Sri. Dodda Siddaiah repted. by its SPA Holder Sri. S. Siddaiah vs K.C. Basave Gowda

L. Narayana Swamy, J.—This appeal is filed against the Judgment and decree passed in R.A. No. 83/2006 on the file of the Fast Tract-1 at Chikkaruagalur dated 02.09.2006 reversing the degree passed in O.S. No. 302/1996 Addl. Civil Judge (Jr.Divn.) Chikmagalur. The trial Court in its Judgment dated 03.12.2001 decreed the suit for declaration and injunction.

The plaintiff is appellant herein who made prayer for declaration, declaring the sale deed alleged to have been executed in favour of the respondent is null and void and the same is not binding on the plaintiff. Secondly, he sought for permanent injunction, restraining the defendant.

The plaintiff has taken contention in the suit that, the land measuring 1 acre 38 gunta in Sy. No. 471 situated in Kuruvangi village Chikmagalur Taluk and District was granted on 09.05.1961 The grant in favour of the plaintiff was conditional grant for the purpose of invoking provisions of the PTCL Act. The defendant has taken contention that the plaintiff has executed the sale deed voluntarily without the pressure of anybody and there was no misrepresentation as alleged. After the execution of the sale deed, the revenue entries were made in favour of the defendant. The case fifed by the plaintiff/grantee came to be dismissed by the Assistant Commissioner.

On the basis of the contention and defence taken by the respective parties, issues have been framed. The plaintiff himself was examined as PW1 and in his chief examination he has stated that the land in question was granted with a condition of 15 years non-alienation and by misusing the illiteracy, the defendant got transferred the land. Since it is in contravention of PTCL Act, he preferred appeal before the Asst. Commissioner for resumption and restoration of the land u/s 5 of the PTCL Act. The same came to be dismissed on the ground that sale has taken place after a non-alienation period. On behalf of the defendant, himself was examined as DW1. He has defended his case and stated that there is no contravention of provisions of the Act, Accordingly he submitted to dismiss the suit. Defendant also examined independent witnesses DW2 and DW3.

After examining the case of the respective parties, the suit came to be decreed on 03.12.2001 by declaring that the sale deed executed in favour of the defendant on 07.09.1972 is null and void and is not binding on the plaintiff and consequently injunction has also been granted.

On behalf of the plaintiff documents haw. been marked as Ex. P1 to P3 and on behalf of the defendant documents have been marked as Ex. D1 to D20, of which Ex. D5 is the order of the A.C. and D1 is the original sale deed.

Against the said Judgment and decree the defendant preferred an appeal in R.A. No. 83/2006, the same came to be allowed by setting aside the Judgment and decree passed by the trial Court, In para 12 of the Judgment of First Appellate Court, it has been held that "Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 came into effect w.e.f. 01.01.1979 and the Ex. Dl sale deed came to be executed 7 years prior to that date and came to be registered in the year 1972, that means 7 years prior to the Act came into force. A� on the date of sale deed the Act was not in force. Accordingly, Section 4 of the PTCL Act cannot be put into force.

The learned Counsel for the appellant submits that the Judgment and decree passed by the First Appellate Court is not sustainable in the eye of law.

When the case is called, the respondent counsel remained absent.

The granted land u/s 3(1) means "any lands granted by the Government to a person belonging to any of the SC or ST under relevant law for time being in force," that means, the Provisions of the Act is made applicable even prior to the Act 1978. According to the appellant counsel the condition was 15 years non-alienation and the sale taken within the prohibited period. Accordingly the sale is null and void. The submission of the learned Counsel for the appellant is that the plaintiff is a person belonging to SC and the Provisions of the PTCL Act are applicable. If any sale made contravening the Provisions of Act, such sale has to be annulled, Section 4 of the Act, says that "notwithstanding in any law, agreement, contract or instrument any transfer of granted land made either before or after commencement of this Act, in contravention of the terms of the grant of such land or the law providing such grant, or Sub-section (2) shall be null and void and no right, title or interest in such land shall be conveyed or be deemed to have been conveyed by such transfer". Sub-section 2 of Section 4, it made mandatory to get permission from the Government, if the transfer has to be made after the prescribed condition.

In the instant case, the plaintiff who is appellant herein has taken specific stand that the land in question is granted to him with 15 years non-alienation, Hence, rightly in view of the PTCL Act, the suit came to be decreed and sale in flavour of the defendant has been declared as null and void. Under the Act the authorities are empowered u/s 5 of the Act to restore such land where there is violation in order to preserve the interest of SC/ST grantees. The plaintiff has stated that he approached the Asset. Commissioner for restoration, which came to be dismissed. Against that he preferred appeal to Deputy Commissioner, which also came to be dismissed. The appellant has further filed Writ petition, which is pending. Such being the case, the suit is improperly initiated and it is a futile in exercise. Therefore, the granted land cannot be the subject matter in the civil suit and one has to proceed under specific provision made available to the grantee.

In the light of the above, the substantial question of law raided by the appellant is, whether the Judgment and decree of first Appellate Court in reveraing the Judgment and decree of trial Court is in accordance with law. The second substantial question of law is whether the sale transaction of suit schedule property made in favour of the defendant could defend his property as held by the first Appellate Court. The provision has been made by way of legislation, The PTCL Act 1978 (Karnataka Act No. 2 of 1979) whan it is a special provision statutory authorities have been empowered and under such circumstances, the civil proceedings is barred. This fact has not been noticed by the Presiding Officer of both trial Court and First Appellate Court Therefore the Judgment and decree of both the Courts below are liable to be set aside.

Accordingly, this appeal is disposed of setting aside both the Judgment and decrees of the Courts below, The appellant is reserved liberty to pursue his remedy under the PTCL Act.