Karnataka High Court
Mruthyunjaya Gouda S/O Late B V Basappa ... vs The State Of Karnataka on 6 November, 2012
Author: N. Kumar
Bench: N. Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 6TH DAY OF NOVEMBER 2012
PRESENT
THE HON'BLE MR. JUSTICE N. KUMAR
AND
THE HON'BLE MR. JUSTICE V. SURI APPA RAO
WA No.2146 OF 2006(KLR-RR-SUR)
BETWEEN
1. MRUTHYUNJAYA GOUDA
S/O LATE B V BASAPPA GOUDA
AGE : 38 YRS,
OCC : AGRICULTURE
R/O BENNUR,
POST : KAREHALLI
TALUK : SORABA,
DIST : SHIMOGA ... APPELLANT
(By Sri. JAYAKUMAR S PATIL, SENIOR COUNSEL FOR
M/S. JAYAKUMAR S. PATIL ASSOCIATES)
AND
1. THE STATE OF KARNATAKA
SECRETARY TO GOVERNMENT
DEPT OF REVENUE, M.S.BUILDING
DR.AMBEDKAR VEEDI
BANGALORE-560 001
2. THE DEPUTY COMMISSIONER
SHIMOGA DIST,
SHIMOGA
2
3. THE ASSISTANT COMMISSIONER
SAGAR SUB-DIVISION
SAGAR,
DIST : SHIMOGA
4. THE TAHASILDAR
SORABA TALUK
SORABA,
DIST : SHIMOGA
5. THE DEPUTY TAHASILDAR
NADA KACHERI,
ANAVATTI SORABA TALUK,
DIST : SHIMOGA
6. K SHIVAJI GOWDA
S/O. LATE K.S. PATIL
SINCE DEAD BY LRS
(A) SHANTHAMMA
W/O. LATE SHIVAJIGOWDA
(B)SURENDRA GOWDA
S/O. LATE SHIVAJIGOWDA
(C)RAMESHGOWDA
S/O. LATE SHIVAJIGOWDA
(D)SATHISH GOWDA
S/O. LATE SHIVAJIGOWDA
(E) ASHOK GOWDA
S/O. LATE SHIVAJIGOWDA
(F)SAROJAMMA
2ND W/O. LATE SHIVAJIGOWDA
(G)VIJAY GOWDA
S/O. LATE SHIVAJIGOWDA
3
(H)VINAYGOWDA
S/O. LATE SHIVAJIGOWDA
ALL ARE RESIDENTS OF BENNUR
VILLAGE, KEREHALLI POST
SORABA TALUK,
SHIMOGA DISTRICT. ... RESPONDENTS
(By Sri.K. KRISHNA, AGA FOR R1-5; SRI.K. G.
SHANTHAPPA, ADVOCATE FOR C/R6 AND R6(A-H))
-0-0-0-0-
THIS WRIT APPEAL IS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET
ASIDE THE ORDER PASSED IN WRIT PETITION
No.16227/2004 DATED 28/10/2006.
This writ appeal coming on for final hearing this
day, N. KUMAR, J. delivered the following:-
JUDGMENT
This appeal is filed challenging the order passed by the learned Single Judge who has set aside the order passed by the Deputy Commissioner setting aside the mutation entry in favour of the 6th respondent.
2. The subject matter of these proceedings is the land bearing Survey No.119/2 measuring 2 acres 17 4 guntas situated at Bennur Village, Sorabha Taluk, Shimoga District. B.V. Basappa Gowda was the owner of the land bearing Survey No.119 measuring 4 acres 24 guntas. It was a service Inam Land attached to the Office of the Pateli Umbali. The said B.V. Basappa Gowda gifted an extent of 2 acres 17 guntas in the said Survey number in favour of K.Shivaji Gowda, who is none other than the son of his elder sister. On an application filed for bifurcating the said property it was poded, Survey No.119 was bifurcated as Survey No.119/1 and Survey No.119/2. Survey No.119/2 being the subject matter of the gift on an application made for mutating the said land on the basis of the gift, mutation entry was made in M.R.No.4/1120/57-58 in the name of the petitioner. After poding, when a request was made to mutate his name in respect of Survey No.119/2, the Tahsildar passed an order rejecting the application and ordered to enter the name of B.V. Basappa Gowda in M.R.No.132/91-92. Aggrieved by the said order, the petitioner preferred an 5 appeal before the Assistant Commissioner, Sagar Sub- Division. The Assistant Commissioner by his order dated 30.6.1994 allowed the appeal and set aside the order of the Tahsildar dated 18.2.92 and directed that the name of the petitioner shall be entered in respect of Survey No.119/2 as per podi durasti. Challenging the said order, the son of said B.V. Basappa Gowda i.e. Mruthunjeya Gowda-6th respondent filed W.P.No.19448/94 before this Court. The said writ petition came to be dismissed by an order dated 5.10.98 holding that it was not maintainable and the 6th respondent ought to have filed a revision before the Deputy Commissioner. However, it also observed that it is open to the sixth respondent to file a suit and obtain a declaration and revenue entries shall be brought in conformity with the judgment and decree of the civil Court. Aggrieved by the said order, the 6th respondent preferred W.A.No.5577/98. The appeal was dismissed confirming the order of the learned Single Judge but an observation was made giving an option to the 6th 6 respondent to either approach the civil Court or the Deputy Commissioner. Thereafter the 6th respondent filed a revision petition challenging the order passed by the Assistant Commissioner. The Deputy Commissioner by his order dated 29.1.2004 allowed the revision and set aside the order of the Assistant Commissioner. Aggrieved by the same, the petitioner preferred a revision petition before this Court. the learned Single Judge held that on the basis of the registered gift, mutation entry was made in M.R.No.4/1120/57-58. The said mutation entry was not challenged by B.V.Basappa Gowda during his life time. After durasti and podi in pursuance of the earlier order, mutation entry ought to have been made in favour of the petitioner in respect of Survey No.119/2 by the Tahsildar. The Assistant Commissioner was justified in setting aside the said order. Once the mutation entry is made on the basis of a registered gift deed, even if that document is invalid in the eye of law that is a matter which cannot be adjudicated by the revenue authorities. It has to be 7 adjudicated by the civil Court. Therefore, the learned Single Judge was of the view that the order passed by the Deputy Commissioner is erroneous and accordingly, the learned Single Judge has set aside the order of the Deputy Commissioner and restored the order of the Assistant Commissioner directing to mutate the name of the petitioner in respect of Survey No.119/2. Aggrieved by the said order, this appeal is filed.
3. Sri. Jayakumar S. Patil, learned Senior Counsel appearing for the appellant assailing the impugned order contended that the observation of the learned Single Judge that the mutation entry came to be made in the name of the petitioner in M.R.No.4/1120/57-58 on the basis of the gift is factually incorrect. Annexure-"6c" produced in the case shows that B.V. Basappa Gowda appeared in the enquiry conducted and he sought for rejection of the application for mutation entry and accordingly, the Tahsildar rejected the mutation entry. Therefore, the argument that the mutation entry came to be effected 8 on the basis of a registered document and it was not challenged by B.V. Basappa Gowda is factually incorrect.
4. Per contra, the learned counsel appearing for the respondents pointed out that before poding, acting on the basis of the registered gift deed mutation entry was made in M.R.No.4/1120/57-58. When a request was made for entering the name of the petitioner in respect of Survey No.119/2 in respect of 2 acres 17 guntas, it was rejected. That gave raise to an appeal before the Assistant Commissioner, who has allowed the appeal and directed to mutate his name. Therefore, the order passed by the learned Single Judge is not based on misconception of facts and is in accordance with law.
5. From the aforesaid material it is clear that the petitioner is none other than the son of B.V. Basappa Gowda's elder sister. B.V. Basappa Gowda executed a registered gift deed dated 30.12.1957 in his favour gifting an extent of 2 acres 17 guntas out of 4 9 acres 24 guntas. Even to this date, that gift deed is not challenged. The argument is on the date the gift deed was executed as the land had vested in the Government, B.V. Basappa Gowda had no title to the property. Therefore, the gift deed was void. Now it is also not in dispute that under the provisions of the Karnataka Village Officer's Abolition Act on an application filed by the 6th respondent for regrant of the said land the said land is regranted by an order dated 8.11.1997. It is settled law that such regrant would enure to the benefit of the alinee. At any rate the questions, Whether under the registered gift deed dated 30.12.1957 the land in dispute was validly gifted to the petitioner? Whether he is entitled to the benefit of regrant after it is regranted on 8.11.1997? and Whether before such regrant he had no title to the property and as such the mutation entry made in his favour is invalid are all matters, which cannot be adjudicated by the revenue authorities under the provisions of the Karnataka Land Revenue Act. They fall exclusively within the domain of the civil 10 Court. Once there is a gift deed which is duly registered prima facie there is transfer of interest of immovable property and the donee is entitled to get the mutation entries in his name. That is how the donee's name was entered before poding. Even after poding it was only claimed on the basis of the said gift deed and the Tahsildar refused to make the mutation entry. The Assistant Commissioner was justified in directing him to make the entry. In revision, the Deputy Commissioner should not have interfered with the said order. Therefore, the learned Single Judge was justified in setting aside the order of the Deputy Commissioner and restoring the order of the Assistant Commissioner. This entry made is subject to the rights of the parties to be decided by a competent Civil Court if and when the parties approach the civil Court. It is also equally well settled that a mutation entry would not confer any title to the property. Therefore, the mutation entry will continue as directed by the Assistant Commissioner. However, it is subject to the decision of the civil Court. 11
6. Accordingly, this writ appeal is disposed of. Parties to bear their own costs.
Sd/-
JUDGE.
Sd/-
JUDGE.
*alb/-.