Case Law Digest on Land Revenue Courts

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INDEX NO

PARTICULARS

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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

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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.

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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 nonagricultural 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 nonagricultural 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.

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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.

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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 nonagricultural 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

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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 nonagricultural 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

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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 nonagricultural 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,

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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.

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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 quasijudicial 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,

mismanagement, offence, but not negligence or carelessness'.

impropriety,

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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 putforth 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

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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."

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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 subtenant 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 Subsection (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

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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

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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 examinationin-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,

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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

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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

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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.

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(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 17-022006 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 shethsanadi 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

PROCEEDINGS 2003 SC

MADE

DURING

MUTATION

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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

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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 nonagriculturists, 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.

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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.

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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,

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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."

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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.

Sridhara babu. N

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 reconveyance 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

Sridhara babu. N

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

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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

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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"

Sridhara babu. N

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

Sridhara babu. N

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 reconveyance 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

Sridhara babu. N

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

Sridhara babu. N

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.

Sridhara babu. N

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 & 91559204/2001 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."

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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

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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".

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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.

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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.

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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

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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

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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;

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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,

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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.

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71. Lands may be assigned for special purposes and when assigned, shall not be otherwise used without sanction of the Deputy CommissionerSubject 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

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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 XIIIA 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

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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

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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

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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.

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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

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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

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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

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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

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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.

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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.

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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

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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

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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.

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…………. 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

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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

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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

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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

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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

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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

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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

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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

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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

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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,

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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 NONAGRICULTURAL 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 nonagricultural 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 ultravirus 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

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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.

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………… 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 NONAGRICULTURE – 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,

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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 SubDivision 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 nonagriculture, 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. COOPERATIVE 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.”