D.N .. VENKATARAYAPP AND ANR.versusSTATE OF KARNATAKA AND ORS.

                    D.N..VENKATARAYAPPA AND ANR.                                 A
                                         v.
                     STATE OF KARNATAKA AND ORS.

                                  JULY 9, 1997.

                 [K. RAMASWAMY AND D.P. WADHWA, JJ.]                             B

          Karhataka Sch.edule Castes and ~cheduled, Tribes (Prohibition of
    Transfer of Certain Lands) .,4,ct, 1978:

         . Scheduled Caste-Allotment of la11d to b;: Govemme111-Rest1ictio11 011 C
    tra11sfer-Violatio11 of-Effect~Land purchased by P,etitioners from 01igi11al
    4/lottee-Prohibitio11 of lund transfer under the Act upto a particular
    period-Ejectme11t proceedi1tgli under file Act against petitioners-Co11cwrent
    finding by authorities that alienation in favour of petitioners was in Violation
    of the Acf-Plea of adverse possession by petitioners-Plea not raised before
     Courts below except stating that after purchase of the lands they remained in D
    possession and enjoyment of the lands-Petitioners were required to plead
    and prove that they disclaimed the title under which they came illto posses-
    sion, set up adverse possession with necessary animus of asse1ti11g open and
    hostile title to the knowledge of the tme owner and the later allowed them
    without any let or hindrance, to nmain in possession and enjoyment of the E
    property adverse to the interest of the true owner until the expiry of the
    p~esc1ibed period-As the petitioners have not done so their plea of adverse
    possession was not proved-Held no interference was called for with im-
    pugned decision.

          Secretary of State v. Debendra Lal Khan, AIR (1934) PC 23; State of F
    West Bengal v. Dalhousie Institute Society, AIR (1970) SC 1778; Danappa
    Ravappa Kalli v. Gwupadappa Kallappa Pattana Shetti, ILR 1990 Kar-
    nataka 610; K. T. Hutchegowda v. Deputy Commissioner, ILR (1994) Kar.
    1839 (SC) and R. Chandeveerappa and Ors. v. State of Kamataka and Ors.,
    (1995) 7 JT 93 SC, cited.                                                    G


-   1997.
            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4616 of


         From the Judgment and Order dated 21.2.97 of the Karnataka High
    Court in W.A. No. 7354 of 1996.                                              H
                                    187
    188                    SUj:'REME COURT REPORTS (1997) SUPP. 2 S.C.R.

A       .Naresh Kaushik, V. Bhadeppa, (Shanker Diwate) for Ms. Lalitha
    Kaushik for the Appellants.

          E.'C. Vidya Sagar, (NP) for the Respondents.

B         The following Order of the Court was delivered :

          Leave granted.

         This appeal by special leave arises from the judgment of the Division
    Bench of the Karnataka High Court, made on February 21, 1997 in Writ
C   Appeal No. 7354/96.

         The petitioners, admittedly, had purchased the property in the years
  1962-63 and 1963-64 from the ·original allottees. The Government have
  allotted thos~ lands as per Saguvali Chit containing prohibition of aliena-
D tion of ·the land. Subsequently, the Karnataka Scheduled Castes and
  Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 was
  enacted totally prohibiting the alienation up to a particular period. The
  proceedings were initiated against the petitioners for ejectment under the
  said Act. All the authorities have concurrently held "that the alienation in
  favour of the petitioners was in violation of 'the above Rules and the said
E Act and hence the sales are voidable. When the case had come up before
  this Court, this Court while upholding the constitutionality of the Act
  directed the authorities to go into the question of adverse possession raised
  by the petitioners. The learned Single Judge has extracted the pleadings
  on adverse possession of the petitioners. Th!!rein, the High Court had
F pointed out that there is no express plea of adverse possession except
  stating that after the purchase of the lands made by them, they remained
  in possession and enjoyment of the lands. What requires to be pleaded and
  proved is that the purchaser disclaimed his title under which he came into
  possession, set up adverse possession with necessary animus of asserting
  open and hostile title to the Knowledge of the true owner and the later
G allowed the former, without any let or hindrance, to remain in possession
  and enjoyment of the property adverse to the interest of the true owner
   until the expiry of the prescribed period; The classical requirement of
  adverse possession is that it should be nee vi, clam, aut precmio. After
  considering the entire case law in that behalf, the learned Single Judge has
H held thus:
           D.N. VENKATARAYAPPA v. STATE                              189

   "The contention raised by the petitioners that they have perfected       A
  their title in respect of the lands in question by adverse possession,
  has to fail on two counts. Firstly, the crucial facts, which constitute
  adverse possession have not been pleaded. The pleadings extracted
· above, in my view, will not constitute the crucial facts necessary to
 claim title by adverse possession. It is not stated by the petitioners     B
 in their pleadings that the petitioners at any point of time claimed
 or asserted their title hostile or adverse to the title of the original
 grantees/their vendors. In my view, mere uninterrupted and con-
 tinuous possession without the animus to continue in possession
 hostile to the rights of the real owner will not constitute adverse
 possession in law.                                                         C

In case of Lakshmi Reddy (supra) relied upon by Sri Narayana
Rao at Paragraph 7 of the judgment, the Supreme Court, following
the decision of the Privy Council·in Secretary of State for India v.
Debandra Lal Khan, AIR (1934) PC 23, has observed that the                  D
ordinary classical requirement of adverse possession is that it
should be /lee vi nee clam nee preeario and the possession required
must be adequate in continuity, in publicity and in extent to show
that it is possession adverse to the competitor.

In the case of State of West Bengal v. Dalhousie Institute Society, E
AIR (1970) SC 1778, the Supreme Court, on the basis of the
materials on record, which were referred to by the High Court,
 took the yiew that in the said case, the resp<?ndent had established
his title to the site' in question by adverse possession. Further, the
said decision proceeds on the basis that the grant made by the F
Government was invalid in law. That is not the position in the
present case. The alienation in question was only voidable. The
petitioners came into possession of the lands in question by virtue
of the sale deeds which are only voidable in law. Therefore, they
have come into possession by virtue of the derivative title as G
observed by the Supreme Court in the case of Chandevarappa
(supra). Further, in the case of Kshitish Chandra (supra), the
observation made by the Supreme Court at paragraph 8 of the
judgment relied upon by Sri Narayana Rao in support of his
contention that the only requirement of law to claim title by
adverse possession is that the possession must be open and without H
    190                SUPREME COURT REPORTS [1997) SUPP. 2S.C.R.

A         any attempt at concealment and it is not necessary that the pos-
          session must be so effective so as to bring it to the specific
          Knowledge of the owner is concerned, I am of the view that the
          said observation must be understood with rderence to the obser-
          vation made in Paragraph-7 of the judgment. At paragraph-7 of
          the Judgment, the Supreme Court has observed thus :
B
          "7... For instance, one of the most important facts which clearly
          proved adverse possession was that the plaintiff had let out the
          land for cultivatory purposes and used it himself from time to time
          without any protest from the defendant. During the period of 45
c         years, no serious attempt was made by the municipality to evict
          the plaintiff knowing full well that he was asserting hostile title
          against the municipality in respect of the land."

          Further, this Court, in the case of Danappa Revappa Kalli v.
          Guntpadappa Ka/Zappa Pattana Shetti, ILR {1990) Karnataka 610,
D         while referring to the decision of the Supreme Coilrt in Kshitish
          Chandra's case (supra), relied upon by Sri Narayana Rao in
          support of the plea of adverse possession, has observed that apart
          from the actual and continuous possession which are among other
          ingredients of adverse possession, there should be necessary
E         animus on the part of the person who intends to perfect his title
          by adverse possession. The observations made in the said decision
          reads thus :

          "5. ... Apart from actual and continuous possession which are
          among other ingredients of adverse possession, there should be
F         necessary animus on the part of the person who intends to perfect
          his title by adverse possession. A person who under the bona fide
          belief thinks that the property belongs to him and as such he has
          been in possession, such possession cannot at all be adverse pos-
          session because it lack necessary animus for perfecting title by
          adverse possession."
G
          Therefore, it is clear that one of the important ingredients to claim
          adverse possession is that the person who claims adverse posses-
          sion must have set up title hostile to the title of the true owner.
          Therefore, I am of the view that none of the decisions relied upon
H         by Sri Narayana Rao in support of the plea of adverse possession
             D.N. VENKATARAYAPPA v. STATE                             191

    set up by the petitioners, is of any assistance to the petitioners.     A

    Further, admittedly, there is not even a whisper in the evidence of
    the first petitioner with regard to the claim of adverse possession
    set up by the petitioners. It is not stated by the petitioners that
    they have been in continuous and uninterrupted possession of the
    lands in question. What is stated by the petitioners, in substance, B
    is that they came into possession of the lands in question by virtue
    of the sale deeds executed by the original grantees. The Supreme
    Court, in paragraph 11 of the decision in Chandevarappa's case
    (supra), has observed thus :
                                                                            c
    "11. The question then is whether the appellant has perfected his
    title by adverse po~session. It is seen that this contention was raised
    before the Assistant Commissioner that the appellant having
    remained in possession from 1968, he perfected his title by adverse
    possession. But, the crucial facts to constitute adverse possession D
    have not been pleaded. Admittedly, the appellant came into pos-
    session by a derivative title from the original grantee. It is seen
    that the original grantee has no right to alienate the land. There-
    fore, having come into possession under colour of title from
    original grantee, if the appellant intends to plead adverse posses-
    sion as against the State, he must disclaim his title and plead his E
    hostile and that the State had not taken any action thereon within
    the prescribed period. Thereby, the appellant's possession would
    become adverse. No such stand was taken nor evidence has been
    adduced in this behalf. The counsel in fairness, despite his re-
    search, is unable to bring to our notice any such plea having been F
    taken by the appellant."
'
    Therefore, in the absense of crucial pleadings, which constitute
    adverse possession and evidence to show that the petitioners have
    been in continuous and uninterrupted possession of the lands in
    question claiminng right, title and interest in the lands in question G
    hostile to the right, title and interest of the original grantees, the
    petitioners cannot claim that they have perfected their title by
    adverse possession and, therefore, the Act does not apply as laid
    down by the Supreme Court in Manchegowda's case (supra). The
    law laid down by the Supreme Court in Chandevarappa's case H
    192                SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.

A         (supra) fully applies to the facts of the present case. In the said
          case, while considering the claim of adverse possession ·the pur-
          chaser of a granted land from the original grantee, the Supreme
          Court has observed that the person, who comes into possession             (
          under colour of title from the original grantee if he illtends to claim
B         adverse possession as against State, must disclaim his title and
          plead his hostile claim to the knowledge of the State and the State
          had not taken any action thereon within the prescribed period. It
          is also relevant to point out that sub-section (3) of Section 5.of the
          Act provides that where a granted land is in possession of a person,
          other than the original grantee or his legal heir, it shall be
c         presumed, until the contrary is proved, that such person has
          acquired the land by a transfer, which is null and void under the
          provisions of sub-section (1) of Section 4. Since I have negatived
          the contention of Sri Narayana Rao that the original grantees are
          not Scheduled Castes, it follows that the lands in question are
D         granted lands within the meaning of clause (b) of sub-section (1)
          of Section 3 of the Act therefore, the burden is on the petitioners,
          wP.o had admittedly come into possession of the lands in question,
          to establish that they have acquired title to the lands in question
          by a transfer, which is not null and void under the provisions of
E         sub-section (21) of section 4 of the Act. In the instant case, the
          petitioners have failed to discharge the said burden. On this ground
           also, the petition should fail. Secondly, the grants made in favour
           of the original grantees are admittedly free grants. The Rule
           governing the grant prohibited alienation of the lands in question
F          permanently. The lands in question were granted to Scheduled
           Caste person taking into account their social backgrounds, poverty,
           illiteracy and their inherent weakness for being exploited by the
           affluent section of the society. Under these circumstances, the
           conditions were imposed that the grantees should not alienate the
G          lands granted to them, Sections 66A and 66B of the Land Revenue
           Code authorise the State to resume the land for violation of the
           terms of the grant. Therefore, if the terms of the grants, which are
           hedged with conditions, and the class of persons to whom,the lands
           are granted, are taken into account and considered, it is not
H          possible to accept the contention of the learned Counsel for the
                   D.N. VENKATARAYAPPA v. STATE                            193

         petitioners· that the title in the lands had passed absolutely to the A
         grantees. I am of the view that the title to the lands continued to
         reinain in the State a~d what has been transferred to the grantees
         is the right to continue to be in possession of the lands granted to
         them and enjoy the same in perpetuity subject to the condition that
         they do not violate the conditions of the grant. This view of mine B
         is supported by the Division Bench decision of this Court in the
         case of Rudrappa v. Special Deputy Commissioner {Writ Appeal
         No. 1210/1987 decided on 17.6.1996), wherein in Paragraph-3 of
         the judgment, the Divisionl
                                        Bench of this Court, while considering
         similar grants, has taken the view that the grantee was not given C
         absolute title in respect of the land granted. The relevant portion
         of the judgment at Paragraph-8, reads as follows :

        "8. ...It is clear from the terms of the grant that the appellant's
        predecessor in title, the grantee could not alienate the land for
        certain period and if the land was alienated, it was open to the D
        Government to cancel the grant and resume the land in question.
        If the grant was hedged in with seve.ral conditions of this nature,
        the same cannot be said. to be absolute moreover, it must be
        noticed that the. grant was made at an upset price. In the cir-
        cumstances, proceeding initiated by the respondents cannot be E
        stated to be barred by limitation or is it possible to sustain the plea
        of adverse possession raised on behalf of the appellant."

       In that view, it was held that the title of the land in question has not
been absolutely granted to the petitioners. Their title by adverse possession
against State was for a period over 30 years prior to the date of coming          F
into force of the Act. The petitioners failed to prove their claim for adverse
possession. This finding was upheld by the Division Bench in paragraph 3
of its judgment thus :

        "It is no doubt true that when the grant of land is made, depending
        on the term thereof, the land may vest in the grantee with full right, G
        but if the terms of the grant itself spells out certain conditions
        which. restrict the rights that are available in respect of the land
        which had been grant_s:d, the fine-tuned argumt'nts addressed by
        the learned counsel for the appellants would pale into in sig-
        nificance for admittedly the title is clogged with the resumption of H
    194                  SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A           land in the event of violation of the terms of grant and would
            necessarily mean that the grantee cannot give a better title than
            what he had to be purchase and that title has the burden of
            non-alienation either for a particular period or for all period to
            come. If any sale is effected contrary to those provisions, the same
            would enable the authorities to resume the lands in question. Thus,
B           the terms of grant itself cannot be understood to be absolute right.
            Such title necessarily cuts down the capacity or the power to
            alienate the lands. Therefore, it is unnecessary to refer to the
            various decisions relied upon by the learned counsel for the ap-
            pellants in this regard for this aspect did not arise for consideration
c           much less considered in the aforesaid decisions. The context in
          · which those provisions were interpreted were only cases of simple
            grants unhindered by the enactment like the one with which we
            are concerned presently. In such cases what rights would flow or
            arise are entirely different. The Act clearly sets out that any
            transfer or grant of land made either before or the commencement
D
            of the Act in contravention of the terms of grant of such land,
            would be null and void and no right, title or interest in such land
            shall be conveyed nor deemed to have ever been conveyed by such
            transfer. When the provisions of the Act clearly spell out to destroy
            such transactions to argue that the parties concerned had clear
E           title fully in respect of the same would not stand to reason.

           5. The learned counsel, submitted that in view of the decision in
           ILR (1994) Kar. [1839] SC KT. Hutchegowda v. Deputy Commis-
           sioner for the purpose of determining whether the period of limita-
F          tion is 12 years or 30 years, each case has to be examined on its
           merits and if the grant had been made in absolute terms, the land
           would vest in the transferee and he would have perfected his title
           by principles of adverse possession. But, subsequently, the
           Supreme Court in a later decision in R. Chandeveerappa and others
           v. State of Kamataka and others, (1995) 7 JT 93 SC - have
G          explained that in claiming adverse possession certain pleas have to
           be made such as when there is a derivative title as in the present
           case, if the appellants intend to plead adverse possession as against
           the State, they must disclaim their title and plead this hostile claim
           to the knowledge of the State and thort the State had not taken any
H          action within the prescribed period. It is only in those circumstan-
         D.N. VENKATARAYAPPA v. STATE                          195

ces the appellants' possession would become adverse. There is no A
material to that effect in the present case. Therefore, we are of
the view that there is no substance in any of the contentions
advanced on behalf of the appellants."

Here, in the present case, when alienation is altogether prohibited, B
question of obtaining permission for alienation is not at all con-
templated. When under the law alienation cannot be effected at
all during the relevant period, it was impossible for the alienor to
alienate the same. Thus the alienee will not derive any title. If at
all be holds the lands, he holds the same adverse to the alienor
and not with reference to the State. That was the position con- C
sidered by the Supreme Court in Chandeveerappa's case as well
as in Civil Appeal No. 11933/1996 - Papaiah v. State of Kamataka
and Others. The Supreme Court in Papaiah's case noticed the
scope of the enactment and found that the same has been enacted
in terms of the preamble of the Constitution to provide economic D
justice to the Scheduled Castes/Scheduled Tribes and other weaker
sections of the society and to prevent their exploitation in terms
of Articles 46 of the Constitution. It is also noticed that under
Article 39 (b) of the Constitution, the State is enjoined to distribute
its largesee - in the present case the land - to sub-serve the public
good. The assignment of land having been made in furtherance of E
this objective, any alienation in its contravention would not only
be inviolation of a Constitutional Policy but also opposed to public
policy under Section 23 of the Contract Act. Therefore, ·the
Supreme Court pointed out that any alienation made in violation
of the terms of grant is void and the alieness do not get any valid F
title or interest thereunder. In Papaiah's case the contention was
that the alienee had obtained the land by way of sale in 1958 long
prior to the Act coming into force and thereby he had perfected
his title by adverse possession. The Supreme Court noticing the
decision in Chandeveerappa's case to which we have already ad- G
verted, has held that such a contention cannot be countenanced at
all. A distinction was also sought to be made in the light of the
ratio laid down in K. T. Huchegowda's case in which neither this
q'uestion was raised nor considered and this Court was directed to
examine the question of adverse possession as against the seller,
but not as against the State. If the purchaser remained to be in H
    196                   SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A            possession in his own right de horse the title, necessarily he has to
             plead and prove the date from which he disclaimed the title and
             asserted possessory title as against the State and perfected his
             possession to the Knowledge of the real owner viz., the State. Such
             a plea not having been taken or argued nor any evidence adduced
             in that regard, the plea of adverse possession against the State
B            cannot be accepted at all at this stage. The question of adverse
             possession, therefore, does not arise and examining whether he has
             been in possession for 30 years or 12 years will not be of any
             relevant in this case. In that view of the matter, we find no force
             in the said contention."
c          The plea of adverse possession is not proved. In view of the concur-
    rent finding after elaborate consideration of the law laid down by this Court
    on the factual aspects, in our opinion, no substantive question of law arises
    warranting interference with the impugned decision.

D         ·The Civil Appeal is accordingly dismissed.
    T.N.A.                                                    Appeal dismissed.