Smt. Asha Chakko D/O Late M. Narayan Nair Rep. by P.A. Holder Nityanand N. Nair the Third Petitioner Herein, Vs. the State of Karnataka Rperesented by Its Seceretary Department of Revenue Government of Karnatama and - Court Judgment

Excerpt:
- limitation act, 1963.[c.a. no. 36/1963]. article 57: [n. kumar, j] applicability of held, to apply article 57 of the limitation act, the suit must one for a declaration that an adoption is invalid. it is only when the prayer in the suit is for a declaration that an adoption is invalid, in such a case article 57 would apply. further, article 57 pre-supposes the plaintiff is directly or indirectly admitting the factum of adoption and a cloud is sought to be created on the right of the plaintiff to claim the property by way inheritance. the suit for partition cannot be treated as one for setting aside the adoption merely because one of the dependant set up a claim so as to attract the article of limitation act. therefore, article 57 is not attracted and the suit is not barred by time. hindu adoptions and maintenance act,1956[c.a.no.78/1956] -- section 7, explanation: [n. kumar, j] capacity of a male hindu to take in adoption consent of the wife held, consent of the wife is a condition precedent for a valid adoption. if a wife is living, the adoptive father shall not adopt a child except with the consent of his wife. explanation to section 7 makes it clear that if the person has more than one wife living at the time adoption, the consent of all the wives is necessary. hindu adoptions and maintenance act,1956[c.a.no.78/1956] -- section 10 clause (iv): [n.kumar, j] persons capable of being taken in adoption applicability of custom or usage in the matter of adoption held, a person who has completed the age of 15 years is not capable of being taken in adoption. but clause (iv) of section 10 of the act provides, if there is a custom or usage applicable to the parties which permits persons who have completed the age of 15 years being taken in adoption, then adoption of a person who has completed the age of 15 years is permissible section 16: [n. kumar, j] presumption regarding registered document relating to adoption courts below, refusing to draw the presumption conditions to be fulfilled regarding factum of adoption held, firstly, the registered document evidencing adoption should be produced before the court, secondly, it should be shown that the said document is signed by the person giving the child in adoption, and thirdly, it should be shown that it is signed by the person taking the child in adoption. on facts, held, in the in stance case, the original registered adoption deed is produced. it bears the signature of the person taking the child adoption. but admittedly, it does not bear the signature of the person giving the child in adoption. once the original adoption deed produced did not bear the signature of the person giving in adoption, then the presumption under section16 of the act is not attracted. that is precisely what the courts below have held. indian evidence act,1872[c.a.no.1/1872] section 90: [n. kumar, j] thirty years old documents presumption admissibility of ancient documents without proof rule of necessity and convenience held, it is extremely difficult and sometimes impossible to prove the hand writing or signature or execution of ancient documents after the lapse of many years . the words duly executed and attested merely mean execution and attestation according to the formalities prescribed by the law. it is therefore presumed that all persons acquainted with execution and of the documents, if any, are dead, and proof of those facts are dispensed with. further, though documents are declared admissible without proof, if produced from proper custody, the credit to be given to them depends on the discretion of the court, and the particular circumstances of each case. hence, no presumption under section 90 of the evidence act, could be raised to the effect that the adoption recorded in the deed is proved, when the recitals in the documents show that the person who is adopted is not capable of being taken in adoption, and the deed is not executed by the person giving the boy in adoption. - it is staled that the sale deed, aller registration, was transferred to the princess' estate and lodged in the palace treasury for safe custody. the supreme court held that in passing the impugned order the commissioner ought not to have gone into the question of title and on that ground the order was held to be bad. the suit was dismissed on the ground that one of the three plots was not acquired and the other two though acquired, the university had failed to prove its possession within 12 years before the filing of the suit. the suit filed by the university was dismissed on the ground of limitation, inter alia, since nawab habibuddin was found to have encroached on the property more than 12 years before the date of ore suit and the university was not in possession of the property at any time within that period having failed in the suit, the university activated the government to evict the nawab and his transferees summarily, which seems to us impermissible. the sale deed of the year 1900 is clearly in favour of the dewan of mysore. the summary procedure and power prescribed under section 67 to the state government to protect its properties can certainly be exercised in respect of all properties that are clearly government property.orderanand byrareddy, j.1. heard the counsel for the parties.2. the facts are as follows: a portion of land consisting of buildings, stables and garden collectively called 'beaulieu' measuring 24 acres and 12 gunlas, was owned by one shri. lancelot rickells and was sold by him under a registered deed of conveyance, dated 25.08.1900, for a sum of rs. 60,000/- in favour of the dewan of mysore which was said to be a purchase by him on behalf of the princess jayalakshmammanni avaru of mysore. it is staled that the sale deed, aller registration, was transferred to the princess' estate and lodged in the palace treasury for safe custody. the consideration amount was said lo be paid from the first princess' account and the amount was debited from her pension account due to her for the year 1900-1901. the consideration therefore was not paid by the government of mysore or by his highness the maharaja, personally. thus, it is urged, the property 'beaulieu' was the personal property of princess jayalakshmammanni avaru.this is stated to be further evidenced by the circumstance that the then public works department of the government of mysore, which had encroached upon the property in the year 1918, had even paid compensation to the said princess, which would demonstrate that she was indeed the owner of the property.3. it is contended that the said princess had married shri. kantharaje urs, who was the dewan of mysore, in the year 1918. they had a daughter, raja kumari leelavalhi devi who was married to shri. k. basavaraj urs. leelavalhi devi thus succeeded to the property, as is reflected in the mysore gazelle dated 02.08.1956. raja kumari leelavalhi devi was the khatedar as reflected in register no. 5 whereby the property was assigned door no. 1, of palace road. a part of this property came to be acquired by the government of mysore for construction of a hostel, attached to the shri jayachamantjendra occupational institute4, the government of karnataka by its notification dated 0708.1956, published in the gazette of mysore dated 16 08.1956, also acquired an area measuring 360 x 150 feet out of the property bearing no. 5, palace road belonging to raja kumari leelavatbi devi for the purpose of construction of 8 additional workshops for the said shri. jayachamarajendra occupational institute. the government has yet again acknowledged the ownership of raja kumari leelavalhi devi under these acquisition proceedings5. further by a notification dated 03.12 1959 and another notification dated 24 03 1960 published in the mysore gazette on 03.12.1959 and 01.07.1960, respectively the government proposed to acquire another extent of land out of 'beaulieu' for construction of offices and institutions of the government, by which lime basavaraj urs is said to have succeeded lo the estates and was shown as 'khaledar' and 'anubhavadar'. and accordingly the government had acknowledged his status as the owner of the property.6. basavaraj urs and raja kumari leelavathi devi did not have any children and hence had adopted shri. kb. ramachandararaj urs who in tum had sold a portion of number no. 1-c, palace road measuring, 75 feet on the southern side, 33 and 54 feet on the northern side, and 67 feet on the western side and 55 feet on (he eastern side, to one sml. m. meenakshi amma under a registered sale deed, dated 15.04.1971 who was thereafter shown as khatedar in the revenue records of the bangalore city corporation.7. she constructed a house in the year 1971 and thereafter had bequeathed the property under a registered will dated 03.05.1982 in favour of her daughter dr. ammu nair. smt. meenakshi amma died on 01.09.1985. after her death the katha of the properly was transferred in favour of dr. amrnu nair. she in turn had bequeathed the same in favour of her niece and nephews under a registered will, dated 07.09.1989. as she had remained a spinster, they were her only legal representatives. dr. nair died on 24.04.1993. the petitioners are her successors claiming under the said will. the title of the petitioners or their predecessors was therefore never been brought to question. the petitioners were therefore surprised to receive a show cause notice dated 22.06.2004 calling upon them to show cause as regards their illegal occupation of the property 'beaulieu' which was claimed to belong to the government and calling upon them to submit a reply within 30 days from the date of notice.8. the said notice was pursuant to a report, dated 14.05.2005, said to have been submitted by the secretary, karnataka public service commission, bangalore. the petitioners had submitted a reply to contend that they are the absolute owners, while [racing their title to their predecessors-in-title, who had possession and enjoyment of the same uninterruptedly from 1900 onwards, after it was purchased from shri. lancelot ricketls. the reply has been rejected as per order dated 07.06.2005. it is this, which is under challenge.9. while reiterating the above circumstances, shri. m.s. padmarajaiah, senior advocate, appearing for the counsel for the petitioner, contends as follows: that the impugned order is without jurisdiction, in that, the second respondent is an officer appointed under section 8 of the karnataka land revenue act 1964 (hereinafter referred to as the 'act', for brevity) and can exercise such powers and duties conferred upon him under the act. hence, he is not vested with any power to adjudicate upon the title or ownership of the properly in question belonging to the petitioners. this power is wholly within the jurisdiction of a civil court and is illegally exercised by respondent no. 2. the properly in question is not a grant made by the government and since the property is claimed by the petitioners under deeds of conveyance and registered wills, of their predecessors in-title, respondent no.-1 could not adjudicate upon or render the same null and void by recourse to powers under the provisions of the act.10. the summary nature of the proceedings under section 67 of the act could hardly be pressed into service to negate the title and ownership of the petitioners. the petitioners claim as owners from the year 1971 and the government seeking to exercise rights to forfeit the land several decades thereafter is wholly illegal. the action of the government and the order impugned, run contrary to the decision of a full bench decision of this court in c.n. nagendra singh v. special deputy commissioner bangalore district : ilr2002kar2750 . the senior counsel also places reliance on the following authorities:(i)s. govinda menon v. union of india : (1967)iillj219sc : to contend that this court in its writ jurisdiction ought to restrain inferior tribunals from exercising a jurisdiction which they do not possess at all or else to prevent them from exceeding their limits of their jurisdiction.(ii) state of gujarat v. patil raghav natha : [1970]1scr335 in a matter under the bombay land revenue code 1879 the commissioner exercising his power of recision under section 211 of the code set aside an order of permission granted by the collector for use of certain land for non-agricultural purposes. the supreme court held that in passing the impugned order the commissioner ought not to have gone into the question of title and on that ground the order was held to be bad.(iii) government of andhra pradesh v. thummala krishna rao : [1982]3scr500 the facts of this case were that certain lands were acquired by the government of nizam of hyderabad under the hyderabad land acquisition act. for the benefit of the osmania university, which was then administered by the government. the university had filed a civil suit claiming that three plots of land belonging to a third-party were also included in the acquisition notification and sought for eviction of the said third-party from those lands. the suit was dismissed on the ground that one of the three plots was not acquired and the other two though acquired, the university had failed to prove its possession within 12 years before the filing of the suit. an appeal against that judgment was dismissed by the high court. later on, on the basis of a request made by the university to the government, the tahsildar concerned, acting under section 7 of the ap land encroachment act, issued a notice to the third party to vacate the plots and then passed an order of eviction. the question that arose for decision in the appeal before the supreme court was whether the summary proceedings under the encroachment act, or a civil suit, was the appropriate legal remedy in the given circumstances. the supreme court has held as follows:8. it seems to us clear from these provisions that the summary remedy for eviction which is provided for by section 6 of the act am be resorted to by the government only against persons who are in unauthorised occupation of any land which is 'the property of government'. in regard to property described in sub-section (1) and (2) of section 2, there am be no doubt, difficulty or dispute as to the title of the government and therefore, in respect of such property, the government and be free to take recourse to the summary remedy of eviction provided for in section 6. a person who occupies a part of a public road, street, bridge, the bed of the sea and the tike, is in unauthorized occupation of property which is declared by section 2 to be the property of the government and, therefore, it is in public interest to evict him expeditiously, which can only be done by resorting to the summary remedy provided by the act. but section 6(1) which confers the power of summary eviction on the government limits that power to cases in which a person is in unauthorised occupation of a land 'for which he is liable to pay assessment under section 3'. section 3, in turn, refers to unauthorised occupation of any land 'which is the property of government'. if there is a botmjide dispute regarding the title of the government to any property, the government cannot take a unilateral decision in its own favour that the property belongs to it, and on the basis of such decision take recourse to the summary remedy provided by section 6 for evicting the person who is in possession of the properly under a bona fide claim or tide. in the instant case, there is unquestionably a genuine dispute between the state government and the respondents its to whether the three plots of land were the subject matter of 'acquisition proceedings taken by the then government of hyderabad and whether the osmania university, for whose benefit the this are alleged to hive been acquired, had last title to the properly by operation of the law of limitation. the suit filed by the university was dismissed on the ground of limitation, inter alia, since nawab habibuddin was found to have encroached on the property more than 12 years before the date of ore suit and the university was not in possession of the property at any time within that period having failed in the suit, the university activated the government to evict the nawab and his transferees summarily, which seems to us impermissible. the respondents have a bona fide claim to litigate and they cannot be evicted save by the due process of law. the summary remedy prescribed by section 6 is not the kind of legal process which is suited to an adjudication of complicated questions of title. that procedure is, therefore, not the due process of law for evicting the respondents.9. the view of the division bench that the summary remedy provided for by section 6 cannot be resorted to unless the alleged encroachment is of 'a very recent origin ', cannot be stretched too far. that was also the view taken by the learned single judge himself in another case which is reported in meharumnissa begum v. state of a.p., which was affirmed by a division bench. it is not the duration, short or long, of encroachment that is conclusive of the question whether the summary remedy prescribed by the act can he put into operation for evicting a person what is relevant for the decision of that question is more me nature of the property on which the encroachment is alleged to have been committed and the consideration whether the claim of the occupant is bona fide. facts which raise a bona fide dispute of title between tint government and the occupant must be adjudicated upon by the ordinary courts of law. the government cannot decide such questions unilaterally in us own favor and evict any person summarily on the basis of such decision but duration of occupation is relevant in the sense that a person who is in occupation of a property openly for tm appreciable length of time can be taken, prima facie, to have a bona fide claim to the property requiring an impartial adjudication according to the established procedure of law.10. the conspectus of facts in the instant case justifies the view that the question as to the title to the three plots cannot appropriately he decided in a summary enquiry contemplated fry sections 6 and 7 of the act. the long possession of the respondents and their predecessors-in-title of these plots raises a genuine dispute between them and the government on the question of title, remembering especially that the property, admittedly, belonged originally to the family of nawab habibuddm from whom the respondents claim to have purchased it. the question as to whether the title to the property came to be vested in the government as a result of acquisition and the farther question whether the nawab encroached upon the property thereafter and perfected his title by adverse possession must be decided in a properly constituted suit. may be, that the government may succeed m establishing its title to the property but, until that is done, the respondents cannot be evicted simtmarily.(iv) c.n. nagendra singh v. the special deputy commissioner : ilr2002kar2750 in answering the question whether a revenue officer is competent to hold an enquiry and decide the question of the genuineness of a will in a proceeding under section 129 of the karnataka land revenue act 1964, a full bench of this court has held that when a person claims title to a property under a will for the purpose of getting a mutation entry claiming to have acquired tide and if the will is disputed, strict proof of the will as required under section 63 and 64 of the indian succession act is to be provided. the revenue court is therefore not in a position to address the genuineness of the will. it would therefore follow that it would have no jurisdiction to address the question of the title.(v) rajinder singh v. state of jammu and kashmir 2008 air scw 5157 : wherein it is held that revenue records do not confer title on a party and such entries are relevant only for fiscal purposes and substantive rights of title and ownership of contesting claimants can be decided only by a competent civil court in appropriate proceedings.11. and therefore, the senior advocate would submit that the impugned order be quashed.12. per contra, the special government advocate, shri, t.n. raghupalhy, appearing for the respondents would submit that there is a threshold bar to the maintainability of the present writ petition. the impugned order is an original order passed under the provisions of the act. the petitioners have the remedy either to file an appeal or a revision petition under section 49 or under section 67, respectively, of the act. the petitioners being afforded an alternative remedy, the present writ petition ought to be rejected without entering upon the merits, or otherwise, of the case of the petitioners.13. it is also necessary to leave the petitioners to the remedies under the act, when disputed questions of fact are apparent from the admitted circumstances. without prejudice to this preliminary objection, the counsel would contend that the property never belonged to princess jayalakshmammanni. the sale deed of the year 1900 is clearly in favour of the dewan of mysore. it is patently fraudulent to claim that, by virtue of any interpolation on the deed of conveyance, the property belonged to princess jayalakshmammanni. if jayalakshmammanni or kanlharaje urs had no title to the properly, the petitioners claiming through them, had no title either. this fraud played on the government has corne lo light only on the report submitted by the secretary, public service commission, who had conducted a fact-finding investigation. it was thereafter, that the state government initiated proceedings under section 67(2) of the act. the competent authority has, after issuing a show cause notice, as admitted by the petitioners, and after affording an opportunity to the petitioners, lo stale their case, that the impugned order has been passed. the same is in accordance with law and with the principles of the natural justice. the petitioners having been declared to be in illegal occupation of the land, is in compliance with due process of law. the impugned order if read, with section 39 of the act, would enable the respondents to evict the petitioners from he properly. the order is informed with reason and therefore cannot be questioned as being a non-speaking order.14. the counsel would draw attention lo the express provision under section 67 and would submit that the action of the respondents is strictly in accordance with law. in that, the claim of a private party against the state government could be determined under sub-section (2) of section 67. and since the very sub-section (3) affords an aggrieved party lo have recourse lo a suit against the order that may be passed under sub-section (2), there is no prejudice or injury caused to the petitioners which would warrant interference by this court.15. he would submit that a division bench judgment of this court in w.a. nos. 12/2008 and 33/2008 rendered on 11.11.2008 would apply on all fours to the present case. in that case, the facts were, land totally measuring about 310 acres was granted for temporary cultivation to persons from the bhovi community, by an order of the government in the year 1942, under a 'grow more food scheme'. the said persons to whom the land was temporarily allotted, executed registered sale deeds in favour of the appellants in respect of land measuring 180 acres. entries in the record of rights was made in favour of the appellants, their names were also reflected in the index of lands and mutation entries were effected in their favour.16. a public interest petition was filed alleging that the appellants had unauthorisedly occupied the government land. the petition was disposed of by an order, dated 12.06.2001, with an observation that the concerned deputy commissioner would look into the complaint and take such action as may be necessary. since no action was taken, further writ petitions in w.p. 37040/2002 and 38670/2002 were filed by way of public interest litigation. those petitions were also disposed of, with a similar direction. after an enquiry, the deputy commissioner, passed an order deleting the name of the petitioners and assumed the land by entering the name of the government as on 29.06.2004. this order was challenged in a writ petition in w.p. no. 17780/2004. the order of the deputy commissioner was set aside on the ground that the petitioners had not been heard. on remand, by an order dated 15.07.2005, the entries in favour of the petitioners were cancelled yet again and proceedings under section 67 of the act for resumption was directed. this was challenged by yet another writ petition in w.p. no. 22819/2005. the petition was dismissed, holding that the action of the deputy commissioner could not be faulted. it was this, which was challenged in the above appeal.17. the division bench affirmed the order of the learned single judge upholding the cancellation of the name of the petitioners in the revenue records, while substituting the name of the government, did not suffer from any illegality and any incidental observations made as regards the title of the applicants would not prejudicially affect their proprietary right, and has held that the order of the deputy commissioner could not be faulted only on the ground that there were observations as regards the title to the property.18. the counsel also places reliance on a decision of this court in k. doddahanumaiah v. deputy commissioner, bangalore district to contend that the respondents having acted within the scope of the power under the provisions of the act, interference by this court, at the instance of the petitioners, is not warranted.19. the counsel for the respondents produces a certified copy of the deed of conveyance, dated 04.09.1900, to demonstrate that the name of princess jayalakshmammanni is totally absent and the photocopy sought to be relied upon by the petitioners, with an interpolation to evidence that it has been purchased on her behalf is therefore a bogus and fraudulent claim, which does not confer any title on princess jayalakshmammanni.20. by way of reply, shri. padmarajaiah has produced in court what is slated to be the original deed of conveyance of 04.09.1900 which does bear a handwritten note, in one corner of the face of the document, purportedly signed by the dewan of the mysore and the note reads as follows:bought for the estate of die first princess jayalakshmammanni avaru.-01 04 1901-(sd/-)dewan of mysore21. in the light of the above rival contentions, the preliminary objection as to the maintainability of the petition, in the light of alternative remedies being available to the petitioners, is disposed of first. while it is true that when a petitioner has not exhausted an alternative remedy available in law, a writ petition ought not to be entertained by this court, is a settled position. the exceptions to this rule would include a circumstance where power is exercised de hors, the statutory power. in this regard, it would therefore be necessary lo address whether the impugned order, said lo have been passed in exercise of power under section 67 of the act, was within the jurisdiction of respondent no. 2.22. as seen from annexure 'c' which is the impugned order, one of the issues framed for consideration is as follows: 'whether the properly in question is government properly?' such a question being framed in initiating proceedings under section 67 of the act is itself inexplicable. proceedings under section 67 can be initiated only in respect of property belonging to the government. to readily understand the tenor and purport of section 67 of the act, the same is extracted hereunder67. public roads, etc. and all lands which are not the property of others bekmii to the government:(i) all public roods, streets, lanes and paths, bridges, ditches, dikes and fences, on or bedside 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 alt canals and water courses and alt standing and flowing waters and all umds where ever sihutted which are the property of individual or of aggregate of persons legally capable of holding property, and except insofar as any rights 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 m force, are and are hereby declared to be with alt rights in or over the same or appertaining thereto, the property of the state government. explanation: in this section, nigh water mark' means the highest point reached by ordinary spring tides at any season of the years.(2) where any property or any right in or over any property is claimed by or on behalf of the stale government or by any person as against the state government it shall he lawful for the deputy commission, or a survey officer no 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 ad final decision in the civil suit shall be binding cm the parties.23. from a reading of this section, it is clear that the very heading would indicate that all lands which are not the property of others belong to the government. and it is in respect of such lands, which are not the properly of individuals, and over which a right is claimed by the state government or any person, that an enquiry is contemplated under sub-section 2. in the light of the finding on the said issue, which proceeds on the premise that a report submitted by die secretary of the karnataka public service commission, who in his opinion has held that the deed of donveyance executed in 25.08.1900 by shri. lancelot ricketts was in favour of the government of mysore and it was fraudulently claimed as being on behalf of princess jayalakshmamrnanni and that all subsequent transactions were therefore a nullity, is a finding that could not have been arrived at in an enquiry under section 67. to proceed on the presumption that the properly belongs to the government of mysore and not to any individuals, is on a presumption of a serious allegation of fraud played on the government by the erstwhile royal family which ought to have been established in a manner known to law in the first instance. and when the basic premise on which the entire action of the respondents is sought to be founded is not a presumption that can be readily accepted. the proceedings under section 67 are voided. the action of respondent no. 2, is therefore, without jurisdiction. the contention of the government advocate that sub-section (2) provides for the determination of any claim by any person against the state government, cannot be in respect of property which is claimed by that person under title deeds. the summary procedure and power prescribed under section 67 to the state government to protect its properties can certainly be exercised in respect of all properties that are clearly government property.24. having regard to the admitted circumstances in the present case, where the properties originally sold in the year 1900 by shri. lancelot ricked s has been divided and subdivided and sold to several parties over the years by various individual and a portion of which has been acquired by the petitioners, under registered documents, apart from compulsory acquisition proceedings in respect of other portions of the property whereby the government itself has consistently acknowledged the ownership of individuals, they cannot be ousted by recourse to section 67. this would he so even on the principle, that fraud would vitiate all.25. reliance sought to be placed on the judgment of the division bench of this court in respect of land granted by the government for temporary cultivation and subsequent alienation by the grantees in lavour of the appellants, in that case, had only resulted in enquiries having been conducted and entries made in the revenue records in favour of the appellants having been rounded off and the name of the government having been substituted. the dispute as regards title, was not adjudicated and any observations as regards title were held to be inconsequential. the said judgment would not be relevant to the facts of the present case.26. further, section 67(2) does not provide for an order of eviction being passed. in the light of section 67(3) providing for lime, lo a claimant in respect of any government property, of one year, the impugned order directing that the respondents be evicted and that they hand over the property in their possession to the government within 21 days of service of the order is also without jurisdiction.27. the judgment of the supreme court in the case of government of andhra pradesh v. thumbala krishna rao (supra) would apply on all fours to the present case on hand.28. incidentally, it is stated that several respondents in the order at annexure - c have filed revision petitions before the kamataka appellate tribunal, which are pending consideration. thai is wholly immaterial in deciding this petition. the respondents shall pay costs of rs. 10,000/-(rupees ten thousand only) to the petitioners.

Judgment:
ORDER

Anand Byrareddy, J.

1. Heard the counsel for the parties.

2. The facts are as follows: A portion of land consisting of buildings, stables and garden collectively called 'Beaulieu' measuring 24 acres and 12 gunlas, was owned by one Shri. Lancelot Rickells and was sold by him under a registered Deed of Conveyance, dated 25.08.1900, for a sum of Rs. 60,000/- in favour of the Dewan of Mysore which was said to be a purchase by him on behalf of the Princess Jayalakshmammanni Avaru of Mysore. It is staled that the sale deed, aller registration, was transferred to the princess' estate and lodged in the Palace Treasury for safe custody. The consideration amount was said lo be paid from the first princess' account and the amount was debited from her pension account due to her for the year 1900-1901. The consideration therefore was not paid by the Government of Mysore or by his Highness the Maharaja, personally. Thus, it is urged, the property 'Beaulieu' was the personal property of Princess Jayalakshmammanni Avaru.

This is stated to be further evidenced by the circumstance that the then Public Works Department of the Government of Mysore, which had encroached upon the property in the year 1918, had even paid compensation to the said princess, which would demonstrate that she was indeed the owner of the property.

3. It is contended that The said princess had married Shri. Kantharaje Urs, who was the Dewan of Mysore, in the year 1918. They had a daughter, Raja Kumari Leelavalhi Devi who was married to Shri. K. Basavaraj Urs. Leelavalhi Devi thus succeeded to the property, as is reflected in the Mysore Gazelle dated 02.08.1956. Raja Kumari Leelavalhi Devi was the khatedar as reflected in Register No. 5 whereby the property was assigned Door No. 1, of Palace Road. A part of this property came to be acquired by the Government of Mysore for construction of a hostel, attached to the Shri Jayachamantjendra Occupational Institute

4, The Government of Karnataka by its notification dated 0708.1956, published in the Gazette of Mysore dated 16 08.1956, also acquired an area measuring 360 x 150 feet out of the property bearing No. 5, Palace Road belonging to Raja Kumari Leelavatbi Devi for the purpose of construction of 8 additional workshops for the said Shri. Jayachamarajendra Occupational Institute. The Government has yet again acknowledged the ownership of Raja Kumari Leelavalhi Devi under these acquisition proceedings

5. Further by a notification dated 03.12 1959 and another notification dated 24 03 1960 published in the Mysore Gazette on 03.12.1959 and 01.07.1960, respectively The Government proposed to acquire another extent of land out of 'Beaulieu' for construction of offices and institutions of the Government, by which lime Basavaraj Urs is said to have succeeded lo the estates and was shown as 'khaledar' and 'anubhavadar'. And accordingly the Government had acknowledged his status as the owner of the property.

6. Basavaraj Urs and Raja Kumari Leelavathi Devi did not have any children and hence had adopted Shri. KB. Ramachandararaj Urs who in tum had sold a portion of number No. 1-C, Palace Road measuring, 75 feet on the southern side, 33 and 54 feet on the northern side, and 67 feet on the western side and 55 feet on (he eastern side, to one Sml. M. Meenakshi Amma under a registered sale deed, dated 15.04.1971 who was thereafter shown as Khatedar in the revenue records of the Bangalore City Corporation.

7. She constructed a house in the year 1971 and thereafter had bequeathed the property under a registered Will dated 03.05.1982 in favour of her daughter Dr. Ammu Nair. Smt. Meenakshi Amma died on 01.09.1985. After her death the katha of the properly was transferred in favour of Dr. Amrnu Nair. She in turn had bequeathed the same in favour of her niece and nephews under a registered Will, dated 07.09.1989. As she had remained a spinster, they were her only legal representatives. Dr. Nair died on 24.04.1993. The petitioners are her successors claiming under the said Will. The title of the petitioners or their predecessors was therefore never been brought to question. The petitioners were therefore surprised to receive a show cause notice dated 22.06.2004 calling upon them to show cause as regards their illegal occupation of the property 'Beaulieu' which was claimed to belong to the Government and calling upon them to submit a reply within 30 days from the date of notice.

8. The said notice was pursuant to a report, dated 14.05.2005, said to have been submitted by the Secretary, Karnataka Public Service Commission, Bangalore. The petitioners had submitted a reply to contend that they are the absolute owners, while [racing their title to their predecessors-in-title, who had possession and enjoyment of the same uninterruptedly from 1900 onwards, after it was purchased from Shri. Lancelot Ricketls. The reply has been rejected as per order dated 07.06.2005. It is this, which is under challenge.

9. While reiterating the above circumstances, Shri. M.S. Padmarajaiah, Senior Advocate, appearing for the counsel for the petitioner, contends as follows: That the impugned order is without jurisdiction, in that, the Second Respondent is an officer appointed under Section 8 of the Karnataka Land Revenue Act 1964 (Hereinafter referred to as the 'Act', for brevity) and can exercise such powers and duties conferred upon him under the Act. Hence, he is not vested with any power to adjudicate upon the title or ownership of the properly in question belonging to the petitioners. This power is wholly within the jurisdiction of a Civil Court and is illegally exercised by respondent No. 2. The properly in question is not a grant made by the Government and since the property is claimed by the petitioners under Deeds of Conveyance and registered Wills, of their predecessors in-title, Respondent No.-1 could not adjudicate upon or render the same null and void by recourse to powers under the provisions of the Act.

10. The summary nature of the proceedings under Section 67 of the Act could hardly be pressed into service to negate the title and ownership of the petitioners. The petitioners claim as owners from the year 1971 and the Government seeking to exercise rights to forfeit the land several decades thereafter is wholly illegal. The action of the Government and the order impugned, run contrary to the decision of a Full Bench decision of this Court in C.N. Nagendra Singh v. Special Deputy Commissioner Bangalore District : ILR2002KAR2750 . The Senior Counsel also places reliance on the following authorities:

(i)S. Govinda Menon v. Union of India : (1967)IILLJ219SC : To contend that this Court in its writ jurisdiction ought to restrain inferior tribunals from exercising a jurisdiction which they do not possess at all or else to prevent them from exceeding their limits of their jurisdiction.

(ii) State of Gujarat v. Patil Raghav Natha : [1970]1SCR335 In a matter under the Bombay Land Revenue Code 1879 the Commissioner exercising his power of recision under Section 211 of the Code set aside an order of permission granted by the Collector for use of certain land for non-agricultural purposes. The Supreme Court held that in passing the impugned order the Commissioner ought not to have gone into the question of title and on that ground the order was held to be bad.

(iii) Government of Andhra Pradesh v. Thummala Krishna Rao : [1982]3SCR500 The facts of this case were that certain lands were acquired by the Government of Nizam of Hyderabad under the Hyderabad Land Acquisition Act. For the benefit of the Osmania University, which was then administered by the Government. The University had filed a civil suit claiming that three plots of land belonging to a third-party were also included in the acquisition notification and sought for eviction of the said third-party from those lands. The suit was dismissed on the ground that one of the three plots was not acquired and the other two though acquired, the university had failed to prove its possession within 12 years before the filing of the suit. An appeal against that judgment was dismissed by the High Court. Later on, on the basis of a request made by the University to the Government, the Tahsildar concerned, acting under Section 7 of the AP Land Encroachment Act, issued a notice to the third party to vacate the plots and then passed an order of eviction. The question that arose for decision in the appeal before the Supreme Court was whether the summary proceedings under the Encroachment Act, or a Civil Suit, was the appropriate legal remedy in the given circumstances. The Supreme Court has held as follows:

8. It seems to us clear from these provisions that the summary remedy for eviction which is provided for by Section 6 of the Act am be resorted to by the Government only against persons who are in unauthorised occupation of any land which is 'the property of Government'. In regard to property described in Sub-section (1) and (2) of Section 2, there am be no doubt, difficulty or dispute as to the title of the Government and therefore, in respect of such property, the Government and be free to take recourse to the summary remedy of eviction provided for in Section 6. A person who occupies a part of a public road, street, bridge, the bed of the sea and the tike, is in unauthorized occupation of property which is declared by Section 2 to be the property of the Government and, therefore, it is in public interest to evict him expeditiously, which can only be done by resorting to the summary remedy provided by the Act. But Section 6(1) which confers the power of summary eviction on the Government limits that power to cases in which a person is in unauthorised occupation of a land 'for which he is liable to pay assessment under Section 3'. Section 3, in turn, refers to unauthorised occupation of any land 'which is the property of Government'. If there is a botmjide dispute regarding the title of the Government to any property, the Government cannot take a unilateral decision in its own favour that the property belongs to it, and on the basis of such decision take recourse to the summary remedy provided by Section 6 for evicting the person who is in possession of the properly under a bona fide claim or tide. In the instant case, there is unquestionably a genuine dispute between the State Government and the respondents its to whether the three plots of land were the subject matter of 'acquisition proceedings taken by the then Government of Hyderabad and whether the Osmania University, for whose benefit the this are alleged to hive been acquired, had last title to the properly by operation of the law of limitation. The suit filed by the University was dismissed on the ground of limitation, inter alia, since Nawab Habibuddin was found to have encroached on the property more than 12 years before the date of Ore suit and the University was not in possession of the property at any time within that period Having failed in the suit, the University activated the Government to evict the Nawab and his transferees summarily, which seems to us impermissible. The respondents have a bona fide claim to litigate and they cannot be evicted save by the due process of law. The summary remedy prescribed by Section 6 is not the kind of legal process which is suited to an adjudication of complicated questions of title. That procedure is, therefore, not the due process of law for evicting the respondents.

9. The view of the Division Bench that the summary remedy provided for by Section 6 cannot be resorted to unless the alleged encroachment is of 'a very recent origin ', cannot be stretched too far. That was also the view taken by the learned Single Judge himself in another case which is reported in Meharumnissa Begum v. State of A.P., which was affirmed by a Division Bench. It is not the duration, short or long, of encroachment that is conclusive of the question whether the summary remedy prescribed by the Act can he put into operation for evicting a person What is relevant for the decision of that question is more me nature of the property on which the encroachment is alleged to have been committed and the consideration whether the claim of the occupant is bona fide. Facts which raise a bona fide dispute of title between tint Government and the occupant must be adjudicated upon by the ordinary courts of law. The Government cannot decide such questions unilaterally in Us own favor and evict any person summarily on the basis of such decision But duration of occupation is relevant in the sense that a person who is in occupation of a property openly for tm appreciable length of time can be taken, prima facie, to have a bona fide claim to the property requiring an impartial adjudication according to the established procedure of law.

10. The conspectus of facts in the instant case Justifies the view that the question as to the title to the three plots cannot appropriately he decided in a summary enquiry contemplated fry Sections 6 and 7 of the Act. The long possession of the respondents and their predecessors-in-title of these plots raises a genuine dispute between them and the Government on the question of title, remembering especially that the property, admittedly, belonged originally to the family of Nawab Habibuddm from whom the respondents claim to have purchased it. The question as to whether the title to the property came to be vested in the Government as a result of acquisition and the farther question whether the Nawab encroached upon the property thereafter and perfected his title by adverse possession must be decided in a properly constituted suit. May be, that the Government may succeed m establishing its title to the property but, until that is done, the respondents cannot be evicted simtmarily.

(iv) C.N. Nagendra Singh v. The Special Deputy Commissioner : ILR2002KAR2750 In answering the question whether a Revenue Officer is competent to hold an enquiry and decide the question of the genuineness of a Will in a proceeding under Section 129 of the Karnataka Land Revenue Act 1964, a full bench of this Court has held that when a person claims title to a property under a Will for the purpose of getting a mutation entry claiming to have acquired tide and if the Will is disputed, strict proof of the Will as required under Section 63 and 64 of the Indian Succession Act is to be provided. The Revenue Court is therefore not in a position to address the genuineness of the Will. It would therefore follow that it would have no jurisdiction to address the question of the title.

(v) Rajinder Singh v. State of Jammu and Kashmir 2008 AIR SCW 5157 : Wherein it is held that Revenue Records do not confer title on a party and such entries are relevant only for fiscal purposes and substantive rights of title and ownership of contesting claimants can be decided only by a competent civil court in appropriate proceedings.

11. And therefore, the Senior Advocate would submit that the impugned order be quashed.

12. Per contra, the Special Government Advocate, Shri, T.N. Raghupalhy, appearing for the respondents would submit that there is a threshold bar to the maintainability of the present writ petition. The impugned order is an original order passed under the provisions of the Act. The petitioners have the remedy either to file an appeal or a revision petition under Section 49 or under Section 67, respectively, of the Act. The petitioners being afforded an alternative remedy, the present writ petition ought to be rejected without entering upon the merits, or otherwise, of the case of the petitioners.

13. It is also necessary to leave the petitioners to the remedies under the Act, when disputed questions of fact are apparent from the admitted circumstances. Without prejudice to this preliminary objection, the Counsel would contend that the property never belonged to Princess Jayalakshmammanni. The sale deed of the year 1900 is clearly in favour of the Dewan of Mysore. It is patently fraudulent to claim that, by virtue of any interpolation on the deed of conveyance, the property belonged to Princess Jayalakshmammanni. If Jayalakshmammanni or Kanlharaje Urs had no title to the properly, the petitioners claiming through them, had no title either. This fraud played on the Government has corne lo light only on the report submitted by the Secretary, Public Service Commission, who had conducted a fact-finding investigation. It was thereafter, that the State Government initiated proceedings under Section 67(2) of the Act. The Competent Authority has, after issuing a show cause notice, as admitted by the petitioners, and after affording an opportunity to the petitioners, lo stale their case, that the impugned order has been passed. The same is in accordance with law and with the principles of the natural justice. The petitioners having been declared to be in illegal occupation of the land, is in compliance with due process of law. The impugned order if read, with Section 39 of the Act, would enable the respondents to evict the petitioners from he properly. The order is informed with reason and therefore cannot be questioned as being a non-speaking order.

14. The Counsel would draw attention lo the express provision under Section 67 and would submit that the action of the respondents is strictly in accordance with law. In that, the claim of a private party against the State Government could be determined under Sub-section (2) of Section 67. And since the very Sub-section (3) affords an aggrieved party lo have recourse lo a suit against the order that may be passed under Sub-section (2), there is no prejudice or injury caused to the petitioners which would warrant interference by this court.

15. He would submit that a Division Bench judgment of this Court in W.A. Nos. 12/2008 and 33/2008 rendered on 11.11.2008 would apply on all fours to the present case. In that case, the facts were, land totally measuring about 310 acres was granted for temporary cultivation to persons from the Bhovi Community, by an order of the Government in the year 1942, under a 'Grow More Food Scheme'. The said persons to whom the land was temporarily allotted, executed registered sale deeds in favour of the appellants in respect of land measuring 180 acres. Entries in the record of rights was made in favour of the appellants, their names were also reflected in the index of lands and mutation entries were effected in their favour.

16. A public interest petition was filed alleging that the appellants had unauthorisedly occupied the Government land. The petition was disposed of by an order, dated 12.06.2001, with an observation that the concerned Deputy Commissioner would look into the complaint and take such action as may be necessary. Since no action was taken, further writ petitions in W.P. 37040/2002 and 38670/2002 were filed by way of public interest litigation. Those petitions were also disposed of, with a similar direction. After an enquiry, the Deputy Commissioner, passed an order deleting the name of the petitioners and assumed the land by entering the name of the Government as on 29.06.2004. This order was challenged in a writ petition in W.P. No. 17780/2004. The order of the Deputy Commissioner was set aside on the ground that the petitioners had not been heard. On remand, by an order dated 15.07.2005, the entries in favour of the petitioners were cancelled yet again and proceedings under Section 67 of the Act for resumption was directed. This was challenged by yet another writ petition in W.P. No. 22819/2005. The petition was dismissed, holding that the action of the Deputy Commissioner could not be faulted. It was this, which was challenged in the above appeal.

17. The Division Bench affirmed the order of the learned Single Judge upholding the cancellation of the name of the petitioners in the revenue records, while substituting the name of the Government, did not suffer from any illegality and any incidental observations made as regards the title of the applicants would not prejudicially affect their proprietary right, and has held that the order of the Deputy Commissioner could not be faulted only on the ground that there were observations as regards the title to the property.

18. The Counsel also places reliance on a decision of this Court in K. Doddahanumaiah v. Deputy Commissioner, Bangalore District to contend that the respondents having acted within the scope of the power under the provisions of the Act, interference by this Court, at the instance of the petitioners, is not warranted.

19. The Counsel for the respondents produces a certified copy of the Deed of Conveyance, dated 04.09.1900, to demonstrate that the name of Princess Jayalakshmammanni is totally absent and the photocopy sought to be relied upon by the petitioners, with an interpolation to evidence that it has been purchased on her behalf is therefore a bogus and fraudulent claim, which does not confer any title on Princess Jayalakshmammanni.

20. By way of reply, Shri. Padmarajaiah has produced in court what is slated to be the original deed of conveyance of 04.09.1900 which does bear a handwritten note, in one corner of the face of the document, purportedly signed by the Dewan of the Mysore and the note reads as follows:

Bought for the estate of die first Princess Jayalakshmammanni Avaru.

-01 04 1901-

(Sd/-)

Dewan of Mysore

21. In the light of the above rival contentions, the preliminary objection as to the maintainability of the petition, in the light of alternative remedies being available to the petitioners, is disposed of first. While it is true that when a petitioner has not exhausted an alternative remedy available in law, a writ petition ought not to be entertained by this Court, is a settled position. The exceptions to this rule would include a circumstance where power is exercised de hors, the statutory power. In this regard, it would therefore be necessary lo address whether the impugned order, said lo have been passed in exercise of power under Section 67 of the Act, was within the jurisdiction of respondent No. 2.

22. As seen from Annexure 'C' which is the impugned order, one of the issues framed for consideration is as follows: 'Whether the properly in question is Government properly?' Such a question being framed in initiating proceedings under Section 67 of the Act is itself inexplicable. Proceedings under Section 67 can be initiated only in respect of property belonging to the Government. To readily understand the tenor and purport of Section 67 of the Act, the same is extracted hereunder

67. Public roads, etc. and all lands which are not the property of others bekmii to the Government:

(I) All public roods, streets, lanes and paths, bridges, ditches, dikes and fences, on or bedside 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 alt canals and water courses and alt standing and flowing waters and all Umds where ever sihutted which are the property of individual or of aggregate of persons legally capable of holding property, and except insofar as any rights 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 m force, are and are hereby declared to be with alt rights in or over the same or appertaining thereto, the property of the State Government. Explanation: In this Section, nigh water mark' means the highest point reached by ordinary spring tides at any season of the years.

(2) Where any property or any right in or over any property is claimed by or on behalf of the Stale Government or by any person as against the State Government it shall he lawful for the Deputy Commission, or a Survey Officer no 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 ad final decision in the civil suit shall be binding cm the parties.

23. From a reading of this Section, it is clear that the very heading would indicate that all lands which are not the property of others belong to the Government. And it is in respect of such lands, which are not the properly of individuals, and over which a right is claimed by the State Government or any person, that an enquiry is contemplated under Sub-section 2. In the light of the finding on the said issue, which proceeds on the premise that a report submitted by die Secretary of the Karnataka Public Service Commission, who in his opinion has held that the Deed of Donveyance executed in 25.08.1900 by Shri. Lancelot Ricketts was in favour of the Government of Mysore and it was fraudulently claimed as being on behalf of Princess Jayalakshmamrnanni and that all subsequent transactions were therefore a nullity, is a finding that could not have been arrived at in an enquiry under Section 67. To proceed on the presumption that the properly belongs to the Government of Mysore and not to any individuals, is on a presumption of a serious allegation of fraud played on the Government by the erstwhile Royal family which ought to have been established in a manner known to law in the first instance. And when the basic premise on which the entire action of the respondents is sought to be founded is not a presumption that can be readily accepted. The proceedings under Section 67 are voided. The action of Respondent No. 2, is therefore, without jurisdiction. The contention of the Government Advocate that Sub-section (2) provides for the determination of any claim by any person against the State Government, cannot be in respect of property which is claimed by that person under title deeds. The summary procedure and power prescribed under Section 67 to the State Government to protect its properties can certainly be exercised in respect of all properties that are clearly government property.

24. Having regard to the admitted circumstances in the present case, where the properties originally sold in the year 1900 by Shri. Lancelot Ricked s has been divided and subdivided and sold to several parties over the years by various individual and a portion of which has been acquired by the petitioners, under registered documents, apart from compulsory acquisition proceedings in respect of other portions of the property whereby the government itself has consistently acknowledged the ownership of individuals, they cannot be ousted by recourse to Section 67. This would he so even on the principle, that fraud would vitiate all.

25. Reliance sought to be placed on the judgment of the Division Bench of this Court in respect of land granted by the Government for temporary cultivation and subsequent alienation by the grantees in lavour of the appellants, in that case, had only resulted in enquiries having been conducted and entries made in the revenue records in favour of the appellants having been rounded off and the name of the Government having been substituted. The dispute as regards title, was not adjudicated and any observations as regards title were held to be inconsequential. The said judgment would not be relevant to the facts of the present case.

26. Further, Section 67(2) does not provide for an order of eviction being passed. In the light of Section 67(3) providing for lime, lo a claimant in respect of any Government property, of one year, the impugned order directing that the respondents be evicted and that they hand over the property in their possession to the Government within 21 days of service of the order is also without jurisdiction.

27. The judgment of the Supreme Court in the case of Government of Andhra Pradesh v. Thumbala Krishna Rao (Supra) would apply on all fours to the present case on hand.

28. Incidentally, it is stated that several respondents in the order at Annexure - C have filed revision petitions before the Kamataka Appellate Tribunal, which are pending consideration. Thai is wholly immaterial in deciding this petition. The respondents shall pay costs of Rs. 10,000/-(Rupees Ten Thousand Only) to the petitioners.