Ni. Pra Channabasava D.S. Matadhipathigalu Kannada Mutt v. C.P. Kaveeramma and Ors.

Judgment

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1040-1053 of 2009 From the Judgement and Order dated 12.09.2007 of the Hon'ble High Court of Karnataka at Bangalore in W.A. No. 1936- 40 & 1941-45 of 2005 Rama Jois, G.V. Chandrshekar, N.K. Verma, Anjana, Chandrashekar, for the Appellant. NI. P. CHANNABASAVA D.S. MATADl11PATHIGALU KANNADA 439 MUTT V. C.P. KAVEERAMMAAND ORS. [DR. ARIJIT PASAYATJ.] respondents claimed that by virtue of the order of re-grant in favour of the appellant, the earlier mortgage was revived and Tahsildar had no jurisdiction to deliver possession to the appellant. The order of the Tahsildar for delivery of possession was quashed. There was an order of remand passed by a learned Single B Judge which was questioned by the respondents. The Writ Appeals were filed by the appellant on the ground that the scope and ambit of Section 4 of the Act has not been considered.

JI Learned Single Judge found that the Tahsildar had not properly conducted enquiry and set aside the impugned order and c remanded the matter to the Tahsildar for fresh enquiry. Learned Single Judge further directed that the respondents 1 to 5 should be re-inducted to possession of the land subject to final result of the enquiry. The present appellant aggrieved by the order of the learned Single Judge filed separate Writ Appeals. Similarly, t the respondents also filed Writ Appeal questioning the order of remand. The Division Bench with reference to Section 43 of the Transfer of Property Act, 1882 (in short the 'TP Act') held that the said provision has application. 4. Learned counsel for the appellant contended that Section 43 does not apply and respondents 1 to 5 cannot canvas the doctrine of feeding the grant by estoppel.

According to him, their stand was that Section 43 has no application to the facts of the case because the primary requisite of fraud or erroneous representation which is essential ingredient for invoking Section 43 is absent. The High Court held that Section 4(2)(b) does not expressly or impliedly provide that after re-grant the encumbrance created would not get revived. Under the said provision the land after passing of the Act shall stand vested in the State Government G free from all encumbrances and the transferees cannot enforce their contractual rights against the Government. The High Court felt that Section 4(2)(b) is silent with regard to contractual rights of the alienee after re-grant in respect of alienation validly created prior to vesting in favour of the Government. Therefore, SUPREME COUR,.T REPORTS with reference to Section 43 of the TP Act it was held that it is clearly applicable to the facts of the case.

Accordingly, as noted a.bove Writ Appeals filed by the appellant were dismissed while that filed by the respondents was allowed. 5. Section 4 of the Act and Section 43 of TP Act read as follows: "Section 4- Abolition, vesting of Imams and the c.onsequences thereof: (1) Notwithstanding anything contained in any contract, grant or other instrument or in any decree or order of Cotirt or in any other law for the time being in force, with effect from and on the appointed date, the inam tenure of all imams and minor imams to which this Act applies under Section 2 shall stand abolished·. (2) Save as otherwise expressly provided, in this Act with effect from and on the· appointed date, th·e following consequences shall ensue, namely: .. r (a)

The provisions of the Act relating to imams of alienated holdings shall be deemed to have been repealed in their application to inam or alienated holding and the provisions of Act and all other enactments applicable to unalienated villages or lands shall apply to the said imams or alienated holding; ,I._ (bLall rights, title and interests vesting in the inamdar including those in all communal lands, cultivated lands, uncultivated lands, whether assessed or not waste lands, pasture lands, forests, mines and minerals, quarries, rivers and streams, tanks and irrigation works, fisheries and ferrie~ shall cease and be vested ·absolutely in the State Government, free from all encumbrances. .... r (c) the inamdar shall cease to have any interest in the inam other than interests expressly saved by or under the provisions of this Act ; NI. P. CHANNABASAVA D.S. MATADHIPATHIGALU KANNADA 441 MUTT V. C.P. KAVEERAMMAAND ORS. [DR. ARIJIT PASAYATJ.]

(d) all land revenue including the cesses and royalties A accruing in respect of lands comprised in such inam villages or minor inams on or after the date of vesting shall be paid to the State Government and not_to the inamdar and any payment made in contravention of this clause shall not be valid ; (e) all arrears of land revenue, whether as jodi or quit rent and cesses remaining lawfully due on the date of vesting in respect of any such inam village or minor inam shall, after such date continue to be recovered froin the inamdar by whom they were payable a.nd may, without prejudice to c any other mode of recovery, be realised by the deduction of the amount of such arrears and cesses from the amount payable to such inamdar under this Act;

(f) no such inam shall be liable to attachment in execution of any decree or other process of any court and any attachment existing, D on the date of vesting or any other order for attachment passed before such date in respect of such inam village or minor inam shall cease to be in force ; (g) the State Government may, after removing any E obstruction that may be offered, forthwith take possession of the inam and all accounts, registers, pattas, muchalikas, maps, plans and other documents relating to the inam which the St~te Government may require for the administration thereof; (h) the inamdar whose rights have vested in the State Government under clause (b) shall be entitled only to such amount from the State Government as provided in this Act; (i) the relationship of a superior holder and inferior holder G shall, as between the inamdar and the holder of a minor inam, be extinguished ;

O)the tenants in the inam and persons holding under them and holders of minor inams shall, as against the State Government, be entitled only to such rights and privileges and be subject to such conditions as are provided for by or under the Karnataka Land Reforms Act, 1961 and any other rigl:its and privileges which may have accrued to them in the inam before the date of vesting against the inamdar shall. cease and determine and shall not be ~nforceable against the State Government or such inamdar. 43. Transfer by unauthorised person who subsequently acquires interest in property transferred- Where a pers.on fraudulently or erroneously represents tha~ he is authorised to transfer certain immovable pr.operty and professes to transfer such property for consideratipn, · such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.

Nothing in this section shall impair the right of transferees in good faith. for consideration without notice of the existence of the said option." 6. :A bare reading of Section 4 makes it clear that notwithstanding any contract the lnam tenure of all imams and minor imams stood abolished and the consequences were the passing of the rights, title and interests as provided in Section 4(2)(b). The High Court referred to Full Bench decision of the High Court in Syed Bhasheer Ahamed and Ors. V. State of Karnataka (ILR 1994 Kar 159). It is to be noted that the factual scenario of that case was entirely different and it has no application to the facts of the present case. The sine quo non for application of Section 43 is that at the initial stage the person should have fraudulently or erroneously represented that he is authorized to transfer certain immovable property or professes to.transfer such property for consideration.

Only if this pre-condition is satisfied, the question of option of the transferee arises in case the transferor acquires any interest in the property at any time during NI. P. CHANNABASAVA D.S. MATADHIPATHIGALU KANNADA 443 MUTT V. C.P. KAVEERAMMAAND ORS. [DR. ARIJIT PASAYAT J.] which the contract of transfer subsists. Therefore, the High Court A was not justified in concluding Section 43 is relevant. · 7. Learned counsel for the respondents on the other hand submitted that even if Section 43 has no application, Section 10 of the Act would take care of the situation. We find that B Section 10 has really no application to the facts of the case, The same reads as follows: "10. Saving of right in certain cases.- (1)

Where before the appointed date an inamdar has created any right in any land which vests in the State Government, other than c land registered under section 5 including rights in any mines or minerals, quarries, fisheries, ferries or forest, the transactions shall be deemed to be valid and all rights and obligations arising thereunder on or after the appointed I date be enforceable by or against the State Government : D Provided that the transaction was not void or illegal under any law in force at the time : Provided further that where such right was created in any land, unless it relates to lands registered under section 5, the State Government may, if in its opinion, it is in the public interest to do so, by notice given to the person concerned, terminate the right with effect from such date as may be specified in the notice, not being earlier than three months from the date thereof. (2)

The person, whose right has been terminated by the State Government under the foregoing proviso, shall be entitled to an amount from the State Government equal to the estimated net income of such person from the land for the unexpired portion of the period for which the right was created, having regard to all the circumstances of the case. (3) Any right or privilege exercised or enjoyed by any person in respect of uncultivated jamma lands immediately before the appointed date shall, notwithstanding anything in this Act and until other provision is made in this behalf, continue to be exercised or enjoyed." 8. It is submitted by learned counsel for the respondents that apart from Section 43 of TP Act and Section 4(2)(b) of the Act, the respondents had made other submissions which were 8 not considered by the High Court, in view of its conclusions about applicability of-Section 4(2)(b) and/or Section 43 of the T.P. Act ,, in the instant case.

Without expressing any opinion about the acceptability of any such stand we think it proper to set aside the impugned judgment and remand the matter to the High Court C for fresh consideration. It is made clear that the issue relating to applicability of Section 43 stands closed by virtue of this judgment. 9. The appeals are allowed. R.P. Appeals allowed.