KARNATAKA LAND CONVERSION RULES

RESTITUTION, MESNE PROFITS, COSTS, FALSE CLAIMS, COMPENSATORY COSTS RE-EXPLAINED WITH CITATIONS 2012 SC

noreply@blogger.com (Advocate Sridharababu) — Tue, 1 May 2012 20:12:00 +0530

JUSTICE Dalveer Bhandari, & JUSTICE Dipak Misra of Supreme court of India in the case of A.Shanmugam vs Ariya, Decided on 27 April 2012, has held as follows:- Experience reveals that a large number of cases are filed on false claims or evasive pleas are introduced by the defendant to cause delay in the administration of justice and this can be sufficiently taken care of if the Courts adopt realistic approach granting restitution. ................. Unless wrongdoers are denied profit or undue benefit from frivolous litigations, it would be difficult to control frivolous and uncalled for litigations. Experience also reveals that our Courts have been very reluctant to grant the actual or realistic costs. We would like to explain this by giving this illustration. When a litigant is compelled to spend Rs.1 lac on a frivolous litigation there is hardly any justification in awarding Rs. 1,000/- as costs unless there are special circumstances of that case. We need to decide cases while keeping pragmatic realities in view. We have to ensure that unscrupulous litigant is not permitted to derive any benefit by abusing the judicial process. ......................

This Court in the case of Ramrameshwari Devi v. Nirmala Devi (2011) 8 SCC 249 in paragraph 52 (C, D and G) of the judgment dealt with the aspect of imposition of actual or realistic costs which are equally relevant for this case reads as under:- “C. Imposition of actual, realistic or proper costs and or ordering prosecution would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings. D. The Court must adopt realistic and pragmatic approach in granting mesne profits. The Court must carefully keep in view the ground realities while granting mesne profits. G. The principle of restitution be fully applied in a pragmatic manner in order to do real and substantial justice.”

This Court in another important case in Indian Council for Enviro- Legal Action v. Union of India and Others (2011) 8 SCC 161 (of which one of us, Bhandari, J. was the author of the judgment) had an occasion to deal with the concept of restitution. The relevant paragraphs of that judgment dealing with relevant judgments are reproduced hereunder:-

193. This Court in Grindlays Bank Limited v. Income Tax Officer, Calcutta (1980) 2 SCC 191 observed as under :- “…When passing such orders the High Court draws on its inherent power to make all such orders as are necessary for doing complete justice between the parties. The interests of justice require that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court, by the mere circumstance that it has initiated a proceeding in the court, must be neutralised. The simple fact of the institution of litigation by itself should not be permitted to confer an advantage on the party responsible for it. …”

194. In Ram Krishna Verma and Others v. State of U.P. and Others (1992) 2 SCC 620 this Court observed as under :- “The 50 operators including the appellants/ private operators have been running their stage carriages by blatant abuse of the process of the court by delaying the hearing as directed in Jeevan Nath Bahl’s case and the High Court earlier thereto. As a fact, on the expiry of the initial period of grant after Sept. 29, 1959 they lost the right to obtain renewal or to ply their vehicles, as this Court declared the scheme to be operative. However, by sheer abuse of the process of law they are continuing to ply their vehicles pending hearing of the objections. This Court in Grindlays Bank Ltd. vs Income-tax Officer - [1990] 2 SCC 191 held that the High Court while exercising its power under Article 226 the interest of justice requires that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralised. It was further held that the institution of the litigation by it should not be permitted to confer an unfair advantage on the party responsible for it. In the light of that law and in view of the power under Article 142(1) of the Constitution this Court, while exercising its jurisdiction would do complete justice and neutralise the unfair advantage gained by the 50 operators including the appellants in dragging the litigation to run the stage carriages on the approved route or area or portion thereof and forfeited their right to hearing of the objections filed by them to the draft scheme dated Feb. 26, 1959. …”

195. This Court in Kavita Trehan vs Balsara Hygiene Products (1994) 5 SCC 380 observed as under :-
“The jurisdiction to make restitution is inherent in every court and will be exercised whenever the justice of the case demands. It will be exercised under inherent powers where the case did not strictly fall within the ambit of Section 144. Section 144 opens with the words “Where and in so far as a decree or an order is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose, ...”. The instant case may not strictly fall within the terms of Section 144; but the aggrieved party in such a case can appeal to the larger and general powers of restitution inherent in every court.”

196. This Court in Marshall Sons & Co. (I) Ltd. v. Sahi Oretrans (P) Ltd. and Another (1999) 2 SCC 325 observed as under :-
“From the narration of the facts, though it appears to us, prima facie, that a decree in favour of the appellant is not being executed for some reason or the other, we do not think it proper at this stage to direct the respondent to deliver the possession to the appellant since the suit filed by the respondent is still pending. It is true that proceedings are dragged for a long time on one count or the other and on occasion become highly technical accompanied by unending prolixity, at every stage providing a legal trap to the unwary. Because of the delay unscrupulous parties to the proceedings take undue advantage and person who is in wrongful possession draws delight in delay in disposal of the cases by taking undue advantage of procedural complications. It is also known fact that after obtaining a decree for possession of immovable property, its execution takes long time. In such a situation for protecting the interest of judgment creditor, it is necessary to pass appropriate order so that reasonable mesne profit which may be equivalent to the market rent is paid by a person who is holding over the property. In appropriate cases, Court may appoint Receiver and direct the person who is holding over the property to act as an agent of the Receiver with a direction to deposit the royalty amount fixed by the Receiver or pass such other order which may meet the interest of justice. This may prevent further injury to the plaintiff in whose favour decree is passed and to protect the property including further alienation.”

197. In Padmawati v. Harijan Sewak Sangh - CM (Main) No.449 of 2002 decided by the Delhi high Court on 6.11.2008, the court held as under:-
“The case at hand shows that frivolous defences and frivolous litigation is a calculated venture involving no risks situation. You have only to engage professionals to prolong the litigation so as to deprive the rights of a person and enjoy the fruits of illegalities. I consider that in such cases where Court finds that using the Courts as a tool, a litigant has perpetuated illegalities or has perpetuated an illegal possession, the Court must impose costs on such litigants which should be equal to the benefits derived by the litigant and harm and deprivation suffered by the rightful person so as to check the frivolous litigation and prevent the people from reaping a rich harvest of illegal acts through the Court. One of the aims of every judicial system has to be to discourage unjust enrichment using Courts as a tool. The costs imposed by the Courts must in all cases should be the real costs equal to deprivation suffered by the rightful person.”

198. We approve the findings of the High Court of Delhi in the aforementioned case.

199. The Court also stated “Before parting with this case, we consider it necessary to observe that one of the main reasons for over- flowing of court dockets is the frivolous litigation in which the Courts are engaged by the litigants and which is dragged as long as possible. Even if these litigants ultimately loose the lis, they become the real victors and have the last laugh. This class of people who perpetuate illegal acts by obtaining stays and injunctions from the Courts must be made to pay the sufferer not only the entire illegal gains made by them as costs to the person deprived of his right and also must be burdened with exemplary costs. Faith of people in judiciary can only be sustained if the persons on the right side of the law do not feel that even if they keep fighting for justice in the Court and ultimately win, they would turn out to be a fool since winning a case after 20 or 30 years would make wrongdoer as real gainer, who had reaped the benefits for all those years. Thus, it becomes the duty of the Courts to see that such wrongdoers are discouraged at every step and even if they succeed in prolonging the litigation due to their money power, ultimately they must suffer the costs of all these years long litigation. Despite settled legal positions, the obvious wrong doers, use one after another tier of judicial review mechanism as a gamble, knowing fully well that dice is always loaded in their favour, since even if they lose, the time gained is the real gain. This situation must be redeemed by the Courts”. ................

208. In Marshall sons and Company (I) Limited v. Sahi Oretrans (P) Limited and Another (1999) 2 SCC 325 this Court in para 4 of the judgment observed as under:
“…It is true that proceedings are dragged for a long time on one count or the other and, on occasion, become highly technical accompanied by unending prolixity at every stage providing a legal trap to the unwary. Because of the delay, unscrupulous parties to the proceedings take undue advantage and a person who is in wrongful possession draws delight in delay in disposal of the cases by taking undue advantage of procedural complications. It is also a known fact that after obtaining a decree for possession of immovable property, its execution takes a long time. In such a situation, for protecting the interest of the judgment-creditor, it is necessary to pass appropriate orders so that reasonable mesne profit which may be equivalent to the market rent is paid by a person who is holding over the property. In appropriate cases, the court may appoint a Receiver and direct the person who is holding over the property to act as an agent of the Receiver with a direction to deposit the royalty amount fixed by the Receiver or pass such other order which may meet the interest of justice. This may prevent further injury to the plaintiff in whose favour the decree is passed and to protect the property including further alienation. …”

209. In Ouseph Mathai and Others v. M. Abdul Khadir (2002) 1 SCC 319 this Court reiterated the legal position that the stay granted by the Court does not confer a right upon a party and it is granted always subject to the final result of the matter in the Court and at the risk and costs of the party obtaining the stay. After the dismissal, of the lis, the party concerned is relegated to the position which existed prior to the filing of the petition in the Court which had granted the stay. Grant of stay does not automatically amount to extension of a statutory protection.

210. This Court in South Eastern Coalfields Limited v. State of M.P. and others (2003) 8 SCC 648 on examining the principle of restitution in para 26 of the judgment observed as under: “In our opinion, the principle of restitution takes care of this submission. The word “restitution” in its etymological sense means restoring to a party on the modification, variation or reversal of a decree or order, what has been lost to him in execution of decree or order of the court or in direct consequence of a decree or order (see Zafar Khan v. Board of Revenue, U.P - (1984) Supp SCC 505) In law, the term “restitution” is used in three senses: (i) return or restoration of some specific thing to its rightful owner or status; (ii) compensation for benefits derived from a wrong done to another; and (iii) compensation or reparation for the loss caused to another.”

211. The Court in para 28 of the aforesaid judgment very carefully mentioned that the litigation should not turn into a fruitful industry and observed as under:
“… … …Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the courts, persuading the court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced. We are, therefore, of the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated by award of interest at a suitable reasonable rate for the period for which the interim order of the court withholding the release of money had remained in operation.”

212. The Court in the aforesaid judgment also observed that once the doctrine of restitution is attracted, the interest is often a normal relief given in restitution. Such interest is not controlled by the provisions of the Interest Act of 1839 or 1978.

213. In a relatively recent judgment of this Court in Amarjeet Singh and Others v. Devi Ratan and Others (2010) 1 SCC 417 the Court in para 17 of the judgment observed as under:
“No litigant can derive any benefit from mere pendency of case in a court of law, as the interim order always merges in the final order to be passed in the case and if the writ petition is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of its own wrongs by getting an interim order and thereafter blame the court. The fact that the writ is found, ultimately, devoid of any merit, shows that a frivolous writ petition had been filed. The maxim actus curiae neminem gravabit, which means that the act of the court shall prejudice no one, becomes applicable in such a case. In such a fact situation the court is under an obligation to undo the wrong done to a party by the act of the court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralised, as the institution of litigation cannot be permitted to confer any advantage on a suitor from delayed action by the act of the court. … …”

215. In consonance with the concept of restitution, it was observed that courts should be careful and pass an order neutralizing the effect of all consequential orders passed in pursuance of the interim orders passed by the court. Such express directions may be necessary to check the rising trend among the litigants to secure the relief as an interim measure and then avoid adjudication on merits.

216. In consonance with the principle of equity, justice and good conscience judges should ensure that the legal process is not abused by the litigants in any manner. The court should never permit a litigant to perpetuate illegality by abusing the legal process. It is the bounden duty of the court to ensure that dishonesty and any attempt to abuse the legal process must be effectively curbed and the court must ensure that there is no wrongful, unauthorized or unjust gain for anyone by the abuse of the process of the court. One way to curb this tendency is to impose realistic costs, which the respondent or the defendant has in fact incurred in order to defend himself in the legal proceedings. The courts would be fully justified even imposing punitive costs where legal process has been abused. No one should be permitted to use the judicial process for earning undeserved gains or unjust profits. The court must effectively discourage fraudulent, unscrupulous and dishonest litigation.

217. The court’s constant endeavour must be to ensure that everyone gets just and fair treatment. The court while rendering justice must adopt a pragmatic approach and in appropriate cases realistic costs and compensation be ordered in order to discourage dishonest litigation. The object and true meaning of the concept of restitution cannot be achieved or accomplished unless the courts adopt a pragmatic approach in dealing with the cases.

218. This Court in a very recent case Ramrameshwari Devi and Others v. Nirmala Devi and Others 2011(6) Scale 677 had an occasion to deal with similar questions of law regarding imposition of realistic costs and restitution. One of us (Bhandari, J.) was the author of the judgment. It was observed in that case as under:
“While imposing costs we have to take into consideration pragmatic realities and be realistic what the defendants or the respondents had to actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc.
The other factor which should not be forgotten while imposing costs is for how long the defendants or respondents were compelled to contest and defend the litigation in various courts. The appellants in the instant case have harassed the respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts. The appellants have also wasted judicial time of the various courts for the last 40 years.”

IT IS DUTY BOUND ON THE PART OF REVENUE AUTHORITIES TO INTIMATE CHANGE OF OWNERSHIP

noreply@blogger.com (Advocate Sridharababu) — Tue, 24 Apr 2012 09:43:00 +0530

JUSTICE HVG RAMESH of Karnataka High Court in case of Mahadevappa And Ors. vs State Of Karnataka Reported in ILR 2008 KAR 1750 It is needles to say it is duty bound on the part of the revenue authorities and the Sub-Registrar as per Section 128(4) to invariably intimate the fact of transfer of interest or ownership from the first party to the second party to the concerned revenue authorities so that concerned revenue authorities will make the mutation entries in the concerned register and also proper entries in the revenue register after following the procedure as per Section 129 of the Land Revenue Act. Ultimately, any intended purchaser would get himself verified about the status of the property whether before he could go for any such purchase or seek for transfer of interest from the person who has got a right, title and interest so that he will not be mislead. For want of these entries in the revenue records and for want of proper information from the concerned Department of the Government, often purchasers are being mislead and get into problems and hardship. It is high time to intimate the Revenue Department and the concerned Department to meticulously follow the procedure as provided under Section 128 & 129 of the Karnataka Land Revenue Act and also it should be made mandatory as a matter of responsibility on the part of the Government to save the public from the precarious situation and also there shall be timely action by the revenue authorities without there being any delay on their part in making entries in the mutation register and other registers in the revenue office and in the Corporation/Municipality in city limits to avoid future complications.

PHADA LAND - COURT AUCTION - RESTORATION - RIGHTS OF PARTIES

noreply@blogger.com (Advocate Sridharababu) — Tue, 24 Apr 2012 09:15:00 +0530

Karnataka High Court
Nagappa Gowda And Ors. vs Doddamane Gurupadappa And Anr. on 6 November, 1952
Equivalent citations: AIR 1954 Kant 39, AIR 1954 Mys 39, ILR 1953 KAR 408
Author: Vasudevamurthy
Bench: Medapa, Vasudevamurthy

JUDGMENT

Vasudevamurthy, J.

1. The plaintiff's suit for declaration of title, possession and mesne profits of a garden land has been party decreed by the District Judge, Shimoga and defendants 1 to 4 and 6 have appealed. Defendant 5 has been formally impleaded as respondent 2 and the plaintiff is respondent 1. The plaintiff has also filed cross-objections regarding the 4 share of the garden which has not been decreed in his favour.

2. According to the plaintiff, the suit property belonged to a joint Hindu family of one Benavanna- Gowda and his three undivided brothers. For failure to pay land revenue it was forfeited to Government in or about the year 1937, but it could not be disposed of in revenue auction for want of bidders and it was resumed or taken under Government "phada"; subsequently as Benavanna-Gowda paid up all the dues it was granted to him. For some monies due by him and his brothers the plaintiff filed a suit O. S. No. 27 of 35-36 in the Court of the Subordinate Judge at Shimoga, and in execution of that decree purchased the suit property along with some other items in Court sale on 1-10-42. After the sale was confirmed he was put in possession in Mis. No. 11 of 43-44 . At that stage the father of defendant 6, one Chennabasappa now dead and who was the then Manager of the family of the defendants filed a suit O. S. No. 160/43-44 in the Shimoga Munsiff's Court for a declaration of his title and for permanent injunction against the plaintiff alleging that he was in possession, and obtained an order of temporary injunction restraining the plaintiff from entering the suit garden. Under colour of that order he then removed the areca and paddy crop for the year 1943-44. Chennaba-sappa's suit was decreed in his favour by the Munsiff but, on appeal, was dismissed by the Subordinate Judge of Shimoga and the dismissal was confirmed in the High Court. In spite of that decision the deceased Chennabasappa and after him defendants 1 to 6 his legal representatives have been continuing in unlawful possession of the land and were liable to deliver up possession and mesne profits.

3. The defendants pleaded that the suit property belonged solely to Renevannagowda and was his self-acquisition. One Krishnappa filed a suit against him for some monies due by him in O. S. No. 335/26-27 in the Shimoga Munsiff's Court and brought it to sale in Ex. case No. 191 of 31-32 when it was purchased in Court auction by one Sundarasastry. After the sale was confirmed in his favour on 24-12-1934, Sundarasastry was put in possession through Court on 1-1-35 in Mis. No. 121/34-35. He subsequently sold the garden to Chennabasappa, father of defendant 6, on 30-6-43. Sundarasastry and after the sale by him Chennabasappa and the defendants were all along in possession and enjoyment of the suit property. The plaintiff had got the suit property attached before judgment in O. S. 27/35-36 which he had brought against Benavannagowda and his brothers. Sundarasastry had then put in a claim objecting to the attachment in Mis. Case No. 20V of 35-36. That claim had been allowed in favour of Sundarasastry as far back as on l4-3-1937. The plaintiff had not got that order set aside and the same had become conclusively binding on him. Nevertheless he had played a fraud on the Court by getting the suit property sold subsequently in execution in the Subordinate Judge's Court at Shimoga without disclosing to that Court the fact that Sundarasastry's claim against the attachment had been allowed as aforesaid & he could not acquire any right under such a fraudulent sale.

The Suit O. S. No. 160/43-44 filed by Chennaba-sappa in the Munsiff's Court at Shimoga for a declaration of title and permanent injunction was decreed in his favour by the Munsiff, Shimoga, as admitted in the plaint. But on appeal in R.A. No. 16/45-16 the Subordinate Judge rejected the plaint only on a technical ground that an extract from the Record of Rights had not been filed along with the plaint, and in -- 'S. A. No. 356 of 1946-47 (Mys) (A)' that order was confirmed. There had been therefore no decision on the merits against the defendants in those appeals and three criminal complaints filed by the plaintiff against the defendants complaining of trespass and that in respect of the produce of this suit garden had ended in orders of discharge. The defendants had considerably improved the garden and in the event of the plaintiff succeeding they were entitled to be reimbursed the value of the same. The plaintiff had brought this suit on account of ill-will as a counter blast to some other litigation between the parties.

4. The District Judge, Shimoga, found that the suit property was the joint family property of Benavannagowda and his brothers and that it did not belong to Benavannagowda alone. He held that the order in the claim case could only affect Benavannagowda's share as Sundarasastry had bought only his right, title and interest. He did not think that the plaintiff was entitled to claim any enlargement of his rights on account of the forfeiture and other revenue proceedings. He did not also believe that the defendants had improved the suit garden. He, therefore, made a decree in favour of the plaintiff for a 3/4th share of the garden and mesne profits.

5. Mr. Krishnamurthi, learned counsel for the appellants, has contended before us that the order of the Subordinate Judge in the claim case was that the plaintiff could not validly attach before judgment the suit property as belonging to his judgment-debtors Benavannagowda and his brothers;,that as that order had not been set aside within the time allowed by law, as required under Order 21, Rule 63, Civil P. C., it had become conclusive. The plaintiff could not in this suit put forward or claim the identical right which had been negatived in the miscellaneous ease. Mr. Sadanandaswamy, learned counsel for respondent 1, has urged that the attachment effected by his client was one before judgment and not in execution of a decree, and that consequently neither Order 21, Rule 63 which requires a suit to be filed to have an order made in a claim case set aside nor Article 11, Limitation Act which prescribes a period of one year within which such a suit must be filed applied in terms to bar the plaintiff's present suit. Moreover this suit was one for declaration of title and possession and not for setting aside the order in the claim case and it was really governed by Article 138 which gives his client 12 years from the date of confirmation of sale to bring such a suit.

6. It has been held so far back as in -- '4 Mys C C R 146 (B)' that an order passed under Section 487 of the old Code of Civil Procedure corresponding to Order 38, Rule 8 of the present Code allowing a claim to property attached before judgment in a suit is subject to the provisions of Section 283 (Order 21, Rule 63 of the present Code) and that the plaintiff's remedy to have it set aside is a suit under that section. This decision has been followed with approval in -- '51 Mys H C R 448 (C)', where reference has also been made to -- 'Pyaw Gyi Ma v. Latchmanan Chettiyar', AIR 1931 Rang 183 (D) and -- 'Maliknarjuna v. Virayya', AIR 1918 Mad 26 (FB) (E). See also -- 'Dhan Bibi v. Mrinalini Ghosh', AIR 1945 Cal 449 (P). Order 21, Rule 63, Civil P. C. declares that where a claim or an objection is preferred to an attachment the party against whom the order is made may institute a suit to establish the right which he claims to the property in dispute, but subject to the result of such suit, if any, the order shall be conclusive.

It has been held in -- '44 Mys HCR 589 (G)', while dealing with a similar provision under Order 32, Rule 103 that the effect of the failure to file a suit within one year of an order made under Order 21, Rule 97 to set aside that order and to establish his right to present possession of the property in dispute, the claim to such possession is concluded and even as a defendant he cannot resist the recovery of possession by the opposite party. It was observed in that case that as between the parties to that order there was a bar provided under Order 21, Rule 103 and as between themselves the unsuccessful party lost his right to possession. He could not also resist the claim of the plaintiff for recovery of possession as a defendant in the suit for tne same reasons as would preclude him from suing as plaintiff to recover possession. It was further pointed out in that case that any other way of construing those provisions would be to allow the unsuccessful party to circumvent the law. See also -- 'Azizullah Khan v. Ghulam Hussein', AIR 1924 Sind 97 at p. 99 (H); -- 'Nema Gauda v. Paresha', 22 Bom 640 (I); -- 'Ma Sein-Htay v. Maung Mya', AIR 1935 Rang 161 (J), and Mulla's Code of Civil Procedure, 11th Edn; page 848 where it is observed that "subject to the re-sult of such suit the order shall be conclusive" in Rule 63 of Order 21 means that unless the suit is brought as provided in that rule the party against whom the order is made cannot assert either as plaintiff or as defendant in any other proceedings the right denied to him by the order; vide -- 'Bailur Krishna v. Lakshmana', 4 Mad 302 (K); 22 Bom 640 (I); -- 'Surnamoya Dasi v. Ashutosh Goswami', 27 Cal 714 (L); -- 'Kayyana Chittemma v. Dossy Gavaramma', 29 Mad 225 (M); -- 'Yarakayya v. Venkata Krishnamaraju'. AIR 1918 Mad 693 (1) (N); -- 'Akkammal v. Komarsami Chettiar', AIR 1943 Mad 36 (O); --'Premsukh Das v. Satyanarain Singh', AIR 1945 Pat 485 (P).

7. We have therefore to see what in this case is the nature and effect of the order passed in the claim preferred by Sundarasastry against the plaintiff who had attached the suit property as belonging to his debtors Benavannagowda and his three brothers. That order has been marked as Ex. I in this case. In his application under Order 38, Rule 8 Sundarasastry had claimed the property attached in the plaintiff's suit O. S. No. 37 of 35-36 as his own and as being in his possession and enjoyment. The plaintiff contested the claim and after recording evidence, during the course of which Sundarasastry examined himself and his tenant Nagabhatta and produced copies of the sale certificate issued in his favour, after the Court confirmed the sale in his favour a receipt evidencing delivery of possession by Court on 1-1-1935 (sic). The plaintiff examined himself, and he and a witness whom he examined gave evidence that the property belonged to the joint family of Benavannagowda and his brothers. The Subordinate Judge held that the evidence disclosed that possession of the property was with Sundarasastry and that the copy of the sole certificate showed that the same had been sold subject to a hypothecation in favour of the plaintiff. The latter and Benavannagegowda had unsuccessfully tried to have the Court sale set aside and both in the Subordinate Judge's Court and on appeal it was held that the attachment which was challenged was apparently got effected merely to harass the petitioner & could not be sustained. That order clearly recognized Sundarasastry's prior purchase under the Court sale in Ex. 191/31-32 in O. S. No. 338/26-27 to attach the property as still belonging to Benavanr.agowda and his brothers. After this order has become conclusive under Order 21, Rule 63, it would be idle for the plaintiff to contend that he can again put forward the same contention, viz., that the property belonged to the joint-family of Benavannagowda and his brothers in this suit between himself and the defendants who claim under Sundarasastry merely because he has chosen to frame it as a suit for declaration of title and possession.

8. Mr. Sadanandaswamy has urged that Article 11 does not in terms apply to the present suit as it refers to a suit to set aside or avoid the effect of an order passed in respect of an attachment in execution of a decree and not an attachment before judgment. That question has been, however, set at rest so far as our Court is concerned, and it has been held by a Bench of this Court in -- 51 Mys HCR 448 (C)', that Article 120 and not Article 11, Limitation Act applies to a suit to set aside an order made on a claim in respect of an attachment before judgment though such claim or objection was preferred after decree in the course of execution proceedings. The same view has been taken in a recent decision of the Calcutta High Court in -- 'AIR 1945 Cal 449 (P)'. The plaintiff's suit which was filed on 11-12-43 is long after even the six years prescribed by Article 120 from the date of the order in the claim case, viz., 14-8-37 even if it can be construed as one to set aside that order.

9. Mr. Sadanandaswamy has next urged that as the suit land had been forfeited to Government under the provisions of the Mysore Land Revenue Code and transferred to "Government Phada" in the year 1937 for non-payment of land Revenue, whatever rights Sundarasastry acquired under bis purchase in Court sale were lost. He represents that the khata of the land stood in the name of a deceased man Krishnabhatta when the land was forfeited; that it war, restored to Benavannagowcla and that the latter must be deemed to have become its absolute owner again after Sundarasastry lost his rights by the forfeiture. Section 54, Land Revenue Code is, however, clear and a mere forfeiture followed by the restoration to the defaulting "holder" Bena-vannagowda does not wipe out all the earlier rights. It has also been held by this Court in -- 18 Mys CCR 76 (Q)', that neither the Mysore Land Revenue Code nor the rules thereunder contemplate the purchase on behalf of Government land which has been "forfeited" by reason of non-payment of the land revenue; and a mere forfeiture, while it no doubt operates, so far as Government is concerned, as a resumption of the holding, does not, unless it is followed by a sale, necessarily extinguish rights and equities that may be subsisting as between private parties. There an exactly similar contention that the restoration of the khata to the defaulter was equivalent to a new and absolute grant of the land freed from all previously existing rights and equities was negatived. There is therefore no substance in this contention which has been rightly held against Respondent 1 by the District Judge. See also -- 'Amolak v. Dhondi', 30 Bom 4G6 (R).

10. Mr. Krishnamurthi has urged that the plaintiff had deliberately suppressed the order; against the appellants in the claim case while obtaining an order for sale of the property as belonging to all the brothers and had got even Benavannagowda's right, title and interest sold up and that he cannot be permitted to come to Court to enforce such a tainted claim under a sale based on a fraud practised on the Court. It is not necessary for us to go into that question or to consider whether the suit property belonged to Benavannagowda alone or his brothers also in the view we have taken that the plaintiff is concluded by the order in the claim case and is precluded from bringing the present suit.

11. In the result this appeal is allowed and the plaintiff's suit is dismissed with costs throughout. The cross-objections are also dismissed but without costs.

12. Appeal allowed cross objections dis- missed.

'PHADA' LANDS AND ITS RESTORATION - A CASE LAW IN THIS REGARD

noreply@blogger.com (Advocate Sridharababu) — Tue, 24 Apr 2012 09:09:00 +0530

Zaheera Banu Kareem vs Gomathi Bai G. Kamath on 14 June, 1993
Equivalent citations: ILR 1994 KAR 662
Author: Hanumanthappa
Bench: Hanumanthappa

JUDGMENT

Hanumanthappa, J.

1. Pursuant to the Reference made by the Hon'ble Supreme Court by its Order dated 31.10.1991 in Civil Appeal No. 624 of 1973, finding of this Court is given on the Point, viz., "legal effect of the order of the restoration of the land in favour of Bashir Ahmed".

2.In order to see that both sides are given sufficient opportunity to establish their case, this case was adjourned many times as requested by both sides. Thus the matter was heard on several dates of hearing. On the Point involved both sides made me to go through various documents produced in the case, important Sections of the Mysore Land Revenue Code and the Bombay Land Revenue Code, Section 43 of the Transfer of Property Act and the Authorities relied (sic) by both sides in support of their rival contentions.

3. To give a finding on the Point of Reference made by the Hon'ble Supreme Court, it is proper to mention a few facts, as their narration will avoid the confusion which had set in.

Originally one Kaushik was the owner of the lands in dispute. He sold the said lands to one Syed Basheer Ahmed in the year 1942. The said Syed Basheer Ahmed did not pay the land revenue in respect of the lands in question for some time. As Syed Basheer Ahmed became defaulter in payment of land revenue, the State exercising its power under the provisions of the Mysore Land Revenue Code, 1888 (hereinafter referred to as the 1888 Code) forfeited the said lands to the Government during the year 1948-49. As there were no bidder, in view of Section 55 of the 1888 Code the Government itself purchased the said lands in Survey Nos. 29 and 30 of Sonnamaranahalli Village and Survey Nos. 35 and 40 of Gullia Nandi Gunta Village, Thubagere Hobli, Doddaballapur Taluk, Bangalore District. Earlier to this, there was some dispute between Padmanabha Kamath and Syed Basheer Ahmed. Padmanabha Kamath filed a suit against Syed Basheer Ahmed in the High Court of Madras in O.S.No. 148 of 1946. The said suit was decreed in favour of Padmanabha Kamath. The decree was transferred to the District Court, Bangalore, and was put in execution in Execution Case No. 6 of 1953. The Executing Court brought the lands for sale. On 3.9.1953 Padmanabha Kamath purchased the said lands as he was the highest bidder. On 7.6.1954 the sale in favour of Padmanabha Kamath was confirmed. On 16.3.1955 the Sale Certificate at Exhibit P.3 in respect of the lands in question was issued to Padmanabha Kamath. On 2.1.1965 in Misc. Case No. 127 of 1955 possession of the lands in question was handed over to the auction-purchaser, Padmanabha Kamath. Upto this date by virtue of the forfeiture of the land by the Government in the Revenue records the nature of possession was described as 'Government Phada' under the Kathedar column. On 2.1.1956 Padmanabha Kamath sold the lands under Exhibit P.1 to Smt. Gomathi Bai G. Kamath, w/o Govinda Kamath, resident of Bombay, for valuable consideration. From the date of purchase till 1960-61 the name of the plaintiff, i.e., Smt. Gomathi Bai G. Kamath, was shown in the Exhibits at Exhibit P-8 series as the, person in possession of the property either authorised or unauthorised. The plaintiff contended that during the last week of July, 1967, when the plaintiff's husband went to the lands in question, he found that the defendant, i.e., Smt. Zahera Banu Kareem, was cultivating the lands, viz., S.No. 29 and 30 of Sonnamarnahalli. This action of the defendant was objected by the plaintiff by issuing a legal notice and subsequently the plaintiff filed a suit, O.S. No. 31 of 1967, in the Court of the Principal Rural Civil Judge, Bangalore, for declaration and possession of the lands in dispute and for other reliefs, viz., mesne profits, etc. In the plaint the plaintiff contended that (i) Padmanabha Kamath by virtue of purchasing the lands in Court auction perfected his title to the lands and as she had purchased the lands from Padmanabha Kamath her title to the lands was a valid one; (ii) the right, title and interest over the lands in question were transferred to the plaintiff by such sale as per the Sale Deed dated 2.1.1956 at Exhibit P. 1.

4. In the suit the defendant filed her written statement denying the claim of the plaintiff. She contended in the Written Statement as follows:

The lands were resumed to the Government for non-payment of land revenue in the year 1948-49. The lands were shown as 'Government Phada' in the revenue records. Till 1961 the Government continued to have title over the lands. The lands were purchased by Padmanabha Kamath in Court auction in Ex.Case No. 6 of 1952-53 in execution of the decree in O.S.No. 148 of 1946 obtained by him against Syed Basheer Ahmed. As the Government had resumed the lands in question, Padmanabha Kamath did not acquire any right over the lands by such purchase. In the year 1961 after receiving the arrears of land revenue due to the Government, the lands were restored to Syed Basheer Ahmed on 22.6.1961 and in turn Syed Basheer Ahmed divided the lands and sold to Rahmathunnisa Begum alias Bathulla Begum and Nazir Ahmed. Thus, by restoration of the lands in question to Syed Basheer Ahmed on 22.6.1961 the lands became free from all encumbrances. On 1.4.1966 the defendant purchased the lands in question from the said Rahmathunnisa Begum alias Bathulla Begum and Nazir Ahmed. Thus contending the defendant requested that the suit be dismissed as not maintainable.

5. On the basis of the Pleadings the trial Court framed the following issues:

"1. Is the Court sale in Ex.6/52-53 referred to in the plaint true and did it confer title to the plaintiff's vendor ?

2. Did the plaintiff's vendor take possession of the property in Misc. No. 127/55?

3. Has the plaintiff been the owner of the schedule property by virtue of the sale deed dated 2.1.1956 and rectification document dated 16.12.1957?

4. Was the plaintiff in possession of the schedule property ?

5. Where the suit lands resumed by the Government in the year 1948-49 as pleaded and whether Syed Basheer Ahmed, the Judgment debtor in Ex.No. 6/52-53 had no right, title or interest in the schedule property on the date of Court sale ?

6. Were the suit lands restored to him in 1961 and did he become the owner of the property in 1961 ? If so, what will be the effect of restoration of the suit land in his favour ?

7. Had the plaintiff made improvements in the land and has the defendant damaged the well, motor, etc. and is the plaintiff entitled to damages ? If so, to what amount ?

8. Is plaintiff entitled to mesne profits ? If so, to what amount?

9. To what relief, the parties are entitled ?"

In support of their case both parties produced certain documents. On the plaintiff's side the following documents were produced :

1. Registered sale deed dated 2.1.1956 in favour of the plaintiff marked with letter 'A';

2. Registered Rectification deed dated 16.12.1957 marked with letter 'B';

3. Sale certificate issued by the Court of the District Judge, Bangalore, dated 7.6.1954 marked with letter 'C';

4. Two encumbrance Certificates in respect of the suit schedule lands covering the period from 25.11.1952 to 24.7.1967 marked with letters 'D' and 'E';

5. Certified copies of Extracts for the entries made in the Index of lands and Record of Rights marked 'F-Series' (Four in number);

6. Copy of the legal notice dated 27.7.67 with postal acknowledgment marked 'G' and 'G-1'; and

7. Copy of Power of Attorney of the plaintiff.

On the defendant's side the following documents were produced:

1. Sale deed dated 1.4.66 executed by S, Nazir Ahmed;

2. Sale deed dated 1.4.66 executed by Rahantunnissa in favour of defendant;

3. Encumbrance certificate;

4. Bills issued by the Mysore State Electricity Board;

5. Cash bill of M. Srinivascharlu and Co., and

6. Guarantee card.

Before the trial Court the defendant was placed exparte. Hence, the trial Court accepting the contentions raised by the plaintiff decreed the suit. Aggrieved by the same, the defendant preferred an appeal in R.A.No. 2 of 1970 on the file of the Principal District Judge, Bangalore. Before the learned District Judge many grounds were urged. However, the relevant ground for the purpose of giving a finding on the Reference made is as follows:

"That even on merits the decree and judgment of the lower Court was unsustainable because that the plaintiff had not derived any right, title or interest under the sale deed because her vendor had not derived any right, title or interest under the Court auction sale because the judgment debtor had not any subsisting right in the property on the date of the auction."

After hearing both sides, the learned District Judge formulated several Points for Determination out of which the following Points are relevant for the present purpose:

1. "Whether the plaintiff had acquired right title, and interest under the sale deed dated 2.1.1956 under Exs.P.1 and P-2?"

2. "Whether the plaintiff was in possession and enjoyment of the suit schedule lands as asserted by her?"

3. "Whether the defendant has acquired right, title and interest in the suit schedule properties under her sale deed dated 22.6.62?"

4. "Whether she is in possession and enjoyment of the suit lands?"

The learned District Judge after considering the entire material produced found thus:

"Documents Ex.P.8 series and Ex.P.9 series unambiguously show that in 1951 the land was registered in the name of the Government, and by virtue of such transfer the original owner Syed Basheer Ahmed must be deemed to have been divested of his rights except his right to reclaim the land on payment of land revenue. When the sale was held the auction purchaser at the Court sale must be deemed to have purchased such right, title and interest as the Judgment debtor had in the said lands. Applying this standard two inferences can be drawn viz., (i) the rights of the Judgment debtor in the land were extinguished in 1951 when the Government resumed the lands subject only to the right of the pattadar to reclaim the land on payment of arrears of land revenue and (ii) that when the lands were sold by the Court in auction in execution of the decree the auction purchaser, namely, the vendor of the plaintiff derived all such rights as were with the judgment-debtor. The judgment debtor admittedly had the right to reclaim the land on payment of arrears of land revenue. Therefore, Syed Basheer Ahmed the judgment debtor had no right, title or interest after the Court sale. His rights were completely extinguished and new rights were created in favour of the auction purchaser. He and he alone could have reclaimed the land."

Thus observing the learned District Judge held that the auction purchaser perfected his title to the property subject to his payment of arrears of land revenue if and when the Government thought fit to disturb his possession or the purchaser himself thought fit to prefer his title. Making a reference to Exhibit P.4 -- the Delivery Receipt, Exhibit P-7 - the Treasury Challan dated 16.6.1959 and Exhibit P-6 -the notice dated 11.7.1961 which came into existence prior to the dispute between the parties the learned District Judge held that they conclusively establish that the plaintiff was in possession of the said lands arid cultivated the same. Thus a categorical finding was given by the learned District Judge that the plaintiff was in possession and enjoyment of the lands in question between 1956 and 1961. Whereas the suit was filed in the year 1967 and even if the defendant was in possession it will not confer any right, title and interest on the defendants. The learned District Judge also held that when the Judgment-debtor preferred the appeal challenging the exparte decree, an interim order of stpy of execution was granted subject to the condition that the judgment-debtor should furnish security for due performance of the decree. But the same was not complied with. As such the learned District Judge found that the decree obtained by Padmanabha Kamath was executed and the plaintiff was put in possession of the property. Thus holding the learned District Judge by his judgment and decree dated 14.12.1970 dismissed the appeal.

6. In R.S.A, No. 964 of 1971 the judgments and decrees of the Courts below were challenged. But, this Court rejected this Appeal at the stage of admission itself as there was no ground to interfere, by the order dated 26.10.1971. An Appeal in Civil Appeal No. 624 of 1971 has been preferred before the Supreme Court against the Order of this Court rejecting the Regular Second Appeal. In the said Appeal the Supreme Court requires a finding from this Court as to the legal effect of the order of restoration of the land in favour of Basheer Ahmed.

7. Both sides in addition to putting forth their arguments took me through the documents referred to above and the orders made.

8. Sri. Karanth, learned Counsel for the appellant/defendant, contended as follows:

The plaintiff's vendor, viz., Padmanabha Kamath, had no title over the lands, as, on the date of Court auction the Judgment-debtor/Basheer Ahmed had no right over the lands and the lands were forfeited and resumed to the Government. Subsequently, the lands came to be shown as 'Government Phada' in the Revenue records. Subsequent to the Court's auction sale and the plaintiff's vendor purchasing the lands in question, the Government restored the lands to Syed Basheer Ahmed/Judgment-debtor on receipt of the arrears of land revenue from him. By such restoration, the land became a free grant in favour of Syed Basheer Ahmed and the same was exclusively for his benefits. By virtue of such restoration Syed Basheer Ahmed acquired a title over the property and also a right to alienate the lands. Accordingly he sold the lands to Rahmathunnisa Begum alias Bathulla Begum and Nazir Ahmed from whom the appellant/defendant purchased the same. By virtue of such purchase the defendant perfected her title to the properties. Though the decree-holder/Padmanabha Kamath who was the plaintiff's vendor had initiated proceedings against Syed Basheer Ahmed earlier to forfeiture of the lands by the Government, the forfeiture took place earlier to Padmanabha Kamath obtaining a decree against Syed Basheer Ahmed and the decree-holder/Padmanabha Kamath purchased the lands in Execution Case No. 6 of 1952-53 on 3.9.1953. It was further contended by the learned Counsel for the appellant that in view of Section 54 of the 1888 Code whatever rights Basheer Ahmed had were obliterated by virtue of forfeiture of the lands by the Government. It was also contended that the question of pleading equity by the plaintiff does not arise in this case. Sri Karanth, learned Counsel for the appellant/defendant, while reiterating the above contentions raised before the Courts below submitted that in view of Section 54 of 1888 Code the decree-holder did not acquire any right, title or interest over the property and as such the transfer of the lands made by him (Padmanabha Kamath) in favour of the plaintiff was not a valid one as no title was passed on to the plaintiff. When there was a forfeiture and resumption it shall be presumed that whatever right the earlier occupant had was extinguished and by virtue of restoration of lands such occupant became a holder of fresh grant free from all encumbrances. According to him, Section 43 of the Transfer of Property Act also disentitles the plaintiff and her vendor in setting up any claim over the lands. In support of his contentions Sri. Karanth placed reliance on the following Authorities:

(1) BATCHU RAMAYYA v. DHARA SATCHI 20 Madras L.J.635, wherein the High Court of Judicature at Madras, while interpreting the scope of Section 43 of the Transfer of Property Act and alienation of service inam lands held that Section 43 of the Transfer of Property Act cannot be invoked in favour of alienee of the inam land whose alienation is wholly void under the law.

(2) PRASANNA KUMAR MOOKERJEE v. SRIKANTHA ROUT ILR Vol XL Calcutta 173, the Calcutta High Court, while considering non-payment or discontinuance of payment of rent, acquiescence, etc. held that non-payment of rent or discontinuance of payment of rent did not by itself constitute adverse possession. The relevant observations in the said Decisions regarding the scope of Section 43 and the estoppel are as follows:

"It need not be disputed that if a grantor, who has no title or a defective title or an estate less than what he assumes to grant conveys with warranty or covenants of like import, and subsequently, acquires the title or estate which he purports to convey, or, perfects his title, such after-acquired or perfected title will enure to the grantee as to his benefit by way of estoppel. .. ..

In case of a voluntary private alienation, the deed, either expressly or by necessary implication, shows that the grantor intended to convey and that the grantee expected to become vested with an estate of a particular kind: the deed may consequently found an estoppel, although it contains no technical covenents. .. ..

The case of an execution sale, however, stands on an obviously different footing. The decree-holder does not guarantee the title of the judgment-debtor; the intending purchaser knows that under the law he can acquire nothing beyond the right, title and interest of the judgment-debtor.

.. ..

It was held that the extent of an execution raises an estoppel as much as in the case of conveyance, the contrary view, namely, that an execution sale of property not belonging to the judgment-debtor does not estop him from asserting against the purchaser title subsequently acquired, has been maintained in cases of recognised authority."

(3) In ABDUL REHMAN IBRAHIM v. VINAYAK JAYAVANTRAO DESHMUKH 29 Bombay L.R. 1056, while explaining forfeiture and re-sale of the mortgaged property, the High Court of Bombay held as follows:

"The right to redeem was lost owing to the forfeiture of the land under the original Section 56 of the Bombay Land Revenue Code; and that before the plaintiff could succeed he must show that the forfeiture and the revenue sale were due to the default of the mortgagee in not paying the assessment and that the income of the land was sufficient to pay the assessment or that in some way the mortgagor had put the mortgagee in funds wherewith to pay the assessment."

(4) SABAPATHI PILLAY v. THANDAVABOYA ODAYAR ILR Vol. XVIII Madras 309, the High Court of Judicature at Madras held thus:

"A purchaser bought in Court auction specific items of properties said to belong to a member of a joint Hindu family. Subsequently there was a partition decree and only some of these items fell to the share of the judgment-debtor.

Held, that the purchaser was entitled to only such of the items as are common to the sale certificate and the share of the judgment-debtor under the decree, and that he could not compel the judgment-debtor to give him other properties in substitution for the remaining properties comprised in the sale certificate."

(5) In NANAK CHAND v. GANDU RAM AND ORS. AIR 1938 Lahore 360, the High Court of Lahore while explaining the scope of Section 43 of the Transfer of Property Act held as follows:

"where certain share of a person is sold by a Court sale though in fact he was not entitled to any such share at the time of the sale but subsequent to sale has become entitled to such share, such person in equity should not be compelled to make good from the share which he subsequently acquires the title conveyed to vendee at the Court sale because there can be no question of equities in the case of Court sale."

(6). NARAYAN GANESH VARDE v. DAUD TARAPORWALA AND ANR., , wherein the Bombay High Court explaining the scope of Section 64 of the Code of Civil Procedure held thus:

"An attachment does not create any interest in the property attached. It does not create any lien in favour of the attaching creditor. It only prevents alienation of the property on the part of the judgment-debtor, so that if the judgment-debtor alienates the property contrary to attachment, then the alienation becomes void as against all claims enforceable under the attachment under Section

64."

(7) VEDU SHIYLAL v. KALU UKHARDU ILR Vol.37 Bombay 692, wherein the Bombay High Court while explaining the scope of Section 56 of the Bombay Land Revenue Code and the position of the mortgagor in possession and also the forfeiture of land on account of failure to pay assessment held thus:

" In 1895, the defendants Nos. 1 and 2 mortgaged their lands to the plaintiff one of the conditions of the mortgage being that the mortgagors were to remain in possession of the land, and to pay the Government assessment. Default having occurred in payment of assessment, the Collector demanded payment first from mortgagors and then from the mortgagee. The latter expressed his willingness to pay, if he was placed into possession of the land. The Collector eventually forfeited the land in 1902; but shortly afterwards re-granted it to defendants Nos. 1 and 2 under Section 56 of the Bombay Land Revenue Code Bombay Act V of 1879, amended by Bombay Act VI of 1901) on a new tenure. The mortgagee (Plaintiff) next obtained a decree on his mortgage; and in execution of it attached the land. The attachment was, however, raised by the Revenue Authorities under Section 70 of the Code. The plaintiff sued for a declaration that the land was liable to be attached and sold in execution of his decree. The Court of first instance dismissed the suit on the ground that the plaint disclosed no cause of action. On appeal:-

Held, that the land was, under the operation of Section 56 of the Bombay Land Revenue Code, vested in defendants Nos. 1 and 2 free from the incumbrance which had been created and from the equities theretofore existing between them and the plaintiff."

Sri Karanth also placed reliance on the Decision of the Allahabad High Court in RADHA BAI v. KAMOD SINGH AND ORS. ILR Vol. XXX Allahabad 38, regarding the effect of Section 43 of the Transfer of Property Act; the Decision of the Privy Council in FERNANDO v. GUNATILLAKA ILR 1921 PC 138 and the Decision of the Allahabad High Court in LALA NAND LAL v. SUNDER LAL AND OTHERS AIR (31) 1944 Allahabad 17. Thus contending, Sri Karanth submitted that a finding be given that by virtue of restoration of possession, Syed Basheer Ahmed became a fresh grant-holder without any lien, charge, encumbrance whatsoever which created earlier and by virtue of such restoration Syed Basheer Ahmed acquired right, title and interest over the lands and as such the sale by Syed Basheer Ahmed in favour of Bathulla Begum and Nazir Ahmed was a valid transfer and the plaintiff's vendor Padmanabha Karnath did not acquire any title to the property under the Sale Certificate issued in O.S.No. 146 and 1948 on the file of the High Court of Madras and in Execution Case No. 6 of 1953 on the file of the District Judge, Bangalore. Therefore, the Sale Deed dated 2.1.1956 (Ex.P.1) executed by Padmanabha Kamath in favour of the plaintiff was not a valid one. Consequently, the Rectification Deed dated 16.12.1957 (Ex.P.2). executed by Padmanabha Kamath in favour of the plaintiff also not a valid one. Thus, he submitted that the plaintiff did not acquire any right, title or interest on the lands in question.

9. As an answer to the above contentions of the learned Counsel for the appellant/defendant, Sri Raghavachar, learned Counsel for the plaintiff/respondent, submitted as follows:

Forfeiture of the lands belonged to Syed Basheer Ahmed by the Government had not resulted in extinguishment of his right over the property. Forfeiture was merely postponement of Syed Basheer Ahmed's right of ownership. He was at liberty to re-claim the lands by paying the land revenue. Though forfeiture took place earlier to purchasing the lands by Padmanabha Kamath in Court auction, but by restoration of the lands Padmanabha Kamath became the owner of the lands from the date he purchased the same in Court auction and his sale in favour of plaintiff a valid one. By the said sale plaintiff was put in possession of the lands and continued to be in possession. By restoration, the right of Syed Basheer Ahmed which was kept in abeyance by forfeiture reverted back to the original date and therefore Syed Basheer Ahmed deemed to have, right, title and interest over the lands on the date Padmanabha Kamath obtained a decree in the High Court of Madras against Syed Basheer Ahmed. By Court safe Padmanabha Kamath became absolute owner. Thus, purchase of the lands by Padmanabha Kamath and their sale to plaintiff was quite valid. According to Sri Raghavachar, Section 43 of the Transfer of Property Act, has no application to the case on hand. He also submitted that the transfer, if any, made by Syed Basheer Ahmed in favour of the defendant was not valid in law and the same not binding on the plaintiff. Moreover from the date of Exhibit P.1 (Sale deed in favour of the plaintiff) till 1961 it was the plaintiff who was in, possession and enjoyment of the property. Syed Basheer Ahmed was aware of this plaintiff's possession. But, with a view to defraud the plaintiff, Syed Basheer Ahmed entered into secret sale transactions with Bathulla Begum and Nazir Ahmed who in turn sold the lands to the defendant. On the basis of the illegal transaction the defendant attempted to assert her title to the property. According to Sri Raghavachar, Section 54 of the 1888 Code and Section 56 of the Bombay Land Revenue Code differ on the effect of restoration. He also submitted that even the Authorities relied upon by Sri Karanth on facts are not applicable to the case on hand. According to him, the Authorities applicable to the case are the following:

(1) BALAJI RAO alias BALAKRISHNA RAO v. SITHA-RAMAYYA XVII Mysore Chief Court Reports 76, 273, wherein it has been held thus:

"Neither the Mysore Land Revenue Code nor the Rules thereunder contemplate the purchase on behalf of Government of land which has been 'forfeited' by reason of non-payment of the land revenue.

A mere forfeiture, while it no doubt operates, so far as Government is concerned, as a resumption of the holding, does not, unless it is followed by a sale, necessarily extinguish rights and equities that may be subsisting as between private parties."

(2) In NAGAPPA GOWDA AND OTHERS v. DODDAMANE GURUPADAPPA AND ANR.AIR 1954 Mysore 39, while dealing with the effect of restoration of forfeited land to the defaulter under Section 54 of the Mysore Land Revenue Code, this Court held thus:

"Mr. Sadanandaswamy has next urged that as the suit land had been forfeited to Government under the provisions of the Mysore Land Revenue Code and transferred to 'Government Phada' in the year 1937 for non-payment of land revenue, whatever rights Sundarasastry acquired under his purchase in Court sale were lost. He represents that the khata of the land stood in the name of a deceased man Krishnabhatta when the land was forfeited; that it was restored to Benavannagowda and that the latter must be deemed to have become its absolute owner again after Sundarasastry lost his rights by the forfeiture. Section 54, Land Revenue Code is, however, clear and a mere forfeiture followed by the restoration to the defaulting 'holder' Benavannagowda does not wipe out all the earlier rights. It has also been held by this Court in '18 Mys. CCR 76 (Q) that neither the Mysore Land Revenue Code nor the rules thereunder contemplate the purchase on behalf of Government land which has been 'forfeited' by reason of non-payment of the land revenue; and a mere forfeiture, while it no doubt operates, so far as Government is concerned, as a resumption of the holding, does not unless it is folfowed by a sale, necessarily extinguish rights and equities that may be subsisting as between private parties. There an exactly similar contention that the restoration of the Khata to the defaulter was equivalent to a new and absolute grant of the land freed from all previously existing rights and equities was negatived. There is therefore no substance in this contention which has been rightly held against Respondent 1 by the District Judge."

(3). In BHOGARA BHARAMAPPA v. RUDRAPPA AND ORS. AIR 1955 Mysore 13, this Court while dealing with forfeiture under the Mysore Land Revenue Code held as follows:

"Under Section 54 it is undoubtedly open to the Deputy Commissioner to forfeit not all the rights liable for forfeiture under that Section, but only those of the immediate defaulter as they stand at the time, if he thinks fit, without affecting tenure, encumbrances and rights derived from the immediate defaulter or his predecessor-in-title.

... ... ...

A mere forfeiture while it no doubt operates so far as Government is concerned, as a resumption of the holding, does not, unless it is followed by a sale, necessarily extinguish rights and equities that may be subsisting as between private parties. It is obviously open to Government, and generally followed as a policy, to restore the forfeited occupancy in the event of the arrears being paid."

(4) AMOLAK BANECHAND AND OTHERS v. DHONDI VALAD KHANDU BHOSLE AND ANR ILR Vol.XXX Bombay 466, wherein while interpreting Sections 56 and 57 of the Bombay Land Revenue Code on the arrears of assessment, forfeiture by Government, mortgage, land in possession of the occupant, regrant by Government to the occupant, suit by mortgagee to recover possession, equities arising out of the conduct of the parties, the High Court of Bombay held as follows:

"Forfeiture ordinarily implies the loss of a legal right by reason of some breach of obligation.

When arrears of assessment are levied by sale, then Section 56 of the Land Revenue Code (Bom. Act V of 1879) in pursuance of an obvious policy, empowers the Collector to sell "freed from all tenures, incumbrances and rights created by the occupant.... or any of his predecessors-in-title or in anywise subsisting against such occupant." Should the Collector otherwise dispose of the occupancy, the Section affords no such protection, and the legal relations must be determined by reference to the ordinary law. So judged, the effect of a forfeiture and the subsequent acquisition of the forfeited property are subject to the control of equities arising out of the conduct of the parties."

(5) In the case of CHANGAPPA v. SATYAPALA RFA No.110 of 1970 - 1974(2) KLJ Sh.N.No. 300, a Division Bench of this Court while explaining the revenue forfeiture of land held as follows:

"A coffee estate of 46 acres 28 guntas belonging to the joint family of S was forfeited in 1932 for arrears of land revenue. In 1957 the forfeiture was annulled and the lands were restored to the Khata of S, on his paying the arrears of land revenue. S sold the lands to defts for discharging debts contracted for obtaining restoration of the lands. The sons of S (S being dead) sued for partition and possession and for mesne profits.

Held, (1) When the order of forfeiture was annulled and the Khata restored, the old title got revived for the benefit of all the members of the joint family, subject to equities, (i.e.) the liability to contribute their share of the amount paid for obtaining restoration."

Thus arguing Sri Raghavachar submitted that mere forfeiture does not necessarily extinguish rights and equities between private parties. According to him, after forfeiture it is the normal practice of the Government to restore the property to the occupant in the event of the arrears being paid. When arrears of revenue are paid, the land will be restored to the occupant and by such restoration the position of the occupant will be as that of his original position. According to him, forfeiture does not take away the earlier rights and equities that may be subsisting as between the private parties. He submitted that the plaintiff purchased the property for a valuable consideration and started cultivating the same. Whereas the defendant on the basis of the secret and illegal sale in her favour attempted to deny the plaintiff's title to the property. The conduct of the defendant was nothing but a resultant of fraud played by Syed Basheer Ahmed, the original owner. As such the finding shall be that Padmanabha Kamath had acquired through Court auction sale a valid title to the lands and the transfer made by him in favour of the plaintiff was a valid one. By such sale transaction dated 2.1.1956 (Ex.P.1) the plaintiff acquired right, title and interest over the lands in question. Thus the sale transaction between the defendant and her vendors or prede-cessors-in-title was neither valid nor binding on the plaintiff.

10. In order to appreciate the different stand taken by both sides it is proper to extract hereunder the following provisions of the 1888 Code and the Rules and also the Bombay Land Revenue Code and Section 43 of the Transfer of Property Act. Section 54 of the 1888 Code reads thus:

"54. Arrears of land revenue due on account of land by any landholder shall be a paramount charge on the holding and every part thereof, failure in payment of which shall make the occupancy or alienated holding, together with all rights of the occupant or holder over all trees, crops, buildings and things attached to the land, or permanently fastened to anything attached to the land, liable to forfeiture, whereupon the Deputy Commissioner may levy all sums in arrears by sale of the occupancy or alienated holding, or may otherwise dispose of such occupancy or alienated holding under rules or orders made in this behalf under Section 233, and such occupancy or alienated holding when disposed of, whether by sale as aforesaid, or by transfer to another person or otherwise howsoever, except by restoration to the defaulter, shall, unless the Deputy Commissioner otherwise directs, be deemed to be freed from all tenures, rights, incumbrances and equities theretofore created by the occupant or holder or any of his predecessors in title or in anywise subsisting as against such occupant or holder, but so as not to affect the rights of kadim tenants or permanent tenants in alienated holdings."

Section 55 of the 1888 Code reads thus:

"55. It shall be lawful for the Deputy Commissioner, in the event of the forfeiture of a holding through any defaulter in payment or other failure occasioning such forfeiture under the last preceding Section or any law for the time being in force, to take immediate possession of the land embraced within such holding, and to dispose of the same by placing it in the possession of the purchaser or other person entitled to hold it according to the provisions of this Act or any other law for the time being in force."

Section 76 of the 1888 Code speaks about the occupant or holder liable to continue for all demands until the occupancy pr holding is duly relinquished or transferred. It reads thus:

"76. The registered occupant or the holder of alienated land shall continue liable for the land revenue due on the occupancy or alienated holding and for all other lawful demands of Government in respect of the same, until such time as the occupancy or alienated holding is relinquished or transferred, under any of the provisions of this Act, to the name of any other person; and the Deputy Commissioner shall not be bound in any case to recognize any person to whom any interest in any portion of an occupancy or alienated holding has been assigned, unless the transfer has been recorded in the revenue records in accordance with the foregoing provisions."

Chapter XI of the 1888 Code deals with the realisation of the land revenue and other revenue demands. Section 142 which comes under Chapter XI prescribes that it is the primary responsibility of the registered occupant to pay land revenue of unalienated land. It reads thus:

"142. The registered occupant shall be primarily responsible to Government for the land revenue of unalienated land, and the superior holder shall be primarily responsible to Government for the land revenue of alienated land.

On failure of the person primarily responsible to Government for the land revenue to pay the same according to the rules legally prescribed in that behalf, it may be recovered from the co-occupant of unalienated land or the co-sharer of alienated land, or in either case from the inferior holder or person in actual occupation of the land.

When the land revenue is recovered from any such occupant, co-sharer, inferior holder, or other person, he shall be allowed credit for all payments which he may have made to the registered occupant, or superior holder, or to his landlord, at or after the prescribed or usual times of such payments, and he shall be entitled to credit in account with the registered occupant or superior holder or with his landlord for the amount recovered from him."

Section 152 which regulates payment of land revenue reads thus:

"152. Land revenue, except when it is recovered under the provisions of the foregoing Sections 146 to 150, shall be payable at such times, in such instalments, to such persons and at such places as may, from time to time, be determined by the orders of Government."

Section 153 says who is the defaulter. It reads:

"153. Any sum not so paid becomes thereupon an arrear of land revenue; and the persons responsible for it, whether under the provisions of Section 142 or of any other Section, become defaulters."

Section 156 which speaks about the recovery of arrears reads thus:

"156. An arrear of land revenue may be recovered by the following processes:-

(a) by serving a written notice of demand on the defaulter under Section 158;

(b) by forfeiture of the occupancy or alienated holding in respect of which the arrear is due under Section 159;

(c) by distraint and sale of the defaulter's movable property under Section 160;

(d) by sale of the defaulter's immovable property under Section 161;

(e) by arrest and imprisonment of the defaulter under Section 163 and 164;

(f) in the case of alienated holdings consisting of entire villages, or shares of villages by attachment of the said villages or shares of villages under Sections 165 to 169,"

Section 159 reads as under;

"159. The Deputy Commissioner may declare the occupancy or alienated holding in respect of which an arrear of land revenue is due to be forfeited to Government, and sell or otherwise dispose of the same under the provisions of Section 54 and 55, and credit the proceeds, if any to the defaulter's accounts."

Section 161 is as under;

"161. The Deputy Commissioner may also cause the right, title and interest of the defaulter in any immovable property, other than the land on which the arrear is due, to be sold."

Rule 38 of the Land Revenue Rules empowers the Deputy Commissioner that in his discretion he may restore any forfeited occupancy or alienated holding at any time on payment of the arrear in respect of which the forfeiture was incurred together with all costs and charges lawfully due by the defaulter.

11. The relevant provisions of the Bombay Land Revenue Code, 1879, are Sections 56, 57 and 151. Section 56 read as under:

"56. Arrears of land revenue due on account of land by any landholder shall be a paramount charge on the holding and every part thereof, failure in payment of which shall make the occupancy or alienated holding together with all rights of the occupant or holder over all trees, crops, buildings and things attached to the land or permanently fastened to anything attached to the land liable to forfeiture, whereupon the Collector may levy all sums in arrears by sale of the occupancy or alienated holding or may otherwise dispose of such occupancy or alienated holding under rules made in this behalf under Section 214, and such occupancy or alienated holding when disposed of, whether by sale as aforesaid, or by restoration to the defaulter, or by transfer to another person or otherwise howsoever, shall, unless the Collector otherwise directs, be deemed to be freed from all tenures, rights, incumbrances and equities theretofore created in favour of any person other than the Government in respect of such occupancy or holding."

Section 57 of the Bombay Land Revenue Code reads thus:

"57. It shall be lawful for the Collector in the event of the forfeiture of a holding through any default in payment or other failure occasioning such forfeiture under the last Section or any law for the time being in force, to take immediate possession of such holding, and to dispose of the same by placing it in the possession of the purchaser or other person entitled to hold it according to the provisions of this Act or any other law for the time being in force."

Section 151 of the Bombay Land Revenue Code reads thus:

"151. The said processes may be employed for the recovery of arrears of former years as well as of the current year, but the preferences given by Sections 137 and 138 shall apply only to demands for the current year:

Provided that any process commenced in the current year shall be entitled to the said preference, notwithstanding that it may not be fully executed within that year."

12. Section 43 of the Transfer of Property Act deals with transfer by unauthorised person who subsequently acquires interest in the property transferred. It reads thus:

"43. Where a person fraudulently or erroneously represents that he is authorised to transfer certain immoveabte property, and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property, at any time during which the contract of transfer subsists.

Nothing in this Section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option."

Section 6(i) of the Transfer of Property Act reads as under:

"6. Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force:

... ...

(i) Nothing in this Section shall be deemed to authorize a tenant having an untransferrable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate under the management of a Court of Wards, to assign his interest as such tenant, farmer or lessee."

13. Section 64 of the Code of Civil Procedure which prohibits private plienation of property after attachment reads thus:

"Section 64. Private alienation of property after attachment to be void:-

Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment.."

14. Though at first sight Section 54 of the 1888 Code and Section 56 of the Bombay Land Revenue Code look as identical, on a close scrutiny of the above 2 Sections it can be seen that in Section 54 of the 1888 Code a departure has been made, viz., that on forfeiture of land its disposal whether by sale or transfer to another person or otherwise howsoever De deemed to be freed from all tenures, rights, incumbrances and equities theretofore created by the occupant or holder or any of his predecessors in title or in anywise subsisting as against such occupant or holder except by restoration to the defaulter which means if there is any restoration of the land to the defaulter be deemed to be freed from all tenures, rights, incumbrances and equities thereto created by the occupant or holder or any of his predecessors in title or in anywise subsisting as against such occupant or holder will revive. Whereas Section 56 of the Bombay Land Revenue Code the word 'except' is not there. From this it is clear that Legislature thought all charges, encumbrances, etc. on the property which were subsisting at the time of forfeiture will revive in case such forfeited lands are restored to the original occupant.

15. The Authorities on which reliance was placed by Sri Karanth are those which considered the scope of Section 56 of the Bombay Land Revenue Code or the effect of Section 43 of the Transfer of Property Act and not on Section 54 of the 1888 Code. On comparison, the Authorities relied upon by Sri Karanth have no application to the case on hand so also Section 43 of the Transfer of Property Act. On the other hand, the Authorities on which reliance was placed by Sri Raghavachar in all fours are applicable to the case on hand. Where Section 54 of the 1888 Code was an issue for consideration, this Court found that forfeiture does not extinguish the right and equity between private parties and also held that by restoration the properties have been reverted back to the original position. Apart from this, the evidence available in the case goes to show that subsequent to Court auction Padmanabha Kamath sold the land to the plaintiff who continued in possession till 1961. There is nothing to show that during this period either Syed Basheer Ahmed or the Government was in possession of the lands. Further, there is nothing to show that after the arrears were paid and before the restoration a request was made to the Court by auction purchaser that he is relinquishing his rights over the lands. The possession of the plaintiff was also not an illegal one, as her vendor was put in possession of the lands at the instance of the executing Court. The Judgment debtor did not choose to challenge the same. Thus, the plaintiff's vendor was in lawful possession at the time of the sale deed in favour of the plaintiff (Exhibit P.1). He (Plaintiff's vendor-Padmanabha Kamath) had absolute right to transfer the lands which he transferred to the plaintiff under the sale deed, Exhibit P.1. Hence, restoration of land in favour of the Judgment-debtor Syed Basheer Ahmed - did not make him a fresh grantee. But, on the other hand he was placed in the original position, viz., position in which he was the owner on the date of forfeiture. As an owner he was entitled to be in possession. When he suffered a decree and his properties were brought to sale to satisfy the decree, the Judgment-debtor (Syed Basheer Ahmed) did not choose to challenge it. Hence, the purchase by Padmanabha Kamath a valid one. The purchase of the lands by Padmanabha Kamath in Court auction and the sale by him to the plaintiff were all earlier to the sale transactions that took place between Syed Basheer Ahmed and Bathulla Begum and Nazir Ahmed and the subsequent sale by Bathulla Begum and Nazir Ahmed to the defendant on 1.4.1966. On the date of sale by Syed Basheer Ahmed in favour of Bathulla Begum and Nazir Ahmed whatever rights Syed Basheer Ahmed had on the lands had already been conferred on Padmanabha Kamath by the Court auction sale and such rights in turn were transferred by Padmanabha Kamath in favour of the plaintiff under the sale deed Exhibit P.1. Hence, the sale transactions between Syed Basheer Ahmed and Bathulla Begum and Nazir Ahmed and between Bathulla Begum and Nazir Ahmed and the defendant were inoperative and not binding on the plaintiff. The possession of the defendant, if any, was also illegal and unauthorised.

16. Hence, my finding as to the legal effect of the order of the restoration of the land in favour of Syed Basheer Ahmed is that it revived his ownership and whatever right, title and interest he had over the lands as on the date of forfeiture of the said lands reverted back. By purchasing the said lands in Court auction, Padmanabha Kamath became an absolute owner of the lands. Transfer of the said lands by him to the plaintiff a valid one. Thus the plaintiff acquired right of ownership over the lands. Whereas, the sales by Syed Basheer Ahmed to Bathulla Begum and Nazir Ahmed from whom the defendant purchased the lands in question were neither valid nor binding on the plaintiff, as prior to these sales whatever right, title and interest Syed Basheer Ahmed had over these lands in fact had extinguished and had vested in Padmanabha Kamath and he in turn had conveyed the same to the plaintiff by way of sale.

MOTHER IS ENTITLED TO TEN UNITS IN CEILING LIMIT OF AGRICULTURAL LAND UNDER LAND REFORMS ACT

noreply@blogger.com (Advocate Sridharababu) — Mon, 23 Apr 2012 20:15:00 +0530

Naganagouda Gowdappa Gouda Patil ... vs State Of Karnataka And Others 1998 (6) KarLJ 176 Section 63(2) of the Act provides that the ceiling area of a person who is not a member of the family or who has no family or for a family shall be ten units. This special clause provides that a person who is not a member of the family can hold ten units or who has no family or for a family can hold ten units and family can also hold ten units. Therefore when an individual without a family is there, he is entitled under law to hold ten units. The concept of joint family is quite different from the statutory definition of the "family" provided under the Act. By reading Section 2(12) together with Section 63(2) of the Act, it is manifest that an individual whether male or female without a family is also entitled to hold ten units. The mother in this case is an individual, a person without a family and as per the definition, she is not included in the family of her sons. So she is entitled to hold ten units. It is settled principle of law that the interpretation of statutory legislation must be strictly in accordance with the provisions of the Act. Therefore, we hold that the mother is entitled for ten units.

ANY ONE HAVING TITLE TO BE SHOWN AS KHATEDAR

noreply@blogger.com (Advocate Sridharababu) — Mon, 23 Apr 2012 20:14:00 +0530

T. Siddeshi vs The Deputy Commissioner, AIR 2001 Kant 297, ILR 2001 KAR 488 The normal requirements in the Land Revenue Act as per the provisions of Section 128 any person who possesses title to the land in question has right to be shown as khatedar in the record of rights register and mutation registers. However, by such an entry no inference can be drawn regarding the title to the property. Since the entries in the revenue records are not documents of title and cannot be the sole basis to prove the title by itself. But the said entries may have a corroborative value for proving the title. In that view of the matter, it would be just and appropriate that the name of the title holder namely the 4th respondent who by virtue of the sale in favour of the partnership firm and subsequent thereto by a registered partition between himself and his brother has acquired title to the property, his name is to be entered. However, by entry of such name, it cannot have any bearing on the possessory rights of the parties concerned. Whoever, in possession would continue to be in possession. The question of title and possession if any is in dispute the same is within the domine of the Civil Court to adjudicate.

Mahesh v. Deputy Tahsildar, Nadakaeheri Dambal and Ors. 2003(1) KCCR Sh. N. 3, wherein this Court has held that: Sections 127 to 129 of the Karnataka Land Revenue Act, 1964 - Kamataka Land Revenue Rules, 1960 - The Revenue Courts is prevented from recording statement of the parties and their depositions, the question of establishing the genuineness of the sale deed would not arise. Therefore the Revenue Court has no jurisdiction to go into the genuineness of the sale deed executed by the 5th respondent in favour of the petitioner.

RTC ENTRIES AND POSSESSION OF TENANT

STATE OF KARNATAKA VS UPPEGOWDA 1997(3) SCC 593 In this case, the land holder has merely asserted that the tenant had surrendered the land and entries in revenue records were received in support thereof. It is easy to have the entries made with the assistance of patwari who had exclusive custody of the records. The object of the Tenancy Act is to protect the tenants to remain in possession and enjoy it subject to compliance of the provisions of the Tenancy Act. Contracted tenancy come to an end and statutory tenancy sets in operation and so he would be liable for ejectment only on proved grounds of statutory contravention, the entries of revenue records are self serving. There was no order of a competent authority of eviction of tenant for contravention of the above mentioned grounds. The proviso, though enables a landlord to obtain possession on surrender, it must be proved strictly, as several devices would be used to circumvent the beneficial provision and illiteracy and ignorance of the tenant would be taken advantage of. There is no proof of eviction of the tenant. The stand taken by the land-holder is not supported by legal setting.

REVENUE ENTRIES - RIGHTS TO PROPERTY - CIVIL COURT IS APPROPRIATE FORUM 2006 KAR

noreply@blogger.com (Advocate Sridharababu) — Mon, 23 Apr 2012 20:13:00 +0530

JUSTICE D.V. Shylendra Kumar, of Karnataka High court in the case of Neria Estates Rural Industries ... vs State Of Karnataka And Ors. Reported in 2006 (1) KarLJ 295 The impugned order is one passed by the Tahsildar acting as a Revenue Authority for the purpose of showing the name of the Government in the revenue records. The Tahsildar acts as a functionary under the Karnataka Land Revenue Act, 1964 and any view expressed is only incidental. It is true that the Tahsildar is not the authority to determine the rights of the parties including to record a finding or to express a view as to who is the owner of a particular piece of land or even in respect of the entire extent of land to which the petitioner had sought for conferment of occupancy rights to say that the lands are vested with the State and the Government is the owner. ........... The order under challenge is an order passed by a Revenue Authority for the, purpose of showing the name of a person in the revenue records. It is not an order for determining any rights of any of the parties. .............. If the petitioner is a company and it has leasehold rights in respect of certain lands which according to the petitioner is plantation lands and if the petitioner is keen on getting his rights independently determined by a Competent Court, he has to approach the Civil Court. ................ Examination of the impugned order cannot in any way resolve the basic dispute as to the nature of the land that had vested in the Government. The dispute of this nature is essentially a civil dispute which has to be resolved by a Competent Civil Court and not in Article 226/227 proceedings. ................ The order passed by the Revenue Authority is only for the purpose of showing the entries in the revenue records. It is for this reason, I decline to exercise writ jurisdiction to interfere with the impugned order having regard to the decision of this Court in the case of Payappa Nemanna Huded v. Chamu Appayya Huded 1969(2) Mys. L.J. 198 (DB). .......... Reserving liberty to the petitioner to approach the Civil Court, this writ petition is dismissed........

PROTECT PUBLIC LANDS TOLD LONG BACK IN 1998 ITSELF BY HIGH COURT

noreply@blogger.com (Advocate Sridharababu) — Mon, 23 Apr 2012 20:11:00 +0530

JUSTICE H Narayan of Karnataka High Court in the case of S. Siddappa And Others vs State Of Karnataka And Another Reported in ILR 1998 KAR 2757, 1998 (5) KarLJ 36 has directed in these words "Devarakadu, Urduve, Gunduthope, Tankbed, Phut Kareb Kharab Halla, date reserve, burial grounds can only be found in the revenue records. In fact, one finds it difficult even to locate a Gunduthope or a Tankbed in the villages. The gomal lands and the gunduthope is a gift to the villagers. They have been tampered with successfully from time to time by the special orders of the Deputy Commissioners unmindful of the strength of the cattle, the need of the people and the purpose for which the lands have been reserved. Though, relevant provisions are very much found in the statute book, the authorities empowered to enforce these provisions under the Land Revenue Act and Rules have failed to take special care to preserve these lands for the purpose they have been specifically assigned. The quality of the rural life can only be maintained by providing free pasturage to cattle, preserving Gokatte for providing drinking water to the cattle, protecting and preserving Gunduthope where the villagers find some shade for the people and the livestock. It is true that civilisation has entered the life of the rural people by way of roads, electricity, water, rural health and education. These are absolutely necessary for improving the quality of life of the rural people. But, the very essence of village life consists in preserving the lands reserved under Section 71 of the Karnataka Land Revenue Act, Rule 108-I of the Karnataka Land Revenue Rules, 1966. We hardly find a plot consisting of a few well grown trees in the villages. Those are the realms of the past. It, therefore, becomes an urgent necessity for this Court to remind all those concerned who are empowered to enforce these statutory provisions of Land Revenue Act and Rules made thereunder to act and to give effect to every word and letter of statute. The Deputy Commissioners of the districts who are directly incharge of these lands have to be reminded of their duty to protect and preserve these lands specially reserved by the Government. The newly constituted panchayaths in the Panchayath Raj Act are duty bound to protect and preserve and to raise Gunduthope and to maintain Sarkari gomals. Therefore, the Deputy Commissioners are now directed to give effect to the provisions of the Land Revenue Act and to preserve and reserve all these lands specified in the Act for the very purpose specified therein. The Deputy Commissioners shall direct the respective panchayaths to protect and raise these Gunduthopes situated in the respective villages and to further direct the Tahsildar of the Taluk to preserve the gomals for free pasturage. The Deputy Commissioners shall take action through the Tahsildar to evict persons who have been in unauthorised occupation of these reserved lands forthwith. It is needless for this Court to direct in this particular case not to regularise any land in favour of the alleged encroachers since they are Sarkari gomals which are specifically reserved for free pasturage.

PROVISIONS OF CPC NOT APPLICABLE TO LAND TRIBUNAL

noreply@blogger.com (Advocate Sridharababu) — Mon, 23 Apr 2012 20:10:00 +0530

K. Somashekara Shetty vs Devaki And Ors. ILR 2005 KAR 3534, 2005 (5) KarLJ 248 It is clear from the provisions of Section 2(a) and Section 2(35) of the Karnataka Land Reforms Act that the provisions of the CPC are applicable only to Courts as defined under the Act and are not applicable to the Land Tribunals. Section 48-A of the Act provides for enquiry by the Tribunal. Sub-section (5) of Section 48-A of the Act States that where an objection is filed disputing the validity of the applicant's claim or setting up a rival claim, the Tribunal shall, after enquires, determine, by order, the person entitled to be registered as occupant after holding an enquiry. Therefore the provisions of CPC are not applicable to the Land Tribunal. Therefore, adopting the procedure prescribed in the CPC as amended by Act No. 22/2002 in the matter of examination-in-chief of the witness by way of affidavit is contrary to mandatory procedure prescribed in Rule 17 of Karnataka Land Reforms Rules. The Tribunal is required to record evidence as provided in Rule 17(5) of the Rules. It is not permissible to the Tribunal for accept examination-in-chief by way of affidavit.

It is not permissible to record evidence in English language not understood by all the members of the Tribunal because Rule 17(1) clearly states that the record of the proceedings shall be maintained in a language understood by all its members. Summary enquiry as provided in Section 34 of the Karnataka Land Revenue Act is prescribed for determination of the question in controversy. The procedure prescribed by the Act and the Rules referred to above has to be followed by the Land Tribunal while holding inquiry.

The Land Tribunal being a creature of statute, has to follow the procedure prescribed in the Rules while determining any question by or under the Act. Merely because there is no prohibition to do it in any other manner, the Tribunal cannot adopt a different procedure, which would defeat the aim and object of the legislation.

It is the case of the petitioner that the land in question is a punja land and is not capable of cultivation. There is no finding recorded by the Tribunal on this aspect of the matter. When the landlord contends that the land is not capable of being cultivated, it is incumbent upon the Land Tribunal give a finding on this point, if necessary by holding a spot inspection. Further, the Land Tribunal is not justified in accepting the examination-in-chief of the witnesses by way of affidavits, particularly in English. It has not recorded a finding whether its members understand English language. In my view, the procedure followed by the Tribunal is contrary to law.

QUOTED CITATIONS

This Court in Bheemappa v. Land Tribunal, Jamakhandi, 1977 (2) Kar.LJ 190 has held that the combined effect of Rule 17 of the Land Reforms Rules and Section 34 of the Land Revenue Act is that evidence should be recorded in the hand-writing of the officer conduting an inquiry. This is a clear obligation imposed upon officers or authorities entrusted with the duty of holding a formal inquiry, recording of evidence on cyclo-styled pro-forma is impermissible.

In Dattatraya Pandit v. Land Tribunal, Hukkeri, 1997 (2) Kar. L.J 209, this Court has held that under Rule 17 of the Karnataka Land Reforms Rules, the Tribunal has to follow the procedure laid down by Section 34 of the Karnataka Land Revenue Act for holding enquires. It is further held that the said provisions do not permit the Tribunal to dispose of the cases merely on affidavits. It is as follows; "According to Rule 17 of the Karnataka Land Reforms Rules, the Tribunal has to follow the procedure laid down by Section 34 of the Karnataka Land Revenue Act for holding enquiries. Section 34 read with Sections 35 and 36 of the Karnataka Land Revenue Act requires that the proceedings of the Tribunal should be held in open and it does not permit the Tribunal to dispose of cases merely on affidavits of parties in which case, the opposite party will have no opportunity of contesting the evidence by cross-examination. No following the above procedure is an illegality which vitiates the proceedings."

In Byrappa and Anr. v. State of Karnataka and Ors., 1981 (2) Kar.L.J.1 a Division Bench of this Court has held that having regard to the requirements of Rule 17 of the Rules, the summary of the evidence in an inquiry before the Tribunal should be recorded by its Chairman and this is mandatory. Any breach of the requirement vitiates the proceeding before the Tribunal.

In Seetharamaiah B.N. and Ors. v. Land Tribunal, Virajpet and Ors., 1985 (1) Kar.L.J. 369, a Division Bench of this Court has held that if the Chairman of the Tribunal is not in a position to write down the deposition of the parties and therefore, dictates the summary of the deposition either to a member of the Tribunal or to a member of the staff of the Tribunal who records the same accurately, any order passed on the basis of the evidence so recorded shall not be interfered with by the High Court.

In Sanna Karibasappa v. Mudegowdra Mahadevappa and Ors., 1978 (2) Kar.L.J. 26 this Court has held that maintaining the order sheet and recording the final order in English, a language not understood by all the members of the Tribunal is a clear violation of the mandatory provisions of Rule 17.

ENTRIES IN REVENUE RECORDS SHOULD BE SUPPORTED BY DOCUMENTS

noreply@blogger.com (Advocate Sridharababu) — Mon, 23 Apr 2012 20:09:00 +0530

K. Pasala Reddy @ A.K. Pasalappa ... vs The State Of Karnataka ... on 28 September, 2007 The authorities are duty bound to effect the mutation based on 'Certificate of Grant' within the reasonable period from the date of grant and even otherwise the grantees are also at liberty to approach the authorities for expediting such an action and normally no grantee will keep quiet without getting his name mutated in the revenue records for so long. In spite of giving sufficient opportunity to the petitioner, he has not produced in certified copy of the original documents in respect of the land in question. Therefore, the second respondent has opined that, the claim of petitioner is bereft of reasoning and the entries so made are with an ulterior motive of making a 'wrongful gain' of the suit land belonging to Government. Therefore, having no other alternative, the said authority has directed the Tahsildar, Bangalroe South Taluk to round off all the related entries concerning the suit land made in the revenue records such as IL, RR, RTC and all other allied registers/records as they are all based on created, bogus and concocted entries, It is further significant to note that, when this matter was pending adjudication before this Court since 2005, after nearly expiry of four years also, petitioner has not chosen to produce at least before this Court, any piece of authenticated document or certified copy of the land grant made in favour of the petitioner except placing reliance on the stand taken before the second respondent - Special Deputy Commissioner, When the entries are not supported with any land grant order or any authenticated document as such produced by petitioner, the second respondent has rightly passed the impugned order, after conducting thorough enquiry and discussing elaborately, by recording valid and cogent reasons Hence, in view of the well considered order passed by the second respondent, after critical evaluation of the oral and documentary evidence and other relevant material available on file, interference by this Court, in the impugned order is uncalled for.

DUTY TO ACT FAIRLY

Thomas D' Castelino vs Special Deputy Commissioner ILR 1988 KAR 2936 The law is well settled that every administrative act in the discharge of statutory functions, is treated as judicial if it adversely affects the rights of a citizen or entails a penalty or causes a deprivation. Hence there is a duty to act judicially when property right is at stake, and this duty is a postulate of a system of fair administrative procedure.

LAND CONVERSION - WHEN CONVERSION OF LAND IS NOT REQUIRED - TENANCY AND CONVERSION

noreply@blogger.com (Advocate Sridharababu) — Mon, 23 Apr 2012 20:07:00 +0530

The State Government Employees' ... vs The Hubli-Dharwad Urban ILR 1999 KAR 1797, 1999 (3) KarLJ 286 Therefore, once the land is declared as a vacant land, it ceased to be an agricultural land. Once the land is ceased to be agricultural land by application of process of the Urban Land Ceiling Act, the land is no more agriculture. Once the land is not an agricultural land, the question of getting the land converted from agriculture to non-agriculture as provided under Section 95 of Karnataka Land Revenue Act, does not arise. A similar question arose in Civil Appeal No. 6079 of 1997 before the Supreme Court and the Supreme Court held that once the land is treated as a vacant land and exemption is granted, there is no requirement of obtaining permission under Section 95 of Karnataka Land Revenue Act.

1969 (2) Mys.L.J. 184 - Smt. Puttamma and Ors. v. The Mysore Revenue Appellate Tribunal and Anr. wherein it was held as under: To contend that the conversion of the land could be done only if the landlord was in possession of the same; the land in possession of a tenant could be converted from agriculture to non-agricultural purpose by the landlord if the tenant did not opposes such application. Their lordships held in under: Section 95(2) does not authorise the Deputy Commissioner to accord permission for conversion without reference to the inability on the part of the applicant for conversion, to make the conversion he proposes to make, by reason of his not being in possession of the land. If, a tenant or a sub-tenant is in possession and the landlord cannot secure possession except after the eviction of the tenant or the sub-tenant, the proper stage at which an application for conversion could be made is normally the stage when the landlord secures possession from the tenant or the sub-tenant as the case may be.

1978 (1) KLJ 208 - Narasimha Setty K.G. and Ors. v. State of Karnataka and Ors. wherein it is observed as under: Under Section 44 of the Act lands which fall within the definition in Section 2(18) alone stand transferred to and vest in the Government, Lands which ceased to be agricultural lands by order of alienation passed by the Assistant Commissioner are not agricultural lands within Section 2(18) and the Land Tribunal has so jurisdiction to entertain an application under Section 48A and grant occupancy rights in respect of such lands. Failure on the part of the Tribunal to raise the legal presumption under Section 133 Land Revenue Act from the entry in the record of rights vitiates its order.

1983 (2) KLJ 148 - Gopalappa v. Gurushankariah and Ors. was relied upon wherein it was observed as under in paragraphs 9 & 11: As the law stands in the State, the holder of an agricultural land, if he intends using the same for any non-agricultural purpose, should get that land converted for a non-agricultural purpose under Section 95 of the Karnataka Land Revenue Act, 1964 (Land Revenue Act). The land in question has been converted long prior to March 1, 1974 as a non-agricultural land. The learned Judge has found, from the material available, that a few houses had also been built on the land after the land was converted. In this connection the observation made by him at paragraph 5 of the order is as follows: In the instant case Exs.B and F are the endorsements given by the Tahsildar about the grant of alienation. According to the endorsement Ex. F the petitioner had paid the conversion fine before 21-11-72. He got the khatha changed into his name. He applied and got licence for construction of houses and that in fact he had constructed four houses. The material on record clearly establish that the land in question was a converted land. ..... The two enactments, namely, the Land Reforms Act and the Land Revenue Act are distinct and different. Permission to convert an agricultural land for non-agricultural purpose has to be obtained from the prescribed authority under the Land Revenue Act. A person aggrieved by grant of such permission has to challenge the same before the appropriate authorities prescribed thereunder. He cannot bypass that remedy and get that order invalidated before the Land Tribunal constituted under the Land Reforms Act. The Land Tribunal has no power to go behind the statutory order according permission to convert the land for non-agricultural purpose under the Land Revenue Act. Therefore, the finding of the learned Judge that the Tribunal had no jurisdiction to deal with the claim of the appellant and the provisions of the Act were not attracted to the land in question is correct and calls for no interference. Therefore, the appeal is rejected.

In 2003 (5) Kar.L.J. 13 - Madhav Bandopant Kulkarni and Anr. v. The Land Tribunal, Belgaum and Ors. it is observed as under: The document conclusively establishes that as for as this 15 guntas of land is concerned, that by order dated 31-10-1963, non-agricultural permission was granted; this was a good ten years prior to the amendment of the Land Reforms Act. It is a condition precedent under the Land Reforms Act that the land in question must be agricultural land and then alone that the Tribunal assumes jurisdiction to grant occupancy right.... Since the learned Single Judge was in error in having directed the remand, the order passed by the learned Single Judge is modified. The earlier part of the order setting aside the Tribunal's order granting occupancy rights is upheld. It necessarily follows by implication that the Form 7 stands rejected. (paras 3 and 7) ............. The revenue authorities are the deciding authorities in matters of granting non-agricultural permission and if the authorities were satisfied and they did accord conversion from agricultural to non-agricultural, then, on and from the date of the order, the lands change complexion. The existence of a few mango trees would not be sufficient to change the nature and character of the land." (para 6)

C. Hanumanthappa S/O. Chinnappa vs State Of Karnataka 2007 (4) KarLJ 394 when once the order of alienation passed by the competent authority under Land Revenue Act comes into existence, the land ceases to be agricultural one for the purpose of Section 2(18) of the Land Reforms Act. In such an event, the land Tribunal has no jurisdiction to entertain the application under Section 48-A to grant occupancy rights in respect of such land. No doubt the entries in the record of rights raises legal presumption under Section 133 of the Land Revenue Act but this is a rebuttal presumption and as already stated the tenant was successful in establishing that as on 1.3.1974 or immediately prior to the said date, he was cultivating the said lands as a tenant.

C. Hanumanthappa S/O. Chinnappa vs State Of Karnataka 2007 (4) KarLJ 394 The criteria for granting occupancy rights is occupation of the land by the tenant as on 1.3.1974. In the present case apparently even according to the so called tenant he came into possession of this land only from 1970 onwards. In the year 1968 itself Mr. Marulaiah the auction purchaser cum-owner of the land in question got 7 acres of land converted to non-agricultural purpose. ......... Apparently, the application for occupancy rights came to be filed somewhere in 1979 (extended period) much after coming into force the amended Land Reforms Act of 1974. The amendment to the definition of agriculture at Section 2-A (1) includes dairy farming and poultry farming as well. By virtue of Sub-section (1) of Section 91, though proceedings commenced under principal Act, if they were pending as on the date of coining into force of the amended Act, the provisions of principal Act as amended by 1974 Act shall be applicable to such proceedings. ............. Apparently, the land was converted much prior to the amendment of the Land Reforms Act in 1974. The criteria in the present case would be whether the land in question was an agricultural land or not as on the date of application for grant of occupancy rights. A plain reading of definition of agriculture under amended Act of 1974, both dairy farming and poultry farming are classified as agriculture. When the order of conversion is perused in detail, it is noticed the order of conversion obtained by erstwhile owner Marulaiah was also for the purpose of agriculture industries apart from dairy farming and poultry farming. Definitely, agriculture industries does not fall within the ambit of definition of agriculture under Karnataka Land Reforms Act of 1974. The order of conversion does not indicate bifurcation of 7 acres of land for the said three uses, i.e. agriculture industry, poultry farming and dairy farming. This would only mean there was no specification or direction, what extent of land should be made use of by the owner for each of the above said three purposes. In other words, the erstwhile owner Marulaiah had the right or option to make use of the 7 acres of land for any one of the above purposes. He could have used the entire 7 acres of land either for agriculture industries or poultry farming or dairy farming or for all the three. Therefore, 7 acres of land out of 10 acres had lost its character of agriculture. In that view of the matter, the Tribunal could consider grant of occupancy rights only to an extent of 3 acres.

LAND GRANT BY DEPUTY COMMISSIONER CANNOT BE CANCELLED BY TAHSILDAR IN THE NAME OF RECTIFYING MUTATION/RTC ENTRY

noreply@blogger.com (Advocate Sridharababu) — Mon, 23 Apr 2012 20:07:00 +0530

M.N. Venkateshaiah vs The State Of Karnataka ILR 2005 KAR 5084, 2005 (6) KarLJ 452 , In that view of the matter, we are of the considered opinion that the say of the revenue authorities that the documents produced by the appellant to show that the schedule land was granted in favour of his grandmother and father are bogus because there are no entries in the original dharkast register for the corresponding period, is not correct. The revenue authorities have failed to appreciate the fact that such lapse might have occurred on account of the mistake or direliction of duty on the part of the concerned officer who was entrusted with the duty of making entries in the Dharkast registers. Be that as it may, if the Deputy Commissioner were to initiate proceedings for cancellation of grant in favour of the grandmother and father of the appellant or calling upon the appellant to trace his title to the schedule land, the appellant would have reasonable opportunity to adduce evidence to satisfy the Deputy Commissioner about the existence of the grants. That power which is exclusively available to the Deputy Commissioner, in terms of law, could not have been usurped by the Tahsildar in the purported exercise of his power under Section 133 of the Act. The Tahsildar, undeniably, has no power to pronounce upon the validity of the grants made in favour of the grandmother and father of the appellant in 1940s or on the existence of such grants or bogus nature of the documents produced by the appellant to support his case that in 1940s the schedule land was granted in favour of his grandmother or father. The revenue authroities, in our considered opinion, have exceeded their jurisdiction in recording a finding that the documents produced by the appellant to establish that the schedule land was granted in favour of his grandmother and father are bogus, that too, in a proceeding initiated by the Tahsildar under Section 133 of the Act.

In such fact-situation, having noticed the fact that the grants made in favour of the original grantees were not cancelled by any competent authority, though such a power lies with them under Rule 9(1 )(i) and (v) of the Rules and placing reliance on the Judgment of another Division Bench of this Court in the case of Siddaiah v. Hutchamma, 1982 (2) KLJ SN 28 it was held by this Court thus: "If the contention of the respondent revenue authorities that alienation in favour of the appellants were made in violation of the non-alienation clause of grant is correct, when they ought to have resorted to the above Rule 9 of the Rules for cancellation of the grant itself and only thereafter they could have initiated proceedings under Section 136(3) of the Act for correction of the revenue entries. But, without cancelling the grant, they could not have adopted indirect way of cancelling the grant by changing the mutation entry. This is ex facie impermissible in law".

H.M. Hanumantharaju and Ors. v. State of Karnataka and Ors. 2000(8) Kar. LJ. 58 (DB) : ILR 2001 Kar. : 3445 (DB), Karnataka Land Revenue Act, 1964 (Karnataka Act No. 12 of 1964), Section 128 - Karnataka Land Grant Rules, 1969, Rule 9(1)(i) and (v) - Grantees sold the lands in contravention of the clause prohibiting alienation - Deputy Commissioner ordered to strike off the names of the purchasers from the Revenue Records - Order of the Deputy Commissioner set aside - Proper procedure is to take action for cancelling the grant.

CIVIL COURT CANNOT RE-OPEN THE INAM LAND DISPUTE

noreply@blogger.com (Advocate Sridharababu) — Mon, 23 Apr 2012 20:05:00 +0530

Stumpp Scheule And Somappa (P) ... vs Chandrappa ILR 1985 KAR 3872 After the inams were abolished and the lands vested in the State Government, the only right preserved to the parties is to apply for registration of occupancy rights either as 'Kadim' tenant, permanent tenant or other tenants recognised under the law. When such applications are made, the Special Deputy Commissioner,who is the statutory authority constituted under the Inams Abolition Act, is required to make an enquiry and grant relief. His order is appealable under Section 28 to the Karnataka Revenue Appellate Tribunal and the decision of the Tribunal becomes final. Section 31(3) states that no order passed by the Deputy Commissioner or Tribunal shall be liable to be cancelled or modified except by the High Court under Section 31. The jurisdiction of the High Court under Section 31 is, however, limited and confined only to orders determining compensation except those referred to in Section 28. ............. It is thus seen that the Inams Abolition Act attaches finality to the orders granting registration of occupancy rights. What does it mean ? Is it not an implied exclusion of the jurisdiction of Civil Courts ? Is not the Inams Abolition Act a complete Code by itself ? Does it not provide machinery for adjudicating the rights of parties with appellate forum to correct the errors of the adjudicating authority ? If that is so, could Civil Courts still exercise general jurisdiction over the same dispute. Had the Legislature intended to provide dual remedies to parties or intended to establish two authorities to determine the same question ? We think not. The grant of occupancy right as 'Kadim' tenant, permanent tenant or any other tenant is within the exclusive jurisdiction of the special authority constituted under the Inams Abolition Act which is a special enactment. Its order is appealable to the prescribed authority and it then becomes final. It is, therefore, legitimate to infer that by reason of the provisions of Section 28 read with Section 31(3) of the Inams Abolition Act, the adjudication as to registration of occupancy right in respect of the land which immediately before the date of vesting was properly included in the holding of the applicant becomes final and conclusive. The Civil Court has no jurisdiction to reopen that matter. ............... That, however, does not mean that the plaintiff's suit for declaration of title and consequential rectification of entries in the record of rights is not maintainable. ............. So far as it is relevant, Section 135 of the Karnataka Land Revenue Act provides : "Provided that if any person is aggrieved as to any right of which he is in possession, by an entry made in the record of register maintained under this Chapter, he may institute a suit against any person denying or interested to deny his title to such right, for a declaration of his right under Chapter VI of the Specific Relief Act, 1877; and the entry in the record or register shall be amended in accordance with any such declaration."

Rangappa -v.- Chinnappaiah 1965(1) KLJ 145 while referring to the earlier decision in Kempamma -v.- Kempanna 1964(2) KLJ 444 has taken a similar view. There it was observed : "So, it becomes clear that the very provision for an adjudication by the Deputy Commissioner under Section 10 and for an appeal from his adjudication under sub-section (1) of Section 28, are by themselves more than sufficient to support the view that that adjudication should be made only in manner provided by the Act and only by those tribunals entrusted with the power to make that adjudication and by no other. If, in addition sub-section (I) of Section 28 adds that the decision of the prescribed authority in appeal shall be final, the inference deducible from the fact that there is a complete machinery provided by the Act for the adjudication of a claim that the Civil Courts shall not exercise jurisdiction for such adjudication stands reinforced."

RELEVANCY OF STATEMENT MADE DURING MUTATION PROCEEDINGS 2003 SC

noreply@blogger.com (Advocate Sridharababu) — Fri, 13 Apr 2012 18:55:00 +0530

FULL JUDGMENT

JUSTICE Doraiswamy Raju & JUSTICE Shivaraj V. Patil of The Supreme Court of India in case of Mahila Bajrangi (dead) through L.Rs. & Ors VS Badribai w/o Jagannath & Anr. 2003 (2) SCC 464
Mutation proceedings before revenue authorities are not judicial proceedings in any Court of law and does not decide questions of title to immovable property. Revenue authority ordering mutation of revenue records cannot be Protanto held to be a civil court of concurrent and competent jurisdiction to adjudicate questions of title to immovable property. It is always the decision on an issue that has been directly and substantially in issue in the former suit between the same parties which has been heard and finally decided that is considered to operate as resjudicata and not merely any finding on every incident or collateral question to arrive at such a decision that would constitute resjudicata.
Sections 32 and 33 of Evidence Act are considered to be exceptions to the general principle that the best evidence should be directly let in, during the course of trial to render it admissible in evidence. The statement of facts in the statements made before revenue authorities, would not be sufficient per se to prove the claims made in evidence as an admission. The statement as to any fact in issue or relevant fact to be admissible as an admission must be such as are relevant and may be proved against the person, who makes them or his representative in interest and not on behalf of the person, who makes them, unless when it is of such a nature that if the persons making it were dead, it would be relevant as between third person under Section 32.
Single Judge has committed a grave error in taking the statements made during mutation proceedings to be conclusive evidence and sufficient in law by themselves to establish the factum of marriage of mother of plaintiff with 'G' as well as the parentage of the plaintiff. It cannot be said that mutation proceedings before the Tehsildar under CPC was a judicial proceeding or that it was shown that the statements have been made before a person authorized by law to take evidence. The statements during the mutation proceedings were all after the disputes arose between parties and being self-serving claims and assertions in support of the very claims of the person making it which are seriously disputed, in the absence of any independent corroboration cannot be taken to be conclusive evidence sufficient in law to substantiate those facts sought to and necessitated, to be proved by the plaintiff to claim the relief. By the same standards, which the appellants seek to apply to the appreciation of their case, if the materials produced on behalf of the first defendant are also adjudged, the entries in the School Admission Register and School Leaving Certificate made long before even any dispute between parties arose, pertaining to defendant describing late 'G' as the father, cannot be brushed aside.
Evidence on record that plaintiffs mother was earlier married to another person and that even when she joined 'G', the plaintiff was already a child, would militate against the normal presumption that would be available to be drawn on account of long cohabitation, as also the parentage of the original plaintiff.

It cannot be said that in the light of the finding by the Division Bench that defendant has not proved his adoption, the relief of possession at least should have been granted in favour of the plaintiff. The Division Bench, when it reversed the findings of the Single Judge and directed the dismissal of the suit, was not obliged in law, to grant any relief of possession alone when it was not proved by the plaintiff otherwise, dehors title that she had been in actual possession of the property and had wrongfully and forcibly been dispossessed by defendant. Consequently, no exception could be taken to the dismissal of the suit in its entirety.

WHETHER A COMPANY CAN BECOME TRUSTEE OF THE TRUST - YES SAYS MADRAS HIGH COURT JUSTICE N.V. BALASUBRAMANIAN

noreply@blogger.com (Advocate Sridharababu) — Tue, 28 Feb 2012 20:45:00 +0530

THIS IS THE OBSERVATIONS OF MADRAS HIGH COURT BY JUSTICE N.V. Balasubramanian, in the case of B. Ramachandra Adityan vs Educational Trustee Co. (P.) Ltd. citation - 2003 113 Comp Cas 334 Mad,

Section 25 deals with charitable companies and licence from the Central Government is necessary so that company can be formed for promoting commerce, art, science, religion, charity or any other useful objects with no profit motive in mind.

Section 11 of the Companies Act in all cases, the company must carry on some trading or commercial activity and the object of the company must be to earn income. In the case of a company which is formed to act as trustee, such company must also carry on the activity for profit and unless there is an activity for profit, it would be of no benefit either to the company or to the shareholders who have invested money to the company.

Section 32 of the Trust Act which prohibits the receipt of any personal benefit to the trustees from the trust. Section 32 of the Indian Trusts Act, 1882 also provides that the trustee is entitled to get reimbursement out of the trust property all expenses properly incurred in relation to the execution of the trust property and for preservation of the trust property.

It is well settled that the company can be a trustee. The following observation made in Halsbury's Law of England, Volume VI, paragraph-20 (III Edn. Volume-4), the learned author, at page 394 clearly shows that the company can be a trustee. "As charitable corporations exist solely for the accomplishment of charitable purposes, they are necessarily trustees of their corporate properly, whether the beneficiaries are members of the corporation, as in the case of hospitals and colleges, or not. Accordingly, like other trustees, charitable or otherwise, they are subject to the jurisdiction of the Court. Though called directors and empowered to make and amend bye-laws for the corporation, apart from any provision in the constitution of the corporation, they have no right to remuneration and cannot amend the byelaws to permit remuneration to be paid to themselves."

In Palmer's Company Precedents, while dealing with the topic, 'Trust Company', learned author has observed that a company can be a trustee in the following words : "To undertake the office of and act as trustee, executor, administrator, manager, agent or attorney of or for any person or persons, company, corporation, government, state, colony, province, dominion sovereign, or authority, supreme, municipal, local or otherwise, and generally to undertake, perform and discharge any trusts, or trust agency business, and any office of confidence."

In Section 6 of the Banking Regulation Act, 1949, a banking company can be a trustee and it can act for the administration of estates as an executor, trustee or otherwise and Section 6 provides that the banking company can act as a trustee in several manners as indicated in Section 6(1)(j).

In the Indian Trusts Act by N. Suryanarayana Iyer, learned author has observed as under:--"Formerly the notion was that the relationship of a trustee being one of confidence involving a personal element, a corporation could not be a trustee as there could not be a question of confidence being reposed in a corporation and therefore that it could not be a trustee. This notion, however, has long ago been given up. Corporate bodies have been held to be amenable to the jurisdiction in Chancery and compellablc to carry out the intentions of the settlor of property which has been vested in them.... Under the Indian law also a corporation, whether aggregate or sole, can be a trustee and there is ample jurisdiction in the court to enforce the performance of its duty by such trustee."

Section 12 of the Companies Act deals with the mode of formation of incorporated companies and under Section 12, any seven or more persons or where the company to be formed will be a private company, any two or more persons, associated for any lawful purpose, by subscribing their names to a memorandum, may form an incorporated company with or without limited liability. The company so formed may be limited by shares or limited by guarantee. Section 13 deals with the requirements with respect to memorandum and the company has to set out its main objects to be pursued by the company on its incorporation and the objects incidental or ancillary to the attainment of the main objects. Section 11(2) of the Companies Act provides that no company or association or partnership consisting of more than twenty persons shall be formed for the purpose of carrying on any business that has for its object the acquisition of gain by the company, etc. unless it is registered as a company under the Companies Act or is formed in pursuance of some other Indian Law. Section 11(1) deals with the case of a banking company, while Section 11(2) deals with cases other than banking companies. From these two provisions, it cannot be said that a company must always be formed to carry on a business venture with a view to make profit. If such an interpretation is given, then the trustee companies will have no place of existence at all in the Companies Act.

The concept of trust is a peculiar concept. Therefore, the word, 'business' found in Section 11(2) of the Companies Act is to be construed to mean any useful activity and it is not necessary to confine it to commercial activity for profit. The charitable companies are not formed or not intended for commercial activities.

THE TECHNICALITY OF LAW CANNOT BE OVERLOOKED IN CASE OF WILL ATTESTATION AND ITS PROOF. 2001 SC

noreply@blogger.com (Advocate Sridharababu) — Fri, 24 Feb 2012 13:18:00 +0530

FULL JUDGMENT

N. KAMALAM (DEAD) AND ANOTHER vs AYYASAMY AND ANOTHER, ILR 2002 KAR 4273. The relevant paragraphs-28 and 32 read as under: "Para 28 : It is on this count that the learned Advocate in support of the appeal very strongly contended that there is existing a responsibility on to the law Courts to deal with the matter having due regard to the concept of justice. Technicalities. It has been contended there may be many - but would that sub-serve the ends of justice; one needs to ponder over the same. Justice oriented approach cannot be decried in the present day society as opposed to strict rigours of law; Law Courts existence is dependant upon the present day social approach and thus cannot and ought not to be administered on sheer technicalities. The discussion of the law as above, definitely make us ponder over the legal aspects once more since the tenor of the observations contained therein obviously looked into being in favour of the technicality rather a justice oriented approach and in that perspective let us now have review of the whole situation on the factual context. Masaney Gowder executed a Will said to have been written by one Arunachalam and attested by Subbaiah and Govindaraju. The two attesting witnesses were not called to give evidence against them - why it has not been done? The explanation has been that both the attesting witnesses were inimical towards appellants and as such there was a refusal on their part to come to Court and prove the document - how far however the same is an acceptable evidence; We Will have to examine; but before so doing the factum of non-availability of the attesting witnesses cannot be discarded and if so, what would be its consequences. The application for additional evidence as dealt with herein before, was made after a lapse of about 10 years after the appeal was filed and the learned judges though it fit to reject such a prayer and we also do lend out concurrence thereof without taking any exception - but then what is the effect? we have thus existing on record a document said to be a Will of one Masaney gowder whose signatures stand accepted and two attesting witnesses though named in the body of the document were not made available but the writer of the will or the scribe came forward and deposed as to the state of affairs on the date of signing of the will, it would be convenient thus to note the evidence of the scribe and see for ourselves as to whether even a justice oriented approach would be able to save the will in the absence of the attesting witnesses. Arunachalam stated in his examination in Chief as below: "I have written Ex.A.1 `THE WILL', I have written the WILL EX. A1 for the Sake of Masane Gowder. The said Masane Gowder has been introduced to me by the Advocate G.M. Nathan who was formerly have. During the execution of the WILL, Advocate G.M. Nathan was residing at Thomas Street.At that time Masane Gowder was residing at the same place after one house of Advocate's home. Before the preparation of the `WILL' I had been to his house and discussed with him about the details and he has stated the details. At that time Masane Gowder Mental and Physical status were found good. After writing the Ex.A.1 the Will, I have read out the same to him, and he had stated that all were correct. Then in my presence Masane Gowder had affixed his thumb impression in each page. The affixing of thumb impression by Masane Gowder in Ex.A1 WILL had been witnessed by attestor Subbaiah,Govindaraju and myself.The signing of signature for witness by us, was eye witnessed by Masane Gowder. After the Ex.A1 Will had been prepared and signed I handed over the `WILL' to Masane Gowder". Para - 32 : While it is true that Arunachalam, in the facts of the matter under consideration did write the Will and has also signed it but it is of utmost requirement that the document ought to be signed by the witnesses in order to have the statutory requirement fulfilled. Arunachalam has signed the document as a scribe not as a witness, if there were no signatures available as witness, probably we would have to specifically deal with such a situation and to consider that aspect of the matter but presently in the facts situation of the matter under consideration, we have the advantage of two attesting witnesses, none of whom have been examined and the factum of their non-availability also does not satisfactorily been proved. The requirement of the statute when Arunachalam himself has specifically identified himself as Writer and not as a witness though in his evidence, he tried to improve the situation, but this improvement however, cannot said to be accepted. The Will thus fails to have its full impact and its effect stands out to be non est."

RAJAMMAL vs CHINNATHAL, AIR 1976 MADRAS, AIR 1976 MADRAS 4. In this case it was held that once the execution of the Will is denied by the alleged executant the document cannot be admitted in evidence, unless one attesting witness atleast has been called for proving the execution of the document, if alive, and subject to the process of the Court. In that case there was no evidence to show that the attesting witnesses were not alive and none of them were examined. Therefore, the requirement of Section 68 of the Indian Evidence Act has not been complied with and as such the Will could not be used in evidence.

LAND CEILING IN AGRICULTURAL LAND OF KARNATAKA - METHOD OF CALCULATION

noreply@blogger.com (Advocate Sridharababu) — Wed, 11 Jan 2012 19:56:00 +0530

FULL JUDGEMENT IN PDF FORMAT

KARNATAKA HIGH COURT JUDGMENTS Abdul Khadar vs Land Tribunal on 31 October, 1985 Equivalent citations: ILR 1985 KAR 3923 Author: M Rao Bench: M Rao ORDER Murlidher Rao, J. 1. The petitioner is a declarant, having filed his declaration under Section 66 of the Karnataka Land Reforms Act; he hold 140 acres and 37 guntas of lands in villages Dandothi and Mallkhad, Chittapur Taluk, Gulbarga District. His family, as per his declaration, consists of himself, his wife, two major sons and four unmarried daughters. The lands are 'D' class lands and the petitioner states that "the lands declared by him are the joint family lands, which arc shared by himself, his wife, two major sons and four unmarried daughters". The Land Tribunal has held that the, petitioner is entitled to hold only 108 acres and hence there is a surplus of 32 acres and 37 guntas; the Tribunal has considered one son as major. The ceiling limit for an individual or family being 10 units i.e. , 54 acres, it is calculated for two families. Declarant, his wife, one minor son and 4 unmarried daughters, constituting one family and a major son as second family. Thus, calculating, it is held that the declarant is entitled to retain 108 acres i.e., 54 x 2. 2. It is contended by Sri Apparao that Basbeeruddin, the second son of the declarant was also a major, he having been born on 1-6-1952. It is contended that since the impugned order is passed on 21-5-1984, on the date of determination, his age would be 32 years; reliance, for this proposition, is placed on Nagappa Channappa -v.- State of Karnataka.1979(1) KLJ 420 According to the learned Counsel, this major son also would be entitled to 54 acres, as such, there would be no surplus at all. This so even on 1-3-1974; by which date, Basheeruddin had completed 19 years. Secondly, it was contended that even if, he is treated as minor, the declarant's family would consist of 7 members i.e., himself, his wife, 4 unmarried daughters and one minor son. In which event, he would be entitled to four additional Units, as per the proviso to sub-Section(2) of Section 63, which means he will be entitled to 20 acres and 16 guntas, in addition to 54 acres. 3. Petitioner's Counsel has produced a Certificate issued by Head Master, Government Higher Primary School, D and it does not bear any date. It is captioned as "JANMA DAKHILE CERTIFICATE" (Editor: The text of the vernacular matter has not been reproduced. Please write to in several particulars. To connect it with Declarant's son's age, some mere evidence would be necessary. The certificate has to be proved, with reference to "original registers. Admittedly, it was not produced before the Tribunal. So, it had no opportunity to consider it; without further proof, it is unsafe to act on it. 4. It is contended by Sri Chandangoudar, HCGA, that for purposes of ceiling, the relevant date is 1-3-1974. He states that if on 1-3-1974, the declarant had 'Surplus', that 'surplus' land vests in the State. It is not capable of being tinkered with or varied, depending on the rights of heirs, future events like Succession, etc. He placed reliance on Bhikoba Shankar -v.- Mohan Lal Punchand . Mr. E. S. Venkataramiah, J. speaking for the Court stated this: "13. A close reading of the aforesaid provisions of the Act shows that the determination of the extent of surplus land of a holder has to be made as on the appointed day. It is obvious from the foregoing requirements prescribed under Section 12 of the Act that the crucial date with reference to which the extent of the surplus land held by a person is to be determined is the appointed day in the case of persons holding land in excess of the ceiling area at any time after the fourth day of August, 1959 but before the appointed day and in the case of those acquiring, holding or coming into possession of such excess land on or after the appointed day, the day on which they acquire possession of any land in excess of ceiling area. This liability to surrender surplus land would not in any way come to an end by reason of the death of such holder before the actual extent of surplus land is determined and notified under Section 21 of the Act. It is no doubt true that Section 21 of the Act states that the title of the holder in the surplus land would become vested in the State Government only on such land being taken possession of after a declaration regarding the surplus land is published in the Official Gazette. But the liability to surrender the surplus land, however, relates back to the appointed day in the case of those who fall under Section 12(l)(a) of the Act, to the date of taking possession of any land in excess of the ceiling area in the case of those who come under Section 12(l)(b) of the Act and to the date of conversion of land into a different class in the case of those who come under Section 12(2) of the Act. Any other construction would make the Act unworkable and determination of the extent of surplus land of a bolder ambulatory and indefinite." 5. The Court relied on the observations of the Supreme Court in Raghunath I.axman Wani -v.- State of Maharashtra. In the said decision, Justice J.M. Shelat, as he then was, observed : "17. xxx xxx xxx The policy of the Act appears to be that on and after the appointed day no person in the State should be permitted to hold any land in excess of the ceiling area as determined under the Act and that ceiling area would be that which is determined as on the appointed day. Therefore, if there is a family consisting of persons exceeding five in number on January 26, 1962, the ceiling area for that family would be the basis ceiling area plus l/6th thereof per member in excess of the number five. The ceiling area so fixed would not be liable to fluctuations with the sub-sequent increase or decrease in the number of its members, for, there is, apart from the explicit language of section 3 and 4 no provision in the Act providing for the redetermination of the ceiling area of a family on variations in the number of its members. The argument that every addition or reduction in the numbers of a family requires redetermination of the ceiling area of such a family would mean and almost perpetual fixation and re-fixation in the ceiling area by the Revenue authorities, a state of affairs hardly to have been contemplated by the legislature. The argument would also mean that where a surplus area is already determined and allotted to the landless persons such area would have to be taken back and given to a family, the number of whose members subsequently has augmented by fresh births." 6. In State of Maharashtra -v.- Annapurnabai, it is held that : "4. The question arising in this appeal is no longer res integra. It is concluded in favour of the State by the decision of this Court in Bhikoba Shanker v.. Mohan Lal . It was held by this Court in that case that the liability to surrender surplus land does not in any way come to an end by reason of the death of the , holder before the actual extent of surplus land is determined and notified under Section 21 of the Act. Section 21 of the Act no doubt states that the title of the holder of the surplus land would become vested in the State Government only on such land being taken possession of after a declaration regarding the surplus land is published in Official Gazette. But the liability to surrender the surplus land relates back to the appointed day in case of those who held land in excess of the ceiling on the appointed day. Therefore, even if the holder dies before declaration of any part of his land as surplus land, the surplus land is liable to be determined with reference to his holding on the appointed day and it is not open to the heirs and legal representatives of the holder to contend that they have inherited the land belonging to the holder and that the surplus land should be determined on the footing that each of them is in independent tenure holder in his or her own right." 7. The underlying policy of Agrarian reforms, being uniform in all States, the irresistible conclusion is that the 'surplus' holding has to be determined only with reference to the appointed day, i.e., 1-3-1974 and not on the date of determination by the Land Tribunal, which may take several years, during which period several changes may take place by addition or subtraction, in the members of the family. In my view, the decision of this Court in Nagappa Channappa's case after the authoritative pronouncement of Supreme Court, referred to above can no longer be good law. Indeed, Mr Kudoor, J. has held in Buddavva-v.-Land Tribunal, Bagalkot W.P. No. 11637/76 DD. 20-2-1979 that the relevant date on which the ceiling limit as provided under Section 66 shall have to be computed is the date of the commencement of the Amend-ment Act (1-3-1974) and not the date prescribed by which the declaration under Section 66 has to be applied. Therefore, the date of determination by the Land Tribunal is irrelevant for determining 'surplus'. 8. In the instant case, if, on 1-3-1974 Basheeruddin was a minor, which position is not admitted by the petitioner's Counsel, the order of the Tribunal needs to be modified, so as to add four additional units to the ceiling limit of declarant. But, as contended by Sri Apparao, assuming that he was a major as on 1-3-74, question is whether he would be entitled to 10 units, i.e., 54 acres, in his own right, treating himself as a "Family". 9. The declarant is a Muslim. Under the Personal Law of Muslims, a son does not get any right to the property during his father's life time. Dr. Tahir Mahmood in his book "The Muslim Law of India", in Chapter dealing with Law of Inheritance states: "3. In Muslim law, so long as a person is alive he or she is the absolute owner of his or her property ; nobody else (including a son) has any right, whatsoever in it. It is only when the owner dies and never before that the legal rights of the heirs accrue. There is, therefore, no question of a would-be heir dealing in any way with his future right to inherit. 4. The Indian legal concepts of 'joint' or 'undivided' family, 'coparcenary', 'Karta', 'survivorship', 'partition', etc., have no place in the law of Islam. A father and his son living together do not constitute a 'joint family' ; the father is the master of his property ; the son (even if a minor) of his, if he has any. The same is the position of brothers or others living together." The latter portion regarding "joint family" though applicable to other properties is not applicable to agricultural lands, as the concept of Joint Family as defined in clause 17 of Section 2 is "a group or Unit the members of which are by custom joint in estate or residence". However, the right of a son, under personal law being what it is, whether he is entitled to be treated as one who is entitled to get ten units, treating himself as a family under the Land Reforms Act. While, a minor son is a member of a family, the major son is not. Under clause (a), the family consists of husband, wife or wives, minor sons and unmarried daughters; clause (b) refers to widow or widower with his or her minor sons and unmarried daughters. Clause (c) refers to divorcee with minor sons and unmarried daughters, who are orphans. The act aims at protecting minor sons and unmarried daughters in all circumstances. It also protects widows or divorcees with their minor sons and unmarried daughters. Married daughters and major sons are excluded. So far as married daughter is concerned, with her marriage, she gets included, in the family of her husband and she gets benefit of clause (a). If she remains unmarried, as a spinster, so long as her parents or any one of them is alive, she is included within clause (a) or clause (b), and if both are dead, being an orphan she constitutes a 'family' under clause (d). Major son, so long as he remains a bachelor, is totally excluded. The Land Reforms Act aims at prescribing a 'ceiling' on agricultural holdings, it is not an act to confer or create rights in the property. This takes me to Section 63 of the Act, which reads: "63. Ceiling on Holding (1) No person who is not a member of a family or who has no family and no family shall, except as otherwise provided in this Act, be entitled to hold, whether as land owner, land lord or tenant or as a mortgagee with possession or otherwise or partly in one capacity and partly in another, land in excess of the ceiling area. (2) The ceiling area for a person who is not a member of a family or who has no family or for a family shall be ten Units ; Provided that in the case of a family consisting of more than five members the ceiling area shall be ten units plus an additional extent of two units for every member in excess of five, so however that the ceiling area shall not exceed twenty units in the aggregate. (3) In the case of a family the ceiling area shall be applied to the aggregate of the lands held by all the members of the family, including the Stridhana land. (4) In calculating the extent of land held by person who is not member of a family but is a member of a joint family and also in calculating the extent of land held by a member of a family who is also a member of a joint family, the share of such member in the lands held by a joint family shall be taken into account and aggregated with the lands, if any held by him separately and for this purpose such share shall be deemed to be the extent of land which would be allotted to such person had there been a partition of the lands held by the joint family. (5) In respect of lands owned or h ld under a private trust - (a) where the trust is revocable by the author of the trust, such lands shall be deemed to be held by such author or his successor in interest ; and (b) in other cases, such lands shall be deemed to be held by the beneficiaries of the trust in proportion to their respective interests in such trust or the income derived therefrom." 10. The word 'person', which had been defined in the original Act by Section 2(24) has been omitted on 1.3.74. The original definition was an inclusive definition, it included Company, family, association and institution. This has been omitted, because the person, who are capable of holding are categorised in Section 63 itself; they are: owner, landlord, tenant, mortgagee with possession or otherwise, partly in one capacity or partly in another. The above being the only capacities, which entitles a person to hold the land, it is obvious, one who does not belong to any one of these categories would not be entitled to hold land for purposes of ceiling. A Muslim son cannot claim ownership rights, during the lifetime of his father. But, Mr. Apparao argued that such an interpretation would be violative of Article 14 of the Constitution and would be discriminatory. Since the Act is included in the Ninth Schedule, this argument has to be rejected. But the question still remains whether 'major sons' of other Communities can be treated as such? The Act does not make any distinction between Hindus and Muslims. Wherever it intended to refer to Hindus specifically, it is so mentioned ; for example : Section 2(17) "Hindu Joint Family". The concepts of, "Family", "Joint Family", "Limited Owner", "Stridhana land" should be understood, as defined in the Act, uninfluenced by personal Law governing the parties. It is applicable to one and all, irrespective of their personal law. That it is so, is made clear by the Supreme Court in Nand Lal -v.- State of Haryana. "In fact, a provision like Section 4(3) which makes for the augmentation of the permissible area for a family when the adult sons do not own or hold lands of their own but are living with the family has one virtue that it ensures such augmentation in the case of every family irrespective of by what personal law it is governed and no discrimination is made between major sons governed by different systems of personal laws. So far as an adult son living separately from the family is concerned, he is rightly regarded as a separate unit who will have to file a separate declaration in respect of his holding under Section 9 of the Act and since he is living separately and would not be contributing his capacity to the family to cultivate the family lauds personally there is no justification for increasing the permissible area of the primary unit of the family". 11. In State of Maharashtra -v.- Vyasenira, it was held that: "The circumstance that the land held by a constituent member of a family unit is separate property or Stridhan property is a matter of no consequence whatsoever for the purpose of determining the ceiling area which the family unit can retain. The respondent, his wife and their minor sons and minor unmarried daughters, if any are all constituent members of the family unit and all the lands held by them have to be pooled together for the purpose of determining the ceiling area which is permissible to the family unit. The nature or character of their interest in the land held by them is irrelevant for computing the ceiling area which the family unit may retain." To the same effect is the decision in B.Bapi Raju -v.-State of Andhra Pradesh. 12. In Ramondrasingh -v.- State of Madhya Pradesh, it was held: "A minor son who is deemed to be entitled to an area of joint family land proportionate to his share under Section 6(ii) of the Act is not entitled to claim a separate ceiling area independently. His share of land has to be clubbed with the land which can be claimed by his father as his ceiling area. Section 6(ii) does not have any effect on the ceiling area to which a family as defined in Section 2(gg) is entitled under Section 7." (Head Note) 13. In Vengdasalam Pillai -v.- Union Territory of Pondicherry, AIR 1965 SC 571 the Court was considering the provisions of Pondicherry Land Reforms (Fixation of Ceiling on Land) Act 1973; the definition of 'Family' is in Pari materia with the definition in K.L.R. Act. The appointed day is 24th January 1971. It was contended that prior to the appointed day, on 17th May 1970, a partition had been effected and the minor sons had become divided from their father, therefore, the lands, so allotted to them, could not be included in the father's declaration: similar was the ground regarding lands purchased by wife, by her Sridhanam amounts. The Court in repelling these contentions, observed : "15. The fallacy underlying arguments advanced on behalf of the appellant is that they proceed on the erroneous assumption that the "family" referred to in the Act must conform to the concept of the joint family as known to Hindu Law. The provisions of the Act are applicable to all holders of land in the Union Territory of Pondicherry irrespective of religion, community etc. The lands may be held by Hindus, Christians, Muslims or by persons belonging to other religious faiths. All of them are equally governed by the pro-visions of the Act. The concept of a joint family is totally foreign to the personal laws of some of these communities. It is, therefore, manifestly wrong to approach the interpretation of the sections of the Act with the preconceived notion that in using the expression "family" the legislature had intended to connote an undivided family as, known to the Hindu Law and that after a partition had taken place in a Hindu Joint family there cannot be a 'family' consisting of the father and his divided minor sons for the purpose of fixation of ceiling under the Act. The fact that the definition of "family" contained in Section 2(10) does not treat the major sons of a person as members of his family is a clear pointer that an undivided Hindu Family was not in the contemplation of the Legislature when it enacted the said definition Section. Similarly, the provision contained in sub-section (3)(a) of section 4 that in calculating the extent of land held by a member of a family or by an individual person, the share,of the member of the family or of the individual person in the land held by an undivided Hindu family shall be taken into account furnishes a conclusive indication that the "family" mentioned in the Act is wholly distinct and different from an 'undivided Hindu family'. The circumstance that a partition had taken place disrupting the joint family consisting of the appellant and his minor sons is. there fore, of no relevance in determining the total extent of the holding of the appellant in accordance with the provisions of Section 2(10) read with Section 4 of the Act. That is because, the Act has created a special statutory unit consisting of the persons satisfying the description contained in clause (10) of section 2 as constituting a "family" for the purpose of fixation of ceiling. The stress is only on the existence of the relationship mentioned in the section and unity of title or jointness of holding in relation to property are not essential elements for attracting applicability of the definition. Under the definition contained in Section 2(10), a person, the wife or husband of such person and his or her minor sons and unmarried daughters together constitute a "family". 16. Section 4(2) expressly provides that for the purpose of fixation of ceiling on the lands held individually by the members of a family or jointly by some or all of the members of such family shall be deemed to be held by the "family". The result is that the separate properties of the members constituting the statutory family are all to be treated as forming part of the holding of the 'family' for the purpose of determination of the ceiling area, Such being the position emerging from the provisions of Section 2(III) and Section 4(1)(2), the properties held by the minor sons of the appellant individually as well as the lands separately owned by Smt. Senbagevalli, wife of the appellant by virtue of the purchase effected by her with her Suridhanam amounts were all liable to be taken into account while computing the total extent of holding of the family of the appellant." The Court further observed in para-18. "18. xx xx xx xx The purpose of Section 4(4) is to peg down the process of determination of ceiling area to the state of things that obtained on the 'appointed day' and it is in that context and for the purpose that the sub-section provides that in calculating the extent of land held by any person, any land which was transferred, by sale, gift or otherwise or partitioned by that person after the appointed day but before the commencement of the Act, shall be taken into account, as if such land had not been transferred or partitioned." In almost identical circumstances, a Single Judge of this Court in Revanna Siddappa Hadri -v.- Assistant Commissioner, Indi came to a contrary conclusion and held that in view of prior partition, the minor son would be entitled to retain his share independently and so also the father. Each one of them was treated as a separate family. With respect, it does not lay down correct Law. 14. In view of the above, the ruling of this Court in Revanna Siddappa Hadri -v.- Asst. Commissioner, Indi 1977(2) KLJ at 187 ceases to be a binding authority. 15. Mr. Apparao, however, relied on the following observation in Syed Shah Naimatuall Hussaini -v.- Land Tribunal, Sedam & Another W.P. No. 18925 of 1984 DD. 4-3-1985: "Further the Land Tribunal was in error in not allotting two separate shares to the two major sons of the petitioner since the Karnataka Land Reforms Act, 1961, does not make any distinction between the Hindu Law and Muslim Personal Law for the purpose of determining the surplus land under section 63 of the aforesaid Act. The word 'family' as defined under the aforesaid Act applies both to Hindu and Muslim families." The above enunciation to the effect that the Act does not make any distinction between Hindu Law and Muslim Law, is in consonance with the above referred decisions of the Supreme Court. But, Mr. Apparao, contended that the judgment further lays down, that "major son is entitled to separate share". In my view, the Court has not decided that issue, it was remanded to Tribunal for fresh disposal of the declaration, in accordance with the provisions of the Act and the Rules. 16. It is contended that under Section 63(4) notional partition is permissible to ascertain the share of a member. This sub-Section, while providing for a method to calculate the extent of holding, is applicable to two classes:- (i) Person who is not a member of Family, but is a member of joint family. (ii) Person who is a member of family, is also, a member of joint family. An unmarried major son would come in the first category; a father and few others would come in the second category. 17. In calculating the extent of land held by an unmarried major son, his share as a member in joint family shall be taken into account and aggregated with the lands held by him separately and for this purpose, his share in the Joint Family has to be ascertained by notional partition; this will be added to his personal properties and the aggregate of both will be his holding, the permissible maximum. Similarly, in the, case of father for calculating total exhaust of his holding his separate property and what he would get as his share, in the joint family will be aggregate. 18. If a minor son is an orphan, his case comes under clause (d) his total extent shall be the aggregate of his personal property plus what he gets as a member of joint family. But, if he is a member of 'Family' coming under clause (a) the family as one entity is entitled to ten Units, whatever may be the share of a minor son. He loses his independent status, for purposes of ceiling and his status gets merged with that of his parents. Notional partition is impermissible. Thus, it will be seen that notional partition is permitted only for the purpose of aggregating the total holding of a person where it becomes necessary to calculate the extent of his holding. This again is applicable in respect of those who file a declaration and those who are liable to file a declaration. Notional partition is impermissible, to carve out a 'share' in favour of major son, from the 'Surplus' land in the declaration of the father. To carve out such a share and permit each non-declarant to retain the 'ceiling' extent would defeat the very object and purpose of legislation. In a proceeding to determine the'ceiling' extent of a person, who has filed declaration; the Tribunal cannot pass a decree for partition. Sub-clause (4) like several other provisions is applicable to all persons, irrespective of community and personal law. Joint family conceived therein is the joint family as defined in the Act, which includes Hindu Joint Family and other cases also. A major son, who is not a declarant himself, cannot request the Tribunal to permit him to retain 54 acres or 10 units; clause (4) does not confer such a right. 19. Though the policy, underlying the various enactments of different states is one and the same, the definitions and ceiling limit varies. For example: In the Haryana Act, the ceiling provisions contain "the Primary Unit of the family" "Permissible area" and "separate unit" and the word, separate unit is defined to mean adult son living with his parents and in case of his death his widow and children. In Karnataka Land Reforms Act, no separate provision is made for major sons or adult sons, who are living with their parents or any one of them. If they are separated and own independent holdings and file declarations, it has to be dealt with under the Act. But, if they are not so separated and have not filed any declaration, whether they are entitled to claim the holding upto the ceiling limit? Should the Tribunal embark on their rights to hold the land, on notional partition, or their rights as Sper Successionis or presumptive rights? 20. The opening words in Section 63 "No person ....be entitled to hold as owner, landlord, tenant....." refers to an individual, who on the date of the commencement of the Act, i.e., 1-3-1974, was holding the land in one or other capacity the owner "To hold" has not been defined; in State of Andhra Pradesh -v.- Mohd. Ashrafuddin, the Supreme Court, with reference to the definition of "holding" in Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, held that it includes an intending purchaser, who is in possession of land, in part-performance of the contract, but, in the K.L.R. Act, similar provision is not found. However, dealing with the expression 'held', the Court observed thus: "8. The word 'held' is not defined in the Act. We have, therefore, to go by the dictionary meaning of the term. According to Oxford Dictionary 'held' means: to possess; to be the owner or holder or tenant of; keep possession off; occupy. Thus, 'held' connotes both ownership as well as possession. And in the context of the definition it is not possible to interpret the term 'held' only in the sense of possession." 21. Analysing the words employed in Section 63, only four categories of persons can 'hold' the land. They are owners, landlords, tenants and mortgagees, with or with-out possession. It does include persons, who are likely to hold, at some uncertain future date. It refers to persons who are holding the land, in one or other capacities on 1-3-1974. Section 64 refers to future acquisition of land. Among the various modes of acquisition provided therein, acquisition by bequest, inheritance and partition is also provided, if such acquisition takes effect after the coming into force of the Amended Act, i.e., 1-3-1974. 22. Section 66, makes is obligatory on "persons who hold" the lands as stated therein on 1-3-1974, to file declaration before 31-12-1974. If a major son, of whatever community holds the lands, as stated in Section 66, he has to file a declaration. The provisions of Sections 67 to 76 are applicable for surrender of surplus land and vesting in the State. Section 65A also envisages a future situation, whereby, the classified land is converted as a result of irrigation source constructed by State Government, Since the statute covers the future acquisition and likely alteration of nature of land, would it be permissible to conceive an individual as a "family" by taking into account of his likelihood or chance of getting, a share, in the lands, either by partition or succession by imagining a share on the theory of notional partition ? Section 66 prescribes the dates for filing declaration and the procedure to be adopted. In several cases, the declaration, as in the instant case, is not filed by the major son; in such a situation, should the Land Tribunal, by fiction, calculate the holding of a 'major son' or any other person, who is not a member of family like declarant's parents or any one of them, widowed or divorced sister etc , who in their own right may be entitled to file declaration, treating themselves as "family" ? 23.In State of Maharashtra -v.- Narayana Rao, the contention was that ; "For purposes of quantifying the interest in the joint family property that devolved on the heirs of a deceased male Hindu required that it should be assumed that a notional partition had taken place in the family immediately prior to the death of the deceased, the female heirs of such deceased Hindu became divided or separated from the family on the death of the deceased. In order to examine the validity of this submission it is necessary to refer to some of the relevant features of a Hindu Undivided family and to consider the effect of the provisions of Section 6 of the Act on such family." The Court observed that : "9. xxx xxx xxx A legal fiction should no doubt ordinarily be carried to its logical end to carry out the purposes for which it is enacted but it cannot be carried beyond that. It is no doubt true that the right of a female heir to the interest inherited by her in the family property gets fixed on the death of a male member under Section 6 of the Act but she cannot be treated as having ceased to be a member of the family without her volition as otherwise it will lead to strange results which could not have been in the contemplation of Parliament when it enacted that provision and which might also not be in the interest of such female heirs. To illustrate, if what is being asserted is accepted as correct it may result in the wife automatically being separated from her husband when one of her sons dies leaving her behind as his heir. Such a result, does not follow from the language of the statute. In such an event, she should have the option to separate herself or to continue in the family as long as she wishes as its member though she has acquired an indefeasible interest in a specific share of the family property which would remain undiminished whatever may be the subsequent changes in the composition of the membership of the family. As already observed the ownership of a definite share in the family property by a person need not be treated as a factor which would militate against his being a member of a family. We have already noticed that in the case of a Dayabhaga family, which recognises unity of possession but not community of interest in the family properties amongst its members the members thereof do constitute a family. That might also be the case of families of persona who are not Hindus. In the instant case the theory that there was a family settlement is not pressed before us. There was no action taken by either of the two females concerned in the case to become divided from the remaining members of the family. It should, therefore, be held that notwithstanding the death of Sham Rao the remaining members of the family continued to hold the family properties together though the individual interest of the female members thereof in the family properties had become fixed. 10. We have already seen that 'person' includes a 'family' for purpose, of the Ceiling Act and the members of a family cannot hold more than one unit of ceiling area. The respondents cannot derive any assistance from the proviso to Section 6 of the Ceiling Act. Section 6 of the Ceiling Act provided that where a family consisted of members which exceeded five in number the family would be entitled to hold land exceeding the ceiling area to the extent of one-sixth of the ceiling area for each member in excess of five, subject to the condition that the total holding did not exceed twice the ceiling area. The proviso to Section 6 of the Ceiling Act provided that for the purposes of increasing the holding of the family in excess of the ceiling areas stated above if any member thereof held any land separately he would not be regarded as a member of the family for that purpose. This proviso was intended to qualify what was stated in Section 6 and was limited in its operation, it was confined to the purpose of increasing the ceiling area as provided in Section 6 of the Ceiling Act. It cannot be construed as laying down that wherever a member of a family had his separate property he or she should be regarded as not a member of a family and that he or she would be entitled to a separate unit of ceiling area." The above observation, puts an end to the doubt that by fiction or notional partition, the persons who have not filed declaration, who may constitute a family, or may not would not be entitled to claim separate unit of ceiling area i.e., ten units. 24. For the aforesaid reasons my conclusions are : (i) The extent of holding of any person, who files a declaration, must be determined as on the appointed day (1-3-1974) ; (ii) In determining the holding to find out whether the declarant exceeds the ceiling limit or not, it is not permissible to resort to notional partition, amongst the persons, who constitute "Family", as defined in the Act ; (iii) Provisions of Land Reforms Act apply to all persons, irrespective of their respective personal law. (iv) Notional partition is permissible only to aggregate the holding of a declarant, who being a member of Joint Family, is or is not a member of Family as per Section 63(4) of the K.L.R. Act. 25. Reverting back to the facts of the case, the notional extent allotted to the major son, is not challenged by the State; since it has become final, it is not possible to disturb that finding. Accepting the factual position, as found by the Tribunal, petitioner would, be entitled to additional four units, over and above, his ten Units, as the family consists of seven members. Hence, in his own right, he would be entitled to retain 54 acres plus 20 acres 16 guntas, i.e., 74 acres and 16 guntas. Surplus would be 12 acres 21 guntas. As this conclusion is possible on the existing and accepted material, it is needless to remand this matter, only for this purpose of passing final orders. 26. Hence, I make the following Order : (i) Writ petition is partly allowed; it is declared that the declarant petitioner is entitled to four additional Units and be is, there-fore, entitled to retain 74 acres and 16 guntas in his own right. (ii) The extent of surplus, which he has to surrender is 12 acres 21 guntas only. The Tribunal and authorities under the Act will take further proceedings in this regard, as per law.

ILLEGAL CREATION OF "MISSING RECORDS" BY REVENUE OFFICIALS TO ABET LAND GRABBING

noreply@blogger.com (Advocate Sridharababu) — Mon, 5 Dec 2011 21:20:00 +0530

V.BALASUBRAMANIAN CHAIRMAN, TASK FORCE FOR RECOVERY AND PROTECTION OF GOVERNMENT LANDS in his report dated 30-06-2011

14. The basic proof for land grant is the entry made in the Dharkhast (Land Grant) Register and the Saguvali Chit Register maintained in the Taluk Office from which after payment of the upset price (if the grant is not free for SC/ST persons) by Treasury Challan, the Saguvali Chit is issued. Prior to this, the applications for land grant has to be verified by the Taluk Office regarding eligibility, availability of excess gomal, local enquiry by Revenue Inspectors regarding objections, preparing sketch maps, etc. But it is seen that in many cases, especially in Bangalore Urban District and surrounding urbanized taluks even though there was no land grant made following the provisions of the Land Grant Rules, the Revenue officials make entries in the RTC forms. On that basis the land grabbers claim for Grant Certificates and Saguvali Chits. The Taluk Office then prepares "Missing Records" with the illegal interpretation that the records in the taluk office are missing. It has been verified by the Task Force that the original Dharkhast and Saguvali Chit Registers are not at all missing and are very much available in the Record Rooms. What is "missing" is the entry relating to the claimant because, in reality, no such grant was made. Such factual position is concealed by the officials deliberately and "MISSING RECORDS" are built up as if grant records are not available in the taluk office and orders from Deputy Commissioner or even from government are then obtained for the grant.

15. In some cases bogus Saguvali Chit itself is created which is an offence of fraud and creation of false evidence under the Indian Penal Code apart from the provisions of the Land Revenue Act. In one such case in Kengeri hobli in Bangalore South taluk it was found that the Saguvali Chit is issued by the Bangalore South tahsildar in the year 1939 and recommended by the Village Accountant. The fraudsters did not verify that Bangalore Taluk was bifurcated into North and South only in 1940 and the post of Village Accountant was created only in 1968 and till then there were only Shanbogues. However, on the basis of such bogus saguvali chits many persons have grabbed lands in the State and have even obtained decrees from Civil Courts.

16. Even though the Government have issued detailed instructions to the Revenue officers vide circulars dated 30-10-2002, 20-10-2008, 6-8-2009 and 17-9-2009 directing the officials to verify the original and basic records before
confirming any lands as KABJEDAR of any land, the practice of not verifying the original records and flouting of government circulars has continued resulting in large scale land grabbing abetted by officials. Hence, the Joint
Legislature Committee during 2006-07 had specifically asked the Revenue officials in Bangalore Urban district to report such cases under section 136(3) of the Land Revenue Act to the Deputy Commissioner. Section 136 deals with the Presumption of the Entries in the RTC form which is a REBUTTABLE PRESUMPTION. Where there is doubt about such entry, the Deputy Commissioner can enquire into matter and after giving due notice to the claimants and can pass orders to cancel such wrong entries under section 136(3). This power of the Deputy Commissioner and subsequent cancellation has been upheld by the Courts in various cases.

17. For instance in WPs. 17470 of 2007 (KLR-RES) and No.11676 of 2007 (KLR-RES) dated 15-9-2008 the Hon'ble High Court of Karnataka held that: 8. In so far as the Writ Petition of Vasudeva Rao is concerned, admittedly he has not produced the grant certificate. He has not produced the Saguvali Chit....The tahsildar on enquirty found that the ('mutation,) entries were made
without any basis (and) he is duty-bound to bring the same to the notice of the Deputy Commissioner and he has requested the Deputy Commissioner to take action under Section 136(3) of the Act which confers power on the
Deputy Commissioner to initiate suo moto proceedings....In fact for such initiation of proceedings there is no time limit. All this is done to protect the public interest....He (the Writ Petitioner) will be evicted in accordance with law
by initiating proceedings under the Act...The Writ Petitions are dismissed."

18. In another land mark judgment No.WP 3069/2008 KLR dated 20-8-2010, the Hon'ble High Court held that even if the Tahsil Office does not produce the original records, it is still mandatory on the part of the claimant of the land to produce the original documents issued to him entitling him to the land. In this case the Hon'ble High Court held: " The Petitioners should have been diligent in justifying the revenue entries (in the RTC and Mutation Register), and the right to the properties when the revenue authorities have pointed out that there were no records in their custody." In other words, it is not always necessary for the Revenue Department to produce the original records if they are not available with it, but it is stll necessary for the claimant to prove his title.

19. Following these orders the Task Force had written detailed letters to the Deputy Commissioners, Assistant Commissioners and Tahsildars to initiate proceedings before the Deputy Commissioner concerned under section 136(3) and had asked the Deputy Commissioners to verify the original registers such as the Dharkahst Register and Saguvali Chit Register as these are difficult to manipulate and tampering with them can be easily made out and not to just rely on the RTC entries or actual possession by the claimant and to initiate proceedings to evict the land grabbers. ILLEGAL ORDERS PASSED u/s 136(3) BY THE SPECIAL DEPUTY COMMISSIONER, BANGALORE URBAN DISTRICT

20. It came to the notice of the Task Force that in a large number of cases the Special Deputy Commissioner has passed orders u/136 (3) conferring title to the claimants disregarding the reports of the Tahsildars and violating the Government instructions to follow the procedure of verification of original documents. It was seen that in just four taluks of Bangalore Urban district, the Special Deputy Commissioner had passed orders favouring the claimants in 428 cases involving 1,042 acres valued at least Rs.1,500 crores. In all these cases the government would have lost the lands to the land grabbers. However, to establish his intransigence, the Task Force requested the Regional Commissioner, Bangalore to examine the procedure followed in these cases and whether there were original grants. The Regional Commissioner constituted 18 teams of Revenue Auditors to examine each of these 428 cases and submitted a detailed report in February 2011 to the Government and to the Task Force that in none of these cases the original documents were examined and government lands were conferred on the claimants merely on the basis of entries in the RTC forms and Mutation Entries, etc.

21. To reverse the orders of the Special Deputy Commissioner, government have to file Writ Petitions only before the High Court. As the cases were numerous and the lands involved are very valuable, the Task Force felt that
such large number of cases cannot be handled by the regular Government Advocates who are over-burdened, and therefore met the Advocate General who kindly recommended 10 Special Advocates to handle these cases. Accordingly the 10 Special Advocates have been appointed to take up these cases before the High Court by providing them with all necessary documents.

22. As there are still about 7,000 cases pending under section 136(3) of the Act, Government have appointed 3 Special Deputy Commissioners who, in addition to the existing Special Deputy Commissioner of the District, have to dispose of these cases. The Task Force has impressed upon them by letters and by meetings the need to follow the correct procedure of verifying the original registers and documents while disposing of these cases.

23. Incidentally, the then Special Deputy Commissioner who had passed orders in the 428 cases in favour of the land grabbers is under suspension, having been arrested by the Lok Ayukta under the Prevention of Corruption Act in October 2010.

RELEVANCY OF MARKING OF HIKKALS, FOOT-PATHS, ETC., IN SURVEY MAPS,

noreply@blogger.com (Advocate Sridharababu) — Wed, 23 Nov 2011 17:13:00 +0530

202. (i) All streams, main channels, important branch channels, large trees, houses, wells, kuntes, tanks and main channels issuing from the sluice of tanks are shown in village maps. Tanks, roads, railways, etc., formed since the original settlements are shown not only in the village maps but also in the copies of old maps kept in taluk and village offices. (R. 12672-81—L.S. 44-19-5, dated 4th May 1920).

(ii) Old foot-paths and cattle tracts and new ones subsequently formed are also shown in the maps only after obtaining an agreement from the owners, or when the area covered by such tracts are duly acquired by Government.

(iii) Cases calling for special treatment during resurvey may be brought to the notice of the Survey authorities for their consideration and disposal.

(iv) No general orders are necessary authorising the correction of village maps and records, in consequence of the formation of new village roads- under the Village Improvement Scheme. There is no objection to correc¬tions being made in cases in which the roads formed are important and maintained as permanent roads. (R. 10822-902—L.S. 48-16-2, dated 7th May 1917).

KNOW THESE PROVISIONS OF THE MYSORE TENANCY ACT, 1952. TO HAVE PERFECT LEGAL DOCUMENTATIONS

noreply@blogger.com (Advocate Sridharababu) — Wed, 23 Nov 2011 17:11:00 +0530

With a view to regulate the law which governs the relations of landlords and tenants of agricultural lands and to regulate and impose restrictions on the transfer of agricultural lands, dwelling houses, sites and lands appur¬tenant thereto belonging to or occupied by agriculturists in the State of Mysore and to make provisions for certain other purposes the Mysore Tenancy Act, 1952 as amended by Act No. 5 of 1954 was promulgated by Government. The Act extends to the whole of the State of Mysore except Bellary District.

The main provisions of this Act are : —
(i) A person lawfullv cultivating anv land belong¬ing to another person shall be deemed to be a tenant if such land is not cult:vatcd personally bv the owner, and if such person is not (a) a member of the owner's family or (b) a servant on wages payable in cash or kind, but not in crop share or a hired labourer cultivating the land under the personal supervision of the owner or any member of the owner's family or (c) a mortgagee m possession.

(ii) No tenancy of land shall be for a period of less than 5 years and no tenancy shall be terminated before the expiry of a period of five years except on the grounds mentioned in section 15 or with the consent of the land¬lord any tenancy may be terminated by a tenant before the expiry of a period of five years by surrendering his interests as a tenant in favour of the landlord. All tenancies in force on the date of the commence¬ment of this Act shall be deemed to be tenancies? Or a further period of five years frorn the date of commence¬ment of this Act.

(iii) Notwithstanding any agreement, usage decree or of a court or any law, the maximum rent payable in respect of any period after the date of coming into force of this Act by a tenant for the lease of any land shall not exceed one half of the crop or crops raised on such land or its value as determined in the prescribed manner.

(iv) Every lease should be in writing and registered.

(v) Leases are liable to be terminated before the expiry of the full term, if there is default in payment of rent for any year, or has done any act which is destructive or permanently injuries to the land or has sub-divided the land or has sublet the land or failed to cultivate it personally or has left the land fallow or has used such land for a purpose other than agriculture.
(vi) The rent payable in kind should be in term? of standard palla of one hundred seers of grain or maunds of 960 tolas of commodity usually sold by weight.

(vii) The procedure to be adopted in fixing reason¬able rent in case of disputes is laid down under section 12 of the Act.

(viii) If a landlord intends to sell any land leased to a tenant, such tenant shall be given in the manner pro¬vided in sub-section (2), the first option of purchasing the land The landlord should offer the land in writing to the tenant specifying the price and giving him one mouth s time to intimate the acceptance of tiie offer. If the tenant is willing to purchase the land he should deposit the price of such land within one month from the date of the order of the Amildar. If the tenant communicates his unwill¬ingness to purchase or does not give any reply or fails; to deposit the price of land within the specified period, the tenant shall be deemed to have relinquished his right of first option to purchase the lanJ and the landlord shall then be entitled to sell the land to any other person at a price not less than the price at which the land was offered to the tenant under sub-section (2). Any sale of land held in contravention of section 22 shall be null and void.

(ix) (1) In the absence of an express intimation in writing to the contrary by a tenant, every payment made by a tenant to the landlord shall be presumed to be a payment on account of rent due by such tenant for the year in which the payment is made.

(2) Every landlord shall on the written request of the tenant give a written receipt for the amount of rent at the time when such amount is received by him in. respect of any land in such form and in such manner as may be prescribed.

(x) No sub-division on sub-letting of the land or assignment of any interest held by a tenant shall be valid, such sub-division sub-letting or assignment shall make the tenancy liable to termination.

(xi) Save as expressly provided in this Act, any interest in the land held by a tenant, shall not be liable to be attached, seized or sold in execution of a decree or order of a civil court.

(xii) (1) Notwithstanding anything contained in any agreement or in any law, proceedings by a landlord for recovery of rent payable to him by a tenant shall be only by means of an application to the Amildar. Such application may be in such form as may be prescribed.

(2) On receipt of the application under sub-section (1), the Amildar shall, after holding an enquiry, pass such order thereon, as he deems fit.
(3) The provision of section 98 of the Mysore land Revenue Code 1888, shall apply to the recovery of the rent ordered to be paid under sub-section (2).

OLD LAND REVENUE RECORDS IN MYSORE STATE IN SURVEY SETTLEMENTS

noreply@blogger.com (Advocate Sridharababu) — Wed, 23 Nov 2011 17:09:00 +0530

The records are generally known as the settlement papers, and the following are the papers which should have been prepared in order to effectively introduce the new or survey settlement:

(1) " Pahani Sud " or Statement showing the old numbering of lands and the survey numbers, names of fields, description of tenure, name of occupant, and survey area of each number, generally known as the " Sud " and always accompanied by a map of the village.

(2) " Akarband" or register of survey numbers, showing the total area under each head, arable and un-arable, dry land, wet land and garden in detail, with the rate per acre and assessment of each, and the total assess¬ment fixed on the entire number.

(3) "Pot Pahani Book" or inspection statement, showing the old and new numbering of every survey number, and full information regarding tenure and occupancy.

(4) Statement showing number and description of trees in each survey number, known as the " Jhar Patrak."

(5) Statement of grazing land, known as the " Hulbanni Tahkta."

(6) Statement showing full particulars of each occupant's entire holdings under old and new systems, known as the " Wasul Baki.’’

(7) "Phutkul Patrak" or detailed statement of occupancies, when two or more are included in one and the same revenue survey number, with area and assess¬ment of each.

The discontinuance of the preparation of the phutkal patrika and substitution of the Index of lands (Form No. 6, Record of Rights) has been ordered in connection with the Settlement accounts of inam villages. (R. 4056-65—L.S. 46-34-2, dated 19th February 1935).

(8) Statement of waste lands, known as the " Banjar Takhta."

(9) The final Settlement Register, known as the " Lavani Faisal Patrika."

(10) The " Joddidar Takhta " or statement of Jodi Inam land.

The uses and mode of preparing each of the above are given in the survey Manual.

Note.—The department of Land Records is responsible for the accuracy of these returns embodying the result of survey opera¬tions, but the responsibility of correctly preparing those returns, or of portions of returns, intended to record the existing state of occupancy, rests with the Revenue authorities. The impression that "the operations of the department of Land Records act in any way injuriously to the rights comprised in the existing landed tenure, should be carefully removed from the minds of the people, the survey, apart from its general beneficial results in conferring an improved tenure, does not create new, or take away existing rights of any description. The settlement papers are very important and they are of great use during, as well as after, settlement.

199. The Amildar should keep the settlement papers for each village in separate daftars, not only for their careful preservation, but also for facilitating reference. The Deputy Commissioners or the Assistant Commis-sioner in charge of the taluk should take the opportunity, when he inspects the Taluk records, of seeing that this is done.

200. The advantage of village maps for revenue or general administrative purposes are unquestionable. The village map affords the most minute information as to the position, size and limits of fields, roads, water courses, etc., comprised within the village limits. The District map exhibits with equal accuracy, the relative positions and extent of villages, topographical features of the country and a variety of other information useful to the local revenue and other authorities.

201. (i) Village maps are supplied free of cost to the Taluk Offices, Patels and Shanbhogs the cost being adjusted at the end of each year by book adjustment from Revenue to Land Records Department. (R. 1904-6—L.S. 20-34-2, dated 19th October 1934). (R. 6177-79—L.S. 70-30-2, dated 15th June 1935).

MYSORE LAND REVENUE RULES GOVERNING DISPOSAL OF OCCUPANCIES BY PUBLIC AUCTION.

noreply@blogger.com (Advocate Sridharababu) — Sun, 20 Nov 2011 22:29:00 +0530

Under Rule 43 (ii) it is only in special cases where the land is very valuable or where there is no demand for land from person eligible for the grant of lands under sub-rule ( 1 ) the Deputy Commissioners may with the previous sanction of the Revenue Commissioner, sell such land by public auction. Every sale by auction under these Rules, or in pursuance of any of the provisions or the Land Revenue by public Code, shall unless otherwise provided for, be conducted so far as may be, in accordance with Sections 171, 172, 176 to 183, both inclusive, and 186 of the said Code. Sales not otherwise provided for shall be made by auction by such persons as may be authorised in this behalf by these rules or by the Deputy Commissioner. No sales of lands shall take place until after the expiration of at least seven days from the latest date on which the notice of sale shall have been affixed, as required by Section 172.

When the estimated value of the property does not exceed two hundred rupees the sale may be entrusted to the Revenue Inspector in charge of the Hobli or Circle, and where such value exceeds two hundred rupees, the sale shall be conducted by the Amildar or such officer as may be specially empowered in that behalf by the Deputy Commissioner. When the value of the property exceeds one thousand rupees, the sale shall be conducted by the Deputy Commissioner or by an officer not below the rank of an Assistant Commissioner authorised by the Deputy Commissioner by General or Special order. When the property consists of more than one lot, the estimated value shall be the value of each lot separately, as an individual item and not the aggregate value of all the lots.
Sales of land shall be subject to confirmation by the Deputy Commissioner or by some other officer authorised by these rules or by the Deputy Commissioner, such con¬firmation not being ordered before the date of payment of the full amount of purchase money :

Provided that in conducting the following sales : —
(a) sales of the right of grazing and of the right to take or cut grass in waste lands.
(b) sales 'of the right to take the fruit of specified Government trees for a specified period, and
(c) sales of dead wood.

the procedure shall be in accordance with such orders as may, from time to time, be made by the Deputy Com¬missioner either generally or specially in this behalf, in¬stead of the procedure prescribed in Section 171 and 172 of the Land Revenue Code.

The Government, the Revenue Commissioner, and the Deputy Commissioner may condone delays in the payment of full amount of purchase money in darkhasts sales subject to the levy of penalty up to 10 per cent of the purchase money not exceeding Rs. 50 in any case. Provided that the power to condone the delay shall be exercisable by (i) the Deputy Commissioner in respect of delays exceeding 15 days but not exceeding 30 days, (ii) the Government in respect of delays exceed¬ing 30 days (Notification No. R. 11238—L.R. 45-52-28, dated 26th November 1952),

The proclamation and written notice of sale required to be issued under Sections 171 and 172 of the said Code shall be in one of the forms contained in Appendix B or as near thereto as may be.

Note.—The rule is applicable only to darkhast sales and not to sales held for the recovery of the arrears of land revenue

(1) When a gomal survey number consisting of 24 acres and 27 guntas was phoded into 4 blocks and sold in auction by the Revenue Inspector and confirmed by the Amildar, it was held, that the sale of each survey number was separate and independent and the Revenue Inspector was quite competent to hold_the sale. To add up the value of all the survey numbers and then say that the total amount is beyond the jurisdiction of the Revenue Inspector is not correct. (R.A. No. 70—12-43.) (G.O. No. R, 1283-4—L.R. 337-42-4, dated 31st August 1943).
(2) The non-payment of Boundary mark charges will render the contract of sale incomplete and the land cannot be subdivided. In the sale notification connected with unoccupied lands requiring sub-division the condi¬tion that boundary mark changes should be paid along with the purchase money is invariably inserted. (G.O. No. 7895-907—L.S. 1-53-96, dated 30th October 1954).

DARKHAST SALES SHOULD NOT BE POSTPONED.

(3) The existing rule 26 of the Land Revenue Rules which does not provide for postponement of Dar¬khast sales should be strictly enforced. In case the highest bid recovered is, through combination or for other cause unduly low, the sale can always be cancelled and fresh darkhast sale held after observing the prescribed procedure. (Circular Letter No. R. 6592—L.R. 285-38-4, dated 28th June 1939).

DARKHAST SALES.

(4) The exclusion of the phut kharab of a survey number from its advertised extent was held to be an un¬important error which in no way affected the sale of the land or darkhast or the proceedings connected with it. (G.O. No. R.
1059—A.R.M. 110-05-7, dated 27th January 1906).

(5) Amildars should not, on their own responsi¬bility order reservation of lands duly assessed to revenue by the department of land records and for which darkhasts are received. (Appeal No. 39—1905-1906).

(6) If a Deputy Commissioner passes an order directing disposal of a land in an auction, and if an appeal be preferred to him against the Assistant Commissioner's order confirming the sale of that land, the Deputy Com-missioner is not precluded from entertaining the appeal (Appeal No. 132 of 1908-09), (G.O. No. R. 3554—L.R. 547-08-2, dated 12th November 1909).

(7) An officer who once confirms a revenue sale and authorises the purchaser to be put in possession of the land is not competent to subsequently cancel the sale oil his own authority, on the ground of objections already on record. (G.O. No. R. 3553-4—L.R. 547-08-2, dated 12th November 1909. Appeal No. 115 of 1908-09).

(8) In the absence of any fraud or material irregu¬larity a (darkhast) sale otherwise regularly held should . not be cancelled, merely on the ground of subsequent higher bids for the land. (Appeal No. 2 of 1917-18). (G.O. No. 410—P.F. 157-02, dated 10th October 1903; R. 3275—R.M. 494-05-3, dated 17th September 1906; ^R. 11471—L.R. 233-17-5, dated 27th May 1918).

(9) A survey number which was really a tank kharab and which had wrongly been reported as a hul-bauui kharab was given out for cultivation. Held that though the failure of the taluk authorities to make personal inspection before the darkhast sale of the said land took place was a reprehensible omission, the sale was rightly cancelled and the land was ordered to be resumed and treated as tank kharab, the price paid by the appellant, being refunded to him. (Appeal No. 1 of 1919-20). (G.O. No. R. 4135—L.R. 243-17-4, dated 24th September 1919).

(10) A Deputy Commissioner cannot, after pas¬sing an order cancelling a sale, review his previous order and confirm the sale. (Appeal No. 6 of 1919-20).
(G.O. No. R. 6295—L.R. 201-18-5, dated 27th November 1919).

(11) When the extents stated in the various documents (mahazar, sale proclamation, sale patties, etc.) connected with the sale of a vacant site are discrepant. the accepted rule is that the true extent should be deter¬mined by a reference to its boundaries. (Appeal No. 7 of 1919-20). (G.O. No. R. 6953—L.R. 147-18-5, dated 17th December 1919).

(12) A revenue sale held with due formality should not be cancelled, merely to grant the land at an upset price to a person who owns the adjoining lands. (Appeal No. 13 of 1919-20). (G.O. No. R. 9786—L.R. 192-184, dated 26th February 1920).

(13) Darkhast sales conducted by the Revenue Officers should always be characterised by good faith, impartiality and independence. (Appeal No, 9 of 1919-20). " (G.O. No. 9810—L.R. 204-18-4, dated 26th February 1920).

AUTHORISED POSSESSION NOT TO BE SUMMARILY DISTURBED.

(14) A person properly put in possession of a land under a saguvali chit and holding it for more than a year should not summarily be deprived of it by cancelling the saguvali chit, merely because, a petition of objection was presented long after the prescribed appeal time. (Appeal No. 96 of 1911-12).
(G.O. No. R. 5831—L.R. 195-12-4, dated 12th April 1913).

MYSORE LAND REVENUE RULES GOVERNING UNAUTHORISED CULTIVATION OF LAND.

noreply@blogger.com (Advocate Sridharababu) — Sun, 20 Nov 2011 22:26:00 +0530

(1) When dealing with cases of unauthorised cultivation of land, Deputy Commissioners and Sub-Division Officers have discretionary power to remit a reasonable portion of the penal assessment chargeable, where a strict enforcement of the provisions of Section 59 L.R.C., would result in undue hardship. (G.O. No. 2595-602—R. 1029, dated 27th September 1898).

(2) The person who has actually encroached upon and unauthorisedly cultivated the land is liable to pay the fine and not the khatedar of the adjoining survey number. For default of payment of the fine by the former, it is wrong to sell the occupancy of the latter. (G.O. No. 3449— P. F. 48-92, dated 7th November 1898).

MYSORE LAND REVENUE RULES GOVERNING FlNE FOR UNAUTHORISED CULTIVATION OF LAND.

(3) Officers empowered to fine should exercise their power moderately and not to take extent of ruining an offender. (G.O. No. 11934— P. F. 87-97, dated 21st June 1898).

MYSORE LAND REVENUE RULES GOVERNING OLD PUBLIC THOPES.

noreply@blogger.com (Advocate Sridharababu) — Sun, 20 Nov 2011 22:21:00 +0530

The Revenue Commissioner may grant per¬mission to individuals to raise public thopes on an extent not exceeding two acres in Government Kharab or Gomal lands when there is no objection from the villagers to the disposal of the lands and when the intentions of the applicants in the matter of raising such thopes for charit¬able purposes are found to be bona fide. In other cases sanction of Government should be obtained. (G.O. No. R. 7539-49—L.R, 549-40-2, dated 7th May 1941).

WHAT HAPPENED TO THIS RULE OF GOVERNMENT ORDER AND AND APPEAL

noreply@blogger.com (Advocate Sridharababu) — Sun, 20 Nov 2011 21:59:00 +0530

AUTHORISED POSSESSION NOT TO BE SUMMARILY DISTURBED.

(14) A person properly put in possession of a land under a saguvali chit and holding it for more than a year should not summarily be deprived of it by cancelling the saguvali chit, merely because, a petition of objection was presented long after the prescribed appeal time. (Appeal No. 96 of 1911-12).
(G.O. No. R. 5831—L.R. 195-12-4, dated 12th April 1913).