IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION NOs.6279-6280/2018(KLR-RR/SUR) BETWEEN 1. SRI. A. DODDAIAH AGED ABOUT 78 YEARS, 2. SRI A MALLIYAPPA AGED ABOUT 75 YEARS, BOTH PETITIONERS 1 AND 2 ARE SONS OF LATE ANEPPA AND BOTH ARE RESIDENTS OF KALKERE VILLAGE, K.R. PURAM HOBLI BANGALORE EAST TALUK BANGALORE-560 043 ... PETITIONERS (BY SRI SHIVAKUMAR U, ADVOCATE) AND 1. DEPUTY COMMISSIONER BANGALORE URBAN DISTRICT KANDHAYA BHAVAN K.G. ROAD, BANGALORE-560009 2. ASSISTANT COMMISSIONER BANGALORE NORTH SUB-DIVISION KANDHAYA BHAVAN K.G. ROAD, BANGALORE-560009 3. TAHSILDAR BANGALORE EAST TALUK K.R.PURAM BANGALORE-560043 4. SRI M.BYRAPPA S/O LATE MUDDAPPA AGED ABOUT 48 YEARS, 5. SRI NAGARAJA S/O LATE ANEPPA AGED ABOUT 69 YEARS, 6. SMT. KEMPAMMA W/O LATE NARAYANAPPA AGED ABOUT 70 YEARS, 7. SRI SOMASHEKAR S/O LATE NARAYANAPPA AGED ABOUT 40 YEARS, 8. SRI RAMAIAH S/O LATE MUNISHAMAPPA AGED ABOUT 75 YEARS, R4 TO R8 ARE RESIDING AT KALKERE VILLAGE, K.R. PURAM HOBLI BANGALORE EAST TALUK BANGALORE-560043 ... RESPONDENTS (BY SRI VENKATESH DODDERI, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R3 SRI B.S.RAGHU PRASAD, ADVOCATE FOR R4) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 28.11.2017, PASSED IN R.P.No.141/13-14, BY THE DEPUTY COMMISSIONER, BANGALORE DISTRICT, AS PER ANNEXURE-K AND THEREBY SET-ASIDE THE ORER DATED 24.05.2013, PASSED BY THE ASST. COMMISSIONER, BANGALORE NORTH SUB-DIVISION, BANGALORE DISTRICT IN R.A. (B.E) No.173/2011-12, AS PER ANNEXURE-J AND THEREBY AFFIRM THE ORDERS PASSED IN M.R.13/1995-96 AND M.R.No.19/1995-96 VIDE ANNEXURE-E IN RESPECT OF LAND BEARING SURVEY No.266, SITUATE AT KALKERE VILLAGE, K.R.PURAM HOBLI, BANGALORE EAST TALUK, MEASURING 1-12 GUNTAS, PASSED BY THE TAHSILDAR, K.R.PURAM.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Learned Additional Government Advocate takes notice for respondent Nos.1 to 3.
2. Petitioners have sought for quashing of the order dated 28.11.2017 (Annexure ‘K’ to the petitions) passed by the first respondent - Deputy Commissioner, Bengaluru Urban District, Bengaluru, in Revision Petition No.141/2013-14, wherein the said revision petition filed by petitioners herein has been rejected by confirming the order dated 24.05.2013 (Annexure ‘J’ to the petitions) passed by the second respondent - Assistant Commissioner, Bengaluru North sub- division, Bengaluru, in appeal No.R.A(BE).173/2011-12.
3. Petitioner Nos.1 and 2 and respondent No.5 are said to be the children of one Aneppa. It is the case of petitioners that they have purchased 11 guntas of land each in Sy. No.266 situate at Kalkere village, K.R. puram hobli, Bengaluru East Taluk, Bengaluru, under four separate registered sale deeds. The material on record would indicate that petitioner No.1, Sri A. Doddaiah, has purchased two pieces of land in Sy. No.266 i.e., land measuring East to West 70 feet and North to South 65 feet (04 Acres 22 square gajas) and land measuring East to West 70 feet and North to South 75 feet under two registered sale deeds dated 10.11.1970 and 03.11.1971 respectively (Annexures ‘A’ and ‘B’ to the petitions) from the same vendor – Sri Dasappa.
4. Similarly, petitioner No.2, A.Malliyappa, has purchased two pieces of land in Sy. No.266 i.e., land measuring East to West 75 feet and North to South 170 feet under registered sale deed dated 04.09.1972 (Annexure ‘C’ to the petitions) executed by Muddappa (father of respondent No.4 herein) and land measuring four guntas under registered sale deed dated 21.03.1973 (Annexure ‘D’ to the petitions) executed by one Sri Lakshmaiah and his son, Kaverappa.
5. When the matter stood thus, Sri M. Byrappa, (respondent No.4 herein) the son of the vendor – Sri Muddappa under the sale deed dated 04.09.1972 (vide Annexure ‘C’ to the petitions) along with his mother, Smt. Ramakka and his two sisters, namely, Smt. Saraswathamma and Smt. Nagamma, filed the suit in O.S. No.825/2011 before the Court of Principal City Civil and Sessions Judge, Bengaluru, seeking partition of the suit schedule property, which is described as agricultural land bearing Sy. No.266 measuring 01 Acre 12 guntas situate at Kalkere village, K.R. Puram hobli, Bengaluru East Taluk, and to put the plaintiffs in separate possession of their 4/5th share in the suit schedule property and to declare that the sale deed dated 04.09.1972 (Annexure ‘C’ to the present petitions) executed by Muddappa (husband of plaintiff No.1 and father of plaintiff Nos.2 to 4 and original defendant No.1) as not binding on the plaintiffs. Further, plaintiffs have sought for declaration that: sale deed dated 12.04.1965 said to have executed by Sri Muddappa in favour of Ramaiah (respondent No.8 in these petitions); sale deed dated 30.06.1977 allegedly executed by Ramaiah in favour of Smt.Kempamma (respondent No.6 in these petitions); sale deeds dated 15.07.1965 and 18.06.1964 said to have executed by Sri Muddappa in favour of Narayanappa are null and void and not binding on the plaintiffs.
6. It is seen that petitioners herein are defendant Nos.2 and 3 respectively in the said suit (O.S. No.825/2011). Respondent Nos.5, 6 and 8 in these petitions are defendant Nos.4, 6 and 7 respectively in the said suit.
7. It is submitted that plaintiffs in the said suit (respondent No.4 herein and his mother and two sisters) have not secured any interim order against defendants therein including defendant No.3 in the suit (petitioner No.2 herein), Sri A. Malliyappa, who is the purchaser of land measuring East to West 75 feet and North to South 170 feet (stated as 70 feet in the plaint in O.S. No.825/2011 vide Annexure ‘G’ to these petitions) in Sy.No.266 under registered sale deed dated 04.09.1972 (Annexure ‘C’ to the petitions).
8. According to petitioners, mutation entries in respect of the respective properties purchased by them under four registered sale deeds referred supra stood in their name and in the name of their father, Sri Aneppa, till the year 1993-
94. It is stated that after the death of the father of petitioners, revenue entries in respect of the said properties were mutated in the name of petitioners by virtue of orders of mutation vide M.R. Nos.13/1995-96 and 19/1995-96 (Annexures ‘E’ and ‘F’ to petitions) passed by the third respondent - Tahasildar, Bengaluru East Taluk, K.R. Puram, Bengaluru.
9. The said orders of mutation passed by Tahasildar pursuant to which khata in respect of certain extents of land in Sy. No.266 was transferred in the names of petitioners herein and respondent Nos.5 to 8 herein, were the subject matter of challenge in appeal No.R.A.(B.E)173/2011-12 filed by respondent No.4 herein – Sri M. Byrappa before the second respondent – Assistant Commissioner, Bengaluru North sub- division, Bengaluru.
10. The said appeal came to be allowed by the second respondent herein vide order dated 24.05.2013 (Annexure ‘J’ to the petitions) in setting aside the orders of mutation vide M.R. Nos.13/1995-95 and 19/1995-96 passed by Tahasildar in respect of land measuring to an extent of 01 Acre 12 guntas in Sy. No.266 of Kalkere village. While doing so, Assistant Commissioner has observed that the said order was subject to the final judgment to be passed by the City Civil Court, Bengaluru, in O.S. No.825/2011.
11. Petitioners herein being aggrieved by the said order of Assistant Commissioner preferred Revision Petition No.141/2013-14 before the first respondent – Deputy Commissioner, Bengaluru District. The first respondent herein, by his order dated 28.11.2017, dismissed the said revision petition while confirming the order dated 24.05.2013 passed by Assistant Commissioner in appeal No.RA(BE).173/2011-12. However, it is stated that the said order was subject to the outcome of the suit in O.S. No.825/2011. Being aggrieved by the same, petitioners are before this Court.
12. Heard the learned counsel for petitioners, learned counsel for the contesting respondent No.4 and learned Additional Government Advocate appearing for respondent Nos.1 to 3.
13. On going through the material available on record, it is clearly seen that petitioner No.1, Sri A. Doddaiah, has purchased two pieces of land in Sy. No.266 from the same vendor, Dasappa, under two registered sale deeds dated 10.11.1970 and 03.11.1971 respectively. Similarly, petitioner No.2, Sri A.Malliyappa, has purchased two pieces of land in Sy. No.266 under two registered sale deeds dated 04.09.1972 (Annexure ‘C’ to the petitions) and 21.03.1973 (Annexure ‘D’ to the petitions) executed by Sri Muddappa (father of respondent No.4 herein) and Sri Lakshmaiah and his son, Kaverappa respectively.
14. Admittedly, the aforesaid said sale deeds were given effect to by mutating the respective land/s referred therein in the names of petitioners and their father Aneppa up to the year 1993-94 and after the death of Aneppa, respective land/s were mutated in the names of petitioners in this proceedings. It is orders of mutation vide M.R. Nos.13/1995- 96 and 19/1995-96 passed by Tahasildar, which were called in question by fourth respondent – Sri M. Byrappa in appeal No.R.A(B.E)173/2011-12 before the second respondent – Assistant Commissioner after he along with his mother and two sisters filed the suit in O.S. No.825/2011 (suit filed on 29.01.2011) for partition and separate possession of their 4/5th share in the suit schedule property before the Court of Principal City Civil Judge, Bengaluru. In the said suit, he has challenged the sale deed dated 04.09.1972 (Annexure ‘C’ to these petitions) which was executed by his father, Sri Muddappa, in favour of petitioner No.2 herein – Sri A. Malliyappa, after expiry of nearly 38 years from the date of the said sale deed. Apart from that, plaintiffs have also challenged: sale deed dated 12.04.1965 executed by Sri Muddappa in favour of Sri Ramaiah (respondent No.8 herein); sale deed dated 30.06.1977 executed by Sri Ramaiah in favour of Smt. Kempamma (respondent No.6 herein) and sale deeds dated 15.07.1965 and 18.06.1964 executed by Sri Muddappa in favour of Sri Narayanappa.
15. Having regard to the facts and circumstances of the case, it is unable to understand as to how the first respondent – Deputy Commissioner and second respondent – Assistant Commissioner could jump to the conclusion that respondent No.4 – Sri M. Byrappa had right to get his name entered in the revenue records in respect of land measuring 01 Acre 12 guntas in Sy. No.266 even before the suit filed by him, his mother and two sisters in O.S. No.825/2011 was decided by the trial Court. In the fact situation, it is suffice to say that interference with reference to the revenue entries, which stood in the name of petitioner Nos.1 and 2 herein, in respect of respective extents of land in Sy. No.266, which were purchased by them under sale deeds referred to surpa, by virtue of order dated 24.05.2013 passed by second respondent – Assistant Commissioner in R.A.(B.E).173/2011-
12, which has been confirmed by order dated 28.11.2017 passed by the first respondent – Deputy Commissioner in Revision Petition No.141/2013-14 is erroneous and both the orders are required to be set aside.
16. However, it is made clear that quashing of the impugned orders passed by respondent Nos.1 and 2 is subject to the result of the suit in O.S. No.825/2011 filed by fourth respondent herein, his mother and two sisters for reliefs of partition, separate possession of their 4/5th share in respect of the land measuring 01 Acre 12 guntas in Sy. No.266 and annulment of sale deeds mentioned therein before the Court of Prl. City Civil and Sessions Judge / Additional City Civil and Sessions Judge.
17. With the aforesaid observations, these writ petitions are allowed by quashing the order dated 28.11.2017 (Annexure ‘K’ to the petitions) passed by the first respondent – Deputy Commissioner, Bengaluru Urban District, Bengaluru, in Revision Petition No.141/2013-14. Consequently, the order dated 24.05.2013 (Annexure ‘J’ to the petitions) passed by the second respondent - Assistant Commissioner, Bengaluru North sub-division, Bengaluru, in appeal No.R.A(B.E)173/2011-12 stands quashed.
18. Learned Additional Government Advocate is directed to file his memo of appearance within two weeks from today.
Sd/- JUDGE sma