Smt. Gowramma and Others vs Smt. Neelamma and Others

Vikramajit Sen, C.J.—The only ground canvassed before us is that, even if the violation of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (in short ''PTCL Act'') has been committed, the appellant can rely on law of adverse possession and claim perfection of his title. The matter stands covered on all fours with our Judgment dated 17.01.2012 in WP No. 15851/2011 in which we had observed as follows: 8. We are also not persuaded by the learned counsel for the appellant that A. Narasimhamurthy Vs. State of Karnataka and Others, advances his case. The learned Single Judge had to construe Rule 43-G of the Mysore Land Revenue (Amendment) Rules, 1960. It was in that context that it was opined that prohibition of alienation for a period or in perpetuity, could be imposed only where the grant was for a consideration which was less than the market price. Instead, analysing the extant law, a learned Single Judge in P. Surya Prakash Vs. The Deputy Commissioner and Others, has held that land granted for the upset price and not for the market price, upon alienation, would be null and void by virtue of conjoint operation of Sections 4 and 5 of the 1978 Act, even if the conveyance was to a member of the Scheduled Caste/Scheduled Tribe. The second proposition in Narasimhamurthy''s case (supra) that adverse possession has been made out does not appear to us to be correct. In the first place, no period of limitation has been prescribed in the 1978 Act. It is trite that a claim is not extinguished even where the statute bars the grant of relief after a certain period; therefore, in the absence of any prescription, the right remains alive. Furthermore, adverse possession, by its very nature, must be open and hostile to the person against whom it is sought to be claimed. It is inherently illogical to accept a claim for adverse possession in circumstances where the claimant essentially bases his title on a conveyance from a person against whom adverse possession is claimed. For example, a tenant may remain in possession for decades without end, but his tenure would not metamorphosis or transform into ownership by adverse possession.

This is inspite of the fact that it is evident that plea of adverse possession has not been argued before the Assistant Commissioner or any of the authorities below. It would also be relevant to reproduce the following passage from D.N. Venkatarayappa and another Vs. State of Karnataka and others, 3. The petitioners, admittedly, had purchased the property in the years 1962-63 from the original allottees. The Government have allotted those lands as per Saguvali Chit containing prohibition of alienation of the land. Subsequently, the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 was enacted totally prohibiting the alienation up to a particular period. The proceedings were Initiated against the petitioners for ejectment under said Act. All the authorities have concurrently held that the alienation in favour of the petitioners was in violation of the above rules and the said Act and hence the sales are voidable. When the case had come up before this court, this Court while upholding the constitutionality of the Act directed the authorities to go into the question of adverse possession raised by the petitioners. The learned Single Judge has extracted the pleadings on adverse possession of the petitioners. Therein, the High Court had pointed out that after the purchase of the lands made by them, they remained in possession and enjoyment of the lands. What requires to be pleaded and proved is that the purchaser disclaimed his title under which he came into possession raised by the petitioners. The learned Single Judge has extracted the pleadings on adverse possession of the petitioners. Therein, the High Court had pointed out that there is no express plea of adverse possession except stating that after the purchase of the lands made by them, they remained in possession and enjoyment of the lands. What requires to be pleaded and proved is that the purchaser disclaimed his title under which he came into possession, set up adverse possession with necessary animus of asserting open and hostile title to the knowledge of the true owner and the latter allowed the former, without any let or hindrance, to remain in possession and enjoyment of the property adverse to the interest of the true owner until the expiry of the prescribed period. The classical requirement of adverse possession is that it should be nec vi, nec clam, nec precario. After considering the entier case-law in that behalf, the learned Single Judge has held thus:

The contention raised by the petitioners that they have perfected their title in respect of the lands in question by adverse possession, has to fail on two counts. Firstly, the crucial facts, which constitute adverse possession have not been pleaded. The pleading extracted above, in my views will not constitute the crucial facts necessary to claim title by adverse possession. It is not stated by the petitioners in their pleadings that the petitioners at any point of time claimed or asserted their title, hostile or adverse to the title of the original grantees/their vendors. In my view, mere uninterrupted and continuous possession without the animus to continue in possession hostile to the rights of the real owner wall not constitute adverse possession in law.

In the case of P. Lakshmi Reddy v. L. Lakshmi Reddy, relied upon by Shri Narayana Rao at para 7 of the judgment, the Supreme Court, following the decision of the Privy Council in Secretary of State v. Debendra Lal Khan, has observed that the ordinary classical requirement of adverse possession is that it should be nec vi, nec clam, nec precario and the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor.

In the case of State of West Bengal v. Dalhousie Institute Society, the Supreme Court, on the basis of the materials on record, which were referred to by the High Court, took the view that in the said case, the respondent had established his title to the site in question by adverse possession. Further, the said decision proceeds on the basis that the grant made by the Government was invalid in law. That is not the position in the present case. The alienation in question was only voidable. The petitioners came into possession of the lands in question by virtue of the sale deeds which are only voidable in law. Therefore, they have come into possession by virtue of the derivative title as observed by the Supreme Court in the case of R Chandevarappa v. State of Karnataka. Further, in the case of Kshitish Chandra Bose v. Commissioner of Ranchi, the observation made by the Supreme court at para 8 of the judgment relied upon by Shir Narayana Rao in support of his contention that the only requirement of law to claim title by adverse possession is that the possession must be open and without any attempt at concealment and it is not necessary that the possession must be so effective so as to bring it to the specific knowledge of the owner concerned, I am of the view that the said observation must be understood with reference to the observations made in para 7 of the judgment. At para 7 of the judgment, the Supreme Court has observed thus:

For instance, one of the most important facts which clearly proved adverse possession was that the plaintiff had let out the land for cultivatory purposes and used it himself from time to time without any protest from the defendant. During the period of 45 years, no serious attempt was made by the municipality to evict the plaintiff knowing fully well that he was asserting hostile title against the municipality in respect of the land.

Further, this Court, in the case of Danappa Revappa Kolli v. Gurupadappa Maliappa Pattana Shetty, while referring to the decision of the Supreme Court in Kshitish Chandra''s case, supra, relied upon by Shri Narayana Rao in support of the plea of adverse possession, there should be necessary animus on the part of the person who intends to perfect his title by adverse possession. The observations made in the said decision reads thus.

Apart from actual and continuous possession which are among other ingredients of adverse possession, there should be necessary animus on the part of the person who intends to perfect his title by adverse possession. A person who under the bona fide belief things that the property belongs to him and as such he has been in possession, such possession cannot at all be adverse possession because it lacks necessary animus for perfecting title by adverse possession.

Therefore, it is clear that one of the important ingredients to claim adverse possession is that the person who claims adverse possession must have set up title hostile to the title of the true owner. Therefore, I am of the view that none of the decisions relied upon by Shri Narayana Rao in support of the plea of adverse possession set by the petitioners, is of any assistance to the petitioners.

Further, admittedly, there is not even a whisper in the evidence of the first petitioner with regard to the claim of adverse possession set up by the petitioners. It is not stated by the petitioners that they have been in continuous and uninterrupted possession of the lands in question. What is stated by the petitioners. In substance, is that they came into possession of the lands in question by virtue of the sale deeds executed by the original grantees. The Supreme Court, in para 11 of the decision in Chandevarappa''s ease supra, has observed thus:

The question then is whether the appellant has perfected his title by adverse possession. It is seen that a contention was raised before the Assistant Commissioner that the appellant having remained in possession from 1968, he perfected his title by adverse possession. But the crucial facts to constitute adverse possession have not been pleaded. Admittedly, the appellant came into possession by a derivative title from the original grantee. It is seen that the original grantee has no right to alienate the land. Therefore, having come into possession under colour of title from the original grantee, if the appellant intends to plead adverse possession as against the State, he must disclaim his title and plead his hostile claim to the knowledge of the State and that the State had not taken any action thereon within the prescribed period. Thereby, the appellant''s possession would become adverse. No such stand was taken nor evidence has been adduced in his behalf. The Counsel in fairness, despite his research, is unable to bring to our notice any such plea having been taken by the appellant.

Therefore, in the absence of crucial pleadings, which constitute adverse possession and evidence to show that the petitioners have been in continuous and uninterrupted possession of the lands in question claiming right, title and Interest in the lands in question hostile to the right, title and interest of the original grantees, the petitioners cannot claim that they have perfected their title by adverse possession and therefore, the Act does not apply as laid down by the Supreme Court in Manchegowda v. State of Karnataka. The law laid down by the Supreme Court in Chandevarappa''s case, supra fully applies to the facts of the present case. In the said case, while considering the claim of adverse possession of the purchaser of a granted land from the original grantee, the Supreme Court has observed that the person who comes into possession under colour of title from the original grantee, if he intends to claim adverse possession as against the State, must disclaim his title and plead his hostile claim tot he knowledge of thereon within the prescribed period. It is also relevant to point out that sub-section (3) of Section 5 of the Act provides that where a granted land is in possession of a person, other than the original grantee or his legal heir, it shall be presumed, until the contrary is proved, that such person has acquired the land by a transfer, which is null and void under the provisions of sub-section (1) of Section 4, Since I have negatived the contention of Shri Narayana Rao that the original grantees are not Scheduled Castes, it follows that the lands in question are granted lands within the meaning of clause(b) of sub-section (1) of Sec. 3 of the Act. Therefore, the burden is on the petitioners, who had admittedly come into possession of the lands in question, to establish that they have acquired title to the lands in question by a transfer, which is not null and void under the provisions of sub-section (21) of Section 4 of the Act, In the instant case, the petitioners have failed to discharge the said burden. On this ground also, the petition should fail. Secondly, the grants made in favour of the original grantees are admittedly free grants. The rule governing the grant prohibited alienation of the lands in question permanently. The lands in question were granted to a Scheduled Caste person taking into account their social backgrounds, poverty, illiteracy and their inherent weakness for being exploited by the affluent section of the society. Under these circumstances, the conditions were imposed that the grantees should not alienate the lands granted to them. Sections 66-a and 66-B of the Land Revenue Code authorise the State to resume the land for violation of the terms of the grant, Therefore, if the terms of the grants, which are hedged with conditions, and the class of persons to whom the lands are granted, are taken into account and considered, it is not possible to accept the contention of the learned Counsel for the petitioners that the title in the lands had passed absolutely to the grantees. I am of the view that the title to the lands continued to remain in the State and what has been transferred to the grantees is the right to continue to be in possession of the lands granted to them and enjoy the same in perpetuity subject to the condition that they do not violate the conditions of the grant. This view of mine is supported by the Division Bench decision of this Court in the case of Rudrappa v. Special Deputy Commissioner, where in para 8 of the judgment, the Division Bench of this Court, while considering similar grants, has taken the view that the grantee was not given absolute title in respect of the land granted. The relevant portion of the judgment at para 8, reads as follows;

It is clear from the terms of the grant that the appellant''s predecessor-in-title, the grantee could hot alienate the land for certain period and if the land was alienated, it was open to the Government to cancel the grant and resume the land in question. If the grant was hedged in with several conditions of this nature, the same cannot be said to be absolute. Moreover, it must be noticed that the grant was made at an upset price. In the circumstances, proceedings initiated by the respondents cannot be stated to be barred by limitation nor is it possible to sustain the plea of adverse possession raised on behalf of the appellant.

In that view, it was held that the title of the land in question has not been absolutely granted to the petitioners. Their title by adverse possession against the State was for a period over 30 years prior to the date of coming into force of the Act. The petitioners failed to prove their claim for adverse possession. This finding was upheld by the Division Bench in para 3 of its judgment thus:

It is no doubt true that when the grant of land is made, depending on the terms thereof, the land may vest in the grantee with full right, but if the terms of the grant itself spell out certain conditions which restrict the rights that are available in respect of the land which had been granted, the fine-tuned arguments addressed by the learned counsel for the appellants would pale into insignificance for admittedly the title is clogged with the resumption of land in the event of violation of the terms of grant and would necessarily mean that the grantee cannot give a better title than what he had, to be purchaser and that title has the burden of non-alienation either for a particular period or for all period to come If any sale is effected contrary to those provisions, the same would enable the authorities to resume the lands in question. Thus, the terms of grant itself cannot be understood to be absolute right. Such title necessarily cuts down the capacity or the power to alienate the lands. Therefore, it is unnecessary to refer to the various decisions relied upon by the learned counsel for the appellants in this regard for this aspect did not arise for consideration much less considered in the aforesaid decisions, The context in which those provisions were interpreted were only cases of simple grants unhindered by the enactment like the one with which we are presently concerned. In such cases what rights would flow or arise are entirely different. The Act clearly sets out that any transfer or grant of land made either before or after the commencement of the Act in contravention of the terms of grant of such land, would be null, void and no right, title or interest in such land shall be conveyed nor deemed to have ever been conveyed by such transfer. When the provisions of the Act clearly spell out to destroy such transactions to argue that the parties concerned had clear title fully in respect of the same would not stand to reason.

The appeal is devoid of merit. Dismissed.