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2010 DIGILAW 1181 (KAR)

Sri Ramachandrappa v. State of Karnataka

2010-11-15

ARALI NAGARAJ, N.KUMAR

body2010
Judgment : N. Kumar, J: 1. These two appeals came to be dismissed for non-prosecution on 26.8.2010. Misc W 8881/2010 and W8882/2010 are filed for recalling the order dated 26.8.2010 dismissing both the appeals for non-prosecution. The said applications are not opposed. Accepting the reasons assigned in the affidavits sworn to in support of the applications for recalling the order dated 26.8.2010 dismissing the appeals for non-prosecution, the same are allowed. The order dated 26.8.2010 dismissing the appeals for non-prosecution is recalled and the appeals stand restored to their original file. 2. The appellants in both the appeals have preferred the above appeals against the order passed by the learned Single Judge, who has quashed the orders passed by the Special Deputy Commissioner and Assistant Commissioner, who held that the alienation in null and void and directed for resumption of the land. 3. The subject-matter of these appeals is the land bearing Sy. No. 68/19 measuring 2 acres of Kothaganahalli Village, Sarjapura Hobli, Anekal Taluk, Bangalore District. The said land was granted to one Kalappa, who belonged to the depressed class, in terms of the grant order dated 18.11.1943. The original grantee, Kalappa sold the entire land granted in favour of Venkatarama Bhovi under a registered sale deed dated 19.8.1948 in violation of the permanent non-alienation clause made in the grant order.Thereafter, the properties are subsequently alienated by way o sale and gift. Sri K.P. Ravindra Reddy, the petitioner in W. P. No. 18611 of 2004 and Sri N. Muniyappa, the petitioner in W.P. No. 18612 of 2004 have purchased two bits of land under the registered sale deeds. 4. The legal representatives of Kalappa filed an application in the year 1988 before the Assistant Commissioner, Bangalore South Division under Section 4 and 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short’ the Act’) for resuming the land. The Assistant Commissioner allowed the application, set aside the alienation and directed resumption of land. In the appeal, the Deputy Commissioner upheld the order passed by the Assistant Commissioner. Aggrieved by the same, they preferred writ petitions before this Court. 5. The learned Single Judge found that was 30 years had elapsed from the date of first alienation. The Assistant Commissioner allowed the application, set aside the alienation and directed resumption of land. In the appeal, the Deputy Commissioner upheld the order passed by the Assistant Commissioner. Aggrieved by the same, they preferred writ petitions before this Court. 5. The learned Single Judge found that was 30 years had elapsed from the date of first alienation. Hence, the petitioners have perfected their title by adverse possession and therefore the orders passed by the Assistant Commissioner and Deputy Commissioner are illegal and contrary to the law declared by the Apex Court. Aggrieved by the same, the appellants are before this Court. 6. Learned Counsel for the appellants submits that the judgment rendered by the Apex Court applies to permanent non-alienation clause and it has no application to the case of permanent prohibition of alienation. Therefore, he submits that the learned Single Judge committed serious error in setting aside the orders passed by the Assistant Commissioner and Deputy Commissioner. 7. The learned Additional Government Advocate for the respondents supported the impugned order. 8. From the aforesaid facts which are not in dispute, and rival contentions, it is clear that as the land in question was granted to one Kalappa, who belonged to the depressed clause, in terms of the grant order dated 18.11.1943. There was permanent prohibition clause whereas the purchasers contend that the prohibition was only for a period of 20 years though the alienation of the said land took place within five years from the dated of grant i.e., on 19.8.1948, on the date of coming into force of the Act, 30 years had elaspsed after such void transaction. It is in that context, this Court, in the case of Muniswamy Vs. Deputy Commissioner reported in ILR 1993 Kar. 2108 held as under: “Supreme Court made it very clear that if a transferee of land covered by the sweep of the Act had completed adverse possession for a period of 30 years prior to the date of coming into force of the Act then only he would not be touched. All other transfers, otherwise voidable, but falling within Section 4(1) of the Act would be liable to be proceeded with under the Act. All other transfers, otherwise voidable, but falling within Section 4(1) of the Act would be liable to be proceeded with under the Act. On a conjoint reading of the aforesaid decisions it must be held that only those transfers of lands by Scheduled Castes person which have taken place on or before 1.1.1949, i.e., when transferees have completed adverse possession prior to 1.1.1979 would be saved from the sweep of the Act. All other transactions would be liable to answer the requirements of the Act and would fall through on the anvil of the Act, on the conditions precedent to Section 4 being attracted. In the present case, as the appellant’s transaction falls within this unsafe period, unfortunately for him, there is no escape from the conclusion that this transaction was squarely hit by Sections 4 and 5 of the Act. No fault can be found with the reasoning adopted by the Authorities in this case and which is upheld by the learned Single Judge.” 9. In the instant case, the alienation had taken prior to 18.4.1948 and therefore the principle of adverse possession is squarely attracted. Therefore, the learned Single Judge rightly set aside the orders passed by the Assistant Commissioner and Deputy Commissioner. Insofar as the said judgment is concerned, it has no application to the case where 30 years are over before coming into force of the Act, and the person, who is in possession of the property, is entitled to the benefit of adverse possession. In that view of the matter, we do not see any merit in these appeals. Accordingly, the appeals are dismissed.