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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
B. VEERAPPA, J.
Joseph Saldhana, S/o Joachin Saldhana - Petitioner
Vs.
State of Karnataka & Ors. - Respondents
Writ Petition No.10596 of 2019 (GMCPC)
Decided On : 14-03-2019
Criminal Procedure Code, 1973 - Civil Procedure Code,1908 - Karnataka Land Grabbing Prohibition Act 2011 - Section 20 - Committed land grabbing - Demolish construction made over suit property - Petitioner herein came in hostile possession suit property bearing door consisting residential house in year - Thereafter plaintiff petitioner improved said house by spending huge amount of money obtained electricity connection paying taxes regularly to local body and he is in possession of same continuously - Hostile possession of plaintiff renovation planting coconut trees and other improvements made over suit property are well within knowledge of defendants - Petitioner is in actual hostile continuous and uninterrupted possession over suit schedule property for more than years and thereby perfected his right title over property by way of adverse possession and hence defendants have lost their right title and interest over suit property – Held, Combined reading of clauses would suggest that to bring person within meaning of expression land grabber it must be shown that he has taken un authorized lion fairly greedily snatched forcibly violently or unscrupulously any land belonging to government or local authority religious or charitable institution or endowment including for any other private person without any lawful entitlement and with view to illegally taking possession of such landlord enter or create illegal tenancies or lease and licenses agreements or any other illegal agreements in respect of such lands or to construct unauthorized structures thereon for sale or hirer give such lands to any person on rental or lease and license basis for construction or use and occupation of unauthorized structures or he has given financial aid to any person for taking illegal possession of lands or for construction of unauthorized structures thereon or he is collecting or attempting to collect from any occupiers of such lands rent compensation and other charges by criminal intimidation or he is abetting doing of any of abovementioned acts or that he is successor in interest of any such persons - Dictums Humble Apex Court referred sprat is manifestly clear that Special Court is competent to adjudicate question of title ownership or lawful possession any land alleged to have been grabbed and matters pertaining to act of land grabbing are tribal by Special Court - Having regard to non-obstante clause used therein inception it is obvious that jurisdiction of Special Court exclusive - Special Court is competent to try and determine issue of title right tour possession of land alleged to have been grabbed - In case on hand on careful scrutiny of averments made in paragraph plaint it is seen that plaintiff petitioner herein has categorically stated that he is in adverse possession over land belonging to Government for period of years - Once it is admitted that land belongs to Government provisions of Karnataka Land Grabbing Prohibition Act would attract – However same requires to be determined by special Court after fully fledged trial/enquiry and on evaluation oral and documentary evidence that may be adduced and produced by both parties - Judge Trial Court while considering application of Act filed by defendants respondents herein has formulated points for determination and passed well reasoned order in exercise of power conferred Section Act – Petition dismissed
ORDER :
The petitioner – plaintiff filed the present writ petition against the order dated 30.10.2018 on I.A. No.6 in O.S. No.47/2010 on the file of the 1st Additional Civil Judge, Mangaluru, Dakshina Kannada allowing the application filed by the respondents – defendants under Section 20 of the Karnataka Land Grabbing Prohibition Act 2011 to transfer the case to the Special Court under the Karnataka Land Grabbing Prohibition Act, 2011 (hereinafter called ‘the Act’ for short).
I FACTS OF THE CASE
2. The mother of the plaintiff petitioner herein came in hostile possession of the suit property bearing door No.8140A consisting of a residential house in the year 1977. Thereafter, the plaintiff petitioner improved the said house by spending huge amount of money, obtained electricity connection, paying taxes regularly to the local body and he is in possession of the same continuously. The hostile possession of the plaintiff, renovation, planting of coconut trees and other improvements made over the suit property are well within the knowledge of the defendants. The petitioner is in actual, hostile continuous and uninterrupted possession over the suit schedule property for more than 30 years and thereby, perfected his right, title over the property by way of adverse possession and hence, the defendants have lost their right, title and interest over the suit property. As, the officials of the defendants tried to dispossess the petitioner from the suit property, he has filed a suit for declaration of title and consequential injunction restraining the defendants from dispossessing the petitioner and not to demolish the construction made over the suit property.
3. During the pendency of the above suit, the defendants respondents herein have filed an application IA. No.6 under Section20 of the Act, seeking to transfer the said suit to the Special Court, constituted under the Act for adjudication and disposal. The petitioner – plaintiff filed objections to the said application. The trial Court considering the application and the objections by the impugned order allowed the said application and ordered for transfer of the suit to the Special Court. Hence, the present writ petition is filed for the relief’s sought for.
II ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR THE PARTIES
4. I have heard the learned counsel for the parties to the lis.
5. Sri. B.S. Sachin, learned counsel appearing for the petitioner – plaintiff vehemently contended that so as to transfer the suit to the special Court, a person who is in possession of the government land should be a land grabber. But in the case on hand the plaintiff is in continuous possession and enjoyment of the suit property from 30 years, openly to the knowledge of defendants and thereby, he has perfected his title over the suit property by way of adverse possession and that the defendants have lost their right, title and interest over the suit property. The trial Court, instead of transferring the suit, ought to have framed preliminary issue as regards maintainability of the suit and proceeded with the trial of the suit. He further submits that the learned judge of the trial Court was not justified in transferring the case to the special Court and prays for allowing the present writ petition by setting aside the impugned order passed by the trial Court.
6. In support of his contentions, he relied upon the judgment of the coordinate Bench of this Court in W.P.No.35369/2018 dated 12.10.2018 (Sri. Gangadhara & others –vs the State of Karnataka & others).
7. Per contra, Sri. D.R. Anandeeswar, learned HCGP., appearing for the defendants respondents drew the attention of the Court to the averments made in paragraph3 of the plaint and submitted that the land in question belonging to the Government and hence, the provisions of Section 2(f) of the Act would attract. On 16.04.2010, the defendant No.3 (Tahsildar) has filed written statement and by filing a memo, the defendants 1 & 2 have adopted the written statement
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