IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR W.P. NO.30264/2013 (KLR-RR/SUR) BETWEEN:
1 . MUNIYAPPA S/O LATE CHIKKAHANUMAPPA SINCE DEAD BY LRS:
a . HANUMANTHAPPA S/O LATE MUNIYAPPA AGED ABOUT 50 YEARS.
b . VENKATAMMA D/O LATE MUNIYAPPA AGED ABOUT 48 YEARS.
c . MUNIKRISHNA S/O LATE MUNIYAPPA AGED ABOUT 42 YEARS.
d . NARAYANA S/O LATE MUNIYAPPA AGED ABOUT 33 YEARS.
e . SRINIVASA S/O LATE MUNIYAPPA AGED ABOUT 28 YEARS.
f . MUNIRAJU S/O LATE MUNIYAPPA AGED ABOUT 25 YEARS.
ALL ARE RESIDING AT THIPPENAHALLI VILLAGE KASABA HOBLI CHIKKABALLAPURA TALUK & DISTRICT – 562 101. ...PETITIONERS (BY SRI. SHIVA REDDY K.N, ADVOATE) AND:
1 . STATE OF KARNATAKA REPRESENTED BY ITS CHIEF SECRETARY DEPARTMENT OF REVENUE VIDHANASOUDHA BENGALURU – 01.
2 . DEPUTY COMMISSIONER CHIKKABALLAPURA DISTRICT CHIKKABALLAPURA – 562 101.
3 . ASSISTANT COMMISSIONER CHIKKABALLAPURA SUB-DVN., CHIKKABALLAPURA – 562 101.
4 . THE TAHASILDAR CHIKKABALLAPURA TALUK CHIKKABALLAPURA – 562 101.
5 . THIPPEREDDY S/O BACCHAPPA AGED ABOUT 55 YEARS R/O THIPPENAHALLI VILLAGE KASABA HOBLI, CHIKKABALLAPURA TALUK – 562 101.
…RESPONDENTS (BY SRI. A.C. BALARAJ, AGA FOR R-1 TO R-4;
SRI. RAHUL S. REDDY, ADVOCATE ON BEHALF OF SRI. D.N. SAHADEVA REDDY, ADVOCATE FOR R-5) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER PASSED BY R-2 HEREIN IN RA 74/10-11 DATED:21.01.13 VIDE ANNX-A DN KINDLY ORDER FOR CALLING ENTIRE RECORDS IN RA 74/10-11 ON THE FILE OF DY. COMMISSIONER, CHIKKABALLAPURA.
THIS PETITION COMING ON FOR PRELIMINARY HERING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard Sri Shivareddy, learned Advocate appearing for petitioners, Sri A.C.Balraj, learned Additional Government Advocate appearing for respondents-1 to 4 and Sri Rahul S Reddy, learned Advocate appearing for respondent-5. Perused the records.
2. Subject matter of this writ petition revolves around land measuring 1 acre 5 guntas situated in Sy.No.8 situated at Thippenahalli village, Kasaba Hobli, Chikkaballapura Taluk (for short referred to as ‘subject land’), which land was undisputedly Talvari Naukri Inamthi land. Subject land is said to have been sold by Sri Muniyappa, father of petitioners and others under registered sale deed dated 30.04.1974 (Annexure-G) in favour of 5th respondent. Based on said registered sale deed, 5th respondent sought for mutating the revenue records to his name and jurisdictional Tahsildar by MR No.13/95-96 mutated the revenue records of subject land in the name of fifth respondent. Being aggrieved by same, appeal came to be filed by petitioners in R.A.No.145/1998-99. During pendency of said proceedings, learned Advocates appearing for father of petitioners as well as 5th respondent herein made a joint submission that matter has been resolved between parties outside the court and as such, they sought for dismissal of the appeal. Based on said submission, Assistant Commissioner by order dated 05.07.1999 (Annexure-K) dismissed the appeal. Undisputedly, said order has attained finality and there is no challenge to said order.
3. In the meanwhile, petitioners are said to have initiated proceedings for re-grant of land which culminated in order dated 23.07.1984 (Annexure-E) passed by fourth respondent in their favour regranting subject land. On such order of regrant made, father of petitioners submitted an application for mutating the revenue records to his name in respect of land in question to an extent of 22 ½ guntas, contending interalia that remaining 22 ½ guntas was granted to other branch of their family and they would be entitled to seek appropriate relief independently in respect of remaining land measuring 22 ½ guntas. Based on the said order of regrant, Assistant Commissioner passed an order on 19.06.2010 (Annexure-B) whereunder mutation entry made in favour of fifth respondent in MR No.13/95- 96 to an extent of 22 ½ guntas (only) came to be set aside with a further direction that name of regrantee i.e., Sri Muniyappa is to be entered to an extent of 22 ½ guntas. At this juncture, it would be apt and appropriate to notice that in said proceedings, khatedar namely, 5th respondent herein was not made a party. As such, on that short ground itself, order of the Assistant Commissioner has to be held as being passed in violation of principles of natural justice.
4. Be that as it may. Khatedar namely, 5th respondent being aggrieved by order dated 19.06.2010 (Annexure-B) passed by Assistant Commissioner, carried the matter before Deputy Commissioner in R.A.No.74/2010-11 and Deputy Commissioner, by impugned order dated 21.01.2013 (Annexure-A) allowed said appeal and ordered for restoration of the name of 5th respondent to the extent of 22 ½ guntas on the ground that sale effected by the grantee is saved in favour of the purchaser as per dicta laid down by this Court in LAKSHMANA GOWDA & OTHERS vs STATE OF KARNATAKA BY ITS SECRETARY TO GOVERNMENT reported in ILR 1980 KAR 892.
Assailing said order, petitioner is before this Court.
5. Learned Advocates appearing for parties would fairly admit that both petitioners as well as 5th respondent have filed suits in O.S.Nos.413/2013 and 372/2010 for declaration of title to said property and to declare the sale deed dated 30.04.1994 executed as illegal, fabricated, null and void and/or valid and binding respectively.
6. Mr.Shivareddy, learned Advocate appearing for petitioners would make a valiant attempt to contend that when there is surrender of possession by the purchaser in favour of grantee, judgment in LAKSHMANA GOWDA’s case would not come to the rescue of such purchaser by relying upon the judgment of this court rendered in the matter of SMT.MUNEMMA AND OTHERS vs SRI N.VENKATESHAPPA reported in (2010)4 KCCR 2807. He would also contend that 5th respondent had surrendered possession of the land and as such, protection extended to the purchasers under the LAKSHMANA GOWDA’s case would not enure to the benefit of 5th respondent herein.
7. As could be seen from the judgment rendered in the case of MUNEMMA referred to herein supra, was based on evaluation of evidence tendered by both parties before trial court which litigation landed before this Court in a second appeal and co-ordinate Bench had formulated substantial question of law which had interse arisen between the parties and in the facts obtained in the said case. Hence, a finding came to be recorded with regard to possession which was based on the basis of appreciation of evidence which was available before it. Hence, a conclusion was arrived that possession had been re-delivered by purchaser to grantee.
8. Though learned Advocate appearing for petitioners would be justified in drawing the attention of the court to the deposition of 5th respondent which is alleged to have been recorded in the regrant proceedings, this court would not embark upon recording any finding with regard to correctness or otherwise of the said statement alleged to have been made by 5th respondent – Sri Thippareddy in regrant proceedings particularly in the background of 5th respondent having filed a suit in O.S.No.372/2010 for the relief of declaration viz., to declare that he is the owner of the property in question; that he had purchased the same from Sri Muniyappa, father of petitioners under a registered sale deed dated 03.04.1974. Further, petitioners herein have also filed a suit O.S.No.413/2013 for declaration of their title to the property in question and for declaring that sale deed dated 30.04.1974 is a created, manipulated and fabricated document and any opinion expressed by this court in that regard or with regard to possession would definitely prejudice rights of either parties in pending suit. Hence, this court would refrain from expressing any opinion in that regard.
It is needless to state that entry made in the revenue records would be subject to result of the suits and would be governed by sub-section (3) of Section 132 of the Karnataka Land Revenue Act. It is needless to state that Deputy Commissioner will have to cause entry of revenue records in accordance with the judgment and decree that would be passed by the competent civil court. As such, entry made in MR No.13/95-96 in favour of 5th respondent would definitely be subject to the result of suits O.S.Nos.413/2013 and 372/2010 .
Observing thus, present writ petition stands disposed of.
SD/- JUDGE *sp