(Prayer: This RSA is filed under Section 100 C.P.C against the Judgment and Decree dated 27.01.2007 passed in R.A. No. 153/1998 on the file of the District and Sessions Judge, Fast Track Court-I, Bangalore Rural District, Bangalore, dismissing the appeal filed against Judgment and Decree dated 30.07.1998 passed in O.S. No.45/1992 on the file of the Civil Judge (Jr.Dn.) and JMFC, Hoskote.)
1. This second appeal is by the unsuccessful plaintiff in O.S. 45/1992 on the file of the Civil Judge (Jr. Dn.j and JMFC, Hosakote, dismissing the suit filed by Mm for declaration of Ms title to the suit schedule property and also for permanent injunction.
2. The subject matter of the suit is a land measuring 2 32 guntas in Survey No.6 of Beerahalli Village in Nandagudi Hobli, Hosakote Taluk.
3. The appellant-plaintiff filed the said suit seeking declaration of his title inter alia contending that the suit schedule property was a Service Inam Land attached to the Village Office of Shanbhog; that he was the holder of the said village office, as such, he was in possession and enjoyment of the property; that after the Karnataka Village Offices Abolition Act, 1961 ( for short, the Act) came into force, he filed application before the Assistant Commissioner, Doddaballapur Sub-Division, Bangalore, seeking re-grant of the land under Section 5 of the Act and after holding enquiry, the Assistant Commissioner by order dated 05.07.1972, re-granted the land to him; that subsequent to the grant of the said land and in the interest of the public, he gifted the said land to Sri Dharmarayaswamy Temple of Shivapura; however, retained the possession of the land with himself agreeing to give proceeds derived out of the said land to the temple for better performance of pooja; that thus, he continued to remain in possession of the suit schedule property; that subsequent to the execution of the Gift Deed, when some persons concerned with the temple tried to act detrimental to the purpose stated in the gift deed, the plaintiff cancelled the gift deed under the registered document dated 21.02.1984 on the ground that Shanbhog Inamthi Land which was re-granted to him cannot be gifted; that by virtu e of the said cancellation of gift, he continued to be the owner of the property in possession of the same; that there were certain proceedings initiated by the Tahsildar which culminated in orders which ultimately ended in a writ petition filed before the High Court wherein it was observed that both the parties are governed by the out-come of the civil dispute pending between the parties. Therefore, the plaintiff sought for declaration of his title to the suit schedule property and sought for decree for permanent injunction to restrain the defendants from interfering with his peaceful possession and enjoyment of the suit schedule property.
4. The defendants entered appearance and contested the suit denying the case of the plaintiff. The defendants admitted that the suit schedule property was a Service Inam Land attached to the village office of Shanbog and that it was re-granted in favour of the plaintiff in the year 1972, who later gifted the same to Sri Dharmai ayaswamy Temple under the registered Gift Deed. They contended that on account of the gift, plaintiff lost whatever right he had over the suit schedule property and therefore, he cannot be declared as owner of the property. They also contended that under the Gift Deed, the plaintiff had not retained any right to cancel the gift, therefore, the cancellation of the gift deed had no consequence. They denied the case of the plaintiff that he continued to remain in possession of the property after the execution of the Gift Deed.
5. The original 1st defendant by name Gullappa contended that after gifting of the land in favour of the temple, the temple authorities by placing him in possession of the property agreed to sell the same with a view to purchase a fertile land elsewhere and received a sum of Rs.5,000/- from him with a promise to execute the sale deed and since then he has been in possession and enjoyment of the suit schedule property. Therefore, he sought for dismissal of the suit.
6. The trial court on the basis of the pleadings of the parties, framed several issues. One of the important issues was as to whether the plaintiff is the absolute owner in possession of the suit schedule property ?
7. The parties led oral and documentary evidence in support of their respective contentions. The trial court on appreciation of oral and documentary evidence, by the
judgment dated 13.07.1998 answered all the material issues in the negative against the plaintiff holding that, since the Gift Deed executed by the plaintiff in favour of Sri Dharmarayaswamy Temple being in violation of the conditions of re-grant, the land in question has vested in the Government and the alleged cancellation of the gift would not restore the title over the property in plaintiff and therefore, the plaintiff is not entitled for declaration. The trial court also found that the plaintiff has failed to prove his possession over the suit schedule property, as such, he is not entitled for the relief of injunction. Consequently, the trial court dismissed the suit. However, it reserved liberty to the plaintiff to file application under Section 5 (4) of the Act, for grant of land as per law applicable to disposal of unoccupied and unalienated land. Aggrieved by the said judgment and decree, the plaintiff filed appeal in R.A. No. 153/1998 before the Civil .Judge (Sr.Dn.), Bangalore Rural District, which was later made over to the Fast Track Court-1, Bangalore rural District, Bangalore.
8. The lower Appellate Court on re-appreciation of the oral as well as documentary evidence, by the judgment and order dated 27.01.2007 concurred with the findings recorded by the trial court and dismissed the appeal. Aggrieved by the concurrent judgment of the courts below, the plaintiff is in appeal before this court.
9. At the time of admitting the appeal, this Court framed the following substantial question of law for consideration: -
"Whether the trial court was justified in granting liberty to the plaintiff to file a re-grant application under Section 5(4) of the Village Offices Abolition Act?"
10. I have heard the learned counsel for the appellant as well as the learned counsel for the respondents. Perused the records secured from the courts below and the judgments under appeal.
11. Having heard the learned counsel for the appellant, I am of the considered opinion that the substantial question of law as framed would not really arise for consideration in this appeal filed by the un-successful plaintiff. It is necessary to note that the trial court while dismissing the suit after finding that the gift in favour of Sri Dharmarayaswamy Temple was in violation of the conditions of the re-grant, therefore, the land vests in the Government, gave liberty to the plaintiff to move the concerned authorities for re-giant of the land under Section 5(4) of the Act in accordance with the law applicable to the disposal of un-occupied and un-alienated lands.
12. The un amended Sub-Section (3) of Section 5 of the Act which stood prior to 07.08.1978, provided that the occupancy or the Ryotwari Patta of the land re-granted under Sub-Section (1) shall not be transferable otherwise than by partition among members of Hindu Joint Family, without the previous sanction of the Deputy Commissioner and such sanction shall be granted only on payment of an amount equal to fifteen time the amount of full assessment of the land. However, by Amendment Act
13/78, which came into force on 07.08.1978, sub-section (3) was amended and sub-section (4) was inserted. The amended provisions of sub-section (3) and newly added sub-section (4) read as under:-
"Sub-sec.(3): The occupancy of the tyotwari patta of the land, as the case may be, re-granted under sub-section (1) shall not be transferable otherwise than by partition among members of Hindu .Joint Family [for a period of fifteen years from the dote of commencement of Section 1 of the Karnataka Village Offices Abolition (Amendment) Act, 1978:]
Provided that such occupancy of the ryotwari patta in respect of land granted to the holder of a village office in an enfranchised iiiam shall be transferable with the previous sanction of the Deputy Commissioner which shall be granted on payment of an amount equal to fifteen times the amount of full assessment of the land.
Sub-sec. (4): Any transfer of land in contravention of sub-section (3) shall be null and void and the land so transferred shall, as penalty, be forfeited to and vest in the State Government free from all encumbrances andany person in possession thereof shall be summarily evicted therefrom by the Deputy Commissioner and the land shall be disposed of in accordance with the law applicable to the disposal of un-occupied un-alienated lands:
Provided that if the person who has transferred the land in contravention of sub-section (3) is not alive, -while disposing of such land preference shall be given to the heirs of such person.'
13. The moot question that arises for consideration in this appeal is, whether the courts below are justified in holding chat the gift of the land by the plaintiff] as grantee under Section 5(1) of the Act, is in violation of the terms of the grant, as such it has vested in the Government under sub-section (4) of Section 5 of the Act?
14. There is no dispute that the land in question is a Service Inam Land attached to the village office of Shanbhog and the plaintiff was the holder of the said village office. It is also not in dispute that the land was re- granted in favour of the plaintiff by the Assistant Commissioner, Doddaballapura Sub-Division, Bangalore, under Section 5(1) of the Act by order dated 05.07.1972. Even according to the plaintiff, the land was gifted by him in favour of Sri Dharmarayaswamy Temple under Gift Deed-Ex.Pl dated 28.08.1974. The plaintiff has noc disputed the validity of the gift. However, he said to have cancelled the gift deed on the premise that since the gifted land is the one re-gr;mted to him under the provisions of the Act, the gift is invalid. A division Bench of this Court in Lcikshmana Lrowda Vs. State of Karnataka [ILR (KAR.) 1980 Page 892] while considering the question as to the validity of alienation of granted land has held that, the alienation of the granted land between 01.02.1963 on which day the Principal Act came into force and 07.08.1978, the day on which the Amendment Act came into force, is not invalid, as there was no total prohibition for alienation and the alienation was permitted with the permission of the Deputy Commissioner. Again the Full Bench of this Court in Syed Basheer Ahmed .Vs. State of Karnataka [1994(1) Kar. L.J. 385] has held that the alienation of re-granted 'Service Inam Land' during the period - 01.02.1963 to 07.08.1978 is valid and permission of sale is only a formality as the Deputy Commissioner was bound to give permission on mere payment of an amount equal to 15 times of land assessment. Therefore, in the light of the authoritative pronouncement of law by this Court, the Gift Deed dated 28.08.1974 executed by the plaintiff in respect of the suit schedule property in favour of Sri Dharmarayaswamy Temple cannot be held as invalid. Therefore, the approach of the courts below that the gift of the land by the plaintiff in favour of Sri Dharmarayaswamy Temple was invalid and therefore the land had vested in the Government in terms of sub-section (4) of Section-5 of the Act, is opposed to the principles of law laid down by this Court in the aforesaid decisions. However, in my considered opinion, the conclusion reached by the courts below holding that the plaintiff is not entitled for declaration of his title cannot be found fault with for the reason that the Gift Deed was valid and that the moment the plaintiff executed the Gift Deed in favour of Sri Dharmarayaswamy Temple, the plaintiff was divested of his right over the suit schedule property. The subsequent cancellation of the gift said to have been made by him cannot have any consequence for the reason that under the Gift Deed-Ex.P1, the plaintiff being the donor had not reserved any right to cancel the gift under any specified eventuality. As noticed supra, the cancellation of the gift was made only on the ground that the gift was invalid as per the provisions of the Act. Therefore, the courts below are justified in holding that the alleged cancellation of the gift has no consequence on the validity of the gift made under Ex.P1.
15. Having regard to the fact that the plaintiff has not questioned the validity of the Gift Deed under any permissible ground, it is not open now to the plaintiff to contend for the first time before this court that the Gift Deed is not acted upon and that the gift is not coupled with delivery of possession, as, such a ground was not pleaded nor projected during the evidence before the courts below. Under these circumstances, I find no perversity or illegality in the ultimate conclusion reached by the courts below in dismissing the suit of the plaintiff. The courts below have rightly held that the plaintiff is not entitled for the declaration of his title to the suit schedule property since he had parted with his right, title and interest over the suit schedule property by executing the Gift Deed-Ex.Pl. In this view of the matter, the appeal lacks merit and accordingly, the appeal is dismissed.
16. It is made clear that, no opinion has been expressed as to the right or interest, if any, of the defendants over the property, in any way. It is open to the respondents to work-out their remedy, if any, as is open to them under law.