Iragamma v. B. N. Rangaiah Setty — 1999 DIGILAW 255 (KAR)

ORDER 1. The prayer in the writ petition is to set aside the order dated 15-5-1997, which is as follows: (a) to set aside the order dated 15-5-1997 in Appeal No. 307 of 1992 passed by the Karnataka Appellate Tribunal, Bangalore, as found at Annexure-C; (b) to quash the impugned order dated 22-9-1989 in LRR/CR/95/86-87 passed by the Assistant Commissioner, Kolar Sub-Division, Kolar as per Annexure-A insofar as it relates to forfeiture the schedule lands to the Government. 2. The fact that gave rise to the petition is that the petitioner is the daughter of one Chowdappa. The first respondent is the son and the second respondent is the grandson of one Shamaiah Setty. The said Shamaiah Setty filed a suit against the father of Chowdappa in O.S. No. 220 of 1964 on the file of the Munsiff at Kolar for recovery of the money and the same came to be decreed. The said Shamaiah Setty filed an Execution Case No. 254 of 1973 and brought Sy. Nos. 75/7, 13, 34/1 and 92 of Beeramahalli, in all measuring 10 acres 3 guntas. On 13-10-1976 the said B.K. Shamaiah Shetty admittedly purchased the schedule land in Court sale. To set aside the said sale, O.S. No. 419 of 1977 was filed. Though the suit was dismissed, the appeal was allowed and the same was held to be in violation of K.L.R. Act and the Appellate Court declared in RA No. 65 of 1990 that the sale is not valid and void in the eye of law. But the Assistant Commissioner passed an order before the disposal of the appeal by the Civil Court. Therefore, he relied upon only the order of the Munsiff. It is contended that once the sale is set aside the petitioner becomes the owner of the property and the forfeiture made by the Government on the ground that there is violation of the terms of the grant, is not correct. Again the sale was an act done through the Court of law for which the petitioner is not responsible. Consequently, he prayed for restoration of the land back to him, setting aside the forfeiture. 3. The learned Counsel Mr. Chandramohan appearing for respondents 1 and 2 contended that the sale in favour of his client's father is still valid. Again the sale was an act done through the Court of law for which the petitioner is not responsible. Consequently, he prayed for restoration of the land back to him, setting aside the forfeiture. 3. The learned Counsel Mr. Chandramohan appearing for respondents 1 and 2 contended that the sale in favour of his client's father is still valid. But he was evidently unaware of the disposal of RA No. 65 of 1990 where the sale has been set aside. It is seen no further appeal has been filed against RA No. 65 of 1990 and the order has become final. However, he contended that having lost his money, the petitioner is not entitled to any relief. The learned Government Pleader submitted that the earlier order was passed by the Assistant Commissioner on the basis of the decree of the Munsiff and the latter order no doubt has taken into consideration the judgment of the first appeal and taking into consideration the order was passed the Appellate Tribunal has rightly dismissed the appeal both on merits and on the question of delay. 4. Heard the respective Counsel. 5. I find that the dismissal of the appeal on the ground of limitation and declining to excuse the delay by the Appellate Authority, is not correct. No reasons much less sufficient reasons within the meaning of Section 5 of the Limitation Act has been given and the poor lady should not be penalised for having approached the Court with an application to condone the delay in filing the appeal. I find sufficient reason has been given and delay ought to have been condoned. 6. On merits I find that the Tribunal has committed an error apparent on the face of the records. In regular appeal the following order is passed: "Appeal is allowed. The judgment and decree of the Trial Court is set aside only insofar as it relates to refusing the relief of cancelling the sale. It is declared that the sale of suit properties held in favour of defendants in Ex. 254 of 1973 on the file of the Prl. Munsiff, Kolar is null and void". 7. The Tribunal having read the certified copy came to a wrong conclusion that the sale in favour of Shamaiah Setty has become absolute. It is an error apparent on the face of the record. The sale has been set aside. 254 of 1973 on the file of the Prl. Munsiff, Kolar is null and void". 7. The Tribunal having read the certified copy came to a wrong conclusion that the sale in favour of Shamaiah Setty has become absolute. It is an error apparent on the face of the record. The sale has been set aside. Therefore, the petitioner automatically become the owner of the property, the sale having been set aside. 8. The forfeiture is applied on the ground that the petitioner has violated the terms of the grant by alienation. But the alienation is not made voluntarily but by an act of decree. A Division Bench of this Court in Kashi alias Rukmini Bai v The Assistant Commissioner, Coondapur, has held as follows: "What can be forfeited and declared as vested in the State Government is a land in respect of which a transaction referred to therein has taken place. The transactions referred to in the section are such as which have been brought about in contravention of the Act and which has been declared by the Assistant Commissioner as null and void. The forfeiture cannot be made except as a penalty and therefore, it is only the land of the person who has incurred the penalty that becomes liable for forfeiting and vesting in the State Government. The land must belong to the person who has brought about transaction in contravention of the provisions of the Act and who has thereby become liable for penalty. 9. In the light of the above dictum and in the light of my discussion above, the writ petition is allowed. No costs. 10. Learned Government Pleader is directed to take notice and permitted to file his memo of appearance on behalf of respondents 3 and 4 within four weeks.