Karnataka & Ors Vs. K.V. Khader  INSC
65 (28 February 1990)
M.H. Kania, M.H. Sahai, R.M. (J)
1990 AIR 1225 1990 SCR (1) 727 1990 SCC (2) 271 JT 1990 (2) 91 1990 SCALE
Land Revenue Regulation, 1899--Regulations 29 and 30-Records of
Rights--Change--Permissible only by order/direction of Chief Commissioner.
250 acres of wooded evergreen land was given to the ancestors of Respondent by
grant over a hundred years ago and a patta in respect thereof granting the
aforesaid lands was given to them in 1912 and in that patta there was an
endorsement reading "redeemed coffee sagawall malai" indicating that
the trees on the land had been paid for. In 1918, it appears that pursuant to
an order passed by the Commissioner, the said entry had been altered to "unre-
deemed" showing that the trees had not been paid for. The respondent
applied for permission of appellant No. 1 to cut and remove some of the trees
from the land granted to his ancestors. The said application was rejected on
the ground that the seigniorage payable on the value of the timber standing on
the land granted had not been paid and hence, before the trees could be cut and
the timber removed, seign- iorage in respect of the trees had to be paid. The
respond- ent thereupon filed a suit in the Court of Civil Judge, Madakeri for a
declaration that the said land granted to him was redeemed in tenure and hence
no payment of seigniorage could be demanded from him. The respondent claimed
that the alteration of the relevant entry from 'redeemed' to 'unre- deemed' in
the record of rights pertaining to the lands in question was made under orders
of the Commissioner and not of the Chief Commissioner as required under the
Regulation and hence the alteration was void having been directed to be made by
an unauthorised person. The trial Court decreed the suit and granted the
declaration. The appellants preferred an appeal against the said decision to
the District Court but the appeal failed. Appellant's further appeal to the
High Court of Karnataka was also dismissed. Hence this appeal by special leave.
the appeal, this Court,
The suit in the instant case were not barred as they did not question the right
of the Government to levy seigniorage nor the liabi- 728 lity of the plaintiffs
to pay but the plea was that seign- iorage had already been levied and paid.
[731E] Identical orders changing the word 'redeemed' to the word 'unredeemed'
in the relevant entries have been unifor- mally made in a large number of cases
which would suggest that these changes were made pursuant to a special revision
of the record of rights in respect of a number of properties and was not an
individual change in a particular entry in the record of rights of a particular
plot of land. [731G-H] Under regulation 29 of the Coorg Regulation, this could
have been done only pursuant to a direction or order of the Chief Commissioner.
but no such order or direction of a notification to that effect appears to be
on the record. The result is that the said change must be held to be unautho- rised
in law, void and of no legal effect. [732A-B] State of Mysore v. Kainthaje Thimmanna
Enat and Ors., (1968) 2 Mysore Law Journal 227--referred to.
APPELLATE JURISDICTION: Civil Appeal No. 2763 of 1987.
the Judgment and Order dated 5.2. 1987 of the Karnataka High Court in R.S.A.
and P.R. Ramasesh for the Appellant.
Y.S. Chitale and E.M.S.Anam for the Respondent.
Judgment of the Court was delivered by KANIA, J. This is an appeal by special
leave against the judgment and order of a learned Single Judge of the Karnata-
ka High Court in Regular Second Appeal No. 17 of 1987 filed in the said High
are generally in agreement with the reasoning and conclusion in the judgment of
the Karnataka High Court relied upon by the learned Single Judge in the
impugned judgment, the appeal can be disposed of shortly.
250 acres of wooded evergreen land in the district of Coorg was given by a grant
to the ancestors of the re- spondent over a hundred years ago. The said
district was a Scheduled district under the 729 control of the Governor-General
of India. The terms of the said grant which is very old are not available but
there is no dispute that the said land was granted to the ancestors of the
On November 1, 1899 Regulation No. 1 of 1899, called
the Coorg Land and Revenue Regulation, 1899 came into force in the
district of Coorg. We propose to refer to the said Regulation as the Coorg
Regulation. It applied to the entire territories administered by the Chief
Commissioner of Coorg.
at this stage take a brief note of some of the rele- vant provisions of the Coorg
Regulation as they stood at the time relevant for the purpose of this appeal.
The Coorg Regulation was enacted in order to amend and declare the law in force
in Coorg in respect of the land and land revenue.
4 of the Coorg Regulation prescribes the classes of Revenue Officers. One of
these is the Chief Commissioner and one other is the Revenue Officer. Chapter
VI of the Coorg Regulation deals with the records of rights and annual records.
Regulation 29 in this Chapter provides that there shall be a record of rights
for every estate. Clause (2) of Regulation 29 states that when it appears to
the Chief Commissioner that a record of rights for an estate does not exist or
that the existing record of rights for an estate requires special revision, the
Chief Commissioner shall by notification direct that a record of rights be made
or that the record of rights be specially revised, as the case may be.
Regulation 30 inter alia provides that the nature and extent of the interests
of the landholders, tenants or assigness of land revenue in the estate shall be
stated in the record of rights. Regulation 35 deals with the restric- tions on
variations of entries in records and, generally speaking, provides that entries
in records-of-rights or annual records cannot be varied except as provided in
clauses (a) to (c) 'thereof. Clause (a) of Regulation 35, the only possible
relevant clause for the purposes of this appeal, provides that entries can be
varied in accordance with the facts admitted of found by inquiry under
Regulation 34 of the Coorg Regulation. Regulation 40 provides that any person
who is aggrieved as to any right of which he is in possession by an entry in a
record of rights can file a declaratory suit to establish his right. Shri
Gustav Hallet, Settlement Officer, Coorg made his report by way of propos- als
for Land Revenue Resettlement of the Province of Coorg, on February 18, 1910 to
the Secretary to the Chief Commis- sioner of Coorg. The contents of the report
shows that it was made after examining the revenue settlements made earli- er.
Pursuant to the said report a patta was given to the ancestors of the
respondent in 1912 granting the aforesaid lands and in that patta there was an
endorsement reading "redeemed coffee sagawali malai". The word "sagawali"
730 means cultivation and the word "malai" means "hill". It
is common ground that the word "redeemed" used in this entry would
show that the price of the standing timber on the said land had been paid by
the grantee by the time when the patta was made. It may be mentioned here that
in the settlement in Coorg where the land was granted with the endorsement
"unredeemed", it meant that the standing timber had not been paid for
and the grantee would have to pay for the same if the grantee wanted to cut the
trees and remove the timber from the land. In 19 18 it appears that pursuant to
an order made by the Commissioner the said entry has been altered to
"unredeemed" showing that the trees had not been paid for.
several years no problem arose because it appears that there was no question
arose of cutting any trees, but later, in recent years, the respondent applied
for permis- sion of appellant No. 1 to cut and remove some of the trees from
the land granted to the respondent. The said applica- tion was rejected on the
ground that the seigniorage payable on the value of the timber standing on the
land granted had not been paid and hence, before the trees could be cut and the
timber removed, seigniorage in respect of the trees would have to be paid. The
respondent filed a suit in the Court of Civil Judge, Madakeri for a declaration
that the said land granted to him was redeemed in tenure and hence no payment
of seigniorage could be demaned in respect of the trees to be cut and removed.
In that suit, the respondent inter alia claimed that the alteration of the
relevant entry from "redeemed" to "unredeemed" in the
record of rights pertaining to the said lands, made pursuant to the order of
the Commissioner, was void as the procedure prescribed by law had not been
complied with the alteration in the entry not having been directed to be made
by an authorised person.
Trial Court decreed the said suit and granted the decla- ration. The appellants
preferred an appeal against the said decision to the District Court but the
said appeal was dismissed. The appellants then preferred a Second Appeal to the
High Court of Karnataka which dismissed the same as set out earlier.
find that the question which has arisen in this appeal arose before a Division
Bench of the Mysore High Court in State of Mysore v. Kainthaje Thimmanna Enat
and Others, (1968) 2 Mysore Law. Journal 227. It is common ground that the
facts in that case are in pari materia with the facts in the present case. It
was held by the Division Bench that the presumption that the entries relating
to the change of tenure should be taken to have been lawfully and regularly
made in the course of the performance of official duties and in due compliance
with 731 the procedure enjoined by law could not be drawn in that case. If the
order in question for revision of the record of rights had been one that was
made in exercise of the power under Regulation 29 of the Coorg Regulation,
which is the provision which should have been resorted to for the purpose of
preparation and revision of record of rights, the order should have been issued
and published by the Chief Commis- sioner of Coorg by notification and no such
notification or publication of the same in the official gazette had been shown
to the Court. The order for correcting the entry was issued by the Commissioner
and not by the Chief Commissioner as enjoined by Regulation 29 of the Coorg
Regulation and there was no reference on the record to any such notifica- tion
having been issued under Regulation 29. Moreover, it was not apparent who had
made the alteration, altering the word "redeemed" to
"unredeemed", in the Jambandi Register.
further held that under Regulation 39, the presump- tion as regards the truth
of the entries arises only when the entries in the record of rights have been
made in ac- cordance with law for the time being in force and if the provisions
of the relevant rules had been complied with. In the case before the Division
Bench, that presumption could not be drawn, because in the absence of a
notification issued by the Chief Commissioner, it was not possible to predicate
whether the procedure enjoined by the rules had been followed at that time of
effecting the change in the entry. It was held that the suits in question were
not barred by section 145 (vi) and (viii) of the Coorg Regula- tion as the suits
did not question the right of the Govern- ment to levy seigniorage nor the
liability of the plaintiffs to pay but the plea was that seigniOrage had
already been levied and paid. The suits were not barred by time under Article
14 of the Limitation Act, 1908 as no relief was prayed for in the nature of
setting aside of an order of a Government Officer but the claim made for a
declaration that the impugned order altering the entry was void and non est and
hence, liable to be ignored. We agree with these conclu- sions which were
upheld on appeal by the District Court and the High Court.
would, however, like to give an additional ground which supports the conclusion
that the said change in the entry from the word "redeemed" to
"unredeemed" was not made according to law. We find from a number of
judgments that identical orders changing the word "redeemed" to the
word "unredeemed" in the relevant entries have been uniformally made
in a large number of cases which would suggest that these changes were made pursuant
to a special revision of the record of rights in respect of a number of
properties and was not an individual change in a particular entry in the record
of rights of a 732 particular plot of land. Under Regulation 29 of the Coorg
Regulation, this could have been done only pursuant to a direction or order of
the Chief Commissioner but no such order or direction or a notification to that
effect appears to be on the record. The result is that the said change must be
held to be unauthorised in law void and of no legal effect. In view of what is
set out earlier, a detailed discussion regarding this contention is not called
for. We may also point out that the same view regarding a similar change of an
entry in the record of rights was taken by a learned Single Judge of the
Karnataka High Court in Regular Second Appeals Nos. 693 and 694 of 1977.
Petitions for special leave being Special Leave Petitions Nos. 38 12-13 of 1985
were preferred by the State of Karnataka against the said decision and the said
petitions for special leave were dismissed summarily by this Court on 10th
March, 1986. In these circumstances, the only thing which surprises is that the
State has again chosen to reagitate the same question before this court
probably only because large stakes are involved.
opinion, there is no merit in the appeal and the same is dismissed with costs.