Marcel Louis vs The State of Karnataka

Hari Nath Tilhari, J.—Heard the learned Counsel for the appellant Sri N.B. Bhat and the learned Government Pleader Sri Bharama Gowda for the Respondent.

The present second appeal arises from the Judgment and decree dated 12th December, 1983, passed by Sri S.V. Tilgul, the then District Judge in regular appeal Regular Appeal No. 16 of 1980, dismissing the Plaintiff''s appeal and affirming the Judgment and decree of the Trial Court i.e. Civil Judge, Mangalore, dated 30th September, 1980, passed in O.S. No. 161 of 1974, dismissing the Plaintiff''s suit. It has to be taken note of at this juncture that, this litigation has been prolonged for more than a quarter of century and it has to be given a final touch otherwise, it may continue, even for this present new century, so, I thought it better to hear the Counsels for the parties on merits as, requested by the learned Government Pleader.

The Plaintiff-appellant filed a suit for declaration and injunction vide plaint of the original suit O.S. No. 161 of 1974.

Plaintiff alleged and claimed to be the tenant of patta land shown by the red shade in the plan annexed to the original plaint. The Plaintiff-appellant asserted that, the land on both the sides of his patta land (as, described in Schedule-A and shaded by in red colour in the plan to the plaint) has been in his possession and use since 1936, in his own rights and has perfected title to the land shown by Red shade which is on both the sides of his patta land shown by yellow colour shade. The Plaintiff-appellant claimed to have been in adverse possession for more than 30 years of the said land and to have perfected his title to the said land by adverse possession, that is, the land shown by red shade and existing on either sides of the patta land shown and shaded by yellow colour in the plaint plan.

The Plaintiff''s suit was contested by the Defendant-Respondent. The Defendant denied that, Plaintiff has perfected any right or title over the land in dispute shown by red colour in the plaint plan by adverse possession.

According to the Defendant''s case, the Plaintiff had neither claimed at any time possession or title by adverse possession nor did ever claim his possession to be adverse and hostile to that of the Defendant-Government, instead it admitted the title of the Government to the land and the alleged enjoyment of the said land by the Plaintiff was permissive as Kumaki, for the beneficial enjoyment of his patta land. In paragraph-8 of the written statement, Defendant has stated that, in or about 1963, Plaintiff applied for the assignment of the plaint schedule-A properties in his favour alleging that, adjoining lands to which plaint schedule properties formed kumaki are being cultivated by him on Chalgeni basis under Pattadar. The application for grant of that land made in 1963, by the Plaintiff could not be considered and the land in question formed kumaki to patta lands of Plaintiff and there was no consent of the Pattadar for assignment of the same to the Plaintiff. The Defendant submitted that, their applications had been for assignment of the suit schedule properties on the ground that they formed kumaki to his patta land and he is a Ex-serviceman. The Defendant''s case has been that, the land has been the Kumaki''s to adjoining patta lands in enjoyment and the possession by Pattadar and the enjoyment of the land in dispute howsoever long it may be, it is and has always been permissive and no title by adverse possession could be claimed in respect thereof.

The Trial Court on the basis of the pleadings of the parties framed the following issues:

1) Does the Plaintiff proves that he has perfected title to the plaint ''A'' schedule properties by adverse possession and consequently the Defendant has lost title to the said properties?

2) Does the Defendant proves that the valuation of subject matter of the suit for the purposes of Court fee and jurisdiction is not correct?

3) Does the Defendant prove that the notice given by the Plaintiff is invalid or insufficient or is not in conformity with law?

4) Is the Plaintiff entitled to the declaration and injunction prayed for by him?

5) To what reliefs?

An additional issue was framed on 12.7.1978.-Which read as under:

6) Whether the Bantwal Municipality is a necessary party to the suit and the suit is bad for non-joinder of necessary party?

The Trial Court after a consideration of material answered Issue No. 1, in negative, Issue No. 2, not pressed and answered Issue No. 6, in negative and in view of the finding recorded that, Plaintiff has failed to prove his adverse possession to the suit land, dismissed the Plaintiff''s suit by its Judgment and decree dated 30th September, 1980.

Feeling aggrieved from the Judgment and Decree of the Trial Court dismissing the Plaintiff''s suit, Plaintiff preferred Regular appeal Regular Appeal No. 16 of 1980, and the District Judge, Dakshina Kannada, Mangalore, by Judgment and Decree dated 12th December, 1983, dismissed the Plaintiff''s appeal and affirmed the Judgment and Decree of the Trial Court dismissing the Plaintiff''s suit.

Feeling aggrieved therefrom, the Plaintiff-appellant has come up before this Court in appeal u/s 100 of the Code of Civil Procedure.

The Second Appeal was admitted on 10.8.1994, and the following questions were framed as substantial questions of law:

1) Has the Trial Court erred in dismissing the suit wrongly holding that it is a kumaki land and the Plaintiff could not have been in possession of the land, in question, adverse to the State?

2) Has the first Appellate Court erred in dismissing the appellant''s appeal filed therein being wrongly of the view that the appellant having entered into the land as a lessee or a sub-lessee and is estopped from claiming that he is in adverse possession of the same and also under a mistaken identity of the land in question?

I have heard Sri N.B. Bhat, Counsel for the appellant as mentioned earlier, and the learned Government Pleader Sri Bharama Gowda.

The learned Counsel for the appellant very vehemently contended that the Appellate Court was mislead has erred in taking as if, the land in suit has been the patta land. The learned Counsel further submitted that Court below further erred in holding that the plea of adverse possession was inconsistent, as, a lessee or sub-lessee cannot claim adverse title or title by adverse possession against the landlord. As regards this earlier part of contention as learned Counsel, this contention, there may be some force in the contentions, as the perusal of the Judgment indicates that, upto certain stage, no doubt the Lower Appellate Court assumed, that the land in question is a patta land. But, it has not dismissed the appeal on that ground alone.

The Lower Appellate Court in Paragraph-17, has taken note of the lands subject-matter of dispute. It will be appropriate to quote para-17, of the Judgment of the Lower Appellate Court which reads as under:

Even the subsequent conduct of the Plaintiff rules out the possibility of his being in adverse possession of the property right upto the date of the suit. When the Government thought of granting these lands to one Jockim Lobo, Plaintiff objected to the same. While objecting Plaintiff did not contend that he had perfected his title to the suit properties. The objection filed by the Plaintiff before the Government on 11.6.1971, and the Government have produced the same as Ex.D-1. While objecting for the assignment of suit survey numbers in favour of Jockim Lobo the Plaintiff has stated in his objection-statement Ex.D1 as under:

I understand that proceedings are being taken to assign plots S. Nos. 86 and 89 and S. No. 83/5 of Ponemangalore Village to one Sri Jockim Lobo in K.DR. 26/66. I strongly object to the assignment of the said lands to him. The said plots are direct kumaki to the lands situated in Ponemangalore Village described herebelow which are in my possession and enjoyment as a protected tenant of which are being cultivated by me, namely,....

On the face of these admissions, it is impossible to accept the case put up by the Plaintiff that he was in adverse possession of suit schedule properties right from 1936.

These observations very clearly reveal that, the Court has affirmed the finding of the Trial Court with respect to suit scheduled properties taking the view that, the Plaintiff himself had applied for grant of said land on darkast and not to grant it to Jockim Lobo, and it is very clearly mentioned in Ex.D2, dated 11.10.1971, that he has already applied for grant of these kumaki lands in his favour, as early, as on 25.6.1963. He has not received any orders regarding the same so far. Therefore, the Court had in mind the question that, the land in dispute was really, kumaki land and the present Plaintiff accepted the title of the Government and wanted the Government to grant it to him and on that basis primarily, the Appellate Court has affirmed the finding of the Trial Court on the question, that Plaintiff has failed to establish his title by adverse possession over the suit scheduled properties. As such, the finding on question of adverse possession has been recorded in negative affirming the finding of the Trial Court in the context of the suit scheduled property which had been Kumaki land.

The Appellate Court has affirmed the Judgment of the Court below simply on the ground, that Plaintiff could not claim adverse possession with respect to suit land. So in my opinion, the decree of the Lower Appellate Court cannot be said to suffer from error of law of any substantial nature.

The second question, that had been framed; Whether the land has been kumaki land. It is own Plaintiff''s admission, as per Ex.D1, as to nature of land in dispute and on the basis of material on record and Plaintiff''s own admission it has been found and held by the two Courts below, that the plots situated on both the sides of his patta land were kumaki land. When Plaintiff- appellant himself admitted, that the land in dispute to be kumaki land, it cannot be said that the Courts below either the Trial Court or the 1st Appellate Court committed any error of law muchless any substantial error of law, in arriving at a finding, that the subject-matter of suit, viz., mentioned in schedule has been the kumaki land. Further, as found by the Trial Court, and Lower Appellate Court until 1963, the Plaintiff admitted not only the land in suit to be kumaki land, but admitted ownership of the Government over the said land as per evidence on record vide Ex.D2, dated 11.10.1971, as well so by mere user of that land by Plaintiff it will not lead to accrual of title by adverse possession it has rightly been held the Plaintiff failed to prove his title by adverse possession. That under the Rules, kumaki land is mentioned and is allocated or reserved for and is taken under rules to be one for permissive user for the purpose of beneficial enjoyment of the patta land to which it attached or appurtenant.

It will be appropriate to mention that para-40 of the Standing Orders of Madras Board of Revenue wherein Kumaki land is defined, as under:

Kumaki land is a Government waste land within 100 yards of assessed land included in a holding formed prior to Fasli 1276. Kumakidar is a person who is entitled to enjoy the kumaki privilege. A kumakidar is necessarily either the registered holder, walawargdar or mulgenidar of the land to which the kumaki privilege is attached. A kumakidar''s privileges in the land are grazing his cattle cutting and collecting leaves, timber and other forest produces for his agricultural and domestic purposes.

In the case of State of Mysore and Others Vs. K. Chandrasekhara Adiga and Another, , their Lordships of the Supreme Court have been pleased to observe and lay it down as under:

The District of South Kanara was, before the reorganisation of States in 1956, a part of the State of Madras. There are peculiar land tenures in that District. Warga formed prior to Fasli year 1276 (corresponding to 1886 A.D.) are termed as ''Kadim warg'' lands and the Government-owned waste lands within 100 yards of such wargs, are called ''kumki lands''. Owners of the ''warg'' lands enjoy certain privileges in respect of ''kumki'' lands. Such privileges include the use of ''kumki'' lands for grazing cattle, cutting and collecting leaves, timber and other forest produce for agricultural and domestic purposes of the kumkidar. These privileges are regulated by rules framed u/s 26 of the Madras Forest Act (hereinafter referred to as the Rules). They are not alienable except with the land to which they are attached. No trees of the kind declared ''reserved'' trees (excepting of mango and tamarind) can be cut by the wargdar from the kumki land without a permit issued by the Forest Officer or other person authorised by the Collector. Under these Rules, the Collector may on occurrence of abuse or violation of the Rules, by order in writing for reasons to be recorded suspend or withdraw all or any of the privileges of ''kumki'' from individual or from whole village. If an offence is committed in a ''kumki'' land by reason of any negligence or default on the part of Kumkidar, the Collector may, after recording reasons, impose a penalty by way of fine, not exceeding Rs. 200/- on the kumkidar. Rule 5(a) provides, inter alia, that the kumkidar has a preferential claim of the assignment of the ''kumki'' land subject to predominant public interest.

A reading of this decision reveals that, Kumki rights to the kumki lands, the privilege stands in favour of owner of Warga land to make use of that for the purposes ancillary to the tenure land or patta land, and therefore, the user and possession of the land, namely kumki land is always in the nature of permissive privilege of the holder of patta land. That being permissive in nature, in my opinion no doubt, it can be said that, the person entering into permissive possession or user of the land is debarred from claiming title by adverse possession to the land, in the enjoyment of which he has been in permissive nature.

Thus considered, in my opinion, the Judgment and decrees of the Courts below cannot be said to suffer from any error of law, muchless the substantial error of law, in my opinion, the Judgments and Decrees of the Courts below do not suffer from any error of law and what is to say of substantial error of law. As such, the appeal is devoid of merits and is hereby dismissed. Parties to the appeal to bear their respective costs.