LAND REVENUE ACT = “Thus it is settled law that normally a decree passed by a court of competent jurisdiction, after adjudication on merits of the rights of the parties, operates as res judicata in a subsequent suit or proceedings and binds the parties or the persons claiming right, title or interest from the parties. Its validity should be assailed only in an appeal or revision as the case may be. In subsequent proceedings its validity cannot be questioned. A decree passed by a court without jurisdiction over the subject-matter or on other grounds which goes to the root of its exercise or jurisdiction, lacks inherent jurisdiction. It is a coram non judice. A decree passed by such a court is a nullity and is non est. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings.” “Bapi Patta” cannot be granted to the appellants therein inasmuch as the aforesaid land falls within the catchment area of feeder canal of Kaliberi and, therefore, the patta was cancelled on 19.07.1942. Inasmuch as the land in question was being utilized as catchment area of potable

                                                           REPORTABLE


                IN THE SUPREME COURT OF INDIA


                 CIVIL APPELLATE JURISDICTION


            CIVIL APPEAL NOs. 1585-1586  OF 2005





State of Rajasthan & Ors.                                .... Appellant (s)



            Versus



Jeev Raj & Ors.                                        .... Respondent(s)





                            J U D G M E N T




P. Sathasivam, J.


1)    These   appeals   arise   from   the   final   judgment   and   order



dated 14.10.2003 passed by the High Court of Judicature for



Rajasthan at Jodhpur in D.B. Civil Special Appeal (W) No. 270



of  2002   and   D.B.   Cross   Objection   No.   1  of  2003  wherein   the



appeal   filed   by   the   appellants   herein   was   dismissed   and   the



cross   objection   filed   by   the   respondents   was   allowed   by   the



High Court.




                                                                           1


2)  Brief facts:



(a)    On   12.10.1941,   respondent   No.1   and   his   brother   Pusa



Ram   (since   expired)-his   legal   representatives   are   on   record,



were   granted     `Bapi   Patta'     No.   14   for   agricultural   land



measuring   about   603.16   bighas   in   Village   Gevan,   Tehsil



Jodhpur   by   the   then   Jodhpur   Government.     As   the   land   in



question was part of the catchment area of the feeder canal of



Kaliberi canal and stone slabs which were constructed by the



respondents   were   obstructing   the   flow   of   water,   on



19.07.1942,   at   the   request   of   the   Public   Health   and



Engineering   Department   (in   short   "the   PHED"),     Jodhpur



Government cancelled the patta and removed the stone slabs.



(b)    On   05.09.1945,   the   respondents   claimed   compensation



of Rs.37,826/- for the loss of their land and stone slabs.   On



14.06.1949,   the   State   Government   made   payment   of



Rs.9,377/- as compensation to the respondents.  



(c)    Thereafter,   in   the   year   1968,   after   a   gap   of   about   20



years,   the   respondents   again   claimed   compensation   of



Rs.73,885/-   as   price   of   the   aforesaid   land   and   stone   slabs




                                                                             2


from the PHED through a notice.   The PHED passed an order



dated   23.04.1969   to   restore   the   land   in   question   to   the



respondents   in   lieu   of   compensation   amount   sought   for   by



them.     In   compliance   of   the   said   order,   the   possession   of



460.15   Bighas   of   land   was   restored   to   them   on   27.05.1969



and the same was also mutated in their name.



(d)    On   some   complaints   being   made,   the   restoration   of   the



land   was   cancelled   by   the   State   Government   on   01.05.1973.



Challenging   the   same,   the   respondents   filed   writ   petition



before  the  High  Court.     The  learned  single  Judge  of the  High



Court,   by   order   dated   24.11.1976,     quashed   the   order   dated



01.05.1973   and   directed   that   in   case   the   State   wants   to



reopen   the   order   dated   23.04.1969,   it   can   do   so   by   giving



proper opportunity of hearing to the petitioners therein.   After



the aforesaid judgment, on 25.03.1978, a notice was served on



the respondents by the PHED stating that it wanted to get the



land   back   from   the   respondents   which   had   been   restored   to



them for its own use and order dated 23.04.1969 was sought



to   be   recalled.     It   was   also   stated   that   the   respondents   are



liable   to   be   evicted   from   the   land   in   question.     The




                                                                              3


respondents filed objections against the notice for recalling the



order dated 23.04.1969.



(e)    Since the notice for recalling the order dated 23.04.1969



has not been formally dropped, the respondents filed a suit in



the   Court   of   Munsif   and   Judicial   Magistrate,   Jodhpur   City,



Jodhpur.   The Munsif Magistrate, by order dated 30.06.1982,



decreed   the   suit   restraining   the   State   Government   from



making   any   alterations   in   the   contract   that   has   come   into



existence in pursuance of the order dated 23.04.1969.  Notices



were   sent   to   the   respondents   to   appear   before   the   Revenue



Minister   as   the   Revision   Petition   for   cancellation   of   the   plot



granted in the year 1969 was pending before him.  The parties



appeared   before   the   Revenue   Minister.     By   order   dated



15.12.1992,   the   Revenue   Minister   cancelled   the   order   dated



23.04.1969.



(f)    Challenging   the   order   of   the   Revenue   Minister,   the



respondents   filed   a   petition   being   W.P.   No.   1526   of   1993



before  the  High  Court.     The  learned  single  Judge  of the  High



Court, by order dated 19.03.2002, allowed the same.





                                                                             4


(g)    Against   the   said   judgment,   the   State   filed   D.B.   Civil



Special Appeal (W) No. 270 of 2002 and the respondents also



filed   cross   objections   before   the   High   Court.     The   Division



Bench   of   the   High   Court,   by   impugned   judgment   dated



14.10.2003,   dismissed   the   appeal   filed   by   the   State   and



allowed the cross objection filed by the respondents herein.



(h)    Aggrieved   by   the   said   order   of   the   Division   Bench,   the



State Government filed these appeals before this Court by way



of special leave petitions.



(3)    Heard   Dr.   Manish   Singhvi,   learned   counsel   for   the



appellants,   Mr.   Dipankar   Gupta,   learned   senior   counsel   for



respondent   Nos.   1-6   and   Ms.   Bhati,   learned   counsel   for   the



intervenor.  



(4)    The   main   issue   in   these   appeals   is   about   the   grant   of



460.15   bighas   of   land   on   23.04.1969   by   the  PHED  to   the



respondents   herein.     As   far   as   the   remaining   land   of   143



bighas   is   concerned,   even   the   Division   Bench   of   the   High



Court,   in   the   impugned   order,   remitted   the   matter   to   the



Revenue Minister.  Inasmuch as the issue of remaining land of



143   bighas   raised   by   the   respondents   is   pending   before   the




                                                                             5


Revenue   Minister,   the   same   is   not   relevant   for   our   present



consideration.



(5)    It   is   the   contention   of   the   learned   counsel   for   the   State



that   the   order   dated   23.04.1969   about   the   grant   of   603.16



bighas of land (including 460.15 bighas - the subject matter of



present proceedings) was ex facie without jurisdiction as it was



allotted   by   the  PHED  on  flimsy   and  fallacious   grounds  about



cancellation   of   patta   way   back   in   the   year   1942   and   the



compensation sought in the year 1968.   It is relevant to note



that the same was cancelled way back in 1973.   Inasmuch as



opportunity of hearing was not given, the learned single Judge



of the High Court, by order dated 24.11.1976, remanded back



to the State Government for     deciding the matter afresh after



giving due opportunity of hearing to the respondents herein.



(6)    On   behalf   of   the   State,   it   was   pointed   out   that   it   has



legitimate   grievance   with   the   allotment   dated   23.04.1969   by



the  PHED.     The cancellation was made way back in the year



1942   for   allotment   made   in   the   year   1941   on   the   ground   of



violation   of   lease   conditions.     The   respondents   have   claimed



huge   compensation   for   construction   said   to   have   been   made




                                                                                 6


during   subsistence   of   lease   in   the   year   1949   itself   and   filed



application for compensation with regard to the cancellation of



patta   in   the   year   1968.     According   to   the   State,   the   said



application   was   barred   by   limitation   and   it   was   also   filed



before wrong forum, i.e., the PHED, when it should have been



filed   before   the   Land   Revenue   Department,   which   is   the



appropriate Department.



(7)    It   is   also   the   grievance   of   the   State   that   the   allotment



dated 23.04.1969  was cancelled on 01.05.1973,  however, the



High   Court   set   aside   the   same   on   24.11.1976   on   the   limited



ground that there was violation of natural justice and directed



the   State   Government   to   decide   it   afresh   after   giving



opportunity   of   hearing.     In   those   circumstances,   the   State



wants to exercise its power under the Land Revenue Act read



with the orders passed by the learned single Judge of the High



Court   dated   24.11.1976   and   the   Revenue   Minister   dated



15.12.1992.



(8)    It   was   highlighted   that   the   judgment   of   the   trial   Court



dated 30.06.1982 is also nullity since there was no discussion



on   merits   with   regard   to   the   validity   of   allotment   dated




                                                                                7


23.04.1969. Though it was pointed out by the counsel for the



respondents that it was hit by the principle of  res judicata  as



clarified by the counsel for the appellants, the principle of  res



judicata shall only apply if there is discussion or finding on the



same   subject   matter.     A   perusal   of   the   decree   of   injunction



that   had   been   passed   on   23.04.1969   shows   that   it   did   not



advert to the merits of the case at all.  It is also not in dispute



that   the   subject   matter,   namely,   validity   of   allotment   dated



23.04.1969 has not been gone into.




(9)    It   is   also   relevant   to   point   out   that   by   virtue   of   Section



259   of   the   Land   Revenue   Act,   the   jurisdiction   of   the   Civil



Court is ousted and if any decree is passed by the Civil Court



contrary to the said provision, the same is a nullity in the eyes



of   law.     If   the   decree   is   passed  coram   non   judice,   as   in   the



present case, then it is a nullity in the eyes of law and it shall



not   operate   as  res   judicata.     This   proposition   has   been



enunciated  in  Sabitri  Dei  and  Others.    vs.  Sarat  Chandra


Rout and Others, (1996) 3 SCC 301, wherein this Court held


that   once   a   decree   is   held   to   be   a   nullity,   the   principle   of





                                                                                    8


constructive  res   judicata  will   have   no   application   and   its



invalidity can be set up whenever it is sought to be enforced or



is acted upon as a foundation for a right even at the stage of



execution or in any collateral proceeding.  This proposition has



been   reiterated   in    Sushil   Kumar   Mehta   vs.   Gobind   Ram


Bohra  (1990) 1 SCC 193.       It was held in the aforesaid case


that,


                "Thus it is settled law that normally a decree passed

      by   a   court   of   competent   jurisdiction,   after   adjudication   on

      merits of the rights of the parties, operates as res judicata in

      a   subsequent   suit   or   proceedings   and   binds   the   parties   or

      the persons claiming right, title or interest from the parties.

      Its validity  should be  assailed  only in an  appeal  or  revision

      as   the   case   may   be.   In   subsequent   proceedings   its   validity

      cannot   be   questioned.   A   decree   passed   by   a   court   without

      jurisdiction   over   the   subject-matter   or   on   other   grounds

      which   goes   to   the   root   of   its   exercise   or   jurisdiction,   lacks

      inherent   jurisdiction.   It   is   a  coram   non   judice.   A   decree

      passed   by   such   a   court   is   a   nullity   and   is   non   est.   Its

      invalidity can be set up whenever it is sought to be enforced

      or is acted upon as a foundation for a right, even at the stage

      of execution or in collateral proceedings."



It is also relevant to note that the order passed on 23.04.1969



was   by   the  PHED  whereas   it   was   the   Land   Revenue



Department   which   alone   had   the   power   under   the   Land



Revenue Act to grant land to any person.   Thus the allotment



of   land   was   also   without   jurisdiction   as   the  PHED  was   not





                                                                                            9


empowered to transfer such a huge chunk of 460.15 bighas of



land which is now an integral part of the city of Jodhpur.



10)     It   is   also   not   in   dispute   that   the   validity   of   the   order



dated   23.04.1969   has   not   been   adjudicated   by   any



appellate/revisional   forum   and   according   to   the   learned



counsel  for  the State,  it  wants to decide the  validity  of order



dated   23.04.1969   on   merits   and,   in   that   event,   the



respondents shall have full opportunity to put-forth their case



and   objections,   if   any,   available   under   the   law.     As   rightly



pointed   out   by   the   learned   counsel   for   the   State,   the



respondents   cannot   be   conferred   with   such   huge   benefit   of



460.15   bighas   of   land   without   any   proper   adjudication   on



merits   about   the   grant   of   allotment   of   land.     As   pointed   out



earlier,   the   judgment   and   decree   dated   30.06.1982   does   not



dwell   upon   the   merits   of   the   validity   of   the   allotment   dated



23.04.1969   but   instead   proceeds   that   such   allotment   on



23.04.1969 would entail the order of injunction.   The learned



single   Judge,   on   24.11.1976,   set   aside   the   order   of



cancellation   passed   on   01.05.1973   and   referred   the   matter



back   to   the   State   Government   to   consider   it  on  merits.     The




                                                                                   10


learned  single Judge,  on 24.11.1976, has  again remitted  the



matter   to   the   State   Government   because   no   opportunity   of



hearing   was   given   with   regard   to   460.15   bighas   of   land.



However,   the   Division   Bench   of   the   High   Court   upheld   the



validity   of   order   dated   23.04.1969   on   the   principle   of  res



judicata.    As   discussed   and   observed   above,   the   principle   of



res  judicata  shall  not   apply   inasmuch  as  neither   the   subject



matter   of   validity   of   allotment   dated   23.04.1969   was



considered   on   merits   by   the   Munsif   Court   nor   the   decree



passed by the Civil Court was within its jurisdiction because



the   Land   Revenue   Act   prohibits   the   jurisdiction   of   the   Civil



Court.       This   has   led   to   the   validity   of   the   order   dated



23.04.1969   being   left   unexamined   by   the   State   Government



despite   orders  of  the   learned   single   Judge   of  the   High  Court



dated 24.11.1976.



(11)    In   view   of   the   same,   it   is   desirable   that   since   the   State



Government  is  going to decide the allotment  of 143 bighas of



land   in   pursuance   of   the   impugned   judgment,   we   are   of   the



view   that   let   the   State   Government   may   as   well   decide   the



grant   of   remaining   460.15   bighas   of   land   allotted   vide   order




                                                                                    11


dated  23.04.1969   in  accordance   with   law.   It  is   also  to  point



out   that   even   the   Division   Bench   in   its   judgment   dated



14.10.2003   has   clearly   recorded   the   fact   that   the   land   in



question   was   part   of  the   catchment   area   for   canal   and   stone



slabs which were obstructing the flow of water and, therefore,



"Bapi   Patta"   No.   14   granting   603.16   bighas   of   land   was



cancelled.   The Division Bench has also recorded the stand of



the   State   Government   that   soon   after   "Bapi   Patta"   was



granted,   it   was   realized   that   the   same   had   been   granted



wrongly   because   the   land   fell   under   the   catchment   area   of



Kailana   Lake  and it  was for  this  reason  that  subsequently  in



1942,   the   said   patta   was   cancelled   and   compensation   of



Rs.9,377/- was paid to the appellants therein for stone slabs



which   had   been   removed.     Further,   the   Revenue   Minister,   in



his order dated 15.12.1992, has clearly recorded that it came



to   the   knowledge   that   "Bapi   Patta"   cannot   be   granted   to   the



appellants therein inasmuch as the aforesaid land falls within



the  catchment   area  of  feeder  canal  of  Kaliberi  and,  therefore,



the patta was cancelled on 19.07.1942.  Inasmuch as the land



in   question   was   being   utilized   as   catchment   area   of   potable




                                                                            12


water, grant of "Bapi Patta" was void ab initio and, therefore, it



was   cancelled.     Even   the   learned   single   Judge,   in   his   order



dated 19.03.2002, has recorded  while narrating the facts that



on   09.03.1978,   the   Chief   Engineer   of   the  PHED  had   issued



notices to the  respondents along  with  others mentioning that



the   land   was   falling   in   the   feeder   canal   catchment   area   and,



therefore,   the  PHED  wanted   back   the   complete   land   of   603



bighas.



12)     We   also   accept   the   statement   of   Mangal   Singh,   the



intervenor,   that   in   the   larger   public   interest   no   land   can   be



allotted or granted if it obstructs the flow of water.  The above



principle   has   been   reiterated   by   this   Court   in   several   orders.



We have already noted the prohibition, i.e., entertaining a suit



by the Civil Court in the Land Revenue Act.  Further, the land



in question belongs to the Revenue Department of the State of



Rajasthan   and   the  PHED  had   no   jurisdiction   whatsoever   to



restore   460.15   bighas   of   land   in   favour   of   the   respondents



herein.    It   is   needless   to   mention   that   while   passing   fresh



orders   as   directed   above,   the   State   Government   has   to   issue





                                                                              13


notice   to   all   the   parties   concerned   and   decide   the   same   in



accordance with law.





                                                                            14


13)     In   view   of   the   above   discussion,   factual   materials,   legal



issues considering public interest, we set aside the impugned



order passed by the High Court on 14.10.2003 and direct the



Revenue   Department   of   the   State   of   Rajasthan   to   decide   the



matter afresh as discussed above and pass fresh orders within



a   period   of   four   months   from   the   date   of   the   receipt   of   this



judgment   after   affording   opportunity   to   all   the   parties



concerned.   Both the appeals are allowed on the above terms.



No order as to costs.  





                                           ..........................................J.

                                             (P. SATHASIVAM)




                                          ..........................................J.

                                            (H.L. GOKHALE)


NEW DELHI;

AUGUST 11, 2011.            

 


             





                                                                                 15

"8. 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 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 by transfer of the possession of the land, by way 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 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 extinguishment 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 Government by adverse possession, by a transferee on the basis of an alienation made in his favour 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 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 III to the Schedule to the Constitution (Scheduled Tribes) Order, 1950."

                                                                REPORTABLE


                IN THE SUPREME COURT OF INDIA


                  CIVIL APPELLATE JURISDICTION




                  CIVIL APPEAL NO. 4255 OF 2002





G. KRISHNAREDDY                                              .... Appellant




                                     Versus




SAJJAPPA (D) BY LRS. AND ANR.                              .... Respondents





                                 JUDGMENT





Dr. MUKUNDAKAM SHARMA, J.




  1. This   appeal   is   directed   against   the   judgment   and   order



  dated   20.10.1998   passed   by   the   Division   Bench   of   the



  Karnataka   High   Court   in   Writ   Appeal   No.   3269   of   1998



  dismissing the Writ Appeal filed by the appellant.




  2. Brief   facts   leading   to   the   filing   of   the   case   are   that   the



  disputed land was allotted through  a grant by the  State of


Karnataka   to   one   Smt.   Munemma   on   08.01.1957   with   a



condition prohibiting any alienation of the land for a period



of 15 years. Gopalappa, late father of the appellant herein,



purchased   the   said   land   from   Smt.   Munemma   under   a



registered sale deed dated 20.12.1968.




3. In   view   of   the   coming   into   force   of   the   Karnataka



Scheduled   Castes   and   Scheduled   Tribes   [Prohibition   of



Transfer   of   Certain   Lands]   Act,   1978   [for   short   "the



Prohibition   of   Transfer   Act"]   Smt.   Munemma   made   an



application   under   the   said   Prohibition   of   Transfer   Act   for



the resumption of the land in question on the ground that it



was   purchased   by   Gopalappa,   late   father   of   the   appellant,



in   violation   of   the   prohibition   clause   of   the   grant.   By



passing an order dated 07.06.1984 Assistant Commissioner



allowed the application filed by Smt. Munemma which was



also   confirmed   by   the   Deputy   Commissioner   in   appeal.



Against   the   said   order   of   the   Deputy   Commissioner   the



predecessor-in-interest of the appellant filed a Writ Petition



before the Karnataka High Court, which remanded back the



matter   to   the   appropriate   authority   for   its   disposal   in


accordance   with   law.   Pursuant   thereto   the   Assistant



Commissioner   after   conducting   an   enquiry   vide   its   order



dated 10.10.1995 held that the purchaser  is in possession



of   the   land   for   more   than   12   years   which   decision   was



further   confirmed   in   appeal   by   the   Deputy   Commissioner.



Against the aforesaid order a Writ Petition was filed by the



heirs   of   the   original   grantee   which   was   registered   as   Writ



Petition No. 26848/1997.




4. Learned   Single   Judge   who   heard   the   aforesaid   Writ



Petition   vide   order   dated   15.06.1998   held   that   the



authorities below erred in law in applying the principles of



adverse possession to the case in hand. The learned Single



Judge   held   that   since   the   purchaser   had   taken   the   stand



that by purchasing the said land under a valid sale deed he



had been enjoying the cultivation and possession in his own



right   as   owner   thereof,   therefore,   he   is   precluded   from



setting up the inconsistent plea of adverse possession either



as against the State or the grantee. It was also held that the



aforesaid   allotted   land   through   a   grant   was   purchased   by



the purchaser in contravention  of the prohibition clause of


the grant in question. Consequently, the  said Writ Petition



filed by the heirs of the original grantee succeeded and the



impugned   orders   were   quashed   and   the   Assistant



Commissioner was directed to take action according to law



to restore possession of the said land to the respondent.




5. Being aggrieved by the aforesaid order a Writ Appeal was



filed by the appellant herein which was dismissed by order



dated 20.10.1998 as against which the present appeal has



been filed, on which we heard learned counsel appearing for



the   appellant,   who   during   the  course  of   his  argument  had



taken us through the records also. The respondent despite



service did not enter appearance.




6.    The   land   involved   in   the   present   case   is   Sy   No.   53


measuring   2   acres   situated   in   Village-Hebbatta,   Taluk-



Srinivaspur, District-Kolar.  While granting land in favour of



the   predecessor-in-interest   of   the   respondent   herein



through   a   grant   dated   8th  January,   1957   it   was   clearly



stipulated   in   the   grant   that   the   said   land   cannot   be



transferred   for   15   years.   Subsequently,   however,   on


20.12.1968 the said land was purchased by the late father



of appellant. Earlier to the same an agreement to sale was



also entered into between the parties on 25.12.1965.




7. However,   after   coming   into   force   of   the   Karnataka



Scheduled   Castes   and   Scheduled   Tribes   [Prohibition   of



Transfer of Certain Lands] Act, 1978, w.e.f., 01.01.1979, the



original   grantee   -   Smt.   Munemma   made   an   application



under Section 5 of the Prohibition of Transfer Act before the



Assistant Commissioner seeking resumption of the land on



the  ground  that  it was purchased by the  late  father  of  the



appellant in violation of the prohibition clause of the grant.



The   application   of   Smt.   Munemma   was   allowed   by   the



Assistant  Commissioner   which  was also  upheld by Deputy



Commissioner   in   appeal.   Against   the   said   decision   of   the



Deputy   Commissioner   a   Writ   Petition   was   filed   by   the



appellant   before   the   Karnataka   High   Court,   which



remanded back the matter to be decided by the appropriate



authority in accordance with law.


8. Pursuant   to   the   said   order   of   the   High   Court   an



application was filed before the Assistant Commissioner. At



this stage it would be appropriate to extract the provisions



of Section 4 and 5 of the said Prohibition Act: -




  "4. PROHIBITION OF TRANSFER OF GRANTED LANDS-


     (1)    Notwithstanding   anything   in   any   law,   agreement,

            contract or instrument, any transfer 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 not

            be deemed ever to have conveyed by such transfer.


     (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.


     (3)    The provision of sub-Sections (1) and (2) shall apply

            also to the sale of any land in execution of a decree

            or order of  a  civil  court or of  an  award  or order of

            any other authority.


  5. RESUMPTION AND RESTITUTION OF GRANTED LANDS-


  (1)   Where   an   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) of

  section 4, he may -


  a) by order take  possession of such land after evicting all

  persons 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)   restore   such   land   to   the   original   grantee   or   his   legal

     heir.  Where it is  not reasonably  practicable  to  restore  the

     land   in   such   grantee   or   legal   heir   such   land   shall   be

     deemed   to   have   vested   in   the   Government   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  to

     grant of lands.


     (1A)   After   an   enquiry   referred   to   in   sub-section(1)   the

     Assistant   Commissioner   may   if   he   is   satisfied   that

     transfer of any granted land is not null and void pass an

     order accordingly.


     (2)   Subject   to   the   orders   of   the   Deputy   Commissioner

     under Section 5A, any order passed under sub-section (1)

     and (1A) shall be final and shall not be questioned in any

     court   of   law   and   no   injunction   shall   be   granted   by   any

     court   in   respect   of   any   proceeding   taken   or   about   to   be

     taken by the Assistant Commissioner in pursuance of any

     power conferred by or under this Act.


     (3)   For   the   purposes   of   this   section   where   any   granted

     land   is   in   the   possession   of   a   person   other   than   the

     original grantee or his legal heir it shall be 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."





The   Assistant   Commissioner   after   hearing   the   parties,



however, rejected the application holding that the late father of



the   appellant   is   protected   from   dispossession   by   way   of


application   of   the   plea   of   adverse   possession   which   decision



was   also   confirmed   in   appeal   by   the   Deputy   Commissioner.



But   in   a   Writ   Petition   filed   by   the   respondent   the   learned



Single  Judge   of the   High  Court  set  aside  the  said  findings  of



the   authorities   below   and   directed   for   the   restoration   of



possession   of   the   land   in   favour   of   the   respondent.   Learned



Single   Judge   further   held   that   no   transfer   could   have   been



made   by   the   predecessor-in-interest   of   respondent,   i.e.,   Smt.



Munemma and, therefore, alienation made in favour of the late



father of the appellant was contrary to the prohibition  clause



of the said grant as also to the provisions of law.




   9. It   is   clear   from   the   aforesaid   position   that   in   order   to



   overcome the aforesaid difficulties the appellant took up the



   plea   of   adverse   possession   by   way   of   defence.   The



   predecessor-in-interest   of   the   appellant   claimed   title   over



   the said land by virtue of purchase and at no stage he had



   put   up   any   hostile   claim   to   the   property.   The   plea   was   of



   ownership by right of purchase and therefore a lawful right



   to   enjoy   the   property.   The   learned   Single   Judge   while



   allowing the writ petition filed by the respondent has made


reference to the aforesaid position and held that the plea of



adverse possession was not available to the predecessor-in-



interest   of   the   appellant   in   law   and   in   view   of   such   legal



position the authorities below erred in accepting the plea of



adverse   possession   in   respect   of   the   granted   land.   There



appears to be justification in the findings of the High Court.




10. Even otherwise, we may refer to the decision of this Court



in K.T. Buchegowda v. Deputy Commissioner and Others



reported in  (1994) 3 SCC 536  where at paragraph 8 of the



said judgment this Court has held thus: -




   "8. 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   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

   by transfer of the  possession of the land, by way  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 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   extinguishment   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

   Government by adverse  possession,  by a  transferee

   on the  basis  of  an  alienation  made  in  his  favour 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   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   III   to   the

   Schedule   to   the   Constitution   (Scheduled   Tribes)

   Order, 1950."




11. Therefore, so as to ascertain whether in the present case



the  period  of limitation  would  be 12 years or   30  years,  we



have perused the grant given to the predecessor-in-interest



of the Respondent, a copy of which was placed on record by



the   appellant.   A   bare   perusal   of   the   aforesaid   grant   would



indicate that nowhere in the  said grant it has been clearly



and specifically stated that it has been an absolute transfer



of the right in title and possession by the State Government



to   the   concerned   person.   A   bare   perusal   of   the   document



would   also   indicate   that   it   was   only   a  transfer   of   the


possession  of  the  land   by  way  of allotment  and   in  none   of



the clauses of the grant it is stated that it is a conveyance of



the title over such land by the State Government. Clause 1



of the grant gives authority to the grantee to clear the land



and   to   bring   it   to   cultivable   stage.   It   further   provides   that



the grantee can enjoy the property for 15 years. Not only the



grant   was   only   for   a   limited   period   but   it   was   also   for



cultivation. Therefore, it was a grant for possession by way



of cultivation for a limited period and it cannot be said that



by the aforesaid grant the transferee had acquired absolute



title   to   the   land   in   question   from   the   State   Government.



Therefore,   the   period   of   limitation   which   would   have   been



applicable   in   the   present   case   would   be   30   years,   in   the



light of the ratio laid down by the said decision.




12.       In any case the appellant has failed to make out any



case for interference. We find no merit in this appeal, which



stands   dismissed,   leaving   the   parties   to   bear   their   own



costs.





                                         ............................................J


                            [Dr. Mukundakam Sharma ]




                          .........................................J

                            [ Anil R. Dave ]

New Delhi,

July 18, 2011.