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2014 DIGILAW 1085 (KAR)

APPAJAPPA v. STATE OF KARNATAKA VIDHANA SOUDHA

2014-12-12

B.S.PATIL

body2014
ORDER 1. Order dated 03.09.2012 passed by the Assistant Commissioner, Bangalore North Sub Division ordering resumption of the land in question to the Government and restoration of the same to the to the original grantee or his legal representatives confirmed in appeal by the Deputy Commissioner, Bangalore District vide his order dated 30.09.2013 are called in question in this writ petition. 2. Petitioners are the purchasers of land bearing Sy. No.160/1 and Sy. No.160/2 (Old Sy. No.39) of Herendahalli Village, Bangalore East Taluk, totally measuring 2 acres 6 guntas. Respondent No.5 moved the Assistant Commissioner contending inter alia that the land was granted in favour of one Yelliga and the same was sold by way of registered sale deed dated 24.08.1948 in favour of one Munishamappa who in turn sold it to one Yellappa vide registered sale deed dated 04.05.1964 and the petitioner purchased the said land on 22.07.1965. She urged that the sale transactions were entered in violation of the provisions contained under Section 4(1) of Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short ‘the Act’). 3. Assistant Commissioner passed an order recording a finding that as per the copies of the extract of the saguvali chit register for the year 1927 to 194142, it was recorded that the land was granted on 23.04.1937 vide sub-divisional officers order No.A3.DD.11/3637 in favour of Yelliga S/o. Hydrappa and saguvali chit had been issued on 10.06.1937. He further found that entries in this regard were reflected in IL and RR. Therefore, the Assistant Commissioner persuaded himself to hold that the grant of land by the competent authority had been made on 13.09.1937 and the land had been alienated for the first time during the year 1948 in favour of Munishamappa in violation of condition of grant and therefore, first sale itself was illegal. 4. Assistant Commissioner repelled the contention of the petitioners that in the absence of original records relating to grant of land, no such findings regarding grant of land in violation of the conditions of grant could be recorded. 4. Assistant Commissioner repelled the contention of the petitioners that in the absence of original records relating to grant of land, no such findings regarding grant of land in violation of the conditions of grant could be recorded. Assistant Commissioner has further found that during the relevant period, as per the Government order dated 12.09.1929 land granted in favour of depressed class persons could not have been sold for a period of 20 years, whereas the land had been sold within a period 12 years form the date of grant that was made in the year 193637 and hence, there was violation of Section 4(1) of the Act. This order was called in question before the Deputy Commissioner. 5. The Deputy Commissioner has also come to the conclusion that the grant was made in the year 1937 in favour of Yelliga. He has held that as the sale was made ignoring the restriction / prohibition contained for alienation, order of the Assistant Commissioner could not be found fault with. 6. Learned counsel for the petitioners contends that as on the date of grant in the year 193637 there were no rules framed and the Government order dated 12.09.1929 bearing No.R212281/LR.368285 which imposed restriction for alienation had no legal basis and in view of the judgment rendered by the division bench of this Court in the case of MARIYAPPA VS. DR. N. THIM MARAYAPPA AND OTHERS– 2004 (3) KCCR 1471 , imposing restrictions on alienation, it cannot be said that Government order could put restrictions on such grant. 7. Learned counsel for the petitioner has further contended that petitioners have perfected their title by adverse possession. In support of the said contention, he has placed reliance on the judgment of this Court in the case of V. MUNISWAMY VS. DEPUTY COMMISSIONER, KOLAR AND OTHER – 1993 (3) KAR. L.J.346. 8. The Division Bench has clearly laid down that restriction that can be imposed restraining alienation had to be authorized by the Rules as provided under Section 36 of the Mysore Land Revenue Code and in the absence of any such Rule, no reliance can be placed on the Government Order and therefore, the sale made was not hit by Section 4 of the Act. This decision of the Division Bench has application in all force to the facts of the present case. 9. This decision of the Division Bench has application in all force to the facts of the present case. 9. It cannot be disputed that as on the date of grant which was allegedly made on 23.04.1937, there was no rule restricting alienation. The Deputy Commissioner has recorded an erroneous finding holding that as per the notification No.R.4509LR.983563 dated 31.01.1936 Rule 43(8) was introduced which provide for restricting on alienation. Rule 43(8) has been introduced on 13.12.1938 by notification No.R2828LR.8938. 10. In the light of the above, the findings recorded by the Assistant Commissioner and also the Deputy Commissioner are wholly erroneous and unsustainable in law. The Division Bench ruling applies to this case in all force. Therefore, by following the ratio laid down by the Division Bench in MARIYAPPA’s case, it has to be held that first sale made in the year 1948 was not in violation of Section 4(1) of the Act. As the first sale was not in violation of the Act, subsequent sales will not be affected. 11. Though learned counsel for the petitioner has disputed the very grant and has contended that the Assistant Commissioner has not provided him fair and reasonable opportunity and that there is no enquiry conducted by him, these questions need not be gone into because, admittedly, as on the date of grant, there was no Rule in force restricting or prohibiting alienation and the Government order which authorized such restriction has been held to have no legal force to affect the alienation. It is also unnecessary to go into the contention raised by the learned counsel for the petitioner that petitioners have perfected their title by adverse possession. There is no need to remand the matter as suggested by Sri Hebbar, learned Counsel for the respondent to make further enquiry regarding the date with effect from which Rule 43(8) was introduced.