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Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.4150-4163 OF 2013

NI PRA CHANNABASAVA DESHIKENDRA    …APPELLANT SWAMIGALU MATADHIPATHIGALU KANNADA MUTT    

VERSUS

C.P. KAVEERAMMA & ORS.    …RESPONDENTS

J U D G M E N T

Fakkir Mohamed Ibrahim Kalifulla, J.

1. Unsuccessful appellant in the Writ Appeal before the  

Division Bench of the High Court of Karnataka at Bangalore  

is the appellant before us.  This appeal is directed against  

the common judgment in W.A. Nos. 1936/2005 (LR) along  

with  W.A.  Nos.  1941/2005,  1946/2005  and  2202  of  

2005(LR).  The appellant is a religious Mutt called ‘Kannada  

Mutt’.  Land of 197 acres was granted as Jagir to the Mutt in  

Survey Nos. 9, 10, 12 and 13 of Bettegeri village, Ammathy  

Hobli, Virajpet Taluk, Coorg District in the year 1809 by the  

then  Ruler  of  Kodagu,  Sri  Veerarajendra  Wodeyar.  By  a  

mortgage deed dated 1.3.1955, the predecessor of present  

Mathadhipathi  stated  to  have  mortgaged  possession  of  

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175.60 acres  out  of  197 acres  of  lands  in  favour  of  the  

predecessor-in-title of the present contesting respondents.  

By yet another mortgage deed dated 5.4.1967, a second  

mortgage  deed  in  favour  of  the  very  same  parties  in  

respect of 17 acres of land was stated to have been made.  

The mortgages were made for a period of 99 years.

2. Be that  as it  may,  on 18.5.1978,  Karnataka Certain  

Inams Abolition Act, 1977 (hereinafter called as the “1977  

Act”)  came  into  force  and  the  effective  date  was  

01.03.1974.  By virtue of Section 4(2)(b) of the 1977 Act all  

Inams that were existing on that date stood abolished with  

effect from 01.03.1974, namely, the effective date.  After  

the coming into force of the 1977 Act,  the Mutt filed an  

application on 25.6.1987 for grant of occupancy rights in  

respect of the entire lands.  By order dated 11.02.1993, the  

appellant’s application was allowed by the Land Tribunal.  

The  respondents,  based  on  the  rights  flowing  from  the  

mortgage  deeds,  also  claimed  occupancy  rights  on  the  

ground that they were the tenants of the land in question.  

Their application was rejected.  There was a challenge at  

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the instance of the respondents to the grant of occupancy  

rights in favour of the appellant, as well as, the rejection of  

their  rights  in  W.P.No.6379/1993.  The  Writ  petition  was  

allowed  by  the  learned  Single  Judge  and  the  grant  of  

occupancy rights in favour of the appellant was set aside.  

The  appellant  filed  Writ  Appeal  No.  5689/1997  and  the  

respondent also challenged the very same order by filing  

Writ Appeal No. 5816/1997.

3. The appeal filed by the appellant was allowed and the  

order of the Learned Single Judge was set aside and the  

order of the learned Tribunal granting occupancy rights in  

favour  of  the  appellant  was  restored.   The respondents’  

Writ Appeal was dismissed.  It is relevant to note that the  

said order of the Division Bench was not challenged further  

by the respondents and, thereby, grant of occupancy rights  

in favour of the appellant was confirmed.  Subsequently,  

Form No.2  -  Certificate  was also  issued in  favour  of  the  

appellant on 15.4.2000 representing the Mutt.

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4. By virtue of Section 3(2) of the 1977 Act, the words  

and expressions used, but not defined in the 1977 Act, shall  

have the meaning assigned to them under the Act or the  

Karnataka Land Reforms Act, 1961.  Under Section 11, the  

procedure for registration as an occupant has been set out,  

which states that every person entitled to be registered as  

an  occupant  under  the  1977  Act,  should  make  an  

application to the Tribunal constituted under the Karnataka  

Land Reforms Act,  1961 on or  before 31st day of  March,  

1991 and that the said application should be disposed of by  

the Tribunal as if it is an application made under that Act.  

Under Section 41(2)  of  the Karnataka Land Reforms Act,  

1961,  the  procedure  has  been  prescribed  as  to  how  a  

landlord should obtain the possession of any land, dwelling  

house or site held by a tenant, except under the order of  

the  Tehsildar  by making application under the prescribed  

format.  Under Section 126 of the 1961 Act, it is specified  

that  for  the  removal  of  doubts,  it  was  declared  that  

provisions of the 1961 Act, insofar as they confer any rights  

or  impose obligations  on tenants  and landlords,  shall  be  

applicable to tenants holding lands in the  Inam and other  

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alienated villages or lands including tenants referred to in  

Section 8 of the Village offices’ Abolition Act, 1961, subject  

to  the  provisions  of  the  1977  Act  and  to  landlords  and  

Inamdar holding in such villages or lands.  Section 130 of  

the  1961  Act  empowers  the  Tehsildar concerned  to  

summarily  evict  any  person  unauthorizedly  occupying  or  

wrongfully in possession of any land and also to make such  

orders as regards to the disposal of such land, as it deems  

fit.   Section 132 of  the 1961 Act  bars the jurisdiction of  

other  Courts  to  settle,  decide or  deal  with any question,  

which is by or under the 1961 Act required to be settled,  

decided or dealt with by the authorities concerned.

5. The  appellant  approached  the  Tehsildar of  Virajpet  

Taluk alleging that the respondents were in unauthorised  

possession and having regard to the coming into force of  

1977 Act w.e.f. 1.3.1974 and the order of the Land Tribunal  

dated  11.2.1993,  they  are  liable  to  be  evicted  and  the  

possession to be handed over to the appellant.  By order  

dated  28.8.2004,  the  Tehsildar allowed  the  appellant’s  

application and directed eviction of the respondents. Based  

on the said order, the appellant was put in possession by  

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the  Mahazar,  drawn  by  Revenue  Inspector  of  Ammathy  

Hobli on 31.8.2004. The handing over of the possession of  

the lands in question was effected in the presence of the  

Tehsildar Virajpet  Taluk,  Hosur  circle  and  the  

Panchayatdars.  

6. The  respondents  challenged  the  said  order  of  the  

Tehsildar in Writ Petition No.36175/2004 & 36529-32/2004.  

The  Single  Judge  among  other  issues,  considered  the  

question about  the jurisdiction of  the  Tehsildar and held  

that  the  Tribunal  under  the  Land  Revenue  Act  had  

jurisdiction  over  the  lands  in  question  and  that  the  

Tehsildar was  entitled  to  consider  the  application  of  the  

appellant filed in Form No.5.  However, the Learned Judge  

found that there were serious irregularities in the matter of  

passing  of  the  order  by  the  Tehsildar and consequently,  

while setting aside the order of the  Tehsildar, directed re-

delivery  of  possession  to  the  respondents  pending  final  

orders and further directed the  Tehsildar to consider the  

case afresh on merits and take an independent decision in  

accordance  with  law  after  hearing  the  parties  and  pass  

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orders within four months from the date of the order of the  

Learned Judge, which was dated 1.2.2005.

7. The appellant preferred appeals against the said order  

in Writ  Appeal  Nos.1946-48/2005, which were considered  

by  the  Division  Bench along with  Writ  Appeal  Nos.1936-

40/2005  and  1941-45/2005.   The  Division  Bench  passed  

orders on 12.9.2007 holding that the provisions of the Land  

Reforms Act were not applicable to the case on hand and,  

therefore,  exercise  of  jurisdiction  by  the  Tehsildar under  

the provisions of  Land Reforms Act,  was bad in  law and  

without  jurisdiction.   The order  of  the  Tehsildar was  set  

aside  and  consequently  the  order  of  the  Learned  Single  

Judge  was  also  set  aside.   The  appellant  preferred  Civil  

Appeal Nos.1040-53/2009 against the said common order  

of the Division Bench dated 12.9.2007.  The Civil Appeals  

were allowed by this Court by order dated 13.2.2009.   

8. In the said Civil Appeals, contentions were raised on  

behalf of the respondents by relying upon Section 43 of the  

Transfer  of  Property Act,  apart  from contending that  the  

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respondents  were  entitled  to  rely  upon  the  mortgage  

executed in their favour in the year 1955 and 1967.  It was  

also contended that by virtue of Section 10 of 1977 Act, the  

respondents  were  entitled  to  rely  upon  the  mortgage  

granted  in  their  favour  by  the  appellant  Mutt.   While  

allowing the Civil Appeals and setting aside the order of the  

Division  Bench,  this  Court  considered  all  the  above  

submissions  raised  on  behalf  of  the  respondents  and  

rejected them.  It was lastly pleaded before this Court that  

apart from Section 43 of the Transfer of Property Act and  

Section  4(2)(b)  of  the  1977  Act,  there  were  other  

submissions  made  by  the  respondents,  which  were  not  

considered by the High Court.   Taking note of the above  

submissions made on behalf of the respondents, even while  

allowing  the  Civil  Appeals  and  without  expressing  any  

opinion  about  the  acceptability  of  any  such  stand,  the  

judgment  of  the  Division  Bench  was  set  aside  and  the  

matter  was  remitted  back  to  the  High  Court  for  fresh  

consideration making it clear that the issue relating to the  

applicability  of  Section  43  stood  closed  by  virtue  of  the  

judgment.  

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9. It  is  in  the  abovesaid  background,  the  present  

impugned order of the Division Bench dated 15.6.2009, has  

been  passed  wherein,  the  Division  Bench  proceeded  to  

examine the following two issues, namely:

“1. Whether  an  Inamdar who  has  been  granted occupancy rights under the Inam  Abolition  Act  can  invoke  Section  41  to  recover possession from a person who is  not a tenant of the land in question?

2. Whether  the  order  passed  by  the  Tahsildar is sustainable on merits?”

10. While  dealing  with  the  above  issues,  the  Division  

Bench proceeded to hold that Section 41 of the Karnataka  

Land  Reforms  Act,  which  prescribed  the  procedure  for  

taking  possession,  was  not  applicable,  inasmuch  as,  the  

jural  relationship  of  landlord  and  tenant  between  the  

appellant and respondents did not exist.  While dealing with  

Section 126 of the Land Reforms Act, the Division Bench  

took  the  view  that  the  said  provision  can  have  no  

application  to  a  case  where  rights  of  a  mortgagee  in  

possession  were  prevailing.   In  the  light  of  the  above  

conclusion, the Division Bench held that Section 130 of the  

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Land Reforms Act for summary eviction of any person in  

unauthorised  occupation,  cannot  also  be  invoked.  

Ultimately, on Point No.2, the Division Bench taking note of  

the  serious  irregularities  committed  by  the  Tehsildar in  

passing the order took the view that such order came to be  

passed by the Tehsildar by manipulating proceedings and,  

therefore, set aside the order of the Tehsildar and also held  

that no remand was called for.  The appeals filed by the  

appellant  were  dismissed  and  the  appeal  filed  by  the  

respondent was allowed.  The application of the appellant  

filed  in  Form  No.5  under  the  Land  Reforms  Act,  was  

rejected  as  not  maintainable.   The  Division  Bench  also  

imposed costs to be paid by the Tehsildar in the sum of Rs.  

10,000/- to the respondents.

11. We  heard  Mr.  S.M.  Chandrashekhar,  learned  senior  

counsel for the appellant and Mr. P.  Vishwanatha Shetty,  

learned  senior  counsel  for  the  respondents.   We  also  

perused the earlier orders passed by this Court by which  

the  matter  was  remitted  back  to  the  Division  Bench  to  

consider  some of  the submissions other  than what  were  

earlier made and covered by the orders of this Court.

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12. The main  grievance of  the  appellant  was that  after  

securing occupancy rights under the provisions of the 1977  

Act,  since by virtue of  Section 4(2)(b),  all  encumbrances  

created prior to coming into force of the Act having been  

extinguished statutorily, and the lands having been vested  

with the State, free from all encumbrances before the grant  

of occupancy rights in favour of the appellant, no further  

right could have existed in favour of the respondents,  in  

order to make a claim based on the mortgages of the year  

1955  and  1967.   Apart  from the  said  claim in  all  other  

respects, there was no right in the respondents since their  

claim  for  occupancy  right  was  rejected  as  early  as  on  

11.2.1993, when the said rights of the appellant came to be  

crystallized by the said date under the provisions of  the  

1977 Act.  Though the said order was challenged by the  

respondents, the challenge was not accepted and thereby,  

the issue became concluded once and for all.  Thereafter,  

the only other question to be considered was as to how the  

said crystallized rights of the appellant under the provisions  

of  the  1977  Act,  is  to  be  worked  out  for  restoring  its  

possession in the lands in question.  Though the appellant  

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stated to have invoked Section 41 of the Land Reforms Act  

to work out its remedy for getting possession, when it came  

to  the  question  of  ascertaining  the  jurisdiction  of  the  

Tehsildar to  examine  the  claim  of  the  appellant  for  

restoring possession, the respondents once again projected  

their claim based on the mortgages of the year 1955 and  

1967 and further stated that the respondents were neither  

a  tenant,  nor  can  they  be  held  to  be  in  unauthorised  

possession,  in  order  to  invoke  Section  130  of  the  Land  

Reforms Act.

13. In  the  earlier  round  of  litigation,  these  very  issues  

were examined by both the Learned Single Judge as well as  

by the Division Bench of the High Court.  As noted by us  

earlier, the learned single Judge rejected the stand of the  

respondents about the lack of jurisdiction of the  Tehsildar  

but nonetheless, set aside the order of the Tehsildar on the  

sole  ground  that  there  was  serious  malpractice  in  the  

passing of the ultimate order, directing handing over of the  

possession.   The learned Judge,  therefore,  set  aside that  

part of the order and remitted the matter back for passing  

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fresh orders.   However,  the Division Bench proceeded to  

hold that the Tehsildar lacked jurisdiction since the rights of  

the  respondents  as  mortgagee,  prescribed  a  different  

status for the respondents and consequently the invocation  

of Section 41 or Section 130 of the Land Reforms Act, could  

not  have been invoked.   It  was at  that  stage,  the issue  

came  to  be  considered  by  this  Court  in  Civil  Appeal  

Nos.1040-1053/2009 in the order dated 13.2.2009.

14. The substantial issues dealt with by the Division Bench  

in its  earlier  order dated 12.9.2007, which examined the  

question of jurisdiction of the  Tehsildar, while considering  

the claim of the respondents based on Section 43 of the  

Transfer  of  Property  Act;  based  on  concept  ‘feeding  the  

grant by estoppel’, accepted the stand of the respondents.  

At that junction, this Court found that by virtue of Section  

4(2)(b)  of  the  1977  Act,  the  said  submission  based  on  

Section 43 of the Transfer of Property Act, by relying upon  

the mortgages of the year 1955 and 1967, cannot survive.  

Even the submission based on Section 10 of the 1977 Act  

was also  rejected.   Though what  exactly  were the other  

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submissions  which  were  not  considered  by  the  Division  

Bench were not specifically noted, in our considered view,  

there could not have been any submission relating to the  

jurisdiction  of  the  Tehsildar’ for  working  out  or  

implementing  the  grant  of  occupancy  rights  granted  in  

favour of the appellant, by order dated 11.2.1993. In that  

context, the power of the Tehsildar to invoke Section 130 of  

the Land Reforms Act for granting the relief cannot be held  

to be not sustainable.  Unfortunately, after the remand, we  

find that by framing the two issues in the order impugned  

in these appeals, which have been extracted in the earlier  

part of our order, the Division Bench proceeded to reopen  

the very same questions, which were already dealt with in  

substratum  in  the  earlier  judgment  of  this  Court  dated  

13.2.2009.  When once this Court held that Section 43 of  

the Transfer of Property Act could not come to the aid of  

the respondents, any right based on the mortgages of the  

year 1955 and 1967 no longer survived for consideration.  

Since Section 10 of the 1977 Act was also held to be not  

applicable to the case of the respondents, the only other  

question  which  could  have  been  examined  in  all  

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probabilities was one relating to the manner in which the  

earlier  order  came to be passed by the  Tehsildar, which  

was found to be not properly done as held by the Learned  

Single  Judge  in  order  dated  01.02.2005  in  the  Writ  

Petitions, which disclosed that there were certain serious  

irregularities or malpractices in the passing of the order by  

the  Tehsildar  dated  28.8.2004  and  the  consequential  

Mahazar dated 31.8.2004.  In fact, the Learned Single Judge  

rightly set aside the above orders of the Tehsildar on that  

ground and remitted the matter back to the  Tehsildar for  

passing fresh orders in accordance with law.

15. We  are  convinced  that  in  the  light  of  our  above  

conclusions,  it  will  have  to  be  held  that  the  continued  

possession of the respondents after the grant of occupancy  

rights  in  favour  of  the  appellant  in  the  order  dated  

11.2.1993, should be construed as unauthorized and there  

was every right in the appellant to invoke the protection of  

the Land Reforms Act for  the purpose of working out its  

remedy  by  taking  recourse  to  law  for  implementing  the  

order dated 11.2.1993.   

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16. In this  context,  it  will  be worthwhile to  refer  to  the  

decision of this Court reported in Mohammad Swalleh &  

Ors. V. IIIrd Addl. District Judge, Meerut & Anr. -AIR  

1988 SC 94.  In paragraph 7 while dealing with a converse  

case, this court held as under:

“7. It  was  contended  before  the  High  Court  that  no  appeal  lay  from  the  decision  of  the  Prescribed Authority to the District Judge. The  High Court accepted this contention.  The High  Court  finally  held  that  though the appeal  laid  before  the  District  Judge,  the  order  of  the  Prescribed Authority was invalid and was rightly  set aside by the District Judge.  On that ground  the  High  Court  declined  to  interfere  with  the  order  of the learned District  Judge.   It  is  true  that  there  has  been  some  technical  breach  because  if  there  is  no  appeal  maintainable  before the learned District Judge, in the appeal  before  the  learned  District  Judge,  the  same  could not be set aside. But the High Court was  exercising its  jurisdiction under Art.226 of the  Constitution.  The High Court had come to the  conclusion  that  the  order  of  the  Prescribed  Authority was invalid and improper.  The High  Court itself could have set it aside.  Therefore,  in  the  facts  and  circumstances  of  the  case  justice  has  been  done  though,  as  mentioned  hereinbefore,  technically  the  appellant  had  a  point  that the order  of  the District  Judge was  illegal and improper.  If we reiterate the order of  the High Court as it is setting aside the order of  the  Prescribed  Authority  in  exercise  of  the  jurisdiction  under  Art.226  of  the  Constitution  then no exception can be taken.  As mentioned  hereinbefore, justice has been done and as the  improper order of the Prescribed Authority has  been set aside, no objection can be taken.”

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17. Applying  the  above  said  principle,  we  are  also  

convinced that the appellant by invoking the extraordinary  

jurisdiction of the High Court under Article 226 can seek for  

passing a justiciable order.

18. Having regard to our above conclusion based on the  

earlier  order  dated  13.2.2009  and  the  limited  scope  of  

consideration  directed  to  be  made,  while  remitting  the  

matter back to the Division Bench, the present order of the  

Division Bench cannot be sustained.  We also hold that the  

Tehsildar, had every jurisdiction to deal with application of  

the appellant for working out its remedy based on the grant  

of occupancy rights in its favour in the proceeding dated  

11.2.1993, which has become final and conclusive.  Since it  

was extensively pointed out by the learned Single Judge in  

the  order  dated  1.2.2005,  as  well  as  in  the  present  

impugned order highlighting the malpractices indulged in  

by  the  Tehsildar,  while  passing  the  order  directing  

possession in favour of the appellant and while upholding  

the order of the learned Single Judge referred to above, the  

order of remand passed by the learned Single Judge stands  

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restored.  We, however, make it clear that the only issue  

which can be examined by the Tehsildar can be with regard  

to the claim of the appellant for restoring possession based  

on  the  grant  of  occupancy  rights  in  its  favour,  by  the  

proceeding dated 11.2.1993.  It is further made clear that  

this order of remand to the Tehsildar, shall not entitle the  

respondents to raise any issue relating to the jurisdiction of  

the Tehsildar, in particular, based on the mortgages of the  

year 1955 and 1967.

19. The appeals stand allowed with the above directions.  

In light of the fact that the issue is pending for nearly two  

decades, we direct the  Tehsildar to hear the parties and  

after giving due opportunity to put forth their submissions,  

pass  final  orders  in  accordance  with  law  expeditiously,  

preferably within three months from the date of receipt of  

copy of this order.

……….……….…………………………...J.                                 [Dr. B.S. Chauhan]

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Page 19

   ……….…….………………………………J.

                    [Fakkir Mohamed Ibrahim  Kalifulla]

New Delhi;  May 06, 2013

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