NEELAMMA v. ASSISTANT COMMISSIONER, SHIMOGA — 1996 DIGILAW 554 (KAR)

P. VISHWANATHA SHETTY, J. ( 1 ) THOUGH this petition is posted for preliminary hearing in 'b group', with the consent of learned counsel for the parties, it is taken up for final hearing and disposed of by this order. ( 2 ) THIS is a purchaser's writ petition directing against order dated 25th of may, 1990 passed by the second respondent confirming order dated 6th july, 1987 passed by the first respondent declaring the sale of land measuring 2 acres in survey No. 134/112 of hosudi village, shimoga taluk and district, made by the 4th respondent, who, inturn, had purchased it from the third respondent, as null and void, in exercise of the power conferred on him under Section 5 (1) of the Karnataka scheduled castes and scheduled tribes (prohibition of transfer of certain lands) Act, 1978 (hereinafter referred to as "the act" ). The copies of the said orders passed by respondents 2 and 1 have been produced as annexures-b and a respectively. ( 3 ) RESPONDENT 3, though served with notice, has rema inedabsent. Notice to respondent-4 is dispensed with. ( 4 ) SRI a. k. subbaiah, learned counsel for the petitioner, submitted that the orders impugned are illegal and without jurisdiction in as much as the petitioner has perfected his title to the land in question by adverse possession having been in continuous and uninterrupted possession of the said land ever since the date of the purchase of the said land by means of a registered sale deed dated 14-9-1965 till the date of coming into force of the act on 1-1-1979. He submitted that the Provisions of the act cannot, therefore, be made applicable to the case on hand. In support of his submission, he relied upon the decision of the Supreme Court in Manchegowda and others v State of Karnataka and others, wherein the Hon'ble supreme court has observed that if a person has perfected his title by adverse possession, the Provisions of the act are not applicable. He drew my attention to paragraph-24 of the said judgment, which reads as follows:"24. . . . Also in case where granted lands had been transferred before the commencement of the act in uninterrupted possession for a period of 12 years from the date of the purchase and therefore the petitioner did not approach this court earlier. He drew my attention to paragraph-24 of the said judgment, which reads as follows:"24. . . . Also in case where granted lands had been transferred before the commencement of the act in uninterrupted possession for a period of 12 years from the date of the purchase and therefore the petitioner did not approach this court earlier. He drew my attention to paragraph-10 of the said judgment, which reads as follows: "10. It is obviously that for the purpose of determining whether the period of 12 years or 30 years limitation is to be applied, each case has to be examined on its own merit. The high court has dismissed the writ petition as well as the appeal merely on the basis of the order passed by this court in the case of Sunkara Rajayalakshmi v State of Karnataka, on the review Application filed before this court. According to us, the high court has to examine the claim made by the appellant on the materials produced in support of the said claim, especially the deed of grant in favour of the original grantee, for the purpose of recording a finding as to whether, the grant was in nature of absolute transfer of the title of the state government in favour of the grantee or it was a mere allotment for enjoyment of the lands in question, the title having remained with the state government". ( 5 ) SRI m. Siddagangaiah, learned high court government pleader appearing for respondents 1 and 2, submitted that the writ petition has to be dismissed not only on the ground that there is no merit in the petition, but also on the ground of delay and laches on the part of the petitioner in approaching this court. ( 6 ) I am unable to accept the contentions advanced on behalf of the petitioner. As rightly pointed out by the learned government pleader, this petition has to be firstly dismissed on the ground of delay and laches on the part of the petitioner. Admittedly, the first respondent has passed the order impugned on 6th of july, 1987. Further, the second respondent has dismissed the appeal filed by the petitioner against the order of the first respondent for default on 25th of may, 1990 and thereby the order passed by the first respondent came to be confirmed. Admittedly, the first respondent has passed the order impugned on 6th of july, 1987. Further, the second respondent has dismissed the appeal filed by the petitioner against the order of the first respondent for default on 25th of may, 1990 and thereby the order passed by the first respondent came to be confirmed. It is admitted by the learned counsel for the petitioner that subsequent to the order passed by the second respondent, the order passed by the first respondent was given effect to and the third respondent was put in possession of the land in question. The writ petition was filed on 18th of july, 1994, that is, nearly four years after the order passed by the second respondent dismissing the petitioner's appeal. In paragraph-2 of the petition, for the delay in approaching this court, the petitioner has stated as follows:"2. . . . . THE petitioner's then Advocate advised the petitioner at that time that the act attracts in this case since 30 years has not elapsed when the act came into force, after the alienation, and the petitioner has no remedy. This opinion the petitioner's Advocate was based on the 'decision of the Hon'ble Supreme Court of India in sunkara rajayalaxmi's case, supra, wherein it has been held that to perfect the title, in the case like this, the period of adverse possession should be 30 years. Therefore, the petitioner thought of not approaching this Hon'ble court since the matter has already been concluded by the Hon'ble Supreme Court of india. It is submitted that the Hon'ble Supreme Court of india, in its recent full bench decision in civil appeal No. 2099 of 1994 in k. t. huchegowda's case, supra, on March 18th 1994, has held that the title by adverse possession would be perfected within 12 years and not 30 years. That being the case, the petitioner having been in continuous possession of the land in question from the year 1965 and when the act came into force, 12 years had already been passed and therefore, the act has no application. Under these circumstances, the impugned order passed by the deputy commissioner in rejecting the appeal of the petitioner is contrary to law and therefore, not sustainable. Under the above explained circumstances, there is no delay in approaching this Hon'ble court". Under these circumstances, the impugned order passed by the deputy commissioner in rejecting the appeal of the petitioner is contrary to law and therefore, not sustainable. Under the above explained circumstances, there is no delay in approaching this Hon'ble court". the substance of the explanation offered by the petitioner for the delay in approaching this court is that the Hon'ble supreme court in huchegowda's case, supra, has clarified that in the case of absolute grant, the period of limitation is 12 years. Otherwise, according to the petitioner, he has no case on merits and had accepted the orders impugned. In my view, the said explanation given by the petitioner cannot be considered as valid explanation to invoke the jurisdiction of this court under article 227 of the Constitution of india. Admittedly, the petitioner has not raised the plea of adverse possession either before respondent 1 or before respondent 2. However, the explanation of the petitioner is that since the law was not clear, he did not raise the said plea either before the first respondent or before the second respondent. Whether the petitioner has perfected his title by adverse possession for being in continuous possession for a period of over 12 years, if the title in the land has been absolutely transferred to the grantee, or for being in continuous possession for a period of 30 years as against the state, is a question of fact which is required to be pleaded and established by means of evidence. In this context, it is relevant to refer to the observations made by the Hon'ble Supreme Court in the case of r. Chandevarappa and Others v State of Karnataka and others, at paragraph-11, which read thus:"11. The question then is whether the appellant has perfected his title by adverse possession. It is seen that a contention was raised before the assistant commissioner that the appellant having remained in possession from 1968, he perfected his title by adverse possession. But, the crucial facts to constitute adverse possession have not been pleaded. Admittedly, the appellant came into possession by a derivative title from the original grantee. It is seen that the original grantee has no right to alienate the land. But, the crucial facts to constitute adverse possession have not been pleaded. Admittedly, the appellant came into possession by a derivative title from the original grantee. It is seen that the original grantee has no right to alienate the land. Therefore, having come into possession under colour of title from original grantee, if the appellant intends to plead adverse possession as against the state, he must disclaim his title and plead his hostile claim to the knowledge of the state and that the state had not taken any action thereon within the prescribed period. Thereby, the appellant's possession would become adverse. No such stand was taken nor evidence has been adduced in this behalf. The counsel in fairness, despite his research, is unable to bring to our notice any such plea having been taken by the appellant". therefore, merely because the Hon'ble Supreme Court in huchegowda's case, supra, has observed that the period of limitation in cases where the title has absolutely transferred to the grantee, is 12 years, the explanation offered by the petitioner cannot be considered as a satisfactory one for the delay of four years in approaching this court to nullify the orders impugned. Therefore, I am of the view that the petition requires to be dismissed on the ground of delay and laches on the part of the petitioner in approaching this court. ( 7 ) HOWEVER, since the learned counsel for the petitioner has strenuously argued the case on merits, I am of the view that it is in the interest of Justice to consider the merits of the contentions of the learned counsel for the petitioner. ( 8 ) IT is not disputed that the land in question was granted free of cost. The conditions of the grant prohibited alienation of the land by the grantee for a period of 15 years from the date of the grant. ( 8 ) IT is not disputed that the land in question was granted free of cost. The conditions of the grant prohibited alienation of the land by the grantee for a period of 15 years from the date of the grant. While considering the similar grant in the case of D. N. Venkatarayappa and another v State of Karnataka and others, I have taken the view that where the grants are hedged with conditions, the title in the land is not absolutely passed on to the grantees, and what is transferred to the grantees is only a right to continue to be in possession of the land granted to them and enjoy the same in perpetuity subject to the condition that they do not violate the conditions of the grant. The said view taken by me is also supported by the decision of the division bench of this Court in Rudrappa v Special Deputy Commissioner. Therefore, even on merits, I am of the view that the petitioner has no case. Further, admittedly, the petitioner has not raised the plea of adverse possession and not stated crucial facts, which constitute adverse possession, either before the first respondent or before the second respondent. The petitioner cannot be permitted to raise the said plea for the first time before this court solely on the basis of the observations made by the Hon'ble supreme court in k. t. huchegowda's case, supra, relied on by the learned counsel for the petitioner. ( 9 ) FOR the aforesaid reasons, the writ petition fails and is accordingly dismissed. ( 10 ) HOWEVER, I make no order as to costs. ( 11 ) SRI m. Siddagangaiah, learned high court government pleader, is permitted to file his memo of appearance within four weeks from today. --- *** --- .