IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH 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 NO.2480 OF 2019 (KLR-RES) BETWEEN:
SRI MAHESH GURJAPALLI S/O. G.B.S. CHARI AGED ABOUT 49 YEARS R/AT NOS.40 & 41, YASHASHRI KRUPA 6TH CROSS, BHUVANESHWARI NAGAR DASARAHALLI, NH-7, HEBBAL BENGALURU – 560 024 REP. BY HIS GPA HOLDER SRI R.ASHWATHAPPA,S/O. RAMAIAH AGED ABOUT 52 YEARS R/AT DODDAJALA VILLAGE, JALA HOBLI BENGALURU NORTH TALUK …APPELLANT (BY SRI S.M. CHANDRA SHEKAR FOR SRI P.M. NARAYANA SWAMY, ADVOCATES) AND:
1. THE DEPUTY COMMISSIONER BANGALORE URBAN DISTRICT KEMPEGOWDA ROAD BENGALURU – 560 001 2. THE ASSISTANT COMMISSIONER BANGALORE NORTH SUB DIVISION KANDAYA BHAVAN, K.G. ROAD BENGALURU – 560 001 3. THE TAHASILDAR BANGALORE NORTH (ADDL.) TALUK MINI VIDHANASOUDHA, YELAHANKA BENGALURU – 560 064 4. THE REVENUE INSPECTOR JALA CIRCLE, JALA HOBLI BANGALORE NORTH (ADDL.) TALUK BENGALURU – 562 157 5. THE VILLAGE ACCOUNTANT JALA CIRCLE, JALA HOBLI BANGALORE NORTH (ADDL.) TALUK BENGALURU – 562 157 6. SMT. S.B. RAJINI W/O. V. SHIVAKUMAR AGED ABOUT 64 YEARS R/AT NO.15/A, 4TH MAIN 10TH CROSS, 1ST STAGE R.K. LAYOUT, PADMANABHANAGAR BENGALURU – 560 017 REP. BY HER GPA HOLDER SRI V. SHIVAKUMAR S/O. LATE VEERABHADRAPPA AGED ABOUT 68 YEARS 10TH CROSS, 1ST STAGE R.K. LAYOUT, PADMANABHANAGAR BENGALURU – 560 017 ...RESPONDENTS (BY SRI VIKRAM HUILGOL, HCGP FOR R1 TO R5;
SRI R.B. SADASIVAPPA, ADVOCATE FOR R6) *** THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE ORDER DATED 29.05.2019 IN W.P.NO.1882/2019 (KLR-RES), PASSED BY THE LEARNED SINGLE JUDGE OF THIS HON’BLE COURT.
THIS APPEAL COMING ON FOR HEARING THIS DAY, CHIEF JUSTICE, DELIVERED THE FOLLOWING:
JUDGEMENT
Heard the learned Senior counsel appearing for the appellants, the learned High Court Government Pleader appearing for the first to fifth respondents and the learned counsel for the sixth respondent.
2. Appeal has already been admitted for final hearing. Hence, taken up for hearing.
3. An order was made by the first respondent in a revision petition filed under Section 136 of the Karnataka Land Revenue Act, 1964 (for short ‘the Act of 1964’) of remand to the second respondent – Assistant Commissioner. On remand, the second respondent passed an order on 14th May 2010 directing to enter the name of the State Government in all the revenue records in respect of the land in Sy. No. 31 measuring 4 Acres 2 guntas of Gadenahalli Village, Jala Hobli, Bengaluru North Taluk.
4. The present appellant filed a revision petition before the first respondent challenging the order dated 14th May 2010. Even the sixth respondent also filed a revision petition against the same order of the second respondent. An application was made by the sixth respondent in the revision petition filed by the present appellant praying for stay of the further proceedings of the revision petition filed by the appellant. By an order dated 26th February 2018, the application for stay was rejected on two grounds. The first ground is that there was no injunction order prohibiting the first respondent from hearing the revision petition and the second ground was that the appellant had already submitted the arguments in the appeal. The said order was challenged by the sixth respondent before the learned Single Judge.
5. By the impugned order dated 29th May 2019, the learned Single Judge quashed the order dated 26th June 2018 and stayed the proceedings of the revision petition fled by the appellants till disposal of the pending Civil Suit and also directed that no proceedings with reference to revenue entries in respect of the said land, which is the subject matter of revision petition, shall be entertain by any authority. Both the parties were granted liberty to approach the Civil Court. It is this order, which is the subject matter of challenge in this appeal.
6. Before we come to the submissions made across the Bar, a brief reference to the factual details will be necessary. According to the case of the sixth respondent, she is the daughter of one Smt.S.Nagaranthamma. According to the case of the sixth respondent, her mother purchased an extent of 25 Acres of land in Sy. Nos.31 and 32 of Gadenahalli Village, Jala Hobli, Bengaluru North Taluk. The grievance of the sixth respondent was that by creating fraudulent and forged documents by way of the sale deed, the land was transferred by one Arasegowda, which was already sold by him to the mother of the sixth respondent. Therefore, the sixth respondent filed a Civil Suit being OS No. 1134 of 2006 on the file of the learned Civil Judge (Sr. Dn.), Bengaluru Rural District.
7. In paragraphs 4 and 5 of the impugned order, the learned Single Judge held thus:
“4. Heard the learned counsel for the petitioner, contesting respondent, who is revision petitioner before the 1st respondent in RP No.277/2010-11 as well as learned Additional Government Advocate. Perused the material available on record. On going through the same, it is clearly seen that the original owner Smt.Nagarathnamma, mother of the petitioner, who is said to have purchased 25 acres of land in Sy.Nos.31 and 32 of Gadenahalli village, Jala Hobli, Bengaluru North Taluk, has approached the Civil Court challenging various sale deeds with reference to the property belonging to her which are executed by creating fake and forged documents and also revenue entries effected pursuant thereto. When the matter stood thus, the petition filed before 1st respondent in RP No.277/2010-11 cannot be allowed to continue inasmuch as any decision that is rendered therein would be neither final nor conclusive, in fact, the same would only deal with revenue entries but not with reference to title of the property. Further, when revenue entries are said to be pursuant to fake and forged documents, any proceedings to be precipitated with reference to said entries until the dispute to title is finalized cannot be entertained.
5. In that view of the matter, the present writ petition is allowed. The order dated 26.6.2018 passed in RP No.277/2010-11 on the file of Deputy Commissioner, Bengaluru Urban District, is hereby quashed. While doing so, it is made clear that said proceedings shall be stayed until the original suit in OS No.1134/2006 pending on the file of Civil Judge (Sr.Dn.), Bengaluru Rural District, reaches its logical end in declaring title to the property in question and till then any proceedings with reference to revenue entries in respect of said land cannot be entertained by any authority, much less the 1st respondent – Deputy Commissioner. Liberty is also reserved to both petitioner as well as respondents to approach the Civil Court seeking indulgence of the said Court to dispose of the original suit pending before it at the earliest, as its convenience.”
8. The submission of the learned Senior counsel appearing for the appellant is that the learned Single Judge could not have stayed the proceedings of the revision petition, inasmuch as, challenge in the revision petition was to an order made by the second respondent - Assistant Commissioner for making a mutation in the name of the State Government in respect of the subject land and even the sixth respondent had filed a separate revision petition against the same order of the Assistant Commissioner dated 14th May 2010. He pointed out the various decisions holding that the proceedings relating to the mutation entry cannot be stayed on the ground that a civil suit is pending.
9. The learned counsel appearing for the sixth respondent supported the impugned order. He submitted that even the revision petition filed by the sixth respondent could also be stayed. He relied on the several decisions of this Court in support of the contentions that once a Civil suit is pending in relation to the property, the proceedings under the said Act of 1964 relating to the mutation entries, cannot be proceeded further as in view of the proviso to Section 135 of the Act of 1964, a decree of the Civil Court always prevails.
10. The learned High Court Government Pleader representing the other respondents submitted that by the impugned order, the Revisional Authority directed to enter the name of the State Government in the revenue records and the State Government is not a party to the revision petition filed by the sixth respondent.
11. We have considered the submissions.
12. Section 127 of Chapter XI of the Act of 1964 lays down that the Record of Rights have to be prepared in a prescribed manner. It provides for the particulars which are required to be entered in the Record of Rights, such as, the name of the holders, occupants, owners, mortgagees, landlords or tenants, etc. The Record of Rights once completed in respect of any village, are required to be notified in the Official Gazette. Thereafter, if there is any acquisition of the rights in respect of the property, such acquisition is required to be reported within the time specified from the date of acquisition. Whenever, such acquisition is reported, Section 129 of the Act of 1964 provides that the Prescribed Officer shall enter in the Register of Mutations every report made about the acquisition. Such entries made under sub-Section (1) of Section 129 of the Act of 1964, are required to be published on Chavadi. A written intimation of such entry is required to be given to all persons appearing from Record of Rights or Register of Mutations to be interested in mutation in accordance with sub-Section (2), so that the persons interested could file objections. If anybody files objections, the same are required to be registered in the Register of Disputed Cases and an enquiry has to be made into such objections. The orders passed disposing of the objections, are required to be recorded in the Register of Mutation. Sub-Section (6) of Section 129 of the Act of 1964 provides that entries in the Register of Mutation are required to be tested and if found correct or after corrections, the same are required to be certified by such Officer as may be prescribed. Section 133 of the Act of 1964 creates a presumption regarding the correctness of the entries in the Record of Rights and Register of Mutations until contrary is proved. Section 135 of the Act of 1964, incorporates a bar of suits against State Government or any Officer in respect of a claim to have an entry made in any record or register. However, proviso to the section makes it clear that if a person is aggrieved by an entry made in the Record of Rights, he could institute a suit against any person denying or interested to deny his title to such right and the entry by which he is aggrieved shall be amended in accordance with the declaration, if any, granted by the Civil Court. Sub-Section (2) of Section 136 of the Act of 1964 provides for an appeal against an order made under sub-Section (4) of Section 129 of disposal of the objections and against an entry certified under sub-Section (6) of Section 129. Sub-Section (3) of Section 136 of the Act of 1964 confers power on the Deputy Commissioner to entertain the revision petition either on his own motion or on application of a party and call for records made under Section 127 and Section 129.
13. In the present case, the second respondent passed an order directing that the entry of the name of State Government be made in the revenue records prepared under Section 127 of the Act of 1964. Both the appellants and the sixth respondent being aggrieved by the said order, filed independent revision petitions.
14. The law on the aspect of mutation entry made in the revenue records is well settled. The said entries are made for fiscal purposes and the entries made do not decide the issue of title.
15. For example, if a mutation is made on the basis of a sale deed, which is alleged to be fraudulent and forged, an order passed under sub-Section (4) of Section 129 of the Act of 1964, will not conclude the issue of title. Even if such entry is made, if the Civil Court holds that the sale deed is fraudulent and forged, in view of Section 135 of the Act of 1964, the entry made in the Record of Rights on the basis of the sale deed will have to be corrected in the light of the declaration granted by the Civil Court.
16. If an order is made under sub-Section (4) of Section 129 of the Act of 1964 during the pendency of the Civil suit on title, the jurisdiction of the Appellate Authority or Revisional Authority, as the case may be, is not taken away. The Authorities cannot refuse to exercise appellate or revisional jurisdiction by observing that the order under Sub-Section (4) of Section 129 will be subject to outcome of the suit. In a given case, if an order under sub-section (4) of Section 129 is made without making compliance with sub-Section (2) of Section 129, the same will have to be interfered with. In a given case, when the appellate authority or revisional authority finds that it will be improper to change mutation or entries in the Record of Rights, it may refuse to exercise the power and dismiss the appeal or revision, as the case may be. In this view of the matter, by no stretch of imagination, an appeal or a revision against an order under sub-Section 4 of Section 129 of the Act of 1964 or against an order under sub- Section 6 of Section 129 of the Act of 1964 certifying the mutation entries, could be stayed on the ground that a Civil suit is pending. The learned Single Judge has not only stayed the proceedings of the revision petition, but also directed not to entertain any proceedings with reference to revenue entries till the disposal of the suit. As observed earlier, the entries in Record of Rights are made only for fiscal purposes such as for collection of land revenue, etc. Therefore, an order of staying revision petition or appeal arising out of mutation entries only on the ground of pendency of the civil suit, cannot be said to be legal.
17. Now, we turn to the various decisions relied upon by the sixth respondent. In the first decision, it is held that Katha entries should not be changed by the Revenue Authorities during the pendency of the civil suit between the parties. The second judgment, on which heavy reliance was placed by the learned counsel appearing for the sixth respondent, is in the case of SHRI AMBALAL DHARMACHAND SHAH vs SHRIPAL BHARMAPPA KITTUR SINCE DECEASED BY HIS LRs AND OTHERS1.
Paragraph No.7 of the said decision, reads thus:
“In the facts and circumstances of the case, it is held that when the dispute is between the parties in respect of possession or ownership in civil dispute, it is not appropriate to approach the revenue authorities seeking similar relief. When the suit is pending, if it is brought to the 1 2017(2) KCCR 1730 notice of the revenue authorities, it is appropriate on their part not to precipitate such matters and simply direct both the parties to obtain a decree and then to enter the name either of the parties only on the basis of the decree. In the instant case, though the Deputy Commissioner held that the entries are subject to result of the suit, when the Deputy Commissioner had the knowledge of the suit in respect of the property, in this circumstance proceedings further, directing the Tahsildar to enter the name of the respondent in the revenue records is improper.”
18. Thus, none of the decisions have bearing on the issue raised in this appeal regarding the legality of the stay granted to the revision petition filed by the appellants. Moreover, in the facts of the case, the entry of the name of the State Government is ordered to be made in the revenue records which is the subject matter of the challenge in the revision petition filed by the appellants. What is significant is that even the sixth respondent has also preferred revision petition against the same order, which is pending. While making an application for stay, the sixth respondent applied for stay of only the revision petition filed by the appellant and did not apply for any stay in his own revision petition. Even in the writ petition, there is no prayer made by the sixth respondent for stay of revision petition filed by her against the same impugned order.
19. Therefore, we have no manner of doubt that impugned order will have to be set aside. However, it will be for the Revenue Authorities to take a call whether interference should be made in the impugned order before it, in view of the pendency of the civil suit.
20. Hence, we pass the following order:
(i) Impugned order dated 29th May 2019 is hereby set aside. The Writ Petition No.1881 of 2019 filed by the sixth respondent is dismissed;
(ii) The first respondent shall proceed to decide the pending revision petitions filed by both the appellant and the sixth respondent in accordance with law;
(iii) As observed earlier, it is ultimately for the first respondent to decide whether to make interference with the impugned order on merits or to decline to interfere by observing that the impugned order will be subject to final out- come of the civil suit;
(iv) Appeal is accordingly partly allowed in the above terms. No order as to costs.
Sd/- CHIEF JUSTICE Sd/- JUDGE VK