Karnataka High Court
Deputy Commissioner vs Emmanuel Ramapuram on 10 October, 1991
Equivalent citations: ILR1992KAR910, 1991(3)KARLJ297
JUDGMENT Hiremath, J.
1. The appellants challenge by this Appeal the Judgment and Decree of the first appellate Court of the District Judge of Kodagu at Madikeri setting aside the Judgment and Decree of the trial Court of the Civil Judge at Madikeri in OS.No.4/78. The properties involved are Survey Numbers 129/3, 154/5, 170, 154/8, 173 and 174 of Cheleavara Village, Napoklu Nad in Kodagu District. The total extent of these lands comes to 468 acres 72 cents, the largest among them being S.No.154/5 measuring 431.42 acres. Admittedly these were Jamma-Malai lands. The original holder was one Pattacharavanda Cariappa. When exactly these lands for cardamom cultivation were granted to Cariappa is not available. As the said Cariappa had become a defaulter in the year 1927 for payment of land revenue of 168 rupees 11 annas the lands were sold by the Government in that year in auction and Palecanda Medappa purchased fern for Rs. 170/-. The said Medappa was the holder thereof till the same were sold to the respondent's father in the year 1940. Emmanuel Thomas Ramapuram was the father of the plaintiff-respondent. The registered sale deed is dated 15.9.1940. Even after this sale transaction of 1940 things were quiet till 1974, On 28.2.1974 the respondent (to be referred to as the plaintiff hereafter) applied to the Deputy Commissioner of Coorg for permission to exploit the tree growth without payment of any seignorage. The permission having been rejected and the plaintiff failing in the appeal before the Revenue Appellate Tribunal filed the original suit with a prayer for declaration that the revenue auction sale conferred on the auction purchaser absolute rights over the schedule property and as successor in title the plaintiff is the absolute owner thereof with unlimited rights to the tree growth standing thereon and for a mandatory injunction directing the defendants to issue requisite passes for cutting, felling, dressing and removal of timber from the schedule property without payment of seignorage charges to the Government. The main contention of plaintiff is that the tenure Jamma was converted into one of Sagu by virtue of the auction sale held by the Government and hence the purchaser acquired absolute rights of ownership over the suit lands. The Chief Secretary, Government of Karnataka, was the 2nd defendant, the present appellant-2 being defendant-1 in the suit. They contend that there was no change of tenure between 1931 and 1941 and these lands were shown in Paisari Khata. As per the order of the Chief Commissioner in M.C.No.69 dated 22.9.1941 the Jammabandi of the suit lands was transferred to the name of the plaintiff's father and at that time the tenure was changed to Jamma Malai from Paisari. The holder of Jamma Malai has only the right of cultivation of cardamom from the reserved forest land of the Government and the Malaigar has no proprietry rights over the land or timber growth. In brief their contention is that no absolute proprietry rights were acquired by Medappa for these lands and consequently the plaintiff's father could not claim any higher right than that Medappa had.
2. The trial Court upheld the contention of the appellants-defendants and dismissed the suit. The first appellate Court however allowed the appeal and decreed the suit holding inter alia that the auction sale has resulted in the change of tenure from Jamma to Sagu. In this Appeal the following substantial questions of law have been formulated for determination:
(1) Whether the court below has committed an error of law in nor properly determining the exact right, title and interest that was brought for sale in the auction held on 15.12.1926?
(2) Whether on the facts and circumstances of the case the court below ought to have held that the auction purchaser did not acquire absolute title to the land?
(3) Whether the courts below ought to have held that the auction purchaser did not become the owner of the trees standing on the land without payment of the prescribed fee in respect thereof?
(4) Whether the court below committed an error of law in relying upon the entry made on the basis of the Commissioner's order?
(5) Whether the suit of the plaintiff ought to have been dismissed as barred by limitation?
All these points excepting the one of limitation relate to the fact of auction sale in favour of Medappa of the suit lands. In other words whether the change of tenure has occasioned conferring absolute proprietry rights on the purchaser and hence on his successor in title by virtue of such a sale?
3. The learned Advocate General invited my attention to the peculiar tenures prevailing in Kodagu District and the rights of the holders under such tenures. We are only concerned with Jamma Tenure over Jamma Malais. Though both sides have referred to Coorg Land and Revenue Regulation (1 of 1899) (Regulation hereafter for brief) that does not define these tenures. Therefore necessarily reference has been made to the Revenue Settlement of Coorg 1910. Para-97 relating to Jamma Malais reads thus:
"Jama malles are portions of the reserve forests on the Western Ghats in which the hereditary right of growing caradomoms on the indigenous system is admitted. These malles have recently been separately resettled."
Para-101 referring to Sagu says;
"The ordinary ryotwari tenure of land held on full assessment is known as sagu, but privileged tenures have for various reasons been so freely granted in the past that the sagu tenure only represents 43 percent of the total holdings."
Paragraph 229 relates to method of cardamom cultivation. It says that the usual indigenous way of raising cardamoms is by felling a few huge trees under which rich leaf mould is found.The plant springs up spontaneously and requires no further care and attention except some weeding. These plots, of an average size of 10 cents, are scattered all over the forest, Lionel Davidson was the Commissioner of Coorg and the summary of his Judgment in the "test case" of Totiyana Ponnappa, Jamma Malai claimant rendered in the year 1904 appear to have been widely accepted to trace the history anc' concept of Jamma Malai. This was appended to the revenue settlement of the Coorg of 1910 and the authenticity of his analysis and views are not in doubt, tn paragraph-16 he refers to the Hukumnama issued by Raja Lingarajendra Wodeyar of the Coorg State in the year 1811. The same throws light over this peculiar tenure then prevailing in the erstwhile Princely State of Coorg. It says:
"Whereas certain cardamon malais have been given to ryots by the Palace and whereas it is the practice for such ryots to gather the produce of such malais... all cardamoms so gathered shall be made over to the Palace at specified rates, ranging according to the classes of the produce from Rs. 12 to Rs. 20 per maund, and ...further-more, if a ryot shall deceive the Palace and sell a single cardamom seed to any other purchaser, whosoever he may be, the cardamom malai which has been given to him shall be confiscated and resumed to the Palace."
At paragraph-25 Davidson refers to the finding of Sir James Lyall, Chief Commissioner, dated 5.3.1987. Lionel Davidson states thus:
"Sir James unhesitatingly rejected the malaigars claim to permanent assessment and directed the survey of the Jamma Malais and their re-assemental rates based on one-sixth of the estimated collection of cardamom, pepper, resin and other produce. While remarking that Tenure of the Jamma Malaigars might have to be decided in settlement proceedings under the Indian Forest Act, the Chief Commissioner thought it clear that their right was in the nature of a right of use or occupancy in a Government Forest and not in the nature of proprietorship of the soil. Commenting on the importance of this distinction, he pointed out that a right of use in limited by custom, whereas a right of property in the soil is not, and includes all subsidiary profits and advantages."
Reference has also been made to Lieutenant Connor's Memoir of the Codagu Survey written in 1817. Reference to cardamom cultivation is culled out as follows:
"The cardamoms and indeed all the produce or the woods exclusively belong to the Rajahs. The growth of this plant appears confined to this part of the Western Ghats. It is found generally in its greatest luxuriance in those places where trees have fallen from decay and covered the spot with their leaves or where timber has been burnt thus indicating that a soil impregnated with manure is necessary to it; it requires but little attention to ensure success; there is not the appearance of any care being bestowed on the plants; indeed they are so numerous that it would be almost impossible to attend to them; the requisite air and heat desirable to promote their vegetation find a ready access to them without any artificial aid.
The cardamoms are collected by the praedial servants of the Rajah, they are guarded with the utmost care, and have a regular establishment for the purpose of attending them; the space in which they are found is divided into portions termed Mulias, each under charge of a Parputty, who oversees and registers the produce of it."
Reference was also made to the Judicial pronouncement in the case of BHASKARAPPA v. THE COLLECTOR OF NORTH CANARA, ILR III Bombay 452. Ultimately the Commissioner summed up his findings with regard to Jamma Malais as follows:
(i) That the jamma malaigars possess no proprietary right in the jamma malais;
(ii) that in virtue of a grant made by the Coorg Rajas, they possess the right to cultivate cardamoms therein according to the indigenous method, which may be improved but not radically altered;
(iii) that they have no right to minor forest produce therein except in so far as relates to the use of canes, wattes, nettipai and Kuvalai leaves, creepers and fibre for purposes ancillary to cardamom cultivation;
(iv) that they possess no right to shoot within the malais or reserved forest;
(v) that they have right of access to the malais by defined routes as may be necessary for purposes connected with cultivation of cardamoms;
(vi) that they possess the right to fell such timber as may be necessary for the preparation of cardamom plots and for the construction of buildings within the malais for the housing of themselves and their labourers and the storage of the cardamom produce collected;
(vii) that they possess the right to utilise other forest produce for the construction of the buildings mentioned under item (vi) and to cut firewood for their own use within the malais and for the purpose of drying cardamoms on the spot; and
(viii) that for themselves and their labourers they possess the right to consume within the malais a reasonable quantity of toddy drawn from the Bainer palm growing therein.
The learned Counsel appearing for the respondent Sri Santhosh Hegde did not press for my consideration any other view or the concept with regard to Jamma Malais or rights and obligations of Malaigars thereof, Both the Courts below have adverted to this character of Jamma Malais.
4. Section 3(6) of the Regulation defines "holder" or "land holder" as signifying the person who is in possession of a holding or any share or portion thereof or in the enjoyment of any part of the profits thereof and who is bound by law, contract or local usage to pay land revenue direct to the Government, but does not include a tenant. The plaintiff has not produced nor has taken steps to get produced any grant or order under which the original holder Cariappa came in possession of the suit lands. In his brief evidence he deposed that he has brought the schedule property under cardamom cultivation since 1961 and the registered sale deed in favour of his father is produced at Ex .B-2 dated 5.9.1940. He is not aware if any sale certificate was issued in favour of Medappa by the Commissioner of Coorg when the auction sale took place in the year 1927. There are valuable trees in the lands and the value of the lands in the year 1979 when he gave evidence was about Rs. 10,00,000/-. He is not even aware if the tenure of the land is still Jamma Malai. It thus follows that excepting cardamom nothing else is or can be grown on the suit lands perhaps for the reason that it is a part of the Reserve Forest of the Government and over the hills as the term "Malai" indicates. In such a situation what is the effect of the auction sale is the moot point. Reference has been made by the respondent's Counsel to Section 108 which states that subject to the provisions of this Section with respect to engagements made between the defaulter and his tenants, immoveable property brought to sale under Chapter IX for the recovery of an arrear due to respect thereof shall be sold free of all encumbrances, and all grants and contracts previously made by any person other than the purchaser in aspect of the property shall become void as against the purchaser. Section 110 states that when jama or umbli land or other land held wholly or partially free of revenue, is sold under Chapter IX, whether for recovery of an arrear due in respect thereof or for the recovery of any other sum, the privileges attaching to the tenure of the land with respect to the assessment of land-revenue shall be extinguished by the sale. Section 106 states that after an order of the Commissioner confirming a sale has become final in manner aforesaid, the Commissioner shall put the purchaser into the possession of the property sold, and shall grant him a certificate to the effect that he has purchased that property. Chapter VIII deals with the assessment and Section 48(1) dealing with liability of all land to assessment states that all land, to whatever purpose applied and wherever situate, is liable to the payment of land revenue to the Government, except such land as has been wholly exempted from the liability by special contract with the Government or by the provisions of any law for the time being in force. Sub-section (2) of Section 48 states that the holder of every holding shall be liable for the payment of land revenue assessed thereon; and, where there are two or more holders of the same holding, the Commissioner shall decide who shall be primarily liable for the land revenue. Section 48 thus does not make any distinction as far as assessment is concerned with regard to the nature of any land held by the holder. Section 110 deals only with the privileges attached to the tenure as far as the holder is concerned but the sale by itself does not change the nature of the tenure. When Section 108 speaks of grants and contracts previously made by any person other than the purchaser it does not refer to the grant made by the Government in favour of a holder by virtue of which the holder holds the land. The argument therefore of the respondent's Counsel that the grant under which Cariappa had obtained the lands becomes void does not commend merit.
5. At para-37 of its Judgment the appellate Court did accept the case of the Government that a Jamma Malai had been given to the Jama Malaigars by the Palace to gather produce of such Malais and supply to Palace. After the advent of the British Government the supply of cardamom was given up and assessment was levied retaining the proprietary right in the State permitting the Jamma Malaigars to make their own arrangement in future for the disposal of the cardamom grown in their Malais. It also accepted the finding of Lionel Davidson that Jamma Malaigars do not possess proprietary rights in the Jamma Malais by virtue of the grant made by Coorg Rajas but they possess only right to cultivate the cardamom according to the indigenous method. Having so accepted it proceeded to add that subsequent developments show that the change of tenure had taken place. It particularly emphasised that P. Medappa purchased the property for Rs. 170/- and paid the full assessment. For this reason as observed in Para-38 of its Judgment the Commissioner ordered transfer of jammabandi of this Malai to the name of P. Medappa and accordingly the tenure is shown as Sagu Malai. It thus concluded that the change of tenure from Jamma Malai to Sagu Malai occurred as per the order or the Commissioner of Coorg. Reference has been made to Ex.P-1 the Mutation Register extract In this behalf. Thus it appears the appellate Court derived support from what it calls "the order of the Commissioner changing the tenure dated 1.7.1927." On the face of it this reasoning is wholly erroneous and unsustainable. In Ex.P-1 except mentioning Sagu Malai in column No. 9 relating to tenure there is nothing to indicate that the Commissioner did make such an order. Reference to the order of the Commissioner No. 525 of 1.7.1927 in column No. 16 of Ex.P-1 makes the position amply clear. The Commissioner never ordered that the tenure was changed. He only stated that because Medappa had paid Rs. 170/- due from Cariappa the sale in favour of Medappa was confirmed and hence janmabandi was directed to be transferred to the name of Medappa. Sri Santhosh Hegde could not satisfy me that by such an auction sale there is automatic change of tenure. It is also pertinent to note that EEx.P-8 refers to the order of the Chief Commissioner dated 16.8.1941 transferring the same tenure as held by the predecessor in title of Medappa to the plaintiff's father. This is dated 2.9.1941 and in column No. 9 the tenure is shown as Jamma Malai. What is significant is that the order confirming sale was made by the Commissioner whereas the transfer was made by the Chief Commissioner. In this context Section 29(1) of the Regulation needs reference. Section 29 reads as follows:
"29. Making or revising of record-of-rights for each estate -
(1) There shall be a record-of-rights for every estate.
(2) When it appears to the State Government that a record of rights for an estate does not exist, or that the existing record-of-rights for an estate requires special revision, the Chief Commissioner shall by notification direct that a record-of-rights be made, or that the record-of-rights be specially revised, as the case may be.
(3) The notification may direct that record-of-rights, shall be made or specially revised for all or any estates in any local area.
(4) A record-of-rights made or specially revised for an estate under this section shall be deemed to be the record-of-rights for the estate, but shall not affect any presumption in favour of the Government which has already arisen from any previous record-of-rights.
The Chief Commissioner appears to have acted under Section 29(2) when the transfer was made in favour of the plaintiff's father and record-of-rights for this estate required special revision. Section 34 referred to by the respondent's Counsel relates only to disputes at the time of making revision or preparation of any records under that Chapter and the disputes shall be settled by the Revenue Officer as provided thereunder. Section 32 relates to report of acquisition or right as landholder or assignee of land revenue to shanbog and recording of such right. Before 1950 under the said Regulation there were four classes of Revenue Officers, namely, the Chief Commissioner, the Commissioner, the Assistant Commissioner and the Subedar. Therefore when the orders referred to above were made the aforesaid Revenue Officers were functioning in the erstwhile State of Coorg. Though Section 110 speaks of the privileges attached to the tenure being extinguished it does not follow that the very tenure is changed. By accepting such a tenure the landholder has not accepted any privileges but he has got only a right to raise cardamom wherever possible in Jam ma Malai area and nothing more. Perhaps when no longer the Palace continued to hold proprietary rights the land was assessed to land revenue. Nothing more can be inferred with regard to the assessment levied by the Government for the use of the Malais.
6. Failure to produce the sale certificate according to the learned Advocate General should raise an adverse inference against the respondent plaintiff. When asked about the sale certificate the plaintiff only stated that he does not know whether the then Commissioner of Coorg issued any sale certificate to Medappa. Madappa has not been examined and it cannot be made out whether he was alive at all at that t me. That apart it is pertinent to note that it cannot be made out if the plaintiff's father came in possession of the sale certificate. However the fact that the land was sold in auction has been noted in Ex.P but the sale certificate could have thrown light on the rights that Medappa acquired. In the absence of any such evidence it is only just and proper to infer that Medappa acquired only those rights that the defaulting Cariappa had possessed and nothing more. The learned Counsel of the respondent has argued that once an entry is made as Sagu in Ex.P-1 the appellants cannot go behind it and say that the tenure Jamma still continued. There is a stray entry in Ex.P-1 alone in the year 1927 that the tenure was Sagu Malai. There is absolutely not an iota of evidence to show how this tenure was converted into Sagu which is akin to ryotwari tenure. It is patently clear from the nature of tenure of Jamma Malai that the holder does not acquire any proprietary rights over the soil. The mere fact that the kind has been assessed to pay land revenue under Section 48 does not ipso facto change the nature of tenure because under that Section alt land, to whatever purpose applied and wherever situate, is liable to the payment of land revenue to the Government. Mutation entries by themselves do not confer any rights. Rights must flow independently of such entries and the Supreme Court in the case of HINDUSTAN STEEL LIMITED, ROURKELA v. SMT. KALYANI BANERJE, 1973 (II) SCWR 749 clearly pointed out that mutation proceedings are not judicial proceedings but are in the nature of fiscal enquiries in the interest of the State for revenue collection. Mutation proceedings and orders passed by Revenue authorities cannot be treated as conclusive evidence for determination of proprietary title to immovable properties. It is not shown that even for subsequent years the same tenure as Sagu continued in revenue records. In Ex.P-1 no doubt it has been written on the same day that the entry was a mistake. It cannot be made out to what it refers. There is sufficient force in the argument of the respondent that such a note of the same date does not carry any weight and appears to have been made only to overcome the entry made earlier. But what is necessary to note is that there was no order of the Chief Commissioner that the tenure from Jamma Malai was changed to one of Sagu.
7. Section 110 of the Regulation so strongly relied upon for the respondent makes it amply clear that it relates to sale of lands held revenue free or at favourable rates. Therefore if the privileges referred to in Section 110 attaching to the tenure of the land with respect to assessment of land revenue getting extinguished by the sale are considered in the light of head-note to Section 110 it only follows that the privileges relate only to the exemption either partially or fully to pay land revenue or favourable lates and nothing more so as to stretch it to the extent of saying that Jamma Malai gets extinguished and the tenure becomes Sagu. Such an interpretation would amount to reading something which is not in Section 110. This Court no doubt held in the case of NAGESH ALIAS NAGAPPA GANAPATHY HEGDE v. SYNDICATE BANK, ILR (Kar) 1981 477 that the title in the property sold in public auction under Chapter XIV of the Karnataka Land Revenue Act, 1964 passes to the auction purchaser on the confirmation of sale and the sale certificate under Section 179 of the Act is only on confirmation of the sale under Section 177 of the Act and thus the issue of a sale certificate is the consequence of confirmation of sale and also that the right title and interest of the defaulter in such property shall cease and the same shall stand transferred to the auction purchaser. It only makes clear that whatever right, title and interest the defaulter had would stand transferred to the auction purchaser and nothing more. Even the Privy Council as far back in the year 1926 in the case of NIRMAN SING v. LAL RUDRA PARTAB, AIR 1926 PC 100 held that it is an error to suppose that the proceedings for the mutation of names are judicial proceedings in which the title to and the proprietary rights in immovable property are determined. They are nothing of the kind, as has been pointed out times innumerable by the Judicial Committee. They are much more in the nature of fiscal inquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with greater confidence that the revenue for it will be paid. Orders in mutation proceedings are not evidence that the successful applicant was in possession as sole legal owner in a proprietary sense, to the exclusion, for example, of all claims of the other members of the family as co-owners or for maintenance or otherwise, as revenue authorities have no jurisdiction to pronounce upon the validity of such a claim. The Supreme Court however in the case of B.S.V. TEMPLE v. P. KRISHNA MURTHI, struck a note of caution with regard to entries in the revenue records. It pointed out that the presumption arising from several entries in the revenue records of large number of years in respect of ownership and possession of land with certain person does not stand rebutted by mere stray entries in favour of other when the evidence is of uncertain character and is inadequate. These observations apply squarely to the instant case in as much as the entry "Sagu" appears for only one year and is not continued subsequently. Similarly the words "Paisari" appearing in Exs.P-78 of 8 in the year 1941 also does not make the suit land Government land. The reason is obvious. There is no evidence that at any time by valid order of the Chief Commissioner the land was resumed to Government. If these entries like "Sagu" in Ex.P-1 and "Paisari" in Exs. P-7 & P-8 are ignored as not finding support in any valid and lawful order of the Chief Commissioner who was alone competent to make such orders under Section 29 of the Regulation they do not change the nature of the tenure per se. The resultant position would be that the tenure did continue as Jamma Malai. The first appellate Court appears to have been carried away by this stray entry of "Sagu" in Ex.P-1 forgetting that there can be no estoppel against the Government for its officers making such stray entries without a valid and lawful order. The respondent cannot make capital out of such an entry even though I find the entry that it is a mistake appears to have been written by some overzealous official perhaps only to show that there was no change of tenure from Jamma Malai to Sagu. There is sufficient force in the contention of the learned Advocate General that the tenure Jamma Malai only indicates that the part of the Government Reserved Forest was made available to the Malaigar only to cultivate cardamom and there were no proprietary rights granted to the Malaigar.
8. Reference has been made by both the learned Counsel to certain Decisions relating to redeeming a land from payment of seignorage. The earliest Decision was rendered by a Division Bench of this Court in the case of STATE OF MYSORE v. KAINTHAJE TIMMANNNA, 1968(2) Mys.LJ. 227 commonly referred to as Thimmanna Bhat's case. The Decision was rendered in a suit for declaration that the suit lands were "redeemed lands" and for injunction directing the State to issue passes for transport or removal of timber without payment of seignorage. The lands were shown in the Record of Rights pertaining to the period between 1911 and 1916 as "redeemed lands. The plaintiff had been granted patta by the commissioner of Coorg in 1911 showing that they were redeemed lands". However in 1918 there had been a change in the nature of tenure of the lands showing that they were "unredeemed". The records relating to the passing of the order in 1918 were not available. Reliance was only placed on the entries in the Record of Rights from the Jamabandi Register relating to the years 1916 to 1921 in which reference to the order of the Commissioner of 1918 was made. In such a situation the learned Judges held that the presumption that the entries relating to the change of tenure should be taken to have been lawfully and regularly made in the course of the performance of official duties and in due compliance with the procedure enjoined by law (under Section 39 of the Coorg Regulation and Section 114 of the Evidence Act) could not be drawn. If the order in question had been one that was made in the exercise of the power under Section 29 of the Coorg Regulation, which is the provision, which should have been resorted to for the purpose of preparation and revision of the Record of Rights, it should have been issued and published by the Chief Commissioner by notification and one such notification or publication thereof in the Official Gazette has been made available. Any preparation of the Record of Rights or revision thereof could be done only by the Chief Commissioner by means of a notification that such Record of Rights be made or be specially revised. The Commissioner was an authority different from the Chief Commissioner at the relevant point of time. As under the Regulation certain conditions had to be fulfilled before making revision of the entries in the Record of Rights and such conditions related not only to the procedure but also to the existence of certain conditions precedent, and those conditions precedent were absent, the act done would not be entitled to the protection of the presumption under Section 114 of the Evidence Act. This Decision was quoted with approval by the Supreme Court in the case of STATE OF KARNATAKA v. K.V. KHADER, . The ratio of the two Decisions is that the entries in the Record of Rights do not by themselves change the nature or character of a tenure. Unless there is a valid order of the Chief Commissioner under Section 29 of the Regulation even an order of the Commissioner does not change the rights already existing in the holder of a land or change the tenure thereof. The analogs Nearly attracts even the facts of the instant case. Soon after perhaps the confirmation of sale in favour of Medappa the Commissioner appears to have passed an order on 1.7.1927 to transfer the Jamanbandi to Malais in the name of the purchaser Palecanda Medappa on the ground that the said Medappa had purchased the Malais for Rs. 170/- in the auction sale and nothing more. The Commissioner did not order the change of tenure to Sagu for the obvious reason that he was not competent to do so. Inspite of such an order the tenure in column No. 9 was changed to Sagu Malai. This could not have been done without the order of the Chief Commissioner under Section 29 of the Regulation. Therefore just as the tenure "redeemed" in the cases referred to above could not have been changed to the tenure "unredeemed" without the Chief Commissioner's order, the tenure Jamma Malai could not have been changed to one of Sagu without such an order.
9. From Ex.P-3 it could be made out that things continued without any attempt on the part of either the plaintiff's father or the plaintiff to assert rights over the trees standing on this vast extent of more than 460 acres of land till an application was made to the Deputy Commissioner, Coorg, by the plaintiff on which an order as per Ex.P-3 dated 15.4.76 came to be made. The main contention of the plaintiff therein was that the land had become Sagu and therefore the proprietary rights in the timber had passed on to the purchaser, his father. In the course of his order the Deputy Commissioner observed thus:
"The proceedings of the mutation entry bearing No. 69 dated 22.9.1941 confirms that according to order No. Dis.A7.1099/41 dated 16.8.1941 of the Chief Commissioner of Coorg the Jamabandy of the Male bearing survey Nos. 129/3, 170, 173, 174, 154/5 and 154/8 was transferred from paisari to the name of Sri Emmanuel Ramapuram as Jamma Male. The transfer was made as per the order of the Chief Commissioner of Coorg as Jamma Male and not based on the sale deed executed by Sri Palecanda Medappa who had no title over the property.
When the Male in question was transferred to the name of Sri Emmanuel Ramapuram as 'Jama Male' he is subject to defined rights of the Mallegars to 'Jama Malles'."
The reasoning of the Deputy Commissioner that since the Mallegars have not proprietary rights over the Jamma Malles for the non-payment of Malle assessment the proper course was to resume the Male and that is the reason the Male in question was reverted as paisari without giving effect to the mutation proceedings No. 20 dated 16.7.1927 does not appear to find support in any of the provisions of the Regulation because admittedly the Malai was brought for sale for non-payment of land revenue by Cariappa and at that point of time in the year 1927 the land was not resumed to the Government. Even otherwise there was no order of the Chief Commissioner resuming the land. Therefore what ultimately the Chief Commissioner did was he transferred Jamma Malai in the name of the plaintiff's father only as Jamma Malai as the tenure stood as such throughout right from inception, i.e., grant in favour of the original holder Cariappa himself. The Deputy Commissioner however rightly rejected the permission pointing out that even if it was considered that Malai was sold in auction and the sale was confirmed in favour of the auction purchaser he cannot have right over the tree growth in the Malai. It is the argument of the learned Advocate General that even according to the respondent the land was worth Rs. 10,00,000/- in the year 1979 when he gave evidence and the value of the trees may go to several takhs of Rupees. The respondent was attempting to get away with such valuable tree growth for a song. There appears to be sufficient force in the argument as none made any efforts for nearly 50 years after the sale in the year 1927 to cut and remove trees from this land which was granted only to cultivate cardamom as Jamma Malai. Perhaps in the year 1976 the plaintiff made an effort to usurp certain proprietary rights which were never created in the lands at any time. The trial Court having considered all aspects, the nature of tenure and the various provisions of Regulation was eminently justified in dismissing the suit. The first appellate Court without properly appreciating the scope of such provisions of the Regulation and understanding the nature of tenure and the procedure for change of tenure reversed the decree of the trial Court which cannot sustain. The Appeal therefore has to be allowed.
10. On the point of limitation the Courts below found that the suit is not barred by time and in the course of arguments reliance has been placed on the Decision of this Court in the case of STATE OF KARNATAKA v. MOHAMMED KUNHI, . It has been held by the Division Bench of this Court that it is not each and every entry in the Record or Rights that would give rise to cause of action...Mere adverse entry in the Record of Rights in respect of the property in the possession of the plaintiff cannot be taken as real threat to the right of the plaintiff to the property in his possession. The trial Court rightly observed that Section 22 and Article 113 of the Limitation Act are not attracted in as much as the plaintiff was seeking relief with regard to the declaration of his title regarding the nature of the tenure and there is nothing to show that cause of action accrued at some point of time which rendered the suit barred by time. The first appellate Court also agreed with this finding and I do not find that the Courts below were wrong in finding that the suit is in time.
11. This takes me to I.A.VI filed by the applicant Sri A.K. Subbaiah son of Kariappa to permit him to be added as a party in these proceedings to assist this Court as the State has by its overt acts of collusion and negligence failed to protect the rights and interests of the public by focussing the attention of the Courts below on the real questions involved. In his lengthy affidavit in support of this application he has narrated various provisions in the Coorg Land and Revenue Regulation as well as the provisions of the Karnataka Forest Act of 1963. As the learned Advocate General has in the course of his arguments referred to the legal position after auction sale under the relevant Regulation, nature of tenure and other aspects at length and as it is a simple suit in which the rights of the plaintiff-respondent have to be determined I do not find any reasons to permit the applicant to be impleaded as a party in this Second Appeal. Accordingly I.A-VI is rejected.
For the reasons aforesaid the Appeal is allowed, the Judgment and Decree of the first appellate Court decreeing the suit of the plaintiff-respondent are set aside and those of the trial Court dismissing the suit are restored. The respondent shall pay the costs of this Appeal to the appellants in one set and bear his own.