HALAPPA BIN RANGAPPA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) The short question that falls' for consideration is whether notwithstanding the repeal of the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966 ('the Act') by Act 4 of 1991, the restriction imposed therein is enforceable in the proceedings under Section 54 of the C.P.C. pending as on the date of the repeal.

(2.) The brief facts are as follows:- Under a registered Sale Deed dated 1-12-1975, Rangappa, father of the petitioners, purchased 2 acres 30 guntas of land from the sons of Marulayya (4th respondent herein). Later, in the suit for partition between the said Marulayya and his children, to which Rangappa was a party, the Civil Court held that what is acquired by the said Rangappa under and the said Sale Deed was only the 2/5th undivided right, title and interest of the sons of respondent-4, as against the 3/5th share held by respondents-3 and 4, and a preliminary decree was accordingly passed. The petitioner's father unsuccessfully challenged the said decree upto the stage of Second Appeal in this Court. Later, in the final decree proceedings instituted by respondents-3 and 4, the executing Court referred the decree under Section 54 of the C.P.C. to the Deputy Commissioner for effecting partition of lands by metes and bounds. In those proceedings, the petitioner's father, inter alia, raised a contention that since partition of the property would result in fragmentation of holdings in contravention of the Act, partition of the land (totally measuring 2 acres 20 guntas) is not feasible. While the said proceedings under Section 54 of the C.P.C. were still pending before the Deputy Commissioner, the Repealing Act 4 of 1991 came into force, whereupon the Deputy Commissioner held that in view of the removal of restriction on fragmentation by the Repealing Act, the matter before him for consideration under Section 8 of the repealed Act did not survive any longer. The said order being challenged was affirmed by the Karnataka Appellate Tribunal.

(3.) The contention of Sri Hadimani, learned Counsel for the petitioners, is that by virtue of the saving clause under Section 2 of the Repealing Act, the proceedings already pending before the Deputy Commissioner are not affected. Reliance is placed upon clause (d) of Section 2 of the Repealing Act which provides that the repeal shall not affect "any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceedings or remedy may be instituted, continued or enforced". On the other hand, it is urged by Sri D.R.Rajashekharappa, learned Counsel for the contesting respondents, that the pending proceedings were, in fact, under the provisions of Section 54 of the C.P.C., in which the provisions of the Act was incidentally attracted; and in view of the removal of restriction against fragmentation of holdings by the Repealing Act, the question of giving effect to the provisions of the repealed Act did not arise. There is considerable force in this contention.