IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF MARCH 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.30730/2014 (LB- RES) Between:
H. Gopal, Major, S/o Late Muniswamappa, Physiotherapist, Rep. by his wife and GPA Holder Smt. Jayalakshmi, Aged about 64 years, R/at Thereu Beedhi, Melinapete, Hosakote Town, Bangalore – 562 114. … Petitioner (By Sri M.V. Chandra Shekara Reddy, Advocate) And:
1. City Municipal Council, Hosakote, Bangalore Rural District – 562 114, Rep. by its Commissioner.
2. Smt. Gowramma, Aged about 60 years, W/o A. Narayanaswamy, D/o Nasegere Krishnappa.
3. N. Manjunath, Aged about 38 years, S/o A. Narayanaswamy, 4. A. Narayanaswamy, Aged about 65 years, S/o Muniyappa @ D. Abbayappa, R2 to R4 are residing at Theru Beedhi, Meline Pete, Hosakote Town and Taluk, Bangalore Rural District – 562 114.
5. P. Shankar, Major, S/o Late Papanna, R/at No.911, Nalluru Halli Village, White Field Post, Bangalore - 560 006. … Respondents (By Sri P.N. Nanja Reddy, Advocate for R-1; Sri K.G. Sadashivaiah, Advocate for R-5;
R-2 to R-4 are served) ***** This Writ Petition is filed under Articles 226 & 227 of Constitution of India, praying to quash the Annexure-A i.e. endorsement dated 21.05.2014 issued by the respondent No.1 in respect of the property in question by terming the same as illegal and etc.
This Writ Petition coming on for final hearing this day, the Court made the following:
ORDER The petitioner has filed the present writ petition being aggrieved by the endorsement at Annexure-A dated 21.05.2014 whereby, the request of the petitioner for entering his name in the revenue records with respect to the property bearing No. 2599/2182/1923/1496 has come to be refused stating that there is a sale deed executed in favour of respondent No.5 and hence, the question of considering the claim of the petitioner does not arise.
2. The petitioner claims that he has derived rights with respect to the property in question under the registered sale deed dated 12.10.1979. It is also stated that the khata had also been entered into the name of the petitioner. The petitioner states that he filed a petition against the respondent No.4 in H.R.C. No.2/1994 before the Court of Civil Judge (Jr.Dn.) and J.M.F.C., Hoskote and upon contest, the said petition came to be allowed and subsequently through execution proceedings, possession has been recovered.
3. It is to be noted that the respondent No.4 is the vendor, who executed the sale deed in favour of petitioner on 12.10.1979. It is stated that the respondent No.4 in order to deprive legitimate rights of the petitioner had set up Muniyellamma to execute a gift deed dated 21.07.1983 in favour of respondent Nos.2 and 3, who are the wife and son of respondent No.4. On the basis of the gift deed executed in favour of respondent Nos.2 and 3, it is stated that the khata came to be entered into the name of respondent Nos.2 and 3. The suit in O.S.No.152/1992 seeking the relief of declaration and consequential reliefs came to be filed by respondent Nos.2 and 3 arraying the petitioner as defendant No.1 and respondent No.4 as defendant No.2. The said suit came to be dismissed and was taken up in appeal in R.A.No.55/2002, which again came to be dismissed and aggrieved by the order in Regular Appeal, R.S.A.No.1733/2006 came to be filed, which was dismissed on 04.10.2012. Against the said judgment, a Special Leave to Appeal (Civil) C.C.No.4300/2013 came to be filed before the Apex Court. The said petition also came to be dismissed on 01.04.2013. Consequently, the title as claimed by respondent Nos.2 and 3 stood extinguished.
4. Subsequent to the disposal of Special Leave to Appeal (Civil) C.C.No.4300/2013, the petitioner has approached the respondent No.1 and has sought for entering and effecting khata into his name. In the meanwhile, it appears that respondent Nos.2 and 3 have executed a sale deed on 01.04.2013 in favour of respondent No.5. When the petitioner’s application came to be considered by respondent No.1, the impugned endorsement has come to be issued stating that the application of the petitioner cannot be considered in light of the sale deed executed in favour of respondent No.5 on 01.04.2013.
5. It is clear from the records produced and the judgments and orders in various legal proceedings that respondent Nos.2 and 3 have lost their title and the said position having attained finality by virtue of dismissal of Special Leave to Appeal (Civil) C.C.No.4300/2013, the question of executing the sale deed in favour of respondent No.5 on 01.04.2013 is clearly an act to subvert legal process and to defeat the rights of the petitioner.
6. Though normally the Authority is to act on the basis of registered instruments while effecting khata, however, noticing that the sale deed dated 01.04.2013 does not have any legal sanctity by virtue of respondent Nos.2 and 3 having suffered an adverse order in the suit for declaration filed by them in O.S.No.152/1992, which has attained finality by dismissal of Special Leave to Appeal (Civil) C.C.No.4300/2013, the action of respondent No.1 declining to entertain the request of the petitioner by referring to the sale deed dated 01.04.2013 is not legal. As the sale deed executed by respondent Nos.2 and 3 in favour of respondent No.5 did not convey any title, the said document cannot be taken cognizance of.
7. Accordingly, the respondent No.1 is directed to consider the application of the petitioner for effecting khata into his name, keeping in mind the observations made above as regards the various orders suffered by the respondent Nos.2 and 3. The said consideration is to be made by the respondent No.1 within a period not later than two months from today.
8. Though respondent Nos.2 to 4 have been served, they have remained unrepresented. Taking note of the above said fact and taking note of the peculiar facts and circumstances of the case and that the petitioner has been made to run from pillar to post and has constrained the petitioner to approach this Court. Such action cannot be left unaddressed by consequences.
9. The action of respondent Nos.2 and 3 in executing a sale deed in favour of respondent No.5 despite having lost title, having taken up the matter till the Apex Court smacks of malice. Efforts to make use of the registered instruments clothing them with legality and creating hurdles in the path of the legitimate right holders is an abuse of the institutional set up.
10. The respondent Nos.2 and 3 have successfully prevented the petitioner’s genuine claim to be considered by execution of sale deed in favour of respondent No.5 on 01.04.2013 and delayed consideration of petitioner’s claim successfully till date. It would be appropriate to discourage such actions by imposing costs of `1,00,000/- (rupees one lakh only) on respondent Nos.2 and 3 payable to the petitioner within a period of two months from today. If the costs imposed on respondent Nos.2 and 3 is not paid within a period of two months from today, Registry is directed to issue a Certificate in favour of the petitioner to enable the petitioner to initiate proceedings for recovering the said amount as arrears of land revenue.
11. The learned counsel appearing for the respondent Nos.5 states that liberty may be reserved to work out his remedy as against respondent Nos.2 and 3 in light of transfer deeds executed despite respondent Nos.2 and 3 not having title.
12. Needless to state that such action as may be deemed necessary is open to be proceeded with as against respondent Nos.2 and 3 by respondent No.5.
This petition is accordingly disposed of.
VGR Sd/- JUDGE