TMI Blog2015 (9) TMI 1707X X X X Extracts X X X X X X X X Extracts X X X X ..... demolition of whatever stood on the same. The High Court was, in that view, justified in setting aside the decree passed by the Trial Court and dismissing the suit filed by the Plaintiffs. The High Court has, in particular, remained oblivious of the principle enunciated in the decisions to which are referred. All that the High Court has found in favour of the Plaintiffs is that their possession is established. That, however, does not conclude the controversy. The question is not just whether the Plaintiffs were in possession, but whether they had by being in adverse possession for the statutory period of 12 years perfected their title. That question has neither been adverted to nor answered in the judgment impugned in this appeal. Such being the case the High Court, in our opinion, erred in dismissing the appeal filed by the Appellant-BDA. The fact that the Plaintiffs had not and could not possibly establish their adverse possession over the suit property should have resulted in dismissal of the suit for an unauthorised occupant had no right to claim relief that would perpetuate his illegal and unauthorised occupation of property that stood vested in the BDA. Appeal dismisse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession mahazar on 6th November, 1987. A Notification Under Section 16(2) of the Act was also published in the Karnataka Gazette dated 4th July, 1991 which, according to the BDA, signified that the land in question stood vested with the BDA free from all encumbrances whatsoever. The further case of BDA is that long after the land had vested in the BDA, sites were carved out and sold to different persons by the erstwhile owners, the unauthorised act of the Plaintiffs, however, got vacated and the possession was taken over. 4. The case of the Plaintiffs M. Venkatesh and Prabhaudas Patel on the other hand was that they were always in established possession of the suit schedule property owned and that apprehending their dispossession from the same they had approached the High Court along with several others to restrain the BDA from interfering with their peaceful occupation of the suit property. Those petitions were disposed of by the High Court reserving liberty to the writ- Petitioners to approach the civil court for appropriate relief in a proper civil action. It was only after the disposal of the said petitions that OS Nos. 3075 of 2000, 6925 of 2001, 5742 of 2001, 7945 of 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uit and the judgment of the High Court. The High Court held that the legal position stated by the Division Bench of that Court in John B. James and Ors. v. Bangalore Development Authority, (2001) 1 Kar LJ 364 was clearly applicable to the said appeal entitling the owner in occupation to protection against attempted eviction by the BDA. The High Court, on that basis, dismissed RFA No. 911 of 2012 filed by BDA upholding the judgment and decree passed by the Trial Court and restraining the BDA from interfering with possession of the Plaintiff over the suit schedule property. As regards the remaining appeals, the High Court held that the Plaintiffs in those appeals were claiming settled possession of vacant pieces of land which even according to the pronouncement in John B. James case (supra) did not entitle them to any relief as no one could claim to be in established possession of a vacant piece of land. The High Court found that there was no dispute that all the structures on the suit properties relevant to those suits had been demolished and that the land was a vacant piece of land all along and at all material times including the date of the judgment. The High Court accordingly no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n BDA as early as in the year 1986-87 and that the question of anyone developing or using any part of the same did not arise. The documents relied upon by the Plaintiffs were, according to the BDA, of no value or relevance. 10. The High Court has, as noticed earlier, on an appraisal of the material on record, held that the suit schedule properties relevant to RFA No. 911 of 2002 was a vacant piece of land from which structures stood demolished and removed before the institution of the suits. The High Court in this regard observed: But, insofar as the other Respondents are concerned, whether the Appellant was justified in law or not in carrying out the demolition, there is no dispute that all structures in the respective suit properties have been razed to the ground and it was vacant land during the pendency of the suit and as on the date of the judgment. Therefore, the trial court was clearly in error in holding that the Plaintiffs continued in settled possession of what was vacant land. The law, as laid down in John B. James's case, supra clearly disentitled persons claiming to be in settled possession of vacant land. Therefore, the remedy of damages which was certainly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ood cleared of any structures by demolition of whatever stood on the same. The High Court was, in that view, justified in setting aside the decree passed by the Trial Court and dismissing the suit filed by the Plaintiffs. 13. That brings us to the question whether Prabhaudas Patel and other Respondents in SLP (C) No. 12016 of 2013 were entitled to any relief from the Court. These Respondents claim to have purchased the suit property in terms of a sale deed dated 22nd August, 1990, i.e. long after the issue of the preliminary notification published in July 1984. The legal position about the validity of any such sale, post issue of a preliminary notification is fairly well settled by a long line of the decisions of this Court. The sale in such cases is void and non-est in the eyes of law giving to the Vendee the limited right to claim compensation and no more. Reference may in this regard be made to the decision of this Court in U.P. Jal Nigam v. Kalra Properties Pvt. Ltd., AIR 1996 SC 1170, where this Court said: 3. It is settled law that after the notification Under Section 4(1) is published in the Gazette any encumbrance created by the owner does not bind the Government and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to be rejected for it is settled that one of the modes of taking possession is by drawing a Panchnama which part has been done to perfection according to the evidence led by the Defendant-BDA. Decisions of this Court in Tamil Nadu Housing Board v. A. Viswam (dead) by L.Rs., AIR 1996 SC 3377 and Larsen and Toubro Ltd. v. State of Gujarat and Ors., AIR 1998 SC 1608, sufficiently support the BDA that the mode of taking possession adopted by it was a permissible mode. 15. Coming then to the question whether the Plaintiffs- Respondents could claim adverse possession, we need to hardly mention the well known and oft-quoted maxim nec vi, nec clam, nec precario meaning thereby that adverse possession is proved only when possession is peaceful, open, continuous and hostile. The essentials of adverse possession were succinctly summed-up by this Court in Karnataka Board of Wakf v. Govt. of India, (2004) 10 SCC 779 in the following words: 11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Mohd. Mohd. Ali v. Jagadish Kalita (2004) 1 SCC 371, SCC para 21.) 17. Also noteworthy is the decision of this Court in Mohan Lal v. Mirza Abdul Gaffar, (1996) 1 SCC 639, where this Court held that claim of title to the property and adverse possession are in terms contradictory. This Court observed: 4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period of his title by prescription nec vi, nec clam, nec precario. Since the Appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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