BASAVEGOWDA Vs. NANJAMMA

JUDGEMENT

(1.) BY this petition, the petitioner has challenged and has sought for grant of a writ of certiorari or any other suitable Order or direction as the court may deem fit to quash the orders passed by respondents 2 and 3 namely, assistant commissioner, mandya and the deputy commissioner, mandya district, mandya, in case No. Stl. 5/89-90, dated 26-2-1991 and Order in appeal ptcl 44 (a)/90-91, dated 3-12-1993. Copies of orders have been annexed as annexures-a and b respectively to the writ petition. Petitioner has further prayed that this court should hold this alienation made in favour of the petitioner of survey No. 242 measuring 1 acre of manigere village, maddur taluk. Mandya district, are not void under the provisions of the ACT and for grant of other reliefs.

(2.) THE facts of the case in nut-shell are that according to the petitioner, who claims himself to be the purchaser of 2 acres of land of survey No. 242, old survey No. 153 of the village, is in possession of the said land and had purchased the said land by the sale deed dated 12-6-1958 for valuable consideration and the petitioner along with his brother was put in possession of the land. The petitioner has further alleged that under sale deed birth his brother and himself were put in possession of the land and thereafter there was a family partition amongst the brethren and one acre of that property had fallen to the share of this brother and the other had gone to the other brother and thus vide the sale deed dated 12-6-1958, two acres of land was purchased. An application under Section 5 was made by the first respondent to the assistant commissioner, under Section 5 of the Karnataka scheduled castes and scheduled tribes (prohibition of transfer of certain lands) act, 1978, claiming alienation made in favour of petitioner and his brother to be void under the provisions of the ACT 2 of 1979 and sought restoration of the land transferred under the sale deed meaning thereby two acres of land that was transferred under the sale deed dated 12-6- 1958. No doubt in the petition it has been represented and stated that respondent 1 claimed restoration of one acre of land. This is a mistake. Really restoration of the land under the sale deed dated 12-6-1958 was claimed. That is the land which the two brethren had equally partitioned later on. The petitioner has stated that the petitioner's brother had filed objections before the 2nd respondent disputing the claim of the 1st respondent and it is stated that the petitioner has contended in his objection that alienation was not in contravention of the ACT and there was no prohibition to transfer of the said land. The copy of the objection filed by the two brethren has not been annexed to the writ petition. Anyway in the writ petition no doubt it has been contended that grant was not free grant but it was for up-set price and when the grant was for an upset price there could be no prohibition of alienation since such grant amounts to absolute alienation in favour of the grantee. Further by means of long enjoyment of the land in its own rights it is stated in the writ petition that the petitioner has perfected title by adverse possession and such title cannot be defeated under the provisions of the act. It is nowhere stated in the course of the writ petition that this was the case pleaded by the objector-petitioner before the assista. it commissioner. But so far as this part of the allegation is concerned, there is no such allegation that this was also pleaded before the authority that land was not a free grant nor it is stated in the petition on oath that petitioner had also pleaded the right or accrual of title by adverse possession. It appears to be subsequent development and product of ingenuity of the learned counsel appearing before the high court, the petitioner has not filed the copy of the objections. So it appears, if the plea would have been taken he would have filed the objections. Anyway, the assistant commissioner allowed the application vide Order dated 26-2-1991 copy of which is Annexure-A to the writ petition. After having held the alienation to be void and on the ground as alleged in the petition that land was granted, by the assistant commissioner by Order dated 9-10-1952 and saguvali chit was issued on 29-11-1952 and the land was transferred in breach of the non-alienation clause. Against the Order of the assistant, commissioner, the petitioner preferred the appeal before the deputy commissioner. The deputy commissioner dismissed the appeal No. 44 (a) of 1990-91. It may be mentioned here that petitioners' brother had filed appeal No. 44 of 1990-91. The deputy commissioner by one common Order disposed of both the appeals and dismissed the appeals vide Order dated 3-12-1993 and affirmed the Order passed by the assistant commissioner dated 26-2-1991.

(3.) I have heard the learned counsel for the petitioner Sri shivappa for a good length and Sri shivaprasad, learned counsel for respondent 1 and the learned government pleader Smt. Shanthakumari for respondents 2 and 3. Learned counsel for the petitioner vehemently argued and contended that the petitioner had perfected rights by adverse possession and the authorities have failed to notice that petitioner has been in possession and enjoyment of the land ever since the date of purchase i. e. , 12-6-1958 and continuously in his own right adverse to the interest of the first respodent and for enjoyment of more than the statutory period and perfected his title by adverse possession. The learned counsel for the petitioner made reference to the decision in K. T. Huchegowda v Deputy Commissioner and others. He has also made reference to other decisions. To the question put to the counsel whether this plea was raised in the objections filed before the authorities, the learned counsel has hypothetically stated that it has been stated. But, when questioned where are the objections he was unable to produce the copy of the objections. The learned counsel contended that this was his main plea and the case be remanded for consideration of this plea. The learned counsel contended that he may be permitted to amend the pleadings by inserting that plea, if not already raised. This was sought to be urged when I had been dictating judgment and not in the course of arguments. The learned counsel also attempted to contend that there is no finding now about the nature of the grant. On behalf of the respondents Sri shivaprasad hotly contested the contention made by the learned counsel. Sri shivaprasad contended that from the same Order of the assistant commissioner and the deputy commissioner which have been impugned in Lingegowda v State of Karnataka and others , had been filed and that writ petition has been dismissed by the single judge of this court by the Order dated 21st december. 1993. Against the Order of the learned judge dated 21-12-1993, lingegowda, his brother had filed an writ appeal. The learned counsel contended that the said writ appeal has also been dismissed by the division bench and the orders impugned in the writ petition have been maintained by this court by the learned single judge, as well as by the division bench. The learned counsel for the respondent contended that there was one case before the assistant commissioner, because the application of the petitioner was for declaring the sale deed of 12-6-1958 to be void vide application made by the 3rd respondent. The case was decided by one Order and that was one case. Learned counsel for the petitioner contended that objections were filed. It has nowhere been shown that there were two objections filed against the application. Even if two objections have been filed contesting the claim of the respondents, it amounted to nothing but two written statements in one case. Learned counsel for the respondent contended that in view of the writ petition filed by lingegowda and the dismissal of the appeal, this writ petition should be dismissed and in that case it had been found that before the assistant commissioner no such plea as of accrual of title by adverse possession had been taken and this new plea should not be allowed by this court as the same has been rejected by the learned single judge as well as the division bench. Learned counsel further contended that until it is shown that such a plea was taken by the petitioner before the assistant commissioner, and it was not considered, this court cannot go into the question of adverse possession. Admittedly, the grant is in favour of the depressed class person. It was not a sale and transfer of ownership. If it would have been a case of sale and the title had been conferred that would have been a different matter. No such plea had been raised, that the grant was of ownership right and not of only occupancy rights. Learned counsel for the respondent contended that when it was for the transferee to raise all such objections specifically involved and raise questions of fact to be determined and if the party has not raised any objections before the assistant commissioner there is no question of entertaining this plea at this stage nor there is any question of recording any finding with regard to the fact that the grantee was a depressed class person. If a person wants to say that the grant was made on paying full market fee, it should have been pleaded specifically in the pleadings and further ought to have filed copy of the objections. He contended that there is no illegality in the orders annexures-a and b passed by respondents 2 and 3. The same contentions were raised by the learned High Court government pleader.