Research › Search › Judgment

Karnataka High Court · body

2003 DIGILAW 76 (KAR)

C. M. AIYANNA v. STATE OF KARNATAKA

2003-01-22

N.K.PATIL

body2003
( 1 ) THE petitioner assailing the correctness of the impugned order dated 19. 7. 1999 passed by the 2nd respondent - Deputy Commissioner in Revision Petition No. 3/97-98 (Annexure-H) has filed this writ petition. ( 2 ) THE case of the petitioner is that he is the absolute owner of the piece and parcel of the agricultural lands in survey no. 67/2, 70/1 and 68/1 of Nakoor village, Somwarpet Taluk, Kodagu District and exercising all rights of ownership over the same. The petitioner contended that, he acquired the right in respect of the lands in question by virtue of a Family partition/memorandum dated 29. 4. 1969, to that the respondent no. 4 is also a party. Pursuant to the same, the revenue records of the lands in question were transferred to the name of the petitioner. Jamabandi extract for the year 1970 is produced as Annexure-B. Mutation in respect of the lands in question was changed in the name of the petitioner in the year 1970. Ever since then the petitioner is enjoying the lands in question as an exclusive owner in possession and enjoyment. ( 3 ) WHEN things stood thus, the respondents 4 and 5 have filed application before the Assistant Commissioner for deleting the name of the petitioner in col. no. 3 of the jamabandi on the ground that the said entry was made contrary to the request by the petitioners father and the petitioner. The request made by the petitioners father and the petitioner is that the petitioners name may be entered along with his father in col. no. 6 The said application was considered by the Assistant Commissioner by its order dated 30. 5. 1997 (Annexure-G) directing the parties to approach competent court as the question is purely of civil in nature. Assailing the correctness of the order dated 30. 5. 1997, the respondents 4 and 5 have preferred a revision before the Deputy Commissioner under section 136 (3) of the Karnataka Land Revenue Act. The 2nd respondent-Deputy Commissioner after hearing both sides and considering the entire material on record passed the order by setting aside the order passed by the Assistant Commissioner and the entries made in col. no. 5. 1997, the respondents 4 and 5 have preferred a revision before the Deputy Commissioner under section 136 (3) of the Karnataka Land Revenue Act. The 2nd respondent-Deputy Commissioner after hearing both sides and considering the entire material on record passed the order by setting aside the order passed by the Assistant Commissioner and the entries made in col. no. 3 of the Jamabandi giving liberty to the revision, respondent to approach the competent authority for inclusion of his name if he is entitled for the same by its order dated 19th July 1999 (Annexure-H ). Assailing the correctness of the order dated 19. 7. 1999 passed by the Deputy Commissioner, the petitioner has presented this writ petition. ( 4 ) HEARD the learned counsel for the petitioner and the learned counsel for R4 and 5 and the learned Government Advocate for R 1 to 3 at a considerable length of time. ( 5 ) THE principal submission canvassed by the learned counsel for the petitioner is that, the impugned order passed by the Deputy Commissioner exercising his revisional powers under Section 136 (3) is one without jurisdiction. He submitted that the application was given by the petitioners father along with the petitioner to the revenue authorities to enter their name in the jamabandi. Their request was considered and their names were entered in the jamabandi. To substantiate his case he has placed reliance on Annexure-A- partition deed arrived at by the members of the joint family on 29th April 1961. In view of the partition, they have made application to the revenue authorities to enter their name. The same was considered and their names were entered. No error as such was committed. This aspect of the matter is not at all considered by the Deputy Commissioner and he has proceeded contrary to the material on record. ( 6 ) FURTHER he submitted that in view of the law laid down by this court in the case reported in ILR 1986 KARNATAKA PAGE 1059 (SRIMAN MAHARAJA. NIRANJANA JAGADGURU MALLIKARJUNA MURUGARAJENDRA MAHASWAMY Vs. DEPUTY COMMISSIONER) that if any order passed under sub section 3 of Section 136 to revise the appellate order under sub- section 2 of Section 129 not appealable. The only remedy available to the party is to file a suit before the competent civil court under Section 135 of the Act. NIRANJANA JAGADGURU MALLIKARJUNA MURUGARAJENDRA MAHASWAMY Vs. DEPUTY COMMISSIONER) that if any order passed under sub section 3 of Section 136 to revise the appellate order under sub- section 2 of Section 129 not appealable. The only remedy available to the party is to file a suit before the competent civil court under Section 135 of the Act. Therefore, he submitted that if the ratio of the above said judgement is taken into consideration, the impugned order passed by the Deputy Commissioner may be set aside. Further, he submitted that there is an inordinate delay in filing the application before the Assistant Commissioner and this aspect of the matter is not at all taken into consideration by the Deputy Commissioner. Therefore, he prayed to set aside the impugned order passed by the Deputy Commissioner. ( 7 ) PER contra, the learned counsel for the R4 arid 51 inter-alia, contended and justified the impugned order passed by the Deputy Commissioner. He vehemently submitted that the preliminary objection raised by the petitioner regarding the maintainability of revision before the Deputy Commissioner under section 136 (3) of the Karnataka Land Revenue Act, has no substance. To substantiate his submission, he placed reliance on the judgment of this court in the case of SMT. MARAMMA Vs. TAHSIL OAR SHIRAGUPPA reported in ILR 1999 KARNATAKA PAGE 1203 and submitted that, the learned Judge of this court after considering the law laid down by the Division Bench of this court in ILR 1986 PAGE 1059 and by following the Full Bench decision of this court has held that the revision is maintainable before the Deputy Commissioner. Therefore the said submission of the petitioner may be set aside at threshold. Further he has pointed out that the application filed by the father of the petitioner to the revenue authority is only in respect of entering their name in col. no. 6 and there is no request on the part of the petitioner or his father to enter the name of the petitioner in col. no. 3 of the jamabandi and this aspect of the matter is rightly considered by the Deputy Commissioner after going through the original records. no. 6 and there is no request on the part of the petitioner or his father to enter the name of the petitioner in col. no. 3 of the jamabandi and this aspect of the matter is rightly considered by the Deputy Commissioner after going through the original records. Therefore the Deputy Commissioner has not committed any error and he has passed a well considered order holding that the only request in the application by the petitioner and his father is to enter the name of the petitioner along with his father in col. no. 6 only. There is no request in the said application to enter the name of the petitioner in col. no. 3 Therefore, this aspect of the matter has been rightly considered by the Deputy Commissioner and held that if at all the respondent (petitioner herein) has got any grievance he can agitate his rights before the competent civil court and take declaration and make application to enter his name in col. no. 3. Therefore he submitted that the writ petition is liable to be dismissed. Para 8. Perused the impugned order carefully re-assessed the entire material available on record with the assistance of the counsel for the parties. ( 8 ) THE father of the petitioner and the petitioner jointly made application to the Tahsildar to enter the name of the petitioner along with his father in col. no. 6 of the jamabandi maintained by the land revenue authorities. The said application was considered and the name of the petitioner was entered in col. no. 3 as well as in col. no. 6 ( 9 ) IN view of this anomaly the Respondents 4 and 5 herein have filed their application before the Assistant Commissioner requesting that the said entry made in the name of the petitioner in. col. no. 3 is contrary to the request made by the petitioner and his father. The Assistant Commissioner after considering the request of R4 and 5 has passed an order directing the petitioners (R4 and 5 herein) to approach competent court and agitate their rights. Assailing the said order, the R4 and 5 have filed a revision before the Deputy Commissioner under section 136 (3) of the Karnataka Land Revenue Act. The Assistant Commissioner after considering the request of R4 and 5 has passed an order directing the petitioners (R4 and 5 herein) to approach competent court and agitate their rights. Assailing the said order, the R4 and 5 have filed a revision before the Deputy Commissioner under section 136 (3) of the Karnataka Land Revenue Act. The Deputy Commissioner after considering the material on records and after taking into consideration the rival contentions has given a specific finding that the request made by the petitioner and his father before the revenue authorities is only in respect of entering the name of the petitioner along with his father in col. no. 6 and there is no request on behalf of the petitioner or his father to enter the name of the petitioner in col. no. 3 of the jamabandi. The Deputy Commissioner after taking into consideration the request made by the R4 and 5 herein and after the thorough scrutiny of the entire records found that there is no request on behalf of the petitioner or his father to enter the name of the petitioner in col. no. 3. Therefore, the Deputy Commissioner has set aside the orders of the Assistant Commissioner and also set aside the entry made in col. no. 3 of the jamabandi in the name of the petitioner reserving liberty to the petitioner herein to approach the competent authorities for inclusion of his name if he is entitled for the same. ( 10 ) THE submission of the learned counsel for the petitioner that the revision filed by the R4 and 5 is not maintainable before the Deputy Commissioner in view of the law laid down by this court in ILR 1996 KARNATAKA 1059 has no substance, as that judgment is referred and considered by the subsequent larger Bench of this court. By following the law laid down by the Full Bench of this court, the learned Single Judge has held that the revision is maintainable before the Deputy Commissioner under Section 136 (3) in the case of SMT MARAMMA Vs. TAHSILDAR SIRAGUPPA reported in ILR 1999 KARNATAKA 1203. Therefore the submission of the learned counsel for the petitioner is liable to be rejected. As submitted by the learned counsel for the petitioner that the name of the petitioner was entered on the basis of the partition deed dated 29. 4. 1961. TAHSILDAR SIRAGUPPA reported in ILR 1999 KARNATAKA 1203. Therefore the submission of the learned counsel for the petitioner is liable to be rejected. As submitted by the learned counsel for the petitioner that the name of the petitioner was entered on the basis of the partition deed dated 29. 4. 1961. The reliance placed by the learned counsel for the petitioner is contrary to the material on records as rightly pointed out by the learned counsel for R4 and 5. On perusal of the partition deed, there are 4 schedules i. e. , schedule A. B. C. and D and there is no reference in those schedules in respect of the land in sy. no. 67/2, 70/1 and 68/1 of Nakoor village. Therefore, the, above submission and reliance placed has no basis. Hence, it is liable to be rejected. ( 11 ) HAVING regard to the facts and circumstances of the case and having regard to the legal and factual position of the matter as enumerated above, I do not find any error of law in the impugned order dated 19. 7. 1999 passed by the Deputy Commissioner. The petitioner has not made out any prima facie case to interfere with the order passed by the Deputy Commissioner. Therefore, the writ petition is liable to be dismissed. ( 12 ) ACCORDINGLY, the wit petition is dismissed. Liberty has been reserved to the petitioner to work out his remedy before the competent civil court, if he so desires. Government Advocate is permitted to file memo of appearance for R1 and 2 within 4 weeks from today.