H. N. TILHARI, J. ( 1 ) HEARD the petitioner's counsel-Smt. Asha m. Kumbargiremath and Sri p. k. ponnappa, counsel for respondent 3. ( 2 ) BY this petition, under article 226 of the Constitution ofindia, the petitioner has challenged and sought the quashing of orders dated 24-4-1993, in case No. Lnd. Sc. St. (m) 8:92-93, copy of which has been annexed as annexure-b, to the writ petition as well as the order passed by the appellate authority, that is, the deputy commissioner, kolar, dated 23-8-1994, in appeal No. Ra. Sc. St. 4:93-94, copy of which the petitioner has annexed as Annexure-C , to this writ petition, whereby the appellate authority confirmed the order of the assistant commissioner. ( 3 ) FACTS of the case in the nutshell are that gullappa thippa, who belonged to adi-karnataka caste was granted the land to the extent of 2 acres of sy. No. 213/4, situate in village hulimangala village, vide order of the assistant commissioner, dated 23-2-1963. According to petitioner, it was a free grant and that the grant was subject to certain conditions including the condition that the land shall not be alienated for a period of 15 years as per condition No. 8 of the saguvali chit. The land was for being cultivated by the original grantee. That after getting that land under the grant, the grantee sold the land on 7-10-1967 and transferred the granted land in favour of respondent 3, namely, Sri munishyamireddy and handed over the saguvali chit etc. , with possession of the land to respondent 3. Petitioner is the son of the grantee. According to the petitioner's case, petitioner had filed the application under Section 5 of act 2 of 1979 for restoration of the alienated land in his favour on the ground that this transaction of sale was hit by Section 4 of the act. ( 4 ) IN the proceedings taken by the assistant commissioner, he opined that the saguvali chit of the grant did not contain condition No. 8, putting a bar against alienation for 15 years. In other words, the assistant commissioner opined that there was no bar against alienation nor was established and so, the alienation that had been in favour of 3rd respondent by grantee could not be held to be illegal, null and void and rejected the application moved by the present petitioner. In other words, the assistant commissioner opined that there was no bar against alienation nor was established and so, the alienation that had been in favour of 3rd respondent by grantee could not be held to be illegal, null and void and rejected the application moved by the present petitioner. ( 5 ) THE present petitioner filed an appeal under Section 5-a, sub-section (1-a) of the act. ( 6 ) THE appellate authority by his order Annexure-C , dated 23-8-1994, confirmed the order of the assistant commissioner and dismissed the appeal. ( 7 ) HAVING felt aggrieved from the orders annexures-b and c to this writ petition, the petitioner has come up before this court by petition under article 226 of the Constitution of india. ( 8 ) ON behalf of the respondents, Sri ponnappa, learned counsel submitted that in view of the fact that the temporary grant of the land was made in favour of the grantee in 1942. Thereafter, permanent grant was made. So, it was a case of grant under Rule 43-j and in view of the full bench decision of this court, the bar against alienation that is contained and provided under Rule 43-g will have no application and as it did not apply, the authorities were justified in taking the view that there was no bar against alienation. ( 9 ) LEARNED counsel submitted that even, if for a moment, it may be taken that under the saguvali chit, there was a clause, as asserted by the petitioner, as clause 8 prohibiting the alienation of the granted land for the period of 15 years. That clause being in conflict with the rules has to be taken to be redundant and bad in law, as the clause has been inserted without any authority. Learned counsel on this basis submitted that alienation was not subjected to any such clause, as non-alienation clause even, if there may be any under the saguvali chit and therefore, the authorities, that is, the assistant commissioner and the deputy commissioner rightly held that the sale deed dated 7-10-1967, could not be held to be illegal, null and void under Section 4 and therefore, rightly rejected the application of the petitioner under Section 5 as well as rightly dismissed the appeal. ( 10 ) I have applied my mind to the contentions made by the learned counsels for the parties. ( 10 ) I have applied my mind to the contentions made by the learned counsels for the parties. There is no dispute that the parties did belong to adikarnataka community. Adikarnataka community is the scheduled caste. The grant is a free grant. The reasoning of the authorities is also that there was a temporary grant in 1942 and thereafter, permanent grant was made in 1963. Even, if for the sake of argument, it be taken as contended by the counsel for the respondent that the grant was one under Rule 43-j, the question is: whether non-alienation clause could be inserted or provided in the grant and the saguvali chit and if it is there, whether it is valid or invalid. One thing is to be noted firstly that burden is always on the alienee to prove that the alienation was not hit by Section 4 (1) of act 2 of 1979, in view of Section 5, sub-section (3) of act 2 of 1979. Section 5 (3) of the act provides and reads: "for the purposes of this Section, where any granted land is in possession of a person other than the original grantee or his legal heir, it shall be presumed, unless contrary proved that such person has acquired the land by transfer which is null and void under the Provisions of sub-section 1 of Section 4". Section 4 of sub-section (1) of the act No. 2 of 1979, reads as under: "4 (1) notwithstanding anything in any law, agreement, contract or instrument, any transfer of the granted land made either before or after the commencement of this Act, in contravention of the (a) terms of the grant of such land (b) of law providing for such an act or of sub-section (2), shall be null and void and no right, title and interest, in such land shall be conveyed or be deemed ever to have been conveyed by such transfers". ( 11 ) THE provision per se reveals that even, if transfer made in contravention of the terms of the grant, has been declared and provided of to be null and void. ( 11 ) THE provision per se reveals that even, if transfer made in contravention of the terms of the grant, has been declared and provided of to be null and void. A transfer in contravention of the Provisions of law relating to grant is also declared to be null and void, and any transfer made in contravention of sub-section (2) to Section 4 of Karnataka Act 2 of 1979 itself, has also been declared to be null and void. This reveals that the terms of the grant are also very important and particularly, when they are not in conflict with the Provisions of law. ( 12 ) HERE, in this present case, it is very clear that alienee had got in his possession, the saguvali chit which had been handed over to the grantee, as grantee had handed over saguvali chit to the transferee. This fact is not disputed, saguvali chit according to the petitioner's case, did contain condition No. 8, to the effect that the grantee shall not make the transfer of the land for 15 years, as it has been the case of the respondent-alienee that the saguvali chit did not contain any such condition, it was for him to have filed the saguvali chit. He has not done so, before the authorities. ( 13 ) IT is one of the well-settled principle of law that, if apers on is in possession of a document which could have thrown light on the question involved, but that person does not produce that document of which he has possessed of, then the adverse presumption has to be drawn against him, particularly when no rhyme or reason be taken. Such a person cannot be permitted to rely on the sheer doctrine of burden of proof. It is well-settled that when a question is involved, which has to be decided on the basis of the document and if the party being in possession of the document, does not produce it, adverse inference has to be drawn against him. ( 14 ) IN the case of Ram Parkash Das v Anand das and others, their lordships of the privy council observed: "as to the books, they have not been produced for any period which is critical in this case. It is admitted that the manager of the asthal, raghunath, was responsible for their custody and accuracy. ( 14 ) IN the case of Ram Parkash Das v Anand das and others, their lordships of the privy council observed: "as to the books, they have not been produced for any period which is critical in this case. It is admitted that the manager of the asthal, raghunath, was responsible for their custody and accuracy. Had they been produced the absence of entries in them would, if the defendant's case be true, have completely confounded the plaintiffs allegations. The story which raghunath gives as to the books is, in their lordship's opinion, very unsatisfactory". This case lays down the law, where a party is in existence of an entry, but non-production by the opposite party of the accounts books raises adverse presumption against the party having in possession of the documents. ( 15 ) T. S. MURUGESAM Pillai v M. D. Gnana Sambandha Pandara Sannidhi, their lordships of the privy council have been pleased to lay down the law as under: "a practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and falling accordingly to furnish to the courts the best material for its decision. With regard to third parties, this may be right enough; they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is, in their lordship's opinion, an inversion of sound practice for those desiring to rely upon a certain State of facts to withhold from the court the written evidence in their possession which would throw light upon the proposition. The present is a good instance of this bad practice. It is proved in the case by the first witness that "the mutt has regular fair day-books, they are not now before the court; ledgers are also maintained in the mutt". These ledgers and day-books were in the possession of the defendants or those of them who were heads of the institution, and they are not put in evidence. The best assistance to a court of Justice would have been a scrutiny of these documents, and their lordships feel free to conclude that they had been their entries confirmatory of the defendants' view the defendants would have brought them into court". The best assistance to a court of Justice would have been a scrutiny of these documents, and their lordships feel free to conclude that they had been their entries confirmatory of the defendants' view the defendants would have brought them into court". ( 16 ) IN the present case, it is, as mentioned, it is admitted that it is saguyali chit which had been granted to the grantee, had been handed over and given to the alienee. The saguvali chit would have revealed the conditions. ( 17 ) FOLLOWING the law as laid down by their lordships of the privy council, in my opinion, had the saguvali chit did not contain any such condition, as putting bar on alienation, the alienee, who is in possession of the saguvali chit which had been handed over to the alienee, he would have produced the same before the authorities to substantiate his claim that the grant did not contain any bar against alienation and this leads to one thing that the grant did contain a bar against alienation, as alleged by the petitioner as per condition 8 therein, that the grantee will not alienate the land for 15 years from the date of grant or from the date of delivery of possession. ( 18 ) THE another question that: whether such a condition could be imposed under the law even, if the grant be taken to have made under Section 43-j, in my opinion, the answer should be in positive that such a condition could be imposed under the terms of grant, in view of Section 60 or 66-a of the Mysore land revenue Act, 1888 and as held by this court in a number of writ petitions decided by this court vide judgment in Manchegowda Bin Nanjegowda v State of Karnataka and others. Thus considered in my opinion, the grant made in favour of the grantee was subject to the term that alienation shall not be made of the granted land for 15 years. ( 19 ) IN the present case, the alienation appears to have been made on 7-10-1967, that is within 4 years of the date of grant which grant had been made on 23-2-1963. ( 19 ) IN the present case, the alienation appears to have been made on 7-10-1967, that is within 4 years of the date of grant which grant had been made on 23-2-1963. Thus considered in my opinion, the alienee has been in breach of the terms of the grant, apart from that, alienee had failed to rebut the presumption, which lay under Section 5 (3) of the act which ordains to be raised in respect of persons in possession of granted land, who are other than the grantee or his heirs. That such person is in possession of the land by having acquired it by way of transfer which has been void and which is deemed to be null and void under Section 4 (1) of the act. Thus considered in my opinion, the assistant commissioner and the deputy commissioner in passing orders at annexures-b and c, committed error of law apparent on the face of record and of jurisdiction, the orders of these authorities deserve to be quashed and writ petition also deserves to be allowed. ( 20 ) THE writ petition is hereby allowed by issuing of writ of certiorari and quashing the orders impugned in this writ petition passed by the assistant commissioner dated 24-4-1993, in case No. Lnd. Sc. St. (m) 8 of 1992-93 and order dated 23-8-1994, passed by the deputy commissioner in sc. St. 4:93-94. ( 21 ) THE direction is issued to the respondent 2, to decide the application under Section 5 in accordance with the observations made by this court, as laid in the earlier part of the order. Costs are made easy. ( 22 ) SMT. Shantha kumari, learned high court government pleader is allowed to file memo of appearance. --- *** --- .