MUNISHYAMREDDY Vs. DY. COMMISSIONER, KOLAR DISTT.

JUDGEMENT

(1.) The father of the third respondent herein was granted an extent of two acres and three guntas of land in Survey No. 213/4 of Village Hulimangala, Lakkur Hobli, Taluk Malur on 12-3-1963. The said land was sold by the original grantee in favour of the appellant on 7-10-1967. The Tahsildar of Malur taluk, on 15.2.1990, made a report to the Assistant Commissioner, Kolar Sub-Division, under the provisions of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short "the Act") stating that there has been contravention of the provisions of the Act in sale of the said land in favour of the appellant. The Assistant Commissioner, after issuing notice to the parties and after hearing them, passed the order on 24.4.1993 taking the view that there was no violation of the provisions of the Act on the ground that the grant was made in favour of the father of the third respondent under R. 43-J of the Mysore Land Revenue Rules (for short "the Rules"); in such a grant, there could be no prohibition for alienation. The matter was taken up in appeal before the Deputy Commissioner by the third respondent. The Deputy Commissioner, by a detailed order, dismissed the appeal, agreeing with the finding recorded by the Assistant Commissioner. It is thereafter that the third respondent approached the High Court by filing Writ Petition No. 26146 of 1994 questioning the validity and correctness of the order of the Deputy Commissioner, affirming the order made by the Assistant Commissioner. The learned Single Judge, after considering the respective contentions and taking note of sub-sec. (3) of Sec. 5 of the Act, concluded that the appellant failed to rebut the presumption i.e. he failed to establish that the transfer in his favour was not null and void. The learned Judge also drew adverse inference against the appellant for not producing the order of grant/saguvali chit made in favour of the father of the third respondent. In that view, the writ petition was allowed and the order made by the Deputy Commissioner was set aside. The appellant, aggrieved by the order made by the learned Single Judge, filed writ appeal before the High Court. The Division Bench of the High Court, by the impugned order, dismissed the appeal, upholding the order made by the learned Single Judge additionally recording a finding that the case of the appellant was not covered by R. 43-J of the Rules as the earlier grant made in favour of the father of the third respondent could not be said to be a lease. Hence, this appeal, aggrieved by the impugned order passed by the Division Bench of the High Court.

(2.) The learned counsel for the appellant contended that the learned Single Judge was not right and justified in reversing the concurrent findings of fact recorded by the Assistant Commissioner as well as by the Deputy Commissioner; according to him, the presumption available under Section 5(3) of the Act was sufficiently rebutted having regard to the temporary grant made on 11.4.1942. That temporary grant itself records that the grant was a lease. Although the grant order of 1963/saguvali chit could not be produced by the appellant, the authorities, having seen the records, construed the grant as one covered by Rule 43-J of the Rules. He added that the grant order of 1963 was filed before the Division Bench of the High Court but, unfortunately, the Division Bench of the High Court did not notice it.

(3.) In opposition, the learned counsel for the contesting Respondent 3 submitted that the appellant failed to establish that the earlier grant was made in favour of the father of the third respondent as a lessee and in the absence of the appellant establishing that the grant order made in 1963 was under R. 43-J of the Rules, no fault can be found with the impugned judgment; the Division Bench of the High Court was right in holding that the grant made in favour of the father of the third respondent was under R. 43-G and not under R. 43-J of the Rules. If that be so, the transfer made in favour of the appellant in 1967, undisputedly being within the prohibited period of alienation, was null and void.