- 1 - NC: 2025:KHC:9715-DB WA No. 145 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF MARCH, 2025 PRESENT THE HON'BLE MRS. JUSTICE ANU SIVARAMAN AND THE HON'BLE MR. JUSTICE RAJESH RAI K WRIT APPEAL NO. 145 OF 2021 (SCST) BETWEEN: 1. KUMARASWAMY S/O LATE B.N. NINGAIAH AGED ABOUT 59 YEARS DEAD BY HIS LR'S 1(a). C. MANJULA W/O LATE KUMARASWAMY AGED ABOUT 55 YEARS 1(b). K. VINAY S/O LATE KUMARASWAMY AGED ABOUT 37 YEARS 1(c). K. AJAY S/O LATE KUMARASWAMY AGED ABOUT 35 YEARS 1(d). K. SANJAY S/O LATE KUMARASWAMY AGED ABOUT 33 YEARS 2. SMT. MAYAMMA W/O LATE B.N. NINGAIAH AGED ABOUT 83 YEARS 3. SMT. SUMITHRA W/O SRI. BOREGOWDA AGED ABOUT 44 YEARS Digitally signed by CHANNEGOWDA PREMA Location: High Court of Karnataka - 2 - NC: 2025:KHC:9715-DB WA No. 145 of 2021 ALL ARE R/O. TASHKENTNAGAR BHADRAVATHI TALUK SHIMOGA DISTRICT-577 301 …APPELLANTS (BY SRI. S.G. HEGDE, ADVOCATE) AND: 1. THE DEPUTY COMMISSIONER SHIVAMOGGA DISTRICT SHIVAMOGGA-577 201 2. THE ASSISTANT COMMISSIONER SHIMOGGA DIVISION SHIVAMOGGA DISTRICT-577 201 3. THE TAHSILDAR BHADRAVATHI TALUK SHIVAMOGGA DISTRICT-577 201 4. BASAVARAJ S/O LATE SRI. KENCHAPPA AGED ABOUT 59 YEARS R/O. YEREHALLI VILLAGE MARUTHINAGAR POST BHADRAVATHI TALUK SHIMOGGA DISTRICT-577 301 5. JAYANNA S/O LATE KENCHAPPA AGED ABOUT 64 YEARS R/O. YEREHALLI VILLAGE MARUTHINAGAR POST BHADRAVATHI TALUK SHIMOGGA DISTRICT-577 301 …RESPONDENTS (BY SRI. C.H. DEVARAJ, HCGP FOR R1 TO R3; SRI. VISHWANATH R. HEGDE, ADVOCATE FOR C/R4; SRI. SATEESH CHANDRA K.V., ADVOCATE FOR R3) - 3 - NC: 2025:KHC:9715-DB WA No. 145 of 2021 THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT, 1964, PRAYING TO (a) ALLOW THE APPEAL AND SET-ASIDE THE IMPUGNED ORDER DATED 05.03.2020 PASSED BY THE LEARNED SINGLE JUDGE OF THIS HON'BLE COURT IN WP No.43929/2012 (SC-ST) AND WP Nos.44708- 44709/2012 AND CONSEQUENTLY ALLOW THESE WRIT PETITIONS BY GRANTING THE RELIEFS AS PRAYED FOR THEREIN AND ETC. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN and HON'BLE MR. JUSTICE RAJESH RAI K ORAL JUDGMENT (PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN) This Writ Appeal is filed challenging the order dated 05.03.2020, passed by the learned Single Judge in W.P.No.43929/2012 c/w W.Ps.No.44708-44709/2012. 2. We have heard learned counsel appearing on either side. - 4 - NC: 2025:KHC:9715-DB WA No. 145 of 2021 3. The writ petitions were filed seeking the following prayers:- 1) Issue a writ of certiorari and quash the order dated 05.10.1985 passed by the Assistant commissioner, Bhadravathi in Order No.PTCL CR 662/92-83 produced as Annexure A. 2) Issue a writ of certiorari and quash the operation of the order dated 07.10.2004 passed by the Deputy Commissioner, Shimogga in case No.SC ST 01/03-04 produced as Annexure B 3) Issue a writ of certiorari and quash the order dated 27.07.2012 passed by the Thashildar, Bhadravathi in Case No.21/11-12 produced at Annexure-C. 4) Issue such other writ or orders as deemed fit according to the circumstances of the case. 4. It is submitted by learned counsel appearing for the appellants that the land measuring 3 acres bearing Sy.No.20/21 of Mosarahalli Village, Bhadravathi Taluk, was originally granted to one Kenchappa by the Government/Revenue authorities vide memo No.M4 DD 3/55-56, DAR 5/54-55 dated 09.03.1957. The said Kenchappa sold the land under a registered sale deed dated - 5 - NC: 2025:KHC:9715-DB WA No. 145 of 2021 05.06.1962 for valuable consideration to the father of appellant No.1, who along with appellant No.1, has been in continuous possession and enjoyment of the said land. The appellants have been solely dependent on the income derived from the said land for their livelihood. After a lapse of nearly 20 years, proceedings were initiated under the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 ('PTCL Act' for short) for restoration of the land to respondent No.2, alleging violation of the non-alienation clause. Consequently, by the order dated 05.10.1985, the Assistant Commissioner resumed and restored the land to respondent No.2. The appellants challenged the same in appeal No. SCST 116/1985-86 before respondent No.1. Respondent No.1 by the order dated 17.12.1985, rejected their prayer for stay. Aggrieved by the order of respondent No.1, the appellants filed W.P.Nos.20065-20066/1985 before this Court, which directed disposal of the appeal after considering all contentions, including that Kenchappa had died in 1994 and that his mother, being the sole legal heir, had passed away - 6 - NC: 2025:KHC:9715-DB WA No. 145 of 2021 without leaving behind any further legal heirs. Thereafter, by order dated 29.07.1999, respondent No.1 dismissed the appeal. The appellants challenged this order as well as that of the order of respondent No.2 by filing W.P.No.31979/2000, wherein the learned Single Judge, by order dated 20.02.2003, quashed the impugned orders and remanded the matter to respondent No.1 for a fresh hearing restricted to the issue of whether the original grantee belonged to the SC/ST community, after affording the parties an opportunity of hearing. Being dissatisfied with the limited scope of remand, the appellants filed W.A.No.3012/2003 contending that they ought to have been permitted to raise all their contentions. The Division Bench, by order dated 24.02.2004, held that the appellants may raise all other contentions, including adverse possession. 5. It is submitted that subsequently, respondent No.1, by order dated 07.10.2004, dismissed the appeal and directed resumption of land to the Government holding that respondent Nos.4 and 5 had failed to establish that they - 7 - NC: 2025:KHC:9715-DB WA No. 145 of 2021 were the legal heirs of the grantee and therefore, they were not entitled to restoration. Respondent No.3/Tahasildar passed an order dated 27.07.2012 for change of khata in favour of respondent No.4 and one Thimmaiah. Aggrieved by the same, the appellants filed W.P. No.43929/2012 and W.P. Nos.44708–709/2012, which came to be dismissed by the impugned order dated 05.03.2020. Being aggrieved by the said order, the appellants preferred the present appeal. 6. It is contended by the learned counsel appearing for the appellants that the Division Bench of this Court by its order dated 24.02.2004, in W.A.No.3012/2003 categorically permitted the appellant to raise all their contentions before respondent No.1. However, respondent No.1, contrary to said direction, passed an order dated 07.10.2004 addressing only the issue, whether the original grantee - Kenchappa, belonged to the SC/ST community. Respondent No.1 erroneously concluded that the appellants had failed to prove that Kenchappa was not an SC/ST, thereby ordering resumption of land. - 8 - NC: 2025:KHC:9715-DB WA No. 145 of 2021 7. The appellants further contended that the burden of proof as to whether Kenchappa belonged to the SC/ST community lay upon the applicant seeking restoration under the provisions of the PTCL Act. Despite the applicant having failed to adduce any reliable evidence to establish such status, respondent No.1 illegally shifted the burden upon the appellants holding that they had failed to disprove that Kenchappa belongs to SC/ST. Although respondent No.1 correctly found that respondent Nos.4 and 5 failed to establish themselves as the legal heirs of the grantee Kenchappa, he erroneously proceeded to hold that the conditions of grant were violated and ordered resumption of the land to the Government. This was done without any suo moto action having been initiated by the State. The application ought to have been dismissed on this ground alone. Additionally, the land in question was granted at a market or upset price and therefore, no non- alienation clause could legally be imposed under the prevailing Land Revenue Rules. Even if such a clause was - 9 - NC: 2025:KHC:9715-DB WA No. 145 of 2021 included in the saguvalli chit, the same was legally unenforceable and void ab initio. 8. The appellants have been in continuous, open and uninterrupted possession and enjoyment of the land since 05.06.1962, initially through the father of appellant No.1 and thereafter in their own right. Their possession has been adverse to the original grantee and the Government for more than 30 years, thereby perfecting title through adverse possession. Respondent No.1 as well as the learned Single Judge failed to appreciate this vital aspect and the binding precedent laid down by the Apex Court in Hutchegowda v. Chennigegowda, reported in ILR 1952 KAR 49, which clearly supports the appellants’ claim of adverse possession extinguishing any title of the grantee or the State. 9. The jurisdictional aspects, the nature of the grant and the inapplicability of the Act have been ignored, especially in light of the Division Bench judgment in Pedda Reddy v. The State of Karnataka reported in ILR 1993 - 10 - NC: 2025:KHC:9715-DB WA No. 145 of 2021 KAR 551. Respondent No.3 further erred in changing the khata in favour of respondent No.4 and another, despite there being no legal basis or order of restoration in their favour and despite a categorical finding by respondent No.1 that respondents No.4 and 5 had failed to prove their status as legal heirs. 10. It is contended by the learned counsel appearing for respondent No.4 that the writ petition was filed belatedly, challenging Annexures-A and B after an unexplained delay of 8 years and in respect of Annexure-C, the appellants/petitioners had an alternative statutory remedy under the Karnataka Land Revenue Act, 1964, which was not availed. The writ petitioners claimed that their sole livelihood depended on the land in Sy.No.20/21, Mosarahalli Village, purchased in the year 1962, which they were in continuous possession of. However, respondent No.4 disputed the financial hardship pleaded, asserting that the petitioners owned multiple properties in Bhadravathi Taluk with substantial income. An RTC extract reflecting - 11 - NC: 2025:KHC:9715-DB WA No. 145 of 2021 such ownership was produced and marked as Annexure-R1. Additionally, it was pointed out that the petitioners admitted their unauthorized possession over Sy.No.20/21 of the Mosarahalli village. 11. By denying the petitioners' allegations regarding restoration proceedings under the PTCL Act initiated in 1982 by respondents No. 4 and 5, it was clarified that the Tahsildar submitted a report on 31.07.1982, based on which, the Assistant Commissioner suo motu initiated proceedings. A show-cause notice dated 17.03.1983 was issued to the purchaser, Shri B.N. Ningaiah, who failed to file objections. Upon enquiry, the Assistant Commissioner found that the land was granted to a Scheduled Tribe person and sold during the non-alienation period, which was contrary to Section 4(1) of the PTCL Act. Consequently, the order dated 05.10.1985 declared the sale as void and ordered for restoration. 12. The grantee- Shri Kenchappa died on 25.01.1994 during the pendency of proceedings before respondent - 12 - NC: 2025:KHC:9715-DB WA No. 145 of 2021 No.1- Deputy Commissioner. His legal representatives were not brought on record and resulted in the order dated 29.07.1999 which was passed against a deceased person. The learned Single Judge by the order dated 20.02.2003 passed in W.P.No.31979/2000, quashed the orders dated 05.10.1985 and 29.07.1999 and remanded the matter to the Deputy Commissioner for fresh disposal after determining whether the original grantee belonged to an SC/ST community. Respondent No.4 contended that a caste certificate at Annexure-R2 had already confirmed Kenchappa’s Scheduled Tribe status and the Deputy Commissioner, by order dated 07.10.2004, considered all necessary aspects, including the claim of adverse possession, violation of grant conditions and absence of title with the appellants and ordered restoration of land. 13. Respondent No.4 highlighted that the petitioners failed to challenge the order dated 07.10.2004 in time. The Mutation ordered by the Tahsildar on 27.07.2012 in favour of respondent No.4 and one Thimmaiah, based on their - 13 - NC: 2025:KHC:9715-DB WA No. 145 of 2021 legal entitlement, was claimed to be proper and lawful. Further, respondent No.4 refuted the allegations that the Tahsildar blindly ordered mutation and reiterated that the petitioners had already admitted the status of respondents No.4 and 5 as legal heirs of Kenchappa in their written statement in O.S.No.612/2012. It was further contended that the petitioners’ plea of acquiring title by adverse possession was untenable in law. Pursuant to legal restoration proceedings, respondent No.4 was put in possession on 27.11.2020 as per mahazar and has since been in lawful possession, as is evidenced by Annexure-R4. 14. It is also contended that the allegations regarding financial hardship and sole dependency on the said land were described as attempts to evoke misplaced sympathy. The application seeking to produce additional documents was described as vexatious and intended to mislead the Court, especially when the documents cited were inapplicable to the facts of the present case. It was further contended that the impugned order dated 29.07.1999 rightly concluded that the land was granted free - 14 - NC: 2025:KHC:9715-DB WA No. 145 of 2021 of cost and that adverse possession against the Government had not been proved. 15. The learned Single Judge found that as on the date of grant of the land in question, the rules prevailing provided for non-alienation of land for a period of 15 years. The land was sold in the year 1962. It is thereafter that the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 ('PTCL Act' for short) came into force on 01.01.1979. An application for restoration was moved before the Assistant Commissioner in 1982 and the same was allowed. The learned Single Judge held that there was no error in the order passed by the Assistant Commissioner or the Deputy Commissioner and that the petitions being devoid of merits were dismissed. 16. It is submitted that the issues stand covered by the judgment of a Division Bench of this Court in WA No.898/1993 c/w. WA No.449/2020 by judgment dated 23.04.2021. It was held that the proceedings initiated - 15 - NC: 2025:KHC:9715-DB WA No. 145 of 2021 under Section 5 of the PTCL Act in 1982 was delayed and the authorities were not justified in ordering resumption of land in favour of the grantee/legal heirs after such an inordinate delay. It is submitted that a review petition in R.P.No.270/2021 filed against the said judgment which was pending before a co-equal Bench has also been dismissed on 07.01.2025. 17. In the above view of the matter, the finding of the learned Single Judge that the application filed in the year 1982 for restoration was not belated and cannot be accepted. The said judgment therefore requires to be set- aside. Accordingly:- (i) The appeal is allowed. (ii) The judgment dated 05.03.2020 passed in W.P.No.43929/2012 and W.Ps.No.44708- 44709/2012 by the learned Single Judge shall stand set aside. (iii) W.P.No.43929/2012 and W.Ps.No.44708- 44709/2012 shall stand allowed. - 16 - NC: 2025:KHC:9715-DB WA No. 145 of 2021 All pending IA's are disposed of. Sd/- (ANU SIVARAMAN) JUDGE Sd/- (RAJESH RAI K) JUDGE RAK,List No.: 1 Sl No.: 5