Arijit Pasayat, J.
1. Challenge in these appeals is to the judgment of a Division
Bench of the Karnataka High Court dismissing the writ appeal filed under
Section 4 of the Karnataka High Court Act ,1979 (in short the High Court
Act ). Challenge in the appeals was to the judgment of the learned
Single Judge of the Karnataka High Court.
Background facts in a nutshell
are as follows:
Eight acres of land in Survey No.59 were granted to two persons namely
Rangappa and Nagappa sons of Kariyappa. According to the appellants, the
said Nagappa and Rangappa formed a joint family with one Budappa and in
a partition, out of eight acres of joint family lands, five acres were
given to Nagappa and three acres were given to Budappa. The said Budappa
sold three acres of land to one Thippreeranna by registered sale deed
dated 3.2.1965 and remaining five acres of Nagappa were acquired by the
vendee in the Court auction on 15.8.1966. Aforesaid Thippreeranna sold
eight acres of land under the registered sale deed dated 23.2.1981 in
favour of Devraj and the appellants herein are his legal heirs. The
Karnataka Schedule Castes and Schedule Tribes (Prohibition of Transfer
of Certain Lands) Act, 1979 (in short the Act ) came into force with
effect from 1.1.1979. One Rangaswamy claiming to be the son of grantee
Rangappa and one Sanna Karriyamma claiming to be the legal
representative of Nagappa filed application for declaration that the
sale was null and void and restoration of possession from the purchaser
before the Assistant Commissioner Chitradurga Sub Division.
These applications were clubbed and
enquiry was conducted. The Assistant Commissioner came to hold that when
the grant was in favour of general category, the allotment was in Form-I
and when it is in the name of persons belonging to the Schedule Castes
and Schedule Tribes, it is in Form II.
3. It was the stand of the
appellants that the grant was made in Form I and, therefore, the land
will not come within the purview of the depressed class category and
would be under the general category. Therefore, it was submitted that
since they were in possession for more than 12 years from the date the
Act came into force they have perfected the title by adverse possession.
Legal representatives of the grantee filed appeal under Section 5A of
the Act before the Deputy Commissioner. The said Authority allowed the
appeal and set aside the order of the Assistant Commissioner holding
that in these cases grant has been made during 1957 under the Land
Revenue Code and the right of possession in respect of the grantee is
limited. It was noticed that there was a condition not to alienate the
land in question for a period of 10 years. In these cases the alienation
took place much before completion of the ten years period. Since the
land was alienated during the non-alienable period, the land vested with
the Government. It was also noticed that the period would be 30 years
and not 12 years as contented.
4. The matter was challenged by the
appellants before the learned Single Judge who dismissed the writ
petition but inter alia directed as follows:
Whether respondents 2 & 3 have been
the legal heirs of the grantee either as sons or adopted sons or in any
manner under the law. That question has yet to be decided by the
Assistant Commissioner when he has to restore the land to the grantee or
his heirs in pursuance of the appellate order. Before actual delivering
and restoring possession, the Assistant Commissioner should examine this
question and if grantee or heirs are found in possession, the possession
has to be restored to them. But if it is not practicable and possible to
restore possession of the granted land to the grantee or his heirs under
Section 5(1)(b) later part will automatically stand vested in the
5. The matter was carried in writ
appeal. As noted above, the same was dismissed by the impugned order.
6. The stand taken before the High
Court essentially was that the land was granted under the non-depressed
class category and, therefore, the period is 12 years to substantiate
the plea about adverse possession.
7. Learned counsel for the
respondents on the other hand supported the orders passed by the Deputy
Commissioner and the High Court which held that the appellants were not
the first purchasers, they in fact are the second purchaser, and in both
Forms 1and Form 2 the non-alienable period is the same.
8. Above being the position there is
no merit in these appeals. Similar issues came up for consideration
before this Court in Guntaiah and Ors. v. Hambamma and Ors. [2005 (6)
SCC 228]. In paragraph 8 of the judgment, it was inter alia observed as
The finding of the Full Bench of the
Karnataka High Court is that if the grant is made under Rule 43-J, there
could not have been any condition restricting the alienation and if at
all there were any such conditions they are null and void. This view has
been taken for the reason that conditions restricting alienations are
given under clause (4) of Rule 43-G and these provisions would apply to
grant of lands made under the preceding rules and not apply to Rule 43-J
which comes after Rule 43-G of the Rules of 1960. This view has been
taken based on the title/marginal note of Rule 43-G. The Full Bench was
also of the view that under Rule 43-J, it is not stated that there shall
be any conditions prohibiting alienation. Therefore, the Court held that
Authorities were not empowered to impose any such conditions.
9. In view of what has been stated
above the inevitable conclusion is that the appeals are without merit,
deserve dismissal, which we direct. There will be no order as to costs.
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