Holding

The limitation period for determining prescription of title in granted lands transferred before the Act is twelve years where the grant conveyed absolute ownership and thirty years where the grant was an allotment leaving title with the State.

Summary

The father of the third respondent was granted four acres of land by the Karnataka Government in 1957 with a condition that it could not be alienated for fifteen years. He illegally transferred two acres to Ismail Saheb in 1965, who later sold the land to the appellant in 1979, before the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 came into force. The Assistant Commissioner declared the transfer void and ordered restoration of the land to the respondent, a decision upheld by the Deputy Commissioner and the High Court, which required the appellant to prove adverse possession for thirty years rather than twelve. The Supreme Court examined whether the period of limitation for prescription should be twelve years (for absolute grants) or thirty years (for allotments where title remained with the State) and held that the nature of the original grant determines the applicable period. Consequently, the Court set aside the High Court’s order and remanded the matter for a fresh determination, allowing the appeal.

Issues considered

The appropriate period of limitation (12 years vs 30 years) to establish prescription of title in granted lands transferred before the Act, depending on whether the original grant conveyed absolute ownership or was merely an allotment.
Whether the appellant can acquire title by adverse possession despite the transfer violating the prohibition under Sections 4 and 5 of the Karnataka SC/ST (Prohibition of Transfer of Certain Lands) Act, 1978.
Interpretation of Sections 4 and 5 of the Act concerning the voidability of transfers made in contravention of grant conditions and their applicability to pre‑Act transfers.

Legislation cited

Subjects

Scheduled CastesScheduled TribesLand transferProhibition of transferAdverse possessionPrescriptionLimitation periodRestoration of landVoidable title

Judgment

K.T. HUCHEGOWDA A
v.
DEPUTY COMMISSIONER AND ORS.

MARCH 18, 1994

[AM. AHMADI, N.P. SINGH AND YOGESHWAR DAYAL, JJ.] B

Karnataka Scheduled Caste and Scheduled Tribes (Prohibition of
Transfer of Cenain Lands) Act, 1978-Sections 4 & 5---Grant of Land-Trans-
fer in contravention of terms of grant-Application for restoration-Title by
prescription-:Period of limitation-To be determined considering facts of C
case-Matter remanded back to High Coun.

Father of the third respondent was granted some land by the State
Government, with the condition that he shall not alienate the said land for
a period of 15 years from the date of the grant. However, the land was
transferred before the expiry of the period of 15 years. The Assistant D
Commissioner declared the alienation of the land as nnll and void and
directed restroation of land to the respnndent being the heir of the original
grantee. The Deputy Commissioner dismissed the appeal filed on behalf
of the appellant The appellant claimed to be in peacefnl possession of the
said land. However, the Writ Application filed on behalf of .the appellant, E
was dismissed by the High Court holding that in order to defeat the claim
of the third respondent, the appellant had to prove adverse possession
over the land not only for a period of 12 years but for a period of 30 years,
i.e. the period prescribed in respect of the lands belonging to State Govern·
ment. This appeal has been filed for setting aside the order of the High
Court, rejecting the claim of the appellant, that being in possession over F
the lands dispute for more than 12 years, he had perfected his title by
prescription.

Dispossing of the ap11eal, this Court
-<''
HELD : 1.1. In cases where granted lands had been transfered before G
the commencement of the Act in violation of the condition, regarding
prohibition on such transfer and the transferee who had initially acquired
only a voidable title in the granted lands by prescription by long and
"·-.
continuous enjoyment thereof in accordance with law before the commen-
cement of the Act, has to be read, for purpose of determining the period H
151
)

152 SUPREME COURT REPORTS [1994) 3 S.C.R.

A of limitation in respect of lands granted with absolute ownership, to mean
12 years and grant by way of allotment without transfer of the ownership
in favour of the grantee, to mean 30 years. [p. 158-E-G]

Sunkara Rajyalakshmi v. State of Kamataka, (1985) 1 Scale 445 and
Manchegowda v. State qf Kamataka, AIR (1984) SC 1151, relied on.
B
1.2. For the purpose of determining whether the period of 12 years
or 30 years limitation is to be applied, each case has to be examined on its
own merit. In the instant case, High Court has to examine the claim made
by the appellant on the materials produced in support of the said claim.
C The object and scheme of the Act is to protect the interest of the members
of the Scheduled Castes and Scheduled Tribes and the transfer in favour
of the appellant being in contravention of the terms of the grant, heavy
onus rests on the appellant, to show to the court that by his continuous
and adverse possession, the right, title and interest of the grantee has been
extinguished before the commencement of the Act. [p. 158-H; 159-A-F)
D
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2099 of
1994.

From the Judgment and Order dated 7.11.90 of the Karnataka. High ).
Court in W.A. No. 2167 of 1990.
E
Gobinda Mukkoty, S.S. Javali, Naresh Kaushik, Ms. Lalita Kaushik
and B. Veerbhadrappa for the Appellant.

M. Veerappa, Kh. Notin Singh, Anip Sachthey, Chave Badri Nath
Babu, R.N. Keshwani, K.V. Mohan, S.Wasim A. Qadri, L.R. Singh, Dr.
F R.B. Masodkar, K.L. Taneja and S.N. Bhat for the Respondents.

The Judgment of the Court was delivered by '
N.P. SINGH, J. Leave !,'!anted.
G This appeal has been filed on behalf of the appellant, for setting aside
an order passed by the High Court of Karnataka, rejecting the claim of the
appellant, that, being in possession over the lands in dispute for more than
12 years, he had perfected his title by prescription, as such there was no
scope for restoring the lands to the concerned respondent, in accordance
H with the provisions of the Karnataka Scheduled Castes and Scheduled
HU CHE GOWDA v. DY. COMMR. [N.P. SINGH, J.] 153

Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter A
referred to as the 11Act 11 ) .

According to the appellant, the father of the respondent No. 3
(hereinafter referred to as the "Respondent") was granted 4 acres of land
in village Karakachi on 29.3.1957 by the State of Karnataka, with the
condition that he shall not alienate the said land for a period of 15 years B
from the date of the grant. However, the father of the said respondent
transferred 2 acres 20 guntas out of the 4 acres in favour of one Ismail
Saheb by a registered sale deed dated 24.4.1965 i.e. before the expiry of
the period of 15 years. The said Ismail Saheb in his turn transferred the
said land in favour of the appellant by a registered sale deed dated c
2D.7.1979. The appellant claims to be in peaceful possession of the said
land. He also claims to have invested huge sum in the development and
cultivation and construction of a residential house over the land in ques-
tion.

D
The Act aforesaid came into force from 1.1. 1979, the primary object
of which is to declare the transfer of any granted land, made either before
or after the commencement of the said Act,. in contravention of the terms
of the grant null and void. It vests power in Assistant Commissioner, if he
is satisfied, that the transfer of any granted land was null and void, to take
possession of such land after evicting all persons in possession thereof, in E
such manner as may be prescribed and to restore such land to tbe original
grantee or to his legal heir. As in the instant case, admittedly, the father
of the respondent had alienated the land, granted to him, in contravention
of the terms of the grant, inasmuch as before the expiry of the period of
15 years, on an application, being filed on behalf of the respondent, the F
Assistant Commissioner, declared by an order dated 13.5.1988, the aliena-
tion of the land aforesaid as null and void and directed restoration of land
to the respondent being the heir of the original grantee.

The Deputy Commissioner dismissed the appeal, filed on behalf of
the appellant. The Writ Application, filed on behalf of the appellant, was G
dismissed by the High Court. The High Court was of the view that in order
to defeat the claim of the respondent, the appellant had to prove adverse
possession over the land in que.stion not only for a period of 12 years but
for a period of 30 years i.e. the period prescribed,in respect of the lands
belonging to the State Government. This was based on an order passed by H
I

154 SUPREME COURT REPORTS [1994] 3 S.C.R.

A this Court in the case of Sunkara Rajayalakshmi v. State of Kamataka,
(1985) 1 Scale 445.

It may be mentioned that earlier several writ applications had been
filed before the High Court of Karnataka, questioning the constitutional
validity of sections 4 and 5 of the Act aforesaid, which were dismissed by
B the High Court. This Court in the case of S1i Manchegowda v. State of
Kamataka, AIR (1984) SC 1151 = [1984] 3 SCC 301, examined the different
provisions of the Act, as to whether they were violative of Article 19(1)(1)
and Article 31 (which were then in force) or Articles 14 and 31A. It was
held that the provisions were constitutionally valid and there was no
C infirmity because the object of the Act was speedy restoration of granted
lands to the members of the weaker communities i.e. members of the
Scheduled Castes and Scheduled Tribes. Having rejected the challenge to
the validity of the provisions of the Act, it was said :-

D "Though we have come to the conclusion that the Act is valid,
yet, in our opiniort, we have to make certain aspects clear. Granted
lands which had been transferred after the expiry of the period of
prohibition do not come within the purview of the Act, and cannot
be proceeded against under the provisions of this Act. The
provisions of the Act make this position clear, as Sections 4 and 5
E become applicable only when granted lands are transferred in
breach of the condition relating to prohibition on transfer of such
granted lands. Granted lands transferred before the commence-
ment of the Act and not in contravention of prohibition on transfer
are clearly beyond the scope and purview of the present Act. Also
F in case where granted lands had been transferred before the
commencement of the Act in ;iolation of the condition regarding
prohibition on such transfer and the transferee who had initially >
acquired only a voidable title in such granted lands had perfected
his title in the granted lands by prescription by long and continuous·
enjoyment thereof in accordance with law before the commence-
G ment of the Act, such granted lands would also not come within
the purview of the present Act, as the title of such transferees to
the granted lands has been perfected before the commencement
of the Act. Since at the date of the commencement of the Act the
title of such transferees had ceased to be voidable by reason of
H acquisition of prescription rights on account of long and continued
\
HU CHE GOWDA 1·. DY. COMMR. [N.P. SINGH, J.] 155
'
user for the requisite period, the title of such transferees could not A
be rendered void by virtue of the provisons of the Act \Vithout
violating the constitutional guarantee. We must, therefore, read
down the provisions of the Act by holding that the Act will apply
to transfers of granted lands made in breach of the. condition
imposing prohibition on transfer of granted lands only in those
cases where the title acquired by the transferee was still voidable
B
at the date of the commencement of the Act and had not lost its
defeasible character al the date when the Act came into force.
Transferees of granted lands having a perfected and not a voidable
title at the commencement of the Act must be held to be outside
the pale of the provisions of the Act. Section 4 of the Act must be C
so construed as not to have the effect of rendercing void the title
of any transferee which was not voidable at the date of the
commencement of the Act. 11

Although, it was said by this Court, that the provisions of the Act shall not D
be applicable where the transferee, who had initially acquired only a
voidable title in such granted lands, had perfected his title in the granted
lands by "a prescription by long and continuous enjoyment thereof\ it was
not clarified in that judgment as to whether this period of continuous
enjoyment by the transferee shall be for a period of 12 years or for a period
of 30 years, in order to defeat the application for restoration by the grantee E
of such lands. It appears that later a review application was filed, which
was disposed of by an order referred to above in the case of Sunkara
Rajayalakshmi v. State of Kamataka, (supra). While clarifying the question
regarding the period of prescription, it was said by this Court :-
F
11
Wc may also make it clear that so far as the second exception
laid down by us in our Judgment dated 17.4.84 is concerned,
namely that the.Karnataka Scheduled Castes and Scheduled Tribes
(Prohibition of Transfer of Certain Lands) Act, 1978 will not apply
where the transferees have perfected their title in the granted land G
by prescription of long and continuous enjoyment before the com-
mencement of the Act, the period of limitation which has to be
taken into account for the purpose of determining whether the title
has been perfected by prescription is that which runs against the
State Go;t. and therefore it would be 30 years and not 12 years." H
156 SUPREME COURT REPORTS I1994] 3 S.C.R
A As the appellant an<l other si1nilarly situated persons \Vere not parties to
the aforesaid case \Vhich had come to this Court or to the revie\v applica-
lion, they have questioned the direction of this Court, that for lhe purpose
of determining whether lhe Litle has been perfected by prescription, the
period would be 30 years and not 12 years. According to the appellant,
once lhe State Government granted lhe land lo any person, being a
B member of Scheduled Caste or Scheduled Tribe, the tillc to such land
passed to such person and there is no question of applying the period of
30 years, for determining whether the transferee has perfected his Litle by
prescription against such person. It will be only 12 years, as is applicable
to any other class of citizens.
c
Section 3(b) of the Ael defines "granted land" to mean "any land
granted by the Government to a person belonging to any of lhe Scheduled
Castes or the Scheduled Tribes and includes land allotted or granted to
such person under the relevant la\v for the time being in force relating to
D agrarian reforms or land ceiling or abolition of lnarns, other than that
relating to hereditary offices or rights and the word 'granted' shall be
construed accordingly." Relevant part of Section 4 is as follows :-

"4. Prohibition of transfer of granted lands. (l) Notwithstanding
anything in any law, agreement, contract or instrument, any trans~
E fer of granted land made either before or after the commencement
of this Act, in contravention of the terms of the grant of such land
or the law providing for such grant, or sub-section (2) shall be null
and void and no right, title or interest in such land shall be
conveyed or be deemed ever to have conveyed by such transfer.

F (2) No person shall, after the commencement of this Act, transfer
or acquire by transfer any granted land without the previous
permission of the Government."

Sub-section (1) of Section 5 of the Act with which, we are concerned says:-

G "5. Resumption and restitution of granted lands - (1) Where, on
application by any interested person or on information given in
writing by any person or suo motu, and after such enquiry as he
deems necessary, the Assistant Commissioner is satisfied that the
transfer of any granted land is null and void under sub-section (1) :- .
H of section 4, he may.-
\
H\JCHE GOWDA 1', DY COMMR, [N,P SINGH,J.j 157

(a) by order take possession of such land after evicting all persons A
in possession thereof in such manner as may be prescribed :

Provided that no such order shall be made except after giving
the person affected a reasonable opportunity of being heard;

B
(b) restore such land to the original grantee or his legal heir. Where
it is not reasonably practicable to restore the land to such grantee
or legal heir, such land shall be deemed to have vested in the
Govenment free from all encumbrances. The Government may
grant such land to a person belonging to any of the Scheduled
Castes or Scheduled Tribes in accordance with the rules relating c
11
to grant of land.

On a plain reading, granted land will mean, any land granted by the
Government to a person, who is a member of the Scheduled Castes or
Scheduled Tribes which includes land allotted to such persons. Grant may D
be of different types; it may be by absolute transfer of the interest of the
State Government to the person concerned; it may be only transfer of the
possession of the land, by \.\'ay of allotment, without conveying the title over
such land of the State Government. If by grant, the transferee has acquired
absolute title to the land in question from the State Government, then
subject to protection provided by the different provisions of the Act, he E
will be subject to the same period of limitation as is prescribed for other
citizens by the provisions of the Limitation Act, in respect of extinguish-
ment of title over land by adverse possession. On the other hand, if the
land has been allotted by way of grant and the title remains with the State
Government, then to extinguish the title that has remained of the State F
Government by adverse possession, by a transferee on basis of an alienation
made in his f~vour by an allottee, the period of limitation shall be 30 years.
Incidentally, it may be mentioned that some of the States in order to
protect the members of the Scheduled Tribes from being dispossessed from
the lands which belong to them and of which they are absolute owners, for
purpose of extinguishment of their title by adverse possession, have G
prescribed special period of limitation, saying that it shall be 30 years. In
Bihar, vide regulation No.1 of 1969, in Article 65 of the Limitation Act, it
has been prescribed that it would be 30 years in respect of immovable
property belonging to a member of the Scheduled Tribes as specified in
Part Ill to the Schedule to the Constitution (Scheduled Tribes) Order, H
158 SUPREME COURT REPORTS [1994] 3 S.CR.

A 1950.

There is no dispute that so far as the Act with which we are
concerned, no special period of limitation has been prescribed, in respect
of lands which have been granted to the members of the Scheduled Castes
and Scheduled Tribes with absolute ownership by the State Government.
B In this background, when this Court in the case of Sunkara Rajayalakshmi
v. State of Kamataka, (supra) said that the period of limitation, which has
to be taken into account for the purpose of determining, whether the title
has been perfected by prescription, shall be that which runs against the
State Government and therefore it would be 30 years and not 12 yeras, has
c to be read in context with the lands, the ownership whereof, has not been
transferred absolutely, to the members of the Scheduled Castes and
Scheduled Tribes; the lands having been only allotted to them, the title
remaining with the State Goverment. The cases where the transfer by the
State Government by way of grant has been absolute, then unless there is
D an amendment so far the period of limitation is concerned, it is not possible
to apply the special limitation of 30 years, so far such grantees are con-
cerned, when the question fo be determined, is as to whether a transferee
in contravention of the terms of the grant, has perfected his title by
remaining in continuous and adverse possession. The transferee, who has
acquired the land from the grantee, in contravention of the terms of the
E grant shall perfect his title by adverse possession by completing the period
of 12 years. When this Court said in its main judgment, in the case of Sri
Manchegowda v. State of Kamataka, (supra), that in cases where granted
lands had been transferred before the commencement of the Act in viola-
tion of the condition, regarding prohibition on such transfer and the
transferee who had initially acquired only a voidable title, in such granted
F
lands had perfected his title in the granted lands by prescription by long
and continuous enjoyment thereof in accordance with law before the
commencement of the Act, has to be read, for purpose of determining the
period of limitation in respect of lands granted with absolute ownership,
to mean 12 years and grant by way of allotment without transfer of the
G ownership in favour of the grantee, to mean 30 years.

It is obvious that for the purpose of determining whether the period
of 12 years or 30 years limitation is to be applied, each case has to be
examined on its own merit. The High Court has dismissed the wirt applica-
H tion as well as the appeal merely on the basis of the order passed by this
\
HUCHE GOWDA v. DY. COMMR. [N.P. SINGH, J.] 159

Court in the case of Sunkara Rajaya/akshmi v. State of Kamataka, (supra) A
on the review application filed before this Court. According to us, the High
Court has to examine the claim made by the appellant on the materials
produced in support of the said claim, especially the deed of grant in favour
of the original grantee, for the purpose of recording a finding as to whether
the grant was in nature of absolute transfer of the title of the State
Government in favour of the grantee or it was a mere allotment for
B
enjoyment of the lands in question, the title having remained with the State
Government.

Accordingly, the order of the appellate court is set aside and the
High Court is requested to examine the aforesaid question on the materials C
produced on behalf of the appellant and the concerned respondents. It
need not be pointed out that any claim made on behalf of the appellant,
that the grant by the State Government in favour of the original grantee
was in the nature of absolute grant, reserving no right title interest and that
transferee has perfected his title by continuous and adverse possession over
such transferred land, shall be examined taking into consideration, as to D
whether the appellant had raised this question at the earliest opportunity
i.e. before the Assistant Commissioner and what material bad been

- produced by the appellant before the Assistant Commissioner in support
of such claim. It need not be impressed that the object and the scheme of
the Act is to protect the interest of the members of the Scheduled Castes E
and Scheduled Tribes, who shall be deemed to be a weaker section of our
community and the transfer in favour of the appellant admittedly being in
contravention of the terms of ihe grant in favour of the original grantee,
heavy onus rests on the appejlant, to show to the court that by his con-
tinuous and adverse possession, the right, title and interest of the grantee
has been extinguished before the commencement of the Act F

Accordingly, the appeal is allowed. But in the circumstances of the
case, there shall be no order as costs.

A.G. App'eal disposed of.