Karnataka High Court
Sri R A Pradeep vs Sri N Murari on 17 June, 2020
Bench: Chief Justice, S Vishwajith Shetty
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JUNE, 2020
PRESENT
THE HON'BLE MR.ABHAY S. OKA, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY
WRIT APPEAL NO. 4652 OF 2017 (KLR-RR/SUR)
BETWEEN:
SRI R.A. PRADEEP
S/O SRI AMBIKAPATHI
AGED ABOUT 37 YEARS
R/AT NO.3/8, II CROSS
GANESHA BLOCK
BENGALURU-560 032
... APPELLANT
(BY SRI RADESH PRABHU K, ADVOCATE)
AND:
1. SRI N. MURARI
S/O SRI H. NARAYANAPPA
R/AT NAGAVARA VILLAGE
KASABA HOBLI
BENGALURU NORTH TALUK-560045
2. THE SPECIAL DEPUTY COMMISIONER
BENGALURU DISTRICT
BENGALURU-560001
3. THE ASSISTANT COMMISSIONER
BENGALURU NORTH SUB-DIVISION
BENGALURU-560001
4. THE SPECIAL TAHSILDAR
BENGALURU NORTH TALUK
BENGALURU-560001
... RESPONDENTS
(BY SRI MITHUN G.A., ADVOCATE FOR
SRI G. D. ASWATHANARAYANA REDDY, ADVOCATE FOR R1;
SRI I. THARANATH POOJARY, AGA FOR R2 TO R4)
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THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE
THE ORDER DATED 01.03.2017 OF THE LEARNED SINGLE
JUDGE IN W.P.NO.12370/2009 (KLR-RR/SRU) AND
CONSEQUENTLY QUASH THE ORDER DATED 12.01.2009
PASSED BY THE RESPONDENT NO.2 - THE SPECIAL DEPUTY
COMMISSIONER, IN REVISION PETITION NO.205/2007-2008
VIDE ANNEXURE-A AND ETC.
THIS APPEAL COMING ON FOR DICTATING JUDGMENT
THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT
The appellant has filed I.A.No.1/2017 seeking condonation of delay of 105 days in filing the appeal. We have heard the learned counsel appearing for the appellant, the learned counsel appearing for the first respondent and the learned Additional Government Advocate appearing for the second to fourth respondents. In view of the sufficient cause made out in the affidavit filed in support of the application, the delay in filing the appeal is condoned. Accordingly, the application is allowed.
2. Issue notice of appeal. The learned counsel appearing for the first respondent takes notice. The learned Additional Government Advocate takes notice for the second to fourth respondents. By consent, the appeal was taken up for final disposal. The submissions were heard yesterday. -3-
3. The challenge in this appeal is to the judgment and order dated 1st March 2017 passed by the learned Single Judge. In a writ petition filed by the present petitioner, what was challenged before the learned Single Judge was an order passed on 12th January 2009 by the Special Deputy Commissioner, Bengaluru District in a Revision Petition filed under the provisions of sub- section (3) of Section 136 of the Karnataka Land Revenue Act, 1964 (for short 'the said Act of 1964').
4. With a view to appreciate the submissions, few facts will have to be set out. The land subject matter of the appeal has been more particularly described in paragraph 1 of the writ appeal. The dispute arises out of the mutation entry proceedings. According to the case of the first respondent, the subject land was a joint family property which was partitioned between him and his father - H.Narayanappa. The appellant purchased the subject land on 9th September 2005 from H. Narayanappa who is no more. On the basis of the Sale Deed, mutation entries were made in the Record of Rights. An order to that effect was passed by the Special Tahsildar on 24th April 2006 which was confirmed in an appeal preferred by the first respondent and therefore, a revision petition was filed by the first respondent. In the order dated 12th January 2009 which -4- was impugned before the learned Single Judge, it was observed that as the said H.Narayanappa refused to abide by the agreement relating to the partition, the first respondent filed a civil suit bearing O.S.No.6777/2005 on 3rd September 2005. On 3rd September 2005, on an I.A. filed by the first respondent in the said suit, an order of status quo was passed. The prayer in the I.A was to restrain the said H.Narayanappa from alienating the subject property. Before the said order of status quo could be served to said Sri H. Narayanappa, the Sale Deed dated 9th September 2005 was executed by him in favour of the appellant. Noting these facts, by the said order dated 12th January 2009, the Revisional Authority proceeded to set aside the orders of both the authorities and directed restoration of khatha as it is stood before and continue the same which will be subject to the decision of the Civil Court. It was observed that after the decision of the Civil Court, the parties are at liberty to approach the revenue authorities for such action as may be warranted in accordance with law. The learned Single Judge by the order impugned in this appeal confirmed the order of the Revisional Authority and directed the parties to maintain status quo regarding the possession till the disposal of the suit.
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5. As a factual aspect, we must also note here that by the judgment and order dated 5th December 2018, the suit was dismissed by the Trial Court. It is pointed out that an appeal has been preferred by the first respondent in this Court which is pending in which an interim order has been passed.
6. The learned counsel appearing for the appellant relied upon the provisions of Section 128 of the said Act of 1964 and submits that the authorities under the said Act of 1964 had no choice but to give effect to the registered Sale Deed. He submitted that the appellant's vendor has never challenged the Sale Deed or has never avoided the Sale Deed. He relied upon various decisions. Firstly, he relied upon a decision of a Division Bench of this Court in the case of SRINIVAS AMBAJI KULKARNI S/O AMBAJI KULKARNI VS. THE ASSISTANT COMMISSIONER, BELGAUM1. Secondly, he relied upon a decision of the learned Single Judge in the case of K. JAYAMMA & OTHERS VS. TAHSILDAR & ANOTHER2. Lastly, he relied upon a decision of the learned Single Judge of this Court in the case of P.K. VASUDEVAN VS. THE DEPUTY COMMISIONER OF KODAGU DISTRICT AND OTHERS3. 1 ILR 1997 KAR 1183 2 ILR 1999 KAR 3250 3 ILR 2002 KAR 4637 -6-
7. The learned counsel appearing for the appellant submitted that mutation entries were ordered to be made by the authorities on the basis of the Sale Deed for giving effect to the provisions of Section 128 of the said Act of 1964 and there was no reason for the Revisional Authority to interfere with the two concurrent orders only on the ground of pendency of the suit. He submitted that now in any case, the suit has been dismissed on merits and in fact, it is held that the appellant is a bona fide purchaser and that the Sale Deed dated 9th September 2005 is binding on the first respondent. He submitted that the Sale Deed was executed before the order of status quo was served upon his vendor. He submitted that merely because there was an order of status quo in operation when the Sale Deed was executed, it does not affect the title. He urged that the rights conferred on the appellant by virtue of the Sale Deed remain unaffected. He submitted that the order passed by the Revisional Authority of restoring the name of the appellant's vendor who is no more is completely illegal. He urged that a void cannot be created in the revenue records by directing restoration of name of a deceased person. He submitted that it will completely defeat the scheme of the said Act of 1964.
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8. The learned counsel appearing for the first respondent supported the impunged order. His submission is that the Sale Deed on which the appellant is placing reliance is nullity. He relied upon the decisions of the Apex Court in the case of JEHAL TANTI AND OTHERS VS. NAGESHWAR SINGH (DEAD) THROUGH LRS4, SURJIT SINGH AND OTHERS VS. HARBANS SINGH AND OTHERS5, MATHURA PRASAD VS. AJEEM KHAN6 and SATYABRATA BISWAS AND OTHERS VS. KALYAN KUMAR KISKU AND OTHERS7. He submitted that no interference is called for. The learned Additional Government Advocate also supported the impugned judgment and order as well as the judgment and order of the Revisional Authority.
9. Few are the admitted facts. The appellant's vendor had executed the Sale Deed in favour of the appellant when a substantive suit bearing O.S.No.6777/2005 filed by the first respondent for seeking partition and separate possession of half share against the appellant's vendor was pending. On an interim application seeking temporary injunction restraining the appellant's vendor from alienating the property, an order of status quo was passed by the Trial Court on 3rd September 4 (2013) 14 SCC 689 5 (1995) 6 SCC 50 6 (1990) 3 SCC 659 7 (1994) 2 SCC 266 -8- 2005 which was in force on 9th September 2005 when the Sale Deed in favour of the appellant was executed. Though the said suit has been dismissed by the judgment and order dated 5th December 2018, a substantive appeal preferred by the first respondent to this Court is pending which is a continuation of the proceedings of the suit.
10. The writ petition before the learned Single Judge arose out of the proceedings relating to the revenue entries. As far as the revenue entries are concerned, the law is well settled. In paragraph 9 of the decision of the Apex Court in the case of SURAJ BHAN AND OTHERS VS. FINANCIAL COMMISSIONER AND OTHERS8, the Apex Court held thus:
"9. There is an additional reason as to why we need not interfere with that order under Article 136 of the Constitution. It is well settled that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. It is settled law that entries in the revenue records or jamabandi have only "fiscal purpose" i.e. payment of land revenue, and no ownership is conferred on the basis of such entries. So far as title to the property is concerned, it can only be decided by a competent civil court (vide Jattu Ram v. Hakam Singh). As already noted earlier, civil proceedings in regard to genuineness of will are pending with the High Court of Delhi. In the circumstances, we see no reason to interfere with the order passed by the High Court in the writ petition."
(underline supplied) 8 (2007) 6 SCC 186 -9-
11. In the case of RAMESH DUTT AND OTHERS VS. STATE OF PUNJAB AND OTHERS9 in paragraph 15 of its decision, the Apex Court held thus:
"15. Mr Grover, learned counsel appearing on behalf of the respondents, may not be correct in contending that only because the order of mutation made in favour of the appellants had been cancelled, the same ipso facto would lead to the conclusion that they have no title over the property. It is now a well-settled principle of law that entry in a revenue record-of-rights merely is an evidence of possession. (See Faqruddin v. Tajuddin) Such an entry does not create title; absence thereof does not extinguish the same. Furthermore, it is one thing to say that the appellants had committed acts of criminal misconduct while trying to obtain orders of mutation but it is another thing to say that only because they filed such an application, the same by itself would tantamount to commission of a criminal offence."
(underline supplied)
12. Lastly, the issue regarding relevance of the mutation entries and the entries in the revenue records is dealt with by the Apex Court in the case of MUNICIPAL CORPORATION, AURANGABAD THROUGH ITS COMMISSIONER VS. STATE OF MAHARASHTRA AND ANOTHER10. Paragraph 13 of the said decision reads thus:
9
(2009) 15 SCC 429 10 (2015) 16 SCC 689
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"13. It is settled that mutation does not confer any right and title in favour of any one or other, nor cancellation of mutation extinguishes the right and title of the rightful owner. Normally, the mutation is recorded on the basis of the possession of the land for the purposes of collecting revenue."
(underline added)
13. Thus, the law is very consistent. Even if by virtue of a mutation entry, the name of a person is entered in revenue records in respect of an immovable property, it does not confer any right, title and interest on the said person. Even if the name of a person appearing in the revenue record is removed, it does not extinguish the right, title and interest, if any, vesting in him in respect of the property. The mutation or revenue entries are made only for fiscal purposes for deciding the liability to pay land tax or land revenue. Consequently, the orders passed under the said Act of 1964 concerning the mutation entries and the revenue entries do not decide the issue of title in respect of the properties affected by the entries. Notwithstanding the orders of the authorities under the said Act of 1964 concerning mutation entries and the revenue entries, the aggrieved party can always establish his title by approaching the Civil Court. At the highest, an entry in revenue record, may in a given case, constitute prima facie
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evidence of possession. But the said entries being made only for fiscal purposes have nothing to do with the title in respect of the immovable property. Therefore, while dealing with the writ petitions under Articles 226 and 227 of the Constitution of India arising out of the proceedings concerning mutation/revenue entries, normally a Writ Court should be very slow in interfering with the orders inasmuch as the orders do not affect the right, title and interest of the parties and do not take away the remedy of the parities to approach the Civil Court. In fact, the orders passed by the revenue authorities concerning mutation entries and revenue entries are always subject to the adjudication by the competent Civil Court.
14. All that the Revisional Authority has done is that after noticing the pendency of the suit for partition filed by the first respondent against the vendor of the appellant which was pending on the date of execution of the Sale Deed, he directed that the mutation entry earlier existed should be restored which will be subject to the decision in the civil suit and further directed that after the final decision in the civil suit, the parties can again approach the revenue authorities.
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15. A perusal of the judgment in the suit shows that the issues whether the appellant was a bona fide purchaser and whether the Sale Deed was binding on the first respondent were framed in the suit. Now the said issues are at large, as a substantive appeal against the judgment and decree is pending in this Court, which is a continuation of the suit. That is why the learned Single Judge did not interfere with the order of the Revisional Authority. As held earlier, in such cases and especially, when a civil suit on title is pending, a Writ Court should be very slow in interfering with the orders of the revenue authorities and that is how the approach adopted by the learned Single Judge cannot be faulted with.
16. We may note here that there are catena of decisions of the Apex Court which hold that a Sale Deed which is executed in breach of the order of injunction is not valid. However, as this appeal arises out of the proceedings for revenue entries, we are not deciding the said issue as the said issue will be naturally of the title, more so when the issue of title is subject matter of the pending appeal in this Court.
17. In the concluding part of the impugned order, the learned Single Judge has passed an order of status quo regarding
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possession till the decision of the civil suit. The appellant/writ petitioner was impleaded as a party to the suit. Therefore, any order of injunction, if required to be made against the appellant, could have been made only by the Civil Court. Moreover, while deciding the issue regarding the legality of the order relating to mutation entry, the learned Single Judge ought not to have gone into the issue of possession. Therefore, to that extent, interference will have to be made with the impugned order.
18. Accordingly, we pass the following order:
(i) The impugned judgment and order of the learned Single Judge in so far as it confirms the order of the Revisional Authority dated 12th January 2009 (Annexure-A to the writ petition) is upheld and no interference is called for;
(ii) However, that part of the impugned order by which the learned Single Judge directed both the parities to maintain status quo with regard to the possession till the decision of the Civil Court is hereby set aside;
(iii) We make it clear that we have made no adjudication on the disputed questions of title which are involved in the pending appeal;
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(iv) The appeal is partly allowed on the above terms;
(v) The pending interlocutory application stands disposed of.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE AHB/SN