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Sridhara babu. N
Sridhara babu. N
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-SRIDHARA BABU.N
Sridhara babu. N
INDEX
NO PARTICULARS
Sridhara babu. N
OWNERSHIP OF IMMOVEABLE PROPERTY
AIR 2005 SC 3708 Union of India vs Pramod Gupta (D) by LRs. &
Ors.. "Ownership" in respect of an immovable property would mean a
bundle of rights. Only a proprietor of a surface land will have the sub-soil
right. But such rights may also have certain limitations. Tenure holder or
sub-tenure holder and / or an agricultural tenant created for carrying out
agricultural operation per se would not become the owner of the sub-soil
right. The right granted in favour of such sub-tenure holder, tenure holder
or the agricultural tenant would, thus, depend upon the concerned statute
and/ or the relevant covenants contained in the grant.
PERSON CANNOT SUFFER OWING TO INACTION OF THE COURT
Even otherwise it is now well-settled that a person cannot be made to
suffer owing to in-action by the Court. (Actus curiae neminem gravabit)
[Ram Chandra Singh Vs. Savitri Devi and Ors., (2003) 8 SCC 319 and
Board of Control For Cricket in India and Another Vs. Netaji Cricket
Club and Others [(2005) 4 SCC 741]
MERE MUTATION IN REVENUE RECORD DOES NOT CREATE TITLE
A.I.R. 1997 SC 2719 = 1997(7) SCC 137 (Balwant Singh and another
etc. Vs Daulat Singh (dead) by L.Rs. and others) wherein the Hon'ble
Supreme Court has held as follows: “Mutation of a property in the revenue
record does not create or extinguish title nor has it any presumptive value
on title. It only enables the person in whose favour mutation is ordered to
pay the land revenue in question. Thus, mere mutation of property in
Sridhara babu. N
revenue records does not create or extinguish title nor has it any
presumptive value on title. In such circumstances, merely because the
patta has been changed, in pursuance, it will not confer or extinguish title
of the plaintiffs/respondents herein or the third defendant/appellant
herein………...”
PATTA OR DEED OF GRANT IS NOT A TITLE DEED
In 1966 (1) Mys LJ 772 (Hazarat Asraruddin v. Hussein Khan) it has
been held that a patta is not a document of title or a -deed of grant but
that it is a record of demand by the Government that such and such
amount is due as land revenue on such and such area. Hence, the entries
in the Municipal registers cannot be placed on a higher footing than a
patta maintained under the Land Revenue Code.
PROPERTY TAX REGISTER MAINTAINED BY THE MUNICIPALITY NOR
THE RECEIPTS OF MUNICIPAL TAKES ARE EITHER EVIDENCE OF
TITLE OR POSSESSION
1964 Mys LJ (Supp) 74 (Ramakrishniah v. Madhavakrishniah) it has
been held that neither the extract from the property tax register
maintained by the Municipality nor the receipts of municipal takes are
either evidence of title or possession and that such registers are primarily
maintained for the purpose of levy and recovery of taxes and that the
column for entry of the name of the persons liable to pay the taxes reads:
'assessee, owner or occupier'. It was further held that an entry in such a
register can have only some corroborative value if independent evidence
was adduced to show how it came to be made.
Sridhara babu. N
LAND TRIBUNAL CAN DECIDE WHETHER JOINT FAMILY MEMBERS
WERE TENANT IN LAND
Court in Mudakappa vs. Rudrappa [AIR 1994 SC 1190], in which this
Court held that the Tribunal under the Karnataka Land Reforms Act was
entitled to decide the question as to whether the joint family or one of its
members was a tenant in respect of the land in question and that such
decision was subject to review under Articles 226 and 227 of the
Constitution.
CASE LAWS ON CONVERSION OF CERTAIN AGRICULTURAL LAND FOR
NON-AGRICULTURAL PURPOSES
HON’BLE JUSTICE NAGMOHANDAS of Karnataka High Court in WP
18443/2007 (LB-RES) Decided on 08-10-2009 in the case of Smt
Huchamma vs State of Karnataka has quoted the case law of The State
Government Employees' ... vs The Hubli-Dharwad Urban.. Reported
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
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Karnataka Land Revenue Act. The principles laid down in the above
judgment apply to the facts of the present case.”
UNLESS CONVERSION ORDER IS MADE LAND DOES NOT LOOSES THE
CHARACTER OF AGRICULTURAL LAND
Justice Mohan Shantanagoudar, of Karnataka High court in the case of
Pandurang Jivajirao Manglekar ... vs The State Of Karnataka ILR
2007 KAR 3602, 2008 (1) KarLJ 366 in a tenancy dispute held as
follows “Merely because the land in question has now came within the
limits of Gokak Town, the same will not loose the character of agricultural
land. The matter has to be viewed as it stood on the appointed day i.e.,
1.3.1974. The land cannot be deemed to be a non-agricultural land if no
order under Section 95 of the Karnataka Land Revenue Act is passed. The
obvious purpose of Section 95 of the Karnataka Land Revenue Act is to
prevent indiscriminate conversion of agricultural land into non-
agricultural land and to regulate and control the conversion of
agricultural land into non-agricultural land. Section 83 of the Land
Revenue Act provides for different rates of assessment for agricultural
and non-agricultural land. That provision strengthens the presumption
that agricultural land is not to be used, as per the holder's sweet will, for
non-agricultural purposes. The provision of Section 95 of the Karnataka
Land Revenue Act, has to be construed as mandatory and to be given
effect to as such. In this matter, admittedly the land is not converted for
non-agricultural use. If it so, the land continues to be to be agricultural
land and consequently there is no bar for the petitioner to get the
occupancy rights over the land in question. It is not even the case of land
owners that the land is used for non-agricultural purposes. ……….. Looking
to the totality of the facts and circumstances, it is clear that the petitioner
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has been cultivating the property as the tenant since much prior to
1.3.1974, as on 1.3.1974 and even thereafter. Hence, he is entitled to get
the occupancy rights.”
MERE NON-USER OF THE LAND FOR AGRICULTURAL PURPOSE OR
PURPOSES SUBSERVIENT THERETO OR USE FOR NON-
AGRICULTURAL PURPOSE WOULD NOT HAVE THE EFFECT OF
CONVERTING THE LAND INTO NON-AGRICULTURAL LAND
Justice B Padmaraj, and Justice V Jagannathan of Karnataka High
Court in the case of D. Pavanesh vs The State Of Karnataka Reported
in AIR 2006 Kant 97, ILR 2006 KAR 861, 2006 (2) KarLJ 396 has
referred to the Supreme court case of State of Karnataka v. Shankara
Textiles Limited , 1995 AIR 234, 1995 SCC (1) 295 wherein the Apex
Court has held that in absence of permission for conversion of agricultural
land for non-agricultural use, the mere non-user of the land for
agricultural purpose or purposes subservient thereto or use for non-
agricultural purpose would not have the effect of converting the land into
non-agricultural land. This proposition of law laid down by the Apex
Court is well-founded on legal principles and is indisputable. But
unfortunately, the Government misinterpreted the ratio laid down by the
Apex Court and has not examined the applicability of the decision to the
conclusion sought to be achieved by the impugned notifications. The said
decision of the Apex Court is totally inapplicable to the impugned action
taken by the respondents. It is stated that the law in relation to
conversion of the properties for non-agricultural purposes is well settled
since two decades in so far as the State of Karnataka is concerned.
IF THE LAND COMES WITHIN THE AREA OF ODP OR CDP, SANCTION
OF THE PLANNING AUTHORITY WAS ESSENTIAL FOR CHANGE OF USE
OF THE LAND.
Sridhara babu. N
Justice Rama Jois, and Justice Ramakrishna of Karnataka High court
in the case of Special Deputy Commissioner vs Narayanappa
Reported in ILR 1988 KAR 1398, by referring to the case of State of
Karnataka v. Jayashree : ILR 1986 KAR 820. In that case also the parties
concerned had made application to Special Deputy Commissioner,
Bangalore, praying for permission for conversion of certain agricultural
land for non-agricultural purposes. The application had been rejected by
the Special Deputy Commissioner; but his order was set aside by the
Appellate Tribunal which gave a specific direction to the Special Deputy
Commissioner to accord sanction for conversion by imposing such
conditions as are permissible in view of Subsection (4) of Section 95 of
the Act. Aggrieved by the order of the Tribunal the Special Deputy
Commissioner preferred the Writ Petitions. The learned Judge Doddakale
Gowda, J. in the course of the order made a detailed reference to the
provisions of the Town Planning Act and pointed out that if the land
comes within the area of ODP or CDP, sanction of the Planning Authority
was essential for change of use of the land. The learned Judge also pointed
out that exercise of such powers under Section 95 of the Land Revenue
Act would be an exercise in futility. We are in respectful agreement with
the view expressed by the learned Judge. But, we however add, if a land
fell within ODP or CDP prepared for Bangalore Metropolitan Planning
Area the Special Deputy Commissioner, Bangalore, ceases to have any
power under Section 95 of the Act, in view of the over-riding effect given
to the provisions of the Planning Act by Section 76M thereof over all other
laws which includes The Land Revenue Act. Section 76M was not brought
to the notice of the learned Judge. Whatever that may be, the fact remains
that the view taken by the learned Judge that any permission to be
accorded must be in conformity with the provisions of the Town Planning
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Act and the ODP and CDP prepared thereunder, is correct and we entirely
agree with the view taken by the learned Judge.
The Division Bench of Court in the case of Special Deputy Commissioner v.
Narayanappa ILR 1988 KAR 1398 has declared that the jurisdiction of
the Deputy Commissioner to convert lands for non-agricultural purposes
under Section 95 of the Karnataka Land Revenue Act will get ousted in
respect of lands falling within the area of the Outline Development Plan or
the Comprehensive Development Plan i.e., lands which fall under the
planning authority. It is further stated that the planning authority in the
various districts of the State of Karnataka has been formed since 1965
and the table showing the formation of various planning authorities in the
various parts of the State of Karnataka is at Annexure-E, which authority
has been functioning in most of the districts in the State of Karnataka, as
can be ascertained from the table at Annexure-E. Therefore, the
Government cannot insist upon the re-conversion of such lands which are
situated within the jurisdiction of the local planning authority.
It is also stated that the Division Bench of this Court in the case
of Bangalore Development Authority v. Vishwa Bharathi House Building
Co-operative Society Limited ILR1991 KAR 4401, has held that the lands
which are situated within the jurisdiction of the Corporation are deemed
to be converted for that particular use. Therefore the question of
classifying these lands as non-agricultural lands in the impugned
notification is totally arbitrary and illegal and moreover as these
notifications have retrospective effect, the public interest and the
property rights guaranteed to citizens have been given a go-bye.
Sridhara babu. N
LAND REVENUE ACT WOULD CEASE TO BE APPLICABLE TO SUCH OF
THOSE LANDS NO SOONER THE LAND IS BROUGHT WITHIN THE
CORPORATION LIMITS
J.M. Narayana and Ors. v. Corporation of The City of Bangalore ILR 2005
Karnataka 60 a Division Bench of this Court has clearly declared that the
Land Revenue Act would cease to be applicable to such of those lands no
sooner the land is brought within the Corporation limits. Hence the
impugned Notification and Circular are totally contrary to the consistent
law in the State of Karnataka since over two decades. Various layouts in
the State of Karnataka such as Cantonment area, Basavangudi,
Malleshwaram, Cottonpet, Gandhinagar, Old Mysore etc., are formed over
hundred years ago and some layouts are formed during the reign of
Diwan of Mysore and since their formation, these areas are being used for
non-agricultural/residential purposes. Therefore, the question of
converting these lands for non-agricultural purposes under Section 95 of
the Karnataka Land Revenue Act does not arise at all. The impugned
Notification and Circular are totally one without application of mind and
is passed only for extraneous considerations well known to the
respondents. The impugned Notification and Circular are contrary to the
Division Bench decision of this Court in the case of Special Deputy
Commissioner v. Narayanappa (Supra)wherein it is declared that the
jurisdiction of the Deputy Commissioner to convert lands for non-
agricultural purposes under Section 95 of the Karnataka Land Revenue
Act, will get ousted in respect of lands falling within the area of Outline
Development Plan or the Comprehensive Development Plan i.e., lands
which fall under the planning authority. It is stated that the right to hold
and possess a property is a constitutional right guaranteed under Article
300-A of the Constitution. The settled and vested rights of citizens are
sought to be taken away by the impugned State action. Moreover, the
Sridhara babu. N
action of applying the principle of conversion under the Karnataka Land
Revenue Act retrospectively is contrary to law and is liable to be set
aside.
VESTING PROVIDED UNDER SECTION 79B(3) IS THE CONSEQUENCE
OF AN ENQUIRY AND DECLARATION MADE BY THE DEPUTY
COMMISSIONER UNDER THE SAID PROVISION (OVER-RULED)
In MYSORE FEEDS LTD. v. STATE OF KARNATAKA, ILR 1988 KAR 889,
1988 (1) KarLJ 310 a Division Bench of Court has taken the view that
even if any agricultural land is held in contravention of the prohibition
imposed under Section 79B of the Land Reforms Act, such land cannot
ipso-facto be deemed to have vested in the State on the appointed date.
Vesting provided under Section 79B(3) is the consequence of an enquiry
and declaration made by the Deputy Commissioner under the said
provision. It is further observed therein that the fact that the State is
required to pay compensation to the land owner under Section 79B(4)
shows that the title of the disabled person continues till the date of the
declaration under Sub-section (3) of Section 79B. When the statute says
that the Deputy Commissioner shall declare that land "shall vest" in the
State Government, it can only be prospective, to be operative on making
the declaration. We are in respectful agreement with that view. No other
view is possible on an interpretation of the relevant provisions.
WHERE THE APPLICANT FOR PERMISSION FOR CONVERSION TO
NON-AGRICULTURAL IS NOT IN POSSESSION OF LAND BUT A
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TENANT IS, AND THE TENANT OPPOSES THE APPLICATION,
PERMISSION CANNOT BE GRANTED
Judgment of this Court in 1969(2) Mys.L. J. 184 5. Puttamma and Ors. v.
The M.R.A.T. and Anr., that if a tenant is in possession of the land in
respect of which permission for diversion is sought and the landlord
cannot secure possession except after eviction of the tenant, the
appropriate stage at which the application for conversion could be made
is normally the stage when the landlord secures possession from the
tenant, this Court has held that the permission for conversion could be of
little use……. where the applicant for permission for conversion to non-
agricultural purpose under Section 95(2) of the Mysore Land Revenue
Act, is not in possession of land but a tenant is, and the tenant opposes the
application, permission cannot be granted as it would be a futile
permission. Such a situation did not arise in this case.
THE LAND CANNOT BE DEEMED TO HAVE BEEN PERMITTED TO BE
CONVERTED FOR NON-AGRICULTURAL USE MERELY BECAUSE IT
WAS USED FOR NON-AGRICULTURAL PURPOSE
Justice A.J. Sadashiva, of Karnataka High court in the case of Mallikarjun
Co-Operative ... vs State Of Karnataka, observed the case of In STATE
OF KARNATAKA v. SHANKARA TEXTILES MILLS LTD. 1995 AIR 234,
1995 SCC (1) 295 , the Supreme Court considering the question,
whether the land can be deemed to have been permitted to be converted
for non-agricultural use merely because it was used for non-agricultural
purpose although, admittedly, no permission under Section 95(2) of the
Revenue Act was taken, has held - "The mere fact that at the relevant time
the land was not used for agricultural purposes or purposes subservient
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thereto as mentioned in Section 2(18) of the Act or that it was used for
non-agricultural purpose, assuming it be so, would not convert the
agricultural land into a non-agricultural land for the purposes either of
the Revenue Act or of the Act, viz., Karnataka Land Reforms Act. To hold
otherwise would defeat the object of both the Acts and would, in
particular, render the provisions of Section 95(2) of the Revenue Act,
nugatory. Such an interpretation is not permissible by any rule of the
interpretation of statutes." ………… The Supreme Court, after ruling that
the use of land for non-agricultural purpose would not convert the
agricultural land into non-agricultural land in the absence of permission
for conversion under Section 95(2) of the Revenue Act, over-ruled the
Judgment of this Court in MYSORE FEEDS LTD. v. STATE OF KARNATAKA
AND ANR. 7. 1988(1) KLJ 310 wherein it was held - ………….. (i) a
notification under Section 79-B(3) of the Karnataka Land Reforms Act is
prospective from the date of its issuance ; (ii) while issuing an order/or
notification under Section 79-B(3), the Deputy Commissioner has to take
note of any order of the State Government made under Section 20 of the
ULCR Act and the basic facts assumed for the validity of such an order of
the State Government ; and (iii) it cannot be assumed straight-away that
when permission for conversion is sought under Section 95(2) of the
Revenue Act the land in question was factually used as an agricultural
land.
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
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
Sridhara babu. N
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.
A PERSON AGGRIEVED BY ALIENATION ORDER HAS TO CHALLENGE
THE SAME BEFORE THE APPROPRIATE AUTHORITIES, HE CANNOT
BYPASS THAT REMEDY AND GET THAT ORDER INVALIDATED
BEFORE THE LAND TRIBUNAL CONSTITUTED UNDER THE LAND
REFORMS ACT
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
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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.”
THE LAND IN QUESTION MUST BE AGRICULTURAL LAND AND THEN
ALONE THAT THE TRIBUNAL ASSUMES JURISDICTION TO GRANT
OCCUPANCY RIGHT
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
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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."
THE PETITIONERS CANNOT SEEK FOR ISSUE OF A WRIT OF
MANDAMUS – WHERE THE DEPUTY COMMISSIONER MAY DECLINE
PERMISSION UNDER SECTION 95(3) OF THE ACT
JUSTICE D.V. Shylendra Kumar, in the case of Chikkusappa vs State Of
Karnataka And Ors. Reported in 2006 (3) KarLJ 64 “As noticed above,
while the provisions of Section 95 of the Act compelling an occupant of a
land assessed or held for agricultural purpose to obtain permission from
the Deputy Commissioner on making an application and the Deputy
Commissioner being enabled to grant or refuse such permission and
taking into consideration the relevant aspect as indicated in this very
section and the provisions being a regulatory provision, essentially meant
for regulating the use and diversion of land held for agricultural purpose,
an order granting permission is the rule and refusal will be an exception
and of course and refusal being if the grant of permission is likely to
defeat the provisions of any law in force or even if it is likely to cause
public nuisance or even if it is in the interest of general public etc., as
indicated in Section 95(3) of the Act. It is to be noticed that some of these
situations where under the Deputy Commissioner may decline permission
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have been specifically included under Section 95(3) of the Act by the
Amendment Act 2 of 1991 with effect from 20-3-1991. It is significant to
notice that such situations were not available on the statute book when
this Court rendered the decision in the case of Veeramadhu. Assuming for
argument's sake and as pointed out by the learned Counsel for the
petitioners, that the decision of this Court in the case of Veeramadhu is to
be construed as a decision touching upon the provisions of Section 95 of
the Act or on the interpretation thereof, which I am of the view is not one
touching upon the provisions of Section 95 of the Act, nevertheless, even
in such a situation, as the very provisions have undergone legislative
changes, the decision cannot be considered as an authority in the light of
the present situation i.e., the present Sub-section (3) of Section 95 of the
Act and therefore the decision in the case of Veeramadhu is not a binding
precedent and therefore petitioners cannot call in aid the doctrine of stare
decisis. The petitioners cannot seek for issue of a writ of mandamus in the
present writ petitions as had been done by this Court in the case of
Veeramadhu.”
------------------------
SUPREME COURT CLARIFIES THE POINT
JUSTICE Doraiswamy Raju & JUSTICE Arijit Pasayat in the case of K.
Kunhambu vs Smt. Chandramma & Ors Reported in 2004 AIR 4599,
2004(2 )SCR249 , 2004(9 )SCC174 , 2004(2 )SCALE363 , 2004(3
)JT255 The decision in Shankara Textile Mills Ltd. case (1995 AIR 234,
1995 SCC (1) 295) has been rendered in totally different context and
circumstances and cannot lend, in our view, any assistance to support the
claims of the appellant in this case. It could be seen from the facts of that
case, the company, which owned an extent of 49 acres and 38.25 guntas
was able to get only an extent of 13 acres and 32.25 guntas converted into
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non-agricultural land under Section 95(2) of the Karnataka Land Revenue
Act, 1964, leaving the remaining 36 acres and 6.5 guntas without any such
conversion allowing it to continue as agricultural land. When acquisition
proceedings were initiated to acquire the said land for purposes of
Karnataka Improvement Boards Act, 1996, the Company sought to claim
under Section 79B (2)(a) of the Act exemption on the ground that the
entire extent in its possession was agricultural land and as such was
eligible for exemption relying upon Section 81(1)(b)(ii) the lands having
been mortgaged to Mysore State Financial Corporation. Though the initial
authority countenanced the claim and the Appellate Authority rejected it,
the Company approached successfully the High Court and obtained relief,
which came to be challenged in this Court, in that context. The relevant
observations of this Court at Paragraph 9, set out hereinafter, as to the
nature and character of the land that was really the subject matter of
consideration and the reasons which weighed with this Court to interfere
with the order of the High Court would show that, rather helping the plea
of the appellant, it would lend support to the stand of the 1st respondent
in view of the peculiar facts of this case and the specific factual finding
recorded in favour of the 1st respondent as to the long, continuous and
consistent user of the land for non-agricultural purposes of running Saw
Mill Industry. Paragraph 9 of the decision reported in Shankara Textiles
Mills Ltd. (supra) reads as follows: "Thus the High Court has proceeded on
the basis that there is no specific finding regarding the nature and usage
of the land as agricultural and hence, the Special Deputy Commissioner
could not treat it to be an agricultural land merely on account of the fact
that permission for conversion of the land under Section 95(2) of the
Revenue Act was sought (but admittedly not given). Secondly, it has
proceeded on the footing that the land in question does not satisfy any of
the characteristics as required under the definition of `land' in Section
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2(18) of the Act, i.e., Karnataka Land Reforms Act, investing the
authorities with the jurisdiction to take proceedings under Section 79-B
of the Act. We are afraid that the High Court has misread the facts on
record. The consistent stand taken by the authorities is that the land was
never converted for non-agricultural use as required by the provisions of
Section 95(2) of the Revenue Act. The mere fact that at the relevant time,
the land was not used for agricultural purpose or purposes subservient
thereto as mentioned in Section 2(18) of the Act or that it was used for
non-agricultural purpose, assuming it to be so, would not convert the
agricultural land into a non-agricultural land for the purposes either of
the Revenue Act or of the Act, viz., Karnataka Land Reforms Act. To hold
otherwise would defeat the object of both the Acts and would, in
particular, render the provisions of Section 95(2) of the Revenue Act,
nugatory. Such an interpretation is not permissible by any rule of the
interpretation of statutes. What is further, the respondent-Company had
itself filed a declaration under Section 79-B(2)(a) of the Act stating
therein that the entire disputed land was agricultural land and had
claimed exemption from the provisions of the said Section 79-B under
Section 109 of the Act on the ground that the land was mortgaged to the
Mysore State Financial Corporation. We are, therefore, unable to agree
with the view taken by the High Court on the point".
“The land that was the subject matter of consideration by this Court in
above noted case was indisputably agriculture and in such cases of land,
unless actual conversion under Section 95(2) of the Revenue Act was
sought and obtained, it will not stand excluded from the definition in
Section 2(A)(18) of the Land Reforms Act. The provision for conversion of
the user of the agricultural land for non-agricultural purposes, as
envisaged under the Revenue Act, cannot be pressed into aid to deny or
deprive the benefit of the later part of the definition of `land' in Section
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2(A)(18) of the Land Reforms Act to a landowner on the basis of its
exclusive user for non-agricultural purposes. In substance whereas the
past exclusive and continuous use for non-agricultural purposes becomes
relevant for extending benefit of later part of Section 2(A)(18), Section
95(2) of the Revenue Act becomes relevant only for future conversions of
an agricultural land for its non-agricultural user.”
HABEEB KHANDASARI INDUSTRIES v. KARNATAKA APPELLATE
TRIBUNAL AND ANR. 1987(1) KLJ 45. This Court, while interpreting the
provisions of Section 95(4), held that immediately on the expiry of the
period of four months in the absence of a rejection order that by
operation of law, the permission is deemed to have been granted.
SAHADEV BAIRU KHANNUKAR v. SPECIAL DEPUTY COMMISSIONER,
BELGAUM AND ANR. 1987(1) KLJ 52, wherein, in certain circumstances,
this Court held that the benefit of deemed permission is not always
available even if the four month period has elapsed.
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A Division Bench of Karnataka High Court in M. Maniklal v. State of
Mysore and Ors., 1968(1) Mys. L.J. 416, while dealing with a case under
the City of Bangalore Improvement Act, 1945 as to what constitutes a
"layout", has held as follows.-- "We do not accede to the argument that the
expression "layout" means no more than the making of marks on the
acquired property for dividing it into sites. A layout to which Section 16
refers, includes every step by which an area of land is converted into
building sites to render it suitable for construction of houses and
buildings, and necessarily involves the formation of roads, arrangements
for conservancy, sewerage, drainage, water supply and lighting, Section
25(2) of the City of Bangalore Improvement Act, 1945 which insists on
the provision for such amenities in the case of a private layout, indicates
that such is the true character of a layout. Section 24 which forbids the
sale of sites by the Trust Board until the improvements enumerated in
Section 23 are made, yields the same deduction. Such layout which is part
of a development scheme reducers congestion in the existing are of the
city, and contributes to the elimination of the privation caused by
insufficient housing accommodation. So, it assists the expansion and the
improvement of the city and so promotes the purposes of the Act. The
expansion of a city and its improvement are purposes from which flows a
direct public benefit and a purpose which is productive of results so
advantageous to the public is a clear public purpose".
IMPORTANCE OF CIRCULAR UNDER KARNATAKA LAND REVENUE ACT
D.C. Ramesh And Ors. vs State Of Karnataka And Ors. AIR 2003 Kant 480,
2003 (5) KarLJ 291 BENCH:- JUSTICE N.K. Jain, JUSTICE V Sabhahit,
Sridhara babu. N
JUSTICE H Ramesh “It is well-settled that a circular or notification cannot
be inconsistent with the main Act or Rules, but at the same time it can
supplement. Once the power has been given to the Deputy Commissioner
to pass the order, any circular issued by the Government will amount to
an order issued in pursuance of the provisions of the Act. In the
circumstances, the circular cannot be said to be inconsistent with the
main Act as this circular will be equivalent to Government Order as
contemplated under Karnataka Land Revenue Act.”
B.H. Honnalige Gowda vs State Of Mysore And Anr. AIR 1964 Kant 84, AIR
1964 Mys 84 The Revenue Manual which is a compilation of decisions of
Government in appeals and revision petitions, and, includes
administrative instructions to subordinate revenue officers from time to
time, can constitute useful guidance to the interpretation of the provisions
of the Land Revenue Code. The elucidation in this compilation that a
stipendiary shanbhog is appointed to a vacancy caused by the
unavailability of a hereditary shanbhog, seems to negative the concept of
an independent post.
WHAT IS KHARAB LAND EXPLAINS KARNATAKA HIGH COURT
Sadashivaiah And Ors. vs State Of Karnataka And Ors. ILR 2003 KAR 5088
In this regard it is necessary to know what a kharab land is and what are
the rights which flow. Kharab land is so called because it is not cultivable
and is classification made for purposes of revenue exemption, Kharab
land is also capable of ownership and cannot be regarded as an adjunct to
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cultivable land which gets transferred along with the cultivable land.
Acquisition of title to the kharab land is similar to acquisition of title to
the cultivable land. The word "Phut Kharab" and 'pot' kharab mean and
have reference to a land which is included in an assessed survey number
but which is unflit for cultivation. Every pot kharab land does not belong
to government. For the purpose of assessment, the uncultivable portion of
the land or phut kharab portion of the land is excluded from
consideration on the ground that it is cultivable. But it does not cease to
belong to the owner of the survey number. In volume I of the Mysore
Revenue Manual, the word kharab is explained in this way. The
expression 'phut kharab' is similar to the expression 'pot kharab'. That is
so, is clear from the Mysore Revenue Survey Manual where at page 68 the
words 'pot kharab' land is defined thus:
"(13). Pot kharab means a piece of pieces of land classed as unarable and
included in a survey number".
The description has no relevance to ownership. The expression put
kharab is explained in Gupte's book on the Bombay Land Revenue Code in
the following words at page 278"-
"By the term 'pot kharab' is meant 'barren or uncultivable land included
in an assessed survey number' and includes 'any land comprised in a
survey number. Which from any reason is held not to be likely to be
brought under cultivation..........."
31. The words phut Kharab, therefore, mean and have reference to a land
which is included in an assessed survey number but which is unfit for
cultivation. After coming into the force of the Karnataka Land Revenue
Act 1964 the word phut Kharab has been defined under Rule 21(2) as
under-
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"during the process of classification, land included as unarable shall be
treated as "Pot Kharab". Pot Kharab land may be classified as follows.
(a) That which is classified as unfit for agriculture at the time of survey
including the farm buildings or threshing flours of the holder; (b) That
which is not assessed because, (i) it is reserved or assigned for public
purpose; (ii) it is occupied by a road or recognised footpath or by a tank
or stream used by persons other than the holders for irrigation, drinking
or domestic purposes; (iii) used as burial ground or cremation ground;
(iv) assigned for villager potteries."
Therefore, it becomes clear if the land falls within the category of 21(2)(a)
it is not a government land, it belongs to the ownership of the petitioners.
If it falls under 21(2)(b) then it belongs to the government and the
petitioners cannot have a claim over the said land.
WHEN EXECUTION OF THE SALE DEED IS NOT DISPUTED IT WAS
INCUMBENT UPON THE REVENUE AUTHORITIES TO ENTER THE
NAME OF THE PURCHASER IN REVENUE RECORDS
In ILR 1995 KAR 118 - Golappa Vs. Malakappa, it has been held as under:
"3. So far as the question of delay in filing the worthy is concerned, it may
be stated here that - 10 - when there is an acquisition of right in any land
pursuant to a registered document, it is the duty cast upon the registering
authority under section 128 of the Act to make a report of such
acquisition of right to the prescribed authority. In the present case it
seems that no such report was made by the registering authority, or, if
made, no notice thereof was taken by the revenue authority for initiating
desired proceedings as provided under section 129 of the Act. The duty
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on the part of the registering authority was mandatory as noticed by this
Court in the case of N. Shivanna Vs. State of Karnataka and another.
Moreover, neither section 128 nor section 129 of the Act prescribes any
period of filing an application seeking mutation in case of acquisition of a
right. That being the position, the reasoning given by the Tahsildar that
the application was belated and therefore the same cannot be entertained
is erroneous being based on extraneous ground. Further, since the
execution of the sale deed at Annexure-A was not disputed by respondent
No.1 either before the Revenue Courts or before this Court, ex- facie, for
the purpose of the Act, it has to be taken that the document confers a good
title on the petitioner; and, therefore, it was incumbent upon the revenue
authorities to enter the name of the petitioner in the owner's column,
namely column No.4 of the record of rights." QUOTED WITH APPROVAL
IN Sri Chikkegowda @ Sannegowda vs The Deputy Commissioner
DECIDED on 5 July, 2012 BY THE HON'BLE MR. JUSTICE ARAVIND
KUMAR OF KARNATAKA HIGH COURT.
ALL OFFICIAL ACTS ARE PRESUMED TO BE DONE AS PER LAW –
PARTY ALLEGATING ILLEGALITY HAS TO PROVE IT
Supreme Court in Gopal Narain v. State of Uttar Pradesh AIR 1964 SC 370,
held that there is a presumption when a statutory authority makes an
order, that it has followed the prescribed procedure and such a
presumption can only be rebutted by adducing appropriate evidence.
However, the party, which makes an allegation that the act has not
regularly been performed, the onus to prove lies upon him that the proper
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procedure has not been followed or the act has not been performed as
was required under the law.
In Maharaja Pratap Singh Bahadur v. Thakur Manmohan Dey AIR 1966 SC
1931, the honourable Supreme Court considered the scope of illustration
(e) of Section 114 of the Evidence Act and the question was : whether the
Deputy Commissioner, who performed the particular function, had even
been authorised to act. The court held that if an official act is proved to
have been done, it will be presumed to have been regularly done and in
such an eventuality and circumstances, the court can reasonably presume
that the Deputy Commissioner, under appropriate rules, was duly
authorised to act on behalf of the authority concerned.
A Constitution Bench of the honourable Supreme Court, in State of Punjab
v. Satya Pal Dang AIR 1969 SC 903, dealt with the prorogation issued by
the Governor. The court observed as under : "We are bound to take
judicial notice of the prorogation and presume the regularity of these
actions which must be interpreted as far as possible so that the thing done
may be valid rather than invalid."
In Narayan Govind Gavate v. State of Maharashtra AIR 1977 SC 183, the
honourable Supreme Court observed that presumption provided in
illustration (e) of Section 114 of the Evidence Act is based on well-known
maxim of law "omnia praesumuntur rite esse acta" (i.e., all acts are
presumed to have been rightly and regularly done). The court further
held, this presumption is, however, one of the fact. It is an optional
presumption can be displaced by the circumstances indicating that the
power lodged in an authority or official has not been exercised in
accordance with law.
Sridhara babu. N
OFFICER, WHILE DISCHARGING JUDICIAL OR QUASI-JUDICIAL
DUTIES, IS AMENABLE TO THE DISCIPLINARY PROCEEDINGS INTO
HIS CONDUCT IN DISCHARGE OF THE DUTY.
In Union of India v. Upendra Singh, (1994) 3 SCC 357, the Apex Court held
that even an Officer, while discharging judicial or quasi-judicial duties, is
amenable to the disciplinary proceedings into his conduct in discharge of
the duty.
In Union of India and Ors. v. A.N. Saxena, AIR 1992 SC 1233, the Hon'ble
Apex Court held that disciplinary action can be taken in regard to the
action taken or purported to be taken in course of judicial or quasi-
judicial proceedings. However, in such circumstances, the disciplinary
proceedings should be initiated after great caution and a close scrutiny of
his actions and only if the circumstances so warrant for the reason that
initiation of disciplinary proceedings against a Judicial Officer may shake
the confidence of the public in the Officer concerned and if lightly taken,
likely to undermine his independence and in case, the action of Judicial
Officer indicates culpability, there is no reason why disciplinary action
should not be taken against him.
In State of Punjab and Ors. v. Ram Singh Ex-Constable, (1992) 4 SCC 54.
the Hon'ble Supreme Court considered various dictionaries to find out the
meaning of "misconduct" and the same is worth quoting as under :-
"Misconduct has been defined in Black's Law Dictionary, Sixth Edition at
Page 999 thus : 'A transgression of some established and definite rule of
action, a forbidden Act, a dereliction from duty, unlawful behaviour,
willful in character, improper or wrong behaviour, its synonyms are
misdemeanour misdeed, misbehavious, delinquency, impropriety,
mismanagement, offence, but not negligence or carelessness'.
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In Government of Tamil Nadu v. K.N. Ramamurthy, AIR 1997 SC 3571, the
Hon'ble Supreme Court held that exercise of judicial or quasi-judicial
power negligently having adverse affect on the party or the State certainly
amounts to misconduct.
In M.H. Devendrappa v. Karnataka State Small Industries Development
Corporation, AIR 1998 SC 1064, the Hon'ble Supreme Court has ruled that
any action of an employee, which is detrimental to the prestige of the
institution or employment, would amount to misconduct.
In Union Bank of India v. Vishwa Mohan, (1998) 4 SCC 310, the Hon'ble
Supreme Court held that misconduct includes not working with diligence
by an employee.
In Slate Bank of India v. T.J. Paul, AIR 1999 SC 1994, the Supreme Court
held that even in a case the allegations of malaflde and corrupt practice
have neither been alleged nor revealed while issuing the charge-sheet, the
delinquent employee may be held guilty of misconduct in case, the
Officers Acts without restraints jeopardising the interest and rights of
other party. The said case, was for granting the Bank loan negligently and
the Bank suffered serious loss. The Apex Court held that it may not be a
case of insubordination or disobedience of specific order of any superior
officer, if the Act is prejudicial to the interest of the Bank or gross
negligence or negligence involved or likely to involve the Bank in serious
loss, would amount to misconduct. In other words, if negligence of an
Officer seriously affects and prejudices the rights of the party, it definitely
amounts to misconduct.
In Government of Andhra Pradesh v. P. Posetty, (2000) 2 SCC 220, the
Hon'ble Supreme Court held that sense of propriety and acting in
derogation to the prestige of the institution and placing his official
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position under any kind of embarrassment may amount to misconduct as
the same may ultimately lead that the delinquent had behaved in a
manner which is unbecoming of an employee/Government Servant.
A JUDGMENT IS AN OFFICIAL CERTIFICATION OF FACTS
In Gurdit Singh and Ors. v. State of Punjab, AIR 1974 SC 1791, the
Supreme Court explained as under :- "A judgment of a Court is an
affirmation, by the authorised societal agent of the State, speaking by the
warrant of law and in the name of the State, of the legal consequences
attending of proved or admitted state of facts. Its declaratory,
determinative and adjudicatory function is its distinctive characteristic.
Its recording gives an official certification to a pre-existing relation or
establishes a new one on pre-existing grounds."
RAMAKRISHNA GANAPAYYA vs. LAKSHMI NARAYANA THIMAYYA 1983
(2) KLJ 409 In paragraph 14 it has been observed - "It may, at once, be
stated that there is a presumption under the Evidence Act that all official
acts done by the official are done in accordance with proper procedure. It
is not the defendant who has come to Court challenging such official act of
the Tahsildar. It is the plaintiff who has come to Court challenging that the
procedure followed by the Tahsildar was not in accordance with law. That
being so, it is obvious that the burden is on the plaintiff to call for
necessary records, making the Tahsildar a party to the suit and show that
the procedure followed by him is vitiated either because there was no
notice or because he has violated fundamental principles of natural
justice."
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PRESUMPTION OF ENTRIES IN REVENUE RECORDS
Hanumanthappa vs Bhimappa ILR 1998 KAR 838 Section 133 no
doubt provides that any entry in record of rights and certified copy of the
register of mutation or in the patta book shall be presumed to be true
until the contrary is proved or a new entry is lawfully substituted
therefor. Section 133 provides for a rebutable presumption and that if
something contrary to the entries is proved or something contrary to the
state of affairs represented by the entries is proved, then presumption is
not to be raised with regard to the correctness of evidence. Even if the
entry had been made after following the procedure but if an entry had not
been made at all in accordance with the procedure established by law,
then also no presumption is to be raised. It means that in respect of
entries if made according to law in the Revenue Register then Section 133
provides that contrary or otherwise can be proved by furnishing other
evidence by the party concerned and it is open to the court either to raise
presumption or to hold that the facts rebutting the presumption or facts
contrary to said have not been proved. That if the Court looking to the
entry as well as to the evidence oral documentary or/and circumstantial
etc., comes to the conclusion that the state of affairs contrary to one to
prove which the entries has been produced, have been otherwise proved
than as represented by the entry, the presumption will stand rebutted.
………….. It is well settled principles of law that when the parties have lead
evidence oral or documentary or circumstantial, then burden of proof
looses its importance and it is the question of appreciation of evidence
whether a fact has been proved or established, which has been asserted
by a party or a fact to the contrary has been proved i.e. fact having
tendency of rebutting the presumption arising from the fact.
ENTRY IN REVENUE RECORD AND OSTENSIBLE OWNERSHIP
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THE HON'BLE MR. JUSTICE A.S.PACHHAPURE of Karnataka High Court in
the case of M Honnappa vs Smt Dundamma Decided on 22 March,
2013: The suit was instituted for the relief of declaration and possession.
The plaintiff alleges that 15 days prior to institution of the suit, there was
a challenge to her title and when she came to know that her name was not
found in the record of rights, she instituted a suit for the relief of
declaration and injunction. As she was dispossessed, after institution of
the suit she sought for an amendment and claimed the relief of possession
under Article 58 of the Limitation Act, 1963. To obtain any other
declaration, the limitation is 3 years from the date when the right to sue
was accrued. Therefore, the relief of declaration is well within the time
from the date when a right is accrued to her to institute the suit for
declaration. So far as possession is concerned, even as for the time being
that the 1st defendant came into possession of the property on the basis
of the Sale Deed-Ex.D1 dated 13.03.1995, the limitation for a suit for the
relief of possession is 12 years and the suit instituted is well within the
time.
It is well-established principle of law that mere an entry of the name in
the record of rights is not sufficient to confer any title on the person
whose name is entered. On this aspect of the matter, learned counsel for
the respondent has placed reliance on the decision of the Apex Court
reported in ILR 1998 Kar. 707 [Balwant Singh and anr. Vs. Daulat Sing
(Dead) by Lrs. and Others]; wherein the Apex Court held that a mutation
gift does not confer any title on the donee. In ILR 1998 Kar. 1 [State of
Himachal Pradesh Vs. Keshav Ram and Others]; wherein the Apex Court
referring to the provisions of Section 114 of the Evidence Act, in relation
to the entry in the Revenue Record or papers held that by no stretch of
imagination it can form basis for declaration of title. So, the grounds put-
forth by the appellants that Nataraju become ostensible owner of the suit
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property merely because his name was entered in the record of rights
cannot be accepted. Furthermore, there is nothing in the evidence of the
witnesses to indicate that Shivappa had the knowledge of deletion of his
name from the record of rights.
ILR 2003 Kar. 1774 [Mallappa Adiveppa Hadapad Vs. Smt. Rudrawwa and
Others]; wherein the revenue records stood in the name of the transferor
at the time when the transferee purchased the property and this Court
held that unless the transferee establishes that he had taken reasonable
care to ascertain the right or title of the transferor and the transferee had
acted in good faith, though the Sale Deeds are for valid consideration is
itself held to be not sufficient to validate such transaction under Section
41 of the Act.
PROPER APPRECIATION OF DOCUMENTS AND EVIDENCE
THE HON'BLE MR. JUSTICE SUBHASH B. ADI of Karnataka High Court in
the case of R Laxman vs M S Lingegowda Since Dead By Lrs Decided on 13
February, 2013
No doubt, the pleadings in the plaint do not show that the plaintiff has
stated the source of his title to the suit schedule property. The entire
pleadings show that the plaintiff has based his claim only on the basis of
the revenue records. However, during the course of his evidence, he
sought to produce Ex.P20, which stands in the name of the uncle of the
plaintiff and he claimed that, there was subsequent partition and the suit
schedule property had fallen to his share, however, such a pleading is not
forthcoming in the plaint. ……. However, the plaintiff admittedly, has
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produced Exs.P1 to P6 and it shows the plaintiff`s name in the cultivator`s
column and in the kabzedar`s column, the name of the brother of the
plaintiff is shown. Under Section 133 of the Karnataka Land Revenue Act,
the entries in the revenue records create presumption that they are true,
unless rebuttable evidence is led. Ex.D2 is a pahani, wherein the name of
defendant No.4, one of the legal representatives of the original defendant
is shown in the cultivator`s column. It is not known as to how for the first
time in 1982-1983, the name of defendant No.4 is entered. ………… The
trial Court, without referring to the entries in the said documents and
without referring to Survey Nos., only on the ground that there was an
order passed by the Appellate Tribunal against the brother of the plaintiff,
has dismissed the suit. …………. In my opinion, the trial Court has utterly
failed to appreciate the evidence on record in the proper perspective.
When there is a dispute between the parties, the better title between the
parties has to be ascertained and to appreciate the same, the trial Court
should have looked into the oral as well as the documentary evidence of
both the parties. Even the documents referred to by the trial Court have
been wrongly understood.
The learned Counsel has further contended that the inam lands which
were attached to the Jodi village statutorily vested with the State
Government after the Inams Abolition Act of 1954 has come into force
even if the lands were mortgaged, he relied upon the decision of the Apex
Court reported in 1962(3) SCC (Suppl) 565 (Krishha Prasad and Ors. v.
Gauri Kumari Devi). He further submitted that by virtue of the order
granting occupancy rights in favour of inamdars to register them as
occupants of the lands in question pursuant to the abolition of inam lands
under the Inams Abolition Act of 1954, fresh right, title and interest was
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conferred upon the inamdars which legal position is laid down by the
Division Bench decision of this Court reported in 1977(1) K.L.J
389 (Muniyallappa v. Krishnamurthy B.M and Ors.). According to him, the
order of grant of occupancy in respect of the lands in question passed by
the Land Tribunal cannot be questioned by the petitioners in these
collateral proceedings, this position of law is well settled in the decision of
this Court reported in 1995(5) K.L.J 459(Anjanappa and Ors. v. Byrappa,
By LRs.). The order passed by the Land Tribunal in respect of the very
same lands in favour of the inamdars has become final, since the same
was not questioned or challenged in appeal by anybody. Therefore, the
same is binding upon the parties and cannot be re-opened in these
proceedings. In support of this contention, the learned Counsel has relied
upon the decision reported in 1966(1) Mys. L.J 655(F.B) (T. Srirangachar
and Anr. v. State of Mysore) which has followed another Division Bench in
the case reported in 1967(2) Mys. L.J. 373 (D.S. Thayamma v. State of
Mysore). Lastly, he has contended that the power of this Court under
Article 226 of the Constitution is very limited and the same can be
exercised to quash the order impugned only if it is established by the
petitioners that the same suffers from unreasonableness, arbitrariness. In
thus regard he cited the decisions of the Apex Court (Surya Dev Rai v. Ram
Chander Rai and Ors.) para 38, (Commissioner of Customs, Calcutta and
Ors. v. Indian Oil Corporation Ltd and Anr.) para 24. The learned Counsel
has further vehemently submitted that the Land Grant Rules, particularly
Rule 27 of KLG Rules is not applicable to the lands in question for grant of
lands in favour of the Association and therefore he submits that the
impugned order or cancellation of grant of lands is legal and valid. In
support of this Marketing (Marketing Division) Coal India Ltd. and Anr. v.
Mewat Chemicals & Tiny SSI Coal Pulverising Unit and Ors.) and (Appa
Narsappa Magdum(D) Through LRs. v. Akubai
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Ganapati Nimbalkar and Ors.)
On a perusal of the aims and objects of the PTCL Act and especially the
definition of "granted land" as per Section 3(1)(b), it is seen that to bring
any granted land within the definition the condition precedent is that
such land should have been granted to a person belonging to either
Scheduled Caste or Scheduled Tribe. It is to be remembered here itself
that under the provisions of the Land Revenue Act and various other
provisions like the Karnataka Land Reforms Act, Land Grant Rules, etc.,
time and again provisions are made to encourage cultivation and for grant
of lands to the persons who do not own land or who belong to either
depressed class or who are below the poverty line. In a loose sense, all
such granted lands cannot be the land coming within the purview of
Section 3(1)(b) as stated and as is defined, the land must have been
granted only to a person who belongs to either Scheduled Caste or
Scheduled Tribe. If the grant is for any other reason and even if
incidentally such grantee belongs to Scheduled Caste or Scheduled Tribe,
in my view, the PTCL Act is not attracted. In a recent pronouncement of
this Court in the case of Abdul Haq Shamshuddin Saheb v. Deputy
Commissioner, Uttara Kannada District, Karwar and Ors.,2002(5) Kar. L.J.
109 considering similar question as to the grant under the Land Revenue
Act to the Land Grant Rules to a person belonging to and only on that
count vis-a-vis the grant or conferment of right under the Land Reforms
Act, this Court has held that to invoke the provisions of the PTCL Act it
must be shown that the land was granted to a person belonging to
Scheduled Caste or Scheduled Tribe only on that count and not otherwise.
This is more so, since like the provisions of the Land Reforms Act any
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person belonging to either Scheduled Caste or Scheduled Tribe or even
higher class can claim grant of occupancy right and, if he shows
compliance with the necessary conditions, he is entitled for such
conferment of occupancy rights or grant of the land. At that stage, it is not
necessary that he should belong to a particular caste or community. As
such, reiterating the same principle in my view to bring a land within the
definition of "granted land" as per Section 3(1)(b) of the PTCL Act as well
as the applicability and invoking the provisions of the PTCL Act, it is
mandatory and necessary to show that the land in question was granted
to the petitioner or the claimant/grantee only on the ground that he
belongs to depress class or community.
CIVIL COURT CANNOT RE-OPEN THE INAM LAND DISPUTE
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
Sridhara babu. N
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."
Sridhara babu. N
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."
LAND CONVERSION - WHEN CONVERSION OF LAND IS NOT REQUIRED -
TENANCY AND CONVERSION
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,
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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
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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-
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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
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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
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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
Sridhara babu. N
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.
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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.
TENANCY
Sridhara babu. N
1980(1) KLJ 281 (Putta Gowda. v. State and Ors.), wherein it has been
held as follows: Where even after order permitting surrender registered
in 1965 a tenant was in possession he must be held or deemed to be a
tenant granted occupancy rights. Mere permission to surrender without
delivery of it does not apprehend the relationship of landlord and tenant
delivery of possession by the tenant to the landlady is acceptance from
the possession or initiated to effect to surrender.
ENTRIES IN REVENUE RECORDS SHOULD BE SUPPORTED BY
DOCUMENTS
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
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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.
PROVISIONS OF CPC NOT APPLICABLE TO LAND TRIBUNAL
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
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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.
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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
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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.
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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.
PROTECT PUBLIC LANDS TOLD LONG BACK IN 1998 ITSELF BY HIGH
COURT
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,
Sridhara babu. N
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
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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."
REVENUE ENTRIES - RIGHTS TO PROPERTY - CIVIL COURT IS
APPROPRIATE FORUM 2006 KAR
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
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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........
ANY ONE HAVING TITLE TO BE SHOWN AS KHATEDAR
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
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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.
MOTHER IS ENTITLED TO TEN UNITS IN CEILING LIMIT OF
AGRICULTURAL LAND UNDER LAND REFORMS ACT
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
Sridhara babu. N
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.
As far as the jurisdiction issue is concerned, the Apex Court in the case of
Dhulabhai v. State of M.P. AIR 1969 SC 78, has laid down the principles
regarding exclusion of jurisdiction of civil court and the said principle are
as under:
(1) Where the statute gives a finality to the orders of the special tribunals
the civil courts' jurisdiction must be held to be excluded if there is
adequate remedy to do what the civil court would normally do in a suit.
Such provision, however, does not exclude those cases where the
provisions of the particular Act have not been complied with or the
Sridhara babu. N
statutory tribunal has not acted in conformity with the fundamental
principles of judicial procedure.
(2) Where there is an express bar of the jurisdiction of the court, an
examination of the scheme of the particular Act to find the adequacy or
the sufficiency of the remedies provided may be relevant but is not
decisive to sustain the jurisdiction of the civil court. Where there is no
express exclusion the examination of the remedies and the scheme of the
particular Act to find out the intendment becomes necessary and the
result of the inquiry may be decisive. In the latter case, it is necessary to
see if the statute creates a special right or a liability and provides for the
determination of the right or liability and further lays Page 2280 down
that all questions about the said right and liability shall be determined by
the tribunals so constituted, and whether remedies normally associated
with actions in civil courts are prescribed by the said statute or not.
(3) Challenge to the provisions of the particular Act as ultra vires cannot
be brought before Tribunals constituted under that Act. Even the High
Court cannot go into that question on a revision or reference from the
decision of the Tribunals.
(4) When a provision is already declared unconstitutional or the
constitutionality of any provision is to be challenged, a suit is open. A writ
of certiorari may include a direction for refund if the claim is clearly
within the time prescribed by the Limitation Act but it is not a compulsory
remedy to replace a suit.
(5) Where the particular Act contains no machinery for refund of tax
collected in excess of constitutional limits or illegally collected, a suit lies.
Sridhara babu. N
(6) Questions of the correctness of the assessment apart from its
constitutionality are for the decision of the authorities and a civil suit
does not lie if the orders of the authorities arc declared to be final or there
is an express prohibition in the particular Act. In either case the scheme of
the particular Act must be examined because it is a relevant enquiry.
(7) An exclusion of jurisdiction of the Civil Court is not readily to be
inferred unless the conditions above set down apply: case law discussed.
In State of Andhra Pradesh v. Manjeti Laxmi Kantha Rao 2000 AIR SCW
2334 , the Hon'ble Supreme Court, while referring to Dhulabhai
case(supra) laid down a test to be adopted in examining the question
whether jurisdiction of the Civil Court is excluded, as under: "The normal
rule of law is that Civil Courts have jurisdiction to try all suits of civil
nature except those of which cognisance by them is either expressly or
impliedly excluded as provided under Section 9 of the Code of Civil
Procedure but such exclusion is not readily inferred and the presumption
to be drawn must be in favour of the existence rather than exclusion of
jurisdiction of the Civil Courts to try civil suit. The test adopted in
examining such a question is (i) whether the legislature intent to exclude
arises explicitly or by necessary implication, and (ii) whether the statute
in question provides for adequate and satisfactory alternative remedy to a
party aggrieved by an order made under it."
In the case of Irawwa and Ors. v. Krishnaji Venkatesh Naik and Ors. 1996
(2) KLJ 285 this Court has held that in respect of boundary dispute under
the Karnataka Land Revenue Act, 1964, if a dispute arises, the same will
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have to be decided by the Survey Officer and the Tahsildar and not by the
Civil Court.
In yet another decision, in the mm of Ramajois v. Chief secretary dealing
with a case arising out of an order passed by the Tahsildar under the Land
Revenue Act, 1964, this Court has held thus: The order in question having
been issued by the Tahsildar who is Revenue Officer subordinate to the
Assistant Commissioner, an appeal lies under Clause (a) of Section 49. The
jurisdiction of Civil Courts to entertain any suit or other proceeding
against the State Government on account of ay act or omission of the State
Government or any Revenue Officer is barred under Section 63 of the Act,
unless the plaintiff first proves that prior to the institution of the suit or
other proceeding, he has presented all such appeals allowed by the law
for the time being in force, within the period of limitation. Section 63 is an
express bar to the filing of a suit, unless the plaintiff has exhausted the
remedies provided under the Act by filing an appeal. When there is an
express bar in the Act, Section 9 of CPC will not come to the aid of the
appellant.
Whether the Civil Court has got the jurisdiction to go into the issue
concerning fixing of boundaries, maintenance of boundaries of lands or
sub-division of lands came up for consideration in the case of Patel
Doddakempegowda v. Chikkeeregowda ILR 1986 KAR 2404 and dealing
with the said question, this Court has laid down the following provisions
of law: Section 61(e)(ii) of the Act not only lays down that the exclusive
jurisdiction is of Revenue Court, but also bars the jurisdiction of Civil
Courts...when the Civil Court has no jurisdiction to hold that an entry
made in any record of revenue survey or settlement is wrong, it cannot, in
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law proceed to grant the relief prayed for by the plaintiff because that
relief is based on such a finding to be recorded by the Civil Court. The
object behind Section 61 is to provide finality for the acts covered by it
and the other provisions Page 2282 of the Act viz., Sections 109 and 140.
It has been left to the exclusive jurisdiction of the Revenue Courts to fix
the boundaries and maintain the boundaries of lands or sub-division of
lands, to fix the revenue and re-assess the revenue and so on. Civil Courts
are not permitted to have a hand in any of these matters.
Justice V.G. Sabhahit of Karnataka High Court in the case of B.
Bhadragiri Gowda vs The State Of Karnataka Reported in ILR 2007
KAR 110, 2007 (6) KarLJ 586 has held that "It is well settled that when
there is delay in filing the appeal, the question as to whether sufficient
cause has been made out for condoning the delay shall be considered
after issuing notice to the respondents and question of condoning the
delay even without issuing notice to the respondents and entertaining the
appeal and issuing notice in appeal does not arise as the appellate
authority would get jurisdiction to decide the appeal on merits only after
delay is condoned in accordance with law after notifying the respondents.
Under the circumstances, the order passed by the Assistant Commissioner
is clearly erroneous and the same has been erroneously confirmed by the
Deputy Commissioner and so far as the order passed by the Deputy
Commissioner confirming the order passed by the Assistant
Commissioner impugned in this writ petition is liable to be set aside and
remitted to the Assistant Commissioner for fresh disposal in accordance
with law."
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Justice V.G. Sabhahit of Karnataka High Court in the case
of Doddahanumappa And Ors. vs The Deputy Commissioner And Ors
Reported in 2007 (6) KarLJ 598 It is well-settled that the Revenue
Authorities have no jurisdiction to go into the validity of the decree
passed by the Civil Court and if the petitioners feel that the said decree
has been obtained by practicing fraud, they have to obtain necessary
declaration about the validity of the said compromise decree and
thereafter make an application for change of entry.
Justice V.G. Sabhahit of Karnataka High Court in the case of Sri Umesh
N. Divagi And Ors. vs The State Of Karnataka Reported in 2007 (2)
KarLJ 140 The Deputy Commissioner has also observed in his order that
even though form No. 7 has been rejected, the land cannot be restored to
the petitioners by the revenue Authorities as the lessees have continued
to be in possession of the lease deed and they have continued after the
lease period is over and unless the possession is taken in accordance with
law, restoration cannot be done by the Revenue Authorities. Accordingly,
I do not find any reason to interfere with the order passed by the Deputy
Commissioner in exercise of power of this Court under Articles 226 and
227 of the Constitution of India.
Justice K. Ramanna, of Karnataka High Court in the case of Gangamma
And Anr. vs The Deputy Commissioner And Ors. Decided on 17-02-
2006 So, in order to get the mutation entered in their names, it is for the
petitioners to prove by producing the documents like registered sale
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deed, mortgage, grant order or occupancy right. But in the instant case, no
such documents have been produced by the petitioners before the
revenue authorities to claim the land in question. The Deputy
Commissioner who had passed the impugned order at Annexure-L
holding that the petitioners herein have not at all produced the relevant
documents like registered sale deed, gift or mortgage deed, occupancy
right granted if any and the mutation entry confirmed by the Assistant
Commissioner is liable to be set aside. It is for the parties to prove their
title or right over the property before the Competent Civil Court.
Therefore, viewed from any angle, I do not find any good reasons to
interfere with the impugned order under challenge.
Justice N.K. Patil, of the Karnataka High Court in case of Smt.
Shivagangavva vs The Deputy Commissioner And Ors. Reported
in ILR 2007 KAR 4542 Considering Rule 43 when a person claims title to
a property under a Will for the purpose of getting a mutation entry in the
revenue records before any such entry is made the Revenue Court should
prima facie be satisfied that the said documents is genuine and valid even
in the absence of any dispute as the said Will comes in the way of natural
succession. By virtue of Section 128 when the owner of the land dies, the
title to the said property passed on to the legal heir by succession or
survivorship or inheritance and the property vests with such a legal heir
without there being any document and purely based on the relationship
of the deceased with the legal heir. A Will can come into operation only
after the death of the executant. If a Will is set up to deprive a legal heir
who had acquired title to the property either by succession, survivorship
or inheritance, the person claiming under the Will has to show better title.
If the Will is disputed strict proof of Will as required under Sections 63
and 64 of the Succession Act is to be provided. When the revenue Court is
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prevented from recording the statement of the parties and the
depositions, the question of establishing the genuineness of the Will for
any purpose whatsoever before the revenue Court in an enquiry would
not arise. Under these circumstances, the revenue Courts have no
jurisdiction to go into the genuineness or validity of the Will or to the
question of title in respect of the land in dispute. The decision of the
revenue Court has to be necessarily based on the undisputed facts. The
Revenue Court cannot go into the disputed questions of relationship,
status of the parties title to the property or genuineness or otherwise of a
document or challenge to the documents on the ground of fraud, undue
influence, misrepresentation or mistake. As such, the petitioner cannot
take advantage of Rule 43 in the case of Will.
Justice V.G. Sabhahit of the Karnataka High Court in case of, Ramadurga
Dyavamma Alias R. ... vs State Of Karnataka And Ors. Reported
in 2007 (3) KarLJ 120 It is now well-settled that when there is delay in
filing the revision petition and application was filed for condoning the
delay, the application for condonation of delay has to be decided in the
first instance and only if the delay is condoned, the revision can be
disposed of on merits and revision cannot be disposed of without giving
finding in the application for condonation of delay as Revisional Authority
will get jurisdiction to decide the revision on merits only after the delay is
condoned and having regard to the fact that the Deputy Director has
disposed of the revision without considering the application for
condonation of delay and without affording opportunity to the petitioner
to substantiate the contention, I hold that the order passed by the Deputy
Director of Land Records, Bellary, impugned in the writ petition dated 30-
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4-2003 is liable to be set aside and remitted to the Deputy Director of
Land Records for fresh disposal, in accordance with law.
WHETHER GRANTED LAND ENURES TO THE ENTIRE BENEFIT OF
FAMILY DEPENDS UPON THE FACTS OF EACH CASE
It also distinguished the decision 01 the Supreme Court in The Mate of
U.P. -v.- Rukmini Raman, AIR 1971 SC 1687 and held as follows : "In my
opinion, the facts are distinguishable and the decision relates to transfer
by way of gift of a part of the estate which consisted of certain Inamindari
villages. In the present instances, the suit land is not an estate inherited as
an ancestral property, but it is the service inam land given to the holder of
the office. The rule of law laid down in Rukmini Rama's case cannot apply
to the fact of the present case. In the result, I hold that the plaintiff's father
alone was the exclusive owner of the suit property and the property has
been regranted only to the plaintiff. The defendants have failed to prove
that it is the joint family property and that the regrant enures to the
benefit of plaintiff and defendants. Hence Issues 1 and 2 are answered in
the affirmative and Issue No. 5, 6 and Additional Issue No. 1 are answered
in the negative."
Justice Sabhahit J. in Appanna -v.- Lakkappa Devappa, 1983 (1) KLJ 482
on consideration of the provisions contained in Section 5 of the Act
pertaining to walikarki land has held that in the case of 'walikarki'
properties, when a regrant is made in the name of one of the members of
the family, who was performing the walikarki services, the grant enures
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to the benefit of all the holders of that office in the family, and the
members of the family have a right to claim partition in the said regranted
land.
Nagesh Bisto Desai Etc. Etc vs Khando Tirmal Desai Etc. AIR 1982 SC 887,
1982 SCR (3) 341, Under s. 4 (1) of the Bombay Pargana and Kulkarni
Watans (Abolition) Act, 1950 and s. 7 of the Bombay Merged Territories
Miscellaneous Alienations Abolition Act, 1955 all the watan lands were
re- granted to the plaintiff and he was deemed to be the occupant thereof
within the meaning of the Bombay Land Revenue Code. ……….. ….. The
Watan Act contemplated two classes of persons. One is a larger class of
persons belonging to the watan families having a hereditary interest in
the watan property as such and other a smaller class of persons who were
appointed as representative watandars and who were liable for the
performance of duties connected with the office of such watandars. As
already indicated, it would not be correct to limit the word 'Watandar'
only to this narrow class of persons who could claim to have a hereditary
interest both in the watan property and in the hereditary office. Watan
property had always been treated as property belonging to the family and
all persons belonging to the watan family who had a hereditary interest in
such watan property were entitled to be called "watandars of the same
watan" within the Watan Act. ………….The effect of these Acts was to bring
out a change in the tenure or character of holding as watan lands but they
did not affect the other legal incidents of the property under the personal
law. That being so, the members of a joint Hindu family must be regarded
as holders of the watan land along with the watandar for the time being
and therefore regrant of the lands to the watandar under s. 4(1) of the
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1950 Act and under s. 3 of the 1955 Act must enure to the benefit of the
entire joint Hindu family.
Doddamma vs Muniyamma And Ors. ILR 2005 KAR 568, 2005 (1) KarLJ
503 It is clear from the above said provisions of the Inams Abolition Act
and the provisions of the Land Reforms Act that so far as the rights of the
tenants are concerned, the provisions of the Karnataka Land Reforms Act
are similar to the provisions of the Inams Abolition Act though the
provisions may not be similar in respect of the owners of the lands under
Karnataka Land Reforms Act and Inam holders and inamdars under the
Inams Abolition Act. However, so far as the tenants are concerned, the
effect of the above said proceedings is that from the appointed date, the
relationship of the landlord and tenant ceases and the property vests with
the Government and the tenant is entitled to conferment of occupancy
right as per the provisions of the Inams Abolition Act. The object of the
Inams Abolition Act as already culled out from the observations made in
MUNIRAJ's case (2004(3) KLJ 570) is to see that the applications attached
to the imams are abolished by vesting of the property in the State and the
tenants would get occupancy right under the Inams Abolition Act and in
substance, there is change of tenure and the property would vest with the
State absolutely free from all encumbrances and the relationship of
landlord and tenant ceases and on conferment of occupancy right, the
tenant would get the right under the Inams Abolition Act. While
considering the provisions of the Karnataka Land Reforms Act and
dealing with the question as to whether the occupancy right granted in
favour of a member of the joint family would enure to the benefit of all the
members of the joint family and whether a civil suit can be filed for
partition and separate possession in respect of the occupancy right that is
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granted under the Karnataka Land Reforms Act, the Hon'ble Supreme
Court in the case of BALAWWA AND ANR. v. HASANABI AND ORS., (2000)
9 SCC 272 has observed as follows:- “………..High Court was fully justified
in coming to the conclusion that the so-called order of the Land Tribunal
under the Karnataka Land Reforms Act would enure to the benefit of the
other members who were otherwise eligible for a share in the property in
question. Therefore, we see no infirmity with that conclusion so as to be
interfered with by this Court.”
A division Bench of Karnataka High Court in APPI BELCHADTHI AND ORS.
v. SHESHI BELCHADTHI AND ORS., 1982 (2) KLJ 565 has observed as
follows:- "18. The questions such as, the existence of a joint family, the
rights of the members thereof, the position and power of the manager,
and the nature of the property acquired by them are not so simple to be
decided by a summary enquiry, and that too without the assistance of
trained lawyers. The joint Hindu Family or coparcenary is a creature of
Hindu Law. The status of every Hindu family is presumed to be joint, joint
in food, worship and estate. That presumption is stronger in the case of
brothers. Once the family is proved to be joint, that presumption
continues until it is rebutted. Those who allege separation must prove
unless it is admitted that there was a separation at some point of time.
The question as to whether a particular family retains its character of
jointness at a particular time is a difficult question for decision. Mere
severance in food and worship does not effect a separation of the family
nor separate residence by members operates as a severance of the joint
status. We are only mentioning some of these principal features to
impress upon that the decision on these questions requires a lot of
brooding even by Courts of law. One could only images the difficulties of
Tribunals without proper wherewithal."
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The same principle is reiterated by the Division Bench of this Court
in GURUVAPPA AND ANR. v. MANJAPPU HENGSU AND ORS., ILR 1985
KAR 386, 1985 (1) KarLJ 51 It is clear from the above said observations
made by this Court that effect of abolition of the relationship of landlord
and tenant or vesting of the property in the State and conferment of
occupancy right on the tenant would only result in the change of tenular
of the tenant as the same would not affect the personal inam of the
parties. When there is a rival claim before the Land Tribunal with regard
to the fact that the tenancy is individual or joint family tenancy, the
Tribunal is bound to decide the said question while considering the rival
applications filed by the members of the family. However, when,
application for conferment of occupancy right is filed by one of the
members of the family, conferment of the occupancy right on the said
applicant, would not preclude the other members of the family to contend
that the said tenancy is the joint family tenancy and that they are entitled
to partition and separate possession of the shares. Under the Inams
Abolition Act, no power is given to the competent authority to pass a
decree for partition and what is required to be considered by the
authorities is only as to whether the applicant is entitled to conferment of
occupancy right as a tenant under Section 5 of the Inams Abolition Act,
which is relevant for the purpose of this case to decide the question as to
whether he was a permanent tenant on the date of vesting.
Supreme Court in the appeal preferred against the judgment in
Mudukappa's case which is reported in AIR 1994 SC 1490 affirming the
view of Karnataka High Court held as under :- "It is seen that the words
'tenant', 'the Tribunal', and 'the joint family' have been defined under the
Act. If one of the members of the family cultivates the land, it is for and on
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behalf of the joint family. Under these circumstances, pendings the suit,
when the question arose whether the appellant or Joint family is the
tenant, that question should be decided by the Tribunal alone under
Section 48A read with Section 133 and not by the Civil Court…….”
Justice N.Kumar in the case of Sri Parushuram Nemani Kuduchakar ... vs
Smt. Shantabai Ramachandra Reported in ILR 2004 KAR 3355, 2004 (6)
KarLJ 275 summarised the point of law on the subject as follows:-
(i) The Tribunal alone has the exclusive jurisdiction to decide the question
whether a person is a tenant or not of the land in question, and the Civil
Court has no jurisdiction or power to decide the same.
(ii) If a rival claim is made before Land Reforms Tribunal one party
contending that the tenancy rights exclusively belongs to himself and
another contending that tenancy rights belonging to the joint family and
therefore all of them are entitled to grant of occupancy rights, the
Tribunal has the jurisdiction to go into the question whether tenancy
rights claimed belongs exclusively to one of the member of the joint
family or it belongs to the joint family, as it is incidental and necessary to
decide the question of grant of occupancy rights.
(iii) If before grant of occupancy rights the Tribunal adjudicates the rival
claims and holds that the tenancy pleaded exclusively belongs to the
applicant in whose favour the occupancy right is granted and it does not
belong to the joint family, the parties have to challenge the said order
under the provisions of the Land Reforms Act only and the Civil Court has
no jurisdiction to sit in judgment over the said decision of the Land
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Tribunal nor can ignore the said finding and record a finding contrary to
the one recorded by the Tribunal in a suit for partition.
(iv) If tenancy is not disputed or rival claims by members of the joint
family are not put forth and agitated, after grant of occupancy rights by
the Tribunal, Civil Court can entertain a suit for partition in respect of
such property, decide whether such property is a joint family property or
the separate property of the applicant to whom the occupancy right is
granted, and grant a decree for partition.
(v) If the question of tenancy belonging to the joint family is raised before
the Land Tribunal and the Tribunal does nqt decide the said question one
way or other and leaves it to be decided by Civil Court; Civil Court is not
precluded from going into the said question after the tenancy rights has
been granted in favour of one of the claimants, while considering the
relief of partition.
(vi) The Civil Court alone has the jurisdiction to entertain a suit for
partition and to grant the relief of partition and the Tribunal has no
jurisdiction to entertain and grant a decree for partition.
Justice N.Kumar in the case of Sri Parushuram Nemani Kuduchakar ... vs
Smt. Shantabai Ramachandra Reported in ILR 2004 KAR 3355, 2004 (6)
KarLJ 275 summarised the point of law on the subject as follows:- The
division of the ryotwari properties and the parties not living together are
not relevant. The suit lands are the Shet-Sanadi lands attached to the
village office. As long as the village office continued, the suit lands were to
go along with the village office and were to be enjoyed by the holder at
the village office. They came to be released from the category of sheth-
sanadi inam lands and became ryotwari lands and available for partition
only on the abolition of the village office and regrant of the same under
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Section 5 of the Act. Till then the plaintiffs could not have sought for
partition and possession of their shares in the suit lands. Therefore, the
fact that the plaintiffs and the defendants had divided their ryotwari
properties and were living separately for a long period is of no
consequence and does not have any bearing on the right to seek partition
of the suit lands which had accrued to them only on 3-9-1973.
Accordingly, the contention is rejected.
BHIMAPPA RAMAPPA GHASTI v. ARJAN LAXMAN GHASTI, 1993(2) KLJ
179 that: "after the abolition of the village office and resumption of the
land, it becomes a ryotwari land only on regrant and as such it would be
released from the nature of its impartibility and becomes available for
partition."
CHANDRABAI v. LAXMIBAI, 1975(1) KLJ Sh.N. Item No. 19, as follows: "A
grant of land resumed under Section 4 to the holder of the Village Office
has to be regarded as compensation to the holder of the Village Office.
Until the lands are regranted to the holder of the Village Office, other
members of the family derive no title, assuming that the watan was family
property which was impartible until its abolition. It is too premature for
them to institute a suit for partition before re-grant is obtained by the
holder of the Village Office."
RELEVANCY OF STATEMENT MADE DURING MUTATION
PROCEEDINGS 2003 SC
Sridhara babu. N
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
Sridhara babu. N
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.
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Consequently, no exception could be taken to the dismissal of the suit in
its entirety.
PROVISIONS OF KARNATAKA LAND REFORMS ACT UPHELD BY
CONSTITUTION BENCH 2011 SC
THE KARNATAKA LAND REFORMS ACT INCLUDING SECTION 110 WAS
PLACED IN IXTH SCHEDULE IN THE YEAR 1965 AND, HENCE, IMMUNE
FROM CHALLENGE IN A COURT OF LAW.JUSTICE S.H. KAPADIA,
JUSTICE MUKUNDAKAM SHARMA, JUSTICE K.S. RADHAKRISHNAN,
JUSTICE SWATANTER KUMAR, JUSTICE ANIL R. DAVE of Supreme court
of India in the case of K.T. PLANTATION PVT. LTD. & ANR. Vs. STATE OF
KARNATAKA, 09/08/2011 2011 AIR 3430, 2011(13) SCR 636, 2011
(9) SCC 1 2011(9) JT 65 2011 (8) SCALE 583 Whether Section 110 of
the Karnataka Land Reforms Act, 1961, as amended by the Karnataka
Land Reforms amendment Act, 1973, (Act 1 of 1974), which came into
effect from 01.03.1974, read with Section 79 B of the said Act, introduced
by amending Act 1 of 1974, violates the basic structure of the
Constitution, in so far as it confers power on the Executive Government, a
delegatee of the Legislature, of withdrawal of exemption of Linaloe
plantation, without hearing and without reasons? HELD the Land Reforms
Act including Section 110 was placed in IXth Schedule in the year 1965
and, hence, immune from challenge in a court of law.Chapter V of the Act,
as we have already indicated, imposes certain restrictions on holding or
transfer of agricultural lands. Section 79B(1) of the Act prohibits holding
of agricultural land by certain persons which says that with effect on and
from the date of commencement of the Amendment Act (Act 1/74) w.e.f.
1.3.1974, no person other than a person cultivating land personally shall
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be entitled to hold land; and that it shall not be lawful for, a company inter
alia to hold `any land'. Further sub- section (2) of Section 79B states that
the company which holds lands on the date of the commencement of the
Amendment Act and which is disentitled to hold lands under sub-section
(1), shall within ninety days from the said date furnish to the Tahsildar
within whose jurisdiction the greater part of such land is situated a
declaration containing the particulars of such land and such other
particulars as may be prescribed; and which acquires such land after the
said date shall also furnish a similar declaration within the prescribed
period. Sub- section (3) of Section 79B states that the Tahsildar shall, on
receipt of the declaration under sub- section (2) and after such enquiry as
may be prescribed, send a statement containing the prescribed
particulars relating to such land to the Deputy Commissioner who shall,
by notification, declare that such land shall vest in the State Government
free from all encumbrances and take possession thereof in the prescribed
manner. Sub- section (4) of Section 79B states that in respect of the land
vesting in the State Government under that section an amount as
specified in Section 72 shall be paid. Explanation to Section 79B states
that for the purpose of that section it shall be presumed that a land is held
by an institution, trust, company, association or body where it is held by
an individual on its behalf. Section 80 bars transfer of any land to non-
agriculturists, which says that no sale, gift or exchange or lease of any
land or interest therein etc. shall be lawful in favour of a person who is
disentitled under Section 79A or 79B to acquire or hold any land.
The first appellant being a company was, therefore, prohibited from
holding any agricultural land after the commencement of the Act. If the
company was holding any land with Linaloe cultivation on the date of the
commencement of the Act, the same would have vested in the State
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Government under Section 79B(3) of the Act and an amount as specified
in Section 72 would have been paid. Section 104, however, states that the
provisions of Section 38, Section 63 other than sub- section (9), thereof,
Sections 64, 79-A, 79-B and 80 shall not apply to plantations and is not
made subject to the provisions of Section 110.
Chapter VIII of the Land Reforms Act deals with exemption provisions.
Section 104 of the Act deals with plantations, which says, that the
provisions of Section 38, Section 63, other than sub-section (9), thereof,
Sections 64, 79-A, 79-B and 80 shall not apply to plantations, but the
power to withdraw the exemption in respect of the plantations, has not
been conferred on the State Government, but evidently retained by the
Legislature. Legislative policy is therefore clearly discernible from the
provision of the Statute itself, that, whenever the Legislature wanted to
confer the power to withdraw the exemption to the State Government it
has done so, otherwise it has retained the power to itself.Further, the
Land Reforms Act including Section 110 was placed in IXth Schedule in
the year 1965 and, hence, immune from challenge in a court of law.Dr.
Roerich and Mrs. Devika had got only the conditional exemption from the
provisions of the Land Reforms Act for the lands used for Linaloe
cultivation and, hence, they also would have lost ownership and
possession of the lands once the exemption had been withdrawn and the
land would have vested in the State. The land was purchased by the
Company with that statutory condition from Roerichs and, hence, was
bound by that condition. We, therefore, reject the contention that Section
110 is void due to excessive delegation of legislative powers.
Section 80 prohibits transfer of any land to non- agriculturalist. Section
80(1)(iv), states that it shall not be lawful to sell, gift, exchange or lease of
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any land, in favour of a person, who is disentitled under Section 79-B, to
acquire or hold any land. The expression "land" has been
defined under Section 2(18) which is all comprehensive and takes in
agricultural lands, that is land which is used or capable of being used for
agriculture, but for the exemption granted under Section 107(1)(vi) lands
used for the cultivation of linaloe would have fallen under Section 2(18).
But, so far the company is concerned, the prohibition was total and
complete since Section 79-B states that it would not be lawful for a
company to hold "any land", with effect and from the date of
the commencement of the amending Act. The Company, therefore, could
not have held the land used for the cultivation of Linaloe on the date of
the commencement of the Act. Further on withdrawal of exemption vide
notification dated 08.03.94 the Company was disentitled to hold the land
belonging to Roerichs' since the same would be governed by the
provisions of the Land Reforms Act.We also find no force in the
contention that opportunity of hearing is a pre-condition for exercising
powers under Section 110 of the Act. No such requirement has been
provided under Section 107 or Section 110. When the exemption was
granted to Roerichs' no hearing was afforded so also when the exemption
was withdrawn by the delegate. It is trite law that exemption cannot be
claimed as a matter of right so also its withdrawal, especially when the
same is done through a legislative action. Delegated legislation which is a
legislation in character, cannot be questioned on the ground of violation
of the principles of natural justice, especially in the absence any such
statutory requirement. Legislature or its delegate is also not legally
obliged to give any reasons for its action while discharging its legislative
function.
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In B. Basavalingappa v. D. Munichinnappa [1965] 1 S. C. R. 316. the
relevant facts were that M who was elected from a Scheduled Castes
constituency claimed to belong to the Bhovi caste which was one of the
Scheduled Castes mentioned in the Constitution (Scheduled Castes)
Order, 1950 issued by the President under Art. 341 of the Constitution. In
an election petition it- was claimed that M belonged to the Voddar caste
which was not mentioned in the Order and that on- that account M was
not entitled to stand for election from Scheduled Caste constituency.
Evidence was led before the Election Tribunal that Bhovi was a sub-caste
of the Voddar caste and as M did not belong to the Bhovi sub-caste he
could not stand for election from the constituency. The High Court in
appeal held that although Voddar, caste was not included in the Order, yet
considering the facts and circumstances in existence at the time when the
Order was passed in 1950, the Bhovi caste mentioned in the order was
the same as the Voddar caste. In appeal to Supreme Court it was
contended that the High Court was wrong in considering the evidence and
then coming to the conclusion that the caste Bhovi mentioned in the
Order was meant for the caste Voddar and that the Tribunal' should have
declined to allow evidence to be produced which would have the effect of
modifying the Order issued by the President. Supreme Court held that the
evidence clearly showed that in 1950 when the Order was passed there
was no caste in the then Mysore State which was known as Bhovi and the
Order could not have intended to recognise a caste which did not exist. It
was therefore necessary to find out which caste was meant by the use of
the name Bhovi and for that purpose evidence was rightly recorded by the
Tribunal and acted upon by the High Court. Supreme Court accordingly
confirmed the, view of the High Court.
Sridhara babu. N
Bharat Singh And Anr vs Bhagirathi AIR 1966 SC 405,
FACTS:- The appellants filed a suit for a declaration that the entry in the
name of the respondent in the Jamabandi papers of certain villages was
incorrect and alleged that they along with their brother, the husband of
the respondent, constituted a joint Hindu family, that their brother died as
a member of the joint Hindu family and thereafter his widow- the
respondent--lived with the appellants who continued to be owners and
possessors of the property in suit, the widow being entitled to
maintenance only, and that by mistake the respondent's name was
entered in village records in place of the deceased husband. The
respondent contested the suit alleging, inter alia, that her husband did not
constitute a joint Hindu family with the appellants at the time of his death
and also that the suit was barred by time as she had become owner and
possessor of the land in suit in 1925 on the death of her husband when
the entries in her favour were made, and the suit was brought in 1951.
The respondent had admitted in certain documents about the existence of
the joint Hindu family or a joint Hindu family firm.
HELD:- There is a strong presumption in favour of Hindu brothers
constituting a joint family. It is for the person alleging severance of joint
Hindu family to establish it. The mere fact of the mutation entry being
made in favour of the respondent on the death of her husband was no
clear indication that there was no joint Hindu family of the appellant, and
the respondent's husband at the time of the latter's death.
Sridhara babu. N
In STATE OF HARYANA v. MOHINDER PAL the Supreme Court rejected an
appeal filed against a decision of the Punjab and Haryana High Court
which had held that the Government cannot take law into its own hand
while dispossessing persons in possession of land by putting up khokhas
(on the ground that they were unauthorized occupants to Government
land) but should have followed the due procedure prescribed by law. The
Supreme court held that: ".... Question of examining the title of the parties
does not arise at all as admittedly respondents were in possession of the
property in question and put up structures thereon. On that admitted
position, High Court took the view that ejectment of the respondents
forcibly without due recourse of law was not in due process. No exception
can be taken to that view at all. In fact, this view is consistent with what
has been stated by this Court........"
In PATIL EXHIBITORS PVT. LTD. v. BANGALORE CITY CORPORATION a
Division Bench of KARNATAKA HIGH Court observed thus: "It is part of
the concept of "Rule of Law" that no claim to a right to dispossess by the
use of force without recourse to procedure in accordance with law is
recognized or countenanced by Courts. Such a right in the respondent
cannot be recognised regardless of the question whether or not the
appellant (Licencee) itself has any subsisting right to remain in
possession. The protection that the Court affords is not of the possession
which in the circumstances is litigious possession and cannot be equated
with lawful possession but a protection against forcible dispossession.
The basis of relief is a corollary of the principle that even with the best of
title, there can be not forcible dispossession. .... Under our jurisprudence,
Sridhara babu. N
even an unauthorized occupant can be evicted only in the manner
authorized by law. This is the essence of the Rule of law."
In MUNSHI RAM v. DELHI ADMINISTRATION the Supreme Court
succinctly stated the legal
possession regarding settled possession thus; "It is true that no one
including the true owner has a right to dispossess the trespasser by force
if the trespasser is in settled possession of the land and in such a case
unless he is evicted in due course of law, he is entitled to defend his
possession even against the rightful owner. But, stray or even
intermittent acts of trespass do not give such a right against the true
owner. The possession which a trespasser is entitle to defend against the
rightful owner much be a settled possession extending over a sufficiently
long period and acquiesced in by the true owner. A casual act of
possession would not have the effect of interrupting the possession of the
rightful owner. The rightful owner may re-enter and reinstate himself
provided he does not use more force than necessary, such entry will be
viewed only as a resistance to an intrusion upon possession which has
never been lost. The persons in possession by a stray act of trespass, a
possession which has not matured into settled possession, constitute an
unlawful assembly, giving right to the true owner, though not in actual
possession at the time to remove the obstruction even by using necessary
force."
Sridhara babu. N
The principle was further elaborated by the Supreme Court in RAM
RATTAN v. STATE OF UTTAR PRADESH as follows: "..... It is well settled
that a true owner has every right to dispossess or throw out a trespasser,
while the trespasser is in the act or prices of trespassing, and has not
accomplished his possession, but this right is not available to the true
owner if the trespasser has been successful in accomplishing his
possession to the knowledge of the true owner. In such circumstances, the
law requires that the owner should dispossess the trespasser by taking
recourse to the remedies available under the law..... it may not be possible
to lay down a rule of universal application as to when the possession of a
trespasser becomes complete and accomplished"
In the decision reported in BABU VERGHESE v. BAR COUNCIL OF
KERALA, AIR 1949 SC 1281 it is held that the power conferred upon the
statutory Authority in the statute must be exercised in the manner as
prescribed in the statute.
It is the basic principle of law long settled that if the manner of going a
particular act is prescribed under any Statute, the act must be done in that
manner or not at all. The origin of this rule is traceable to the decision in
Taylor v. Taylor, "Where a power is given to do a certain thing in a certain
way, the thing must be done in that way or not at all". This rule has since
been approved by Supreme Court in Rao Shiv Bahadur Singh v. State of
Vindhya Pradesh, and again in Deep Chand v. State of Rajasthan, . These
cases were considered by a Three judge Bench of Karnataka High Court in
State of Uttar Pradesh v. Singhara Singh.
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In Mahadevappa And Ors. vs State Of Karnataka ILR 2008 KAR 1750
Hon’ble Justice H.V.G. Ramesh, Observed and directed state government
with following words: ………………..As per Section 17 of the Indian
Registration Act, it is compulsory that property valued more than Rs.
100/- has to be registered. That conveys and sanctions such transfer from
one person to the other. It is often noticed that property is being sold by a
person in favour of several persons taking advantage of the anomaly of
want of specific entries in the revenue records. Any prudent person
before purchasing a property would necessarily approach the revenue
authorities seeking for clarification or issuance of an endorsement as to
the possession or encumbrance on the property and that would form the
basis for him to go for negotiations and to purchase the property or get
the property transferred in his name in any mode of transfer provided
under the Transfer of Property Act. It is being noticed that neither the
purchaser nor the registering authority are performing their obligations
soon after such transfers are taking place by way of registration and re-
conveyance and transfer the title or interest from the vendor to the
vendee or transferee. In this regard what is being noticed is, when the
original entries in the revenue records continue even after such transfers
or assignments, the person who is interested in purchasing the property
is being mislead on some assurance or some false promise and gets into
problems in fighting litigation with the prior purchasers…………………. If
the said fact of earlier sale or transfer would not have been disclosed by
the original purchaser or registering authorities it not only leads to
multiplicity of proceedings but also causes financial hardship to the
subsequent purchasers of the same property which had been sold earlier
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to some other purchaser. For want of knowledge, even for an ordinary
man of prudence mere enquiry with the revenue authorities would not be
sufficient because of the fact the revenue authorities have only
maintained the original entries in the usual course as is noticed in the
years of practice, without making proper timely entries of such change of
title from the original owner to the subsequent purchase or from original
transferor to the tranferee. This anomaly is invariably found in all the
records maintained for want of compliance of the provisions of Section
128 and 129 of the Karnataka Land Revenue Act, 1964 although the Act
mandates such entry to be made within a reasonable time after following
the procedure under the said sections. For want of such strict compliance
by the purchaser or for lack of responsibility and inaction on the part of
the registering authorities in intimating this aspect to the revenue
authorities well within time, the ordinary man is forced to go through the
ordeal of fighting litigation and often it is also being noticed even in
respect of carrying out mutation entries on subsequent changes like
succeeding to the property as legal heirs on the death of the original
propositus, such anomalies are occurring and even the lands which are
notified for acquisition are also notified in the name of the original
kathedar in whose name the property stands although he has died several
years back, for want of entries of the names of persons who succeed him
and who are in real possession or cultivation of the property are not
notified. These anomalies have to be rectified to avoid all such
complications and it requires due compliance of Section 128 & 129 of the
Land Revenue Act. Though the law is clear on the point, but it is either not
meticulously followed or being implemented and thus causing various
litigation and hardship to the parties and also at the cost of the State
exchequer as well……………………… Of course, while referring to the right of
this petitioner what is being noticed specifically is the anomaly that is
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being invariably found and neglected by the revenue authorities all
because of non-compliance of the provisions of Section 128 & 129 of the
Land Revenue Act which is clear as is noted above. It is time to remind the
Government to take timely action to make necessary changes from time to
time in the revenue records. The Sub-registrars are duty bound to
intimate the revenue authorities in time as per Section 128(4) to avoid
multiplicity of litigation from the hands of unscrupulous vendors who
once again transfer the property although a transaction has already taken
place in the hands of one of the purchasers and the timely action of the
revenue authorities would form the basis for any subsequent purchaser
who intends to purchase the property over whom fraud could not be
played by the original transferor or the vendor when there is a transfer
from the first party to the second party and thereby once again the first
party shall not venture to transfer title or interest to a third party or any
other person for lack of knowledge of the intended subsequent
purchaser…………………. 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.
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Mariam Hussain W/O. Zaheed Hussein vs Syedani W/O. Late Syed
Mustafa And Ors. ILR 2007 KAR 2715 JUSTICE N. KUMAR OBSERVED: It
is to be noticed here that Ex.P-1, is not a simple agreement of sale entered
into between the parties voluntarily where one party is interested in
selling his property and the other interested in purchasing the property,
after mutual discussion and negotiation agreed on a price and then reduce
the terms in writing. It is a case of want of consensus ad-idem. Similarly
execution of a document does not mean signing of a document. The word
"execution" has a definite connotation in law. The person signing the
document must be aware of the contents of document and consciously
sign the document in token of acceptance of the contents of the said
document. If the execution of a document is denied it is for the party who
alleges the due execution to prove by acceptable evidence that the
executant affixed his signature to the document after being aware of the
contents of the document and in token of its acceptance so as to bind him.
When it is stated that the executant executed an agreement of sale it must
be shown that the executant had agreed to sell the property end in token
of acceptance of such agreement he has affixed his signature on the said
agreement of sell. The evidence on record do not disclose that the
defendant affixed his signature to the the suit document agreeing to sell
the schedule property in favour of the plaintiffs or in view of the decision
of Panchayatdars or on the basis of what was agreed to in the said
Panchayat. Therfore the finding of the courts below that the agreement of
sale is duly executed by the first defendant, as it bears his signature on the
document is illegal. ………………… The material on record disclose that this
property was granted to the first defendant 30 years prior to the date of
the suit. Mutation entries were made in his name. Attempt to delete the
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said mutation entry by the plaintiff was not successful. The defendant also
obtained a decree of permanent injunction against the plaintiff. The
material on record shows that he was cultivating the land and he has
raised (sic) trees and on 18.08.1982 he has handed over possession of the
property from that day till today. Ignoring all these material evidence on
record only relying on the interested testimony of the plaintiff and his
witness, whose evidence, as already stated do not infuse confidence, the
courts below have recorded a finding that the plaintiff is in possession
and the first defendant in not in possession. The said finding is perverse
and capricious and cannot be sustained.
The High Court of Jammu and Kashmir in the case of Hardatt Sharma v.
Jaikishen Shamlal & Sons reported AIR 1983 J & K-page No. 36, held as
under: ...True, Under Section 18 of Evidence Act, statements made by
persons from whom the parties to the suit have derived their interest in
the subject matter of the suit, are binding on such parties as their
admission, nevertheless, before the same may bind them, it has further to
be shown that the statements were made by those persons during the
continuance of their interest in the subject matter, and obviously so,
because, if would be highly unjust and improper to divest a person of his
right in the property, lawfully acquired by him form another, on the basis
of the latter's admission after his own interest in the property has ceased
to exist.
Chapter VI of the Karnataka Land Revenue Act, 1964 (hereinafter called
'the Act') deals with maintenance of Record of Rights. Section 128 deals
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with acquisition of rights to be reported, Section 129 deals with
registration of Mutations and the procedure for such registration, Section
129A deals with issue of patta book containing the copy of the Record of
Rights pertaining to such land. Section 130 deals with the obligation to
furnish information for compilation or revision of the Record of Rights
and as to the bar of suits against the State Government or its officials in
respect of daims for having the entry made in the Record of Rights,
reserving expressly the right to seek a correction of the entry in the
Record of Rights against persons who are interested in denying such a
right. It is clear from the above provisions that the entries in the Record of
Rights made after enquiry as provided for in Section 129 of the Act is
always subject to a final adjudication of the rights between the parties to
the land in question. At this stage, it is also necessary to observe and
reiterate that the enquiry is essentially summary in nature.
In B. Basavalingappa v. D. Munichinnappa [1965] 1 S. C. R. 316. the
relevant facts were that M who was elected from a Scheduled Castes
constituency claimed to belong to the Bhovi caste which was one of the
Scheduled Castes mentioned in the Constitution (Scheduled Castes)
Order, 1950 issued by the President under Art. 341 of the Constitution. In
an election petition it- was claimed that M belonged to the Voddar caste
which was not mentioned in the Order and that on- that account M was
not entitled to stand for election from Scheduled Caste constituency.
Evidence was led before the Election Tribunal that Bhovi was a sub-caste
of the Voddar caste and as M did not belong to the Bhovi sub-caste he
could not stand for election from the constituency. The High Court in
appeal held that although Voddar, caste was not included in the Order, yet
considering the facts and circumstances in existence at the time when the
Sridhara babu. N
Order was passed in 1950, the Bhovi caste mentioned in the order was
the same as the Voddar caste. In appeal to Supreme Court it was
contended that the High Court was wrong in considering the evidence and
then coming to the conclusion that the caste Bhovi mentioned in the
Order was meant for the caste Voddar and that the Tribunal' should have
declined to allow evidence to be produced which would have the effect of
modifying the Order issued by the President. Supreme Court held that the
evidence clearly showed that in 1950 when the Order was passed there
was no caste in the then Mysore State which was known as Bhovi and the
Order could not have intended to recognise a caste which did not exist. It
was therefore necessary to find out which caste was meant by the use of
the name Bhovi and for that purpose evidence was rightly recorded by the
Tribunal and acted upon by the High Court. Supreme Court accordingly
confirmed the, view of the High Court.
Bharat Singh And Anr vs Bhagirathi AIR 1966 SC 405,
FACTS:- The appellants filed a suit for a declaration that the entry in the
name of the respondent in the Jamabandi papers of certain villages was
incorrect and alleged that they along with their brother, the husband of
the respondent, constituted a joint Hindu family, that their brother died as
a member of the joint Hindu family and thereafter his widow- the
respondent--lived with the appellants who continued to be owners and
possessors of the property in suit, the widow being entitled to
maintenance only, and that by mistake the respondent's name was
entered in village records in place of the deceased husband. The
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respondent contested the suit alleging, inter alia, that her husband did not
constitute a joint Hindu family with the appellants at the time of his death
and also that the suit was barred by time as she had become owner and
possessor of the land in suit in 1925 on the death of her husband when
the entries in her favour were made, and the suit was brought in 1951.
The respondent had admitted in certain documents about the existence of
the joint Hindu family or a joint Hindu family firm.
HELD:- There is a strong presumption in favour of Hindu brothers
constituting a joint family. It is for the person alleging severance of joint
Hindu family to establish it. The mere fact of the mutation entry being
made in favour of the respondent on the death of her husband was no
clear indication that there was no joint Hindu family of the appellant, and
the respondent's husband at the time of the latter's death.
In STATE OF HARYANA v. MOHINDER PAL the Supreme Court rejected an
appeal filed against a decision of the Punjab and Haryana High Court
which had held that the Government cannot take law into its own hand
while dispossessing persons in possession of land by putting up khokhas
(on the ground that they were unauthorized occupants to Government
land) but should have followed the due procedure prescribed by law. The
Supreme court held that: ".... Question of examining the title of the parties
does not arise at all as admittedly respondents were in possession of the
property in question and put up structures thereon. On that admitted
position, High Court took the view that ejectment of the respondents
forcibly without due recourse of law was not in due process. No exception
Sridhara babu. N
can be taken to that view at all. In fact, this view is consistent with what
has been stated by this Court........"
In PATIL EXHIBITORS PVT. LTD. v. BANGALORE CITY CORPORATION a
Division Bench of KARNATAKA HIGH Court observed thus: "It is part of
the concept of "Rule of Law" that no claim to a right to dispossess by the
use of force without recourse to procedure in accordance with law is
recognized or countenanced by Courts. Such a right in the respondent
cannot be recognised regardless of the question whether or not the
appellant (Licencee) itself has any subsisting right to remain in
possession. The protection that the Court affords is not of the possession
which in the circumstances is litigious possession and cannot be equated
with lawful possession but a protection against forcible dispossession.
The basis of relief is a corollary of the principle that even with the best of
title, there can be not forcible dispossession. .... Under our jurisprudence,
even an unauthorized occupant can be evicted only in the manner
authorized by law. This is the essence of the Rule of law."
In MUNSHI RAM v. DELHI ADMINISTRATION the Supreme Court
succinctly stated the legal
possession regarding settled possession thus; "It is true that no one
including the true owner has a right to dispossess the trespasser by force
if the trespasser is in settled possession of the land and in such a case
unless he is evicted in due course of law, he is entitled to defend his
possession even against the rightful owner. But, stray or even
Sridhara babu. N
intermittent acts of trespass do not give such a right against the true
owner. The possession which a trespasser is entitle to defend against the
rightful owner much be a settled possession extending over a sufficiently
long period and acquiesced in by the true owner. A casual act of
possession would not have the effect of interrupting the possession of the
rightful owner. The rightful owner may re-enter and reinstate himself
provided he does not use more force than necessary, such entry will be
viewed only as a resistance to an intrusion upon possession which has
never been lost. The persons in possession by a stray act of trespass, a
possession which has not matured into settled possession, constitute an
unlawful assembly, giving right to the true owner, though not in actual
possession at the time to remove the obstruction even by using necessary
force."
The principle was further elaborated by the Supreme Court in RAM
RATTAN v. STATE OF UTTAR PRADESH as follows: "..... It is well settled
that a true owner has every right to dispossess or throw out a trespasser,
while the trespasser is in the act or prices of trespassing, and has not
accomplished his possession, but this right is not available to the true
owner if the trespasser has been successful in accomplishing his
possession to the knowledge of the true owner. In such circumstances, the
law requires that the owner should dispossess the trespasser by taking
recourse to the remedies available under the law..... it may not be possible
to lay down a rule of universal application as to when the possession of a
trespasser becomes complete and accomplished"
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In the decision reported in BABU VERGHESE v. BAR COUNCIL OF
KERALA, AIR 1949 SC 1281 it is held that the power conferred upon the
statutory Authority in the statute must be exercised in the manner as
prescribed in the statute.
It is the basic principle of law long settled that if the manner of going a
particular act is prescribed under any Statute, the act must be done in that
manner or not at all. The origin of this rule is traceable to the decision in
Taylor v. Taylor, "Where a power is given to do a certain thing in a certain
way, the thing must be done in that way or not at all". This rule has since
been approved by Supreme Court in Rao Shiv Bahadur Singh v. State of
Vindhya Pradesh, and again in Deep Chand v. State of Rajasthan, . These
cases were considered by a Three judge Bench of Karnataka High Court in
State of Uttar Pradesh v. Singhara Singh.
In Mahadevappa And Ors. vs State Of Karnataka ILR 2008 KAR 1750
Hon’ble Justice H.V.G. Ramesh, Observed and directed state government
with following words: ………………..As per Section 17 of the Indian
Registration Act, it is compulsory that property valued more than Rs.
100/- has to be registered. That conveys and sanctions such transfer from
one person to the other. It is often noticed that property is being sold by a
person in favour of several persons taking advantage of the anomaly of
want of specific entries in the revenue records. Any prudent person
before purchasing a property would necessarily approach the revenue
authorities seeking for clarification or issuance of an endorsement as to
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the possession or encumbrance on the property and that would form the
basis for him to go for negotiations and to purchase the property or get
the property transferred in his name in any mode of transfer provided
under the Transfer of Property Act. It is being noticed that neither the
purchaser nor the registering authority are performing their obligations
soon after such transfers are taking place by way of registration and re-
conveyance and transfer the title or interest from the vendor to the
vendee or transferee. In this regard what is being noticed is, when the
original entries in the revenue records continue even after such transfers
or assignments, the person who is interested in purchasing the property
is being mislead on some assurance or some false promise and gets into
problems in fighting litigation with the prior purchasers…………………. If
the said fact of earlier sale or transfer would not have been disclosed by
the original purchaser or registering authorities it not only leads to
multiplicity of proceedings but also causes financial hardship to the
subsequent purchasers of the same property which had been sold earlier
to some other purchaser. For want of knowledge, even for an ordinary
man of prudence mere enquiry with the revenue authorities would not be
sufficient because of the fact the revenue authorities have only
maintained the original entries in the usual course as is noticed in the
years of practice, without making proper timely entries of such change of
title from the original owner to the subsequent purchase or from original
transferor to the tranferee. This anomaly is invariably found in all the
records maintained for want of compliance of the provisions of Section
128 and 129 of the Karnataka Land Revenue Act, 1964 although the Act
mandates such entry to be made within a reasonable time after following
the procedure under the said sections. For want of such strict compliance
by the purchaser or for lack of responsibility and inaction on the part of
the registering authorities in intimating this aspect to the revenue
Sridhara babu. N
authorities well within time, the ordinary man is forced to go through the
ordeal of fighting litigation and often it is also being noticed even in
respect of carrying out mutation entries on subsequent changes like
succeeding to the property as legal heirs on the death of the original
propositus, such anomalies are occurring and even the lands which are
notified for acquisition are also notified in the name of the original
kathedar in whose name the property stands although he has died several
years back, for want of entries of the names of persons who succeed him
and who are in real possession or cultivation of the property are not
notified. These anomalies have to be rectified to avoid all such
complications and it requires due compliance of Section 128 & 129 of the
Land Revenue Act. Though the law is clear on the point, but it is either not
meticulously followed or being implemented and thus causing various
litigation and hardship to the parties and also at the cost of the State
exchequer as well……………………… Of course, while referring to the right of
this petitioner what is being noticed specifically is the anomaly that is
being invariably found and neglected by the revenue authorities all
because of non-compliance of the provisions of Section 128 & 129 of the
Land Revenue Act which is clear as is noted above. It is time to remind the
Government to take timely action to make necessary changes from time to
time in the revenue records. The Sub-registrars are duty bound to
intimate the revenue authorities in time as per Section 128(4) to avoid
multiplicity of litigation from the hands of unscrupulous vendors who
once again transfer the property although a transaction has already taken
place in the hands of one of the purchasers and the timely action of the
revenue authorities would form the basis for any subsequent purchaser
who intends to purchase the property over whom fraud could not be
played by the original transferor or the vendor when there is a transfer
from the first party to the second party and thereby once again the first
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party shall not venture to transfer title or interest to a third party or any
other person for lack of knowledge of the intended subsequent
purchaser…………………. 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.
Mariam Hussain W/O. Zaheed Hussein vs Syedani W/O. Late Syed
Mustafa And Ors. ILR 2007 KAR 2715 JUSTICE N. KUMAR OBSERVED: It
is to be noticed here that Ex.P-1, is not a simple agreement of sale entered
into between the parties voluntarily where one party is interested in
selling his property and the other interested in purchasing the property,
after mutual discussion and negotiation agreed on a price and then reduce
the terms in writing. It is a case of want of consensus ad-idem. Similarly
execution of a document does not mean signing of a document. The word
"execution" has a definite connotation in law. The person signing the
document must be aware of the contents of document and consciously
sign the document in token of acceptance of the contents of the said
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document. If the execution of a document is denied it is for the party who
alleges the due execution to prove by acceptable evidence that the
executant affixed his signature to the document after being aware of the
contents of the document and in token of its acceptance so as to bind him.
When it is stated that the executant executed an agreement of sale it must
be shown that the executant had agreed to sell the property end in token
of acceptance of such agreement he has affixed his signature on the said
agreement of sell. The evidence on record do not disclose that the
defendant affixed his signature to the the suit document agreeing to sell
the schedule property in favour of the plaintiffs or in view of the decision
of Panchayatdars or on the basis of what was agreed to in the said
Panchayat. Therfore the finding of the courts below that the agreement of
sale is duly executed by the first defendant, as it bears his signature on the
document is illegal. ………………… The material on record disclose that this
property was granted to the first defendant 30 years prior to the date of
the suit. Mutation entries were made in his name. Attempt to delete the
said mutation entry by the plaintiff was not successful. The defendant also
obtained a decree of permanent injunction against the plaintiff. The
material on record shows that he was cultivating the land and he has
raised (sic) trees and on 18.08.1982 he has handed over possession of the
property from that day till today. Ignoring all these material evidence on
record only relying on the interested testimony of the plaintiff and his
witness, whose evidence, as already stated do not infuse confidence, the
courts below have recorded a finding that the plaintiff is in possession
and the first defendant in not in possession. The said finding is perverse
and capricious and cannot be sustained.
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The High Court of Jammu and Kashmir in the case of Hardatt Sharma v.
Jaikishen Shamlal & Sons reported AIR 1983 J & K-page No. 36, held as
under: ...True, Under Section 18 of Evidence Act, statements made by
persons from whom the parties to the suit have derived their interest in
the subject matter of the suit, are binding on such parties as their
admission, nevertheless, before the same may bind them, it has further to
be shown that the statements were made by those persons during the
continuance of their interest in the subject matter, and obviously so,
because, if would be highly unjust and improper to divest a person of his
right in the property, lawfully acquired by him form another, on the basis
of the latter's admission after his own interest in the property has ceased
to exist.
Chapter VI of the Karnataka Land Revenue Act, 1964 (hereinafter called
'the Act') deals with maintenance of Record of Rights. Section 128 deals
with acquisition of rights to be reported, Section 129 deals with
registration of Mutations and the procedure for such registration, Section
129A deals with issue of patta book containing the copy of the Record of
Rights pertaining to such land. Section 130 deals with the obligation to
furnish information for compilation or revision of the Record of Rights
and as to the bar of suits against the State Government or its officials in
respect of daims for having the entry made in the Record of Rights,
reserving expressly the right to seek a correction of the entry in the
Record of Rights against persons who are interested in denying such a
right. It is clear from the above provisions that the entries in the Record of
Rights made after enquiry as provided for in Section 129 of the Act is
always subject to a final adjudication of the rights between the parties to
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the land in question. At this stage, it is also necessary to observe and
reiterate that the enquiry is essentially summary in nature.
EASEMENTARY RIGHT BY WAY OF IMPLIED GRANT 2010 SC
Justice Tarun Chatterjee and Justice V.S.Sirpurkar in a case of SREE
SWAYAM PRAKASH ASHRAMAM & ANR. .Vs. G. ANANDAVALLY AMMA &
ORS. Reported in AIR 2010 SC 622, The case of the defendants-appellants
that since there was no mention in the deed of settlement enabling the
use of `B' schedule pathway for access to `A' schedule property and the
building therein, cannot be the reason to hold that there was no grant as
the grant could be by implication as well. The facts and circumstances of
the case amply show that there was an implied grant in favour of the
original plaintiff (since deceased) relating to `B' schedule property of the
plaint for its use as pathway to `A' schedule property of the plaint in
residential occupation of the original plaintiff (since deceased). In absence
of any evidence being adduced by the appellants to substantiate their
contention that the original plaintiff (since deceased) had an alternative
pathway for access to the `A' schedule property, it is difficult to negative
the contention of the respondent that since the original plaintiff (since
deceased) has been continuously using the said pathway at least from the
year 1940 the original plaintiff (since deceased) had acquired an
easement right by way of an implied grant in respect of the `B' Schedule
property of the plaint. The High Court was perfectly justified in holding
that when it was the desire of `Y' to grant easement right to the original
plaintiff (since deceased) by way of an implied grant, the right of the
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original plaintiff (since deceased) to have `B' schedule property of the
plaint as a pathway could not have been taken away. The High Court was
fully justified in holding that there was implied grant of `B' schedule
property as pathway, which can be inferred from the circumstances for
the reason that no other pathway was provided for access to `A' schedule
property of the plaint and there was no objection also to the use of `B'
schedule property of the plaint as pathway by the original plaintiff (since
deceased) at least up to 1982, when alone the cause of action for the suit
arose.
The Trial Court on consideration of the plaintiff's evidence and when the
defendant had failed to produce any evidence, had come to the conclusion
that the plaintiff was given right of easement by `Y' as an easement of
grant. Considering this aspect of the matter, although there is no specific
issue on the question of implied grant, but as the parties have understood
their case and for the purpose of proving and contesting implied grant
had adduced evidence, the Trial Court and the High Court had come to the
conclusion that the plaintiff had acquired a right of easement in respect of
`B' schedule pathway by way of implied grant. Such being the position,
this Court cannot upset the findings of fact arrived at by the Courts below,
in exercise of its powers under Article 136 of the Constitution. It is true
that the defendant-appellants alleged that no implied grant was pleaded
in the plaint. However, the Trial Court was justified in holding that such
pleadings were not necessary when it did not make a difference to the
finding arrived at with respect to the easement by way of grant.
REVENUE DOCUMENTS ARE NOT DOCUMENT OF TITLE
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AIR 2008 SC 901 , GURUNATH MANOHAR PAVASKAR & ORS VS
NAGESH SIDDAPPA NAVALGUND & ORS
A revenue record is not a document of title. It merely raises a
presumption in regard to possession. Presumption of possession and/or
continuity thereof both forward and backward can also be raised under
s.110 of the Evidence Act.
Whether the Civil Court has got the jurisdiction to go into the issue
concerning fixing of boundaries, maintenance of boundaries of lands or
sub-division of lands came up for consideration in the case of Patel
Doddakempegowda v. Chikkeeregowda ILR 1986 KAR 2404 and dealing
with the said question, this Court has laid down the following provisions
of law: Section 61(e)(ii) of the Act not only lays down that the exclusive
jurisdiction is of Revenue Court, but also bars the jurisdiction of Civil
Courts...when the Civil Court has no jurisdiction to hold that an entry
made in any record of revenue survey or settlement is wrong, it cannot, in
law proceed to grant the relief prayed for by the plaintiff because that
relief is based on such a finding to be recorded by the Civil Court. The
object behind Section 61 is to provide finality for the acts covered by it
and the other provisions Page 2282 of the Act viz., Sections 109 and 140.
It has been left to the exclusive jurisdiction of the Revenue Courts to fix
the boundaries and maintain the boundaries of lands or sub-division of
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lands, to fix the revenue and re-assess the revenue and so on. Civil Courts
are not permitted to have a hand in any of these matters.
THE HONBLE JUSTICE N.K. Jain, THE HONBLE JUSTICE H
Rangavittalachar, THE HONBLE JUSTICE N Kumar of Karnataka High
Court in the case of C.N. Nagendra Singh vs The Special Deputy
Commissioner Reported in ILR 2002 KAR 2750, 2002 (6) KarLJ 391
Considering Rule 43, when a person claims title to a property under a Will
for the purpose of getting a mutation entry in the revenue records before
any such entry is made the Revenue Court should prima facie be satisfied
that the said document is genuine and valid even in the absence of any
dispute as the said Will comes in the way of natural succession. By virtue
of Section 128 when the owner of the land dies, the title to the said
property passes on to the legal heir by succession or survivorship or
inheritance and the property vests with such a legal heir without there
being any document and purely based on the relationship of the deceased
with the legal heir. A Will can come into operation only after the death of
the executant. If a Will is set up to deprive, a legal heir who had acquired
title to the property either by succession, survivorship or inheritance, the
person claiming under the Will has to show better title. If the Will is
disputed strict proof of Will as required under Sections 63 and 64 of the
Succession Act is to be provided. When the Revenue Court is prevented
from recording the statements of the parties and the depositions, the
question of establishing the genuineness of the Will for any purpose
whatsoever before the Revenue Court in an enquiry would not arise.
Under these circumstances, the Revenue Courts have no jurisdiction to go
into the genuineness or validity of the Will or to the question of title in
respect of the land in dispute. The decision of the Revenue Court has to be
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necessarily based on the undisputed facts. The Revenue Court cannot go
into the disputed questions of relationship, status of the parties' title to
the property or genuineness or otherwise of a document or challenge to
the documents on the ground of fraud, undue influence,
misrepresentation or mistake. As such, the petitioner cannot take
advantage of Rule 43 in the case of a Will.
POT KHARAB
Sadashivaiah And Ors. vs State Of Karnataka And Ors. ILR 2003 KAR 5088
The Land Acquisition Officer has declined to pass the award on yet
another ground that the land involved in W.P. Nos. 7540 & 9155-
9204/2001 is a kharab land and therefore it does not belong to the
petitioners. In this regard it is necessary to know what a kharab land is
and what are the rights which flow. Kharab land is so called because it is
not cultivable and is classification made for purposes of revenue
exemption, Kharab land is also capable of ownership and cannot be
regarded as an adjunct to cultivable land which gets transferred along
with the cultivable land. Acquisition of title to the kharab land is similar to
acquisition of title to the cultivable land. The word "Phut Kharab" and
'pot' kharab mean and have reference to a land which is included in an
assessed survey number but which is unflit for cultivation. Every pot
kharab land does not belong to government. For the purpose of
assessment, the uncultivable portion of the land or phut kharab portion of
the land is excluded from consideration on the ground that it is cultivable.
But it does not cease to belong to the owner of the survey number. In
volume I of the Mysore Revenue Manual, the word kharab is explained in
this way. The expression 'phut kharab' is similar to the expression 'pot
kharab'. That is so, is clear from the Mysore Revenue Survey Manual
where at page 68 the words 'pot kharab' land is defined thus:
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"(13). Pot kharab means a piece of pieces of land classed as unarable and
included in a survey number".
The description has no relevance to ownership. The expression put
kharab is explained in Gupte's book on the Bombay Land Revenue Code in
the following words at page 278"-
"By the term 'pot kharab' is meant 'barren or uncultivable land included
in an assessed survey number' and includes 'any land comprised in a
survey number. Which from any reason is held not to be likely to be
brought under cultivation..........."
31. The words phut Kharab, therefore, mean and have reference to a land
which is included in an assessed survey number but which is unfit for
cultivation. After coming into the force of the Karnataka Land Revenue
Act 1964 the word phut Kharab has been defined under Rule 21(2) as
under-
"during the process of classification, land included as unarable shall be
treated as "Pot Kharab". Pot Kharab land may be classified as follows.
(a) That which is classified as unfit for agriculture at the time of survey
including the farm buildings or threshing flours of the holder; (b) That
which is not assessed because, (i) it is reserved or assigned for public
purpose; (ii) it is occupied by a road or recognised footpath or by a tank
or stream used by persons other than the holders for irrigation, drinking
or domestic purposes; (iii) used as burial ground or cremation ground;
(iv) assigned for villager potteries."
Sridhara babu. N
32. Therefore, it becomes clear if the land falls within the category of
21(2)(a) it is not a government land, it belongs to the ownership of the
petitioners. If it falls under 21(2)(b) then it belongs to the government
and the petitioners cannot have a claim over the said land. However,
when the petitioners claim that the said land falls within 21(2)(a) and
therefore they are entitled to the compensation LAO proceeds on the
assumption that it falls within Section 22(1)(b) and therefore they are not
entitled to compensation as it belongs to the government and accordingly
he has declined to pass any award. It is not in dispute that before arriving
at such a conclusion the LAO has not given an opportunity to the
petitioners in the enquiry under Section 11 of the Act to substantiate their
contention. Without any such enquiry, without affording an opportunity
to the petitioners he proceeds on the assumption that the said Kharab
land falls within 22(1)(b) and therefore petitioners have no claim, as such
he has declined to pass the award. ………… The Land Acquisition Officer is
directed to hold an enquiry under Section 11 of the Act and to pass award
setting out the true extent of the land acquired, the compensation payable
for the said land and then if he is of the opinion the claimants are not the
owners of the said land the said land belongs to the government to
apportion the compensation accordingly. If any request is made by the
petitioners for reference under Section 18(1) of the Act within the time
prescribed under law then to make a reference under Section 18(1) of the
Act to the Civil Court for adjudication.
Only remedy available to a party aggrieved by the order in revision is to
file a suit as provided in the proviso to Section 135 of the Act and a
petition under Article 227 of the Constitution is not maintainable. HELD
Sridhara babu. N
by Courts in the case of Smt. H. Jana Bai v. Deputy Commissioner, Mandya
District, Mandya and Ors 1996(2) Kar. L.J. 68. A learned Single Judge, who
has based his decision in relying upon the decision of this Court in the
case of Srimanmaharaja Niranjana Jagadguru Mallikarjuna
Murugharajendra Mahaswamy Matadipathy v. Deputy Commissioner,
Coorg 1986(1) Kar. L.J. 373 (DB): ILR 1986 Kar. 1059 (DB).
TAHSILDAR CANNOT DECIDE THE RIGHTS OF PARTIES ON SALE
DEED
S. Shivanna vs The Special Tahsildar And Ors. 2006 (1) KCCR 652, It is not
the function of the Tahsildar for the determination of the rights of parties
like a Civil Court with regard to the interest the fourth respondent could
still claim under the sale deed of the year 1924 and it is a matter
essentially for the Civil Court and not for the Tahsildar. Likewise the
change of the name in the revenue records if at all was made in favour of
the petitioner in the year 1965 and as contended by the fourth
respondent, it is by playing" fraud etc., or with concocted documents or
otherwise, even such allegations of fraud etc., is a matter that should be
made good before a Civil Court and not before the Revenue Authorities.
Authorities like Tahsildar totally lack jurisdiction to render finding or
make a determination either in respect of an act of fraud or for declaring
the rights in favour of any parties under a sale deed etc.
AGREEMENT OF SALE DOES NOT CONFER ANY TITLE
Sunil Kumar Jain v. Kishan 1995 AIR 1891, 1995 SCC (4) 147 wherein in a
case which was disposed of in connection with the Land Acquisition Act it
is held thus : "It is settled law that the agreement of sale does not confer
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title and, therefore, the agreement holder, even assuming that the
agreement is valid, does not acquire any title to the property."
There cannot be any dispute that under Section 133 of the Karnataka
Land Revenue Act, an entry shall be presumed to be true until the
contrary is proved. Thus, the presumption is rebuttable. Contrary facts
may be established by the circumstances of the case or by other evidence
found in the records. Presumption shall have to be drawn only at the
outset of the case, since it may get diluted, rebutted or over run in the
course of the trial. The role of record of rights, thus, essentially, is in the
realm of appreciation of evidence in a case. In this matter as
aforementioned, this Court is of the firm view that the admissions made
by the respondents 3 and 4 and their witness and other circumstances of
the case are sufficient to displace the presumption arising from the
entries in the pahanies. There is no abstract principle that whatever
appear in the revenue records will be presumed to be correct when it is
borne out by the evidence that the entries are not correct In this context it
is relevant to note the observations made by the Apex Court in the case of
Baleshwar Tewari (dead) by LRs. and Ors. v. Sheo Jatan Tiwary and Ors.
(1997)5 SCC 112, . ...Entries in revenue records is the paradise of the
patwari and the tiller of the soil is rarely concerned with the same. So long
as his possession and enjoyment is not interdicted by due process and
course of law, he is least concerned with entries. It is common knowledge
in rural India that a raiyat always regards the lands he ploughs, as his
dominion and generally obeys, with moral fiber the command of the
intermediary so long as his possession is not disturbed. Therefore,
creation of records is a camouflage to defeat just and legal right or claim
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and interest of the raiyat, the tiller of the soil whom the Act confers title to
the land he tills.
It has been held by the Hon'ble Supreme Court in Baleshwar Tewari vs.
Sheo Jatan Tiwari & Others reported in (1997)5 SCC 112, in para 15 as
under: "15. Under these circumstances, even if any enquiry was
conducted unless the appellant is given notice and an opportunity to
adduce the evidence to establish his right in the enquiry made, the finding
generally does not bind him.Entries in Revenue records is the paradise of
the patwari and the tiller of the soil is rarely concerned with the same. So
long as his possession and enjoyment is not interdicted by due process
and course of law, he is least concerned with entries. It is common
knowledge in rural India that a raiyat always regards the land he ploughs
as his dominion and generally obeys, with moral fibre the command of the
intermediary so long as his possession is not disturbed. Therefore,
creation of records is a camouflage to defeat just and legal right or claim
and interest of the raiyat, the tiller of the soil on whom the Act confers
title to the land he tills."
It has been held by the Hon'ble Supreme Court in Sawarni vs. Inder Kaur
& Others reported in (1996)6 SCC 223, in paragraph no. 7 as under:
"7...............Mutation of a property in the revenue record does not create or
extinguish title nor has it any presumptive value on title. It only enables
the person in whose favour mutation is ordered to pay the land revenue
in question. The learned Additional District Judge was wholly in error in
coming to a conclusion that mutation in favour of Inder Kaur conveys title
in her favour. This erroneous conclusion has vitiated the entire
judgment............................"
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State Of Himachal Pradesh vs Shri Keshav Ram And Ors AIR 1997 SC 2181
The courts below committed serious error of law in declaring plaintiffs'
title on the basis of the aforesaid order of correction and the
consequential entry in the Revenue papers. ……….. "4. In view of the rival
contentions, the question that arises for consideration is whether the
plaintiffs have been able to establish their title and the Courts below were
justified in declaring plaintiffs title. As has been stated earlier the only
piece of evidence on which the Courts below relied upon to decree the
plaintiffs' suit is the alleged order made by the Assistant Settlement
Officer directing correction of the record of right. The order in question so
not there on record but the plaintiffs relied upon the register where the
correct appears to have been given effect to . The question therefore
arises as to whether the entry in the settlement papers recording
somebody's name could create or extinguish title in favour of the person
concerned..It is to be seen that the disputed land originally stood
recorded in the name of Raja Sahib of Keonthal and thereafter the State
was recorded to be the owner of the land an the record of right prepared
in the year 1949-50. In the absence of the very order of the Assistant
Settlement Officer directing necessary correction to be made in favour of
the plaintiffs, it is not possible to visualize on what basis the aforesaid
direction had been made. But at any rate such an entry in the Revenue
papers by no stretch of imagination can form the basis for declaration of
title in favour of the plaintiffs. In our considered opinion the Courts below
committed serious error of law in declaring plaintiffs title on the basis of
aforesaid order of correction and the consequential entry in the Revenue
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papers. In the circumstances the appeal is allowed and the judgment and
decree passed in all the three forums are set aside. The plaintiffs'' suit
dismissed. There will be no order as to costs"
Court in Anna Rao and Others v Gundareddy and Others, ILR 1997 KAR
1998 which is extracted below: "It is not permissible for the Revenue
Officer to order for correction of the entries in the Record of Rights and
Pahanies by deleting the names of the petitioners and in its place, by
entering the name of the State Government after about 43 years from the
date of the entry made in the revenue records, in exercise of the power
conferred on him under Section 25 of the Act. The names of the
petitioners continued to exist in the Record of Rights and Pahanies ever
since the year 1950-51 up-to-date. The period of limitation to claim
adverse possession against the State is 30 years. Even assuming that
Section 25 of the Act confers power on the second respondent to direct
rectification of entries in the revenue records, the said power was
required to be exercised by the second respondent within a reasonable
time from the date of the entry made in the revenue records entering the
names of the petitioners. It is well-settled principle of law that when
power is conferred on an authority to effectuate a purpose, it has to be
exercised in a reasonable manner and the exercise of power in a
reasonable manner inheres the concept of its exercise within a reasonable
time".
Sridhara babu. N
Division Bench decision of Karnataka High Court in P. Bhimachar v. State
of Mysore and Ors. reported in 1966(2) Mysore LJ 184, Wherein the
following observations are made: It is obvious that the Tahsildar did not
correctly understand the expression 'phut kharab'. a land is described as
kharab land when it is unfit for cultivation. In Volume I of the Mysore
Revenue Manual the word kharab is explained in that way. The
expression 'phut kharab' is similar to the expression 'pot kharab'. That is
so, is clear from the Mysore Revenue Survey Manual where at page 68 the
words 'pot kharab' land is defined thus: (13). Pot-kharab means a piece or
pieces of land classed as unarable and included in a survey number." The
description has no relevance to ownership and if Survey No. 23 belonged
to the petitioner as stated by the Tahsildar, that part of it which is
described as phut kharab is also included in such ownership.
The expression pot kharab is explained in Gupte's book on the Bombay
Land Revenue Code in the following words at page 278: By the term 'pot
kharab' is meant barren or uncultivable land included in an assessed
survey number' and includes 'any land comprised in a survey number
which from any reason is held not to be likely to be brought under
cultivation....
The words phut kharab, therefore, mean and have reference to a land
which is included in an assessed survey number but which is unfit for
cultivation.
It is clear from paragraph 160(5) of the Mysore Revenue Manual Volume I
that the assumption made by the Tahsildar that every phut kharab land
belongs to the Government is unfounded. That paragraph provides for the
disposal of phut kharab land included in lands applied for coffee
cultivation and for the exclusion of the phut kharab if it can be separated.
Sridhara babu. N
What it also provides is that if the applicant chooses to have it included in
the land, it should be granted to him for an upset price.
We have before us the certified record issued by the office of the land
Records, Survey and Settlement in Mysore, from which it becomes clear
that for purposes of assessment the uncultivable portion of the land with
which we are concerned was excluded from consideration on the ground
that it was uncultivable.
The commentaries in Karnataka Land Revenue Manual, New 1998 Edition
at page 2167 explains the different types of Phut Kharab lands for
convenient reference the relevant commentaries are extracted herunder:
2. Kinds of Phut Kharab - There are two kinds of Phut Kharabs. They are
(1) Uncultivable and (2) Cultivable but withdrawn and reserved for some
other purpose. The rule about the first kind is that unarable land included
in a survey number assessed for purposes of agriculture when it is classed
as unlit for cultivation such as (1) Deep pits, (2) Water as uncultivable and
the holder may bring such land under cultivation without any liability to a
change because it is assumed that such cultivation can only be effected by
the expenditure of owner. The rule regarding the second kind is that
unarable land included in a survey number assessed for purpose of
agriculture when reserved or assigned for public purpose, or occupied by
a road or recognised foot path or by tank or stream used by the public for
irrigation or for drinking or for domestic purpose, or used for a burial or
funeral ground by the public etc., or assigned for village potteries cannot
be cultivated.
Sridhara babu. N
S. Siddappa And Others vs State Of Karnataka And Another ILR 1998
KAR 2757, 1998 (5) KarLJ 36 The provisions of Karnataka Land Revenue
Act and rules have been amended from time to time enabling the revenue
authorities to find out extra land of the Government for distribution
among landless and other needy persons. Section 94-A of the said Act is
amended for the specific purpose of constituting the Land Grant
Committee. The Government of Karnataka thought it fit to introduce Rule
108-I of the Karnataka Land Revenue Rules of 1966. Under this special
rule, the Government has directed the authorities to reserve certain
Government lands for the purpose notified therein which reads as
follows.-- "Certain lands not to be granted.--Notwithstanding anything
contained in this Chapter, lands assigned for special purpose under
Section 71 of the Act, and lands described in revenue records as
Devarakadu, Urduve, Gunduthope, Tankbed, Phut Kareb Kharab Halla,
date reserve, burial grounds and such lands which in the opinion of the
Government is required for public purpose, shall not be granted".
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
Sridhara babu. N
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
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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. The second respondent shall take
steps forthwith to evict all those unauthorised occupants from such of
those lands.
Section 71 of the Karnataka Land Revenue Act, 1964 (in short, 'the Act'),
the Deputy Commissioner has the power to set apart the lands for free
pasturage for village cattle and said reservation is subject to the orders
and notifications passed by the Government from time to time.
Rule 27 of the Karnataka Land Grant Rules, which reads as follows:
"27. Powers of the State Government--Notwithstanding anything
contained in the preceding rules, the State Government may, suo motu, or
on the recommendation of the Divisional Commissioner or the Deputy
Commissioner, if it is of the opinion that in the circumstances of any case
or classes of cases, it is just and reasonable to relax any of the provisions
of these rules, it may, by order direct such relaxation, recording the
reasons for such relaxation, subject to such conditions as may be specified
in the orders and thereupon lands may be granted in such a case or
classes of cases in accordance with such direction".
Under Section 69 of the Act, the lands belonging to the Government can be
disposed of for the purposes of agriculture, industry or any public utility.
Section 94A of the Act empowers the Committees constituted thereunder
to regularise the unauthorised occupation of lands. Section 94B of the
KLR Act commences with non-abstante clause Notwithstanding anything
Sridhara babu. N
contained in this Act" and states that if the Deputy Commissioner or other
officer authorised by the State Government is satisfied, can make
recommendations to the Committee for the regularisation of
unauthorised occupation of forest lands. Section 94A(4) of the Act gives
right to an unauthorised occupant to make on application for regularising
his occupation of the Government Land reserved for any of the purposes
under Section 71 of the KLR Act r/w Rule 97 of the Rules.
GRANT OF GOMAL LANDS IN KARNATAKA AND DIVISION BENCH
DIRECTIONS
The State Of Karnataka, By Its ... vs Holeyappa S/O Benavappa And Ors.
ILR 2007 KAR 259 (DB)
The Deputy Commissioners in the State are directed to identify all the
Gomal and other reserved lands, consider whether their extent have to be
retained or reduced or totally diverted to other purposes based upon the
cattle population and the requirement which the reservation made still
exists in the concerned areas;
If any gomal land or other reserved lands is not required on the changed
circumstances an account of subsequent events, de-reserve the same for
consideration of regularisation under Section 94A, 94B and 94C of the Act
keeping in view the eligibility of unauthorised occupants for
regularisation of their occupation in the respective areas of the State;
Sridhara babu. N
Thereafter, the pending applications of unauthorised occupants including
the appellants/petitioners in these Appeals shall be considered for
regularisation by the respective committee/s. If the Committees and Page
0346 Additional Committees are not constituted, the State Government
shall take steps to constitute the same as expeditiously as possible;
It is open for the writ petitioners/appellants to approach the committees
to put-forth their claim or grievances, if any, pertaining to regularisation
of their unauthorised occupation of the Government lands;
Section 71 of the KLR Act though provides for reservation of lands for
pasturage, forestry and other public purposes, enables the Deputy
Commissioner to permit use of such land for other purposes also in
exercise of his power. A full Bench of this Court in the decision (D.C.
Ramesh and Ors. v. State of Karnataka) has held that the Deputy
Commissioner has got power both to reserve and de-reserve any
Government Land.
Sections 67, 69 and 71 of the Karnataka Land Revenue Act, 1964 read as
under:
"67. Public roads, etc., and all lands which are not the property of others
belong to the Government-(1) All public roads, streets, lanes and paths,
Sridhara babu. N
bridges, ditches, dikes and fences, on or beside the same, the bed of the
sea and of harbours and creeks below high water mark and of rivers,
streams, nallas, takes and tanks and all canals and water-courses and all
standing and flowing waters, and all lands wherever situated which are
not the property of individuals or of aggregate of persons legally capable
of holding property, and except in so far as any right of such persons may
be established, in or over the same, and except as may be otherwise
provided in any law for the time being in force, are and are hereby
declared to be with all rights in or over the same or appertaining thereto,
the property of the State Government.
Explanation: In this section, "high-water mark" means the highest point
reached by ordinary spring ties at any season of the year.
(2) where any property or any right in or over any property is claimed by
or on behalf of the State Government or by any person as against the State
Government, it shall be lawful for the Deputy Commissioner or a Survey
Officer not lower in rank than a Deputy Commissioner, after formal
inquiry to pass an order deciding the claim.
(3) Any person aggrieved by an order made under sub-section (2) or in
appeal or revision therefrom may institute a civil suit contesting the order
within a period of one year from the date of such order and the final
decision in the civil suit shall be binding on the parties.
69. Disposal of lands or other property belonging to State Government
under Section 67 Subject to such rules as may be made in this behalf, the
State Government, the Divisional Commissioner, the Deputy
Commissioner, the Assistant Commissioner incharge of a Taluk or Taluks
and the Tahsildar, may dispose of land or other property belonging to the
State Government under Section 67 or otherwise, for purposes of
agriculture, industry or any public utility and subject to the provisions of
Chapter XII for the construction of buildings.
Sridhara babu. N
71. Lands may be assigned for special purposes and when assigned, shall
not be otherwise used without sanction of the Deputy Commissioner-
Subject to the general orders of the State Government, Survey Officers,
whilst survey operations are preceding under this Act, and at any other
time, the Deputy Commissioner, may set apart lands, which are the
property of the State Government and not in the lawful occupation of any
person of aggregate of persons in any village or portions of a village, for
free pasturage for the village cattle, for forest reserves or for any other
public purpose; and lands assigned specially for any such purpose shall
not be otherwise use without the sanction of the Deputy Commissioner,
and in the disposal of lands under Section 69 due regard shall be had to all
such special assignments."
Rules 97 and 108-I of Karnataka Land Revenue Rules, 1966 read as under:
"97. Providing free pasturage -
(1) Government land shall be set apart for free pasturage for the cattle of
each village at the rate of twelve hectareas for every handred heads of
cattle. Explanation- In calculating the heads of cattle or goats, sheep or
calves or cow of buffalo shall be taken as equivalent to one head of cattle.
(2) If there is sufficient forest area in the village concerned or in the
adjoining village to enable the village cattle to graze, the area to be set
apart as free pasturage may be reduced correspondingly.
(3) If there is no grazing land available in a village, or the land available
falls short of the extent prescribed under sub-rule (1) the deficit may be
made up by setting apart Government land available in the adjacent
village.
(4) The Deputy Commissioner shall determine the extent of land
necessary to be set apart for free pasturage in any village. If in the opinion
of the Deputy Commissioner the extent of pasturage should exceed the
minimum prescribed in Sub-rule(1) he may so set apart such larger extent
Sridhara babu. N
as may be necessary. If on the contrary he considers that the area already
so set apart is much larger than what is really required he may reduce it
to the prescribed minimum. Where, he consdiers that the extent of free
pasturage may be reduced below the prescribed limit, he should do so
only after obtaining the prior permission of the Divisional Commissioner
provided that no such permission shall be necessary where the reduction
below the prescribe limit is for the purpose of;
(i) distribution of house sites to the siteless person; and
(ii) grant of land to persons belonging to Scheduled Castes and Scheduled
Tribes, for agricultural purposes, who are ordinarily residents of such
village. (iii) regularization of unauthorized cultivation under Chapter XIII-
A
108-I Certain lands not to be granted-Notwithstanding anything
contained in this chapter, lands assigned for special purposes under
Section 71 of the Act, and lands described in revenue records, as
Devarakadu, Urduve, Gunduthop Tankbed, Phut Karab Kharab halla,
datereserve, burial grounds and such lands, which in the opinion of the
Government is required for public purpose, shall not be granted; Provided
that the provisions of this rule shall not apply to lands set-apart for free
pasturage under Section 71 of Karnataka Land Revenue which will be
governed by Rule 97."
MUTATION ENTRIES BY THEMSELVES DO NOT CONFER ANY RIGHTS
Mutation entries by themselves do not confer any rights. Rights must flow
independently of such entries and the Supreme Court in the case of
HINDUSTAN STEEL LIMITED, ROURKELA v. SMT. KALYANI BANERJE,
1973 AIR 408, 1973 SCR (3) 1, 1973 (II) SCWR 749 clearly pointed out
Sridhara babu. N
that mutation proceedings are not judicial proceedings but are in the
nature of fiscal enquiries in the interest of the State for revenue collection.
Mutation proceedings and orders passed by Revenue authorities cannot
be treated as conclusive evidence for determination of proprietary title to
immovable properties.
WHATEVER RIGHT, TITLE AND INTEREST THE DEFAULTER HAD
WOULD STAND TRANSFERRED TO THE AUCTION PURCHASER AND
NOTHING MORE
NAGESH ALIAS NAGAPPA GANAPATHY HEGDE v. SYNDICATE BANK, ILR
(Kar) 1981 477 that the title in the property sold in public auction under
Chapter XIV of the Karnataka Land Revenue Act, 1964 passes to the
auction purchaser on the confirmation of sale and the sale certificate
under Section 179 of the Act is only on confirmation of the sale under
Section 177 of the Act and thus the issue of a sale certificate is the
consequence of confirmation of sale and also that the right title and
interest of the defaulter in such property shall cease and the same shall
stand transferred to the auction purchaser. It only makes clear that
whatever right, title and interest the defaulter had would stand
transferred to the auction purchaser and nothing more.
THE LONG COURSE OF ENTRIES IN REVENUE RECORDS CANNOT BE
IGNORED IN PREFERENCE TO THE ENTRIES FOR A SOLITARY
YEAR.
The Supreme Court however in the case of B.S.V. TEMPLE v. P. KRISHNA
MURTHI, AIR 1973 SC 1299, (1973) 2 SCC 261 struck a note of caution
Sridhara babu. N
with regard to entries in the revenue records. It pointed out that the
presumption arising from several entries in the revenue records of large
number of years in respect of ownership and possession of land with
certain person does not stand rebutted by mere stray entries in favour of
other when the evidence is of uncertain character and is inadequate. ……..
The long course of entries which were consistently in favour of the
Archakas cannot be ignored in preference to the entries in favour of the
temple for a solitary year.
ENTRIES IN THE RECORD OF RIGHTS DO NOT BY THEMSELVES
CHANGE THE NATURE OR CHARACTER OF A TENURE
Division Bench of Karnataka High Court in the case of STATE OF MYSORE
v. KAINTHAJE TIMMANNNA, 1968(2) Mys.LJ. 227 commonly referred to
as Thimmanna Bhat's case. The Decision was rendered in a suit for
declaration that the suit lands were "redeemed lands" and for injunction
directing the State to issue passes for transport or removal of timber
without payment of seignorage. The lands were shown in the Record of
Rights pertaining to the period between 1911 and 1916 as "redeemed
lands. The plaintiff had been granted patta by the commissioner of Coorg
in 1911 showing that they were redeemed lands". However in 1918 there
had been a change in the nature of tenure of the lands showing that they
were "unredeemed". The records relating to the passing of the order in
1918 were not available. Reliance was only placed on the entries in the
Record of Rights from the Jamabandi Register relating to the years 1916
to 1921 in which reference to the order of the Commissioner of 1918 was
made. In such a situation the learned Judges held 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
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official duties and in due compliance with the procedure enjoined by law
(under Section 39 of the Coorg Regulation and Section 114 of the
Evidence Act) could not be drawn. If the order in question had been one
that was made in the exercise of the power under Section 29 of the Coorg
Regulation, which is the provision, which should have been resorted to for
the purpose of preparation and revision of the Record of Rights, it should
have been issued and published by the Chief Commissioner by
notification and one such notification or publication thereof in the Official
Gazette has been made available. Any preparation of the Record of Rights
or revision thereof could be done only by the Chief Commissioner by
means of a notification that such Record of Rights be made or be specially
revised. The Commissioner was an authority different from the Chief
Commissioner at the relevant point of time. As under the Regulation
certain conditions had to be fulfilled before making revision of the entries
in the Record of Rights and such conditions related not only to the
procedure but also to the existence of certain conditions precedent, and
those conditions precedent were absent, the act done would not be
entitled to the protection of the presumption under Section 114 of the
Evidence Act. This Decision was quoted with approval by the Supreme
Court in the case of STATE OF KARNATAKA v. K.V. KHADER, . 1990 AIR
1225, 1990 SCR (1) 727 The ratio of the two Decisions is that the entries
in the Record of Rights do not by themselves change the nature or
character of a tenure.
Decision of this Court in the case of STATE OF KARNATAKA v.
MOHAMMED KUNHI, ILR 1991 KAR 1500 It has been held by the Division
Bench of this Court that it is not each and every entry in the Record or
Sridhara babu. N
Rights that would give rise to cause of action...Mere adverse entry in the
Record of Rights in respect of the property in the possession of the
plaintiff cannot be taken as real threat to the right of the plaintiff to the
property in his possession. The trial Court rightly observed that Section
22 and Article 113 of the Limitation Act are not attracted in as much as
the plaintiff was seeking relief with regard to the declaration of his title
regarding the nature of the tenure and there is nothing to show that cause
of action accrued at some point of time which rendered the suit barred by
time.
ENTRIES IN REVENUE RECORDS DOES NOT BE THE CAUSE OF ACTION
In RAGHUBIR JHA v. STATE OF BIHAR AND ORS., AIR 1986 SC 508, 1986
Supp (1) SCC 372 the Supreme Court held that the limitation would begin
to commence only on the communication of the termination of the
proceedings and not on the date the order was passed by the first
authority. In the instant case, there is no evidence adduced by the
defendant nor there is any material brought on record in the cross
examination of P.W.1 that right to sue accrued much earlier to the date of
the suit. As in the instant case the entries in the record of rights, being
non-est cannot be held to affect the right, title and interest of the plaintiffs
and their predecessors-in-title in possession of the suit property. Such
entries cannot also be held to be a threat to the title of the plaintiffs who
are in possession of the suit property so as to give rise to the cause of
action sufficient for commencement of the period of limitation.
Sridhara babu. N
ENTERING NAME IN THE REVENUE RECORDS WITHOUT ANY RIGHT
AND TITLE CANNOT CONFER ANY RIGHT OR TITLE
Shivaji S/O Tukaram Sonavale vs Parvathibai W/O Bhavu Pawar 2007 (3)
KarLJ 323 In the circumstances, Court was of the view that mere
secondary evidence cannot be relied upon in the absence of the plaintiff
calling upon the defendant to produce the concerned Deed said to have
been executed wherein the question of execution of the deed itself was in
question. Unlike that, in the instant case it is one Rukmavva who is said to
have executed the gift deed in favour of the husband of the plaintiff which
the defendants have disputed and there was no other document in favour
of the defendants to claim their right except the revenue entries made in
the records. May be as noted by both the courts below, as the plaintiff also
being helpless and she lived along with the defendants and under the
presumption that her name has been entered in the revenue records, she
must have kept quite without verifying the entries in the revenue records
and in the usual course the appellants have got entered their name in the
revenue records without there being any right and title over the same but,
the same cannot confer any right or itle to the appellant to claim a better
title over the plaintiff.
PRESUMPTION REGARDING REVENUE ENTRIES
Justice N Jain, & Justice N Kumar in the case of Bhimappa Channappa
Kapali ... vs Bhimappa Satyappa Kamagouda, Reported in ILR 2002 KAR
3055, 2003 (2) KarLJ 148 Though Section 133 of the Karnataka Land
Revenue Act which deals with presumption regarding entries in the
records providing that an entry in the record of rights and a certified
entry in the register of mutations or in the patta book shall be presumed
Sridhara babu. N
to be true until the contrary is proved or a new entry is lawfully
substituted therefor, before that presumption could be raised it should be
shown that such entries are duly certified entries under Section 129 and
thereafter such entries are made in the record of rights. Prior to the
making of the entries in the name of the appellant, the entries in the
revenue records stood in the name of Gerappa, the husband of Shivawwa.
After the death of Gerappa, Shivawwa has executed a registered gift deed
in favour of the first respondent. However, first respondent acquired a
right in the land in question by virtue of a registered document. The
registering authority under Section 128 of the Land Revenue Act is
obliged to inform the concerned revenue authorities about the acquisition
of right by first respondent in the land in question. Before a change of
entry is made, the revenue authorities were under an obligation to notify
the owner of the land in question and only after hearing his objections
and after enquiry and passing an order in the prescribed manner they
shall certify the entry and thereafter make the necessary entry in the
register of mutations. If entries are made in this manner after complying
with the provisions of Sections 128 and 129, under Section 133 the Court
shall presume such entries to be true until the contrary is proved.
PRESUMPTION OF CORRECTNESS CAN APPLY ONLY TO GENUINE,
NOT FORGED OR FRAUDULENT, ENTRIES
In Vishwa Vijay Bharati v. Fakhrul Hassan and others, AIR 1976 SC 1485,
dealing with entries in revenue records and sections 35 and 114 of the
Evidence Act, the Supreme Court held as follows: "It is true that the
entries in the revenue record ought, generally, to be accepted at their face
value and courts should not embark upon an appellate inquiry into their
correctness. But the presumption of correctness can apply only to
Sridhara babu. N
genuine, not forged or fraudulent, entries. The distinction may be fine but
it is clear, the distinction is that one cannot challenge the correctness of
what the entry in the revenue record states, but the entry is open to the
attack that it was made fraudulently or surreptitiously. Fraud and forgery
rob a document of all its legal effect and cannot found a claim to
possessory title".
In D.S. LAKSHMINARAYANA RAO v. THE LAND TRIBUNAL,
DODDABALLAPUR AND ORS. ILR 1980 KAR 283 this Court has held that
the conversion of land would be complete when once permission was
granted or to deemed to have been granted and actual levy of fine is only
a subsequent formality. Such a land is not a land as defined in the Act and
therefore did not attract the provisions of the Act.
In Gopalappa v. Gurushankaraiah 1983 (2) KLJ 149 dealing with the
application of the provisions of the Karnataka Land Revenue Act vis-a-vis
the Karnataka Land Reforms Act, 1961, in the context of the jurisdiction of
the Land Tribunal to enquire into the claim for occupancy, Karnataka
High Court has held as follows : "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 by-pass the remedy and get that order invalidated before the Land
Tribunal constituted under the Land Reforms Act. The Land Tribunal has
Sridhara babu. N
no power to go behind the statutory order according permission to
convert the land for non-agricultural purpose under the Land Revenue
Act."
Court in Mohan Balaku Patil and others vs. Krishnoji Bhaurao Hundre
(Dead)by LRs. [(2000) 1 SCC 518], dealing with the presumption available
as to the correctness of entries in the record of rights under Section 133
of Karnataka Land Revenue Act, 1964 and displacement of such
presumption by a finding of fact to the contrary in enquiry made by the
Tribunal under Section 48-A of Karnataka Land Reforms Act, 1961, in
paragraph 4 has observed, "When, in fact, the Tribunal made local enquiry
by spot inspection and had come to the conclusion that the appellants
were in possession, that factor should have weighed with the appellate
authority............ Presumption arising under Section 133 of the Act in
respect of the entries made in the Record of Rights stood displaced by the
finding of fact recorded that the appellants were in actual possession of
the land and were cultivating the same............"
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY of Karnataka High Court
in the case of Sri Munivenkataswamy @ ... vs Muniyappa @ Muniga S/O ...
Decided on 18 December, 2012 Quoted with approval submission of
petitioner counsel Shri M.S. Varadarajan “Further, as an inam village, it
was entirely under the management and control of the inamdar. Any
document evidencing the nature of the land would have been in the
custody of the inamdar and is presumed to have been secured. The
entries in the Index of Lands and Record of Rights would not constitute
evidence of the nature of the land as a result of assignment of the land for
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any service by the inamdar. It is also contended that the Index of Lands
and Record of Rights would not be in existence before the vesting of the
village in the State. Therefore, proceeding on such entries to address a
circumstance as to the nature of the land much prior to the said entries
being made, would not offer any authenticity. ……. On the other hand, the
entry made in Form No.8 is the official valid record prepared by the
Tahsildar, on the basis of the material evidence of the nature of the land
with reference to the relevant document in the custody of the then
inamdar. Section 11 of the Inams Abolition Act, required maintenance of a
register with effect from the date of vesting, containing the details of the
nature of the land. ……… The circumstance that there was no entry in the
Barabaruthi Register, would also fortify the fact that this was not service
inam land on the date of vesting.”
HOLDER OF HERIDITARY VILLAGE OFFICE
SRI KEMPAIAH VS CHIKKABORAMMA AIR 1998 SC 3335 The object
of Karnataka Village offices Abolition Act, 1961 is to abolish village offices
which were held hereditarily before the commencement of the
Constitution and the emoluments appertaining thereto and to provide for
incidental maters. 'Village office' has been defined under the Act as to
mean a village office to which emoluments have been attached and which
is held hereditarily before the commencement of the Constitution under
an existing law relating to such office for the performance of duties
mentioned therein; "holder of a village office" or "holder" would mean a
person having an interest in a village office under an existing law relating
to such office. By no stretch of imagination appellant can lay claim to any
such office. No material was placed by him to show that he held the office
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hereditarily before the commencement of the Constitution much less did
he trace his title to any such person to held that office in that capacity.
MUTATION PROCEEDINGS ARE MUCH MORE IN THE NATURE OF
FISCAL INQUIRIES
Apex Court's decision in Narmada Bachao Andolan v. State of Madhya
Pradesh & Anr. AIR 2011 SC 1989 Mutation proceedings are much more
in the nature of fiscal inquiries. “Mutation of a property in the revenue
record does not create or extinguish title, nor has it any presumptive
value of title. It only enables the person, in whose favour the mutation is
entered, to pay the land revenue in question.” (Vide: Thakur Nirman Singh
& Ors. v. Thakur Lal Rudra Pratap Narain Singh, AIR 1926 PC
100; Smt. Sawarni v. Inder Kaur & Ors., AIR 1996 SC 2823; R.V.E.
Venkata Chala Gounder v. Arulmign Ciswesaraswamy & V. Temple
& Anr., AIR 2003 SC 4548; and Suman Verma v. Union of India &
Ors., (2004) 12 SCC 57).
REVENUE RECORDS AND ITS ENTRIES DOES NOT CONFER TITLE
In the case of Smt. Sawarni vs. Smt. Inder Kaur and others, AIR 1996
Supreme Court 2823, the Apex Court has held that mutation of a
property in the revenue record does not create or extinguish title nor has
it any presumptive value on title. It only enables the person in whose
favour mutation is ordered to pay the land revenue in question. Mutation
entry in favour of the defendant did not convey any title in her favour.
Merely on the basis of entry in R.S. Khatiyan in the year 1920, it cannot be
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said that the plaintiffs were either in possession of the property or are the
owner of the property.
REVENUE RECORDS DOES NOT CONVEY ANY TITLE TO THE
PROPERTY
Suraj Bhan and Ors. v. Financial Commissioner and Ors.,(2007) 6 SCC 186
It is well settled that an entry in Revenue Records does not confer title on
a person whose name appears in Record of Rights. It is settled law that
entries in the Revenue Records or Jamabandi have only 'fiscal purpose' i.e.
payment of land-revenue, and no ownership is conferred on the basis of
such entries. So far as title to the property is concerned, it can only be
decided by a competent Civil Court (vide Jattu Ram v. Hakam Singh and
Ors., AIR 1994 SC 1653).
REVENUE ENTRIES PRESSUMED TO BE CORRECT AND SUCH
PRESUMPTION IS REBUTTABLE.
In Narain Prasad Aggarwal (D) by LRs. v. State of M.P. [2007 (8) SCALE
250], this Court opined: "22. Record of right is not a document of title.
Entries made therein in terms of Section 35 of the Indian Evidence Act
although are admissible as a relevant piece of evidence and although the
same may also carry a presumption of correctness, but it is beyond any
doubt or dispute that such a presumption is rebuttable."
A REVENUE RECORD IS NOT A DOCUMENT OF TITLE. IT MERELY
RAISES A PRESUMPTION IN REGARD TO POSSESSION
Sridhara babu. N
Gurunath Manohar Pavaskar v. Nagesh Sidappa, (2007) 13 SCC 565, A
revenue record is not a document of title. It merely raises a presumption
in regard to possession. Presumption of possession and/ or continuity
thereof both forward and backward can also be raised under Section 110
of the Indian Evidence Act. The courts below, were, therefore, required to
appreciate the evidence keeping in view the correct legal principles in
mind.
REVENUE COURT RELYING ON ORAL EVIDENCE IGNORING CERTAIN
VITAL DOCUMENTS
Sundra Naicka Vadiyar vs. Ramaswami Ayyar [1995 Suppl. (4) SCC 534],
it was held that where certain vital documents for deciding the question
of possession were ignored - such as a compromise, an order of the
revenue Court - reliance on oral evidence was unjustified.
WHEN ORIGINAL RTC IS FOUND TO HAVE WRITTEN IN TWO
DIFFERENT INK – THIS IS NOTHING BUT TAMPERING OF THE
ORIGINAL RTC RECORD
S. Mallikarjunappa vs The State Of Karnataka, ILR 2004 KAR 2119,
2004 (5) KarLJ 504 I have perused the original RTC register in respect of
the land in question. Two RTCs. for the years 1965-66 to 1969-70 are
found at pages 331 and 332. Both are written in same ink and in the same
handwriting. However, in page 331 the name of respondents 3 and 4 are
written for the aforesaid two years 1968-69 and 1969-70. The same is in
a different ink and even the hand writing also is different. This is nothing
but tampering of the original RTC record with a deliberate intention to
prefer a false claim of tenancy to deprive valuable rights of petitioner.
Their names are not found at page 332 though pertaining to the same
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period. On the strength of such entries tenancy claim was put forth, which
was granted by the Land Tribunal without application of mind.
RELEVANCY OF ENTRIES IN REVENUE RECORDS
Entries in Revenue Records neither confer any title nor extinguish the
title already existing. Balwant Singh’s case: AIR 1997 SC 2719.
Jama bandi is a land revenue demand. Jama bandi entries alone will not
create title in the person whose name is found in such records. Jatturam
case: AIR 1994 SC 1653.
If a name is entered in revenue records, a presumption arises in favour of
the person and unless and until the presumption is rebutted, the entries
have to be considered as true and correct. M/S Ashok Leyland Ltd case:
2004 (5) Supreme 115, Syedabad Tea Co. Ltd case: AIR 1983 SC 72, State
of Maharastra case: AIR 1985 SC 716.
However, the entries in revenue records alone will not convey title or will
not have the effect of extinguishing the already existing title. B. Singh &
Anr case: AIR 1997 SC 2719.
If there are two sets of revenue records regarding the same property and
their entries conflicting then the latest of the records will prevail.
M.Pandey & Ors case: AIR 1981 Cal 74.
Mutation entries can neither create title nor extinguish title and such
entries cannot be treated as evidence of sale. Major P.S. Atwad case: AIR
1995 SC 2125.
Sridhara babu. N
Entries in revenue records which are unchanged fairly for a long time will
not be rebutted by some stray entries. Sri Bhimeshwara Swamivaru
Temple case: AIR 1973 SC 1299.
ONCE NAME OF GRANTEE IS ENTERED IN RECORD OF RIGHTS ON
THE BASIS OF ORDER OF GRANT, NAME CANNOT BE DELETED FROM
RECORDS, UNLESS GRANT HAS BEEN REVOKED IN PROPERLY
CONSTITUTED PROCEEDINGS BY AUTHORITY COMPETENT TO
REVOKE GRANT
Entry in Record of Rights:- Once name of grantee is entered in record of
rights on the basis of order of grant, name cannot be deleted from
records, unless grant has been revoked in properly constituted
proceedings by authority competent to revoke grant. M.N.Venkateshaiah’s
case before KHC (DB) , decided on 05-10-05 reported in 2005(6) KarLJ
452 (DB).
KHARAB LAND IS ALSO CAPABLE OF OWNERSHIP WHICH MUST BE
ACQUIRED IN THE SAME WAY AS CULTIVABLE LAND
In Saudagar asul vs State of Kar, reported in ILR 1973 Kar 56. The title to
kharab land is clarified by Karnataka High Court. “ Kharab land is
uncultivable land classified for the purposes of revenue exemption. It
cannot be regarded as adjunct to adjoining cultivable land, which gets
transferred along with cultivable land. Kharab land is also capable of
ownership which must be acquired in the same way as cultivable land.
MUTATION OF THE PROPERTY IN THE REVENUE RECORD WILL NOT
EXTINGUISH TITLE NOR HAS IT ANY PRESUMPTIVE VALUE ON TITLE.
Sridhara babu. N
The legal effect of mutation, according to the learned counsel, has been
clearly laid down by this court in a recent judgment in Smt. Sawarni vs.
Smt. Inder Kaur & Other (1996 (7) JT SC 580). According to the learned
counsel, mutation of the property in the revenue record will not
extinguish title nor has it any presumptive value on title.
PRESUMPTION OF REVENUE ENTRIES
Court in Gurbaksh Singh v. Nikka Singh (1963 Supp. (1) SCR 55) has held
that entries in mutation must be taken as correct unless the contrary is
established.
MUTATION ENTRIES DO NOT CONVEY OR EXTINGUISH ANY TITLE
AND THOSE ENTRIES ARE RELEVANT ONLY FOR THE PURPOSE OF
COLLECTION OF LAND REVENUE
Apex Court reported in ILR 1998 Kar. 707 [Balwant Singh and anr. Vs.
Daulat Sing (Dead) by Lrs. and Others]; wherein the Apex Court held that
a mutation gift does not confer any title on the donee. …………… Anybody
affected by such entries should have challenged the same as provide
under the law. In the absence of that, the entries cannot be ignored. Be
that as it may, we have already noticed that mutation entries do not
convey or extinguish any title and those entries are relevant only for the
purpose of collection of land revenue.
ENTRY IN THE REVENUE RECORD OR PAPERS BY NO STRETCH OF
IMAGINATION CAN FORM BASIS FOR DECLARATION OF TITLE
Sridhara babu. N
In ILR 1998 Kar. 1 [State of Himachal Pradesh Vs. Keshav Ram and
Others]; wherein the Apex Court referring to the provisions of Section
114 of the Evidence Act, in relation to the entry in the Revenue Record or
papers held that by no stretch of imagination it can form basis for
declaration of title.
UNLESS THE TRANSFEREE ESTABLISHES THAT HE HAD TAKEN
REASONABLE CARE TO ASCERTAIN THE RIGHT OR TITLE OF THE
TRANSFEROR AND THE TRANSFEREE HAD ACTED IN GOOD FAITH,
THOUGH THE SALE DEEDS ARE FOR VALID CONSIDERATION IS
ITSELF HELD TO BE NOT SUFFICIENT TO VALIDATE SUCH
TRANSACTION
ILR 2003 Kar. 1774 [Mallappa Adiveppa Hadapad Vs. Smt. Rudrawwa and
Others]; wherein the revenue records stood in the name of the transferor
at the time when the transferee purchased the property and Court held
that unless the transferee establishes that he had taken reasonable care to
ascertain the right or title of the transferor and the transferee had acted
in good faith, though the Sale Deeds are for valid consideration is itself
held to be not sufficient to validate such transaction under Section 41 of
the Act. Mere varadi to change revenue entries does not confer valid title.
…………. It need not be said that a party cannot make out a new case
during trial or at any stage subsequent thereto if he/she has not pleaded
about it in her/his pleadings. It is not that the protection being claimed by
the 1st defendant under Section 41 of T.P. Act is purely a question of law,
not based on facts. In fact, a decision on the plea of protection under
Section 41 of T.P. Act depends on several questions of fact, each requiring
careful examination and as such, it cannot be said that unless such a plea
Sridhara babu. N
was taken in the pleading and put in issue between the parties, a party to
the proceedings can raise the plea covered by Section 41 of T.P. Act, for
the first time in appeal. ……….. the 1st defendant not specifically pleaded
that defendants No. 2 to 4 were the ostensible owners of the suit lands,
though pleaded that he is a bonafide purchaser for value without notice of
plaintiff's right, if any. It is not that Section 41 of the said Act comes to the
aid of a party without there being any pleading or a case set up by party
that the purchase was through an ostensible owner. If the sale is not by an
ostensible owner, the said provision of law does not come into
picture…………. It need not be said that transfer of an immoveable
property can be by way of registered document when the value of such
property is more than Rs. 100/-. It is not the case or evidence of 1st
defendant that when plaintiff gave "Varadi", as contended by him, the suit
lands were worth less than Rs. 100/- and as such, on account of such
consent "Varadi", they derived any title, much less, a valid title to the suit
lands.
MERE VARADI TO CHANGE REVENUE ENTRIES DOES NOT CONFER
VALID TITLE
ILR 2003 Kar. 1774 [Mallappa Adiveppa Hadapad Vs. Smt. Rudrawwa and
Others]; wherein the revenue records stood in the name of the transferor
at the time when the transferee purchased the property and Court held
that unless the transferee establishes that he had taken reasonable care to
ascertain the right or title of the transferor and the transferee had acted
in good faith, though the Sale Deeds are for valid consideration is itself
held to be not sufficient to validate such transaction under Section 41 of
the Act. Mere varadi to change revenue entries does not confer valid title.
Sridhara babu. N
…………. It need not be said that a party cannot make out a new case
during trial or at any stage subsequent thereto if he/she has not pleaded
about it in her/his pleadings. It is not that the protection being claimed by
the 1st defendant under Section 41 of T.P. Act is purely a question of law,
not based on facts. In fact, a decision on the plea of protection under
Section 41 of T.P. Act depends on several questions of fact, each requiring
careful examination and as such, it cannot be said that unless such a plea
was taken in the pleading and put in issue between the parties, a party to
the proceedings can raise the plea covered by Section 41 of T.P. Act, for
the first time in appeal. ……….. the 1st defendant not specifically pleaded
that defendants No. 2 to 4 were the ostensible owners of the suit lands,
though pleaded that he is a bonafide purchaser for value without notice of
plaintiff's right, if any. It is not that Section 41 of the said Act comes to the
aid of a party without there being any pleading or a case set up by party
that the purchase was through an ostensible owner. If the sale is not by an
ostensible owner, the said provision of law does not come into
picture…………. It need not be said that transfer of an immoveable
property can be by way of registered document when the value of such
property is more than Rs. 100/-. It is not the case or evidence of 1st
defendant that when plaintiff gave "Varadi", as contended by him, the suit
lands were worth less than Rs. 100/- and as such, on account of such
consent "Varadi", they derived any title, much less, a valid title to the suit
lands.
TAHSILDAR HAS GOT POWER ONLY TO ISSUE SURVIVALSHIP
CERTIFICATE AND NOT THE LEGAL HEIRSHIP CERTIFICATE
Sridhara babu. N
The Tahsildar has got power only to issue survivalship certificate and not
the legal heirship certificate. Basavanni Shankar Ammanagi VS Smt.
Keshavva And Ors case: 2002 (2) KarLJ 317A. ILR 2002 KAR 581 ………….
The Tahsildar has got power only to issue survivalship certificate and not
the legal heirship certificate. If the second respondent contends that she is
the class I heir of the deceased-Shivanand, she must get the order from
the competent Court to establish that she is the class I heir of the
deceased. Therefore, the impugned order passed by. the 5th respondent is
not sustainable in the eye of law. The order passed by the 4th respondent
holding that the appeal is not maintainable under the order passed by the
Tahsildar is contrary to the relevant provisions of the Act. The appeal filed
by the petitioner is maintainable and the order passed by the 5th
respondent is not maintainable. Hence, the Assistant-Commissioner has
committed an error in passing the impugned order declaring that the
appeal filed by the petitioner is not maintainable.
DECISION OF THE REVENUE COURT HAS TO BE NECESSARILY BASED
ON THE UNDISPUTED FACTS
Smt. Shivagangavva vs The Deputy Commissioner And Ors. ILR 2007
KAR 4542 Every revenue officer who is authorized to hold an enquiry in
respect of disputed cases is a revenue Court. The very fact he is prohibited
from recording the statements and depositions of the parties makes it
clear that no substantial rights of the parties in respect of the disputed
property can be gone into by such revenue Court. If title or right set up by
one party to an immovable property is disputed by the other party such
title to the property cannot be enquired into by the revenue Courts much
less any decision be rendered for any purpose whatsoever. In the first
place the revenue Court constituted under the Act can only go into
Sridhara babu. N
questions of assessment, recovery of land revenue and land revenue
administration and it has no jurisdiction to go into the question of title in
respect of an immovable property which exclusively vests in the Civil
Court. …………… If a Will is set up to deprive a legal heir who had acquired
title to the property either by succession, survivorship or inheritance, the
person claiming under the Will has to show better title. If the Will is
disputed strict proof of Will as required under Sections 63 and 64 of the
Succession Act is to be provided. ……….. Under these circumstances, the
revenue Courts have no jurisdiction to go into the genuineness or validity
of the Will or to the question of title in respect of the land in dispute. The
decision of the revenue Court has to be necessarily based on the
undisputed facts. The Revenue Court cannot go into the disputed
questions of relationship, status of the parties title to the property or
genuineness or otherwise of a document or challenge to the documents
on the ground of fraud, undue influence, misrepresentation or mistake.
………… when a person claims title to a property under a Will for the
purpose of getting a mutation entry in the revenue records before any
such entry is made the Revenue Court should prima facie be satisfied that
the said documents is genuine and valid even in the absence of any
dispute as the said Will comes in the way of natural succession. By virtue
of Section 128 when the owner of the land dies, the title to the said
property passed on to the legal heir by succession or survivorship or
inheritance and the property vests with such a legal heir without there
being any document and purely based on the relationship of the deceased
with the legal heir. A Will can come into operation only after the death of
the executant. If a Will is set up to deprive a legal heir who had acquired
title to the property either by succession, survivorship or inheritance, the
person claiming under the Will has to show better title. If the Will is
disputed strict proof of Will as required under Sections 63 and 64 of the
Sridhara babu. N
Succession Act is to be provided. When the revenue Court is prevented
from recording the statement of the parties and the depositions, the
question of establishing the genuineness of the Will for any purpose
whatsoever before the revenue Court in an enquiry would not arise.
Under these circumstances, the revenue Courts have no jurisdiction to go
into the genuineness or validity of the Will or to the question of title in
respect of the land in dispute. The decision of the revenue Court has to be
necessarily based on the undisputed facts. The Revenue Court cannot go
into the disputed questions of relationship, status of the parties title to the
property or genuineness or otherwise of a document or challenge to the
documents on the ground of fraud, undue influence, misrepresentation or
mistake.
THE REVENUE COURT CANNOT GO INTO THE DISPUTED QUESTIONS
OF RELATIONSHIP, STATUS OF THE PARTIES' TITLE TO THE
PROPERTY OR GENUINENESS OR OTHERWISE OF A DOCUMENT OR
CHALLENGE TO THE DOCUMENTS ON THE GROUND OF FRAUD,
UNDUE INFLUENCE, MISREPRESENTATION OR MISTAKE.
C.N. Nagendra Singh vs The Special Deputy Commissioner ILR 2002
KAR 2750, 2002 (6) KarLJ 391 If any person acquires by succession,
survivorship, inheritance, partition, purchase, mortgage, gift, lease or
otherwise, any right as holder, occupant, owner, mortgagee, landlord or
tenant of the land or assignee of the rent of revenue thereof, he shall
report orally or in writing his acquisition of such right to the prescribed
officer who in turn shall enter in the register of mutations every such
report made to him. If any objections are received to any such entry the
prescribed officer shall also enter the particulars of the objections in a
register of disputed cases and thereafter he shall enquire into the said
Sridhara babu. N
objections and dispose of the same in such manner as may be prescribed.
A bare perusal of Section 128 makes it clear that the name cannot be
entered in the record of rights merely on the basis of Will. The above
definition reveals that there is no mention of Will. So according to
petitioner's Counsel even putting the Will before the Revenue Court, one
has to get a declaration from a competent Court, that is letters of probate
and thereafter he can get his name entered in the mutation
register. ………….. Under these circumstances, the Revenue Courts have no
jurisdiction to go into the genuineness or validity of the Will or to the
question of title in respect of the land in dispute. The decision of the
Revenue Court has to be necessarily based on the undisputed facts. The
Revenue Court cannot go into the disputed questions of relationship,
status of the parties' title to the property or genuineness or otherwise of a
document or challenge to the documents on the ground of fraud, undue
influence, misrepresentation or mistake.
REVENUE AUTHORITIES DO NOT HAVE POWER OR JURISDICTION TO
PRONOUNCE UPON LEGAL RIGHTS OR LEGAL ENTITLEMENT OR
EVEN TO PRONOUNCE UPON THE VALIDITY OF A WILL OR A SALE
DEED
Smt. Papamma vs The Deputy Commissioner And Ors. ILR 2005 KAR
5777, 2006 (4) KarLJ 330 Revenue authorities do not have power or
jurisdiction to pronounce upon legal rights or legal entitlement or even to
pronounce upon the validity of a Will or a sale deed and such power is
undoubtedly vested with the Civil Court. The Tahsildar had no
competence to say one way or the other on the validity of the sale deed
and to the extent the Tahsildar ventured upon to opine that the sale
transaction was one not tenable or proper is an adventure not permitted
Sridhara babu. N
in law. ……….. However, it does not mean that the authorities can give a go
by to the procedure contemplated in law even for the limited purpose of
changing the revenue entries. The Tahsildar while holding an enquiry in
terms of the provisions of the Rule, noticed several disputes, claims,
counter claims, even to the extent of identity of the very person, who had
executed the sale deed being not clear; that the very person who is said to
have executed the sale deed claiming that he had not executed the sale
deed in respect of the land in question was not his land that he had been
pressurized to execute the sale deed etc. ……… it is only proper that the
parties should approach the Civil Court to get their rights determined and
there upon seek for necessary correction in the revenue entries. No
exception can be taken to an order of this nature.
KAT HAS NO POWER TO MAKE INTERIM ORDERS LIKE AN ORDER
APPOINTING A RECEIVER OR GRANTING AN INTERIM ORDER OF
INJUNCTION IN RESPECT OF PROPERTIES IN DISPUTE DURING THE
PENDENCY OF AN APPEAL FILED UNDER THE KARNATAKA LAND
REVENUE ACT
Bench: K Bhimaiah, V Malimath, M R Jois, (Full Bench judgment) in
the case of Lingamma vs State Of Karnataka AIR 1982 Kant 18, ILR
1981 KAR 161, 1981 (2) KarLJ 177 "5..... An order appointing an interim
receiver cannot be regarded as absolutely essential for the discharge of
the appellant power. At best, it can be said that it is convenient to have
such a power. But as the Supreme Court has pointed out that the power
can be implied only if it is absolutely essential for the discharge of the
power conferred and not merely because it is convenient to have such a
power. So far as granting stay of order appealed against is concerned, the
same can be regarded as absolutely essential for the discharge of the
Sridhara babu. N
power conferred on the appellate authority and so can be implied even in
the absence of an express conferment of such a power on the appellant
authority. It is not possible to accede to the contention that the Supreme
Court has taken the view that conferment of an appellant power implies
the power in the appellate authority to make an interim order appointing
a receiver.... The Karnataka Appellate Tribunal constituted under the
Karnataka Appellate. Tribunal Act, 1976 has no power to make interim
orders like an order appointing a Receiver or granting an interim order of
injunction in respect of properties in dispute during the pendency of an
appeal filed under the Karnataka Land Revenue Act.
Booda Poojari vs Thomu Poojarthi ILR 1989 KAR 781 The significant
difference between Section 113(2) and (3) of the Act and Section 54 of the
Karnataka Land Revenue Act as extracted above is that in the Land
Revenue Act or Section 54 thereof there is no reference to either the Code
of Civil Procedure or to a Court of appeal exercising Appellate power
under the Code of Civil Procedure. In other words, Section 54 as held by
the Full Sench has to be understood to be exhaustive, in the matter of
conferment of power in itself and nothing could be implied or nothing
was left to be Implied by the legislature. Therefore, the learned Counsel
for the respondent contends that by implication the Appellate Authority
under the Act could not be clothed with the power of the Civil Court. That
would be begging the question. There is specific conferment of powers of
an Appellate Court under the Code of Civil Procedure on the Appellate
Authority by Section 113(2) and nothing is left to be implied. By reference
to provisions contained in the Code of Civil Procedure, the provisions
contained therein are legislated into the Karnataka Land Reforms Act in
so far as the duties, functions and powers of the Appellate Authority are
Sridhara babu. N
concerned subject to the exceptions created by the legislature itself in
Sections 113(2)(a), (b), (c) and (d) and Sub-section (3) of the said Section.
Therefore, while there cannot be any quarrel about the correctness of the
opinion expressed by the Full Bench which is binding on me, it has no
application to the question which fails for consideration in this case.
REVENUE COURT WHETHER THE COURT OF ORIGINAL JURISDICTION
OR APPELLATE JURISDICTION OR SUPERVISORY JURISDICTION
HAVE BEEN MAINTAINED AND RETAINED AND THEY ARE ENTITLED
TO PASS SUITABLE ORDER IN THE CIRCUMSTANCES OF THE CASE OR
AS THEY DEEM NECESSARY FOR THE PURPOSE OF SECURING JUSTICE
AND FOR THE PURPOSE OF PREVENTING THE ABUSE OF PROCESS OF
THE COURT
Hanumakka vs State Of Karnataka ILR 1995 KAR 1168, 1995 (2)
KarLJ 117 Section 25 of the Karnataka Land Revenue Act 1964 is
anologus to Section 151 of C.P.C. whereunder it has been declared that
inherent powers do stand vested in the Civil Courts and nothing in the
provision of the Code shall be deemed to limit or otherwise affect the
inherent powers of the Court to make such orders as may be necessary in
the interest of Justice and to prevent the abuse of the process of the Court.
A reading of Section 25 of the Act as well as Section 151 of C.P.C. firstly
will show that whether Civil Court or Revenue Court, the Legislature
deems it and has considered that inherent powers are always vested in
the Court as the constituent part of the Court. These two Sections only
clarify that none of the provisions either of the Karnataka Land Revenue
Act or that of C.P.C. should be taken to limit or curtail the inherent powers
which are already vested in the Court. Clear departure can be marked and
can be taken note of, if we have a glance of Section 482 of Cr.P.C. The
Sridhara babu. N
Cr.P.C. indicates that inherent powers have been taken and have been
declared to continue to vest only in the High Court but not in the
subordinate Criminal Courts. ……… Bare reading of Section 25 the
Karnataka Land Revenue Act as well as 151 of C.P.C. and Section 482 of
the Cr.P.C. firstly shows under the Code of Criminal Procedure, the
concept of inherent powers with reference to Subordinate Courts is not
applicable. That Section 482 Cr.P.C. declares that inherent powers only of
the High Court will not be affected because of any other provisions in the
Cr.P.C. But that is not so with respect to Subordinate Courts either under
Code of Civil Procedure or Karnataka Land Revenue Act 1964. While
under Section 151 of C.P.C., the inherent powers of the Civil Court and
under Section 25 of the Karnataka Land Revenue Act, the inherent powers
of the Revenue Court whether the Court of original jurisdiction or
appellate jurisdiction or supervisory jurisdiction have been maintained
and retained and they are entitled to pass suitable order in the
circumstances of the case or as they deem necessary for the purpose of
securing Justice and for the purpose of preventing the abuse of process of
the Court.
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
K. Somashekara Shetty vs Devaki And Ors. ILR 2005 KAR 3534, 2005
(5) KarLJ 248 The procedure prescribed in the CPC as amended by Act
Sridhara babu. N
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.
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,
Court has held that under Rule 17 of the Karnataka Land Reforms Rules,
Sridhara babu. N
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 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 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.
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In Sanna Karibasappa v. Mudegowdra Mahadevappa and Ors., 1978
(2) Kar.L.J. 26 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.
IS THE CONVERSION ORDER NECESSARY FOR LANDS COMING UNDER
MUNICIPAL & CORPORATION LIMITS – YES
Case of J.M. Narayana and Ors. v. Corporation of The City of
Bangalore ILR 2005 Karnataka 60 a Division Bench of Court has clearly
declared that the Land Revenue Act would cease to be applicable to such
of those lands no sooner the land is brought within the Corporation limits.
Hence the impugned Notification and Circular are totally contrary to the
consistent law in the State of Karnataka since over two decades. Various
layouts in the State of Karnataka such as Cantonment area, Basavangudi,
Malleshwaram, Cottonpet, Gandhinagar, Old Mysore etc., are formed over
hundred years ago and some layouts are formed during the reign of
Diwan of Mysore and since their formation, these areas are being used for
non-agricultural/residential purposes. Therefore, the question of
converting these lands for non-agricultural purposes under Section 95 of
the Karnataka Land Revenue Act does not arise at all. The impugned
Notification and Circular are totally one without application of mind and
is passed only for extraneous considerations well known to the
respondents.
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Court in the case of Bangalore Development Authority v. Vishwa
Bharathi House Building Co-operative Society Limited ILR 1991 KAR
4401, has held that the lands which are situated within the jurisdiction of
the Corporation are deemed to be converted for that particular use.
Therefore the question of classifying these lands as non-agricultural lands
in the impugned notification is totally arbitrary and illegal and moreover
as these notifications have retrospective effect, the public interest and the
property rights guaranteed to citizens have been given a go-bye.
Special Deputy Commissioner vs Narayanappa ILR 1988 KAR 1398
“State of Karnataka v. Jayashree ILR 1986 KAR 820. In that case also the
parties concerned had made application to Special Deputy Commissioner,
Bangalore, praying for permission for conversion of certain agricultural
land for non-agricultural purposes. The application had been rejected by
the Special Deputy Commissioner; but his order was set aside by the
Appellate Tribunal which gave a specific direction to the Special Deputy
Commissioner to accord sanction for conversion by imposing such
conditions as are permissible in view of Subsection (4) of Section 95 of
the Act. Aggrieved by the order of the Tribunal the Special Deputy
Commissioner preferred the Writ Petitions. The learned Judge Doddakale
Gowda, J. in the course of the order made a detailed reference to the
provisions of the Town Planning Act and pointed out that if the land
comes within the area of ODP or CDP, sanction of the Planning Authority
was essential for change of use of the land. The learned Judge also pointed
out that exercise of such powers under Section 95 of the Land Revenue
Act would be an exercise in futility. We are in respectful agreement with
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the view expressed by the learned Judge. But, we however add, if a land
fell within ODP or CDP prepared for Bangalore Metropolitan Planning
Area the Special Deputy Commissioner, Bangalore, ceases to have any
power under Section 95 of the Act, in view of the over-riding effect given
to the provisions of the Planning Act by Section 76M thereof over all other
laws which includes The Land Revenue Act. Section 76M was not brought
to the notice of the learned Judge. Whatever that may be, the fact remains
that the view taken by the learned Judge that any permission to be
accorded must be in conformity with the provisions of the Town Planning
Act and the ODP and CDP prepared thereunder, is correct and we entirely
agree with the view taken by the learned Judge.”
The State Of Karnataka, By Its ... vs A. Sidramappa ILR 2004 KAR
270, 2004 (2) KarLJ 370 After the above said decision, Section 95(2) of
the Act has been amended. In view of this amendment, notwithstanding
anything contained in any law, the applicant is required to obtain the
permission of the Deputy Commissioner to use the agricultural land for
non-agricultural purpose.
The Supreme Court in the case of State of Karnataka
Vs Shankar Textiles Mill Ltd ... AIR 1995 SC 234 has held that obtaining
permission to use the agricultural land for non agricultural purpose under
Section 95(2) of the Act is mandatory in view of the non abstante clause
introduced by way of an amendment.
DEPUTY COMMISSIONER SHALL NOT EXERCISE HIS POWER FOR
GRANT OF CONVERSION OF AGRICULTURAL LAND INTO NON-
AGRICULTURAL PURPOSE, IF THAT DIVERSION OF THE LANDS IS
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LIKELY TO DEFEAT THE PROVISIONS OF ANY LAW FOR THE TIME
BEING IN FORCE
Smt. Sharfunnissa vs The Deputy Commissioner And Anr. ILR 2004
KAR 5062 It is an undisputed fact that the petitioner is registered as an
occupant in respect of the aforesaid agricultural lands by the Land
Tribunal vide its order dated 12.3.1999. Occupancy Certificate in Form
No. 10 was issued on 25.3.1999 to her with a condition of non-alienation
of the lands in question for a period of 15 years from the date of the order
passed by the Tribunal as per Section 61 of the KLRF Act. ………….. Section
62 of the KLRF Act stipulates that, if the person who has been registered
as occupant under Chapter -III of the KLRF Act or his successor in title
intends within six years from the date of such registration to give up
personal cultivation of the land, he shall surrender the land to the State
Government. The surrendered land shall be at the disposal of the State
Government. ………….. Undisputedly, 15 years period of non-alienation of
the lands from the date of the order passed by the Tribunal stipulated
under Section 61(1) of the Act is not yet over as on the date the petitioner
sought conversion of the lands. There is no provision in the KLRF Act to
relax the condition regarding non alienation of the lands either by the
State Government or any other authority. ……………. Section 60 of the
KLRF Act postulates as follows: Notwithstanding anything contained in
any law, if at any time after the tenant has been registered as occupant
under any of the foregoing provisions, such tenant fails to cultivate the
land personally for three consecutive years, he shall, unless the Tahsildar
condones such failure for sufficient reasons, be evicted and the land shall
be disposed of in accordance with the provisions of Section 77.
…………… This is a very important provision required to be taken into
consideration by them while considering the applications seeking
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conversion of lands. The petitioner has not stated that he has cultivated
the lands personally for three consecutive years. Hence she is liable to be
evicted from the lands by the Tahsildar under Section 60 of KLRF Act.
…………….. Conversion of lands in question must be examined by the
Deputy Commissioner keeping in view Sub-section (3) of Section 95 of the
KLR Act which clearly spells out that the Deputy Commissioner shall not
exercise his power for grant of conversion of agricultural land into non-
agricultural purpose, if that diversion of the lands is likely to defeat the
provisions of any law for the time being in force. The said provision of the
KLR Act will come in the way for the Deputy Commissioner to exercise his
power for granting conversion.
TAHSILDAR HAS NO AUTHORITY TO MAKE CONVERSION ORDER
Karibasappa Kuravateppa ... vs Assistant Commissioner ILR 1997
KAR 2236 In so far as the last plea based on promissory estoppel is
concerned, as I have held above, the act of the Tahasildar converting the
nature of the land from agriculture to non-agriculture was clearly ultra-
virus his powers under the Act. It is also well settled that there cannot be
any estoppel against the statute. The doctrine of promissory estoppel can
be invoked only in such cases where there had been a representation by
the competent authority leading to alteration of position by. the
complaining person and not in such cases where the representation had
been by a person who had absolutely no authority under the statute.
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THE REVENUE AUTHORITIES HAVE NO POWER TO INTERFERE OR
DECIDE THE CIVIL RIGHTS BETWEEN THE PARTIES - LAND OWNERS
ARE COVERED BY SEED SUBSIDY AND CROP INSURANCE EVERY YEAR
AND LACK OF KNOWLEDGE OF FIVE YEARS FIVE MONTHS WITHOUT
ANY SUFFICIENT GROUNDS FOR DELAY APPEARS UNREASONABLE
Vijayalakshmi W/O Narasayya And ... vs The Deputy
Commissioner ILR 2007 KAR 3814, 2008 (1) KarLJ 618 The revenue
authorities have no power to interfere or decide the civil rights between
the parties. …….. Further it is specifically observed by the Assistant
Commissioner in the operative portion of the order that, it is common
knowledge that, the land revenue and other taxes in respect of the land
have to be paid by all the landholders every year and also as per the
Karnataka Land Revenue Act, every year all the landholders are given free
RTC of the land and that, majority of the land owners are covered by seed
subsidy and crop insurance every year and lack of knowledge of five years
five months without any sufficient grounds appears unreasonable. The
said observation made by the said authority is just and proper and there
is no error or illegality as such committed by the said authority in
dismissing the appeal filed by petitioners. Assailing the correctness of the
said order passed by the Assistant Commissioner, petitioners have filed
the revision petition before the first respondent under Section 136(3) of
the Karnataka Land Revenue Act. The revisional authority, in turn after
giving sufficient opportunity to both parties and after critical evaluation
of the entire relevant material available on file including the order passed
by second respondent and fourth respondent, has recorded that, as per
Section 128 of the Act, public notice has been issued calling for objections
and no objections were received from any one including the revision
petitioners. Further, the said authority has rightly observed that, "when
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the name of revision petitioner did not appear in the ROR at that time,
question of issuing individual notices did not arise. If at all the petitioners
have any right in the lands as against the respondent, they have to
establish before the Civil Court. So the revision is not maintainable." The
said reasoning given by the first respondent is just and proper and there
is no error as such committed by the said authority.
REVENUE AUTHORITY SHALL MAKE NECESSARY ENTRIES IN THE
REVENUE RECORDS AFTER ORDER IS PASSED BY THE COMPETENT
COURT
Appasab Babaji Dhabade Major, ... vs The Deputy Commissioner And
Ors 2006 (6) KarLJ 156 If any order is passed by the competent court
regarding the validity of the said will, the revenue authority shall make
necessary entries in the revenue records, in accordance with law
REVENUE AUTHORITIES DO NOT HAVE POWER OR JURISDICTION TO
PRONOUNCE UPON LEGAL RIGHTS OR LEGAL ENTITLEMENT OR
EVEN TO PRONOUNCE UPON THE VALIDITY OF A WILL OR A SALE
DEED
Smt. Papamma vs The Deputy Commissioner And Ors. ILR 2005 KAR
5777, 2006 (4) KarLJ 330 Revenue authorities do not have power or
jurisdiction to pronounce upon legal rights or legal entitlement or even to
pronounce upon the validity of a Will or a sale deed and such power is
undoubtedly vested with the Civil Court. The Tahsildar had no
competence to say one way or the other on the validity of the sale deed
and to the extent the Tahsildar ventured upon to opine that the sale
transaction was one not tenable or proper is an adventure not permitted
Sridhara babu. N
in law. …………… The Tahsildar while holding an enquiry in terms of the
provisions of the Rule, noticed several disputes, claims, counter claims,
even to the extent of identity of the very person, who had executed the
sale deed being not clear; that the very person who is said to have
executed the sale deed claiming that he had not executed the sale deed in
respect of the land in question was not his land that he had been
pressurized to execute the sale deed etc. …………….. Whatever may be said
by the revenue authorities their domain is only for effecting a change in
the revenue records and to show the names of particular persons, which
cannotion pass on or by itself create rights to such persons who have
already acquired them and it is not as though the revenue entries by
themselves give such right. Unfortunately for the petitioner in the present
case it is to his detriment. Time and again it has been made clear by this
Court, that the parties and litigants proceed on a premise that what is said
by the revenue authorities is final and orders of the revenue authorities
had taken away the rights of the parties and such a situation should be set
right by this Court in exercise of jurisdiction under Article 227 of the
Constitution of India. …….. I am of the opinion that it is not necessary to
venture upon such aspects in exercise of jurisdiction under Article 227 of
the Constitution of India, Particularly as the revenue entries are not
conclusive of the rights of the parties to the properties.
S. Siddappa And Others vs State Of Karnataka And Another ILR 1998
KAR 2757, 1998 (5) KarLJ 36 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
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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. ………….
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.
Chikajala Gram Panchayath vs The State Of Karnataka ILR 2008 KAR
1879 It is the case of the petitioner that, land bearing Sy. No. 116,
measuring 6 acres 22 guntas of Tarabanahalli village is a gomal land.
When things stood thus, respondents-4 to 20 have managed to get the
Hakku patras in their favour by manipulation under the Ashraya Scheme.
Sridhara babu. N
………… The petitioner has not chosen to assail the correctness of the
hakku patras issued by 3rd respondent before the competent authority as
provided under the relevant provisions of the Act and Rules. ………… The
petitioner without redressing the grievance though proper channel as
envisaged under the relevant provisions of the Panchayath Raj Act, he
cannot give representations directly to the Revenue Department for
initiating proceedings and for taking appropriate action regarding issuing
the hakku patras to respondents-4 to 20, that too, when the said hakku
patras were issued in the year 1991.
M.T. Krishnappa vs Erashetty, ILR 2006 KAR 2728, 2006 (5) KarLJ
226 It is the duty of the revenue authorities to see that the grants made
under the Karnataka Land Revenue Act, 1964 or under the Land Grant
Rules, 1969 are effectuated by the concerned authorities i.e., by proper
identification of the lands before and after grant without giving room for
any controversy. It is also necessary to preserve the remaining extent of
the Government land in tact and to see that the parties do not encroach
upon the remaining extent of Government land under the guise of grant
certificates.
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
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adopted indirect way of cancelling the grant by changing the mutation
entry. This is ex facie impermissible in law".
CORRECTNESS OF LAND REVENUE RECORD ENTRIES CANNOT BE
DOUBTED AFTER 40 YEARS MERELY BECAUSE ORIGINAL RECORDS
NOT AVAILABLE 2005 KAR HC
M.N. Venkateshaiah vs The State Of Karnataka ILR 2005 KAR 5084,
2005 (6) KarLJ 452 (DB) “It also needs to be noticed that from 1940s till
the year 1995, neither the revenue authorities nor any private persons
questioned the possession and cultivation of the schedule land by the
appellant and his predecessors-in-title by contending that they were
unauthorised occupants of the schedule land or that no grants were made
in their favour or that someone else is entitled to the schedule land. 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.”
WHEN ONCE LAND IS CONVERTED FROM AGRICULTURE TO NON-
AGRICULTURE – SUCH STATUTORY ORDER REMAINS VALID STILL IT
IS CANCELLED – THE REVENUE DOCUMENTS OF AGRICULTURAL
LAND LOOSES ITS SIGNIFICANCE ONCE LAND CONVERTED.
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Mallikarjun Co-Operative ... vs State Of Karnataka ILR 1995 KAR
2230, 1995 (6) KarLJ 46 Where a land is converted for non-agricultural
purpose cannot be treated as an agricultural land in the absence of any
order withdrawing the demand or cancelling the permission granted
under Section 95(2) of the Land Revenue Act. ………….. In D.S.
LAKSHMINARAYANA RAO v. THE LAND TRIBUNAL, DODDABALLAPUR
AND ORS. 8. ILR 1980 KAR 283 this Court has held that the conversion of
land would be complete when once permission was granted or to deemed
to have been granted and actual levy of fine is only a subsequent
formality. Such a land is not a land as defined in the Act and therefore did
not attract the provisions of the Act. ……….. GOPALAPPA v.
GURUSHANKARAIAH 1983(2) KAR.L.J. 148 "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 by-pass the 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." ………….. The documents such as receipts, entries in the revenue
records and the mutation entry are all subsequent to 1955 and they
would infuse no confidence and as such they cannot be relied upon
nor do they serve any purpose when once it was held that the land in
question was converted for non-agricultural purpose.
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REVENUE COURT CANNOT ENQUIRE INTO QUESTION OF TITLE,
DISPUTED RELATIONSHIP, GENUINEITY OF DOCUMENT
C.N. Nagendra Singh vs The Special Deputy Commissioner ILR 2002
KAR 2750, 2002 (6) KarLJ 391 Bench: N Jain, H Rangavittalachar, N
Kumar “Rule 43 of the Karnataka Land Revenue Rules deals with
settlement of disputes. It states every case entered in the register of
disputed cases shall be enquired into and decided by the Sheristedar or
by any officer of the Revenue Department equal or superior in rank to him
on an appointed day of which due notice shall be given to the parties
concerned. It categorically states the proceedings of the enquiry shall be
oral and held in the public and there shall be no recording of statements
and depositions. The only record shall be the decision of the officer
holding the enquiry, in the register itself, which shall contain a brief
summary of the facts elicited during the enquiry and the grounds for the
decision. Of course an appeal is provided against such decision to the
Assistant Commissioner in charge of the Sub-Division whose decision
shall be final. Therefore, it becomes clear every Revenue Officer who is
authorised to hold an enquiry in respect of disputed cases is a Revenue
Court. The very fact that he is prohibited from recording the statements
and depositions of the parties makes it clear that no substantial rights of
the parties in respect of the disputed property can be gone into by such
Revenue Court. If title or right set up by one party to an immovable
property is disputed by the other party such title to the property cannot
be enquired into by the Revenue Courts much less any decision be
rendered for any purpose whatsoever. In the first place the Revenue
Court constituted under the Act can only go into questions of assessment,
recovery of land revenue and land revenue administration and it has no
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jurisdiction to go into the question of title in respect of an immovable
property which exclusively vests in the Civil Court.”
Madhav Bandopant Kulkarni And ... vs The Land Tribunal And Ors
2003 (5) KarLJ 13 (DB) ………. Legal position is very clear insofar as 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 …………
GUIDANCE TO REVENUE COURT TO RECORD EVIDENCE IN PROPER
MANNER
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.
Dattatraya Pandit v. Land Tribunal, Hukkeri, 1997 (2) Kar. L.J 209,
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
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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 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.
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.
Sanna Karibasappa v. Mudegowdra Mahadevappa and Ors., 1978 (2)
Kar.L.J. 26 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.
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K. Somashekara Shetty vs Devaki And Ors. ILR 2005 KAR 3534, 2005
(5) KarLJ 248 ……. 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 for the Tribunal to accept examination-in-chief by way of
affidavit. It is also not permissible to record evidence in a language
(English) 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.
WHEN ACT CONFERS JURISDICTION IT IMPLIEDLY CONFER POWER
TO IMPLIMENT IT
Supreme Court in Sub-Divisional Officer, Sadar Faizabad v. Shamboo
Narain Singh, 1970 AIR 140, 1970 SCR (1) 151. of the judgment, the,
Supreme Court has observed as follows : "It is well recognised that where
an Act confers a jurisdiction, it impliedly also grants the power of doing all
such acts or employing such means as are essentially necessary .to, its
execution. But before implying the existence of such a power the Court
must be satisfied that the existence of that power is absolutely essential
for the discharge of the power conferred and not merely that it is
convenient to have such a power."
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A PERSON WHO IS NOT PARTY CAN APPEAL PROVIDED HE OBTAINS
LEAVE OF COURT SHOWING WHAT INTEREST HE HAS IN THE
PROPERTY
In Shivaraya v. Siddamma. AIR 1963 Mys 127 while considering the
question as to whether a person who is not a party to the proceeding can
prefer an appeal, it is held that leave to a person to appeal from a decree
or order in a proceeding to which he is not a party shall not ordinarily be
granted unless he establishes that he has an interest which is affected by
the order or decree from which he proposes to appeal. It is also further
held that the question as to whether leave should or should not be
granted depends upon the facts of each case and it is for the appellate
court to decide whether the case before it is a fit one for the grant of such
leave. This decision is approved in The State of Punjab v. Amarsingh, AIR
1974 SC 904 at para 84
WHO IS INTERESTED PARTY IN A DISPUTE
In Maharaj Singh v, State of U.P., 1976 AIR 2602, 1977 SCR (1)1072,
the question that arose for consideration was as to whether the State
which was not a party to the suit could maintain an appeal under S. 96,
C.P.C. It was held that where a wrong against community interest was
done, 'no locus standi' will not always be a plea to non-suit an interested
body chasing the wrong-doer in court. The Government was held to be a
'person aggrieved" as it had a right of resumption front the Gaon Sabha
meant to be exercised in public interest and its right of resumption, would
be seriously jeopardised if the estate were to slip into the hands of the
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trespasser is as much as the estate belonged to the State it was vested in
Goan Sabha by the State for community benefit. In this decision while
considering the question as to who can be considered to be an 'aggrieved
person' it is held that a person who has a proprietary right which has
been or is threatened to be violated is highly aggrieved person. It is also
further held that a legal injury creates a remedial right in the injured
person and the nexus between the lis and the plaintiff need not
necessarily be personal although it has to be more than a wayfarer's
allergy to an unpalatable episode. In this decision, the wider proposition
of law as to who is a 'person aggrieved' made by the Supreme Court in
Dabholkar's case has been approved. In Dabholkar's case, it is held by the
Supreme Court that "the test is whether the words 'person aggrieved'
include a person who has a genuine grievance because an order has been
made which prejudicially affects his interests." In that case, the Supreme
Court has also further approved the following enunciation made by Lord
Denning in Att. Geri of Gambia v. Peirra Serr N'Jie (1961) AC 617: "...... The
words 'person aggrieved' are of wide import and should not be subjected
to a restrictive interpretation. They do not include of course, a mere
busybody who is interfering in things which do not concern him, but they
do include a person who has a genuine grievance because an order has
been made which prejudicially affects his interests."
DUTY CAST ON REVENUE COURTS TO DIRECT CIVIL NATURED
DISPUTES TO CIVIL COURTS
Jayalakshamma And Anr. vs The Deputy Commissioner And Ors.
2007 (6) KarLJ 100 ……….One more aspect to be borne in mind is that,
the fourth respondent, without any right, title or interest in the land in
question, is alleged to have sold an extent of 10 guntas in Sy. No. 99/2
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situate at B. Katihalli Village in favour of sixth respondent, who is none
other than her elder brother. When this fact has come to the knowledge of
the second and first respondents, both the authorities, instead of
exercising their powers under the relevant provisions of the Karnataka
Land Revenue Act, 1964 and the Karnataka Land Revenue Rules, 1966,
ought to have directed the fourth and sixth respondents to work out their
remedy before the Competent Civil Court. It is not in dispute that,
mutation has been certified and sanctioned in the name of late Sri Manje
Gowda on the basis of partition between the parties of joint family
members vide Annexure-C and that was in force for a period of three
years and ten months and another important aspect that has been
overlooked by both the authorities is that, after certifying the mutation,
late Sri Manje Gowda has filed the application before the Mandal
Panchayat Office, Bhuvanahalli, Hassan Taluk for converting the land in
question from agricultural land into non-agricultural land. The said
application has been considered and a resolution has been passed on 5th
February, 1992 vide Annexure-E permitting the conversion of land from
agricultural to non-agricultural purpose in respect of an extent of 0.01
gunta from out of 12 guntas and the said resolution has been forwarded
for approval to the Hassan Development Authority. The Town Planning
Member of the Hassan Development Authority, in turn, has given
approval, permitting the conversion of the said land into non-agricultural
purpose. When these vital material were very much available on the file of
both the authorities, both the authorities have proceeded and exercised
their power under Section 136(2) and 136(3) of the Act without looking
into these material documents. Whenever, the dispute between the
parties is of civil nature, it is always duty cast on the revenue authorities
to direct the parties to workout their remedy as envisaged under Section
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135 of the Karnataka Land Revenue Act before the Competent Civil
Courts.
NEITHER THE TAHSILDAR NOR THE REVISIONAL AUTHORITY HAVE
ANY POWER TO CHARACTERIZE THE QUALITY OF THE
TRANSACTION BASED ON WHICH ENTRIES HAVE BEEN MADE
KUNNAPPA v. STATE OF KARNATAKA AND OTHERS reported in 2012
(1) KLJ 28:-
"21. The power under Section 136(3) of the Act is only for correcting the
revenue entries based on the action taken by the Tahsildar either under
Section 127 or under Section 129 of the Act. Neither the Tahsildar nor the
Revisional Authority have any power to characterize the quality of the
transaction based on which entries have been made. As to whether the
order based on which some entry whether took place or not in the year
1972 as claimed by the writ petitioners and not a real entry but a false
entry even as submitted by Sri Krishnamurthy, learned Special
Government Advocate, as it is submitted that two sets of entries are found
in the revenue records, is a question not merely confining to the
correctness or otherwise of entry made by the Tahsildar under Section
127 or 129 of the Act, but goes much beyond the scope of these two
provisions. In fact, in the present order, the Deputy Commissioner based
on whatever information that either he got from the Tahsildar or further
verification of the information, has gone ahead further not only to annul
the earlier order passed by the Special Deputy Commissioner purporting
to be under Section 5 of the Inams Act, but also has directed resumption
of the land and for consequential directions being issued to the Tahsildar.
22. Such actions obviously go far beyond the scope of the power under
Section 136(3) of the Act. While it is neither necessary nor proper for this
Court to go into the question of correctness or otherwise of the grant
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order, whether it is forged, fabricated or petitioners have overreached the
provisions of law and if any revenue authority has been manipulated and
orders brought about, they are all matters which could have been
independently examined and corrective action taken under the
appropriate enabling provision of law. For the present purpose, it is
suffice to observe that Section 136(3) of the Act does not enable such
actions to be taken purporting to exercise revisional jurisdiction for
correction of a mere revenue entry."
REVENUE COURT CAN RECALL ITS ORDER UNDER INHERENT
POWERS
The State Of Karnataka And Others vs The Karnataka Appellate
Tribunal AIR 1996 Kant 143, ILR 1995 KAR 2483, 1995 (5) KarLJ
305 It is no doubt true that power of review should either be conferred
expressly or it should be taken to be implied. When I hold that Revenue
Court has got inherent power to do justice and nothing in the provision of
the Act as to restrict or otherwise curtail that power, iam of the opinion
that the Revenue Courts have got power to review in exercise if inherent
jurisdiction or to recall the order which appears to be amounting to abuse
of the process of the Court or an order which is likely to cause injustice or
which is likely to frustrate the very object and purpose of the Act.
WHEN WILL IS OPPOSSED – PARTIES TO PROVE THEIR TITLE IN
CIVIL COURT
C.N. Nagendra Singh vs The Special Deputy Commissioner ILR 2002
KAR 2750, 2002 (6) KarLJ 391 - Rule 43 of the Karnataka Land Revenue
Rules deals with settlement of disputes. It states every case entered in the
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register of disputed cases shall be enquired into and decided by the
Sheristedar or by any officer of the Revenue Department equal or
superior in rank to him on an appointed day of which due notice shall be
given to the parties concerned. It categorically states the proceedings of
the enquiry shall be oral and held in the public and there shall be no
recording of statements and depositions. The only record shall be the
decision of the officer holding the enquiry, in the register itself, which
shall contain a brief summary of the facts elicited during the enquiry and
the grounds for the decision. Of course an appeal is provided against such
decision to the Assistant Commissioner in charge of the Sub-Division
whose decision shall be final. Therefore, it becomes clear every Revenue
Officer who is authorised to hold an enquiry in respect of disputed cases
is a Revenue Court. The very fact that he is prohibited from recording the
statements and depositions of the parties makes it clear that no
substantial rights of the parties in respect of the disputed property can be
gone into by such Revenue Court. If title or right set up by one party to an
immovable property is disputed by the other party such title to the
property cannot be enquired into by the Revenue Courts much less any
decision be rendered for any purpose whatsoever. In the first place the
Revenue Court constituted under the Act can only go into questions of
assessment, recovery of land revenue and land revenue administration
and it has no jurisdiction to go into the question of title in respect of an
immovable property which exclusively vests in the Civil Court. ………..
Considering Rule 43, when a person claims title to a property under a Will
for the purpose of getting a mutation entry in the revenue records before
any such entry is made the Revenue Court should prima facie be satisfied
that the said document is genuine and valid even in the absence of any
dispute as the said Will comes in the way of natural succession. By virtue
of Section 128 when the owner of the land dies, the title to the said
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property passes on to the legal heir by succession or survivorship or
inheritance and the property vests with such a legal heir without there
being any document and purely based on the relationship of the deceased
with the legal heir. A Will can come into operation only after the death of
the executant. If a Will is set up to deprive, a legal heir who had acquired
title to the property either by succession, survivorship or inheritance, the
person claiming under the Will has to show better title. If the Will is
disputed strict proof of Will as required under Sections 63 and 64 of the
Succession Act is to be provided. When the Revenue Court is prevented
from recording the statements of the parties and the depositions, the
question of establishing the genuineness of the Will for any purpose
whatsoever before the Revenue Court in an enquiry would not arise.
Under these circumstances, the Revenue Courts have no jurisdiction to go
into the genuineness or validity of the Will or to the question of title in
respect of the land in dispute. The decision of the Revenue Court has to be
necessarily based on the undisputed facts. The Revenue Court cannot go
into the disputed questions of relationship, status of the parties' title to
the property or genuineness or otherwise of a document or challenge to
the documents on the ground of fraud, undue influence,
misrepresentation or mistake. As such, the petitioner cannot take
advantage of Rule 43 in the case of a Will. …………… From the foregoing
discussion it is clear that the Revenue Officer has no jurisdiction to
enquire into and decide the dispute regarding the genuineness of a Will
even for the limited purpose of making an entry in the mutation register
as it falls exclusively within the jurisdiction of the Civil Court and we
answer accordingly. (QUOTED In Smt. Shivagangavva W/O Late ... vs
The Deputy Commissioner, 2008 (3) KarLJ 49)
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EVICTION OF UNAUTHORISED OCCUPANTS FROM GUNDTHOPE AND
GOMAL LANDS
S. Siddappa And Others vs State Of Karnataka And Another ILR 1998
KAR 2757, 1998 (5) KarLJ 36 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. The
second respondent shall take steps forthwith to evict all those
unauthorised occupants from such of those lands.
REVENUE COURTS CANNOT ENQUIRE INTO DISPUTED QUESTIONS OF
TITLE
C.N. Nagendra Singh vs The Special Deputy Commissioner ILR 2002
KAR 2750, 2002 (6) KarLJ 391 (FB) Rule 43 of the Karnataka Land
Revenue Rules deals with settlement of disputes. It states every case
entered in the register of disputed cases shall be enquired into and
decided by the Sheristedar or by any officer of the Revenue Department
equal or superior in rank to him on an appointed day of which due notice
shall be given to the parties concerned. It categorically states the
proceedings of the enquiry shall be oral and held in the public and there
shall be no recording of statements and depositions. The only record shall
be the decision of the officer holding the enquiry, in the register itself,
Sridhara babu. N
which shall contain a brief summary of the facts elicited during the
enquiry and the grounds for the decision. Of course an appeal is provided
against such decision to the Assistant Commissioner in charge of the Sub-
Division whose decision shall be final. Therefore, it becomes clear every
Revenue Officer who is authorised to hold an enquiry in respect of
disputed cases is a Revenue Court. The very fact that he is prohibited from
recording the statements and depositions of the parties makes it clear
that no substantial rights of the parties in respect of the disputed
property can be gone into by such Revenue Court. If title or right set up by
one party to an immovable property is disputed by the other party such
title to the property cannot be enquired into by the Revenue Courts much
less any decision be rendered for any purpose whatsoever. In the first
place the Revenue Court constituted under the Act can only go into
questions of assessment, recovery of land revenue and land revenue
administration and it has no jurisdiction to go into the question of title in
respect of an immovable property which exclusively vests in the Civil
Court.
APPASAB BABAJI DHABADE, MAJOR AGRICULTURE vs DEPUTY
COMMISSIONER reported in 2006(6) Kar.L.J 156 has held that
Revenue Courts will have no jurisdiction to decide genuineness of the Will
or questions of title. ….. The writ petition is dismissed by confirming the
order passed by the Deputy Commissioner dated 12.12.2001 confirming
the order passed by the Assistant Commissioner dated 29.8,2001
ordering that names of all the legal representatives shall be entered in the
revenue records. However, it is open to the petitioner to work out his
remedy in accordance with law in respect of the will alleged to have been
executed by Radhabai in favour of the petitioner, If any order is passed by
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the competent court regarding the validity of the said will, the revenue
authority shall make necessary entries in the revenue records, in
accordance with law.
LONG STANDING ENTRIES IN THE REVENUE RECORDS STANDING IN
THE NAME OF PRIVATE INDIVIDUALS CANNOT BE UPSET
IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS
THE 25TH DAY OF JULY, 2012 BEFORE THE HON'BLE MR.JUSTICE
B.S.PATIL in the case of The State Of Karnataka vs The Special
Deputy ... W.P.No.28320/2011 (KLR-RR/SUR)
As rightly observed by the Deputy Commissioner, the entries in the
revenue records which are preceded by the orders passed by the Revenue
Authorities granting the land cannot be upset at such distance of time.
The report of the Tahsildar is the result of doubt entertained by him
regarding the correctness of the entries. The doubt entertained by the
Tahsildar has no basis either in the records or in the facts pertaining to
the case. Mere absence of the original order of grant and the documents
pertaining to it cannot be made basis for the Tahsildar to entertain such a
doubt. In fact, the Tahsildar is the custodian of the document. It is not
demonstrated before this Court, nor before the Deputy Commissioner as
to how the entries effected in the name of the private individuals were not
genuine or effected spuriously……… The Deputy Commissioner has taken
care to examine all aspects of the matter before coming to the conclusion
that the entries in the revenue records standing in the name of private
individuals for such a long period cannot be upset.
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WHEN DEVELOPMENT CHARGES PAID AND MUNICIPALTY GIVES
LICENCE TO CONSTRUCTION NO NEED TO CONVERSION OF LAND
2012 KHC
DIVISION BENCH OF KARNATAKA HIGH COURT consisting of THE
HON'BLE MR.JUSTICE K.L.MANJUNATH AND THE HON'BLE
MR.JUSTICE V.SURI APPA RAO in the case of M Muninarayana Swamy,
vs State Of Karnataka reported in ILR 2012 KAR 3428, held that
……………….. when the property situated within the Town Municipal
Council area when Town Municipal Council has collected development
charges from the appellants and granted plan for construction of the
compound and in the planning area if it has lost the character of
agriculture, the Dy. Commissioner will not get any right to cancel the
khata on the ground that the appellants have not obtained an order of
conversion. …………… Therefore, we are of the opinion that there is no
necessity for the appellants to obtain conversion from agriculture to non-
agriculture, if the area comes within the Town Municipal council limits
and in the background of Town Municipal Council collecting the
developmental charges and treated as Municipal property.
BOUNDARY SHALL PREVAIL
As early as in the year 1948, the Privy Council in the case of B.K.A.P. CO-
OPERATIVE SOCIETY v. GOVERNMENT OF PALESTINE AND OTHERS,
1948 PC 207 observed as follows :- "In construing a grant of land a
description by fixed boundaries is to be preferred to a conflicting
description by area. The statement as to area is to be rejected as falsi
demons-ratio."
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Nagpur High Court in the case of T. RAJLU NEEDY v. M.E.R. MALAR, AIR
1930 Nagpur 197 also took the same view that - "In the case of a
discrepancy the dimensions and boundaries and the area specified within
the boundaries will pass whether it be less or more than the quantity
specified."
ILR 1988 KAR 554 in the case of Narasimha Shastry vs Mangesha Devaru,
Court has ruled that where the sale deed mentioned the boundaries
specifically and clearly to identify the property, the actual extent of the
land not being clear, the recitals as to boundaries should prevail.
KUMAR RAMESHAR MALLA v. RAM TARAK HAZRA 1. 14 Calcutta Weekly
Notes 268 which lays down that when the boundaries of a land can be
ascertained with perfect certainty that an intention to convey all lands
comprised within those boundaries can be inferred; and if the boundaries
are uncertain the intention should be taken to be to convey the specified
quantity of land within those boundaries and in that case with reference
to the facts it was held that the intention was to pass the specified
quantity of land only and description of the property by boundaries was
discarded.
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA of HIGH COURT
OF KARNATAKA, In the case of Narayan vs Shridhar Decided on 3
April, 2014 (RSA NO.5663 OF 2010) held that “The undisputed fact is
that the total extent of Sy.No.77/2 was 4 acres 20 gunta inclusive of 5
gunta kharab land. Out of the said property, plaintiff's father-in-law sold 2
acre 23 guntas in favour of the father of the defendant as per Ex.P21. 20
guntas of land already with the defendant. Therefore, the remaining
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extent of property measuring 1 acre 17 guntas is with the plaintiff and
therefore, the plaintiff has sought the reliefs of declaration and permanent
injunction. Mere adverse entry in the revenue records will not take away
the right that a party has. Any amount of oral evidence sought to be
adduced on behalf of the defendant to vary the terms of the sale deed with
reference to the extent will not be of much importance and this has been
taken note of by the trial Court as well as the first appellate Court.”
