Karnataka High Court
Sri Hanmanthappa vs The Municipal Commissioner And Ors on 27 June, 2022
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
WP 200378/2018
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IN THE HIGH COURT OF KARNATAKA R
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF JUNE 2022
BEFORE
THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY
W.P.No.200378/2018 (LB-RES)
BETWEEN:
Sri Hanmanthappa,
S/o Bandappa Tadakal,
Age: 71 years,
Occ: Agriculture,
R/o H.No.10-983,
Lalgeri, Brahampur,
Kalaburagi - 585 103. ...PETITIONER
(By Sri Naresh V.Kulkarni, Adv.)
AND:
1. The Municipal Commissioner,
Office of the CMC,
Yadgir - 585 201.
2. The Regional Commissioner,
Office of the Regional Commissioner,
Mini Vidhana Soudha,
Kalaburagi - 585 102.
3. Smt. Annapurnamma,
W/o Subhashchandra Guttedar,
Age-50 years, Occ: Household,
R/o Station Area,
Yadgir - 585 201.
WP 200378/2018
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4. Sri Narendra,
S/o Subhaschandra Guttedar,
Age-30 yrs, Occ-Business,
R/o Station Area,
Yadgir - 585 201.
5. Sri Siddhardha,
S/o Subhashchandra Guttedar,
Age-28 years, Occ: Business,
R/o Station Area,
Yadgir - 585 201. ...RESPONDENTS
(By Smt. Ambika S.Patil, Adv. for
Sri Gourish S.Khashampur, Adv. for R-1;
Sri Ganesh S.Kalaburagi, Adv. for R-3 to R-5)
This writ petition is filed under Articles 226 & 227 of the
Constitution of India, praying to quash the impugned order
dated 25.11.2000 passed by respondent no.1 at Annexure-C
and the order dated 02.09.2002 at Annexure-D1 and restore the
name of the petitioner in the municipality records.
This petition coming on for Preliminary Hearing 'B' Group,
this day, the Court made the following:
ORDER
1. Petitioner has filed the instant writ petition seeking the following reliefs:
1. Issue a writ of certiorari by quashing the impugned order passed by respondent no.1 at WP 200378/2018 -3- Annexure-C in file No.PURASABHE:V:200:2000-
01/2535-36 dated 25.11.2000 and Annexure-D1 in file No.PURASABHE:VARGA:714:2001-02/1607-08 dated 02.09.2002 only to the extent of House property bearing CMC No.5-5-91 A (Old) and 5-5-84 (New) situated near Ashoka Lodge, Station Area, Yadgir, and restore the name of the petitioner in the municipality records.
2. Issue a writ of certiorari by quashing the impugned order at Annexure-G passed by the respondent no.2 in file No.SUM/KUM/PRA AGU/PURASABHE/261/2017-18/11167 dated 14.12.2017.
3. To pass such other order as this Hon'ble Court deems fit under the facts and circumstances of the case, in the interest of justice and equity.
2. The petitioner claims to be the absolute owner of the house property bearing CMC No.5-5-91/A (Old) and 5-5-84 (New) situated near Ashoka Lodge, Station Area, Yadgir. It is his specific case that the said property originally belonged to his ancestors and after their death, the revenue records were mutated in his name and he was paying property tax from the WP 200378/2018 -4- year 1994-95 to 1999-2000. Thereafter, in the year 2001, the petitioner had to move to Kalaburagi for the purpose of the education of his children and at the time of shifting he had asked his distant relative Smt. Annapurnamma to take care of the property in question. Taking undue advantage of the absence of the petitioner, respondent no.3 - Smt. Annapurnamma claiming herself to be the daughter of the petitioner, had created an affidavit in the name of the petitioner to the effect that he had no objection to change the revenue entries in respect of the property in question in favour of the said Annapurnamma.
3. The Chief Executive Officer of City Municipal Council, Yadgir, based on such an affidavit, had ordered to delete the name of the petitioner and enter the name of respondent no.3 - Smt. Annapurnamma in the revenue records of the property in question. It appears that subsequently Smt. Annapurnamma has executed another affidavit for transfer of the said property in favour of her son - respondent no.4 herein and based on such affidavit, the Chief Executive Officer of City Municipal Counsel, WP 200378/2018 -5- Yadgir, has ordered to transfer the property in the name of respondent no.4. Petitioner, after coming to know about the same, had filed a revision before respondent no.2 who has dismissed the same vide impugned order at Annexure-G on the ground that since the dispute is civil in nature, the petitioner was required to approach the Civil Court for adjudication of his dispute. Being aggrieved by such an endorsement dated 14.12.2017 issued by respondent no.2 vide Annexure-G, the petitioner is before this Court. The contesting respondents who have entered appearance have not filed their statement of objections till date.
4. Learned Counsel for the petitioner submits that the material on record would go to show that the revenue records of disputed property, earlier stood in the name of the petitioner herein. Only on the basis of the alleged affidavit, the revenue records of the property in question were transferred in the name of respondent no.3. He submits that respondent no.1 had no authority or jurisdiction to change the revenue records of the property in question on the basis of an affidavit produced by WP 200378/2018 -6- respondent no.3 even without issuing notice to the petitioner. He submits that the said affidavit which is at Annexure-B is a fraudulent document and the signature found in the said document is not of the petitioner. He submits that respondent no.3 is not the daughter of the petitioner herein and she is only his distant relative. However, in the affidavit, it is mentioned that she is the daughter of the petitioner.
5. He submits that on the basis of the affidavit, the revenue records of the property in question could not have been changed in favour of a stranger by respondent no.1. He submits that after coming to know about the fraud played by respondent no.3 and her family members, a revision petition was filed before respondent no.2. However, respondent no.2 without appreciating the fact that the entries in respect of the property in question were fraudulently changed in favour of respondent nos.3 to 5, has dismissed the said revision with an observation that the petitioner is required to approach the Civil Court for adjudication of his rights. He submits that when admittedly the property earlier stood in the name of the petitioner and the WP 200378/2018 -7- entries in respect of the said property were changed fraudulently, respondent no.2 ought to have exercised his jurisdiction and restored the entries as it stood earlier.
6. Per contra, learned Counsel appearing for respondent nos.3 to 5 submits that the petitioner has no title over the property in question. He submits that the true owner of the property has executed a Will in the name of respondent no.3, and therefore, on the strength of such a Will, respondent no.3 is the absolute owner of the property. He submits that after the property was transferred in the name of respondent no.3, two other transactions have taken place, wherein the property was initially transferred by respondent no.3 in favour of her son respondent no.4 and respondent no.4 inturn has transferred the property in favour of respondent no.5 who is his brother. Therefore, unless the subsequent transactions are challenged, no relief can be granted to the petitioner herein. He submits that there is an inordinate delay of 17 years in filing the revision before respondent no.2 which has not been properly explained, and therefore, the revision was liable to be dismissed on the WP 200378/2018 -8- ground of delay and laches. He further submits that even if this Court is of the opinion that the Regional Commissioner is required to re-consider the matter, the impugned endorsement could be set aside and the matter may be remanded to the Regional Commissioner for considering the title of respondent nos.3 to 5.
7. I have carefully considered the arguments addressed on both sides and also perused the material on record.
8. Annexure-E is the property assessment register of the property in question and perusal of the same would clearly go to show that the property originally stood in the name of the petitioner herein. Based on an affidavit alleged to have been given by the petitioner as per Annexure-B dated 26.06.2000 in favour of respondent no.3 herein, the entries in the revenue records of the property in question were changed in the name of respondent no.3.
9. It is the specific case of the petitioner that the signature found in the affidavit is not his. A perusal of the affidavit would WP 200378/2018 -9- go to show that the signatures found in the affidavit at Annexure-B is made in Kannada, whereas the admitted signatures found in the vakalath as well as the affidavit filed in this writ petition would go to show that the petitioner has signed in English. It is the case of the petitioner that he always signs only in English and not in Kannada.
10. In the affidavit, it is stated that respondent no.3 is the daughter of the petitioner. Petitioner has stated before this Court that respondent no.3 is not his daughter and she is his distant relative. This fact is not disputed by the learned Counsel for respondent nos.3 to 5.
11. On the basis of the affidavit, the municipal authorities could not have changed the entries in respect of the immovable property in favour of third party who is a stranger, that too without issuing notice to the person in whose name the revenue records originally stood. It is a settled principle of law that the transfer of immovable property can be done, only by a registered document and on the basis of unregistered WP 200378/2018
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documents, the revenue authorities cannot change the revenue entries of the immovable property.
12. In the case on hand, the municipal authorities have changed the entries in respect of the property in question which originally stood in the name of the petitioner in favour of respondent no.3 on the basis of an affidavit which prima facie appears to be a fraudulent document. Respondent no.3, thereafter, has executed yet another affidavit and on the basis of the same, the entries in the revenue records of the property in question have been changed in the name of her son - respondent no.4 herein and respondent no.4 herein appears to have executed another document in favour of respondent no.5 who is also the son of respondent no.3. On the strength of the said document, the entries in respect of the property appears to have been transferred in the name of respondent no.5.
13. It is settled principle of law that fraud unravels everything. Every order or transaction pursuant to fraudulent act is void ab initio and the same cannot be allowed to stand. The Hon'ble WP 200378/2018
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Supreme Court in the case of BEHARI KUNJ SAHKARI AVAS SAMITI VS STATE OF U.P. & ORS. - (1997)7 SCC 37, in paragraph 13 has observed as under:
"13. In State of A.P. and Anr. v. T. Suryachandra Rao [2005(6) SCC 149], it was observed as follows:
By "fraud" is meant an intention to deceive; whether it is from any expectation of advantage to the party himself or from the ill will towards the other is immaterial. The expression "fraud"
involves two elements, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable or of money and it will include and any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non- economic or non- pecuniary loss. A benefit or advantage to the deceiver, will almost always call loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied. (See Dr. Vimla v. Delhi Administration (1963 Supp. 2 SCR 585) WP 200378/2018
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and Indian Bank v. Satyam Febres (India) Pvt. Ltd. (1996 (5) SCC 550).
A "fraud" is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. (See S.P. Chengalvaraya Naidu v. Jagannath (1994 (1) SCC 1).
"Fraud" as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury enures therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a WP 200378/2018
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given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. (See Ram Chandra Singh v. Savitri Devi and Ors. (2003 (8) SCC 319).
14. In the case of MEGHMALA & ORS. VS G.NARASIMHA REDDY & ORS. - (2010)8 SCC 383, the Hon'ble Supreme Court in paragraphs 25 to 28 has observed as under:
25. Fraud is an intrinsic, collateral act, and fraud of an egregious nature would vitiate the most solemn proceedings of courts of justice. Fraud is an act of deliberate deception with a design to secure something, which is otherwise not due. The expression "fraud" involves two elements, deceit and injury to the person deceived. It is a cheating intended to get an advantage. (Vide Dr. Vimla Vs. Delhi Administration AIR 1963 SC 1572; Indian Bank Vs. Satyam Fibres (India) Pvt. Ltd. (1996) 5 SCC 550; State of Andhra Pradesh Vs. T. Suryachandra Rao AIR 2005 SC 3110;
K.D.Sharma Vs. Steel Authority of India Ltd. & Ors. (2008) 12 SCC 481; and Regional Manager, Central Bank of India Vs. Madhulika Guruprasad Dahir & Ors. (2008) 13 SCC 170).
WP 200378/2018
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26. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false. Suppression of a material document would also amount to a fraud on the court. (Vide S.P. Changalvaraya Naidu (supra); Gowrishankar & Anr. Vs. Joshi Amba Shankar Family Trust & Ors. AIR 1996 SC 2202; Ram Chandra Singh Vs. Savitri Devi & Ors. (2003) 8 SCC 319; Roshan Deen Vs. Preeti Lal AIR 2002 SC 33; Ram Preeti Yadav Vs. U.P. Board of High School & Intermediate Education AIR 2003 SC 4628; and Ashok Leyland Ltd. Vs. State of Tamil Nadu & Anr. AIR 2004 SC 2836).
27. In kinch Vs. Walcott (1929) AC 482, it has been held that "....mere constructive fraud is not, at all events after long delay, sufficient but such a judgment WP 200378/2018
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will not be set aside upon mere proof that the judgment was obtained y perjury."
Thus, detection/discovery of constructive fraud at a much belated stage may not be sufficient to set aside the judgment procured by perjury.
28. From the above, it is evident that even in judicial proceedings, once a fraud is proved, all advantages gained by playing fraud can be taken away. In such an eventuality the questions of non-executing of the statutory remedies or statutory bars like doctrine of res judicata are not attracted. Suppression of any material fact/document amounts to a fraud on the court. Every court has an inherent power to recall its own order obtained by fraud as the order so obtained is non est.
15. In the case on hand, the material on record would prima facie go to show that the entries in respect of the property in question were transferred in the name of respondent no.3 on the basis of the fraudulent document produced by respondent no.3. In the said document, she claims that she is the daughter of the petitioner, but as a matter of fact, she is not the daughter of the petitioner herein. Further, in the said document, the signature of the petitioner is found in Kannada, whereas it is WP 200378/2018
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case of the petitioner that he signs only in English and the admitted signatures found in the affidavit and vakalath available in the file are in English. Further, as stated earlier, on the basis of the affidavit, municipal authorities could not have transferred the entries in the revenue records of the property in question in favour of respondent no.3 who is a stranger not only to the property but also to the petitioner. It is not in dispute that the petitioner was not heard prior to such a change in the revenue records and the entries were changed by the municipal authorities on the basis of the affidavit said to have been executed by the petitioner.
16. Respondent no.2 has failed to appreciate the aforesaid aspects of the matter and has observed that since there are two other transactions in respect of the property in question after the revenue records of the property in question was originally transferred in the name of respondent no.3 and since there is a lapse of 17 years from the date of original order passed by respondent no.1, the petitioner is required to approach the Civil Court for the purpose of adjudication of his rights. Respondent WP 200378/2018
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no.2 has not appreciated that the subsequent transactions are inter se within the family. Respondent no.3 has executed an affidavit and on the strength of the said affidavit, the property is transferred in the name of respondent no.4 who is her son and thereafter on the basis of another unregistered document, the said property has been now transferred in the name of respondent no.5 who is also the son of respondent no.3.
17. It appears that the said transactions are made only to create documents and deprive the petitioner of his right and title over the property in question. The petitioner is not required to challenge any of such transactions which have come into existence subsequent to the change of entries made in favour of respondent no.3 based on the fraudulent document submitted by her before respondent no.1. Respondent no.2 without appreciating this aspect of the matter, has erred in rejecting the revision petition filed by the petitioner and directing him to approach the Civil Court for adjudication of his rights. Admittedly, the petitioner is not a party to any of the alleged transactions in respect of the property in question. As observed WP 200378/2018
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earlier, the revenue entries in respect of the property in question have been changed on the basis of fraudulent document submitted by respondent no.3, for which the petitioner is not a party and respondent no.1 while changing the revenue records of the property in question based on such a fraudulent document, has not even issued a notice to the petitioner in whose name the revenue records of the property in question stood as on the said date. Though belated exercise of powers in revisional jurisdiction is impermissible, in a case of fraud such an exercise of power would be necessary to restore the loss suffered by the victim of fraud. The exercise of powers belatedly is normally not done so as to avoid interfering with the rights of third party which would have been created during the intervening period of delay. However, in the case on hand, the alleged transactions are all in between the family members i.e., between respondents 3 to 5 and no third party interest has been created by them in the property in question.
18. The revision petition has been filed by the petitioner after he came to know about the change of the entries in the revenue WP 200378/2018
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records of the land in question based on the fraudulent documents by respondent Nos.3 to 5. Since the petitioner was not at all aware of the change made in the revenue records of the property in question, which originally stood in his name, the delay if any in filing the revision petition would not have come in the way of respondent no.2 in considering the revision petition on merits as the material available on record would go to show that the entries in the revenue records of the land in question were transferred in the name of respondent no.3 based on the fraudulent documents submitted by her. The Hon'ble Supreme Court in the case of JOINT COLLECTOR, RANGA REDDY DISTRICT VS D.NARASING RAO - (2015)3 SCC 695, has held that power of revision should be exercised soon after detection and discovery of fraud and failure on the part of the authorities concerned to exercise such powers within a reasonable time after the fraud is discovered, may justify such action being interdicted by the Court. In the case of STATE OF ORISSA VS BRUNDABAN SHARMA - (1995) SUPP.(3) SCC 249 , the Hon'ble Supreme Court has held that exercise of power of revision after WP 200378/2018
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a lapse of 27 years after the date of alleged grant of patta, was legal and valid as its authenticity and correctness was shrouded with suspicious features.
19. A person who has obtained favourable orders by playing fraud, cannot be heard to say that the action as against such fraud is required to be taken within a reasonable time. The question of delay, laches and due diligence cannot come in the way of granting the relief to a party who is a victim of the fraud played by a person. No court in this land can allow a person to take advantage of the order which he has obtained by fraud. When the original order based on fraud played by a person is found unsustainable and is quashed, all orders or transactions subsequent to such fraud played also cannot be allowed to stand and any of the parties who are the beneficiaries of such order pursuant to the fraud played cannot be permitted to take advantage of the same. The basic principle is that a party who secures an order by recourse to fraud should not be able to enjoy the fruits thereafter. The rule of evidence and procedure cannot come in the way of the courts passing orders annulling WP 200378/2018
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the orders which otherwise would enure to the benefit of a party who has obtained the same by recourse to fraud. Under the circumstances, I am of the considered view that respondent no.2 was not justified in issuing the impugned endorsement dated 14.12.2017.
20. In a petition under Article 226 of the Constitution of India, if the material on record would go to show that there is a fraud played by any of the parties, the said parties are not entitled for any relief at the hands of this Court. In the case on hand, it is prima facie seen that the entries made in respect of the land in question were transferred in the name of respondent no.3 on the basis of the fraudulent documents submitted by her. The respondent no.3, who has got the entries in respect of the land in question changed in her name on the strength of fraudulent documents, cannot seek any equity at the hands of this Court.
21. Learned Counsel for respondents 3 to 5 has strenuously contended that he may be given an opportunity to produce necessary documents before respondent no.2 to prove his title. WP 200378/2018
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Admittedly, no statement of objection has been filed by respondents 3 to 5 before this Court to establish their title in respect of the property in question. Though the learned Counsel for the said respondents has submitted that the real owner of the property in question has executed a registered Will in favour of respondents 3 to 5, he has not produced the copy of the said document before this Court. Even if it is presumed that the Will has been executed in favour of respondents 3 to 5 in respect of the property in question, the revenue authorities cannot take the said document into consideration and change the entries in the revenue records of the land in question.
22. Admittedly, prior to the order impugned at Annexure-C, the entries in the revenue records of the property in question stood in the name of the petitioner. If respondents 3 to 5 have got documents to establish their title, it is for them to approach the jurisdictional civil court and seek necessary reliefs and it is needless to state that the entries which are restored in the name of the petitioner pursuant to this order will be subject to the outcome of such civil dispute if initiated by respondents 3 to WP 200378/2018
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5. Since the entries in the revenue records have been changed based on an affidavit, which prima facie appears to be a fraudulent document, the orders passed at Annexures-C & D1 and the impugned endorsement issued at Annexure-G cannot be sustained. Accordingly, the following order:
23. The writ petition is allowed. The impugned orders dated 25.11.2000 and 02.09.2002 passed by respondent no.1 at Annexures-C & D1, respectively, and the endorsement dated 14.12.2017 issued by respondent no.2 at Annexure-G are quashed. The respondent no.1 is directed to restore the name of the petitioner in the revenue records of the land bearing Survey CMC No.5-5-91/A (old) and 5-5-84 (new) forthwith.
Sd/-
JUDGE KK/SRT