Karnataka High Court
Sri A S Javeed Ahmed vs Bruhat Bangalore Mahanagara Palike on 22 March, 2013
Author: A.S.Bopanna
Bench: A.S.Bopanna
1
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 22ND DAY OF MARCH, 2013
BEFORE
THE HON' BLE MR. JUSTICE A.S.BOPANNA
W.P NO 1067 OF 2013((LB-BMP)
BETWEEN
SRI A S JAVEED AHMED
AGED ABOUT 46 YEARS,
S/O LATE MR. ABDUL SATTAR,
RESIDING AT NO.6,
ALBERT STREET,
RICHMOND TOWN,
BANGALORE - 560 025.
... PETITIONER
(BY SHRI. B PRAMOD, ADVOCATE)
AND
1. BRUHAT BANGALORE MAHANAGARA PALIKE
N.R SQUARE, BANGALORE
REPRESENTED BY ITS COMMISSIONER
2. THE JOINT COMMISSIONER
EAST DIVISION,
BRUHATH BANGALORE MAHANAGARA PALIKE,
MAYOHALL, RESIDENCY ROAD,
BANGALORE - 560 001.
3. THE ADDITIONAL COMMISSIONER
EAST DIVISION,
BRUHATH BANGALORE MAHANAGARA PALIKE,
MAYOHALL, RESIDENCY ROAD,
BANGALORE - 560 001.
4. THE ASSISTANT REVENUE OFFICER
SHANTHI NAGAR SUB-DIVISION,
2
BRUHATH BANGALORE MAHANGARA PLAIKE,
MAYOHALL, RESIDENCY ROAD,
BANGALORE - 560 001.
5. SRI. S. RAMESH, MAJOR,
FATHER NAME NOT KNOWN,
RESIDING AT NO.117,
BULL TEMPLE CROSS ROAD,
BANGALORE - 560 025.
6. SRI. S. SALEEM AHMED
AGED ABOUT 70 YEARS,
S/O LATE SAHEB PEERAN,
RESIDING AT NO.18,
NANDIDURGA ROAD,
JAYAMAHAL,
BANGALORE - 560 046.
... RESPONDENTS
(BY SHRI. S N PRASHANTH CHANDRA, ADV. FOR R1-R4,
SHRI.L.S.CHIKKANAGOUDAR & ASSOCIATES
ADVOCATES FOR R6, R5 - SERVED)
THIS WRIT PETITION FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ENDORSEMENT DT.14.12.12 VIDE ANN-A
ISSUED BY THE R4 ETC.
THIS WRIT PETITION IS COMING ON FOR
PRELIMIDNARY HEARING IN "B" GROUP THIS DAY, THE
COURT MADE THE FOLLOWING:-
ORDER
The petitioner is before this Court assailing the endorsement dated 14.12.2012, which is impugned at Annexure-A to the petition. Petitioner is also seeking for 3 issue of direction by way of mandamus to respondents 1 to 4 to transfer the khata in the name of the petitioner in respect of the schedule property.
2. The petitioner is claiming right in respect of the property bearing No.5, Old No.4, PID No.70-7-5 situated at Berlie Street Cross, Langford Town, Bangalore, having purchased the same under a sale deed dated 18.5.2012 from Smt. Muneera Begum and her children. In that regard, the petitioner is stated to have made a request with the statutory respondents seeking change of khata. It is in that circumstance, the impugned endorsement has been issued to the petitioner stating that the request cannot be considered in view of the pendency of the suit in O.S. No.25033/2007.
3. The contesting respondent has filed the objection statement and has opposed the prayer made in the instant petition. The matter in that view requires to be considered only to the extent that would be admissible in so far as the right which has been sought by the parties for the purpose of entry of khata is concerned. The fact that the vendor of the petitioner was a party to an earlier appeal in RFA 4 No.386/2004 is a matter of record. The vendor has succeeded in the said appeal. Pursuant thereto, the khata entry has been made in the name of Smt. Muneera Begum, in view of the earlier direction which had been issued by this Court in W.P.No.17843/2008 disposed of on 11.11.2009. The fact that presently the suit in O.S. No.25033/2007 is pending between the parties is also not in dispute.
4. The only question for consideration at this juncture is as to whether the request for khata should be considered despite the suit in O.S.No.25033/2007 being pending. The contesting respondent contends that since he was not a party to R.F.A. No.386/2004, the right granted in favour of Smt. Muneera Begum in the said proceedings cannot bind the contesting respondent and the ultimate result of the pending suit will decide the right of the contesting respondent and therefore during the pendency of the said suit, the khata cannot be transferred to the name of the petitioner. In that context, the contesting respondent would seek to justify the endorsement issued by the B.B.M.P. Even if the said contention is taken in to consideration, having noticed the 5 fact that the khata was changed to the name of the vendor and while doing so, the respondent had taken note of not only the disposal of R.F.A.No.386/2004, but also the pendency of the suit in O.S.No.25033/2007 and thereafter had ordered the change of khata to the name of the vendor of the petitioner. If that be the position, the question is as to whether the petitioner herein, who has subsequently purchased the property be denied the said right only on the ground that the said suit is pending consideration. In this regard, though the learned counsel for the contesting respondent contends that I.A.Nos.1 and 2 in the said suit had been filed seeking for injunction against alienation and changing the nature of the land, a memo dated 20.6.2008 had been filed in the said suit undertaking that the nature of the property would not be changed. That would be sufficient to deny the change of khata is the contention.
5. Admittedly, the applications have been disposed of only because of the memo that had been filed. A certified copy of the memo has been made available to this Court. Firstly, it would indicate that defendants 2, 7 and 9 therein have undertaken not to change the nature of the land. The 6 vendor of the petitioner is the 1st defendant in the said suit and therefore the undertaking is not related to the vendor of the petitioner. However, this Court would not go into the aspect of the nature of the undertaking that has been given to the court below, since that is an aspect which requires to be considered therein. However, when there was no positive injunction restraining alienation and when the alienation has taken place, the petitioner herein has also been subsequently impleaded in the said suit. If at all, there was to be a restraint, there should have been injunction, however the contentions relating to lis pendens etc, would not arise at this stage. Mere pendency of the suit, more particularly, when the khata had already been changed to the name of the vendor cannot be a circumstance, to deny the same benefit to the petitioner herein when the earlier change was made despite the pending suit. Therefore, in my opinion, the endorsement in the manner in which it has been issued is not justified. However, to protect the interest of the parties and to take note of the pendency of the suit, if the change of the khata is permitted to the name of petitioner, certainly the statutory respondent would have to make an entry in the 7 khata register with regard to the pendency of the suit in O.S.No. 25033/2007 and also indicate the same in the khata extracts as and when the khata extracts are issued to the parties or any other third party, who may seek khata extracts.
6. In the circumstances, the endorsement dated 14.12.2012 is quashed. A direction is issued to the 4th respondent to enter the khata in the name of the petitioner with necessary indication of the pendency of the suit as indicated above. If at all, the contesting respondent has any other right, it is open to the contesting respondent to seek for the same in the pending suit and the khata which has been changed would remain subject to the result of the suit pending between the parties.
7. In terms of the above, the petition stands disposed of.
SD/-
JUDGE Msu