PROPERTY AND LAND LAWS

WHEN THERE IS A QUESTION WHO IS CULTIVATING THE LAND - JUSTICE S SUJATHA

noreply@blogger.com (Advocate Sridharababu) — Wed, 29 May 2019 18:30:00 +0530

SOURCE:- K.T. Venkatappa and Ors. vs. State of Karnataka and Ors. (19.02.2019 - KARHC) : MANU/KA/0882/2019 - JUSTICE S SUJATHA

In the case of Basavaraj Vs. State of Karnataka 1982 (2) KLJ 531, the cognate bench of this court while examining the applications filed by the son during the life time of his father claiming conferment of occupancy rights, held that a son is the member of the joint family, the question to be considered is what is the interest of a son in the lease hold right and placed reliance on the judgment of the Hon'ble Apex Court in Municipal Corporation of Greater Bombay Vs. Lallapunchani & others wherein it is held that the lease hold right in an agricultural land, if it constitutes joint family property/joint property, is partible just like any other property of the joint family.

10. In H.R. Rama Singh Vs. D. Nagesh Rao & another 1977 (2) KLJ 329, referred to therein, it is observed that an employee of a Bank cultivating the lands with the assistance of his brother is entitled to conferment of occupancy rights.

11. Considering the said legal principles, it is observed that son as a member of the joint Hindu family is entitled to claim conferment of occupancy rights by filing an application in the prescribed form.

12. The Hon'ble Apex Court in the case of Mohan Balaku Patil & another Vs. Krishnoji Bhaurao Hundre (Dead) by L.Rs. MANU/SC/0040/1999 : (2000) 1 SCC 518, has held that when a finding of fact has been recorded that the claimants have been in possession, it will be startling to hold that the land-owner was himself cultivating the land. The rent paid by the claimant to the land-owner and the partition in their family has no bearing on the question of possession on the land and cultivation thereof. It was thus observed that the finding of the Tribunal as to possession and cultivation of the land by a party will prevail over entry to the contrary in record of rights.

13. In the case of Ram Vs. State of Karnataka MANU/SC/0768/2004 : Laws (SC) 2004 982, the Division bench of the court has referred to the earlier decision of this court in Writ Appeal No. 4310/1998 wherein it is observed that, this court exercising jurisdiction under Articles 226 and 227 of the Constitution of India normally cannot re-appreciate the evidence on record which has already been appreciated by the Land Tribunal. The finding of the Tribunal that it is the joint tenancy which is a finding of fact can not be upset by this court sitting under its jurisdiction by re-appreciating the evidence.

14. Having regard to the facts found, looking to close relationship between the parties and considering the spot inspection and the local enquiries made with the adjacent land owners, the order passed by the Tribunal therein holding that all the four applicants were entitled for grant of occupancy rights is held to be justifiable, more particularly taking note of the fact that the Tribunal consequently found that the all four applicants were cultivating their respective share of their land.

15. In the case of Vasantha Nanasaheb & others Vs. Piraji Pandu Patil & others MANU/KA/0256/2006 : ILR 2006 Kar 2061, in support of the case, the tenant had examined two independent neighbouring witnesses apart from examining himself. Both the witnesses have deposed in categorical terms that 1st respondent therein was cultivating the property in question as tenant. Nothing worth was elicited in their cross-examination to discard their evidence. In that context it was observed that the presumption arising out of the revenue records stand rebutted in view of consistent, cogent and clinching evidence relating to the party's possession over the property in question as a tenant.

16. In the case of Mudakappa Vs. Rudrappa & others MANU/KA/0143/1978 : 1978 (1) KLJ 459, it is held that when one person applies for registration of lands as an occupant in his individual name and three others apply for registration of the said lands in their name along with the other applicant as joint occupants, it becomes the duty of the Tribunal to decide whether only one of them was sole tenant of the lands in question before the appointed day or whether all of them were jointly in possession of the lands as tenants. It was observed that without deciding the said question, it would not be possible for the Tribunal to make an effective order under Section 48-A of the Act. What was necessary for the Tribunal to decide is whether the tenancy in question was held by one of them exclusively or by all of them jointly.

17. In the case of Sundara Mesta Bin Thimmappa Mesta Vs. Land Tribunal MANU/KA/0329/2005 : ILR 2005 Kar 4513, right course to be adopted by the Tribunal was discussed where applications are filed by different persons in respect of the same land under Sections 48-A and 38 of the Act. It was held that the applications are in respect of the same land, both the applications are required to be considered together, if necessary, by setting aside an earlier order either granting occupancy right or directing registration of an agricultural labourer as an owner thereof.

18. Division Bench of this court in the case of Davalsab Vs. The State of Karnataka MANU/KA/7360/2007 : ILR 2008 Kar 280, has observed that when we look at the practical difficulties, if tenants are allowed to file more than one Form No. 7, application in respect of the lands claimed by them as tenants pertaining to the very same landlord, it would only lead to multiplicity of proceedings and both the landlord and tenant would end up in litigations throughout their lives. Therefore, in view of the provisions of Section 48-A and Rule 19 of the Act, the principle underlying Order II Rule 2 of CPC is applicable as there is no such express provisions under the Land Reforms Act. It was the situation where the tenant claimed tenancy rights under the same landlord by filing two Form No. 7 applications one in the year 1974 and the other in 1976.

19. In the case of Chennappa Moolya Vs. Seju Moolya MANU/KA/2500/2012 : Laws (Kar) 2012 458, tenants the brothers had jointly filed declaration in Form No. 7 claiming occupancy rights on behalf of the Joint Hindu Family as held by this court.

20. In the case of Babu Madivala & others Vs. Kuddu Madivala & others MANU/KA/0212/2002 : ILR 2002 Kar 3417, the land Tribunal after conducting an enquiry granted occupancy rights while deciding the issue whether the grant of occupancy rights is for the benefit of the 'joint family' as defined under Section 2(17) of the Land Reforms Act or the 'family' as defined under Section 2(12) of the Land Reforms Act?

CASE LAW ON WILL AND PROBATE

noreply@blogger.com (Advocate Sridharababu) — Sat, 26 Apr 2014 18:00:00 +0530

Case Law Digest on Will and Probate by Sridhara babu. N - ಶ್ರೀಧರ ಬಾಬು. ಎನ್

THE JURISDICTION TO GRANT RELIEF IN CIVIL SUIT NECESSARILY DEPENDS ON THE PLEADINGS, PRAYER, COURT FEE PAID, EVIDENCE LET IN ETC

noreply@blogger.com (Advocate Sridharababu) — Sun, 8 Dec 2013 15:39:00 +0530

Bachhaj Nahar vs. Nilima Mandal and Anr (2008) 17 SCC 491. It is relevant to extract the principles enunciated in para 23 of the judgment which are as follows. "23. It is fundamental that in a civil suit, relief to be granted can be only with reference to the prayers made in the pleadings. That apart, in civil suits, grant of relief is circumscribed by various factors like court fee, limitation, parties to the suits, as also grounds barring relief, like res judicata, estoppel, acquiescence, non-joinder of causes of action or parties, etc., which require pleading and proof. Therefore, it would be hazardous to hold that in a civil suit whatever be the relief that is prayed, the court can on examination of facts grant any relief as it thinks fit. In a suit for recovery of rupees one lakh, the court cannot grant a decree for rupees ten lakhs. In a suit for recovery possession of property `A', court cannot grant possession of property `B'. In a suit praying for permanent injunction, court cannot grant a relief of declaration or possession. The jurisdiction to grant relief in a civil suit necessarily depends on the pleadings, prayer, court fee paid, evidence let in, etc." In those circumstances, while reiterating the principles laid down above, we hold that the same are not applicable to the case on hand.

CASE LAW DIGEST ON CIVIL COURTS AND INVOLVED PROCEDURE

noreply@blogger.com (Advocate Sridharababu) — Thu, 23 May 2013 14:24:00 +0530

Case Law Digest on Civil Court and Involved Procedure by Sridhara babu. N - ಶ್ರೀಧರ ಬಾಬು. ಎನ್

HINDU GAINS OF LEARNING ACT – SELF ACQUIRED PROPERTY

noreply@blogger.com (Advocate Sridharababu) — Mon, 6 May 2013 07:37:00 +0530

Before the enactment of Hindu Gains of Learning Act, 1930 it was settled law that income earned by a member of a joint family by the practice of a profession or occupation requiring special training was joint family property, if such training was imparted from the funds of the joint family. But this term „learning‟ was interpreted by the Courts to mean some kind of special learning, as distinguished from ordinary general education, that all members of the family might be expected to receive. The most famous decision in said regards is the decision of the Privy Council reported as AIR 1921 PC 35 Gokalchand v. Hukumchand where a person had acquired education by paying fee from the joint family income which enabled him to acquire knowledge, compete at a competitive examination and become a member of the Indian Civil Service. It was held by the Court that salary earned by said person was the property of joint family and thus should be partitioned between the members of the said family. After the decision of Privy Council in Gokalchand‟s case (supra), Hindu Gains of Learning Act, 1930 was enacted by virtue of which all gains of learning, whether the learning be special or ordinary, became the self-acquired property of the acquirer.

Madras High Court in the decision reported as AIR 1953 Mad 834 Parsam Venkataramayya v Parsam Venkatarmappa wherein it was observed as under:- "11. We are inclined to the view that if a member of a Joint family who was given a certain sum from the Joint family funds and who goes out of the family in the sense of leaving the family house as in the present case, starts a business of his own individually or in partnership and by virtue of his exertions he prospers in his business and acquires properties it will be not justifiable to hold that either the business or his properties would be joint family properties. In view of the constitution of the Hindu joint family and the incidents of its ownership of properties, to come to any other conclusion would be to deprive a member of such family of his initiative and his desire to eke out a livelihood by his individual efforts and intelligence. The trend of judicial opinion has been as far as possible to recognise properties acquired out of the individual exertions of a member of a joint family to be his self-acquisition. The Hindu Gains of Learning Act (Act 30 of 1930) is one of the enactments which gave legislative recognition to this view, by treating the properties acquired out of the earnings of the members of the family who happened to have had their education from out of the joint family funds as self-acquired and separate properties. The Act provides that notwithstanding any custom, rule or interpretation of the Hindu law, no gains of learning shall be held not to be the exclusive and separate property of the acquirer merely for the reason that his learning, in whole or in part has been acquired with the aid of the funds of the family and "learning" has been understood to mean education which is to enable a person to pursue any trade, industry, profession or avocation in life. If a member of the family is inclined to start a trade and for that purpose he gets assistance by way of a contribution from the joint family funds without any further assistance from the joint family and goes and starts a business and acquires properties, it appears to be reasonable to extend the principle of the Hindu Gains of Learning Act to such a case. We are unable to find any real distinction between the case of a member getting himself educated out of the joint family funds and employing himself somewhere earning and acquiring properties and a member getting a cash contribution from the family and starting a trade on his own account."

Chandrakant Manilal Shah And Anr vs Commissioner Of Income Tax 1992 AIR 66, 1991 SCR Supl. (1) 546 The definition of the term "learning" under Section 2 of the Hindu Gains of Learning Act, 1930 is very wide and almost encompasses within its sweep every acquired capacity which enables the acquirer of the capacity 'to pursue any trade, industry, profession of vocation in life". The dic- tionary meaning of "skill" inter alia, is: "the familiar 'knowledge of any science, art, or handicraft, as shown by dexterity in execution or performance; technical ability" and the meaning of "labour" inter alia is: "physical or mental exertion, particularly for some useful or desired end." Whether or not skill and labour would squarely fail within the traditional jurisprudential connotation of property e.g. jura in re propria, jura in re aliena, corpo- real and incorporeal etc. may be a moot point but it cannot be denied that skill and labour involve as well as generate mental and physical capacity. This capacity is in its very nature an individual achievement and normally varies from individual to individual. It is by utilisation of this capacity that an object or goal is achieved by the person possessing the capacity. Achievement of an object or goal is a benefit. This benefit accrues in favour of the individual possessing and utilising the capacity. Such individual may, for consideration, utilise the capacity possessed by him even for the benefit of some other individual. The nature of consideration will depend on the nature of the contract between the two individuals.
Chandrakant Manilal Shah And Anr vs Commissioner Of Income Tax 1992 AIR 66, 1991 SCR Supl. (1) 546 “Just like a cash asset, the mental and physical capacity generated by the skill and labour of an individual is possessed by or is a possession of such individual. Indeed, skill and labour are by themselves possessions. "Any possession" is one of the dictionary meaning of the word 'property'. In its wider connotation, therefore, the mental and physical capacity generated by skill and labour of an individual and indeed the skill and labour by themselves would be the property of the individ- ual possessing them. They are certainly assets of that individual and there is no reason why they cannot be con- tributed as a consideration for earning profit in the busi- ness of a partnership. They certainly are not the properties of the HUF, but are separate properties of the individual concerned. To hold to the contrary, would also be incompati- ble with the practical, economic and social realities of present day living.”

Chandrakant Manilal Shah And Anr vs Commissioner Of Income Tax 1992 AIR 66, 1991 SCR Supl. (1) 546 Where an undivided member of a family qualifies in technical fields -- may be at the expense of the family - he is free to employ his technical expertise elsewhere and the earnings will be his absolute property; he will, therefore, not agree to utilise them in the family business unless the latter is agreeable to remunerate him therefor immediately in the form of a salary or share of profits. This, of course, will have to be the subject matter of an agreement between the HUF and the member, but where there is such an agreement, it cannot be characterised as invalid. ……….. It is, therefore, illogical to hold that an undi- vided member of the family can qualify for a share of prof- its in the family business by offering moneys -- either his own or those derived by way of partition from the family -- but not when he offers to be a working partner contributing labour and services or much more valuable expertise, skill and knowledge for making the family business more prosperous.

Irrumathirumala ... vs Irumathirumal AIR 1969 AP 303 The offerings given to any Guru performing Samasrayanam are his personal property. The statement that property acquired from science and learning is separate property has had ancient sanction. Katyayana enumerates exhaustively the gains of learning. As pointed out by Mayne (Mayne's Hindu Law and Usage (11th Edn 352) gains which were the result, not of the education received at the expense of the joint family but of the peculiar skill and mental ability of a member educated at the expense of the family were not partible. There is no doubt left after the passing of the Hindu Gains of Learning Act, which provides that no gains of learning shall he held not to be the exclusive and separate property of the acquirer, merely by reason of his learning having been imparted to him by any member of his family, or with the aid of the joint funds of the family or with the aid of the funds of any member. The further fact that the acquirer or his family, while undergoing education or training was maintained by the funds of the joint family or of any member of it, is made wholly immaterial.

T.M. Channabasamma And Ors. vs T.M. Rudriak And Ors AIR 1982 Kant 198, ILR 1982 KAR 98 (DB) We have examined the purpose of repealing Section 6 of the Mysore Act X of 1933. It appears to us that that repeal was a necessary consequence of the extension of the Hindu Gains of Learning Act, 1930 to the State of Karnataka as well. The Miscellaneous Personal Laws (Extension) Act, 1959 amended S. 2 of the Hindu Gains of Learning Act, 1930 by extending the Act with effect from February 1, 1960 throughout the territory of India except Jammu and Kashmir while simultaneously repealing Section 6 of the Mysore Act X of 1933. Section 6 of the Mysore -Act X of 1933 is analogous to the provisions of the Hindu Gains of Learning Act, 1930 and it became redundent and se was repealed. No other inference is possible in this context.

JOINT FAMILY PROPERTY SALE BY KARTA –POWERS- PROCEDURE TO BE FOLLOWED BY OPPOSING CO-PARCENER 2007 SC

noreply@blogger.com (Advocate Sridharababu) — Sun, 5 May 2013 12:15:00 +0530

READ FULL JUDGMENT

Justice Dr. Arijit Pasayat & Justice S. H. Kapadia in case of SUBHODKUMAR & ORS. .Vs. BHAGWANT NAMDEORAO MEHETRE & ORS. Reported in AIR 2007 SC 1324, A Karta of Hindu Undivided Family had five sons. The Karta and four sons entered into an agreement of sale with respondents for selling part of their ancestral lands and thereafter executed a sale deed. The fifth son opposed the transaction and entered into a separate agreement of sale for selling part of the sold lands with appellants. The respondents-plaintiff filed a suit for possession of lands before trial court contending that the agreement entered into by the opposing son with the appellants-defendants was a fabricated antedated document. The appellants contested the suit contending that their agreement of sale was genuine and first in point of time: that they were not aware of the agreement executed by the Karta in favour of the respondents: and that the transaction was not for legal necessity. The trial court decreed the suit holding that the transaction was for legal necessity. The appellate court also dismissed the appeal but held that the legal necessity for possession was not a `fact in issue' The High Court dismissed the second Appeal of the appellants holding that the transaction was on account of legal necessity. In appeal to this court, the appellants contended that there was no legal necessity for the Karta and his four sons to execute the conveyance in favour of the respondents; that the conveyance was executed without the consent of one of the coparceners; that the opposing son entered into a conveyance with them in respect of his undivided share and was it earlier in point of time. Dismissing the appeal, the Court. HELD: A karta has power to alienate for value the joint family property either for necessity or all the coparceners of the family. When he alienates for legal necessity interest. When the Karta, however, conveys by way of imprudent transaction, the alienation is voidable to the extent of the undivided share of the non-consenting coparcener. Neither the opposing son nor his successors-in-title instituted a suit for partition and for demarcation of their share by metes and bounds. In the suit for possession filed by the respondents, the issue of legal necessity becomes irrelevant. A mere declaration that transaction was imprudent or was not for legal necessity in such a suit cannot give any right to the appellants to get their share without taking appropriate proceedings in accordance with law. The legal necessity in the present suit for possession was not a "fact in issue".

GPA EXECUTED BEFORE NOTARY IS IN-VALID FOR EXECUTING SALE DEED – GPA EXECUTED AND AUTHENTICATED BEFORE REGISTRAR OR SUB-REGISTRAR IS ONLY VALID

noreply@blogger.com (Advocate Sridharababu) — Sun, 24 Jun 2012 14:58:00 +0530

That Section 32 of the Registration act makes it imperative that every document to be registered shall be presented at the proper registration office by some person executing or claiming under the same or by the representative or assign of such person, agent, representative or assign duly authorised by power-of-attorney executed and authenticated in the manner provided by Section 33. In case a document is presented for registration by a person other than a party to it or his legal representative or assign or by a person who is not an agent authorised in the manner prescribed under Section 33 such presentation is wholly imperative and presentation of such a document is void. That the object of Sections 32 to 35 Is to avoid commission of frauds by means of registration under the Act by a person not duly authorised and it is the duty of the Court In India not to allow the imperative provisions of the Act to be defeated when it is proved that an agent who presented a document for registration had not been duly authorised in the manner prescribed by the Act to be presented. A Registrar has no jurisdiction to register a document unless he is moved to do so by a person who has executed it, or claims under it. or by the representative of such a person. That the object of the Legislature in enacting Section 32 is to prevent a mere outsider from presenting for registration a document with which he has no concern, and in which he has no interest. To allow all and sundry to present documents for registration would be to open a door to fraud and forgery and the Legislature, therefore. Intended to provide that the registration should be initiated by the document being presented for registration by a person "having a direct relation to the deed". If the presentation for registration was ab initio defective, in that it did not conform to the requirements of the provisions of the Indian Registration Act in that regard, then, such initial defect in presentation for registration affected the jurisdiction of the registering officer' to effect the registration of the document.

Further technical objection may be taken to such power of attorney. The Section 28 of the Registration Act, as is relevant in the context, provides that a document affecting immovable property shall be presented for registration in the office of a sub-registrar within whose sub-district the whole or some portion of the property to which such document relates is situate.

CASE LAWS ON THE POINT

Justice Pratibha Bonnerjea, of Calcutta High Court in the case of Goswami Malti Vahuji Maharaj vs Purushottam Lal Poddar AIR 1984 Cal 297 Quotes following case laws:- In AIR 1928 Pat 304 (Elizabeth" May Toomey v. Bhupendra Nath Bose) a document was executed and registered under Sections 32 and 33 of the Registration Act on the strength of a Power of attorney which was challenged as invalid inter alia on the ground that in the Registrar's certificate on the document, the concerned power-of-attorney was described as a general power of attorney. It was contended that it did not authorise the agent Mr. Kennedy to admit execution or to present the same for registration. It was held at page 313:-- "The document purports to have been properly registered in accordance with the provisions of Sections 32 and 33, Registration Act. It was the duty of the Sub-Registrar to satisfy himself that the power-of-attorney gave Mr. Kennedy the necessary authority and it must he assumed until contrary is proved that he so satisfied himself' before he admitted the document for registration and signed the endorsement. I am certainly not prepared to find merely because the power-of- attorney is described as a general power in the Sub-Registrar's endorsement that it did not authorise Mr. Kennedy to admit execution or present the document for registration."

Justice Prabir Kumar Samanta, of Calcutta High Court in the case of Dulal Ranjan Ghosh Dastidar vs Rajani Tandon And Anr. 2004 (1) CHN 517 held “Section 32 of the said Act primarily stipulates that every document to be registered shall be presented at the proper Registration Office by some person executing the same. Section 33(1)(a) of the said Act provides that for the purpose of Section 32 i.e., for the purpose of presentation of a document for registration, only such Power of Attorney shall be recognised for such presentation which has been executed by the principal before and authenticated by the Registrar or Sub-Registrar within whose District or Sub-District the principal resides. Thus upon conjoint reading of Section 32 and Section 33(1)(a) of the said Act it appears that while Section 32 empowers the executants of a document to present the same for registration without any reservation, but requires the Power of Attorney to be executed before and authenticated by the Registrar or Sub-Registrar within whose District or Sub-District the principal resides for valid presentation for registration by the constituted attorney on behalf of the principal. ….. These two clauses read together make it clear that the agent, representative or assignee of the principal whether authorised or not to execute the document on behalf of the principal will be entitled to validly present the documents for registration only when such agent, representative or assignee has been duly authorised by Power of Attorney executed and authenticated in the manner provided under Section 33(1)(a). If that position is accepted, and it has to be accepted as such in view of the provisions contained therein, can it be said that only for the purpose of presentation of document for registration which has been executed by the principal himself such requirements would be necessary but for the purpose of execution of the document on behalf of the principal such requirements would not be necessary? Such interpretation would make the said provisions otiose, because by a Power of Attorney which is neither executed nor authenticated in the manner as provided under Section 33(1)(a) of said Act, an agent, representative or assignee of the principal who will not be entitled to validly present a document for registration would then be entitled not only to present for registration but also to execute the same on behalf of the principal. In other words each Clauses of Section 32 has its independent application and meaning and one has not the effect of substituted application over the other. Therefore, Section 32 read as a whole along with Section 33(1)(a) of the said Act would imply that whenever by a Power of Attorney a principal authorises his agent, representative or assignee to execute a document on his behalf, such Power of Attorney would be required to be authenticated in the manner provided under Section 33(1)(a) of the said Act.”

The following privy council case laws are quoted on the point By Justice Ratnam of Madras High Court Judgement in the case of Sekar Mudaliar And Etc vs Shajathi Bi And Anr. Reported in AIR 1987 Mad 239,

Mujibunnissa v. Abdul Rahim (1901) I.L.R. 23 A11. 233 (P.C.) : 288415 the Privy Council pointed out that the principle in that decision would apply to that case as well and that the principle is that a Registrar or a Sub Registrar has no jurisdiction to register a document, unless he is moved to do so by a person who has executed or claims under it or by the representative or assign duly authorised by a power of attorney executed and authenticated in manner prescribed in Section 33 of that Act. It was also further pointed out that the executants of a deed attending the Registrar or a Sub Registrar merely for the purpose of admitting the execution, cannot be treated for the purposes of Section 32 of Act III of 1877, as presenting the deed for registration and their assent to the registration will not be sufficient to give the Registrar jurisdiction. The object of Sections 32, 33, 34 and 35 of Act III of 1877 was pointed out to be to make it difficult for persons to commit frauds by means of registration under the Act. The Privy Council further pointed out the duty of the courts in this connection and stated that Courts ought not to allow the imperative provisions of the Act to be defeated when as in that case, it was proved that an agent who presented a document for registration had not been duly authorised in a manner prescribed by the Act to present it.

In Dottie Karan v. Lachmi Prasad A.I.R. 1931 P.C. 52 : 33 L.W. 566 : 589 A 58 : 60 M.L.J. 441, the validity for presentation of a document for regulation by a power of attorney agent, the power in whose favour contained an alteration in the date, came to be considered. The Privy Council pointed out that the date in the power of attorney was altered and the registration of the mortgage was not effected in accordance with the provisions of the Registration Act and that the deed was not properly registered, not being presented for registration by an authorised agent. It was also further laid down that such a defect was not one merely of procedure, but one of jurisdiction in the registering officer.

In a Single Bench decision of the Andhra Pradesh High Court reported in AIR 1958 Andh Pra 107, D. Sardar Singh v. Pissumal H. Bankers, it was held that where a person holding a power-of-attorney executes a sale-deed he cannot present it for registration unless he holds a power-or-attorney satisfying the requirements of Section 33.

In AIR 1927 Bom 487 (FB), Sitaram v. Dharma-sukhram, held that a person executing a document on behalf of himself and another under a power-of-attorney from the latter, which power does not comply with Section 33 or the Indian Registration Act is competent to appear before the Registrar to admit the execution of that document.

NOTARISED GPA WHERE ITS IS ACCEPTED

Jugraj Singh & Anr vs Jaswant Singh & Ors 1971 AIR 761, 1971 SCR (1) 38 The first power of attorney was not authenticated as required by s; 33 of the Indian Registration Act which in the case of an Indian residing abroad, requires that the document should be authenticated by a Notary Public. The document only bore the signature of a witness without anythingto show that he was a Notary Public. In any event there was no authentication by the Notary Public (if he was one) in the manner which the law would consider adequate. The second power of attorney however did show that it was executed before a proper Notary Public who complied with the laws of California and authenticated the document as required by that law, and was also duly authenticated in accordance with our laws. The only complaint was that the Notary Public did not say in his endorsement that V had been identified to his satisfaction. But that flows from the fact that he endorsed on the document that it had been subscribed and sworn before him. There is a presumption of regularity of official acts and he must have satisfied himself in the discharge of his duties that the person who was executing it was the proper person. This made the second power of attorney valid and effective both under s. 85 of the Indian Evidence Act and s. 33 of the Indian Registration Act.

BHATORI VS RAM PIARI 1996 AIR 2754 = 1996 ( 4 ) Suppl. SCR 180 = 1996 (11 ) SCC 655 = 1996 ( 7 ) JT 210 = 1996 ( 5 ) SCALE 752 POWER OF ATTORNEY HOLDER ALIENATING THE LANDS IN THE NAME OF HIS WIFE DEFRAUDING THE LAND OWNER – FRAUD UNRAVELS EVERYTHING 1996 SC

LINK :- http://www.scribd.com/doc/98082473/POWER-OF-ATTORNEY-HOLDER-ALIENATING-THE-LANDS-IN-THE-NAME-OF-HIS-WIFE-DEFRAUDING-THE-LAND-OWNER-%E2%80%93-FRAUD-UNRAVELS-EVERYTHING-1996-SC

WHEN AGENT WANTS TO SELL PROPERTY BASED ON POWER OF ATTORNEY IT SHOULD HAVE BEEN EXECUTED AND AUTHENTICATED AS DISCLOSED SECTION 33 REGISTRATION ACT 2009 SC
RAJNI TANDON VS DULAL RANJAN GHOSH DASTIDAR & ANR 2009 (11 ) SCR 686 = 2009 (14 ) SCC 782 = 2009 (11 ) JT 666 = 2009 (10 ) SCALE 402

LINK :- http://www.scribd.com/doc/98082405/When-Agent-Wants-to-Sell-Property-Based-on-Power-of-Attorney-It-Should-Have-Been-Executed-and-Authenticated-as-Disclosed-Section-33-Registration-Act-2

Clause (a) of Section 32 specifies that a document can be presented for registration (i) by the person executing the document; (ii) any person claiming under the document presented for registration and (iii) in the case the said document is a copy of a decree or order, any person claiming under the decree or order.

Clause (b) and (c) deal with cases where the document is presented not by any person mentioned in (i), (ii) and (iii) of sub clause (a) but by their agent, representative or assign.

This is so because the use of the words "such person" in clause (b) and (c) can be understood to mean only persons as referred to in (i), (ii) and (iii) above. In so far as clause (c) of Section 32 is concerned, the agents, representative or assigns of the persons referred to in (i), (ii) and (iii) can present the said document for registration only if they are duly authorized by power-of-attorney and executed and authenticated. The words "executed and authenticated in Section 32 (c) would mean the procedure specified in Section 33.

The object of registration is designed to guard against fraud by obtaining a contemporaneous publication and an unimpeachable record of each document. The instant case is one where no allegation of fraud was raised. In view thereof the duty cast on the Registering Officer under Section 32 of the Act was only to satisfy himself that the document was executed by the person by whom it purports to have been signed. The Registrar upon being so satisfied and upon being presented with a document to be registered had to proceed with the registration of the same. ……………….. Where a deed is executed by an agent for a principal and the same agent signs, appears and presents the deed or admits execution before the Registering Officer, that is not a case of presentation under Section 32 (c) of the Act. The provisions of Section 33 will come into play only in cases where presentation is in terms of Section 32 (c) of the Act. In other words, only in cases where the person signing the document cannot present the document before the registering officer and gives a power of attorney to another to present the document that the provisions of Section 33 get attracted. It is only in such a case, that the said power of attorney has to be necessarily executed and authenticated in the manner provided under Section 33 (1) (a) of the Act.

Case Law Reference:

AIR 1915 Nagpur 18 referred to Para 16
AIR 1920 Calcutta 316 referred to Para 16
AIR 1924 Allahabad 148 referred to Para 16
AIR 1938 ALL 170 referred to Para 16
AIR 1960 Punjab 226 referred to Para 16
AIR 1984 Calcutta 297 referred to Para 16
AIR 1958 A.P. 107 referred to Para 17
AIR 1961 Calcutta 540 referred to Para 17
(2006) 9 SCC 591 relied on Para 20
AIR 1950 Bombay 326 referred to Para 23

CONCLUSION:- When a person residing in india where the registration act applies, if he executes GPA to sell his property, in order to have legality it should be executed before Registrar or Subregistrar of the place where he resides. Without such valid GPA, notary GPA is not valid.

DELAY CONDONING – PARTY SEEKING HAS TO SATISFY COURT THAT HE HAD SUFFICIENT CAUSE

noreply@blogger.com (Advocate Sridharababu) — Fri, 22 Jun 2012 19:07:00 +0530

JUSTICE DESAI, D.A., JUSTICE BEG, M. HAMEEDULLAH (CJ) in the case of Sandhya Rani Sarkar vs Sudha Rani Debi And Ors Reported in AIR 1978 SC 537, 1978 SCR (2) 839 It is undoubtedly true that in dealing with the question of condoning the delay under section 5, the party seeking relief has to satisfy the Court that he had sufficient cause for not preferring the appeal or making the application within the prescribed time and this has always been understood to mean that the explanation has to cover the whole period of delay. However, it is not possible to lay down precisely as to what facts or matters would constitute "sufficient cause" under Section 5. But those words should be liberally construed so as to advance substantial justice when no negligence or any inaction or want of bona fides is imputable to a party i.e. the delay in filing an appeal should not have been for reasons which indicate the party's negligence in not taking necessary steps which he would have or should have taken. What would be such necessary steps ;will again depend upon the circumstances of a particular case.

Supreme Court in the case of Collector, Land Acquisition, Anantnag v. Katiji, reported at AIR 1987 SC 1353. Learned counsel for the applicants, after discussing the said decision, laid particular emphasis on the six factors recited in para 3 of the said decision. These six factors are as under :
"1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that the cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and techinical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occassioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalise on technical grounds but because it is capable of removing injustice and is expected to do so."

Supreme Court in the case of Binod Bihari Singh v. Union of India, reported at AIR 1993 SC 1245 are relevant. The observations made in para 10 of the said decision are of far-reaching effect. Their Lordships of the Supreme Court observed that they were not inclined to hold that the delay in presenting the application (the substantive matter) deserves to be condoned on the facts and circumstances of the case. They further observed that in their view it is not at all a fit case where in the anxiety to render justice to a party so that _a just cause is not defeated, a pragmatic view should be taken by the Court in considering the sufficient cause for condonation of delay under Section 5 of the Limitation Act . The contention, that the ignoble plea of bar of limitation sought to be raised by the respondent should not be taken into consideration in order that the just claim of the appellant should not be defeated, was emphatically negatived. Their Lordships further went on to observe, merely by way of an indication, that it may not be desirable for a Government or a public authority to take shelter under the plea of bar of limitation to defeat a just claim of a citizen; but if a claim is barred by limitation and such plea is raised specifically, the Court cannot straightway dismiss the plea simply on the score that such a plea is ignoble. A bar of limitation may be considered even if such plea has not been specifically raised. The principles that the Limitation Act is a statute of repose and a bar to a cause of action in a Court of law which is otherwise lawful and valid, because of undesirable lapse of time as contained in the Limitation Act, has been laid down on well accepted principles of jurisprudence and public policy. Thus, these observations clearly have relevance on two aspects of the present matter. Firstly, that the bar of limitation creates a right in favour of the party which successfully sets up such a bar, and secondly that the extinguishment of the remedy which is otherwise available to a party under law, is enforced on the basis of well accepted principles of jurisprudence and public policy. This decision also establishes yet another principles viz. that where a just cause is to be weighed against shutting out the same on account of the bar of limitation, the latter must prevail. Even a just cause cannot prevail over the bar of limitation.

Supreme Court in the case ofState of Gujarat v. Sayed Mohd. Baquir El. Edroos, reported at AIR 1981 SC 1921. Court while considering the question of condonation of delay on merits, is barred from looking into the merits of the substantive matter, in the filing of which condonation is sought. ….. merits of the substantive matter had no relevance whatsoever when the Court is dealing with the application for condonation of delay.

Supreme Court in the case of Ram Bhawan Singh v. Jagdish, reported at Judgment Today (1990) 3 JT (SC) 704. In our opinion, this decision does not in any manner advance the cause of the applicants inasmuch as the same is a decision entirely on the facts of the case, which is obvious from para 7 of the said decision. The Supreme Court dealt with the question of limitation, and the contention as regards delay, entirely on the facts of the case. On a consideration of the relevant facts, the Supreme Court came to the conclusion that there was no merit in the grounds urged by the appellants (of that case) for getting over the bar of limitation.

WHAT IS SUFFICIENT CAUSE EXPLAINS GUJRATH HIGH COURT

M. B: Shah & Y. B. Bhatt, JJ in the case of Municipal Corporation Of ... vs Voltas Limited And Etc. Etc. Reported in AIR 1995 Guj 29,

1. The phrase 'sufficient cause' as occurring in Section 8 of the Limitation Act pertains to the establishment of the appropriate facts before the Court to which the Court can apply is mind and arrive at a conclusion regarding the sufficiency of the cause or otherwise. In essence, therefore, the phrase 'sufficient cause' is not a question of principle, but is a question of fact. Hence, whether to condone the delay or not depends upon the facts and circumstances of each case as 'sufficient cause' for condonation of delay depends only on the facts placed by the applicants before the Court;
2. The plea, on the, part to the applicants that the delay was caused by 'administrative delay administrative reasons/administrative procedure' (and analogous expressions) is merely an averment in the nature of a plea which by itself and ipso facto does not establish sufficiency of the cause for condonation. Precise factual reasons for the delay within the general ambit of the said phrase must be established and that too to the satisfaction of the Court. Hence, it cannot be held that, because the applicant is a Municipal Corporation or a statutory authority, delay should be condoned even if no reason or I cause for delay in filing appeal is mentioned in the application and mere mention of the phrase 'administrative delay' in the application for condonation of delay is no sufficient cause by any standard;
3. The merits of the substantial case in respect of which condonation is sought cannot over-ride the provisions of Sections 3 and 5 of the Limitation Act and the merits of the case cannot be regarded as the sole factor or a predominant factor while adjudicating upon the sufficiency of the cause for condonation of delay.
4. Whether the delay is for a short period or a long period is of no consequence. If sufficient cause is shown, long delay can be condoned and if no cause is shown, even delay for a short period may not be condoned.
5. The principle in law only is that the Courts are required to take a liberal view while considering the facts constituting the sufficiency of the cause, on the basis of which condonation of delay is sought. This does not necessarily amount to saying that all applications for condonation must be granted. This is necessarily within the discretionary jurisdiction of the Court, and the Court deciding the application for condonation would necessarily exercise its discretion judicially in 'the light of the well established principles, as regardes the appreciation of the relevant facts.

GUIDELINES ON MODE OF PLEADINGS AND DOCUMENTS TO BE PRODUCED FOR CLAIMING POSSESSION RE-STRESSED 2012 SC

noreply@blogger.com (Advocate Sridharababu) — Tue, 1 May 2012 20:15:00 +0530

FULL JUDGMENT

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 that This case demonstrates widely prevalent state of affairs where litigants raise disputes and cause litigation and then obstruct the progress of the case only because they stand to gain by doing so. It is a matter of common experience that the Court’s otherwise scarce resources are spent in dealing with non-deserving cases and unfortunately those who were waiting in the queue for justice in genuine cases usually suffer. This case is a typical example of delayed administration of civil justice in our Courts. A small suit, where the appellant was directed to be evicted from the premises in 1994, took 17 years before the matter was decided by the High Court. Unscrupulous litigants are encouraged to file frivolous cases to take undue advantage of the judicial system. ..... The question often arises as to how we can solve this menace within the frame work of law. ........ The court further observed that "We reiterate the immense importance and relevance of purity of pleadings. The pleadings need to be critically examined by the judicial officers or judges both before issuing the ad interim injunction and/or framing of issues. ....... The entire journey of a judge is to discern the truth from the pleadings, documents and arguments of the parties. Truth is the basis of justice delivery system. This Court in Dalip Singh v. State of U.P. and Others (2010) 2 SCC 114 observed that truth constitutes an integral part of the justice delivery system which was in vogue in pre-independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-independence period has seen drastic changes in our value system. ........... As stated in the preceding paragraphs, the pleadings are foundation of litigation but experience reveals that sufficient attention is not paid to the pleadings and documents by the judicial officers before dealing with the case. It is the bounden duty and obligation of the parties to investigate and satisfy themselves as to the correctness and the authenticity of the matter pleaded................ The pleadings must set-forth sufficient factual details to the extent that it reduces the ability to put forward a false or exaggerated claim or defence. The pleadings must inspire confidence and credibility. If false averments, evasive denials or false denials are introduced, then the Court must carefully look into it while deciding a case and insist that those who approach the Court must approach it with clean hands.................. It is imperative that judges must have complete grip of the facts before they start dealing with the case. That would avoid unnecessary delay in disposal of the cases. ................... Ensuring discovery and production of documents and a proper admission/denial is imperative for deciding civil cases in a proper perspective. In relevant cases, the Courts should encourage interrogatories to be administered. ........ If issues are properly framed, the controversy in the case can be clearly focused and documents can be properly appreciated in that light. The relevant evidence can also be carefully examined. Careful framing of issues also helps in proper examination and cross-examination of witnesses and final arguments in the case. .......... The appellant is also guilty of introducing untenable pleas. The plea of adverse possession which has no foundation or basis in the facts and circumstances of the case was introduced to gain undue benefit. The Court must be cautious in granting relief to a party guilty of deliberately introducing irrelevant and untenable pleas responsible for creating unnecessary confusion by introducing such documents and pleas. These factors must be taken into consideration while granting relief and/or imposing the costs................ False averments of facts and untenable contentions are serious problems faced by our courts. The other problem is that litigants deliberately create confusion by introducing irrelevant and minimally relevant facts and documents. The court cannot reject such claims, defences and pleas at the first look. It may take quite sometime, at times years, before the court is able to see through, discern and reach to the truth. More often than not, they appear attractive at first blush and only on a deeper examination the irrelevance and hollowness of those pleadings and documents come to light. ................... Our courts are usually short of time because of huge pendency of cases and at times the courts arrive at an erroneous conclusion because of false pleas, claims, defences and irrelevant facts. A litigant could deviate from the facts which are liable for all the conclusions. In the journey of discovering the truth, at times, this Court, on later stage, but once discovered, it is the duty of the Court to take appropriate remedial and preventive steps so that no one should derive benefits or advantages by abusing the process of law. The court must effectively discourage fraudulent and dishonest litigants. A serious endeavour has been made as to how the present system can be improved to a large extent. In the case of Maria Margarida Sequeria Fernandes and Others v. Erasmo Jack de Sequeria (Dead) through L.Rs. (2012) 3 SCALE 550 , this Court had laid stress on purity of pleadings in civil cases. We deem it appropriate to set out paras 61 to 79 of that judgment dealing with broad guidelines provided by the Court which are equally relevant in this case:- “61. In civil cases, pleadings are extremely important for ascertaining the title and possession of the property in question. 62. Possession is an incidence of ownership and can be transferred by the owner of an immovable property to another such as in a mortgage or lease. A licensee holds possession on behalf of the owner. 63. Possession is important when there are no title documents and other relevant records before the Court, but, once the documents and records of title come before the Court, it is the title which has to be looked at first and due weightage be given to it. Possession cannot be considered in vacuum. 64. There is a presumption that possession of a person, other than the owner, if at all it is to be called possession, is permissive on behalf of the title-holder. Further, possession of the past is one thing, and the right to remain or continue in future is another thing. It is the latter which is usually more in controversy than the former, and it is the latter which has seen much abuse and misuse before the Courts. 65. A suit can be filed by the title holder for recovery of possession or it can be one for ejectment of an ex-lessee or for mandatory injunction requiring a person to remove himself or it can be a suit under Section 6 of the Specific Relief Act to recover possession. 66. A title suit for possession has two parts – first, adjudication of title, and second, adjudication of possession. If the title dispute is removed and the title is established in one or the other, then, in effect, it becomes a suit for ejectment where the defendant must plead and prove why he must not be ejected. 67. In an action for recovery of possession of immovable property, or for protecting possession thereof, upon the legal title to the property being established, the possession or occupation of the property by a person other than the holder of the legal title will be presumed to have been under and in subordination to the legal title, and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right. To put it differently, wherever pleadings and documents establish title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession. 68. In order to do justice, it is necessary to direct the parties to give all details of pleadings with particulars. Once the title is prima facie established, it is for the person who is resisting the title holder’s claim to possession to plead with sufficient particularity on the basis of his claim to remain in possession and place before the Court all such documents as in the ordinary course of human affairs are expected to be there. Only if the pleadings are sufficient, would an issue be struck and the matter sent to trial, where the onus will be on him to prove the averred facts and documents. 69. The person averring a right to continue in possession shall, as far as possible, give a detailed particularized specific pleading along with documents to support his claim and details of subsequent conduct which establish his possession. 70. It would be imperative that one who claims possession must give all such details as enumerated hereunder. They are only illustrative and not exhaustive. a) who is or are the owner or owners of the property; b) title of the property; c) who is in possession of the title documents d) identity of the claimant or claimants to possession; e) the date of entry into possession; f) how he came into possession - whether he purchased the property or inherited or got the same in gift or by any other method; g) in case he purchased the property, what is the consideration; if he has taken it on rent, how much is the rent, license fee or lease amount; h) if taken on rent, license fee or lease - then insist on rent deed, license deed or lease deed; i) who are the persons in possession/occupation or otherwise living with him, in what capacity; as family members, friends or servants etc.; j) subsequent conduct, i.e., any event which might have extinguished his entitlement to possession or caused shift therein; and k) basis of his claim that not to deliver possession but continue in possession. 71. Apart from these pleadings, the Court must insist on documentary proof in support of the pleadings. All those documents would be relevant which come into existence after the transfer of title or possession or the encumbrance as is claimed. While dealing with the civil suits, at the threshold, the Court must carefully and critically examine pleadings and documents. 72. The Court will examine the pleadings for specificity as also the supporting material for sufficiency and then pass appropriate orders. 73. Discovery and production of documents and answers to interrogatories, together with an approach of considering what in ordinary course of human affairs is more likely to have been the probability, will prevent many a false claims or defences from sailing beyond the stage for issues. 74. If the pleadings do not give sufficient details, they will not raise an issue, and the Court can reject the claim or pass a decree on admission. 75. On vague pleadings, no issue arises. Only when he so establishes, does the question of framing an issue arise. Framing of issues is an extremely important stage in a civil trial. Judges are expected to carefully examine the pleadings and documents before framing of issues in a given case. 76. In pleadings, whenever a person claims right to continue in possession of another property, it becomes necessary for him to plead with specificity about who was the owner, on what date did he enter into possession, in what capacity and in what manner did he conduct his relationship with the owner over the years till the date of suit. He must also give details on what basis he is claiming a right to continue in possession. Until the pleadings raise a sufficient case, they will not constitute sufficient claim of defence. 77. XXXX XXXX XXXX 78. The Court must ensure that pleadings of a case must contain sufficient particulars. Insistence on details reduces the ability to put forward a non-existent or false claim or defence. 79. In dealing with a civil case, pleadings, title documents and relevant records play a vital role and that would ordinarily decide the fate of the case.”

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

READ FULL JUDGMENT

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.

BENAMI PURCHASE OF PROPERTY IN WIFES NAME AND ITS CONSEQUENCE UNDER LAW 2008 SC

noreply@blogger.com (Advocate Sridharababu) — Mon, 23 Apr 2012 22:03:00 +0530

Binapani Paul vs Pratima Ghosh & Ors AIR 2008 SC 543, Acceptance of acknowledgement of title comes in various forms. It may be before the transaction is entered into and may be subsequent thereto. The court has to gather the intention of the concerned parties on the basis of the circumstances surrounding the transaction and not from the conduct of the parties only at a subsequent stage. 1.1. The father had no apparent motive for entering into a benami transaction. The eagerness of the father to purchase the suit property can be seen from the evidences on record. If the father intended to have a benami transaction, he would not get his wife described as daughter of somebody instead of his own wife. Such unusual step on the part of the father leads to the conclusion that he intended to purchase the suit property for the benefit of his wife. 1.2. The execution of a power of attorney may not be of importance but then the backdrop of events and the manner in which the power of attorney was drafted as well as the very fact that the father himself became an attesting witness thereto plays a significant role. If the father intended to enter into a benami transaction, his intention would have been clear and unambiguous or the same would have been explicit from the surrounding circumstances which were not. 1.3. Acceptance of acknowledgment of title may be before the transaction is entered into and may be subsequent thereto. The Court has to gather the intention of the concerned parties on the basis of the circumstances surrounding the transaction and not from the conduct of the parties only at a subsequent stage. Whether the father intended to enter into a benami transaction in the name of his wife, either surrounding circumstances leading to the inference that he had no such intention must be gathered from the totality of the circumstances both preceding and subsequent to the transaction in question or if the intention of the person providing for the fund for purchasing the property has a major role to play, how it was given also assumes some significance. On evidence on record, the suit property was mutated in her name. When a mutation takes place with the knowledge of the husband, although not conclusive, would provide for a link in the chain. 1.4. The true character of a transaction is governed by the intention of the person who contributed the purchase money and the question as to what his intention was has to be decided by four factors viz. surrounding circumstances, relationship of the parties, motives governing their action in bringing about the transaction and their subsequent conduct. All he four factors have to be considered cumulatively. The primary motive of the transaction was security for the wife and seven minor daughters as they were not protected by the law as then prevailing. The legal position obtaining at the relevant time may be considered to be a relevant factor for proving peculiar circumstances existing and the conduct of the father is demonstrated by his having signed the registered power of attorney. 1.4. The fact that the son allowed the order of mutation to attain finality would be a pointer to suggest that despite such bitter relationship between the parties, he accepted the same more so, when mutation of one's name confers upon him a variety of rights and obligations. Respondent no. 1 did not examine herself as a witness. An adverse inference should be drawn against her. If ouster is to be pleaded, the title has to be acknowledged. Once such a plea is taken, irrespective of the fact that as to whether any other plea is raised or not, conduct of the parties would be material. If, therefore, plea of ouster is not established, a fortiori the title of other co-sharers must be held to have been accepted. The son could not have turned around and challenged the title of the appellant and other respondents. 1.5. The suit property was purchased before the Hindu Women's Right to Property Act, 1937 came into force. Hence the Act has no application to the present case. 1.6. The Dayabagha School of Hindu law does not prohibit gift of immoveable property in favour of his wife by her husband. The same has nothing to do with the benami transaction of the property and to determine the nature of the transaction. Burden of proof as regards the benami nature of transaction was also on the respondent. Court in Valliammal (D) By LRS. v. Subramaniam and Others [(2004) 7 SCC 233] wherein a Division Bench of this Court held: "13. This Court in a number of judgments has held that it is well established that burden of proving that a particular sale is benami lies on the person who alleges the transaction to be a benami. The essence of a benami transaction is the intention of the party or parties concerned and often, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises, as a substitute for proof.

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.