Research › Search › Judgment

Karnataka High Court · body

2020 DIGILAW 199 (KAR)

K. v. Narayanaswamy Son of Late Kalollu Venkataramanappa VS State of Karnataka Department of Revenue

2020-01-22

NATARAJ RANGASWAMY, RAVI MALIMATH

body2020
JUDGMENT : 1. This Writ Appeal is filed assailing the Order dated 17.06.2019 passed by the learned Single Judge of this Court in Writ Petition No.39837 of 2014. 2. The petitioner in the writ petition had challenged the order dated 02.01.2014, by which the Respondent No.3, in an appeal filed by respondent No.6 under Section 49 of the Karnataka Land Revenue Act, 1964 (hereinafter referred to as ‘the KLR Act’, for brevity) had cancelled the bifurcation of the land bearing Sy.No.124/1, of Vapasandra village, kasaba hobli, Chikkaballapur Taluk, and had directed a re-fixation of the boundaries of bifurcation of Sy.No.124/1 based on the re-survey and re-classification record and to re-fix the boundaries of the kharab attached to the aforesaid survey number. 3. The case of the petitioner was that the father of respondent No.6 had purchased 0-23½ guntas of land in Sy.No.124/1 and 0.09 guntas in Sy.No.124/2. It is stated that the appurtenant kharab of 04 guntas and 02 guntas respectively were not included in the conveyance and that therefore, the kharab could not be brought in the holding of the father of respondent No.6 and subsequently, by respondent No.6. 4. The learned Single Judge after considering the factual aspects, held that the order passed by respondent No.3 does not suffer from any error and therefore, dismissed the writ petition. 5. Before us, the petitioner – appellant submitted that the land bearing Sy.No.124 consisting of 03 Acres 04 guntas including 06 guntas of kharab was bifurcated into Sy.No.124/1 and Sy.No.124/2. Further, the father of respondent No.6 is stated to have purchased 23½ guntas in Sy.No.124/1 and 09 guntas in Sy. No.124/2, which did not include the kharab. It is stated that Sy.No.124/1 was bifurcated and Sy.No.124/3 was assigned to the property purchased and Sy.No.124/2 was bifurcated and Sy.No.124/4 was assigned to the property purchased. It is stated that the boundaries of the hissas of Sy.No.124 were fixed in the year 1984 itself and that subsequent to the death of the father of respondent No.6, respondent No.6 is in peaceful possession of the land purchased and the kharab and other revenue documents were transferred to the names of the petitioner as well as the family members of respondent No.6. It is stated that in the appurtenant kharab, there was an open well and a mantapa, which was allegedly in possession of the petitioner. It is stated that in the appurtenant kharab, there was an open well and a mantapa, which was allegedly in possession of the petitioner. It is stated that respondent No.5 prepared a sketch on 17.03.2012 and incorporated the same in akarbandh, which was placed before respondent No.3. Respondent No.6 aggrieved by the aforesaid sketch, filed an appeal before respondent No.3 under Section 49 of the KLR Act. During the pendency of the appeal, respondent No.3 ordered an inspection of the spot consequent to which respondent Nos.4 and 5 conducted a spot inspection and reported to respondent No.3. The respondent No.3 after considering the report, passed an order dated 02.01.2014 and allowed the appeal and set aside the bifurcation proceedings in respect of Sy. No.124/1. The petitioner thereafter seem to have filed a revision petition under Section 56(1) of the KLR Act before respondent No.2, which was also dismissed in terms of the order dated 04.08.2014. 6. The petitioner later filed Writ Petition No.39837 of 2014 before this Court assailing both the Orders passed by the respondent Nos.2 and 3. The only ground that was urged before the learned Single Judge to sustain the bifurcation proceedings of Sy.No.124/1 was that the father of respondent No.6 had not purchased the kharab land and that therefore, the name of respondent No.6 could not be shown in the records as being entitled to kharab. 7. We have perused the Orders impugned in the Writ Petition. It is found that the land purchased by the father of respondent No.6 was bifurcated as Sy.Nos.124/3 and 124/4. The respondent No.3 has found that the previous survey documents disclosed that in the kharab of 4 guntas, there was an open well and kharab and was naturally appurtenant to the land bearing Sy.No.124/3. However, at the instance of the petitioner, a survey proceeding was initiated behind the back of respondent No.6 to seem as if the kharab was attached to Sy.No.124/1. The respondent No.3 has applied its mind and based on the re-survey and reclassification record, directed fresh bifurcation proceeding of Sy.No.124/1. In order to save the fresh bifurcation of Sy.No.124/1, the petitioner contended that the father of respondent No.6 had not purchased the kharab. 8. It is a settled position of law that kharab is always attached and appurtenant to the cultivable land, unless it is a non-alienable kharab. In order to save the fresh bifurcation of Sy.No.124/1, the petitioner contended that the father of respondent No.6 had not purchased the kharab. 8. It is a settled position of law that kharab is always attached and appurtenant to the cultivable land, unless it is a non-alienable kharab. No person can transact or transfer or convey the kharab land, but kharab land shall go along with the land. In the present case, the appellant claims that the kharab land was not conveyed to the father of respondent No.6 and therefore, the kharab must be retained in Sy.No.124/1. The appellant cannot claim any right, title or interest to the kharab land. If the kharab is appurtenant to the land purchased by the father of respondent No.6, then, the same shall go with the land. 9. Be that as it may, since respondent No.3 has merely set aside the bifurcation and directed re-fixation of the properties purchased after identifying the kharab land based on the re-classification record, which is purely a question of fact, there is no infirmity in the said order. We have no hesitation to hold that the learned single Judge was justified in dismissing the writ petition. Consequently, this Writ Appeal is dismissed. Any observation made herein shall not foreclose the parties to establish their right, if any, before any other forum. No order as to costs. Pending interlocutory application stands dismissed.