Karnataka High Court
Shri.Channappa S/O Honnappa Hukkeri vs The State Of Karnataka on 22 September, 2020
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22nd DAY OF SEPTEMBER 2020
BEFORE
THE HON'BLE MR.JUSTICE S.R. KRISHNA KUMAR
WRIT PETITION NO.147706/2020 (KLR-RES)
BETWEEN
SHRI.CHANNAPPA S/O HONNAPPA HUKKERI
AGE: 78 YEARS, OCC: AGRICULTURE,
R/O: WARD NO.3, MAHALINGAPUR,
TQ: MUDHOL, DIST: BAGALKOTE.
... PETITIONER
(BY SRI. DINESH M KULKARNI, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
DEPARTMENT OF REVENUE
REPRESENTED BY SECRETARY,
AMBEDKAR VEEDHI, BENGALURU.
2. THE DEPUTY COMMISSIONER
NAVANAGAR, BAGALKOTE.
3. DEPUTY DIRECTOR OF LAND RECORDS
NAVANAGAR, BAGALKOTE.
4. ASSISTANT DIRECTOR OF LAND RECORDS
MUDHOL.
5. RAHUL S/O RACHAPPA KULLOLLI
AGE: 34 YEARS, OCC: AGRICULTURE,
R/O: MAHALINGPUR, TQ: MUDHOL,
DIST: BAGALKOTE.
... RESPONDENTS
(BY SRI. VINAYAK KULKARNI, AGA FOR R1 TO R4)
(BY SRI. J S SHETTY, ADVOCATE FOR R5)
2
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND
227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER PASSED BY THE 2ND RESPONDENT IN
NO.RP[SY]/31/2019 DATED 27.08.2020 VIDE ANNEXURE-M.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING B GROUP, THIS DAY, THE COURT, MADE THE
FOLLOWING:
ORDER
In this petition, the petitioner seeks quashing of the impugned order at Annexure-M dated 27.08.2020 whereby the 2nd respondent-Deputy Commissioner allowed the revision petition filed by the 5th respondent thereby directing the respondent No.4-ADLR to conduct survey and prepare report in respect of subject land bearing Sy.No.83 measuring 7 acres 36 guntas situated at Mahalingapur, Mudhol Taluk. By the impugned order, the 2 n d respondent also directed that both petitioner and 5 t h respondent would be bound by the result of the civil court in the pending civil suit in OS No.359/2016 between the petitioner and 5 t h respondent.
3
2. Brief facts giving rise to the present petition are as under:
The petitioner claiming to be the owner of land bearing RS No.83 measuring 7 acres 36 guntas out of the total extent of 18 acres 17 guntas situated at Mahalingapur, Taluk Mudhol, Bagalkot District filed a suit in OS No.359/2016 for declaration and permanent injunction on the file of the Prl. Civil Judge, Mudhol. In the said suit, Rahul-5th respondent herein was arrayed as defendant No.18. The said 5th respondent has been placed exparte in the said suit OS No.359/2016 and has not entered appearance so far.
3. During the pendency of the said suit in OS No.359/2016, the 5th respondent herein submitted an application dated 21.09.2017 vide Annexure-E to the Survey authorities requesting them to conduct survey and phoding of the land bearing Sy.No.83/1B. Pursuant thereto, in proceedings before the 4th respondent-ADLR, 4 the petitioner herein opposed the same and was arrayed as the respondent. By order at Annexure-G, dated 28.6.2018, the 4th respondent allowed the petition and directed the Survey Officer to conduct survey and submit a report as sought for by the 5th respondent.
4. Aggrieved by the aforesaid order passed by the ADLR, the petitioner herein preferred an appeal before the appellate Authority i.e. the DDLR-3rd respondent herein. By order at Annexure-H dated 26.12.2018, the 3rd respondent allowed the appeal preferred by the petitioner and set-aside the order passed by the ADLR. While doing so, the 3rd respondent came to the conclusion that the parties would be bound by final result of the aforesaid suit in OS No.359/2016 pending between the parties.
5. Aggrieved by the said order passed by the DDLR, the 5th respondent herein preferred revision before the 2nd respondent-Deputy Commissioner. By the impugned order at Annexure-M dated 27.8.2020, the 2nd respondent allowed the revision petition. Aggrieved by the 5 impugned order at Annexure-M, the petitioner is before this Court by way of the present petition.
6. I have heard the learned counsel for the petitioner and learned AGA for respondents 1 to 4 and learned counsel for 5th respondent and perused the material on record.
7. Learned counsel for the petitioner submits that while allowing the appeal filed by the petitioner against the order passed by the ADLR directing survey, the DDLR- appellate authority had not only taken into account the pendency of OS No.359/2016 between the petitioner and 5th respondent, but also the undisputed fact that in the said OS No.359/2016, the trial Court had passed an order appointing the DDLR as the Court Commissioner to conduct survey of Sy.No.83. Under these circumstances, the DDLR was of the opinion that since both parties are before the competent civil Court in respect of subject land coupled with the fact that the civil Court had already appointed a Court Commissioner to conduct survey, it 6 would not be proper to appoint the ADLR to conduct a parallel survey and consequently, the appellate authority- DDLR set-aside the order passed by the ADLR and relegated the parties to the competent civil Court wherein the suit in OS No.359/2016 was pending between the parties.
8. Learned counsel submits that the Deputy Commissioner despite noticing not only pending civil suit in OS No.359/2016 between the petitioner but also the undisputed fact that the Court Commissioner had already been appointed by the civil Court committed an error in directing a parallel survey to be conducted by the ADLR by passing the impugned order. It is pointed out that having noticed and come to the conclusion that the parties would be bound by the decision of the civil Court in OS No.359/2016, the Deputy Commissioner committed an error in directing a separate, parallel and independent survey to be conducted by the ADLR despite DDLR already having been appointed by the Civil Court. Further, the 7 Court Commissioner-DDLR has already conducted survey and submitted report before the civil Court in OS No.359/2016 which is pending adjudication. It is therefore, submitted that the impugned order at Annexure-M is vitiated and contrary to law and facts and that the same deserves to be quashed by this Court.
9. Per contra, learned counsel for the 5th respondent submits that the petitioner has not come to the court with clean hands and his conduct disentitles him from any relief at the hands of this Court. It is submitted that there have been previous litigation between the 5th respondent and the petitioner's brother who, having been unsuccessful in the said litigations has set-up his brother, the petitioner herein to file the aforesaid OS No.359/2016 as well as the present survey proceedings by putting forth false, frivolous and an untenable contentions.
10. Learned counsel for 5th respondent invites my attention to the order dated 21.08.2018 passed in OS No.359/2016 in order to contend that the said order 8 passed by the civil Court allowing IA No.3 filed by the petitioner and appointing the DDLR was an unilateral and exparte order and no opportunity was given to the 5th respondent herein to contest the same. It is also submitted that even during the course of the alleged survey, no notice or opportunity was given to the 5th respondent which clearly vitiates both the survey as well as report submitted by the Court Commissioner. Learned counsel submits that the 5th respondent would be taking appropriate steps to enter appearance in OS No.359/2016 and defend the suit as defendant No.18. So also, the 5th respondent would also be taking suitable steps to challenge the very appointment of the Court Commissioner by the civil Court in OS No.359/2016 as well as the report submitted by the Court Commissioner by taking recourse to the available legal remedies. It is therefore, submitted that the impugned order directing the survey to be conducted by the ADLR does not warrant interference by this Court in the present writ petition.
9
11. The material on record indicates that DDLR who was appointed as a Court Commissioner in OS No.359/2016 has already conducted survey and submitted his report which is now part and parcel of the records in the said suit. So also, it is the specific contention of the 5th respondent that he intends to challenge the very appointment of the DDLR as a Court Commissioner in addition to assailing the report submitted by him. It is his grievance that no opportunity was granted to the 5th respondent with regard to the appointment of the DDLR as a Court Commissioner neither to conduct survey nor the survey conducted by the DDLR and submission of his report to the civil Court. Under these circumstances, without expressing any opinion on the merits/demerits of the rival contentions and in order to ensure that sufficient opportunity is granted in favour of both parties including the petitioner and 5th respondent in the matter of conducting survey by the revenue authorities, I deem it fit and proper to dispose of this writ petition modifying the impugned order and by directing the jurisdictional ADLR to 10 be appointed as a surveyor to conduct survey of the subject land bearing Sy.No.83 situated at Mahalingapur, Mudhol Taluk and also issue further directions in this regard.
12. In the result, I pass the following:
ORDER
a) Petition is hereby disposed of.
b) The impugned order dated 27.08.2020 passed by the 2 n d respondent vide Annexure- M is hereby modified.
c) With the consent of learned counsel for the petitioner and learned counsel for 5th respondent, jurisdictional Assistant Director of Land Records (ADLR), is hereby appointed as a Surveyor to conduct survey of land bearing Sy.No.83 situated at Mahalingapur, Mudhol Taluk and submit his report to the civil Court where OS No.359/2016 is pending adjudication.
d) The aforesaid Surveyor/ADLR is hereby directed to conduct survey after giving sufficient notice to both the petitioner as well as the 5 t h respondent.11
e) Both petitioner and the 5 t h respondent are at liberty to file respective memo of instructions before the aforesaid ADLR/Surveyor before he commences the survey work.
f) The report to be submitted by the ADLR before the Civil Court in the aforesaid OS No.359/2016 shall be treated as part and parcel of the records in the said sui t.
g) During the course of the proceedi ngs in OS No.359/2016, both the petitioner as well as the 5th respondent are at liberty to file objections and i mpeach the report already submitted by the DDLR-Court Commissioner in OS No.359/2016 as well as file objections and impeach the report to be submitted by the ADLR pursuant to this order; so also, both petitioner and the 5 t h respondent are at liberty to examine/cross-examine either ADLR or DDLR or both of them as the case may be.
h) It is further directed that neither the report already submitted by the DDLR nor the report to be submitted by the ADLR shall be implemented till disposal of the suit in OS No.359/2016 pending adjudication before the Trial Court.12
i) Since the 5 t h respondent who is arrayed as defendant No.18 in OS No.359/2016 has been placed exparte and has not contested the suit so far, in view of this order, I deem it appropriate to permit and reserve liberty in favour of the 5th respondent to file necessary application seeking permission of the civil Court in OS No.359/2016 to contest the said suit on all grounds including filing objections and impeaching any of the survey reports; upon such an application being made by the 5 t h respondent, the civil Court shall consider the same in a liberal manner and permit the 5 t h respondent to contest the suit as stated supra.
j) All rival contentions between the parties on merits are kept open and no opinion is expressed on merits/demerits of the rival contentions.
k) Subject to the above directions, this writ petition stands di sposed of.
Sd/-
JUDGE JTR