G. Krishnareddy vs Sajjappa(D) By Lrs And Anr

G. KRISHNAREDDY .... Appellant

Versus

SAJJAPPA (D) BY LRS. AND ANR. .... Respondents

JUDGMENT

Dr. MUKUNDAKAM SHARMA, J.

1. This appeal is directed against the judgment and order

dated 20.10.1998 passed by the Division Bench of the

Karnataka High Court in Writ Appeal No. 3269 of 1998

dismissing the Writ Appeal filed by the appellant.

2. Brief facts leading to the filing of the case are that the

disputed land was allotted through a grant by the State of

Karnataka to one Smt. Munemma on 08.01.1957 with a

condition prohibiting any alienation of the land for a period

of 15 years. Gopalappa, late father of the appellant herein,

purchased the said land from Smt. Munemma under a

registered sale deed dated 20.12.1968.

3. In view of the coming into force of the Karnataka

Scheduled Castes and Scheduled Tribes [Prohibition of

Transfer of Certain Lands] Act, 1978 [for short "the

Prohibition of Transfer Act"] Smt. Munemma made an

application under the said Prohibition of Transfer Act for

the resumption of the land in question on the ground that it

was purchased by Gopalappa, late father of the appellant,

in violation of the prohibition clause of the grant. By

passing an order dated 07.06.1984 Assistant Commissioner

allowed the application filed by Smt. Munemma which was

also confirmed by the Deputy Commissioner in appeal.

Against the said order of the Deputy Commissioner the

predecessor-in-interest of the appellant filed a Writ Petition

before the Karnataka High Court, which remanded back the

matter to the appropriate authority for its disposal in

accordance with law. Pursuant thereto the Assistant

Commissioner after conducting an enquiry vide its order

dated 10.10.1995 held that the purchaser is in possession

of the land for more than 12 years which decision was

further confirmed in appeal by the Deputy Commissioner.

Against the aforesaid order a Writ Petition was filed by the

heirs of the original grantee which was registered as Writ

Petition No. 26848/1997.

4. Learned Single Judge who heard the aforesaid Writ

Petition vide order dated 15.06.1998 held that the

authorities below erred in law in applying the principles of

adverse possession to the case in hand. The learned Single

Judge held that since the purchaser had taken the stand

that by purchasing the said land under a valid sale deed he

had been enjoying the cultivation and possession in his own

right as owner thereof, therefore, he is precluded from

setting up the inconsistent plea of adverse possession either

as against the State or the grantee. It was also held that the

aforesaid allotted land through a grant was purchased by

the purchaser in contravention of the prohibition clause of

the grant in question. Consequently, the said Writ Petition

filed by the heirs of the original grantee succeeded and the

impugned orders were quashed and the Assistant

Commissioner was directed to take action according to law

to restore possession of the said land to the respondent.

5. Being aggrieved by the aforesaid order a Writ Appeal was

filed by the appellant herein which was dismissed by order

dated 20.10.1998 as against which the present appeal has

been filed, on which we heard learned counsel appearing for

the appellant, who during the course of his argument had

taken us through the records also. The respondent despite

service did not enter appearance.

6. The land involved in the present case is Sy No. 53

measuring 2 acres situated in Village-Hebbatta, Taluk-

Srinivaspur, District-Kolar. While granting land in favour of

the predecessor-in-interest of the respondent herein

through a grant dated 8th January, 1957 it was clearly

stipulated in the grant that the said land cannot be

transferred for 15 years. Subsequently, however, on

20.12.1968 the said land was purchased by the late father

of appellant. Earlier to the same an agreement to sale was

also entered into between the parties on 25.12.1965.

7. However, after coming into force of the Karnataka

Scheduled Castes and Scheduled Tribes [Prohibition of

Transfer of Certain Lands] Act, 1978, w.e.f., 01.01.1979, the

original grantee - Smt. Munemma made an application

under Section 5 of the Prohibition of Transfer Act before the

Assistant Commissioner seeking resumption of the land on

the ground that it was purchased by the late father of the

appellant in violation of the prohibition clause of the grant.

The application of Smt. Munemma was allowed by the

Assistant Commissioner which was also upheld by Deputy

Commissioner in appeal. Against the said decision of the

Deputy Commissioner a Writ Petition was filed by the

appellant before the Karnataka High Court, which

remanded back the matter to be decided by the appropriate

authority in accordance with law.

8. Pursuant to the said order of the High Court an

application was filed before the Assistant Commissioner. At

this stage it would be appropriate to extract the provisions

of Section 4 and 5 of the said Prohibition Act: -

"4. PROHIBITION OF TRANSFER OF GRANTED LANDS-

(1) Notwithstanding anything in any law, agreement,

contract or instrument, any transfer of granted land

made either before or after the commencement of

this Act, in contravention of the terms of the grant of

such land or the law providing for such grant, or

sub-Section (2) shall be null and void and no right

title or interest in such land shall be conveyed not

be deemed ever to have conveyed by such transfer.

(2) No person shall, after the commencement of this Act

transfer or acquire by transfer any granted land

without the previous permission of the Government.

(3) The provision of sub-Sections (1) and (2) shall apply

also to the sale of any land in execution of a decree

or order of a civil court or of an award or order of

any other authority.

5. RESUMPTION AND RESTITUTION OF GRANTED LANDS-

(1) Where an application by any interested person or on

information given in writing by any person or suo motu,

and after such enquiry as he deems necessary the

Assistant Commissioner is satisfied that the transfer of

any granted land is null and void under sub-section (1) of

section 4, he may -

a) by order take possession of such land after evicting all

persons in possession thereof in such manner as may be

prescribed;

provided that no such order shall be made except after

giving the person affected a reasonable opportunity of

being heard;

b) restore such land to the original grantee or his legal

heir. Where it is not reasonably practicable to restore the

land in such grantee or legal heir such land shall be

deemed to have vested in the Government free from all

encumbrances. The Government may grant such land to a

person belonging to any of the Scheduled Castes or

Scheduled Tribes in accordance with the rules relating to

grant of lands.

(1A) After an enquiry referred to in sub-section(1) the

Assistant Commissioner may if he is satisfied that

transfer of any granted land is not null and void pass an

order accordingly.

(2) Subject to the orders of the Deputy Commissioner

under Section 5A, any order passed under sub-section (1)

and (1A) shall be final and shall not be questioned in any

court of law and no injunction shall be granted by any

court in respect of any proceeding taken or about to be

taken by the Assistant Commissioner in pursuance of any

power conferred by or under this Act.

(3) For the purposes of this section where any granted

land is in the possession of a person other than the

original grantee or his legal heir it shall be presumed until

the contrary is proved that such person has acquired the

land by a transfer which is null and void under the

provisions of sub-section (1) of section 4."

The Assistant Commissioner after hearing the parties,

however, rejected the application holding that the late father of

the appellant is protected from dispossession by way of

application of the plea of adverse possession which decision

was also confirmed in appeal by the Deputy Commissioner.

But in a Writ Petition filed by the respondent the learned

Single Judge of the High Court set aside the said findings of

the authorities below and directed for the restoration of

possession of the land in favour of the respondent. Learned

Single Judge further held that no transfer could have been

made by the predecessor-in-interest of respondent, i.e., Smt.

Munemma and, therefore, alienation made in favour of the late

father of the appellant was contrary to the prohibition clause

of the said grant as also to the provisions of law.

9. It is clear from the aforesaid position that in order to

overcome the aforesaid difficulties the appellant took up the

plea of adverse possession by way of defence. The

predecessor-in-interest of the appellant claimed title over

the said land by virtue of purchase and at no stage he had

put up any hostile claim to the property. The plea was of

ownership by right of purchase and therefore a lawful right

to enjoy the property. The learned Single Judge while

allowing the writ petition filed by the respondent has made

reference to the aforesaid position and held that the plea of

adverse possession was not available to the predecessor-in-

interest of the appellant in law and in view of such legal

position the authorities below erred in accepting the plea of

adverse possession in respect of the granted land. There

appears to be justification in the findings of the High Court.

10. Even otherwise, we may refer to the decision of this Court

in K.T. Buchegowda v. Deputy Commissioner and Others

reported in (1994) 3 SCC 536 where at paragraph 8 of the

said judgment this Court has held thus: -

"8. On a plain reading, granted land will mean, any

land granted by the Government to a person, who is

a member of the Scheduled Castes or Scheduled

Tribes which includes land allotted to such persons.

Grant may be of different types; it may be by

absolute transfer of the interest of the State

Government to the person concerned; it may be only

by transfer of the possession of the land, by way of

allotment, without conveying the title over such land

of the State Government. If by grant, the transferee

has acquired absolute title to the land in question

from the State Government, then subject to protection

provided by the different provisions of the Act, he will

be subject to the same period of limitation as is

prescribed for other citizens by the provisions of the

Limitation Act, in respect of extinguishment of title

over land by adverse possession. On the other hand,

if the land has been allotted by way of grant and the

title remains with the State Government, then to

extinguish the title that has remained of the State

Government by adverse possession, by a transferee

on the basis of an alienation made in his favour by

an allottee, the period of limitation shall be 30 years.

Incidentally, it may be mentioned that some of the

States in order to protect the members of the

Scheduled Tribes from being dispossessed from the

lands which belong to them and of which they are

absolute owners, for purpose of extinguishment of

their title by adverse possession, have prescribed

special period of limitation, saying that it shall be 30

years. In Bihar, vide Regulation No. 1 of 1969, in

Article 65 of the Limitation Act, it has been

prescribed that it would be 30 years in respect of

immovable property belonging to a member of the

Scheduled Tribes as specified in Part III to the

Schedule to the Constitution (Scheduled Tribes)

Order, 1950."

11. Therefore, so as to ascertain whether in the present case

the period of limitation would be 12 years or 30 years, we

have perused the grant given to the predecessor-in-interest

of the Respondent, a copy of which was placed on record by

the appellant. A bare perusal of the aforesaid grant would

indicate that nowhere in the said grant it has been clearly

and specifically stated that it has been an absolute transfer

of the right in title and possession by the State Government

to the concerned person. A bare perusal of the document

would also indicate that it was only a transfer of the

possession of the land by way of allotment and in none of

the clauses of the grant it is stated that it is a conveyance of

the title over such land by the State Government. Clause 1

of the grant gives authority to the grantee to clear the land

and to bring it to cultivable stage. It further provides that

the grantee can enjoy the property for 15 years. Not only the

grant was only for a limited period but it was also for

cultivation. Therefore, it was a grant for possession by way

of cultivation for a limited period and it cannot be said that

by the aforesaid grant the transferee had acquired absolute

title to the land in question from the State Government.

Therefore, the period of limitation which would have been

applicable in the present case would be 30 years, in the

light of the ratio laid down by the said decision.

12. In any case the appellant has failed to make out any

case for interference. We find no merit in this appeal, which

stands dismissed, leaving the parties to bear their own

costs.

............................................J

[Dr. Mukundakam Sharma ]

.........................................J

[ Anil R. Dave ]

New Delhi,

July 18, 2011.