IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE PRADEEP SINGH YERUR WRIT APPEAL NOS.2819 OF 2019 & 3071 OF 2019 C/W WRIT APPEAL NO.2822 OF 2019 (KLR–RR/SUR) IN W.A.NOS.2819 OF 2019 & 3071 OF 2019 BETWEEN:
SRI ANJINAPPA S/O SRI MARISWAMAPPA SINCE DEAD BY LRS.
1. SMT. NARAYANAMMA W/O LATE ANJINAPPA AGED ABOUT 72 YEARS 2. SRI MUNISHAMAPPA S/O LATE ANJINAPPA AGED ABOUT 56 YEARS 3. SRI NAGESH S/O LATE ANJINAPPA AGED ABOUT 54 YEARS 4. SRI SHIVAKUMAR S/O LATE ANJINAPPA AGED ABOUT 52 YEARS 5. SRI LOKESH S/O LATE ANJINAPPA AGED ABOUT 50 YEARS 6. SRI SRINIVAS S/O LATE ANJINAPPA AGED ABOUT 47 YEARS 7. SRI MANJUNATH S/O LATE ANJINAPPA AGED ABOUT 42 YEARS 8. SRI VISHWANATH S/O LATE ANJINAPPA AGED ABOUT 40 YEARS 9. SRI RAGHAVENDRA S/O LATE ANJINAPPA AGED ABOUT 37 YEARS APPELLANTS 1 TO 9 ARE RESIDING AT NO.26 KOTHANUR VILLAGE AND POST HENNUR MAIN ROAD BANGALORE – 560 077 10. SMT. DODDATHAYAMMA AGED ABOUT 72 YEARS W/O T.M.SRINIVAS RESIDING AT THINDLU VILLAGE VIDYARANYAPURA POST BANGALORE – 560 097 (BY SHRI T.SESHAGIRI RAO, ADVOCATE) AND:
1. THE SPECIAL DEPUTY COMMISSIONER BANGALORE DISTRICT BANGALORE – 560 001 2. THE ASSISTANT COMMISSIONER BANGALORE NORTH SUB – DIVISION BANGALORE – 560 001 3. THE SPECIAL TAHSILDAR BANGALORE EAST TALUK KRISHNARAJAPURAM BANGALORE – 560 016 VENKATAMMA SINCE DEAD BY LRS.
…APPELLANTS 4. SRI K.T.RAMACHANDRA AGED ABOUT 55 YEARS S/O LATE THIMMAIAH 5. SRI K.T.VENKATESH AGED ABOUT 51 YEARS S/O LATE THIMMAIAH 6. SRI K.T.GANESH GOWDA AGED ABOUT 57 YEARS S/O LATE THIMMAIAH 7. SMT. VASANTHA AGED ABOUT 41 YEARS W/O LATE SADASHIVA RESPONDENTS 4 TO 7 ARE RESIDING AT KOTHANUR VILLAGE AND POST HENNUR MAIN ROAD BANGALORE – 560 077 ... RESPONDENTS (BY SHRI VIKRAM HUILGOL, HCGP FOR R1 TO R3; SHRI D.S.RAMACHANDRA REDDY, ADVOCATE FOR C/R4 – R7) ---
THESE WRIT APPEALS ARE FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO DIRECT THE OFFICE TO PUT-UP THE RECORDS IN WP NOS.31452/2009 AND 31530/2009 AND SET ASIDE THE IMPUGNED ORDER DATED 01.07.2019 PASSED BY THE LEARNED SINGLE JUDGE IN WP NOS.31452/2009 AND 31530/2009 WHICH WAS FILED BY THE APPELLANTS HEREIN AND ETC.
IN W.A.NO.2822/2019 BETWEEN:
SRI VENKATASWAMY S/O MUNIVENKATAPPA AGED ABOUT 67 YEARS RESIDING AT KOTHANUR VILLAGE & POST HENNUR MAIN ROAD BANGALORE – 560 077 (BY SHRI T.SESHAGIRI RAO, ADVOCATE) ... APPELLANT AND:
1. THE SPECIAL DEPUTY COMMISSIONER BANGALORE DISTRICT BANGALORE – 560 001 2. THE ASSISTANT COMISSIONER BANGALORE NORTH SUB-DIVISION BANGALORE – 560 001 3. THE SPECIAL TAHSILDAR BANGALORE EAST TALUK KRISHNARAJAPURAM BANGALORE – 560 016 4. SRI K.T.RAMACHANDRA S/O LATE THIMMAIAH AGED ABOUT 55 YEARS 5. SRI K.T.VENKATESH S/O LATE THIMMAIAH AGED ABOUT 51 YEARS 6. SRI K.T.GANESH GOWDA S/O LATE THIMMAIAH AGED ABOUT 57 YEARS 7. SMT. VASANTHA W/O LATE SADASHIVA AGED ABOUT 41 YEARS RESPONDENTS 4 TO 7 ARE RESIDING AT KOTHANUR VILLAGE AND POST HENNUR MAIN ROAD BANGALORE – 560 077 ... RESPONDENTS (BY SHRI VIKRAM HUILGOL, HCGP FOR R1 TO R3; SHRI D.S.RAMACHANDRA REDDY, ADVOCATE FOR C/R4-R7) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO DIRECT THE OFFICE TO PUT UP THE RECORDS IN WP NO.31451/2009 AND TO SET ASIDE THE ORDER DATED 14.06.2019 PASSED BY THE LEARNED SINGLE JUDGE IN W.P.NO.31451/2009 FILED BY THE APPELLANT HEREIN AND ETC.
THESE APPEALS COMING ON FOR PRELIMINARY HEARING THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT I.A.No.1/2019 in W.A.No.2822/2019 is filed seeking condonation of delay of 11 days in filing the appeal. Sufficient cause is made out to condone the delay. Therefore, delay is condoned. The application for condonation of delay is allowed.
2. We have heard the learned counsel appearing for the appellants, the learned counsel appearing for the fourth to seventh respondents and the learned Government Pleader for the first to third respondents.
3. As far as W.A.Nos.2819/2019 and 3071/2019 are concerned, the challenge in the writ petitions filed by the appellants before the learned Single Judge was to an order passed by the Assistant Commissioner ordering mutation entries to be made in respect of the schedule land in favour of the fourth to seventh respondents. Even in W.A.No.2822/2019, the challenge is again to an order directing mutation entries to be made.
4. The learned Single Judge has dismissed the writ petitions filed by the appellants.
5. The submission of the learned counsel appearing for the appellants is that the Assistant Commissioner had no jurisdiction to go into the issue of title and the Assistant Commissioner should have relegated the fourth to seventh respondents to filing of a civil suit. In W.A.No.2822/2019, he submitted that there is a decree of declaration passed in favour of the appellant declaring him to be the owner of the land by adverse possession. He submitted that even in the said case, the Assistant Commissioner had committed a serious error and he should have driven the contesting respondents to a Civil Court.
6. The learned counsel appearing for the fourth to seventh respondents in W.A.No.2822/2019 pointed out that reliance is placed on a decree to which the fourth to seventh respondents are not parties and the decree is declaring the appellant to be the owner by adverse possession. He, therefore, submitted that no interference is called for.
7. Both the cases arose out of the mutation entry proceedings. The challenge before the learned Single Judge was to the orders of the Assistant Commissioner ordering mutation entries to be made in the name of the contesting respondents.
8. It is well settled that the mutation entries under the Karnataka Land Revenue Act, 1964 (for short ‘the said Act of 1964’) are made only for fiscal purposes and the mutation entries do not confer any title in whose favour the same are ordered to be made. Moreover, the mutation entries are always subject to a civil suit and in fact, the proviso to Section 135 of the said Act of 1964 lays down that notwithstanding an order making a mutation entry, a decree passed by the Civil Court will have overriding effect and in case a declaration of ownership is granted, the record of rights is required to be amended as per the decree.
9. In both the cases, the learned Single Judge appears to have allowed the parties to canvass the issue of title. In W.A.No.2822/2019, the appellant relied upon a decree against a stranger to which the fourth to seventh respondents are not parties. It is not the case that they were claiming through the defendant in the said suit.
10. In our view, the learned Single Judge ought not to have entertained the writ petitions at all and ought to have relegated the parties to the Civil Court for establishing their title. However, the learned Single Judge seems to have gone into the merits of the issue of title. As far as the decree relied upon in W.A.No.2822/2019 is concerned, we have seen the decree. Fourth to seventh respondents were not made as parties to the said decree. Therefore, though the impugned orders cannot be sustained, by setting aside the impugned orders, the parties will have to be relegated to the remedy of filing a declaratory suit.
11. Whenever an order directing mutation entries is made by the authorities under the said Act of 1964, as the mutation entries do not confer title or affect title in any manner, a writ court should be very slow in entertaining such petitions under Article 226 of the Constitution of India as the aggrieved parties can always approach the Civil Court and establish their title.
12. Accordingly, we pass the following order:
(i) The order dated 1st July 2019 which is impugned in W.A.Nos.2819/2019 and 3071/2019 is hereby set aside and the writ petitions filed by the appellants are disposed of by observing that the mutation entries which will be made on the basis of the impugned order of the Assistant Commissioner will be always subject to the decree which may be passed in the suit filed by the appellants;
(ii) The order dated 14th June 2019 which is impugned in W.A.No.2822/2019 is hereby quashed and set aside and the writ petition filed by the appellant is disposed of by granting liberty to the appellant to file a civil suit.
(iii) We make it clear that we have made no adjudication on the issue of title and all issues are left open to be decided by the Civil Court.
(iv) The appeals are partly allowed in the above terms with no order as to costs.
The pending applications do not survive for consideration and they stand disposed of.
Sd/- CHIEF JUSTICE Sd/- JUDGE hkh.