ORDER
G.C. Bharuka, J.
1. In this application, the petitioner is aggrieved by the order dated 10.9.1994 of the State Government (Annexure-C) by which the grant of land to the extent of 1 acre 20 guntas in Survey No. 110 of Gudigenahally village has been cancelled on the ground that the same was transferred by the grantee in favour of the Petitioner much within ten years of the prescribed non-alienation period.
2. The land in question was granted to one Dyavappa by the Deputy Commissioner under his order dated 10.1.1957 on an upset price of Rs. 25/- per acre for agricultural purposes. Saguvali Chit was issued to the grantee on 29.1.1957 subject to the condition of non-alienation of the granted land for a period of ten years from the date of taking over of the possession. But the said grantee sold the land to the father of the petitioner on 10.12.1964 under a registered deed thereby violating the non-alienation clause. As such, Government initiated proceedings for cancelling the grant by issuing a notice to the grantee and the purchaser and ultimately passed the impugned order cancelling the grant with a direction to resume the land and dispose of the same in accordance with Karnataka Land Grant Rules, 1969.
3. The impugned order has been assailed on the ground that since the petitioner had perfected his title by way of adverse possession, the Government has no authority to cancel the grant and as such, the order should be quashed. In support of his submission he has placed reliance on the recent Decision of the Supreme Court in the case of K.T. HUCHEGOWDA v. DEPUTY COMMISSIONER 1. ILR 1994 KAR 1839: 1994 (3) SCC 540.
On the other hand, the learned High Court Government Pleader has submitted that since the grantee was not conferred with absolute title, therefore, the question of acquiring title by way of adverse possession cannot arise and the Government has rightly cancelled the grant for violating the terms attached to it.
4. In the present case, the land was granted under the provisions of Mysore Land Revenue Rules. Rule 43(G) of the said Rules reads as under:
“The grant is liable to be terminated and the land resumed if any of the aforesaid conditions is not fulfilled and on such resumption, the land shall vest in Government free from all encumbrances. Providing that no land shall be resumed under this clause except after giving an opportunity to the grantee or his successor in interest to show cause why the grant should not be terminated and the land resumed.”
5. There is a similar provision under Rule 25 of the Karnataka Land Grant Rules, 1969 which reads as under:
“25. Cancellation of Grant: Any grant of land made under these rules shall be liable to be cancelled and the land resumed by the Authority which granted it, where the grant has been obtained by making false or fraudulent representations or is contrary to these rules;
Provided that no such cancellation shall be made without giving the grantee an opportunity of being heard.”
6. In the present case, admittedly, the grantee had sold the land to the father of the Petitioner and put him in possession on 10.12.1964. The present proceedings for cancellation of the grant were initiated after twenty years of the said sale. The grant made by Government to the vendor of the petitioner was not by way of any lease or licence for any particular period. Rather the order of grant shows the conferment of title on an upset price. It becomes further evident from the fact that Government itself had imposed a condition of non-alienation within ten years. This condition presupposes that the grantee had acquired a title, but he was restrained from transferring his title within the specified period.
6.A. In respect of the grant of lands made by the State Government under the Land Grant Rules of this State, the Supreme Court in the case of MANCHEGOWDA v. STATE OF KARNATAKA 2. ILR 1984 (2) KAR 1, has held that –
(i) Such grants are made by the Government as the owner of land to the grantee for enjoyment and possession of the land so granted;
(ii) The prohibition on transfer of such granted land for specified period was an essential condition of such grant;
(iii) The transferees of the granted lands from the original grantees in violation of non-alienation clause acquired only a voidable title which was liable to be defeated with resumption of land by the Government;
(iv) in case where transfer was made in violation of non-alienation clause, the transferee though initially acquired only a voidable title, perfects the same by prescription by uninterrupted and continuous enjoyment of the granted land.
7. In the present case, the grantee who held title over the land, sold the same in violation of the non-alienation clause and thereby, the transferee acquired a voidable title. None the less, the facts remain that the transferee remained on the land for an uninterrupted and continuous period of more than 12 years. Therefore, irrespective of the sale effected pursuant to a registered Sale Deed, since the grantee who acquired title initially, took no steps to dispossess the petitioner for a period of twelve years, he by virtue of the provisions contained under Section 27 of the Limitation Act, 1963, lost his right to the property and thereby, his title in the land extinguished. As a corollary, the petitioner perfected his title by prescription, because in law nobody can disturb his possession on the well established Rule of Law that the possession of a person cannot be disturbed by any person other than the one having a better title.
8. In view of the said facts and the legal consequences, the question that arises is as to whether the Government could have proceeded to cancel the grant in question? The answer can be only in negative. It is so because the only effect of cancellation of grant would be of divesting the grantee or his successor-in-interest of title over the land through him. But as noticed above, since in the present case the grantee had lost his title by operation of Section 27 of the Limitation Act and the petitioner having acquired the title by way of adverse possession, he cannot be said to be the successor-in-interest of the grantee through him. As such, after lapse of twelve years from the date the petitioner and his father came into possession over the land in question, and they having remained thereon uninterruptedly for the said period, the grant itself became non-est and non-available for being cancelled, the same having extinguished by operation of law. Therefore, the exercise of the State Government under the impugned order was futile and inconsequential.
9. This aspect of the law has again been considered by the Supreme Court in the case of K.T. Huchegowda v. Deputy Commissioner (supra) wherein it has been held that a transferee who has acquired the land from the grantee in contravention of the terms of the grant shall perfect his title by adverse possession by completing the period of 12 years and the title so perfected cannot be taken away even by the Legislature except by making law in conformity with the Constitutional provisions.
10. In the above view of the matter, the petitioner has to succeed. Accordingly, the impugned order Annexure-C is quashed. The Writ Application is allowed, but without costs.