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PETITIONER: PAPAIAH

       Vs.

RESPONDENT: STATE OF KARNATAKA & ORS.

DATE OF JUDGMENT:       23/08/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R Leave granted.      We have heard learned counsel on both sides.      This appeal  by special  leave arises from the order of the High  Court of  Karnataka dated  19.9.1990  made  in  WA No.494/90. The admitted facts are that the respondents 4 and 5, by  name Doddaramaiah  and Chikkaramaiah,  sons  of  late Gurappa of Bangalore were granted five acres of agricultural land under  Rule 43  (8) of  the Mysore Land Revenue Code on February 13,  1940 for  use and  enjoyment of the Government land. Rule 43 (8) reads as under:      "Occupancies granted  to applicants      belonging  to   Depressed   Classes      under Rule  43(5) above  and  those      granted by Government free of upset      price or  reduced  upset  price  to      poor and  landless people  of other      communities   or    to    religious      charitable institutions,  shall not      be alienated and the grantees shall      execute  Mutchalikas  in  the  form      prescribed  by   Government.   This      shall not,  however, prevent  lands      granted to  Depressed classes under      Rule  43(5)   being   accepted   as      security for  any loan  which  they      may wish  to obtain from Government      of from  a Co-operative society for      the bonafide  purposes of improving      the land.:      A reading  of the  said rule would indicate that with a view to  augment the  economic conditions  of the  Scheduled Castes, Scheduled  Castes and  other weaker  sections of the society, Government  may assigned  the land  to them  or  to cooperative societies composed of them. It is not in dispute that the appellant had purchased the land from the assignees under a  registered sale  deed on  December  19,  1958.  The

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Karnataka Legislature  enacted Karnataka  Scheduled Castes & Schedules Tribes  (prohibition of transfer of certain lands) Act, 1978 [for short, the "Act"] declaring alienation by the assignee-Schedules Castes  and Schedules Tribes, as void and inoperative. Procedure  has been  prescribed for restoration of the  lands the  assignees or  if they  not available, the land resumed  be assigned  to eligible  persons  from  those classes. In  furtherance thereof,  thee respondents  4  &  5 filed an  application under  Section 4 & 5 of the Act before the competent authority on April 22, 1985 for restoration of the land.  The competent  authority allowed  the application which was  confirmed on  appeal  and,  therefore,  the  writ petitions came  to be dismissed. Thus this appeal by special leave.      Sri P.R.Ramasesh,  learned counsel  for  the  appellant contended that  there was  no  prohibition  as  against  the appellant, since  he obtained  the title after the expiry of ten years from the date of the assignment by the Government. The appellant  had perfected  title by  adverse  possession. Therefore, the  Act is  inapplicable to such a situation. In support of  his contention,  he sought  to place reliance on the judgment  of this  Court in  K.T. Huchegowda  Vs. Deputy Commissioner & Ors. [1994 (3) SCC 536].      Sri Kapil  Sibal, learned  senior counsel appearing for the  respondents,  contended  that  the  appellant  had  not pleaded adverse  possession ass  against the  State. He came into  possession   by  virtue   of  a  title  obtained  from respondents 4 and 5. The sale is void and against the public policy.  His   contention  of   adverse  possession  against respondents, though  was raised before the primary authority and the  appellate authority and was negatived the same, was not canvassed  before the  High Court.  The only  contention raised before  the High  Court was  as to the estoppel which was rightly  negatived. Under those circumstances, the ratio of Hochegowdh case [supra] has no application. In support of his contention, he placed reliance on other judgment of this Court on  the case  of R.  Chandevarappa etc.  Vs. State  of Karnataka & Ors. etc. etc. [1995 (5) SCALE 620]. In view  of the  rival contention raised on both  sides, the questions that  arise for  consideration  are:  whether  the respondents 5  and 6  who have  alienated the  land  to  the appellant are estopped to challenge the sale and whether the sale is valid and also whether appellant perfected his title by adverse possession as against the State? It is  seen that Article 46 of the Constitution, in terms of its Preamble,  enjoins upon  the State  to provide  economic justice to  the Scheduled Castes, Scheduled Tribes and other weaker  sections   of  the  society  and  to  prevent  their exploitation. Under  Article 39 (b) of the Constitution, the State is  enjoined to  distribute its largess, land, to sub- serve the  public good. The right to economic justice to the Scheduled Castes,  Scheduled Tribes  and other  weaker is  a fundamental right  to secure equality of status, opportunity and liberty.  Economic justice is a facet of liberty without which equality  of status  and dignity of person are teasing illusions. In  rural India, land provides economic status to the owner.  The State,  therefore, is  under  constitutional obligation to  ensure to them opportunity giving its largess to the  poor to  augment their economic position. Assignment of  land  having  been  made  in  furtherance  thereof,  any alienation, in  its contravention,  would  be  not  only  in violation of  the constitutional  policy but also opposed to public policy under Section 23 of the Contract Act. Thereby, any alienation  made in  violation thereof  is void  and the purchaser does  not get  any valid  right, title or interest

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thereunder.  It  is  seen  that  Rule  43  (a)  specifically prohibits alienation of assigned land. It does not prescribe any limitation  of time  as such.  However, it  is contended that the  appellant has obtained land by way of sale in 1958 long before the Act came into force and thereby he perfected his title  by  adverse  possession.  We  find  no  force  in contention. This  Court  had  considered  this  question  in similar circumstances  R. Chandevarappa’s  case and had held thus:      "The question  then is  whether the      appellant has  perfected his  title      by adverse  possession. It  is seen      that a contention was raised before      the Assistant Commissioner that the      appellant   having    remained   in      possessions from 1968, he perfected      his title  by  adverse  possession.      But   thee    crucial   facts    to      constitute adverse  possession have      not been  pleaded.  Admittedly  the      appellant came into possession by a      derivative title  from the original      grantee.  It   is  seen   that  the      original grantee  has no  right  to      alienate   the   land.   Therefore,      having come  into possession  under      colour  of   title  from   original      grantee, if  the appellant  intends      to  plead   adverse  possession  as      against the State, he must disclaim      his title  and  plead  his  hostile      claim to the knowledge of the State      and that  the within  the State had      not taken any action thereon within      the prescribed period. Thereby, the      appellant’s possession would become      adverse. The  counsel in  fairness,      despite his  research, is unable to      bring to  our notice  any such plea      having   been    taken    by    the      appellant."      The ratio thereof squarely applies to the facts in this case.      In K.T. Huchegowda’s case [supra] neither this question was considered  nor the  validity of  the Rule has been gone into. Therein,  this Court  had gone  into the  question  of adverse possession  as against  the  purchaser  but  not  as against the State. Unless the purchaser derives valid title, the question  of title  does not arise. If he remained to be in  possession   in  his   own  right  de  hors  the  title, necessarily he has to plead and prove the date from which he disclaimed  his  title  and  asserted  possessory  title  as against the  State  and  perfected  his  possession  to  the knowledge of  the real owner, viz., the State, in this case. Such a  plea was  neither  taken  nor  argued  nor  was  any evidence  adduced  in  this  behalf.  The  plea  of  adverse possession  as   against  the  State  does  not  arise  even otherwise as  the proceedings were laid before the expiry of a period  of 30  years. The question of estoppel against the respondent does  not arise   as  the Act  voids the sale and thus there would be no estoppel against the Statute.      The appeal is accordingly dismissed. No costs.