Research › Search › Judgment

Karnataka High Court · body

2013 DIGILAW 961 (KAR)

Gangamma v. Government of Karnataka

2013-08-21

D.V.SHYLENDRA KUMAR

body2013
Judgment : 1. Writ petitioner claims to have succeeded to the property, an agricultural land measuring 2 acres 16 guntas in Sy No 64 of Bhuthanahalli village, Jigani hobli, Anekal taluk in Bangalore district. 2. It is the case of the petitioner that this extent of land had been initially granted to one Gidda Bhovi s/o Munivenktappa; that her husband also by name Munivenkatappa is the brother of Gidda Bhovi; that the brothers were living together and the subject land was being treated as family property and enjoyed by both brothers; that Gidda Bhovi, who had been granted this land by government on 10-12-1960, had died without any issues and was survived only by his brother Munivenkatappa; that Munivenkatappa continued to be in possession and cultivation of the land along with his wife, the writ petitioner; that the husband of the petitioner also died and following this, petitioner had sought for change of khata in her name in respect of subject land; that it had been so changed in proceedings No IHC 8/1986-87 and the petitioner has continued in exclusive possession and cultivation of the land and khata stood in her name as per the succession to the land which had been originally granted in favour of Gidda Bhovi. 3. It appears, the tahsildar, Anekal taluk reported to the deputy commissioner urging to take action under Section 136(3) of the Karnataka Land Revenue Act, 1964 [for short, the Act], as he was of the opinion that revenue entries in the name of petitioner in respect of the subject land as per IHC No 8/1986-87 are not sustainable, as the land had not been transferred by the original grantee during his life etc. and the tahsildar had made a report to the deputy commissioner for holding an enquiry under Section 136(3) of the Act and to take necessary steps for correction of the revenue entries. 4. Following the same, deputy commissioner had issued notice dated 7-12-2010 under Section 136(3) of the Act to the petitioner calling upon her to defend the entries in her name by producing the original documents etc., regarding the grant of land in her favour. 4. Following the same, deputy commissioner had issued notice dated 7-12-2010 under Section 136(3) of the Act to the petitioner calling upon her to defend the entries in her name by producing the original documents etc., regarding the grant of land in her favour. Petitioner had explained to the show cause notice by producing the grant certificate issued in favour of Gidda Bhovi, report of the revenue officials and a copy of the judgment and decree passed in OS No 189 of 1987, on the file of munsiff court at Anekal, filed by one Muniyappa against the petitioner, who had claimed that the subject land had been gifted in favour of his mother, who is the sister of Gidda Bhovi and the defendant in the suit, writ petitioner, should be restrained from interfering with the peaceful possession and enjoyment of the property by the said Muniyappa. Petitioner claims that the original grantee had died issue-less; that his wife predeceased; that her husband Munivenkatappa - brother of Gidda Bhovi -was the sole successor; that they were living together and enjoyed the property together; that after the death of her husband, writ petitioner being exclusive successor being the wife of Munivenkatappa had succeeded to the property and therefore proceedings in IHC No 8/1986-87 showing her name in the revenue records is justified etc. The findings in OS No 189 of 1987 were also relied upon to contend that as against the claim of the plaintiff in the suit that the subject land had been gifted in favour of his mother, the civil court had found that while there was no gift deed in favour of mother of plaintiff, and it was observed that petitioner herein was in lawful possession of the property being the legal successor of original grantee etc. 5. 5. The deputy commissioner, after issuing notice to parties concerned and hearing them, held that it was the stand of the writ petitioner in her objections that the subject land had been gifted in her favour and also noticing that civil court in the suit referred to above had observed that gift of land by the original grantee is in violation of the conditions of grant and therefore even if there is a gift deed, it will not operate etc., and will result in cancellation of the grant and further opined that the gift in favour of writ petitioner is in violation of the conditions of grant and Gidda Bhovi having no legal heirs, the land should naturally be reverted to the government and not to any one else and therefore passed the order dated 12-7-2011 [copy at Annexure-K to the writ petition], holding that the entries in revenue record are also in violation of the grant and directed deletion of the revenue entries showing the name of the petitioner and for taking necessary further action. 6. It is aggrieved by this order of the deputy commissioner, the present writ petition. 7. Notice had been issued to the respondents. Respondents are represented by Ms M C Nagashree, learned government pleader. 8. Having regard to the short question, this matter is taken up for disposal and I have heard Sri B N Muralidhar, learned counsel for petitioner and Ms M C Nagashree, learned government pleader for respondents. 9. 7. Notice had been issued to the respondents. Respondents are represented by Ms M C Nagashree, learned government pleader. 8. Having regard to the short question, this matter is taken up for disposal and I have heard Sri B N Muralidhar, learned counsel for petitioner and Ms M C Nagashree, learned government pleader for respondents. 9. Submission of learned counsel for petitioner is that the deputy commissioner has virtually misread the representation/explanation given by the petitioner to the show cause notice issued under Section 136(3) of the Act, by pointing out to the copy of the reply produced at Annexure-J to the writ petition, that the petitioner had not claimed the right to the subject land on the basis of any gift deed executed by said Gidda Bhovi, but as successor to her husband, brother of the original grantee and also points out that the civil court had also in the judgment and decree had observed that the subject property has to necessarily enure to the benefit of the writ petitioner as successor in law to the original grantee; that the subject land was neither sold nor gifted by said Gidda Bhovi during his life time in favour of any person and the deputy commissioner has not only misread the explanation but also misunderstood the judgment and decree of the civil court; that in a notice issued under Section 136(3) of the Act, the deputy commissioner could not have proceeded to cancel the grant and a separate proceeding was required to be held to cancel the grant pointing out any violation. Learned counsel for petitioner has also placed reliance on the judgment of a Division Bench of this court in the case of H M HANUMANTHARAJU vs STATE OF KARNATAKA [ILR 2001 KAR 3445], holding that for cancellation of a granted land for any violation of the grant, that has to be done only by taking the recourse to Rule 9 of the Karnataka Land Grant Rules, 1969 [for short, the Rules] and not by issue of notice under Section 136(3) of the Act, and submits that this decision squarely covers the present dispute and the writ petition has to be allowed on the basis of this decision etc. 10. 10. Learned government pleader, on the other hand, contends that there is no need for interference with the impugned order; that the deputy commissioner has followed the procedure and had accorded opportunity to the petitioner and the order is also based on the report submitted by the tahsildar concerned recommending action and therefore urges for dismissal of the writ petition. 11. Without prejudice, learned government pleader submits that even if the impugned order is found to be faulted with any technical grounds, liberty may be reserved to the respondents to take necessary action in accordance with law etc. 12. There is no dispute regarding grant of the land being made in favour of Gidda Bhovi in the year 1960 and the husband of petitioner being brother of said Gidda Bhovi and even as per the observations made by the civil court in the judgment and decree in OS No 189 of 1987, action initiated by the deputy commissioner was only for effecting corrections to the entries in the revenue records under Section 136(3) of the Act and not for any other action. A perusal of copy of objections filed before the deputy commissioner by the petitioner to the show cause notice issued to her under Section 136(3) of the Act, reveals that she had not claimed the subject land was gifted to her by Gidda Bhovi. On the other hand, she had justified her possession and enjoyment as successor-in-interest to the estate of Gidda Bhovi and after the demise of her husband, she is being the sole legal heir has succeeded to the property. 13. The deputy commissioner has proceeded on the premise that execution of the gift deed is in violation of the conditions of grant and therefore the grant gets cancelled. Revenue entries can be corrected only after the grant is cancelled and not before and not on the basis of the observation made in an order passed under Section 136(3) of the Act. 14. The judgment relied upon by the learned counsel for petitioner only supports the stand of the petitioner that the impugned order not disclosing any action under Rule 9 of the Rules, the order is clearly not sustainable. 15. In the circumstance, this writ petition is allowed and the impugned order passed by the deputy commissioner at Annexure-K is quashed by issue of writ of certiorari. 15. In the circumstance, this writ petition is allowed and the impugned order passed by the deputy commissioner at Annexure-K is quashed by issue of writ of certiorari. However, liberty reserved to the respondents to take action in accordance with law. Rule issued and made absolute. Writ petition allowed.