Sri. Muniyappa S Vs Sri. Kalappa

2 . SRI. CHIKKAMUNIYAPA, S/O LATE CHIKKAMUNISHAMAPPA AGED ABOUT 56 YEARS, BOTH ARE RESIDING AT SONNAPPANAHALLI VILLAGE, JALA HOBLI, YELAHANKA TALUK, BENGALURU RURAL DISTRICT-560063.

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...APPELLANTS

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(BY SRI. T. R. GIRISH, ADVOCATE FOR SRI. SHIVANANDA. R, ADVOCATE)

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AND:

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1 . SRI. KALAPPA

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S/O LATE MUNIYAPPA AND SMT. AKKAYAMMA, AGED ABOUT 51 YEARS,

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2 . SMT. S M MANJULA

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D/O LATE MUNIYAPPA AND SMT. AKKAYAMMA, W/O LATE NARASIMHA MURTHY, AGED ABOUT 57 YEARS

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3 . S M NARAYANASWAMY, S/O LATE MUNIYAPPA AND SMT. AKKAYAMMA, AGED ABOUT 49 YEARS,

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4 . S M NAGARAJA S/O LATE MUNIYIAPPA AND SMT. AKKAYAMMA, AGED ABOUT 45 YEARS,

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5 . S M MUNIRAJU S/O LATE MUNIYAPPA AND SMT. AKKAYAMMA, AGED ABOUT 45 YEARS,

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6 . SMT. AKKAYAMMA D/O LATE CHIKKAMUNISHAMAPPA, W/O HANUMAPPA AGED ABOUT 70 YEARS,

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7 . SMT MUNIYAMMA, D/O LATE CHIKKAMUNISHAMAPPA, W/O NARASIMAIAH, AGED ABOUT 65 YEARS,

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8 . SMT. LAKSHMI, D/O LATE ANJINAMMA AND NARASIMAIAH, W/O MURTHY, AGED ABOUT 39 YEARS,

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9 . SRI. VENKATARAYAPPA N. S/ O LATE ANJINAMMA AND NARASIMAIAH AGED ABOUT 38 YEARS,

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ALL ARE R/AT SONNAPPANAHALLI VILLAGE, JALA HOBLI, YELAHANKA TALUK, BENGALURU RURAL DISTRICT -560063

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10 . SRI. RAVINDRA L, S/O LATE LAKSHMAIAH, AGED ABOUT 57 YEARS,

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11 . SRI. PARTHA L S/O LATE LAKSHMAIAH, AGED ABOUT 55 YEARS, BOTH RESPONDENTS NO.10 AND 11 ARE R/AT SONNAPPANAHALLI VILLAGE, JALA HOBLI, YELAHANKA TALUK, BENGALURU RURAL DISTRICT -560063

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12 . SRI PRAKASH GANGARAM, S/O LATE N. GANGARAM, AGED ABOUT 71 YEARS, R/AT NO.70, ABSHOT LAYOUT, SANKEY CROSS, RAMANAGARA-560 052.

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….RESPONDENTS

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(BY SRI. G. MANIVANNAN, ADVOCATE FOR C/R1 TO R9; SRI. MITHUN G. A., ADVOCATE FOR R12)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1(R) OF CPC, PRAYING TO 1) CALL FOR RECORDS IN O.S.NO.1068/2024 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC., AT DEVANAHALLI 2) SET ASIDE THE ORDER DATED 24.10.2024 PASSED ON I.A.NO.1 IN O.S.NO.1068/2024 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, AT DEVANAHALLI. I.A.I BE REJECTED TO MEET THE ENDS OF JUSTICE AND ETC.,

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IN W.P.NO.19009/2023:

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BETWEEN:

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1 . SRI. S. MUNIYAPPA @ MUNIGA, S/O. SRI. CHIKKAMUNISHAMAPPA AGED ABOUT 83 YEARS,

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2 . SRI. CHIKKAMUNIYAPPA, S/O. SRI. CHIKKAMUNISHAMAPPA AGED ABOUT 70 YEARS,

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3 . SRI. MUNIKRISHNA S/O. MUNIYAPPA, AGED ABOUT 44 YEARS,

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4 . SRI. SRINIVASA, S/O. SRI. MUNIYAPPA, AGED ABOUT 43 YEARS,

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5 . SRI. VENKATESH, S/O. SRI. CHIKKAMUNISHAMAPPA AGED ABOUT 44 YEARS,

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6 . SRI. MANJUNATHA, S/O. SRI. CHIKKAMUNISHAMAPPA AGED ABOUT 40 YEARS. PETITIONERS NO.1, 2 TO 4 TO 6 REP. BY PETITIONERS NO.3 GPA HOLDER SRI. MUNIKRISHNA

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ALL RESIDING AT SONNAPPANAHALLI VILLAGE, JALA HOBLI,

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BENGALURU NORTH (ADDL) TALUK-562157

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...PETITIONERS

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(BY SRI. LOKESH R., ADVOCATE)

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AND:

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1 . THE DEPUTY COMMISSIONER, BENGALURU URBAN DISTRICT, BENGALURU-560009.

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2 . THE ASSISTANT COMMISSIONER, BENGLAURU NORTH SUB-DIVISION, BENGALURU-560009.

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3 . SMT. MUTTAMMA, W/O. LATE SRI. LAKSHMAIAH, AGED ABOUT 70 YEARS, SONNAPPANAHALLI VILLAGE, JALA HOBLI, BENGALURU NORTH (ADDL) TALUK-562157.

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4 . SRI. PRAKASH GANGARAM, AGED ABOUT 60 YEARS S/O. LATE SRI.N. GANGARAM NO.17, ABSHET LAYOUT, SANKEY ROAD CROSS, BENGALURU – 560052

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5 . SRI.N. SHIVAKUMAR, AGED ABOUT 55 YEARS S/O. LATE SRI. K. NINHGAIAH, NO.8/1A, SHIVAKRUPA, KEMPANNA ROAD, DODDAMAVALLI, BENGALURU – 560004.

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6 . THE STATE OF KARNATAKA BY ITS REVENUE SECRETARY, VIDHANA SOUDHA, BENGALURU-560001

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….RESPONDENTS

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(BY SRI.B. S. GURUSWAMY, AGA FOR R1, R2 AND R6; SRI. MITHUN G. A., ADVOCATE FOR R4 )

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI OR ANY OTHER WRIT OR ORDER QUASHING THE ORDERS PASSED UNDER ANNEXURE-B IN THE CASE NO.KSCST(A) 132/2016-17 DATED 23.06.2023 PASSED BY THE RESPONDENT NO.1 AND ANNEXURE-A IN THE CASE KSCST.NO.78/2011-12 DTD 22.12.2014 PASSED BY THE RESPONDENT NO.2 RESPECTIVELY AND ETC.,

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THESE MFA AND WRIT PETITION HAVING BEEN RESERVED FOR JUDGMENT AND ORDER ON 28.02.2025, COMING ON FOR PRONOUNCEMENT THIS DAY, MADE THE FOLLOWING.,

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RESERVED FOR ORDERS ON: 28.02.2025

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PRONOUNCED ON : 07.03.2025

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CAV JUDGMENT

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The Writ Petition No.19009/2023 is filed by the petitioners under Articles 226 and 227 of the Constitution of India, praying to issue a writ of certiorari or any other

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writ or order quashing the orders in the case of KSCST.No.78/2011-12 dated 22.12.2014, passed by the respondent No.2 and in the case of KSCST(A).No.132/2016-17 dated 23.06.2023, passed by the respondent No.1.

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The MFA.No.746/2025 is filed by the appellants / defendants No.1 and 2 under Order 43 Rule 1 (r) of CPC,

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praying to set aside the order dated 24.10.2024 on I.A.No.I, which is filed under Order 39 Rule 1 and 2 of CPC, in O.S.No.1068/2024, on the file of the Senior Civil Judge and JMFC at Devanahalli.

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Heard the learned counsel for the petitioners, appellants and the respondents in both the cases.

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The fact of the case in W.P.No.19009/2023 is that the petitioners are belongs to Scheduled Caste (Adi Dravida). The father of the petitioners No.1 and 2 viz., Sri. Chikkamunishamappa, was granted a land in new Sy.No.58 (Old No.10) measuring 03 acres 17 guntas situated at Sonnappanahalli village, Jala Hobli, Bengaluru North (Addl) Taluka, (hereinafter referred as ‘suit scheduled property’) with a condition imposed by the respondent No.3 not to alienate the property for 15 years. It is further contended that the late father of the petitioners was illiterate and his sons were also illiterate. They were working as coolie labourers under respondent No.3 – Smt. Muttamma. By taking undue advantage, the respondent No.3 – Smt. Muttamma got executed the mortgage deed in her favour on 03.06.1969. On the basis of the mortgage deed, she got the Khata transferred in her name. Later she got converted the land into NonAgricultural land and sold to the father of the respondent No.4 viz., Gangaram under various sale deeds. The petitioners were in possession, the same was taken by

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them by force violating Sections 4 and 5 of the Karnataka Scheduled Caste and Scheduled Tribes (Prohibition and Transfer of Certain Lands) Act, 1978 (hereinafter referred as ‘PTCL Act’). Hence, the petitioners have filed a petition before the respondent No.2 in KSCST.No.78/2011-12, which came to be rejected on 22.12.2014. An appeal was

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filed before the respondent No.1 in KSCST(A).No.132/2016-17, which also came to be rejected by the respondent No.1, holding that the grant was not comes under the PTCL Act and passed the order.

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Being aggrieved by the same, the petitioners are before this Court.

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The learned counsel for the petitioners has contended that the petitioners and their father were the members of Scheduled Caste and Scheduled Tribes (Adi Dravida). On request before the Deputy Commissioner, the land in question was granted with a non-alienation clause of 15 years, but the same was ignored by both respondents No.1 and 2 and rejected the application

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holding that the land was granted under Grow More Food Scheme, which is not correct. Therefore, both the orders were under challenge, require for setting aside. Hence, prayed for allowing the petition.

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Per contra, the learned counsel for the respondents No.1, 2 to 6 as well as Additional Government Advocate appearing for the respondents No.4 have objected the petition by supporting the order of the respondents No.1 and 2. They have contended that the land in question was granted to the father of the petitioners under the Grow More Food Scheme, but not under the PTCL Act. Therefore, question of challenging the sale deed and setting aside the sale deed by invoking the provisions of Section 5 of the PTCL Act, does not arises. Hence, prayed for dismissing the petition.

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The learned counsel appearing for the respondents No.1, 2 to 6 also contended that the land in question was granted under Grow More Food Scheme,

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which is not false under the PTCL Act. Therefore, question of setting aside the sale deed or any other deed by the Deputy Commissioner or the Assistant Commissioner does not arises. Now, the land was already alienated long back. Therefore, the question of setting aside the sale deed does not arises. The provisions of PTCL Act, also not applicable to the case on hand. Therefore, prayed for dismissing the petition.

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The learned counsel for the petitioners further argued by filing the rejoinder that the father of the petitioners was mortgaged the property to the respondent No.3 – Smt. Muttamma, but Smt. Muttamma sold the property, who do not have any right, title or interest over the said property for alienating by her. The title was not transfer to the respondent No.3 – Smt. Muttamma and she will not become the owner. She is only a mortgagee under the Mortgage Deed in the year 1969. It was also contended that once the mortgage deed, is always mortgage. Once a mortgage is always a mortgage, the

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petitioners though approached the wrong forum, but they have also preparing to file a suit for redemption of the mortgage. Though, it was also contended that in the year 1974 there was a unregistered redemption mortgage deed, but it was not produced. Therefore, it is contended that the petitioners also having a right to file the suit against the respondents No.3 to 5 for redemption of mortgage and canceling the sale deeds. Hence, prayed for allowing the petition.

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Per contra, the learned counsel for the respondents No.3 to 5 once again contended that there is a inordinate delay in approaching the Court. Therefore, no liberty is granted to the petitioners. Hence, prayed for dismissal of the petition.

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As regards to the MFA.No.746/2025, the appellants case is that the respondents No.1 to 9 have filed a suit against the appellants as well as respondents No.10 to 12 for seeking partition and separate possession in respect of the land old Sy.No.10 (Block No.11) New

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Sy.No.58 measuring 03 acres 17 guntas situated at Sonnappanahalli village, Jala Hobli, Bengaluru North (Addl) Taluka, contending that the said land was granted to their father – Sri. Chikkamunishamappa and he is having wife – Smt. Narasamma and having 06 children (1) Smt. Akkayamma (mother of the plaintiffs No.1 to 5, (2) Sri. Muniyappa (defendant No.1, (3) Smt. Akkayamma (Plaintiff No.6), (4) Sri. Chikkamuniyappa (defendant No.2), (5) Smt. Muniyamma (Plaintiff No.7), (6) Smt. Anjinamma (mother of the plaintiffs No.8 and 9), were all constituted a Hindu Undivided Joint Family and there was no partition. The land in question was granted to their father. They are in joint possession. After the death of the Sri. Chikkamunishamappa, the land was mortgaged to Smt. Muttamma the mother of the defendants No.3 and 4 for Rs.1,000/- under mortgage deed dated 03.06.1969 for a period of 05 years, with understanding that the property shall be cultivated by the mortgagee. The said Smt. Muttamma mortgagee continued with the possession and the mortgage was redeemed on 22.02.1974. In pursuance to the discharge, the plaintiffs’ family were continued in

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possession. The plaintiffs have demanded their share from the defendants No.1 and 2 for partition and separate possession, but they denied and it was came to know that the suit schedule property was already sold to the mother of the defendants No.3 and 4, as the revenue records were shown in the name of Smt. Muttamma under MR.No.T10/2024-25. She said to be executed the sale deeds. The said Smt. Muttamma do not have any right, title or interest over the property for alienation to any third person or in favour of Gangaram. Therefore, the said sale deed executed by mother of the defendants No.3 and 4 is not binding on the plaintiffs. Hence, prayed for granting 4/6^th share to the plaintiffs and the sale deed executed on 06.11.1996, 07.11.1996 totally 16 sale deeds on various dates are not binding on them. Hence, they filed a suit.

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Along with the suit, the plaintiffs have also filed I.A. under Order 39 Rule 1 and 2 of CPC, for granting adinterim injunction. The Trial Court has granted the adinterim temporary injunction against the defendants not to alienate the suit scheduled property to any third party.

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Being aggrieved by the same, the defendants

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No.1 and 2 are before this Court by filing this appeal.

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The learned counsel for the appellants has contended that the land in question was a granted land in favour of their father. It was mortgaged to Smt. Muttamma in the year 1969. It was redeemed in the year 1974 and the property in question was in possession of the appellants, who are the children of Sri. Chikkamuniswamappa. By taking undue advantage of the mortgage without redemption, they falsely claiming that they are the owners. The said Smt. Muttamma was executed the sale deed to various persons, who do not have any right, title or interest over property. On the basis of the mortgage deed, she has executed a sale deed. Therefore, the same is not binding on the plaintiffs and defendants No.1 and 2 and no title transfer to the purchasers. Therefore, the order under challenge directing these appellants, not to alienate the property, is not correct. Hence, prayed for allowing the appeal.

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Per contra, the learned counsel appearing for the respondents No.10 to 12 has objected the appeal contending that the land in question was already sold and purchased the property under various sale deeds. They are also in possession of the property. Such being the case, the injunction is also against the appellants, but the defendants No.3 to 5 are in actual possession suit schedule property. Therefore, the appeal filed by the appellants is not maintainable. There is no question arise for interfering in the suit scheduled property. Hence, prayed for dismissing the appeal.

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Having heard the arguments and perused the records, the property in question is land in Old Sy.No.10 and New Sy.No.58 measuring 03 acres 17 guntas was subject matter in both these appeal as well as in the writ petition. Hence, as per the order, this writ petition was clubbed in this appeal to pass a common judgment and order.

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Having heard the arguments of the learned

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counsel for both the parties, the points that arises for my consideration are :-

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I. Whether the respondents No.1 and 2 are justified in passing the orders by rejecting the application filed by the petitioners under the PTCL Act.?

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II. Whether the appellants in MFA.No.746/2025 made out prima-facie case in their favour for setting aside the order of alienation passed by the Trial Court by granting ad-interim temporary injunction, calls for interference.?

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On perusal of the records in both the cases, which reveals that the land in question i.e., suit scheduled property was granted land by the Deputy Commissioner to the father of the petitioners viz., Sri. Chikkamunishamappa with non-alienation clause for 15 years. The petitioners have filed the petition before respondent No.2 – Assistant Commissioner in KSCST.No.78/2011-12 under Section 5 of the PTCL Act,

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for setting aside the transfer and sale deed by the said Smt. Muttamma in favour of other respondents. The respondent No.2 – Assistant Commissioner rejected the petition. Therefore, an appeal came to be filed before the Deputy Commissioner – respondent No.1 in KSCST(A).No.132/2016-17, which also came to be dismissed, holding that the land in question was granted to the father of the petitioners under the Grow More Food Scheme by the then the Government of Karnataka, but not under the PTCL Act.

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The respondents No.2 – Assistant Commissioner categorically has held in its order that the land was granted to Sri. Chikkamunishamappa under the Grow More Food Scheme, but not under the PTCL Act, in order to cancel the sale deed. Though, the father of the petitioners belongs to member of the Scheduled Castes and Scheduled Tribes, but the land was not granted under the PTCL Act, but under the Grow More Food Scheme. On considering the facts of the case, he has rejected the application for restoration of the land.

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The respondent No.1 – Deputy Commissioner in the appeal at Annexure-B also taken view that the land in question was granted to Sri. Chikkamunishamappa, under the Grow More Food Scheme and also dismissed the appeal filed by the petitioners.

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The learned counsel for the respondents relied upon the judgment of the Division Bench of this Court and also the orders of the Coordinate Bench of this Court, in respect of the land granted under the Grow More Food Scheme. The Division Bench of this Court has also rejected the prayer of restoring the land under the PTCL Act in W.A.No.210/2023 (SC/ST) in the case SMt. M.Manjula and others vs. The Deputy Commissioner Bengaluru and others, on the ground of delay and latches. Another Coordinate Bench of this Court in Writ Petition No.13192/2023 and connected matters dated 24.01.2025 has held that the Government of Mysore in order to increase the lands under the cultivation and enhance the food grains framed the rules and some of the land was granted to some other persons under the Grow More Food Scheme.

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After raising these objections, the learned counsel for the petitioners fairly admits that the lands under challenge is not under the PTCL Act. However, it is granted in favour of the petitioners and Sri. Chikkamunishamappa, mortgaged the property to defendant No.3 and now it is stated that he will file suit for redemption of mortgage. Though, the learned counsel for the respondents objected the same, as there is inordinate delay etc.,

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There is no limitation for redemption the mortgage and it is well settled once a mortgage always a mortgage. Therefore, the respondent No.3 will not become the owner of the property in order to alienate the same.

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Such being the case, this Court do not find any error committed by the respondents No.1 and 2 in rejecting the application filed by the petitioners under Section 5 of the PTCL Act. Therefore, if at all any relief the petitioners are entitled, they have to file the suit for redemption of mortgage under the Code of Civil

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Procedure, but filed the petition before the Assistant Commissioner. In spite of passing the order rejecting the petition, he has filed the appeal before the respondent No.1 – Deputy Commissioner and filed this writ petition. When the land is not granted under the PTCL Act, the question of restoring the land to the petitioners under Section 5 of PTCL Act, does not arises at all. Therefore, the respondents No.1 and 2 rightly rejected the application filed by the petitioners. Therefore, the writ petition is devoid of merits. Hence, the writ petition deserves to be dismissed.

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As regards to the MFA.No.746/2025 the appellants are the defendants No.1 and 2, they have challenged the injunction order granted against them as well as defendants No.3 to 6. Though, the lands belongs to the defendants and the plaintiffs who said to be Hindu Undivided Joint Family, but the land in question was mortgaged to the defendant No.3 – Smt. Muttamma in the year 1969 by the father of the defendants No.1 and 2 and

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the plaintiffs. Though, the defendant No.3 does not have any right over the said property, but sold the land to other defendants. The father of the defendants No.1 and 2 mortgaged the property to one Smt. Muttamma. The said

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Smt. Muttamma sold the property to other defendants.

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Such being the case, if the injunction is not granted in favour of the plaintiffs in the suit, there is every possibility of alienation of the property by the other defendants are not ruled out.

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The duty of the Trial Court to protect the suit schedule property until disposal of the suit. Such being the case, there is no perversity in the order passed by the Trial Court by granting ad-interim temporary injunction against the defendants not to alienate the suit schedule property. The defendants are the brothers of the plaintiffs in the suit, until disposal of the suit, it is necessary for the Trial Court to protect the interest of the plaintiffs in the suit.

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That apart, as held above, the very sale deed executed by the Smt. Muttamma in favour of other defendants do not create any right, title or interest over the property to other defendants, as the very defendant No.3 – Smt. Muttamma, herself do not have any right and title over the property, she is only a mortgagee.

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Such, being the case, no right and title were transferred to the purchaser under the various sale deeds sought for cancellation and are not binding as prayed in prayer B of the suit. Therefore, there is prima-facie case made out by the plaintiffs in their case for the purpose of granting the ad-interim temporary injunction against defendants.

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Hence, this Court do not find any error in the order for setting aside the same. Accordingly, the appeal is devoid of merits. The same is deserves to be dismissed.

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