IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 27th DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON’BLE MR.JUSTICE B M SHYAM PRASAD REVIEW PETITION NOS.637 OF 2017 AND 15 OF 2018 IN WRIT APPEAL NOS.566 AND 567 OF 2016 BETWEEN:
1. MOHAMMED ZIAULLA SON OF LATE CHABU SAB, AGED ABOUT 43 YEARS, AGRICULTURIST, RESIDENT OF 1ST CROSS, N.T.ROAD, SHIVAMOGGA-577 201.
2. RAJALAKSHMI WIFE OF LATE N.MAHABALA RAO, AGED ABOUT 78 YEARS, RESIDENT OF "SHUBHA PRADA" BEHIND VANDANA TALKIES, SHIVAMOGGA CITY-577 201.
3. N.VENUGOPALA RAO SON OF LATE NADIG ANANTHAIAH, AGED ABOUT 73 YEARS, RESIDENT OF H.NO.38/A, B.B.STREET, SHIVAMOGGA-577 201.
4. N.SURYANARAYANA RAO SON OF LATE NADIG ANNATHAIAH, AGED ABOUT 77 YEARS, RESIDENT OF 4TH CROSS, JAYANAGAR EXTENSION, SHIVAMOGGA-577 201.
...PETITIONERS (BY SRI P.N.HARISH., ADVOCATE) AND:
1. P.JAYARAM SON OF LATE PAPANNA @ MANJAPPA, AGED ABOUT 55 YEARS, RESIDENT OF MANDAGADDE, THIRTHAHALLI TALUK-577 432, SHIVAMOGGA DISTRICT.
2. STATE OF KARNATAKA REVENUE DEPARTMENT, M.S.BUIDLING, BENGALURU-560 001.
REPRSENTED BY ITS SECRETARY.
3. THE LAND TRIBUNAL SHIVAMOGGA-577 201, REPRESENTED BY ITS SECRETARY.
4. THE DEPUTY COMMISSIONER SHIVAMOGGA DISTRICT, SHIVAMOGGA-577 201.
…RESPONDENTS (BY SRI K.S.MALLIKARJUNAIAH, ADVOCATE FOR R1 SRI VASANTH V.FERNANDES, HCGP FOR R2 TO R4) THESE REVIEW PETITIONS ARE FILED UNDER ORDER 47 RULE 1 READ WITH SECTION 114 OF CPC PRAYING TO REVIEW THE ORDER DATED: 29.03.2016 PASSED BY THE DIVISION BENCH OF THIS HON'BLE COURT IN W.A NOS.566 AND 567 OF 2016 BY PROVIDING AN OPPORTUNITY OF BEING HEARD TO THE PETITIONERS HEREIN AND ETC., THESE REVIEW PETITIONS COMING ON FOR ORDERS THIS DAY, RAVI MALIMATH J., MADE THE FOLLOWING:
ORDER These petitions are filed seeking to review the order dated 29.03.2016 passed in Writ Appeal Nos.566 and 567 of 2016 by the learned Division Bench of this Court. The review petitioners filed I.A.2 of 2017 under Section 151 of CPC seeking leave to prefer the review petitions.
2. It is their case that they have purchased the land in question in terms of the registered sale deed dated 18.07.2013 and they are put in possession of the lands. Not withstanding the same, the order in question has been passed without making the petitioners as parties to the proceedings. Since the registered sale deeds are in their favour, their rights get affected since they have not been heard.
3. The same is disputed by the learned counsel for the respondents.
4. On hearing learned Counsels, we deem it appropriate to allow the application. The material on record would indicate that the first petitioner has purchased the land in question by two different registered sale deeds dated 18.07.2013. Therefore, his rights get affected. Consequently, I.A.No.2 of 2017 is allowed. The applicants are permitted to prosecute these petitions.
5. I.A.No.1 of 2017 is an application filed by the learned counsel for the petitioners under Section 5 of the Indian Limitation Act seeking to condone the delay of 575 days in filing the review petitions. It is pleaded that the order under review was passed on 29.03.2016. They were not aware of the said order, since they were not made as parties to the proceedings. On the basis of the said order, the land Tribunal initiated proceedings and by order dated 07.08.2017 passed an order conferring the occupancy rights in favour of first respondent. Thereafter, on obtaining a certified copy of the same, they came to know of the proceedings. Hence, there is a delay in filing these petitions.
6. The respondents have objected to the application and the same has been considered.
7. Sufficient cause has been shown. The petitioners were not even made as parties before the Appellate Court were not aware of the proceedings being initiated. Since their rights get affected, necessarily they have filed these petitions.
8. For the reasons assigned and the sufficient cause being shown, the application is allowed. Delay of 575 days in filing the review petitions is condoned.
Page No.5 is retyped and replaced vide Court order dated 16.04.2019.
9. So far as the merits is concerned, the material on record would indicate that Writ Petition Nos.10421 of 2015 and 14984 of 2015 were filed by the first respondent herein seeking to confirm the land in question in favour of the first respondent. The learned Single Judge by order dated 14.07.2015 held that the ownership is claimed on the basis of adverse possession. Therefore, such a relief is unavailable in a writ proceedings under Article 226 of Constitution of India. Hence, the petitioner was relegated to a competent Civil Court for necessary relief. Being aggrieved by the same, Writ Appeal Nos.566 and 567 of 2016 came to be filed by first respondent. By the order dated 29.03.2016, the appeals were disposed off by directing the land Tribunal, Shivamogga, to consider the application filed by the writ petitioner for occupancy rights, within a period of four months from the date of communication of the said order. It is this order, which is sought to be reviewed.
10. We find no nexus with the order passed by the learned Single Judge and the order passed by the learned Division Bench. The plea in the writ petitions was for a mandamus for confirmation of ownership of the land based on adverse possession. The order passed in the writ appeals is to direct the land Tribunal to consider the application of the petitioner for grant of occupancy rights. Therefore, we find that the order is beyond what was sought for by the writ petitioner himself. Therefore, we are of the view that the same is an error apparent on the face of the record.
11. The learned counsel for the respondents submits that subsequent to the order passed in the aforesaid writ appeals, the land Tribunal has already passed an order. In view of reviewing the order, necessarily that order would also not sustain.
12. For all these reasons, the petitions are allowed. The order dated 29.03.2016 passed in Writ Appeal Nos.566 and 567 of 2016 by the learned Division Bench, are reviewed and recalled. All subsequent orders including the order passed by the land Tribunal dated 07.08.2017 are set aside. Writ appeals are restored to file.
SD/- SD/-
JUDGE JUDGE PB