Karnataka High Court
Mr. Ronald D Sa vs The Asst Commissioner And Sub ... on 1 December, 2020
Author: B. M. Shyam Prasad
Bench: B. M. Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 01ST DAY OF DECEMBER 2020
BEFORE
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
WRIT PETITION NO.11031/2020 (KLR-RR/SUR)
BETWEEN :
1. MR. RONALD D'SA
S/O LATE VINCENT D'SA
AGED ABOUT 60 YEARS,
2. MR. NOBERT D'SA
S/O LATE VINCENT D'SA
AGED ABOUT 57 YEARS,
BOTH ARE R/AT DOOR NO. 2-6-354
NEAR KAPIKAD BAREBAIL LANE,
BEJAI POST
MANGALURU - 575 004 (DK).
3. MR. CLIFFORD D'SA
S/O LATE VINCENT D'SA
AGED ABOUT 55 YEARS
R/AT CLIFF CASA
NEAR NANDIGUDDA CIRCLE
KANKANADY POST
MANGALURU - 575 002 (DK).
... PETITIONERS
(BY SRI. M. SUDHAKAR PAI., ADVOCATE)
AND :
1. THE ASST. COMMISSIONER AND
SUB-DIVISIONAL MAGISTRATE
2
MANGALURU SUB DIVSIION
MANGALURU - 575 001 (DK)
2. THE TAHSILDAR
MANGALURU TALUK
MANGALURU - 575 001 (DK)
3. MRS. T M NABEESA
AGED ABOUT 72 YEARS
4. MR. T M SAFI KUTTY
AGED ABOUT 59 YEARS,
5. MRS. T. M. SALIHA
AGED ABOUT 51 YEARS,
6. MR. T M IQBAL
49 YEARS
RESPONDENTS (3) IS WIDOW AND
RESPONDENTS (4) TO (6)
ARE CHILDREN OF
LATE KHADER KUTTY.
ALL ARE R/AT T. M. HOUSE
JUBILEE ROAD,
THIRUVANGADA AMSAM DESHAM
P.O TELLICHERRY - 670 101.
KANNUR DISTRICT, KERALA STATE.
7. MR. SHASHIRAJ AMBAT
S/O MR. JOHN AMBAT
AGED ABOUT 62 YEARS
R/AT HOUSE NO. D-4-H-109D
'GODS DELIGHT' LAND LINKS TOWNSHIP
DAREBAIL, KONCHADY
MANGALURU - 575 006 (DK).
8. MR. ARUN COELHO
S/O MR. ANTONY FRANCIS COELHO
AGED ABOUT 46 YEARS
3
R/AT "SACRED HEARTS"
NEAR VIDYADAYINI SCHOOL
P O SURATHKAL - 575 014
MANGALURU TQ (D.K).
... RESPONDENTS
(BY SRI. SANDESH KUMAR, HCGP FOR R1 & R2;
SRI. CYRIL PRASAD PAIS., ADVOCATE FOR R7
AND R8;
NOTICE TO R3 TO R6 IS HELD SUFFICIENT AND
PLACED EX PARTE VIDE ORDER DATED 24.11.2020 )
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
ISSUE A WRIT OF CERTIORARI TO QUASH THE
PROCEEDINGS IN CASE NO. RRT.SR.399/2020 BEFORE
THE 1ST RESPONDENT-ASST. COMMISSIONER AND SUB
DIVISIONAL MAGISTRATE, MANGALURU SUB-DIVISION,
MANGALURU (VIDE ANNEXURE-Q AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioners have filed this petition for quashing the proceedings in RRT.SR.399/2020, proceedings before the Assistant Commissioner, and Sub-divisional Magistrate, Mangaluru Sub-division, Mangaluru [the first respondent] under Section 136(2) of the Karnataka Land Revenue Act, 1964 and also for 4 quashing the first respondent's order dated 25.08.2020 in such proceedings.
2. The petitioners contend that Mr. Vincent D'Sa was the absolute owner of the property in survey No.9/3 measuring 1.42 acres of Kodialbail village, Mangaluru, and the revenue record for this land was made in his name in KR No.480/1916-70. Mr. Vincent D'Sa's name is shown in Column 9 of RTC for this land. Mr. Vincent D'Sa died on 22.12.1998 leaving behind his Last Will and Testament dated 25.01.1995 bequeathing in favour of the petitioners an extent of 35 cents out of the total extent of 1.42 acres in Sy.No.9/3 of Kodialbail village, Mangaluru [and this extent of 35 cents is referred to as the Subject Property]. There is no dispute about the bequeath in favour of the petitioners inasmuch as the petitioners' siblings have sworn to the affidavit of affirmation on 11.8.2003 admitting the bequeath under the said Last Will and Testament. Insofar as the 5 remaining extent of lands in survey No.9/3 of Kodialbail village, Mangaluru, Mr. Vincent D'Sa has transferred the same under different Sale Deeds.
3. It is seen from the undisputed annexures to the writ petition that:
3[a] the third to sixth respondents have challenged the revenue entry in favour of Mr. Vincent D'Sa in KR No.480/69-70 in the proceedings before the Assistant Commissioner under Section 136(2) of the Karnataka land Revenue Act,1964 (for short, the Act) in C. Dis. RRT:SR:112 / 2009 - 10. The Assistant Commissioner by his order dated 12.04.2010 allowed the appeal and remanded the matter for reconsideration by the Tahsildar.
3[b] the petitioners aggrieved by this order dated 12.04.2010 in C.Dis. RRT:SR:112/2009-10 filed revision invoking Section 136(3) of the Act before the Deputy Commissioner, Mangaluru, in RP No.27/2010- 6
11. The Deputy Commissioner rejected the revision petition. However, when the petitioners impugned such rejection before this Court in WP No.16045/2012, this Court restored the revision petition for reconsideration.
After this restoration, the petitioners' revision petition is assigned new number in R.P. No.108/2013-14.
3[c] the contesting respondents viz., the seventh and the eighth respondents impleaded themselves in the proceedings in R.P. No.108/2013-14 asserting that they had entered into an agreement to purchase with the third to sixth respondents. The Deputy Commissioner dismissed the revision petition in R.P. No.108/2013-14 by the order dated 11.08.2015, and consequentially, the proceedings in C.Dis. RRT:SR:112/2009-10 before the Tahsildar is restored and registered in RRT/SR/51/2016 -17.
3[d] the seventh and the eighth respondents, who impleaded themselves in the revision petition in R.P. 7 No.108/2013-14 before the Deputy Commissioner, did not pursue the prosecution before the Tahsildar but the third to sixth respondents contested the proceedings. The Tahsildar by his order dated 01.04.2018 rejected the challenge to the revenue entry in KR No.480/1969- 70 in favour of Mr. Vincent D'Sa.
3[e] the seventh and the eighth respondents, after a lapse of more than two years, and who did not implead themselves in the proceedings before the Tahsildar, have initiated the impugned proceedings in RRT.SR.399/2020. The Assistant Commissioner/the first respondent has granted ex parte order on 25.08.2020 directing the parties to maintain status quo till the next hearing date.
4. The learned counsel for the petitioners urges that the seventh and the eighth respondents assert title to the land in Sy.No.9/3 of Kodialbail village, Mangaluru [including the Subject Property] claiming under the third 8 to sixth respondents when these respondents themselves cannot assert any interest in this property. The third to sixth respondents assert title to the land in Sy.No.9/3 of Kodialbail village, Mangaluru under an arbitral award but given the terms of the arbitration award, the third to sixth respondents could claim, if justifiably, title only to the land in Sy.No.9/3 of Kadri village, Bijai Ward, Mangaluru. The Subject Property and the land in Sy.No.9/3 of Kadri village, Bijai Ward, Mangaluru are two different lands. Therefore, the proceedings initiated by them in RRT.SR.399/2020 cannot be sustained.
5. The learned counsel for the petitioners also urges that the third to sixth respondents have not challenged the Tahsildar's order dated 01.04.2018 in RRT/SR/51/2016 -17. The seventh and the eighth respondents, who have filed the suit in OS No. 837/2010 on the file of the Civil Judge (Junior 9 Division), Mangalore asserting sale agreement, would have no locus to file the impugned proceedings under Section 136(3) of the Act. The learned counsel emphasizes that the petitioners and the respondents have specifically stated in the revision petition that the question of title is also involved in the suit in O.S. No.837/2010, and if the question of title is yet to be decided in their favour in such suit, they will have no locus to maintain the proceedings.
6. The learned counsel for the seventh and eighth respondents, on the other hand, argues that Mr. Vincent D'Sa was not the owner of the land in Sy.No.9/3 of Kodialbail village, Mangaluru, and their vendors (and their predecessors-in-title) would be the undisputed owners of this land. The seventh and the eighth respondents impleaded themselves in the revision petition before the Deputy Commissioner in R.P. No.108/2013-14 and contested the proceedings. The petitioners have not challenged the respondents' 10 impleadment in such revision petition and therefore, the petitioners cannot now contend that these respondents have no locus to maintain proceedings under Section 136(2) of the Act before the first respondent which is filed calling in question the Tahsildar's order dated 01.04.2018 which is irrefutably a consequence of the Deputy Commissioner's order in R.P. No.108/2013-14.
7. It is obvious from the rival claims that there are questions about title to the Subject Property and the seventh and eighth respondents' rights thereto, and these are questions of facts which will have to be decided by the competent civil Court. In fact, the seventh and eighth respondents are categorical even in their pleadings before the Deputy Commissioner in RRT.SR.No.399/2020 that the question of title is involved in the suit filed by them in O.S.N.837/2010, which is a suit for specific performance. It is settled law that if questions of title are pending consideration, the 11 revenue entries will have to follow upon adjudication of such questions of title. Further, the third to sixth respondents under whom the seventh and eighth respondents claim right, title and interest in the Subject Property, have not impugned the Tahsildar's order dated 01.04.2018 in RRT/SR/51/2016-17.
8. Furthermore, the locus of the sixth to seventh respondents to challenge the Tahsildar's aforesaid order dated 01.04.2018 will have to be examined in the light of the fact that they claim to be the agreement holders. Their suit for specific performance in O.S.No.837/2010 is pending consideration. The provisions of Section 54 of the Transfer of Property Act 18821 which is
54."Sale" defined - "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. • Sale how made.- Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
• In case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. 12 categorical that a contract for sale of immovable property, unlike a sale deed, do not create any interest in such immovable property. Therefore, this Court will have to conclude that the seventh and eighth respondents cannot sustain the impugned proceedings in RRT.SR.399/2020 pending consideration before the first respondent. It would be needless to observe that the revenue entries for the Subject Property will have to be subject to the outcome of the suit where there is adjudication of title between the petitioners and the third to sixth respondents or their successors-in- interest, including the seventh and eight respondents. • Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
• Contract for Sale - A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. I • It does not, of itself, create any interest in or charge on such property. 13
Therefore, the following:
ORDER The writ petition is allowed. The proceedings before the Assistant Commissioner and Sub-divisional Magistrate, Mangaluru Sub-division, Mangaluru in RRT.SR.399/2020 is quashed and consequentially the impugned interim order dated 25.8.2020 granted by the Assistant Commissioner stands dissolved with the observation that the revenue entries for the Subject Property will have to be subject to the outcome of the suit where there is adjudication of title thereto between the petitioners and the third to sixth respondents or their successors-in-interest, including the seventh and eight respondents.
Sd/-
JUDGE SA* ct:sr