Dismissed

Sri Manjanna v. the Special Deputy Commissioner

Karnataka HC30 Aug 2024WA/2816/2019

Case brief

AI extract

What is this about?

The High Court held that while an alienee purchaser of service inam land has a right to the benefit of the re-grant, the existing invalid civil decree in favor of the alienee precludes the restoration of the earlier revenue entry in the vendor's favor, yet the suit for mutation is limited to the area not covered by the intact decree.

What did the court decide?

The writ appeal is dismissed, with the outcome being that the appellant can only insist for mutation entry in respect of 38 guntas excluding the 2 acres subject to the valid civil decree.

Sri Manjanna Vs the Special Deputy Commissioner — Property and Title | Karnataka HC (2024)

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WRIT APPEAL NO. 2816 OF 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 30^TH DAY OF AUGUST, 2024

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PRESENT

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THE HON'BLE MR JUSTICE V KAMESWAR RAO

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AND

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THE HON'BLE MR JUSTICE C M JOSHI

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WRIT APPEAL NO. 2816 OF 2019 (KLR-RR/SUR)

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BETWEEN:

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SRI MANJANNA,

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SINCE DEAD BY HIS LRS.

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1(a) SMT. LATHA.K.P., W/O. LATE B. MANJANNA, AGED ABOUT 40 YEARS.

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1(b) KUM. MANASA, D/O. LATE B. MANJANNA, AGED ABOUT 18 YEARS.

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1(c) MASTER. MOHIT, S/O. LATE B. MANJANNA, AGED ABOUT 12 YEARS.

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ALL ARE RESIDING AT R/AT: KAMAKSHIPURA BYATHA, HESARAGHATTA HOBLI, YELAHANKA TALUK, BANGALORE-560 089.

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...APPELLANTS

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(BY SMT. S. SUSHEELA, SENIOR COUNSEL FOR SRI. P.M. NARAYANASWAMY, ADVOCATE FOR A1 [a to c])

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WRIT APPEAL NO. 2816 OF 2019

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AND:

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THE SPECIAL DEPUTY COMMISSIONER, BANGALORE URBAN SUB-DIVISION, BANGALORE-560 009.

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THE ASSISTANT COMMISSIONER, BANGALORE NORTH SUB-DIVISION, BANGALORE-560 009.

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THE SPECIAL TAHASILDAR, BANGALORE NORTH TALUK, BANGALORE-560 064.

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THE REVENUE INSPECTOR, HESSARAGHATTA HOBLI-2, BANGALORE NORTH-560 089.

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SMT. PATALLAMMA, W/O. SRI SRINIVAS, MAJOR, R/AT: BASETTAHALLI VILLAGE & POST, KASABA HOBLI, DODDABALLAPURA TALUK, BANGALORE RURAL DISTRICT-561 204.

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SRI A.H. CHANNE GOWDA, SINCE DEAD BY HIS LRS.

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6(a) SMT. ANNAPOORNAMMA W/O. LATE A.H.CHANNEGOWDA, AGED ABOUT 70 YEARS.

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6(b) SRI SHAMSUNDAR, S/O. LATE A.H.CHANNEGOWDA, AGED ABOUT 50 YEARS.

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6(c) SMT. KALPANA, D/O. LATE A.H.CHANNEGOWDA, AGED ABOUT 47 YEARS.

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6(d) SRI ASHOKA,

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S/O. LATE A.H.CHANNEGOWDA, AGED ABOUT 44 YEARS.

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6(e) SMT. ROOPA, D/O. LATE A.H.CHANNEGOWDA, AGED ABOUT 38 YEARS.

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6(f) SMT. CHANDRAKALA, D/O. LATE A.H.CHANNEGOWDA, AGED ABOUT 41 YEARS.

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ALL ARE R/AT: ADDIGANAHALLI VILLAGE, RAJANUGUNTE POST, HESARAGHATTA HOBLI, BANGALORE NORTH TALUK, BANGALORE DISTRICT.

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…RESPONDENTS

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(BY SRI. D.L.N RAO, SENIOR COUNSEL FOR SRI. ASHOK N. NAYAKA, ADVOCATE FOR R6 [a to f]; AGA FOR R1 TO R4; NOTICE TO R5 IS DISPENSED WITH V/O DATED 02.08.2019)

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THIS WRIT APPEAL IS FILED U/S. 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 15/07/2019 PASSED BY THE LEARNED SINGLE JUDGE IN WP NO.43227/2011 [KLR-RR/SUR] AND ALLOW THIS APPEAL, CONSEQUENTLY DISMISS THE WRIT PETITION.

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THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED ON 16.07.2024 AND COMING ON FOR ‘PRONOUNCEMENT OF JUDGMENT’, THIS DAY, C M JOSHI, J., PRONOUNCED THE FOLLOWING:

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CORAM: THE HON'BLE MR JUSTICE V KAMESWAR RAO and

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THE HON'BLE MR JUSTICE C M JOSHI

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CAV JUDGMENT

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(PER : HON'BLE MR JUSTICE C M JOSHI)

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Being aggrieved by the order in

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W.P.No.43227/2011 dated 15.07.2019 by learned Single Judge, the legal heirs of 6^th respondent therein-Manjanna are in appeal before this Court.

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We have heard the learned Senior Counsel Smt.S.Susheela appearing for Sri.P.M.Narayanaswami, advocate on record for appellant No.1(a) to (c) and also learned Senior Counsel, Sri.DLN Rao, for Sri.Ashok N Nayak, appearing or respondent No.6(a) to (f).

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The factual matrix that is necessary for the purpose of this appeal is as below:

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a) The 6^th respondent herein- Channegowda (writ petitioner) stated that out of 2 acre 36 guntas of land in Sy.No.80 of Addiganahalli village, his father Hanumanthappa

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had acquired 2 acres of land under a registered sale deed dated 04.07.1970 from Patalappa. It was a ‘Thoti Inam’ land and the legal heirs of the Inamdar (Bawardar) had filed an application before the Assistant Commissioner for re-grant of the said land subsequent to the sale. Such re-grant was made in the name of Patalappa to the extent of 2 acres 36 guntas as per the order dated 31.12.1978. The father of the 6^th respondent i.e. Hanumanthappa had also made his claim before the Assistant commissioner to the extent of the land purchased by him, which was not considered by the Assistant Commissioner.

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b) The re-grantee Patalappa died and his sole legal heir Patalamma taking advantage of the re-grant order, started interfering in the possession and enjoyment of the respondent No.6-Channegowda, who was purchaser of the land. The respondent No.6-Channegowda filed O.S.No.44/1999 against Patalamma and an ex-parte judgment and decree came to be passed by the Court of Addl., Civil Judge (Jr.Dn) Bengaluru on 30.07.1999.

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c) Seeking to set aside the said judgment and decree, Patalamma filed Miscellaneous Petition No.44/1999 and it came to be dismissed on 17.11.2000. A miscellaneous appeal was preferred against it, which came to be allowed by the II Additional Senior Civil Judge, Bengaluru in M.A.No.147/2000 and the matter was remitted back to the

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Trial Court to reconsider the Miscellaneous Petition No.44/1999. Thereafter the said Miscellaneous Petition No.44/1999 was not pursued and therefore, the judgment and decree in O.S.No.44/1999 became final.

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d) Thereafter the 6^th respondent-Channegowda filed a petition before the 3^rd respondent seeking to mutate his name on the basis of the sale deed dated 04.07.1970 and on the basis of the ex-parte judgment in O.S.No.44/1999, in the year 2005. The 3^rd respondent rejected the said application by his order dated 13.10.2006 on the ground that while re-granting the land on 31.12.1978, the Assistant Commissioner had held that sale deeds made prior to the re-grant were null and void. At the same time, it was also

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held that after the re-grant, the 5^th respondent-Patalamma has made an application to enter her name in the records and by relying on the re-grant order, the Jurisdictional Tahasildar directed the entry of name of Patalamma in proceedings No.IHC6/1991-92.

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e) Being aggrieved by the order passed by the 3^rd respondent dated 13.10.2006, R.A.No.419/2006-07 was filed by the 6^th respondent-Channegowda and the said appeal came to be allowed by order dated 31.12.2009 relying on the ratio of the judgment in the case of Syed Bhasheer Ahamed and others v. State of Karnataka¹ . The 5^th respondent-Patalamma had remained absent before the Assistant Commissioner. He also noticed that the order in M.A.No.147/2000 only restored Miscellaneous No.44/1999 to its original file but not O.S.No.44/1999.

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f) During pendency of R.A.No.419/2006-07, the 5^th respondent-Patalamma and her legal heirs have sold the land measuring 2 acres 36 guntas in Sy.No.80 of

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1 ILR 1994 Kar 159

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Addiganahalli village in favour of the appellant hereinManjanna under a registered sale deed 20.02.2009. In pursuance to the sale deed, the name of the appellant came to be entered in the records under mutation proceedings MR No.16/2008-09.

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g) The appellant-Manjanna filed a civil suit bearing O.S.No.214/2010 to declare that he is the absolute owner of the suit schedule property and he is in possession, by challenging the judgment and decree in O.S.No.44/1999 dated 30.07.1999 and the claim of the 6^th respondentChannegowda.

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h) Thereafter, the appellant-Manjanna, who was not a party to the proceedings in R.A.No.419/2006-07, filed revision petition R.P.No.1/2010-11 before the Special Deputy Commissioner without making the 6^th respondentChannegowda as a party. Even the 5^th respondentPatalamma was not a party in the same. The 1^st respondent

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proceeded in the matter and allowed the revision by order

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dated 27.06.2011. It was ordered as below:

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The revision petition is allowed. Order passed by the respondent No.1 in R.A.(N)/419/2006-07, dated 31.12.2009 in respect of the property bearing Sy.No.80, New No.80/2, measuring 2 acres, situated at Addigonahalli, Hesaraghatta Hobli, Bangalore North Taluk, Bangalore District is hereby set aside and to this order shall be result of O.S.No.214/2010 pending on the file of the II Addl. Civil Judge (Sr.Dn) Bangalore Rural District, Bangalore on disposal of the same, in the event if the respondent No.3 is succeed, he is at liberty to approach the revenue authorities “in this Result Appeal allowed”.

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i) The 6^th respondent-Channegowda filed writ

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petition in W.P.No.43227/2011 seeking the following reliefs:

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“Wherefore, it is humbly prayed that this Hon’ble Court may be pleased to;

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i) Issue a writ of certiorari or any other order or direction or writ in the nature of certiorari quashing Annexure-J, passed by the 1^st respondent in REV.Pet.No.1/10-11, dt.27.06.2011.

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ii) Issue a writ of mandamus directing the 3^rd respondent to change/mutate the Khata in favour of the petitioner pursuant to the order passed by 2^nd respondent as per Annexure-G.

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iii) May be pleased to allow the writ petition with costs and grant such other relief/s as this Hon’ble Court deems fit under the facts and circumstances of the case, in the interest of justice and equity.”

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j) The learned Single Judge after hearing the

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learned counsels appearing before him, particularly, the 6^th respondent and the appellant herein allowed the writ petition in following words:

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“7. Therefore, this Court would set aside the order of revenue entry made in favour of Patalamma to an extent of 2 acres 38 guntas in IHC.6/1991-92 inasmuch as on that day she did not have title to entire extent of 2 acres 38 guntas and what was available to her was only 38 guntas. So far as petitioner is concerned, his father having purchased 2 acres of land under registered sale deed dated 4.7.1970, he should be registered as owner of 2 acres and remaining 38 guntas can only be the land which Patalamma could have conveyed to 6th respondent. Therefore, the revenue entry in her favour should get reduced to 38 guntas and she having sold the said extent in favour of 6th respondent, the revenue entry shall be entered in his name to an extent of 38 guntas.

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8. With such observations, this writ petition is disposed of. It is made clear that the concerned Tahasildar shall effect necessary mutation entries to the name of petitioner as well as 6th respondent in the aforesaid manner within 15 days from the date of receipt of a copy of this order.”

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k) Being aggrieved by the same, the appellant, who is the 6^th respondent before the learned Single Judge, has filed the present appeal.

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Learned Senior Counsel appearing for the appellants would submit that the order of Assistant Commissioner dated 31.12.1978 was not challenged and it holds good even now also. Therefore, Patalappa and after his demise, Patalamma continued to be the owners in possession of the property and as such, she had all the rights to alienate the same in favour of the appellantManjanna. She would further submit that by virtue of the proceedings in IHC6/1991 mutation in favour of Patalamma remained unaffected and therefore, the impugned order of the learned Single Judge is not sustainable. She submits that the orders passed subsequent to the proceedings in IHC6/1991 and the order of the Assistant Commissioner was not sustainable in the eye of law and therefore, the learned Single Judge erred in allowing the writ petition. Apart from that, there is a controversy as to whether the sale deed

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dated 04.07.1970 was in respect of 1 acre of land or 2 acres of land and there are some manipulations in the same. It is submitted that the order passed invoking the provision of Section 129 of the KLR Act in effecting the mutation entry in IHC6/1991-92 is not challenged and therefore, the said entry holds good. The learned Senior Counsel fairly concede to the proposition laid down by this Court in the case of Syed Bhasheer Ahamed (referred supra).

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Per contra, the learned Senior Counsel Sri.DLN

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Rao appearing for the respondents No.6 (a) to (f) submits that the decree in O.S.No.44/1999 has become final, though it is an exparte decree, as it was not challenged by Patalamma. Therefore, the declaration in favour of the 6^th respondent-Channegowda remains unaffected. It was incumbent upon the revenue authorities to implement the declaration made in O.S.No.44/1999, which was passed after considering the ratio laid down in Syed Bhasheer

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Ahamed (referred supra). He also points out that the Tahsildar directing the entry of the name of Patalamma was

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under the wrong impression that the judgment and decree in O.S.No.44/1999 was set aside in M.A.No.147/2000 and the said error was rectified by the Assistant Commissioner in R.A.No.419/2006-07. Therefore, he submits that no interference is required in the order passed by the learned Single Judge. He points out that against the order passed by the Assistant Commissioner, a revision is not maintainable and as such, the order passed by the Deputy Commissioner was improper. In this regard he places reliance on the judgment of this Court in the case of Srimanmaharaja

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Niranjana Jagadguru Mallikarjuna Murugarajendra

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Mahaswamy Vs Deputy Commissioner² . It is submitted that in view of a declaration by a competent Civil Court enuring to the benefit of the 6^th respondent, the impugned order of the single judge cannot be faulted.

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The fact that 2 acres 36 guntas in Sy.No.80 was a Thoti Inam land and even before it was re-granted, it was sold to the 6^th respondent-Channegowda is not disputed. So

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2 ILR 1986 Kar 1059

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also, the re-grant was made in the name of Patalappa in the year 1978 cannot be denied. The question would be whether the re-grant would enure to the benefit of the 6^th respondent or by virtue of the order of the Assistant Commissioner, it would vest with Patalappaa or his daughter Patalamma.

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The judgment of Full Bench this Court in the case

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of Syed Bhaseer Ahamed (referred supra) in paragraph 30 as bellow;

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“30. What emerges from the above discussion may be summarised thus, in continuation and clarification of the ten answers given in Lakshmana Gowda ((1981) 1 Kant LJ I):

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(a) Alienation of re-granted 'service inam land'during the period 1-2-1963 to 7-8-1978 is valid and permission for sale is only a formality as the Deputy Commissioner was bound to give permission on mere payment of an amount equal to 15 times of land assessment.

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(b) Under Ss. 5(1) and 6 of the Act, any holder of a village office or any authorised holder has a vested right to obtain re-grant of the service inam land, which was held by him immediately before 1-2-1963 (that is as at the end of 31-1-1963) subject to payment of occupancy price in terms of the Act and the Rules; the fact that the holder or authorised holder had alienated the land and divested himself

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of possession of the land after 1-2-1963 and before 7-8-1978 will not disentitle him, to re-grant under S. 5(1) or 6 of the Act, as what is relevant for re-grant is holding of such land as the end of 31-11963.

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(c) Alienation of service Inam land between 1-21963 and 7-8-1978, by a holder or an authorised holder before re-grant, is not invalid, as he had a vested right to get re-grant and as there was no bar regarding alienation during that period; but the alienee will be a person with imperfect title entitled to continue in possession and when the land is regranted to the alienor, the title obtained by the alienor will enure to the benefit of the alienee;

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(d) The date of re-grant, whether before or after 7- 8-1978, will not be relevant to determine the validity of the alienation between 1-2-1963 and 7-81978, as what is prohibited after 7-8-1978 prospectively for a period of 15 years is alienation and not re-grant.

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(e) The alienee between 1-2-1963 and 7-8-1978 has no right to seek re-grant in his own name and his right is only to claim the benefit of doctrine of feeding the grant by estoppel as and when re-grant is made to his alienor under S. 5(1) or 6; and for this purpose he may support or pursue any application for re-grant in favour of his alienor;

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(f) There is no provision in the Act authorising the State Government on its authorities to evict an alienee under an alienation made between 1-2-1963 and 7-8-1978. Section 7 is not applicable, as such an alienee is not an 'unauthorised holder'. If the land alienated between 1-2-1963 and 7-8-1978, is subsequently regranted to the alienor, the benefit of

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such re-grant, namely, title will enure to the benefit of the alienee. If the land is not regranted to the alienor, but to someone else on the ground that the alienor is not a 'holder' or 'authorised holder', then the alienee will be in the position of a transferee from a person without any title; and the grantee to whom the re-grant is made, will be entitled to obtain possession from the alienee and the limitation for such grantee to dispossess the alienee will commence from the date of re-grant."

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The above proposition of law was upheld by the Hon’ble Supreme Court in State of Karnataka Vs Seenappa³ concerning interpretation of the provisions of Karnataka Village Officers Inam Abolition Act, 1961.

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Evidently, the 6^th respondent-Channegowda was an alienee, who fell in the category of paragraph (c) & (e) above. Therefore, the 6^th respondent Channegowda being an alienee had no right to seek re-grant in his own name and his right is only to claim the benefit of doctrine of feeding the grant by estoppel as and when re-grant is made to his alienor. In view of the above proposition, the re-grant in favour of Patalappa would definitely enure to the benefit of

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3 ILR 1992 Kar 2177

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the purchaser-Channegowda, the 6^th respondent herein. In that view of the matter, the orders passed by the respondent No.1 to 3 regarding entry in the revenue records would be to no avail.

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It is pertinent to note that in Srimanmaharaja Niranjana Jagadguru Mallikarjuna Murugarajendra Mahaswamy (supra) this Court has held that the Deputy Commissioner has no power to entertain a revision u/s 136(3) of the Karnataka Land Revenue Act against an order of the Assistant Commissioner as an appellate authority u/s 136(2) of the Act. Therefore, the order impugned in the Writ petition is not sustainable.

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However, as of now the judgment and decree in O.S.No.44/1999, having not been set aside by any competent court, will also hold good until it is either set aside or held improper by any other competent court. Obviously, when a challenge is laid by appellant-Manjanna in O.S.No.214/2010, to the said decree in O.S.No.44/1999, all

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the questions raised by the appellant as to the validity of the sale deed dated 04.07.1970 would be decided in the said suit. As of now, the judgment and decree in O.S.No.44/1999 being valid, all other proceedings before the revenue authorities are redundant and not sustainable. Any transaction made subsequent to the decree in O.S.No.44/1999 cannot stare and ignore the declaration made in the said suit.

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Under these circumstances, the decree in

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O.S.No.44/1999, being only to the extent of 2 acres and the sale deed in favour of the appellant-Manjanna being to the extent of 2 Acres 38 guntas, the vendor of the appellant Manjanna could have alienated only to the extent he held after selling 2 acres of land to the 6^th respondentChannegowda. As such, the appellant can only insist for entering his name in respect of 38 guntas, excluding the area of 2 acres which is subject matter of the decree in O.S.No.44/1999. In that view of the matter, the appeal is bereft of any merits.

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