IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION No.43406/2018(KLR-RES) BETWEEN SRI P VENKATESH S/O LATE PAPAIAH, AGED ABOUT 46 YEARS, R/O No.943/13, 7TH CROSS, BEHIND SHANIMAHATHAMA TEMPLE, D-BLOCK, VIJAYANANDA NAGARA, BENGALURU- 560 096. ... PETITIONER (BY SRI B R VISHWANATH, ADVOCATE) AND 1. THE DEPUTY COMMISSIONER BENGALURU NORTH SUB-DIVISION, BENGALURU-560 001.
2. THE ASSISTANT COMMISSIONER BENGALURU NORTH, BENGALURU-560 021.
3. THE SPECIAL TAHSILDHAR YESHWANTHPURA, BENGALURU -577 021 4. SRI.ARUN KUMAR AGED ABOUT 46 YEARS, S/O LATE VENKATESH BHOVI, R/O No.96, GROUND FLOOR, 18TH F CROSS, 3RD PHASE, 3RD STAGE, MAHALAKSHMIPURAM, BENGALURU560 086.
5. SRI.PRASANNA KUMAR S/O LATE VENKATESH BHOVI, AGED ABOUT 47 YEARS, R/O No.102, 2ND FLOOR, 19TH CROSS, 4TH STAGE, 3RD PHASE, MAHALAKSHMIPURAM, BENGALURU-560 086. ... RESPONDENTS (BY SRI D R RAVISHANKAR, ADVOCATE FOR C/R4 & R5 SRI VENKATESH DODDERI, AGA FOR R1 TO R3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DTD:28.05.2018 PASSED BY THE 1ST RESPONDENT IN R.P.No.410/2016-17 AND ORDER DTD:03.02.2017 PASSED BY THE 2ND RESPONDENT IN R.A.[BN] No.152/2016-17 AT ANNEXURES-N AND L AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner has sought for quashing of the order dated 28.05.2018 (Annexure ‘N’ to the petition) passed by respondent No.1, namely, Deputy Commissioner, Bengaluru Urban District, (stated as ‘Bengaluru North sub-division’ in the cause title of the petition) Bengaluru, in Revision Petition No.410/2016-17 in dismissing the said revision petition while confirming the order dated 03.02.2017 (Annexure ‘L’ to the petition) passed by the second respondent, namely, Assistant Commissioner, Bengaluru North Sub-division, Bengaluru, in appeal No.R.A.(BN):152/2016-2017.
2. The petitioner herein is claiming himself to be the grandson of Sri Hanumantha Bhovi. It is stated that the petitioner’s grandfather during his lifetime had purchased lands measuring to an extent of 03 Acres 12 guntas in Sy. No.38 and 02 Acres 13 guntas in Sy. No.41 (stated as Sy.No.38 measuring 2 Acres 13 guntas and Sy. No.41 measuring 3 Acres 12 guntas in the petition) situate at Kariobanahalli village, Yeshwanthapura hobli, Bengaluru North Taluk, under registered sale deed dated 11.04.1949 executed by one Sri Jinde Nanjundappa. After the death of Hanumantha Bhovi, the said lands had come to the hands of his son, Sri Papaiah, who is the father of the petitioner herein. Petitioner’s father is said to have died on 23.11.1993 leaving him surviving his son, who is the petitioner herein and other five daughters.
3. It is in this background that the petitioner approached Special Tahasildar, Bengaluru North Taluk, in proceedings bearing No.RRT(Y)Dispute.CR.01/2016-17 seeking change of khata in his name in respect of the land measuring to an extent of 03 Acres 12 guntas in Sy. No.38 (presently Sy. No.38/1B).
4. In the said proceedings, Special Tahasildar has relied upon two separate orders of even date i.e, 15.12.2014 passed by the Assistant Commissioner, Bengaluru North sub- division, Bengaluru, in appeal bearing Nos.R.A(B.N)210/2014-
15 and R.A.(B.N.)211/2014-15. The order pertaining to the land in Sy. No.38 is passed in appeal No.R.A(B.N)211/2014-15 (vide Annexure ‘H’ to the petition), wherein the Assistant Commissioner while allowing the said appeal preferred by one V.Narayanaswamy, had directed Tahasildar, Bengaluru North Taluk, to take appropriate action with regard to change of khata in respect of the land measuring 03 Acres 12 guntas in Sy. No.38 in favour of the legal heirs of Hanumantha Bhovi by taking into consideration registered sale deed dated 11.04.1949 bearing No.6332/1948-49, order of mutation vide M.R. No.1/69-70, which was effected in the name of Hanumantha Bhovi, and phodi durasth records. Pursuant to the said direction, Special Tahasildar has considered documents such as registered sale deed dated 11.04.1949 executed by Jinde Nanjundappa in favour of petitioner’s grandfather, Hanumantha Bhovi, order of mutation vide MR No.1/69-70 and sketch with reference to possession of the said land and noted that Sri Hanumantha Bhovi had died leaving behind his son, Sri Papaiah, who also died subsequently leaving him surviving his son, Sri P. Venkatesh (petitioner in the proceedings before the Special Tahasildar). Accordingly, Special Tahasildar, ordered for transfer of khata in respect of the land measuring to an extent of 03 Acres 12 guntas in Sy. No.38 (presently Sy. No.38/1B) in the name of the petitioner – Sri P. Venkatesh, legal heir of Sri Hanumantha Bhovi, under IHC proceedings. Copy of the said order dated 14.06.2016 is at Annexure ‘J’ to the petition.
5. It is seen that Smt. V. Krishnamma @ Krishnaveni, the mother of respondent Nos.4 and 5 herein, being aggrieved by the said order of Special Tahasildar preferred an appeal, which was numbered as No.R.A.(BN):152/2016-17, under Section 136(2) of the Karnataka Land Revenue Act, 1964, before the second respondent - Assistant Commissioner. According to Smt. Krishnamma @ Krishnaveni, one Venkatesh Bhovi had purchased land measuring 03 Acres 12 guntas in Sy. No.38 and 02 Acres 13 guntas in Sy. No.41 under registered sale deed dated 18.08.1958 executed by Jinde Ramakrishna and his brother (Jinde Nanjundappa), sons of late Jinde Lahan (Larha) Gangadharappa. Subsequently, the said Venkatesh Bhovi had sold the said two lands under registered sale deed dated 27.05.1963 in favour of Sri V. Venkataswamy. The said Venkataswamy in turn had sold the land measuring 03 Acres 12 guntas in Sy. No.38 and land measuring 02 Acres 13 guntas in Sy. No.41 totally measuring 05 Acres 25 guntas under the sale deed dated 25.09.1985 registered on 30.09.1985 in favour of Smt. V. Krishnamma @ Krishnaveni and as such, she had become the absolute owner of the said properties. She further stated that: mutation was effected in her name vide M.R. No.57/84-85; subsequently, the said lands were assigned new Sy. Nos.38/1B and 41/1B respectively and she got converted the said lands from agricultural to non-agricultural purpose vide order dated 02.02.1998 passed by the Deputy Commissioner, Bengaluru District. She contended that Special Tahasildar was not justified in passing the order of mutation vide M.R. No.H36/2015-2016 and consequently, deleting her name in the RTC in respect of the property measuring 03 Acres 12 guntas in Sy. No.38/1B and substituting the same with the name of the first respondent – Sri P. Venkatesh.
6. In the said appeal preferred by Smt. V. Krishnamma @ Krishnaveni, the Assistant Commissioner has relied upon the sale deed dated 25.09.1985 registered on 30.09.1985 under which the appellant had purchased land measuring 03 Acres 12 guntas in Sy. No.38 and land measuring 02 Acres 13 guntas in Sy. No.41 and order of mutation vide M.R. No.57 which indicated that khata was effected in her name in respect of the said properties. Assistant Commissioner has noted that: land in Sy. No.38 had been bifurcated and new Sy. No.38/1B had been assigned to the property measuring 03 Acres 09 guntas and name of the appellant – Smt. V. Krishnamma @ Krishnaveni was shown as khatedar in RTC in respect of the land in Sy. No.38/1B; land in Sy. No.38/1B had been converted from agricultural to non- agricultural residential purpose vide order dated 02.02.1998 bearing No.ALN.SR(N).26/97-98 passed by the Deputy Commissioner, Bengaluru District. Hence, he opined that Special Tahasildar had no jurisdiction to pass any order in respect of property in Sy. No.38/1B, which had been converted from agricultural to non-agricultural residential purpose and Special Tahasildar without following the procedure prescribed under law and without conducting proper enquiry, had passed the order dated 14.06.2016. However, Assistant Commissioner in para No.17 of his order has observed that the first respondent – Sri P. Venkatesh was at liberty to approach the Civil Court to prove his right and title over the said property.
7. Accordingly, the second respondent - Assistant Commissioner by his order dated 03.02.2017 (Annexure ‘L’ to the petition), allowed the appeal bearing No.R.A.(BN):152/2016-2017 filed by Smt. V. Krishnamma @ Krishnaveni by setting aside the order dated 14.06.2016 passed by Special Tahasildar in proceedings No.RRT(Y)Dispute.CR.01/2016-17 and consequently, setting aside the order of mutation vide M.R. No.H36/2015-2016 passed by Tahasildar. Further, Assistant Commissioner directed the Tahasildar, Bengaluru North Taluk, to restore the name of the appellant – Smt. V. Krishnamma @ Krishnaveni in respect of the property in Sy. No.38/1B measuring 03 Acres 09 guntas situate at Kariobanahalli village, Yeshwanthapura hobli, Bengaluru North Taluk, in accordance with law.
8. The said order of the Assistant Commissioner was the subject matter of challenge in Revision Petition No.410/2016-17 filed by the petitioner herein – Sri P. Venkatesh before the Deputy Commissioner, Bengaluru Urban District. The Deputy Commissioner in his order dated 28.05.2018 (Annexure ‘N’ to the petition) has referred to the suit in O.S. No.53/2017 filed by the revision petitioner – Sri P. Venkatesh before the Court of II Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru, and has observed that the trial Court on the basis of the application in I.A. No.2 filed under Order VII Rule 11(a), (b) and (d) read with Section 151 of the Civil Procedure Code, 1908, (for short, ‘the CPC’) by the defendant – Smt. V. Krishnamma, had dismissed the said suit as not maintainable by its judgment and decree dated 22.06.2017 (Annexure ‘P’ to the petition), which is the subject matter of challenge in R.A. No.111/2017 filed by the revision petitioner – P.Venkatesh before the Court of the Prl. District and Sessions Judge, Bengaluru Rural District, Bengaluru. Further, Deputy Commissioner has taken note of the fact that the second respondent therein – Smt. V. Krishnamma @ Krishnaveni had got converted the aforesaid land in Sy. No.38/1B from agricultural to non-agricultural residential purpose. Accordingly, the Deputy Commissioner has dismissed the revision petition filed by the petitioner herein by confirming the order of the Assistant Commissioner dated 03.02.2017. Being aggrieved by the same, the petitioner is before this Court.
9. Heard the learned counsel for the petitioner, learned counsel for the contesting respondent Nos.4 and 5 and learned Additional Government Advocate appearing for respondent Nos.1 to 3. Perused the material on record.
10. It is interesting to note that during the pendency of proceedings before the Assistant Commissioner, the petitioner had already initiated the suit in O.S. No.53/2017 (filed on 06.01.2017) before the Court of II Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru, seeking declaration of his title in respect of the land measuring 03 Acres 12 guntas in Sy. No.38 and land measuring 02 Acres 13 guntas in Sy. No.41 in his capacity as legal heir of Hanumantha Bhovi and for the relief of permanent injunction against the defendant – Smt. V. Krishnamma @ Krishnaveni. The trial Court on the basis of I.A. No.2 filed by the defendant under Order VII Rule 11(a), (b) and (d) read with Section 151 of the CPC., for rejection of the plaint, by its judgment and decree dated 22.06.2017, dismissed the suit filed by the plaintiff – Sri P.Venkatesh (petitioner herein) as not maintainable. The said judgment of dismissal of the suit is the subject matter of challenge in appeal in R.A. No.111/2017 filed by the petitioner herein before the Court of the Principal District and Sessions Judge, Bengaluru Rural District, Bengaluru.
11. It is stated in para No.19 of the petition that the petitioner herein had filed one more suit in O.S. No.106/2018 before the Court of II Additional Civil Judge, Bengaluru Rural District, Bengaluru. The said suit was filed against Sri Prasanna Kumar and Sri Arun Kumar, who are respondent Nos.5 and 4 respectively in this petition, for the relief of permanent injunction. It is further stated that in the said suit the petitioner herein had filed I.A. No.1 under Order 39 Rules 1 and 2 read with Section 151 of the CPC., for temporary injunction. Since the trial Court by its order dated 17.01.2018, deferred consideration of plaintiff’s application in I.A. No.1 and had only ordered issuance of emergent notice on the said application, the plaintiff (petitioner herein) had preferred miscellaneous first appeal in M.F.A. No.3307/2018 before this Court. In the said appeal, a coordinate Bench of this Court by its order dated 08.05.2018 (Annexure ‘R’ to the petition) granted status quo till the next date of hearing while ordering issuance of emergent notice to the respondents therein. Subsequently, this Court by its judgment dated 06.07.2018 disposed of the said appeal with the following observations:
“3. However, the issuance of notice does not amount to being a ground to question the order of challenge the same in this appeal. In any event, now that the defendants in the original suit are already served with the notice, it is open for the Court below to decide the application filed by the plaintiff within one week from the next date of hearing.”
It is stated that the suit in O.S. No.106/2018 is pending consideration before the trial Court.
12. On going through the material available on record, it is seen that what is required to be considered is as to whether the land measuring 03 Acres 12 guntas in Sy. No.38 and land measuring 02 Acres 13 guntas in Sy. No.41, which are claimed by the petitioner as the lands purchased by his grandfather, Hanumantha Bhovi under registered sale deed dated 11.04.1949 executed by Jinde Nanjundappa, were alienated by Hanumantha Bhovi during his life time as in this proceedings, learned counsel appearing for respondent Nos.4 and 5 would state that the petitioner’s grandfather, Hanumantha Bhovi, out of the lands purchased by him from Jinde Nanjundappa under registered sale deed dated 11.04.1949, had sold extent of land measuring 02 Acres 07 guntas in Sy. No.38 and another extent of land measuring 01 Acre 13 guntas in Sy. No.41 in favour of Guruva Bhovi under registered sale deed dated 13.03.1958. Subsequently, sons of late Guruva Bhovi and others have sold land measuring to an extent of 01 Acre 26 guntas in Sy. No.38 (38/1) in favour of one Sri G.S. Ramaiah under sale deed dated 18.08.1995 registered on 20.12.1995. So far as the remaining extent of 01 Acre 13 guntas in Sy. No.41 is concerned, learned counsel for respondent Nos.5 and 6 would submit that sons of Guruva Bhovi have formed a layout and sold sites in favour of third parties.
13. In view of the fact that there is much confusion with reference to flow of title indicating several transactions having been taken place in respect of land measuring to an extent of 03 Acres 12 guntas in Sy. No.38 and land measuring to an extent of 02 Acres 13 guntas in Sy. No.41, the question of interfering with the impugned order dated 28.05.2018 passed by Deputy Commissioner, Bengaluru Urban District, in Revision Petition No.410/2016-17, wherein the order dated 03.02.2017 passed by the Assistant Commissioner in appeal bearing No.R.A.(BN):152/2016-2017 has been confirmed, does not arise at this stage. In any event, if the petitioner in this proceedings is able to establish that the properties purchased by his grandfather, Hanumantha Bhovi, under registered sale deed dated 11.04.1949 were never subject to any transaction either in the form of sale or mortgage or any other transaction right from 12.04.1949 to this day, he is entitled to get the revenue entries restored to his name in respect of the said properties.
14. However, learned counsel for the petitioner would submit that the petitioner did not get sufficient opportunity before the first respondent – Deputy Commissioner to place all the relevant documents to counter the statement of respondent Nos.4 and 5 herein, who were respondent Nos.2(a) and 2(b) in Revision Petition No.410/2016-17 that the properties purchased by his grandfather were already sold in favour of some other persons. Learned counsel for the petitioner further submitted that if the proceedings before the first respondent – Deputy Commissioner are restored by affording opportunity to the petitioner to counter the claim made by respondent Nos.4 and 5 herein with regard to alienation of lands in question by grandfather of the petitioner, the petitioner would take his chance for the reason that the suit in O.S. No.53/2017 filed by him for declaration and permanent injunction has already been rejected by the trial Court by its judgment and decree dated 22.06.2017, which is the subject matter of challenge in R.A. No.111/2017 filed by him before the Court of Prl. District and Sessions Judge, Bengaluru.
15. Therefore, in this background for the limited purpose of ascertaining the flow of title in respect of the lands in question under the registered sale deeds stated in the memo dated 20.02.2019 filed by learned counsel for respondent Nos.4 and 5 herein before this Court, the matter is remanded back to the first respondent - Deputy Commissioner, Bengaluru Urban District, Bengaluru, to look into the aforesaid aspects and thereafter, to pass appropriate order after hearing both the parties and in accordance with law.
16. With the aforesaid observations, this Writ Petition is disposed of. The first respondent – Deputy Commissioner, Bengaluru Urban District, Bengaluru, is directed to consider Revision Petition No.410/2016-2017. To prevent further delay in the matter, both the parties are directed to appear before the first respondent on 25.03.2019, on which day, the said matter shall be taken up by the first respondent for consideration and same shall be disposed of on time bound basis within five months from the date of receipt of copy of this order or production of certified copy whichever is earlier.
17. In any event, it is made clear that pendency of revision proceedings before the first respondent will not come in the way of respondent Nos.4 and 5 herein exercising their right of ownership in respect of their lands.
Sd/- JUDGE sma