Karnataka High Court
Sri Shivanna vs The State Of Karnataka on 18 December, 2024
Author: S.G.Pandit
Bench: S.G.Pandit
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF DECEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE S. G. PANDIT
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D.HUDDAR
WRIT APPEAL NO.456/2023 (KLR-RES)
BETWEEN:
1. SRI SHIVANNA
S/O SRI MOLLE LINGAPPA,
SINCE DECEASED BY LR'S
(A) SMT. NANJAMMA
W/O LATE M. SHIVANNA
AGED ABOUT 67 YEARS
R/AT NO.40, MIG 2ND
K.H.B. COLONY, BIDADI
RAMANAGARA TALUK
RAMANAGARA DISTRICT-562109.
(B) SMT. S. SHOBHA
W/O SRI. B. PRAKASH
D/O LATE M. SHIVANNA
AGED ABOUT 46 YEARS
R/AT NO.20, SRINIDHI
2ND CROSS, 2ND MAIN ROAD
YOGESHWAR LAYOUT
BIDADI TOWN, RAMANAGARA TALUK
RAMANAGARA DISTRICT - 562109.
(C) SRI. GIRISH
S/O LATE M. SHIVANNA
AGED ABOUT 42 YEARS
R/AT #40, MIG 2ND
K.H.B. COLONY, BIDADI
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RAMANAGARA TALUK
RAMANAGARA DISTRICT- 562109.
2. SRI LINGAPPA
SINCE DECEASED BY LR'S
(A) SMT. LAKSHMAMMA,
W/O LATE LINGAPPA
AGED ABOUT 87 YEARS,
R/AT BANANDUR VILLAGE,
BIDADI HOBLI, RAMANAGARA TALUK,
RAMANAGARA DISTRICT-562109.
(B) SRI MARIYAPPA
S/O LATE LINGAPPA
AGED ABOUT 60 YEARS,
R/AT BANANDUR VILLAGE,
BIDADI HOBLI, RAMANAGARA TALUK,
RAMANAGARA DISTRICT- 562109.
(C) SRI ANAND
S/O LATE LINGAPPA
AGED ABOUT 56 YEARS,
R/AT BANANDUR VILLAGE,
BIDADI HOBLI, RAMANAGARA TALUK,
RAMANAGARA DISTRICT- 562109.
(D) SRI VIJAYKUMAR
S/O LATE LINGAPPA
AGED ABOUT 54 YEARS,
R/AT BANANDUR VILLAGE,
BIDADI HOBLI, RAMANAGARA TALUK,
RAMANAGARA DISTRICT-562109.
(E) SMT. THAYAMMA
W/O SRI NARAYANAPPA,
D/O LATE LINGAPPA @ ANNEGOWDA
AGED ABOUT 58 YEARS,
R/AT MALLESHWARA LAYOUT,
NEAR WATER TANK, IJOOR,
RAMANAGARA TALUK-562159.
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AND ALSO R/AT NAGUVALI VILLAGE,
KAILANCHA HOBLI,
RAMANAGARA TALUK
RAMANGARA DISTRICT- 571511.
(F) SMT. BHAGYAMMA
W/O SRI SHANTHAPPA,
D/O LATE LINGAPPA @ ANNEGOWDA,
AGED ABOUT 52 YEARS,
R/AT NO.10, 3RD CROSS,
HOSKEREHALLI,
BANASHANKARI 3RD STAGE,
BENGALURU- 560085.
3. SRI GANGADHARAIAH
SINCE DECEASED BY LR'S
(A) SMT. UMADEVI,
W/O LATE GANGADHARAIAH,
AGED ABOUT 62 YEARS,
R/AT BANANDUR VILLAGE,
BIDADI HOBLI,
RAMANAGARA TALUK,
RAMANAGARA DISTRICT-562109.
(B) SMT. PUSHPA
W/O SRI KUMAR,
D/O LATE GANGADHARAIAH,
AGED ABOUT 47 YEARS
R/AT HAROHALLI VILLAGE,
HAROHALLI HOBLI,
KANAKAPURA TALUK,
RAMANAGARA DISTRICT- 562112.
(C) SMT. SHWETHA
W/O SRI MADHU,
D/O LATE GANGADHARAIAH,
AGED ABOUT 46 YEARS
R/AT BIDADI TPWN,
RAMANAGARA TALUK,
RAMANAGARA DISTRICT-562109.
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4. SRI MARISWAMY
S/O LATE MOLLE LINGAPPA,
AGED ABOUT 64 YEARS,
R/AT BANANDUR VILLAGE,
BIDADI HOBLI,
RAMANAGARA TALUK,
RAMANAGARA DISTRICT-562109.
...APPELLANTS
(BY SRI G. KRISHNA MURTHY, SENIOR COUNSEL A/W
SRI GANAPATI BHAT VAJRALLI, ADV.)
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY
DEPARTMENT OF REVENUE,
VIDHANA SOUDHA,
BENGALURU- 560001.
2. THE DEPUTY COMMISSIONER
RAMANAGARA DISTRICT
RAMANAGARA- 571511.
3. THE ASSISTANT COMMISSIONER
RAMANAGARA SUB DIVISION,
RAMANAGARA- 571511.
4. THE TAHSILDAR
RAMANAGARA TALUK,
RAMANAGARA DISTRICT- 571511.
5. SRI B M BETTAPPA
S/O LATE MOLLE LINGAPPA,
SINCE DECEASED BY LR'S
(A) SRI B KUMAR
S/O LATE B M BETTAPPA,
AGED ABOUT 52 YEARS,
R/AT BYRAMANGALA CROSS,
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B M ROAD, BIDADI
RAMANGARA TALUK
RAMANAGARA DISTRICT- 562109.
(B) SMT. PRAMILE
W/O SRI SHIVAMADEGOWDA,
D/O LATE B.M. BETTAPPA
AGED ABOUT 56 YEARS,
R/AT SIDDENAHALLI VILLAGE,
KOLAGALU DAKLE, KANAKAPURA TALUK,
RAMANAGARA DISTRICT- 562112.
(C) SRI DEVARAJU
S/O LATE B M BETTEGOWDA,
AGED ABOUT 48 YEARS,
R/AT NO.18, INDIRANAGARA,
BIDADI, BIDADI HOBLI,
RAMANGARA TALUK
RAMANAGARA DISTRICT -562109.
...RESPONDENTS
(BY SMT. B SUKANYA BALIGA, AGA FOR R1 TO R4
SRI UDAY HOLLA, SR. COUNSEL A/W
SRI V.N. SHANKARE GOWDA, ADV. FOR C/R5(A) AND R5(C))
THIS APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO A) SET-ASIDE THE
IMPUGNED ORDER W.P. NO.46827/2019 BY THE LEARNED
SINGLE JUDGE OF THIS COURT DATED 10/03/2023 AND ALLOW
THE WRIT PETITION FILED THE APPELLANTS.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
20.11.2024 COMING ON FOR PRONOUNCEMENT THIS DAY,
S.G.PANDIT J., DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE S.G.PANDIT
AND
HON'BLE MR JUSTICE RAMACHANDRA D.HUDDAR
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CAV JUDGMENT
(PER: HON'BLE MR JUSTICE S.G.PANDIT) The above appeal filed under Section 4 of the Karnataka High Court Act, 1961 is directed against the learned Single Judge's order dated 10.03.2023 in W.P.No.46827/2019 rejecting appellants' challenge to order dated 13.08.2019 in Revision Petition No.17/2014-15 passed by respondent No.2 - Deputy Commissioner, Ramanagara District reversing the order of third respondent - Assistant Commissioner dated 21.08.2014 whereunder the Assistant Commissioner had allowed the appeal of the appellants with regard to mutation entry.
2. Parties to the appeal would be referred to as they stood before the learned Single Judge. Appellants were petitioners before the learned Single Judge.
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3. Brief facts of the case, as noted by the learned Single Judge, appellants as well as respondent No.5 are children or grandchildren of one late Molle Lingappa. Partition had taken place between late Molle Lingappa and his brothers in terms of partition deed dated 18.10.1970 (Annexure-R1). In the said partition, Molle Lingappa had received certain properties. Said Molle Lingappa died in the year 1974. Late Molle Lingappa had five children i.e., Shivanna, Lingappa, Gangadharaiah, B.M.Bettappa and Mariswamy. Said five children of Molle Lingappa partitioned their ancestral properties in the year 1980. They also purchased property in Sy.No.20 of Bidadi Village, Bidadi Hobli, Ramanagara Taluk independently. Based on the sale deeds, their names were entered in the record of rights. It is further stated that mutation was effected on 12.08.1982 in respect of appellants in M.R.Nos.10, 12, 13 and 8 14/1982-83 and in respect of respondent No.5 in M.R.No.11/1982-83. It is alleged that on 12.08.1982 itself under M.R.No.15/1982-83, name of respondent No.5 Sri.B.M.Bettappa came to be entered in respect of the entire land by deleting the names of appellants/petitioners. It is stated that respondent No.5 got his name entered by mutation No.15/1982- 83 by stating he and his brothers have partitioned the properties orally and it is also stated that appellants had given statement to that effect.
4. It is the case of the appellants/petitioners that they were not aware of the said mutation No.15/1982-83 wherein their names were deleted and respondent No.5's name was entered in respect of the lands in question and when it came to their knowledge, they filed appeal before the third respondent - Assistant Commissioner with a prayer to condone the delay. The Assistant Commissioner 9 allowed the appeal by order dated 21.08.2014 stating that appellants have not given any statement to change the mutation in favour of fifth respondent and as the entire file relating to change of mutation is not available, allowed the appeal and directed the Revenue Authorities to enter the names of appellants in respect of 2 acre 06 guntas each by cancelling the entry of fifth respondent.
5. Aggrieved by the order of the Assistant Commissioner, respondent No.5 filed appeal before the Deputy Commissioner - second respondent herein. The second respondent - Deputy Commissioner under impugned order dated 13.08.2019 allowed the appeal, set aside the order of third respondent - Assistant Commissioner on the ground that there is delay of nearly 27 years on the part of the appellants/petitioners in approaching the third respondent - Assistant Commissioner, 10 challenging the mutation made in favour of fifth respondent. The Deputy Commissioner also observed that there was oral partition among brothers and as the petitioners/appellants given statement for change of khatha, the khatha was entered in the name of fifth respondent.
6. Aggrieved by the said order of the Deputy Commissioners, petitioners were before the learned Single Judge in W.P.No.46827/2019. Learned Single Judge dismissed the writ petition on the ground that entries were made in favour of respondent No.5 to the land in question on the strength of 'Varadi' given by brothers i.e., appellants herein and entries were made more than 27 years ago, it was impermissible for the Assistant Commissioner to set aside such mutation entry and confirmed the observation of the Deputy Commissioner that the appellants shall have to approach the competent Civil Court to get a 11 declaration of their title in respect of the land in question. Hence, the appellants/petitioners are before this Court in this appeal.
7. Heard the learned senior counsel Sri.G.Krishna Murthy for Sri.Ganapathi Bhat Vajralli, learned counsel for the appellants, learned Additional Government Advocate Smt.Sukanya Baliga for respondent Nos.1 to 4 and learned senior counsel Sri.Udaya Holla for Sri.V.N.Shankaregowda for respondent Nos.5(a) and 5(c). Perused the entire writ appeal papers.
8. Reliance has been placed on number of decisions by both the learned senior counsels and if necessary, the same would be referred to the extent they are required.
9. Learned senior counsel Sri.G.Krishna Murthy would submit that learned Single Judge erred 12 in not noticing that appellants and respondent No.5 independently purchased 2 acres 6 guntas each in Sy.No.20 of Bidadi Village under five sale deeds on the same date i.e., 18.04.1980 and mutation in terms of Section 128 of the Karnataka Land Revenue Act, 1964 (for short, 'KLR Act') shall be entered on the basis of the registered document. When the appellants' names were entered based on the title deeds, the fifth respondent fraudulently got entered his name in respect of the lands in question. It is submitted that both the learned Single Judge as well as respondent No.2-Deputy Commissioner committed grave error in examining whether there was partition among the family members and in believing the oral partition canvassed by respondent No.5 without there being any basis. Learned senior counsel would submit that though there is delay in challenging the mutation in favour of respondent No.5 and such delay is only 13 because appellants were not aware of such mutation entry in favour of respondent No.5 as they had believed the brother who was looking after the joint family properties. Learned senior counsel would also submit that the Deputy Commissioner could not have given a finding with regard to oral partition and the said finding is without jurisdiction. Learned senior counsel would contend that in the revenue proceedings, the Revenue Authorities like Deputy Commissioner and Assistant Commissioner could not go into the issue of title and they also cannot go into the validity of dispute of the civil nature. Thus, learned senior counsel would submit that the learned Single Judge as well as Deputy Commissioner committed grave error in believing the oral partition put forth by respondent No.5 and relegating the appellants to the Civil Court.
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10. Learned senior counsel would submit that the third respondent - Assistant Commissioner rightly directed the entry of appellants'/petitioners' name in respect of the lands in question based on the title documents and if at all respondent No.5 was aggrieved, he ought to have been relegated to Civil Court. Learned senior counsel would also submit that the order passed under Section 136(2) of the KLR Act by the third respondent - Assistant Commissioner was final and no revision before the Deputy Commissioner was maintainable and the view taken by the Full Bench requires re-consideration. Learned senior counsel in addition to the above contention submits that fifth respondent fraudulently got his name entered in the mutation by creating documents to say that oral partition had taken place between the family members. As the entry in favour of fifth respondent is fraudulent one, fraud vitiates everything and the third 15 respondent - Assistant Commissioner is justified in entertaining the appellants'/petitioners' appeal. Thus, he prays for allowing the appeal.
11. Per contra, learned senior counsel Sri.Udaya Holla for respondent No.5 supports the order passed by the learned Single Judge as well as the Deputy Commissioner. Learned senior counsel would submit that the Deputy Commissioner has rightly observed that it is open for the appellants herein to approach the Civil Court to establish their title over the properties. Learned senior counsel would submit that the mutation entry in favour of fifth respondent was effected in the year 1982 and the appellants filed appeal before the third respondent - Assistant Commissioner only in the year 2009 and there is 27 years long delay in approaching the third respondent. It is submitted that when a revenue entry continues for a long, normally the Revenue Authorities 16 shall be slow in disturbing the same and it is proper and correct to relegate the parties to Civil Court.
12. Further, learned senior counsel would point out that in pursuance to oral partition, parties have acted upon such oral partition. Learned senior counsel would submit that certain lands of the joint family were acquired by KIADB for industrial purpose and compensation received by the first respondent late Shivanna is not in dispute. Therefore, he submits that appellants cannot deny the oral partition. Thus, he prays for dismissal of the appeal.
13. Having heard the learned senior counsel appearing for the parties and on perusal of the entire writ appeal papers, we are of the view that the appellants have not made out any ground to interfere with the order of the learned Single Judge and the learned Single Judge as well as second respondent - 17 Deputy Commissioner are right in observing that it is open for the appellants to approach the Civil Court to establish their right.
14. There is no dispute with regard to relationship between the appellants and respondent No.5. One Sri.Molle Lingappa and his brothers had partitioned their ancestral properties under partition deed dated 18.10.1970. Said Molle Lingappa died in the year 1974. Thereafter, partition had taken place between appellants and respondent No.5 in the year 1980. The children of Molle Lingappa i.e., Late Shivanna, father of appellant Nos.1(a) to 1(c), late Lingappa, father of appellant Nos.3(a) to 3(c), Mariswamy and Late B.M.Bettappa, father of respondent Nos.5(a) to 5(c) purchased the land to an extent of 11 acres 09 guntas in Sy.No.20 of Bidadi Village, Ramanagara Taluk under five individual sale deeds. The names of the appellants as well as 18 respondent No.5 were mutated under M.R. Nos.10, 12, 13 and 14/1982 and M.R.No.11/1982 respectively. But, under M.R.No.15/1982-83 name of respondent No.5 was mutated in respect of the entire land in Sy.No.20. A perusal of M.R.No.15/1982-83, it is seen that mutation is made in favour of fifth respondent on the statement of the appellants. Such entry is continued for nearly 27 years. If such entry continued for such a long period, it is not open for the Revenue Authorities to entertain the appeal or revision to change the mutation. Under such circumstances, it is always for the parties to approach the Civil Court to establish their right, title and interest over the lands in question. If it is the case of the parties that such entry is fraudulent one, then also it is for the parties to approach the Civil Court and the allegation of fraud or conconcted 19 documents cannot be gone into or decided by the Revenue Authorities. To prove fraud or concoction, needs cogent evidence and which can be appreciated only by Civil Court.
15. In the case on hand, the change or entry in mutation in favour of fifth respondent was made in the year 1982 and as contended by the appellants, it is by playing fraud etc., or with concocted documents or otherwise. Such allegation of fraud or concoction is a matter that should be established before the Civil Court and not before the Revenue Authorities. The Revenue Authorities like Deputy Commissioner, Assistant Commissioner or Tahsildar lack jurisdiction to record findings with regard to fraud or concoction or title over the properties. Normally, the Revenue Authorities shall not interfere with or change the revenue entry or Khatha or mutation after very long lapse of time.
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16. Learned Single Judge is right in observing that the entries were made more than 27 years ago and it is impermissible for the Assistant Commissioner to set aside such mutation entry, which would prejudice the interest of one of the parties. But, the learned Single Judge is not correct in giving a finding with regard to partition. With regard to partition, it is for the parties to establish before the Civil Court. Whether the parties had entered into oral partition or whether there was partition by way of a deed or whether there was a family arrangement is a matter to be decided by the Civil Court, if any of the parties approach the Civil Court. More so, because the appellants have contended that there is no oral partition and the properties were purchased individually and respondent No.5 has contended that one of the brother-appellant No.1 had received 21 compensation from the KIADB in respect of the family land acquired by KIADB.
17. Learned senior counsel for the appellants contended that fraud vitiates the transaction and limitation does not apply. In the instant case, it is not only the question of limitation, but it is a question of title to the properties. Though mutation entry would not confer any title to a person over a property, if it continues for a very long period as stated above, normally the Revenue Authorities shall not interfere with the same and to relegate the parties to Civil Court. Hence, the decision relied upon by the learned senior counsel for appellants in the case of VIJAYA BANK EMPLOYEES HOUSING CO-OPERATIVE SOCIETY LTD., VS. ASSISTANT COMMISSIONER, BANGALORE SOUTH SUB-DIVISION, BANGALORE 22 AND ANOTHER1 and A.V.PAPAYYA SASTRY AND OTHERS VS. GOVT. OF A.P. AND OTHERS2 would have no application to the facts of the present case.
18. The contention that Deputy Commissioner has no jurisdiction to entertain the revision under Section 136(3) of KLR Act is liable to be rejected at the threshold, in view of the decision of the Full Bench of this Court in the case of SRI.ASHOK VS. SHRI PANDURANG AND OTHERS3.
19. For the reasons recorded above, we are of the considered view that there is no merit in any of the contentions raised by the appellants and it is open for the appellants to approach the Civil Court to 1 ILR 2007 KAR 2167 2 (2007) 4 SCC 221 3 ILR 2010 KAR 4571 23 establish their right, title and interest over the properties in question.
20. With the above, writ appeal stands disposed of.
Sd/-
(S.G.PANDIT) JUDGE Sd/-
(RAMACHANDRA D HUDDAR) JUDGE NC CT:bms