IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION Nos.3062-3063/2019(KLR-RR/SUR) BETWEEN 1. SMT. MUNIRATHNAMMA W/O LATE MUNINARAYANA AGED ABOUT 57 YEARS R/AT KOTE-WARD No.7, DEVANAHALLI TOWN, BENGALURU RURAL DISTRICT-562 110 2. BALARAMA D M S/O LATE MUNINARAYANA AGE ABOUT 38 YEARS R/AT KOTE WARD No.7, DEVANAHALLI TOWN, BENGALURU RURAL DISTRICT-562 110.
3. SMT. SHARADA D M D/O LATE MUNINARAYANA W/O N GOPALA AGED ABOUT 36 YEARS WARD No.19, PUTTAPPA TEMPLE ROAD, DEVANAHALLI TOWN-562 110.
4. SHIVAKUMARA D M S/O LATE MUNINARAYANA AGED ABOUT 34 YEARS R/AT KOTE WARD No.7, DEVANAHALLI TOWN, BENGALURU RURAL DISTRICT-562 110. ... PETITIONERS (BY SRI SANTHOSH KUMAR M B, ADVOCATE) AND 1. STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY REENUE DEPARTMENT VIDHANA SOUDHA, BENGALURU - 560001.
2. THE DEPUTY COMMISSIONER BENGALURU RURAL DISRICT BENGALURU-562 110.
3. THE ASSISTANT COMMISSIONER DODDABALLAPURA SUB-DIVISION DODDABALLAPURA 561 203.
4. THE TAHASILDAR DEANAHALLI TALUK, DEVANAHALLI BENGALURU RURAL DISTRICT-562 110.
5. D B MUNIYAPPA S/O BADRAPPA WARD No.7, KOTE VENUGOPALA SWAMY TEMPLE, DEVANAHALLI-562 110 ... RESPONDENTS (BY SRI VENKATESH DODDERI, ADDITIIONAL GOVERNMENT ADVOCATE FOR RESPONDENT NOs.1 TO 4 SRI D B MUNIYAPPA, ADVOCATE, CAVEATOR – RESPONDENT No.5 – PARTY IN PERSON) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 31.10.2018 PASSED IN REVISION PETITION No.88/2015-16 PASSED BY THE DEPUTY COMMISSIONER, BENGALURU RURAL DISTRICT, BENGALURU VIDE ANNEXURE-J AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioners have sought for quashing of the order dated 31.10.2018 vide Annexure ‘J’ to the petitions passed by the second respondent - Deputy Commissioner and District Magistrate, Bengaluru Rural District, in Revision Petition No.88/2015-16. They have also sought for issue of a writ of mandamus directing the fourth respondent, Tahasildar, Devanahalli Taluk, to restore the entries in the revenue records as per the judgment and decree dated 10.10.2014 vide Annexure ‘B’ to the petitions passed in RSA No.2326/2010.
2. The suit in O.S. No.190/1992 was filed by Sri D.B. Muniyappa, who is respondent No.5 herein, along with Smt. Pillamma and Smt. Kalamma seeking partition of the suit schedule properties comprising of six items, in the manner sought for in the plaint. Petitioner No.1 is defendant No.6 in O.S. No.190/1992 on the file of Additional Civil Judge (Jr. Dn.) and JMFC., Devanahalli. She is the wife of Sri Muninarayana. Petitioner Nos.2 to 4 herein are the children of petitioner No.1 and Sri Muninarayana.
3. The trial Court, by its judgment and decree dated 17.10.2006 (Annexure ‘A’ to the petitions), partly decreed the said suit with costs in the following terms:
“It is declared that plaintiff No.1 is entitled for 2/27th share. Plaintiff No.2 is entitled for 1/54th share and plaintiff No.3 is entitled for 1/6th share in item No.3 of the suit schedule property.
It is declared that plaintiff No.1 is entitled for 4/27th share, plaintiff No.2 is entitled for 1/27th share and plaintiff No.3 is entitled for 1/3rd share on the northern side of item No.6.
The southern portion of item No.6 is the property belonging to the LRs of the 2nd defendant.
The suit schedule property shall be partitioned by metes and bounds and separate possession of the share of the plaintiffs should be delivered to them.
Draw preliminary decree accordingly.”
4. The said judgment and decree of the trial Court was the subject matter of challenge in R.A. No.1/2007 preferred by Sri D.B. Muniyappa, respondent No.5 herein, initially before the Court of the Senior Civil Judge, Devanahalli. The said appeal was later transferred to the Fast Track Court, Devanahalli. The Fast Track Court, by its judgment dated 27.05.2010, dismissed the said appeal with costs by confirming the judgment and decree dated 17.10.2006 passed by the trial Court in O.S. No.190/1992.
5. Respondent No.5 in these petitions, namely, Sri D.B. Muniyappa, being aggrieved by the concurrent finding rendered by both the Courts below in dismissing the suit in O.S. No.190/1992, preferred Regular Second Appeal in RSA No.2326/2010 before this Court and he prosecuted the said appeal as party-in-person.
6. When the said second appeal was posted for hearing on 10.10.2014, coordinate Bench of this Court after hearing the learned counsel for the respective parties, passed the judgment, wherein unnumbered para No.3 reads as under:
“The suit is of the year 1992. During 1945 there is said to be a partition. However, there appears to be an error crept in the judgment of the trial court with respect to item 1 which is said to be belonging to the appellant as per the admission of the 1st defendant himself. That could be set right. So far as the other properties are concerned, there is a concurrent finding of both the Courts below that there is partition in the year 1945”
7. It is seen that the trial Court in para No.42 of its judgment dated 17.10.2006, has held that the suit schedule item Nos.1 and 2 are the self-acquired properties of Sri Chikkamunishamappa, the father of Sri Putteerappa, who was the original defendant No.1 in O.S. No.190/1992. The wife and children of the said Putteerappa being the legal heirs of Sri Chikkamunishamappa were entitled to succeed to the said suit schedule item Nos.1 and 2. Hence, the plaintiffs were not entitled to any share in the said properties.
8. In the Regular Second Appeal, coordinate Bench of this Court has observed that the finding of the trial Court with regard to suit schedule item No.1 was erroneous and relying upon the admission of defendant No.1 in the suit, Sri Putteerappa, to the effect that the said property belonged to the appellant, held that the suit schedule Item No.1 belonged to the appellant therein, Sri D.B. Muniyappa (plaintiff No.1 in the suit and respondent No.5 in these petitions).
9. Accordingly, coordinate Bench of this Court, by its judgment dated 10.10.2014 (Annexure ‘B’ to the petitions), dismissed the Regular Second Appeal for want of substantial question of law. While doing so, coordinate Bench of this Court issued direction in the following terms:
“However, in view of the clarification made earlier so far as item 1 is concerned, that should belong to the appellant and any such observation made should not come in the way of right and entitlement of the appellant. Order of the courts below is modified accordingly.”
10. Subsequently, at the instance of the appellant – Sri D.B. Muniyappa, R.S.A. No.2326/2010 was posted for orders on ‘being spoken to’ before the same coordinate Bench of this Court, which heard the appeal, on 21.10.2014. On that day, the appellant submitted that a typographical error had crept in unnumbered para No.3 and the last para of the judgment dated 10.10.2014 in mentioning ‘item No.1’ instead of ‘item No.3’. The said mistake was rectified by coordinate Bench of this Court by substituting ‘item No.1’ with ‘item No.3’ as sought by the appellant.
11. In the light of the said correction made by coordinate Bench of this Court by its order dated 21.10.2014, the suit schedule item No.3 property was held to be the property of the appellant – Sri D.B. Muniyappa. However, with regard to the said item No.3 of the suit schedule, the trial Court had determined the shares of plaintiff No.1, plaintiff No.2 since deceased represented by her legal representative plaintiff No.2(a) and plaintiff No.3 vide its judgment dated 17.10.2016.
12. Petitioner No.1 herein, Smt. Munirathnamma (defendant No.6 in the suit), being aggrieved by the said correction / clarification made by coordinate Bench of this Court on 21.10.2014 to the effect that the appellant – Sri D.B. Muniyappa is entitled for the suit schedule item No.3 property instead of suit schedule item No.1 property, filed a review petition in R.P. No.1407/2014 before this Court. Pursuant to the said order dated 21.10.2014, respondent No.5 herein made an application to the fourth respondent herein, Tahasildar, Devanahalli Taluk, for change of khata in respect of the land measuring to an extent of 01 Acre 36 guntas / 01 Acre 30 guntas in Sy. No.235/2 (item No.3 of the suit schedule properties) situate at kasaba hobli, Devanahalli Taluk.
13. Based on the application of respondent No.5 herein, Tahasildar initiated proceedings in RRT(Dis)/06/2015-
16. In the said proceedings, Revenue Inspector, kasaba hobli, Devanahalli Taluk and Sri D.M. Shivakumar (petitioner No.4 in these petitions) were arrayed as respondent Nos.1 and 2 respectively. Tahasildar, ordered for change of khata in favour of the petitioner – Sri D.B. Muniyappa / Sri D.V. Muniyappa (respondent No.5 herein) in respect of the said land measuring 01 Acre 36 guntas in Sy. No.235/2 subject to the result of the review petition in R.P. No.1407/2014. The said order dated 14.05.2015 is at Annexure ‘D’ to the petitions. Subsequently, mutation was effected in the name of respondent No.5 herein, Sri D.B. Muniyappa, vide M.R.H. No.106/2014-15 dated 18.05.2015.
14. According to the petitioners herein, the said order was passed by respondent No.4 – Tahasildar, without giving opportunity to them to put forth their case. Hence, they preferred appeal, which was numbered as R.A.(De):72/2015- 16, under Section 136(2) of the Karnataka Land Revenue Act, 1964, before the third respondent - Assistant Commissioner.
15. The third respondent - Assistant Commissioner after issuing notice to the parties and considering the material on record, by his order dated 31.08.2015 (Annexure ‘E’ to the petitions), has set aside the mutation order vide M.R.H:106/2014-15 dated 18.05.2015 passed by Tahasildar in respect of the land measuring 01 Acre 36 guntas in Sy. No.235/2 and remanded the matter to the fourth respondent herein - Tahasildar with direction to consider and dispose of the same after issuing notice to the parties and till such time, mutation entries were ordered to be restored in the name of earlier khatedar.
16. The said order of the Assistant Commissioner was the subject matter of challenge in Revision Petition, which was numbered as 88/2015-16, preferred under Section 136(3) of the Karnataka Land Revenue Act, 1964, by the plaintiff No.1 in the suit (appellant in RSA No.2326/2010 and respondent No.5 in these petitions) before the Deputy Commissioner and District Magistrate, Bengaluru Rural District.
17. Meanwhile, Review petition in R.P. No.1407/2014 filed by petitioner No.1 herein, Smt. Munirathnamma (defendant No.6 in the suit) came up for admission before coordinate Bench of this Court on 15.06.2017. It was observed by coordinate Bench of this Court that the suit schedule item No.1 and suit schedule item No.3 were two different properties as item No.1 was a house property, whereas, item No.3 was a land measuring to an extent of 01 Acre 36 guntas. The subsequent order dated 21.10.2014 passed by coordinate Bench of this Court in RSA No.2326/2010 clarifying that the appellant – Sri D.B. Muniyappa was entitled to the suit schedule item No.3, but not item No.1 altered the very relief granted in the earlier judgment dated 10.10.2014 while dismissing the second appeal. Accordingly, coordinate Bench of this Court by its order dated 15.06.2017 (Annexure ‘F’ to the petitions), disposed of the Review petition by recalling the order dated 21.10.2014 passed in R.S.A. No.2326/2010. Further, Registry was directed to list the memo ‘for being spoken to’, which was restored to file, on 20.07.2017.
18. Meanwhile, the Appellant in R.S.A. No.2326/2010 preferred application in I.A. No.1/2017 seeking permission to argue Review petition No.1407/2014. A coordinate Bench of this Court in its order dated 10.11.2017, opined that if such permission were to be granted, it would amount to rehearing the Regular Second Appeal and if the appellant was so advised, he could challenge the order before the appropriate Court and accordingly, disposed of I.A. No.1/2017.
19. The order dated 15.06.2017 passed in R.P. No.1407/2014 was the subject matter of challenge in Special Leave Petition (Civil) No.029805/2018 (Diary No.33638/2018) preferred by respondent No.5 herein – Sri D.B. Muniyappa before the Apex Court. The said Special Leave Petition came to be dismissed by order dated 12.10.2018.
20. In the revision petition No.88/2015-16, the second respondent herein - Deputy Commissioner has observed that in the light of the fact that the Review Petition in R.P. No.1407/2014 filed by respondent No.3 therein – Smt. Munirathnamma (petitioner No.1 in these petitions) had been rejected by order passed by coordinate Bench of this Court dated 10.11.2017, the judgment dated 10.10.2014 passed in R.S.A. No.2326/2010 had become final. Accordingly, the Deputy Commissioner by his order dated 31.10.2018 (Annexure ‘J’ to the petitions), allowed the appeal filed by Sri D.B. Muniyappa by setting aside the order dated 31.08.2015 (Annexure ‘E’ to the petitions) passed by the first respondent – Assistant Commissioner in R.A(De).72/2015-16. While doing so, Deputy Commissioner directed the second respondent therein – Tahasildar, Devanahalli Taluk, to mutate the name of the petitioner – Sri D.B. Muniyappa in respect of the land measuring 01 Acre 36 guntas in Sy. No.235/2 situate at Devanahalli village, kasaba hobli, Devanahalli Taluk. The said order is under challenge in these petitions.
21. Heard the learned counsel for petitioners, learned Additional Government Advocate for respondent Nos.1 to 4 and respondent No.5, Sri D.B. Muniyappa, Advocate, who is contesting the petitions as party-in-person. Perused the material on record including the order passed by this Court dated 27.02.2019, whereby the entries in the revenue records in respect of the land in question were ordered to be maintained as they stood earlier to the impugned order until the disposal of these petitions.
22. On going through the records, it is seen that the litigation in O.S. No.190/1992 which was commenced by respondent No.5 herein – Sri D.B. Muniyappa has reached quietus in Special Leave Petition in SLP(C) No.029805/2018 (Diary No.33638/2018) before the Apex Court by virtue of order dated 12.10.2018 dismissing the said special leave petition while confirming the order dated 15/06/2017 passed in R.P No. 1407/2014. Consequently, the judgment dated 10.10.2014 passed by coordinate Bench of this Court in RSA No.2326/2010 has become final.
23. Meanwhile, pursuant to the order dated 21.10.2014 passed by coordinate Bench of this Court on ‘being spoken to’ in RSA No.2326/2010, respondent No.5 herein, Sri D.B. Muniyappa / D.V. Muniyappa, made an application to the fourth respondent herein, Tahasildar, Devanahalli Taluk, for change of khata in respect of the land measuring to an extent of 01 Acre 36 guntas / 01 Acre 30 guntas in Sy. No.235/2, which is item No.3 of the suit schedule properties, contending that it is his absolute property. Tahasildar, by his order dated 14.05.2015 (Annexure ‘D’ to the petitions) in proceedings No.RRT(Dis)/06/2015-16 ordered for change of khata in favour of respondent No.5 herein – Sri D.B. Muniyappa / Sri D.V. Muniyappa in respect of the said land subject to the result of the review petition. Subsequently, mutation was effected in his name vide M.R.H. No.106/2014-15 dated 18.05.2015. The same was challenged by petitioners herein in R.A.(De):72/2015-16, before the third respondent - Assistant Commissioner, who by his order dated 31.08.2015 (Annexure ‘E’ to the petitions), set aside the said mutation order passed by Tahasildar in respect of the land in question and remanded the matter to the Tahasildar with direction to consider and dispose of the matter after issuing notice to the parties and till such time, mutation entries were ordered to be restored in the name of earlier khatedar.
24. Respondent No.5 herein D.B. Muniyappa, preferred revision petition No.88/2015-16 before the Deputy Commissioner, who by his order dated 31.10.2018 (Annexure ‘J’ to the petitions), has set aside the order dated 31.08.2015 passed by the first respondent - Assistant Commissioner, Doddaballapura sub-division, in R.A.(D).72/2015-16 while directing the second respondent – Tahasildar, Devanahalli Taluk, to mutate the name of the petitioner – Sri D.B. Muniyappa in respect of the land measuring 01 Acre 36 guntas in Sy. No.235/2.
25. Having regard to the fact that the judgment dated 10.10.2014 passed by coordinate Bench of this Court in R.S.A No.2326/2010 has reached finality in Special Leave Petition (Civil) No.29805/2018 disposed of on 12.10.2018, the impugned order passed by Deputy Commissioner directing the fourth respondent herein, namely, Tahasildar, Devanahalli Taluk, to mutate the name of the respondent No.5 herein – Sri D.B. Muniyappa in respect of the land measuring 01 Acre 36 guntas in Sy. No.235/2, which is suit schedule item No.3 property, is erroneous and same is liable to be set aside.
26. Accordingly, these Writ Petitions are allowed. The order dated 31.10.2018 vide Annexure ‘J’ to the petitions passed by the Deputy Commissioner and District Magistrate, Bengaluru Rural District, Bengaluru, in Revision Petition No.88/2015-16 is hereby set aside. It is made clear that the share of respondent No.5 herein – Sri D.B. Muniyappa in respect of the land measuring 01 Acre 30 guntas / 01 Acre 36 guntas in Sy. No.235/2 situate at kasaba hobli, Devanahalli Taluk, is as defined in the judgment and decree dated 17.10.2006 passed in O.S. No.190/1992, which has reached finality in Special Leave Petition (Civil) No.029805/2018 (Diary No.33638/2018) preferred by respondent No.5 herein before the Apex Court and which petition has been dismissed on 12.10.2018.
27. Learned Additional Government Advocate is directed to file memo of appearance within two weeks from today.
Sd/- JUDGE sma