IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF APRIL 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION No.6355/2016(KLR-RES) BETWEEN SRI H.A. PUTTALINGIAH S/O LATE ANKIAH AGED ABOUT 50 YEARS ARE RESIDING AT HOSAKERE VILLAGE AND POST KOPPA HOBLI, MADDUR TALUK-571 401 MANDYA DISTRICT ... PETITIONER (BY SRI LOURDU MARIYAPPA A, ADVOCATE) AND 1. STATE OF KARNATAKA DEPARTMENT OF REVENUE VIDHANA SOUDHA Dr.B.R.AMBEDKAR VEEDHI BANGALORE-560 001 REPRESENTS BY ITS SECRETARY 2. THE DEPUTY COMMISSIONER MANDYA DISTRICT MANDYA -571 401 3. THE ASSISTANT COMMISSIONER MANDYA SUB-DIVISION, MANDYA DISTRICT-571401 4. THE THASILDAR MADDUR TALUK MANDYA DISTRICT MANDYA -571 401 5. HOSALINGIAH S/O AANEGOWDA AGED ABOUT 48 YEARS 6. JAYARAMU S/O AANEGOWDA AGED ABOUT 38 YEARS BOTH RESPONDENT NOs.5 AND 6 ARE RESIDING AT HOSAKERE VILLAGE AND POST KOPPA HOBLI, MADDUR TALUK-571401 MANDYA DISTRICT ... RESPONDENTS (BY SRI BASAVAIAH, ADVOCATE FOR RESPONDENT NOs.5 AND 6, SRI T.S.MAHANTESH, ADDITIONAL GOVERNMENT ADVOCATE FOR RESPONDENT NOs.1 TO 4) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER PASSED BY THE 2ND RESPONDENT IN IMPUGNED ORDER DATED 23.11.2015 AT ANNEXURE-E IN R.A.No.19/2012 IN RESPECT OF THE SCHEDULE LAND BEARING SY.No.579 [OLD 111] MEASURING 0-30 GUNTAS OF LAND SITUATED AT HOSAKERE VILLAGE, KOPPA-III-REGION, MADDUR TALUK, MANDYA DISTRICT, TO DO THE FRESH FOR FRESH SURVEY / DURASTI AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner herein, who is respondent No.1 in proceedings No.Appeal(land survey):19/2012 on the file of the second respondent – Deputy Commissioner, Mandya District, Mandya, has come up in this Writ Petition impugning the order dated 23.11.2015 (Annexure ‘E’ to the petition). By the said order, Deputy Commissioner has allowed the revision petition filed by respondent Nos.5 and 6 herein by setting aside the durasthi work conducted by fourth respondent - Tahasildar, Maddur Taluk, with reference to land in Sy. No.111, which has been assigned new Sy. No.579, situate at Hosakere village, Koppa hobli, Maddur Taluk. Further, Deputy Commissioner has directed respondent No.4 – Tahasildar to conduct fresh durasti of the said land after identifying the persons in possession of the said land by taking into consideration the boundaries depicted in the revenue sketch available in the original grant records and after issuing notice to the grantee/s of the said land.
2. According to the petitioner, originally, land measuring to an extent of 30 guntas in Sy. No.579 (old Sy.No.111) was granted in favour of one Chikkegowda, son of Chikkakadegowda. Subsequently, the said Chikkegowda has sold the said land in favour of the petitioner’s father, Sri Ankiah, under registered sale deed dated 27.07.1974, pursuant to which, the khata of the said land was registered in the name of petitioner’s father. Thereafter, durasthi in respect of the said land was effected by Tahasildar on 16.09.2002 and it has been assigned new Sy. No.579.
3. Subsequently, respondent Nos.5 and 6 herein, who are brothers, filed the suit in O.S. No.316/2009 before the Court of Additional Civil Judge and JMFC., at Maddur, for the relief of permanent injunction and costs. The trial Court, by its judgment dated 29.09.2012, dismissed the suit of the plaintiffs. The said judgment of the trial Court was the subject matter of appeal in R.A. No.19/2012 preferred by respondent Nos.5 and 6 herein before the Court of Civil Judge (Sr. Dn.), Maddur, Mandya. The first appellate Court, by its judgment dated 25.10.2016, dismissed the said appeal with costs. As against the concurrent finding rendered by both the Courts below, unsuccessful plaintiffs in O.S. No.316/2009 have preferred Regular Second Appeal in R.S.A. No.2073/2016 before this Court.
4. The records would indicate that respondent No.6 herein, Sri Jayaramu, preferred an appeal in R.A. No.05/2010-
11 under Section 49 of the Karnataka Land Revenue Act, 1964, (hereinafter referred to as ‘the Act’) before the Assistant Commissioner, Mandya sub-division, Mandya, contending that Sri Chikkegowda, the father of respondent Nos.1 to 3 therein, who was granted land measuring to an extent of 30 guntas in Sy. No.111 vide order dated 21.01.1964 had violated the conditions of grant inasmuch as he had sold the said land in favour of Sri Ankaiah, the father of respondent Nos.4 to 7 therein within the prohibited period of non-alienation.
5. The Assistant Commissioner in his order dated 12.12.2011 (Annexure ‘D’ to the petition), has observed that Sri Chikkegowda was granted 30 guntas of land in Sy. No.111 by virtue of the order of Assistant Commissioner, Mandya, bearing No.DSI.02.DR.76/63-64 and subsequently, Tahasildar, Maddur Taluk, had issued saguvali chit bearing No.75/70-71 in August 1970 in favour of Sri Chikkegowda, inter alia imposing the condition that the said land should not be alienated by the grantee for a period of ten years. However, Sri Chikkegowda sold the said land in favour of Sri Ankaiah, the father of respondent Nos.4 to 7 therein, under registered sale deed dated 27.07.1974 i.e., within the prohibited period of non- alienation. The Assistant Commissioner has referred to proceedings in M.A.No.5/2010 initiated by the appellant – Sri Jayaramu (respondent No.6 herein) against respondent No.6 therein – Sri H.A. Puttalingaiah (petitioner herein) and which was allowed by judgment dated 22.01.2011. It is stated that respondent No.6 therein – Sri H.A. Puttalingaiah had preferred writ petition in W.P. No.10930/2011 before this Court, wherein coordinate Bench of this Court, by its order dated 07.09.2011, disposed of the said writ petition with a direction to the trial Court to dispose of the suit in O.S. No.316/2009 within four months from the date of the said order and in the meanwhile, the parties were directed to maintain status quo. Further, the Assistant Commissioner relying upon the decision of this Court in the matter of Sri Siddegowda v. State of Karnataka (1974(5) Kar.L.J.253) has held that the challenge made by the appellant – Sri Jayaramu to sale of the land in question by the grantee was highly belated and the grant made in favour of Sri Chikkegowda could not be set aside at that stage and accordingly, dismissed the said appeal.
6. It is stated that the said order of Assistant Commissioner is the subject matter of challenge in appeal in R.A. No.12/2012 preferred by respondent No.6 herein under Section 50 of the Act before the Deputy Commissioner.
7. The material on record discloses that respondent Nos.5 and 6 herein preferred revision petition, which was numbered as appeal (land survey):19/2012, under Section 56 of the Act before the Deputy Commissioner, Mandya District, seeking to set aside the order of Tahasildar dated 16.09.2002 effecting durasthi with reference to the land measuring to an extent of 30 guntas in Sy. No.111, which was assigned new Sy. No.579. The Deputy Commissioner, by his order dated 23.11.2015 (Annexure ‘E’ to the petition), allowed the said Revision Petition by setting aside the order (16.09.2002) of Tahasildar effecting durasthi in respect of the said land. While doing so, Deputy Commissioner has directed Tahasildar to conduct fresh durasthi in respect of the said land after identifying the persons in possession and enjoyment of the same by taking into consideration the boundaries of the said land as per the revenue sketch available in the original grant records and after issuing notice to all the grantees of the said land. Being aggrieved by the same, the petitioner is before this Court.
8. Heard the learned counsel for the petitioner, learned Additional Government Advocate appearing for respondent Nos.1 to 4 and learned counsel appearing for respondent Nos.5 and 6. Perused the material on record. On going through the same, it is seen that at the time when petitioner’s predecessor-in-title, Sri Chikkegowda, had made application in Form No.50 seeking regularization of his unauthorized occupation in respect of the petition land, Sri Aanegowda, the father of respondent Nos.5 and 6 herein, who was owning the land in Sy. No.110 and unauthorizedly cultivating the land measuring to an extent of 35 guntas in Sy. No.111, had filed application in Form No.50 seeking regularization of his unauthorized occupation in respect of the latter land. Admittedly, the father of respondent Nos.5 and 6 claimed occupancy rights in respect of the same land before the competent authority, however, the said land was granted in favour of the petitioner’s predecessor-in-title, Sri Chikkegowda. While considering the application of Sri Chikkegowda, the application of the father of respondent Nos.5 and 6 seeking occupancy rights in respect of the same land was rejected prior to 1970.
9. It is seen that the durasthi work with reference to 30 guntas of land in Sy. No.111 was conducted by Tahasildar in the year 2002 and same was challenged by respondent Nos.5 and 6 herein before the Deputy Commissioner in the year 2012. Therefore, in the fact situation, this Court find that the impugned order of the second respondent – Deputy Commissioner, Mandya District, in cancelling durasthi work conducted by Tahasildar on 16.09.2002 with reference to land measuring to an extent of 30 guntas in Sy. No.111 and assigning it new Sy. No.579 is erroneous and liable to be set aside.
10. Accordingly, this Writ Petition is allowed. The order dated 23.11.2015 vide Annexure ‘E’ to the petition passed by Deputy Commissioner, Mandya District, Mandya, in proceedings No.Appeal (land survey):19/2012 is hereby set aside. However, liberty is reserved to respondent Nos.5 and 6 herein to agitate their grievance in Regular Second Appeal No.2073/2016 filed by them before this Court impugning the judgment dated 25.10.2016 passed by learned Civil Judge (Sr. Dn.), Maddur, Mandya in R.A. No.19/2012 confirming the judgment and decree dated 29.09.2016 passed by the trial Court in O.S. No.316/2009, wherein the suit of the plaintiffs was dismissed.
11. Learned Additional Government Advocate is directed to file memo of appearance within two weeks from today.
Sd/- JUDGE sma