Karnataka High Court
Sri.Munireddy vs State Of Karnataka on 27 January, 2010
Bench: Manjula Chellur, A.N.Venugopala Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALC§_:R..iER~.,_
DATED THIS THE 27?" DAY OF JANuARY,_r:b1nip:f _
PRESENT_
THE HON'BLE MRSJUSTICE :MAi\';J'U.t.:;AACRERLEEJR
A:\]_[:=..
THE HON'BLE MR. JUSTICE N-.vEN__uGORALvA GROWDA
WRIT APPEAIAIQ;A--15.aI/IRGII; C/ST)
BETWEEN: '
SRI.M:..t%r4IR§E§._Q'Y% 4] _
S,'-3v..i,AT3'v§ RAXIA L{AIA:A:JA*RRA..
AGED A~.E5QLJT?..72--.YE.4\RS. A
SARI. Y.T. SRA3AAINA:'*
S/OILATE T'r1IM.M*AFI~EDDY
. AGED 'ASOUT 42- YEARS.
A SR1. NAI3A"R'A'j
S/Q. LATE THIMMA REDDY,
- ABQUT 44 YEARS.
A SRI.R*Af;..A5HIVAPRAKASH REDDY
Y.o.'L'ATE THIMMA REDDY,
"Aggno ABOUT 39 YEARS.
ALL ARE RESIDING AT
No.10o/A, YADAVANAHALLI,
ATTIBELE HOBLI, ANEKAL TALUK,
BANGALORE RURAL DISTRICT.
...APPEL.LANTS
(BY SRI. T. SESHAGIRE RAO, ADV.)
THE STATE OF KARNATAKA,1_
REP. BY ITS SECRETARY, 1
DEPARTMENT OF REVEi'~1U_E,
VIDHANA SOUDHA,
BANGALORE:
THE SPECIAL DEPUTY c:OIYIM'IS,S.I%ONER,
BANGALORE URBAN _DISETRI:CT ,
K G ROAD ' ..
BANGALQREEQ
THE ASSI.S";ii".A-ISIT' CjO.MMIS--SIDN ER,
BANG.4§LQF~':E SOUTH~V.'SUi3=' DIVISION
_
SR1; CsIIkR'A.RAMA.EHOIrI
S/OV.SOLAPuR_;EHOy'IYA
R/ATIVADA RA FJALYA;~
_ -THALA'G}_éiA'TPU RA POST
UT'TARAHAE.TLI HOELI
'B1A'NG'ALOREvS"(3UTH TALUK.
" '--W'P..I"I' AP_P_EAL FILED U/S 4 OF THE
COUR S
A . IN THE. "j,wRIT
- 27/II/2009'.
RESPONDENTS
_ _ KARNATAKA HIGH
T PRAYING TO SET ASIDE THE ORDER PASSED
PETITION NO.3093}./2009 DATED
'Y THIS APPEAL COMING ON FOR PRELIMINARY
* HEARING THIS DAY, VENUGOPALA GOWDA 3., DELIVERED
TH?E"F
OLLOWING:
JUDGMENT
In this writ appeal, the writ petét.io:n.er's:: «have contended that the alienation of favour of the vendors ofstii.eir father grantee, who was a member cannot be voided under the proi,._;"'S,.;o_n:*i:d .;'tiw..«g_Li'§'arnatalcauySC / ST (Prohibition of Transfer...of'§Zertain Act, 1978 (for short, The declared as null and void hy..Vtii.é;",,j»urisdicti.:o'n.a:l"'auti§1o'rEty and the land was ordered to' we legal representative of the original Vgraxntiee,._u'Appe.i'lants challenged the action of jurisdicti'onaI au'tvho_if_i_ty unsuccessfully in appeal and also in ' writ,pei;it~ion,,,
2._'.'V'v'i?'j_l\/lsaterial facts which have led to this appeal cou|d~~oe;.stated as under:~ Sollapura Bhovi and Ramana Bhovi were granted 2 acres of land each by the Government on 22.09.1939 in Sy. No.39, Block No. 6 & 7 of Manchanahalli Village of Anekal Taluk. The grantees transferred the properties to '1 one Venkatappa under registered gift deeds dated 04.02.1946. He in turn sold the property Ramaswamy Bhovi under a sale deed Ramaswamy Bhovi sold the sai(li"pro.per%;y _,u"nid.er"a_'_jsal'e V deed dated 21.04.1952 to Gaviap'pVa,7..A.pw'ho éoliil land to Mr.Roya| Nanjappa,--v._"Under.4"a__ sale';d'ee'dwdated""
14.10.1952. The appellants'..ia're.",thé'~-»l_i_nealfi'descendents of Mr.Roya! Nanjappa.
4"' resp:onti'ent,.vVtheilegal"representative of Sollapura Bhovi,'a_ii"iitiatedfj'-~aci:io'n=___before the 3"' respondent - Assistant'iQommissi'0,n'er_"..'i'for restoration of the land. He si.{»binittedVv before.,t_hev said authority that the transactions
--,th--e4"~graéntees in favour of Venkatappa and all the 's.ubseque'rit sale transactions have become null and void as per' S.4{1.)'"of the Act. Notice was issued to the appellants, 2 iwlhothlough entered appearance through an advocate, did contest the proceeding. The Assistant Commissioner 'Hby exercising power under S.5 of the Act, passed an order declaring the transaction effected by if original grantees .2, resuiting in the uitimate sale of the property in favour of the father of the appeilants as null and void. order was put in chailenge in an appeai respondent, which was unsuccessfuti~..._Both th'4e*s;aid"o4_rders V' were put in chailenge in the writ
3. Sri T. Seshagiri Ra"o,:liea_rned ~cotitnVse|fl'appearing for the appeilants, ."Aco:nAten_d.e"d~..that,'"the originai grant being on V22.O9.1_939., there -was-..',_no.--rule framed by the Governn<i'e4n't:;regoi-atihg";co'nd:iti--'ons...of grant and in the absence of any"rfiJl.e,».,irfi-position of restriction based on the Governnfen_li ordVe.r'4Vis._bad.'t'and iiiegal, as heid in the case of ,_ M;vi'it.1\{A*PPA vs".=or__._____N., THIMMARAYAPPA AND OTHERS (ILR ' ;2'O€J,4 -.l{ARi..:3'29_8) and hence, the 3"' respondent was not . 'jListi'fieVd '«i"rfg..hoiding that the alienations effected in the year 19216. ar}d.'i952 to be in contravention of the provisions of if Secondly, a specific contention was urged before learned Single Judge that, the Government has 2' "granted the iand on 22.09.1939 and the alienation was on 04.02.1946 and the PTCL Act came into force on E,» » 01.01.1979 and by then, the appeliants' vendor had been in continuous possession. .o--F._t:h.eVp.roperty for more than 30 years, thereby, they..h«afve--_pe.rfe.cted...y:tVh.cg:i.r:' title to the property by adveVrse__pos'S'eesion, is"not:4cAorri;ectiy appreciated and hence, interferen9ce_is caI'ie;§ifor.
4. We have pe._r_p~sed'_Vthe. the writ appeai. S. Two.questiown»s..a:rise. for co'nS'i"c.§1eration vi2.,
(i) W'heth_er_ itV"'is._Vo~p_en""to an aiienee to take any v..----i--exce~ptio'rz;:y.toxtn-e co-ncli.tion of permanent non-
aiierratioyn'limpQ's~ed on the grantee of the iand by the Govej'i*nment3VV"'* '
(ii)WhetheVr .a4pepei«E.a.rits have perfected their titie to
-- -V _ the'p.rQp'e'rty by prescription of their right? No. Vf<3.V'.V':"vI.Vnz1is-pttitably, Soliapura Bovi and Ramana Bovi were m_ernh:ers of Scheduieci Caste community. They were acres of iand each in Sy.No.39, Biock Nos.6 and Manchanahaiii vitiage in Anekai Taiuk by the it .._Giovernment on 22.9.1939. It was a free grant. The Act has came into force on 1.1.1979. S5 of the Act empowers ix /.
the Assistant Commissioner to pass appropriate"'ord;e_rsVifplrn. resumption and restoration of the land to_..th_ue':vw.gra.ntee in case any transfer was effected, provides that, an Assistant,Commi'ssio'ner, on1a,pplicati'.on:*~s by interested person or on info'rrnat_iVon Vg'i~v:_e:n'V'in ilygriting by any person, or suo an" enquiry, is satisfied that the transgggfg-;-_rl'_orf is null and void as DFO_YiI_ided»,:i:'und;er of s.4, may by order, taléexg ":suc'n xland after giving a reasor:1;Va'b'ie'_' to the person to be evicteclfasnd to the original grantee. 5.11 makes it clear' that, 'the. provisions of the Act has over.. . ridinég éffec'tA.,overAoufner laws.
V 7.,,4:'S.oila.ip,u=ra Bovi and Ramana Bovi, transferred their gra«nted"properties under the registered gift' deeds to Venkatappa. No permission was obtained by them from if wééovernment for effecting the transfer. Subsequent ....a§lienations in respect of the said Tperty has taken place, /i the last one being the sale of 2 acres of land, on 14.10.1952 in favour of appellants' father.
8. In the case of MARIYAPPA (supra).,__gt'h..e. fiQndvii'ngi'is'igA V' that, in the absence of any rulesias on ..the authorising the officer to impose'<.conditions_;.restra'i;ni'ng"~., alienation, the transaction is n'Gt,:VV:'h%t by or
9. The schemes i'th_eflgr.ant ovfvmlaind by the Government to the landless piersonsi..yiieL:id'.'.~show that, the Goverfimen't"ca_.nwirnposge'restrictions. The title of the land primarily Vrernai'n.s"wiithV'th_e"Government. The Government while..gArant'in._g"titled-toiuithe lessees, can impose any . V. 'conaitieii which isipermissible under law. The land is being ~..giyen't:§*t,h'eki'essees either free of cost or at a price, which isii-ess thandjtnie full market price. State has all along given lands.'tQi«:'Iandless persons beionging to Scheduied Castes Vflgandrl.--'Scheduleci Tribes subject to the restrictions on _,_aFiienation of such lands. The Government being the paramount title hoider is entitled to impose any conditions which are not against any law and such conditions are \» binding on the grantees. Hence, the decision in themcase of MARIYAPPA (supra), has no application to the««c.a4'se§__'_cm'
10. Language employed in__,S..4_ of_~th'e"'i'X.'cftV"ir:Viveryt clear. In terms of the said prcsvisijon,' any"transferytiii granted land made eit'ner---._. beto~re . the = L' commencement of the_Act, "in____cfc;»r2t:"a.ventionof tire terms of grant or such /and"; S'h':'slllybf3 ri.ul,l anfc.' yo-id. The violation of the terms ofvthe grantIi'tse'lf_"-g_iyes._'ri:s"e' to the action under .ri/t"w_V'.'S};:'i":'I;:y:.of long as the terms of grant ptrohibitinlg":traVnste*rt._:a'i'e not opposed to any specific provision 'aria-.ii, thte'con.(j'i"tions cannot be violated and the transifevree gets "r'l=0.ifl.9cht by virtue of such invalid transfer. iTthat_is..tthe 'effect of S4 of the Act. prohibition regarding alienation is a 3""'~.__V"~restric:tivv.e covenant imposed by the grantor on the it rgr~a.ntaee, which is binding on the grantee. The grantees have not challenged the condition of permanent non- alienation in the grant certificates/saguvali chits. It is the appellants, who are third parti s, whose father had (D g\ .
10 purchased the land from the aiienee of grantee, have now raised objection to the 'non? alienation.
12. In the case of c;iLiIx'.T_AIAH- VArioi"..ot1nE«as~';vs. = "
HAMBAMMA AND OTHERS, (2y0o's»it(sV),_sccf "22t8y),_t-he Apex Court has held as foiloi/§.i'st'g.. 7 '4 V "The third» ]?arty""i's . riot" to say that the conditions hyiiithegigrvantoriito the grantee were void. As sale is concerned, it was entei if-nto': theuflovflernrnent and the grantee ar1d*--at th'ird--party purchaser had no interesty §{:%a.f_i's-a'}:t1on. Of course, he would be Ventitlieid __t0v_c.i'1al'ienge the violation of any statutory ~'~i'.:.p:rovisionisA"ou_t____iE the grant by itself specifically says there shall not be any alienation by the grantee it of 15 years, that is binding on the grantee so_1.oiig as he does not challenge that clause, more so yvheni he purchased the land, in spite of being aware of the:condition."
":13. It is also reievant to notice that, when the tonstétutiona! validity of the Act was challenged in the case of IVIANCHEGOWDA AND OTHERS VS. STATE OF 11 KARNATAKA AND OTHERS, (1984) 3 scc Court: has held as follows:
"17. Granted lands were intended enjoyment of the original grantees A'i:app§n' belong to the Scheduledgfastes and Schedulied' Tribes. " it At the time of the grant' a tdcondition been} imposed for protecting mteredstlslpiofthe-griginald grantees in the granted lands V"t.he~._transfer of the same. 'I'h'econd'itio*n"p prohibition on transfer: 'lands"for':a specified period, was by lthetspedcific term in the grant ltSClrf._lldlf,'.'b§:i;:_:l7f3E1S§1'1._l'Ol% 'anydlaw. rule or regulation governing" __ It was undoubtedly open to the graptor a't._the'r€"tin:e:l"c-Fgranting lands to the original _grant"ees"top stipnlate such a condition the condition being a terrnofpthe grant itself and the condition was in the interests of the grantee. Except on the d gsligch a condition the grantor might not have such grant at all. The condition imposed agairisli the transfer for a particular period of such 'granted lands which were granted essentially for the H benefit of the grantees cannot be said to constitute any AA unreasonable restriction. The granted lands were not in the nature of properties acquired and held by the grantees in the sense of acquisition. or holding of property within the meaning of Article 19(1) {i} of the 12 Constitution. It was a case of a grant by the owner of the land to the grantee for the possession'~.._a»nd enjoyment of the granted lands by the graritees: the prohibition on transfer of such granted v1an.dsf V' the specified period was an esser.--t.i&a1 terrn 'o'r'4con-C1.iT-io'11 on the basis of which the grant was ?mé;d_e;-
pointed out that the p'i'QhibitVi"0_1'1"'OI1 transfer «was not': for an indefinite period or_:pe,rpet.ual...f 'It for a in particular period...' the ob_--§ec't-.b'e.j.png that.._the'§ grantees should enjoy the "gran'te_d loandsfthemselves at least for the period duringgwhicli p1'ohib:i*ti_o'i1 was to remain operatiye;._ "-Experience shown that persons Vbeloxigifrig \".'*"34f31;i€,(f,Vl't£1(:'.'(3' "Castes and Scheduled Tribes to whornfftnle-. granted were. because of their poverty. lack"~of education and general backwardness, _eXploi'te_d varioiis persons who could and would EtakeVVp_advantage.of the sad plight. of these poor persons forypdepriving them of their lands. The imposition of th'e.vcondi.tion of prohibition on transfer for a particular 'could not. therefore, be considered to constitute 2 a any unreasonable restriction on the right of the
-grantees to dispose of the granted lands. The imposition of such a condition on prohibition in the very nature of the grant was perfectly valid and legal."
'i 13
14. Granted Sands were intended for the__;i'5e'n-efi-ti enjoyment of the grantees belonging to S_c~he.du~!.ed'l~:Caste:s and Scheduled Tribes. Condition im.péoised..:i.n orders/saguvali chits is for.Dro.tectii'ig'"'the of:
grantees in the granted lands'Byirestricti'r.g_V':th'e transfer of the iand being in their:,_._i'iiter-eVst,_icannloti.he obiected to or questioned by an alien'ee_/:third'v._Vpa,rw;.v,.1o'ri'itiie ground that, the comiinoni:misst.driisywlii-magiiiimsi-ity of law. The conditions to specific provisions of law, thergllitantee alone and not the subseqtierit'alieii.e'eA,li.'vvlh'o~tdeslpite knowing the conditions of gran,t~.undeur" vv_hi'ch graritor had obtained the property, . agurchased property, is not entitled to contend
-..tha_t,VA'th:'e~_coun.d,i:tions imposed by the Government on his ve nd 0 r _:~:z re yo i d , it '*-.__Re'.poini: i\|o.(ii):--
it it 15. Sri Seshagiri Rae, urged that the provisions of "the Act does not apply, inasmuch as, the appellants through their father have perfected their title to the land 14 by way of adverse possession. Reiiance was p_la'c'ed.,'_or§_'7the'*« _ decision and the case of V.MUNISWAMY---.,.y'$,,V"~§EPU'l"§' COMMISSIONER, KOLAR AND OT|?lA:iERS..4{_L1fiv9'9,3. wherein, it was held that, only thoseV_'t'i'ansfe'r- Scheduied Castes and Schedléurieo .vb'|"i'ilIJ"e.'S>._2:[l3é:l'SC)VVi}S which have taken place on befflore,\1"...1~.ii949 i.e., when the transferee-s have comp.l_et'ed, adyyerse,"p'ois--session prior to 1.1.1 979, woe id salted crib n{'trj'err"siwee p of the Act.
15i--.----v inlliii'e:iiasei,or i¥i.'r*;ii.1;'c+iEGowDA vs DEPUTY coMM:.ss'1om:lr<i'mp,Vibojfrieras, (1994) 3 scc 536), the Apex Codrt,_lltiasx"helc'_ a plea of adverse possession coiild be' raised"'--i-nVrh¢.same manner as is prescribed under it;h'e_,pr..o_vi,sioris of the Limitation Act. It has been further uheldfthVat."."gfor,::.'tVhe purpose of determining the period of iimiétatiora as to whether 12 years of 30 years is applicable, i't"has to be examined on its own merits and on the 'materials placed in support of the said claim, especially, it "the deed of grant in favour of the original grantee, for the purpose of recording finding asto whether the grant was 15 in the nature of absolute transfer of the title _ Government in favour of the grantee mere allotment for enjoyment of the |:a_vnds..inf} Claim shall be examined tai<i'rl-g. intov.aCcounlt"wVh,ether; the_'°. appellant has raised this pEea'x'at_:th_e earliest'foppgortunity, i.e., before the Assistanltf-Cor-nmp-islsloner'and what material has been produced by_.the_-ap'pei:lpant*before the Assistant Commissioner.' in '};su'pp.o:rt ofsucih .c|air'n~_.,...-- 1.7' 'fl; a.dve'r'se~~~ possession, has two e|emer"j».r,_s;""(i') of the appellants should become adverse to Vtrtie'«~4:_i'§~"' respondent and / or the State and-i'.:.(i:ij' tvVhel'app,e_|_téavnts and their father must have 'Cor;ti.nued~ito,tremain in possession for a period of 30 years ther'e'after-if 'Animus possidendi as is well known, is a requlisites ingredient of adverse possession. it is well sVe'ttl.ed principle of law by catena of decisions of the Apex "C§oL':rt that mere possession of the land would not ripen into Hupossessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of la /,1 16 the true owner. For the said purpose, not o;'_nl'y possidendi must be shown to exist, but the be shown to exist at the commence=mento}f The person in possession/m___ust V'ton'tinuee.»"i%'n,.the:;saViid_"*. capacity for the prescribed Act.
Mere long possession,' 'tr-i_te,,-ytor'~.a=.ipe.ri_od than 12 / 30 years, without into a title.
18. plea of adverse possessi'o'n,bAe%or»e3§:,tvhe"-ltssistaritm-Commissioner. They did not claim to the property on the basis of 'a_dverse_ Apvossession. Adverse possession is req»u~§§.:re:d,A'ito,v, be'p"i*ea.d.ed and proved. No material has been 'produc--e,d'~to«,dec_éde the piea reiating to adverse possession. Apipeilantsfanadultheir late father claim title only through their predecessors in title who claimed title through the "..f}o,rilg'i4.n,al"grantee. The appellants' predecessors accepted 'title of the original grantee / State. The claim is "g"inconsistent. Having come into possession of the property 1 under a sale deed, the appellapis and their predecessors
-/,".
17 must disclaim their right thereunder and assertion of their independent hostile adverse:fpossiession' to the knowtedge of the transfero:r_/ o.riar;.ijvna-lb ghjranvtee or the State / grantor and that, theKi_atter 'VVaeouie1sCed to the iilegal possession duringiyiétrhie preseribedperifod under the Limitation Act "period of possessory titieby ciam and nec precario, is founded on dekivery the uvioriiioinai grantee to the subseovuenti the appelkants' father purchasiedthepropierty---.:_:o'i114.10.1952. It goes without saying that; tVheV'a'ppei|ants admit by impiication that they came i"ni;o'Vd'possessi'o'n of the land iawfuiky under the sale A*~de.edA' r:fon.tinue to remain in possession till date, thereby; 'the ipiea of adverse possession is not avaiiabie to the appeilants.
19. Learned Single Judge has examined the matter " the correct perspective. The finding recorded and the L .//_« conclusion arrived at in the impugned flawless.
For the views we have takeri, 18 and shali stand dismissed. Ordi-zgred éc;6rdingiyi.'VV'A Ksj/--