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2007 Supreme(Kar) 875
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
K. Sreedhar Rao and L. Narayanaswamy, JJ.
C.P. Kaveramma W/o Late Poonacha and others —Appellant
Vs.
The Thasildar, N. Channabasava Deshikendra Swamigalu Matadhipathigalu Bettadapura Math and M.N. Subba Rao, Thashildar Now Retired —Respondent
AND
NI PRA Channabasava Deshikendra Swamigalu Matadhipathigalu Kannada Mutt —Appellant
Vs.
C.P. Kaveeramma W/o Late Poonacha and others —Respondent
Writ Appeal Nos. 1936 and 2202 of 2005
Decided on : 12-09-2007
Advocate Appeared:
Mr. Jayakumar S. Patil Associates, H.R. Vasudha, B.C. Rajeeva, A.K. Subbaiah, A.S. Ponnanna, for the Appellant
Mr. A.K. Subbaiah, A.S. Ponnanna, A.K. Subbaiah, G.S.V. Associates, for the Respondent
The main legal point established in the judgment is the interpretation of the effect of Section 4(2)(b) of the Act-1977 on encumbrances and the applicability of Section 43 of the T.P. Act to the revival of contractual rights after regrant.
Headnote:
Inam Lands - Karnataka Certain Inam Abolition Act, 1977 - Section 4 - Summary of Acts and Sections: The court discussed the effect of Section 4(2)(b) of the Act-1977, which declares that inam lands stand vested absolutely in the State Government free from all encumbrance. The court also considered the provisions of Section 43 of the T.P. Act and its applicability to the revival of contractual rights after regrant. The judgment highlighted the interpretation of these legal provisions and their influence on the court's decision.
Fact of the Case:
The appellant, a Mutt, created usufructuary mortgages on inam lands. After the enactment of the Act-1977, the lands were re-granted to the appellant, leading to a dispute with the respondents who were in physical possession.
Finding of the Court:
The court found that the usufructuary mortgage created in favor of the respondents was extinguished by the Act-1977, but it was revived after the regrant to the appellant. The court also held that the orders for eviction were without jurisdiction.
Issues: The issues involved the jurisdiction of the Tahsildar under the Karnataka Land Reforms Act and the effect of the Act-1977 on the extinguishment and revival of encumbrances.
Ratio Decidendi: The court's decision was based on the interpretation of Section 4(2)(b) of the Act-1977 and the applicability of Section 43 of the T.P. Act to the revival of contractual rights after regrant.
Final Decision: The court dismissed the writ appeals and allowed one appeal, quashing the impugned orders and staying the effect of the order for six weeks.
1. 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 want 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 Under Section 41 of the Land Reforms Act directing eviction of respondents 1 to 5.
7. The respondent 1 to 5, aggrieved by the said order filed one set of Writ Petitions challenging the order at Annexure-B passed Under Section 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 property conducted the enquiry. Hence set aside, the (sic) 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 tiled 3 separate appeals. The respondents 1 to 5 aggrieved by the order of remand have tiled 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 Under Section 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
