R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE1T DAY OF OCTOBER, 2021 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.S.A.No.2823/2010 BETWEEN: R N NADIGAR AGED ABOUT58YEARS S/O LATE M P RANGAPPA ADVOCATE RESIDING AT S.S.PURAM TUMKUR – 572 102. ..APPELLANT (BY SRI.B.N.ANANTHA NARAYANA, ADVOCATE) AND:
1. . M/s.B N PADMANABHAIAH & SONS REP. BY ITS PARTNER, B. P. NARAYANA MURTHY SINCE DECEASED NOW REPRESENTED BY ITS PARTNER B.N.LAKSHMISHA M G ROAD, TUMKUR - 572 102. 2 . STATE OF KARNATAKA BY ITS CHIEF SECRETARY VIDHANA SOUDHA, 2 BANGALORE - 560 001. 3 . CITY MUNICIPAL COUNCIL, (NOW MUNICIPAL CORPORATION) REP. BY ITS COMMISSIONER, TUMKUR -572 101. 4 . B R RAMANAND AGED60YEARS S/O LATE B H RANGANATHA RAO KALPANA TAILORS, M G ROAD, TUMKUR - 572 101. 5 . A B VEERABHADRAIAH S/O BASAPPA AGED65YEARS PROP. SUNANDA MOTORS, SHANTHINAGARA, TUMKUR - 572 101. 6 . P C SHIVANNA S/O CHANNAMALLAIAH AGED51YEARS PROP. SSRTS MOTORS, BEHIND TGMC BANK LTD., VINAYAKANAGAR TUMKUR - 572 101.
7. THE PRINCIPAL GOVERNMENT FIRST GRADE COLLEGE BH ROAD, RAILWAY STATION LINK ROAD, TUMKUR – 572 101. ..RESPONDENTS (BY SRI.S.N.PRASHANTH CHANDRA, ADVOCATE FOR C/R-1 THROUGH VC, SMT.T.H.SAVITHA, HCGP FOR R-2, HARNAHALLI LAW PARTNERS, FOR R-3, 3 SRI.N.A.MADHUSUDHANA, ADVOCATE FOR PAVAMANA ASSOCIATES FOR R-4 TO R-6) THIS RSA IS FILED UNDER
ORDER100OF CPC AGAINST THE
JUDGMENTAND DECREE DATED:31.08.2010 PASSED IN R.A.No.478/2009 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-II, TUMKUR, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENTAND DECREE DATED:28.02.2007 PASSED IN O.S.No.505/1989 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN), TUMKUR. THIS RSA COMING ON FOR FURTHER DICTATION THIS DAY THROUGH VIDEO CONFERENCING THE COURT DELIVERED THE FOLLOWING:
JUDGMENTAppeal is directed against the Judgment and decree passed by the learned Presiding Officer, Fast Track Court-II, Tumkur on 31.08.2010 in R.A.No.478/2009 (old R.A.No.67/2007), wherein the appeal preferred under Section 96 of CPC came to be allowed and Judgment and decree passed by the learned Principal Civil Judge (Jr.Dn.), Tumkur in O.S.No.505/1989 dated 28.02.2007 was set aside and suit of the plaintiff was dismissed. 4
2. Being aggrieved by the judgment and decree passed by the learned Appellate Judge, the plaintiff No.3 has preferred this second appeal.
3. In order to avoid repetition and overlapping, the parties are addressed in accordance with their ranks and status as stood before the trial Court.
4. The original suit was filed in O.S.No.505/1989 by the following persons, namely, (1) H.R.Gundurao, (2)T.L.Thimmappa, (3) R.N.Nadigar, (4) G.Sivasangarya, (5) T.B.Hanumanthaiah, (6) Narayanappa, (7) Narayanamurthy, (8) T.B.Ramakrishna, (9) Balaraju, (10) Nayeemkhan, (11) T.R.Yadugiri, (12) Muneer Ahamed, (13) Dr.T.D.Devarayulu, (14) M.S.Narasimhan, (15) T.R.Puttaswamy, (16) Shantaraman, (17) Prakash, (18) T.G.Nagaraju, (19) Yekanthasetty, (20) Imthiaj Ahamed, (21) G.P.N.Kumar, (22) Ramanna, 5 (23)Hanumantha Rao, (24) R.Mukundaraju, (25)Jancheluvaraju, (26) Mohanbabu, (27) Sureshbabu, (28) T.A.Srishila, (29) N.Mallappa, (30)M.C.Rudrappa, (31)M.S.Venkoba Rao, (32)K.Ramachandranaik, (33)A.V.Shambu, (34)H.Chennamallaiah, (35)T.S.Devendrakumar, (36)G.H.Paramasivaiah, (37) K.M.Rangappa against defendants viz., (1) B.N.Padmanabhaiah and sons, (2)City Municipal Council, (3)Government of Karnataka, by its Chief Secretary, (4) B.S.Niranjan, (5) D.Aruladas, (6) B.R.Ramananda (7) Satyaprasad, (8) G.P.Parswanath, (9) A.B.Veerabhadraiah, (10) Kapanipathy, (11) P.C.Shivanna, (12) Ravikumar, (13) S.B.Shetty, (14) John, (15) D.M.Chittaranjan, (16) P.Lakshmana, (17) T.N.Sudarshan, (18) Abdul Hameed, (19) G.S.Chandrashekar and (20) P.Subramanyaswamy. 6
5. The suit was filed in representative capacity under Order I Rule 8 of CPC. After initial formalities, the suit was registered and allotted No.505/1989 on the file of Civil Judge (Jr.Dn.), Tumkur. The substance of the case of the plaintiffs is that they claim that they are filing this suit in public interest and not for their personal gain.
6. The suit schedule property as stated is land bearing Sy.No.81/1 measuring 6 acres 30 guntas. The subject matter of the present suit is 15 guntas of land measuring East to West 135 feet and North to South 118 feet with structures. The plaintiffs 1 to 4 are the students of Government Higher Secondary School and known as Government Junior College, Tumkur, at the time of filing of the suit. 7
7. The plaintiffs claim to have approached the concerned authorities to get their grievance redressed to safeguard the public interest, but they failed and hence they filed the suit.
8. Survey No.81 of Tumkur Kasaba, totally measured 7 acres 15 guntas of land, out of which 15 guntas was acquired by the Indian Railways, 5 acres 3 guntas remained in the khatha of Syed Mohamed Bokhari and 1 acre 37 guntas remained in the khatha of Lenkey. The Government took over 2 acres 22 guntas from the khatha of Syed Mohamed Bokhari and 1 acre 10 guntas from the khatha of Lenkey as per G.O.No.916-18/M/31-32/34 dated 10.09.1919. In respect of the said lands, revenue/kandayam was not paid to the Government and they were resumed by the Government for non-payment of land revenue and thereafter they were reflected as Government land. 8 Objections were called for from the public giving two years time and no objections were received. Hence, in the year 1933-34 record of rights and index of lands were prepared. Sy.No.81 was phoded into two numbers as 81/1 - 6 acres 30 guntas and 81/2 - 10 guntas. This 6 acres 30 guntas of land is shown as Town Extension, means land belonging to Government High School compound, etc. Sy.No.81/2 is shown as land belonging to Makam Ramaswamy Setty.
9. Out of Sy.No.81/1, 6 acres 30 guntas - 19 guntas is shown as road leading from Railway station to Someswarapuram and remaining 6 acres 11 guntas is shown as High School compound.
10. It is also claimed that there was a claim by one Mohiddin Bibi got the land of 2 acres 4 guntas restored in her name on 31.03.1960 as the legal representative of Syed Mohamed Bokari. 9
11. One Sri. C.K. Gopal Rao, Secretary of Sarvodaya High School purchased this land and also formed a layout with sanction on 23.12.1968 for 3 acres 15 guntas. Then they attempted to enter possession of the land belonging to Government High School.
12. The Head Master of the Government High school moved the matter before the Taluka Magistrate, who passed a prohibitory order in NCR2269-70 dated 25.10.1969 - Ex.P.2 against C.K. Gopala Rao, Mohidin Bibi, Lakshmiram, Contractor, Krishnamma wife of Lakshmiram, Chowdri Abdul Razak Sab, Ramaswamy Setty, President, CMC and Chief Officer, CMC, Tumkur. Against that the said order C.K.Gopal Rao preferred an appeal in case No.Rev.18/71(Lr) before the Karnataka Appellate Tribunal. However, the said appeal came to be dismissed on 28.01.1971. 10
13. The Head Master, Government High School, Tumkur made an application before the competent authority in the year 1970 for cancellation of measurements effected in Sy.No.81/1 and cancellation order was passed by the Tahsildar in RRT No.27/72-73 dated 11.05.1972 marked as Ex.P.11.
14. On 12.12.1969 the Head Master made an application before the Deputy Commissioner to suspend the resolution dated 23.12.1968 sanctioning 3 acres 15 guntas of land in favour of Sarvodaya High School. The Deputy Commissioner suspended the resolution by his order dated 12.02.1970 in No.MUN.238/69-70. Against the said order Sarvodaya High School went in appeal before the Government of Karnataka in HMA68TDI70dated 10.04.1970. The order of the D.C was confirmed by the Government. The Head Master preferred an appeal before the 11 Deputy Commissioner for cancellation of restoration of phada made in the name of Mohiddin Bibi against the orders of the learned Assistant Commissioner, passed in R.Mis.49/58-59 dated 31.03.1960 in Appeal No.465/69-70 and the said appeal was allowed on 09.11.1973 and the matter was remanded to the Assistant Commissioner. The Sarvodaya High School filed a suit in O.S.No.121/1973 for declaration and possession. Subsequently, the said suit was withdrawn on 14.08.1981. Subsequently, Sarvodaya School filed fresh suit in O.S.No.268/1981 for declaration of title and possession. The said suit was dismissed on 14.11.1988.
15. Regular Appeal No.117/1988 was preferred against the judgment and decree passed by the learned Civil Judge (Jr.Dn.) in O.S.No.268/1981 dated 14.11.1988. The said appeal was allowed on 21.01.95 setting aside the Judgment and decree dated 12 14.11.1988 and O.S.No.268/81 came to be decreed. Against which RSA No.1156/95 was preferred by State of Karnataka and others and RSA No.1260/95 was preferred by the Head Master, Government Higher Secondary School being aggrieved. The appeals came to be allowed and matter was remitted to the first appellate court on 06.08.1998. The Regular Appeal No.117/1988 came to be dismissed on 23.02.1999.
16. Being aggrieved by the said judgment and decree in R.A.117/1988 dated 23.02.1999, the plaintiff - Sarvodaya School preferred Second Appeal before this Court in RSA No.349/1999 which came to be dismissed on 28.06.2005.
17. For the sake of convenience, I hereby refer the legal proceedings initiated by Sarvodaya School from O.S.No.268/1981 till RSA No.349/1999 as similar 13 proceedings in respect of Sy.No.81/1 i.e. to the extent of 2 acres 4 guntas.
18. The defendants in the present suit O.S.No.505/1989 filed written statement denying the plaint averments and defendant No.3- contended that the defendant No.1 was never in possession of the suite schedule property till 1985. However, the defendant No.3 admitted the averments of the plaintiffs in paras 1 to 10 and prayed for decreeing the suit of the plaintiffs.
19. The learned trial Judge on the basis of pleadings framed the following issues and answered them as under : “(1) Whether the description of suit property given in plaint schedule is correct?. (2) Whether the plaintiffs prove that decree obtained by defendant No.1 against defendant No.3 in O.S.80/78 on the file of 14 Munsiff, Tumkur, is not binding on defendant No.3?. (3) If answer to issue-2 is in the affirmative, alternatively, whether defendant-1 proves title over suit property by adverse possession?. (4) Whether plaintiffs are entitled for a declaration of defendant-3’s over suit schedule property as claimed?. (5) Whether the plaintiffs are entitled for a direction to defendant-3 to deliver possession of suit property to defendant-3?. (6) Whether the plaintiff are entitled for permanent injunction as prayed?. (7) Whether the plaintiffs have any locus standi to maintain the present suit?. (8) What decree or order?.” Answer to Issues are as under: Issue No.1 –In affirmative Issue No.2- Partly in negative and partly in affirmative Issue No.3- Negative Issue No.4 and 5 –Plaintiffs are entitle Issue No.6- Does not survive for consideration Issue No.7- Plaintiffs have locus standi to maintain the suit 15 Issue No.8- As per final order 20. Learned trial Judge was accommodated with the oral evidence of PW-1-G.Sivasangarya, PW-2-Nadigar and DW-1-B.P.Narayanamurthy and documentary evidence Ex.P1-Certified copy of the order of Assistant Commissioner in R.A.465/69-70, Ex.P2-Certified copy of the order of Tahsildar in NCR2269-70 dt.25.10.69, Ex.P3- Certified copy of the order of A.C. in R.A.21/73, Ex.P4-Govt. order copy in HMA68TDI70dt.21.11.72, Ex.P5-Index extract pertaining to Sy.No.81/1, Ex.P6-Reorder of right-extract copy- Sy.No.81/1, Ex.P7-Index extract – Sy.No.81/1, Ex.P8- Copy of Index of land – Sy.No.81/1, Ex.P9 – RTC extract for the year 1968-69 to 72-73, Ex.P10-Mysore Revenue Appellate Tribunal copy Cr.No.2274/69 order sheet copy, Ex.P11-Notification copy of the Tahsildar in RRT2772-73 dtd.11.5.72, Ex.P12 – Mysore 16 Revenue (Appellate Tribunal Revision petition No.18/71 dt.28.1/1, Ex.P13-Sy.81/1-Certified copy of the sale deed, Ex.P-14-Certified copy of the notice dated 14.8.81 given by G.S.Rajashekara, Ex.P-15- Acknowledgement copy, Ex.P-16-Notice given to Head Master-Certificate Post acknowledgement copy, Ex.P- 17-Acknowledgement of DDPI, Ex.P-18- Sale deed copy dt.5.8.61, Ex.P-19-Sale deed copy, Ex.P-20- Gazette notification of 1919, Exs.P-21 and P-22- Kathedar extracts, Ex.P-23-Record of rights copy, Ex.P-24- Record of right pertaining to Sy.No.81/1 and 81/2, P-25-Index of land, Ex.P-26-Tippani copy, Ex.P- 27-Tippani copy pertaining to Sy.Nos.81/1 and 81/2, Ex.P-28-E.C.Copy, Ex.P-29-Endorsement copy, Ex.P- 30-Nadavalike of TMC, Ex.P-31-Letter to Executive Engineer, Ex.P-32-Letter to Executive Engineer dated 23.2.63, Ex.P-33-Letter to Head Master, Ex.P-34-Copy of order of D.C., Bangalore, Ex.P-35-Copy of order of 17 Government dt:
21. 11.72, Ex.P-36-Judgment copy in O.S.80/78, Ex.P-37-Decree copy in O.S.80/78, Ex.P- 38-Judgment copy in R.A.2/82, Ex.P-39-Decree copy in R.A.2/82, Exs.P-40 & P-41-Copies of letter of Manager, Canara Bank, Ex.P-42- Order sheet copy in O.S.121/73, Ex.P-43-Copy of letter from Secretary of DDPI to Sarvodaya High School, Ex.P-44-Certified copy of the affidavit of Nithyananda, Head Master, Government High School, Ex.P-45-Judgment copy in RSA34999. Exhibits D-1-Sale deed dated 29.11.1928, D-2-Sale deed dated 18.7.1938, D-3- Memorandum of Revenue Commissioner dt.7.8.1942, D-4-Endorsement dt.26.5.44, D-5-I.L., D-6-Akarbandi extract, Exs.D-7 and D-8-Tippani copies, Exs.D-9 to D-12-Demand Register extracts, D-13-Sale deed dt.7.12.70, D.14-Endorsement, Exs.D-15 to D.17- Assessment register extracts, Exs.D-18 to D-43-26 Kandayam paid receipts, D-44-Endorsement 18 dt.1.9.2004, D-45-Judgment copy in RSA71784, D- 46-Copy of Divisional Commissioner in MUN- R.P.No.40/85-85, D-47-HQA No.ENTCR.278/96-97, D- 48-Vijayavani paper, D.49-Tumkur Varthe paper.
21. Upon conclusion of trial, learned trial Judge passed the following:
ORDER“Suit of the plaintiff is hereby dismissed partly and decreed partly i.e., decree passed in O.S.80/78 on the file of Munsiff Court, Tumkur, filed by defendant No.1 is partly binding effect in respect of the relief of permanent injunction is concerned and partly suit is decreed as the said decree is not binding on defendant No.3 or anybody interested as a rate paying citizens of the State of Karnataka including the plaintiffs as the said suit was not for the relief of declaration. It is also declared that defendant No.3 is the rightful owner of the suit schedule 19 property. Defendant No.3 is entitled to get the possession of suit property from defendant No.1 as per the due procedure of the law. Under these circumstances, I direct both the parties to bear their respective costs of this suit. Draw decree accordingly.
22. It is only defendant No.1-Padmanabhaiah and Sons in the trial court preferred the regular appeal No.478/2009 and only six persons were made the respondents. R.A.No.478/2009 was allowed and Judgment and decree passed by the Principal Civil Judge(Jr.Dn), Tumkur, in O.S.No.505/89 was set aside and suit of the plaintiffs was dismissed. Further insofar as the regular second appeal is concerned one of the plaintiff i.e., plaintiff No.3 before the trial court and respondent No.1 before the first appellate court R.N.Nadigar, 58 years preferred this second appeal 20 against other five respondents in the regular appeal and Padmanabhaiah and sons made as respondent.
23. Basically the suit is filed in a representative capacity wherein the plaintiffs claim that the suit was filed in the interest of public and they are the old students of Government High School as it was so called then and thereafter it came to be called as Government Junior College, Tumkur. Thus, the intermediary or the parties will not have much impact over the case. At the end of the day what remains is whether the plaintiffs in their representative capacity established the case as in similar proceedings in as much as schedule property is concerned. As such the regular second appeal is by plaintiff No.3 and considering the suit was prosecuted by other plaintiffs also and due to their non-participation at the 21 subsequent intervals is not considered fatal to the case.
24. The substantial question of law framed by this court on 23.01.2014 is as under: “The 1st defendant having instituted O.S.80/1978 before the Prl. Munsiff, Tumkur, for permanent injunction in respect of the immovable property in question, arraigning the 3rd defendant- State as a party defendant when allowed by Judgment and decree dated 30.11.1981 permanent restraining the defendant by way of a injunction, while incidentally considering title of the 1st defendant to the said property, though the 3rd defendant did not place material whatsoever over claim to title to the said property, which Judgment and Decree was confirmed by this Court in RSA7171984 by order dated 11.2.1985, whether the Lower Appellate Court was justified in reversing the findings of the 22 trial court to allow O.S.505/1989 instituted by the appellants claiming to have an interest in the immovable property as ratepayers, in a representative capacity, and investing title in the State over the said immovable property?.
25. Learned counsel for both the parties are given hearing before the commencement of arguments and the court modified the substantial questions of law as under:
1. Whether claim of the plaintiff being representative in character is barred by disposal of the suit for permanent injunction filed by defendant No.1- B.N.Padmanabhaiah and sons in O.S.No.80/1978 being decreed in favour of plaintiff on 30.11.1981, R.A.No.2/82 preferred by the defendant being dismissed on 07.04.1984 and R.S.A.No.717/1984 preferred by the defendant being dismissed on 11.02.1985?. 23 2. Whether when a land is forfeited for non payment of revenue and declared as “Phada” leads to forfeiture of right, title, interest and possession of the holder of such land?.
3. Whether such forfeiture of land is evidenced by the order of Deputy Commissioner.
4. Whether the suit is barred by limitation?.
5. Whether the plaintiff being a member of public has locus standi to seek declaration of title and delivery of possession in favour of the Government?.
6. In furtherance of question No.5 –Whether an individual claiming public interest is not bound by the doctrine of resjudicata. Whether the disposal of suit filed by Sarvodaya High School, Tumkur, in O.S.No.268/81 being dismissed on 14.11.88, R.A. No.117/88 filed by plaintiff therein being dismissed on 23.02.1999 and RSA24No.349/1999 filed by Sarvodaya High School being dismissed on 28.06.2005 goes against the defendant –Padmanabhaiah and sons?.
7. Whether the participation of the Government High School during pendency of regular second appeal through Order 1 Rule 10(2) CPC absolves the irregularity or defect or lapse in the claim of the plaintiff seeking relief in favour of the Government?.
26. Learned counsel Sri.Ananthanarayana for appellant submits that the public interest and welfare are ignored by the respondents-defendants. The suit schedule property consisting of 15 guntas of land is in the premium locality of Tumkur.
27. The defendants have knowingly and willfully tried to go against the public interest. He further submits that land in Sy.No.81 of Tumkur, Kasaba Hobli, originally belonged to Mohamed Bokari and 25 Lenkey and due to non-payment of arrears of land revenue the said land was forfeited. Thus, the erstwhile holders of the land lost right, title, interest and possession over the same. In this connection the land that was forfeited against Lenkey is 1 acre 10 guntas and Mohamed Bokhari to the extent of 2 acres 22 guntas. Thereby Mohamed Bokhari and Lenkey lost ownership over the schedule property and thereby they were debarred from entering into any transaction connecting disposal of the said property in any manner.
28. The property thus, belonged to Government by any stretch of reality and practicality. The schedule property was disposed of by defendant No.1 - Padmanabhaiah and sons which claimed to have purchased the schedule property from the legal heirs of Lenkey. 26
29. Chikkanna, S/o Lenkey sold it to Chowdri Abdul Haque who sold it to Abdul Razak and legal heirs of Abdul Razak sold it to first defendant. He would further submit that said legal heirs of Abdul Razak claimed to have acquired title from said Abdul Razak who had purchased the schedule property under registered sale deed dated 18.07.1938 from Chowdri Abdul Haque- Ex.D-2.
30. Learned counsel would further submit that said Chowdri Abdul Haque claimed to have derived title from Chikkanna S/o Lenkey by virtue of inheritance from his father. It was emphasized that Chikkanna claims to be legal heir of Lenkey who was holding the land earlier to forfeiture. The emphasis of learned counsel in this connection is when Lenkey at the top of land ownership in number of persons claiming under him where Chikkanna as a legal heir or Abdul Haque, 27 Abdul Razak or the present defendant or subsequent purchaser cannot succeed to the schedule property.
31. Learned counsel Sri.Ananth Narayana would also submit insofar as similar proceedings pertaining Sarvodaya School similar position occurred wherein Sarvodaya High School of Tumkur claimed the relief of declaration of title and other relief in respect of the schedule property in a similar line of derivation of title from the purchasers of the property wherein originality was traced to Mohamed Bokhari.
32. Learned counsel Sri.Anantha Narayan submits that the position of Mohamed Bokhari in similar proceedings and that of Lenkey in the present proceeding stood on a common pedestal as each of the subsequent claimants of the schedule property under them claim that one set under similar 28 proceedings were from succession and is under Mohamed Bokhari and insofar as present proceedings is under Lenkey.
33. Learned counsel would submit that appellate Judge got himself confused with the nature and legal position involved in the subject matter and also came to a overriding conclusion by reasoning that the dismissal of suit filed by Sarvodaya School goes against the plaintiffs. However it is diagonally opposite. He would further submit that insofar seeking declaration for defendant No.3 is concerned it is not beyond the scope of the suit as it is not a private suit claiming private relief.
34. Learned counsel would further submit that when the Government is the deserving beneficiary automatically the relief goes to public and schedule 29 property is a public property. The defendant or any other private individual cannot claim title over the same.
35. He would further submit that any number of documents have come into existence between or among the parties claiming under Lenkey in this proceedings cannot have any overriding power over the title of Government or any other public in respect of the schedule property.
36. Learned counsel Sri.Anantha Narayana submits insofar as in similar proceedings Sarvodaya had claimed ownership under Mohamed Bokhari and filed O.S.268/81 that came to be dismissed on 14.11.88. Thereafter the connected Regular Appeal No.117/1988 came to be dismissed on 23.02.99 and RSA preferred by Sarvodaya High School in RSA No.349/99 came to 30 be dismissed on 28.06.2005 and thus, finally binding effect of rightlessness of Sarvodaya School has been upheld till this court.
37. Learned Counsel Sri.Prashanth Chandra for respondent/defendant –Padmanabhaiah and sons now represented by Lakshmisha would submit that the property belonged to Padmanabhaiah and sons legally and absolutely.
38. They traced their title originally from Lenkey and the ownership of Lenkey at a particular point of time earlier is not disputed. The schedule property is claimed to have been forfeited in favour of Government due to non-payment of arrears of land revenue by Lenkey in respect of schedule property is not true. On the other hand no such forfeiture was effected. 31
39. Learned counsel would further submit that in the similar proceedings originally one Mohamed Bokhari was the owner of the schedule property. After the death of Mohamed Bokhari his wife Mohiddin Bibi, inherited the same and sold it to Sarvodaya High School. Thus whatever title, interest and possession over the schedule property in favour of Mohamed Bokhari passed on to Mohiddin Bibi.
40. Learned counsel Sri.Prashanth Chandra would submit that if Sarvodaya School has not challenged the outcome that cannot be called as binding in law on this defendant as the doors not finally closed because non preferring of the appeal or further proceedings by Sarvodaya school cannot or will not shut the door for this defendant. 32
41. Insofar as points that are amply clear in this matter is as under: (1) the holding of land by Lenkey and Mohamed Bokhari in Sy.No.81 is not disputed. Though the contention of the plaintiffs in the representative suit is that the land was held by either Lenkey or Mohamed Bokhari only till proceedings of forfeiture was effected. When the lands were forfeited for non payment of revenue and it was notified that land became `phada’ and reverts to the Government. It is in this connection the Government should have claimed according to plaintiffs. (2) The previous round of litigation pertaining the suit schedule property and in the present suit reflected that 15 guntas of land is claimed to be Government land available for public purpose could not have been claimed by defendant No.1 –Padmanabhaiah and 33 Sons. Thus, if Padmanabhaiah and sons have acquired title from their immediate purchaser, the legal representatives of Abdul Razak in a valid manner, the plaintiffs in any capacity cannot claim the title of Padmanabhaiah and sons. In this connection the doctrine that requires to be examined is doctrine of non alienation. In other words latin maxim Nemo Dat Quad Non Habet which means no one can convey better than what he has.
42. In other words if Razak had no title to sell the property to Padmanabhaiah and sons the former could not have sold it to defendant No.1. It is stated that Razak purchased the property from one Chowdri Abdul Haque who had no title to convey to Razak. Insofar as Chowdri Abdul Haque could not have purchased the schedule property from Chikkanna, S/o Lenkey for the very reason that he could not have inherited the 34 property from Lenkey against whom land is forfeited to Government. The significant point would be whether at any point of time land was forfeited to the Government for non payment of revenue and land became phada. If the answer is in the affirmative Government alone would be the owner of the property as it is a process of forfeiture wherein ownership of a property is stripped from holder of the same due to non payment of arrears of land revenue. It is well within the domain of Government. In this connection the bone of contention between the parties include plaintiffs claiming that the land forfeited in the year 1919.
43. The learned appellate Judge observed in paragraph 11 of the Judgment about the claim of the plaintiff wherein land was resumed by the Government due to non payment of arrears of land 35 revenue to the Government by Lenkey and Mohamed Bokhari. It is also observed that in the preliminary register maintained by the Government the land of Mohamed Bokhari and Lenkey was shown as Government land.
44. The Head Master made application to the Deputy Commissioner on 12.12.69 for suspending resolution dated 23.12.68 and cancellation of restoration of phada in the name of Mohiddin Bibi. At this stage it is necessary to bear in mind that restoration of land in the name of Mohiddin Bibi comes into consideration by virtue of claim of the land having inherited from Mohamed Bokhari. Further the plaintiffs 1 to 4 i.e., old boys association also got impleaded to the said representative suit. The same will have cumulative effect. 36
45. The Deputy Commissioner suspended the resolution in his order dated 12.2.1970 in No.MUN.238/69-70. Against this order the Sarvodaya School went in appeal before the Government of Karnataka in HMA68TDI70dated 10.4.1970. The order of DC was confirmed by the Government. Sarvodaya High School filed O.S.No.268/81 for declaration of title in respect of the land stated to have been purchased by them. The result and impact of the case will be discussed later.
46. The defendant No.1-Padmanabhaiah and sons – represented by B.P.Narayana Murthy filed suit for permanent injunction in the year 1978. Said suit O.S.No.80/78 in respect of schedule property bearing No.2/1319 (old) 2532/1761 (new) measuring East to West 135 feet North to South 118 feet which has come within the municipal jurisdiction. Said suit 37 O.S.No.80/78 was filed by defendant No.1 which literally means and includes Padmanabhaiah and sons for the relief of permanent injunction in respect of the suit schedule property. However the said Padmanabhaiah and sons in that suit sought for amendment of the relief to include declaration of title. Said application was allowed and suit become one for permanent injunction and declaration of title. However in the later stages Padmanabhaiah and sons –plaintiff in that case filed a memo for getting the relief of declaration deleted or dismissed as not pressed on 05.12.79. It is in this connection again suit become one for permanent injunction alone. In this connection the recitals in the Judgment in O.S.No.505/89 is necessary to be observed and is as under: “In view these undisputed fact with regard to the earlier suit filed by present defendant No.1 as against defendant No.3 38 only for the relief of permanent injunction, but at the same time it is pertinent to note that present defendant No.1 had not sought for the relief of declaration in O.S.80/78 and also the Government has not filed any suit for declaration of title after disposal of suit in O.S.No.80/78 order after disposal in R.A.2/82 and RSA71784 so far. It is further pertinent to note that D.W.1 admitted during his cross- examination that though he filed suit in O.S.80/78, against P.W.D Authority and two others, in which he had filed application for adding the relief of declaration which was not sought for earlier and therefore, by way of amendment, it was sought for and subsequently present defendant No.1 who was plaintiff in O.S.80/78 filed memo stating that the relief of declaration by way of amendment was not pressed for.” 39 47. O.S.No.80/78 ultimately came to be decreed on 30.11.81 and R.A.No.2/82 was preferred by Executive Engineer, PWD and Chief Secretary, Government against the Judgment in O.S.No.80/78 and said appeal came to be dismissed on 07.04.84. (Ex.P-38).
48. Being aggrieved by the Judgment and decree in R.A.No.2/82, RSA No.717/84 was preferred by the Government and Executive Engineer, PWD authorities and Chief Secretary, Government before this court and same also was dismissed. Thus, the decree in favour of Padmanabhaiah and sons for permanent injunction passed in O.S.No.80/78 became final and conclusive. It is necessary to consider whether the disposal of the suit O.S.No.80/78 is hit by the doctrine of Resjudicata. 40
49. The rights of the parties would be adjudicated as standing on the date of filing of the suit in O.S.No.80/78. If the matter in controversy was finally adjudicated between the same parties or persons claiming under them in respect of the same subject matter wherein the subject matter involved was direct and substantial in question. The words as mentioned in Section 11 CPC is as under: “11. Res Judicata – No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.” 41 50. If the doctrine of resjudicata attracts the present suit there will be a threshold bar for prosecution but the question to be considered herein any way the matter is substantial in question insofar as suit O.S.No.80/78. In this connection said O.S.No.80/78 though it is in respect of the same property the relief sought for in the said suit is for permanent injunction. The scope of the present suit is declaration however, in favour of the Government. At this juncture it is to be remembered that the defendant in the said case was Government alone. Further it should be between the same parties. In this connection same parties means Government and parties claiming under them and Padmanabhaiah and sons defendants claiming under Padmanabhaiah and sons and other parties for representative suit. Suit is filed for seeking relief in favour of the Government but technically it is between same parties, Government and Padmanabhaiah and 42 sons but the question involved is whether the matter was finally decided then the answer is in negative for the very reason title was not the subject matter of the dispute because if the title is discussed by the court unless on that aspect issues being framed, parties are given opportunity to lead evidence, cross examine thrashing out the matter in full.
51. A declaratory suit cannot be equated to suit for permanent injunction in the facts and circumstances. Further earlier suit was filed by Padmanabhaiah and sons as the owner of the property. On the other hand present suit is filed in the representative capacity. Public interest always overtakes the individual interest and even regarding nature of the suit which differs more over matter involved is same as it has not been fully covered. However, the prime bone of contention between the parties in the suit is phada land resumed 43 to the Government are never canvassed in the earlier suit. In considering the applicability or non applicability of the doctrine of resjudicata it has to be considered very meticulously as it may not go on face value by reckoning nature of the suit as to declaration of title and subsequent suit of declaration of title is barred. Question is whether issues are same, bone of contention, the ratio that decides the case. Mere pendency of a suit cannot decide as to whether it is hit by resjudicata or otherwise. In a civil suit whether matter is resjudicata or not can be assessed only after issues are framed in the subsequent suit. As in case of criminal case after charge is framed, it will be known as to whether it is subjudice.
52. Next one is considering proceedings in respect of Sarvodaya School, whether adjudication of the matter in a suit filed by Sarvodaya can be regarded as 44 exclusive factor for deciding the present case. In this connection the original owner of the property Lenkey in this case stand in the same platform and same pedestal to that of Mohamed Bokhari regarding major portion of land compared to schedule property. The difference is procedure. Sarvodaya School filed suit for declaration of title in O.S.No.268/81 against the Government and the said suit was dismissed. Schedule property in that case is land to the extent of 2 acres 4 guntas in Sy.No.81/1, Kasaba Hobli, Tumkur. That suit came to be dismissed on 14.11.88. Being aggrieved by the said Judgment Sarvodaya School -plaintiff in the said suit preferred R.A.No.117/88 on the file of Principal Civil Judge Senior Division, Tumkur. Said appeal came to be dismissed on 23.02.99. Being aggrieved by the said Judgment plaintiff –Sarvodaya School filed RSA No.349/99 Ex.P-45 and said RSA was dismissed on 45 28.06.2005 and said suit being subject matter of O.S.No.268/81, R.A.No.117/88 and RSA No.349/99 was for declaration of title and injunction.
53. A clarification is necessary to be made at this stage, said RA No.117/88 was adjudicated in second round of proceedings and earlier R.A.No.117/88 came to be allowed on 21.01.95 against which State Government preferred RSA No.1156/95 and Head Master, Government Higher Secondary School, Tumkur preferred RSA No.1260/95.
54. O.S.No.268/81 filed by Sarvodaya School was dismissed on 14.11.88 and plaintiff Sarvodaya School filed R.A.No.117/88 against the said Judgment and decree. The said RA came to be allowed on 21.01.95. It is against said Judgment in R.A.No.117/88 Government preferred second appeal before this court 46 in RSA No.1156/95 and Head master Government Higher Secondary School, Tumkur also preferred appeal in RSA No.1260/95 claiming that they are aggrieved. As both the second appeals were connected to each other by virtue of same Judgment in R.A.No.117/88 the Judgment in both the second appeals were pronounced remanding the matter to appellate court in R.A.No.117/88 for the limited purpose of adjudicating whether the land was resumed to Government after forfeiture and whether the land was Phada.
55. Common Judgment passed in RSA No.1156/95 and RSA No.1260/95 is not filed before this court. However the matter was remanded to the first appellate court in R.A.No.117/88. In that connection second appeal filed by the Government was allowed and it was the turn of the plaintiff –Sarvodaya School 47 to go in appeal before High Court in RSA No.349/99. Judgment of which is available in this case marked as Ex.P-45. It is in this Judgment history of two appeals filed and matter being remanded to the first appellate court and in second round of litigation regular appeal No.117/1988 was dismissed and thereafter RSA No.349/99 was preferred which are discussed and available.
56. Thus, the bone of contention in the suit is that the plaintiffs filed the suit in a representative capacity and their contention is defendant No.1 had no right to the schedule property as it is vested and resumed with the Government. No doubt, the property belonged to one Lenkey at the earliest point of time. It was resumed to the Government because of non payment of arrears of land revenue. It is in this connection, there is an assertion and denial of 48 forfeiture of land. The plaintiffs who are stated to be the old students of Government Junior College is interested in ensuring the property. The objection is right at the beginning that Lenkey’s son had no right over the schedule property as the land by that time was no more under the ownership of his father. The proceedings of forfeiture are not before the Court. What is available is the proceedings before the Appellate Court in the second phase of proceedings.
57. By this time it is clear that the judgment in the suit filed by Sarvodaya High School, Tumkur O.S.268/1981 has no impact on the present case.
58. O.S.No.268/1981 filed by the Sarvodaya High School was dismissed on 14.11.1988 and again Sarvodaya High School filed R.A.No.117/1988 against the judgment and the said R.A.No.117/1988 came to 49 be allowed on 21.1.1995. Against the said judgment in R.A.No.117/1988 Government preferred appeal before this court in RSA.No.1156/1995. Similarly, Head Master, Government High Secondary School, Tumkur also preferred appeal in RSA No.1260/1995 claiming that he is aggrieved. As both the regular second appeals were connected to each other by virtue of judgment in R.A.No.117/1988, the judgment in both the appeals were pronounced remanding the matter to the Appellate Court in R.A.No.117/1988 for the limited purpose of adjudicating, whether the land was resumed to the Government after forfeiture.
59. The relevant portion from the downloaded copy of the judgment in RSA.Nos.1156/1995 and 1260/1995 was made available by learned counsel for the appellant Sri.Ananthanarayana. The same is as under:
50. "For the limited purpose of finding whether there was infact a forfeiture that has been done under the provisions of Revenue code, the matter requires reconsideration. I am remitting the matter back to the first appellate court only to find out whether the forfeiture claimed by the Government is true and whether it was in accordance with the provisions made under the Revenue Code. If the answer is 'yes' then the plaintiff must suffer and if the answer is 'no' then the Government has to suffer. This enquiry must be completed within six months and the Government should see that all the evidences both oral and documentary are produced before the first appellate court within a period of four months from today so that within two months thereafter the court can consider the same. It is made clear that if the Government fails to produce the evidence within four months and the disposal is delayed beyond two months thereafter, then the title of the plaintiff shall stand confirmed and Government claim shall stand rejected.
3. In this view, the matter is remitted to the first appellate court. Office is directed to send the records on or before 31.8.1998 with a specific direction to the first appellate court to dispose of the same on or before 28.2.1999 positively and report such disposal to this court.."
51 60. Thus in so far as the matter reached the first Appellate Court in R.A.No.117/1988 which was adjudicated in the second phase of proceedings and it came to be dismissed on 23.2.1999. Being aggrieved by the judgment and decree in R.A.No.117/1988 Sarvodaya School preferred RSA No.349/1999 that came to be dismissed on 28.06.2005 and downloaded page No.8 is relevant, hence the same is extracted:
"On remand the lower appellate court in RA.117/1988, by its order dated 23.2.1999 having referred to the limited point of consideration on remand, and after giving opportunity to the parties held that the Deputy Commissioner has forfeited the land as is observed in Ex.D1 and that the land has been forfeited for default in payment of land revenue due to thereupon, is deemed to be true. The observation made by the Deputy Commissioner is ex.D1 holds good in pursuance of the order in Ex.D3 and its stands unchallenged and un-rebutted. Further, it is also held that the forfeiture is in accordance with the provisions of the Revenue Code and thus dismissed the appeal field by the plaintiff. Being aggrieved by the above order, this second appeal has been preferred raising several substantial questions of law."
52 Again page No.16 is relevant, the same is extracted:
"On remand to give a finding on the issue regarding forfeiture of the land by the Government for non-payment of arrears of land revenue, the lower appellate court has noted that the petition was made by Mohiddin Bibi w/o Abdul Sab to the Assistant Commissioner and the prayer in the petition was for change of katha of 2.4 acres of land in Sy.No.81/1 i.e., the suit property. The very fact that in the petition, in which government is made a party it was observed that the land belongs to the Government as per the entries in the revenue records, and there was the name of Tumkur Town Extension, as per the original entry at Ex.D9. The land is also shown as 'Beelu'. However, it is seen that when the property was purchased in the year 1917 in the name of Mohiyiddin Bibi as per Ex.P7 from Mohammed Bhokari, Mohiyiddin Bibi has not produced any document to show that the katha was brought to her name and there was payment of land revenue. In other words, the plaintiff who is said to be a purchaser from the sons of Mohiyiddin Bibi in the year 1961, were unable to place any material to show that after purchase of the property by Mohiyiddin Bibi in the year 1917, the katha was entered in the name of Mohiyiddin Bibi and that she had paid land revenue. The documents produced by the 53 plaintiffs in so far as the entries in teh revenue records is based on the erroneous order passed by the Assistant Commissioner in allowing the application filed by the Mohiyiddin Bibi seeking for change of katha in her name. Of course, the said order of the Assistant Commissioner has been reversed in the appeal by the Deputy Commissioner. Of course the entries made in the revenue records based on the order of the Assistant Commissioner have no legal sanctity for the reasons stated above. Except the title deeds of the year 1917 and 1961, no documents are produced by the plaintiff to prove the change of katha from Mohammed Bhokari to Mohiyiddin Bibi immmediately after purchase by Mohiyiddin Bibi in the year 1917 and also no revenue receipts are produced. Unfortunately, as noticed by the Deputy Commissioner in appeal against the order of the Assistant Commissioner, the records of the proceedings regarding change of katha as sought for by Mohiyiddin Bibi were shown to the slot wherein Mohiyiddin Bibi first approached the Tahsildar seeking for change of katha and after its failure, instead of preferring an appeal, as noticed by the Deputy Commissioner, she has preferred an application before the Assistant Commissioner. And the Deputy Commissioner, has held that the order of the Assistant Commissioner and maintainability of the application filed itself was held to be bad."
54 61. The total land that was resumed to the Government in Sy.No.81 to the extent of 2 acres 22 guntas and 1 acre 10 guntas. The operative portion of RSA No.349/1999 wherein the appeal was dismissed is as under:
"In view of the above discussion, substantial questions of law raised has to be held in favour of the respondents/defendants holding that the suit land was forfeited by the Government by way of forfeiture. Hence, the appeal fails. In this appeal, parties to bear their own cost.
62. It is the case of the respondent-defendant No.1 that forfeiture never took place and the land has been absolute and unencumbered right from the beginning. Originally it belonged to Lenkey, thereafter after his death, his son Chikkanna Lenkey inherited from his father and he sold it to Chowdri Abdul Haq under the registered sale deed dated 29.11.1928 at Ex.D1 and Abdul Haq sold it to Abdul 55 Razak under the registered sale deed dated 18.7.1938 marked at Ex.D2. LRs of Abdul Razak sold it to the defendant No.1- B.N.Padmanabhaiah and sons under the registered sale deed dated 7.12.1970 which is at Ex.D13. At the cost of repetition it is observed that if the land was forfeited to the Government by virtue of non-payment of arrears of land revenue/Kandaya it would not be at the disposal of Chikkanna Lenkey to sell it, as he could not have inherited the same from his father Lenkey.
63. In so far as the present appeal is concerned the plaintiffs have filed suit in O.S.No.505/1989 claiming that they are interested in the welfare of the Institution as they have studied their Secondary Education in the said school and they wanted to preserve the property of the School which invariably is the Government property. It is in this connection, 56 the defendants questioned the locus standi of the plaintiffs to seek relief in favour of the Government when the Government has remained passive. Thus when the rights of the property of the Government is deprived they have to be safeguarded and when the Government has not taken active interest they have set the law in motion and even the relief sought by the plaintiffs, in the plaint is as under:
"Prayer for Judgment: The plaintiff pray for a Judgment and Decree: a) For a declaration that the Decree obtained by the 1st defendant in O.S.No.80/78 on the file of the Munsiff, Tumkur is not binding on the 3rd defendant or anybody interested as a rate paying citizen of the State of Karnataka including the Plaintiffs; (b) For further declaring that the 3rd defendant is the rightful owner of the Suit property; (c) For a direction to the 1st defendant to deliver the possession of the suit property tot he Government the 3rd defendant; (d) Deleted as per order dated 24.1.1994; (c) For costs and such other reliefs as the Hon'ble Court deems fit to grant, in the circumstances of the case, in the interest of justice"
5. 64. Regard being had to the fact the Principal, Government First Grade College, Tumkur has made an application to get itself impleaded as respondent No.7 in the appeal and it is not in the personal capacity but as the head of local institution under the Government he has come on record.
65. Insofar as the Principal, Government Junior College is concerned he does not claim separate identity for the land. On the other hand it is part and parcel of Government land. He sought to be impleaded as a respondent and came on record as respondent No.7 regard being had to the fact the Government was defendant No.3 in O.S.No.505/89. Thus, the Government has been on record as a matter of fact in the written statement the Government does not deny the representation claimed by the plaintiffs. Insofar as schedule property is concerned it is their 58 claim that the land belonged to Government after the same being forfeited due to non-payment of land revenue and that schedule land is appropriate for Government Junior College and hence building is brought into existence.
66. To a question to the Government Pleader as to whether is it a rented building or own building, and answer is own building of the Government and they are not claiming under others nor the first defendant.
67. Now the defendant No.1 which is contesting the suit is not present to show that in what capacity or in what manner it got the building constructed. It claims to be owner of the property. It is necessary to clarify that when a person who claimed to be owner of the property having lost the property and when it is vacant land possession runs with ownership and the 59 moment land was forfeited in favour of the Government defendant No.1 did not have a say insofar as forfeiture proceedings are not questioned nor land was given to person from whom they were forfeited.
68. Insofar as forfeiture is concerned the direct document regarding forfeiture is not filed before this court. However the attending circumstances and documents which are no less than proof of forfeiture, establish proceedings was initiated and land was forfeited as against Lenkey and Bokhari as early in the year 1919.
69. Because the land that was forfeited fell in Sy.No.81 of Kasaba Hobli, Tumkur and in the first segment about 15 guntas of land belonged to Lenkey and Lenkey died thereafter his son Chikkanna is said 60 to have inherited the property and he sold it during the year 1928 in favour of Chowdri Abdul Haque who in turn sold it in the year 1938 in favour of Abdul Razak and after the death of Abdul Razak, his legal heirs sold the property to defendant No.1. The question is that Sy.No.81 of Tumkur was forfeited due to non payment of land revenue and proceedings completed. I have stated earlier the copy of the proceedings is not filed. However, materials which establish the forfeiture proceedings is land in Sy.No.81 to the extent of 2 acres 21 guntas claimed by Sarvodaya School, Tumkur as belonged to them having purchased the same from Mohiddin Bibi who is none other than the legal heir of Bokhari. Regard being had to the fact in the year 1919 land was forfeited in favour of the Government. Bokhari under whom Mohiddin Bibi stated to have claimed title had no title to inherit from Bokhari nor she had right to 61 sell the schedule land in Sy.No.81 in favour of Sarvodaya School. It is in this connection the proceedings explained herein above go to show that Sarvodaya School filed O.S.No.268/81 against Government that came to be dismissed against which R.A.No.117/88 was preferred that came to be allowed. Defendant/Government preferred second appeal in RSA No.1156/95 and Head Master Government Higher Secondary School preferred appeal in RSA No.1260/95. It is necessary to clarify the reason for the Head Master, Government Higher Secondary School to prefer the appeal as it appears he felt aggrieved by the order of appellate court in RA No.117/88 as his claim was in similar lines of Government. Said appeals preferred by Government and head Master, Higher Secondary School came to be allowed and the matter was remanded to the first appellate court in RA No.117/88 for the limited 62 purpose of adjudicating whether the land was forfeited against erstwhile holder Bokhari. It is important to clarify if Bokhari or persons claiming under him were successful in establishing the land was not forfeited to the Government the similar position would be that of present case because both the lands are part and parcel of Sy.No.81, Kasaba Hobli, Tumkur. Thus, as the land in said Sy.No.81 was forfeited due to non payment of land revenue as early in the year 1919. After remand by this court in the said two appeals, RA No.117/88 was resumed on examination as to whether the land was forfeited and learned first appellate Judge held it was forfeited against said Bokhari and land was resumed to Government. Being aggrieved by the Judgment in RA No.117/88 Sarvodaya High School went in appeal for the second time in RSA No.349/99 before this court. 63
70. In the peculiar circumstances it is necessary to repeat certain facts insofar as land bearing Sy.No.81 which earlier belonged to Bokhari and Lenkey i.e., portion of Lenkey about 19 guntas and that of Bokhari 2 acres 21 guntas. The said property is stated to be in the heart of Tumkur City. As answered above it is the duty of the Government to safeguard public property.
71. Learned High Court Government Pleader Smt.T.H.Savitha for respondent No.2 submitted that in the earlier proceedings in the suit for permanent injunction filed by defendant No.1 this matter regarding forfeiture was not highlighted because of which suit for permanent injunction came to be decreed in O.S.No.80/78 and RA No.2/82 and RSA No.717/84. In this connection it is necessary to mention that the decree of that case in favour of the 64 plaintiff-Padmanabhaiah and sons as against the Government in a suit for permanent injunction would not take away the rights of the public as it is public property. More over present suit is under Order I Rule 8 in representative capacity whose scope is wider than any ordinary suit. It is always stated individual interest may not given a seat ahead of public interest. However, in the present suit when the title of the Government was not subject to discussion in O.S.No.80/78, in the peculiar circumstances and facts the doctrine of resjudicata has no applicability to the present case.
72. Government First Grade College is a party as respondent No.7. Learned Government Pleader has filed copy of Government Notification dated 18.01.2012 wherein total land allotted to the Government School is to the extent of 5 acres 65 comprising Sy.No.81, Tumkur in respect of which suit schedule property is covered. Thus, no proper representation in the permanent injunction suit and that cannot absolve the facts of the ownership of Government over the property. Insofar as filing of a suit as a representative one is concerned when the Government sits as a mute spectator and when there is ineffective steps by the Government.
73. Members of public has right to pull up socks and stand to the occasion i.e., plaintiffs have done, and whether knowingly or not knowingly innocently or deliberately the Government is tight lipped when land is in prime locality. In umpteen number of cases during trial it requires crucial attention and the matters are neglected for the reasons best known to officials and in this connection it is not heavy job from the officials, who are required to collect and verify the 66 document and furnish parawise remarks or give the document to Advocate. The Government is made soft target in the litigation and by the time citizen would get alerted damage would be done substantially.
74. In this case regarding question of limitation it is in public interest and suit is filed in representative character and the plaintiff interested in the welfare of the institution in which they have studied their secondary education and they wanted to do their bit to the school cannot be ignored and none of the relief claimed by them related to their personal interest.
75. At the end of the day to get the property of the Government in tact for the benefit of public and using it for noble purpose of running educational institution. Suit is filed on 15.06.87. In the facts and circumstances morefully stated above and in the 67 background of litigation more over it was for declaration and plaintiffs were parties and scope of the suit is already stated above. Insofar as concept of adverse possession is concerned defendants blow hot and cold at the same time because at one stretch they claim to be owners of the property as no forfeiture proceedings taken place and at the other stretch they claim that they are in possession. When the acts of possession could be seen to the naked eyes by any passerby school was constructed in the year 1955 and school is running, and acts of possession can be seen and heard loud and clear even in the voice of children who studied there. It is impractical to hold that the defendants can claim through adverse possession and the very act of possession is not seen or evidenced by any of the documents on record or circumstances. 68
76. As already stated plaintiffs are entitled for filing the suit.
77. Any person who drops in the middle for the reasons best known to him cannot reckon Government participation in the appeal as respondent as it neither takes away the right of the defendant nor prejudices the case nor changes its character and on the other hand only helps for adjudicating the relevant matters in controversy.
78. By any stretch of imagination the decree for permanent injunction in O.S.No.80/78 obtained by defendant No.1 against Government is not binding on plaintiffs or public or the institution. The defendant No.3 is the rightful owner of the schedule property and insofar as Defendant No.3 is the Government it is immaterial whether the Government raises to the occasion or keeps quite. In a democratic system the 69 top authority being people plaintiffs have sought for declaration. Insofar as defendant is concerned it is not that it has a case or it has made any act of construction.
79. Insofar as land is vacant and vacant possession follows ownership. As such even if the defendant No.1 claims to be in possession of any portion of the property that possession cannot be recognized in law as it belongs to Government. Thus, the finding of the trial court is not precise and specific regarding decreeing of the suit in part. However the respective portion are set aside and remaining portion are confirmed to mean that the property belonged to Government as sought by the plaintiffs. Learned Appellate Judge seriously erred in understanding the proposition of law and principles pertaining to ownership, presumptive value of the proceedings and 70 their finality and regarding public interest and the said Judgment does not stand the test of reasonability apart from lack of considering question of law. Hence, the said Judgment of the first appellate court is liable to be set aside.
80. Substantial questions of law are answered accordingly.
81. If defendant No.1 were to claim possession it is unlawful and it is bound to deliver possession to Government.
82. Insofar as the vacant possession covered under the suit schedule property it is in possession of the defendant No.3 and even so under doctrine of possession following ownership, if defendant No.1 claims any rights of possession they are unlawful. 71 In the result, regular second appeal is hereby allowed. Judgment and decree passed by the learned Presiding Officer, Fast Track Court-II, Tumkur on 31.08.2010 in R.A.No.478/2009 (Old R.A.No.67/2007) is set aside and suit of the plaintiffs is decreed as prayed for. Further possession of the schedule property consisting of school building is run by the Government. Vacant space if any in possession of defendant No.1 to be delivered to the Government. I.A.1/2020 for substitution of the name of partner of first respondent is allowed. Appellant is permitted to amend the cause title. Sd/- JUDGE Mgn/SBN/GH/AKV