IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 12TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ WRIT APPEAL NO.5680 OF 2017 [LB-BMP] BETWEEN:
SRI. N.GANESH REDDY, SON OF N.NAGARAJ, AGED ABOUT 28 YEARS, RESIDING AT NO.19/7, MYSORE DEVIATION ROAD, MAGADI ROAD, GOPALAPURAM, BENGALURU-560 023.
[BY SRI. D.S. JAYARAJ, ADVOCATE] AND 1. THE COMMISSIONER, BRUHAT BANGALORE MAHANAGARA PALIKE, N.R. SQUARE, BENGALURU-560 002.
... APPELLANT 2. THE ASSISTANT REVENUE OFFICER, BRUHAT BANGALORE MAHANAGARA PALIKE, MAHALAKSHMIPURAM DIVISION, BDA COMPLEX, RAJAJINAGAR, BENGALURU-560 010.
... RESPONDENTS [BY SRI. V. SREENIDHI, ADVOCATE] THIS WRIT APPEAL FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE ORDER DATED 16.08.2017 PASSED IN THE WRIT PEITITON NO.25346 OF 2017.
***** THIS WRIT APPEAL COMING ON FOR ADMISSION, THIS DAY MOHAMMAD NAWAZ J., DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed with a prayer to set aside the order passed by the learned Single Judge in W.P. No.25346 of 2017, wherein the learned Single Judge disposed off the writ petition filed by the appellant herein seeking to quash the impugned endorsement No.DA/PR/KTR/16/2017-18 dated 03.05.2017 (Annexure-A) and to direct respondent No.2 to consider the representation dated 11.05.2017, for change of khata in respect of the property mentioned therein.
2. The learned single judge while disposing of the writ petition has held that the Endorsement given by the respondent BBMP cannot be said to be per se illegal.
3. We have heard the learned counsel appearing for the parties.
4. It is the case of the appellant that the property bearing No.65/2-1, measuring East to West : 82.5 ft. and North to South : 125 ft. totally measuring 10,312.5 sq.ft., situated at Industrial Sub-urb, Jarakabande Kaval Village, Yelahanka Hobli, Bengaluru North Taluk [hereinafter called as ‘schedule property’] was acquired by him under a deed of gift dated 08.09.2016 executed by his father. In pursuance of the same, the possession of the property was delivered to him and he is in possession and enjoyment of the same as an absolute owner thereof and the right, title and interest whatsoever over the said property vests with the appellant. He is entitled for bifurcation of Khata and to enter his name in respect of the aforesaid property. Accordingly, he filed an application dated 21.11.2016 for bifurcation of khata and to enter his name in respect of the said property, through his authorized person Sri. S. Gopal. However, the respondent No.2 came forward to issue the impugned Endorsement vide Annexure-A. On perusal of the same, the appellant came to know about a suit filed by one Smt. N. Gajalakshmi in O.S. No.1680/2017 for the relief of enforcement of agreement of sale and also for an order of injunction restraining from alienating the property. It is alleged that the Endorsement came to be issued out of vengeance and ill-will, subsequent to lodging of the complaint by the appellant’s authorized person against the concerned revenue official who demanded bribe for taking necessary steps to change the khata.
5. The learned single judge having considered the Endorsement at Annexure – A, dated 03.05.2017 and the averments made in the writ petition, held that the respondents-BBMP cannot be faulted in refusing to change the khata entry so long as the civil suit in the present case is decided by the competent civil Court. Unless the question of title is cleared by any doubt by decision in the said suit for specific performance, the gift deed in favour of the present petitioner, on the basis of which the petitioner seeks such change of khata entries, will be under the cloud of suspicion so long as the said civil suit is pending. Unless there is a clear title in favour of the petitioner, the petitioner cannot claim the change of khata entry in his favour as a matter of right. Hence, held that the Endorsement given by the respondents-BBMP cannot be said to be per se illegal. Further observed that the crime of corruption, if any, by filing the complaint in the form of FIR is concerned, that is the matter for the concerned investigating agency to investigate the same and to take it to its logical end.
6. It is the contention of the learned counsel for the appellant that it is not open for the respondents to issue such Endorsement at Annexure-A as there is no impediment to bifurcate the khata and enter the name of the appellant on the basis of the gift deed executed by his father. The entries pertaining to the property are not the subject matter of the suit and the subject matter of suit is endorsement of agreement of sale. There is no dispute with regard to the title. The endorsement itself suffices to show that it is only in pursuance of the complaint lodged by the appellant against the concerned revenue officials. It is submitted that the impugned endorsement issued by the respondents-BBMP is without any basis and it is the bounden duty on the part of the respondents-BBMP to enter the name of the appellant in the khata.
7. According to the appellant, on perusal of the endorsement issued by the respondent/BBMP, he came to know that a suit was filed by one Smt. N. Gajalakshmi seeking enforcement of agreement of sale in respect of the property shown therein, in O.S.No.1680/2017 for the relief of enforcement of agreement of sale and also seeking an order of injunction, restraining the defendants from alienating the property. It is stated that an order of injunction was granted from alienating the property and in pursuance of the same, the respondents have come forward to file objections against changing the khata in respect of the aforesaid property on the ground that the suit filed by Smt. N. Gajalakshmi is pending.
8. The representation dated 11.05.2017 given to the respondents is produced at Annexute ‘C’ to the petition. It is stated that the schedule property bearing No.65/2-1 situated at Industrial Suburb, Jarakabandekaval Village, Yelahanka Hobli, Bangalore North Taluk, measuring East to West : 82.5 feet and North to South :
125 feet, totally measuring 10,312.5 sq.ft., called as “schedule property” was owned and possessed by the appellant, having acquired the same under a deed of gift dated 08.09.2016. It is stated that an application filed on 21.11.2016 with the assistance of one Sri. S. Gopal was submitted for bifurcation of katha in respect of the schedule property and to change the name in his favour, however, no necessary action in terms of the application was taken. The Endorsement dated 03.05.2017 issued by the respondents has been questioned, contending that the same is not sustainable. According to the appellant, O.S.No.1680/2017 mentioned in the endorsement filed by one Smt. Gajalakshmi was for specific enforcement of agreement of sale and there is no order as such to keep the khata pending. The interim order granted in the suit is only to restrain the defendants therein from creating any third party’s interest or alienating the same.
9. The Endorsement dated 03.05.2017 issued by respondent No.2 is produced at Annexure ‘A’. The translated copy of the same produced by the appellant reads as under :
“ENDORSEMENT Sub: The application submitted by you Sri. N. Nagaraj on 22.04.2017 for registration of katha/ division/transfer/amalgamation of katha, in respect of (Property Address) Mahalakshmipuram Sub- Division (Ward No.(10) 44, Industrial Suburb, Property No..65/1-1.
The above application is verified. To provide the below mentioned documents so that they reach this office within 7 days from the date of receipt of this endorsement. Thereafter, further action will betaken with regard to your application.
1) Certified copy of sale deed/ Partition Deed/ Will Hiba/ Gift Deed/ Release Deed etc., 2) Nil encumbrance certificate 3) Sanctioned Plan/ rough sketch 4) To show the spot on ………….
5) As per the objections filed by Sri. Venkatesh Murthy, Advocate enclosing the copy the copy of the plaint in I.S.No.1680/2017 filed by Smt. Gajalakshmi, action will be taken as per the final order of the suit.
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Assistant Revenue Officer (Mahalakshmipuram Zone) Bruhat Bengaluru Mahanagara Palike Sd/ 3-5-17 To Smt./Sri. N. Nagaraj, No.55, 13th Cross, 4th Main Road, Malleswaram, Bangalore – 03”
10. On a perusal of the above endorsement, it goes to show that an application dated 22.04.2017 was filed by Sri. N. Nagaraj, to which, objections were filed enclosing the copy of the plaint in O.S.No.1680/2017 filed by Smt. Gajalakshmi.
11. In the aforementioned O.S.No.1680/2017 filed by one Smt. N. Gajalakshmi, the appellant herein is defendant No.5. The suit is filed, apart from other prayers, to declare the gift deed dated 08.09.2016 executed by the defendant No.4 in favour of defendant No.5 as null and void and not binding on the plaintiff. It is also prayed therein for a direction to defendant Nos.1 and 2 to execute a sale deed in respect of the schedule property in favour of the plaintiff in terms of the agreement dated 31.05.2005 by receiving the balance sale consideration. It is specifically averred that defendant No.5 i.e; the appellant herein, in collusion with defendant No.4 are negotiating with third party to enter into joint development or to alienate the schedule property so as to defeat the right accrued to the plaintiff under the agreement and therefore if the defendant No.5 were to succeed to create charge over the property, the plaintiff would be put to irreparable loss and injury.
12. The interim order of temporary injunction was issued against the defendants restraining them from encumbering the schedule property in any manner. Admittedly, the appellant herein is one of the defendants in the aforesaid suit which is pending adjudication between the parties. The gift deed under which the appellant is seeking bifurcation of khata itself is under challenge and the same is also subject matter of the suit. In view of the nature of claim in the suit and the interim order passed therein, it is not correct to say that the change of khata in favour of the appellant will not prejudice the claim of the plaintiffs in the said suit.
13. In so far as the claim of the appellant that out of ill-will and vengeance, the endorsement at Annexure ‘A’ came to be issued since a complaint was lodged against the concerned revenue officials and a case was registered against them, it is to be seen that a case in Crime No.12/2017 was registered against the two revenue officials of BBMP, Mahalakshmipuram Division, Rajajinagar, Bangalore City for an offence punishable under Section 7 of the Prevention of Corruption Act on 28.03.3017. According to the appellant, after the police personal of Anti-corruption bureau trapped the concerned officers and registered the case, the impugned endorsement came to be issued only to pressurize the appellant from precipitating the complaint and the endorsement was issued at the instance of the predecessor who was trapped in pursuance of the complaint. Such contention cannot be accepted as there is nothing to show that the endorsement issued by the 2nd respondent herein was at the instance of the accused persons in the aforesaid crime registered by the anti-corruption bureau. The impugned endorsement issued by the 2nd respondent is on account of the objections filed in view of the suit filed before the civil court, wherein the plaintiff has also sought to declare the gift deed executed by the defendant No.4 in favour of defendant No.5, i.e., the appellant herein as null and void and not binding on the plaintiff.
We therefore see no merit in this writ appeal. The same is hereby dismissed.
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JUDGE JUDGE Snc