IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 23RD DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL No.1385 OF 2018 (KLR-RR/SUR) BETWEEN:
SMT. D.K. VINODA KUMARI WIFE OF LATE K.SHANTHARAJU AGED 61 YEARS, RESIDING AT "S S K NURSERY" 12TH MAIN, 17TH CROSS J.P.NAGAR, 5TH STAGE BENGALURU - 560 078. ...APPELLANT (BY SRI.G.A. MITHUN, ADVOCATE) AND 1. THE STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY REVENUE DEPARTMENT VIKASA SOUDHA AMBEDKAR VEEDHI BENGALURU - 560 001.
2. THE DEPUTY COMMISSIONER BENGALURU URBAN DISTRICT BENGALURU - 560 009.
3. ASSISTANT COMMISSIONER BENGALURU SOUTH SUB-DIVISION BENGALURU - 560 009.
4. THE SPECIAL TAHSILDAR BENGALURU SOUTH TALUK BENGALURU - 560 009.
5. THE REVENUE INSPECTOR SARAKKI CIRCLE UTTARAHALLI HOBLI BENGALURU SOUTH TALUK BENGALURU - 560 009.
SMT. AKKAYAMMA WIFE OF KRISHNAPPA AGED ABOUT 65 YEARS DAUGHTER OF LAKSHMAMMA (SINCE DEAD BY LR'S RESPONDENTS-6 TO 8 VIDE COURT ORDER DATED 12/10/2017) 7. K. VENKATESH SON OF KRISHNAPPA MAJOR.
8. K. NAGARAJ SON OF KRISHNAPPA MAJOR.
9. K. SHANKUNTALA DAUGHTER OF KRISHNAPPA MAJOR.
RESPONDENTS 6 TO 9 ARE RESIDING AT RAGHAVANA PALYA UTTARAHALLI HOBLI BENGALURU SOUTH TALUK - 560 062. ...RESPONDENTS (BY SRI. S.S. MAHENDRA, AGA FOR RESPONDENTS 1 TO 5 SRI. K. SURESH DESAI, ADVOCATE FOR CAVEATOR RESPONDENT Nos.6 TO 8) THIS APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 16/03/2018 PASSED BY THIS HON'BLE COURT IN WP NO.32154 OF 2015 [KLR-RR/SUR] BY ALLOWING THIS WRIT APPEAL.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the order dated 16.03.2018 passed by the learned Single Jud1ge in W.P. No.32154 of 2015 by which the petition was dismissed, the writ petitioner is in appeal.
2. The petitioner filed writ petition under Articles 226 and 227 of the Constitution of India praying to quash the order dated 23.03.2015 passed by the 2nd respondent – the Deputy Commissioner in R.P.No.166 of 2013-2014; order dated 04.03.2011 passed by the 3rd respondent – the Assistant Commissioner in R.A.(S) No.153/2009-2010 and Mutation Register in M.R.No.6/2010-2011 dated 04.03.2011 issued by the 5th respondent – the Revenue Inspector, Bangalore. The petitioner claims that her husband purchased 2 acres 25 guntas of land in Sy.No.39/1 situated at Raghuvana Palya Uttarahalli Hobli, Bangalore South Taluk from one Thimmaiah under registered sale deed dated 28.11.1989. Thereafter as per M.R. No.3/1989-90, the name of the petitioner’s husband – K. Shantharaju was entered. Against the said entry in MR.No.3/1989-90, respondents 6 to 9 filed appeal before the 3rd respondent – the Assistant Commissioner under Section 136(2) of the Karnataka Land Revenue Act, 1964 (for short ‘the Act’) on the ground that the mother of respondent No.6-Lakshmamma had purchased the land in Sy.No.39/1 to an extent of 1 acre 12 guntas under registered sale deed dated 10.10.1960. The Assistant Commissioner by order dated 04.03.2011 allowed the appeal and set aside the mutation entry made in favour of the petitioner’s husband to an extent of 1 acre 12 guntas and further directed that since Lakshmamma is deceased, the inheritance katha of the said extent of land shall be made in the names of the respondents 6 to 9. The petitioner states that having come to know of the order passed by the 3rd respondent – the Assistant Commissioner, the petitioner filed revision before the Deputy Commissioner under Section 136(3) of the Act. The Deputy Commissioner by his order dated 23.03.2015 confirmed the order passed by the 3rd respondent – the Assistant Commissioner and dismissed the revision of the petitioner. Aggrieved by the orders of both the 2nd and 3rd respondents, the petitioner filed the instant writ petition. The learned Single Judge by order under appeal dismissed the writ petition holding that in the facts and circumstances of the case the 2nd respondent – the Deputy Commissioner was justified in confirming the order of the Assistant Commissioner, hence the petitioner is in appeal.
3. Heard the learned counsel for the appellant and learned counsel for the respondents. Perused the appeal papers.
4. Learned counsel for the appellant would submit that the learned Single Judge committed an error in dismissing the writ petition without appreciating the grounds raised by the appellant. He further contends that the sale deed dated 10.10.1960 is not a valid sale deed, that the re- grant to Thimmaiah was somewhere in the year 1964. The reasoning of the learned Single Judge is opposed to the material on record. The learned Single Judge could not have relied upon the sale deed dated 10.10.1960 to dismiss the writ petition. Lastly learned counsel contended that there was no notice to the petitioner before the 3rd respondent – Assistant Commissioner, hence, prays for allowing the appeal.
5. Per contra, learned counsel for the caveator – respondent Nos.6 to 8 submits that the learned Single Judge rightly dismissed the writ petition confirming the order passed by the 3rd respondent – the Assistant Commissioner. It is contended that Thimmaiah having sold 1 acre 12 guntas in Sy.No.39/1 under registered sale deed 10.10.1960 to Lakshmamma - mother of respondent No.6, could not have sold the entire extent of 2 acres 35 guntas in Sy.No.39/1 to the husband of the petitioner, thus prays for dismissal of the appeal.
6. Having heard the learned counsels for the parties and on going through the appeal papers, we are of the view, that there is no perversity nor erroneousness to interfere with the order of the learned Single Judge.
7. It is an admitted fact that one Thimmaiah had sold the land measuring 1 acre 12 guntas in Sy.No.39/1 of Raghavanapalya Village, Uttarahalli Hobli, Bangalore South Taluk, under registered sale deed dated 10.10.1960 to Lakshmamma - the mother of respondent No.6. Subsequently Thimmaiah sold the entire extent of 2 acres 35 guntas of land in Sy.No.39/1 in favour of Shantharaju, the husband of the petitioner under sale deed dated 28.11.1989. By virtue of the said sale deed, the name of the petitioner’s husband was entered in the revenue records as per M.R.No.3/89-90. The said entry was challenged by respondents 6 to 9 before the Assistant Commissioner. The Assistant Commissioner on examination of the records set aside the mutation entry in favour of the petitioner’s husband. The contention that the petitioner had no notice before the 3rd respondent – the Assistant Commissioner, cannot be accepted since the Assistant Commissioner in the course of his order observed that the petitioner was neither present nor represented, and the order sheet produced by the petitioner would indicate the issuance of notice to the respondent. The Deputy Commissioner on revision filed by the petitioner dismissed the revision confirming the order of the 3rd respondent – the Assistant Commissioner. The 2nd respondent – the Deputy Commissioner in the course of his order had observed that the registered sale deed dated 10.10.1960 is not cancelled and the contention of the petitioner that the sale deed is concocted cannot be accepted, as the said dispute would be of civil nature. The reasoning of both the 2nd and 3rd respondents are well founded. When Thimmaiah had sold 1 acre 12 guntas in Sy.No.39/1, subsequently he could not have sold the entire extent, to the husband of the petitioner under sale deed dated 28.11.1989. Thimmaiah had no right to sell 1 acre 12 guntas of land which was already sold in favour of the mother of the 6th respondent. The learned Single Judge on going through the material on record including the registered sale deed dated 10.10.1960 which was produced as Annexure-R4, had rightly come to the conclusion that Thimmaiah had no right, title and interest to alienate the entire extent of land. In support of the contention that the land was re-granted in 1964 to Thimmaiah, no material is produced. In the absence of any supporting material the said contention is liable to be rejected. No ground is made out to interfere with the order of the learned Single Judge. Accordingly, writ appeal is dismissed.
Sd/- Sd/-
JUDGE JUDGE NG* CT:KHV