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2008 Supreme(SC) 2
2008(1) Supreme 68
Supreme Court of india
Dr. Arijit Pasayat & P. Sathasivam, JJ.
Kaliyamma & Ors. — Petitioner
Versus
Deputy Commnr, Chitradurga Distt. & Ors. — Respondents
Appeal (civil) 7875-7876 of 2001
Decided on 03-01-2008
Headnote:Karnataka High Court Act, 1979 – Section 4 – Karnataka Schedule castes and schedule tribes (Prohibition of transfer of certain lands) Act, 1979 – Grant of eight acres of land to two persons “R” and “N”, sons of ‘K’ – Appellant’s case that said “R” and “N” formed a joint family with one “B” and in partition, out of eight acres of joint family lands, five acres were given to “N” and three acres were given to “B” – Sale of three acres of land by “B” to one “T” by registered sale deed and remaining five acres of “N” were acquired by vendee in Court auction – Sale of eight acres of land by “T” under registered sale deed in favour of ‘D’ - Application for deceleration by son of grantee “R” and legal representative of “N” that sale was null and void and restoration of possession from purchaser– Appellants case that since they were in possession for more than 12 years from date Act came into force they had perfected title by adverse possession – Appeal u\s 5A of Act by legal representatives of grantee – Allowed by Deputy commissioner holding that in these cases alienation took place much before completion of ten years period – Since land was alienated during non-alienable period, land vested with government – Writ petition by Appellants – Dismissed by Single judge – Writ Appeal – Dismissed — Relying upon decision in case of Guntaiah and Ors. vs. Hambamma and Ors. held that if the grant was made under Rule 43-J, there could not have been any condition restricting alienation and if at all there were any such conditions they were null and void – Said view had been taken for reason that conditions restricting alienations were given under clause (4) of Rule 43-G and these provisions would apply to grant of lands made under preceding rules and not apply to Rule 43-J which comes after Rule 43-G of the Rules of 1960 - This view had been taken based on the title/marginal note of Rule 43-G – Since under Rule 43-J, it was not stated that there shall be any conditions prohibiting alienation – Hence, Court held that Authorities were not empowered to impose any such conditions – Appeal having no merit dismissed. (Paras 8, 9)
[2005 (6) SCC 228] relied upon.
Facts of the Case:-
1.Eight acres of land were granted to two persons “R” and “N”, sons of ‘K’. Appellant’s case that said “R” and “N” formed a joint family with one “B” and in partition, out of eight acres of joint family lands, five acres were given to “N” and three acres were given to “B”. Three acres of land was sold by “B” to one “T” by registered sale deed and remaining five acres to “N” were acquired by vendee in Court auction. Eight acres of land was sold by “T” under registered sale deed in favour of ‘D’. Application for deceleration was filed by son of grantee “R” and legal representative of “N” that sale was null and void and for restoration of possession from purchaser. Appellants case that since they were in possession for more than 12 years from date Act came into force they had perfected title by adverse possession. Appeal u\s 5A of Act filed by legal representatives of grantee was allowed by Deputy Commissioner holding that in these cases alienation took place much before completion of ten years period. Since land was alienated during non-alienable period, land vested with government. Writ petition by Appellants was dismissed by Single judge. Writ Appeal there against was dismissed.
2.Present Appeal has been filed against said order of High Court dismissing writ appeal.
Findings of the Court :
The Court held that stand taken before High Court essentially was that land was granted under non-depressed class category and, therefore, period was 12 years to substantiate plea about adverse possession. Relying upon decision in case of Guntaiah and Ors. vs. Hambamma and Ors. held that if the grant was made under Rule 43-J, there could not have been any condition restricting alienation and if at all there were any such conditions they were null and void. Said view had been taken for reason that conditions restricting alienations were given under clause (4) of Rule 43-G and these provisions would apply to grant of lands made under preceding rules and not apply to Rule 43-J which comes after Rule 43-G of the Rules of 1960. This view had been taken based on the title/marginal note of Rule 43-G. Full Bench was also of the view that under Rule 43-J, it was not stated that there shall be any conditions prohibiting alienation. Hence, Court held that Authorities were not empowered to impose any such conditions. Appeal having no merit was dismissed.
Result : Appeal dismissed.
judgment
1.Challenge in these appeals is to the judgment of a Division Bench of the Karnataka High Court dismissing the writ appeal filed under Section 4 of the Karnataka High Court Act, 1979 (in short the High Court Act). Challenge in the appeals was to the judgment of the learned Single Judge of the Karnataka High Court.
2.Background facts in a nutshell are as follows:
Eight acres of land in Survey No.59 were granted to two persons namely Rangappa and Nagappa sons of Kariyappa. According to the appellants, the said Nagappa and Rangappa formed a joint family with one Budappa and in a partition, out of eight acres of joint family lands, five acres were given to Nagappa and three acres were given to Budappa. The said Budappa sold three acres of land to one Thippreeranna by registered sale deed dated 3.2.1965 and remaining five acres of Nagappa were acquired by the vendee in the Court auction on 15.8.1966. Aforesaid Thippreeranna sold eight acres of land under the registered sale deed dated 23.2.1981 in favour of Devraj and the appellants herein are his legal heirs. The Karnataka Schedule Castes and Schedule Tribes (Prohibition of Transfer of Certain Lands) Act, 1979 (in short the Act) came into force with effect from 1.1.1979. One Rangaswamy claiming to be the son of grantee Rangappa and one Sanna Karriyamma claiming to be the legal representative of Nagappa filed application for declaration that the sale was null and void and restoration of possession from the purchaser before the Assistant Commissioner Chitra-durga Sub Division.
These applications were clubbed and enquiry was conducted. The Assistant Commissioner came to hold that when the grant was in favour of general category, the allotment was in Form-I and when it is in the name of persons belonging to the Schedule Castes and Schedule Tribes, it is in Form II.
3.It was the stand of the appellants that the grant was made in Form I and, therefore, the land will not come within the purview of the depressed class category and would be under the general category. Therefore, it was submitted that since they were in possession for more than 12 years from the date the Act came into force they have perfected the title by adverse possession. Legal representatives of the grantee filed appeal under Section 5A of the Act before the Deputy Commissioner. The said Authority allowed the appeal and set aside the order of the Assistant Commissioner holding that in these cases grant has been made during 1957 under the Land Revenue Code and the right of possession in respect of the grantee is limited. It was noticed that there was a condition not to alienate the land in question for a period of 10 years. In these cases the alienation took place much before completion of the ten years period. Since the land was alienated during the non-alienable period, the land vested with the Government. It was also noticed that the period would be 30 years and not 12 years as contented.
4.The matter was challenged by the appellants before the learned Single Judge who dismissed the writ petition but inter alia directed as follows:
“Whether respondents 2 & 3 have been the legal heirs of the grantee either as sons or adopted sons or in any manner under the law. That question has yet to be decided by the Assistant Commissioner when he has to restore the land to the grantee or his heirs in pursuance of the appellate order. Before actual delivering and restoring possession, the Assistant Commissioner should examine this question and if grantee or heirs are found in possession, the possession has to be restored to them. But if it is not practicable and possible to restore possession of the granted land to the grantee or his heirs under Section 5(1)(b) later part will automatically stand vested in the Government.”
5.The matter was carried in writ appeal. As noted above, the same was dismissed by the impugned order.
6.The stand taken before the High Court essentially was that the land was granted under the non-depressed
