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2007 Supreme(Kar) 600
2008 (1) KLO 698 (DB)
IN THE HIGH COURT OF KARNATAKA
K. Sreedhar Rao and L. Narayanaswamy, JJ.
WA No. 1936/2005 (LR)C/w W.A. No. 1941/2005, W.A. No. 1946/05 &
W.A. No. 2202/05 (LR)
Sri Nipra Channebasava Deshikendra Swamigalu Matadhipathigalu - Appellant
Vs.
C. P. Kaveeramma and Others - Respondents
Decided on 12-9-2007
Appellants : Sri Jayakumar S Patil Assciates. H.R. Vasudha B.C. Rajeeva, Sri A.K. Subbaiah and A.S. Ponnanna, Advs.
Respondents: Sri A.K. Subbaiah, A.S. Ponnanna, Sri GS. V. Associates, Advs.
Headnote:TRANSFER OF PROPERTY ACT, 1882 - Section 43: [K. Sreedhar Rao & L. Narayana Swami, JJ] Doctrine of feeding of the grant by estoppel - Transfer by unauthorized person who subsequently acquires interest in property transferred - Held, When a person with imperfect title transfers the property for consideration and subsequently the transferor’s title becomes perfect in law, the transferee is entitled to enforce the terms of the contract by equitable Doctrine of feeding the grant by estoppel. On facts, held, The appellant was aware of the fact that the Mutt is not the absolute owner of the property but technically in the eye of law was in permissive possession. The terms of inam did not prohibit alienation, the Mutt being aware of its imperfect right over the land has created usufructuary mortgage for a period of 99 years. Therefore, it cannot be argued that Section 43 does not attract the facts of the case. When there is no express prohibition in the provision of the ’Act-1977’ regarding the revival of contractual rights of parties created prior to the passing of ’Act-1977’ and in view of the provisions of Section 43 of the T.P. Act, it is inequitable in the eye of law to hold that after regrant in favour of inam holder, the contractual commitments between the inam holder and the alienee created prior to the passing of ’Act-1977’ would not revive.
KARNATAKA CERTAIN INAMS ABOLITION ACT, 1977 - Section 4 (1)(2)(a) & (b): [K. Sreedhar Rao &L. Narayana Swami, JJ] Abolition, vesting of inams and the consequences thereof - Held, The provisions declares that after passing of the Act, the inam lands stand vested absolutely in the State Government free from all encumbrance. The provisions of the Act, however, is silent with regard to the position whether the encumbrance created earlier to abolition of inam get revived after the re-grant. Further, The alienee who has purchased the land between the period 01-02-1963 to 07-08-1978 is not entitled to seek regrant in his own name under the Karnataka Village Offices Abolition Act, 1961. The right of the alienee is only to claim the benefit of doctrine of feeding of the grant by estoppel envisaged in Section 43 of the T.P. Act. The "Act - 1961" came to be amended w.e.f. 07-08-1978 declaring that all alienations subsequent to 07-08-1978 are illegal and that the alienees do not get any benefit and they are deemed to be unauthorized holders liable for eviction.
KARNATAKA LAND REFORMS ACT, 1961 - Section 41: [ K. Sreedhar Rao & L. Narayana Swamy, JJ] Jurisdiction of the Tahsildar under - Held, The existence of tenancy rights and relationship of landlord and tenant is a necessary pre-requisite for invoking jurisdiction under Section 41 of the Act. The provisions of Section 130 of the Act also gives jurisdiction to the Tahsildar for evicting the persons unauthorisedly occupying or in wrongful possession of any land only if the provisions of Act apply to the land in question. On facts, held, The provisions of Land Reforms Act are not applicable to the facts of the case. The exercise of jurisdiction by the Tahsildar under Section 41 of the Act is bad in law and without jurisdiction.
Sreedhar Rao, J.
All the three appeals arise out of the common order. Hence all the appeals are considered together for common disposal.
2. The lands bearing Sy. No. 9, 10, 12 & 13 of Bettigeri village are inam lands belongs to the appellant Mutt governed by Karnataka Certain Inam Abolition Act 1977, hereinafter referred to as ‘the Act-1977, The appellant in the first instance by a registered deed dated 1.3.1955 created Usufructuary Mortgage of the land to the extent of 175 acres 60 cents and in the second phase Usufructuary Mortgage is created by registered deed dated 5.4.1967 to an extent of 17 acres. Both the registered deeds are executed in favour of predecessors of the respondents 1 to 5.
3. After the advent of “Act-1977”, the appellant made an application for re-grant of the above lands. The respondents 1 to 5 also made an application for grant of occupancy rights. The Tribunal re-granted the lands to the appellant. The claim of respondents 1 to 5 for occupancy rights was rejected. The respondents 1 to 5 aggrieved by the orders filed W P No.6379/93 challenging the order of grant in favour of the appellant. The respondents 1 to 5 however did not challenge the order rejecting their claim for occupancy rights in the Writ Petition.
4. In W.P. 6379/93, the learned Single Judge found that the appellant is not entitled to the re-grant under the provisions of the ‘Act-1977’. The Usufructuary Mortgage created in favour of predecessors of respondents 1 to 5 is held to be extinguished by the provisions of the “Act-1977” and directed that the lands should vest in the Government.
5. The appellant filed W.A. No.5689/97, challenging the order of learned single Judge. The respondents 1 to 5 filed W.A. No.5816/1997 challenging the order of the learned Single Judge. The Division Bench allowed the appeal of the appellant and held that the grant made in favour of the appellant is valid in law. It is also held that the appellant is only in constructive possession and that respondents 1 to 5 are in actual physical possession by virtue of the Usufructuary Mortgage. The order of the learned Single Judge directing vesting of the lands in Government was also set aside.
6. The appellant moved respondent No.6 for delivery of possession of the above lands by evicting respondents 1 to 5. The respondent No.6 issued notice to respondent 1 to 5 and there after passed an order dated 28.8.2004 U/s. 41 of the Land Reforms Act directing eviction of respondents 1 to 5.
7. The respondents 1 to 5, aggrieved by the said order filed one set of Writ Petitions challenging the order at Annexure-B passed U/s 41 of the Karnataka Land Reforms Act. In the other set of Writ Petitions the respondents 1 to 5 challenge that the notice at Annexure-D and the order at Annexure-B is illegal and that there is no issuance of notice and the order is passed without any opportunity to the respondents and without enquiry.
8. In the Writ Petitions filed by respondents 1 to 5 the learned Single Judge found that the Tahsildar has not properly conducted the enquiry. Hence set aside, the impugned order at Annexure-B and remanded the matter to Tahsildar for fresh enquiry. The learned Single Judge further directed that respondents 1 to 5 should be reinducted into possession of the above lands subject to the final results of the enquiry. The appellant aggrieved by the orders of learned single Judge has filed 3 separate appeals. The respondents 1 to 5 aggrieved by the order of remand have filed W.A. 2202/05.
9. The contentions canvassed by both the parties before this Court involve the following points for determination:
(i) Whether the Tahsildar has no jurisdiction in respect of the lands in question to initiate proceedings U/s 41 of the Karnataka Land Reforms Act?
(ii) Whether vesting of the lands with the Government under Karnataka Certain Inams Abolition Act has the effect of obliterating the usufructuary Mortgage created in favour of R-1 to R-5 and whether the usufructuary
