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2020 DIGILAW 1445 (KAR)

Ayyamma v. Ningamma

2020-07-21

SACHIN SHANKAR MAGADUM

body2020
JUDGMENT Sachin Shankar Magadum, J. - The captioned writ petitions are filed by the petitioners seeking writ in the nature of certiorari and quash the order bearing No.Kam/Apeelu/33/ 2016-17, K.No.22940, dated 03.01.2019 passed by the 7th respondent/Deputy Commissioner as per Annexure-M. 2. The facts leading to the top noted writ petitions are as under: The subject matter of the writ petitions are agricultures lands bearing Sy.No.12/A (12/A2) measuring 1 acre 20 guntas, Sy.No.12/C (12/C) measuring 4 acres 34 guntas and Sy.No.14 measuring 6 acres 34 guntas sitated at Ramapur village, Gangavathi Taluka, Koppal District. The said lands are renumbered as R.S.No.12/1C, R.S.No.12/2B, R.S.No.12/C and R.S.No.14. 3. It is not in dispute that all these petition lands were originally owned by one Basanagouda son of Ayyanagouda. The petitioners have averred in paragraph No.2 of the writ petitions that the said Basanagouda died in the year 1983 leaving behind him his wife Ayyamma, two sons namely Narayangouda and Ayyanagouda and two daughters namely Vijjamma @ Vi jayalaxmi and Hanamavva. The petitioners have contended that the original propositus Basanagouda sold an area measuring 2 acres 20 guntas in Sy.No.12/3 (12C) and 1 acre 20 guntas in Sy.No.12/A2 to petitioner No.7 namely Karilaxmi W/o Krishnareddi for sale consideration of Rs.36,000/- under registered sale deed dated 31.05.1978 and accordingly she was put in possession. Petitioner No.7 name was duly mutated to the revenue records pursuant to the sale deed executed by the Basanagouda. 4. At paragraph Nos.3 of the writ petitions, the petitioners have contended that, Basanagouda during his lifetime gave up his rights over an area measuring 2 acres 14 guntas out of Sy.No.12/3 in favour of his wife Ayyamma and accordingly her name was mutated to the revenue records. The wife of Basanagouda namely Ayyamma sold 2 acres 14 guntas of land in Sy.No.12/3 (12C) to petitioner No.8 through registered sale deed dated 11.05.1983 for sale consideration of Rs.25,000/-. Pursuant to sale deed, petitioner No.8's name was duly mutated to the revenue records under ME.No.31 dated 25.06.1983. Further Ayyamma sold an area measuring 1 acre 26 guntas in Sy.No.14 in favour of petitioner No.6 for sale consideration of Rs.19,000/- through registered sale deed dated 11.05.1983 and petitioner No.6 name was duly mutated to the revenue records of Sy.No.14 under M.E.No.30 dated 25.06.1983. Further Ayyamma sold an area measuring 1 acre 26 guntas in Sy.No.14 in favour of petitioner No.6 for sale consideration of Rs.19,000/- through registered sale deed dated 11.05.1983 and petitioner No.6 name was duly mutated to the revenue records of Sy.No.14 under M.E.No.30 dated 25.06.1983. The petitioners to substantiate their alienations have placed on record, the true copies of sale deeds and consequent mutations before this Court as per Annexures-B, C, D, E and F. 5. The case of the petitioners before this Court is, these mutations were effected way back in 1983, wherein the purchasers' names (petitioner Nos.6 to 8) came to be mutated and the same are not at all challenged till this date. The grievance of the petitioners is that it is only in 2012, respondent No.1 who has no semblance of right and title and who is no way related to deceased Basanagouda submitted an application to respondent Nos.5/Tahasildar seeking for entry of her name to the revenue record. The 5th respondent issued an endorsement on 06.12.2012 in RRT/8/2012-13, thereby declining to enter the name of respondent No.1. It appears, respondent No.1 preferred an appeal before the 6th respondent/Assistant Commissioner in Koppal/ RRT/Appeal 164/ 2012-13. The 6th respondent/ Assistant Commissioner by order dated 28.12.2012 allowed the appeal and remanded the matter to the 5th respondent/ Tahasildar. 6. Petitioner Nos.1 and 6 to 8 being aggrieved by the order passed by the 6th respondent/Assistant Commissioner approached this Court questioning the remand order passed by the 6th respondent/Assistant Commissioner in W.P.Nos.76208-211/2013. This Court by order dated 26.03.2013 set aside the order dated 28.12.2012 passed by the 6th respondent/ Assistant Commissioner and directed the 1st respondent to implead all necessary parties in the appeal. In compliance of the order passed by this Court, the 1st respondent impleaded the predecessors of petitioner Nos.1 to 5 namely Ayyamma and also, the purchasers i.e., petitioner Nos.6 to 8 as parties in RRT Appeal No.164/2012- 13. The 6th respondent/Assistant Commissioner allowed the appeal and remanded the matter to the 5th respondent/Tahasildar. 7. After remand, the 5th respondent/ Tahasildar registered the case in Kandaya. RRT.Takaraju/25/2015-16 and by order dated 18.05.2015 directed to enter name of respondent Nos.1 to 4 in the revenue records of petition lands. 8. The 6th respondent/Assistant Commissioner allowed the appeal and remanded the matter to the 5th respondent/Tahasildar. 7. After remand, the 5th respondent/ Tahasildar registered the case in Kandaya. RRT.Takaraju/25/2015-16 and by order dated 18.05.2015 directed to enter name of respondent Nos.1 to 4 in the revenue records of petition lands. 8. The vendor Ayyamma who is the ancestor of petitioner Nos.1 to 5 and present petitioner Nos.6 to 8, being aggrieved by the order passed by the 5th respondent/Tahasildar preferred an appeal before the 6th respondent/ Assistant Commissioner in RRT Appeal No.105/ 2015-16. The 6th respondent/Assistant Commissioner allowed the appeal and set aside the order passed by 5th respondent/Tahasildar, Gangavati and directed him to enter the names as per the registered sale deeds. 9. Respondent Nos.1 to 3 and two others preferred revision before the 7th respondent/ Deputy Commissioner in Appeal No.33/2016-17. The 7th respondent/Deputy Commissioner has allowed the revision and has set aside the order passed by the 6th respondent/Assistant commissioner and has relegated the parties to await the decision of the suit pending in O.S.No.207/2011 which was renumbered as O.S.No.115/2016. 10. The petitioners at paragraph No.12 of the writ petitions have specifically averred that respondent Nos.1 to 4 have filed suit for partition and separate possession in O.S.No.207/2011. The petitioners also specifically averred that respondent Nos.1 to 4 in the said suit have also sought relief of declaration to declare the sale deeds executed by the deceased Ayyamma in favour of defendant Nos.14 to 16 i.e., the present petitioner Nos.6 to 8 as not binding on respondent Nos.1 to 4. 11. Learned counsel Sri F.V.Patil assailing the correctness of impugned order passed by the 7th respondent/Deputy Commissioner as per Annexure-M would vehemently contend before this Court that the impugned order passed by the 7th respondent/Deputy Commissioner suffers from serious infirmities and material irregularities. He would contend before this Court that petitioner Nos.6 to 8 have purchased the petition lands under registered sale deeds for valuable sale consideration and accordingly mutations are effected way back in 1983 and petitioner Nos.6 to 8 names are duly mutated to the revenue records on the basis of acquisition of valid right and title of the petition lands. He would contend before this Court that petitioner Nos.6 to 8 have purchased the petition lands under registered sale deeds for valuable sale consideration and accordingly mutations are effected way back in 1983 and petitioner Nos.6 to 8 names are duly mutated to the revenue records on the basis of acquisition of valid right and title of the petition lands. He would further submit to this Court that, the 1st respondent has no semblance of right and she has already approached Civil Court by filing a suit for partition and separate possession and relief of declaration is also sought by the respondent Nos.1 to 4 to the effect that the sale deeds executed by Ayyamma is not binding on them. 12. He would submit to this Court that the 7th respondent/Deputy Commissioner was not justified in relegating the petitioner Nos.6 to 8 to work out their rights in suit pending in O.S.No.207/2011 and this finding is perverse and contrary to mandatory provisions of Section 128 of Karnataka Land Revenue Act, 1964. 13. Countering said submissions, learned Senior Counsel Sri Jayakumar S.Patil appearing for Sri Sadiq N.Goodwala & Sri A.B.Patil, learned counsels for contesting respondents would vehemently argue and support the reasons assigned by the 5th respondent/Tahasildar. He would submit to this Court after the death of Basanagouda, the 1st respondent Ningamma being Class-1 heir, is entitle to get her name mutated to the revenue records pertaining to petition lands. He would vehemently argue and submit to this Court that on death of Basanagouda, someone's name has to be mutated and the mutation as directed by 5th respondent/Tahasildar vide Annexure-H would be subject to result of suit pending in O.S.No.207/2011. 14. To buttress his arguments, he would take this Court to statement of objections and by relying on Annexures-R2 and R.3, he would submit to this Court that, Ayyamma was exclusively allotted ancestral lands bearing Sy.Nos.69 and 28 and the same is forthcoming from the proceedings as per Annexure-R2 before the Land Tribunal, Gangavathi. 15. 14. To buttress his arguments, he would take this Court to statement of objections and by relying on Annexures-R2 and R.3, he would submit to this Court that, Ayyamma was exclusively allotted ancestral lands bearing Sy.Nos.69 and 28 and the same is forthcoming from the proceedings as per Annexure-R2 before the Land Tribunal, Gangavathi. 15. Learned Senior Counsel would rely on order passed by Land Tribunal under Section 66 of Karnataka Land Reforms Act and would contend before this Court that Ayyamma was allotted Sy.Nos.69 and 28 and hence, she had no right over the petition lands and as such the sale deeds executed by Ayyamma in favour of petitioner Nos.6 to 8 would not create any right and title over the petition lands. He would also rely on Annexure-R.3 to the statement of objections, which is declaration submitted by the Basanagouda in Form No.11 and by relying on this document he would submit to this Court that Basanagouda was living separately by making an arrangement in favour of his wife Ayyamma and as such she could not lay claim over other properties . 16. On these set of facts, learned Senior Counsel would submit to this Court that the order passed by the 5th respondent/Tahasildar and the impugned order passed by the 7th respondent/ Deputy Commissioner relegating the parties to seek redressal of their rights in O.S.No.207/2011 is in accordance with law and would not warrant any interference by this Court. 17. Per contra, learned counsel appearing for the petitioners by way of reply would submit to this Court that, the lands bearing Sy.No.12/A2 and Sy.No.12C have been sold by Basanagouda in favour of petitioner No.7 and insofar as petitioner Nos.6 to 8 are concerned they have acquired valid right and title pursuant to registered sale deed executed by the wife of Basanagouda namely Ayyamma. He would contend before this court that petitioner Nos.6 to 8 are in exclusive possession since 1983 and respondent Nos.1 to 4 on the strength of the order passed by the 5th respondent/Tahasildar are trying to dispossess. 18. He would contend before this court that petitioner Nos.6 to 8 are in exclusive possession since 1983 and respondent Nos.1 to 4 on the strength of the order passed by the 5th respondent/Tahasildar are trying to dispossess. 18. By way of reply he would also rely and take this Court to paragraph No.6 of the Plaint and would vehemently argue and contend that, respondent No.1 Ningamma was quite aware of all these transactions and she has never challenged the sale deeds till filing of the suit and hence he would submit to this Court that the mutations effected in favour of petitioner Nos.6 to 8 cannot be disturbed pending disposal of the suit. It is respondent Nos.1 to 4 who have approached the Court and have sought declaration and hence, the mutation effected in favour of petitioner Nos.6 to 8 way back in 1983 would be subject to result of suit and in this context he would submit to this Court that the order passed by the 7th respondent/Deputy Commissioner in confirming the order of the 5th respondent/Tahasildar and thereby directing to enter the names of respondent Nos.1 to 4 suffers from serious material irregularities and as such would request this Court to quash the order of 7th respondent/Deputy Commissioner. 19. Heard learned counsel for the parties and examined the material on record. 20. The relevant points that would arise for consideration before this Court are as under: a) Whether the 7th respondent / Deputy Commissioner and the 5th respondent/ Tahasildar have erred in directing the Revenue Authorities to mutate the name of respondent Nos.1 to 4 by deleting the names of petitioner Nos.6 to 8? b) Whether the orders of the 7th respondent/Deputy Commissioner as per Annexure-M and the order of 5th respondent/Tahasildar as per Annexure-H are in violation of the mandatory provisions of Section 128 of Karnataka Land Revenue Act? 21. The admitted facts are that Basanagouda sold an area measuring 2 acres 20 gutnas in Sy.No.12/3 and 1 acre 20 guntas in Sy.No.12/A2 in favour of petitioner No.7 under the registered sale deed dated 31.05.1978 for valuable sale consideration of Rs.36,000/-. Smt.Ayyamma wife of Basanagouda has sold 2 acres 14 gutnas in Sy.No.12/3 (12C) in favour of petitioner No.8 under registered sale deed dated 11.05.1983 for valuable sale consideration of Rs.25,000/-. Smt.Ayyamma wife of Basanagouda has sold 2 acres 14 gutnas in Sy.No.12/3 (12C) in favour of petitioner No.8 under registered sale deed dated 11.05.1983 for valuable sale consideration of Rs.25,000/-. Petitioner No.8's name is mutated to the revenue records under M.E No.31 dated 25.06.1983 as per Annexure-D. Petitioner No.6 has purchased Sy.No.14 measuring 1 acres 26 guntas by Ayyamma dated 11.05.1983 for valuable sale consideration of Rs.19,000/-. Mutation is effected in favour of petitioner No.6 as per M.E.No.30 dated 25.06.1983 as per Annexure-F. The material on record clearly indicates that the mutation effected under M.E.No.30 dated 25.06.1983 as per Annexure-F and mutation effected under M.E.No.31 as per Annexure-D are not at all challenged and set aside by the competent authority. These mutations under M.E.Nos.30 and 31 have attained finality. 22. The question that would arise before this Court is, as to whether respondent Nos.1 to 4 without challenging these mutations can assert rights over the petition lands and seek for mutation on the ground that they are the class-1 heirs of Basanagouda? The order under challenge needs to be examined by this Court, by taking note of filing of the suit by respondents in O.S.No.207/2011. For better understanding the controversy, the prayer sought in the Plaint by respondent Nos.1 to 4 is culled out as under: "i) Hence it is prayed that, the Hon'ble Court would be pass the judgment and decree against the defendants in the "B" suit schedule properties by separate possession by metes and bonds referring to the Tahasildar Gangavathi U/Sec.54 of C.P.C who is survey authority by demarking by fixing the boundaries of the plaintiff and the defendant Nos.1 to 5 over the "B" schedule property. i(a) To declare the sale deeds executed by the defendant No.1 in favour of defendant No.14 to 16 is not binding upon the plaintiff. ii) Be pleased to direct the revenue authorities i.e., Tahasildar Gangavathi to make an entry in respect of "B" schedule property of 1/2 share and further the revenue entry may be cancelled in the revenue records by deleting the name of the defendants No.1 to 9 in ROR by substituting the name of plaintiff No.1 to 5 in the "B" schedule properties. iii) Cost of the suit may be awarded any other relief as deemed also be granted in the circumstances of the suit." 23. iii) Cost of the suit may be awarded any other relief as deemed also be granted in the circumstances of the suit." 23. The 5th respondent/Tahasidlar taking note of pendency of a suit directs to enter the names of respondents and this order is confirmed by the 7th respondent/Deputy Commissioner. The 7th Respondent/Deputy Commissioner also relegates the present petitioners to the lis pending in O.S.No.207/2011. The 7th respondent/ Deputy Commissioner has set aside the order passed by the 6th respondent/Assistant Commissioner. The 7th respondent/Deputy Commissioner has not at all examined the reasons assigned by the 6th respondent/Assistant Commissioner. The 6th respondent/Assistant Commissioner has rightly recorded a finding that the petitioner Nos.6 to 8 names are mutated to the revenue records pursuant to acquisition of right and title under registered sale deeds and hence, the revenue authority have no jurisdiction to set aside those entries by exercising jurisdiction under Section 136 of Karnataka Land Revenue Act, 1964. 24. The 7th Respondent/Deputy Commissioner by directing the authorities to enter the names of respondents has virtually usurped the jurisdiction of the Civil Court. The 7th respondent/Deputy Commissioner failed to note that the petitioners' names are duly mutated strictly in terms of proviso to Section 128 of Karnataka Land Revenue Act, 1964. Whenever there is an acquisition of right and title under registered document, a duty is cast upon registered authority under Section 128 of Karnataka Land Revenue Act, 1964 to make a report of such acquisition of right to the prescribed authority. Since execution of sale deed in favour of petitioner Nos.6 to 8 are not set aside by any competent court of law, ex-facie for the purpose of Karnataka Land Revenue Act, 1964, it has to be taken that document confers good title on the petitioner Nos.6 to 8. The jurisdiction as to whether these sale deeds are valid and binding on respondent Nos.1 to 4 clearly rest exclusively with Civil Court and not with revenue authority. The 7th respondent/ Deputy Commissioner by ordering to enter the names of respondent Nos.1 to 4 pending decision of a Competent Civil Court in O.S.No.207/2011 has virtually exceeded his power and this is impermissible under Section 128 of Karnataka Land Revenue Act. The mutation entries effected by the revenue authorities way back in 1983 are in conformity with the provisions of Section 128 of Karnataka Land Revenue Act, 1964. The mutation entries effected by the revenue authorities way back in 1983 are in conformity with the provisions of Section 128 of Karnataka Land Revenue Act, 1964. If the registered sale deeds which are questioned in O.S.No.2007/2011 are found to be invalid or not binding on contesting respondents, the same has to be declared by the Competent Civil Court under a judicial order of civil Court and not by an executive order of the revenue authority. 25. The question that would arise before this Court is as to whether the 7th respondent/ Deputy Commissioner can direct his subordinates to enter the names of respondents as legal heirs when lis between the parties is pending for adjudication in O.S.No.207/2011? It is well within the knowledge of the 7th respondent/Deputy Commissioner that respondent Nos.1 to 4 have already filed a suit and have sought relief of declaration that the sale deeds executed by Ayyamma in favour of petitioner Nos.6 to 8 are not binding on them. Unless such a declaration is granted, I am of the view that respondent Nos.1 to 4 are not entitled to get their names mutated in the revenue records. The provision of Section 128 of the Karnataka Land Revenue Act, 1964 does not contemplate such a procedure to enable a party to get his name mutated to the revenue record merely on the ground that, he has already filed a suit. 26. The 7th respondent/Deputy Commissioner and the 5th respondent/Tahasildar cannot mechanically relegate the purchasers as well as those parties who are opposing the mutation based on a registered document to Civil Court, when a person asserts his right on the basis of registered document and mutation is effected strictly in compliance of proviso to Section 128 of Karnataka Land Revenue Act, 1964. The 7th respondent/Deputy Commissioner was not justified in even relegating petitioner Nos.6 to 8 to work out their remedy in a suit. There is a registered sale deed executed already in favour of petitioner Nos.6 to 8. Respondent Nos.1 to 4 have questioned the same, it is for respondent Nos.1 to 4 to demonstrate as to how the registered sale deed would not bind the respondents and hence in such cases, the authorities cannot be simply relegate even the party who was acquired a right under registered document. Respondent Nos.1 to 4 have questioned the same, it is for respondent Nos.1 to 4 to demonstrate as to how the registered sale deed would not bind the respondents and hence in such cases, the authorities cannot be simply relegate even the party who was acquired a right under registered document. If such a proposition is accepted, then the provision of Section 128 of Karnataka Land Revenue Act, 1964 would become redundant. 27. In this background, I am of the view that when the registered sale deeds are disputed, ex-facie for the purpose of Karnataka Land Revenue Act, 1964, it has to be taken that the document confers a good title on the petitioners and the revenue authority have rightly effected the mutations way back in 1983 and these entries which are strictly in terms of proviso to Section 128 of Karnataka Land Revenue Act, 1964 cannot be disturbed, unless and until there is a decree in favour of party disputing the registered documents. 28. The impugned order passed by the 7th respondent/Deputy Commissioner as per Annexure-M confirming the order passed by the 5th respondent/Tahasildar as per Annexure-H, in my view has no legal sanction and the orders of the 7th respondent/Deputy Commissioner and the 5th respondent/Tahasildar are in gross violation of provision of Section 128 of Karnataka Land Revenue Act, 1964. Respondent Nos.1 to 4 as of now cannot agitate their rights in a mutation proceedings and the remedy, if any, is only in pending suit which is obviously filed by them in O.S.No.207/2011. 29. The impugned orders passed by the 7th respondent/Deputy Commissioner and the 5th respondent/Tahasildar as per Annexures-M and H respectively are also not maintainable since the mutations effected in favour of petitioner Nos.6 to 8 under M.E.Nos.31 and 30 as per Annexures- D & F respectively have attained finality and the same are not challenged till this day. Accordingly, point Nos.1 and 2 framed by this Court are answered in the affirmative. For the reasons stated supra, this Court would pass the following: : ORDER : a) The writ petitions are allowed. b) The order bearing No.Kam/Apeelu/ 33 / 2016-17 Ka.No.22940, dated 03.01.2019 passed by the 7th respondent/Deputy Commissioner as per Annexure-M and the order bearing No.Kandaya:R.R.T:Takararu:25:2015- 16/165 dated 18.08.2015 passed by the 5th respondent/Tahasildar as per Annexure-H are quashed. For the reasons stated supra, this Court would pass the following: : ORDER : a) The writ petitions are allowed. b) The order bearing No.Kam/Apeelu/ 33 / 2016-17 Ka.No.22940, dated 03.01.2019 passed by the 7th respondent/Deputy Commissioner as per Annexure-M and the order bearing No.Kandaya:R.R.T:Takararu:25:2015- 16/165 dated 18.08.2015 passed by the 5th respondent/Tahasildar as per Annexure-H are quashed. c) The order bearing No.Kam:RRT: Apeelu:105:15-16 dated 15.03.2016 passed by the 6th respondent/ Assistant Commissioner as per Annexure-J is restored. d) The entries in the revenue records pertaining to the petition lands in favour of petitioner Nos.6 to 8 would be subject to result of suit pending in O.S.No.207/2011. In view of the disposal of the above writ petitions, pending applications do not survive for consideration, accordingly disposed of.