1. The appellant, having suffered a decree in O.S.No.365 of 1976 on the file of the Principal First Munsiff, Mysore, and being unsuccessful in his challenge to that decree before the Civil Judge, Mysore, in R.A.No.55 of 1980 on the file of that court, has preferred this second appeal questioning the correctness of the findings of those two courts. The respondent herein was the plaintiff in the trial Court and respondent in the first appellate Court.
2. The plaintiff's suit was for a permanent injunction restraining the defendant from interfering with his possession and enjoyment of the suit schedule property. His case was that the plaint site had been granted to him by the City Improvement Trust Board, Mysore (Board); that possession of the same had been handed over to him on 25-5-1975; that since then he was in peaceful possession of the same; that he was making arrangements to put up a house; that the defendant had no manner of right, title or interest over the same; that inspite of it he was trying to encroach upon the site and was trying to put up a shed therein; and, therefore, was required to be restrained by an order of injunction.
3. In his written statement the defendant denied the plaintiff's claim that he had been granted this site, had obtained possession, and was in possession as claimed. He disputed the very identity of the site. He further pleaded that the description of the suit property, as given in the plaint, was incorrect; that it was not a mere site; that there existed a structure on it; that it belonged to a certain Sharadamma; and that, having obtained a usufructuary mortgage of that property on 24-11-1958, he was in possession of the same as a mortgageee.
4. The Munsiff, framed three issues. The Ist issue was as to whether the plaintiff was in lawful possession of the plaint property; the 2nd was as to whether the defendant was unauthorisedly trying to interfere with the plaintiff's possession, and the 3rd was a general one. On the plaintiff's side the plaintiff got himself examined as P.W.1 and examined two witnesses and Assistant Engineer of the Board as P.W.2 and the then Land Acquisition Officer of the Board as P.W.3; on his side the defendant got himself examined as D.W.1 and closed his case. The Munisff held in favour of the plaintiff on the first two issues and granted a decree in his favour as sought for. The learned Civil Judge has confirmed these findings in the appeal referred to above.
5. Challenging those findings the learned counsel for the appellant made these submissions :
(I) that there was unimpeachable evidence on record to show that his client was in possession of the site and, therefore, the Courts below had erred in granting injunction in favour of the plaintiff and against the appellant defendant;
(ii) That the first appellate court, having appointed a Commissioner and having obtained a report, had denied an opportunity to his client to explain away the report of the Commissioner whose opinion was adverse to his client and that report has unfortunately been taken into consideration by the Court below and therefore, at least to this limited extent the matter has to be remitted to the first appellate Court with appropriate directions; and
6. In response to the aforesaid submissions the learned counsel for the respondent - plaintiff submitted firstly that the concurrent finding of the courts below that his client was in lawful possession of the site in question was a finding based on appreciation of facts and therefore was not liable to be disturbed in this second appeal; secondly, that the site, which formed part of a larger area, was a land which had been acquired under the Land Acquisition Act, 1894 (the Act) as amended by the Karnataka Act No.17 of 1961 (the Acquisition Act) and thereby came to be vested absolutely in the State Government and, having been acquired for the Board, had been transferred to the Board and the Board having formed number of sites in this area, had allotted one such site - the property in question - to his client and that, in the circumstances, whatever rights the defendant may have had in this property had been wholly extinguished and he was estopped from contending that he was still in possession of this property; thirdly, that it was at the instance of this appellant the first appellate Court had appointed a Commissioner and if he was interested in challenging the Commissioner's report, should have taken necessary steps in that regard and that inspite of number of opportunities having been provided to him in this regard, he had not availed of the same and, therefore, his request to remit the matter, to provide him with such an opprotunity, should not be countenanced; fourthly, besides this, even if the report of the Commissioner is ignored and not taken into consideration, the other evidence on record itself would be sufficient to hold against the appellant and, therefore, there was no need to remit the matter to the first appellate court as that would un necessarily protract this litigation; and lastly, he submitted that, since his client was not a party to any of those previous litigations, the courts, below had rightly not attached much importance to a decree the defendant is said to have obtained against the corporation for he City of Mysore or to another subsequent proceeding started by him against the Board in which the finding of the trial Court having gone against him (the appellant) the same is now said to be pending in appeal.
7. The evidence of P.W.2, the Assistant Engineer of the Board, and P.W.3 the Land Acquisition Officer, discloses that the site in question formed part of Sy. No.22, a larger area, and that entire land had been acquired in 1963, and the property thus acquired had been handed over by the Government to the Board in 1965. Copies of the award and the connected papers have been brought on record in this case and marked. The site in question is said to have been given the number as Second Stage, Gokulam in Mysore City. The plaintiff was an allottee of the site in question under Ex.P.5 and Ex.P.1 is the possession certificate issued to him by the Board. These are facts established by evidence placed on record. The defendant's case, as sworn to by him in his deposition, is that one Sharadamma had four guntas in Sy.No.22; that he had purchased 2 guntas, and had taken possession as a mortgagee the other 2 guntas, that was in the year 1958, that since the Board had acquired the 2 guntas he had purchased he had been granted a site by the board at his request; that the property which he had taken on mortgage - the other two guntas - had a small structure; and that since the date of mortgage he has been residing continuously therein and that none had dispossessed him. The suit site, according to him, is none other than this mortgaged two guntas. He also says that in the site that had been allotted to him by the Board he had built a house and his children are living there, and further claims that he himself has been living in the site in question. Though he admits that in the ration-card, issued to his family the house shown was that one he had newly built in site No.215 allotted to him by the Board, he claims that in the voters list, the house said to be in the site in question is shown as his residence. We do not have that voters' list on record. Counsel for the appellant, taking me through the oral evidence, referred to certain statements of the plaintiff and the defendant and submitted that the courts below had completely overlooked these facts, which, according to him, show his client's possession of the site in question.
8. In the light of the evidence on record we have to see as to whether there is any substance in the first submission made by the Counsel for the appellant that his client has been shown to be in possession of the site in question and, therefore, an injunction ought not to have been granted against him. On this aspect the plaintiff, not merely in his pleading but also in his evidence, has stated that he was in possession of the site. In examination in chief he states that when he was proceeding with the construction of the building on that site the defendant had started encroaching from one side and therefore he had also complained to the police. The defendant, who has been asserting that he has not been dispossessed at all from the two guntas taken by him on mortgage from Sharadamma, no doubt, asserted his possession in his examination-in-chief. In cross-examination he was questioned about the area having been acquired for the Board and about the site in question having been allotted to the plaintiff. He denied any knowledge re : these things. Then he stated that he had not obstructed the plaintiff when he started constructing his house. He had admitted that a complaint had been lodged against him in the police alleging that he was interfering with the plaintiff's possession of the site in question. Then a suggestion was put and answer elicited on these lines :
'It is not correct to say that I purposely put up the shed in the site and litigating the matter.'
According to the counsel for the appellant the answer elicited above from his client shows that his client has been in possession of the site at all times and at the relevant time and, therefore, the courts below had erred in granting the relief as sought for by the plaintiff. But I have carefully gone through the deposition and throughout the suggestion had been that he was not in possession of the suit site and that having built his own house on a site that had been granted to him by the Board - site No.215 - he has been residing therein. In answer to that question what the defendant has stated is that no doubt he had built a house on site No.215 but his children were residing there and that he has been residing in the structure which is on the site in question. The learned counsel for the appellant wants the courts to rely and rely absolutely on a casual suggestion by the counsel for the plaintiff and a denial of the same by the defendant (extracted above) as the basis of his claim that he was in possession of the suit property. Even if there is some attempt to raise a sort of a shed like structure in a corner of the site in order to create evidence that he is in possession would that be sufficient, in law, to say that he is in possession? Both the courts, after a factual assessment of the evidence, have found on this aspect against the defendant.
9. Further, the defendant's case is that he had obtained possession of this area as a mortgagee-in-possession and there was a structure on it and that he continues to be in possession of the same? And this question has to be looked at from another angle which has a considerable bearing on this litigation. The facts prove of this entire area having been acquired by the Government for the Board. After an award was made possession of the area was taken over and the Government transferred the area to the Board. Under S. 16 of the Act if possession of the land acquired is taken by the authority acquiring the land such land thereupon will 'vest absolutely in the Government free from all encumbrances.' As observed by the learned Author Ghosh in his 'The Land Acquisition Act', 6th Edition, at page-187 the most important legal consequence that flows from such vesting is :
'No person shall have any right to pursue his remedies against the land in the hands of the Government or the company for whom it is acquired under the provisions of the L.A Act I of 1894. This is an instance of the exception to the general rule that 'a transfer or property passes forthwith to the transferee all the interests which the transferor is then capable of passing in the property and the legal incidents thereof. Such incidents include, where the property is land, the easements - 'annexed thereto, the rents and profits thereof accruing after the transfer and all things attached to the earth', (Section 8 of the Transfer of Property Act IV of 1882) which is equivalent to the well known maxim that a transferor cannot confer greater title to the transferee than he himself had in the same. This principle does not apply in the case of lands acquired by the Government under the provisions of the Land Acquisition Act I of 1894. It should be borne in mind that what has to be acquired in every case under the L.A.Act is the aggregate of rights in the lands and not merely some subsidiary right such as that of a tenant.'
As observed by the Supreme Court in The Fruit and Vegetable Merchants Union v. The Delhi Improvement Trust : 1SCR1 :
'On the other hand Secs. 16 and 17 of the Land Acquisition Act (Act I of 1894), provide that the property so acquired upon the happening of certain events, shall 'vest absolutely in the Government free from all encumbrances'. In the cases contemplated by Section 16 and 17 the property acquired becomes the property of the Government without any conditions or limitations either as to title or possession. The legislature has made it clear that the vesting of the property is not for any limited purpose or limited duration'.
After all the defendant claims that he was only a mortgagee. He is entitled to realise the amount secured under the mortgage out of the compensation awarded. Land has come to vest in the State Government, and after it was transferred to the Board it made a pucca layout carving out number of sites and has allotted sites to various persons and one such site allotted is the site in question and that has been allotted to the plaintiff. To say that the 2 guntas which the defendant had taken as a mortgagee-in-possession still remains as it is and that he has been in such possession even after all these changes taking place is something which should not be countenanced. The property which he is said to have held as a mortgagee-in-possession does not exist at all. Its very identity is in question. Merely because he had made some attempts to put up a temporary structure, we should not jump to the conclusion that he is in possession of the site. The learned counsel for the appellant places reliance on some authorities to say that if the plaintiff is found to be not in possession he should not be granted any injunction. Those cases proceed on the basis of the finding that the defendant was in possession and the plaintiff was not. In the instant case no such conclusion can be reached. Therefore, it cannot be said that the courts below had committed any error in granting an injunction as sought for by the plaintiff in his favour.
10. It appears that the defendant had filed a suit against the City Corporation, Mysore, for an injunction on the allegation that the Corporation contemplated some action against him and that the injunction he had sought, for, according to him, related to this very site. It may be noted, that neither the Board nor the plaintiff were parties to that suit. Perhaps, the City Corporation also has nothing to do with this site. In the circumstances, the decree he might have obtained in that suit in 1975 will have no effect. It appears that in respect of this very site he had filed another suit against the Board in O.S.No.529 of 1975. It is admitted that the suit was dismissed and the defendant is said to have preferred an appeal which is pending. Even to that suit the present plaintiff was not a party. Even otherwise the implications of those proceedings, to none of which the present plaintiff was a party, will have to be understood in the light of the acquisition proceedings referred to above. No doubt, from the defendant's point of view that he had started these proceedings in relation to this very site may have some relevance to show that he was still exercising his right over this area. But what value will have to be attached to those proceedings, in the light of the facts stated above, in this case is left to the courts. Even if the courts below have completely brushed aside or have not taken into consideration these two proceedings, that cannot be made much of by the defendant in the circumstances.
11. A Commissioner is said to have been appointed at the instance of this defendant-appellant in the first appellate court. After the Commissioner submitted his report though the defendant had taken number of adjournments, he did not press that court for an examination of the Commissioner. The result is the court below proceeded with the matter and heard both sides and pronounced its judgment. That it had heard both sides may be noted. It is said that the Commissioner's report is against the defendant-appellant. There is considerable substance in the argument advanced by the Counsel for the respondent that even if the Commissioner's report is ignore there is enough material on record to hold against the defendant. In the circumstances, it is not necessary to remit this matter to the first appellate court to provide this appellant an opportunity to explain the Commissioner's report. After carefully considering all the submissions made by the counsel for the appellant. I am of the view that there is no merit in this appeal.
12. For the reasons stated above this appeal fails and the same is hereby dismissed with costs.
13. Appeal dismissed.