Shivamma and Others vs The Deputy Commissioner, Mysore District and Others

B.V. Nagarathna, J.—Petitioners have assailed order dated 01/8/2012 made in RRT(A) 76 & 80/2000-01 passed by 2nd respondent-Assistant Commissioner, Mysuru Sub-Division, Mysuru (Annexure-N) as being arbitrary, erroneous and contrary to law as well, as order dated 28/8/2014 made in Revision Petition No. 5/2012-13 passed by 1st respondent-Deputy Commissioner, Mysuru District, Mysuru, in Case Nos. 2 and 3 by allowing Revision Petition No. 5/2012-13, insofar as Case No. 1 is concerned and dismissing revision petition in so far as case No. 2 is concerned, (Annexure-T to the writ petition). Petitioners have also sought a direction to continue their names in revenue records in respect of Sy. No. 191/1, measuring 4 acres of Kyathamaranahalli Village, Mysuru Taluk (hereinafter referred to as "the land in question"), pursuant to order dated 23/7/2012 made in Appeal No. 44/2011-12 passed by the Technical Assistant and Deputy Director of Land Records (Annexure-M1).

These writ petitions have a checkered history. However, for the purpose of disposal of these writ petitions, the relevant facts are that, Smt. Puttamma, mother of late M. Rajanna, husband of the first petitioner and father of petitioner Nos. 2 and 3 herein had purchased the land in question measuring 4 acres from one M.V. Nagappa, under a registered sale deed dated 23/04/1958. Subsequently, her name was entered in the revenue records vide M.R. No. 13/57-58 but the revenue entries were in respect of 4 Acres 26 Guntas instead of 4 Acres. It is stated that in the family of Puttamma, an agreement was entered into and the family properties were divided between the sons of Puttamma i.e., Madappa and Rajanna. 4 Acres 26 Gunts in Sy. No. 191/1 was divided in to three parts i.e., 1 Acre was allotted to Puttamma, 1 Acre 26 Guntas was allotted to Rajanna, 2 Acres was allotted to Madappa. Later, Madappa returned 2 Acres of land in favour of Rajanna and in-turn, Rajanna gave away 2 Acres of land bearing Sy. No. 221/1 of Doddankanahalli village to Madappa. As a result, Rajanna and Puttamma continued to enjoy together 4 Acres 26 Guntas of land and thereafter, their names were mutated in revenue records. It appears that Puttamma had formed a layout in Sy. No. 191/1 and had sold sites to 59 persons under registered sale deeds. That there have been several original suits filed in respect of the sites which have been sold.

When the matter stood thus, Smt. S.P. Malini and others approached the Tahildar in R.R.C. No. 9/2009-10 requesting her name to be mutated to an extent of 25 1/2 Guntas and 1/2 Gunta of land in the name of her brother, out of 4.26 acres which was initially mutated in the name of Smt. Puttamma. This was based on a decree passed in O.S. No. 138/78 and FDP.34/94. This request was however, not accepted.

Thereafter, Smt. S.P. Malini had filed Appeal No. 44/11-12 before the Technical Assistant and Deputy Director of Land Records in respect of 4 acres 26 guntas of land in Sy. No. 191/1. In that proceeding, petitioners as well as 6th respondent and other persons were arrayed as respondents. By order dated 23/7/2012 it was ordered that the name of Smt. S.P. Malini and her brothers name must be entered in the revenue records in respect of 26 guntas of land and that the sub-phodies given to aforesaid land i.e., 191/1A to 191/1Z and 191/1AA to 191/1MM were quashed. That order also reserved liberty to the parties therein to approach appropriate authorities for the purpose of adjudicating their rights and to get their names entered in the revenue records in respect of their respective lands. On the strength of order dated 23/7/2012, 6th respondent approached the 2nd respondent-Assistant Commissioner, who on 1/8/2012, held that in respect 4 1/2 acres of land after excluding 26 guntas of land, the names of respective parties must be entered. That order is assailed by petitioners in these writ petitions. It has been brought to my notice that as against that order, petitioners had filed an appeal before the Karnataka Appellate Tribunal but they withdrew the appeal. Thereafter, petitioners assailed the said order 1/8/2012 before the 1st respondent-Deputy Commissioner in RRTA 76 and 80/2000-01.

Pursuant to order dated 1/8/2012, 3rd respondent-Tahsildar passed orders at Annexures-AA, AA1 and AA2, which are mutation register extracts. They were challenged by petitioners before the Assistant Commissioner in RRT(A)167/2012-13 and by order dated 20/5/2013 (Annexure-R), those mutation entries were set aside. Being aggrieved by that order 6th respondent, filed Case No. 2/2012-13 before the 1st respondent-Deputy Commissioner, who took up that Case Nos. 1/2012-13 filed by petitioners and 2/2012-13 along with Case No. 3/2012-13 filed by Smt. S.P. Malini and by impugned order dated 28/8/2014 dismissed the revision filed by petitioners and allowed revision petition filed by 6th respondent. As a result, the order dated 1/8/2012 at Annexure-N was upheld and order dated 20/5/2013 at Annexure-R was set aside. Being aggrieved by those orders, petitioners have assailed orders at Annexures-N and T in these writ petitions.

I have heard learned Senior Counsel for petitioners and learned Senior Counsel along with instructing counsel for respondent No. 6 and learned Addl. Government Advocate for respondent Nos. 1 to 5 as well as perused the material on record. During the pendency of these writ petitions, Smt. Malini Sadananda, who had been arrayed as respondent No. 7 was deleted by Court Order dated 8/12/2014.

Learned Senior Counsel appearing for petitioners at the outset contended that, order dated 1/8/2012 (Annexure-N) passed by the 2nd respondent-Assistant Commissioner is a nullity as it is in violation of principles of natural justice inasmuch as petitioners were not arrayed as parties to that proceeding. He, therefore, contended that the 1st respondent-Deputy Commissioner ought to have quashed the said order and remanded the matter to the Assistant Commissioner for a fresh consideration. He also contended that the Deputy Commissioner was not right in upholding order dated 20/5/2013 (Annexure-R) passed by the 2nd respondent-Assistant Commissioner by dismissing the revision petition filed by petitioners. Hence, it was contended that order dated 28/8/2014 of the Deputy Commissioner (Annexure-T) as well as the order dated 1/8/2012 (Annexure-N) passed by the Assistant Commissioner may be quashed as they are contradictory in nature.

Per contra, learned Senior Counsel along with the instructing counsel appearing for 6th respondent, while supporting the impugned orders contended that the petitioners have no right, title and interest in respect of the lands in question. The predecessors of the petitioners i.e., Sri. Rajanna and Smt. Puttamma had sold 4 1/2 acres of land to various persons and that 6th respondent and other purchasers had right, title and interest in respect of those lands. It is contended that in the proceeding filed by Smt. S.P. Malini, Sri. Rajanna as well as the 6th respondent herein were parties and by order dated 23/7/2012 (Annexure-M1), while canceling the sub-phodies in respect of the lands in question, liberty was reserved to the parties to establish their rights before the appropriate authority and on the basis of relevant documents of title along with revenue records, 6th respondent approached the 2nd respondent-Assistant Commissioner, who rightly passed order dated 1/8/2012. When the petitioners had no connection with that proceeding they were rightly not arrayed as parties in the matter and that the Deputy Commissioner was justified in dismissing the revision petition filed by petitioners in which they had assailed order dated 1/8/2012.

It was also contended that petitioners were not right in assailing order dated 20/5/2013 (Annexure-R) in the absence of 6th respondent and others as that proceeding was initiated pursuant to the mutation orders passed in favour of 6th respondent and others and in the absence of arraying 6th respondent and others as parties in the proceeding initiated under sub-section (2) of Section 136 of the Karnataka Land Revenue Act, 1964, petitioners could not have obtained order dated 20/5/2013 and therefore, the Deputy Commissioner rightly dismissed the revision filed by petitioners who had assailed order at Annexure-R.

During the course of submission, learned Senior Counsel also pointed out that the Division Bench of this Court in W.A. No. 4755-57/2004 by order dated 10/3/2005 (Annexure-R2), held that the rights of parties have to be established before the appropriate Civil Court by seeking appropriate reliefs and while holding so, it dismissed the writ appeals filed by petitioners'' predecessor i.e., Sri. Rajanna and upheld order dated 6/9/2004 passed in W.P. Nos. 28229-31/2004. It was, therefore, contended that the order of Deputy Commissioner at Annexure-T would not call for any interference in these writ petitions.

Learned Addl. Government Advocate appearing for respondent Nos. 1 to 5 contended that in the revenue records, there are certain interpolations and that it is only after verifying the original records, a finding can be given in these matters.

Having heard the learned counsel for respective parties and on perusal of material on record, it is noted that the present controversy stems from order dated 23/7/2012 (Annexure-M1) made in Appeal No. 44/2011-12 by the Technical Assistant and Deputy Director of Land Records in a proceeding filed by Smt. S.P. Malini. As far as that order is concerned, learned counsel on both sides state that they have no grievance with regard to the relief granted to Smt. S.P. Malini in that proceeding. But while doing so, that order also set aside sub-phodies made in respect of Sy. No. 191/1 and reserved liberty to the parties therein to establish their rights before the appropriate authority. It is also noted that in that proceeding, petitioners'' predecessor i.e., Sri.Rajanna and also 6th respondent and several others were arrayed as respondents. On the basis of that order, 6th respondent approached the 2nd respondent-Assistant Commissioner, who passed order dated 1/8/2012. The grievance of petitioners is that before passing the order, the 2nd respondent ought to have issued notices to the petitioners and all others in respect of whom the sub-phodi numbers had been cancelled, by order dated 23/7/2012. Be that as it may, while acting on that order, mutation orders were passed by the Revenue Authorities and Annexures-AA, AA1 and AA2 were issued. Those revenue entries were made pursuant to order dated 1/8/2012. Questioning those revenue entries by filing appeal under sub-section (2) of Section 136 of the Act before the very same Authority i.e., the 2nd respondent-Assistant Commissioner herein, petitioners also did not array 6th respondent and others who are similarly situated and in whose favour the revenue records were made pursuant to order dated 1/8/2012, as parties. Therefore, order dated 20/5/2013 (Annexure-R) was made by the very same authority i.e., the Assistant Commissioner without giving the 6th respondent and other parties similarly situated as 6th respondent, an opportunity of being heard. Both those orders namely Annexures-N and R, passed by the Assistant Commissioner were challenged before the 1st respondent-Deputy Commissioner, 2nd respondent herein and by petitioners and respondent No. 6 herein respectively. While upholding Annexure-N order, the Deputy Commissioner has not taken into consideration the fact as to whether other persons had to be notified in the matter but, while setting aside the order Annexure-R, the Deputy Commissioner, has taken into consideration the fact that 6th respondent and other similarly situated persons were not arrayed as parties before passing that order.

If indeed, 6th respondent and others similarly situated, had to be made parties in the proceedings leading upto the order dated 20/5/2013 (Annexure-R), then question would arise as to whether petitioners also had to be made parties in the proceeding leading upto the order dated 1/8/2012 (Annexure-N). Of course, in this context, learned Senior Counsel instructed by learned counsel for 6th respondent have vehemently contended that it was not necessary for the petitioners to be arrayed as parties before passing of order dated 1/8/2012 (Annexure-N). But the fact remains that order dated 1/8/2012, subsequent mutation entries made on the basis of that order; order dated 20/5/2013 and the impugned order dated 28/8/2014 are all inter-related. It also emerges that while both parties claim that they ought to have been arrayed as respondents in the other proceeding, they have in turn not arrayed other parties in the proceeding initiated by them. Therefore, what emerges is the fact that Annexures-N and R orders have been passed in the absence of contesting respondents. Hence, Annexure-R ought to have been quashed only on the basis of the fact that contesting respondents were not arrayed as parties therein. In these writ petitions, the rights of parties to the subject lands is not a matter for adjudication. All that is being considered is the correctness of the orders passed by the Revenue Authorities subsequent to order dated 23/7/2012 (Annexure-M1). Therefore, while leaving all contentions open on both sides, the impugned orders at Annexures-N and R are quashed and the order dated 28/8/2014 (Annexure-T) is upheld in part.

Parties are relegated to the 2nd respondent-Assistant Commissioner herein for the purpose of considering the claim made by 6th respondent pursuant to order dated Annexure-M1 dated 23/7/2012. As the parties are represented by their respective counsel, they are directed to appear before the 2nd respondent-Assistant Commissioner on 16/3/2015, without insisting on any separate notice from that authority. On that date, 2nd respondent-Assistant Commissioner to implead the petitioners herein as parties to that proceeding and dispose the matter in accordance with law by passing a speaking order thereon.

It is needless to observe that the 3rd respondent-Tahsildar would appear before the 2nd respondent-Assistant Commissioner and place all relevant records before that authority.

In view of the above order, 2nd respondent shall consider the case of parties similarly situated as 6th respondent and pass a fresh speaking order in accordance with law.

As the controversy between the parties has been long pending, the 2nd respondent-Assistant Commissioner to dispose the proceeding in an expeditious manner, within a period of four months from 16/3/2015.

In the result, writ petitions are disposed in the aforesaid terms.

All contentions of both sides are left open to be agitated before the 2nd respondent as well as other higher authorities if the need so arises.