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2009 DIGILAW 951 (KAR)

JAYAMMA v. STATE OF KARNATAKA

2009-12-02

A.S.BOPANNA

body2009
JUDGMENT KARNATAKA LAND REVENUE ACT, 1964, Section 107Karnataka Land Revenue Rules, 1966, Rules 50, 51, 52 and 53 - Petitioner sought survey of land in view of dispute relating to extent of land - Tahsildar issued endorsement that survey cannot be conducted in view of pendency of suit in Court Aggrieved petitioner filed writ petition seeking mandamus to direct surveyor to survey land - Survey authorities contended that survey could not be conducted due to non-eo-operation of villagers and also pendency of law suit Held - Suit to which reference is made has nothing to do with surveyor in carrying out his legal obligation - Not taken any steps to carry out survey - Surveyor directed to carry out survey - Directed to issue notice to all parties -If any dispute arises, procedure contemplated in law shall be followed. A.S. Bopanna, J., Held: A perusal of suit plaint would indicate that the petitioner is not a party to the said suit. The suit in question is an inter se partition suit between the family members. . . . . . The suit to which reference has been made in the endorsement impugned in the petition has nothing to do with the surveyor in carrying out his legal obligation. Therefore to the said extent the impugned endorsement is not sustainable and the same is liable to be quashed, which is accordingly done. . . . . . Having come to the said conclusion and also having noticed the fact that the surveyor has not taken any steps to carry out the survey as contemplated in law, it is necessary to direct to carry out the survey as contemplated under the Karnataka Land Revenue Act, 1964 and the Karnataka Land Revenue Rules, 1966. The surveyor is directed to issue notice to all the parties concerned and strictly follow the rules and complete the survey. It is needless to mention that while doing so if there is any dispute, the procedure contemplated in law shall be followed strictly and complete in accordance with law. In order to hasten the process, the petitioner shall me a fresh representation seeking for survey along with a certified copy of this order. The Tahsildar shall issue notice to all the parties concerned and fix the date for carrying out the survey. In order to hasten the process, the petitioner shall me a fresh representation seeking for survey along with a certified copy of this order. The Tahsildar shall issue notice to all the parties concerned and fix the date for carrying out the survey. Thereafter the entire process shall be carried out expeditiously as possible, but not later than a period of four months from the day which is notified by the Tahsildar for appearance of the parties for conducting the survey. (paras 4, 5 and 6) The Court, made the following: ORDRR The petitioner is before this Court assailing the endorsement dated 5-12-2007 issued by the third respondent, which is impugned at Annexure-B to the petition. The petitioner has also sought for mandamus to direct the third respondent to conduct the survey in accordance with law and to prepare the sketch. 2. The petitioner claims to be the owner in possession of the property bearing Survey No. 10/1 measuring 1 acre 32 guntas situate at Kengal Kempohalli Village, Sompura Hobli, Nelamangala Taluk. The petitioner claims that the revenue records also stands in the name of the petitioner. However, while carrying out the mutation order, the revenue authorities had wrongly indicated only 35 guntas of land in block No. 3 and in that context, the dispute has arisen. The fourth respondent herein claims right to certain other extents of the property in the very same Survey No. 10/1. It is in that context, there was a suit for injunction between the petitioner and the fourth respondent herein in O.S. No. 414 of 1995. The suit instituted by the fourth respondent was dismissed and subsequently the regular appeal filed by him is also said to have been dismissed. In view of the dispute relating to the extent of the property, there were several other proceedings between the petitioner and the fourth respondent. In order to settle these aspects of the matter, the petitioner has sought for survey of the land so that the extent owned by the petitioner based on the documents can be properly ascertained and the boundaries could be fixed. In response to the request made by the petitioner, the Tahsildar-respondent 3 has issued an endorsement dated 5-12-2007 whereunder it is indicated that the survey cannot be conducted in view of the pendency of the suit is O.S. No. 35 of 2003. The petitioner is aggrieved by the said endorsement. In response to the request made by the petitioner, the Tahsildar-respondent 3 has issued an endorsement dated 5-12-2007 whereunder it is indicated that the survey cannot be conducted in view of the pendency of the suit is O.S. No. 35 of 2003. The petitioner is aggrieved by the said endorsement. 3. The learned Government Advocate for respondents 1 to 3, however seeks to justify the action of the respondents by contending that in view of the pendency of the suit, survey could not be held. It is also contended that since there is non-co-operation from the villagers for holding the survey, the third respondent was unable to carry out the survey and in that circumstance, the said endorsement has been issued. The learned Government Advocate also refers to the procedure contemplated in Section 107 of the Karnataka Land Revenue Act, 1964 read with Rule 50 to 53 of the Karnataka Land Revenue Rules, 1966, which contemplates the procedure regarding the survey. Therefore, the learned Government Advocate contends that since the villagers had not co-operated with the third respondent, he could not conduct the survey. 4. In the light of the rival contentions, insofar as the extent to which the petitioner claims right, the document would have to be relied upon by the petitioner and based on the said document, the survey would ascertain the actual identity and extent of the property. Insofar as the inter se dispute between the petitioner and the fourth respondent in the earlier suit, it is evident from the papers on record that the suit as well as the regular appeal in that regard filed by the fourth respondent has been dismissed. However, in the impugned endorsement, a reference is made to O.S. No. 35 of 2003. A copy of the plaint in the said suit has also been produced along with this petition. A perusal of the same would indicate that the petitioner is not a party to the said suit. But the fourth respondent herein is the fifth defendant in the said suit. The suit in question is an inter se partition suit between the family members of the fourth respondent herein. In the schedule to the said suit the property bearing Survey No. 10/1 to an extent of 13 acres 39 guntas is also included as one of the items of the property. The suit in question is an inter se partition suit between the family members of the fourth respondent herein. In the schedule to the said suit the property bearing Survey No. 10/1 to an extent of 13 acres 39 guntas is also included as one of the items of the property. The fact that there is a larger extent than the said extent in Survey No. 10/1 is not disputed. Since the third respondent had not carried out survey in accordance with law, the petitioner had also approached the Lokayuktha by preferring a complaint in this regard. Though the said proceedings may not be directly relevant to the issue but the sequence, which occurred therein, requires to be noticed. 5. The plaintiffs in the said partition suit had made a' statement before the Lokayuktha stating that the property to which the petitioner claims right is not part of the property which is the subject-matter of the suit. Further, certain villagers had also submitted a representation before the Lokayuktha stating that the property was not surveyed and they have also stated that on 7-11-2007, they were all present but there was no survey conducted. This aspect of the matter is referred only to indicate that the third respondent has not yet discharged his legal duty of following the procedure for carrying out the survey. Further, as already noticed, the suit to which reference has been made in the endorsement impugned in the petition has nothing to do with the third respondent in carrying out his legal obligation. Therefore to the said extent the impugned endorsement is not sustainable and the same is liable to be quashed, which is accordingly done. 6. Having come to the said conclusion and also having noticed the fact that the third respondent has not taken any steps to carry out the survey as contemplated in law, it is necessary to direct the third respondent to carry out the survey as contemplated under the Karnataka Land Revenue Act, 1964 and the Karnataka Land Revenue Rules, 1966 to which a reference was made by the learned Government Advocate. Vide Rule 50 onwards, a detailed procedure is contemplated with regard to the survey. There is nothing on record to indicate that the said procedure had been followed. Vide Rule 50 onwards, a detailed procedure is contemplated with regard to the survey. There is nothing on record to indicate that the said procedure had been followed. Therefore, the third respondent is directed to issue notice to all the parties concerned and strictly follow the rules and complete the survey. It is needless to mention that while doing so if there is any dispute, the procedure contemplated in law shall be followed strictly and complete in accordance with law. In order to hasten the process, the petitioner shall file a fresh representation before the third respondent seeking for survey along with a certified copy of this order. Immediately thereafter, but in any event, not later than one month from the date of receipt of the representation, the Tahsildar shall issue notice to all the parties concerned and fix the date for carrying out the survey. Thereafter the entire process shall be carried out by the third respondent as expeditiously as possible, but not later than a period of four months from the day which is notified by the Tahsildar for appearance of the parties for conducting the survey. 7. In terms of the above, the petition stands disposed of. No order as to cost.