GANGAMMA Vs. DEPUTY COMMISSIONER

JUDGEMENT

(1.) THE unsuccessful writ petitioners in Writ petition No. 14216 of 2005 are the appellants herein. The petitioners are the legal heirs of one Sanjeevaiah who had purchased the agricultural land to an extent of 5 acres located in Sy. No. 1/1 in Nagegowdana Byala, turuvekere Taluk, Tumkur District from one Mudlaiah s/o Kempaiah a member of the Scheduled Caste in whose favour the said lands were granted by proceedings of the Deputy Commissioner in No. DD/dis/1240/54-55, dated 9. 01. 1956 under the provisions of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands (Act), 1978 (hereinafter referred to as 'the Act') on condition that the granted land shall not be alienated for a period of 15 years from the date of the grant. That apart Section 4 of the Act also imposed a prohibition of transfer of the granted lands and the same reads as follows:

(2.) THE said grantee Mudlaiah s/o Kempaiah sold 3 acres of land under a registered sale deed dated 18. 7. 1965 which was registered as document no. 207365-66 dated 20. 9. 1965 in favour of one Sanjeevaiah who is now represented by the petitioners-appellants herein and also sold 2 acres of land by sale deed dated 24. 2. 1965 in favour of one Eranna Gowda. Both the sale deeds are prohibited in law as the same are contrary to the conditions of grant and also Section 4 of the Act. The legal representatives of the original grantee Mudlaiah s/o Kempaiah who are the respondents-3 to 5 herein, filed a petition before the Assistant Commissioner for resumption of the impugned lands and restoration of the same to the appellants under section 5 of the Act. The Assistant Commissioner after due notice to the purchasers/their legal representatives inquired into the matter and passed an order on 22. 6. 2000 holding that both the sales are illegal as they are prohibited under Section 4 of the Act and have to be restored to the original grantee, passed an order of resumption in favour of respondents-3 to 5 and also permitted to transfer the khatha of the said lands in favour of respondents-3 to 5. Against the said order dated 22. 6. 2000 of the Assistant commissioner, an appeal was preferred by the petitioners before the Deputy commissioner and the said order was confirmed by the Deputy commissioner, Tumkur by his order dated 28. 3. 2008. Aggrieved by the said order the petitioners herein who are the legal representatives of sanjeevaiah alone took an appeal with regard to the purchase of 3 acres of land from Mudlaiah. The legal representatives of Eranna Gowda had not challenged the orders of the Assistant Commissioner and therefore the same became final insofar as the legal representatives of Eranna Gowda are concerned.

(3.) IN the appeal the petitioners herein also incidentally took the plea of adverse possession for the first time. However, no evidence was adduced in that regard. The Deputy Commissioner therefore by order dated 28. 3. 2005, of course after hearing the parties found that the petitioners have not placed the plea of adverse possession before the Assistant commissioner and therefore they cannot find fault with the order of the assistant Commissioner as the Assistant Commissioner cannot give finding on the plea of adverse possession as the same was not raised befo him. The Deputy Commissioner also found that the petitioners herein viz. , who are the legal representatives of Sanjeevaiah have also participated in the proceedings on 23. 8. 1999, 11. 10. 1999 and 30. 11. 1999 and they were afforded adequate opportunity to defend their case. When the petitioners contended that the revenue authorities could not produce the original grant before the Assistant Commissioner, the Deputy Commissioner held that even in the absence of original land grant records, the Assistant commissioner can still place reliance on the relevant mutation register extract and other documents such as darkhast register extract, mutation register extracts etc. , and was entitled to come to the conclusion that respondents -3 to 5 are the legal representatives of the original grantee under the provisions of the Act. Therefore, finding no reason to interfere with order of the Assistant Commissioner, the Deputy Commissioner by order dated 28. 3. 2005 dismissed the appeal confirming the order of the assistant Commissioner.