ORDER 7 RULE 11(a)(d) – REJECTION OF PLAINT UNDER -HELD – UNDER ORDER 7 RULE 11(d) THE PLAINT CAN BE REJECTED WHEN IT APPEARS FROM THE STATEMENT IN THE PLAINT TO BE BARRED BY ANY LAW. ON FACTS HELD – Having regard to the decision of John B. James case and also as a matter of abundant caution in the alternative the plaintiff has claimed alternative relief of perfection of title by adverse possession and limitation and wherefore, as per the averment made in the plaint, the suit is not barred by any law – The question whether the plaintiff can seek alternative relief of adverse possession when he has claimed ownership to the schedule property is a question of fact which has to be considered in detail during trial – The Trial Court having considered the averment made in the plaint has rightly rejected the application filed under Order 7 Rule 11(a) and (d) of CPC and the Order does not suffer from any error of jurisdiction or illegality.
Revision Petition dismissed.
Held:
The High Court of Karnataka has held in John B James and
Others v. BDA (ILK 2000 KAR 4134 ) that for a person to claim
adverse possession against BDA it is 12 years possession that is
relevant. It is also averred that it is in physical continuous
uninterrupted possession and enjoyment of A and B schedule
properties as true owner peacefully, opened and continuously in
exclusive possession in exclusion of the defendant or any person
claiming under it as absolute owner and to have been in
continuous physical possession for over a statutory period of 12
years in exclusion of dependant has its possession is settled
possession and it has perfected its title.
It is clear from the averment made in the plaint that the filing of the suit was necessitated in view of the fact that the Writ Petition filed by the plaintiff before this Court in W.P.Nos, 28601 -802/2002 was disposed of on 28.10.2002 with a direction to seek out the remedy in view of the decision of this Court in John B. James case wherein this Court was considering the status of unauthorised occupants and persons who are in settled possession in respect of the property belonging to the BDA.
It is clear that the relief that is sought for in the suit by the plaintiff is that he has acquired ownership to the schedule property in view of the absolute sale deed executed by the vendor in favour of the plaintiff on 31.3.1995 and that the defendant had put the plaintiff-vendor in possession of the property on 4.6.1976 and thereafter he had put up construction on schedule properties after obtaining licence and sanction plan and absolute sale deed was also executed in favour of the vendor in respect of the schedule properties by the defendant in 1989. The plaintiff has acquired title to the property. However, having regard to the decision of this Court in John B. James case, the plaintiff has also sought for an alternative prayer that the plaintiff has been in settled possession of the schedule property for more than twelve years and wherefore, in view of the decision in John B. James case the right of the defendant to recover possession of the property is extinguished and the plaintiff as possessory owner acquires absolute property in question. It is claimed in the alternative that the plaintiff and his vendor being in continuous and uninterrupted possession to the exclusion of the owner, the defendant from 1976 have perfected title by adverse possession. It is clear from the relief that is sought for in the suit that plaintiff has sought for declaration that the plaintiff is the absolute owner of A and B schedule properties and or to declare that the plaintiff has become absolute owner of A and B schedule properties by perfecting his title by adverse possession and limitation. The
acquisition of title in view of the settled position of law and law of limitation is as per the decision of this Court in John B. James case and there is averment regarding perfection of title by adverse possession.
ORDER
V.G. Sabhahit, J.
1. This revision by the defendant in O.S.No. 7738/2002 on the file XVI Additional City Civil and Sessions Judge, Bangalore City, is directed against the Order dated 3.1.2003 dismissing I.A.III filed by the petitioner under Order 7 Rule 11 (a) and (d) of CPC. The respondent herein filed the suit O.S.7738/2002 on the file of City Civil Judge, Bangalore City on 16.11.2002 seeking for the following reliefs:
“a) For declaration that the plaintiff is the absolute owner of the A and B schedule properties and/or to declare that the plaintiff has become absolute owner of A and B schedule properties by having perfected its title by adverse possession and limitation.
b) for permanent injunction restraining the defendant, its officials or officers or anybody claiming under it from interfering with the plaintiff’s and also restraining them from demolishing the structure in the A and B schedule properties?
c) to grant such other relief or reliefs that this Hon’ble Court deems fit in the circumstances of the case and decree the suit with costs in the interest of justice”.
2. In the said suit, summons was issued to the defendant and defendant was served with notice. Defendant appeared and filed an application-I.A.III under Order 7 Rule 11 (a) and (d) averring that the averment made in the plaint does not disclose cause of action for the relief of perfection of title by adverse possession and that the relief that is sought in the suit being counter destructive is not permissible in law and wherefore, the plaint is liable to be rejected.
3. The plaintiff filed objections to the said application. The trial Court after considering the contention of the learned Counsel appearing for the parties and the material on record by its Order dated 3.1.2003 dismissed I.A.III and being aggrieved by the said Order, the defendant has preferred this revision under Section 115 CPC.,
4. The learned Senior Counsel appearing for the petitioner submitted that the Order passed by the trial Court rejecting I.A.III is clearly without jurisdiction. The learned Senior Counsel submitted that the prayer made in the suit seeking for declaration of title and to declare that the plaintiff has perfected his title by adverse possession is inconsistent and mutually destructive of each other and is not permissible under law. The learned Senior Counsel further submitted that the averment made in the plaint do not make out a cause of action for perfection of title by adverse possession as there is no averment that the plaintiff has given up his title and accepted the title of the defendant and there is no specific averment as to the period from which the possession of the plaintiff or his vendor became adverse to the owner-the defendant in the suit. The learned Senior Counsel submitted that the trial court has not at all considered this aspect of the case and has proceeded on the basis that averment made in the plaint does make out a cause of action which is clearly erroneous. The learned Counsel submitted that the averment made in the plaint do not make out a cause of action for the grant of relief of perfection of title by adverse possession and wherefore, no cause of action is made out in respect of the said relief and the relief that is sought are mutually destructive. He has relied upon a number of decisions of the Hon’ble Supreme Court and this Court and the decision of the Orissa and Madras High Court in support of his contention that the plea of adverse possession has to be specifically pleaded in the plaint and the period or the time from which the possession become adverse to the owner has to be specifically pleaded and the person claiming adverse possession has to disclaim his title and accept the title of the opponent. The learned Senior Counsel submitted that there is no pleading of ingredients of adverse possession as laid down by the Hon’ble Supreme Court and the High Courts in the decisions cited by him and wherefore, the trial Court Order is without jurisdiction and is liable to be set aside and the plaint is liable to be rejected under Order 7 Rule 11 (a) and (d) of CPC,
5. On the other hand, the learned Senior Counsel appearing for the respondent in this revision, the plaintiff in the suit Sri. B. V. Acharya submitted that the application for rejection of plaint under Order 7 Rule 11 (a) and (d) of CPC., has been rightly rejected by holding that the averment made in the plaint disclose cause of action for the relief sought for in the suit. The learned Senior Counsel submitted that according to the plaintiff, the plaintiff has become the owner of the schedule A and B properties by virtue of the sale deed executed in his favour by his vendor who had valid title to the property and in the alternative it is pleaded that the vendor of the plaintiff and the plaintiff have been in settled possession of the property and to the knowledge of the defendant and since defendant has not taken any action for recovery possession within 12 years settled possession would confer title and defendant has lost its title to the property and further the averment made in the plaint would also show that all the ingredients to constitute adverse possession and also been averred in the plaint as it is the case of the plaintiff that the vendor of the plaintiff and after sale the plaintiff have been in open, continuous, uninterrupted possession of the property to the exclusion of other persons including the defendant to its knowledge from 1976 and wherefore, perfected title by adverse possession and wherefore, the impugned Order does not suffer from any error of jurisdiction or illegality as to call for interference in this revision. The learned Senior Counsel for the respondent submitted that the BDA is a statutory authority and is unnecessarily protracting the proceedings knowing that the Order passed by the trial court rejecting application under Order 7 Rule 11 (a) and (d) of CPC., is justified as the averment made in the plaint do make out a cause of action and is not barred by law and wherefore, exemplary cost may be imposed. The learned Counsel for the respondent has relied upon number of decisions in support of his contention.
6. I have heard the learned Counsel appearing for the parties.
7. Having regard to the contentions urged, the point that arises for determination in this revision is:
“whether the impugned Order rejecting application filed by the revision petitioner in I.A.III under Order 7 Rule 11 (a) and (d) of CPC., suffers from any error of jurisdiction illegality or material irregularity as to call for interference in exercise of the power of this Court under Section 115 CPC.,?
and I answer the above point for determination in the negative for the following:
REASONS
8. It is clear from the application filed by the petitioner-the defendant in the suit before the trial Court I.A.III under Order 7 Rule 11 (a) and (d) that regarding the cause of action for the plaintiff has repeatedly pleaded that he is in open, continuous, uninterrupted possession to the exclusion of any one else and that he has perfected its title by adverse possession. The plaintiff purports to contend that his settled possession has ripened into adverse possession. Except pleading so the plaint does not at all disclose material averments as to when the possession became adverse and without mentioning the date of origin of such adverse claim to possession, there is no scope for examining the period to which such possession has been adverse and on his own showing the plaintiff and not expressed adverse possession till the date of his presenting the plaint and wherefore the plaintiff has no claim for title based by adverse possession.
9. It is also averred that the plaintiff has not disclaimed title in himself for claiming adverse possession and law does not favour the owner claiming adverse possession his claim against his own title. As the adverse possession claim is against BDA, the plaintiff has no cause of action to sue on the basis of adverse possession. It is further averred that the plaintiff’s claim is own title and adverse possession in the alternative and has not limited his claim to one of these mutually destructive and inconsistent claims and wherefore the same is clearly barred by law and therefore the plaint is liable to be rejected under Order 7 Rule 11 (a) and (d) of the CPC.,
10. The plaintiff filed objections to the said application averring that the averment made in the plaint clearly make out cause of action for the relief that is sought for in the suit. It is averred that the plaintiff has filed the W.P.Nos. 28601-602/2002 praying for writ of mandamus to prevent defendant from demolishing the structure in the A and B schedule properties belonging to the plaintiff. The Petition was based on the plea that the petitioner has been in settled possession and that the respondents had no right to evict occupants in settled possession of property without due process of law and in view of the observations made while disposing of the said writ petitions the suit is filed and averment made in the plaint clearly makes out cause of action for the relief that is sought in the suit including the relief of adverse possession which is sought in the alternative by the plaintiff and there is no prohibition in law from claiming title and in the alternative to declare that the plaintiff has perfected his title by adverse possession and therefore, the application is liable to be rejected.
11. The scope and extent of power to be exercised by the Court while considering the application under Order 7 Rule 11 (a) and (d) is well settled Order 7 Rule 11 (a) and (d) reads as under:
“ORDER VII RULE 11 REJECTION OF PLAINT: The plaint shall be rejected in the following cases
a) where it does not disclose a cause of action:
b) xxxx xxxx xxxxxx
c) xxxx xxxx xxxxxx
d) Where the suit appears from the statement in the plaint to be barred by any law:
12. In a recent decision of the Supreme Court in SALEEM BHAI v. STATE OF MAHARASHTRA AND ORS, . Hon’ble Supreme Court has observed as follows:
“A perusal of Order 7 Rule 11 CPC, makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under Clauses(a) and (d) of Rule 11 or Order 7 CPC., the averments in the plaint are germane: the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage”.
13. It is also well settled that while considering the application for rejection of plaint under Order VII Rule 11 CPC., the distinction that the averment made in the plaint does not make out a cause of action and that the plaintiff has no cause of action to file the suit has to be borne in mind as it is only where the averment made in the plaint does not disclose a cause of action the plaint is liable to be rejected under Order VII Rule 11 ( As held by the Hon’ble Supreme Court in M/s. RAPTAKOS BRETT AND CO. LTD. v. GANESH, .
14. It is also well settled that the plaint can be rejected only when the averment made in the plaint does not disclose any cause of action for the relief sought for in the plaint and plaint cannot be rejected in part. It is clear from the averment made in the application filed before the Trial Court I.A.III that the averment made in the application for rejection of plaint under Order VII Rule 11 (a) and (d) is only to the effect that there is no averment in the plaint to prove the ingredients of adverse possession and as there is no specific pleading as to the period from which the possession became adverse and it is the further case of the defendant – applicant that since the reliefs that is sought for in the suit that is for declaration of title or perfection of title by adverse possession is mutually destructive and inconsistent and not permissible under law. There is no averment made in the application that the averment in the plaint does not disclose any cause of action for declaration of title and settled possession as averred in the plaint. It is necessary to refer to the decisions relied upon by the learned Senior Counsel for the petitioner-the applicant before the trial court regarding the ingredients that are required to be pleaded in the plaint for claiming the relief of perfection of title by adverse possession.
15. In D. N. VENKATARAYAPPA v. STATE OF KARNATAKA, the Hon’ble Supreme Court has observed as follows:
“Therefore in the absence of crucial pleadings which constitute adverse possession and evidence to show that the petitioners have been in continuous and uninterrupted possession of the lands in question claiming right, title and interest in the lands in question hostile to the right, title cannot claim that they have perfected their title by adverse possession”
16. In ATUL CHANDRA ADHIKARI v. STATE OF ORISSA, AIR 1995 Orissa 233 the division Bench of the Orissa High Court has held as follows:
“A person who takes the plea of adverse possession has establish it.
Adverse possession postulates a hostile possession which carries a notorious disavowal of the true owners title and constitutes an invasion of that title. Adverse possession means possession, which is adverse i.e. possession of a land or an interest in land or an interest in land by a wrong man against the will of the right man, who is the owner of the land or an interest in that land. Adverse possession to succeed, must be one nee per vim clam, nee precario. In other words, such possession, to be adverse must be adequate in continuity, in publicity and in extent to show that the possession was adverse to the competitors. Adverse possession designates a possession in opposition to the true title and the real owner, and implies that it commended in wrong and in maintained against right. (See Alexander v. Polk 39 Mississippi Reports 755). In Order to adversely possess the suit land, it must be shown that the possession was open, hostile and exclusive, the burden of proving that possession of the suit land adverse and for the statutory period lies heavily on the claimant, A party who sets up a claim of title by adverse possession, has to affirmatively prove his or her possession over the statutory period and presumptions and probabilities cannot be substituted for evidence. The plea of adverse possession is not always a legal plea. It is always based on facts which must be asserted, pleaded and proved.”
17. In DR. MAHESH CHAND SHARMA v. Smt. RAJ KUMARI SHARMA, the Hon’ble Supreme Court has held as follows:
“In this connection, we may emphasise that 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 the facts necessary to establish his adverse possession”.
18. In TRILOCHAN DANDSENA v. STATE OF ORISSA, AIR 1995 Orissa 239 the Full Bench of the Orissa High Court has held as follows:
“Adverse possession is essentially a question of fact. In any case it is a mixed question of law and fact. The starting point of limitation begins from the expression of hostile animus amounting to denial of title of the real owner to his knowledge. This must continue for uninterrupted period of 12 years. Merely on the basis of possession under a void transaction- and nothing more title by adverse possession cannot be matured, more so when before the prescribed period has run out, the person in possession acknowledges the superior title of the real owner. Even if the possession continues uninterruptedly but the nature of the possession is not identical, the two periods cannot be tagged for the purposes of counting the total period required for maturity of title by adverse possession”
19. The word cause of action for the purpose of Order VII Rule 11 has been considered by the Hon’ble Supreme Court in the case of ABC LAMINART PVT. LTD., v. A. P. AGENCIES, SALEM, as follows:
“A cause of action means every fact, which, if traversed, it would be necessary for the plaintiff to prove in Order to support his right to a judgment of the Court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act nor cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff.
20. The other citations relied upon by the learned Senior Counsel for the petitioner pertains to rejection of the election petition for noncompliance of the provisions of Section 83 of the Representation of People Act, which requires particulars to be mentioned in the election petition to constitute corrupt practice as a ground for setting aside the election of the return candidate. In FIRM SRINIVAS RAM KUMAR v. MAHABIR PRASAD, Hon’ble Supreme Court has observed as follows:
“But it was certainly open to the plaintiff to make an alternative case to the effect and make a prayer in the alternative for a decree for money even if the allegations of the money being paid in pursuance of a contract of sale could not be established by evidence. The fact that such a prayer would have been inconsistent with the other prayer is not really material. A plaintiff may rely upon different rights alternatively and there is nothing in the CPC., to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. The question, however, arises whether in the absence of any such alternative case in the plaint it is open to the Court to give him relief on that basis”.
21. In view of the principles laid down in the above said decisions, it is clear that the averment made in the plaint has to be looked into to find out as to whether the averment made in the plaint make out a cause of action for the relief of declaration of title by adverse possession and as to whether the relief that is sought for in the suit is barred by any law. It is clear from the averment made in the plaint that the plaintiff is a Banking Company constituted under the Companies Act, 1956. During the year 1995 for the purpose of providing residential accommodation to the then Chairman of the Bank, was on the lookout for a suitable property to be purchased by the Bank. On the basis of the representation made by one Sri Surali Rama Rao Narasimhamurthy S/o Sri Surali Rama Rao (hereinafter called ‘vendor’) who was intending to sell the schedule properties it was ascertained from the verification of records that vendor and on verification of the documents it was found that vendor was put in possession of vacant site bearing No. 527/V/72 by the defendant under a possession certificate dated 4.6.1976 issued and duly signed by the Assistant Engineer and the Executive Engineer of the defendant. The vendor was put in physical possession and enjoyment of the said site to the knowledge of the defendant and in exclusion possession of the defendant ever since 4.6.1976. The property was transferred to the Corporation of City of Bangalore under the Bangalore Mahanagara Palike for its maintenance and administration, after having developed the infrastructure and other amenities required under the provisions of the Bangalore Development Authority Act. It is further averred that since the portion or moiety of the sale consideration for the purpose of the aforesaid site was from the joint family funds. On an application given the defendant bifurcated the site No. 527 and assigned two site Nos. 527-A and 527-B and communicated such bifurcation by its endorsement dated 6.12.1988. The katha of the said properties was transferred to the name of the vendor. The vendor made an application to the Corporation of City of Bangalore along with plan for grant of construction license and also for approval of the plan and the Deputy Director of Town Planning of the Corporation of City of Bangalore has sanctioned the grant of licence and has approved the plan by its communication dated 13.12.1988 for the purpose of construction of the ground floor and the first floor and after such completion the Corporation of City of Bangalore issued a special notice dated 25.7.1990 regarding assessment of the property and vendor has paid the Corporation the tax in respect of building and site to the Corporation of City of Bangalore. It is further averred that the defendant BDA., executed absolute sale deed in favour of the vendor in respect of site No. 527 on 25.10.1989 in respect of site No. 527 assigned as site No. 527-B in favour of the vendor on 25.10.1989 which was registered on 7.11.1989. The katha of the entire property as stated was transferred to the name of the vendor and vendor has been paying tax to the Corporation of the City of Bangalore. It is averred that on verification of the documents the plaintiff-Bank agreed to purchase the schedule property from the vendor and as permission under Urban Land Ceiling Act has to be obtained, an agreement of sale was entered into on 22.6.1994 and after obtaining the appropriate permission sale deed was executed in favour of the plaintiff by the vendor on 31.3.1995 in respect of A and B schedule property comprising of site Nos. 527-A and 527-B respectively and since then the plaintiff has been in continuous peaceful possession of the schedule property. It is averred that the vendor was the absolute owner of the A and B schedule properties and was in possession of the same from 1.6.1976. The site allotted in favour of the vendor by the defendant has been put in his possession on 1.6.1976 and he has been in peaceful possession and enjoyment of the entire site openly, continuously and uninterruptedly in exclusion of any other person or persons including the defendant to the knowledge of the defendant. It is further stated that the said vendor was in peaceful possession openly, continuously, uninterruptedly of the house and the site in the manner explained above in exclusion of the defendant. The possession of the vendor of the A and B schedule properties continuously uninterruptedly to the knowledge of the defendant right from the year 1976 and further the vendor after having constructed the residential house in the A and B schedule properties has been in physical, settled possession of the A and B schedule properties and lived in the A and B schedule properties to the exclusion of the defendant and to the knowledge of the defendant from the year 1976. The plaintiff submits that vendor further offered to sell the A and B schedule properties to the Bank and agreed to give vacant possession of the schedule properties. The authorities of the bank after having inspected the A and B schedule properties and scrutinized the documents of title which were in custody of State Bank of Mysore agreed to purchase the A schedule property for a total sale consideration of Rs. 70/-lakhs and the B schedule properties for a total sale consideration of Rs. 48/- lakhs free from all encumbrances after discharging the mortgage of the schedule properties existing in favour of State Bank of Mysore, Banashankari Branch, Bangalore.
22. It is further averred that plaintiff is a bonafide purchaser of A and B schedule properties for valuable consideration and has been in settled possession of the same and on 26.11.2002 at about 4 PM. Some officials of the defendant came near A and B schedule properties and informed the plaintiff that the properties will be demolished and they would take possession of A and B schedule properties within couple of days The plaintiff preferred W.P.Nos. 28601-602 of 2002 on 29.7.2002 seeking for a writ of mandamus or an appropriate writ Order or direction preventing the Government and its officials from demolishing the structure of A and B schedule properties and also prayed for an interim Order and interim Order was granted on 27.9.2002. The said Writ Petition was disposed of on 28.10.2002 holding that the matter is covered by the decision of this Court in JOHN B. JAMES AND ORS. v. BANGALORE DEVELOPMENT AUTHORITY AND ANR., ILR 2000 KAR 4134. It was observed that it was open to the petitioner to seek such remedy as is open to him in view of the said decision within four weeks from the date of the Order.
23. It is averred in para-24 as it is clear that the plaintiff is entitled for a declaration that it is the lawful owner of the A and B schedule properties and or in the alternative the plaintiff has been in settled possession and enjoyment of the A and B schedule properties for over a statutory period and has perfected its title in respect of A and B schedule properties. The plaintiff submits that its possession in respect of A and B schedule properties is in accordance with law, as an absolute owner and it is well settled law that even assuming without admitting that the schedule property is unauthorisedly occupied by the plaintiff and its vendor, the legal position in law in so far as to the plaintiff’s possession of the A and B schedule properties is deemed to be settled possession, since the actual physical possession of the A and B schedule properties by the plaintiff and its vendor is open and continuous for over a sufficiently long period to the knowledge of the defendant and in exclusion of the defendant’s possession and thus the possession of the plaintiff of A and B schedule properties is not only settled possession but it is for over a statutory period of 12 years and the plaintiff has thus perfected its title. It is submitted that even a trespasser who is in the settled possession adverse to the owner continuously for 12 years and or over, the right of the true owner gets extinguished and the trespasser has possessory ownership and acquires absolute title to the A and B schedule properties in question and thus the plaintiff has perfected its title in respect of A and B schedule properties and has become the absolute owner of A and B schedule properties. The plaintiff has got prima facie case having been in physical possession and enjoyment of A and B schedule properties as true owner peacefully, openly and continuously in exclusive possession in exclusion of the defendant or any person or persons claiming under it as absolute owner continuously for over a statutory period of 12 years by tacking on with the possession of its vendor. The possession of the plaintiff of the A and B schedule properties is lawful as stated above and it is open, continuous and actual physical possession over a sufficient long period as stated above with the knowledge of the defendant and to the exclusion of the defendant and therefore the possession of the plaintiff in the A and B schedule properties is not only settled possession and the plaintiff cannot be dispossessed by use of force. Therefore the plaintiff and earlier to its vendor have been in continuous, uninterrupted, exclusive possession of the A and B schedule properties to the exclusion of the defendant and thus the plaintiff has perfected its title and has become the absolute owner of the A and B schedule properties. The High Court of Karnataka has held in John B. James and Ors. v. BDA., (ILR 2000 KAR. 4134) that for a person to claim adverse possession against BDA it is 12 years possession that is relevant. It is also averred that it is in physical continuous uninterrupted possession and enjoyment of A and B schedule properties as true owner peacefully, openly and continuously in exclusive possession in exclusion of the defendant or any person claiming under it as absolute owner and to have been in continuous physical possession for over a statutory period of 12 years in exclusion of defendant has its possession is settled possession and it has perfected its title. The plaintiff also submitted that the above narration clearly demonstrate that the plaintiff is entitled for declaration as absolute owner of the A and B schedule properties as per the various documents in its favour and in favour of its vendor and/or having been settled possession and perfected its title in respect of the A and B schedule properties for having been in peaceful, continuous open exclusive possession of the A and B schedule properties in exclusion of the defendant over a statutory period of 12 years. The defendant is not entitled to dispossess the plaintiff from A and B schedule properties or demolish the structure in the A and B schedule properties in view of what is stated above. It is also stated that the cause of action for the suit arose on 26.7.2002 at 4 PM when the officials of the defendant came near the A and B schedule properties threatening to demolish the structure in the A and B schedule properties on 27.7.2002 when the Commissioner of the defendant range up to the Managing Director on the plaintiff threatening to demolish the structure in the A and B schedule properties and on 28.10.2002 when the Hon’ble High Court in W.P.Nos. 28601-602/2002 subsequently in Bangalore City within the jurisdiction of this Hon’ble Court.
24. The relief that is sought for in the suit has already been culled out as referred to above. It is clear from the averment made in the plaint that the filing of the suit was necessitated in view of the fact that the Writ Petition filed by the plaintiff before this Court in W.P.Nos. 28601-602/2002 was disposed of on 28.10.2002 with a direction to seek out the remedy in view of the decision of this Court in John B. James case wherein this Court was considering the status of unauthorised occupants and persons who are in settled possession in respect of the property belonging to the BDA and after considering the decision of the Hon’ble Supreme Court and the decision of this Court, this Court has observed as follows:
“70. Lastly it is also necessary to notice the position of a trespasser who is in peaceful, open, continuous and uninterrupted possession of another’s property, in denial of the title of the true owner, for a long period. Section 27 of Limitation Act, 1963 provides that at the determination of the period limited under that Act, to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. Article 65 provides the period of limitation for a suit for possession of immovable property based on title as 12 years from the date when the possession of the defendant becomes adverse to the plaintiff. Art. 112 provides the period of limitation for such a suit, if filed by or on behalf of the Central Government, or State Government is thirty years instead of twelve years. Article 112 will not however apply to BDA as it is neither the State nor central Government. In NAIR SERVICE SOCIETY v. K. C. ALEXANDER the Supreme Court quoted with approved the following passage from PERRY v. CLISSOLD:
“It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provision of the statute of Limitation applicable to the case, his right is for ever extinguished and the possessory owner acquired an absolute title”.
71. Having regard to the principles laid down in the said decisions, we may conveniently cull out the legal position in regard to a true owner vis-a-vis a trespasser as under;
i) A true owner (even if it is the State or a statutory body) has no right to forcibly dispossess an unauthorised occupant (including a trespasser) in settled possession, otherwise than in accordance with law.
ii) A trespasser or unauthorised occupant in settled possession, can be dispossessed, only in accordance with an Order/ decree of a competent court/ tribunal/authority or by exercise of any statutory power of dispossession/demolition entrusted to the state or statutory authority.
iii) A person in unauthorised possession shall be deemed to be in settled possession, if his entry into the property was lawful or authorised.
iv) A person in unauthorised possession, whose entry into the property is illegal or unauthorised, can claim to be in settled possession, only if he is in open, continuous and actual physical possession over a sufficiently long period, with the knowledge of the true owner.
v) A surreptitious and unauthorised entry into another’s land and stealthy trespasser, will not have the effect of dispossessing the true owner of giving possession to the trespasser. Such acts will lead to settled possession only when the true owner having knowledge of it, acquiesces in it.
vi) Where the trespasser is not in settled possession, all acts of the trespasser in regard to the property will be considered as only attempts to secure possession. The true and rightful owner can reenter and reinstate himself by removing the obstruction or the unauthorised construction put up by the trespasser by using the minimum force. Such action by the true owner will be considered as defending his possession and resisting an intrusion with his property and not forcible dispossession of an unauthorised occupant.
vii) Where however the trespasser is in settled possession and such settled possession adverse to the true owner continues for 12 years, the right of the true owner is extinguished and the trespasser as possessory owner acquires absolute title to the property in question”.
25. The above said averment made in the plaint is considered in the light of the decision of this Court John B. James case. It is clear that the relief that is sought for in the suit by the plaintiff is that he has acquired ownership to the schedule property in view of the absolute sale deed executed by the vendor in favour of the plaintiff on 31.3,1995 and that the defendant had put the plaintiff-vendor in possession of the property on 4.6.1976 and thereafter he had put up construction on schedule properties after obtaining licence and sanction plan and absolute sale deed was also executed in favour of the vendor in respect of the schedule properties by the defendant in 1989. The plaintiff has acquired title to the property. However, having regard to the decision of this Court in John B. James case, the plaintiff has also sought for an alternative prayer that the plaintiff has been in settled possession of the schedule property for more than twelve years and wherefore, in view of the decision in John B. James case the right of the defendant to recover possession of the property is extinguished and the plaintiff as possessory owner acquires absolute property in question. It is claimed in the alternative that the plaintiff and his vendor being in continuous and uninterrupted possession to the exclusion of the owner, the defendant from 1976 have perfected title by adverse possession. It is clear from the relief that is sought for in the suit that plaintiff has sought for declaration that the plaintiff is the absolute owner of A and B schedule properties and or to declare that the plaintiff has become absolute owner of A and B schedule properties by perfecting his title by adverse possession and limitation. The acquisition of title in view of the settled position of law and law of limitation is as per the decision of this Court in John B. James case and there is averment regarding perfection of title by adverse possession. The averment made in the plaint as culled out above would clearly show that there is no merit in the contention of the learned Counsel appearing for the defendant-the applicant before the trial court that the averment made in the plaint does not disclose a cause of action for the relief of perfection of title by adverse possession as it is clear that the only ground upon which the learned Counsel appearing for the defendant contends that there is no averment in the plaint regarding the ingredient for the relief of perfection of title by adverse possession is that the date from which the possession became adverse is not averred in the plaint and there is no averment that the plaintiff has disclaim his title. The said contention is clearly belie by the averment made in the plaint and culled out above which clearly show that there is averment to the effect that the vendor of the plaintiff and after the execution of the sale deed, the plaintiff have been in peaceful possession of the schedule property continuously, uninterruptedly to the knowledge of the defendant from 1976 and wherefore, it is clear that according to the plaintiff as averred in the plaint, the adverse possession the time to be reckoned for the adverse possession will commence from 4.6.1976 itself. It is also averred in the plaint that plaintiff is entitled to tag on the period of possession, continuous and uninterrupted possession of his vendor to prove the title by adverse possession is a question of fact and law which has to be considered during trial and having regard to the averment made in the plaint, it is clear that no ground is made out as averred in the application that the averment made in the plaint does not disclose a cause of action, as the averment made in the plaint as stated above would clearly make out cause of action for the relief claimed in the suit.
26. So far as the ground urged under Order 7 Rule 11(d) is concerned, the only ground that is averred in the application as also contended by the learned Senior Counsel appearing for the defendant before this Court is that, the relief for declaration of title and perfection of title by adverse possession in the alternative are inconsistent and mutually destructive and clearly barred by law. Apart from stating that the relief that is sought for is inconsistent and mutually destructive, there is no averment as to how the suit is barred by law. Under Order 7 Rule 11 (d) the plaint can be rejected when it appears from the statement in the plaint to be barred by any law. It is not specifically averred in the application as to the law which bars the suit filed by the State having regard to the relief claimed by him and as already discussed while considering the contention under Order 7 Rule 11 (a) it is clear that the relief that is sought for in the present suit is that the plaintiff is the owner of the schedule property pursuant to the sale deed executed by the vendor who inturn had acquired title from the defendant. However, having regard to the decision of this Court in John B. James case and also as a matter of abundant caution in the alternative the plaintiff has claimed alternative relief of perfection of title by adverse possession and limitation and wherefore, it is clear that as per the averment made in the plaint, the suit is not barred by any law. The question as to whether the plaintiff can seek alternative relief of adverse possession when he has claimed ownership to the schedule property is a question of fact which has to be considered in detail during the trial. The question as to whether the defendant has perfected his title by adverse possession is also a question of fact which may be decided during trial and at this stage having regard to the averment made in the plaint, it is clear that the averment made in the plaint does disclose a cause of action and is not barred by any law and wherefore, the trial court having considered the contention of the learned Counsel appearing for the parties and the averment made in the plaint has rightly rejected the application filed under Order 7 Rule 11 (a) and (d) of CPC., and the said Order does not suffer from any error of jurisdiction, illegality or material irregularity as the same is justified having regard to the above said averment made in the plaint and for the reasons stated above. However, having regard to the facts and circumstances of the case, it is clear that this is not a fit case for imposing exemplary cost. Accordingly, I answer the point for determination in the negative and pass the following Order:
The revision is dismissed. Order dated 3.1.2003 passed by XVI Addl. City Civil and Sessions Judge, Bangalore City and Sessions Judge, Bangalore City, in O.S.No. 7738/2002 rejecting I.A.III filed under Order VII Rule 11 (a) and (d) of CPC ., is confirmed.
