Karnataka High Court

Gudu Sab S/O Babu Miyan vs The Shetty Constructions And Ors on 30 August, 2023

Bench: E.S.Indiresh

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                                                          NC: 2023:KHC-K:6964
                                                           WP No. 200957 of 2023




                                  IN THE HIGH COURT OF KARNATAKA

                                         KALABURAGI BENCH

                              DATED THIS THE 30TH DAY OF AUGUST, 2023

                                                 BEFORE
                                THE HON'BLE MR JUSTICE E.S.INDIRESH


                           WRIT PETITION NO. 200957 OF 2023 (KLR-RR/SUR)
                      BETWEEN:

                      GUDU SAB
                      S/O BABU MIYAN
                      AGED: 67 YEARS
                      OCC: MUTTAWALLI OF DARGA
                      HAZARATH MOULA ALI SHAHABAZAR
                      ALAND ROAD, KALABURAGI-585105

                                                                    ...PETITIONER

                      (BY SRI. A S. ZUBAIR AHMED & SRI. RAMCHANDRA K,
                      ADVOCATE)

                      AND:
Digitally signed by
B NAGAVENI            1.    THE SHETTY CONSTRUCTIONS
Location: High
Court Of Karnataka          THROUGH ITS MANAGING
                            PARTNER UDAY SHANKER SHETTY,
                            SHETTY COMPLEX SHAHABAZAR,
                            ALAND ROAD,
                            KALBURGI-585105

                      2.    THE JOINT DIRECTOR
                            OF LAND RECORDS,
                            KALABURAGI DIVISION,
                            KALABURAGI-585102

                      3.    THE ASST. DIRECTOR
                            OF LAND RECORDS
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                                   NC: 2023:KHC-K:6964
                                    WP No. 200957 of 2023




     CITY SURVEY OFFICE
     KALABURAGI-585102

4.   THE CHIEF EXECUTIVE OFFICER
     KARNATAKA WAKF BOARD,
     CUNNIGHAM ROAD
     BENGALURU-560001

5.   THE DISTRICT WAKF OFFICE,
     DISTRICT ADVISORY COMMITTEE,
     KALABURAGI-585102

                                          ...RESPONDENTS


(BY SRI. S M. CHANDRASHEKAR SENIOR ADVOCATE FOR
SRI. B V. JALDE, ADVOCATE FOR R1;
SRI.GOPALKRISHNA B. YADAV, HCGP FOR R2 & R3;
SRI. SRI.P.S.MALIPATIL, ADVOCATE FOR R4 & R5)


       THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &

227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE

WRIT OF CERTIORARI TO QUASH THE IMPUGNED ORDER

PASSED BY THE RESPONDENT NO. 2 ON DATED 6-1-2023 VIDE

FILE NO. REVISION/CTS/9/2021-22 AS PER ANNEXURE- M AND

ETC.


       THIS PETITION, COMING ON FOR ORDERS, THIS DAY,

THE COURT MADE THE FOLLOWING:
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                                       WP No. 200957 of 2023




                          ORDER

1. Heard the learned counsel appearing for the parties.

2. In this writ petition, petitioner is assailing the order

dated 06.01.2023 passed by the respondent No.2

(Annexure-M) in Proceedings No: Revision / CTS / 9 of

2021-22 rejecting the claim made by the petitioner.

3. Relevant facts for adjudication of this writ petition

are that, the petitioner herein, claims to be owner of the

property in question based on the certificate issued by the

respondent - Board. It is the contention of the petitioner

that, the respondent No.1 has filed suit against the

petitioner herein in O.S. No.38/2003 seeking relief of

declaration that the land in question be declared as

belonging to the respondent No.1 herein and in the said

suit compromise was entered into between the petitioner

and respondent No.1 herein, however the same has not

reached finality. The said suit was dismissed on the

ground of non maintainability.

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4. It is also stated that the respondent No.1 is a

stranger to claim right over the schedule property and in

this regard, the respondent No.1 has filed O.S.

No.371/2009 before the II Addl. Civil Judge, Kalaburagi

seeking declaration with consequential relief of perpetual

injunction and the said suit came to be dismissed on

15.06.2012. Being aggrieved by the same, respondent

No.1 has filed R.A. No.114/2012 before the First Appellate

Court and the same came to be dismissed on 03.02.2021

and thereafter, the respondents have filed RSA

No.200049/2022 before this Court, which is pending

consideration.

5. It is the categorical contention of the petitioner that

there is a darga / tomb in the disputed land and same is

spiritual in nature and the petitioners having faith in the

said darga and accordingly it is contended that, being

aggrieved by the impugned order passed by the second

respondent herein rejecting the application made by the

petitioners seeking entering the name of the petitioners in

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the city survey records / revenue records, petitioner has

filed this writ petition.

6. I have heard Sri. A.S. Zubair Ahmed, learned counsel

appearing for the petitioner, Sri. P.S. Malipatil, learned

counsel appearing for the respondent Nos.4 and 5, Sri.

Gopalakrishna Yadav, learned High Court Government

Pleader appearing for respondent Nos.2 and 3, Sri. S.M.

Chandrashekar, learned Senior Counsel appearing on

behalf of Sri. B.V. Jalde, learned counsel for respondent

No.1.

7. Sri. A.S. Zubair Ahmed, learned counsel for the

petitioner contended that, the suit filed by the respondent

No.1 herein came to be dismissed on the ground of

maintainability for want of statutory remedy and also he

contended that, the subject land is being worshipped as a

darga which is spiritual in nature and therefore,

respondent No.1 herein has no locus-standi, nor having

title over the land in question, and accordingly, he sought

for interference of this Court. He also referred to the

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plaint averments made in O.S. No.38/2003 and contended

that, respondent No.1 has admitted at para 5 of the plaint

that the petitioner herein is in possession of the schedule

property and the land in question is a darga and the said

submission would clearly establish the fact that the suit

property is belonging to the petitioner and accordingly he

submitted that this Court has to interfere with the

impugned order passed by the second respondent herein

as per Annexure-M.

8. Per contra, Sri. S.M. Chandrashekar, learned Senior

Counsel appearing for respondent No.1 invited the

attention of the Court to the Judgment and Decree in O.S.

No.1/2015 connected with Application No.11/2016

disposed of on 18.04.2017 (Annexure-N) and contended

that, the said suit came to be dismissed by the Karnataka

Wakf Tribunal and consequently the Application

No.11/2016 filed by respondent No.1 herein came to be

allowed with costs. The Wakf Tribunal has set aside the

corrigendum dated 15.09.2014 and the Registration

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Certificate dated 30.12.1998. The Judgment and Decree

passed by the Tribunal was confirmed by this Court in CRP

No.198/2017 connected with CRP No.197/2017 on

09.11.2020 and same has reached finality. He further

submitted that the petitioner has no locus-standi to make

an application to respondent No.2 seeking city survey with

regard to subject land. He also argued that it is clear

abuse of process of law by the petitioner. Despite the

petitioner has suffered the order before the Tribunal and

this Court, petitioner is making application before the

Revenue Authorities without considering the fact that the

matter has reached finality with regard to title of the

respondent No.1 as regards the property in question. In

this regard, he refers to Section 2(c)(iii) of the Contempt

of Courts Act, 1971 and sought for interference of this

Court to take action against the petitioner herein in terms

of the provisions contained under the Contempt of Courts

Act, 1971 and accordingly, sought for dismissal of the

petition.

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9. Sri. P.S. Malipatil, learned counsel appearing for the

respondent Nos.4 and 5 also refers to the order passed by

the Tribunal as well as this Court in Revision petitions and

argued for dismissal of the writ petition. Learned

Government Pleader also argued in similar lines.

10. Having taken note of the arguments advanced by the

learned counsel appearing for the parties, on careful

examination of the writ papers would indicate that the

petitioner claims to be the owner in possession of the

darga named as Darga Hazrath Moula Ali, situate at Shaha

Bazar, Aland Road, Kalaburagi Town and District and

claims to be Mutawalli of the said darga in respect of CTS

No.721 measuring 80 x 45. Petitioner has produced the

copy of registration in respect of said darga dated

30.12.1998. In this regard, on careful examination of the

finding recorded by the Karnataka Wakf Tribunal in O.S.

No.1/2015 connected with Application No.11/2016 filed by

the respondent No.1 herein would indicate that, the

Tribunal after considering the material on record, by its

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Order dated 18.04.2017, dismissed the claim made by the

Wakf Board and consequentially allowed the Application

No.11/2016 filed by the respondent No.1 herein, under

Section 83 of the Wakf Act, 1995 and consequently, the

Registration Certificate dated 30.12.1998 and the

Corrigendum dated 15.09.2014 have been quashed. The

said order of the Tribunal was confirmed by this Court in

CRP No.198/2017 connected with CRP No.197/2017

disposed of on 09.11.2020, wherein this Court at

paragraph Nos.17 and 18, it is held as follows:

"17. Be that as it may, the land in question has been converted by order dated 19th January, 1990 by Deputy Commissioner, Gulbarga and the Record of Rights has been mutated in favour of the said Satyanarayan Malu. Pursuant to the same, the land came to be converted for commercial and residential purpose and thereby the defendant - Shetty Constructions has got approved the sanction plan by Gulbarga Urban Development Authority as per Exhibit D22 and in that view of the matter, since the Revenue Authorities have changed the nature of land for commercial and residential purpose after thorough examination/scrutiny of records thereunder, it is

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declared that the defendant-Shetty Constructions is the absolute owner of the property in question and therefore, the claim of area made by the plaintiffs to an extent of 250' x 150' as per corrigendum dated 15th September, 2014 is without any basis and thereby the finding recorded by the Tribunal quashing the Certificate of Registration dated 30th December, 1998 is in accordance with law and therefore, the judgment and decree dated 18th April 2017 passed in Original Suit No.1 of 2015 by the Tribunal is hereby confirmed.

18. I have carefully perused the original th Certificate of Registration dated 30 December, 1998 produced at Annexure-B. Perusal of the Certificate of Registration would not indicate the source of title in favour of Mutawalli, which would establish the fact that the original owner Syed Ismail had sold the entire land belonging to him in survey No.1/1B in favour of the then purchaser-Satyanarayana Malu and therefore, the finding recorded by the Tribunal in that regard is just and proper."

11. Having taken note of the factual aspects on record,

this Court having considered the finding recorded by the

Tribunal while dismissing the suit filed by the petitioner

herein who has been arrayed as petitioner No.2 in the

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above Revision Petition, has dismissed the Revision

Petitions. In that view of the matter, I am of the view that

the petitioner has not produced an iota of document to

establish that the title with regard to the property in

question vests with him. It is needless to say that the

order passed by this Court in the aforementioned Revision