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2014 DIGILAW 86 (KAR)

Pujari Sallapuriyappa v. Special Tahsildar

2014-01-28

JAWAD RAHIM

body2014
ORDER 1. The petitioner in this writ action seeks writ in the nature of certiorari to quash the order dated 11-3-2004, passed by the 2nd respondent in No. RRT.CR. 245/2003-2004 as per Annexure-E directing transfer of khata. Learned Counsel Sri H.N.N. Prasad takes notice for respondent 5 and 6, while Ashwathappa, learned AGA appeared for respondent 1 to 3. 2. Heard learned Counsel Sri Shekar Shetty for the petitioner and Sri H.N.N. Prasad for respondents 5 and 6 and learned AGA for respondents 1 to 3 and Sri Kantharaj-learned Counsel for respondents 4(a) to 4(e). Perused the records in supplementation thereto which reveals the following contextual facts necessary for consideration: "The petitioner claims that the land in Sy. No. 22 now assigned 135 measuring 2 acres situate at Suragajakkanahalli Village, Kasba Hobli, Anekal Taluk, Bangalore District, was originally allotted to Poojari Venkatana Bhovi alias P. Venkataswamy Bhovi by virtue of grant made in his favour on 1-10-1952. Having thus obtained grant, he continued to be in physical possession and enjoyment during entire lifetime and upon his death, the petitioner as his legal representative succeeded to his estate and is in continuous possession and enjoyment." 3. It is also averred that the petitioner's father was performing pooja to the deity in the temple at Yadiyoor Village. After his demise the petitioner continued to perform the duties of Pooja to the said deity. The petitioner has produced voters identity card issued by the Election Commission vide Annexure-C along with caste certificate vide Annexure-B. 4. Petitioner's contention is, while he was in physical possession and enjoyment of the property in question having acquired lawful title from his father, the 4th respondent who has no semblance of right, title or interest in the property falsely represented and claimed to be son of Venkatana Bovi (misusing name of petitioner's father) and applied for change of khata in his name. The first respondent-Tahsildar received the application but issued an endorsement directing to approach the 2nd respondent-Assistant Commissioner for appropriate orders vide endorsement dated 20-12-2003 in No. RRT.CR. 245/2003-2004 directing registration of khata in the name of 4th respondent by deleting the name of the petitioner's father and petitioner appearing in the records. The first respondent-Tahsildar received the application but issued an endorsement directing to approach the 2nd respondent-Assistant Commissioner for appropriate orders vide endorsement dated 20-12-2003 in No. RRT.CR. 245/2003-2004 directing registration of khata in the name of 4th respondent by deleting the name of the petitioner's father and petitioner appearing in the records. The petitioner learnt of such order from others and applied for certified copy which was issued vide Annexure-E. The petitioner was shocked and surprised to see the 2nd respondent has without any basis or proof of title transferred the khata to the name of the 4th respondent deleting his name. The 4th respondent having obtained such a fraudulent transfer has sold the property to 5th and 6th respondents herein. In the circumstances, the petitioner preferred a revision before the third respondent in Revision Petition No. 334 of 2009-10 in which the 4th respondent was brought into party array. The third respondent without taking into consideration all legal and factual issues raised by the petitioner, by the truncated order dated 31-1-2012 vide Annexure-F dismissed the revision. Assailing it, the petitioner is in this writ action. 5. Learned Counsel Sri Shekar Shetty for the petitioner would submit the petitioner has established he is the son of Venkatana Bovi alias P. Venkataswamy Bovy. Voters identity card and the grant made by the Government on 1-10-1952 supports the petitioner's contention that his father was called Poojari Venkatana Bovi as also P. Venkata Swamy Bovi. He submits the 4th respondent who is not genetically related to petitioner's father laid a false claim before the first respondent-Tahsildar claimed to be son of Venkatana Bovi and sought for transfer of khata in his name. He submits the first respondent issued an endorsement to the 4th respondent requesting him to approach the 2nd respondent-Assistant Commissioner. He submits the 2nd respondent was obliged under law to have held detailed enquiry after due notice to the petitioner. But the 2nd respondent has not only failed to notify the petitioner of the application filed by the 4th respondent for change of khata nor any detailed enquiry is conducted to ascertain who is entitled to be entered as khatedar. In this regard, Sri Shekar Shetty submits the petitioner as a legal heir of P. Venkatana Bovi alias P. Venkataswamy Bhovi had already obtained khata transferred in his name by virtue of order Competent Revenue Authority in case No. IHC 2/1991-92. In this regard, Sri Shekar Shetty submits the petitioner as a legal heir of P. Venkatana Bovi alias P. Venkataswamy Bhovi had already obtained khata transferred in his name by virtue of order Competent Revenue Authority in case No. IHC 2/1991-92. In pursuance of that proceedings, RTC was changed to his name as seen from Annexure-A. He submits the 2nd respondent was required to verify the revenue records before considering the request of the 4th respondent. But the 2nd respondent has mechanically registered the application of the 4th respondent in No. RRT.CR.245/2003-04, and without detailed enquiry has arbitrarily passed the order to enter the name of the 4th respondent. Thus he has assailed the order not only on the ground of contravening the mandatory provisions of Karnataka Land Revenue Act, 1964 and the Karnataka Land Revenue Rules, 1966 made there but has also questioned the order on the ground of violation of the principles of natural justice. 6. Sri Shekar Shetty would submit such an illegal order has been erroneously upheld by the Deputy Commissioner and therefore, the impugned order by the Deputy Commissioner and the 2nd respondent needs to be quashed. 7. In negation of the grounds urged by Sri Shekar Shetty, Mr. H.N.N. Prasad submits respondents 5 and 6 are bona fide purchasers of the property from Jayappa. Jayappa had sold the property to them after obtaining prior permission from the Competent Authorities. Therefore, it cannot be said that Jayappa was not the son of P. Venkatana Bovi or that he had not succeeded to his estate. He would submit the 4th respondent-Jayappa was in physical possession and enjoyment of the property till his death. He had obtained transfer of khata before the 2nd respondent vide Annexure-E and therefore, no further enquiry was necessary. 8. As regards the petitioner's claim Sri Prasad submits he is imposter. He disputed the petitioner is the son of Venkata Bovi. In this regard he refers to certain revenue records to show that the original allottee was not petitioner's father but he was P. Venkata Swamy Bovi father of the 4th respondent. On this basis he seeks rejection of the writ petition. 9. Sri Kantharaj appearing for legal heir of 4th respondent submits petitioner is not the son of the original allotee of the land. On this basis he seeks rejection of the writ petition. 9. Sri Kantharaj appearing for legal heir of 4th respondent submits petitioner is not the son of the original allotee of the land. He also contends the original allotee was P. Venkata Swamy Bovi and he has left behind only 4th respondent. It is suffice to say the 4th respondent claims to be the son of P. Venakta Swamy the original allotee while the petitioners' also put forward similar claim. 10. On behalf of the Government Sri Aswatappa could not support the order passed by the Deputy Commissioner rejecting the petitioner's Revision Petition No. 334 of 2009-2010 vide order Annexure-F, dated 31-1-2012. 11. Keeping in mind the contentions of both sides, I have perused the records made avail able. It admits of no doubt that khata of the property in question was in the name of Poojari Venkata Bovi alias P. Venkata Swamy Bovi. The said entry has been undone only by the order of the 2nd respondent in Case No. RRT.CR.245/2003-04, dated 11-3-2004 vide Annexure-E. Till Annexure-E was passed the revenue records stood in the name of the petitioner's father. The 4th respondent has applied to the Tahsildar for change of khata in his name from the name of the petitioner through his application. The Tahsildar has issued an endorsement vide Annexure-D on 20-12-2003 asking him to approach the 2nd respondent. Therefore, it was incumbent on the first respondent, 2nd respondent and 4th respondent to ascertain whose name appeared in the revenue records till 20-12-2003 vide Annexure-D passed by the Tahsildar. The 2nd respondent was required to conduct detailed enquiry which should be in the nature of fact finding. The 2nd respondent has done nothing but accepted the 4th respondent's contention that he is the son of original allotee and changed khata. The respondent's could not dispute that till Annexure-E was passed by the 2nd respondent to enter the name of 4th respondent, the petitioner's name continued as khatedar. In the circumstances, the Deputy Commissioner-third respondent has passed the impugned order Annexure-F, dated 31-1-2012 without objectively examining legal and factual issues raised by the petitioner, the order of the third respondent vide Annexure-F, dated 31-1-2012 is hereby quashed. In the circumstances, the Deputy Commissioner-third respondent has passed the impugned order Annexure-F, dated 31-1-2012 without objectively examining legal and factual issues raised by the petitioner, the order of the third respondent vide Annexure-F, dated 31-1-2012 is hereby quashed. As regards Annexure-E, the order passed by the 2nd respondent is concerned, it admits no doubt such an order has been passed without notifying the petitioner and giving him opportunity of being heard. Therefore Annexure-E, dated 11-3-2004 is also hereby quashed. The proceedings before the 2nd respondent is restored with a direction that he shall issue fresh notice to the petitioner and all concerned and after securing their presence, conduct detailed enquiry on the claim put forward by the 4th respondent and pass appropriate orders in accordance with law. The petition is allowed. Rule issued is made absolute. Sri D. Aswatappa, AGA is permitted to file memo of appearance within four weeks. Petition Allowed.