, one can easily see th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refused especially when the co- owners have come to Court at the earliest. One of the tests to determine whether a mandatory injunction should or should not be granted is whether the plaintiffs, who objected to the constructions being made by a co-owner on a joint land, did so at the earliest or waited till the constructions had been completed. In the first case injunction would normally be issued, whereas if the constructions had been allowed to be completed, an injunction would normally be refused, as the basis for refusing injunction would be that by their conduct in not objecting at the earliest stage, the joint co-owners had induced the maker of constructions to believe that he could make it, and in doing so spent money and effort." 43. From the aforesaid decisions, the law in respect of mandatory injunction could be summarized as under:- The grant of a mandatory injunction is, of course, entirely discretionary and unlike a negative injunction can never be 'as of course'. A mandatory injunction can only be granted where the plaintiff shows a very strong probability upon the facts that grave damage will accrue to him in the future. It is a jurisdiction to be exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tionary relief and delay is a factor which has to be taken into account while granting it, where a case for grant of this relief is otherwise made out and that such delay, however to be a disqualifying circumstance, must amount to waiver or abandonment of the rights sought to be enforced or acquiescence in the act complained of or laches, after the act is done. One of the tests to determine whether a mandatory injunction should or should not be granted is whether the plaintiffs, who objected to the constructions being made by a co-owner on a joint land, did so at the earliest or waited till the constructions had been completed. In the first case injunction would normally be issued, whereas if the constructions had been allowed to be completed, an injunction would normally be refused, as the basis for refusing injunction would be that by their conduct in not objecting at the earliest stage, the joint co-owners had induced the maker of constructions to believe that he could make it, and in doing so spent money and effort. Before the plaintiff could claim such mandatory injunction, he should establish that he did not stand by and allow the injury to be caused to him. If the evidence d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these elements makes the doctrine inapplicable.. Acquiescence does not simply mean standing by. It does not mean quiescence only. It means assent after the party has come to know of his right. There is a distinction between acquiescence occurring while the act is in progress, and acquiescence taking place after the act has been completed. In the former case the acquiescence is acquiescence under such circumstances as that assent may be reasonably inferred from it. In the latter case when the act is completed without any knowledge or without any assent of the person whose right is infringed, the matter is to be considered on very different legal considerations." 48. At page 1053 we find the following passages:- "It is of the essence of the acquiescence that the party acquiescing should be aware of and by words and conduct should represent that he assents to what is violation of his rights and that the person to whom such representation is made should be ignorant of the other party's rights and should have been deluded by the representation into thinking that his wrongful action was assented to by the other party." "The laws as to equitable estoppel by acqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of land, not in mistaken belief of his rights but in assertion of his rights which he correctly believed to be his, builds structures on the land and the Person who is entitled to possession knows of this, the latter is not estopped by acquiescence from bringing a suit for Possession when the person in Possession, had he exercised care and diligence expected of a man of ordinary prudence, would have easily discovered where the true title lay". 51. Acquiescence does not simply mean standing by. It does not mean quiescence only. It means assent after the party has come to know of his right. If party having a right, stands by and sees another dealing with the property in a manner inconsistent with that right and makes no objection while the act is in progress, he cannot afterwards complain. That is the proper sense of the word acquiescence. There is a distinction between acquiescence occurring while the act is in progress, and acquiescence taking place after the act has been completed. In the former case the acquiescence is acquiescence under such circumstances as that assent may be reasonably inferred from it. It is of the essence of the acquiescence that the party acquiescing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest to prevent an act being done, has full notice of its having been done, and acquiesces in it, so as to induce a reasonable belief that he consents to it, and the position of others is altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice than he would have had if it had been done by his previous license. Mere non-interference is not enough. Acquiescence with full notice in act "prejudicial to one's self so as to induce reasonable belief of his consent, followed by consequent alteration of other's position is necessary. Where knowledge on the part of the person to be estopped is not proved, the doctrine of acquiescence does not apply. DISCRETION 52. In the light of the aforesaid legal position, in the instant case, the defendant has put up the construction openly to the knowledge of the plaintiff. Admittedly, the plaintiff's President laid the foundation stone for the building in the year 1974 and thereafter, from time, to time, the constructions are put up. High School, Colleges and polytechnics are run and virtually, it has become a group of institutions consisting of several schools and colleges. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t;The Court in the exercise of its discretion will be guided by consideration of justice, equity and good conscience and that it is not possible for the Court to lay down inflexible rule as to the circumstances in which the relief for demolition and injunction should be granted or refused." The Trial Court has exercised the discretion keeping in mind justice, equity and good conscience. It did not want the construction which commenced in the year 1974, which has been there for the last 40 years, where schools and colleges are run being pulled down. Similarly, it is a granted land. The plaintiff has not used it for the purpose for which it was granted. However, defendants have used it for the said purpose and therefore the question of compensating the plaintiff also would not arise. Therefore we do not see any justification to interfere with the order of the trial Court declining to grant the decree for mandatory injunction. POINT NO.3: POSSESSION 54. The suit is one for declaration and for permanent injunction. The plaintiff has not sought the relief of possession. According to the plaintiff, he is in possession of 'A' and 'B ' schedule properties from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the KLR Act arises only when an entry in the Record of Rights and the certified entries in the Register of Mutation are made in accordance with law. Then the Court shall presume the entries to be true until the contrary is proved or a new entry is lawfully substituted thereof. Therefore, only when an entry is made in accordance with law, a presumption under Section 133 can be raised. The defendant in order to have the benefit of that presumption that they are in possession of the entire property from 1983 onwards, must produce evidence to show how they acquired title to the plaintiff's property and that an order came to be passed directing mutation in their name in respect of the entire property. Admittedly, even to this date, the defendants have not acquired any title to the property granted to the plaintiffs. There is no mutation order passed in the year 1983 deleting the name of the plaintiff and mutating the name of the defendant in respect of the plaintiff's property. Therefore, mere entry of the defendant's name in the revenue records do not establish possession of the defendant over the plaint schedule property. The evidence on record shows, the plaintiff mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1966-67, there is an entry in Column No.2 as the Golden Valley Educational Trust and the Vokkaligara Sangha. In the same Records of Rights, i.e., in Ex.P4, upto 1971-73 in Columns No.1 & 2, it bears the name of the plaintiff and defendant and it also shows as Vokkaligara Sangha and Golden Valley Educational Trust. Even in Ex.D2, the names of the plaintiff and defendant were entered up to 1979-80. After 1981 onwards, the name of the plaintiff is not entered. In 1981-82 only, the name of the defendant is entered. The Bangalore Development Authority initiated acquisition proceedings as the name of the defendant was only entered in the RTC in the year 1987. The acquisition proceedings were initiated in the name of the defendant only. Further, on representation made by the defendant, the acquisition proceedings were dropped. In fact, the acquisition were dropped to the total extent of 67 acres. 58. From the aforesaid documentary and oral evidence on record, it is clear that the title of the plaintiff is not in dispute. The land in question is a vacant land. When the pahanis stood in the name of both the plaintiff and defendant from the date of grant till 1982-83 and when the defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction mean, the period of limitation prescribed by the schedule to the Limitation Act. The relevant Article is Article 65 of the Limitation Act, Article 64 has no application because, it is not a case where the defendant has not pleaded that he has dispossessed the plaintiff at any point of time. On the contrary, the specific plea taken is, the plaintiff was never put in possession. Therefore Article 65 is the provision on which reliance is placed. The starting point for limitation under Article 65 is when the possession of the defendant becomes adverse to the plaintiff. Therefore it is not the date from which he entered possession of the property, it is the date from which the possession of the defendant became adverse. The evidence on record do not disclose firstly when the defendant entered into possession of the suit property at all except to the extent of about 3 acres where they have put up construction. Further it is not their case that the defendant's possession is adverse to that of the plaintiff. If defendant is not in possession at all, the plea of adverse possession cannot succeed and the question of plaintiff's right to property getting extinguished would not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be adverse. 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. A person pleading adverse possession has no equities in his favour because adverse possession is commenced in wrong and aimed against right. 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. 61. It is in this background, if we look at the written statement filed by the defendant, it is averred that after the grant was made the defendant alone is in possession and enjoyment of the entire extent of land in Sy.No.51. The then Chairman of the plaintiff-Trust, viz., Sri. M.V. Krishnappa himself laid the foundation stone for the construction of High School building of defendant Sangha in the suit property. The chairman of the plaintiff-Trust has accepted the possession of the defendant. If the grant of entire extent of land including the suit property was not intended to the defendant, the Chairman of the plaintiff-Trust would not have laid the foundation stone for building con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it ought to have been filed within three years from the date of the plaintiff's title being denied. Article 58 of the Limitation Act deals with the period of limitation for filing a suit for declaration of title. The cause of action arises when the plaintiff's title is denied. The evidence on record shows both the plaintiff and defendants were granted land under the very same Government order. After the order, the plaintiffs and defendants name was entered in the revenue records together. In the year 1983, the name of the plaintiff was deleted without notice to the defendants without there being an order. The plaintiff approached the Authorities for bifurcation of Sy.No.51. Accordingly, survey was conducted. Bifurcation was conducted and plaintiffs land was given Sy.No.128 and Sy.No.129. It is at that stage, when mutation entries were made according to the said bifurcation, the defendant preferred an appeal before the Assistant Commissioner challenging those mutation entries. That could be taken as the date on which the defendant denied the title of the plaintiffs to the suit schedule property. It was in the year 1994, when the defendant filed the appeal and got the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the plaintiff but also in favour of the defendant is liable to be set aside. But, however, grant of declaration by the Court would not come in the way of the Government initiating proceedings against the plaintiff and the defendant for violation of the terms of the grant. At any rate, that would not come in the way of entertaining the suit and grant any declaration when the plaintiff has filed the suit and prayed for declaration. At this stage, it is relevant to point out that in 10 acres granted to the defendant for an Upset Price in 'A' schedule property. The total extent mentioned is 11 acres 23 guntas with 01 acre 23 guntas is a Pada land, out of which 01 acre 23 guntas is not granted to the plaintiff. Therefore, the plaintiff is only entitled to the extent of 10 acres. In so far as Sy.No.129 is concerned, the total extent of land leased is 15 acres for 30 years. It is in these 15 acres, the constructions are put up in 03 acres of land. Therefore, the question of this Court granting any declaration that the plaintiff is the owner of this property would not arise. All that this Court can do is to hold that the plaintiff is entitled to only lease-hold rights in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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