D.N. Venkatarayappa
& ANR Vs. State of Karnataka & Ors [1997] INSC 588 (9 July 1997)
K.
RAMASWAMY, D.P. WADHWA
ACT:
HEADNOTE:
O R D
E R Leave granted.
This
appeal by special leave arises from the judgment of the Division Bench of the
Karnataka High Court, made on February 21, 1997,
in Writ Appeal No. 7345/96.
The
petitioners, admittedly, had purchased the property in the years 1962-63 and
1963-64 from the original allottees. The Government have allotted those lands
as per Saguvali Chit containing prohibition of alienation of the land.
Subsequently, the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition
of Transfer of Certain Lands) Act, 197 was enacted totally prohibiting the
alienation up to a particular period. The proceedings were initiated against
the petitioners for ejectment under the said Act.
All
the authorities have concurrently held that the alienation in favour of the
petitioners was in violation of the above Rules and the said Act and hence the
sales are voidable. When the case had come up before this Court, this Court
while upholding the constitutionality of the Act directed the authorities to go
into the question of adverse possession raised by the petitioners. The learned
Single Judge has extracted the pleadings on adverse possession of the
petitioners. Therein, the High Court had pointed out that there is no express
plea of adverse possession except stating that after the purchase of the lands
made by them, they remained in possession and enjoyment of the lands. What
requires to be pleaded and proved is that the purchaser disclaimed his title
under which he came into possession, set up adverse possession with necessary
animus of aserting open and hostile title to the knowledge of the true owner
and the later allowed the former, without any let or hindrance, to remain in
possession and enjoyment of the property adverse to the interest of the true
owner until the expiry of the prescribed period. The classical requirement of
adverse possession is that it should be nec vi, clam, aut precario. After
considering the entire case law in that behalf, the learned Single Judge has
held thus:
"The
contention raised by the petitioners that they have perfected their title in
respect of the lands in question by adverse possession, has to fail on two counts.
Firstly, the crucial facts, which constitute adverse possession have not been
pleaded. The pleadings extracted above, in my view, will not constitute the
crucial facts necessary to claim title by adverse possession. It is not stated
by the petitioners in their pleadings that the petitioners at any point of time
claimed or asserted their title hostile or adverse to the title of the original
grantees/their vendors. In my view, mere uninterrupted and continuous
possession without the animus to continue in possession hostile to the rights
of the real owner will not constitute adverse possession in law.
In
case of Lakshmi Reddy (supra) relied upon by Sri Narayana Rao at Paragraph 7 of
the judgment, the Supreme Court, following the decision of the Privy Council in
State for India vs. Debendra Lal Khan (AIR 1934 PC 23), has observed that the
ordinary classical requirement of adverse possession is that it should be nec
vi nec clam nec precario and the possession required must be adequate in
continuity, in publicity and in extent to show that it is possession adverse to
the competitor.
In the
case of State of West
Bengal vs. Dalhousie
Institute Society (AIR 1970 SC 1778), the Supreme Court, on the basis of the
materials on record, which were referred to by the High Court, took the view
that in the said case, the respondent had established his title to the site in
question by adverse possession. Further, the said decision proceeds on the
basis that the grant made by the Government was invalid in law. That is not the
position in the present case. The alienation in question was only voidable. The
petitioners came into possession of the lands in question by virtue of the sale
deeds which are only voidable in law. Therefore, they have come into possession
by virtue of the derivative title as observed by the Supreme Court in the case
of Chandevarappa (supra). Further, in the case of Kshitish Chandra (supra), the
observation made by the Supreme Court at paragraph 8 of the judgment relied
upon by Sri Narayana Rao in support of his contention that the only requirement
of law to claim title by adverse possession is that the possession must be open
and without any attempt at concealment and it is not necessary that the
possession must be so effective so as to bring it to the specific knowledge of
the owner is concerned, I am of the view that the said observation must be
understood with reference to the observations made in Paragraph-7 of the
judgment. At paragraph-7 of the Judgment, the Supreme Court has observed thus:
"7...
For instance, one of the most important facts which clearly proved adverse
possession was that the plaintiff had let out the land for cultivatory purposes
and used it himself from time to time without any protest from the defendant.
During the period of 45 years, no serious attempt was made by the municipality
to evict the plaintiff knowing full well that he was asserting hostile titled
against the municipality in respect of the land." Further, this Court, in
the case of DANAPPA REVAPPA KOLLI VS.
GURUPADAPPA
KALLAPPA PATTANA SHETTI (ILR 1990 Karnataka 610), while referring to the
decision of the Supreme Court in Kshitish Chandra's case (supra), relied upon
by Sri Narayana Rao in support of the plea of adverse possession, has observed
that apart from that actual and continuous possession which are among other
ingredients of adverse possession, there should be necessary animus on the part
of the person who intends to perfect this title by adverse possession. The observations
made in the said decision reads thus:
"5.
... Apart from actual and continuous possession which are among other
ingredients of adverse possession, there should be necessary animus on the part
of the person who intends to perfect his title by adverse possession. A person
who under the bona fide belief thinks that the property belongs to him and as
such he has been in possession, such possession cannot at all the adverse
possession because it lack necessary animus for perfecting title by adverse
possession." Therefore, it is clear that one of the important ingredients
to claim adverse possession is that the person who claims adverse possession
must have set up title hostile to the title of the true owner. Therefore, I am
of the view that none of the decisions relied upon by Sri Narayana Rao in support
of the plea of adverse possession set up by the petitioners, is of any
assistance to the petitioners.
Further,
admittedly, there is not even a whisper in the evidence of the first petitioner
with regard to the claim of adverse possession set up by the petitioners. It is
not stated by the petitioners that they have been in continuous and
uninterrupted possession of the lands in question. What is stated by the
petitioners, in substance, is that they came into possession of the lands in
question by virtue of the sale deeds executed by the original grantees. The
Supreme Court, in paragraph 11 of the decision in Chandevarappa's case (supra),
has observed thus:
"11.
The question then is whether the appellant has perfected his title by adverse
possession. It is seen that is contention was raised before the Assistant
Commissioner that the appellant having remained in possession from 1968, he
perfected his title by adverse possession. But, the crucial facts to constitute
adverse possession have not been pleaded. Admittedly, the appellant came into
possession by a derivative title from the original grantee. It is seen that the
original grantee has no right to alienate the land. Therefore, having come into
possession under colour of title from original grantee, if the appellant
intends to plead adverse possession as against the State, he must disclaim his
title and plead his hostile and that the State had not taken any action thereon
within the prescribed period. Thereby, the appellant's possession would become
adverse. No such stand was taken nor evidence has been adduced in this behalf.
The counsel in fairness, despite his research, is unable to bring to our notice
any such plea having been taken by the appellant." Therefore, in the
absence of crucial pleadings, which constitute adverse possession and evidence
to show that the petitioners have been in continuous and uninterrupted
possession of the lands in question claiming right, title and interest in the
lands in question hostile to the right, title and interest of the original
grantees, the petitioners cannot claim that they have perfected their title by
adverse possession and, therefore, the Act does not apply as laid down by the
Supreme Court in Manchegowda's case (supra).
The
law laid down by the Supreme Court in Chandevarappa's case (supra) fully
applies to the facts of the present case. In the said case, while considering
the claim of adverse possession the purchaser of a granted land from the
original grantee, the Supreme Court has observed that the person, who comes
into possession under colour of title from the original grantee if he intends
to claim adverse possession as against State, must disclaim his title and plead
his hostile claim to the knowledge of the State and the State had not taken any
action thereon within the prescribed period. It is also relevant to point out
that sub- section (3) of Section 5 of the Act provides that where a granted
land is in possession of a person, other than the original grantee of his legal
heir, it shall be presumed, until the contrary is proved, that such person has
acquired the land by a transfer, which is null and void under the provisions of
sub- section (1) of Section 4. Since I have negativated the contention of Sri Narayana
Rao that the original grantees are not Scheduled Castes, it follows that the
lands in question are granted lands within the meaning of clause (b) of sub-
section (1) of Section 3 of the Act. Therefore, the burden is on the
petitioners, who had admittedly come into possession of the lands in question,
to establish that they have acquired title to the lands in question by a
transfer, which is not null and void under the provisions of sub-section (21)
of Section 4 of the Act. In the instant case, the petitioners have failed to
discharge the said burden. On this ground also, the petition should fail.
Secondly, the grants made in favour of the original grantees are admittedly
free grants. The Rule governing the grant prohibited alienation of the lands in
question permanently. The lands in question were granted to Scheduled Caste
person taking into account their social backgrounds, poverty, illiteracy and
their inherent weakness from being exploited by the affluent section of the
society. Under these circumstances, the conditions were imposed that the grantees
should not alienate the lands granted to them, Sections 66A and 66B of the Land
Revenue Code authorise the State of resume the land for violation of the terms
of the grant. Therefore, if the terms of the grants, which are hedged with
conditions, and the class of persons to whom the lands are granted, are taken
into account and considered, it is not possible to accept the contention of the
learned Counsel for the petitioners that the title in the lands had passed
absolutely to the grantees.
I am
of the view that the title to the lands continued to remain in the State and
what has been transferred tot he grantees is the right to continue to be in
possession of the lands granted to them and enjoy the same in perpetuity
subject to the condition that they do not violate the conditions of the grant.
This view of mine is supported by the Division Bench decision of this Court in
the case of Rudrappa vs. Special Deputy Commissioner (Writ Appeal No. 1210/1987
decided on 17.6.1996), wherein in Paragraph-3 of the judgment, the Division
Bench of this Court, while considering similar grants, has taken the view that
the grantee was not given absolute title in respect of the land granted. The
relevant portion of the judgment at Paragraph-8, reads as follows:
"8.
...It is clear from the terms of the grant that the appellant's predecessor in
title, the grantee could not alienate the land for certain period and if the
land was alienated, it was open to the Government to cancel the grant and
resume the land in question. If the grant was hedged in with several conditions
of this nature, the same cannot be said to be absolute moreover, it must be
noticed that the grant was made at an upset price. In the circumstances,
proceedings initiated by the respondents cannot be stated to be barred by
limitation or is it possible to sustain the plea of adverse possession raised
on behalf of the appellant." In that view, it was held that the title of
the land in question has not been absolutely granted to the petitioners.
Their
title by adverse possession against State was for a period over 30 years prior
to the date of coming into force of the Act. The petitioners failed to prove
their claim for adverse possession. This finding was upheld by the Division
Bench in paragraph 3 of its judgment thus:
"It
is no doubt true that when the grant of land is made, depending on the terms
thereof, the land may vest in the grantee with full right, but if the terms of
the terms of grant itself spells out certain conditions which restrict the
rights that are available in respect of the land which had been granted, the
fine-tuned arguments addressed by the learned counsel for the appellants would
pale into in significance for admittedly the title is clogged with the
resumption of land in the event of violation of the terms of grant and would
necessarily mean that the grantee cannot give a better title than what he had
to be purchaser and that title has the burden of non-alienation either for a
particular period or for all period to come. If any sale is effected contrary
to those provision, the same would enable the authorities to resume the lands
in question.
Thus,
the terms of grant itself cannot be understood to be absolute right. Such title
necessarily cuts down the capacity or the power to alienate the lands.
Therefore, it is unnecessary to refer to the various decisions relied upon by
the learned counsel for the appellants in this regard for this aspect did not
arise for consideration much less considered in the foresaid decisions. The
context in which those provisions were interpreted were only cases of simple
grants unhindered by the enactment like the one with which we are concerned
presently. In such cases what rights would flow or arise are entirely
different. The Act clearly sets out that any transfer or grant of land made
either before or the commencement of the Act in contravention of the terms of
grant of such land, would be null, void and no right, title or interest in such
land shall be conveyed nor deemed to have ever been conveyed by such transfer.
When
the provisions of the Act clearly spell out to destroy such transactions to
argue that the parties concerned had clear title fully in respect of the same
would not stand to reason.
5. The
learned counsel, submitted that in view of the decision in ILR 1994 Kar. 1839
(SC) K.T. HUTCHEGOWDA VS. DEPUTY COMMISSIONER for the purpose of determining
whether the period of limitation is 12 years or 30 years, each case has to be
examined on its merits and if the grant had been made in absolute terms, the
land would vest in the transferer and he would have perfected his title by
principles of adverse possession. But, subsequently, the Supreme Court in a
later decision in R. CHANDEVARAPPA & OTHERS VS. STATE OF KARNATAKA &
OTHERS - 1995 (7) JT 93 (SC) - have explained that in claiming adverse
possession certain pleas have to be made such as when there is a derivative
title as in the present case, if the appellants intend to plead adverse
possession as against the State, they must disclaim their title and plead this
hostile claim to the knowledge of the State and that the State had not taken
any action within the prescribed period. It is only in those circumstances the
appellants' possession would become adverse.
There
is no material to that effect in the present case. Therefore, we are of the
view that there is no substance in any of the contentions advanced on behalf of
the appellants." Here, in the present case, when alienation is altogether
prohibited, question of obtaining permission for alienation is not at all contemplated.
When under the law alienation cannot be effected at all during the relevant
period, it was impossible for the alienor to alienate the same. Thus the alienee
will not derive any title.
If at
all be holds the land, he holds the same adverse to the alienor and not with
reference to the State. That was the position considered by the Supreme Court
in Chandeveerappa's case as well as in Civil Appeal No. 11933/1996 - Papaiah
vs. State of Karnataka & Others. The Supreme Court in Papaiah's case
noticed the scope of the enactment and found that the same has been enacted in
terms of the preamble of the Constitution to provide economic justice to the
Scheduled Castes/Scheduled Tribes and other weaker sections of the society and
to prevent their exploitation in terms of Articles 46 of the Constitution. It
is also noticed that under Article 39(b) of the Constitution, the State is
enjoined to distribute its largesse - in the present case the land - to
sub-serve the public good. The assignment of land having been made in
furtherance of this objective, any alienation in its contravention would not
only be in violation of a Constitutional Policy but also opposed to public
policy under Section 23 of the Contract Act.
Therefore,
the Supreme Court pointed out that any alienation made in violation of the
terms of grant is void an the alieness do not get any valid title or interest thereunder.
In Papaiah's case the contention was that the alinee had obtained the land by
way of sale in 1958 long prior to the Act coming into force and thereby he had
perfected his title by adverse possession. The Supreme Court noticing the
decision in CHANDEVEERAPPA'S case to which we have already adverted, has held
that such a contention cannot be counternanced at all. A distinction was also
sought to be made in the light of the ratio laid down in K.T. HUCHEGOWDA'S case
in which neither this question was raised nor considered and this Court was
directed to examine the question of adverse possession as against the seller,
but not as against the State. If the purchaser remained to be in possession in
his own right de horse the tile, necessarily he has to plead and prove the date
from which he disclaimed the title and asserted possessory title as against the
State and perfected his possession to the knowledge of the real owner viz., the
State, Such a plea not having been taken or argued nor any evidence adduced in
that regard, the plea of adverse possession against the State cannot be
accepted at all at this stage.
The
question of adverse possession, therefore, does not arise and examining whether
he has been in possession for 30 years or 12 years will not be of any relevant
in this case. In that view of the matter, we find no force in the said
contention." The plea of adverse possession is not proved. In view of the
concurrent finding after elaborate consideration of the law laid down by this
Court on the factual aspects, in our opinion, no substantive question of law arises
warranting interference with the impugned decision.
The
Civil Appeal is accordingly dismissed.
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