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2000 DIGILAW 816 (KAR)

Appanna Guruswamy Wodeyar v. State of Karnataka

2000-12-07

R.GURURAJAN

body2000
JUDGMENT R. Gururajan, J.—This petition is filed challenging the order passed by the Tahsildar dated 26.12.1997 at Annexure-E. 2. Land bearing Sy. Nos. 103/2B, 103/2C-1 and 103/2C-2 measuring in all about 2 acres 25 guntas situated in Nagawad Village B. Bagewadi Taluk belonging to the Petitioner were consolidated by the authorities and they came to be numbered as Sy. No. 133. Similarly, land bearing Sy. Nos. 102/A and 103/2C, measuring about 1 acre 27 guntas belonging to the third Respondent were consolidated and they came to be numbered as Sy. No. 134 of Nagawad Village. The revenue authorities maintained the revenue entries in respect of these lands. These being the facts of the case the third Respondent got his land in Sy. No. 134 surveyed. The Taluk Surveyor after the survey reported that the Petitioner has encroached upon 16 guntas of land in consolidation Sy. No. 134 of Nagawad Village belonging to the third Respondent. A petition was submitted by the third Respondent under Section 142 of the Karnataka Land Revenue Act. The Petitioner also filed an appeal before the Assistant Director of Land Records, Bijapur, in this regard and the same came to be disposed of holding that the encroachment is not 16 guntas but it is only 11 guntas. Against the said order, Petitioner filed a second appeal before the Deputy Director of Land Records, Belgaum. Before the Deputy Director both the parties mentioned that the matter has been settled between them (Ref. Annexure-D). On the strength of this statement the appeal came to be dismissed on 27.9.1996 as per Annexure-D. Thereafter in terms of Annexure-D, third Respondent moved the Tahsildar in September, 1997. The Tahsildar allowed the application filed by the third Respondent vide his order dated 26.12.1997 (Annexure-E). 3. According to the petition averments counsel appearing for the Petitioner before the revenue authorities did not inform him about the disposal of the application and he came to know about the disposal only on 6.11.1999. It is in these circumstances, the Petitioner is before this Court challenging the order of the Tahsildar. 4. This Court issued emergent notice and stayed Annexures-E and F. Later on an IA came to be filed seeking vacation of the stay on 30.3.2000. It is in these circumstances, the Petitioner is before this Court challenging the order of the Tahsildar. 4. This Court issued emergent notice and stayed Annexures-E and F. Later on an IA came to be filed seeking vacation of the stay on 30.3.2000. This Court in the light of the statement of objections ordered the parties to maintain status quo as regards to possession of the land Respondent in the affidavit filed for vacating stay states that an appeal was filed by the Petitioner before the Deputy Director of Land Records. The Deputy Director of land Records visited the spot and directed the Petitioner to hand over 11 guntas of encroached land to the third Respondent. Instead of handing over possession, the Petitioner filed a suit in OS No. 5 of 1998 and sought for an injunction. The injunction initially granted was vacated by an order of the trial Court dated 5.10.1999. An appeal came to be filed in Miscellaneous Appeal No. 48 of 1999 by the Petitioner and the same was dismissed by an order dated 12.11.1999. It is also stated in the petition that an appeal was filed against the very order before the Assistant Commissioner highlighting these facts. The Respondent complains of suppression of material facts before this Court. Hence this Court directed the Petitioner to file a rejoinder in the light of these allegations and a rejoinder statement has been filed by way of an affidavit. It is admitted in the rejoinder affidavit that a suit was filed and the injunction granted was vacated and that a Miscellaneous Appeal is pending. It is also admitted that an appeal against the very order of the Tahsildar was filed before the Assistant Commissioner and the same was withdrawn in view of filing of this writ petition. 5. Heard the learned Counsel for the parties. Learned Counsel for the Petitioner admits of filing of an injunction suit and losing the injunction battle. He also admits that an appeal was filed and was subsequently withdrawn after filing of the present petition. He relies on the judgment of this Court in Channappa and Another vs. Deputy Commissioner and Others, ILR 1999 Kar 3847 in support of his case. 6. Per contra, learned Counsel for the Respondent argues that Petitioner does not deserve any relief for having suppressed the material facts before this Court. 7. He relies on the judgment of this Court in Channappa and Another vs. Deputy Commissioner and Others, ILR 1999 Kar 3847 in support of his case. 6. Per contra, learned Counsel for the Respondent argues that Petitioner does not deserve any relief for having suppressed the material facts before this Court. 7. Petitioner while presenting the writ petition has challenged the order of the Tahsildar. He has stated that he is in possession of the land in question since a very long time. He has made a casual mention of the written statement filed in OS No. 5 of 1998 without mentioning about the vacation of the temporary injunction in the suit filed by him. He has further suppressed the factum of filing of miscellaneous appeal and also an appeal filed against the very order before the Assistant Commissioner. It is only when the contesting Respondents filed an affidavit he has filed a rejoinder admitting this fact. In this situation, nothing more is necessary to come to a conclusion that the material facts have been suppressed before this Court by the Petitioner. On the basis of the pleadings in the writ petition this Court granted an order of stay of Annexures-E and F. Petitioner is guilty of suppressing of material facts before this Court. 8. This Court in Shrinivas Vs. Venkatesh, ILR (2000) KAR 4595 has considered the effect of suppression of facts by the litigants. It was noticed as under: With-holding of facts from the Court is a serious matter. It amounts to misleading the Court. On being asked the Counsel for the complainant failed to give any explanation whatsoever as to why the fact of filing of the application before the Supreme Court for initiation of proceedings under the Contempt of Courts Act was not disclosed in this petition. No litigant much less a member of the legal profession should with-hold the facts from the Court. A member of the legal profession would know better than others that with-holding of the facts from the Court is a serious matter which can result in taking action against the person found guilty of doing so. The Respondent has been caused unnecessary harassment and expense in defending these proceedings before us. 9. Without saying more on the subject, we close these proceedings and dismiss the petition with costs which are assessed at Rs. 5,000/-. 10. The Respondent has been caused unnecessary harassment and expense in defending these proceedings before us. 9. Without saying more on the subject, we close these proceedings and dismiss the petition with costs which are assessed at Rs. 5,000/-. 10. In these circumstances, I am of the view that the petition has to be rejected for suppression of material facts. I have heard the learned Counsel even on merits. In the judgment relied on by the learned Counsel for the Petitioner in the case of Channappa and Another vs. Deputy Commissioner and Others, ILR 1999 Kar 3847 this Court has noticed that on the application of an adjoining land holder, lands of the Petitioner (in that case) and the land of the adjoining owner were surveyed and measured and it was found that the Petitioners (that the case) had encroached some portion of the land of the adjoining land holder. He complained to the Tahsildar on the basis of the survey report under Section 142 and the Tahsildar ordered eviction of the Petitioners from the alleged encroached portion ignoring the fact by then suits had been filed by the Petitioners. This Court ruled that Tahsildar lacks jurisdiction unless it is agreed by both parties to submit to the settlement by arbitration and make an application to that effect in writing. Only when Section 141 is complied with Section 142 will come into operation. 11. Facts in the case referred to above was entirely different from the facts of the present case. In that case, the suit was filed subsequent to the order of the Tahsildar. It was in these circumstances, the Court ruled that Tahsildar lacks jurisdiction. In the case on hand, Petitioner himself went before the civil Court and lost his battle by way of temporary injunction which order was confirmed in the Miscellaneous Appeal. Moreover, before the Deputy Director of Land Records both the parties had agreed to settle the matter before the Tahsildar. In view of the agreement between the parties, it cannot be said that the Tahsildar had acted without jurisdiction. In these circumstances, I have no hesitation in holding that the Tahsildar is right in passing the order. 12. Petition is dismissed with a cost of Rs. 3,000/- payable to the third Respondent within four weeks from today.