Mohan Manghnani vs The Assistant Commissioner, Bangalore North Sub-Division and Others

B.S. Patil, J.—I.A. No. 2 of 2013 is filed under Order 1, Rule 10(2) of Civil Procedure Code, 1908 by one Muniyakka to implead herself as additional respondent 9. In the application, she has contended that she is the sister-in-law of respondent 2-Kittappa, who is one of the legal representatives of the original grantee and therefore, she is a proper and necessary party to this proceeding. As Kittappa is already on record and as the impleading applicant is also heard in the matter, there is no impediment to allow the application. Hence, I.A. No. 2 of 2013 is allowed. Applicant-Muniyakka is permitted to come on record as additional respondent 9. Petitioner to amend the cause title. In this writ petition, petitioner is calling in question the order dated 2-6-2012 passed by the Deputy Commissioner, Bengaluru District, Bangalore, vide Annexure-A.

The main challenge is based on the contention that the appeal before the Deputy Commissioner against the order passed by the Assistant Commissioner in Case No. K.SC.ST. 8/1995-1996, dated 30-12-1997 was not maintainable as the said order of the Assistant Commissioner had been already challenged by the vendor of respondent 4 herein who was the purchaser of the alleged granted land in No. SC.ST.(A) 12/1998-1999 and by a reasoned order dated 5-11-1999, the Special Deputy Commissioner, Bangalore District had set aside the said order of the Assistant Commissioner recording a finding that there was nothing to show that the land was a granted land and was alienated in violation of the provisions of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short, ''the Act''). In fact, the order dated 5-11-1999 passed by the Special Deputy Commissioner is produced at Annexure-D. There is no dispute with regard to the said fact.

Based on the order passed by the Special Deputy Commissioner on 5-11-1999, Sri Udaya Holla, learned Senior Counsel appearing for the petitioner contends that when once the Appellate Authority has passed an order on merits at the instance of the aggrieved persons, it was not open for the Deputy Commissioner to entertain another appeal, after lapse of nearly 15 years and pass a totally different order as per Annexure-A.

A perusal of Annexure-A order impugned in this writ petition discloses that the Deputy Commissioner, though makes a reference to the order dated 5-11-1999 passed by the then Special Deputy Commissioner, Bengaluru District, he proceeds to record a finding that Kittappa who was the appellant before him was the legal heir of the grantee and not Peddanna. He proceeds to hold that Peddanna who had moved the Assistant Commissioner seeking restoration of land did not have any right to maintain such an application and therefore, the order passed by the Deputy Commissioner earlier during the year 1999 was required to be ignored.

This approach of the Deputy Commissioner is totally erroneous. Though Peddanna had moved the application at the first instance before the Assistant Commissioner, he succeeded before the Assistant Commissioner. The Assistant Commissioner held that it was a granted land and ordered for resumption and restoration of the same. If Peddanna was not the real heir of the original grantee and it was the petitioner who was the real heir of the original grantee, he ought to have laid a claim by approaching the Civil Court or by resorting to other remedies open to him in law. Even if he was aggrieved by the findings, he could have also made a grievance at an appropriate time in that regard before the Deputy Commissioner. The appeal before the Deputy Commissioner in the year 1999 was filed by the purchaser of the land. The Deputy Commissioner has gone into the question whether it was a granted land or not in terms of the provisions contained under Section 3(1)(b) of the Act. He has recorded a finding that there were no records to hold that it was a granted land. He has also further found that the grant was made in the year 1931 and that the purchaser who had purchased the property on 18-3-1944 had perfected his title by adverse possession as on the date the Act came into force. These findings recorded by the Deputy Commissioner on facts after contest have attained finality as back as on 5-11-1999. This order of the Deputy Commissioner was not challenged before this Court. In such circumstances, respondent 2 herein could not have maintained an appeal against the order of the Assistant Commissioner which was set aside by the Deputy Commissioner and which was not in existence by filing a separate appeal in the year 2007/2008.

Principles of res judicata applies to the facts of the case as held by this Court in the judgment in the case of V. Hanumanthaiah Vs. State of Karnataka and Others, When the Appellate Order passed by the Deputy Commissioner attained finality, the Successor Officer cannot entertain another appeal and pass another order reversing the order passed by his predecessor, even at the instance of some other person who may claim that he was the legal heir and not the person who had moved the Assistant Commissioner earner. It is not open to the Deputy Commissioner to re-open the case which had attained finality, otherwise it amounts to sitting in appeal against the order passed by his predecessor. This principle which has been well-established has application in all force to the fact''s of the present case. The Deputy Commissioner, therefore, was in error in passing the order under challenge. The appeal before him was not maintainable.

Learned Counsel for respondent 2 contends that fraud has been committed against respondent 2-Kittappa by Peddanna who had illegally claimed right over the land in question and had moved the Assistant Commissioner seeking restoration of granted land. If a person moves the Assistant Commissioner seeking restoration and others who are legally entitled do not join him or contest the claim and keep quiet for years or may be decades, they cannot be heard to say that the orders passed at an undisputed point of time at the instance of the person who had made such a claim had to be re-opened and the case has to be heard afresh. The fact that Kittappa did not make any application before the Assistant Commissioner, nor did he resisted the application made by Peddanna is not in dispute. The fact that the Assistant Commissioner, in fact, passed an order in favour of the grantee is also not in dispute. Therefore, there is no collusion or fraud insofar as the determination of the matter on merits by the Assistant Commissioner and the Deputy Commissioner. Therefore, there was absolutely no authority or jurisdiction in the Deputy Commissioner to entertain another appeal against the same order which had been set aside earlier.

Hence, the writ petition is allowed. Impugned order at Annexure-A is set aside.