Karnataka High Court
S Basappa S/O Sankappa vs The State Of Karnataka on 24 September, 2013
-1-
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 24th DAY OF SEPTEMBER, 2013
BEFORE
THE HON'BLE MR.JUSTICE H.BILLAPPA
WRIT PETITION Nos.41275-276/2011 & 43603-06/2011
(KLR)
BETWEEN:
1. Sri.S.Basappa,
S/o.Sankappa,
Aged about 58 years,
R/at.No.158, Talavarapet,
Hondada Circle,
Davangere City.
2. Sri.B.S.Haleshappa,
S/o.A.Siddappa,
Aged about 68 years,
R/at.Anjaneya Badavane,
Davangere City.
3. Smt.Y.Umadevi,
W/o.G.H.Yellappa.
Aged about 50 years,
R/at.No.2593/2, "Shruthi Nilaya",
M.C.C. A Block,
Davangere City.
4. Sri.M.H.Virupakshappa,
S/o.Late Madivalappa,
Aged about 54 years,
-2-
R/at.65, Behind P & T Quarters,
C Block, Devaraja Urs Badavane,
1st Division, 1st Ward,
Davangere City.
5. Smt.Gowradevi.S.Orekondy,
W/o.Late Orekondy Shivayogappa,
Aged about 90 years,
R/at.Door No.102,
Ranichannamma Nagara,
Dharwad.
Presently R/at.No.100,
Shekar House,
Kumar Park West,
Railway Parallel Road,
Bangalore - 20.
6. Sri.O.M.Lingappa,
S/o.Late O.Maulasiddappa,
Aged about 89 years,
R/at.No.100, Sholur House,
Kumar Park West,
Railway Parallel Road,
Bangalore - 20. ...Petitioners
(By Sri.B.S.Murali, Adv.,)
AND:
1. The State of Karnataka,
Department of Revenue,
M.S.Building,
Bangalore - 560 001.
2. The Deputy Commissioner,
Davanagere District,
-3-
Davanagere.
3. The Tahasildar,
Davanagere Taluk,
Davanagere District,
Davanagere.
4. K.B.Rudrappa,
Since dead, rep. by LRs R-5 to R-9.
5. K.R.Shivakumar,
S/o.K.B.Rudrappa,
Aged about 58 years.
6. K.R.Prakash,
S/o.K.B.Rudrappa,
Aged about 48 years.
7. K.R.Thippesh,
S/o.K.B.Rudrappa,
Aged about 46 years.
8. K.R.Veeranna,
S/o.K.B.Rudrappa,
Aged about 43 years.
9. K.R.Prabhukumar,
S/o.K.B.Rudrappa,
Aged about 41 years.
Respondent No.4 to 9 are
R/at.No.1990, M.C.C.B Block,
Dr.Puranthara Hospital Road,
Davanagere. ...Respondents
(By Smt.M.C.Nagashree, HCGP for R1 to 3;
Sri.M.B.Nargund, Adv.,for R5;
Sri.S.B.Pavin, Adv., for R6 to 9)
-4-
******
These petitions are filed under Articles 226 and 227
of the Constitution of India praying to quash the impugned
orders dated 30.5.2011 passed by the R2 in
REV.PET.No.31/10-11 vide Ann-P and the order dated
15.9.2011 passed by the R3 vide Ann-Q.
These petitions coming on for Orders this day, the
Court made the following:-
ORDER
In these writ petitions under Articles 226 and 227 of the Constitution of India, the petitioners have called in question, the order dated 30.5.2011, passed by the 2nd respondent in Revision Petition No.31/2010-11 vide Annexure-P and the order dated 15.9.2011, passed by the 3rd respondent in RRT (DIS) No.21/2011-12 vide Annexure-Q.
2. By the impugned order at Annexure-P, the 2nd respondent has allowed the revision petition and directed the 3rd respondent to cancel the entries made in the pucca book (Form No.5) and other survey records in respect of Sy.Nos.110/3F1 and 110/3F2 of Anekonda village. -5- Pursuant to that, the 3rd respondent, vide Annexure-Q has ordered to enter the names of the respondents 4 and 5 in respect of R.S.No.110/3F1 measuring 22 guntas and R.S.No.110/3F2 measuring 4 guntas of Anekonda village.
3. Briefly stated, the facts are:
It is stated, the Government of Karnataka had published its Official Gazette during April 1949, at Item No.944, the matter pertaining to the alienation of land (conversion) in Sy.No.118 measuring 3 acres 13 guntas of Nituvalli village and Sy.No.310/3 (New Nos.110/3F1 and 110/3F2) measuring 26 guntas of Anekonda village, Davanagere Taluk. It was converted on the basis of the application filed by the family members of the 5th petitioner. On 19.7.1974, the Asst. Director of Land Records, Davanagere, ordered and recorded the status of the land in Sy.No.110/3F1 as 'Na Kharab' i.e., converted for non- agricultural purpose. During the year 2000, the respondents 4 to 9 filed suit in O.S.No.430/2000 against -6- the family members of the 5th petitioner for declaration of their title over the land in Sy.No.110 of Anekonda village. The suit is now renumbered as O.S.No.230/2009. It is pending before the I Addl. District Judge, Davanagere.
4. The 5th petitioner and her family members challenged the order dated 31.3.2006 passed by the JDLR, Mysore, in W.P.No.8506/2006. The writ petition was disposed of with a direction to the Trial Court to dispose of O.S.No.430/2000 (New No.230/2009). The respondents 4 to 9 filed R.P.No.64/2008 seeking review of the order dated 28.8.2007 in W.P.No.8506/2006. It was disposed of with a direction to the Trial Court to dispose of the suit with reference to the relevant documents produced by the parties.
5. Thereafter, on 20.2.2010, the 5th petitioner and her family members executed the registered sale deed in favour of the petitioners 1 to 4 in respect of the land in Sy.No.110/3F of Anekonda village measuring 22 guntas -7- along with other properties. The 8th respondent filed a complaint with the Town police, Chitradurga, against the petitioner No.5 and her family members alleging offence u/s 420 and other section of IPC. The 3rd respondent also lodged the complaint with Basavanagara police, Davanagere against the petitioners 1 to 4 and their vendors alleging offence u/s 468 of IPC.
6. It is stated, the 7th respondent filed a revision petition before the 2nd respondent u/s 56 of the Karnataka Land Revenue Act seeking to set aside the order dated 19.7.1974 pertaining to the status of the land in Sy.Nos.110/3F1 and 110/3F2 as 'Na Kharab'. The 2nd respondent by order dated 30.5.2011 has allowed the revision petition and directed to cancel the entries in the pucca book (Form-5) and other survey records in respect of Sy.Nos.110/3F1 and 110/3F2 of Anekonda village. Pursuant to that, the 3rd respondent vide Annexure-Q has cancelled the entry as 'Na Kharab' and has ordered to enter -8- the names of the respondents 4 and 5. Therefore, these writ petitions.
7. The respondents 7, 8 and 9 have filed statement of objections contending that the writ petitions are not maintainable. It is contended that a wrong entry was made in respect of Sy.No.110/3F1 of Anekonda village by referring to G.O.No.R 10348, 350-LR-35-47-48 dated 18.5.1948 and showing the land as N.A. (non agricultural). The G.O. dated 18.5.1948 pertains to R.S.No.118 of Nituvalli village measuring 3 acres 39 guntas. It does not pertain to R.S.No.110/3F1 of Anekonda village. During the year 1988-89 the revenue authorities have deleted the entry N.A. and name of Marulasiddappa Orikundi. The entries in records of rights is shown as 'kharab'. But, in Form No.5 the entry in column Nos.12 and 15 was not removed. Therefore, the respondent No.7 approached the respondents 2 and 3 only to remove the wrong entry in -9- Form No.5. The petitioners were not necessary or proper parties.
8. It is stated, the petitioners 5 and 6 had moved Deputy Director of Land Records, Davanagere, and Joint Director of Land Records, Mysore, to enter their names in the record of rights as owners. They have failed before the said authorities. It was held that the petitioners 5 and 6 and their family members are not the owners and their names cannot be entered in the record of rights. The petitioners 1 to 4 are claiming their right through petitioners 5 and 6. The petitioners 1 to 6 have no right or locus standi.
9. It is stated, that in O.S.No.41/1922-23, there was a decree in favour of one M. Panchaksharappa against Orikondi Gurubasappa and others. The land in R.S.No.143 of Anekonda village and other lands of Orikondi Gurubasappa were auctioned by the court. The plaintiff purchased R.S.No.143 measuring 3 acres 36 guntas and
- 10 -
other properties. In the sale certificate R.S.No.53 of Nituvalli village was mentioned by mistake. It was not attached by the court. R.S.No.143 of Anekonda village and some other lands of Orikondi Gurubasappa were attached. In Misc. Case No.90/1928 the executing Court corrected the R.S.No.53 of Nitivalli village as R.S.No.143 of Anekonda village. Panchaksharappa, the plaintiff took possession of the said land and other properties. Panchakharappa sold R.S.No.143 of Anekonda village measuring 3 acres 36 guntas in favour of Orikondi Gurubasappa through a registered sale deed dated 24.12.1928. Orikondi Gurubasappa is the uncle of Orikondi Shivayogappa who is the husband of Smt.Gowradevi.S.Orikondi, the petitioner No.5 and uncle of the petitioner No.6 Lingappa. Orikonda Gurubasappa sold the land in R.S.No.143 measuring 3 acres 36 guntas in favour of Virupakshaiah through registered sale deed dated 26.12.1928. Virupakshaiah in turn sold the land in R.S.No.143 of Anekonda village in favour of Kandankovi Gurusiddappa and Pallagatti
- 11 -
Gurusiddappa through registered sale deed dated 11.6.1930. They were the absolute owners of R.S.No.143 of Anekonda village. Mutation has been effected in the name of Kandanakovi Gurusiddappa and Pallaghatti Gurusiddappa in respect of R.S.No.143 of Anekonda village.
10. During 1966, the family of Pallaghatti Gurusiddappa filed suit in O.S.No.21/1966 for their share in the joint family properties. In R.F.A.No.427/95, the matter was compromised and decree was passed in terms of the compromise.
11. In the said compromise, the land in R.S.No.110 (old No.143) of Anekonda village has been given to K.B.Rudrappa and his firm i.e. respondents 3 and 7 in the appeal. After the decree in RFA No.427/95, dated 18.6.2003, the respondents 4 to 9 herein have become the absolute owners in possession and enjoyment of the land in R.S.No.143 (New No.110) of Anekonda village.
- 12 -
12. It is stated, the land in R.S.No.110 (old No.143) was sub-phoded as R.S.No.110/3E1, 110/3E2, 110/3F1 and 110/3F2 which are in possession of respondents 4 to
9. Now R.S.No.110 (old no.143) of Anekonda village has become part of Davanagere city and CTS No.1098/2 has been given to R.S.No.110/3F1 of Anekonda village.
13. R.S.No.110/3F1 measured 22 guntas and R.S.No.110/3F2 measured 4 guntas. Now they are CTS Nos.1098/2 and 1099/2 of Davanagere City respectively. They stand in the name of respondents 4 to 9. The ancestors of the petitioners 5 and 6 have sold the entire land in R.S.No.143 (New No.110) of Anekonda village measuring 3 acres 36 guntas to Virupakshaiah through registered sale deed dated 26.12.1928. They have lost right in R.S.No.110 of Anekonda village.
14. It is stated, the family of the petitioners 5 and 6 got the name of Marulasiddappa in Column No.9 of record of rights showing that it is converted for non agricultural
- 13 -
purpose based on the Government Order dated 18.5.1948. The said Government Order pertains to conversion of R.S.No.118 of Nittuvalli village measuring 3 acres 39 guntas belonging to the family of petitioners 5 and 6. It does not pertain to R.S.No.110 of Anekonda village. The family of petitioners 5 and 6 have managed to get the name of Marulasiddappa entered in the revenue records. During 1988-89 after inquiry it was rounded off. The name of Marulasiddappa and N.A. are deleted from the record of rights. Nobody's name appeared in the record of rights and it is entered as 'Kharab' till middle of 2011.
15. The husband of petitioner No.5 filed an application before the ADLR, Davanagere, to enter his name in the record of rights and other revenue records as owner. By Endorsement dated 16.10.1997 was issued stating that his name cannot be entered without inquiry. Shivayogappa, the husband of petitioner No.5 filed revision petition before the JDLR, Bangalore, who directed the
- 14 -
DDLR, Davanagere, to make an inquiry and pass order. After the death of Shivayogappa, the petitioners 5 and 6 and other family members appeared before the DDLR, Davanagere. After inquiry and considering the partition deed dated 6.9.1950 and other documents, the DDLR, Davanagere, by order dated 19/26.2.2005 held that the family of petitioners 5 and 6 are not the owners and there is no document to prove their claim. The petitioners 5 and 6 and other family members filed revision in CTS (B) Revision No.3/2004-05 before the JDLR, Bangalore. It came to be transferred to JDLR, Mysore. The JDLR, Mysore, confirmed the order of DDLR, Davanagere. Challenging the said order of DDLR, Davanagere and JDLR, Mysore, the petitioners 5 and 6 and other family members filed W.P.No.8506/2006. It was disposed of directing the Civil Court to dispose of O.S.No.430/2000 without being influenced by the order of DDLR, Davanagere and JDLR, Mysore, and decree in RFA No.427/95 c/w CRP No.37176/02.
- 15 -
16. The respondents 4 to 9 have filed O.S.No.430/2000 for declaration of title and permanent injunction in respect of R.S.No.110 of Anekonda village. On 25.10.2000, temporary injunction was granted restraining the defendants from alienating the suit 'B' schedule property. In the said suit, the petitioner No.5 is defendant No.4 and petitioner No.6 is defendant No.5. Inspite of temporary injunction, the petitioners 5 and 6 from alienating the property, the petitioners 5 and 6 and son of petitioner No.6 have sold R.S.No.110/3F1 of Anekonda village to the petitioners 1 to 4 through registered sale deed dated 20.2.2010. A criminal case in Cr.No.44/10 has been registered. Apart from this, the Tahsildar, Davanagere, has also filed a complaint against the petitioners. After investigation charge sheet has been filed.
17. It is stated, in FDP No.3/1983 the Civil Court has directed the Dy. Director, City Survey Office,
- 16 -
Davanagere and Municipal Commissioner to change the khata in the name of respondent No.4 K.B.Rudrappa and the firm. It is stated, right from 2004 the revenue authorities did not take any action to enter the names of respondents 4 to 9 in the record of rights and other revenue records though several applications were filed. The respondent No.7 approached the Tahsildar, Davanagere. He advised the respondent No.7 to approach the Dy. Commissioner. Therefore, the respondent No.7 approached the Dy. Commissioner with a petition for correction of the wrong entries and to enter their names in record of rights. Thereafter, the impugned order has been passed by the 2nd respondent as per Annexure 'P' to cancel the entries in pucca book (Form No.5) and other survey records in respect of R.S.Nos.110/3F1 and 110/3F2 of Anekonda village. Pursuant to that, the 3rd respondent has passed the order at Annexure-Q directing to enter the name of the respondents 4 and 5 by cancelling the words 'Na Kharab'. The impugned orders are perfectly justified in law
- 17 -
and they do not call for interference. Therefore, the respondents 7, 8, and 9 have prayed for dismissal of the writ petitions.
18. The learned counsel for the petitioners contended that the impugned orders cannot be sustained in law. He also submitted that the impugned orders have been passed in violation of the principles of natural justice. Further he submitted that the name of Marulasiddappa, the father of petitioner No.6 was entered pursuant to the Government order dated 30.5.1948. It existed since several decades. Without any opportunity to the petitioners the impugned orders have been passed. Therefore, the impugned orders cannot be sustained in law. He also submitted that the respondents 4 to 9 are trying to use the entries in O.S.No.230/2009 which has been filed by the respondents 4 to 9 for declaration. The question of title is involved. Therefore, the respondents 2 and 3 were not justified in passing the impugned orders without any
- 18 -
opportunity to the petitioners. Therefore, the impugned orders cannot be sustained in law.
19. As against this, the learned counsel for the respondents 4 to 9 submitted that the impugned orders do not call for interference. It is mere correction of some wrong entries in the revenue records. The impugned orders are consequential orders and therefore, they do not call for interference. The orders passed by the DDLR and JDLR holding that the petitioners 5 and 6 have no right, title or interest in the property have become final and therefore, the petitioners 1 to 4 have no locus standi. There was no need to hear them. The entries were made pursuant to the Government Order dated 13.5.1948 which does not pertain to Sy.No.110 at all. The orders passed by the respondents 2 and 3 is only to correct the wrong entries and therefore, the impugned order does not call for interference.
- 19 -
20. The learned Government Pleader supported the impugned orders.
21. I have carefully considered the submission made by the learned counsel for the parties.
21. It is relevant to note, the question of title is involved in O.S.No.230/2009. The respondents 4 to 9 contended that they are the owners of R.S.No.110 of Anekonda village. The petitioners 1 to 4 contend that they are the owners of R.S.No.110/3F1 to an extent of 22 guntas having purchased it from the petitioner No.5 and her family members. The orders passed by the DDLR and JDLR was the subject matter of writ petition in W.P.No.8506/2006. This court has directed the Trial Court to dispose of the matter in O.S.No.230/2009 without being influenced by the orders passed by the revenue Authorities. In the meanwhile, during the pendency of the suit, the alienation has taken place. The petitioners are parties to the suit. The entry in Annexure 'R' in respect of R.S.No.110/3F1 and
- 20 -
3F2 existed since several decades. It was in the name of Marulasiddappa, the father of petitioner No.6 and father-in- law of petitioner No.5. R.S.No.110 of Anekonda village is the subject matter of O.S.No.230/2009. Therefore, the respondents 2 and 3 should have given an opportunity to the petitioners before passing the impugned orders. The impugned orders are in violation of the principles of natural justice. Therefore, the impugned orders cannot be sustained in law.
Accordingly, the writ petitions are allowed and the impugned orders passed by the respondents 2 and 3 vide Annexures-P and Q are hereby quashed. The matter is remitted to the second respondent, with a direction to reconsider the same, by giving opportunity to the petitioners after issuing notice to the parties.
Return the records to the Government pleader.
Sd/-
JUDGE.
Dvr: