PETITIONER:
D.N. VENKATARAYAPPA & ANR.
Vs.
RESPONDENT:
STATE OF KARNATAKA & ORS.
DATE OF JUDGMENT: 09/07/1997
BENCH:
K. RAMASWAMY, D.P. WADHWA
ACT
HEADNOTE
JUDGMENT
ORDER
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.