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2002 DIGILAW 285 (KAR)

P. K. Vasudevan v. Deputy Commissioner

2002-04-17

K.SREEDHAR RAO

body2002
ORDER K. Sreedhar Rao, J.--This Writ Petition projects an interesting question of law relating to jurisdiction of the land revenue authorities regarding the scope of enquiry under Section 129 of the Karnataka Land Revenue Act (hereinafter called in short as Act) in respect of the lands bearing Sy. No. 69/11 of Srimangala village measuring 2 acres of Virajpet Taluk in Kodagu District. One P.K. Kumaran was the owner and khatedar. The writ Petitioner claims to be the son of P.K. Kumaran. Respondents No. 2 and 3 are the sister and brother of the Petitioner, and children of P.K. Kumaran. After the demise of Kumaran on 29.12.1995, respondent No. 2 on the strength of the registered Will executed by late P.K. Kumaran requested mutate of names in the land revenue records. The Petitioner seriously contested the application of respondent No. 2 contends that the Will is invalid and unenforceable. 2. The names of respondent No. 2 was mutated by virtue of the registered Will. The Petitioner filed appeal before the Assistant Commissioner challenging the mutation by an order at Annexure-B. Mutation was cancelled by the Assistant Commissioner. The respondents preferred revision over the said order before the Deputy Commissioner who in revision by an order at Annexure-A set aside the order of the Assistant Commissioner and directed to mutate names of respondent No. 2 as khatedar on the basis of the registered Will. It appears that under the Will the deceased P.K. Kumaran has bequeathed all his disputed properties in favour of respondent No. 2. Third respondent sails with the Petitioner. 3. It is the contention of the Petitioner in this petition that on the basis of the disputed Will no mutation entries could have been effected in favour of the 2nd respondent, and relied on the ruling of this Court in Lakshmi v. Assistant Commissioner and Ors. reported in ILR 1999 Kar 169, in the said decision it is held thus: Combined effect of Section 63 and Section 68 is when to have an effective disposition under a Will whether registered or unregistered. Two sections must be complied with, otherwise no right can flow under the Will. Proof of the Will is to be made either in Court of law or any procedure known to law provided under registration Act. Two sections must be complied with, otherwise no right can flow under the Will. Proof of the Will is to be made either in Court of law or any procedure known to law provided under registration Act. Without such proof being tendered or made available in the eye of law, it cannot be construed to be an instrument under which a right is acquired within the meaning of Section 128 of the Karnataka Land Revenue Act which contemplates acquisition of right by succession, survivorship, partition, purchase, mortgage, gift, lease or otherwise. The Will has to come within the column or otherwise and further they should be proved as per law. Of course, the only exception that can be made is if all the parties consent and accept the Will, then acquisition may be held, flow out of the Will. For that purpose Section 128 is made clear. Till Will is proved in a manner known to law no mutation entry can be effected. In view of the said ruling, it is strenuously contended that the Will being disputed, the authorities had no other way except to direct the 2nd respondent to prove the Will before the competent Court of law otherwise all the legal heirs should have been mutated as per the request of the Petitioner. To understand the scope and jurisdiction of the enquiry under Section 129 of the Land Revenue Act, it is necessary to advert to the provisions of Section 128 of the Act which reads thus: 128. To understand the scope and jurisdiction of the enquiry under Section 129 of the Land Revenue Act, it is necessary to advert to the provisions of Section 128 of the Act which reads thus: 128. Acquisition of rights to be reported.-(1) Any person acquiring by succession, survivorship, inheritance, partition, purchase, mortgage, gift, lease or otherwise, any right as holder, occupant, owner, mortgagee, landlord or tenant of the land or assignee of the rent or revenue thereof, shall report orally or in writing his acquisition of such right to the prescribed officer of the village within three months from the date of such acquisition, and the said officer shall at once give written acknowledgement of the receipt of the report to the person making it: Provided that where the person acquiring the right is a minor otherwise disqualified, his guardian or other person having charge of his property shall make the report to the prescribed officer: Provided further that any person acquiring a right by virtue of a registered document shall be exempted form the obligation to report to the prescribed officer: [Provided also that any person reporting under this Sub-section acquisition by him of a right in partition in respect of the land shall annex with the report a sketch showing the metes and bounds and other prescribed particulars of such land and such person shall get the sketch prepared by a licensed surveyors]. Explanation I.-The rights mentioned above include a mortgage without possession but do not include an easement or a charge not amounting to a mortgage of the kind specified in Section 100 of the Transfer of Property Act, 1882 (Central Act No. 4 of 1882). Explanation II.-A person in whose favour a mortgage is discharged or extinguished or a lease determined acquires a right within the meaning of this section. (2) Notwithstanding anything contained in Sub-section (1), the State Government may by notification, appoint any revenue Officer to whom a report under Sub-section (1) may be made, in which case such officer shall give a written acknowledgment of the receipt of such report to the person making it, and forward the report to the prescribed officer of the village concerned. (2) Notwithstanding anything contained in Sub-section (1), the State Government may by notification, appoint any revenue Officer to whom a report under Sub-section (1) may be made, in which case such officer shall give a written acknowledgment of the receipt of such report to the person making it, and forward the report to the prescribed officer of the village concerned. (3) If any person makes a report under Sub-section (1) or Sub-section (2)- (a) After the period of three months but within the period of one year from the date of acquisition of the right, the report shall be received on payment of a penalty of two rupees; (b) After a period of one year from the date of such acquisition, the report shall be received on payment of a penalty of not less than two rupees but not exceeding ten rupees, as may be ordered- (i) by the Tahsildar, in case the report is made under Sub-section (1) to the prescribed officer, or (ii) by the Revenue Officer, in case the report is made to such officer under Sub-section (2). (4) No document by virtue of which any person acquires a right in any land as holder, occupant, owner, mortgagee, landlord or tenant or assignee of the rent or revenue thereunder, shall be registered under the Indian Registration Act, 1908 (Central Act 12 of 1908), unless the person liable to pay the registration fee also pays to the registering authority such fees as may be prescribed for making the necessary entries in the record of rights and registers referred to in Section 129; and on the registration of such a document, the registering authority shall make a report of the acquisition of the right to the prescribed officer. 4. The provisions of Section 128 postulates different situations in request for mutation of entry in the Land Revenue Records. Acquisition of right by virtue of a registered document is one of the recognised types, when a person acquires right under any registered document in respect of a land governed by the Act, there is no obligation cast on him to report to the Revenue Officer specifically for mutation. Sub-section (4) of Section 128 itself provides a procedure as to how such registered documents have to be reported and intimated to the revenue authorities to carry out the mutations in accordance with the contents of the registered instrument. Sub-section (4) of Section 128 itself provides a procedure as to how such registered documents have to be reported and intimated to the revenue authorities to carry out the mutations in accordance with the contents of the registered instrument. Therefore, meticulous reading of the provisions of Section 128 discloses that whenever a person acquires right under the registered document, the revenue authorities are bound to carry out mutations in accordance with the contents of the registered document. 5. Section 129 provides procedure to deal with the disputed cases of mutation of entries whenever a request for mutation is made, the said request will be made known by publication in the Chavadi to enable the interested persons to submit their objections. In the event of objections being filed, they have to be separately maintained in the register, the authority after hearing both the parties in respect of the objections shall dispose of the objections. The enquiry contemplated under Section 129 of the Act strictly in essence a summary enquiry. Under the guise of the enquiry under Section 129 of the Act, the revenue authorities have no jurisdiction to adjudicate the title and rights of the parties. Only on the basis of prima facie material, the authorities have to carry out the mutation entries. 6. The entry in Khatedar column is not proof of possession or title. The mutation entry in the khatedars column does not invest or divest any title of person in the property nor it has effect of affecting possessory rights of any person in respect of the property. The entry of name in the khatedar column carries a liability to pay the tax and it is not a document of title or ownership. The wisdom behind the entry of the name of the owner in khatedar column is obviously for the reason that rightful owner of the property should be held accountable for legal purposes including the payment of tax. In that view, necessarily and normally a person having right in the property will have to be shown as khatedar of the property. However, conversely it cannot be inferred or argued that a person shown in khatedar column necessarily is the owner. It may be one of the incidences or corroborative fact to prove the ownership but not conclusive fact of proof of ownership. However, conversely it cannot be inferred or argued that a person shown in khatedar column necessarily is the owner. It may be one of the incidences or corroborative fact to prove the ownership but not conclusive fact of proof of ownership. In the background of the said legal propositions attending the mutation of the entries, the authorities who have to act under Section 129 of the Act have to go by the prima facie material. 7. Therefore, in view of the meaningful reading of the provisions of Section 128 of the Act, whenever the registered document is there, it is just and necessary for the land revenue authorities to mutate the name of the persons who have acquired right by virtue of registered document. If any person challenges or disputes the validity or legality of the document, it is for the person taking such stand to approach the Civil Court and vindicate his rights. However, if claim for mutation is not based upon registered document, then on the basis of prima facie material the case of the person having better claims has to be considered. The law does not envisage or permit the khatedar column to be kept vacant or continued to be in the dead persons name only on the ground that there is a dispute. Whatever, the entries made in the khatedar columns is only a tentative entry and subject to the result of the civil proceedings. In the instant case, the 2nd respondent's acquisition of right evidently being under registered document, the entry of name of the 2nd respondent does not appear to be illegal and contrary to the provisions of Section 128 of the Act. 8. The decision cited by the Counsel for the Petitioner if read carefully also makes it clear that the proof of Will is to be made either in the Court of law or any procedure known to law, under Section 128 of the Act, the mutation of the name has to be on the basis of the registered document obviously a valid procedure mandated by law is followed and the entry is made pursuant to the registered Will the decision cited has of no avail to buttress the case of the Petitioner. However, it is open for the Petitioner to vindicate his rights before the Civil Court and subject to the result of the civil suit, mutation entries have to be confirmed or cancelled as the case may be. 9. Accordingly, the writ petition is dismissed. 10. Sri V.Y. Kumar, Government Advocate appearing for Respondent No. 1 is permitted to file memo of appearance within four weeks.