ORDER
1. By this petition, the petitioner has prayed for issuance of writ of mandamus or any order or direction directing the 1st respondent to regularise the sale in favour of the petitioner by accepting the necessary fee as per Full Bench decision of this Hon’ble Court. He has also prayed for quashing of order dated 20-11-1993 passed by the II Additional District and Sessions Judge, Kolar, in M.A. 72 of 1988 (Annexure-F) and for quashing of order dated 30-10-1987 bearing case No. INA. 125:86-87 (Annexure-E) passed by the respondent 1 so far as it relates to claim of the respondents 2 and 5 for entire land of Sy. No. 57 of Kallavihosahalli Village. The petitioner has further prayed for issuance of writ of mandamus directing the respondent 1 not to evict the petitioner without due course of law.
2. The facts of the case in nutshell are that, the Village Offices Abolition Act of 1963, hereinafter referred to as the “Act” came into force on 1-2-1963. The land of Sy. No. 57 measuring 8 acres 7 guntas, according to the petitioner, was service inam land attached to Thoti Office of Kullavihosaballi and Sri Byappa, s/o. Badigeppa, respondent 2 in the writ petition and A.K. Narayanappa, husband of 5th respondent in the writ petition, who were the Thoti Office holders of Kullavihosahalli, according to the petitioner, were in possession and enjoyment of the land in question as on the date of coining into force of the Act. The petitioner’s case is that the petitioner purchased 2 acres 20 guntas of said land from Byappa, respondent 2 in the writ petition, vide agreement of sale dated 12-5-1969 (Annexure-A) to the writ petition) for a sum of Rs. 4,000/- and an area of 2 acres of land of Sy. No. 57 from Doddalaksnamma, widow of Mariyappa, and A.K. Narayanappa, son of Mariyappa vide sale deed dated 17-6-1974 (Annexure-B to the writ petition). It appears that Mariyappa was the holder of Thoti Office earlier to A.K. Narayanappa. Both these documents are said to be registered documents. The petitioner’s case is that a total area of 4 acres 20 guntas was recorded in the name of the petitioner and he claims to be in its possession. Thereafter, an amendment was introduced in the Act by the Karnataka Act No. 13 of 1978 and late Byappa and late A.K. Narayanappa filed applications for regrant of inam lands attached to the Village Office including the land in question claiming half share each and according to the petitioner, in June 1988 they tried to interfere with the possession of the petitioner. The petitioner’s case is that the petitioner was not aware of the regrant proceedings. But anyhow the Tahsildar in those regrant proceedings regranted the land in favour of the Village Office Holders’ heirs. The petitioner’s case is that he was not given any opportunity.
Thereafter, the petitioner filed an Appeal No. 72 of 1988 challenging the order of the Tahsildar and that appeal had been dismissed. From that order, it appears, the petitioner filed a Writ Petition No. 21584 of 1994 in this Court claiming a direction for regularisation of sale as well as for quashing of the order of the Tahsildar and the appellate order namely order of regrant passed by the Tahsildar and the appellate order therefrom and also sought mandamus that the petitioner be not evicted. Almost same pleas had been raised in Writ Petition No. 21584 of 1994 as were raised in this writ petition. This Court dismissed the writ petition taking the view that the petitioner was not entitled to any relief and no relief can be granted to him. It observed that the petitioner is at liberty to challenge the order of eviction passed against him by the Tahsildar which he had not challenged in the earlier writ petition.
3. The petitioner in this petition has tried to claim the benefit of the case of Lakshmana Gowda v State of Karnataka and Others, and the benefit of law laid down in the case of Syed Bhasheer Ahamed v State of Karnataka and Others. The learned Counsel for the petitioner contended that in view of this decision, the petitioner is entitled to benefit of regrant which had been made in favour of the former holders of village office and as alienation had been made in favour of the petitioner between the dates 1-2-1963 and 7-8-1978, the alienation cannot be said to be invalid and the petitioner is entitled to the benefit of doctrine of estoppel feeding the grant and by virtue thereof, the petitioner is not liable to be evicted. The learned Counsel for the petitioner contended that the petitioner cannot be said to be an unauthorised holder and so he should not be evicted.
4. This petition has been challenged. On behalf of the respondents and the Government Sri V. Jayaram the learned Government Counsel, contended that firstly this petition is barred by doctrine of res judicata in view of judgment at Annexure-G to the present writ petition. The learned Government Counsel further contended that a perusal of Annexure-A per se reveals that the vendor had clearly indicated in sale deed at Annexure-A dated 12-5-1969 that he had no title to make the sale and sale will be made after getting regularisation of the inam by the vendor and regrant of the land in his favour and in case after regrant, within the period mentioned in the deed if the sale deed is not executed, the vendee may file a suit and get the sale executed. The learned Counsel contended that thus the alienor clearly indicated that till regrant, he had no title to transfer and he is not entitled to make transfer of the property as he had no title to the land. The learned Counsel contended that in this view of the matter, when alienor under the deed clearly clarified the position that transfer of title really will be made when land is regranted and alienor had no title, the petitioner is not entitled to benefit of doctrine of estoppel feeding the grant as contained in Section 43 of the Transfer of Property Act. The learned Government Counsel further contended that when the petitioner knew that the grantees had
no title to the land before regrant and he obtained the subsequent deeds from A.K. Narayanappa and Doddalakshamma, heirs of Mariyappa, it can well be said that in that deed also, which is Annexure-B, the petitioner is not entitled to benefit of doctrine of estoppel feeding the grant. The learned Counsel contended that in view of the above, the petitioner is not entitled to benefit of doctrine of estoppel feeding the grant. He further contended that regrant made in favour of the grantee was valid. In this petition, the learned Government Counsel contended that, the order of eviction was not challenged even now.
5. I have applied my mind to the contentions raised by the learned Counsel for the parties.
As regards the question pf res judicata, in my opinion, there is no substance in the contention of the learned Government Counsel. The Hon’ble Single Judge dealing in Writ Petition No. 21584 of 1994 has observed, while dealing with order at Annexure-E to that writ petition, that it was an order regranting the land in question in favour of the holder of the land and observed that this order in fact is in favour of the petitioner. He observed in course of order at Annexure-E that the Tahsildar has stated that on 15-9-1987 an order was passed by him evicting the petitioner. The Court has further observed that unless the petitioner challenges the regrant order, benefit of regrant made in favour of the holders of village office cannot be given to the petitioner. It may also be mentioned here that the learned District Judge while dealing with the appeal has observed that regrant had no doubt rightly been made in favour of respondents 2 to 12 before it by the Tahsildar. He observed however order of regrant passed does not empower the Tahsildar to evict the appellant namely the appellant before it i.e., the present petitioner who claims to be in possession of the property without following the procedures contemplated by law and on this ground the appeal was dismissed. The learned Single Judge in his order in the writ petition has given liberty to the petitioner to challenge the order of eviction passed against him by the Tahsildar. Looking to these circumstances, it cannot be said that any adverse order was passed against the present petitioner. I may mention it here that the learned District Judge was justified in dismissing the appeal from regrant when it observed that the order of regrant by itself cannot authorise the Tahsildar to evict the person in possession without following the procedure prescribed under Section 7 of the Act, if Section 7 is applicable and if the petitioner can be said to be in unauthorised possession. The learned Single Judge has further held that the order of regrant is one favourable to the petitioner. Anyway, in my opinion, this judgment cannot be said to operate as res judicata.
6. The present petition appears to be misconceived for the reason that there is no question of a mandamus being granted to regularise the transfer which has been made in favour of the petitioner and to direct that stamp fee be accepted. In para 30 clause (a) of the Full Bench decision in the case Syed Bhasheer Ahamed, supra, it has been provided that,
“(a) Alienation of regranted ‘Service Inam Land’ during the period 1-2-1963 to 7-8-1978 is valid and permission for sale is only a formality as the Deputy Commissioner was bound to give permission on mere payment of an amount equal to 15 times of land assessment”.
Here in the present case, it is not a case of alienation of the regranted land by deed dated 12-5-1969 or by deed dated 17-6-1974. Here is a case where whatever alienation has been made by deed of 1974 or where alienation is admitted to have been made or agreed to be made by deed of 1969 related to land which had already vested in the Government and in respect of which proceedings of regrant have been going on. So, observations of the Full Bench in para 30(a) of Syed Bhasheer Ahamed’s case, supra, are not material and they do not confer any right to relief as prayed vide relief clause (a) of the writ petition.
7. Relief No. 2 so far is concerned that the petitioner has prayed that order dated 20-11-1993 passed by the II Additional District Judge in Miscellaneous Appeal No. 72 of 1988 be quashed and that order dated 30-10-1987 passed by the Tahsildar making the regrant in favour of the respondents be quashed, the order of regrant cannot be said to be illegal even in view of Full Bench decision in Syed Bhasheer Ahamed’s case, supra. The regrant had to be made in favour of the original village office holders whose offices have been abolished. This is another question if the petitioner is entitled to benefit of regrant which has been made in favour of his vendors and whether doctrine of feeding of the grant by estoppel will be applicable to their case. The order of regrant, in my opinion, is perfectly valid for the reason given as in the Full Bench decision in Syed Bhasheer Ahamed’s case, supra, in which it has been laid down as under:–(in para 30(b))
“(b) Under Sections 5(1) and 6 of the Act, any holder of a village office of any authorised holder, has a vested right to obtain re-grant of the Service Inam Land, which was held by him immediately before 1-2-1963 (that is as at the end of 31-1-1963) subject to payment of occupancy price in terms of the Act and the Rules; the fact that the holder or authorised holder had alienated the land and divested himself of possession of the land after 1-2-1963 and before 7-8-1978 will not disentitle him, to regrant under Section 5(1) or 6 of the Act, as what is relevant for regrant is holding of such land as at the end of 31-1-1963”,
There is no dispute that the holders of office or the authorised holders, in the present case, were entitled to regrant and they were possessed of the land on the material date i.e., on 31-1-1963 and the transfers in this case had been made on 12-5-1969 and on 17-6-1974. In this view of the matter, in my opinion, the regrant order cannot be said to have been invalidly passed or to suffer from jurisdictional error.
8. The petitioner’s Counsel submitted that by virtue of regrant of the land, in 1987 they are entitled to benefit of doctrine of feeding the grant by estoppel. The doctrine of feeding the grant by estoppel has been the equitable principle of law as incorporated in Section 43 of the Transfer of
Property Act. It will be appropriate to quote that section. Section 43 reads as under:–
“Section 43. Transfer by unauthorized person who subsequently acquires interest in property transferred:–
Where a person fraudulently or erroneously represents that he is authorised to transfer certain immovable property, and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.
Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option”.
A reading of this section per se reveals the material ingredients and material conditions to be established for claiming the benefit of doctrine of estoppel feeding the grant i.e., feeding of the grant by estoppel. The first ingredient is that the vendor should have fraudulently or erroneously represented to the vendee that the vendor is entitled to transfer the immoveable property and he should further profess to transfer such property for consideration. The third ingredient is that transfer must be for consideration. Then section provides that at the option of the transferee, such transfer shall operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists. Section further provides that this document will not adversely affect the right of transferees in good faith for consideration without notice of said option. In the case of Jumma Masjid, Mercara v Kodimaniandra Deviah and Others , their Lordships of the Supreme Court after referring to Section 43 of the Transfer of Property Act, observed as under:–(page No. 850)
“Considering the scope of the section on its terms, it clearly applies whenever a person transfers property to which he has no title on a representation that he has a present and transferable interest therein, and acting on that representation, the transferee takes a transfer for consideration. When these conditions are satisfied, the section enacts that if the transferor subsequently acquires the property, the transferee becomes entitled to it, if the transfer has not meantime been thrown up or cancelled and is subsisting. There is an exception in favour of transferees for consideration in good faith and without notice of the rights under the prior transfer. But apart from that, the section is absolute and unqualified in its operation. It applies to all transfers which fulfil the conditions prescribed therein, and it makes no difference in its application, whether the defect of title in the transferor arises by reason of his having no interest whatsoever in the property, or of his interest therein being that of an expectant heir”.
In order to claim the benefit of doctrine of estoppel feeding the grant under Section 43, the claimant in his case will have to establish these conditions namely,
(a) That the transferor, who makes or made the transfer of the property, had no title in that property at the time of making the transfer.
(b) That the transferor represents or did represent to the transferee that he is a person who has got transferable interest or title to the property.
(c) That the transferee acts on the representation of the transferor and believing on the representation of the transferor, takes the transfer for valuable consideration.
If these three conditions are established by the transferee, he may be entitled to claim the benefit of doctrine of estoppel feeding the grant. It is also to be taken note that a transferee if he knows the fact that transferor is not possessed of title which transferor alleges or represents to be possessed, then he cannot be taken to have acted on such representation. In the case of Kartar Singh (dead) by L.Rs v Smt. Harbans Kaur, it has been laid down by their Lordships of Supreme Court as under;–
“For application of Section 43 of the Act, two conditions must be satisfied. Firstly, that there is a fraudulent or erroneous representation made by the transferor to the transferee that he is authorised to transfer certain immovable property and in the purported exercise of authority, professed to transfer such property for consideration. Subsequently, when it is discovered that the transferor acquired an interest in the transferred property, at the option of the transferee, he is entitled to get the restitution of interest in property got by the transferor, provided the transferor acquires such interest in the property during which contract of transfer must subsist.
Section 43 feeds its estoppel. The rule of estoppel by deed by the transferor would apply only when the transferee has been misled. Where the transferee knows as a fact that the transferor does not possess the title which he represents he has, then he cannot be said to have acted on it when taking a transfer”.
9. In the present case the learned Counsel for the petitioner contended that the deeds of transfer were made in between 12-5-1969 and 17-6-1974 and regrant was made in 1987. So the petitioner is entitled to claim regularisation on the basis of application of doctrine of estoppel feeding the grant. Whether this relief can be granted at this stage is a question. There is no provision in the Act which says that such a regularisation should be granted. It may be that when proceedings for eviction are taken against the petitioner, it would be open to the petitioner
to claim the benefit after showing and establishing the material conditions applicable in the light of Section 43 read with Full Bench decision in Syed Bhasheer Ahamed’s case, supra, and above noted Supreme Court’s decision in Jumma Masjid and Kartar Singh’s cases, supra. But until proceedings are not taken for eviction under law, if any, the petitioner will always be entitled to remain in possession, in spite of regrant order made in favour of the village office holders, as observed by the learned District Judge as well, the petitioner cannot be evicted except proceedings being taken for eviction in accordance with law, whether it is under Section 7 or not that is a different matter. I don’t want to express any opinion. I think it proper for the present to dismiss the petition with the observation that when proceedings for eviction to evict the petitioner are taken, he may be entitled to take this plea and if he establishes that he is entitled to the benefit of doctrine of estoppel feeding the grant, he may not be evicted.
Thus, the writ petition is finally disposed of keeping it open to the petitioner to take all his defences available when proceedings for eviction are taken against him. The writ petition is thus dismissed.