A N Channabasappa vs M P Ramachandra
2021 Latest Caselaw 7037 Kant

                        1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

  DATED THIS THE 22ND DAY OF DECEMBER, 2021

                     BEFORE

    THE HON'BLE MR. JUSTICE V. SRISHANANDA

 CRIMINAL REVISION PETITION NO.1292/2011


BETWEEN

1 . A N CHANNABASAPPA
    S/O ADIKE NANJAPPA SHETTY
    AGED ABOUT 80 YEARS,

2 . A C SHIVAPRASAD
    S/O A N CHANNABASAPPA,
    AGED ABOUT 48 YEARS,

3 . A C RENUKAPRASAD
    S/O A N CHANNNABASAPPA
    AGED ABOUT 40 YEARS,

   PETITIONERS NO.1 TO 3 ARE
   RESIDING AT
   TEMPLE STREET,
   SOMWARPET,
   KODAGU - 571236
                                     ...PETITIONERS
(BY SRI PUNDIKAI ISHWARA BHAT, ADVOCATE FOR
PETITIONER NO.2;
PETITIONER NO.1 AND 3 ARE DEAD AS PER POLICE
REPORT)
                                2


AND

1 . M P RAMACHANDRA
    S/O PUTTARAMASHETTY
    AGED ABOUT 55 YEARS,
    R/O SOMWARPET
    KODAGU 571 236

2 . M P PUTTAMMA
    S/O PUTTARAMASHETTY,
    AGED 60 YEARS,
    R/O SOMWARPET
    KODAGU -571 326

3 . THE TALUK EXECUTICVE
    MAGISTRATE AND TAHASILDAR
    SOMWARPET TALUK
    KODAGU -571326
                                    ...RESPONDENTS
(BY SRI NATARAJ BALLAL, ADVOCATE FOR R1 AND R2;
SRI V.S.VINAYAKA, HCGP FOR R3)

      THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C
PRAYING   TO    SET    ASIDE       THE    ORDER   DATED:9.6.11
PASSED BY THE AD-HOC DIST., JUDGE AND P.O., FTC,
KODAGU, MADIKERI IN CRL.RP.NO.24/03 AND RESTORE
THE   ORDER    OF     THE   3RD    RESPONDENT      PASSED    IN
MAG/CRPC/343/83-84.


      THIS CRIMINAL REVISION PETITION COMING ON
FOR   HEARING    THIS       DAY,    THE    COURT   MADE     THE
FOLLOWING:-
                              3




                          ORDER

Heard Sri.Pundikai Ishwara Bhat, learned counsel for

Revision Petitioner No.2, Sri Nataraj Ballal, learned counsel

for respondent Nos.1 and 2 and Sri V.S.Vinayaka, learned

High Court Government Pleader for respondent No.3 and

perused the records.

2. The present Revision Petition is filed

challenging the order passed by the learned Fast Track

Judge, Kodagu, Madikeri in Crl.R.P.No.24/2006, whereby

the learned Judge has set aside the order passed by the

Tahsildar dated 18.12.2002 and remitted the matter to the

Tahsildar for fresh inquiry in accordance with law.

3. Brief facts of the case are as under:

In respect of lands in Sy.No.1/35 measuring 10 acres

situated at Valagunda Village, Sy.No.92/9 measuring 10

acres of land, Sy.No.22/12 measuring 5 acres situated at

Masagodu Village and Sy.No.1/28 measuring 3 acres

situated in Doddabbur Village are the lands of Somwarpet

Taluk, Kodagu District, totally in all measuring 28 acres,

which originally belongs to one K.N.Thimmamma. She was

in possession, enjoyment and cultivation of the land during

her life time. However, she died issueless. Accordingly,

Sri M.P.Ramachandra claims the property as adopted son

stating that he is in possession along with other properties.

On the other hand, Sri A.N.Channabasappa,

A.C.Shivaprasad and A.C.Renukaprasad also claimed that

the properties are belonging to them on the strength of a

Will said to have been executed by K.N.Thimmamma in her

life time. After the death of Thimmamma,

A.N.Channabasappa and others filed a suit in O.S.

NO.97/1986 on the file Civil Judge (Sr.Dn.), Madikeri

seeking a decree of declaration and other consequential

reliefs against M.P.Ramachandra. The said suit was

pending for disposal. When the matter stood thus,

Somavarpet Police instituted proceedings under Section

147 Cr.P.C. taking note of the law and order of the case.

The notices of the petition were issued to

A.N.Channabasappa, A.G.Shivaprasad, A.G.Renukaprasad

and M.P.Puttanna. In the said proceedings, the Revenue

Inspector was appointed as the receiver to take charge of

the land till the disposal of the matter by the Civil Court.

4. Thereafter, the possession of the disputed

lands were given to the custody of Sri M.P.Ramachandra

on 21.04.1994 in a proceedings bearing

No.MAG/343/1983-84 and also sum of Rs.50,000/- was

deposited in the case was disbursed to M.P.Ramachandra

to cultivate the above properties. Sri M.P.Ramachandra

utilized the said sum for effective cultivation and Revision

Petitioners in this petition made an application to the

Taluka Executive Magistrate contending that Sri

M.P.Ramachandra has not utilized the said sum for

developing the properties as is directed but instead of

growing coffee, he has grown ginger and got benefit out of

the said property, which is in violation of the orders passed

whereby the possession of the land was given to Sri.

M.P.Ramachandra.

5. There afterwards, Taluka Executive Magistrate

enquired the matter and passed an order on 20.07.1998

directing Sri M.P.Ramachnadra to redeposit the sum in a

nationalized bank. Being aggrieved by the said order,

Sri M.P.Ramachandar filed a Revision Petition in Criminal

Revision Petition No.5/1998 before the Sessions Court,

Madikeri, which came to be dismissed on 06.08.2001.

6. Being aggrieved by the same, Sri

M.P.Ramachandra has also approached this Court in

Crl. Petition No.3704/2001. This Court by a considered

order dated 07.03.2002, modified the order passed by the

Taluka Executive Magistrate by observing that if

M.P.Ramachandra has cultivated ginger instead of coffee,

the Taluk Executive Magistrate is entitled to take action in

accordance with law. Subsequent to said order, Taluka

Executive Magistrate made a spot inspection on

06.01.1998 and confirmed that M.P.Ramachandra had

grown ginger instead of coffee. There afterwards, passed

impugned order on 18.12.2002 to redeposit sum of

Rs.50,000/-. Being aggrieved by the said order,

Sri M.P.Ramachandra filed a Revision Petition before the

Sessions Court in Criminal Revision Petition No.24/2003.

7. Learned judge in the Fast Track, Kodagu,

Madikeri vide order dated 09.06.2011, allowed the

Revision Petition by passing following order:

"In the result, the Revision filed under sections 397, 399 of Cr.P.C., is allowed.

In the consequences the order dated 18.12.2002 under Revision passed by the Taluka Executive Magistrate, Somwarpet is hereby set aside and the matter is remanded back to the Taluk Executive Magistrate, Somwarpet to assess the value of the expenses incurred by the Revision Petitioner towards the improvement of the land that is to be assessed on the available oral and documentary evidence.

If the value of the expenses incurred is exceeds the 50% of the sum advanced to the

petitioner only 50% is to be considered as the value of the expenses incurred for the improvement of the land, as the sum is given to the Revision Petitioner for both purpose i.e., for improvement of land and to plant the new coffee plantation.

If the value of the expenses incurred is less than 50% the said sum of Rs.50,000/- advanced to the Revision Petitioner and to recover the remaining sum as per law.

If on the available oral and documentary evidence, the Taluk Executive Magistrate comes to the conclusion that there is no expense is made towards the improvement of the land then clear finding is to be given with reasons on the said aspect and to order for the recovery of the entire sum of Rs.50,000/-. While doing so, the personal knowledge of the Tahsildar who conducted the spot inspection cannot be made as a base to direct the Revision Petitioner to redeposit the sum. As the personal knowledge of the Judge cannot be made as a base for the Judgment as stated in the Sarker Evidence Act 14th Edition 1993 at page No.909.

Accordingly, the Revision is allowed. Matter is remanded back to the Taluk Executive Magisrate, Somwarpet for determination of the expenses incurred for improvement of the land on the basis of the documents already filed before him in connection to this proceeding.

Parties are directed to bear their respective cost of the petition.

Office is hereby directed to send the entire records to the Lower Court along with copy of this Order for needful action in accordance with law."

8. Being aggrieved by the same,

Sri A.N.Channabasappa and others have filed the present

Revision Petition.

9. In the Revision Petition, the following grounds

are raised:

(a) The order of the Revisional Court is against law and facts of the case. The 1st respondent has put forward totally a new case

before the Revisional court and the same has been totally over looked.

(b) Dispute pertains to 28 acres of land in three villages of Somwarpet Taluk. Respondents 1 and 2 claim the properties as adopted son of late Thimmamma. The petitioners are claiming the properties by virtue of the Registered Will of late Thimmamma. The petitioners had filed suit O.S. 59/86 on the file of The D.J.Madikeri for a declaration that they are the owners and in possession. The suit has been decreed by judgment dated 14.7.2006 and challenging the same the respondents 1 and 2 have filed RFA 1951/2006 and the same is pending before this Hon'ble court.

(c) Since there was a dispute, preliminarily order under Section 145 of The Cr.P.C. was passed on 19.1.1984 and the Revenue Inspector Somwarpet was directed to take possession of the properties and auction the coffee crop and deposit the amount. A sum of Rs 57,850/- was deposited towards the credit of the Tahasildar. Final order was passed on 21.4.1984 and the Respondents were permitted to take possession

of the properties, and possession was taken by respondents on 28.4.1994. There was a direction to withdraw a sum of Rs 50,000/- for expenses of coffee cultivation and developing the estate and 1st respondent has withdrawn the same.

(d) Final orders were challenged by the petitioners in Cr.R.P.44/94 before the D.J. Madikeri who by order dated 27.2.1996 allowed the same and quashed the proceedings. On 1.3.1997 the petitioners filed an application before the 3rd respondent stating that the respondents have cultivated ginger instead of coffee and therefore the amount withdrawn may be recovered from the respondents. On 6.1.1998, the 3rd respondent conducted a spot inspection after notifying the parties and he found that ginger has been cultivated in the land. And therefore by order dated 27.1.1998 the 3rd respondent directed the respondents to redeposit the amount and if not deposited, action may be taken the recovery of the amount. Crl.R.P. 5/98 and Crl.Petition 3704/2001 filed before the D.J. and this Hon'ble Court and they were dismissed. After hearing

the parties the 3rd respondent passed the order dated 18.12.2002, directing recovery of the amount deposited. The same was challenged by the respondents in Cr.R.P. 24/2003, before the Fast Track Court, Madikeri, who by order dated 9.6.2011, remanded the matter. Challenging the above order Cr.R.P. has been filed before this Hon'ble Court.

(e) In the order dated 6.8.2001, passed in Cr.R.P.5/98, on the file of D.J. Madikeri, it has been stated that 3rd respondent has jurisdiction to pass necessary orders at the time of closing the file. In Crl.Petition 3704/01, this Hon'ble Court has confirmed the order.

(f) From 1984 to 1994, the Receiver was in possession and he had auctioned the crop and the amount received who credited to Tahasildar's account and an amount of Re 57,850/- was credited. As per the order dated 21.4.1994, the 1st respondent with draw a sum of Rs 50,000/-. The 3rd respondent held a local inspection on 27.1.1998 after notifying the parties. The Tahsildar ordered, recovery of the amount after local inspection. The said order

was challenged in Cr.R.P. 5/98 before the D.J. and the same was dismissed by order dated 6.8.2001. And this Hon'ble Court by order dated 9.11.2001, in Crl.Petition 3704/2001 dismissed the same.

(g) The 3rd respondent heard the parties and passed the order dated 18.12.2002, confirming the earlier order. The D.J. in Cr.R.P. 24/2003, by order dated 9.6.2011, reversed the order and remanded the matter.

(h) On 21.4.1994 final order was passed and the respondents took possession on 28.4.98 and spot inspection was done after notifying the parties when inspection was done after 3 years, ginger was being grown, which is in violation of the condition of the order. The voucher produced is got up for the case. Coffee plants have not been planted and the land has not been fenced at the time of local inspection. So Taluk Executive Magistrate has to observe position of the land on 27.1.98, when local inspection was made and not the condition of the land later. In fact the respondents have not done any improvement and leased the land for

ginger cultivation and pocketed the money and thereafter nothing has been done. Even if today local inspection is made one could see, wild growth of bushes and not coffee plants and the land has not been fenced also.

(i) Therefore, D.J. was totally in correct in holding that the personal opinion of the 3rd respondent should not prevail. The 3rd respondent has inspected the land and observed the same at the time of inspection. The local inspection report is available in the file. The respondents have for the first time taken up a contention before the D.J. that local inspection has not been made. This is purely a after thought. The order of D.J. is therefore liable to be set-aside on this ground alone. Moreover petitioners have succeeded in O.S. 97/86, and petitioners have been declared as owners.

(j) Therefore, in all fairness, the amount drawn by the respondents should be recovered as arrears of land revenue. The respondents have no respect for law and order and they go on disobeying the orders of the court and making all sorts of false representations before

the court. Such actions should be curtailed by the orders of this court; otherwise judicial orders will not have any respect.

(k) The D.J. was not correct in holding that the opinion of the 3rd respondent should not prevail. The 3rd respondent has passed the order after holding a local inspection after notifying the parties. And the local inspection report is in file.

Reiterating the above grounds, Sri Pundikai Ishwara Bhat,

learned counsel for the Revision Petitioners vehemently

contended that the Tahsildar did not possess any previous

animosity or enmity against Sri M.P.Ramachandra to file

spot inspection report on 06.01.1998. Further, since all

contentions of M.P.Ramachandra came to be merged by

order dated 07.03.2002 passed by this Court in Criminal

Petition No.3704/2001 and Tahsildar was empowered to

record a finding that whether M.P.Ramachandra had grown

coffee or ginger in the land and in view of the spot

inspection report made by the Tahsildar, the order passed

by the Tahsildar on 18.12.2002 directing

Sri M.P.Ramachandra to return sum of Rs.50,000/- is well

founded and thus sought for allowing Revision Petition.

10. Per contra, Sri Nataraj Ballal, learned counsel

for Sri M.P.Ramachandra opposed the revision grounds by

contending that there is no spot inspection at all conducted

on 06.01.1998 as is found in order dated 18.12.2002 and

the same has been righty appreciated by the learned

Sessions Judge in Criminal Petition No. 24/2003 and rightly

remanded the matter for fresh inquiry. Therefore, sought

for dismissal of the Revision Petition.

11. In view of the rival contentions and having

regard to the scope of the Revisional jurisdiction, the

following point would arise for consideration:

"Whether the order passed by the learned Fast Track Judge in Criminal Revision Petition No. 24/2003 is legally sustainable?"

12. In the case on hand, handing over of the

disputed lands, which is the subject matter of O.S.

No.97/2006 to the extent of 28 acres left behind by

Smt. K.N.Thimmamma, which the parties now admit that

is pending before this Court in Regular First Appeal is not

in dispute. So also, at the time of handing over the

possession of land, it was with an idea that the lands

would not be left as a barren land and same should be

made available for the beneficial use of the parties, who

succeed in the civil litigation. While handing over the

possession of land, a sum of Rs.50,000/- was also given to

the hands of Sri. M.P.Ramachandra to improve the lands

and grow coffee on the said land. By virtue of the spot

inspection report conducted by the Tahsildar on

06.01.1998, who did not possess any previous animosity

or enmity or extra affinity to any one of the parties, the

action of the Taluk Executive Magistrate cannot be

doubted. In such spot inspection, it is noticed by the

Tahsildar that Sri M.P.Ramachandra had not grown coffee

as per the conditions of handing over the possession of

land but he has grown ginger. Admittedly, a bill came to

be filed by Sri M.P. Ramachandra on 22.12.1997 showing

that he had grown coffee. If he had grown coffee by

submitting the bill on 22.12.1997 automatically within a

short span of time on 06.01.1998, ginger could not have

been found in the disputed land. Accordingly, this Court is

of the considered opinion that in the absence of any factual

aspect being there to support the order passed by the

learned Judge, which is impugned in the case, the order

remanding the matter needs interference in the Revisional

jurisdiction. Fact remains that the Revision Petitioners are

affected by the order of remand. Further, the proceedings

before the Tahsildar were only an intermediary

proceedings till the rights of the parties are decided by a

duly constituted Civil Court. Unfortunately, the said

proceedings have seen a marathon hearing and the scope

of the proceedings before the Tahsildar under the

provisions of Cr.P.C.is stretched more than a civil litigation.

Therefore, in order to put an end to the long drawn

litigation, it is just and proper for this Court to interfere

with the order passed by the learned Judge in the Criminal

Revision Petition No.24/2003, which is impugned in the

case by setting aside the same and directing

Sri.M.P.Ramachandra to deposit a sum of Rs.50,000/-.

However, it is made clear that this order shall not affect

the rights of the parties in the pending Regular First

Appeal.

13. With the above observation, the following

order is passed:

ORDER

Criminal Revision Petition is allowed-in-part.

Whereby, the order passed by the learned Fast Track

Judge in Criminal Revision Petition No.24/2003 is set aside

and order passed by the Tahsildar on 18.12.2002 is

restored and respondent Sri. M.P.Ramachandra is directed

to redeposit the amount on or before 31.01.2022.

Sd/-

JUDGE

KA*