Smt. Narayanamma W/O Late T ... vs State Of Karnataka
2021 Latest Caselaw 6438 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 18TH DAY OF DECEMBER, 2021

                           BEFORE

      THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD

       WRIT PETITION NO.35682 OF 2011 (KLR - RES)

BETWEEN:

1.      Smt.Narayanamma,
        W/o late T.Muniyappa,
        Aged about 71 years,

2.      Sri.Ravi,
        S/o late T.Muniyappa,
        Aged about 40 years,

3.      Smt.Sujatha,
        D/o late T.Muniyappa,
        Aged about 38 years,

4.      Sri.Udaykumar,
        S/o late T.Muniyappa,
        Aged about 36 years,

5.      Smt.Savitha,
        D/o late T.Muniyappa,
        Aged about 34 years,

6.      Sri.Kantharaj,
        S/o late T.Muniyappa,
        Aged about 32 years,

        Petitioner No.1 is the wife of
        T.Muniyappa and
        Petitioner Nos.2 to 6
        Are the children of T.Muniyappa,
                                2



      All are residing at No.2,
      Kolandappa Garden,
      Aane Palya, Adugodi Post,
      Bangalore - 560 030.

7.    Smt.Narayanamma,
      W/o late Krishnappa,
      Aged about 68 years,

8.    Smt. Geetha,
      D/o late Krishnappa,
      Aged about 43 years,

9.    Sri. Ramesh,
      S/o late Krishnappa,
      Aged about 40 years,

      Petitioner No.7 is the wife of Krishnappa
      and petitioner Nos. 8 and 9 are
      children of Krishnappa
      And all are residing at
      Tulakanamma Garden
      Vannarpet, Viveknagar Post,
      Bangalore - 560 047.

10.   Smt. Jayalakshmi
      W/o late Venugopal
      Aged about years,

11.   Smt. Krishnamma
      D/o Muniyellappa,
      Aged about 53 years,

12.   Sri. M. Paparaju
      S/o late Muniyellappa,
      Aged about 48 years,

13.   Smt. Kamala,
      D/o Muniyellappa,
      Aged about 44 years,
                                 3



14.     Smt. Hemavathi
        D/o Muniyellappa,
        Aged about 42 years,

        Petitioner No.10 is the daughter in law of
        Late Muniyellappa and
        petitioner Nos.11 to 14 are children of
        late Muniyellappa and all are residing at
        No.13/10, Yarrappa Garden,
        Austin Town, Viveknagar Post,
        Bangalore - 47.

15.     Sri Jayaram,
        S/o Muniyamma,
        Aged about 57 years,

16.     Sri Krishnaiah,
        S/o Muniyamma,
        Aged about 43 years,

        Petitioner Nos.15 and 16 are residing at
        No.11/8, S.R. Garden, Vannarpet,
        Viveknagar Post,
        Bangalore - 47.
                                                     ... Petitioners

(By Sri. Veeranna G Tigadi, Advocate for
    Sri.G.Srinivas, Advocate)


AND :

1.      State of Karnataka,
        Represented by its Secretary,
        Department of Revenue,
        M.S. Building, Vidhana Soudha,
        Bangalore - 01.

2.      The Special Deputy Commissioner,
        Bangalore District, Bangalore.
                              4



3.   The Assistant Commissioner,
     Bangalore South Sub - Division,
     Bangalore.

4.   The Thasildhar,
     Anekal Taluk, Anekal,
     Bangalore District.

5.   Sri.Mohammed Meeran Saheb,
     Aged about 71 years,
     S/o Sri.Ummar Sab,
     R/at No.854, M.M.House,
     5th Cross, I stage, Indiranagar,
     Bangalore - 03.
     Represented by G.P.A. Holder
     Sri. Manegar Mohammed Jafri,
     Aged about 62 years,
     S/o Sri.Ummar Sab,
     Residing at Plot No.703,
     7th Floor, Presidency Enclave,
     Diamond Block,
     Near Kolas Hospital,
     Bendoorwell,
     Mangalore - 575 001.
                                           ... Respondents

(By Smt.Jyothi Bhat, HCGP for R1 to R4;
    Sri. G.S.Bhat, Advocate and
    Sri.P.T.Muralidhar, Advocate for R5)


     This Writ Petition is filed under Article 226 of the
Constitution of India praying to quash the orders dated
14.07.2011 in Revision Petition 75/2011-12 passed by the
2nd respondent Deputy Commissioner vide Annexure - T,
with respect to the land bearing Sy.No.19, of Gollahalli
                                5



Village, Attibele Hobli, Anekal Taluk, in the interest of justice
and equity.

      This Writ Petition coming on for Hearing, this day, the

Court made the following:

                            ORDER

The petitioners, who assert title to an extent of

about 15 acres in Sy.No.19 of Gollahalli Village, Attibele

Hobli, Anekal Taluk (for short, 'the subject property'),

have impugned the second respondent's Order dated

14.07.2011 in Revision Petition No.75/2011-12. The

second respondent, by this impugned order, has set

aside the third respondent's Order dated 18.04.2011 in

LND.RA.(A)/6/2002-03.

2. The facts and circumstances leading to the

present challenge must be referred to before the rival

submissions are considered. The petitioners'

predecessors-in-interest enjoyed the benefit of revenue

entries for the subject property for over four decades

and these revenue entries for the subject property are

purportedly made in their names because of an asserted

grant of occupancy rights in their favour in the

proceedings in Case Nos.19/58-59 and 24/58-59 under

the provisions of the Mysore (Personal and

Miscellaneous) Inams Abolition Act, 1954 (for short,

"Inams Abolition Act" ).

3. The petitioners' title to the subject property

has come under a cloud with the third respondent

initiating proceedings under Section 136(3) of the

Karnataka Land Revenue Act, 1964 (for short, "the

Revenue Act") and canceling the revenue entries in their

favour opining that the revenue entries are based on

forged documents. The third respondent has initiated

such proceedings against the petitioners' predecessors-

in-interest though they were dead and as such, the

petitioners have challenged the third respondent's Order

dated 26.04.2003 (28.04.2013) before the second

respondent in Revision Petitions No.91-94/2003-04

under Section 136(3) of the Revenue Act but

unsuccessfully inasmuch as the second respondent has

rejected these Revision Petitions by his Order dated

26.04.2004.

4. However, with the second respondent's

Order dated 26.04.2004 [as also the third respondent's

order dated 26.04.2003] being impugned before this

Court in W.P. No.37661/2004, this Court has quashed

these orders and remitted the proceedings to the third

respondent for reconsideration. Consequently, the third

respondent has reinstated the proceedings in

No. LND.RA(A)6/2002-03 and has heard the petitioners,

and as part of such hearing, the third respondent has

called upon the jurisdictional Tahsildar (the fourth

respondent) to file a report. The fourth respondent has

filed a Report dated 26.06.2009 after conducting

mahazar affirming that the petitioners are in possession

of the respective portions. The third respondent on the

basis of such Report dated 26.06.2009, by his Order

dated 18.04.2011, has directed restoration of the

revenue entries for the subject property in favour of the

petitioners.

5. The fourth respondent, despite his Report

dated 26.06.2009, has called in question the third

respondent's Order under Section 136(3) of the Revenue

Act with the second respondent in Revision Petition

No.75/2011-12. The second respondent by the

impugned order has quashed the Assistant

Commissioner's Order dated 18.04.2011 directing the

fourth respondent to enter the entries in Column No.9

of the concerned RTC in favour of the State and to take

necessary action to evict the petitioners. The second

respondent has also directed initiation of disciplinary

action against those concerned observing that there is

fabrication / tampering of records.

6. This Court at this stage must record certain

material undisputed facts that are necessary for final

disposal of the petition, and these are as mentioned

hereafter:

A] Revenue Entries for the Subject Property:

The petitioners can rely upon the revenue entries

in the RTC for the subject property in favour of

their predecessors-in-title for over decades until

the third respondent, by his first Order dated

26.04.2003, quashed such revenue entries.

B]    O.S. No.812/2009:

      During     the    pendency          of    the   proceedings

      mentioned        above,       the        petitioners   have

commenced suit in O.S. No.812/2009 against the

State and others for declaration of title to the

subject property and for consequential relief of

permanent injunction. The State is represented

by its counsel and written statement is also filed

but no evidence is let in on its behalf. The

petitioners' suit is decreed by Judgment dated

02.09.2013. The State has not called this

Judgment in question, but in the statement of

objections it is contended that action has been

taken to file necessary appeal to impugn the

Judgment and Decree dated 02.09.2013. The

learned High Court Government Pleader, when

queried, is unable to answer whether such appeal

is indeed filed.

C] Entries in Form No.VIII1 in favour of the Petitioners:

It is further undisputed that the third respondent

while concluding in favour of the petitioners by

the Order dated 18.04.2011, on reinstatement of

the proceedings consequent to this Court's Order

in W.P. No.37661/2004 dated 28.09.2006, has

A register envisaged under Inams Abolition Act

observed that the entries in the relevant

register/Form No.VIII is made in favour of the

petitioners' predecessors-in-interest because of

the conferment of occupancy rights under the

Inams Abolition Act and the entry in favour of the

State i.e., the entry as "kharab" in revenue

records, is made only after the cancellation of the

revenue entries that have prevailed for over 30 to

45 years.

The third respondent - Assistant Commissioner's

observations in this regard read as under:

"Apart from the above, the Tahsildar, Anekal Taluk, Anekal has also specifically reported that in Form No.VIII the entires in respect of the land in S.No.19 of Gollahalli Village, Attibele Hobli, Anekal Taluk have been reflected in the names of Sriyuts: T.Muniyappa - 3A.34gs., Krishnappa -

3A.21gs., Muniyellappa -4A.00 and Smt.Muniyamma -4A.00. At this stage, it would be relevant to mention that it is only on account of

the fact that the 'occupancy right' was conferred in favour of the said persons under the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954, the entires in Form VIII have been made.

But, the same have been cancelled subsequently with an observation of illegal writing. The Tahsildar, Anekal Taluk, Anekal has specifically reported that the entires in the Pahanis/RTCs etc., in the names of the said persons are continued till 1986-87 for about 27 years and it is only thereafter it is entered as 'Kharab'.

Thus, in the instant case according to the report of the Tahsildar, Anekal Taluk, Anekal the entries in the revenue records which were reflected in the names of the ancestors of the Respondents herein were continued since 1960- 61 till 1986-87 and it is at one stage they have been cancelled as illegal writing. However, according to the report of the Tahsildar, Anekal Taluk, Anekal after spot inspection, even now the legal representatives of Late Muniyappa (3A.34gs.,), Krishnappa (3A.21gs.,), Muniyellappa (4A.00) and Muniyamma (4A.00) are in possession and enjoyment of the land in S.No.19 of Gollahalli village, Attibele Hobli, Anekal Taluk."

7. The second respondent, who is called upon

to examine the merits of these findings with the fourth

respondent preferring Revision Petition in No.75/2011-

12 against the third respondent's Order dated

18.04.2011, has relied upon [a] the fourth respondent -

Tahsildar's Report dated 09.06.2011, [b] the third

respondent's previous Order dated 26.04.2003 and

[c] the undisputed fact that the petitioners do not have

the custody of the original documents to substantiate

the grant of occupancy rights.

8. Sri Veeranna G. Tigadi, the learned counsel

who appears for the petitioners, submits that the

Deputy Commissioner could not have relied upon the

fourth respondent - Tahsildar's report dated 09.06.2011

for multiple reasons. He points out that the Tahsildar's

report dated 09.06.2011 is not consequent to any order

by the third respondent in the present proceedings; he

contends that the petitioners did not have notice from

the Tahsildar before he filed his report dated

09.06.2011; the Tahsildar in opining that the

documents are forged/ fabricated has relied upon the

third respondent - Assistant Commissioner's Order

dated 26.04.2003, which is quashed by this Court in

W.P. No.37661/2004.

9. The learned counsel next submits that the

petitioners have the advantage of a decree for

declaration of title in O.S. No.812/2009 which has

remained unquestioned and notwithstanding the fact

that the revenue entries have prevailed over three to

four decades and the decree of declaration of title, the

second respondent has found that the documents in

favour of the petitioners are forged / fabricated. He

draws support from this decree of declaration of title

and contends that in view of this decree, the second

respondent could not have ordered for an enquiry as to

whether the documents which are in favour of the

petitioners are fabricated or forged. He relies upon a

decision of this Court in W.P. No.13426/2008 decided

on 27.10.2009 and contends that this Court has

reiterated that the Judgment and Decree of the civil

Court, when it is not impugned in a manner known to

law, cannot be ignored by the authorities in the

proceeding under Chapter 11 of the Revenue Act.

10. The learned counsel also emphasizes that

the Special Deputy Commissioner in proceedings under

Section 136(3) of the Revenue Act could not have

embarked upon a finding that the documents are

forged/fabricated and that too after lapse of three to

four decades when the settled law is that appropriate

action must be initiated at the earliest and within a

reasonable time. He relies upon a decision of the

Division Bench of this Court in Writ Appeal

Nos.804/2018 and 806/2018 decided on 30.05.2018.

11. The learned High Court Government Pleader

makes a valiant effort to support the second

respondent's impugned order arguing that in the

absence of records by the petitioners to demonstrate

grant of occupancy rights under the Inams Abolition

Act, the second respondent is justified in his stand. As

regards the petitioners reliance upon the Judgment and

Decree of declaration of title in O.S. No.812/2009, the

learned Government Pleader relies upon the decision of

the Hon'ble Supreme Court in R. Hanumaih and

another vs. Secretary to Government of Karnataka,

Revenue Department and others, reported in (2010) 5

SCC 203 and she invites the attention of this Court to

paragraph Nos. 20 and 21 which read as under:

"20. Many civil courts deal with suits for declaration of title and injunction against government, in a casual manner, ignoring or overlooking the special features relating to government properties. Instances of such suits against government being routinely decreed,

either ex parte or for want of proper contest, merely acting upon the oral assertions of plaintiffs or stray revenue entries are common.

Whether the government contests the suit or not, before a suit for declaration of title against a government is decreed, the plaintiff should establish, either his title by producing the title deeds which satisfactorily trace title for a minimum period of thirty years prior to the date of the suit (except where title is claimed with reference to a grant or transfer by the government or a statutory development authority), or by establishing adverse possession for a period of more than thirty years. In such suits, courts cannot, ignoring the presumptions available in favour of the government, grant declaratory or injunctive decrees against the government by relying upon one of the principles underlying pleadings that plaint averments which are not denied or traversed are deemed to have been accepted or admitted.

21. A court should necessarily seek an answer to the following question, before it grants a decree declaring title against the government : whether the plaintiff has produced title deeds tracing the title for a period of more than thirty years; or

whether the plaintiff has established his adverse possession to the knowledge of the government for a period of more than thirty years, so as to convert his possession into title. Incidental to that question, the court should also find out whether the plaintiff is recorded to be the owner or holder or occupant of the property in the revenue records or municipal records, for more than thirty years, and what is the nature of possession claimed by the plaintiff, if he is in possession - authorized or unauthorized; permissive; casual and occasional; furtive and clandestine; open, continuous and hostile; deemed or implied (following a title). "

12. The learned High Court Government Pleader

argues that only those revenue entries in pahani [RTC]

which are based on proper documents such as title

deeds and which are made upon actual verification of

the physical possession of the subject property would

prevail and not the revenue records which are entered

otherwise. The revenue entries in favour of the

petitioners' predecessor-in-title are not based on any

title deed; the petitioners have not produced the original

of the proceedings in case Nos.19/58-59 and 24/58-59

and there are no records to establish the initiation of

these proceedings or the culmination thereof in favour

of the petitioners' predecessors-in-title.

13. This Court must observe that the second

respondent could not have referred to the third

respondent's earlier Order dated 26.04.2003 with the

same having been quashed by this Court in

W.P. No.37661/2004 on the ground that the finding

therein is against dead persons and without notice to

the petitioners' who are their successors-in-interest. If

the second respondent could not have relied upon the

third respondent' order dated 26.04.2003, the opinion

that the petitioners/their predecessors-in-interest have

fabricated documents is pivoted on the fourth

respondent - Tahsildar's Report dated 09.06.2011 and

the lack of the original of the proceedings in case

Nos.19/58-59 and 24/58-59.

14. The authorities have been agitating against

revenue entries for the subject property in favour of the

petitioners/predecessors-in-title asserting that these

entries, which have stood for over three to four decades,

are based on fabricated records and the original records

of case Nos.19/58-59 and 24/58-59 are not available.

They contend that the petitioners' predecessors-in-

interest have not been granted occupancy rights to the

subject property in the proceedings in case Nos.19/58-

59 and 24/58-59 under the provisions of the Inams

Abolition Act by the then Special Deputy Commissioner.

15. The second respondent [the Assistant

Commissioner] in his Order dated 18.04.2011 at the

first instance is categorical that the entries have been

made because occupancy rights are conferred, and the

second respondent discounts this finding relying upon

Tahsildar's Report which only refers to the third

respondent's Order which is quashed by this Court on

28.09.2006. However, neither the second and third

respondents, even after this Court's intervention in

W.P. Nos.37661/2004, have made any effort to verify

the records and bring on record their observations in

this regard after scrutiny of the relevant records.

16. It is also true that the petitioners have the

advantage of a decree for declaration of title and

permanent injunction, and their possession is also

confirmed by the Tahsildar in his Report to the third

respondent after the proceedings are reinstated to the

third respondent consequent to the Orders of this

Court. But then again, this suit in O.S. No.812/2009 is

commenced after the initiation of the present

proceedings and the State, despite continuing the

proceedings, has not participated in the suit. The

authorities have not called in question the Judgment

and decree in this suit in O.S. No.812/2009. The

question that prevails is whether there is any substance

in its allegation that the revenue entries based on the

proceedings in case Nos.19/58-59 and 24/58-59 are

fraudulent, and the second respondent must examine

all records including the extracts which are placed on

record before this Court for the first time as part of the

statement of objections.

17. It was therefore incumbent upon the

authorities [the second and third respondents who can

call for records from the custodians] to scrutiny all the

relevant records to vindicate the allegations and to

ensure that there is no needless doubt about the title to

the subject property notwithstanding the revenue

entries in favour of the petitioners' predecessor-in-title.

This Court must observe that for the first time, as part

of the statement of objections, some extracts are

produced before this Court.

18. In the totality of the circumstances of the

case, and the decisions relied upon by the petitioners as

also the settled law that fraud unravels everything, this

Court is of the considered view that the second

respondent's impugned order must be quashed and the

authorities directed to restore the revenue entries for

subject property in favour of the petitioners with the

proceedings before the second respondent restored for

scrutiny of all the records with due opportunity to the

petitioners for verification of the allegations of fraud and

fabrication. In view of the fact that this controversy has

prevailed over almost two decades, the second

respondent must also be called upon to dispose of the

proceedings in a time bound manner strictly in

accordance with law. Hence the following:

ORDER

[a] The petition is allowed in part, and the

second respondent's impugned order dated 14.07.2011

is quashed and the proceedings in Revision Petition

No.75/2011-12 is reinstated for reconsideration in a

time bound manner.

[c] The petitioners shall appear before the

second respondent without further notice on

17.01.2022. The second respondent shall dispose off

the proceedings within an outer limit of five [5] months.

[d] The revenue entries for subject property

shall be restored in favour of the petitioners and those

entries subject to appropriate orders in the necessary

proceedings.

Sd/-

JUDGE

sac**