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2019 DIGILAW 15 (KAR)

Bassappa v. Deputy Commissioner Bidar District

2019-01-02

B.VEERAPPA

body2019
ORDER L B. Veerappa, J. 1. The petitioners have filed this present writ petition for writ of certiorari to quash the order dated 04.05.2018 in file passed by the respondent No. 1-The Deputy Commissioner, Bidar allowing the revision petition bearing R.P. No. 28/2016-17 directing the respondent No. 5 to effect the mutation in favour of the respondent No. 2-The Karnataka Housing Board, as per Annexure-N, as illegal and arbitrary and to issue a writ of mandamus directing the respondents No. 2 and 3 from creating any rights in favour of the third parties pursuant to the impugned order. 2. It is the case of the petitioners that, they are the joint owners and in possession of the land Sy. No. 8/1 measuring 14 acres 12 guntas and Sy. No. 9/1 measuring 32 acres 37 guntas situated at Gunalli village Tq & Dist: Bidar. The petitioners' grandfather namely late-Bandeppa along with his two brothers by name Gundappa and Tukkappa together with sister Shankaremma were the joint owners of land Sy. No. 8/1 measuring 14 acres 12 guntas and Sy. No. 9/1 measuring 32 acres 37 guntas situated at Gunalli village Tq & Dist: Bidar. Since, there was no partition in the joint family properties. However, all the revenue records in respect of the said properties were standing in the name of elder brother of late-Bandappa by name Tukkappa S/o. Babugond who being elder member of the family. 3. It is further contended that, cousin brother of father of the petitioners by colluding with one Sri. Baburao S/o. Marutheppa Sanagonda, Malkapure, has got created alleged registered Power-of-Attorney allegedly executed on 05.07.2007 in presence of First Division Clerk by name Sri. Ravindra A. Hanchanal, who was allegedly deputed for the purpose of securing the signatures of all the family members, who in turn had submitted the said documents allegedly duly signed by the members of the family. The said document was registered on 11.05.2007 in the office of Sub-Registrar, Bidar. It is further alleged that, based on the alleged Power-of-Attorney the said Sri. Baburao S/o. Marutheppa Sanagonda has executed a registered sale deed dated 11.07.2007 in favour of respondent No. 2-Housing Board for a consideration of Rs. 6,50,000/- per acre. Based on the sale deed the respondent No. 2-Housing Board approached the Tahasildar for effecting the revenue entries in its name. The Tahasildar has refused to effect the mutation. Baburao S/o. Marutheppa Sanagonda has executed a registered sale deed dated 11.07.2007 in favour of respondent No. 2-Housing Board for a consideration of Rs. 6,50,000/- per acre. Based on the sale deed the respondent No. 2-Housing Board approached the Tahasildar for effecting the revenue entries in its name. The Tahasildar has refused to effect the mutation. Aggrieved by the rejection order the respondent No. 2-Housing Board has filed appeal before the Assistant Commissioner, which was also dismissed. 4. Being aggrieved by the orders of Tahasildar and Assistant Commissioner, the respondent No. 2-Housing Board has filed revision petition under the provisions of Section 136 (3) of Karnataka Land Revenue Act 1964, before the Deputy Commissioner. The Deputy Commissioner after hearing both the parties by impugned order dated 04.05.2018 allowed the revision petition and set-aside the order passed by the Tahasildar as well as Assistant Commissioner and directed the Tahasildar to enter the name of respondent No. 2-Housing Board in the RTC under the provisions of Sections 128 and 129 of Karnataka Land Revenue Act, 1964 reserving liberty to the petitioners, to establish their rights if any before the competent civil Court. Hence, the present writ petition is filed. 5. I have heard the learned counsel appearing for the parties to the lis. 6. Sri. Ravi B. Patil, learned counsel for the petitioners vehemently contended that, the impugned order passed by the respondent No. 1-The Deputy Commissioner Bidar, is highly arbitrary and violation of the principles of natural of justice. He further contended that, respondents No. 4 and 5 - The Assistant Commissioner Bidar and the Tahasildar Bidar respectively have rightly observed that, the sale deed executed in favour of the respondent No. 2-Housing Board without there being any succession and mutation in the name of the successors of the persons, who are already dead. The same is not considered by the Deputy Commissioner while passing the impugned order. He would further contend that, respondent No. 1 proceeded to allow the revision petition only on the basis of registered sale deed. He would further contended that, the observations made by the respondent No. 1-The Deputy Commissioner, Bidar in view of the provisions of Sections 128 and 129 of Karnataka Land Revenue Act, 1964 is erroneous and contrary to the material on record, which cannot be sustainable. 7. He would further contended that, the observations made by the respondent No. 1-The Deputy Commissioner, Bidar in view of the provisions of Sections 128 and 129 of Karnataka Land Revenue Act, 1964 is erroneous and contrary to the material on record, which cannot be sustainable. 7. He further contended that, the petitioners have also filed suit in O.S. No. 100/2010 for partition and declaration that, the alleged sale deed through Power-of-Attorney Holder is not binding on the petitioners. The said suit came to be dismissed as withdrawn on 09.04.2018 with liberty to file afresh suit. Accordingly, the petitioners have also filed suit in O.S. No. 65/2018 before the II Additional Senior Civil Judge at Bidar for partition and declaring that, the sale deed executed in favour of respondent No. 2-Housing Board is not binding on the petitioners. Hence, he prayed to allow the petition. 8. Per contra, Smt. Arati Patil, the learned High Court Government Pleader for Respondents No. 1, 4 and 5, sought to justify the impugned order passed by the Deputy Commissioner, Bidar. She contended that, it is the duty of the revenue authorities including the Deputy Commissioner, before passing of any orders they have to follow the registered sale deed as contemplated under the provisions of Sections 128 and 129 of Karnataka Land Revenue Act, 1964. She further contended that, the Deputy Commissioner by exercising his revisional jurisdiction directed the respondent No. 5-Tahasildar to enter the name of respondent No. 2-Housing Board in the revenue records on the basis of registered sale deed. The same is in accordance with law. Hence, she sought to dismiss the petition. 9. Sri. Shivakumar Malipatil, learned counsel for the respondents No. 2 and 3 sought to justify the order passed by the Deputy Commissioner, Bidar. He contended that, petitioners by Power-of-Attorney Holder executed the sale deed in favour of the respondent No. 2-Housing Board duly effected on 11.07.2007. It was duly registered before the Sub-Registrar Office. Till today the said sale deed, is not challenged by the present petitioners. He contended that, petitioners by Power-of-Attorney Holder executed the sale deed in favour of the respondent No. 2-Housing Board duly effected on 11.07.2007. It was duly registered before the Sub-Registrar Office. Till today the said sale deed, is not challenged by the present petitioners. Therefore, the Deputy Commissioner by exercising power under Section 136 (3) of Karnataka Land Revenue Act, 1964 has rightly allowed the revision petition and directed the respondent No. 5-Tahasildar to enter the name of respondent No. 2-Housing Board on the basis of registered sale deed in view of the provisions of Sections 127 and 128 of Karnataka Land Revenue Act, 1964 reserving liberty to the petitioners to establish their rights if need arises before the competent civil Court. Admittedly, suit filed by the petitioners in O.S. No. 100/2010 came to dismiss as withdrawn on 09.04.2018 with liberty to file fresh suit. Therefore, the impugned order passed by the Deputy Commissioner is just and proper and this Court cannot interfere in the order passed by the Deputy Commissioner, Bidar by exercising power under Articles 226 and 227 of Constitution of India, 1950. Hence, he sought to dismiss the petition. 10. Having heard the learned counsel for the parties, it is undisputed fact that, based on the registered sale deed dated 11.07.2007 the respondent No. 2-Housing Board approached the jurisdictional Tahasildar-respondent No. 5 for changing of Khata. The Tahasildar as well as the Assistant Commissioner rejected the claim for changing the Khata. The same is rectified by the Deputy Commissioner, Bidar by exercising power under Section 136 (3) of Karnataka land Revenue Act, 1964, mainly on the ground that, the sale deed executed in favour of the respondent No. 2-Housing Board is in the year 2007. The said sale deed is not yet challenged or not cancelled by any competent civil Court. It is the duty of the revenue authorities to enter the name of the purchasers who purchased the registered sale deed in respect of the properties in question under the provisions of Sections 128 and 129 of Karnataka Land Revenue Act, 1964. The petitioners have not filed the suit even after lapse of 11 years and sale deed is yet not cancelled. Therefore, the Deputy Commissioner, Bidar has allowed the revision petition directing the respondent No. 5-Thasildar to enter the name of respondent No. 2-Housing Board on the basis of registered sale deed. 11. The petitioners have not filed the suit even after lapse of 11 years and sale deed is yet not cancelled. Therefore, the Deputy Commissioner, Bidar has allowed the revision petition directing the respondent No. 5-Thasildar to enter the name of respondent No. 2-Housing Board on the basis of registered sale deed. 11. It is also not in dispute that, the present petitioners have filed suit in O.S. No. 100/2010 for partition and declaration to declare that, the sale deed made in favour of the respondent No. 2-Housing Board on the basis of Power-of-Attorney is not binding on the petitioners. Admittedly, the said suit came to be dismissed as withdrawn on 09.04.2018 with liberty to file fresh suit. Accordingly, the petitioner has filed fresh suit in O.S. No. 65/2018 before II Additional Senior Civil Judge at Bidar for partition and declaration to declare that, the sale deed executed in favour of respondent No. 2-Housing Board by Power-of-Attorney is not binding on the petitioners. It is for the petitioners to establish before the competent civil Court that sale deed made in favour of the respondent No. 2-Housing Board dated 11.07.2007, is not binding on the petitioners, as observed by the Deputy Commissioner, Bidar. 12. For the reasons stated above, the petitioners have not made out any ground to interfere with the impugned order passed by the Deputy Commissioner, Bidar in exercise of revisional power under the provisions of Section 136 (3) of Karnataka Land Revenue Act, 1964 on the basis of registered sale deed in view of the provisions of Sections 128 and 129 of Karnataka Land Revenue Act, 1964 and same is in accordance with law. 13. The petitioners have not made out any ground to interfere with the impugned order passed by the Deputy Commissioner, Bidar, in exercise of power under Articles 226 and 227 of constitution of India. Accordingly, the writ petition is disposed off. However, it is made clear that, the decree to be passed in O.S. No. 65/2018 filed by the petitioners before the II Additional Senior Civil Judge, Bidar against the respondent No. 2-Housing Board will binding on the parties as well as revenue authorities. It is needless to observe that, if respondent No. 2 trying to alienate the properties as alleged by the petitioners, it is always open for the petitioners to file necessary applications before the competent civil Court. 14. It is needless to observe that, if respondent No. 2 trying to alienate the properties as alleged by the petitioners, it is always open for the petitioners to file necessary applications before the competent civil Court. 14. It is also clarified that, any observations made by revenue authorities namely, Tahasildar, Assistant Commissioner and Deputy Commissioner, shall not come in the way either by the parties to establish their independent rights before the competent civil Court. Ultimately, decree to be passed by the competent civil Court shall be binding on the parties to the lis as well as revenue authorities. Ordered accordingly.