Partly allowed

Smt. Narayanamma W/O Late T Muniyappa v. State of Karnataka

Karnataka HC18 Dec 2021WP/35682/2011

Case brief

AI extract

What is this about?

The High Court allowed the writ petition and quashed the Deputy Commissioner's order quashing revenue entries. The Court directed restoration of entries in favor of petitioners and ordered a time-bound disposal of the matter after verifying allegations of fabrication.

What did the court decide?

Quashed the impugned order; Restored revenue entries pending verification; Directed time-bound disposal (5 months); Directed appearance on 17.01.2022.

Smt. Narayanamma W/O Late T Muniyappa Vs State of… — Writ and Judicial Review | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF DECEMBER, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE B.M. SHYAM PRASAD

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WRIT PETITION NO.35682 OF 2011 (KLR - RES)

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BETWEEN:

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Smt.Narayanamma, W/o late T.Muniyappa, Aged about 71 years,

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Sri.Ravi, S/o late T.Muniyappa, Aged about 40 years,

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Smt.Sujatha, D/o late T.Muniyappa, Aged about 38 years,

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Sri.Udaykumar, S/o late T.Muniyappa, Aged about 36 years,

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Smt.Savitha, D/o late T.Muniyappa, Aged about 34 years,

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Sri.Kantharaj, S/o late T.Muniyappa, Aged about 32 years,

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Petitioner No.1 is the wife of T.Muniyappa and Petitioner Nos.2 to 6 Are the children of T.Muniyappa,

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All are residing at No.2, Kolandappa Garden, Aane Palya, Adugodi Post, Bangalore - 560 030.

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Smt.Narayanamma, W/o late Krishnappa, Aged about 68 years,

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Smt. Geetha, D/o late Krishnappa, Aged about 43 years,

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Sri. Ramesh, S/o late Krishnappa, Aged about 40 years, Petitioner No.7 is the wife of Krishnappa and petitioner Nos. 8 and 9 are children of Krishnappa And all are residing at Tulakanamma Garden Vannarpet, Viveknagar Post, Bangalore - 560 047.

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Smt. Jayalakshmi W/o late Venugopal Aged about years,

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Smt. Krishnamma D/o Muniyellappa, Aged about 53 years,

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Sri. M. Paparaju S/o late Muniyellappa, Aged about 48 years,

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Smt. Kamala, D/o Muniyellappa, Aged about 44 years,

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Smt. Hemavathi D/o Muniyellappa, Aged about 42 years, Petitioner No.10 is the daughter in law of Late Muniyellappa and petitioner Nos.11 to 14 are children of late Muniyellappa and all are residing at No.13/10, Yarrappa Garden, Austin Town, Viveknagar Post, Bangalore - 47.

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Sri Jayaram, S/o Muniyamma, Aged about 57 years, 16. Sri Krishnaiah, S/o Muniyamma, Aged about 43 years, Petitioner Nos.15 and 16 are residing at No.11/8, S.R. Garden, Vannarpet, Viveknagar Post, Bangalore - 47. ... Petitioners (By Sri. Veeranna G Tigadi, Advocate for Sri.G.Srinivas, Advocate)

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AND :

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State of Karnataka, Represented by its Secretary, Department of Revenue, M.S. Building, Vidhana Soudha, Bangalore - 01.

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The Special Deputy Commissioner, Bangalore District, Bangalore.

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The Assistant Commissioner, Bangalore South Sub - Division, Bangalore. 4. The Thasildhar, Anekal Taluk, Anekal, Bangalore District. 5. Sri.Mohammed Meeran Saheb, Aged about 71 years, S/o Sri.Ummar Sab, R/at No.854, M.M.House, 5^th Cross, I stage, Indiranagar, Bangalore - 03. Represented by G.P.A. Holder Sri. Manegar Mohammed Jafri, Aged about 62 years, S/o Sri.Ummar Sab, Residing at Plot No.703, 7^th Floor, Presidency Enclave, Diamond Block, Near Kolas Hospital, Bendoorwell, Mangalore - 575 001. ... Respondents (By Smt.Jyothi Bhat, HCGP for R1 to R4; Sri. G.S.Bhat, Advocate and Sri.P.T.Muralidhar, Advocate for R5)

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This Writ Petition is filed under Article 226 of the Constitution of India praying to quash the orders dated 14.07.2011 in Revision Petition 75/2011-12 passed by the 2^nd respondent Deputy Commissioner vide Annexure - T, with respect to the land bearing Sy.No.19, of Gollahalli

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Village, Attibele Hobli, Anekal Taluk, in the interest of justice and equity.

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This Writ Petition coming on for Hearing, this day, the Court made the following:

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ORDER

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The petitioners, who assert title to an extent of about 15 acres in Sy.No.19 of Gollahalli Village, Attibele Hobli, Anekal Taluk (for short, 'the subject property' ), have impugned the second respondent's Order dated 14.07.2011 in Revision Petition No.75/2011-12. The second respondent, by this impugned order, has set aside the third respondent's Order dated 18.04.2011 in LND.RA.(A)/6/2002-03.

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The facts and circumstances leading to the present challenge must be referred to before the rival submissions are considered. The petitioners' predecessors-in-interest enjoyed the benefit of revenue entries for the subject property for over four decades

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and these revenue entries for the subject property are purportedly made in their names because of an asserted grant of occupancy rights in their favour in the proceedings in Case Nos.19/58-59 and 24/58-59 under the provisions of the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954 (for short, "Inams Abolition Act" ).

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The petitioners' title to the subject property has come under a cloud with the third respondent initiating proceedings under Section 136(3) of the Karnataka Land Revenue Act, 1964 (for short, "the Revenue Act" ) and canceling the revenue entries in their favour opining that the revenue entries are based on forged documents. The third respondent has initiated such proceedings against the petitioners' predecessorsin-interest though they were dead and as such, the petitioners have challenged the third respondent's Order dated 26.04.2003 (28.04.2013) before the second

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respondent in Revision Petitions No.91-94/2003-04 under Section 136(3) of the Revenue Act but unsuccessfully inasmuch as the second respondent has rejected these Revision Petitions by his Order dated 26.04.2004.

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However, with the second respondent's Order dated 26.04.2004 [as also the third respondent’s order dated 26.04.2003] being impugned before this Court in W.P. No.37661/2004, this Court has quashed these orders and remitted the proceedings to the third respondent for reconsideration. Consequently, the third respondent has reinstated the proceedings in No. LND.RA(A)6/2002-03 and has heard the petitioners, and as part of such hearing, the third respondent has called upon the jurisdictional Tahsildar (the fourth respondent) to file a report. The fourth respondent has filed a Report dated 26.06.2009 after conducting mahazar affirming that the petitioners are in possession

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of the respective portions. The third respondent on the basis of such Report dated 26.06.2009, by his Order dated 18.04.2011, has directed restoration of the revenue entries for the subject property in favour of the petitioners.

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The fourth respondent, despite his Report dated 26.06.2009, has called in question the third respondent's Order under Section 136(3) of the Revenue Act with the second respondent in Revision Petition No.75/2011-12. The second respondent by the impugned order has quashed the Assistant Commissioner's Order dated 18.04.2011 directing the fourth respondent to enter the entries in Column No.9 of the concerned RTC in favour of the State and to take necessary action to evict the petitioners. The second respondent has also directed initiation of disciplinary action against those concerned observing that there is fabrication / tampering of records.

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This Court at this stage must record certain

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material undisputed facts that are necessary for final disposal of the petition, and these are as mentioned hereafter:

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A] Revenue Entries for the Subject Property :

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The petitioners can rely upon the revenue entries

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in the RTC for the subject property in favour of their predecessors-in-title for over decades until the third respondent, by his first Order dated 26.04.2003, quashed such revenue entries.

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B] O.S. No.812/2009:

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During the pendency of the proceedings mentioned above, the petitioners have commenced suit in O.S. No.812/2009 against the State and others for declaration of title to the subject property and for consequential relief of permanent injunction. The State is represented by its counsel and written statement is also filed

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but no evidence is let in on its behalf. The petitioners' suit is decreed by Judgment dated 02.09.2013. The State has not called this Judgment in question, but in the statement of objections it is contended that action has been taken to file necessary appeal to impugn the Judgment and Decree dated 02.09.2013. The learned High Court Government Pleader, when queried, is unable to answer whether such appeal is indeed filed.

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C] Entries in Form No.VIII¹ in favour of the Petitioners:

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It is further undisputed that the third respondent while concluding in favour of the petitioners by the Order dated 18.04.2011, on reinstatement of the proceedings consequent to this Court's Order in W.P. No.37661/2004 dated 28.09.2006, has

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1 A register envisaged under Inams Abolition Act

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observed that the entries in the relevant register/Form No.VIII is made in favour of the petitioners' predecessors-in-interest because of the conferment of occupancy rights under the Inams Abolition Act and the entry in favour of the State i.e., the entry as "kharab" in revenue records, is made only after the cancellation of the revenue entries that have prevailed for over 30 to 45 years.

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The third respondent - Assistant Commissioner's observations in this regard read as under:

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"Apart from the above, the Tahsildar, Anekal Taluk, Anekal has also specifically reported that in Form No.VIII the entires in respect of the land in S.No.19 of Gollahalli Village, Attibele Hobli, Anekal Taluk have been reflected in the names of Sriyuts: T.Muniyappa - 3A.34gs., Krishnappa - 3A.21gs., Muniyellappa -4A.00 and Smt.Muniyamma -4A.00. At this stage, it would be relevant to mention that it is only on account of

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the fact that the 'occupancy right' was conferred in favour of the said persons under the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954, the entires in Form VIII have been made. But, the same have been cancelled subsequently with an observation of illegal writing. The Tahsildar, Anekal Taluk, Anekal has specifically reported that the entires in the Pahanis/RTCs etc., in the names of the said persons are continued till 1986-87 for about 27 years and it is only thereafter it is entered as 'Kharab'.

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Thus, in the instant case according to the report of the Tahsildar, Anekal Taluk, Anekal the entries in the revenue records which were reflected in the names of the ancestors of the Respondents herein were continued since 196061 till 1986-87 and it is at one stage they have been cancelled as illegal writing. However, according to the report of the Tahsildar, Anekal Taluk, Anekal after spot inspection, even now the legal representatives of Late Muniyappa (3A.34gs.,), Krishnappa (3A.21gs.,), Muniyellappa (4A.00) and Muniyamma (4A.00) are in possession and enjoyment of the land in S.No.19 of Gollahalli village, Attibele Hobli, Anekal Taluk ."

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The second respondent, who is called upon

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to examine the merits of these findings with the fourth respondent preferring Revision Petition in No.75/201112 against the third respondent's Order dated 18.04.2011, has relied upon [a] the fourth respondent - Tahsildar’s Report dated 09.06.2011, [b] the third respondent’s previous Order dated 26.04.2003 and [c] the undisputed fact that the petitioners do not have the custody of the original documents to substantiate the grant of occupancy rights.

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Sri Veeranna G. Tigadi, the learned counsel who appears for the petitioners, submits that the Deputy Commissioner could not have relied upon the fourth respondent - Tahsildar’s report dated 09.06.2011 for multiple reasons. He points out that the Tahsildar's report dated 09.06.2011 is not consequent to any order by the third respondent in the present proceedings; he contends that the petitioners did not have notice from

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the Tahsildar before he filed his report dated 09.06.2011; the Tahsildar in opining that the documents are forged/ fabricated has relied upon the third respondent - Assistant Commissioner's Order dated 26.04.2003, which is quashed by this Court in W.P. No.37661/2004.

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The learned counsel next submits that the petitioners have the advantage of a decree for declaration of title in O.S. No.812/2009 which has remained unquestioned and notwithstanding the fact that the revenue entries have prevailed over three to four decades and the decree of declaration of title, the second respondent has found that the documents in favour of the petitioners are forged / fabricated. He draws support from this decree of declaration of title and contends that in view of this decree, the second respondent could not have ordered for an enquiry as to whether the documents which are in favour of the

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petitioners are fabricated or forged. He relies upon a decision of this Court in W.P. No.13426/2008 decided on 27.10.2009 and contends that this Court has reiterated that the Judgment and Decree of the civil Court, when it is not impugned in a manner known to law, cannot be ignored by the authorities in the proceeding under Chapter 11 of the Revenue Act.

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The learned counsel also emphasizes that the Special Deputy Commissioner in proceedings under Section 136(3) of the Revenue Act could not have embarked upon a finding that the documents are forged/fabricated and that too after lapse of three to four decades when the settled law is that appropriate action must be initiated at the earliest and within a reasonable time. He relies upon a decision of the Division Bench of this Court in Writ Appeal Nos.804/2018 and 806/2018 decided on 30.05.2018 .

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The learned High Court Government Pleader makes a valiant effort to support the second respondent's impugned order arguing that in the absence of records by the petitioners to demonstrate grant of occupancy rights under the Inams Abolition Act, the second respondent is justified in his stand. As regards the petitioners reliance upon the Judgment and Decree of declaration of title in O.S. No.812/2009, the learned Government Pleader relies upon the decision of the Hon'ble Supreme Court in R. Hanumaih and

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another vs. Secretary to Government of Karnataka, Revenue Department and others, reported in (2010) 5 SCC 203 and she invites the attention of this Court to paragraph Nos. 20 and 21 which read as under:

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"20. Many civil courts deal with suits for declaration of title and injunction against government, in a casual manner, ignoring or overlooking the special features relating to government properties. Instances of such suits against government being routinely decreed,

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either ex parte or for want of proper contest, merely acting upon the oral assertions of plaintiffs or stray revenue entries are common. Whether the government contests the suit or not, before a suit for declaration of title against a government is decreed, the plaintiff should establish, either his title by producing the title deeds which satisfactorily trace title for a minimum period of thirty years prior to the date of the suit (except where title is claimed with reference to a grant or transfer by the government or a statutory development authority), or by establishing adverse possession for a period of more than thirty years. In such suits, courts cannot, ignoring the presumptions available in favour of the government, grant declaratory or injunctive decrees against the government by relying upon one of the principles underlying pleadings that plaint averments which are not denied or traversed are deemed to have been accepted or admitted.

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21. A court should necessarily seek an answer to the following question, before it grants a decree declaring title against the government : whether the plaintiff has produced title deeds tracing the title for a period of more than thirty years; or

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whether the plaintiff has established his adverse possession to the knowledge of the government for a period of more than thirty years, so as to convert his possession into title. Incidental to that question, the court should also find out whether the plaintiff is recorded to be the owner or holder or occupant of the property in the revenue records or municipal records, for more than thirty years, and what is the nature of possession claimed by the plaintiff, if he is in possession - authorized or unauthorized; permissive; casual and occasional; furtive and clandestine; open, continuous and hostile; deemed or implied (following a title). "

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The learned High Court Government Pleader argues that only those revenue entries in pahani [RTC] which are based on proper documents such as title deeds and which are made upon actual verification of the physical possession of the subject property would prevail and not the revenue records which are entered otherwise. The revenue entries in favour of the petitioners’ predecessor-in-title are not based on any title deed; the petitioners have not produced the original

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of the proceedings in case Nos.19/58-59 and 24/58-59 and there are no records to establish the initiation of these proceedings or the culmination thereof in favour of the petitioners' predecessors-in-title.

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This Court must observe that the second respondent could not have referred to the third respondent’s earlier Order dated 26.04.2003 with the same having been quashed by this Court in W.P. No.37661/2004 on the ground that the finding therein is against dead persons and without notice to the petitioners’ who are their successors-in-interest. If the second respondent could not have relied upon the third respondent’ order dated 26.04.2003, the opinion that the petitioners/their predecessors-in-interest have fabricated documents is pivoted on the fourth respondent - Tahsildar’s Report dated 09.06.2011 and the lack of the original of the proceedings in case Nos.19/58-59 and 24/58-59.

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The authorities have been agitating against revenue entries for the subject property in favour of the petitioners/predecessors-in-title asserting that these entries, which have stood for over three to four decades, are based on fabricated records and the original records of case Nos.19/58-59 and 24/58-59 are not available. They contend that the petitioners' predecessors-ininterest have not been granted occupancy rights to the subject property in the proceedings in case Nos.19/5859 and 24/58-59 under the provisions of the Inams Abolition Act by the then Special Deputy Commissioner.

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The second respondent [the Assistant Commissioner] in his Order dated 18.04.2011 at the first instance is categorical that the entries have been made because occupancy rights are conferred, and the second respondent discounts this finding relying upon Tahsildar’s Report which only refers to the third respondent's Order which is quashed by this Court on

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28.09.2006. However, neither the second and third respondents, even after this Court's intervention in W.P. Nos.37661/2004, have made any effort to verify the records and bring on record their observations in this regard after scrutiny of the relevant records.

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It is also true that the petitioners have the advantage of a decree for declaration of title and permanent injunction, and their possession is also confirmed by the Tahsildar in his Report to the third respondent after the proceedings are reinstated to the third respondent consequent to the Orders of this Court. But then again, this suit in O.S. No.812/2009 is commenced after the initiation of the present proceedings and the State, despite continuing the proceedings, has not participated in the suit. The authorities have not called in question the Judgment and decree in this suit in O.S. No.812/2009. The question that prevails is whether there is any substance

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in its allegation that the revenue entries based on the proceedings in case Nos.19/58-59 and 24/58-59 are fraudulent, and the second respondent must examine all records including the extracts which are placed on record before this Court for the first time as part of the statement of objections.

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It was therefore incumbent upon the authorities [the second and third respondents who can call for records from the custodians] to scrutiny all the relevant records to vindicate the allegations and to ensure that there is no needless doubt about the title to the subject property notwithstanding the revenue entries in favour of the petitioners’ predecessor-in-title. This Court must observe that for the first time, as part of the statement of objections, some extracts are produced before this Court.

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In the totality of the circumstances of the case, and the decisions relied upon by the petitioners as

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also the settled law that fraud unravels everything, this Court is of the considered view that the second respondent's impugned order must be quashed and the authorities directed to restore the revenue entries for subject property in favour of the petitioners with the proceedings before the second respondent restored for scrutiny of all the records with due opportunity to the petitioners for verification of the allegations of fraud and fabrication. In view of the fact that this controversy has prevailed over almost two decades, the second respondent must also be called upon to dispose of the proceedings in a time bound manner strictly in accordance with law. Hence the following:

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ORDER

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[a] The petition is allowed in part, and the

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second respondent's impugned order dated 14.07.2011 is quashed and the proceedings in Revision Petition

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No.75/2011-12 is reinstated for reconsideration in a time bound manner.

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[c] The petitioners shall appear before the second respondent without further notice on 17.01.2022. The second respondent shall dispose off the proceedings within an outer limit of five [5] months.

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[d] The revenue entries for subject property shall be restored in favour of the petitioners and those entries subject to appropriate orders in the necessary proceedings.

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JUDGE

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sac**

Smt. Narayanamma W/O Late T Muniyappa v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Smt. Narayanamma W/O Late T Muniyappa v. State of Karnataka

Case brief

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