Karnataka High Court
Sri. C H Hamsa Rawthar vs The Deputy Commissioner on 13 January, 2020
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JANUARY 2020
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NO.35761/2017(KLR-RES)
BETWEEN:
Sri.C.H.Hamsa Rawthar
S/o Mr. Hameed Rawthar
Aged about 66 years
R/o. No.14-194/3
New Extention, Madikeri
Kodagu District - 571 201.
... Petitioner
(By Sri. K.M.Somashekar, Adv. For
Sri.C.R.Gopalaswamy & Associates)
AND:
1. The Deputy Commissioner
Madikeri
Kodagu District - 571 201.
2. The Tahsildar
Madikeri Taluk, Madikeri
Kodagu District - 571 201.
3. St. Michael's Church Madikeri
Rep. by its Parish Priest
Rev.Alfred John Mendonza
Madikeri, Kodagu District - 571 201.
...Respondents
(By Sri.Y.D.Harsha, AGA for R-1 & R-2
Sri. T.A. Karumbaiah, Advocate for R-3)
2
This Writ Petition is filed under Articles 226 and
227 of Constitution of India praying to quash the
impugned order dated: 29.05.2017 passed by the R-1 in
R.A.No. 97/2015-16 vide Annexure-G and etc.
This Writ Petition coming on for Orders this day,
the Court made the following:
ORDER
The petitioner has filed the present writ petition for a writ of certiorari to quash the order dated 29.05.2017 passed by the Deputy Commissioner, Madikeri, in R.P.No.97/2015-16 vide Annexure-G.
2. It is the case of the petitioner that on 19.12.1992, the Chief Officer, Town Municipality, Madikeri, has allotted Sy.No.437/12, Block No.14 measuring 65x16 = 2.25 cents of land to the petitioner. It is further contended that when the things stood thus, the 3rd respondent filed O.S.No.159/2012 for declaration and permanent injunction in respect of the said property. After contest against the authorities of the State Government and the petitioner, the said suit came to be dismissed on 21.12.2013. Against the said 3 judgment and decree, the 3rd respondent has filed an appeal in R.A.No.7/2014 which also came to be dismissed. Against the concurrent findings of fact recorded by the Courts below, FR.RSA No.2168/2019 is filed before this Court which is still pending adjudication. In the meanwhile, the Deputy Commissioner proceeded to pass the impugned order directing the ADLR to identify the property in dispute bearing survey numbers mentioned in the concerned appeals filed before him and submit a report with sketch within 45 days. Hence, the present writ petition is filed.
3. I have heard the learned counsel for the parties to the lis.
4. Sri.K.M.Somashekar, learned counsel for the petitioner contended that the impugned order passed by the Deputy Commissioner dated 29.05.2017 made in R.P.No.97/2015-16 directing the ADLR to identify the properties in dispute bearing survey numbers 4 mentioned in the appeals and submit a report within 45 days is contrary to the material on record and cannot be sustained. It was further contended that when the 3rd respondent has already filed a suit for declaration and permanent injunction in respect of the very same property in question, the suit came to be dismissed on 21.12.2013 and subsequently, the Deputy Commissioner ought not to have initiated the proceedings in the revision filed by the 3rd Respondent. Once the 3rd respondent failed to succeed before the Civil Court for declaration and permanent injunction, the Deputy commissioner now cannot direct the ADLR to hold the survey of the property in question, which is the subject matter of the suit and also the appeal filed by the 3rd respondent, both came to be dismissed. He therefore sought to allow the writ petition.
5. Per contra, Sri.T.A.Karumbaiah, learned counsel for the 3rd respondent contended that the 3rd respondent is claiming right in respect of the property in question by virtue of the grant alleged to have been 5 made on 03.09.1840. It is further submitted that a suit came to be filed by the 3rd respondent for declaration and permanent injunction was dismissed and confirmed by the lower appellate court in R.A.No.7/2014 and both are the subject matter of FR.RSA No.2168/2019 pending before this Court. He therefore prays for dismissal of the writ petition.
6. Sri.Y.D.Harsha, learned Government Advocate has sought to justify the impugned order passed by the Deputy Commissioner.
7. Having heard the learned counsel for the parties, it is the specific case of the petitioner that the property in question was allotted by the Municipal Commissioner, Town Municipality, Madikeri and he has been in possession of the said property. The suit filed by the 3rd respondent in respect of the very same property came to be dismissed and the same was confirmed by the lower appellate court. It is the specific case of the 3rd respondent that the property in question 6 bearing Sy.No.452 and 437/5 of Karnangeri village (Municipal Sy.No.16 & 16/1), Block No.14 of Madikeri City Municipality totally measuring 2.09 acres was granted to the 3rd respondent on 03.09.1840 by the Commissioner erstwhile Coorg Province.
8. The fact remains that it is not in dispute that the 3rd respondent filed a suit for declaration in O.S.No.159/2012 in respect of the very same property in question against the authorities of the State Government, City Municipality, Madikeri and the present petitioner. After contest, the suit came to be dismissed on 21.12.2013. It is also not in dispute that the said judgment and decree was confirmed by the lower appellate court in an appeal R.A.No.7/2014 filed by the 3rd respondent. The concurrent findings of fact recorded by the courts below are the subject matter of FR.RSA No.2168/2019 pending before this Court.
9. When the civil court has already passed the judgment and decree and it is the subject matter of 7 Regular Second Appeal, in all fairness, the Deputy Commissioner ought not to have proceeded in the revision petition filed by the 3rd respondent. It is needless to observe that in a decree to be passed in the Regular Second Appeal pending between the parties is always binding on both the parties as well as the revenue authority including the Deputy Commissioner.
10. With the above observations, the writ petition is disposed of. However, it is made clear that the order passed by the Deputy Commissioner in the *R.A.No.97/2015-16 directing the ADLR to identify the *property mentioned in the *appeal is always subject to the result of FR.RSA.2168/2019 pending adjudication between the parties before this Court.
Ordered accordingly.
Sd/-
JUDGE Srl.
* Corrections carried out vide Court order dated 16.3.2020