State Of Karnataka vs T John
2021 Latest Caselaw 1235 Kant

                            1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 20TH DAY OF JANUARY 2021

                         PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                          AND

     THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY

                 W.A. NO.375 OF 2011
                          IN
            W.P.NO.4013 OF 2007 (KLR-RES)

BETWEEN:

1.     STATE OF KARNATAKA
       REPRESENTED BY ITS
       PRINCIPAL SECRETARY
       REVENUE DEPARTMENT
       M.S.BLDGS., BANGALORE - 1.

2.     THE DEPUTY COMMISSIONER
       KODAGU DISTRICT
       MADIKERI, KODAGU

3.     THE DEPUTY CONSERVATOR OF
       FORESTS, VIRAJPET DIVISION
       VIRAJPET, KODAGU DISTRICT.

4.     THE TAHSILDAR
       MADIKERI TALUK
       KODAGU DISTRICT
       KODAGU.
                                    ... APPELLANTS

(BY MR.JEEVAN J. NEERALAGI, AGA)
                              2




AND:

1.     T. JOHN
       79 YEARS
       S/O THOMAS.

2.     THOMAS P. JOHN
       51 YEARS
       S/O T. JOHN.

3.     PAUL P. JOHN
       51 YEARS
       S/O T. JOHN.

4.     BIJJU P. JOHN
       49 YEARS
       S/O T. JOHN.

       RESPONDENT NOS.1 TO 4
       ARE ALL RESIDENTS OF
       GANAPATHY STREET
       MADIKERI - 571 001.

5.     SMT. ELIYA RAMPURAM
       MAJOR, W/O IMMANUEL
       RAMPURAM.

6.     E.E. RAMPURAM (JUNIOR)
       MAJOR, S/O RAMPURAM.

7.     SMT. ANNA THOMAS
       MAJOR, W/O RAMPURAM.

8.     PETER JOHN, MAJOR
       S/O RAMPURAM.

9.     THOMAS RAMPURAM, MAJOR
       S/O RAMPURAM.

10.    GEETHA RAMPURAM, MAJOR
                              3



     D/O RAMPURAM.
     RESPONDENTS 5 TO 9 ARE ALL
     RESIDENTS OF SAMPIGEPALLI
     ESTATE, SIDDAPUR
     KODAGU DISTRICT.
                                        ... RESPONDENTS

(BY MR. MADHUSUDHAN R. NAIK, SR. ADV. FOR
    MR. T.I. ABDULLA, ADV. FOR R1 TO R4
    MR. GANESH BHAT Y.H. ADV. FOR R5 TO R10)

                            ---

     THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE
THE ORDER PASSED IN THE WRIT PETITION NO.4013/2007
(KLR-RES) DATED 13.03.2009.


     THIS   WRIT   APPEAL    HAVING   BEEN   HEARD   AND
RESERVED ON 16.01.2021 FOR HEARING AND COMING ON
FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, ALOK
ARADHE J., DELIVERED THE FOLLOWING:


                      JUDGMENT

In this intra court appeal under Section 4 of the

Karnataka High Court Act, 1961 (hereinafter referred to

as 'the Act' for short) the appellants have assailed the

validity of the order dated 13.03.2009 passed by

learned single judge, by which writ petition preferred by

the respondents questioning the validity of the order

dated 22.01.2007 and consequential order dated

02.02.2007 passed by the Tehsildar, Madikeri has been

allowed. In order to appreciate the appellants challenge

to the impugned order the factual background needs

mention.

2. The erstwhile King of Kodagu had granted land

measuring 468 acres situate in Chelavara Village, 21

Patta to Cheravanda family in lieu of their services

rendered to palace army prior to the year 1800. The

aforesaid lands were known as 'Jamma Mallai lands'. In

1858, the British Crown passed an enactment in the

British Parliament by which East India Company was

liquidated and all the assets and colonies of East India

Company were taken over by the Crown. The 'Colony of

Coorg Province' was taken under the administration of

British Crown. Thereafter in the year 1878, Indian Forest

Act, 1878 was enacted. The Chief Commissioner of

Coorg issued a Notification under Section 28 of the Act

1878 on 15.03.1887 by which lands in question were

declared as protected forests and by another Notification

dated 06.08.1887 it was provided that the declaration

shall not abridge or affect the existing rights of the

individuals or communities in the lands in question. In

the year 1899, The 'Coorg Land and Revenue

Regulations, 1899' (hereinafter referred to as 'the

Regulations' for short) was enacted and all the lands in

Coorg Province were brought under the Regulations for

the purpose of assessment and collection of land

revenue. Thereafter, a notification/proclamation was

issued on 01.07.1902 under the Indian Forest Act, 1878

(hereinafter referred to as 'the 1878 Act' for short)

notifying certain areas in Coorg as 'Padinalakkunad

forest' (proposed reserve forest). The Chief

Commissioner of Coorg issued a declaration dated

23.04.1906 which was published in Gazette dated

01.05.1906 constituted 'Padinalakkunad forest'

(proposed reserve forest). In remarks to the said

notification, about '70 Malais' granted earlier by the

erstwhile Kings of Kodagu were exempted from the

purview of forest Act and the notification, even though

the said '70 Malais' of land were situate inside

'Padinalakkunad forest' (proposed reserve forest). Under

the British Administration, none of the Malais/Jamma

Malais were declared as reserve forest or forests and the

Malai-rights granted earlier were not disturbed.

However, the aforesaid lands were brought to

assessment under the provisions of the Regulations.

3. The lands in question were initially granted in

favour of one Patta Cheravanda family and were

recorded in the revenue records in their name. However,

the aforesaid family failed to pay the land revenue to the

State Government and was declared as defaulter under

the Regulations. The possession of the land was taken

from the aforesaid family in the year 1926 and on

15.12.1926; the lands were auctioned under the

provisions of the Regulations. The Commissioner of

Coorg by his order dated 01.07.1927 confirmed the

auction and mutation was carried out in the revenue

recorded in favour of the auction purchaser namely one

Shri Palekanda Medappa. Aforesaid Palekanda Medappa

sold the lands by a registered sale deed in the year 1940

in favour of one Rampur Immanuel. In pursuance of the

sale, on 22.09.1941 mutation was made in the revenue

records in favour of aforesaid Rampur Immanuel.

Sometime in the year 1965, aforesaid Rampur

Immanuel partitioned the property belonging to him

amongst the members of the family and subject of this

appeal was allotted to Rampur Thomas Immanuel.

4. Thereafter, aforesaid Rampur Thomas Immanuel

sometime in the year 1978, filed a civil suit namely O.S.

No.4 of 1978 before Civil Judge Madikeri seeking the

relief of declaration that he is the absolute owner of the

trees on the land situate on Survey No.129/3, 154/5,

170, 154/8, 173 and 174 of Cheleava Village,

Napoklunad in Kodagu District measuring 468 acres and

72 cents and he is entitled to cut the same without

payment of any seigniorage value. The aforesaid civil

suit was decided vide judgment and decree dated

21.07.1979. The Trial Court negatived the claim of the

plaintiff with regard to declaration of the ownership of

the trees. However, a declaration was granted in favour

of the plaintiff namely Rampur Thomas Immanuel that

tenure of suit schedule properties are 'Jamma Malai

properties' and plaintiff's right over the properties is

saved and is entitled to continue in possession and to

cultivate the same in the light of Section 202 of

Karnataka Land Revenue Act, 1964.

5. Aforesaid Rampur Thomas Immanuel thereupon

filed first appeal namely R.A. No.7 of 1978 before

District Judge, Kodagu, which was allowed and a decree

was passed in favour of the appellant holding his

entitlement to the trees treating the tenure of the suit

schedule properties as sagubane. The aforesaid

judgment and decree passed in first appeal was subject

matter of challenge in second appeal by the State

government, which was allowed vide judgment and

decree dated 10.10.1991 and the judgment and decree

passed by the first appellate court was set aside and

judgment and decree of the Trial Court dismissing the

suit was restored. The aforesaid decision is reported in

ILR 1992 KAR 910. Sometime in the year 1992, an

application was made by legal representatives of

Rampur Thomas Immanuel for mutation of his name in

the revenue records, which was allowed. In 1996, one

T.John, respondent no. 1 herein had purchased rights of

Rampur Thomas Immanuel over the land by a registered

sale deed and mutation in his favour was effected on the

basis of the sale deed in the revenue record in the year

1997. Thereafter, the mutation was carried out in favour

of T.John and his children as well as other respondents

in the year 1998.

6. In 2003, Smt.Pramila Nesargi, Advocate and

Former MLA filed a Public Interest Litigation namely

W.P.No.36630/2003 on the ground that respondent no.

1 herein has encroached reserved forest and has

extracted timber from the land in question. A division

bench of this court by an order dated 15.11.2005

appointed the Chief Secretary of the State of Karnataka

to visit the land and to submit the report. In compliance

of the order passed by this court, Chief Secretary

submitted an inquiry report dated 11.04.2006. A division

bench of this court while going through the enquiry

report enquired from the State as to why the action has

not been taken on the basis of the inquiry report

submitted by the Chief Secretary. Thereupon, the Chief

Secretary issued direction to the Deputy Commissioner,

Kodagu to initiate proceedings and to delete the name of

respondents or to cancel the mutation carried out by the

Deputy Commissioner. In compliance of the order

passed by the Chief Secretary, the Deputy

Commissioner of Kodagu passed a preliminary order on

13.11.2006 and issued notice to the respondents to

show cause as to why their name be not deleted and

mutation made in their favour in the revenue record be

not cancelled. The respondent thereupon filed

objections. The Deputy Commissioner by an order dated

22.01.2007 in exercise of powers under section 136(3)

of Karnataka Land Revenue Act, 1964 (hereinafter

referred to as 'the 1964 Act' for short) directed the

revenue department to delete the names of respondents

from the revenue records and to mutate the name of the

State Government. Thereupon the Tehsildar by an order

dated 05.03.2007 deleted the name of the respondents

from the revenue records and reflected the name of the

State Government in the revenue records.

7. The respondents thereupon challenged the

orders passed by the Deputy Commissioner as well as

the Tehsildar in a writ petition before this court namely

W.P. No.4103/2007. A learned single judge of this court

by an order dated 13.09.2009 quashed the orders dated

22.01.2007 and 05.03.2007 passed by the Deputy

Commissioner and Tehsildar respectively and directed

the State government to restore the revenue records to

its original position. In the aforesaid factual background

this writ appeal has been filed.

8. Learned Government Advocate submitted

that the State Government was always the owner of the

land in question and is still the owner of the land in

question and the lands in question form part of the

forest since, time in memorial. It is urged that no

question of title is involved in this appeal. It is also

urged that in pursuance of the directions issued in a

Public Interest Litigation viz., writ petition

No.36603/2003, the notice was issued under Section

136 of the Karnataka Land Revenue Act and thereafter,

the Deputy Commissioner by an order dated 22.01.2007

rightly directed the revenue department to delete the

name of respondent from the revenue records and to

include the name of the State Government. It is also

urged that the findings recorded by the learned Single

Judge are contrary to the findings recorded by the Chief

Secretary as well as by the Civil Court and the entry of

the respondents in the revenue records by mutation

which was ordered after execution of the sale deed in

their favour is bad in law. It is also urged that what was

auctioned was not the land but only the right to raise

cardamom and the tenure is only heritable and cannot

be sold or subjected to partition. It is also submitted

that in the gazette published in the year 1987, the land

in question was declared as 'Jamma Mallai Lands' and is

reserved forest and therefore, in the revenue records

the name of the State Government should appear.

9. On the other hand, learned Senior counsel for

the respondents at the outset raised an objection with

regard to maintainability of the appeal inter alia on the

ground that revenue authorities do not have any

jurisdiction to decide the issue pertaining to the title of

an immovable property, which is in the exclusive domain

of the civil court. It is further submitted that if the

appellants seek a change in the revenue records or to

contest the rights of the respondents and the revenue

entries made in their favour in the revenue records, the

appellants have to take recourse to the remedy of filing

a civil suit and therefore, the present appeal is not

maintainable. In support of aforesaid submissions,

reliance has been placed on full bench decision of this

court in 'SMT. JAYAMMA VS. STATE', ILR 2020 KAR

1449. While referring to inquiry report submitted by

the Chief Secretary, it is pointed out that 11322.32

acres of Jamma Mallai is in the possession of the State

Government, whereas, 2181.62 acres is in possession of

others. It is also pointed out that no crop can be

cultivated other than cardamom in Jamma Mallai Forest

lands. It is also pointed out that the observations made

by the Chief Secretary in the inquiry report are without

any basis and without any application of mind. It is

contended that the respondent by entries in their favour

in the revenue records do not claim any larger right than

the declaration, which has been made by the civil court

in their favour viz., that respondents are Jamma Mallai

holders of the schedule properties and the rights of the

respondents are subject to 1964 Act which are saved by

Section 202 by the 1964 Act. It is also pointed out that

in the civil suit it was not the stand of the State

Government that the lands in question are forest land

and the issue involved in the suit was only with regard

to nature of the land / tenure as reflected in the revenue

records and the rights available to jamma Mallai holder.

It is also argued that it is not permissible for the

appellants to raise such an issue at this point of time

when the rights of the respondents have been concluded

by the decree passed by the civil court. It is further

submitted that the State Government has sought to

raise new points in this appeal, which were not raised

before the learned Single Judge and therefore, the same

cannot be entertained. Reference has also been made to

the decision of the Supreme Court in 'ELIZABETH

JACOB VS. DIST. COLLECTOR IDUKKI', 2008 (15)

SCC 166.

10. We have considered the submissions made

by learned counsel for the parties and have perused the

record. The solitary issue which arises for consideration

in this intra court appeal is whether the order passed by

the learned Single Judge is in conformity with the

judgment and decree passed by this court in RSA

No.466/1980 (Deputy Commissioner vs. Immanuel

Ramapuram, ILR 1992 KAR 910) which conclusively

determines the rights of the parties in respect of land in

question. Before proceeding further, it is relevant take

note of the relevant provisions of the regulations.

Regulation 97 relates Jemma Malais, which reads as

under:

Jamma malles are portions of the reserves forests on the Western Ghats in which the hereditary right of growing cardamoms on the indigenous system is admitted. These malles have recently been separately resettled.

11. The rights of Jamma Malai Ghats have been

taken note of in BHASKARAPPA VS. COLLECTOR OF

NORTH CANARA, ILR III BOMBAY 452 and it has been

inter alia the following conclusions are recorded:

(i) That the jamma malaigars possess no proprietary right in the jamma malais;

(ii) that in virtue of a grant made by the Coorg Rajas, they possess the right to cultivate cardamoms therein according to the indigenous method, which may be improved but not radically altered;

(iii) that they have no right to minor forest produce therein except in so far as relates to the use of canes, wattes, nettipai and Kuvalai leaves, creepers and fibre for purposes ancillary to cardamom cultivation;

(iv) that they possess no right to shoot within the malais or reserved forest;

(v) that they have right of access to the malais by defined routes as may be necessary

for purposes connected with cultivation of cardamoms;

(vi) that they possess the right to fell such timber as may be necessary for the preparation of cardamom plots and for the construction of buildings within the malais for the housing of themselves and their labourers and the storage of the cardamom produce collected;

(vii) that they possess the right to utilize other forest produce for the construction of the buildings mentioned under item (vi) and to cut firewood for their own use within the malais and for the purpose of drying cardamoms on the spot; and

(viii) that for themselves and their labourers they possess the right to consume within the malais a reasonable quantity of toddy drawn from the Bainer palm growing therein.

12. Thus, from the perusal of the relevant extract

of the regulations, it is evident that jamma malaidars

have no proprietary rights in jamma malais. They only

have a right to access the malais by defined rules as

may be necessary for the purposes collected with

cultivation of cardamoms. Section 136 of the 1964 Act

deals with appeal and revision. Sub-Section (3) of

Section 136 reads as under:

(3) The Deputy Commissioner may, on his own motion or on application of a party, call for and examine any records made under Section 127 and Section 129 and pass such orders as he may deem fit.

Provided that no order shall be passed except after hearing the party who would be adversely affected by such order.

13. The relevant extract of the judgment of the

Trial Court dated 21.07.1979 by which it was held that

the lands in question are jamma malai lands and the

respondents right over the schedule properties as

jamma malai properties are saved under Section 202 of

the 1964 Act, read as under:

In the result, the plaintiff is entitled is only a declaration that the suit schedule properties are Jama Malai properties. The plaintiff has not proved, thay the properties were sagu and he gets absolute rights, ever the same as sought for therefore this relief is dismissed. The plaintiff's rights ever the schedule properties as Jama Malai properties are saved under Section 202 of the Karnataka Land Revenue Act, 1964.

The aforesaid decree was affirmed by this court in

DEPUTY COMMISSIONER VS. IMMANUEL RAMAPURAM in

RSA No.466/1980 (ILR 1992 KAR 910) and it was held

as under:

There is sufficient force in the contention of the learned Advocate General that the tenure Jamma Malai only indicates tat the part of the Government Reserved Forest was made available to the Malaigar only to cultivate cardamom and there were no proprietary rights granted to the Malaigar.

Thereafter, the appeal preferred by the State

Government was allowed and judgment and decree

passed by the Trial Court dismissing the suit was

restored. The relevant extract reads as under:

For the reasons aforesaid the appeal is allowed, the judgment and decree of the first appellate court decreeing the suit of the plaintiff-respondent are set aside and those of the trial court dismissing the suit are dismissed.

14. Thus, it is evident that respondents have no

proprietary rights in respect of lands in question and

only have the right to cultivate the cardamom. However,

the learned Single Judge has misinterpreted the

judgment and decree passed by a bench of this court in

RSA No.466/1980 and has quashed the orders passed

by the Deputy Commissioner dated 22.01.2007 and the

consequential order dated 02.02.2007 passed by the

Tahsildar, Madikeri. It is pertinent to note that Form-16

is prepared under Rules 40, 42, 58 and 70 of the

Karnataka Land Revenue Rules, 1966. In Form No.16

Column No.9 records the name of the owner or

Khabjedar and Column No.11 records other rights and

liabilities. Therefore, in the light of the judgment passed

by the learned Single Judge in second appeal

No.466/1980 we direct that the competent authority to

record the name of the State Government as owner in

respect of the lands bearing No.129/3, 154/5, 170,

154/8, 173 and 174 of Cheleava Village, Napoklunad in

Kodagu District measuring 468 acres and 72 cents and

in Column No.11, the entry made with the nature of the

land is Jamma Malai and in column No.12 of Form

No.16, the rights of the respondents be recorded to the

effect that they have the right to cultivate cardamom on

the land in question.

15. So far as submission made by learned Senior

counsel for the respondents that the writ appeal filed by

the State is not maintainable, we find that the aforesaid

submissions is sans substance as no question of title is

involved in this appeal and the question of title has

already been adjudicated by the learned Single Judge in

second appeal No.466/1980 vide judgment and decree

dated 10.10.1991. For yet another reason, the aforesaid

contention does not deserve acceptance in view of the

submission made by learned Senior counsel for the

respondents themselves that the respondents are not

claiming any higher rights than the one granted to them

by judgment and decree passed in RSA No.466/1980.

In view of preceding analysis, the judgment passed

by the learned Single Judge dated 13.03.2009 is

quashed and the competent authority is directed to

record the name of the State Government as owner in

respect of the lands bearing No.129/3, 154/5, 170,

154/8, 173 and 174 of Cheleava Village, Napoklunad in

Kodagu District measuring 468 acres and 72 cents and

in Column No.11. The rights of the respondents be

recorded to the effect that they have the right to

cultivate cardamom on the land in question in the light

of judgment of this court in RSA No.466/1980 dated

10.10.1991, in which the rights of the parties in respect

of the lands in question had been adjudicated and which

has attained finality. However, the respondents right to

inherit the land in question or to claim the right to

cultivate the same on the strength of the sale deed

executed in their favour is kept open and it shall be

open for the competent authority to determine the same

in accordance with law.

In the result, the appeal is disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

SS