IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION No.18001 of 2011 (KLR-RR/SUR) BETWEEN:
SRI M.D.VENKATESHGOWDA S/O DEVEGOWDA AGED ABOUT 48 YEARS, AGRICULTURIST R/O MAVINAHALLI VILALGE, CHICKMAGALUR TALUK AND DISTRICT. ...PETITIONER (BY SRI G.S.PATIL, ADVOCATE) AND:
1. THE STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY DEPARTMENT OF REVENUE Dr.B.R.AMBEDKAR VEEDHI VIDHANA SOUDHA, BENGALURU – 01.
2. THE DEPUTY COMMISSIONER CHICKMAGALUR DISTRICT CHICKMAGALUR.
3. THE ASSISTANT COMMISSIONER CHICKMAGALUR TALUK AND DISTRICT CHICKMAGALUR.
4. THE TAHSILDAR, CHICKMAGALUR TALUK CHICKMAGALUR.
5. THE ASSISTANT DIRECTOR OF LAND RECORDS, CHICKMAGALUR TALUK CHICKMAGALUR.
6. SRI K.K.RAMACHANDRA S/O K KRISHNA BHAT KUDUVALLI VILLAGE KUDUVALLI POST CHICKMAGALUR TALUK AND DSITRICT.
7. SRI BILIGOWDA SINCE DECEASED BY HIS LRS (a) S.B.CHOWDEGOWDA S/O LATE BILIGOWDA AGED ABOUT 50 YEARS TEACHER, HPS KUNNALU, KUNNALU VILLAGE LAKKAMANAHALLY (POST) VIA - UDEBORANAHALLY CHICKMAGALUR TALUK AND DISTRICT.
(b) S.B.NIRVANGOWDA S/O LATE BILIGOWDA AGED ABOUT 48 YEARS TEACHER, HPS., BAYAGADEHALLI VILLAGE HIRE KOLALE (POST) CHICKMAGALUR TALUK AND DISTRICT.
(c) S B HEGDEGOWDA S/O LATE BILIGOWDA AGED ABOUT 45 YEARS TEACHER, LPS., GADABANAHALLY VILLAGE HOSAHALLI PETE (POST) CHICKMAGALUR TALUK AND DISTRICT.
(d) S.B.BASAVEGOWDA S/O LATE BILIGOWDA AGED ABOUT 43 YEARS TEACHER, HPS., MUGUTHIHALLI VILLAGE, MUGUTHIHALLI (POST) CHICKMAGALUR TALUK AND DISTRICT.
8. SRI VEERARAJA S/O LATE RANGEGOWDA AGED ABOUT 40 YEARS R/AT KELAGURU (AT POST) CHICKMAGALUR TALUK, AND DISTRICT. ...RESPONDENTS {BY SRI T.S.MAHANTESH, AGA FOR R1 TO R5; R6 & R8 ARE SERVED BUT UNREPRESENTED;
SRI ASHWIN S.HALADY, ADVOCATE FOR R7(a to d)} THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 29.03.2001 PASSED BY THE SECOND RESPONDENT IN CASE NO.M3 RRT 222/2000-01 VIDE ANNEXURE-E AND THE ORDER DATED 16.01.2010 PASSED BY THE HON'BLE KARNATAKA APPELLATE TRIBUNAL, BENGALURU IN APPEAL NO.505/2002 VIDE ANNEXURE-G;
THIS WRIT PETITION COMING ON FOR FURTHER ARGUMENTS, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner herein is impugning the order dated 29.03.2001 passed by the second respondent, Deputy Commissioner, Chickmagaluru Taluk and District in Case No.M3 RRT 222/2000-01 vide Annexure – ‘E’ and also order dated 16.01.2010 passed by the Karnataka Appellate Tribunal, Bengaluru in Appeal No.505/2002 vide Annexure – ‘G’.
2. The brief facts leading to filing of this petition are as under:
Petitioner herein is claiming title to an extent of 2 acres 32 guntas in land bearing Sy.No.54/4 of Kuduvalli Village, Chickmagaluru Taluk and District. Admittedly, the first of the Sale Deed with reference to the aforesaid Sy.No.54/4 measuring 2 acres 32 guntas is one which is executed by K.R.Manjaiah son of Ramaswamy Puranik in favour of Khuddus Saheb s/o Hayath Sahab under registered sale deed dated 13.7.1967. Subsequently, Khuddus Saheb sold the said extent in favour of Smt.Jafferunnisa d/o Abdul Lathief under registered sale deed dated 5.6.1970. Thereafter, said Smt.Zafferunnisa along with her children has sold aforesaid extent of land to the petitioner under registered sale deed dated 6.2.1995. The flow of title as above is seen from two sale deeds which are at Annexures - A and B to the writ petition.
3. It is further seen that one Biligowda-7th respondent was the purchaser of 4 acres 15 guntas in Sy.No.54/3 of the very same village as could be seen from the Sale Deed executed in his favour on 06.10.1971. The aforesaid transaction in favour of 7th respondent is seen under Annexure-R1 which is filed by him along with his statement of objections. With this, what could be seen is that, though petitioner M.D.Venkateshgowda and 7th respondent – Biligowda claim that they have purchased 2 acres 32 guntas and 4 acres 15 guntas respectively and the said extent is also seen in RTCs issued in their favour, they were not in possession of the said extent of land.
4. It is in this background they made a representation to the Tahsildar, Chickmagaluru Taluk and District for conducting re-survey of Sy.No.54 of Kuduvalli Village, Chickmagaluru Taluk. It is based on the said representation, the Tahsildar has referred the matter to ADLR for conducting re-survey. On the basis of the report of the ADLR, the Deputy Commissioner, Chickmagaluru has passed the order impugned dated 29.03.2001 vide Annexure – ‘E’. The said order of the Commissioner was subject matter of challenge in K.A.T. in Appeal No.505/2002 filed by the petitioner herein. The said appeal was dismissed, accepting the order of the Deputy Commissioner, which is the subject matter of challenge in these proceedings. When this matter was taken up for consideration on 15.02.2019, this Court directed the Additional Government Advocate to secure the presence of Tahsildar along with original records of re-survey settlement of 1968. The same is produced before this Court with certain original orders which were passed in proceedings which was raised by one K.Seshadri Puranik in proceedings No.A7 OR 571/1961-62 dated 21.08.1964 on the file of the Special Deputy Commissioner for Abolition of Inams Mysuru Division, Mysuru, which reads as under:
“Subject : Claim application for registration of occupancy rights of Block Nos.88, 89, 98, 100, 102, 122, 168, 219, 311, 364 of Jodi Kuduvalli Village.
ORDER Jodi Kuduvalli Village situated in Chickmagaluru Taluk, Chickmagaluru District is an un-surveyed and un-settled village vested in Government under the Mysuru Personal and Miscellaneous Inams Abolition Act, 1954 ”
5. This clearly discloses that prior to the order passed by the Special Deputy Commissioner in the aforesaid proceedings on 21.08.1964, there were no survey numbers in Jodi Kuduvalli Village. The entire extent of the land in the said village was identified by block numbers. In addition to the aforesaid document, the Tahsildar also placed before this Court another document which is in Form No.2 under Mysuru Revision Settlement and referred to as Settlement Register. In the said Register, it is seen for the first time, in the year 1968, the entire extent of the land in the said village is surveyed and survey numbers and sub-survey numbers are given. When it comes to Sy.No.54, the said survey number is phoded into five portions as could be seen from Annexure-E, the order of Deputy Commissioner, Chickmagalur District, in proceedings No.M3 RRT 222/2000-01, dated 29.3.2001, produced in the writ petition and the original of which is produced by the Tahsildar.
6. In the said order, the first phody is shown to be measuring 2 acres 15 guntas (inclusive of 3 guntas kharab) and the same is in possession of K.K.Ramachandra and others; the second phody is shown as measuring 5 acres 22 guntas (inclusive of 4 guntas kharab), the possession of which is traced to Biligowda and others [though in the record the land belonging to Biligowda is shown as Sy.No.54/3, when actual survey was conducted by ADLR his possession is shown in Sy.No.54/2]; third phody is shown to be 4 acres 12 guntas (inclusive of 4 guntas kharab) and this extent is said to be in possession of Rangegowda; fourth phody is shown to be 1 acre 04 guntas (inclusive of 2 guntas kharab) and this portion is also said to be in possession of Rangegowda and fifth phody is shown to be 1 acre 17 guntas (inclusive of 2 guntas kharab) said to be in possession of M.D.Venkateshgowda [though the records would indicate that M.D.Venkateshgowda is owner of Sy.No.54/4, in survey his possession is seen in Sy.No.54/5].
7. In this background, the grievance of the petitioner is that the title which is flown from K.R.Manjaiah to Khuddus Saheb, thereafter to Smt.Jafferunnisa and subsequently in his favour under three different sale deeds where the actual extent which was in possession of original vendor K.R.Manjaiah is 2 acres 32 guntas which has flown to him under sale deed of the year 1995, wherein the land which was conveyed to him was shown as Sy.No.54/4. However, in the re-survey, his possession is traced to Sy.No.54/5 and the actual extent in said re-survey is shown as 1 acre 17 guntas as against 2 acres 32 guntas thereby indicating that an excess land of 1 acre 15 guntas which belongs to him is not in his possession.
8. In the meanwhile, the petitioner would bring to the notice of this Court that under the registered sale deed dated 6.10.1971 what was purchased by 7th respondent – Biligowda was only 4 acres 15 guntas and as against that now he is shown to be in possession of 5 acres 22 guntas, which indicates that he is in possession of 1 acres 7 guntas over and above the actual extent that was purchased by him. Further it is stated that, though in the sale deed of Biligowda – 7th respondent herein it is shown that the land conveyed to him is in Sy.No.54/3 he is in actual possession of Sy.No.54/2. Therefore, it is contended that the order of the Deputy Commissioner vide Annexure-E is required to be interfered with in so far as it pertains to the extent shown against the name of 7th respondent and petitioner in order to bring their possession in consonance with the land purchased by them under different sale deeds.
9. The petitioner would contend that to ensure that the extent of land which they have purchased by paying valuable consideration as on that date should be reserved to them in the total extent of Sy.No.54, which is subjected to re- survey by the ADLR of Chickmagalur. It is also contended by the petitioner that in the guise of re-survey, 7th respondent – Biligowda should not get unduly enriched by additional extent of land of 1 acre 7 guntas more than what he has purchased under registered sale deed of 1970 and in the bargain, the petitioner should not lose 1 acre 15 guntas which is the difference now shown as against the extent of land which is purchased by him being 2 acres 32 guntas and the actual extent of land which is now presently standing in the phode referred to as Sy.No.54/5 is 1 acre 17 guntas.
10. This Court also consider that there is in fact force in the argument put forth on behalf of the petitioner, inasmuch as the records would indicate that even prior to 1964 there were no survey numbers to the lands situated in Jodi Kuduvalli village of Chikmagalur Taluk as seen from the order dated 21.8.1964 in proceedings bearing No.A7 OR 571/61-62 on the file of Special Deputy Commissioner for Abolition of Inams Mysuru Division, Mysuru, referred in paragraph No.4 supra. That it is only after 1964 survey was conducted, at that time there appears to be mistake in identifying the extent of land shown as survey numbers with sub-survey numbers. In the bargain, it is seen that the land which was conveyed by K.R.Manajaih to various persons leading to the title resting with petitioner – Venkateshgowda being 2 acres 32 guntas in Sy.No.54/4 and not in Sy.No.54/5. Similarly, the extent of land measuring 4 acres 15 guntas which was sold in favour of 7th respondent – Biligowda by its erstwhile owner under registered sale deed of 1970 though it is with reference to Sy.No.54/3, 7th respondent appears to be in possession of land in Sy.No.54/2 and the excess land which is with him is 1 acre 7 guntas over and above the extent that was purchased by him, in other words, he is in possession of 5 acres 22 guntas as against 4 acres 15 guntas.
11. In that view of the matter, this Court would set aside the earlier order passed by the ADLR in fixing the boundary, remand the matter back to him to fix the boundary and extent as per the sale deeds which are executed in favour of the petitioner and 7th respondent in the year 1995 and 1970 respectively and to issue the survey sketch. Consequently, the order impugned at Annexure-E dated 29.3.2001 in proceedings bearing No.M3 RRT 222/2000-01 as well as 16.1.2010 passed by the KAT, Bengaluru, in Appeal No.505/2002 vide Annexure-G, are quashed insofar as it pertains to petitioner and 7th respondent herein are concerned.
12. Consequently, the ADLR and the concerned Revenue Officer shall ensure that re-survey is conducted and in the said re-survey the land which is purchased by the petitioner to an extent of 2 acres 32 guntas should be shown against the phode in which presently he is shown as in possession of 1 acre 17 guntas, which order is now set aside by this Court. At the same time, as against the phode which is assigned to 7th respondent – Biligowda, the extent of land that shall be shown is 4 acres 15 guntas instead of 5 acres 22 guntas as shown earlier. Admittedly, the said excess land is infact the land which was purchased by the petitioner and his predecessors from original owner – K.R.Manjaiah. Hence, the said excess land shall not be shown against the name of 7th respondent.
13. Now coming to possession of excess land which is shown to 7th respondent, in the event the said land is in possession of 7th respondent pursuant to order impugned, the petitioner is reserved liberty to approach the Civil Court to secure possession of said excess land shown against the phode of 7th respondent pursuant to earlier re-survey, where as against the name of 7th respondent – Biligowda the extent available to him is shown as 5 acres 22 guntas as against his title to the extent of 4 acres 15 guntas.
14. Accordingly, this writ petition is allowed with aforesaid observations and it is made clear that the ADLR and concerned Revenue Officer shall ensure that the corrections referred to above is carried out and this order should be implement both in letter and spirit within 90 days from the date of receipt of a copy of this order.
Sd/- JUDGE DH