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Judgment
Mr. Budihal R.B., J. - These petitions are filed seeking to quash the order dated 2-7-2015 passed by the Court of Principal Sessions Judge at Kolar in M.A. No. 17 of 2011 produced as per Annexure-F and also to quash the order dated 26-8-2010 passed by respondent No. 1 in INA.CR. No. 325/1978-79 produced as per Annexure-D.
The brief facts leading to filing of these petitions are, the schedule lands bearing Sy. Nos. 16,18,19, 54, 65, 71 and 161 of Malur Taluk, Lakkur Hobli, Alambadi Village are the thoti inam lands. Dodda Madduramma and Chikka Madduramma claiming through one Thoti Muniga, the erstwhile village office holder had made a claim for regrant of schedule lands before respondent 1-Tahsildar, Malur Taluk, Kolar District in INA CR. No. 325/78-79. After holding due enquiry, respondent No. 1 was pleased to allow the claim and had regranted the schedule lands equally to the said Dodda Madduramma and Chikka Madduramma by order dated 13-5-1985. Consequently, mutation was also effected in their names in MR No. 62 of 1986-87. The order of 13-5-1985 was challenged by way of an appeal before the Principal District Judge, Kolar by one Muniyamma claiming to be the only daughter of Thimmarayappa, S/o. Thoti Muniga in M.A. No. 35 of 1987. The said appeal was allowed and matter was remanded to respondent No. 1 by order dated 26-2-1990 with a direction to respondent No. 1 to consider the matter afresh and in accordance with law, after affording opportunity to all the parties. After remand, respondent No. 1 had allowed the claim of the said Muniyamma and rejected the claim of petitioners herein regranting the schedule lands to respondents 2 and 3 and to respondents 4 and 5 relying upon alleged Will made by the said Dodda Madduramma in favour of respondents 2 and 3 and also an alleged Will said to have been made by Muniyamma who claimed to be the sole daughter of Thimmarayappa in favour of respondents 4 and 5. Aggrieved by the said order of respondent 1, petitioners herein had preferred an appeal before the Principal District judge in M.A. No. 17 of 2011 challenging the order of respondent No. 1 dated 18-3-2010. The learned District Judge by his order dated 13-7-2011 had dismissed the appeal of the petitioners. The said order of the learned District Judge dismissing the appeal of the petitioners was challenged by way of writ petition before this Court in W.P. No. 35175 of 2011 and other connected matters wherein this Court was pleased to allow the writ petitions vide its order dated 18-4-2013 setting aside the order of District Judge in M.A. No. 17 of 2011 and proceeding remitted for fresh consideration provided the petitioners filed an application seeking leave of the Court to maintain the appeal. After remand, the learned District Judge vide order dated 2-7-2015 has dismissed the application of the petitioners seeking leave to prefer the appeal filed under Section 96 of the Code of Civil Procedure, 1908 read with Section 3 of the Karnataka Village Offices Abolition Act, 1961 so also the appeal holding that petitioners do not have existing rights.
Heard the arguments of learned Counsel appearing for petitioners and also the Counsel for the respondents 2 to 5.
Learned Counsel for petitioners during the course of his arguments submitted that though the relationship of the present petitioners is that they are the children of Chikka Madduramma who is the wife of fourth son of the propositus Muniga, their claim had been wrongly rejected. The learned District Judge has not at all perused the materials and also the legal aspect involved in the case and the scope of Sections 3 and 5 of the Karnataka Village Offices Abolition Act, 1961 and wrongly proceeded to reject the application filed seeking leave as well as the appeal preferred by the petitioners herein. He has submitted that the regrant order passed by respondent No. 1 in favour of Dodda Madduramma and Chikka Madduramma by order dated 13-5-1985 was set aside by the order of the Principal District Judge, Kolar in M.A. No. 35 of 1987 and the matter was remanded back with a direction to respondent 1-Tahsildar to consider the matter afresh and in accordance with law. Hence, it is his submission that when the regrant order had been passed again in favour of respondents 2 to 5 by the order of the learned District Judge in M.A. No. 17 of 2011 only based on the two Wills alleged to have been executed by Dodda Madduramma in favour of respondents 2 and 3 and Muniyamma, the daughter of Thimmarayappa in favour of respondents 4 and 5 no regrant order was in existence. It is his contention that as on the date of execution of the alleged Wills the lands were not regranted in favour of the executants of the said Will. Hence, there is no basis and source of title to the executants of the said Will and therefore, the legatees under the Will will not get any right in respect of the schedule lands. Counsel further submitted that in the writ proceedings when the writ was allowed and matter was again remanded to the District Judge, giving the liberty'' to the petitioners herein that they can file the application seeking leave of the Court to maintain their appeal, same should have been considered on merits. He has submitted that no enquiry was conducted by respondent 1-Tahsildar as contemplated under Sections 3 and 5 of the Karnataka Village Offices Abolition Act and only based on the Wills, respondent No. 1 has regranted the lands in favour of respondents 2 to 5, which had been wrongly confirmed by the Appellate Court by rejecting the leave application to prefer an appeal, so also, consequently, rejecting the appeal. Learned Counsel has also submitted that it is held by the learned District Judge in M.A. No. 17 of 2011 that Civil suit is also pending before the Civil Court and the petitioners herein can agitate their rights in the civil suit and that matter relating to regrant of lands cannot be agitated in the civil suit and only the Revenue Courts are having jurisdiction to consider this aspect of regrant and this legal aspect had been completely ignored by the Court. Hence, he has submitted that order of regrant of lands in favour of respondents 2 to 5 had been passed without holding enquiry with regard to alleged Wills, therefore, it is submitted to allow the petitions as prayed for. In support of his contention, learned Counsel for the petitioners has relied upon the following decisions:
(1) In the case of Malleshappa Yeshvantahappa Patil v. Kallappa Vithoba Patil and others, 1970 (2) Mys. L.J. 350 (DB);
(2) In the case of Rajaveerappa v. District Judge, ILR 1985 Kar. 2923;
(3) Kariyappa v. Assistant Commissioner, Shimoga, 1974 (1) Kar. L.J. Sh. N. 147.
Per contra, learned Counsel for respondents 2 to 5 during the course of his arguments submitted that the order passed by respondent 1-Tahsildar which is confirmed by the District Judge in M.A. No. 17 of 2011 is legal and valid and the writ petitions preferred has no merit at all. He has submitted that though Chikka Madduramma was the mother of Muniyamma and W/o. Thimmarayappa after the demise of her husband Thimmarayappa, Chikka Madduramma married another person and went out of the family, therefore, she was not entitled for the regrant of the schedule lands. This aspect had been considered by respondent 1-Tahsildar, so also, the leaned District Judge in M.A. No. 17 of 2011 and held that Chikka Madduramma has no right to get the regrant in her favour. Learned Counsel has submitted that only two persons are entitled for regrant of lands from the family of propositus Muniga, the village office holder, who are Dodda Madduramma, wife of first son of Muniga by name Thotipapa and another person Muniyamma who is the daughter of fourth son of Muniga by name Thimmarayappa and his wife Chikka Madduramma. Learned Counsel has submitted that as Doddamadduramma executed the Will in favour of respondents 2 and 3 and Muniyamma executed Will in favour of respondents 4 and 5, respondent 1-Tahsildar has rightly held that they are entitled for regrant order and accordingly, re-grant order was passed in favour of Dodda Madduramma and Muniyamma and under the said Wills, respondents 2 to 5 are entitled for the lands. Hence, he has submitted that there is no illegality committed nor there is any perverse or capricious view taken in the matter. Hence, submitted to dismiss the writ petitions.
I have perused the grounds urged in the writ petitions; impugned order passed by respondent 1-Tahsildar; order dated 26-8-2010 passed by respondent 1-Tahsildar; order passed by Principal Sessions Judge at Kolar, dated 2-7-2015 and also the order passed in W.P. No. 35175 of 2011 (KVOA) and other connected matters by this Court.
In the order passed by respondent 1-Tahsildar dated 26-8-2010 it is observed that Muniyamma has stated in her statement that Thotipapa and Thimmarayappa are the brothers living in a joint family. Thotipapa had three children, Muniyamma, Thimmakka and Venkatamma. All were married and residing in their husband''s house. Thimmarayappa, the brother of Thotipapa was having only daughter i.e., Muniyamma. The seven survey numbers were in possession and enjoyment of Thotipapa and Thimmarayappa, both are expired. Therefore, it is observed by respondent 1-Tahsildar that Chikka Madduramma after the death of Thimmarayappa left the village and married one Chinnodu and with the said second marriage petitioners are claiming their rights in the said property, as such, petitioners are not having any relationship or rights with regard to the said property and they are not entitled to any rights in the property. When the said order had been challenged before the District Judge, Kolar, the learned District Judge also made similar observations and ultimately, rejected the appeal and he has also observed in the order that as the civil suit in O.S. No. 46 of 2009 seeking declaration over the suit schedule property is already pending, parties can get their rights decided in said suit.
The matter under consideration is with regard to regrant of suit schedule lands under the provisions of the Karnataka Village Offices Abolition Act. The relevant provisions applicable to the case on hand are Sections 3 and 5 of the said Act, which reads as under:
"3. Powers of Deputy Commissioner to decide certain questions and appeals.-(1) If any question arises.-
(a) whether any land was granted or continued in respect of or annexed to a village office by the State; or
(b) whether any person is a holder of a village office; or
(c) whether any person is an authorised holder; or
(d) whether any person is an unauthorised holder,
the Deputy Commissioner shall, after giving the party affected an opportunity to be heard and after holding an enquiry in the prescribed manner decide the question.
(2) Any person aggrieved by such decision may file an appeal to the District Judge of the District within ninety days of such decision and the decision of the District Judge on such appeal shall be final.
The provisions of Sections 4, 5, 12 and 14 of the Limitation Act, 1963 (Central Act 36 of 1963) shall be applicable to such appeal.
Regrant of land resumed under Section 4 to the holder of the village office.-(1) A land resumed under clause (3) of Section 4 shall, in cases not falling under Sections 6 and 7, be granted to the person who was the holder of the village office immediately prior to the appointed date (hereinafter referred to as the holder) on payment, by or on behalf of such holder to the State Government, of the occupancy price equal to three times in the case of holders of inferior village offices and six times in the case of holders of other village offices, the amount of the full assessment of such land within the prescribed period and in the prescribed manner and the holder shall be deemed to be an occupant or holder of a ryotwari patta within the meaning of the Code in respect of such land and shall primarily be liable to pay land revenue to the State Government from the appointed date in accordance with the provisions of the Code and the rules and orders made thereunder; and all the provisions of the Code and the rules and orders relating to unalienated land or ryotwari land shall, subject to the provisions of this Act, apply to the said land:
Provided that in respect of land which was not assigned under an existing law relating to the village office as the remuneration of the village office, an occupancy price equal to the amount of the full assessment of such land in the case of holders of inferior village offices and three times such amount in the case of holders of other village offices, shall be paid by or on behalf of the holder for its regrant.
(2) If, there is a failure to pay the occupancy price under sub-section (1) within the prescribed period and in the prescribed manner, the holder shall be deemed to be unauthorisedly occupying the land and shall be liable to be summarily evicted therefrom by the Deputy Commissioner, in accordance with the provisions of the Code.
(3) The occupancy or the ryotwari patta of the land, as the case may be, regranted under sub-section (1) shall not be transferable otherwise than by partition among members of Hindu Joint Family for a period of fifteen years from the date of regrant made on or after the date of commencement of the Karnataka Village Offices Abolition (Amendment) Act, 2003:
Provided that such occupancy or the ryotwari patta in respect of land granted to the holder of a village office in an enfranchised inam shall be transferable with the previous sanction of the Deputy Commissioner which shall be granted on payment of an amount equal to fifteen times the amount of full assessment of the land.
(4) Any transfer of land in contravention of sub-section (3) shall be null and void and the land so transferred shall, as penalty, be forfeited to and vest in the State Government free from all encumbrances and any person in possession thereof shall be summarily evicted therefrom by the Deputy Commissioner and the land shall be disposed of in accordance with the law applicable to the disposal of unoccupied un-alienated lands:
Provided that if the person who has transferred the land in contravention of sub-section (3) is not alive, while disposing of such land preference shall be given to the heirs of such person.
Explanation.-For removal of doubts it is hereby declared that in sub-section (3), and in this sub-section transfer includes creation of a lease.
(5) Nothing in sub-section (3) shall apply to transfer in favour of the State Government, a Co-operative Society and a bank as security for loans granted for improvements of such land or for raising crops on such land or for buying cattle or agricultural implements for the cultivation of such land."
In this connection, I have perused reported in Kariyappa''s case on page No. 41, which reads as under:
"Mysore Village Offices Abolition Act, 1961, Sections 3 and 5 -Regrant - Relevant considerations - Enquiry:
It is the duty of the regranting authority to enquire into the case only from the point of view of finding out as to who was the authorised holder on the appointed date (1-2-1963). In this view, sales made in 1968-69 cannot be taken into account in determining as to who is the authorised holder on the appointed date.
Under Section 3 it is the duty of the authority to hold an inquiry after affording opportunity to all the parties."
In the decision in Malleshappa Yeshvantahappa Patil''s case, at paragraphs 30 and 31 it is held as under:
"30. It is clear from the proviso to clause (g) of Section 2(1) which contains the definition of ''holder of a village office'', that term includes not only an individual but also the whole body of persons having interest in a village office where such village office had been entered in a register or record relating to such village office as being held by such body. The word ''person'' in clause (b) of Section 3(1) includes persons. Hence, when a question arises, as it has arisen in the present case, whether an individual is exclusively the holder of the village office, or whether the entire joint family of which he is a member, is the holder of the village office, we think such question falls within the ambit of clause (b) of Section 3(1).
All that sub-rule (1) of Rule 3 states is that any person interested in a land that had been annexed to the village office and desiring a decision on any question referred to in Section 3, may make an application to the Deputy Commissioner setting out the particulars contained in sub-rule (2). While considering the question in whose favour a land should be regranted under Section 5 of the Act, if a question arises which of such applicants is or are holder or holders of the village office, it cannot be said that such question does not fall within the ambit of Section 3(1)(b), merely because those applicants had not made an application or applications in the manner provided in Rule 3."
In the decision in Rajaveerappa''s case, the relevant paragraphs 5 and 6 of the said decision reads as under:
"5. After going through the above paragraph 7, I do not think that the impugned order can be maintained. Since the details of the documents are not mentioned, the impression one gets is that the Appellate Authority has drawn its inference, by going through the order of the Tahsildar and not with reference to documents or evidence in the case. The jurisdiction to be exercised is an appellate jurisdiction; wherein questions of facts and law are to be gone into; particularly under the Karnataka Village Offices Abolition Act, the Appellate Jurisdiction over the Revenue Authorities is given to Court. It becomes all the more necessary for the District Judge to scrutinise the evidence and deal with facts of the case, as is done in an appeal under Section 96 of CPC. When the appellate jurisdiction is entrusted to a preexisting Judicial Authority - highest in the District as against the orders of the Deputy Commissioner the highest Revenue Authority in the district, the intention is that the order should pass through the test of ''judgment and judicial adjudication. The appeal is provided on four important aspects of the matter as seen in clauses (a) to (d) of sub-section (1) of Section 3 of the Act. Dealing the appeal in a casual and cursory way defeats the provision for which appeal is provided to a highest Judicial Authority in the District; further, the order passed in appeal is final. It would be useful to bear in mind the following observations in De Smith''s judicial review of Administrative Action at page 128:
"It would seem reasonable working hypothesis to assume that when a Court has jurisdiction to review the decisions of Administrative Tribunal, on questions of law, its intervention should extend to these matters upon which its decisions are likely to be better than those of the Tribunal under review. The principal fortification for any review at all is that the second opinion is likely to be better than the first."
The provisions of Order 41 of CPC govern the appeals under the Karnataka Village Offices Abolition Act. There is nothing in the said Act and Rules which provides for any other procedure to deal with the appeal, before the District Judge. I am clearly of the opinion that the impugned judgment does not answer the requirements in Order 41 of CPC."
Looking to the factual aspect in this matter, admittedly, respondents 2 to 5 relied upon the Wills executed by Dodda Madduramma and Muniyamma. The important factual aspect is that on the day when the Wills are said to have been executed by Dodda Madduramma and Muniyamma in favour of respondents 2 to 5, there was no regrant order. The order of respondent 1-Tahsildar clearly shows that even after the remand of the matter in the order passed by this Court in the writ petitions referred to above, no enquiry had been conducted even with regard to the execution of Wills and also no opportunity is given to the petitioners to submit their say in the matter. The observations made by the learned District Judge in M.A. No. 17 of 2011 is that as civil suit is pending, petitioners can get their rights decided in the said civil suit itself. The said observation is not sufficient to reject the claim of the petitioners herein without holding an enquiry on the execution of Wills and in respect of regrant of the lands as contemplated under the provisions of Sections 3 and 5 of the Karnataka Village Offices Abolition Act, 1961. In view of the same, I am of the opinion that petitioners have made out their case that the order passed by respondent 1-Tahsildar, so also, the order passed by the learned District Judge in M.A. No. 17 of 2011 are not in accordance with the provisions of the Karnataka Village Offices Abolition Act and hence, they are not sustainable in law.
Accordingly, writ petitions are allowed. The orders passed by respondent 1, dated 26-8-2010 in INA.CK. No. 325/1978-79, so also, the order passed by the learned District Judge, Kolar, dated 2-7-2015 in M.A. No. 17 of 2011 are hereby set aside. Matter is remanded to the respondent 1-Tahsildar to hold an enquiry, after giving opportunity to both the parties and then decide the matter in accordance with law.