Dismissed

Sri M R Chandrashekhar v. Sri Rudrappa

Karnataka HC7 Nov 2022WP/30633/2018

Case brief

AI extract

What is this about?

The Karnataka High Court dismissed a writ petition challenging a Deputy Commissioner's order directing mutation entries in favor of the father over an unregistered partition deed contested by one son. The Court held the revenue court was correct to rely on registered sale deeds rather than a purported partition, dismissing the writ while noting the matter's final disposal awaited the pending civil

What did the court decide?

Writ petition dismissed with costs; mutation entries to be subject to the outcome of the pending civil suit for declaration of title.

Sri M R Chandrashekhar Vs Sri Rudrappa — Land Acquisition | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA, BENGALURU

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DATED THIS THE 7^TH DAY OF NOVEMBER, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

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WRIT PETITION NO.30633 OF 2018(KLR-RR/SUR)

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BETWEEN:

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SRI. M. R. CHANDRASHEKHAR, SON OF RUDRAPPA, AGED ABOUT 62 YEARS, RESIDENT OF MARASANDRA VILLAGE, HESARUGHATTA HOBLI, BANGALORE NORTH ADDITIONAL TALUK.

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…PETITIONER

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(BY SRI.D.L.N.RAO, SENIOR COUNSEL A/W SRI.B.G.ASHOK KUMAR, ADVOCATE)

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AND:

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SRI. RUDRAPPA, SON OF LATE CHIKKARUDRAPA, RESIDENT OF MARASANDRA VILLAGE, HESARUGHATTA HOBLI, BANGALORE NORTH ADDITIONAL TALUK, BANGALORE(THE ADDRESS OF THE PETITIONER)IS WRONGLY MENTIONED BEFORE THE DEPUTY COMMISSIONER) AS SUCH HE IS RESIDING AT NO.198, "RAJATHADRI", GROUND FLOOR, 6^TH A MAIN, YELAHANKA NEW TOWN, BANGALORE-560 064.

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GOVERNMENT OF KARNATAKA REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, M.S.BUILDING, AMBEDKAR VEEDHI, BANGALORE-560 001.

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THE DEPUTY COMMISSIONER BANGLAORE RURAL DISTRICT, PODIUM BLOCK,

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VISVESHWARAIAH TOWER, AMBEDKAR VEEDI, BANGALORE-560 001.

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ASSISTANT COMMISSIONER DODDABALLAPURA SUB-DIVISION, DODDABALLAPURA TALUK, DODDABALLAPURA, BANGALORE RURAL DISTRICT.

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THE THASILDAR, DODDABALLAPURA TALUK, DODDABALLAPURA, BANGALORE RURAL DISTRICT.

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…RESPONDENTS

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(BY SRI.S KALYAN BASAVARAJ, ADVOCATE FOR R1; SRI.C.N.MAHADESHWARAN, AGA FOR R2-R5)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE IMPUGNED ORDER DTD9.7.2018 PASSED BY THE R-3 AND CONSEQUENTLY ALLOW THE W.P. AND THEREBY SET ASIDE THE ORDER PASSED BYT HE R-3 DEPUTY COMMISSIONER IN REVISION PETITION NO.143/2014-15 VIDE ANNEXURE-H.

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THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDER, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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ORDER

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Petitioner is knocking at the doors of Writ Court for assailing the Deputy Commissioner’s order dated 09.07.2018 at (Annexure H) passed in revisional jurisdiction under section 136(3) of the Karnataka Land Revenue Act, 1964 whereby private respondents Revision Petition No. 143/2014-15 having been favoured, the Assistant Commissioners in Case No. R.A(DHO):69/2008 order dated 30.12.2014 at

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(Annexure F) made under section 136(2) of the 1964 Act has been set at naught.

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Learned Senior Advocate, Mr.D.L.N.Rao

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appearing for the petitioner urges the following points in support of his case: (i) the very challenge before the Assistant Commissioner was after decades and therefore, appeal is rightly rejected; (ii) the mutation of entry in the revenue records was made on the basis of ‘ panchayat parikath’ which did bear signatures of all the parties and therefore it cannot be faltered; (iii) the appeal before the Assistant Commissioner was by one person whereas the revision before the Deputy Commissioner was by another and therefore, the private respondent had no locus standi ; (iv) the private respondent who is none other than father of the petitioner along with other sons have executed a Confirmation Deed in which, boundary of five acres of land sold is described with reference to one acre of land allotted to petitioner herein under the panchayat parikath ; and (v) the private respondents suit for declaration is still pending.

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After service of notice, the respondents

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having entered appearance through the learned AGA and the private respondent is represented by his private counsel. They both resist the petition by making submission in justification of the impugned order and the reasons on which it has been structured. Learned private counsel contends that: petitioner is one of the sons of his client; the subject land is the self acquired property of his client and therefore, there is no question of its partition; the so called panchayat parikath itself is a fabricated document; it is not registered though compulsorily registerable; it cannot be looked into for any purpose whatsoever since it is not duly stamped; the Assistant Commissioner did not pass orders on his amendment application; the Deputy Commissioner having seen all aspects of the matter has made the impugned order. So contending, he seeks dismissal of the Writ Petition.

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Having heard the learned counsel for the parties and having perused the petition papers, this court declines indulgence in the matter for the following reasons:

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(a) The subject mutation of entries in favour of

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the petitioner was made on the basis of “ panchaayti vibhaaga patra” dated 02.08.1995; apparently, it is not a panchayat parikath i.e., a memorandum of partition but prima facie it is a partition deed itself going by its substance. It is not registered though compulsorily registerable under the provisions of section 17(1) of the Indian Registration Act, 1908; added, it is not duly stamped and therefore, could not have been looked into even for collateral purposes because of the absolute embargo enacted in sections 32 & 33 of the Karnataka Stamp Act, 1957. Therefore, the subject entries could not have been made on the basis of such a document. In fact, the said document ought to have been impounded when produced.

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(b) The panchaayti vibhaaga patra is hotly contested by the private respondent; there is some substance in the contest inasmuch as, it comprises of only two pages and it mentions only the petition property of one acre allegedly given to the petitioner herein. Although, the first page mentions about allotment of shares to other parties, strangely there are no schedules

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at all, in the next page as admitted by Mr.D.L.N.Rao learned Senior Advocate appearing for the petitioners, in his usual fairness. No explanation is forthcoming for this conspicuous vacuum. Amongst Hindus, a case of partial partition needs cogent evidence for proof.

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(c) Petitioner’s contention that the subject property is an ancestral property is not supported by the absolute Sale Deed dated 15.10.2004 which specifically mentions the entire six acres land being the self acquisition of his father, i.e., private respondents herein under the registered Sale Deed dated 24.03.1975. The unnumbered 5^th paragraph in the 2004 Sale Deed reads: “ WHEREAS, the Schedule Property is Self Acquired property of Sri. Rudrappa…” His contention that the Confirmation Deed dated 29.07.2005 mentions the said property as an ancestral property, is true. However, this Confirmation Deed is entered into for the purpose of confirming the previous deed which specifically describes the said property as being ‘ self acquisition ’ as rightly contended by Mr. Kalyan Basavaraj, learned counsel appearing for the private respondent. It hardly needs to be stated that, the recitals in the Confirmation Deed as

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to the nature of acquisition of the property even otherwise cannot be treated as conclusive when the deed which it confirms itself states “Self Acquired Property of Sri Rudrappa” .

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(d) Mr. D.L.N. Rao’s contention that in the Confirmation Deed dated 29.07.2005, the subject land of one acre is shown to be that of the petitioner while describing southern boundary of the remaining land measuring five acres that is sold under the registered Sale Deed dated 15.10.2004 appears attractive at the first blush. However, a deeper examination diminishes all such attraction because: the Sale Deed dated 15.10.2004 specially mentions this very one acre of land as being retained by the private respondent himself. In the last page of the deed which describes the property sold thereunder, it is written: “ SOUTH BY: ROAD & part of Owner’s Land”. This deed itself is confirmed by the subsequent deed. After all, by the arguable admission of parties, there cannot be transfer of title to the land, a due conveyance being the requirement of law.

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(e) The contention of Mr. DLN Rao that the revision

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before the Deputy Commissioner by the private respondent was incompetent since the appeal before the Assistant Commissioner was by another person does not merit acceptance and reasons for this are not far to seek: firstly, to rectify the wrong description of appellant, i.e., private respondents herein had moved an application for amendment and no order was passed thereon by the Assistant Commissioner. This is not disputed by the petitioners. Secondly, the provisions of appeal under section 136 of the 1964 Act are not partyspecific and therefore, revision also cannot be partyspecific. Added, section 136(3) provides for suo motu revision as well. After all, it is not that a stranger to the family or property had invoked revisional jurisdiction. The revision petitioner being none other than head of the family.

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(f) Learned Senior Advocate, Mr. Rao next argued

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that the order of the Assistant Commissioner could not have been faltered since entries were made decades ago. This is a bit difficult to agree with. Firstly, the limitation period for filing of appeal is not reckoned from the date

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of order but from the date it is communicated to the aggrieved persons or from the date of their knowledge. Secondly, the application seeking condonation of delay filed by the private respondent herein having been favoured, delay has been rightly condoned by the Assistant Commissioner, although, he dismissed the appeal on merits, is beside the point. In the Statement of Objections filed by the petitioner to the Revision before the Deputy Commissioner, the condoning of the delay has not been found fault with. Therefore, the long of delay brooked in filing the appeal cannot be a legal ground to invalidate the order made in revision.

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(g) The last contention of Mr. DLN Rao that the private respondent has already filed a civil suit in OS No. 436/2017 for declaration of title to the subject one acre land and therefore, the Deputy Commissioner ought to have upheld the order of Assistant Commissioner subject to outcome of the suit, again does not merit acceptance. Reasons for this galore: this is a family dispute; petitioner is none other than one of the sons of private respondent; the other sons are not parties to this proceeding; apparently the subject property is a part of

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self acquisition, which aspect the registered sale deeds themselves mention. After all, the Deputy Commissioner in his discretion has directed the making of entries of favour of the father on the basis of registered sale deeds by giving cogent reasons therefor. The partition deed apparently is not registered nor stamp duty is paid thereon; this deed is stoutly disputed. Its script itself casts prima facie doubt as to its authenticity. Although, it was the petitioner who should have filed the suit for declaration, the father has instituted one. The entries to be made on the basis of impugned order of the Deputy Commissioner, shall be subject to outcome of the said suit, in terms of proviso to section 135 of the 1964 Act.

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(h) Lastly, there is some force in the contention of learned counsel Mr. Kalyan Basavaraj appearing for the private respondent that the entries in the revenue records do not cast their shadow on the title to the property which aspect the Civil Court would look into. Ordinarily, the entries in the Revenue Records are made on the basis of registered documents and when the mutation is founded on the basis of unregistered instruments whose authenticity is hotly challenged, the

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same cannot be sustained, more particularly when it involves a family dispute. Added, this court exercising a limited supervisory jurisdiction constitutionally vested under Article 227, (the companion provision, i.e., Article 226 having been ornamentally employed in the petition) cannot undertake a deeper examination of the impugned order, especially when there is no demonstrable error apparent on the face of the record vide SADHANA LODH vs. NATIONAL INSURANCE COMPANY LIMITED (2003) 3 SCC 524

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In the above circumstances, this writ petition being devoid of merits is liable to be and accordingly is dismissed, costs having been made easy.

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All and whatever observations hereinabove made being confined to disposal of the Writ Petition shall not come in the way of the Trial and disposal of pending civil suit of the parties on its intrinsic merits. The entries to be made under the impugned order shall be subject to the outcome of the said suit.

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Sd/JUDGE

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Snb/cbc/Bsv

Sri M R Chandrashekhar v. Sri Rudrappa

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Sri M R Chandrashekhar v. Sri Rudrappa

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