R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MAY, 2019 BEFORE THE HON’BLE MR.JUSTICE G.NARENDAR WRIT PETITION NO.101981/2013 (GM CPC) C/W WRIT PETITION NO.101982/2013 (GM CPC) AND WRIT PETITION NO.101983/2013 (GM CPC) IN W.P.NO.101981/2013 BETWEEN SMT. JAYA ODUGOUDAR, W/O RAJENDRA ODUGOUDAR, D/O LATE RAMARAO NADAGOUDA, AGED ABOUT 40 YEARS, OCC: HOUSEHOLD, R/O POST JAWALGERA, TQ. SINDHANUR, DIST. RAICHUR (BY SRI BASAVARAJ PATIL, ADV.) AND 1. THE DEPUTY COMMISSIONER, RAICHUR DISTRICT, RAICHUR-584101.
2. BURGAPALLI TIMMARAJU, S/O SRIRAMALU, AGED ABOUT 80 YEARS, OCC: AGRICULTURE, ... PETITIONER 3. GODAPATI SATYANARAYANA, S/O LATE SUBBANNA, AGED ABOUT 90 YEARS, OCC: AGRICULTURE, BOTH ARE R/O UPPAL CAMP, TQ. SINDHANUR, DIST: RAICHUR-584110.
(BY SRI G.P.SHAHAPUR, HCGP FOR R1, SRI ASHOK S.KINAGI, ADV. FOR R2 & R3.) ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT ORDER OF DIRECTION, QUASHING THE ORDER DATED 10.04.2013 IN MISC. NO. 24/2013 PASSED BY THE PRINCIPAL CIVIL JUDGE AND J.M.F.C. AT SINDHANUR VIDE ANNEXURE-C ETC.
IN W.P.NO.101982/2013 BETWEEN SRI VENKATRAO NADAGOUDA, S/O LATE RAMARAO NADAGOUDA, AGE: ABOUT 50 YEARS, OCC: AGRICULTURE, R/O. POST JAWALGERA, TQ. SINDHANUR, DIST. RAICHUR.
... PETITIONER (BY SRI BASAVARAJ PATIL, ADV.) AND 1. THE DEPUTY COMMISSIONER, RAICHUR DISTRICT, RAICHUR-584101.
2. SMT. LAKAM SANI ACHAMMA, W/O LATE PEDDA VENKAT RAO, AGE: ABOUT 80 YEARS, OCC: HOUSE WIFE, R/O BUDIHAL CAMP, NOW AT CHINCHERI CAMP, WITHIN LIMITS OF UPPAL CAMP, TQ. SINDHANUR, DIST. RAICHUR-584110.
(BY SRI G.P.SHAHAPUR, HCGP FOR R1, SRI ASHOK S.KINAGI, ADV. FOR R2.) ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT ORDER OF DIRECTION, QUASHING THE ORDER DATED 10.04.2013 IN MISC. NO. 23/2013 PASSED BY THE PRINCIPAL CIVIL JUDGE AND J.M.F.C. AT SINDHANUR VIDE ANNEXURE-C ETC.
IN W.P.NO.101983/2013 BETWEEN SRI VENKATRAO NADAGOUDA S/O LATE RAMARAO NADAGOUDA, AGE: ABOUT 50 YEARS, OCC: AGRICULTURE, R/O. POST JAWALGERA, TQ. SINDHANUR, DIST.: RAICHUR.
(BY SRI BASAVARAJ PATIL, ADV.) AND 1. THE DEPUTY COMMISSIONER RAICHUR DISTRICT, RAICHUR-584101.
... PETITIONER 2. SMT. KODURI DURGAVATHI W/O SUBBA RAO, AGE: ABOUT 65 YEARS, OCC: HOUSE WIFE, R/O UPPAL CAMP, TQ.: SINDHANUR, DIST.: RAICHUR-584110.
(BY SRI G.P.SHAHAPUR, HCGP FOR R1, SRI ASHOK S.KINAGI, ADV. FOR R2.) ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT ORDER OF DIRECTION, QUASHING THE ORDER DATED 10.04.2013 IN MISC. NO. 22/2013 PASSED BY THE PRINCIPAL CIVIL JUDGE AND J.M.F.C. AT SINDHANUR VIDE ANNEXURE-C ETC.
THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS, THIS DAY THE COURT PRONOUNCED THE FOLLOWING:
RESERVED ON : 14.11.2018 PRONOUNCED ON : 29.05.2019 COMMON ORDER Heard the learned Senior Counsel Sri. Prabhuling Navadgi and the learned counsel Sri. M. Shiva Prasad on behalf of the petitioners and the learned Senior Counsel Sri. Sreevatsa on behalf of the respondents.
2. As a common question of law and common facts are involved, all the three petitions are taken up together for disposal by this common order.
3. Brief facts are as follows:-
The facts pleaded on behalf of the petitioners is common in view of the fact that all the petitioners are the children of one late Ramarao Nadagowda (daughter and sons). The petitioner in the first writ petition is the daughter and the petitioners in connected writ petitions are the sons of the said late Ramarao Nadagowda. That the said late Ramarao Nadagowda and his brother Rudrabhupal Nadagowda partitioned the family property including the lands which are the subject matter of the proceedings before the trial court. That the petitioners inherited the landed properties in Survey No.32, 33 and 34 respectively measuring 26 Acres 31 Guntas, 30 Acres 02 Guntas and 13 Acres 37 Guntas respectively. That all the lands are situated in Uppal Village of Sindhanur Taluk, Raichur District and that the lands were the subject matter of the suits in O.S. No.154/1981, O.S. No.140/1981 and O.S. No.149/1981.
4. It is the case of the petitioners that the respective respondents had preferred the aforesaid civil suits for the relief of declaration. That the suits preferred by the respondents came to be decreed on the same day itself in view of the written statement said to have been filed admitting the claim of the respondents/plaintiffs. That though a judgment decreeing the suits has been passed more than three decades, the said decrees have not been acted upon by the respondents and that despite the decrees the father of the petitioners continued in possession and enjoyment of the suit schedule properties and that the revenue entries also came to be continued in the name of the father of the petitioners and after his demise the petitioners inherited their respective shares and consequent to the demise of the father and the inheritance, the revenue entries came to be mutated in favour of the petitioners and that name of the petitioners was continued till passing of the impugned order. Being aggrieved by the order passed by the court of the Principal Civil Judge and JMFC, Sindhanur in Misc. No.24/2013, Misc. No.23/2013 and Misc. No.22/2013 dated 10.04.2013 the petitioners are before this court.
5. It is contended by the learned Senior Counsel appearing on behalf of the petitioners, that the proceedings are primarily vitiated by unexplained and inordinate delay. That the proceedings without notice to the parties is also stands vitiated on account of same being contrary to the principles of natural justice and Audi Alteram Partem. He would further contend that the decree itself is an in- executable decree being barred by the law of limitation. He would contend that Article 136 of the Limitation Act permits filing of an execution petition within 12 years. That in the instant case more than 32 years have lapsed since the alleged judgment and decree are said to have been passed. He would further contend that the applications allegedly preferred under Section 132 of The Karnataka Land Revenue Act, 1964 (for short ‘the Act’) are not at all maintainable and that the applications are contrary to the provisions of sub-section (4) of Section 132 of the Act. The learned Senior Counsel would submit that the decree is a sham decree and that the trial court could not have allowed the application in the absence of any finding in the judgment holding that the existing revenue entries are required to be corrected. He would contend that in the absence of such a finding the court below erred in exercising its powers under Section 132 (3) of the Act. He would also contend that that there is no material to demonstrate that a certified copy of the revenue entry had been produced to enable the court to communicate to the Deputy Commissioner any error appearing in such entry and consequently directing any alternation.
6. He would further contend that in the absence of such a finding while disposing off the suit, the trial court ought not to have exercised jurisdiction under Section 132(3) of the Act. He would invite the attention of the court to provisions of sub-section (4) of Section 132 of the Act, more particular to sub-section (4)(b) of Section 132 of the Act to contend that an application as referred under sub-section (4) is to be read as an application for the execution of a decree or order in a suit and elaborating further, he would contend that impugned orders are on Misc. applications and not on application under Order XXI Rule 10 of the Civil Procedure Code for the execution of the decree. That being so, the trial court had no jurisdiction to entertain the Misc. applications.
7. Learned Senior Counsel would further contend that the court having signed the judgment and decree, the court was rendered functus officio and could not have entertained the application. He would contend that pursuant to the orders of the court dated 10.04.2013 which has been communicated to the Deputy Commissioner, the Deputy Commissioner in turn by proceedings dated 14.05.2013 has forwarded the file to the jurisdictional Tahsildar to effect the mutation. He would contend that though the impugned application is not an application under Order XXI of the Civil Procedure Code (for short ‘CPC’) praying for execution of the decree. Even assuming the same such an application for execution of the decree for the argument sake it was imperative upon the court to notify the aggrieved parties. Trial court having failed to notify the parties, the impugned order is opposed to the principles of natural justice. The learned Senior Counsel would place reliance on the ruling rendered by this court in W.P. No.40350/2008 dated 28.01.2013 and this court while disposing off the writ petition has been pleased to observe in paragraph 4 as under:-
“4. As it is clear from the compromise decree passed there is no term in the said compromise which holds that mutation entry already made is incorrect and it requires to be corrected in terms of the order passed by the Court in the RSA. Therefore, the question for consideration is in the absence of any such direction in the decree in the RSA whether the application filed under section 132(3) of the Land Revenue Act for a direction to the Deputy Commissioner to mutate the name in the Record of Rights in terms of the decree was maintainable. That question has not been gone into by the trial court. If the said application is maintainable, then looking into the earlier proceedings and the terms of compromise and the decree passed in RSA No.791/1963 the question of issuing any direction to the Deputy Commissioner would arise. In that view of the matter, it would be appropriate not to go in to the merits of the case as discussed by the trial judge. It would be proper to set aside the impugned order passed on merits, keeping all contentions open for the parties to agitate only in the event of the application filed under section 132(3) is held to be maintainable. Hence, I pass the following:”
This court has also further observed in the operative portion of the order as thus:-
“All the persons who are parties in this Writ petition be permitted to participate in the proceedings before the trial court. In other words subsequent purchaser of the properties have right to be heard at the time of consideration of maintainability of the application under Section 132(3) of the Karnataka Land Revenue Act.”
8. The learned Senior Counsel would also rely on a judgment reported in (2007) 2 SCC 322 which is apparently on the point of condonation of inordinate delay. The Hon’ble Apex Court has disapproved of condoning the delay on sympathetic grounds without reference to the mandatory provisions which requires satisfactory explanation of the delay. In the opinion of the court the said ruling is inapplicable to the facts of the case. He has also relied on the ruling of Co-ordinate Bench of this court rendered while disposing off W.P. No.62345/2011. The said ruling is also inapplicable to the facts of this case. Ruling reported in (2010)8 SCC 685 is yet again on the point of condonation of delay without assigning reasons. The learned Senior Counsel for the petitioner would also place reliance on Section 61 of the Act to contend that the court could not have done indirectly that which it is prohibited from doing under Section 61 of the Act and on these grounds the learned Senior Counsel prays that the writ petitions be allowed and the impugned orders be set-aside.
9. Per contra, the learned Senior Counsel Sri.
Sreevatsa would vehemently contend that none of the grounds canvassed by the petitioners are sustainable and that the impugned order is merely a ministerial act and that being the admitted position, question of delay would not arise. He would contend that the judgment and decree have become final and the same have not been called in question and even today the said judgment and decree stands good and the same amounting to an acquisition of rights question of condoning of any delay in reporting of acquisition of rights is unsustainable and the same cannot be put against the petitioners. That the omission to intimate the concerned authorities is a failure on the part of the court and that the same is beyond the control of the plaintiff/respondents herein. In this regard, the learned counsel would place reliance on the ruling of this court reported in 2013 (3) KCCR 2539, wherein this court while considering the scope of Section 128 and 129 of the Act was pleased to hold that no onus is on the person acquiring property, to report the same that the onus of reporting the acquisition of rights was on the registering authority (Sub-Registrar) and hence question of putting the delay against the acquiring party does not arise. Admittedly the alleged acquisition of rights is not under any registered sale deed and hence this court is of the opinion that the proposition of law as laid down by this court in the rulings stated supra is inapplicable in the facts of the case.
10. The learned Senior Counsel would place reliance on the ruling of this court reported in 1974(2) KLJ SN 254, to contend that “the function of sending the papers to the Deputy Commissioner for effecting partition is on the Court”. Admittedly, the said ruling was with reference to Order XX Rule 18 of the CPC.
11. Even assuming the same is a ministerial act, whether notice was required or not is required to be considered in the background of the extraordinary delay coupled with the fact that the impugned order is on an application by the party and is in the nature of a judicial order. In that view of the matter, this court is of the opinion that the instant ruling relied upon is of no avail to the petitioners. Learned Senior Counsel would contend the question of attributing delay would not arise as the provision of Section 132 of the Act does not envisage any limitation. The learned Senior Counsel would also place reliance on the ruling rendered by the Hon’ble Apex Court reported in (2003) 4 SCC 257. The learned Senior Counsel would invite the attention of the court to paragraph 14 of the said ruling which reads as under:-
“14. The judicial function entrusted to a Judge is inalienable and differs from an administrative or ministerial function which can be delegated or performance whereof may be secured through authorization.
“The judicial function consists in the interpretation of the law and its application by rule or discretion to the facts of particular cases. This involves the ascertainment of facts in dispute according to the law of evidence. The organs which the State sets up to exercise the judicial function are called courts of law or courts of justice. Administration consists of the operations, whatever their intrinsic nature may be, which are performed by administrators; and administrators are all State officials who are neither legislators nor judges.”
(See Constitutional and Administrative Law, Phillips and Jackson, 6th Edn., p. 13.) P. Ramanatha Aiyar’s Law Lexicon defines judicial function as the doing of something n the nature of or in the course of an action in court. (p. 1015) The distinction between “judicial” and “ministerial acts” is:
If a Judge dealing with a particular matter has to exercise his discretion in arriving at a decision, he is acting judicially; if on the other hand, he is merely required to do a particular act and is precluded from entering into the merits of the matter, he is said to be acting ministerially. (pp. 1013-14) Judicial function is exercised under legal authority to decide on the disputes, after hearing the parties, maybe after making an enquiry, and the decision affects the rights and obligations of the parties. There is a duty to act judicially. The Judge may construe the law and apply it to a particular state of facts presented for the determination of the controversy. A ministerial act, on the other hand, may be defined to be one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to, or the exercise of, his own judgment upon the propriety of the act done. (Law Lexicon, ibid., p. 1234). In ministerial duty nothing is left to discretion; it is a simple, definite duty. Presentation of election petition to the High Court within the meaning of Section 81 of the Act without anything more would mean delivery of election petition to the High Court through one of its officers competent or authorized to receive the same on behalf of and for the High Court. Receiving an election petition presented under Section 81 of the Act is certainly not a judicial function which needs to be performed by a Judge alone. There is no discretion in receiving an election petition. An election petition, when presented, has to be received. It is a simple, definite duty. The date and time of presentation and the name of the person who presented (with such other particulars as may be prescribed) are to be endorsed truly and mechanically on the document presented. It is a ministerial function simpliciter. It can safely be left to be performed by one of the administrative or ministerial staff of the High Court which is as much a part of the High Court. It may be delegated or be performed through someone authorized. The manner of authorization is not prescribed.”
Elaborating further, the learned Senior Counsel would contend that a bare reading of the application under Section 132 of the Act and more particularly under sub- Section (3), it is apparent that what is required of the court is a mere ministerial act and that is what that has been performed by the court below and hence the instant writ petitions are required to be rejected. Elaborating further would place reliance on the other ruling of the Hon’ble Apex Court reported in (2012) 13 SCC 192 and would invite the attention of the court to paragraph 30. The same is extracted herein for the sake of convenience which reads as under:-
“30. Fazl Ali, J. in his concurring opinion in Khushaldas case made the following observations as regards judicial and quasi-judicial orders: (AIR pp. 228-29, paras 16 &22) “16. Without going into the numerous cases cited before us, it may be safely laid down that an order will be a judicial or quasi-judicial order if it is made by a court or a judge, or by some person or authority who is legally bound or authorised to act as if he was a court or a Judge. To act as a court or a Judge necessarily involves giving an opportunity to the party who is to be affected by an order to make a representation, making some kind of inquiry, hearing and weighing evidence, if any, and considering all the facts and circumstances bearing on the merits of a controversy, before any decision affecting the rights of one or more parties is arrived at. The procedure to be followed may not be as elaborate as in a court of law and it may be very summary, but it must contain the essential elements of judicial procedure as indicated by me. … * * * 22. … The mere fact that an executive authority has to decide something does not make the decision judicial. It is the manner in which the decision has to be arrived at which makes the difference, and the real test is: Is there any duty to decide judicially?”
The detailed concurrent opinion of Das, J. in the same case, also agreed with the above test for determining whether a particular act is a judicial or an administrative one. Das, J., observed: (Khushaldas case, AIR p.257, para 163) “163. … The real test which distinguishes a quasi-judicial act from an administrative act is the third item in Atkin, L.J.’s definition, namely the duty to act judicially.”
12. He would also place reliance on the other ruling rendered by the Division Bench of this court in R.A. No.142/1957 wherein the court was dealing with the issue of an application preferred under Order XX Rule 18(1) of CPC filed for sending decree to the Collector for partitioning the property. After examining the relevant provisions, the Division Bench was pleased to hold that the same is not governed by any limitations and it was further pleased to hold that the orders made under Sub-rule (1) of rule 18 of Order XX CPC is not an appealable order while so holding was pleased to observe that the provisions of Sub-rule (1) of rule 18 of Order XX of CPC does not contemplate any application by the parties to the court praying to forward the papers to the Collector and that such an application has to be considered as a reminder to court to follow up its direction. And he would contend that in the light of the Division Benches observations that the same is only a ministerial action, the application has to be considered as a reminder. He would contend that the proposition applies in equal force to the application preferred by the respondents under Section 132 of the Act requesting the court to direct the Commissioner to transmit the copy of the decree to the Deputy Commissioner, Sindhanur. He would contend that the ruling of the Division Bench squarely applies to the facts of the instant case.
13. He would also place reliance on another ruling of the Bombay High Court reported in AIR 1939 Bombay 454. The said ruling is also under Order XX Rule 18 wherein the courts have held the question of application of law of limitation does not arise. In the considered opinion of this court the said rulings are inapplicable to the facts of the case in view of the fact that what is required to be considered in the instant petition is the maintainability of the application under The Karnataka Land Revenue Act, 1964. There can be no doubt that the ministerial act required of the Court under Order XX Rule 18 is provided by the separate provision under Section 54 of CPC unlike in the instant facts. A mere and perfunctory reading of the provisions would obviate any detailed analysis or a detailed interpretational exercise. Sub-section (4) of Section 132 clearly defines an application, as one being for execution or implementation of the decree. On the other hand, a perfunctory reading of Section 54 of CPC would suffice to demonstrate that what is visualized by the law-makers is a mere ministerial act. Hence, in the considered opinion of this Court the provisions of sub-section (3) read with sub- section (4) of Section 132 cannot be equated with the provisions of Section 54 of the CPC. The applicability of the provisions arise out of a wholly different set of facts. The invocation of Section 132(3) pre-supposes a judicial finding of a particular nature, with particular reference to the entries in the revenue records and with reference to the RoR/RTC that is placed on record by the plaintiff. Hence, the proposition of law as laid down while interpreting Section 54 are inapplicable to cases under Section 132(3) and hence, the rulings relied upon are inapplicable to the instant facts. Admittedly, the application is under the Karnataka Land Revenue Act, 1964, and there is no dispute with regard to the same and as held by this court in W.P.No.40350/2008. Further, the said rulings are in respect of transmitting the copy of the decree in a partition suit to the Collector for implementation of the decree in line with the findings rendered in the judgment. Though several rulings on the same line apart from those stated supra before the court on relied upon, all the rulings are under Order XX Rule 18 read with Section 54 of the CPC and relate to the factum of transmission of the decree by the court to the Collector. Accordingly, the learned Senior Counsel would pray for dismissal of the writ petitions.
14. This court has given its anxious consideration to the various contentions put-forth by the learned Senior Counsels and the other counsels and having adverted to the facts and the records and rulings, this court is of the opinion that the point that arises for consideration in the instant writ petition is: “whether the applications preferred under Section 132 of the Act are maintainable?”
15. This court, in view of the peculiar circumstances in which the suits came to be disposed off, deemed it necessary to summon the records. Accordingly, the file pertaining to the said suit has been obtained by the Registrar and placed before the court. The records in the Misc. applications registered as Misc.22/2013, 23/2013 and 24/2013 are placed. On perusal it is seen that apart from the application preferred by the respondent under Section 132 of the Act, the records contain the order sheet allowing the application and the letter dated 12.04.2013 addressed by the office of the Prl. Civil Judge & JMFC, Sindhanur addressed to the Deputy Commissioner. Neither the copy of the decree nor other documents were forthcoming. To state the least, on perusal of the letter dated 12.04.2013 which reads as under:-
“Therefore, you are hereby requested to effecting the mutation as per compromise decree passed in O.S. No.154/81 on the file of this court”
Yours faithfully, Sd/-
I/c Addl. Civil Judge and J.M.F.C., Sindhanur.”
One can conclude that it is in the nature of a direction.
Before proceeding further it is also required to examine the application itself preferred by the respondents. In the said application it is prayed as under:-
“HENCE IT IS PRAYED THAT The Hon’ble court be pleased to allow this petition by transmitting the copy of the decree in O.S. No.154/1981 on the file of this court to D.C. Raichur for necessary mutation and rectification of records concerning land Survey No.32 meg 26 acre 31 gunta of Uppal village, tq. Sindhanur, Petitioners”.
The said prayer is followed by the following order:-
“ORDER Office is herewith directed to send the decree passed in O.S. No.154/1981 to the Deputy Commissioner, Raichur for effecting the mutation as per the order.
Accordingly, this petition is closed.
Sd/- 10.04.2013”.
On a bare reading, the same appears to be passed by the judge in discharge of his judicial functions. The applications have been registered as Misc. applications and place before Presiding Officer who by the impugned orders has directed effecting mutation pursuant to the order. The office has accordingly communicated the same vide letter dated 12.04.2013. What is required to be looked at and of interest is that the applicant prays for a particular relief in the nature of a direction to the Deputy Commissioner to effect mutation in the revenue registers. The same has been accepted and granted by the court. There can be no denial of this fact. In this background it is necessary to examine the provisions of sub-section (3) and (4) of Section 132 of the Act, sub-section (3) pre-supposes the filing of a certified copy of the revenue entry and thereafter a finding to be recorded by the court that the entries in the revenue register are erroneous and thereafter an intimation to the Deputy Commissioner to correct the entries in tune with the findings recorded by the court while delivering the judgment and decree. Sub-section (4) states that an application means an application for execution which would necessarily be an application under Order XXI Rule 10 of Code of Civil Procedure. Admittedly, the said application is registered as Misc. case is not under the provisions of Order XXI of the Code of Civil Procedure. That being the case, this court is of the opinion that the application itself, more particularly in the present forum was not at all maintainable as there is no compliance with the provisions of sub-section (3) of Section 132 of the Act.
16. This court has also perused the records relating to the suit in O.S. No.154/1981. The records contain file A consisting of the order sheet and on perusal of the orders sheet it is seen that the suit is filed on 28.08.1981 and notice is directed to be issued to the defendants returnable by 05.10.1981. An advancement application is filed and hearing is advanced on 30.08.1981, application is allowed and the case is taken on Board. On the same day, written statement of the defendant is filed. The judgment records that in the written statement the defendants have admitted the suit claim and the parties are not at issue and has ordered that the suit is decreed and further directed to refund half of the court fee. This court has perused the plaint. The claim of the plaintiffs is that they had entered into an agreement of sale with the father of the petitioners and their uncle under the arrangement entered into in the month of April, 1961. It was agreed that the suit land would be sold for a certain consideration and out of that consideration a certain sum has been advanced as part payment and the balance would be payable at the time of execution of the registration of sale deed. That on perusal of paragraph 6 of the plaint it is averred that the defendants have been dodging and evading the receipt of the balance sale consideration and execution of the sale deed, upon which it is alleged that the defendant rescinded the contracts and from that date the possession of the plaintiffs has become adverse i.e. from 02.10.1965. That it is further averred in paragraph 9 that when the plaintiff were in the suit lands the defendants along with the henchmen and associates attempted to illegally trespass into the suit lands and attempted to dispossess the plaintiff from suit land and in paragraph 10 it is averred that the above facts constitutes a cause of action and that the cause of action arose on 09.08.1981 the date on which the defendants made an attempt to illegally dispossess the plaintiffs the respondents herein and are proceeded to pray for the following reliefs which reads as under:-
1. That the plaintiffs be declared as co-owners, having equal rights therein, and possessors of the suit land bearing Sy. No.32 measuring 26 acres 31 guntas, r/a of Rs. 40-71 Ps situated at Uppal village, taluka Sindhanoor.
2. That a consequential injunction be issued restraining the defendants, their men, servants, agents, executors, administrators etc and all men claiming through them from interfering in the peaceful possession of the plaintiffs over the suit land Sy.No. 32 measuring 26 acres 31 guntas of Uppal village, tq., Sindhanoor.”
17. The plaintiffs on the above pleadings have in a sense, sought for a declaration to be declared as co-owners and possessor of a suit land. They have sought for a decree on the basis of adverse possession. It is settled law that there cannot be a declaration of title on the basis of adverse possession as held by the Hon’ble Apex Court in the case of Gurdwara Sahib Vs. Gram Panchayat Village Sirthala and Another reported in (2014) SCC 669 wherein the Hon’ble Apex Court has been pleased to observe in paragraph 7 & 8 as under:-
“7. In the second appeal, the relief of ownership by adverse possession is again denied holding that such a suit is not maintainable.
8. There cannot be any quarrel to this extent that the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence.”
18. The law in this regard is no more res-integra and it is settled law that adverse possession can be the basis of a defence to deny the relief of eviction and possession of the suit lands in view of the law of limitation which stipulates that the relief ought to be sought for within the stipulated period of limitation. This very fact alone speaks volumes about the legality of the decree itself. The suit itself being not maintainable the question of maintaining the application under Order 132 of the Act would not arise. That apart, though prima-facie this order appears to be innocuous, but the same is highly mischievous and the trial court has sought to indirectly direct the performance of an action which is positively prohibited by the provisions of Section 61 of the Act. The court has attempted to do indirectly which it is prohibited from doing directly. The sub-section (1) of Section 61 of the Act vests the jurisdiction in the matters pertaining to revenue entries in the revenue courts and further bars the exercise of jurisdiction by the civil courts in such matters pending exhaustion of the appeal remedies before the revenue courts. Thus what the court attempted to do indirectly that which it is barred from doing directly in terms of Section 61 of the Act and on that count also the orders impugned stand vitiated. This court has perused the judgement and the decree. The records do not reflect the production of any certified copy of the revenue register as mandated under Section 132 nor is it canvassed by the respondent/plaintiffs that a sale has been effected in their favour in a manner known to law or there has been acquisition of title in a manner known to law. There is nothing on record to suggest the payment or deposit of balance sale consideration nor has any application been preferred under Order XXI of Civil Procedure Code for execution of judgment. What is sought is mere declaration of title and no relief is sought for under Specific Relief Act. In view of the above, the primary contentions on behalf of the petitioners that the application under Section 132 of the Act registered as Misc. case is not maintainable bears substance and requires to be upheld. Accordingly, it is held that the applications registered as Misc. case No.22/2013, 23/2013 and 24/2013 under Section 132 of the Act are not maintainable and consequently the orders impugned are required to be interfered with.
The writ petitions are allowed. The impugned orders dated 10.04.2013 stand quashed. Interim order granted earlier stands dissolved. There shall be no order as to costs.
Sd/- JUDGE Chs* CT-HR