Purchase of agricultural lands in Karnataka. Guidelines. S.Basavaraj Advocate Bangalore
02-March-2021 02:10
Preamble: Purchase of agricultural lands involves more careful scrutiny than converted land or site. This is because converted lands and sites undergo the statutory scrutiny like conversion, zonal classification, plan sanction etc. Moreover, agricultural lands are attached with several restrictive usages.
Checklist of required documents:
1. Title documents 2. Village map. 3. Tippani copy 4. Survey Hissa/Survey Tippani/ Podi extract 5. Atlas. 6. Record of Rights Pakka book 7. Patta book 8. Akarband. 9. Family tree. 10. Death certificate. 11. Grant certificate/Grant order. 12. Mutation register extract. 13. Mortgage deeds, if any. 14. Index of land register extract. 15. Record of rights register extract. 16. RTC –Record of Tenancy and Crops extract – 1969 onwards. Endorsements 17. No tenancy certificate. 18. Endorsement on 79A, 79B and 80. 19. No acquisition endorsement. 20. No PTCL endorsement. 21. Encumbrance 1960 onwards. Details regarding 22. Nala/pathway /cart track road passing through the property. 23. Litigation papers if any. 24. Objection, if any, for registration in the Sub Registrar office. 25. Forest, if any, abutting the land. 26. Agreement to sell, if any, executed. 27. Power of Attorney if any, executed. 28. Loans/mortgages, if any, pending. Title documents: Sale Deeds, Partition Deeds, Release Deed, Gift Deed, Wills, Decree, Exchange Deeds, Government grants etc.).
a) Please note; when it comes to immovable property, be it agricultural or converted, mere revenue entries like RTC or khata documents are NOT documents of tittle. The Supreme Court judgments on this aspect are very clear. RTC or khata are only for the purpose of identifying the person who is liable to pay land revenue or property tax. These are not documents of title. (Please see the following Supreme Court judgment.) https://dakshalegal.com/judgements/view/epLfTG9LUvaxdcCVHPFwWnJlb
b) What is relevant is the original document which is recognised under the Transfer of Property Act. Sale deed from the immediate owner and earlier sale deeds stretching for at least 30 years is advisable. The title also flows from Gift deed, Will, Partition, Release deed or Grant etc. Please also note mere partition deed howsoever old is NOT enough. Partition of property must be preceded by right to property. Hence the title source of the property prior to partition must be investigated.
c) Sale deeds. Mere repeated sale transactions is not enough to assume title to the property. The original owner who sold the land many decades ago must have had title to property. It is settled law that a person cannot pass on a better title than what he actually had. If a person had no title to sell the property in the first place, the subsequent sale transactions are of no use. Please the following Supreme Court judgment. Hence, the original source of title must be investigated. See the judgment. https://dakshalegal.com/judgements/view/HtF7nbVQi2a0DoFLuh9wwcF6o.
d) Partition deeds. Mere partition deed where persons partitioned property among themselves may not be enough. It is necessary to verify as to how the parties to the partition acquired right over the property. Please also ascertain entries are made in the relevant public documents in Mutation Register pursuant to the partition. Partition of the property means the parties divided the property in which had right. Mere partition of a property in which parties had no prior title will not confer any title on them. See Nepal Krishna Roy v. Baidya Nath Poddar, 1995 Supp (1) SCC 289.
e) Release deeds. Please note release deed in respect of immovable property requires registration since title is given up by the releasee in favour of the releaser. Please also make sure entry is mutated pursuant to the release deed. On aspect of the matter to be verified is whether the person who released the share had a right over the property. The principle discussed above equally applies to release deed also.
c) Gift deeds. Gift is defined under Section 122 of the Transfer of Property Act as the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Please note gift deed in respect of immovable property requires registration if the parties are Hindus.
d) Wills. Here again, extreme care has to be taken. Will comes into existence only after the death of testator. The person who confers title is no more. Though Will in respect of even immovable property does not require registration, it is always advisable to rely on registered Will. Here again, the title of the person executing the Will and mutation entries pursuant to his death have to be verified. When the person excludes close relatives from the Will, it is better to enquire into the issue even more carefully to avoid possible litigation after purchase.
e) Exchange deeds. Where two persons mutually transfer the ownership of one thing for the ownership of another, the transaction is called an “exchange”. (Section 118 of the Transfer of Property Act, 1882) A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale. All precautions as abovesaid must be taken even in in case of exchange deeds.
e) Government grants. Please note this is the most controversial field. There are several types of grants. It is better to take advice of lawyer in this regard. Many grants may turn out to be bogus or fraudulent or violating laws in the State. In many cases, original grant certificates are not forthcoming. However, if based on aged old grant, say more than 50-100 years, there are transactions like sale, partition etc, title may be forthcoming. However, extreme care and caution is required in this regard. Grant of land in favour of Schedule Caste and Scheduled Tribe is again subject to conditions. Violation of grant results in forfeiture and resumption of land. Since we are dealing with converted land in this article, it is to be noted that conversion of land after the period of non-alienation amounts to ‘prior permission’ as per the judgment of the Karnataka High Court. See
In all cases, where property is transferred under a registered document, it is strongly advised that certified copies of the said documents are obtained from the office of the Sub-Registrar concerned. This exercise must be done without fail since bogus documents insinuating original registered documents are manufactured by unscrupulous elements.
Village maps Chapter 12 of the Karnataka Land Revenue, 1964 deals with Boundaries and Boundary Marks. Sections 137 to 146 deal with Determination of village boundaries, etc, Settlement of village boundaries by agreement, Procedure in case of disagreement or dispute, Determination of boundaries of lands forming a survey number or a holding, Settlement of boundary dispute by arbitration, Effect of the settlement of a boundary, Construction and repair of boundary marks, Description of boundary marks, Responsibility for the maintenance of boundary marks, Deputy Commissioner to have charge of boundary marks after introduction of the survey settlement.
Village maps, though prepared decades ago, give details about public roads, lakes, tanks, kharab lands, rivers, canals etc. Please note under Section 67 of the Karnataka Land Revenue Act, all public roads, streets, lanes and paths, bridges, ditches, dikes and fences, on or beside the same, the bed of the sea and of harbours and creeks below high water mark and of rivers, streams, nallas, lakes and tanks and all canals and water-courses and all standing and flowing waters, and all lands wherever situated which are not the property of individuals or of aggregate of persons legally capable of holding property, and except in so far as any rights of such persons may be established, in or over the same, and except as may be otherwise provided in any law for the time being in force, are declared to be with all rights in or over the the same or appertaining thereto, the property of the State Government.
Village maps are uploaded on "Revenue Maps Online".
What is Kharab Land?Kharab land is extensively explained by the Karnataka High Court (Justice N. Kumar) in Sadashivaiah v. State of Karnataka ILR 2003 KAR 5088 as hereunder:
Kharab land is so called because it is not cultivable and is classification made for purposes of revenue exemption. Kharab land is also capable of ownership and cannot be regarded as an adjunct to cultivable land which gets transferred along with the cultivable land. Acquisition of title to the kharab land is similar to acquisition of title to the cultivable land. The word “Phut Kharab” and ‘pot’ kharab mean and have reference to a land which is included in an assessed survey number but which is unflit for cultivation. Every pot kharab land does not belong to government. For the purpose of assessment, the uncultivable portion of the land or phut kharab portion of the land is excluded from consideration on the ground that it is cultivable. But it does not cease to belong to the owner of the survey number. In volume I of the Mysore Revenue Manual, the word kharab is explained in this way. The expression ‘phut kharab’ is similar to the expression ‘pot kharab’. That is so, is clear from the Mysore Revenue Survey Manual where at page 68 the words ‘pot kharab’ land is defined thus: “(13). Pot kharab means a piece of pieces of land classed as unarable and included in a survey number”.
The description has no relevance to ownership. The expression put kharab is explained in Gupte’s book on the Bombay Land Revenue Code in the following words at page 278”- “By the term ‘pot kharab’ is meant ‘barren or uncultivable land included in an assessed survey number’ and includes ‘any land comprised in a survey number. Which from any reason is held not to be likely to be brought under cultivation………..” The words phut Kharab, therefore, mean and have reference to a land which is included in an assessed survey number but which is unfit for cultivation. After coming into the force of the Karnataka Land Revenue Act 1964 the word phut Kharab has been defined under Rule 21(2) as under:—
“during the process of classification, land included as unarable shall be treated as “Pot Kharab”. Pot Kharab land may be classified as follows.
(a) That which is classified as unfit for agriculture at the time of survey including the farm buildings or threshing flours of the holder;
(b) That which is not assessed because, (i) it is reserved or assigned for public purpose; (ii) it is occupied by a road or recognised footpath or by a tank or stream used by persons other than the holders for irrigation, drinking or domestic purposes; (iii) used as burial ground or cremation ground; (iv) assigned for villager potteries.”
32. If the land falls within the category of 21(2)(a) it is not a government land, it belongs to the ownership of the owner. If it falls under 21(2)(b) then it belongs to the government and the owner cannot have a claim over the said land.
Hence, examination of kharab portion and its classification is necessary.
Tippani copy, Survey Hissa/Survey Tippani/ Podi extract, Atlas, Record of Rights Pakka book, Patta book, Akarband.
Mutation register extract. Section 128 of the Karnataka Land Revenue Act contemplates acquisition rights to be reported. On receipt of a document for registration as acquisition of any right it is mandatory on the part of the registering authority to make a report and mandatory on the part of the prescribed officer to entry in the register of mutation any such report received. Once the name of the person is mutated in accordance with law, the presumption is he is in possession. However, the presumption of possession as contained in Section 133 of the KLR Act arises only when an entry in the Record of Rights and the certified entries in the Register of Mutation are made in accordance with law. See Golden Valley Educational Trust Oorgam v. Vokkaligara Sangha, ILR 2016 KAR 2899. Hence, proper verification of the process is required in this regard.
Mortgage deeds, if any. Mortgage of land to banks etc can be examined from encumbrance certificate. (explained below).
RTC –Record of Tenancy and Crops extract and Patta Book. Sections 127 to 134 in Chapter 11 of the Karnataka Land Revenue Act deal with Record of Rights, Acquisitions of rights to be reported, Registration of mutations and register of disputed cases, Patta book, Obligation to furnish information, Requisition of assistance in preparing maps, Certified copies of records to be annexed to plaint or application, Presumption regarding entries in the records, Certified copies.
RTC contains the names of persons who are holders, occupants, owners, mortgagees, landlords or tenants of the land or assignees of the rent or revenue thereof; (b) the nature and extent of the respective interest of such persons and the conditions or liabilities (if any) attaching thereto; (c) the rent of revenue (if any) payable by or to any of such persons; and (d) such other particulars as may be prescribed.
Patta Book. Section 129A of the Karnataka Land Revenue Act deals with Patta Book. Every holder of agricultural land (including a tenant if he is primarily liable to pay land revenue therefor), shall be supplied by the prescribed officer with a patta book. The book contains a copy of the record of rights pertaining to such land. The patta book shall also contain information regarding the payment of land revenue in respect of the land and other State Government dues of the holder or, as the case may be, the tenant, and information as respects the cultivation of the land and the areas of crops sown in it as shown in the village records and such other matters as may be prescribed. The patta book shall be prepared, issued and maintained in accordance with the rules made by the State Government in that behalf. Such rules may provide for fees to be charged for preparing, issuing and maintaining the book. Endorsements that land was not tenanted under the Land Reforms Act; there is no contravention of Sections 79A and 79B (discussed separately), violation, if any, under the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 have to be obtained and verified. Endorsement from National High Way Authority, Karnataka Industrial Areas Development Board, Bangalore Development Authority, Karnataka Housing Board and similar acquisition bodies have to be obtained and verified.
Encumbrance: It is necessary to obtain encumbrance from 1966 onwards. The encumbrance certificate and detailed extract disclose mortgages, registered sale agreements, joint development agreements, power of attorneys and other encumbrances on the property.
Litigation documents. This again can be undertaken with the help of a lawyer. Thorough scrutiny must be undertaken to find out pending litigation, if any. Sometimes, the litigation might have filed just a day before registration. Hence it is advisable to do search till registration of the sale is completed.
Objection, if any, for registration in the Sub Registrar office. Many lawyers, after preparing the sale deed or agreement submit to the same to the Sub-Registrar for his views. Adjudication can also be got done from the Registrar to find out the stamp duty payable.
Forest abutting the land: The village maps normally show forest lands nearby. One must be careful about encroachment of forest land by the owner. Encroachment of government lands is a punishable offence under the Karnataka Land Grabbing Prohibition Act, 2011. In many cases, landowners have encroached adjacent forest lands for cultivation. In many cases such encroachments are done decades ago and name of the encroachers are entered in revenue records. However, such illegal encroachments are being removed after many decades. The Karnataka High Court has dealt with one such issue recently. See https://dakshalegal.com/judgements/actionRead/CIurCR0mz9fwk3ZUF4Xk1IKRe.
(further additions will be made based on amendment, case law etc)
