Allowed

Murigeppa S/O Kashappa Nara, v. Deputy Director of Land Records, Bagalkot

Karnataka HC15 Apr 2024WP/146201/2020

Case brief

AI extract

What is this about?

The Court allowed the writ petition to quash an interim survey report, rejecting orders barring re-survey. Directing the Taluka Surveyor to conduct a fresh survey of the disputed land to ascertain the true extent of encroachment pending a related civil suit.

What did the court decide?

Quashed the survey report and subsequent interim rejection orders; directed Respondent No. 3 to conduct a re-survey and submit a report.

Murigeppa S/O Kashappa Nara, Vs Deputy… — Civil Procedure and Limitation | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:6349 WP No. 146201 of 2020

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 15^TH DAY OF APRIL, 2024

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BEFORE

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THE HON'BLE MRS. JUSTICE M.G.UMA

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WRIT PETITION NO.146201/2020(KLR-RES)

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BETWEEN:

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MURIGEPPA S/O. KASHAPPA NARA, AGE: 57 YEARS, OCC: AGRICULTURE, R/O: KABADI BUILDING, SECTOR NO. 42 NAVANAGAR, BAGALKOT – 587 101.

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…PETITIONER

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(BY SRI MRUTYUNJAYA S. HALLIKERI, ADVOCATE)

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AND:

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DEPUTY DIRECTOR OF LAND RECORDS, BAGALKOT, 234, 2^ND FLOOR, OFFICE OF DDLR,

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DISTRICT ADMINISTRATION BUILDING, BAGALKOT – 587 101.

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Digitally signed by MANJANNA E Location: High Court of Karnataka

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ASSISTANT DIRECTOR OF LAND RECORDS, BAGALKOT, OFFICE OF ADLR, DISTRICT ADMINISTRATION BUILDING, BAGALKOT – 587 101.

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TALUKA SURVEYOR, OFFICE OF LAND SURVEYOR, BAGALKOT – 587 101.

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SHRI SHAMBHULINGAPPA KASHAPPA NARA, AGE: MAJOR, OCC: DOCTOR, R/O OPPOSITE SAKRI HIGH SCHOOL, SHARADA SADAN, BAGALKOT – 587 101.

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2 - NC: 2024:KHC-D:6349 WP No. 146201 of 2020

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SHRI SHIVAPPA KASHAPPA NARA, AGE: MAJOR, OCC: BUSINESS, R/O PLOT NO. 5, BEHIND UNION BANK, 21^ST CROSS, VIDYAGIRI, BAGALKOT – 587 101.

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…RESPONDENTS (BY SMT. KIRTILATA R. PATIL, HCGP FOR R1 TO R3; SRI S.K.MAGAJI, ADVOCATE FOR R4 AND R5; SRI NEEL P. PATEL, ADVOCATE FOR SRI GAVI SHANKAR MOT, ADVOCATE FOR R4)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT, ORDER OR DIRECTION IN THE NATURE OF CERTIORARI BY QUASHING THE ORDER DATED 26.12.2019 IN HBC/APL/SR/01/2019-20 PASSED BY THE RESPONDENT NO.1 VIDE ANNEXURE-F. ISSUE A WRIT, ORDER OR DIRECTION IN THE NATURE OF CERTIORARI BY QUASHING THE ORDER DATED 12.03.2019 PASSED BY THE RESPONDENT NO.2 IN NO.BK/HBC/SR/04/17-18(01/2015-16) VIDE ANNEXURE-C. ISSUE A WRIT, ORDER OR DIRECTION IN THE NATURE OF CERTIORARI BY QUASHING THE SURVEY REPORT PREPARED ON 25.09.2014 BY THE RESPONDENT NO.3 WITH RESPECT TO SY.NO.45/1 OF MALLAPUR VILLAGE, BAGALKOT TALUK VIDE ANNEXURE - A.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING - B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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3 - NC: 2024:KHC-D:6349 WP No. 146201 of 2020

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ORDER

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Petitioner is seeking to quash the survey report produced as per Annexure-A submitted by respondent No.3, the order passed by respondent No.2 as per Annexure-C and the order of respondent No.1 passed as per Annexure-F.

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Heard learned counsel Sri.Mrutyunjaya S. Hallikeri, for petitioner. Smt.Kirtilata R. Patil, learned High Court Government Pleader for respondent Nos.1 to 3, learned counsel Sri.S.K.Magaji, for respondent Nos.4 and 5, Sri.Neel P. Patel, learned counsel for Sri.Gouri Shankar Mot, for respondent No.4.

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Learned counsel for the petitioner submitted that the petitioner and the respondent Nos.4 and 5 are the brothers. There was partition among them and respondents have filed an application to survey the land. Respondent No.3 conducted the survey and filed his survey report as per Annexure-A. As per Annexure-A, petitioner has encroached 10 guntas 4 annas of land belonging to the respondents. Respondent No.4 filed the suit O.S.No.255/2015 seeking mesne profits in respect of the said land. In the said suit petitioner as defendant filed an application seeking appointment for Court Commissioner. The said application came to be rejected, vide order dated

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4 - NC: 2024:KHC-D:6349 WP No. 146201 of 2020

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26.06.2019, produced as per Annexure-J. It is held by the Civil Court that it is for the Revenue Authority to decide as to whether there was an encroachment or not. Accordingly the petitioner challenged Annexure-A before respondent No.2 and passed the order as per Annexure-C and the same was confirmed by respondent No.1, by passing the order as per Annexure-F. Being aggrieved by the same, petitioner is before this Court.

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Learned counsel submitted that since the petitioner is challenging the correctness of the survey report Annexure-A. He had approached respondent No.2 and thereafter respondent No.1. Both have rejected the prayer of the petitioner. In the mean time, the Civil Court rejected the prayer of the petitioner for appointment of the Court Commissioners for measuring the property. Under such circumstances, petitioner is made remediless and hence, filed this writ petition seeking passing of appropriate order and accordingly, he prays for allowing the petition.

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Per contra, learned counsel for respondent No.4 opposing the petition submitted that respondent No.3-the Taluka Surveyor has surveyed the land and submitted his

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5 - NC: 2024:KHC-D:6349 WP No. 146201 of 2020

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report as per Annexure-A. As per Annexure-A, there was clear encroachment by the petitioner. Therefore, respondent No.4 filed suit O.S.No.255/2015 for mesne profits. There is absolutely no reason for re-surveying the land. Accordingly, Annexure-C and F came to be passed. In the mean time, even the Civil Court rejected the prayer of the petitioner for appointment of Court Commissioner for the purpose of resurveying the land which was never challenged by the petitioner. Under such circumstances, the petition is liable to be dismissed and he prays for dismissal of the petition.

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Materials on record disclose that respondent No.3 surveyed the land and submit his report as per Annexure-A, according to which petitioner has encroached the land belonging to the respondent No.4 as shown in the sketch, measuring 10 guntas 08 annas. The same was challenged by the petitioner before the respondent No.2, who passed Annexure-C rejecting the claim of the petitioner. Respondent No.1 has also rejected the claim of the petitioner for resurveying the land by passing the order as per Annexure-F.

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It is also not in dispute that the respondent No.4 filed suit for mesne profit O.S.No.255/2015. No further relief is

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6 - NC: 2024:KHC-D:6349 WP No. 146201 of 2020

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claimed, except the mesne profits and suit is the still pending consideration. The application is filed by the petitioner for appointment of Court Commissioner was admittedly came to be rejected vide of order dated 26.06.2019 holding that the survey of the land is to be conducted by the Revenue Authority. The reason assigned by respondent Nos.1 and 2 for rejecting the claim of the petitioner for re-survey assigned by respondent Nos.1 and 2 is that the suit O.S.No.255/2015 is pending consideration before the Civil Court. Under such circumstances, petitioner is remediless. When the petitioner is challenging the survey report produced as per Annexure-A, which is the basis for filing the suit O.S.No.255/2015 was filed. There must be a re-survey of the land to find out the correctness of the survey as per Annexure-A. Therefore, I am of the opinion that the petition is to be allowed. If the re-survey is conducted by the respondents, no prejudice would be caused to the respondent No.4 as it will either confirm the encroachment of the land by the petitioner or it will highlight the ground reality. Hence, I proceed to pass the following:

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ORDER

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a) The petition is allowed.

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7 - NC: 2024:KHC-D:6349 WP No. 146201 of 2020

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b) Annexure-A dated 25.09.2014 issued by respondent No.3, Annexure-C 12.03.2019 passed by respondent No.2 and Annexure-F dated 26.12.2019 passed by respondent No.1 are quashed.

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c) Respondent No.3 is directed to re-survey the land in

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accordance with law and submit his report.

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SD/JUDGE

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AC/CT-ASC List No.: 1 Sl No.: 13

Murigeppa S/O Kashappa Nara, v. Deputy Director of Land Records, Bagalkot

Case brief

What is this about?

What did the court decide?

Murigeppa S/O Kashappa Nara, v. Deputy Director of Land Records, Bagalkot

Case brief

What is this about?

What did the court decide?

What the court decided

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