IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF APRIL 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION No.32677/2017(KLR-RES) BETWEEN C BHAVANI @ HAMSA AGED ABOUT 40 YEARS, W/O SRI K M NARENDRA KUMAR D/O LATE CHINNAPPA NO.177, LAKSHMI NIVAS 8TH MAIN, C.Q.A.L. LAYOUT SAHAKARNAGAR BANGALORE-560092 ... PETITIONER (BY SRI G PAPI REDDY, ADVOCATE) AND 1. THE STATE OF KARNATAKA REVENUE DEPARTMENT, M.S.BUILDING, Dr.AMBEDKAR VEEDHI BENGALURU-560 001 BY ITS PRINCIPAL SECRETARY 2. THE ASSISTANT DIRECTOR OF LAND RECORDS BENGALURU NORTH (ADDITIONAL) TALUK YELAHANKA BENGALURU-560 064 3. THE JOINT DIRECTOR OF LAND RECORDS OFFICE OF THE DEPUTY COMMISSIONER 4TH FLOOR, KANDAYA BHAVAN BENGALURU URBAN DISTRICT BENGALURU-560 009 ... RESPONDENTS (BY SRI T.S.MAHANTESH, ADDITIONAL GOVERNMENT ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE CONCERNED RECORDS AND QUASH THE IMPUGNED DIRECTION DATED 29.06.2017 ISSUED BY 3RD RESPONDENT TO THE 2ND RESPONDENT VIDE ANNEXURE-Z3 TO SURVEY THE SCHEDULE PROPERTY AND FIX ITS BOUNDARIES AND ALL CONSEQUENTIAL ACTIONS IN RESPECT OF THE SCHEDULE PROPERTY AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner has sought for quashing the communication dated 29.06.2017 (Annexure ‘Z3’ to the petition) bearing No.Bhoo.jam.ni/taam(3)P.R.161/2017-18 issued by respondent No.3 – Joint Director of Land Records, office of the Deputy Commissioner, Bengaluru Urban District, to respondent No.2 – Assistant Director of Land Records, Bengaluru North (Additional) Taluk, Bengaluru. By the said communication, respondent No.2 has been directed to get the petition schedule land i.e., land measuring to an extent of 01 Acre in Sy. No.83/2 presently khata No.2986/83/2 situate at Byatarayanapura, Vidyaranyapura sub-division, within the limits of Bruhat Bengaluru Mahanagara Palike, surveyed and fix its boundaries. The second respondent has been further directed to identify the CDP road passing through the land in Sy. No.83/2 and water canal (Kaluve) said to be existing between lands in Sy. Nos.82 and 83/2 as shown in the village map and to ascertain as to whether there is any encroachment on the said CDP road (shown to be 09 Meters wide in the village map) and to identify buffer zone on either side of the said kaluve.
2. This writ petition is by the owner of land measuring to an extent of 01 Acre in Sy. No.83/2 of Byatarayanapura, which is presently bearing khata No.2986/83/2 and situate at Vidyaranyapura sub-division, within the limits of Bruhat Bengaluru Mahanagara Palike (BBMP). It is stated that the petitioner has acquired the said property under registered partition deed dated 24.01.2002, copy of which is at Annexure ‘A’ to the petition. Thereafter, she got her name entered into the revenue records vide M.R. No.12/2001-02. Subsequently, she made representation to the revenue authority to conduct survey in respect of the said land and assign separate hissa number by fixing its boundaries. Accordingly, hissa phodi of the said land was conducted in the year 2004 and the land allotted to her share was given separate number as 83/2. According to the petitioner, the remaining land held by her brother, Dr. C. Ramesh and others was assigned Sy. No.83/1. Based on survey records, her name was mutated in respect of 01 Acre of land in Sy. No.83/2 vide M.R. No.20/2003-04. Thereafter, she got the land converted from agricultural purpose to non- agricultural i.e., residential purpose vide official memorandum dated 17.01.2005 (Annexure ‘G’ to the petition) issued by the Special Deputy Commissioner, Bengaluru District. The petitioner would submit that a residential apartment building is also constructed thereon after obtaining permission from the concerned authority.
3. It is the further case of the petitioner that after a lapse of seven years from the year 2004 when the hissa and phodi was conducted in respect of the land in Sy. No.83, her brother, Dr. C. Ramesh, preferred appeal before the competent authority challenging the said phodi and durasthi conducted in the year 2004. The petitioner has referred to various proceedings including appeal No.604/2014 filed by her brother, Dr. C. Ramesh, and his wife, Dr. Nonitha, before the Karnataka Appellate Tribunal, which was subsequently withdrawn by them. Subsequently, Dr. C. Ramesh and his wife preferred W.P. Nos.15395-15398/2015 (KLR-RES) before this Court. The said writ petitions were dismissed by coordinate bench of this Court by order dated 23.01.2017 and order dated 23.01.2017 passed in W.P. No.15395/2015 is subject matter of challenge in writ appeals in W.A. Nos.1653- 1654/2017 preferred by Dr. C. Ramesh before this Court and W.A. Nos.1656-1657/2017 and 4044-4045 of 2017 preferred by Smt. Srimathi before this Court. The said writ appeals are pending consideration before this Court.
4. When the matter stood thus, there arose a dispute between the petitioner and her brother, Dr. C. Ramesh with reference to the common road that existed between the respective properties allotted to them under registered partition deed dated 24.01.2002. The allegation made against the petitioner herein is that she has blocked the nakashe road which was existing in Sy. No.83. In that behalf, petitioner’s brother, Dr. C. Ramesh, and his wife, Dr. Nonitha, filed a suit in O.S. No.3596/2015 against the petitioner herein before the Court of XL Additional City Civil and Sessions Judge (CCH-41), Bengaluru. The said suit was filed for the relief of permanent injunction. In the said suit, plaintiffs filed an application in I.A. No.3 under Order XXXIX Rules 1 and 2 read with Section 151 of the Civil Procedure Code, 1908, for the relief of temporary injunction. The said application came to be dismissed by the trial Court by order dated 09.07.2015 (Annexure ‘S’ to the petition). Being aggrieved by the same, plaintiffs in the suit preferred M.F.A. No.5548/2015 before this Court. A coordinate Bench of this Court, by its judgment dated 08.10.2015 (Annexure ‘T’ to the petition), disposed of the said appeal with direction to both parties to leave 15 feet from the edge of their properties and proceed with the construction, if any undertaken by them. It was further observed by coordinate Bench of this Court that the said order was subject to result of the final adjudication of the dispute while clarifying that no opinion was expressed in the said order regarding existence of the disputed road and observations made therein shall not influence the final adjudication of the dispute. It is stated that the suit in O.S. No.3596/2015 has been dismissed as withdrawn by the trial Court by its judgment dated 31/01/2017.
5. Subsequently, one more suit in O.S. No.7377/2015 is filed by petitioner’s sister, Smt. Srimathi C., and Dr. B.P. Thimmappa against eight persons including the petitioner herein and Dr. C. Ramesh before the Court of XLIV Additional City Civil and Sessions Judge (CCH-45), Bengaluru, and the said suit is pending consideration. The present writ petition is filed by the petitioner against respondent Nos.1 to 3 for the aforesaid relief.
6. Heard the learned counsel for the petitioner, learned Additional Government Advocate for respondent Nos.1 to 3. Perused the material on record including the order sheet maintained in this petition which discloses that coordinate bench of this Court by its order dated 21.07.2017 had granted interim stay as prayed for.
7. When this writ petition is taken up for consideration, learned Additional Government Advocate appearing for respondents would submit that the aforesaid dispute between the petitioner and her siblings, i.e., sister, Smt. Srimathi C. and brother, Dr. C. Ramesh, is the subject matter of the suit in O.S. No.7377/2015, which is pending consideration before the Court of XLIV Additional City Civil and Sessions Judge, Bengaluru, and same cannot be resolved in this writ petition filed by the petitioner challenging the intra- departmental communication between respondent No.2 and respondent No.3. What is required to be considered is whether there is existence of road or otherwise in Sy. No.83/2 in which the petitioner is owning an extent of 01 Acre of land. The same will have to be demonstrated in the said suit in O.S. No.7377/2015 in which the petitioner as well as her brother, Dr. C. Ramesh, are defendants by seeking for framing of appropriate issues pursuant to the defence raised by her and lead evidence in that behalf. Therefore, the question of interfering with the intra-departmental communication dated 29.06.2017 vide Annexure ‘Z3’ to the petition between respondent No.3 and respondent No.2 does not arise in this writ petition.
8. Accordingly, this Writ Petition is disposed of reserving liberty to the petitioner to exhaust the remedy available to her in accordance with law before the competent Civil Court i.e., Court of XLIV Additional City Civil and Sessions Judge, Bengaluru, where the suit in O.S. No.7377/2015 filed by petitioner’s sister, Smt. Srimathi C., and Dr. B.P. Thimmappa against eight defendants including the petitioner and her brother, Dr. C. Ramesh, is pending consideration.
9. Learned Additional Government Advocate is directed to file memo of appearance within two weeks from today.
Sd/- JUDGE sma