Karnataka High Court
Smt. Manjula vs The Joint Director on 6 March, 2020
Author: B.Veerappa
Bench: B. Veerappa
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NO.4179 OF 2020 (KLR - RR/SUR)
BETWEEN:
Smt.Manjula,
W/o Ramakrishna,
D/o Ramanjinappa,
Aged about 41 years,
R/at Kadiganahalli Village,
Jala Hobli, Bettalasuru Post,
Bangalore North Taluk,
Bangalore - 562 157.
... Petitioner
(By Sri.Narasimharaju, Advocate)
AND:
1. The Joint Director,
Survey Settlement and Land Records,
Office of the Deputy Commissioner,
Kandaya Bhavana,
K.G.Road,
Bangalore - 560 001.
2. The Assistant Director,
Land Records,
Bangalore North Sub - Division,
Bangalore - 560 001.
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3. Smt.H.M.Jayamma,
W/o late Muninanjappa,
Aged about 74 years,
4. Smt.H.M.Prema,
W/o G.Munegowda,
Aged about 41 years,
5. Smt.Kempamma,
W/o late Dyavanna,
Aged about 70 years,
6. Sri.Nanda Kumar,
S/o late Dyavanna,
Aged about 51 years,
7. Sri.H.N.Devaraj,
S/o H.D.Nanda Kumar,
Aged about 29 years,
8. Smt.H.N.Harshitha,
W/o H.A.Mahendra,
Aged about 26 years,
9. Sri.H.N.Gagan,
S/o H.D.Nanda Kumar,
Aged about 29 years,
Respondents No.3 to 9 are
R/at Dhanadhamma Temple Street,
Hennuru, Kalyana Nagara Post,
Bangalore - 560 043.
10. Sri.Leburu Thejash,
S/o Prabhakar Reddy,
Aged about 70 years,
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R/at No.1-18, Padugupadu,
Kovur Mandal, Nellaru District,
Andhra Pradesh - 524 137.
Represented by his G.P.A. Holder,
Sri.Leburu Sudhakar Reddy,
S/o late Radhakrishna Reddy,
R/at No.1-18, Padugupadu,
Kovur Mandal, Nellaru District,
Andhra Pradesh - 524 137.
...Respondents
(By Sri.Y.D.Harsha, AGA for R1 and R2;
Sri.S.K.Acharya for Sri.Srikanth, Advs., for C/R10)
This Writ Petition is filed under Articles 226 and
227 of the Constitution of India praying to quash the
order dated 22.11.2019 passed by the Hon'ble KAT in
Appeal No.571/2018 as per Annexure - A and etc.,
This Writ Petition coming on for Preliminary
Hearing this day, the Court made the following:
ORDER
The petitioner filed the present writ petition for writ of certiorari to quash the impugned order dated 22.11.2019 passed by the Karnataka Appellate Tribunal (hereinafter referred to as 'the Tribunal' for short) in Appeal No.571/2018 as per Annexure- A and also to quash the impugned order 22.06.2018 passed by respondent No.1- the Joint Director, Survey Settlement 4 and Land Records made in Appeal No.44/2015-16 as per Annexure- G.
2. It is the case of the petitioner that the respondent No.3 alleged to have executed a General Power of Attorney in favour of respondent No.10 on 15.11.1995. The respondent No.10 sold an extent of 26 guntas out of 1 acre 10 guntas in Sy.No.90/5 in favour of one Sri Leburu Tejesh on 18.07.2003. Subsequently, the respondent No.3 cancelled the GPA executed on 15.11.1995 in favour of respondent No.10 on 23.12.2008. The petitioner acquired the ownership of the property bearing Sy.No90/7, measuring 24 guntas, situated at Hennur Village, Kasaba Hobli, Bengaluru North Taluk by virtue of a registered sale deed dated 18.11.2014. The respondent No.2- Assistant Director of Land Records conducted phodi by assigning new Sy.No.90/7 on 22.06.2018. Being aggrieved by the said order, the respondent No.10 filed an appeal in No.44/2015-16 before the respondent No.1- Joint 5 Director, Survey Settlement and Land Records, who after hearing both the parties, by the impugned order dated 22.06.2018 as per Annexrure- G proceeded to allow the appeal filed by respondent No.10 and remanded the matter to respondent No.2- The Assistant Duirector, Land Records for reconsideration afresh after giving notice to both the parties and after giving an opportunity of being heard to both the parties in accordance with the sale deeds and possession of both the parties. Against the said order passed by the respondent No.1, the petitioner filed an appeal before the Tribunal in Appeal No.571/2018. The Tribunal after hearing both the parties, by the impugned order dated 22.11.2019 as per Annexure- A dismissed the appeal confirming the order passed by respondent No.1. Hence, the present writ petition is filed for the relief sought for.
3. I have heard the learned counsel for the parties to the lis.
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4. Sri Narasimharaju, learned counsel for the petitioner contended with vehemence that the impugned order passed by the respondent No.1 remanding the matter to respondent No.2 for fresh consideration and impugned order confirming the order of the respondent No.1 by the Tribunal is without any basis. He further contended that the respondent No.2- Assistant director of Land Records has conducted phodi in respect of the property in question by assigning new Sy.No.90/7 on 22.06.2018 strictly in accordance with law and based on the possession, mutation was effected in favour of the petitioner. Therefore, the respondent No.1 ought not to have remanded the matter to respondent No.2 as the respondent No.10 has no right and title over the property in question and the same is confirmed by the Tribunal erroneously.
5. He further contended that the respondent No.1 has erred in holding that no notice was served on respondent No.10 while conducting phodi, but a careful 7 perusal of Annexure- E clearly depicts that notice was sent to respondent No.10 and further in the presence of all the khatha holders, phodi was done. Despite production of the documents before the Tribunal, the Tribunal has erroneously dismissed the appeal. Therefore, he sought to allow the writ petition.
6. Per contra, Sri Y.D. Harsha, learned Additional Government Advocate for respondent Nos.1 and 2 and Sri S.K. Acharya for Sri Srikanth, learned counsel appearing for the respondent No.10/caveator sought to justify the impugned order passed by the Tribunal confirming the order of respondent No.1 and contended that both the respondent No.1 and the Tribunal have concurrently recorded the finding that the respondent No.2 before proceeded to conduct phodi of the land in question, has failed to issue notice to respondent No.10. Therefore, the matter was rightly remanded by the respondent No.1- Joint Director, Survey Settlement and Land Records to respondent 8 No.2- Assistant Director of Land Records and also it is rightly confirmed by the Tribunal. Therefore, such a concurrent findings of facts of the authority and the Tribunal cannot be interfered by this Court in exercise of power under Articles 226 and 227 of the Constitution of India. Therefore, he sought to dismiss the writ petition.
7. Having heard the learned counsel for the parties and a careful perusal of the impugned order passed by the respondent No.1 and the order confirming the impugned order of respondent No.1 by the Tribunal clearly depicts that the respondent No.2 has not issued any notice to respondent No.10 prior to the order dated 22.06.2018 passed by respondent No.2 and while conducting phodi in Sy.No.90/7. Though the learned counsel for the petitioner submits that the respondent No.10 is not the resident of 'Karnataka' and notice was not issued to him, the submission that the respondent No.2- Assistant Director of Land Records proceeded to 9 conduct the phodi strictly in accordance with law cannot be accepted when the order passed by respondent No.2 clearly depicts that before conducting the phodi, the respondent No.10 was not served with any notice as it is also clear from the findings of the fact recorded by the respondent No.1 and subsequently confirmed by the Tribunal dated 22.11.2019. Therefore, the present writ petition is not maintainable. The respondent No.-1 has rightly set aside the order passed by the respondent No.2- Assistant Director and also rightly remanded the matter to respondent No.2 for fresh consideration after giving notice to both the parties and based on the title deeds, sale deeds and possession of the parties to conduct new phodi/durasthi in accordance with law. The Tribunal also after appreciation of entire material on record, confirmed the order of the respondent No.1 holding that there was no notice to respondent No.10 prior to the phodi in question.
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8. In view of the concurrent findings of fact recorded by the authority and the Tribunal that no notice was issued to respondent No.10 before conducting the phodi in favour of the present petitioner, the impugned order passed by the respondent No.1- the Joint Director, Survey Settlement and Land Records in Appeal No.44/215-16 dated 22.06.2018 as per Annexure-G and confirmed by Tribunal in Appeal No.571/2018 dated 22.11.2019 as per Annexure- A are in accordance with law. The petitioner has not made out any ground to interfere with the impugned orders passed by the respondent No.1 and the Tribunal in exercise of power under Articles 226 and 227 of the Constitution of India.
Accordingly, the writ petition is dismissed.
Sd/-
JUDGE PN/-