Karnataka High Court
Yellappa Surendra Halagi vs Karnataka Appellate Tribunal (Rev) on 7 April, 1992
Equivalent citations: ILR1992KAR2152, 1992(2)KARLJ341
ORDER M. Ramakrishna, J.
1. The petitioners have sought for quashing the orders, Annexures A, B, D and E made by respondents 3, 2 and 1 respectively, and for declaring Annexures A and B as null and void.
2. The brief facts of the case are as follows: Petitioners 1 to 4 are the sons and daughter of Surendra by Sushila Bai, alleged kept mistress of Surendra. Sudhir, respondent-5, is the son of, and Jayashri, respondent-6, is the wife of the said Surendra. Respondent-5 filed a suit in O.S.17/72 on the file of the Principal Civil Judge, Belgaum, against his father Surendra as defendant-1 and nine others including Appa Saheb son of Surendra by his first wife, for partition and separate possession of his half share in the suit properties except lands in Sy.No. 475 and also for mesne profits. The suit was decreed as prayed for. Accordingly a preliminary decree was drawn and the decree was transmitted to the Deputy Commissioner, Belgaum District, for effecting partition and delivery of separate possession.
3. The Deputy Commissioner in turn delegated his power to the Assistant Commissioner, respondent-2, to effect partition and to deliver possession in accordance with the decree. The Assistant Commissioner thereupon sent the papers to the Assistant Director of Land Records (A.D.L.R.), Belgaum to prepared Watap Takta in terms of the decree. Accordingly the A.D.L.R. prepare Watap Takta and sent it to the Assistant Commissioner for approval. The Assistant Commissioner approved the Watap Takta by his order, Annexure-A, and directed the concerned to handover possession thereof to the respective parties, as can be seen from Annexure- B. The Tahsildar, pursuant to the direction of the Assistant Commissioner, issued notices to all the parties to be present at the spot on 22.1.1990 at 3 p.m. to take delivery of possession of their respective shares. At this stage, the petitioners represented to the Tahsildar that their father Surendra, defendant-1 in the suit, died on 4.11.1985 and that therefore they being the legal representatives of the deceased Surendra, should be heard before possession was handedover in terms of the decree. They also stated that they were in possession of the properties being the highest bidders in the auction held by the Court through Court Commissioner and that therefore, without the knowledge of the Commissioner appointed in R.F.A. No. 35/80 on the file of this Court, possession of the properties could not be delivered.
4. However, the Tahsildar expressed his helplessness and inability to consider them at that stage, because according to him he had to follow the decree of the Court and deliver separate possession to each shares as required by Section 54 of the Code of Civil Procedure. Accordingly possession of the immoveable properties were delivered by metes and bounds on 22.1.1990, by drawing a mahazar,
5. Aggrieved by the orders, Annexures A and B, made by the Assistant Commissioner and also the mahazar delivering separate possession of the properties, in terms of the decree, by the Tahsildar, the petitioner filed an appeal before the Deputy Commissioner, who having heard the learned Counsel on both sides, dismissed the appeal, by his order, Annexure-D, impugned herein. Again the matter was taken up in appeal before the Karnataka Appellate Tribunal by the petitioners. The Tribunal dismissed the appeal by its order, Annexure-E, affirming the order made by the Deputy Commissioner and holding that no prejudice or injustice would be caused to the petitioners, by dismissing the appeal. Hence this Petition.
6. Sri B.S. Kamate, learned Counsel for the petitioners, urged the following points in support of the Writ Petition.
(i) Having regard to the provisions of Section 54 of the Code of Civil Procedure, the power of the Deputy Commissioner could be delegated only either to the Assistant Commissioner or Gazetted Assistant but the Deputy Commissioner having delegated his powers to the Assistant Commissioner, the Assistant Commissioner ought not to have delegated his powers in turn to the Tahsildar. He placed reliance upon the Judgment of this Court in PUTTAKAMAIAH v. STATE OF KARNATAKA, .
(ii) In view of the fact that the Tahsildar having issued a notice during the course of the execution of the order in terms of the decree, an action taken by the Tahsildar in delivering possession of the properties by metes and bounds could not be sustained inasmuch as such action would be one without jurisdiction.
(iii) The conclusion of the Karnataka Appellate Tribunal while dismissing the appeal on the question of law being erroneous, the order Annexure-E therefore could not be sustained.
He placed strong reliance upon the following Decisions
(a) Ramagouda Rudregouda Patil v. Lagmavva;
(b) .
7. Sri. K.I. Bhatta, learned Counsel for the respondents, submitted that having seen the records relating to the proceedings and the action taken by the Tahsildar, there was no reason for this Court to reach the conclusion that there was sub- delegation of powers under Section 54 of the Code of Civil Procedure. According to him, the power is actually exercised by the Assistant Commissioner to execute the order of the Civil Court. While doing so, according to the directions of the Assistant Commissioner, if the Tahsildar issued a notice such an action cannot be assailed as one without jurisdiction as he has only assisted the Assistant Commissioner in executing the Court order. Therefore it cannot be held sub-delegation.
8. As to the last contention of the learned Counsel for the petitioners, Sri K.I. Bhatta, submits that the Tribunal was justified in dismissing the appeal as, by dismissal, the petitioners were not in any way prejudiced or aggrieved.
9. Now the question that arises for consideration in this Petition is whether the direction issued by the Assistant Commissioner to the Tahsildar to deliver separate possession of the lands in terms of the decree amounts to sub-delegation. A Division Bench of this Court in LAXMAMMA v. STATE OF KARNATAKA, 1983(1) KLJ 417 had an occasion to consider, though not under the Act, but under the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, whether the Assistant Commissioners could delegate their powers to the Tahsildars or other officers to execute their orders under Section 5 of the said Act. In para-80 of the Judgment, their Lordships have held as follows:
"80. In the above discussion, we hold that it is not open to the A.Cs to delegate their powers either to their tahsildars or other officers to execute their orders. But this conclusion of ours should not be understood by the A.Cs as this Court stating that it is not open to them to take the assistance of their subordinates or other public authorities to execute their orders. Undoubtedly, it is open to the A.Cs. to take the assistance of their subordinates and such other public authority to enforce their orders in accordance with law."
In LAXMAMMA's case, 1983(1) KLJ 417 the Assistant Commissioner having held an enquiry as required by Section 5 of the said Act declared under Section 4 that the alienations were null and void and directed restoration of the land. While doing so, he directed the Tahsildar to execute his order and accordingly put the grantees in possession of the land. In such a situation, their Lordships held that it was open to the Assistant Commissioner to take the assistance of his subordinates in the execution of his orders. So holding, this Court rejected the contention urged there that the Assistant Commissioner cannot authorise his subordinates like the Tahsildar to execute his order.
10. In the case on hand also almost similar point is in issue. The Deputy Commissioner having delegated his power under Section 54 of the Code of Civil Procedure to effect partition and possession of the lands in question in terms of the decree of the Civil Court, the Assistant Commissioner himself initiated the proceedings to give effect to the decree and concluded it as can be seen from his order, Annexure-B. What is done by the Assistant Commissioner under Annexure-B is that he inter alia directed to execute his orders and put the parties in possession of their respective shares as shown in his order. Accordingly, the Tahsildar being his immediate subordinate issued notices to the concerned parties in order to enable him to execute the order of the Assistant Commissioner. That cannot be construed as the Assistant Commissioner having delegated his powers to the Tahsildar. The action taken by the Tahsildar is nothing but assistance extended to the Assistant Commissioner in the execution of his order. Therefore, in the circumstances of the case and in the light of the Decision of the Division Bench in LAXMAMMA's case, I hold that the direction issued by the Assistant Commissioner to the Tahsildar in the instant case cannot be held to be sub-delegation of power. Hence, I reject the contention.
11. Sri Kamate, learned Counsel for the petitioners, further submits that Sushila, mother of the petitioners, having purchased two items of lands in an auction of right of cultivation held by the Court Commissioner, continued to be in possession and enjoyment thereof even as on the date when the Assistant Commissioner took action under Section 54 of the Code of Civil Procedure pursuant to the decree made by the Civil Court. Therefore, in the absence of subsequent order appointing Court Commissioner for the purpose, petitioners' possession cannot be disturbed. His further contention is that the Assistant Commissioner was in error in not bringing the petitioners as the legal representatives of the deceased Surendra on record, though the Deputy Commissioner brought them on record in appeal. Per contra, Sri. K.I. Bhatta, learned Counsel for respondents 5 and 6, argued that the said Sushila was not the legally wedded wife of the deceased Surendra and that therefore the petitioner being not the legitimate sons of Sushila were not entitled to come on record. Moreover, in a proceeding under Section 54 of the Code of Civil Procedure only parties before the Civil Court could be given opportunity of being heard and not others. He relied upon a Decision of this Court in ASHOK PADMAPPA SHETTY AND ANR. v. SPECIAL DEPUTY COMMISSIONER, BELGAUM AND ORS., ILR (Karnataka) 1981(2), 1318.
12. I do not see any substance in the contentions of Sri Kamate. It is an admitted fact that Sushila came into possession of the two items of lands by virtue of the auction of right of cultivation held by the Court Commissioner. Auction of right of cultivation was to be held every year, but the Court has not appointed the Commissioner for the purpose subsequently as contended by Sri Kamate. Therefore Sushila was having right of cultivation only for that particular year. In the absence of auction of right of cultivation subsequent thereto, what is the locus standi of Sushila or her sons, the petitioners herein, to remain in possession of the lands subsequent to the year of her purchase of right of cultivation. Further, even if at all there was Commissioner appointed by the Court to auction right of cultivation, subsequently that order merges in the final decree proceedings and consequently the right Sushila derived from the auction of right of cultivation of the lands in question was annihilated. Therefore, the petitioners have no right or interest to continue in possession of the two items of lands.
13. Coming to the question of non-impleading the petitioners in the proceedings before the Assistant Commissioner under Section 54 of the Code of Civil Procedure, this Court in Ashok Padmappa's case, referred to above, has held as follows:
"Under Section 54 of the C.P.Code, it is the duty of the Deputy Commissioner to effect a partition in accordance with the decree made by a Civil Court. If in the process of effecting such a partition, he gives an opportunity of hearing to the parties, such an opportunity should clearly be confined to the parties before the Civil Court. In allowing a third party, even though he was a purchaser from one of sharers concerned in the proceedings for partition before the Civil Courts, the Assistant Commissioner has clearly exceeded his jurisdiction under Section 54 of C.P.Code. So long as such third party had not been brought on record before the Civil Court, and made a party to any decree, he is not entitled to participate in the proceedings under Section 54 of C.P.Code."
From the above it is manifest that the Assistant Commissioner is duty bound to give opportunity of being heard only to the parties before the Civil Court and not others. The Assistant Commissioner has rightly done so. Further, it is alleged that Sushila was the kept mistress of deceased Surendra and that therefore the petitioners being not the legitimate sons of Surendra were not entitled to come on record. I do not want to express anything upon this because any observation made by me in this behalf may affect the merits of the suit filed by the petitioners before the Civil Court for partition and separate possession of the properties held by deceased Surendra.
14. Viewed from any angle, I do not see any good ground to interfere with the orders impugned in this petition. The Writ Petition fails and is accordingly dismissed. No costs.
15. However, the submission of Sri Kamate, learned Counsel for the petitioners, that the petitioners being in possession of the two items of the land, this year, have raised vegetable crops and that therefore they may be permitted to harvest the crops before they are evicted from the lands or in the alternative, they may be paid the market value of the crops, requires consideration, in view of the fair submission made by Sri. K.I. Bhatta, learned Counsel for respondents 5 and 6 that the respondents will immediately pay the market value of the vegetable crops. Therefore, respondents 5 & 6 are hereby directed to pay the market value of the vegetable crops, if standing on the lands in possession of the petitioners, to be decided by the Panchas, under a Mahazar drawn in the presence of Panchas.