JAYAMMA AND OTHERS Vs. DEPUTY COMMISSIONER AND OTHERS

JUDGEMENT

(1.) LAND bearing Sy.No. 7 (old)., new Sy. No. 72, measuring 3 acres situated at B.K. Palya, Jala Hobli, Bangalore North Taluk, according to the petitioners was sold in a public auction by the Government in favour of Munisshamappa son of late Sadappa and a certificate dated 31.12.1944 was issued by the competent authority. Said Munishamappa sold one acre out of the said land on 15.01.1948 in favour of Kadirappa and another one acre of land in favour of one Narayanappa. That on 28.07.1948, Munishamappa sold remaining one acre of land in favour of Kadirappa, who, thus became owner of 2 acres of land. Said Kadirappa sold on 20.08.1952, two acres of land in favour of Smt. Muniyamma, who in turn sold the said land on 24.10.1961 in favour of B. Narayana, who sold the same in favour of Kadirappa on 07.10.1977. Petitioner No. 5 purchased one acre of land from the LRs., of Kadirappa on 31.07.1986. LRs., of Kadirappa sold, out of the remaining property, i.e., one acre of land on 04.04.1991 in favour of Mariyappa, the husband of the petitioner No. 1. Munishamappa, husband of respondent No. 3 filed an application under S. 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1979 (for short 'the Act') before the Assistant Commissioner, Bangalore North Sub -Division, to declare the sale transactions in respect of the said land as null and void, for resumption of the land free from all encumbrances and for restoration in his favour. On 21.03.2011, 2nd respondent rejected the application vide an order, as at Annexure -K. Feeling aggrieved, respondents 3 to 8, claiming to be the LRs., of the deceased Munishamappa having preferred an appeal under S. 5 -A (1A) of the Act, the 1st respondent having allowed the appeal on 09.10.2012 vide an order, as at Annexure -L, these writ petitions have been filed to quash the said orders. The land in dispute has been acquired and the 9th respondent has passed the award. In the circumstances, when the matter gets finally decided, the person/s whose rights get upheld, will be entitled to the payment of the determined compensation amount.

(2.) SRI A. Madhusudhana Rao, learned advocate for the petitioners, by filing a memo dated 24.07.2013 and producing copy of saguvali chit dated 31.12.1944 issued in favour of Munishamappa, the predecessor -in -title of respondents 3 to 8 by placing reliance on the decision in the case of B.K. Muniraju Vs. State of Karnataka and Others, AIR 2008 SC 1438 , firstly, contended that the impugned order is arbitrary and illegal. Secondly, record having not been produced before the Assistant Commissioner to establish that the land in dispute was granted to a person belonging to scheduled caste or scheduled tribe and that there being no condition regarding non -alienation and as on the date of alleged grant, Munishamappa, who belonged to 'Nayaka' community, having not been declared as scheduled tribe, findings recorded by the 1st respondent in the impugned order as at Annexure -K is perverse and illegal. Thirdly, the 2nd respondent having dropped the proceeding's, 1st respondent without appreciating the record of the case and without considering the matter in accordance with law having passed the order, as at Annexure -L, which being arbitrary, is unsustainable. Fourthly, the proceeding having been initiated before the Assistant Commissioner, after lapse of few decades, the same is untenable being contrary to the decision of the Apex Court rendered in SLP No. 3131/2007. Fifthly, the first transfer having taken on 15.01.1948 and more than 30 years period having elapsed as on the date the Act came into force i.e., 01.01.1979, plea having been raised before the respondents 1 and 2, that the petitioners have perfected their title by way of adverse possession, both the authorities have failed to consider the plea of adverse possession. Lastly, the Assistant Commissioner having not conducted enquiry in the manner provided under Rule 3(5), the 1st respondent has erred in allowing the appeal. Reliance was placed on certain decisions in support of the contentions.

(3.) SRI Rajeswara P.N., learned advocate appearing for the respondents 3 to 8, by taking me through the record of the case, submitted that the 1st respondent is justified in allowing the appeal. Learned counsel submitted that the plea of adverse possession has no merit and even otherwise, there being voluminous evidence in support of the conclusion arrived at by the 1st respondent, the impugned order is justifiable.