IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF MARCH 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION NOs.19312-19313/2012(KLR-RR\SUR) BETWEEN SRI BOJEGOWDA AGED ABOUT 57 YEARS, S/O LATE KARIGOWDA, MAJOR, R/O SINDHUGHATTA MAIN ROAD, BOMMANAYAKANAHALLI GATE, FARM HOUSE, MENSA POST, KASABA HOBLI, K.R.PET TALUK, MANDYA DISTRICT. ... PETITIONER (BY SRI VENKATESH R BHAGAT, ADVOCATE) AND 1. THE DEPUTY COMMISSIONER MANDYA DISTRICT, MANDYA.
2. THE ASSISTANT COMMISSIONER PANDAVAPURA TALUK, MANDYA DISTRICT.
3. THE THASILDAR K.R.PET TALUK, MANDYA DISTRICT.
4. SRI V B MAHADEV AGED ABOUT 43 YEARS S/O LATE BOREGOWDA, MAJOR, VALAGERE MENSA VILLAGE, KASBA HOBLI, K.R.PET TALUK, MANDYA DISTRICT.
5. SRI K G SYEDSIRAJ AGED ABOUT 45 YEARS S/O LATE SYED ABDUL GAFOOR, MAJOR, R/A. OLD VIJAYA BANK ROAD, KASABA HOBLI, K R PET TOWN, MANDYA DISTRICT. ... RESPONDENTS (BY SRI MAHANTESH, ADDITIONAL GOVERNMENT ADVOCATE FOR RESPONDENT NOs.1 TO 3 SRI C.K.SRIDHAR, ADVOCATE FOR R4 RESPONDENT No.5-SERVED) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS IN RESPECT OF IMPUGNED ORDERS DATED 30.01.2012 PASSED BY THE 1ST RESPONDENT IN APPEAL [LAND SURVEY] 16/2010 & APPEAL [LAND SURVEY] 17/10 ALLOWING THE APPEALS FILED UNDER SECTION 56 OF THE KARNATAKA LAND REVENUE ACT FILED BY RESPONDENT NOs.4 AND 5 VIDE ANNEXURES-A & B RESPECTIVELY.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner herein has sought for quashing of two orders of even date i.e., 30.01.2012 passed by respondent No.1 – Deputy Commissioner, Mandya District, Mandya, in case Nos. Appeal (land survey) 16/2010 and Appeal (land survey) 17/2010 vide Annexures ‘A’ and ‘B’ to the petitions respectively. He has also sought for direction to respondent No.1 to proceed with appeal in R.A. No.23/2011 along with the aforesaid cases.
2. It is the case of the petitioner that he is the grantee of lands bearing Sy. Nos.30/1 and 35/2 measuring 0.29 guntas and 0.24 guntas respectively, situate at B. Kodihalli, kasaba hobli, K.R. pet Taluk, Mandya District. However, the subject matter of these petitions is land measuring 24 guntas in Sy. No.35/2, which is granted in favour of the petitioner vide order dated 21.07.1994 passed by the Committee for regularization of unauthorized occupation of lands (for short, ‘the Committee’) in proceedings No.LND/CR/773/91-92. It is stated that pursuant to the said grant, khata of the said land was transferred to his name and he has paid land revenue to the Government.
3. According to the petitioner, originally Sy. No.35 measured more than 06 Acres in which certain extent of land was granted in favour of one Sidda Shetty @ Swamy Shetty in the year 1976-77. The grantee sold the land granted to him in favour of Devegowda / Devarajegowda under registered sale deed dated 03.07.1985. After the death of Devegowda, his legal heirs i.e., his wife, Smt. Sarojamma and her minor children sold the said land in favour of respondent No.4 herein – Sri V.B. Mahadev under registered sale deed dated 17.12.1999. The petitioner alleged that respondent Nos.4 and 5 without any manner of right, title or interest in respect of the land in question tried to interfere with his possession of the same.
4. The records would indicate that respondent No.4 herein, Sri V. B. Mahadev / V.B. Mahadevu claimed that he is the owner of 01 Acre land in Sy. No.35/D block situate at the said B. Kodihalli village. He preferred an appeal in R.A. No.13/05-06 before the second respondent, Assistant Commissioner, Pandavapura sub-division, impugning the order of grant made in favour of the petitioner herein.
5. In the proceedings in R.A. No.13/05-06, the Assistant Commissioner has observed that as per the survey sketch, the land measuring 24 guntas in Sy. No.35 (35/2), which was granted in favour of the first respondent - Bhojegowda by the Committee vide order dated 21.07.1994 overlapped with the land, which was originally granted in favour of Sidda Shetty @ Swamy Shetty and the records indicated that the land in question was initially granted in favour of the said Sidda Shetty @ Swamy Shetty, the predecessor-in-title of the appellant – Sri V.B. Mahadevu, in the year 1975-76. The Assistant Commissioner has noted that the appellant (respondent No.4 herein) had filed the original suit in O.S. No.166/2001 against his vendors, namely, Smt.Sarojamma (widow of Devegowda / Devarajegowda) and her minor children and Bhojegowda (petitioner herein) for permanent injunction before the Court of Civil Judge (Jr. Dn.), Krishnarajapete, and the same came to be decreed on 03.12.2007. The said judgment was confirmed in R.A. No.1/2008 preferred by the first respondent - Bhojegowda before the Court of Civil Judge (Sr. Dn.), Krishnaraja Pet, vide judgment dated 13.10.2008 / 25.10.2008. In the light of the concurrent finding rendered by the Courts below in favour of the appellant in respect of the land in question and having regard to the fact that the appellant had purchased the said land from Smt. Sarojamma, widow of Devegowda / Devarajegowda, who in turn had purchased the same from the original grantee, Sidda Shetty, Assistant Commissioner held that the appellant was entitled for the relief sought in the appeal. Accordingly, the Assistant Commissioner, by his order dated 21.06.2011 (Annexure ‘C’ to the petitions), allowed the appeal in R.A. No.13/05-06 by setting aside the order of grant dated 21.07.1994 passed by the Committee in proceedings No.LND.CR.773/91-92.
6. When the matter stood thus, Tahasildar, Krishanraja Pet, ordered for conducting durasthi of the land measuring 24 guntas in Sy. No.35/2, which was granted in favour of the petitioner herein, vide order dated 30.08.2002 in proceedings Nos.TQ.LRP.35/2001-02 and ADLR.LRP No.46/01-
02. Being aggrieved by the same, respondent No.4 herein – Sri V.B. Mahadev claiming to be the owner of land measuring 01 Acre in Sy. No.35/D block No.1 situate at B. Kodihalli village, kasaba hobli, K.R. Pet Taluk and respondent No.5 herein – Sri K.G. Syedsiraj claiming to be the owner of land measuring 04 acres 30 guntas in Sy. No.58/2 situate at Areboppanahalli, kasaba hobli, K.R. Pet Taluk, preferred separate revision petitions under Section 56 of the Karnataka Land Revenue Act, 1964, before the first respondent - Deputy Commissioner. The said petitions were numbered as appeal (land survey):16/2010 and appeal (land survey):17/2010.
7. The first respondent - Deputy Commissioner by separate orders dated 30.01.2012 (Annexures ‘A’ and ‘B’ to the petitions) passed in appeal (land survey) 16/2010 and appeal (land survey) 17/2010, has allowed the said revision petitions by cancelling durasthi done in respect of the land measuring 24 guntas in Sy. No.35/2 pursuant to the order dated 30.08.2002 passed by Tahasildar in proceedings Nos.TQLRP.35/01-02 and ADLR.LRP.46/01-02. The said orders are under challenge in these petitions.
8. Heard the learned counsel for the petitioner, learned Additional Government Advocate for respondent Nos.1 to 3 and learned counsel for the contesting respondent No.4.
Respondent No.5 though served with notice, has remained unrepresented. Perused the material on record. It is noted that on 05.12.2012, coordinate Bench of this Court, had directed respondent Nos.4 and 5 herein not to alienate the property in question, until further orders. It has come on record that the petitioner herein has filed O.S. No.158/2008 against respondent No.4 herein before the Court of Civil Judge (Jr. Dn.), Krishnaraja pet and the said suit is pending consideration before the trial Court.
9. It is seen that by the impugned orders, the phody /durasthi work done in respect of 24 guntas of land in Sy. No.35 (35/2), which was granted in favour of the petitioner herein – Bhojegowda vide order dated 21.07.1994 passed by the Committee, has been cancelled by the second respondent - Assistant Commissioner by his order dated 21.06.2011 vide Annexure ‘C’ to the petitions passed in R.A. No.13/05-06 10. However, the said order of Assistant Commissioner is the subject matter of challenge in appeal in R.A. No.23/2011 preferred under Section 50 of the Karnataka Land Revenue Act, 1964, by the petitioner before the first respondent - Deputy Commissioner. In the said appeal, respondent No.4 herein – Sri V.B. Mahadev / Sri V.B. Mahadevu is arrayed as respondent No.1.
11. The grievance of the petitioner is that even before the said appeal in R.A. No.23/2011 is disposed of by the first respondent – Deputy Commissioner, the impugned orders are passed by him in cancelling the phodi / durasthi done in respect of 24 guntas of land in Sy. No.35/2 in his name pursuant to the order of Tahasildar dated 30.08.2002.
12. In that view of the matter, the correctness or otherwise of the impugned orders passed by the first respondent – Deputy Commissioner cannot be decided in these petitions until the validity of the order of grant dated 21.07.1994 passed by the Committee in favour of the petitioner herein in proceedings No.LND:CR:773/91-92 is decided by the first respondent in appeal in R.A. No.23/2011, pending before him.
13. Accordingly, these Writ Petitions are disposed of with direction to respondent No.1 – Deputy Commissioner, Mandya District, Mandya, to dispose of the appeal in R.A. No.23/2011 within 90 days from the date of receipt of a copy of this order. It is open for the petitioner herein to initiate appropriate proceedings before the competent authority for restoration of phodi in respect of the land measuring 24 guntas in Sy. No.35/2, which shall be decided in accordance with the merits of the case and in accordance with law including the provisions of the Karnataka Land Revenue Act, 1964.
14. Learned Additional Government Advocate is directed to file memo of appearance within two weeks from today.
Sd/- JUDGE sma