1. The petitioners who claim to be the legal heirs of the original grantee Sri.Thippanna @ Giddappa are before this Court calling in question the impugned order dated 30.05.2011 passed by the Deputy Commissioner, who has set-aside the order of the Assistant Commissioner dated 13.07.2009, while remanding the matter back for fresh consideration.

2. The brief facts of the case are that 2 acres 8 guntas of land bearing Sy.No.96/58 of Kanuru Village, Kasaba Hobli, Shikaripura Taluk, Shimoga District was granted under Special Darkhasth Rules on 10.03.1949 in favour of Sri.Thippanna @ Giddappa. Mutation entry in M.R.No.50/57-58 was made consequent to the grant in the revenue records. Permanent Saguvali Chit dated 14.03.1951 was issued in favour of the grantee. It is the contention of the petitioners that the Grant Certificate contained a non-alienation clause for a period of 20 years. However, the grantee sold the property in favour of Sri.Dodda Goneppa S/o Yellappa under a registered sale deed dated 31.07.1963. Sri. Sri.Dodda Goneppa S/o Yellappa sold the property in favour of Smt.Jaibunnisa W/o Syed Basheer Sab under a registered sale deed dated 05.06.1967.

3. The special statute, Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (hereinafter referred to as ‘the Act’, for short) was brought into force from 01.01.1979. A few months after the Act was brought into force, the original grantee filed an application before the Assistant Commissioner invoking the provisions the Act, while alleging that the sale transaction dated 31.07.1963 was in contravention to the condition of the grant, since the transaction has taken place within a period of 13 years from the date of grant and all subsequent transactions are also hit by provisions of Section 4(1) of the Act and therefore, grantee sought for declaration that the sale transactions are void. By order dated 18.02.1989, the Assistant Commissioner allowed the application while holding that the sale transactions are in violation of the condition of the grant. The plea of adverse possession raised at the hands of the respondents therein was negated citing the decision of the Hon’ble Supreme Court in the case of Sunkara Rajayalakshmi And Others Vs. State of Karnataka and others, reported in (2009) 12 SCC 193. The Assistant Commissioner recorded a finding that as per the report of the Tahsildar, the grantee belonged to Bhovi (Wadda) community which was listed under the Scheduled Caste as per the Presidential Notification. Consequently, the Assistant Commissioner directed resumption and restoration of the land in favour of the original grantee or his legal heirs.

4. The order of the Assistant Commissioner dated 18.02.1989 was challenged before the Deputy Commissioner in a statutory appeal, by Smt.Jaibunnisa and her husband Sri. Syed Basheer Sab. By order dated 16.01.1992, the Deputy Commissioner dismissed the appeal upholding the order passed by the Assistant Commissioner. Aggrieved, the subsequent purchasers approached this Court in W.P.No.2476/1992. This Court by order dated 05.11.1996 remanded the matter back for fresh consideration of the Assistant Commissioner to record a finding as to whether the land was granted for upset price or free of cost or price lesser than upset price and whether non-alienation condition could have been imposed under such condition, to comply with the law laid down by a Division Bench of this Court in the case of Pedda Reddy Vs. State of Karnataka, reported in ILR (1993) Kar 551. Further, direction was also given to go into the question of adverse possession and record a finding as to nature of grant.

5. On remand, the Assistant Commissioner has noticed that inspite of several opportunities being given to the learned Counsels who were appearing on behalf of the rival parties, learned Counsels have not presented their arguments or written arguments. Therefore, the Assistant Commissioner proceeded to once again hold that the first transaction was in contravention to the condition of the grant and consequently, the provisions of Section 4(1) of the Act were attracted. Resumption and restoration was directed consequent to the declaration that the sale transactions are void. Respondent Nos.3 to 8 claiming to be the legal representatives of Smt.Jaibunnisa and Syed Basheer Sab, filed an appeal before the Deputy Commissioner calling in question the order dated 13.07.2009 passed by the Assistant Commissioner. The Deputy Commissioner, in the impugned order has held that the Assistant Commissioner has not complied with the directions issued by this Court, inasmuch as no finding is given on the nature of the grant, whether the grant was for upset price, full price or lesser than upset price, etc. No finding is given regarding the question of adverse possession which was raised at the hands of the purchaser. Consequently, the Deputy Commissioner set aside the order of the Assistant Commissioner and remanded the matter back to the Assistant Commissioner for fresh enquiry. Being aggrieved, the petitioners who are the sons of the original grantee are before this Court.

6. Learned Counsel for the petitioners-legal heirs of the original grantee, submits that the decision of the Hon’ble Supreme Court in the case of Pedda Reddy (supra) is no more a good law, in view of the judgment of the Hon’ble Supreme Court in the case of Guntaiah And Others Vs. Hambamma And Others, reported in (2005) 6 SCC 228.

7. On the question of adverse possession, the learned Counsel for the petitioners would submit that in the case of D.N.Venkatarayappa And Another Vs. State of Karnataka and Others, reported in (1997) 7 SCC 567, it has been held that in the context of the Act, a plea of adverse possession can never be raised at the hands of the purchasers, since their claim to the property is based on a sale deed executed at the hands of the original grantee. Therefore, one of the main ingredients for a plea of adverse possession being that there has to be hostile animus or hostile title to that of the true owner, would be lacking in these matters.

Therefore, the learned Counsel submits that even if there was a direction issued by this Court remanding the matter back to the Assistant Commissioner to enquire into the question regarding the nature of the grant and whether conditions of non-alienation could be imposed by the authorities having been watered down by a judgment of Hon’ble Supreme Court in the case of Guntaiah Vs. Hambamma (supra) and the plea of adverse possession also being declared to be inapplicable to the proceedings under the PTCL Act, in terms of another decision of the Hon’ble Supreme Court in the case of D.N.Venkatarayappa (supra), no useful purpose would be served if the matter is remanded back to the Assistant Commissioner. On the admitted facts regarding the grant made in favour of Sri Thippanna @ Gidappa and the sale transaction having taken place within a period of 13 years from the date of grant, it is sufficient to hold that the sale transaction and the subsequent sale transaction are hit by the provisions of Section 4(1) of the Act.

8. Per contra, learned Counsel for the contesting respondents No.5 submits that since the order of the Deputy Commissioner is only an order of remand for fresh consideration, this writ petition is required to be dismissed to enable the parties to have their say before the Assistant Commissioner. On the merits of the matter, learned Counsel for the respondents would submit that the order of this Court remanding the matter was passed on 05.11.1996, when the decision of the Hon’ble Division Bench in the case of Pedda Reddy (supra) was holding the field. Therefore, it was the duty of the Assistant Commissioner to comply with the directions given by this Court and enquire into the question as held in the case of Pedda Reddy.

9. On the question of adverse possession, the learned Counsel for the respondents would submit that the Hon’ble Supreme Court in the case of K.T.Huchegowda Vs. Deputy Commissioner and others (1994) 3 SCC 536 has held that for the purpose of determining the period of limitation in respect of lands granted with absolute ownership, it should mean 12 years and grant by way of allotment without transfer of the ownership in favour of the grantee, to mean 30 years and therefore it was incumbent upon the Assistant Commissioner to enquire as to whether the grant bestowed absolute ownership on the grantee or it was a transfer only for a limited purpose while the State retained its ownership on the granted land. The learned Counsel would therefore submit that it is necessary that the matter should be remanded back to the Assistant Commissioner to go into these questions and give a definite finding.

10. Heard the learned Counsels and perused the petition papers.

11. The order of the Assistant Commissioner is dated 31.07.2009. By that time, the decision of the Hon’ble Supreme Court in the case of Guntaiah Vs. Hambamma was already rendered. The judgment was rendered on 22.07.2005 and reported immediately thereafter. The Hon’ble Supreme Court in the case of Guntaiah (supra) reversed the finding of a Full Bench of this Court which had held that if the grant is made under Rule 43-J, there could not have been any condition restricting the alienation and if at all there were any such conditions, they are null and void. Considering the provisions of the Rules of grant, the Hon’ble Supreme Court held that the High Court failed to take into account the clear language employed in Section 4 of the PTCL Act, according to which, any transfer of granted land made either before or after the commencement of the Act “in contravention of the terms of the grant of such land” shall be null and void. (Emphasis supplied).

12. It was held that violation of the terms of grant itself gives rise to the action under Section 4 read with Section 5 of the PTCL Act. So long as the terms of the grant prohibiting transfer are not opposed to any specific provision of law, they cannot be violated and the transferee gets no rights by virtue of such invalid transfer. Moreover, it was also held that the prohibition regarding alienation is a restrictive covenant binding on the grantee. The grantee is not challenging that condition. In all these proceedings, challenge is made by the third party who purchased the land from the grantee. The third party is not entitled to say that conditions imposed by the grantor on the grantee were void. It was held that when the purchaser purchased the property with his eyes open, knowing fully well that there is a condition of non-alienation in the Grant Certificate, it is not within his ken to turn around and question the imposition of the conditions of non- alienation. If at all such covenant could be questioned, it is only the original grantee who could do so and not the purchaser. Therefore, the earlier decision of the Division Bench of this Court directing the Assistant Commissioner to enquire as to whether the grant was made for upset price, free of cost or lesser than the upset price to enable the grantor to impose the condition of alienation, has been set at naught at the hands of the Hon’ble Supreme Court. It is clear from the decision of the Hon’ble Supreme Court that these questions cannot be raised at the hands of a third party who contends that because the land was granted for upset price, no such condition could be imposed by the grantor. It is in acceptance of these contentions that the Division Bench of this Court in the case of Pedda Reddy had directed the authorities to go into the question. Now that such exercise cannot be undertaken in view of the declaration made by the Hon’ble Apex Court in Guntaiah, there is no need to remand the matter back to the Assistant Commissioner to go into such questions.

13. On the question of adverse possession, learned counsel for the contesting respondents is right in his submission that the earlier decision of the Hon’ble Supreme Court in the case of K.T.HUCHEGOWDA (supra) has been considered by the Apex Court subsequently in the case of D.N.VENKATARAYAPPA (supra) where it was noticed by the Apex Court that there is no express plea of adverse possession taken, except stating that after the purchase of the land by them, the purchasers remained in possession and enjoyment of the lands. It was therefore held that what requires to be pleaded and proved is that the purchaser asserted his title under which he came into possession, set up adverse possession which necessarily means setting up hostile title, to the knowledge of true owner and the latter 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 classic requirements of adverse possession was held to be nec vi, nec clam, nec precario. The decision of the learned Single Judge of this Court in the case of D.N.VENKATARAYAPPA AND OTHERS Vs. STATE OF KARNATAKA AND OTHERS, reported in ILR 1997 KAR 850 was considered and upheld by the Apex Court. This Court had held that the contention raised by the petitioners that they have perfected their title in respect of the land in question by adverse possession, has to fall on two counts, firstly, the crucial facts which constitute adverse possession have not been pleaded. The pleadings extracted will not constitute the crucial facts necessary to claim title of adverse possession. Secondly, such contention even if raised, should be supported by cogent evidence to fortify the pleadings that the purchasers have set up adverse title, hostile to the title of the original grantee/their vendors and to the knowledge of the true owner. Therefore mere uninterrupted and continuous possession without animus to constitute hostile rights and possession to the rights of the true owner, will not constitute adverse possession in law. This finding of the learned Single Judge has been upheld by the Hon’ble Supreme Court. Consequently, it was held that in all these cases arising under the Act where the purchasers assert to be in possession of the granted lands claiming under the sale deeds executed at the hands of the original grantee or legal heirs, the purchasers cannot set up a plea of adverse possession, there being no claim of hostile animus or hostile title.

14. The other contention raised at the hands of the petitioners that the land was granted for upset price and therefore absolute rights are vested in the purchaser and that for the purchaser to raise a plea of adverse possession as against the purchaser, it is sufficient if he is in continuous possession of twelve years, also falls on its face in view of the declaration of the Hon’ble Supreme Court in the case of D.N.VENKATARAYAPPA (supra) where it is held that such a plea cannot be raised at the hands of purchaser having accepted in his pleadings before the Assistant Commissioner that he has come in possession of the land in question claiming under the sale deed executed at the hands of the original grantee. All other questions whether the period of limitation is twelve years or thirty years as against the State, does not arise for consideration.

15. Regarding the question of social status of the grantee, in the order dated 05.11.1996 of this Court in W.P.No.2476/1992, this Court had clearly held that the order of the Assistant Commissioner shows that except recording the finding that the original grantee belonged to Scheduled Caste, the Assistant Commissioner has not recorded any other finding. Even in the impugned order, the Deputy Commissioner has also reiterated this fact that based on the Tahsildar’s report dated 10.02.1989, the Assistant Commissioner has come to a conclusion that the grantee belonged to Bhovi (Wadda) caste which comes under the category of Scheduled Caste. Therefore, even on the question of social status of the grantee, there is a clear finding that he indeed belonged to a Scheduled Caste as enumerated in the Presidential order.

16. The other facts are admitted facts such as the date of grant made in favour of the grantee Sri Thippanna @ Giddappa; that Sri Dodda Goneppa S/o Yellappa purchased the land under a registered sale deed dated 31.07.1963, which was within a period of 13 years from the date of grant and that Smt.Jaibunnisa purchased the land from Dodda Goneppa under a registered sale deed dated 05.06.1967. These facts are sufficient to hold that there has been a violation of the conditions of grant viz., alienation within a period of 20 years as stipulated and therefore, Section 4(1) of the Act, is attracted. The Assistant Commissioner has rightly declared the sale transactions as void. Therefore, there being a clear finding on the merits of the matter, the matter does not require any fresh consideration at the hands of the Assistant Commissioner or the Deputy Commissioner.

17. Consequently, the writ petition is allowed.

The impugned order dated 30.05.2011 passed by the Deputy Commissioner is hereby quashed and set aside. The order of the Assistant Commissioner on the merits of the matter is upheld.

18. At this juncture, learned Counsel for respondent No.5 submits that the said respondent has grown crops on the land in question and therefore, he should be permitted to harvest the crops.

19. This submission of the learned Counsel for respondent No.5 is accepted. If action is initiated in terms of The Karnataka Scheduled Castes and Scheduled Tribes (PTCL) Rules, 1979 to restore the lands in favour of the original grantee or his legal heirs, the fifth respondent shall be permitted to harvest the crops before the land is restored in favour of the legal heirs of the original grantee.

It is ordered accordingly.