K M MAHESHWARAYYA Vs. DEPUTY COMMISSIONER

JUDGEMENT

(1.) THE only reason why this writ petition has reached the High Court is because the Assistant Commissioner acting as the original authority under section 5 of the Karnataka Scheduled Castes & Scheduled Tribes [Prohibition of Transfer of Certain Lands] Act, 1978 [for short 'the Act'] though answered all questions such as the subject land an extent of 5 acres 20 guntas in Sy. No. 2/1 of Ramanahalli Village, Amruthapura Hobli, Tarikere Taluk, Chikkamagalur District, being a land in favour of Chowda Bhovi - a person belonging to Scheduled Caste community and is a granted land; that it was granted free of cost and that the sale transaction of the land granted in the year 1952-53 by sale deed executed by the grantee on 6.3.1962 was clearly in violation of the conditions of non-alienation for a period of twenty years and therefore should have necessarily allowed the application before him at the instance of third respondent in this writ petition, but nevertheless, having rejected it, accepting the argument on behalf of the writ petitioner that the sale having taken place in the year 1962 and the Act having come into force only in the year 1979 and therefore the purchaser having enjoyed the land for more than twelve years had prescribed title by adverse possession relying on the judgment of the Division Bench of this Court in the case of 'Gavisiddegowda v. State of Karnataka' reported in ILR1995 Kar 113: (1995 AIHC 5988 (Kar)) but this view taken by the Assistant Commissioner having been reversed by the Deputy Commissioner in appeal under section 5-A of the Act at the instance of the third respondent holding that in terms of the Judgment of the Supreme Court in the case of 'D. N. Venkatarayappa and another v. State of Karnataka and others' reported in ILR 1997 Kar 2053 : (AIR 1997 SC 2930) to the effect that for claiming adverse possession against the State enjoyment should be for an interrupted period of thirty years and this order of the Deputy Commissioner being adverse to the writ petitioner, the present writ petition enlarging the scope for attack on the order of the Deputy Commissioner.

(2.) APPEARING on behalf of the writ petitioner, submission of Sri. Mahantesh S. Hosmath, learned counsel is that the community to which the grantee belonged, namely, Bhovi community was recognized as Scheduled Caste only in the year 1978 and prior to that it had been classified as backward community and therefore the provisions of the Act is not attracted as the person did not belong to Scheduled Caste community at the time of the grant and for such purpose has placed reliance on the unreported Judgment of the Division Bench of this Court in the case of 'Mahalingappa v. Assistant Commissioner, Tarikere' rendered in W.A. No.2007 of 1991 on 7.11.1995 [copy at Annexure-D to the writ petition] and therefore submits that on this premise this writ petition should be allowed, the impugned order of the Deputy Commissioner set aside and the order passed by the Assistant Commissioner restored though for a different reason.

(3.) WRIT petitioner had suffered adverse finding before the Assistant Commissioner. The provisions of the Act, particularly, in terms of section 5[3] of the Act casts a very heavy burden on persons who are in possession and occupation of granted land to sustain their possession if they are not persons either claiming under the grantee or as legal heirs, but under sale transaction to prove that it was not a granted land or otherwise and the provisions of the Act are not applicable as the presumption in law in terms of Section 5(3) of the Act reading as under: 5. Resumption and restitution of granted lands:- (3) For the purposes of this section, where any granted land is in the possession of a person, other than the original grantee or his legal heir, it shall be presumed, until the contrary is proved, that such person has acquired the land by a transfer which is null and void under the provisions of sub-section (1) of section 4. is always against a person in possession to be in illegal possession under a void transaction unless person is either grantee or legal heir of the grantee.