Ammoji vs The Special Deputy Commissioner, Bangalore

Jawad Rahim, J.—The petitioners in this joint writ action have sought writ in the nature of certiorari to quash the order passed by the first respondent-Special Deputy Commissioner dated 10-10-2011 vide Annexure-A and also seek direction to the fourth respondent to refrain from interfering with their possession or creating any charge or encumbrance in respect of the property in question. In the party array, the petitioners have brought in Smt. Yashodamma, the fourth respondent who has set up rival claim of title and interest in the property. The Special Deputy Commissioner, who has passed the impugned order Annexure-A as the first respondent. The Assistant Commissioner, whose order was assailed before the first respondent, is the second respondent, the Tahsildar who has exercised the original jurisdiction to entertain an application filed under Section 128 of the Karnataka Land Revenue Act, 1964 (for short, ''the Act'') as the third respondent.

The petition is in ''B'' Group for hearing and on the basis of preparedness of the learned Counsel on both sides, the petition is taken up for hearing.

From what the learned Counsel on record have adverted to and on perusal of the case papers, the following factual matrix manifest:

The petitioners claim to be the coparceners and the members of Hindu undivided joint family, which according to them owns and possess agricultural lands in Sy. No. 55/8 measuring 19 guntas and land in Survey No. 55/10 situate in Aralakunte Village, Begur Hobli, Bangalore South Taluk.

It is averred, Karagappa, Annayappa and Nagappa are the genetic brothers who inherited the lands in question from the common propositus Annayappa. The petitioners, being the children of Annayappa and Nagappa constitute coparceners of the joint family. They, therefore, have defined share in the land in question which has not been divided by metes and bounds. It is alleged Karagappa, Annayappa and Nagappa executed power of attorney in favour of Sri Anantharama Reddy, the husband of fourth respondent and on the basis of such document, he executed two sale deeds dated 7-6-2004 and 15-6-2004 respectively, in favour of the fourth respondent (his wife Smt. Yashodamma) conveying on to her the land in Sy. No. 55/8 measuring 0.08.08 and in another land in Sy. No. 0.12.08 guntas respectively. Describing the sale deeds as null and void and not binding on them, the petitioners questioned the claim of the 4th respondent. According to them, the fourth respondent armed with two sale deeds referred to above applied to the third respondent-Tahsildar to mutate the revenue records to enter her name as the person having acquired right, title and interest which application, the third respondent has considered and effected katha and mutation, incorporating her name in respect of the said land as per the entries in M.R. No. 62/2003-2004. They allege such an order is passed without their knowledge and without giving them an opportunity or notice.

On learning about such order, they preferred an appeal before the second respondent in R.A. (A) No. 319 of 2013-2014. The First Appellate Authority, after due notice and giving full opportunity to the fourth respondent, allowed the appeal vide order dated 4-6-2006 setting aside the order of Tahsildar. Assailing it, the fourth respondent was in revision in R.P. No. 186 of 2008-2009 before the first respondent-Special Deputy Commissioner, who despite resistance by the petitioners, has set aside the order of second respondent, vide Annexure-A, restoring the order of the third respondent. Thus, they seek quashing of the said order Annexure-A.

Needless to say, respondents 1 to 3, the functionaries under the Karnataka Land Revenue Act, who have passed the impugned order have no personal interest and therefore learned Government Advocate could only justify the order of each authority.

The fourth respondent is in serious contest and on her behalf, Smt. Deepashree, learned Counsel with vehemence opposed all the grounds urged by the learned Counsel Sri B.M. Babu.

Sri B.M. Babu, learned Counsel has assertively contended that the petitioners have seriously questioned the alleged power of attorney by virtue of which Sri Anantharama Reddy has created a document with sale deed in favour of his wife. They allege mala fides in such action as the result of collusion with the fourth respondent. They did not dispute that the vendors shown in the sale deed of fourth respondent are the members of the same family and on that basis Sri B.M. Babu, learned Counsel would contend being coparceners, they could not have authorised anyone to sell the entire schedule property in which the petitioners have a subsisting interest. He would then submit that the settled position of law is that a coparcener cannot transfer the entire corpus of the joint family. Neither could the kartha do it, unless for legal necessity. He would submit the alleged power of attorney, firstly, is not related to the lands in question and secondly, even if it is presumed that it pertains to the lands in question, the same is executed fraudulently. He submits that the Tahsildar who received the application of the fourth respondent was required to have notified the persons whose names appear in the revenue records and therefore, the members of the petitioners'' family had to be heard.

Learned Counsel submits that the order of the Tahsildar was justifiably interfered with by the second respondent, noticing lack of legality in the transaction and such order had protected the rights of all concerned, which is unjustifiably interfered by the first respondent. He has urged several other grounds which need not be adverted to as the issue in limine is as to whether the order passed by the third respondent accepting the application of the fourth respondent to mutate the entries was the result of proper exercise of jurisdiction conferred on him or as to whether it is the result of illegality or contravention of the mandatory provisions of the Act.

In negation of the grounds urged by Sri B.M. Babu, learned Counsel for the fourth respondent submits the fourth respondent is a bona fide purchaser for valuable under a deed of sale executed in her favour which evidences payment of consideration and execution of the document by duly authorised agent. She submits that the petitioners have failed to establish that they have absolute right, title and interest as could be seen from the very fact they have filed a suit for decision of their right in the suit for partition in O.S. No. 78 of 2005 which is pending consideration. She submits that the decision of the Apex Court in the case of Sushil Kumar and Anr Vs. Ram Prakash and Ors, applies to the facts of this case wherein referring to similar fact situation, the Apex Court opined that if a person claiming to be a member of joint family seeks in a suit for permanent injunction against the father, a kartha for restraining him from alienating the house property belonging to the joint Hindu family for legal necessity would not be maintainable because the coparcener had got the remedy of challenging the sale and getting it set aside in a suit subsequent to the completion of the sale.

This observation is used to contend that the transaction of sale as evidenced by the deeds of sale in favour of the fourth respondent should be considered as prima facie material to effect revenue entry as the Revenue Officer will have no jurisdiction to decide on the validity of the document. If at all the petitioners feel that the said document is not binding on them, they are required to file a suit to seek cancellation of the document and until then, the transaction prevails.

By this, learned Counsel for the fourth respondent contends writ action should also be snipped at the initial stage requiring the petitioners to resort to legal remedy of declaration in their favour to declare their right, title and interest as they have already filed a civil suit for partition awaiting for its adjudication.

In short, she seeks to non-suit them from the writ action on the ground it is premature action in terms of the judgment of the Apex Court. Seemingly, the contention of the learned Counsel for the fourth respondent is impressive but on closer examination and in the light of the circumstances in which the Apex Court has rendered the judgment, the contentions are unacceptable for the following reasons:

The issue in consideration is the nature of power conferred by the provisions of Sections 127, 128 and 129 of the Karnataka Land Revenue Act in the matter relating to entries and change of entries in the revenue records. To appreciate the grievance of the petitioners and the defence of fourth respondent, necessarily, a reference needs to be given to the provisions of Section 127 which compels the authorities named in Chapter XI that:

"127. (1) A Record of Rights shall be prepared in the prescribed manner in respect of every village and such record shall include the following particulars.--

(a) the names of persons who are holders, occupants, owners, mortgagees, landlords or tenants of the land or assignees of the rent or revenue thereof;

(b) the nature and extent of the respective interest of such persons and the conditions or liabilities (if any) attaching thereto;

(c) the rent or revenue (if any) payable by or to any of such persons; and

(d) such other particulars as may be prescribed.

(2) The Record of Rights shall be maintained by such Officers in such areas as may be prescribed and different Officers may be prescribed for different areas.

(3) When the preparation of the Record of Rights referred to in sub-section (1) is completed in respect of any village, the fact of such completion shall be notified in the Official Gazette and in such manner as may be prescribed".

Section 128 is of relevance which is a provision enabling:

"128. (1) Any person acquiring by succession, survivorship, inheritance, partition, purchase, mortgage, gift, lease or otherwise, any right as holder, occupant, owner, mortgagee, landlord or tenant of the land or assignee of the rent or revenue thereof, shall report orally or in writing his acquisition of such right to the Prescribed Officer of the village within three months from the date of such acquisition, and the said Officer shall at once give a written acknowledgment of the receipt of the report to the person making it:

Provided that where the person acquiring the right is a minor or otherwise disqualified, his guardian or other person having charge of his property shall make the report to the Prescribed Officer:

Provided further that any person acquiring a right by virtue of a registered document shall be exempted from the obligation to report to the Prescribed Officer".

Therefore, in Section 128, a person acquiring right, title and interest as enumerated therein is required to apply within three months for bringing about change.

In the instant case, the application by the fourth respondent is undoubtedly is an application under Section 128 of the Act.

Section 129 is a provision which requires the procedure to be followed for registration of mutations and register of disputed cases. The very caption of Section 129 would show a register of disputed cases. Sub-sections (3) and (4) are relevant which mandates:

"129. (3) Should any objection to any entry made under sub-section (1) in the Register of mutations be made either orally or in writing to the Prescribed Officer, it shall be the duty of the Prescribed Officer to enter the particulars of the objection in a Register of disputed cases.

(4) The objections entered in the Register of Disputed Cases and such other objections as may be made during the enquiry shall be enquired into and disposed of by such Officer and in such manner as may be prescribed. Orders disposing of such objections shall be recorded in the Register or mutations by such Officer".

It therefore spells out that any objection to any entry sought to be made or objection to entry already made is required to be considered by the Authorised Officer in an enquiry to be held in terms of Chapter III of this Act. Chapter III prescribes the mode and manner of enquiry and necessarily for any action to sustain enquiry must conform to the procedure enumerated therein.

In the instant case, no doubt the fourth respondent has filed an application under Section 128. The Tahsildar has not thought necessary to call upon the persons whose name was already entered in the records to be notified. Secondly, it is quite evident that though the said order was questioned by the petitioner on the ground of want of notice, an opportunity, the Assistant Commissioner has rightly set aside the order of Tahsildar. The Deputy Commissioner who is the office in hierarchy, is bestowed with revisional power has failed to notice the requirement of Section 129 and contravention of Chapter III.

As the petitioners had disputed the transaction in favour of the fourth respondent, neither the third respondent nor the second respondent nor the first respondent had legal competence to decide the issue, necessarily, only order that could be passed is to direct the parties and relegate them to the Civil Court of competent jurisdiction to have their rights agitated and adjudicated.

In this case as the fourth respondent was seeking entry, it was the fourth respondent who was obliged or in the alternative, as it was brought to the notice of respondents 2 and 3 that a civil suit for partition is pending in which right, title and interest of the petitioners is subjudiced and both the authorities should have awaited the decision of the Civil Court. Neither of these procedures which would have answered the principles of natural justice and the mandate of Section 129 of the Act have been followed. The first respondent''s order impugned is therefore based on surmises and conjectures ignoring the contravention of mandatory provisions of the Act and the Karnataka Land Revenue Rules, 1966 made therein by the third respondent. As the order of third respondent is unsustainable, the order of first respondent confirming it, undoubtedly, is not sustainable. Being of this opinion, rule issued is made absolute. Writ petition is allowed. The order impugned dated 10-10-2011 passed by the first respondent Annexure-A is quashed and consequently the order passed by the third respondent in Case No. ALN:SR:841/11-12 is quashed. The application filed by the fourth respondent shall be taken on record by the third respondent and after duly notifying the petitioners, conduct formal enquiry as is envisaged by following the procedure prescribed in Chapter III and in such an enquiry the petitioners be permitted to file a detailed representation which shall be adjudicated in the light of the observations made in this order and in accordance with law. In the circumstances, no order as to costs.

Sri Venkatesh Dodderi, learned AGA is permitted to file his memo of appearance within four weeks.