Karnataka High Court
Shri. H.M.Muninarayana vs State Of Karnataka on 11 March, 2020
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION No.37109/2016(KLR-RR/SUR)
C/W
WRIT PETITION No.36451/2016(KLR-RES)
IN WP No.37109/2016:
BETWEEN:
1. SHRI. H.M.MUNINARAYANA,
SON OF LATE L.MUTHAPPA,
AGED 66 YEARS,
1(a) SMT. MALINI,
AGED 54 YEARS,
RESIDING AT 'SRI RAMA NILAYA'
KODARAMA SWAMY TEMPLE,
HULIMAVU, BANNERUGHATTA ROAD,
BANGALORE-560076.
2. SHRI H. M. JAYARAM
@ C. JAYARAMAIAH,
SON OF LATE L. MUTHAPPA,
AGED 64 YEARS,
RESIDING WITHIN THE COMPOUND OF
CO-ORB TECH TOOLS,
OPPOSITE MEENAKSHI TEMPLE,
BANNERUGHATTA MAIN ROAD,
BANGALORE-560076.
2
3. SHRI H. M. SURESH
SON OF LATE L.MUTHAPPA,
AGED 61 YEARS,
SINCE DECEASED BY LEGAL REPRESENTATIVES
3(a) SMT. SHYLAJA N
WIFE OF LATE H.M. SURESH,
AGED 50 YEARS,
3(b) CHIRANTHAN H.S.,
SON OF LATE H.M. SURESH,
AGED AROUND 25 YEARS,
3(c) KARTHIK H.S.
SON OF LATE H.M. SURESH,
AGED AROUND 20 YEARS.
SY. No.38/2 ARAKERE GATE,
BENNARGHATTA MAIN ROAD,
BEGUR HOBLI,
BANGALORE SOUTH TALUK,
BANGALORE-560076.
4. SHRI H. M. VENUGOPAL,
SON OF LATE L.MUTHAPPA,
AGED 51 YEARS,
5. SMT. CHANDRAKALA
WIFE OF LATE H.M.BHAGAVAN,
DAUGHTER-IN-LAW OF LATE MUTHAPPA.L,
AGED 48 YEARS,
No.1, 3(a), 3(b), 3(c)4 AND 5 RESIDING AT
"SRI RAMA NILAYA"
NEAR KODANDARAMA SWAMY TEMPLE,
HULIMAVU, BANERUGHATTA ROAD,
BANGALORE-560076.
...PETITIONERS
(BY SRI ARUN B. M., ADVOCATE)
3
AND:
1. STATE OF KARNATAKA
BY ITS SECRETARY,
DEPARTMENT OF REVENUE,
MULTISTORIED BUILDING,
AMBEDKAR VEEDI,
BANGALORE-560001.
2. ASSISTANT COMMISSIONER
BANGALORE SUB-DIVISION,
BANGALORE-560001.
3. TAHSILDAR,
BANGALORE SOUTH TALUK,
BANGALORE-560001.
4. SMT. SAVITHRAMMA
WIFE OF LATE JAYANTH,
MAJOR,
RESIDENT OF VYSORE AGRAHARAM VILLAGE,
DEVARA ULIMANGALAM,
DANKANI KOTA TALUK,
KRISHNAGIRI DISTRICT-635107,
TAMIL NADU.
...RESPONDENTS
(BY SMT. M.C. NAGASHREE, AGA FOR R1 TO R3;
SRI M. SHIVAPRAKASH, ADVOCATE FOR R4)
****
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE ORDER DATED 16.6.2016 VIDE ANNEXURE-A PASSED BY
THE R-2 IN SO FAR AS IT RELATES TO ALLOWING APPEAL FILED
BY THE R-4 VIDE ANNEXURE E1 AND ALL CONSEQUENTIAL
PROCEEDINGS ETC.
4
IN WP No.36451/2016
BETWEEN:
1. SHRI H. M. MUNINARAYANA,
SON OF LATE L.MUTHAPPA
AGED 66 YEARS
SINCE DECEASED BY LEGAL REPRESENTATIVE
1(a) SMT. MALINI,
AGED 54 YEARS,
RESIDING AT 'SRI RAMA NILAYA'
KODARAMA SWAMY TEMPLE,
HULIMAVU, BANNERUGHATTA ROAD,
BANGALORE-560076.
2. SHRI H. M. JAYARAM,
@ C. JAYARAMAIAH,
SON OF LATE L. MUTHAPPA,
AGED 64 YEARS,
RESIDING WITHIN THE COMPOUND OF
CO-ORB TECH TOOLS,
OPPOSITE MEENAKSHI TEMPLE,
BANNERUGHATTA MAIN ROAD,
BANGALORE-560076.
3. SHRI.H.M.SURESH
SON OF LATE L.MUTHAPPA
AGED 61 YEARS
SINCE DECEASED BY LEGAL REPRESENTATIVES
3(a) SMT. SHYLAJA N
WIFE OF LATE H.M. SURESH,
AGED 50 YEARS,
3(b) CHIRANTHAN H.S.,
SON OF LATE H.M. SURESH,
AGED AROUND 25 YEARS,
5
3(c) KARTHIK H.S.
SON OF LATE H.M. SURESH,
AGED AROUND 20 YEARS.
SY. No.38/2 ARAKERE GATE,
BENNARGHATTA MAIN ROAD,
BEGUR HOBLI,
BANGALORE SOUTH TALUK,
BANGALORE-560076.
4. SHRI.H.M.VENUGOPAL
SON OF LATE L.MUTHAPPA
AGED 51 YEARS
5. SMT. CHANDRAKALA
WIFE OF LATE H.M.BHAGAVAN
DAUGHER IN LAW OF LATE L.MUTHAPPA
AGED 48 YEARS
No.1, 3(a), 3(b), 3(c), 4 AND 5
RESIDING AT 'SRI RAMA NILAYA'
KODARAMA SWAMY TEMPLE,
HULIMAVU, BANNERUGHATTA ROAD,
BANGALORE-560076.
...PETITIONERS
(BY SRI ARUN B. M., ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY ITS SECRETARY
DEPARTMENT OF REVENUE
MULTISTORIED BUILDING,
AMBEDKAR VEEDI,
BANGALORE-560 001.
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2. ASSISTANT COMMISIONER
BANGALORE SUB-DIVISSION
BANGALORE.
3. TAHSILDAR,
BANGALORE SOUTH TALUK,
BANGALORE-560001.
4. SMT. SAVITRAMMA
WIFE OF LATE JAYANTH
RESIDENT OF VYSORE AGRAHARAM VILLAGE
DEVARA ULIMANGALAM
DANKANI KOTA TALUK
KRISHNAGIRI DISTRICT-635 107
TAMIL NADU
...RESPONDENTS
(BY SMT. M.C. NAGASHREE, AGA FOR R1 TO R3;
SRI M. SHIVAPRAKASH, ADVOCATE FOR R4)
*****
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE ORDER DATED 4.12.2015 VIDE ANNEXURE-A PASSED BY
THE R-2 AND ALL CONSEQUENTIAL PROCEEDINGS ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:-
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ORDER
The petitioners in W.P. No.36451/2016 have sought for the following reliefs:
a) Set aside the order dated 4.12.2015 in RA (S) 326/2015-
16, vide Annexure-A passed by the 2nd respondent and all consequential proceedings.
b) Set aside the order dated 16.6.2016 in R.A. (S) 481/2015-16 c/w 326/2015-16 vide Annexure-A1, passed by the 2nd respondent in so far as it relates to rejecting the recalling application filed by the 1st petitioner.
2. The petitioners in W.P. No.37109/2016 have sought for the following reliefs:
a) Set aside the order dated 16.6.2016 in R.A. (S) 481/2015-16 c/w 326/2015-16 vide Annexure-A, passed by the 2nd respondent in so far as it relates to allowing appeal filed by the 4th respondent in R.A.(S) 481/2015-16 (Annexure-E1) and all consequential proceedings.8
3. In these writ petitions, the petitioners are one and the same. It is the case of the petitioners that they are the owners of portions of lands bearing Sy.Nos.3/2, 8/2A1, 16/3, 21/1A, 30/4C, 58/1A1a, 60/2C, 61/1C, 62/1C & 90/1 of Hulimavu village, Begur Hobli, Bangalore south taluk and the entries in the revenue records in respect of above lands are standing in the name of the petitioners and they are paying land revenue to the State Government. When things stood thus, the 4th respondent - Smt. Savitramma filed an application on 13.2.2015 before the 3rd - Tahasildar for effecting mutation in her name in respect of the land bearing Sy.No.8/2A1 to an extent of 1 Acre 23 guntas situated at Hulimavu village, Begur Hobli, Bangalore south taluk, on the basis of the Will dated 5.1.1976 executed by her father-in-law in favour of her husband. In the application dated 13.2.2015, the 4th respondent - Smt. Savithramma has stated that her father-in-law - K.M. Muniramaiah derived title in respect of the above property 9 under the sale deed dated 5.5.1946 and he executed Will dated 5.1.1976 in favour of her husband in respect of the above property and both her father-in-law and her husband have died and therefore, sought for effecting mutation in respect of the property in her name.
4. The Tahasildar has not passed any orders on the application, but the 2nd respondent - Assistant Commissioner suo motu has taken over the matter and directed to effect khatha in respect of the above land in respect of the 4th respondent by the order dated 4.12.2015 made in R.A. (S) No.326/15-16 as per Annexure-A. Being aggrieved, the petitioners filed an application for recalling the order dated 4.12.2015. In the meanwhile, the 4th respondent filed an appeal before the Assistant Commissioner challenging the entries in respect of other survey numbers in R.A. No.481/2015-16. The Assistant Commissioner by the impugned order dated 16.6.2016 10 made in R.A.(S) 481/2015-16 c/w R.A. (S) 326/2015-16 rejected the application filed by the petitioners for recalling the order dated 4.12.2015 in R.A. (S) 326/2015-16 and allowed R.A. No.481/2015-16 filed by the 4th respondent - Smt. Savithramma in respect of other survey numbers. Therefore, the petitioners are before this Court challenging the orders dated 4.12.2015 and 16.6.2016 passed by the 2nd respondent - Assistant Commissioner.
5. I have heard the learned counsel for the parties to the lis.
6. Shri B.M. Arun, learned counsel for the petitioners reiterating the grounds urged in these writ petitions contended that that the impugned orders passed by the Assistant Commissioner are contrary to the material on record and liable to be quashed. He further contended that when an application filed by the 4th respondent dated 11 13.2.2015 for effecting khatha in her name in respect of the property in question on the basis of the Will, the Tahasildar has not passed the order and the Assistant Commissioner ought not to have taken the said proceedings before him suo motu and passed the impugned order dated 4.12.2015 based on the Will dated 5.1.1976, which is not a source of title under the provisions of Section 128 of the Karnataka Land Revenue Act ('the Act' for short). He contended that the 2nd respondent has exceeded in his jurisdiction in passing the impugned orders. He further contended that the petitioners are claiming their right in respect of the properties in dispute on the basis of the partition deed dated 8.10.1920 (Annexure-G1), compromise decree in Misc. No.6/1945-46 and several sale deeds. He also contended that the petitioners are disputing the Will dated 5.1.1976 and therefore, the person who is claiming under the said Will has to approach the competent Civil Court in 12 view of the provisions of Section 135 of the Act. Therefore, he sought to allow these writ petitions.
7. Per contra, Sri M. Shivaprakash, learned counsel for the 4th respondent submits that the Assistant Commissioner passed the impugned order dated 4.12.2015 in R.A. (S) 326/2015-16 in respect of Sy.No.8/2A1 measuring 1 Acre 23 guntas situated at Hulimavu village, Begur Hobli, Bangalore south taluk, on the basis of the Will dated 5.1.1976. He would further contend that the Assistant Commissioner passed the impugned order dated 16.6.2016 in R.A.(S) 481/2015-16 c/w 326/2015-16 in respect of other survey numbers based on the registered sale deed dated 5.5.1946 in the name of K.M. Muniramaiah (father-in-law of the 4th respondent). He would further contend that the dispute is in civil nature and already the 2nd petitioner has filed O.S. No.6043/2018 for partition and separate possession in respect of all the properties stated in 13 these writ petitions and the said suit is pending for adjudication between the parties and therefore, ultimately the parties have to establish their respective rights in respect of the immovable properties on the basis of the sale deeds, compromise decree, unregistered Will etc., independently in the said suit. Therefore, he sought to dismiss these writ petitions.
8. Smt. M.C. Nagashree, learned AGA for Respondent Nos.1 to 3 fairly submits that when an application filed by the 4th respondent on 13.2.2015 for effecting khatha in her name in respect of the property in question on the basis of the Will, the Tahasildar has not passed the order and the Assistant Commissioner ought not to have taken the said proceedings before him suo motu and passed the impugned order dated 4.12.2015 based on the Will dated 5.1.1976, which is not a source of title under the provisions of Section 128 of the Act. She further contended that the 2nd 14 respondent has exceeded in his jurisdiction in passing the impugned orders. She further contended that since there are disputed facts between the parties and the dispute is in civil nature and already there is a suit pending between the parties, as rightly contended by the learned counsel for the Respondent No.4, the parties have to establish their rights in respect of the immovable properties independently before the Civil Court. Therefore, she sought to dismiss these writ petitions.
9. Having heard the learned counsel for the parties, it is not in dispute that the petitioners and the 4th respondent are far related, but has the common ancestor. The petitioners claiming their right in respect of the properties in question, on the basis of the partition deed, compromise decree and several registered sale deeds. The 4th respondent is claiming her right in respect of the properties in question on the basis of the unregistered Will dated 15 5.1.1976 and the sale deed dated 5.5.1946. Both the petitioners as well as the 4th respondent are parties to the suit in O.S. No.6043/2018 filed by the 2nd petitioner for partition and separate possession in respect of all the properties. All the properties mentioned in both these writ petitions are the subject matter of O.S. No.6043/2018. Since the petitioners and the 4th respondent are already before the Civil Court, it is for them to establish their rights in respect of the immovable properties independently based on the sale deeds, partition deed, compromise decree, unregistered Will etc., in the said suit.
10. When an application filed by the 4th respondent dated 13.2.2015 for effecting khatha in her name in respect of the property in question on the basis of the Will, the Tahasildar has not passed the order and the Assistant Commissioner ought not to have taken suo motu proceedings before him and passed the impugned order 16 dated 4.12.2015 based on the Will dated 5.1.1976 said to have been executed by the father-in-law of the 4th respondent, which is not a source of title under the provisions of Section 128 of the Act. The Assistant Commissioner has no power under Section 136 of the Act to pass the impugned orders on the basis of the Will and the report of the Special Tahasildar. The 2nd respondent - Assistant Commissioner has exceeded in his jurisdiction in passing the impugned orders dated 4.12.2015 and 16.6.2016 based on the Will. The persons who are claiming their title on the basis of the Will has to establish their right before the competent Civil Court. My view is fortified by the Full Bench Judgment of this Court in the case of C.N. Nagendra Singh vs. The Special Deputy Commissioner reported in ILR 2002 Kar. 2750.
11. It is also not in dispute that the parties are fighting for the properties in question based on the several 17 documents like partition deed, compromise decree, unregistered Will and several sale deeds. In the circumstances, without adverting to the contentions of the parties, it is suffice to direct the parties to pursue their remedy before the competent Civil Court. The Assistant Commissioner ought not to have taken over the matter suo motu and passed the impugned orders based on the Will. Further, when there are disputed facts that arose for consideration in respect of the immovable properties, the revenue authorities have no power to decide the title. It is the exclusive domain of the Civil Court. Admittedly, the suit is pending for adjudication between the parties.
12. For the reasons stated above, both these writ petitions are allowed. The impugned orders dated 4.12.2015 and 16.6.2016 passed by the 2nd respondent - Assistant Commissioner (Annexures - A and A1 in W.P. No.36451/2016 and Annexure-A in W.P. No.37109/2016) 18 are hereby quashed. However, this shall not come in the way of petitioners and the 4th respondent to establish their rights in respect of the immovable properties independently based on the several sale deeds, partition deed, compromise decree, unregistered Will, etc. before the Civil Court. Any decree to be passed in the suit - O.S. No.6043/2018, where both the petitioners and the 4th respondent are parties, is binding on all the parties as well as the revenue authorities.
13. The revenue entries made prior to passing of the impugned orders dated 4.12.2015 and 16.6.2016 shall stand restored and those entries are also subject to the result of the suit in O.S. No.6043/2018 pending adjudication between the petitioners and the 4th respondent herein. The jurisdictional revenue authorities shall restore the entries as they were prior to passing of the impugned orders dated 4.12.2015 and 16.6.2016, within one month 19 from the date of receipt of copy of this order. The said revenue entries are always subject to the result of the suit in O.S. No.6043/2018.
14. In view of quashing of the impugned orders passed by the Assistant Commissioner, Revision Petition filed by the 2nd petitioner before the Deputy Commissioner also becomes infructuous and there is no need for the Deputy Commissioner to proceed and pass orders in the said Revision Petition.
15. All the contentions raised by the parties are kept open to be urged before the Civil Court.
Sd/-
JUDGE Gss/-