Karnataka High Court
Sri Narayana vs The State Of Karnataka on 4 March, 2020
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION No.41603/2014 (KLR-RR/SUR)
BETWEEN:
SRI NARAYANA,
S/O LATE VENKATAPPA,
AGED ABOUT 60 YEARS,
RESIDENT OF HEBBUR,
HEBBUR VILLAGE,
TUMKUR TALUK,
...PETITIONER
(BY SRI B. RAMESH, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY THE SECRETARY,
REVENUE DEPARTMENT,
VIDHANA SOUDHA,
BANGALORE 560002.
2. THE ASSISTANT COMMISSIONER
TUMKUR SUB-DIVISION,
TUMKUR-572101.
3. THE TAHASILDAR
TUMKUR,
TUMKUR TALUK-572101.
2
4. SMT. CHANNAMMA,
W/O VENKATARAMANAIAH,
AGED ABOUT 66 YEARS,
5. SRI. NARAYANA
S/O VENKATARAMANAIAH,
AGED ABOUT 66 YEARS,
6. SRI. MAHADESH
S/O VENKATARAMANAIAH,
AGED ABOUT 51 YEARS,
7. SMT. JAYAMMA
D/O VENKATARAMANAIAH,
AGED ABOUT 61 YEARS,
ALL ARE RESIDENTS OF
HUTCHANAPALYA,
HAMLET OF HEBBUR,
TUMKUR TALUK-572101.
...RESPONDENTS
(BY SRI Y.D. HARSHA, AGA FOR R1 TO R3;
SRI G.S. BALAGANGADHAR, ADVOCATE FOR R4 TO R7)
****
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 06.08.2014 OF THE 2ND RESPONDENT
PASSED IN RRT(A)(T).226-2013-14 VIDE ANNEXURE-A AS THE
2ND RESPONDENT HAD NO JURISDICTION FOR PASSING THE
IMPUGNED ORDER ETC.,
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:-
3
ORDER
The petitioner in the present writ petition has sought for a writ of certiorari to quash the order dated 6.8.2014 passed by the 2nd respondent - Assistant Commissioner made in RRT(A)(T) 226/13-14 vide Annexure-A as the 2nd respondent has no jurisdiction for passing the impugned order.
2. It is the case of the petitioner that the three brothers viz., Siddalingaiah, Siddaiah and Chikkasiddaiah were the owners of the properties bearing Sy.No.91/2 measuring 4 acres 25 guntas and Sy.No.91/3 measuring 1 acre 1 gunta and the said properties were the joint family properties. Though there was no partition in the family, Siddalingaiah sold 1/3rd of his share to one Thimmaiah by the registered sale deed. As the other two brothers have disputed for delivery of possession on the basis of the sale deed executed by Siddalingaiah, the purchaser - 4 Thimmaiah has filed O.S. No.21/49-50 for partition. The said suit came to be decreed and in Execution No.180/53 filed by Thimmaiah, 1/3rd share said to have been purchased by him was delivered to him.
3. It is further case of the petitioner that by that time, the other two brothers viz., Siddaiah and Chikkasiddaiah had executed mortgage-cum-sale deed in respect of their share of the properties in favour of Rangappa Setty. The said Rangappa Setty filed Execution Case No.876/2015 and was declared to be the purchaser of 2/3rd share in Sy.No.91/2 and has taken the sale certificate. Subsequently, his son sold the property to one Mr. Venkatappa (father of the present petitioner).
4. When things stood thus, one Mr. Venkataramaiah (son of Mr. Thimmaiah @ Thimmegowda and father of present Respondent Nos.5 to 7) and Channamma w/o Venkataramaiah had filed O.S. No.281/82 against one 5 Siddagangappa (son of Rangappa Setty) and the purchaser
- Venkatappa (father of the present petitioner) for redemption of the mortgage. The petitioner and his father
- Venkatappa filed O.S. 308/82 for Perpetual Injunction in respect of the properties in question. The trial Court after holding detailed enquiry by the common Judgment & Decree dated 11.8.1989 decreed the suit filed by the petitioner and his father in O.S. No.308/82 for Permanent Injunction and held that the petitioner and his father have proved their lawful possession over the suit schedule properties and dismissed O.S. No.281/82 filed by father and mother of Respondent Nos.5 to 7 for redemption of the mortgage.
5. Against the said Judgment & Decree passed in O.S. No.281/82 and O.S. No.308/82, father and mother of Respondent Nos.5 to 7 filed R.A. Nos.91/89 and 94/89 and the State Government filed R.A. No.122/89 before the Lower Appellate Court. The Lower Appellate Court 6 dismissed all the three appeals by the common Judgment & Decree dated 22.6.1993. Against the said Judgment & Decree passed by the Lower Appellate Court, RSA No.252/1996 came to be filed by one Channamma w/o Venkataramaiah and RSA No.245/96 came to be filed by the legal representatives of Venkataramaiah i.e, the present Respondent Nos.4 to 7. This Court by the Judgment & Decree dated 19.12.2011 dismissed both the appeals. Against the said Judgment & Decree passed by this Court, SLP Nos.11125-11126/2012 came to be filed before the Hon'ble Supreme Court. The Hon'ble Supreme Court dismissed the said SLPs. by the order dated 1.10.2012. Accordingly, the Judgment & Decree passed in O.S. No.308/82 has reached finality.
6. It is further case of the petitioner that pursuant to the Judgment & Decree passed in O.S. No.308/82, which is confirmed by the Lower Appellate Court and re-affirmed by this Court and the Hon'ble Supreme Court, mutation came 7 to be entered in the name of the present petitioner as per the order passed by the Tahsildar in M.R.H.35/2011-12 in respect of the Sy.No.91/2 measuring 3 acres 3 guntas of Hebbur village, Hebbur Hobli, Tumkur taluk. That was the subject matter of RRT(Appeal)(T) No.55/2013-14 before the Assistant Commissioner, which came to be dismissed as not pressed.
7. It is further case of the petitioner that subsequently on the representation made by the present Respondent No.6 - Sri Mahadesh, the jurisdictional Tahasildar by the Endorsement dated 17.1.2014, rejected the prayer for change of khatha mainly on the ground that in terms of the Judgment & Decree in O.S. No.21/49-50, khatha cannot be changed and has to go to appropriate appellate authority. Therefore, the Respondent Nos.4 to 7 filed appeal in RRT(A)(T) 226/13-14 challenging the Endorsement dated 17.1.2014 issued by the 1st respondent
- Tahasidlar for change of khatha in respect of Sy.No.91/2 8 to an extent of 3.03 guntas and Sy.No.91/3 to an extent of 0-28 guntas of Hebbur village, Hebbur Hobli, Tumkur taluk. Very strangely, in the impugned order (Annexure-A) at the beginning under the heading - 'subject', the Assistant Commissioner has included the Endorsement No.RRT.CR.372/2013-14 dated 17.1.2014 and MR.H.35.2011-12 as if the present Respondent Nos.4 to 7 have challenged both the orders. In fact in the appeal memo (Annexure-H), the present Respondent Nos.4 to 7 have not challenged the order passed by the Tahsildar in MR.H.35.2011-12 dated 29.5.2012 and the prayer is only to set aside the Endorsement dated 17.1.2014. Further, the present Respondent Nos.4 to 7 have filed RRT(A)(T) 226/13-14 without impleading the present petitioner. By the impugned order, the Assistant Commissioner allowed the appeal and set aside the Endorsement No.RRT.CR.372/2013-14 dated 17.1.2014 as well as MR.H.35.2011-12 dated 29.5.2012 and directed the 9 authorities to enter the name of Venkataramaiah bin Thimmaiah based on the sale certificate in respect of the properties in question and subsequently to enter the name of Respondent Nos.4 to 7, who are the legal representatives of Venkataramaiah under Sections 128 and 129 of the Act. Hence, the present writ petition is filed for the reliefs sought for.
8. I have heard the learned counsel for the parties to the lis.
9. Sri B. Ramesh, learned counsel for the petitioner contended that the impugned order passed by the Assistant Commissioner is erroneous and contrary to the material on record and cannot be sustained. He would further contend that though the suit filed by father and mother of Respondent Nos.4 to 7 in O.S. No.281/82 for redemption of the mortgage came to be dismissed and the suit filed by the present petitioner and his father in O.S. No.308/82 for 10 Permanent Injunction came to be decreed in respect of the property in question and the same was confirmed by the Lower Appellate Court and re-affirmed by this Court in RSA No.252/96 c/w RSA 245/96 on 19.12.2011 and the Hon'ble Supreme Court in SLP Nos.11125-11126/2012 on 1.10.2012, still the Assistant Commissioner by the impugned order proceeded to direct the authorities to enter the name of father of Respondent Nos.5 to 7 and subsequently the name of Respondent Nos.5 to 7 on the basis of the sale certificate though the Courts below concurrtently held that the sale certificate was invalid. On that ground alone, he sought to quash the impugned order passed by the Assistant Commissioner.
10. The learned Counsel for the petitioner further contended that the when the father of Respondent Nos.5 to 7 filed appeal in RRT(A)(T) No.55/2013-14 against the order passed by the Tahasildar in M.R.H. No.35/2011-12 and the said appeal came to be dismissed as not pressed 11 without there being any liberty to file fresh appeal, the appeal filed in RRT(A)(T) 226/13-14 was not at all maintainable. He would further contend that in the appeal memo relating to RRT(A)(T) 226/13-14 as per Annexure-H, the prayer is only in respect of quashing the Endorsement issued by the Tahasildar dated 17.1.2014 in respect of two properties which are in question and not in respect of the order passed by the Tahasildar in M.R.H. No.35/2011-12 dated 29.5.2012. Very strangely, by the impugned order, the Assistant Commissioner set aside the Endorsement dated 17.1.2014 as well as MR.H.35.2011-12 dated 29.5.2012. On that ground also, the impugned order passed by the Assistant Commissioner cannot be sustained.
11. The learned Counsel for the petitioner would further contend that knowing full well the earlier proceedings between the parties in the original suit, Regular Appeal, Regular Second Appeal and in the SLP, without impleading the present petitioner, Respondent Nos.4 to 7 12 filed appeal in RRT(A)(T) 226/2013-14 and the same is not maintainable. The Assistant Commissioner though recorded a finding that the suit filed by the father and mother of Respondent Nos.5 to 7 in O.S. No.281/82 for decree of redemption came to be dismissed and the decree made in favour of the petitioner in O.S. No.308/1982 came to confirmed, proceeded to hold that there is no final decree. The Assistant Commissioner has no jurisdiction to quash the order in respect of M.R.H. 35/2011-12 dated 29.5.2012 and further the Endorsement issued by the Tahasildar dated 17.1.2014 is in accordance with the decree passed by the Civil Court in O.S. No.281/82 c/w O.S. 308/82.
12. The learned Counsel for the petitioner further contended that when the Civil Court already held that the sale certificate was not valid, still the Assistant Commissioner proceeded to allow the appeal on the basis of the sale certificate, which was not existing in view of the 13 decree passed by the Civil Court and confirmed by the Lower Appellate Court and re-affirmed by this Court and the Hon'ble Supreme Court. Therefore, he sought to allow the writ petition.
13. Per contra, Sri G.S. Balagangadhar, learned counsel for Respondent Nos.4 to 7 sought to justify the impugned order passed by the Assistant Commissioner and contended that the suit filed by the present petitioner in O.S. No.308/82 only for Permanent Injunction and not in respect of declaration. Though the suit filed by father and mother of Respondent Nos.5 to 7 in O.S. No.281/82 for redemption of mortgage dismissed and the same confirmed by the Lower Appellate Court and re-affirmed by this Court and the Hon'ble Supreme Court, still the Tahasildar ought to have held proper enquiry before issuing he Endorsement. Therefore, the Assistant Commissioner is justified in passing the impugned order.
1414. Learned counsel for Respondent Nos. 4 to 7 would further contend that in a suit for redemption and suit for injunction filed by the parties, though there is a finding that the sale certificate is invalid, still it is the duty of the Tahasildar to verify the original records and come to the conclusion whether Respondent Nos.4 to 7 have any source of title in respect of the properties in question under the provisions of Section 128 of the Act. After considering the same, the Assistant Commissioner proceeded to pass the impugned order. He further contended that the very entry in the revenue records standing in the name of the petitioner in respect of the property in question is illegal and against law and the petitioner is not entitled to enter his name in column No.9 of the RTC of the said land. However he is entitled to for entering his name in column no.12(2) because of the judgment & decree in a suit for injunction. Therefore, the Assistant Commissioner rightly observed that based on the Judgment & Decree, the 15 Tahasildar cannot order change of khatha in respect of ownership of the property in question. Hence, the Assistant Commissioner is justified in passing the impugned order. Therefore, he sought to dismiss the writ petition.
15. Learned AGA reiterating the averments made in the statement of objections, sought to justify the impugned order passed by the Assistant Commissioner. He further contended that the petitioner filed an application for change of entries in respect of Sy.no.91/2 and 91/3 as per the orders passed by the Civil Court and the Respondent Nos.4 and 6 filed objections and hence the matter was taken up by the Deputy Tahasildar and passed an order to change entries in respect of Sy.no.91/2 and 91/3 as per the Decree dated 11.8.1989 passed in O.S. No.281/82 c/w O.S. No.308/82. Aggrieved by the same, Respondent Nos.4 to 7 preferred an appeal before the Assistant Commissioner. The Assistant Commissioner by the impugned order rightly set aside the entries made by the Tahasildar and directed to 16 take action as per the sale certificate issued by the Civil Court in favour of Venkataramaiah (father of Respondent Nos.5 to 7) and therefore sought to dismiss the writ petition.
16. Having heard the learned counsel for the parties, it is not in dispute that the present petitioner is claiming the property in question based on the registered sale deed dated 26.12.1981 and the mortgage deeds dated 15.4.1953 and 13.4.1964. On the basis of the decree passed in O.S. No.21/59-50, one Sri Siddalingaiah executed mortgage deed dated 15.4.1953 in favour of one Venkatamma and she in turn executed another mortgage deed dated 13.4.1964 in favour of Rangappa Setty. It is also not in dispute that father and mother of Respondent Nos.5 to 7 filed suit for redemption in O.S. No.281/82 and the petitioner and his father filed the suit in O.S. No.308/82 for Permanent Injunction based on the registered sale deed. The trial Court clubbing both the suits and considering the 17 entire material on record, framed the issues as to whether the plaintiffs in O.S.No.281/82 (i.e., the father and mother of present Respondent Nos.5 to 7) have proved that they are entitled to redemption of the suit mortgage and entitled for possession and whether the plaintiffs in O.S. No.308/82 (i.e., the present petitioner and his father) proved lawful possession of the suit schedule properties and entitled for permanent injunction. Considering the oral and documentary evidence on record, the trial Court recorded a finding that father and mother of present Respondent Nos.5 to 7 who filed O.S. No.281/82 failed to prove that they are entitled for redemption and also failed to prove that they are entitled to possession and held that the present petitioner and his father, who filed O.S. No.308/82 proved that they are in lawful possession of the suit schedule properties and entitled for permanent injunction. Accordingly, the trial Court dismissed the suit filed by father and mother of the present Respondent Nos.5 to 7 in O.S. 18 No.281/82 for redemption and decreed the suit filed by the present petitioner and his father in O.S. No.308/82.
17. It is also not in dispute that being aggrieved by the said Judgment & Decree passed in O.S No.281/82 c/w O.S. No.308/82, the State Government filed R.A. No.122/89; father and mother of Respondent Nos.5 to 7 filed R.A. No.94/89 and mother of Respondent Nos.5 to 7 filed R.A. No.91/89. All the three appeals clubbed together and considering the entire material on record, the Lower Appellate Court while dismissing all the three appeals, has observed as under:
"33. I have discussed in detail in Point Nos.1 to 3 that there was no valid attachment before the Judgment in the proceedings of O.S. No.21/49-50 and no good title was conveyed to the late Thimmaiah and his son, since there is defect in the sale certificate i.e., the entire extent of 4 acres 25 guntas was mentioned instead of 2/3rd share in S.No.91/2. Therefore neither Thimmaiah nor his sons and daughter-in-law Channamma secured good 19 title over the suit property. But, on the other hand, Rangappa Setty through registered sale deed Ex.P3 (O.S. 308/82) and through assignment deed Ex.P14 (O.S. 308/82) have secured good title and lawful possession over the suit schedule property. Therefore, the opinion of the Lower Court in answering issue No.1 and 2 is affirmative in O.S. No.308/82 is perfectly correct and justified. Hence plaintiffs in O.S. No.308/82 being the purchasers of the suit schedule property through the son of Rangappa Setty through Ex.P6 dated 26.12.1981 are in lawful possession of the suit schedule property as on the date of the suit."
18. It is also not in dispute that being aggrieved by the Judgment & Decree passed by the Lower Appellate Court, the present Respondent Nos.4 to 7 filed RSA No.245/96 and mother of Respondent Nos.5 to 7 filed RSA No.252/96.
19. This Court considering the entire material on record, has recorded a finding that "The minute examination of Ex.P3 does not establish that an order of 20 attachment had been passed by the Executing Court at any time in Execution No.394/57 nor it establishes that the suit subject matter was duly attached in accordance with the procedure prescribed by the law. Endorsement in column 15 to the effect that 'possession was delivered and receipt was obtained, file 3.4.1957' obviously cannot be referable to delivery of possession of the property purported to have been sold in auction for the reason that even as per Ex.P4 - the sale certificate, the property was sold in public auction on 10.1.1966, the sale was confirmed by the Court on 2.3.1966 and as per Ex.P5 the possession was delivered on 15.11.1966. Thus from Ex.P3 it cannot be held that order of attachment had been passed by the Executing Court and that order of attachment was duly effected. The learned Senior counsel also fairly conceded that Ex.P3 do not establish the aforesaid facts. According to him, it only indicates that in Execution No.394/57 attachment and sale of 2/3rd share of the schedule immovable property, had 21 been sought. Ex.P3 does not show as to which property was described in the schedule thereto".
20. This Court in Regular Second Appeals further recorded a finding that "Of course, perusal of Ex.P4 indicates that it is the sale certificate issued by the Court in Execution NO.876/65. The contents of Ex.P4 establishes that the schedule property was sold in public auction held on 10.1.1966 wherein Venkataramanaiah son of decree holder Thimmaiah @ Thimmegowda has been declared the purchaser and the said sale was duly confirmed by the Court on 2.3.1966. According to Ex.P4 the property sold in public auction was land bearing Sy.no.91/2 totally measuring 4 acres 24 guntas situated in Hebbur village of Tumkur taluk. Ex.P5 is a certified copy of the delivery receipt wherein the auction purchaser has been placed in possession of the property sold in public auction, which was confirmed by the Court subsequently. The property said to have been delivered to the possession of the auction 22 purchaser was the land bearing Sy.No.91/2 measuring 4 acres 24 guntas situated in Hebbur village of Tumkur taluk".
21. This Court while dismissing the Regular Second Appeals, has also recorded a finding, which reads as under:
"39. Therefore, it is clear that the entire extent of 4 acres 24 guntas in Sy.No.91/2 could not have been sold in public auction as by that date, the decree holder Thimmaiah @ Thimmegowda was already the owner to an extent of 1 acre 22 guntas in the said land. As per Exs.P4 and P5, possession of the entire extent of 4 acres 24 guntas was purported to have been delivered to the auction purchaser. In this regard, it is pertinent to note that in para 5 of the plaint in O.S. No.281/82 it has been averred thus:
"5. Since northern 1/3rd of S.No.91/2 had been delivered to Thimmappa, father of plaintiff, he gave it to Rangaiah his elder son. The remaining 2/3rd belonging and being in possession of assignee 23 mortgagee it was being cultivated by 1st defendant as a tenant"
From the above averment, it is clear that the decree holder Thimmaiah @ Thimmegowda had given 1/3rd portion in Sy.No.91/2 which was delivered to him pursuant to decree in O.S. No.21/1949-50 and had been assigned survey No.91/2A to his elder son Rangaiah and remaining 2/3rd portion was in possession of the mortgagees. Therefore, the auction purchaser could not have been placed in possession of the entire extent of 4 acres 24 guntas since land to an extent of 1 acre 22 guntas was in possession of Rangaiah, elder brother of the auction purchaser. As far back in 1955 itself the 2/3rd portion in Sy.No.91/2 had been assigned Sy.No.91/2-B as is clear from Ex.D3 in O.S. No.308/82".
22. This Court further recorded a finding that "as per the recitals in Ex.P14 marked in O.S. No.308/82 under a registered mortgage deed dated 15.4.1953, Siddaiah had mortgaged half portion out of 2/3rd share in Sy.No.91/2 in favour of Hosalaiah and after the death of said Hosalaiah, the said mortgage was assigned in favour of Rangappa 24 Setty. From the recital found in Ex.P14 marked in O.S. NO.308/82, it is clear that the mortgage deed dated 24.7.1949 executed by Siddaiah in favour of Hosalaiah was not subsisting since the same was superceded by another mortgage executed by Siddaiah in favour of Hosalaiah on 15.4.1953. Therefore none of the two mortgagees referred to in O.S. No.281/82 were subsisting as on the date of filing of the suit in the year 1982. Therefore, the plaintiffs in O.S. No.281/82 could not seek redemption of those mortgages, which were not subsisting. Therefore, the courts below are justified in dismissing the suit in O.S. No.281/82. Looking from any angle, the plaintiffs in O.S. No.281/82 are not entitled for the relief of redemption of the two mortgages ". Accordingly, this Court dismissed both the appeals confirming the Judgment & Decree passed in O.S. No.308/82 granting permanent Injunction. 25
23. It is also not in dispute that against the Judgment & Decree passed by this Court in RSA Nos.245/96 c/w 251/96, Smt. Channamma, who is the mother of present Respondent Nos.5 to 7 filed SLP Nos.11125-11125/2012. The Hon'ble Supreme Court dismissed the said SLPs. on 1.10.2012. Thus the Judgment & Decree passed by the trial Court dismissing the suit for redemption filed by the father and mother of Respondent Nos.5 to 7 in O.S. No.281/82 and decreeing the suit filed by the petitioner and his father for permanent injunction in O.S. No.308/82, is confirmed by the Lower Appellate Court and re-affirmed by this Court and the Hon'ble Supreme Court, has reached finality.
24. It is also not in dispute that on the basis of the decree passed by the Civil Court and confirmed by the Lower Appellate Court and re-affirmed by this Court and the Hon'ble Supreme Court, the jurisdictional Tahasildar mutated the name of the petitioner in respect of 26 Sy.No.91/2 measuring 3 acres 3 guntas and Sy.No.91/3 measuring 28 guntas in M.R.H. 35/2011-12 dated 29.5.2012. Though an appeal came to be filed before the Assistant Commissioner by the present Respondent Nos.4 to 7 in RRT(A)(T) No.55/2013-14, which came to be dismissed as not pressed.
25. It is also not in dispute that on the representation made by Respondent No.6 - Mahadesh before the Tahasildar for change of khatha and phani based on the decree in O.S. No.21/49-50 in respect of Sy.No.91/2 and 91/3, the Tahasildar issued the Endorsement dated 17.1.2014, which is the subject matter of the appeal in RRT(A)(T) 226/2013-14 as per Annexure-H. A careful perusal of the prayer in the said appeal, it clearly depicts that what was challenged is only the Endorsement issued by the Tahasildar dated 17.1.2014 in respect of two survey numbers and not the order passed by the Tahasildar in M.R.H. 35/2011-12 dated 29.5.2012 to enter the name of 27 the present petitioner based on the Civil Court order, which is confirmed by the Lower Appellate Court and re-affirmed by this Court and the Hon'ble Supreme Court. Unfortunately, in the impugned order (Annexure-A) in the beginning under the heading, 'subject', the Assistant Commissioner has included the Endorsement No.RRT.CR.372/2013-14 dated 17.1.2014 and MR.H.35.2011-12 29.5.2012 though MR.H.35.2011-12 was not subject matter of appeal before the Assistant Commissioner and ultimately set aside both the orders dated 17.1.2014 and 29.5.2012. The Assistant Commissioner cannot sit over the decree passed by the Civil Court and the Assistant Commissioner has no jurisdiction while exercising the powers under the provisions of Section 136(2) of the Act to interpret the decree passed by the Civil Court, which is confirmed by the Lower Appellate Court and re-affirmed by this Court and the Hon'ble Supreme Court. Against the order passed by the 28 Tahasildar in M.R.H. No.35/2011-12 dated 29.5.2012, the appeal in RRT(A)(T) No.55/2013-14 is dismissed as not pressed and no liberty is reserved to file fresh appeal. The subsequent appeal is filed by the Respondent Nos.5 to 7 in RRT(A)(T) 226/13-14 challenging the Endorsement dated 17.1.2014 issued by the Tahasildar in RRT.CR.372/2013-
14. By the impugned order, the Assistant Commissioner ought not to have entertained the appeal against M.R.H.No.35/2011-12 as liberty has not been reserved to file fresh appeal. In the absence of liberty given to file fresh appeal, entertainment of the appeal at the instance of Respondent Nos.4 to 7 is bad in law and the appeal is not maintainable.
26. Though the Assistant Commissioner referred the order passed by this Court, proceeded to pass the impugned order, which is unwarranted and he cannot interpret the decree passed by the Civil Court and declare the rights of the parties beyond the decree passed by the 29 Civil Court, which is confirmed by the Lower Appellate Court and re-affirmed by this Court and the Hon'ble Supreme Court. Though the learned counsel for Respondent Nos. 4 to 7 vehemently contended that the impugned order passed by the Assistant Commissioner is justified and this Court cannot interfere, the fact remains that when there is clear finding recorded by the Civil Court in O.S. No.281/82 c/w O.S. No.308/82 declaring the sale certificate as invalid and attachment was invalid, question of entering the name of Respondent Nos.4 to 7 on the basis of the representation made based on the sale certificate would not arise. Therefore, the impugned order passed by the Assistant Commissioner cannot be sustained.
27. For the reasons stated above, the writ petition is allowed. The impugned order passed by the Assistant Commissioner made in RRT(A)(T) 226/13-14 dated 6.8.2014 as per Annexure-A is hereby quashed. Consequently, the petitioner is entitled for getting his name 30 entered in respect of Sy.No.91/2 measuring 3 acres 3 guntas and Sy.No.91/3 measuring 28 guntas of Hebbur village, Hebbur Hobli, Tumkur taluk.
Ordered accordingly.
Sd/-
JUDGE Gss/-