Karnataka High Court
Shri Vijayakumar vs State Of Karnataka on 14 February, 2023
Author: R Devdas
Bench: R Devdas
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WP No. 1625 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE R DEVDAS
WRIT PETITION NO. 1625 OF 2022 (KLR-RES)
BETWEEN:
SHRI VIJAYAKUMAR
S/O LATE JANGAMAIAH
AGED 53 YEARS
R/AT NIMBEKAIPURA VILLAGE
BIDARAHALLI HOBLI
BANGALURU EAST TALUK - 560 049
...PETITIONER
(BY SRI. ASHOK HARANAHALLI, SR. COUNSEL
SRI. N.S. SESHADRI, ADVOCATE)
AND:
1. STATE OF KARNATAKA
Digitally DEPARTMENT OF REVENUE
signed by
JUANITA 5TH FLOOR, M S BUILDING
THEJESWINI
Location: DR B R AMBEDKAR VEEDHI
HIGH BANGALORE - 560 001
COURT OF
KARNATAKA REP BY ITS PRINCIPAL SECRETARY
2. THE DEPUTY COMMISSIONER
BENGALURU URBAN DISTRICT
K G ROAD, BENGALURU - 560 009
3. THE ASSISTANT COMMISSIONER
BENGALURU NORTH SUB DIVISION
KANDAYA BHAVAN, K G ROAD
BENGALURU - 560 009
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WP No. 1625 of 2022
4. THE TAHSHILDAR
BENGALURU EAST TALUK
K R PURAM, BENGALURU - 560 026
5. SRI J RAJANNA
S/O JANGAMAIAH
AGED 50 YEARS
R/AT 10, GOPALAKRISHNA LAYOUT,
YADALAM NAGAR
SUBRAMANYAPURA POST
BENGALURU - 560 062
...RESPONDENTS
(BY SRI.SESHU V, HCGP FOR R3 & R4
SRI. K. ACHARYA, ADVOCATE FOR
SRI. S. SRIKANTH, ADVOCATE FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
THE ENTIRE RECORDS FROM THE FILE OF THE SECOND AND
THIRD RESPONDENTS IN R.P.NO.29/2021 AND ALSO IN
R.A.(BE).166/2019 VIDE ANNX-A AND B PERUSE THE SAME,
HEAR THE PARTIES AND FURTHER BE PLEASED TO QUASH THE
IMPUGNED ORDERS DTD 15.12.2021 PASSED BY THE R-2 IN
R.P.NO.29/2021 VIDE ANNX-A AND ALSO ORDER DTD
17.11.2020 PASSED BY THE R-3 IN R.A.(BE).166/2019 VIDE
ANNX-B. AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
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WP No. 1625 of 2022
ORDER
R.DEVDAS J., (ORAL):
The petitioner who acquired title over the property in question under a registered sale deed dated 16.08.1990 is aggrieved by the impugned orders passed by the Assistant Commissioner at Annexure 'B' and the order of the revisional authority-Deputy Commissioner at Annexure 'A'.
2. Learned Senior Counsel Sri Ashok Haranahalli, appearing for the petitioner submits that the petitioner purchased 1 acre and 17 guntas of land in Sy.No.74 of Katamnallur Village, Bidarahalli Hobli, Bangalore East Taluk, under a registered sale deed dated 16.08.1990. In fact, the said sale deed was executed by respondent No.5- Sri J.Rajanna, as the Power of Attorney holder of S.Krishnappa, the landlord. Learned Senior Counsel submits that although respondent No.5 himself has executed the sale deed in favour of the petitioner, nevertheless, respondent No.5 got one more sale deed executed at the hands of Sri S.Krishnappa, the previous -4- WP No. 1625 of 2022 landlord on 16.09.2006, which was also registered on the same day in the office of the Sub-Registrar, K.R.Puram.
3. Learned Senior Counsel submits that the said sale deed executed by Sri S.Krishnappa, is not a valid document under which respondent No.5 acquired rights over the property in question, since Sri S.Krishnappa the landlord had already lost the ownership of the property in question, the day when the sale deed was executed in favour of the petitioner. Nevertheless, the petitioner approached the Tahsildar seeking entry of his name in the land records on the strength of the sale deed dated 16.08.1990. The Tahsildar passed mutation order in M.R.No.15/2006-07 entering the name of the petitioner in the land records while deleting the name of Sri S.Krishnappa, the previous owner. Respondent No.5 approached the Assistant Commissioner by filing an appeal under Section 136(2) of the Karnataka Land Revenue Act, 1964, challenging the order passed by the Tahsildar in M.R.No.15/2006-07, without impleading the petitioner herein.
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4. Learned Senior Counsel submits that strangely the Assistant Commissioner without issuing notice to the petitioner proceeded to pass an order on 17.11.2020 allowing the appeal and setting aside the mutation entry in M.R.No.15/2006-07 which was made in favour of the petitioner, on the ground that Sri K.Narayanappa, Sri K.Rajanna, Smt.Ghouse Bee and four others were granted portions of land in old Sy.No.64 of Katamanallur Village, by order dated 30.05.1969. Saguvali chits were also issued in their favour on 02.04.1970 and the lands were assigned new numbers after phod. The lands in question i.e., 1 acre and 17 guntas which were granted in favour of Sri K. Rajanna is the subject matter of this dispute. It appears that one Sri Muneerappa filed an application in Form No.7 seeking grant of occupancy rights in respect of the lands which were granted in favour of Sri Narayanappa, K.Rajanna and Smt.Ghouse Bee in LRF No.76/1975-76 before the Land Tribunal, Bangalore East Taluk. The application filed by Muneerappa seems to have been dismissed by the Land Tribunal and consequently, -6- WP No. 1625 of 2022 Muneerappa approached this Court in W.P.No.309/1985 challenging the order of the Land Tribunal. This Court by order dated 27.06.1985 set aside the order of the Land Tribunal and remitted the matter back to the Land Tribunal for fresh consideration. In the meanwhile, K.Rajanna the original grantee had sold the property in favour of Krishnappa under a registered sale deed dated 18.02.1983. Therefore, Sri Krishnappa also was impleaded as a party respondent No.4 to the proceedings before the Land Tribunal, after remand.
6. Learned Senior Counsel submits that though Krishnappa was aware of the fact that he had already executed a sale deed dated 16.08.1990 in favour of the petitioner herein, nevertheless, he clandestinely entered into a compromise with Muneerappa and in terms of the compromise petition, the Land Tribunal disposed of the application filed by Muneerappa by order dated 25.03.2003 recording the statement of Muneerappa that application in Form No.7 may be rejected and accordingly the application was rejected insofar as the land in question -7- WP No. 1625 of 2022 is concerned. Thereafter, respondent No.5 herein got the sale deed dated 16.09.2006 executed at the hands of Krishnappa. However, on coming to know of the fact that the petitioner herein had got his name entered in the land records in terms of M.R.No.15/2006-07, respondent No.5 approached the Tahsildar seeking to have his name entered consequent to the sale deed dated 16.09.2006. However, the Tahsildar issued an endorsement dated 22.02.2019 stating that the name of the petitioner has been entered in the land records by virtue of M.R.No.15/2006-07 and the petitioner got the sale deed executed by the previous owner Krishnappa and therefore, the name of respondent No.5 cannot be entered in the land records. The Assistant Commissioner, in the appeal filed at the hands of respondent No.5 herein having noticed all these facts as narrated hereinabove, nevertheless, without even issuing notice to the petitioner proceeded to allow the same and set aside the mutation entry made in M.R.No.15/2006-07 while directing that the name of respondent No.5 shall be entered in the land -8- WP No. 1625 of 2022 records on the strength of the sale deed dated 16.09.2006.
7. Learned Senior Counsel submits that when the petitioner came to know about the order passed by the Assistant Commissioner, he approached the Deputy Commissioner, Bangalore Urban District by filing a revision petition under Section 136(3) of the Act, in Revision Petition No.29/2021. Learned Senior Counsel submits that although it was brought to the notice of the Deputy Commissioner that the Assistant Commissioner has passed the order without notice to the petitioner and although it was requested that the matter may be remanded back to the Assistant Commissioner for fresh consideration, nevertheless, the Deputy Commissioner proceeded to hold that the petitioner's Power of Attorney Holder one Venkatesh Murthy has also signed in the sale deed executed in favour of respondent No.5 and therefore, the revision petition is liable to be dismissed.
8. Learned Senior Counsel submits that both the revenue authorities have failed to notice that the mutation -9- WP No. 1625 of 2022 entry in M.R.No.15/2006-07 was in terms of the registered instrument dated 16.08.1990. Both the revenue authorities have failed to notice that when once Krishnappa sold the property in favour of the petitioner, he could not have executed another sale deed in favour of respondent No.5 and even if such a sale deed is executed at the hands of Krishnappa, it would not partake the nature of acquisition of title as provided in Section 128 of the Act.
9. Per contra, learned Counsel for contesting respondent No.5 submits that in the sale deed dated 16.08.1990, it was made clear that the sale deed was executed by Krishnappa through his Power of Attorney holder subject to the outcome of the litigation pending before this Court in the writ petition. Learned Counsel submits that this would mean that the petitioner was aware of the pending proceedings before this Court in W.P.No.309/1985. Learned Counsel would further submit that once the order of the Land Tribunal was set aside at the hands of this Court and the matter was remanded
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WP No. 1625 of 2022back to the Land Tribunal for fresh consideration, there was no efficacy in the sale deed dated 16.08.1990, more so, because the said sale deed was made subject to the outcome of the litigation pending before this Court. The learned Counsel would therefore submit that the sale deed dated 16.08.1990 executed by Krishnappa in favour of the petitioner herein was not a valid document under which the right, title and interest could flow to the petitioner. This was noticed by the revenue authorities and have rightly held that the subsequent sale deed executed by Krishnappa in favour of respondent No.5 also had the consent of the petitioner by virtue of the consenting witness signing the document on behalf of the petitioner.
10. Heard the learned Senior Counsel for the petitioner, learned Counsel for the contesting respondent No.5, learned HCGP and perused the petition papers. In the considered opinion of this Court, though there was delay on the part of the petitioner in getting his name entered in the land records, consequent to the registered sale deed dated 16.08.1990, nevertheless, the Tahsildar
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WP No. 1625 of 2022rightly entered the name of the petitioner in the land records by virtue of mutation order passed in M.R.No.15/2006-07. It is only thereafter that respondent No.5 approached the Tahsildar to have his name entered in the land records. It is noticeable that both respondent No.5 as well as his vendor Krishnappa were aware of the fact that a sale deed was already executed in favour of the petitioner way back in the year 1990, nevertheless, keeping the petitioner in dark they have entered into a compromise with the tenant who had filed an application in Form No.7 before the Land Tribunal. This Court is not concerned with the correctness of the order passed by the Land Tribunal. This Court is concerned only with the entry made in the land records. As provided in Section 128 of the Act, whenever a person acquires title over the property, he is entitled to have the name entered in the land records. The Tahsildar rightly issued an endorsement to respondent No.5 declining to enter his name in the land records, having noticed that the name of the petitioner was entered in the land records by virtue of
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WP No. 1625 of 2022M.R.No.15/2006-07 which is based on a previous sale deed dated 16.08.1990.
11. In the considered opinion of this Court, both the Assistant Commissioner as well as the Deputy Commissioner fell in error in entering into the disputed questions of title, which could not be decided by revenue authorities. It has been fairly well settled by now that it is only a civil Court which can decide the disputed questions of title and not the revenue authorities. The Assistant Commissioner, in the considered opinion of this Court has fragrantly violated the basic principles of law in not notifying the petitioner before an order could be passed setting aside the mutation entry made in favour of the petitioner. The Deputy Commissioner too fell in error, since the Deputy Commissioner did not accept the contention of the petitioner that an order was passed by the Assistant Commissioner setting aside the mutation entry made in his favour and without even impleading the petitioner in an appeal, the Assistant Commissioner proceeded to pass orders setting aside the mutation entry.
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WP No. 1625 of 2022On facts, it is clear that the sale deed executed in favour of the petitioner by respondent No.5 himself as the Power of Attorney holder of Krishnappa was earlier in point of time i.e., on 16.08.1990. No sooner the sale deed was executed in favour of the petitioner, the petitioner acquired the right to have his name entered in the land records. Nevertheless, though belatedly, the petitioner got his name in the land records by virtue of a mutation order in M.R.No.15/2006-07. The mutation entry was made in terms of Section 128 of the Act. If such an order passed legitimately by the Tahsildar was to be set aside by the Assistant Commissioner, the minimum that he should have done is to have issued notice to the petitioner. Moreover, it is also evident by the plain reading of the facts that respondent No.5 got the sale deed executed at the hands of Krishnappa who had already lost title in favour of the petitioner, since he had executed the sale deed in favour of the petitioner way back in the year 1990.
12. The learned Senior Counsel is right in his submission that when once a person passes on the title in
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WP No. 1625 of 2022favour of another person under a registered instrument, he or she cannot pass on title which was lost by virtue of the execution of the registered instruments. Nevertheless, these are disputes touching upon the title of the property which can be decided only by Civil Court and not by the revenue authority.
13. In the considered opinion of this Court, the revenue authorities should have rejected the claim of respondent No.5 by directing him to approach a competent civil Court to get a declaration in his favour. For the reasons stated above, this Court is of the considered opinion that the impugned orders passed by the Assistant Commissioner and the Deputy Commissioner at Annexures 'A' and 'B', cannot be sustained.
14. Accordingly the writ petition is allowed while setting aside the impugned orders at Annexures 'A' and 'B' passed by the Assistant Commissioner and the Deputy Commissioner.
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WP No. 1625 of 2022
15. Any observations made hereinabove shall not prejudice the case of either of the parties before the Civil Court.
Ordered accordingly.
Sd/-
JUDGE JT/-