IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR WRIT PETITION NO.44611/2017 (KLR-RR/SUR) BETWEEN:
T. H. NANJUNDA REDDY, S/O LATE THIMMAREDDY, R/AT NO.6/31, 3RD CROSS, LALJI LAYOUT, LAKKASANDRA, BANGALORE-560 030.
(BY SRI. G. A. VISWANATHA REDDY, ADV.) AND:
1. THE DEPUTY COMMISSIONER, BANGALORE DISTRICT, BANGALORE – 560 001.
2. THE ASST. COMMISSIONER, BANGALORE SOUTH SUB-DIVISION, ... PETITIONER BANGALORE, KANDAYA BHAVANA 2ND FLOOR, K.G.ROAD, BANGALORE-560 009.
3. THE TAHASILDAR, ANEKAL TALUK, ANEKAL – 560 076.
4. SRI. H. T. VEERAPPA REDDY, S/O LATE THIMMAREDDY, AGED ABOUT 70 YEARS, RESIDING AT NO.1250, 3RD CROSS, 7TH SECTOR, 18TH MAIN, H.S.R.LAYOUT, BANGALORE-560 102.
(BY SRI. Y. D. HARSHA, AGA FOR R1 TO R3 SRI. B. K. BOPANNA, ADV. FOR R4) ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD.3.8.2017 PASSED BY THE R-1 IN R.P.NO.338/2016- 17, VIDE ANNEX-A AND CONFIRM THE ORDER DTD.20.12.2016 PASSED BY THE R-2 VIDE ANNEX-B IN RESPECT OF LAND BEARING SY.NO.159/2, MEASURING 1 ACRE 10 GUNTAS OF S.BINGIPURA VILLAGE, JIGANI HOBLI, ANEKAL TALUK.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
Order Petitioner has called in question order dated 03.08.2017 passed by respondent No.1 in R.P.No.338/2016-17 (Annexure-A) whereunder Deputy Commissioner while allowing the Revision Petition has set aside the order dated 20.12.2016 passed by respondent No.2 (Annexure-B) under which respondent No.2 had allowed the appeal filed by writ petitioner and had set aside M.R.No.16/1992-93 and had also ordered for restoring the name of petitioner as per M.R.No.1/1973-74.
2. I have heard the arguments of Sri.
Vishwanatha, learned advocate appearing for petitioner, Sri. B. K. Bopanna, learned advocate appearing for respondent No.4, and learned Additional Government Advocate who is on advance notice for respondent Nos.1 to 3. Perused the records.
3. Petitioner herein is said to have purchased land bearing Sy.No.159/2 measuring 2 acres 20 guntas situated at Bingipura Village, Jigani Hobli, Anekal Taluk, under a registered sale deed dated 08.01.1971 (Annexure-C). Subsequent to purchase of land, he sought for mutating the revenue records in his name and accordingly revenue records came to be mutated vide M.R.No.1/1973-74 and same is said to have continued till 1992-93. In the year 1992-93, respondent No.4 who is none other than uterine brother of petitioner has sought for mutating revenue records in respect of same land to an extent of 1 acre 10 guntas contending inter alia that he had acquired the same under a partition deed/paalupatti dated 03.01.1984 and on the basis of said document, jurisdictional Tahsildar i.e., respondent No.3 herein mutated revenue records of Sy.No.159/2 to an extent of 1 acre 10 guntas in favour of respondent No.4 vide M.R.No.16/1992-93. In fact, it would be apt and appropriate to note at this juncture itself that petitioner herein in whose name mutation entries stood, was not even notified. Hence petitioner, on acquiring knowledge about such mutation entry ie., M.R.No.16/1992-93 having been effected, challenged the same in R.A.(A)No.53/2016-17 before respondent No.2 which was allowed on contest, by order dated 20.12.2016 (Annexure-B).
4. Being aggrieved by the order passed by respondent No.2, respondent No.4 filed a Revision Petition under Section 136(3) of the Karnataka Land Revenue Act, 1964, before respondent No.1, who by order dated 03.08.2017 allowed the Revision Petition and set aside the order passed by Assistant Commissioner and further ordered for restoration of M.R.No.16/1992-93 in the name of 4th respondent on the ground that issue relating to partition deed/paalupatti is a disputed question of fact and law and as such, Assistant Commissioner could not have restored the revenue entry in the name of writ petitioner. Hence this writ petition.
5. Having heard learned advocates appearing for parties and on perusal of records, it would clearly disclose that undisputedly, khatha of subject property came to be mutated in the name of petitioner by virtue of registered sale deed in his favour dated 08.01.1971 (Annexure-C) by M.R.No.1/1973-74. Said revenue entry continued till 1992-93, which is not in dispute. It is only in the year 1992-93, respondent No.4 herein, behind the back of petitioner, by setting up an unregistered partition deed/paalupatti, sought for mutating revenue records in respect of land in question to an extent of 1 acre 10 guntas contending inter alia that he had been allotted said land under said partition deed/paalupatti dated 03.01.1984. In fact, revenue authorities ought to have directed 4th respondent herein to approach civil court when document relied upon being unregistered document and same being disputed question of fact. On the other hand, even without issuing notice to the petitioner, in whose name revenue records stood, respondent No.3 had proceeded to accept the partition deed/paalupatti propounded by respondent No.4 to mutate the revenue records to an extent of 1 acre 10 guntas in respect of subject property in favour of respondent No.4. This is the first step where Tahsildar committed illegality. In fact, petitioner was never intimated about such mutation having been taken place and when undisputedly revenue records stood in the name of petitioner as per M.R.No.1/1973- 74, respondent No.3 was required to issue notice, if at all he intended to entertain the claim of respondent No.4. Even this exercise was not undertaken by respondent No.3. This is the second error committed by Tahsildar. In this factual scenario, when order came to be passed mutating revenue records in the name of respondent No.4 and petitioner coming to know of this fact, filed an appeal in R.A.(A)No.53/2016-17 before respondent No.2. Respondent No.2, by order dated 20.12.2016 (Annexure-B), has rightly noticed that partition deed/paalupatti is not sufficiently stamped and as such, has ordered for same being impounded and then has referred the matter to District Registrar for enquiry, who is said to have recovered deficit stamp duty to the tune of Rs.7,500/- from 4th respondent. As to whether the procedure so adopted by respondent No.2 impounding the document under Section 39 of the Karnataka Stamp Act, 1957, is an issue which is not examined by this court for reasons more than one. Firstly, when a document which is insufficiently stamped or unregistered, as the case may be, is produced before a judicial authority, procedure contemplated under Section 33 and 34 of the Stamp Act requires to be adopted. As to whether this exercise was undertaken or not, is not forthcoming from records. Hence this court is not expressing any opinion in this regard and it is for the parties to work out their rights in the pending civil suit.
6. Be that as it may. Fact remains that observation made by Assistant Commissioner, respondent No.2 herein that as against a registered sale deed propounded by petitioner, an insufficiently and unregistered document ie., partition deed/paalupatti propounded by respondent No.4 could not have been relied upon by the Tahsildar for mutating the revenue records in the name of respondent No.4, is based on sound appreciation of facts and law. In the instant case, petitioner who was appellant before the Assistant Commissioner, respondent No.2 had not only disputed the document dated 03.01.1984 ie., partition deed/paalupatti propounded by respondent No.4 herein, but had also disputed the contents of it. In such circumstances, it was incumbent upon the Tahsildar to have relegated the parties to work out their rights in civil proceedings. As already observed herein above, while undertaking such exercise the Thasildhar has straightaway proceeded to mutate the revenue records in the name of respondent No.4. As such, respondent No.2, Assistant Commissioner has rightly interfered with the said order culminating in entry - M.R.No.16/1992-93 being set aside and restoring entry -M.R.No.1/1973-74.
7. In light of afore-stated facts, this Court is of the view that Deputy Commissioner could have relegated the parties to civil court without disturbing the order passed by Assistant Commissioner. There was no reason or justification for Deputy Commissioner to have exercised revisional powers, particularly when there was no illegality committed in the order dated 20.12.2016 (Annexure-B) passed by 2nd respondent. As such, order passed by the Deputy Commissioner cannot be sustained, as it would not stand the test of law, namely when there was a serious dispute with regard to execution of partition deed/paalupatti dated 03.01.1984 by petitioner, which document was propounded by respondent No.4 for seeking mutation of revenue entries in his favour, it was incumbent upon respondent No.4 to establish said fact before competent civil court.
8. It is now submitted by learned advocates appearing for the parties that there is a dispute pending before civil court in O.S.No.660/2017, which suit has been filed by petitioner herein on 23.08.2017, obviously on account of observation made by Deputy Commissioner under the impugned order dated 03.08.2017. As such, order of Assistant Commissioner is required to be upheld by quashing the order passed by Deputy Commissioner dated 03.08.2017 (Annexure- A) and also affirming the observation of Assistant Commission and Deputy Commissioner that rights of the parties are to be worked out in pending civil suit in O.S.No.660/2017 and entries made in the revenue records in the name of petitioner would be subject to result of said suit.
Hence the following:
Order (1) Writ petition is allowed.
(2) Order dated 03.08.2017 passed by respondent No.1 (Annexure-A) in Revision Petition No.338/2016-17 is quashed.
(3) Order dated 20.12.2016 passed by Assistant Commissioner (Annexure-B) in R.A.(A)No.53/2016-17 is restored.
(4) It is made clear that revenue entries which has been entered in the name of petitioner herein as per M.R.No.1/1973-74 would be subject to result of suit in O.S.No.660/2017 and necessarily the jurisdictional revenue authorities on such decree being passed, would take steps to mutate the revenue records to be in conformity with the decree that would be passed by the competent civil court.
Ordered accordingly.
SD/- JUDGE RD