Subbaraju vs State of Karnataka and Others

This writ petition is a second inning by the petitioner, who has lost in the earlier first inning.

The facts of the case in nutshell are:

That the land bearing Sy. No. 25/13 measuring 2 acres situated at Holebenavalli Village in Shimoga Taluk was granted in favour of 5th respondent vide the grant dated 15-11-1962 and grant certificate was issued on 21-8-1963. The grantee made transfer of the granted land in favour of one Sri KG. Puttappa Gouda, under a registered sale deed dated 12-8-1966. In turn the said Puttappa Gowda made transfer of the land in favour of one Sri Hanumanthaiah vide a registered sale deed dated 12-7-1967. The said Hanumanthaiah has in turn sold the said land in favour of one Smt. Indiramma under a registered sale deed dated 21-12-1972. From Smt. Indiramma, the petitioner has purchased this land through a registered sale deed dated 4-12-1974.

The proceedings under Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 were initiated and the Assistant Commissioner, Shimoga Sub-Division, Shimoga, found that the grantee had made transfer of the Land within 15 years from the date of grant and transfer of the land by the grantee by a registered sale deed dated 12-8-1966 was in breach of the terms of the grant and the provisions of Land Grant Rules as operative in 1962-63. According to the Assistant Commissioner, the grant being not for full market value, so the land was not alienable for a period of 15 years from the date of taking possession of the land under the grant by the grantee. No doubt, the proviso to that provided that such land could be alienable only with the previous permission of the State Government and subject to such conditions as the State Government may specify in that behalf in the order. As there was bar against alienation for 15 years and as no permission had been taken the transfer was held to be null and void being hit by Section 4 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 and the Assistant Commissioner directed possession of the land being taken from the transferee as the original transfer in favour of Sri KG. Puttappa Gowda was null and void. Therefore, the subsequent transferees also could not make transfer of the land as they had no title. This order was passed by the Assistant Commissioner, Shimoga Sub-Division, Shimoga, in PTCL.CR. 351/82-83, dated 12-5-1988.

Feeling aggrieved from the said order of the Assistant Commissioner, Shimoga Sub-Division, Shimoga, dated 12-5-1988 the purchaser i.e., the present petitioner filed the appeal in No. SC/ST 36/88-89 before the Deputy Commissioner, Shimoga District, Shimoga and the Deputy Commissioner i.e., Appellate Authority has dismissed the appeal of the appellant vide his order dated 15-3-1989.

Being aggrieved of the said orders of the Assistant Commissioner and Deputy Commissioner, Shimoga, the present petitioner filed the Writ Petition No. 9311 of 1989 before the Hon''ble High Court of Karnataka, Bangalore.

The Hon''ble Mr. Justice N.Y. Hanumanthappa, as he then was as Judge of this Court, after hearing the parties dismissed the writ petition and confirmed the orders passed by the Assistant Commissioner, Shimoga Sub-Division, Shimoga, and the Deputy Commissioner, Shimoga District, on 12-5-1988 and 15-3-1989 respectively. The writ petition was dismissed, but no doubt 1 year''s time was given to the petitioner to vacate and to hand over vacant possession of the land in question, to respondent 3 in that writ petition viz., Ramanaika, who is respondent 5 in the present writ petition. The Judge has also given liberty to the petitioner if he is aggrieved by the amount spent by him to improve the land he may approach the Assistant Commissioner with necessary application within two months from the date of receipt of this order for enquiry and for compensation or damages if law permits. The first inning of this case was finished on 5th October, 1993.

It has been submitted by the learned Senior Counsel Sri M.P. Eshwarappa that no appeal had been filed challenging the order dated 5th October, 1993. It means that this order had been allowed to become final.

Thereafter with the object of implementing the order of authorities issued notice to the petitioner on 8-11-1993 vide Annexure-G to the writ petition. On 20-11-1993, the petitioner gave reply that he had no concern in the land situated at Kaduti Village. Thereafter, the Assistant Commissioner, Shimoga Sub-Division, Shimoga has issued the endorsement on 6-10-1994. It was mentioned therein that the land was in possession and enjoyment of the petitioner and so he has issued notice for compliance.

The learned Counsel for the petitioner has pointed out that on 5-9-1994, the petitioner has filed his objections vide Annexure-K to the writ petition. The petitioner has stated that on receipt of the notice he filed objections in writing and without holding enquiry and without notice to the petitioner the endorsement as per Annexure-L to the writ petition has been issued. The petitioner has come up before this Court by way of this writ petition taking the plea that instead of holding enquiry under Section 39 read with Section 34 of the Land Revenue Act the endorsement has been issued. The petitioner in this writ petition has prayed for the grant of the following reliefs:

(a) Issue any appropriate writ, order or declaration declaring that the petitioner had perfected the title to the schedule property in view of the declaration of law made by the Hon''ble Supreme Court of India in the case of K.T. Huchegowda v Deputy Commissioner .

(b) Issue writ in the nature of certiorari to quash the endorsement dated 6-10-1994 in No. PTCL.CR 351/82-83 of the 3rd respondent as per Annexure-L.

(c) Issue any appropriate writ, order or declaration, declaring that the order of the Hon''ble High Court in W.P. No. 9311 of 1989, dated 5-10-1993 as per Annexure-F is unenforceable in view of the principles laid down by the Hon''ble Supreme Court in Huchegowda''s case, supra and also in view of Articles 141 and 144 of the Constitution of India.

(d) Issue writ in the nature of the mandamus restraining the 3rd respondent from evicting the petitioner from the schedule land.

(e) Issue any appropriate writ, order or direction as this Hon''ble Court deems to be fit and proper in the circumstances of the case in the ends of justice and equity.

No counter affidavit has been filed.

I have heard Sri M.P. Eswarappa, learned Senior Counsel assisted by Sri KG. Nayak and Sri P.S. Manjunath, Advocates for the petitioner, Sri Bharama Gowda, learned Government Pleader for respondents 1 to 4 and Sri S.S. Kadada Kattin, Advocate holding brief for Sri S.V; Prakash, Advocate for respondent 5.

The learned Counsel for the petitioner had taken me through the writ petition as well as the grant certificate. The learned Counsel emphatically contended that the petitioner had perfected title by adverse possession and for perfecting title by adverse possession 30 years period is not applicable, but it is only 12 years adverse possession to be shown and established. He contended that in view of the judgment in K.T. Huchegowda''s case, supra, the period of 12 years would have applied and the law has changed. Therefore, the Court should review the judgment in exercise of the power under Article 226 of the Constitution of India. He submitted that the earlier decision in the writ petition is not to operate as res judicata and is not binding on his client. He submitted that this Court has got ample and inherent power to review its decision and to declare its earlier decision to be wrong. He submitted that it is the duty of the Court to correct its decision. Further, it has been contended by the learned Counsel that the petitioner''s objection to the notice dated 8-11-1993 viz., objections dated 5-9-1994 has not been considered by the Assistant Commissioner, Shimoga Sub-Division, Shimoga before issuing the endorsement (Annexure-L).

In addition to the above point that decision in the earlier case may not operate as res judicata, I have heard Sri M.P. Eshwarappa, the learned Senior Counsel on the merits of his objections (Annexure-K) viz., the plea of adverse possession. In my opinion, firstly, when the plea to the effect that the grant made in favour of the grantee was grant of absolute rights and title by the State Government which it possessed having not been raised in the earlier stages of the proceedings from the stage of the Assistant Commissioner to that of this Court and the decision in Writ Petition No. 9311 of 1989, it can well be said that it is barred by resjudication under Section 11-Explanation IV of the CPC. Even otherwise in my opinion, the plea of adverse possession which has sought to be raised has got no merits.

That so far as K.T. Huchegowda''s case, supra is concerned, the principle of law laid down is that if under the grant there is absolute transfer of interest and title of the State Government in the land, made in favour of the grantee then in that case for perfecting title, by a transferee from him, by adverse possession 12 years period will apply. But, where there is no transfer of absolute ownership rights belonging to the Government in favour of the grantee then in order to claim title by adverse possession, the hostile adverse possession by claimant has to be established for a period of 30 years. Because, grantee''s possession is permissive and when transferee''s possession from grantee, continues to be permissive, till hostile possession is alleged asserted and established.

It will be appropriate to quote the following observations of their Lordships of the Supreme Court as contained in paragraphs 8, 9 and 10:

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 State 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 1 of 1969, in Article 65 of the Limitation Act, it has been prescribed that it would be 30 years in respect of immovable property belonging to a member of the Scheduled Tribes as specified in Part III to the Schedule to the Constitution (Scheduled Tribes) Order, 1950.

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 lands which have also 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, ILR 1987 Kar. 2076 (SC): 1985(1) Scale 455, 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 grant, has perfected his title by remaining in continuous and adverse possession. The transferee, who has acquired the land from the grantee, in contravention of the terms of the grant 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 Manchegowda v State of Karnataka, 1984(2) Kar. L.J. 1 (SC): AIR 1984 SC 1151: ILR 1-984 Kar. 1 (SC) 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.

It is obvious that for the purpose of determining whether the period of 12 years or 30 years limitation is to be 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, 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 or it was a mere allotment for enjoyment of the lands in question, the title having remained with the State Government.

From the reading of this judgment, it appears that in a case where by under the grant of absolute title and ownership rights of the State Government have been transferred in favour of the grantee thereof any person to whom such grantee transfers the land illegally and such a person claims title to such land by adverse possession then he has to prove adverse possession for twelve years. But, in case whereby the grant absolute ownership rights has not been transferred, but only transfer has been made of possession of the land for enjoyment, but the rights of ownership rights have been reserved and there is no transfer of absolute ownership rights, then if any person claims title by adverse possession in respect of granted land, he has to prove 30 years adverse possession against the owner of the land viz., State Government. Their Lordships of the Supreme Court have observed that in such a case, it is the duty of the Court to examine the grant certificate made in favour of the original grantee and then it should record a finding whether the grant was in the nature of absolute transfer of title of the State Government in favour of the grantee, or it was a mere allotment for enjoyment of the land in question, title thereto having remained with the State Government. It will be appropriate to quote at this stage the contents of the grant certificate Annexure-B the English translation of which has been filed by the learned Counsel for the petitioner in this writ petition. It reads as under:

Certificate of Grant-Schedule ''E'' of Land Revenue Rules

Whereas, under the rule for the disposal of unoccupied Government land for cultivation and the grant of occupancy rights the land specified in the Schedule hereunder written has been sold and shri Ramanaika has purchased it in public auction or for upset price and the same has been duly confirmed, and Shri Ramanaika declared the purchaser thereof, and whereas the said Shri Ramanaika has paid into the Government Treasury the full sum of the purchase money amounting to Rs. 8,504, Tahsildar, Shimoga Taluk, Sub-Divisional Assistant Commissioner and District Deputy Commissioner Shri V.H. Gaffor permit the said Shri Ramanaika to enter the occupation of the said land and hereby grant and confirm subject to cancellation or modification in appeal or revision under the provisions of the Land Revenue Act, the said Shri Ramanaika, his heirs, personal representatives and subject also to the regular payment of the land revenue assessment on the land as filed under the rules for the time being in force:

(1) Provided that this assessment shall be paid for each revenue year as per rules prescribed in this behalf from time to time under provisions of the Land Revenue Act, failing which it will be recoverable by coercive process in any manner prescribed by the Land Revenue Act and any rules may thereunder.

(2) Provided also that this title deed in no way affects the liability of the above said land to such rate taxes and cess other than land revenue as are or as may be imposed by law, whether in general, municipal or other local purposes.

(3) Provided also that the said Ramanaika or other lawful owner of the said land shall at all times hereafter at his own expenses maintain in good order, the restored major and miner tanks of the village with respect to which the customary obligation to maintain is imposed on the said Ramanaika by virtue of his being the occupant or other lawful owner of the said survey number and shall put up, repair and maintain in good order the boundary marks around and in the said land, failing which it shall be lawful for the State Government after due notice to cause the maintenance work of said tank insofar as his liability in this behalf extends and the repair of the said boundary marks to be carried out and to recover the cost of such maintenance work and such repair as a revenue demand from the said Ramanaika or other lawful owner.

(4) Provided also that nothing in the title deed contained shall affect the existing or customary rights of the Government or of the proprietors of land adjoining or lying near the said land or of the village in common in all existing roads and paths and in streams of water running through or bounding the said land.

(5) Provided also that this title deed shall in no way be considered to grant to or in any way vest in the said Shri Ramanaika, his heirs, personal representatives or assigns any right, title or interest in or to precious stones, gold and other minerals or coal or stone or rock containing or supposed to contain precious stones, gold or other minerals or coal known to exist or which may at any time hereafter discovered on or under the said land or any part thereof all of which are hereby respectfully reserved to the State Government subject to the conditions now in force or which may be prescribed in this behalf from time to time. Subject to the conditions that the said Shri Ramanaika, his heirs, personal representatives or assigns shall always be allowed to use free of charge any lime stone, granite and ordinary minerals other than metals or coal or precious stones which may be found on or under the said land and which may be applied to the bona fide private use of the said Shri Ramanaika, his heirs, personal representatives or assigns and not removed for purpose of sale.

(6) Provided also that this title deed shall not be considered in any way grant to or vest in the said Shri Ramanaika, his heirs, personal representatives or assigns the right to sandal trees which are hereby reserved to the State Government except insofar as the rules that are or may be framed in the matter, if the grant of bonuses for such trees may permit.

(7) Provided also that the grant shall be subject to further generally to the provisions of the Land Revenue Act and Rules thereunder or any other law from time to time being in force.

(8) Provided also that the land shall not be alienated for a period of fifteen (15) years from this date. From this date, the entire land should be cultivated.

Schedule of Land.

DistrictTalukVillageExtent :::: ShimogaShimogaNidhige Hobli2-80

Assessment-for the year 1983-84

Issue on this the 21st day of August, 1963.

Sd/-Tahsildar,Shimoga Taluk

A reading of this document per se reveals that under the rule for the disposal of unoccupied Government land for cultivation and the grant of occupancy rights the land was transferred. Under this deed very many rights relating to the right of ownership have been kept intact and reserved and even the right to take lime stone, granite and ordinary minerals etc., it has been provided that it can only be done after taking permission of the Government and subject to the conditions now in force or which may be prescribed in this behalf from time to time. It also provides that this deed shall not be considered in any way grant to or vest in the said Shri Ramanaika, his heirs, personal representatives or assigns the right to sandal trees which are hereby reserved to the State Government except insofar as the rules that are or may be framed in the matter. Further, it provides that the grant shall be subject to further generally to the provisions of the Land Revenue Act and Rules thereunder and that the granted land shall not be alienated for a period of fifteen (15) years from this date. Rules also provide a bar against alienation. A full owner will have a right to transfer the land in any way if he so desires. A reading of this deed per se reveals in my opinion that only right to enjoy the land has been given and the State Government has reserved its interest and title as owner. Therefore, the grantee cannot be said to have been granted absolute ownership rights which vested in the Government. There has been no transfer of ownership rights or title or interest of the Government to the grantee. Grantee''s possession has been permissive. The grantee had made illegal transfer and he had no right to transfer it. The transfers as such entered into possession under the invalid deeds and it can be said that possession of this nature was permissive and under the deeds which the grantee or grantees made transfers with effect from 12-8-1966 onwards. The transferred in my opinion could not and did not perfect their title by adverse possession to the land as ownership rights remains vested in the State Government and against Government, adverse possession could not be perfected for a period of 30 years. The entering into possession under the deed from the grantee possession of the transferee could also not said to be adverse. The transferees at the most if they could be said or to have entered under the deed would have been valid then in the shoes of the grantee, therefore, such a possession could not be deemed to have been adverse unless the petitioner had alleged and asserted to have asserted title and possession in hostility from the owner, the State Government on and from specified date or time and has established his continuous adverse possession from said date for full 30 years thereafter earlier to commencement of proceedings under Sections 4 and 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978. In the present case, in view of the above, I am of the view and hold that petitioner has failed to establish perfection of any title by adverse possession for requisite period of thirty years against the State Government. In view of this decision of mine the objections of the transferee as filed before the Assistant Commissioner, Shimoga Sub- Division, Shimoga, on 5-9-1994 should be deemed to have been disposed of.

Respondent 3 is directed to take steps to take possession of the land and handover or restore possession to the grantee.

No doubt, this Court grants three months time to the petitioner to handover vacant possession of the land in question to the Government and it may restore possession of the land to the grantee or his heirs.

No doubt, the petitioner had continued in illegal possession of the land by lingering and delaying tactics adopted by him. It is always open to respondent 5 to avail proper remedy to claim damages against the petitioner, as the respondent 5 has been deprived of his right to enjoy the land. He may initiate separate proceedings for the recovery of compensation/damages.

Subject to the above observations and clarifications, the writ petition as such is hereby dismissed with costs.