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2010 DIGILAW 791 (KAR)

H. T. Bevuare Gowda v. Venkatesh

2010-07-08

ANAND BYRAREDDY

body2010
ORDER Anand Byrareddy, J.— These petitions are considered together having regard to the common legal issues involved. 2. The facts in the first of these cases are as follows: It is claimed that land in survey No. 126 measuring about 2 acres 20 guntas at Nagarbhavi village, Bangalore North Taluk, Bangalore District, was purchased by the petitioner under a registered sale deed dated 24.4.1968, from one Akkayamma, wife of Doddamuniswamappa and her children. The same had been purchased by her husband, from one Gudda Thimmiah in the year 1959. Thimmiah had purchased the same under a sale deed dated 18.8.1958 from one Chikkamma, who in turn, had purchased a total extent of 4 acres of land in the said survey No., from Munimutha, the original grantee under the Grow More Food Scheme, under a sale deed dated 20.7.1955. It is claimed that the said grant was covered tinder Rule 43J of the Karnataka Land Grant (Amendment) Rules, 1960. It was claimed by Respondents 3 to 6 that they are the children of the grandson of the original grantee aforesaid and sought to invoke the provisions of the Karnataka Scheduled Caste and Scheduled Tribe (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter referred to as 'the KPTCL Act' for brevity) claiming that the alienations in respect of the land were null and void. The proceedings were contested by the petitioner and it was sought to be established that there was an order of confirmation of the grant dated 24.2.1955, followed by an Official Memorandum dated 3.11.1955 where by it is clear that the original grantee was conferred an absolute right over the land, except with a condition of non-alienation for a-period often years. This is also said to be reflected in an extract of the Register of Dharkasts, as to the title deed having been issued to the grantee. It is claimed that the petitioner's predecessors, and after them the petitioner, had exercised continuous possession over the land. It is therefore, claimed that it is the settled legal position that the title of a transferee of the granted land has ceased to be voidable by reason of acquisition of a prescriptive right on account long and continued adverse possession. The petitioner contends that the long undisturbed possession is amply evidenced by material on record. It is therefore, claimed that it is the settled legal position that the title of a transferee of the granted land has ceased to be voidable by reason of acquisition of a prescriptive right on account long and continued adverse possession. The petitioner contends that the long undisturbed possession is amply evidenced by material on record. It is further contended that the lands in question have been acquired by the Bangalore Development Authority (hereinafter referred to as 'the BDA' for brevity) and even an award has been passed in favour of the petitioner. It is stated that the said acquisition proceedings have been questioned by the legal representatives of the grantee before this Court in writ petitions in W.P. 47516-517/2002 and the same is pending consideration. It is contended that notwithstanding the above circumstances, respondents 3, 4 and 5 have proceeded to execute sale deeds in respect of parcels of the said land on the basis of forged and false documents. It is contended that insofar as the proceedings under the KPTCL Act is concerned, the Assistant Commissioner as well as the Deputy Commissioner have failed to appreciate the contentions of the petitioner and have held that the transactions in respect of the land are violative of the relevant Rule prohibiting alienation. The Deputy commissioner has further held that the respondents 3 to 6 are entitled for payment of compensation by the BDA. It is in this background that the petitioner is before this Court. 3. In W.P. 13960/2006, the facts are as follows: The petitioners claim to be absolute owners of land bearing survey No. 66 of Lokasara village in Mandya District. The petitioners claim that the said land has fallen to their share under a registered partition deed dated 7.4.1959. It is claimed that the said land was originally granted to one Guli Dasaiah as on 2.10.1941. The grantee had, in turn, sold the same under a registered sale deed dated 20.5.1950 in favour of one M.C. Seshadri, who in turn had sold it to Thimmegowda. The petitioners had acquired the same at the partition between Thimmegowda and his brothers. The respondents had initiated proceedings under the KPTCL Act. The proceedings having been allowed and which is confirmed in appeal, the petitioners are before this Court. The petitioners had acquired the same at the partition between Thimmegowda and his brothers. The respondents had initiated proceedings under the KPTCL Act. The proceedings having been allowed and which is confirmed in appeal, the petitioners are before this Court. It is contended that the grant was not a free grant and was actually made for an upset price, which was equal to the market price. It is therefore contended that in the absence of a categorical finding in this regard, the impugned orders cannot be sustained. It is also contended that the petitioners having taken a plea that notwithstanding the fact that the land being treated as granted land under the Act, the petitioners had perfected their title by prescription. It is contended that this aspect of the matter has been glossed over and is not addressed by the competent authorities. 4. In W.P. 13961/2006, the facts are as follows: The petitioners state that they are the absolute owners of land in Survey No. 108 measuring 2 acres and 29 guntas of Lokasara village, Mandya district. If is stated that the land was purchased by one Huchegowda from, one Basave Gowda under a registered sale deed dated 16-12-1957. The same was partitioned amongst the sons of Huchegowda and the petitioners claim under them. The land was originally granted to one Dollaiah in the year 1941, who had sold the same to the aforesaid Basave Gowda under a sale deed dated 16.5.1955. Proceedings having been initiated under the provisions of the KPTCL Act and the same having been allowed holding that the aforesaid alienations were in violation of the terms of grant, the present petition is filed. It is contended that in the absence of a finding that the grant was free of cost or for less than the upset price, it could not be said that there was a bar to alienation. It is also contended that the competent authorities have overlooked the plea of the petitioners of having perfected their title by prescription, by virtue of long, undisturbed possession. 5. It is contended by the Counsel for the petitioner in W.P. 5390/2006, that it is apparent from the record that the land in question had been granted to the original grantee under the Grow More Food Scheme in the year 1945. 5. It is contended by the Counsel for the petitioner in W.P. 5390/2006, that it is apparent from the record that the land in question had been granted to the original grantee under the Grow More Food Scheme in the year 1945. The same was conferred absolutely in favour of the grantee under a Government Order dated 6.7.1955 which was duly published in the Gazette. A Certificate of Title was thereafter issued as on 3.11.1955. It was by a sale deed dated 18.8.1958 that the grantee had sold the entire 4 acres of land granted to him, in favour of Chikkamma. The petitioner had purchased an extent of 2 acres 20 guntas under a sale deed dated 24.4.1968, from a subsequent purchaser's widow and her children. It is contended that the question therefore would be whether the first sale, dated 18.8.1958 or the sale of the year 1968, in favour of the petitioner, could be challenged as being void under the provisions of the KPTCL Act. It is contended that both the authorities have incorrectly held, on admitted facts, that the transactions fell foul of the bar to alienation of granted land. Even according to the appellate authority, the land was leased to the grantee in the first instance and granted absolutely in his favour as on 3.11.1955, with a condition that the same shall not be sold for a period of ten years. It is not in dispute that the first sale was of the year 1958, and hence it is contended that the petitioner, who is a subsequent purchaser has perfected his title by prescription by virtue of long and continued possession. In this regard, reliance is placed on the decision of the apex court in the case of K.T. Huchegowda v. Deputy Commissioner ILR 1994 Kar. 1839. It is also contended that the petitioner's sale deed of the year 1968 is also not vitiated for want of sanction, as it is executed well before the coming into force of the KPTCL Act. Reliance is also placed on the following authorities: (i) Manchegowda and Others Vs. State of Karnataka and Others, AIR 1984 SC 1151 . (ii) Gavi Sidde Gowda Vs. State of Karnataka, ILR (1995) KAR 113. (iii) Shanthakumar v. The Deputy Commissioner, Chikmagalur and Ors. W.A. 481/2000 dated 25.6.2003 It is hence contended that the petition be allowed. 6. Reliance is also placed on the following authorities: (i) Manchegowda and Others Vs. State of Karnataka and Others, AIR 1984 SC 1151 . (ii) Gavi Sidde Gowda Vs. State of Karnataka, ILR (1995) KAR 113. (iii) Shanthakumar v. The Deputy Commissioner, Chikmagalur and Ors. W.A. 481/2000 dated 25.6.2003 It is hence contended that the petition be allowed. 6. Per Contra, the learned Counsel for the respondents would contend that admittedly, the Certificate of grant imposed a restriction on alienation for a period of ten years and therefore, it cannot be said that the grant was absolute. Consequently, the claim that the petitioner has perfected his title by prescription as against the State is not tenable - as such a contention cannot be raised against an inalienable right, as there was a restriction on the right to sell the land. Reliance is sought to be placed on the following authorities. (i) Lincai Gamango and Others Vs. Dayanidhi Jena and Others, AIR 2004 SC 3457 (ii) Amrendra Pratap Singh Vs. Tej Bahadur Prajapati and Others, AIR 2004 SC 3782 (iii) P.T. Munichikkanna Reddy and Others Vs. Revamma and Others, AIR 2007 SC 1753 (iv) Siddegowda Vs. Assistant Commissioner and Others, AIR 2003 SC 1290 (v) M. Bhoomi Reddy Vs. The Special Deputy Commissioner and Others, ILR (2003) KAR 2087 (vi) Government of Andhra Pradesh Vs. Thummala Krishna Rao and Another, AIR 1982 SC 1081 (vii) Smt. Aska Chakko and Ors. v. State of Karnataka and Anr. 2009 (2) KCCR 1220 . It is hence contended that the petition be dismissed. 7. In the light of the above, it is necessary to address the case law on the issue as to whether the petitioners could claim to have perfected their title to the land in question, in their respective cases, by prescription. 8. In Manche Gowda supra, a three Judge Bench of the apex court has, while upholding the constitutional validity of the KPTCL Act, proceeded to clarify the legal position regarding a transferee's position thus: Though we have come to the conclusion that the Act is valid, yet, in our opinion, we have to make certain aspects clear. Granted lands which had been transferred after the expiry of the period of prohibition do not come within the purview of the Act, and cannot be proceeded against under the provisions of this Act. Granted lands which had been transferred after the expiry of the period of prohibition do not come within the purview of the Act, and cannot be proceeded against under the provisions of this Act. The provisions of the Act make this position clear, as Sections 4 and 5 become applicable only when granted lands are transferred in breach of the condition relating to prohibition on transfer of such granted lands. Granted lands transferred before the commencement of the Act and not in contravention of prohibition on transfer are clearly beyond the scope and purview of the present Act. Also in case where granted lands had been transferred before the commencement of the Act in violation of the condition regarding prohibition on such transfer and the transferee who had initially acquired only a voidable title in such granted lands had perfected his title in the granted lands by prescription by long and continuous enjoyment thereof in accordance with law before the commencement of the Act such granted lands would also not come within the purview of the present Act as the title of such transferees to the grained lands has been perfected before the commencement of the Act. Since at the date of the commencement of the Act the title of such transferees had ceased to be voidable by reason of acquisition of prescriptive rights on account of long and continued user for the requisite period, the title of such transferees could not he rendered void by virtue of the provisions of the Act without violating the constitutional guarantee. We must, therefore, read down the provisions of the Act by holding that the Act will apply to transfers of granted lands made in violation of the condition imposing prohibition on transfer of granted lands only in those cases where the title acquired by the transferee was still voidable at the date of the commencement of the Act and had not lost its defeasible character at the date when the Act came into force. Transferees of granted lands having a perfected and not a voidable title at the commencement of the Act must be held to be outside the pale of the provisions of the Act. Section 4 of the Act must be so construed as not to have the effect of rendering void the title of any transferee which was not voidable at the date of the commencement of the Act. Section 4 of the Act must be so construed as not to have the effect of rendering void the title of any transferee which was not voidable at the date of the commencement of the Act. 9. In K.T. Huche Gowda, supra, another three-Judge Bench of the apex court, while taking note of an observation (in a decision rendered subsequent to Manche gowda, supra) of the apex court in the case of Sunkara Rajyalakshmi v. State of Karnataka 1985 (1) SCALE 445, to the following effect: We may also make it clear that so far as the second exception laid down by us in our judgement dated 17-4-1984 is concerned, namely that the Karnataka Scheduled Castes and scheduled Tribes (Prohibition of Transfer of Certain lands) Act, 1978 will not apply where the transferees have perfected their title in the granted kind by prescription of long and continuous enjoyment before the commencement of the Act, the period of limitation which has to be taken into account for the purpose of determining whether the title has been perfected by prescription is that which runs against the State Govt. and therefore it would be 30 years and not 12 years. 10. The apex court has further elaborated on the above aspect, in Huchegowda, supra thus: 8. On a plain reading, granted land will mean, any land granted by the Government to a person, who is a member of the Scheduled Castes or Scheduled Tribes which includes land allotted to such persons. Grant may be of different types; it may be by absolute transfer of the interest of the State Government to the person concerned, it may be only by transfer of the possession of the land, by way of allotment, without conveying the title over such land of the State Government. If by grant, the transferee has acquired absolute title to the land in question from the State Government, then subject to protection provided by the different provisions of the Act, he will be subject to the same period of limitation as is prescribed for other citizens by the provisions of the Limitation Act, in respect of extinguishment of title over land by adverse possession. On the other hand, if the land has been allotted by way of grant and the title remains with the Slate Government, then to extinguish the title that has remained of the State Government by adverse possession by a transferee on basis of an alienation made in his favour by an allottee, the period of limitation shall be 30 years. Incidentally, it may be mentioned that some of the States in order to protect the members of the Scheduled Tribes from being dispossessed from the lands which belong to them and of which they are absolute owners, for purpose of extinguishment of their title by adverse possession, have prescribed special period of limitation, saying that it shall be 30 years. In Bihar, vide Regulation No. 1 of 1969, in Article 65 of the Limitation Act, it has been prescribed that it would be 30 years in respect of immovable properly belonging to a member of the Scheduled Tribes as specified in Part III to the Schedule 10 the Constitution (Scheduled Tribes) Order, 1950. 9. There is no dispute that so far as the Act with which we are concerned, no special period of limitation has been prescribed, in respect of loads which have been granted to the members of the Scheduled Castes and Scheduled Tribes with absolute ownership by the State Government. In this background, when this Court in the case of Sunkara Rajyalakshmi v. State of Karnataka (supra) said that the period of limitation, which has to be taken into account for the purpose of determining, whether the title has been perfected by prescription, shall be that which runs against the State Government and therefore it would be 30 years and not 12 years, has to be read in context with the lands, the ownership whereof has not been transferred absolutely to the members of the Scheduled Castes and Scheduled Tribes; the lands having been only allotted to them, the title remaining with the State Government. The cases where the transfer by the State Government by way of grant has been absolute, then unless there is an amendment so far the period of limitation is concerned, it is not possible to apply the special limitation of 30 years so far such grantees are concerned, when the question to be determined, is as to whether a transferee in contravention of the terms of the gram, has perfected his title by remaining in continuous and adverse possession. The transferee, who has acquired the land front the grantee, in contravention of the terms of the gram shall perfect his title by adverse possession by completing the period of 12 years. When this Court said in its main judgment in the case of Sri Manchegowda v. State of Karnataka (supra) that in cases where granted lands had been transferred before the commencement of the Act in violation of the condition, regarding prohibition on such transfer and the transferee who had initially acquired only a voidable title, in such granted lands had perfected his title in the granted lands by prescription by long and continuous enjoyment thereof in accordance with law before the commencement of the Act has to be read, for purpose of determining the period of limitation in respect of lands granted with absolute ownership, to mean 12 years and grant by way of allotment without transfer of the ownership in favour of the grantee, to mean 30 years. 10. It is obvious that for the purpose of determining whether the period of 12 years or 30 years limitation is to he applied, each case has to be examined on its own merit. The High Court has dismissed the Writ Application as well as the Appeal merely on the basis of the order passed by this Court in the case of Sunkara Rajyalakshmi v. State of Karnataka, (supra) on the Review Application filed before this Court. The High Court has dismissed the Writ Application as well as the Appeal merely on the basis of the order passed by this Court in the case of Sunkara Rajyalakshmi v. State of Karnataka, (supra) 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 o it was a mere allotment for enjoyment of the lands in question, the title having remained with the State Government. 11. The above decisions though have settled the legal position, it is necessary to take note of the following decisions relied upon by the Counsel for the respondents in W.P. 5390/2006. 12. Amarendra Pratap singh, supra, which was followed in the case of Lincai Gamango, supra, the said decisions were with reference to the Orissa Scheduled Areas Transfer of Immovable Property (by Scheduled Tribes) Regulation (2 of 1956), wherein the apex court has held that a plea of adverse possession by a non- tribal transferee cannot be countenanced. This is a view that cannot be applied with reference to the KPTCL Act, having regard to the direct decisions pertaining to the interpretation of the claim of prescription vis-a-vis the provisions of the KPTCL Act, cited hereinabove. 13. In the light of the law as laid down by the decision in Manche gowda and in Huche gowda, supra, the petition in W.P. 5390/2006 has to be allowed- as it is incorrectly found, on admitted facts, that the title to the property had not passed to the grantee as on the date of the first sale transaction. Hence, the plea that title to the land had been perfected by prescription, after the expiry of the period of twelve years from the date of such sale, was tenable. Secondly, the petitioner's sale deed of the year 1968 being much before the KPTCL Act having come into force, the same is not invalid. Therefore the petition in W.P. 5390/2006 is allowed. Annexures - M and N are quashed. Secondly, the petitioner's sale deed of the year 1968 being much before the KPTCL Act having come into force, the same is not invalid. Therefore the petition in W.P. 5390/2006 is allowed. Annexures - M and N are quashed. Consequently, the petitioner would be entitled to claim any benefit including compensation that may be payable on the compulsory acquisition by the State, which would accrue to the petitioner. 14. Insofar as the petitions in W.P. 13960/2006 and 13961/2006 are concerned, in both the petitions it is found as a fact that the grant in the respective cases was made with a condition imposing a permanent bar against alienation, in the face of which there were sale transactions. The same being within thirty years from the date of the KPTCL Act having come into force, it cannot be said that the plea of adverse possession set up by the petitioners was tenable, in the light of the law referred to hereinabove. Accordingly, the writ petitions in W.P. 13960/2006 and 13961/2006 stand dismissed.