Karnataka High Court
Shri Shantappagouda And Anr vs The Assistant Commissioner & Ors on 9 January, 2018
Author: B Sreenivase Gowda
Bench: B. Sreenivase Gowda
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 9TH DAY OF JANUARY, 2018
BEFORE
THE HON'BLE MR. JUSTICE B. SREENIVASE GOWDA
W.P.No.205008/2017 (KLR-RR-SUR)
BETWEEN:
1. SHRI.SHANTAPPAGOUDA S/O
NARASANAGOUDA
AGE: 45 YEARS OCC: AGRICULTURE
2. SHRI.BHIMAPPAGOUDA S/O NARASANAGOUDA
AGE: 42 YEARS OCC: AGRICULTURE
BOTH R/O: SINGANODI VILLAGE
TQ & DIST: RAICHUR-584102.
... PETITIONERS
(BY SRI.BASAVARAJ KAREDDY & SRI.BIRADAR
VIRANGOUDA ADVOCATES)
AND:
1. THE ASSISTANT COMMISSIONER
RAICHUR-584101.
2. THE TAHASHILDAR
RAICHUR-584101.
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3. SHRI.NAKKA NARASAPPA
S/O NAKKA DODDA HANMANTH
AGE: 61 YEARS OCC: AGRICULTURE
R/O: SINGANODI VILLAGE
TQ & DIST: RAICHUR-584102.
4. SHRI.NAKKA HUSAINAPPA
S/O NAKKA SANNA HANMANTH
AGE: 66 YEARS OCC: AGRICULTURE
R/O: SINGANODI VILLAGE
TQ & DIST: RAICHUR-584102.
...RESPONDENTS
(BY SRI.K.M.GHATE, ADV, FOR R1,
BY SRI.RAVI.B.PATIL ADV, FOR R3
BY SRI.GANESH NAIK & SRI.V.S.PATIL ADVOCATES
FOR CAVEATOR/R4,
BY SRI.SACHIN.M.MAHAJAN, ADV., FOR R4 (NOC)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA
PRAYING TO A WRIT OF CERTIORARI QUASHING THE
ORDER OF 2ND RESPONDENT DATED 26.07.2017 IN
FILE RRT/APPEAL/33/2016-17 VIDE ANNEXURE-C
AND ETC.,
THIS PETITION COMING ON FOR HEARING-
INTERLOCUTORY APPLICATION THIS DAY, THE
COURT MADE THE FOLLOWING:-
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ORDER
Heard Sri.Basavaraj Kareddy, learned counsel for petitioners, learned Additional Government Advocate for respondents No.1 and 2, Sri.Ravi.B.Patil, learned counsel for respondent No.3 and Sri.Sachin.M.Mahajan, learned counsel for contesting respondent No.4. Perused the writ petition and Annexures produced along with the writ petition and statement of objections filed by respondents and Annexures produced along with the same.
2. Sri.Basavaraj Kareddy, learned counsel for the petitioners submits that respondents No.3 and 4 filed a suit in O.S.No.148/2015 against the petitioners, before the Addl. Senior Civil Judge at Raichur, seeking to declare them as owners of the suit schedule properties, by declaring the impugned mutation orders as null and void and seeking other reliefs. Subsequently in the year 2016 they filed an appeal before the 4 Assistant Commissioner, Raichur challenging the mutation effected by the Tahasildar, Raichur, during the year 1983-84, in favour of the petitioners in respect of the suit schedule properties. The Assistant Commissioner, Raichur, inspite of noticing that the subject of the appeal has already become the subject matter of the suit and instead of disposing of the appeal with an observation that the mutation effected by the Tahasildar will be subject to result of the said suit, has committed an error in allowing the appeal and setting aside the mutation effected by the Tahasildar in the year 1983-84. Therefore, he prays for allowing the writ petition by setting aside the order passed by the Assistant Commissioner, Raichur at Annexure-C.
3. The learned counsels appearing for respondents No.3 and 4 jointly submit that petitioners have made counter claim in the suit filed by respondents No.3 and 4 in O.S.No.148/2015 and in the 5 said counter claim they have admitted the ownership of respondents No.3 and 4 over the suit schedule properties. The learned counsels further submit that, the Tahasildar, Raichur without any basis had mutated the names of petitioners in the revenue records. Considering the same the Assistant Commissioner, Raichur was justified in allowing the appeal and setting aside the mutation effected by the Tahasildar, Raichur in the names of petitioners. The learned counsels further submit that appeal provided under Section 136 (2) of the Karnataka Land Revenue Act, is an alternative remedy available to respondents No.3 and 4, as such respondents No.3 and 4 were not prevented from questioning the mutation effected by the Tahasildar, Raichur in the names of petitioners, by preferring an appeal before the Assistant Commissioner under Section 136 (2) of the Karnataka Land Revenue Act. They submit that merely because there is already a suit pending between the parties it is not a ground for the 6 Assistant Commissioner to dismiss the appeal. With these grounds they prayed for dismissal of the writ petition.
4. Respondents No.3 and 4 have instituted a suit in O.S.No.148/2015 against the petitioners before Addl. Senior Civil Judge at Raichur, seeking for the following relief's;
(a) Decree by declaring that, the plaintiffs are the absolute owners of the "Suit Schedule Properties",
(b) Decree, issue of recovery of possession, by directing the defendants, to hand-over the vacant portion of the suit schedule properties, in favour of plaintiffs,
(c) Decree, issue of mandatory injunction, by directing the defendants, to pay the compensation amount, towards wrongful alienation of the mud, situated in the suit schedule properties, 7
(d) Decree, by declaring the impugned documents, which were registered in the Sub-Registrar's office at Raichur, and letter of other authorities, as Null and void and not binding on the plaintiffs,
(e) Decree by declaring that the impugned mutation orders, which were effected, behind back and knowledge of the plaintiffs, as Null and void and not binding on the plaintiffs, along with and other mutation/transactions which may surface in connections with the suit schedule properties,
(f) Decree, by directing the revenue authorities to enter the name of the plaintiffs in the revenue records of the suit schedule properties.
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5. Respondents subsequent to filing of the aforesaid suit preferred an appeal before the Assistant Commissioner Raichur challenging the mutation effected by the Tahasildar, Raichur in favour of petitioners in respect of the lands which are the subject matter of the suit in O.S.No.148/2015.
6. Further one of the prayers made in the suit in O.S.No.148/2015 is to declare the mutation effected by the Tahasildar in favour of the petitioners in respect of the suit schedule lands. The Assistant Commissioner without considering the same has committed an error in allowing the appeal filed by respondents No.3 and 4 and setting aside the mutation effected by the Tahasildar during the year 1983-84 almost 30 years after such mutation.
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7. The mutation effected by the Tahasildar, Raichur, will always be subject to final result of the suit. The Assistant Commissioner, Raichur ought to have disposed off the appeal with an observation that mutation effected by the Tahasildar, Raichur will be subject to result of the suit. Hence, I pass the following:
ORDER The writ petition is allowed.
The impugned order passed by Assistant Commissioner, Raichur at Annexure-C dated 26.07.2017 is set-aside, with an observation that mutation effected by the Tahasildar, Raichur, vide M.R.No.102 and 103/1983-84 in respect of suit schedule land Sy.Nos.388/*A, 388/*Aa, 387/*A and 387/*Aa, in favour of the petitioners will be subject to result of O.S.No.148/2015 by the Addl. Senior Civil Judge at Raichur.10
The Addl. Senior Civil Judge at Raichur shall decide the suit on merits and in accordance with law without being influenced by the mutation effected by the Tahasildar.
The contentions of petitioners as well as respondents No.3 and 4 are kept open to be urged in the suit.
Sd/-
JUDGE KJJ