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2007(4) Kar. L.J. 439
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
N. KUMAR, J.
STATE OF KARNATAKA AND OTHERS - Appellants
Versus
H.B. MUNIVENKATAPPA (DEAD) BY IDS L.Rs - Respondent
Regular Second Appeal No. 2166 of 2006 connected with Writ Petition Nos. 12895 of 2005 , 39159 of 2002 (KLR-RR/SUR), 4335 of 2006 and Civil Revision Petition No. 62 of 2005.
Decided on : 8th March, 2007
Cases Referred: AIR 1987 SC 1353; AIR 1988 SC 897; AIR 1996 SC 1623.
Practice and Procedure - Decree - A decree passed by a court without jurisdiction is a nullity and non est. See, Code of Civil Procedure, 1908 - Order 20, Rules 6 & 6A.
Cases Referred: AIR 1987 SC 1353; AIR 1988 SC 897; AIR 1996 SC 1623.
Karnataka (Personal and Miscellaneous) Inams Abolition Act, 1954 - Section 9 - Tank bed - Vesting of land - Inamdar entitled to be registered as occupant - But such right would not extend to a tank bed - By mere cultivation character of tank bed never cases - It vests in Government free from all encumbrances - Cannot be granted to inamdar. [Kumar, J]: Though Section 9 recognized the right of an inamdar and he has been conferred a right to be registered as occupant of all lands which are vested with the Government, such a right is not extended to the lands which are mentioned in clause (i) of Sub-Section (1) of Section 9 of the Act. One such land to which, the said right do not extend is a "tank bed". In other words, if the schedule land is tank bed with the vesting of the said land in the Government, the inamdar did not have any right to get the same granted to him by way of occupancy rights. A tank bed by its proximity to the tank is a very fertile land. Only when the tank is full, the tank bed is also covered with water. When the tank bed is not covered with water, it is quite common that the villagers do cultivate the said land. Merely because such cultivation is done, it does not cease to be a tank bed. There is no provision in the Land Revenue Code or under any of the statute which declares that a tank bed by continuous cultivation for over a period ceases to be a tank bed. Therefore by mere cultivation of a tank bed, the character of the tank bed never ceases. If it is a tank bed, in spite of it being cultivated as on 1.2.1959 it vested with the Government free from all encumbrances and as is clear from Section 9 of the Act the inamdar has no right to seek for re-grant of the said land. It is a public property. Therefore, the legislature in its wisdom expressly made it clear that such public property cannot be granted to the Inamdar and it vests with Government for public use. In other words after vesting of the land under the Act the inamdar loses his right to that tank bed for all time to come. Correspondingly, when the Act expressly states that after vesting, the said property vests with the Government free from all encumbrances and the inamdar had no right to seek for such grant, the authority constituted under the Act has no jurisdiction even to entertain the said application, let alone grant occupancy rights in respect of such lands.
Cases Referred: AIR 1987 SC 1353; AIR 1988 SC 897; AIR 1996 SC 1623.
Appeal - By Government - Delay - Dismissal if proper.
Cases Referred: AIR 1987 SC 1353; AIR 1988 SC 897; AIR 1996 SC 1623.
Limitation Act, 1963 - Section 5 - Delay - Government in appeal - Refusal to condone delay - Dismissal of appeal - If proper. See, Code of Civil Procedure, 1908 - Section 100.
Cases Referred: AIR 1987 SC 1353; AIR 1988 SC 897; AIR 1996 SC 1623.
Limitation Act, 1963 - Section 5 - Object of - Stated. Dilatory Settled Principles: The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on merits . The expression "sufficient cause" employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which sub-serves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that: Ordinarily a litigant does not stand to benefit by lodging an appeal late. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties [AIR 1987 SC 1353].
Decree - Legality of - Court passing decree without jurisdiction - If can be sustained.
Cases Referred: AIR 1987 SC 1353; AIR 1988 SC 897; AIR 1996 SC 1623.
This second appeal is preferred by the State of Karnataka and its officials challenging the judgment and decree passed by the Lower Appellate Court in RA. No. 38 of 2004, wherein it declined to condone the delay in preferring the appeal and consequently dismissing the appeal.
2. The only substantial question of law that arise for consideration in the second appeal is:
"Whether the Lower Appellate Court has properly exercised the discretion in refusing to condone the delay in preferring the appeal in the light of the law declared by the Supreme Court and consequently dismissing the appeal?"
3. The facts leading to the present litigation are as under:
The subject-matter of these proceedings is land bearing Sy. No. 54 measuring 11 acres 20 guntas situated at Pattandur Agrahara Village. As per the survey records it is shown as Sarkari Kere (halla), Jodi inam village from the year 1860 itself. One Gundu Rao, the jodidhar of this land sold the same to Sri Muniswamappa son of Muniyellappa who in turn sold the same to another Sri Muniswamappa son of Siddanna. Subsequently, it was conveyed to one Shamanna Gowda who in turn sold to Thimmaiah alias TIlimmareddy. It is from him Captain Armugam Pillai Thyagarajan purchased on 7-11-1947. The said jodi inam village including the subject-matter of these proceedings vested with the Government of Karnataka under the provisions of the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954 (for short hereinafter referred to as 'the Act'), with effect from 1-2-1959. It is after vesting that H.B. Munivenkatappa, the original plaintiff purchased the aforesaid land under a registered sale deed dated 27-12-1960 from Captain Armuganl Pillai Thyagarajan.
4. One Smt. Ramakka wife of Shikari Muniyappa and Sri T. Venkatappa son of Thimmareddy had filed Case Nos. 121 of 1959-60 and 131 of 1959-60 claiming occupancy rights in respect of the aforesaid land before the Special Deputy Commissioner for inams. The said applications were dismissed on the ground that the said land is a tank bed and also reserved land. Captain Thyagarajan also filed an application claiming occupancy rights before the Special Deputy Commissioner which was numbered as Case No. 34 of 1976. The same was also rejected on the ground that the schedule land is a tank bed which cannot be re-granted. All these orders rejecting the claims have become final.
5. By Act 26 of 1979 which came into force from 1-5-1979 the power to grant occupancy rights in respect of claims under the Act was conferred on the Tribunal constituted under the provisions of Karnataka Land Reforms Tribunal. The case of the plaintiff late H.B. Munivenkatappa is, that he filed an application for grant of occupancy rights before the Tribunal. The Tribunal considered the said claim and by an order dated 27-12-1980 granted occupancy rights in respect of the schedule land under the provisions of the Act. In terms of the order, when a request was made by H.B. Munivenkatappa for mutating his name in the revenue records the authorities declined to enter his name. Therefore, he was constrained to file a suit in O.S. No. 394 of 1993 on the file of the Additional Second Munsiff, Bangalore, for the relief of declaration and permanent injunction declaring that the report and endorsement issued by the second and third defendants respectively are null and void ab initio and to declare that the suit schedule property is a hiduvali land and not a tank bed as alleged by the defendants and also declare that the plaintiff has perfected his title by way of adverse possession in respect of the schedule land and to grant permanent injunction restraining the defendants, their agents, supporters or any other person on their behalf from interfering with the plaintiffs possession and "enjoyment of the suit schedule property.
6. After service of notice, the suit was contested by the defendants. In the written statement filed by the Government after admitting the alienations referred to in the
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