Karnataka High Court
Smt. Akkayamma vs The Deputy Commissioner on 21 November, 2023
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WP No. 23407 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
WRIT PETITION NO.23407 OF 2023 (KLR-RES)
BETWEEN:
1. SMT. AKKAYAMMA
W/O LATE K.M. ASWATHAPPA,
AGED ABOUT 70 YEARS,
2. SRI. MUNISHAMIGOWDA
S/O LATE K.M. ASWATHAPPA,
AGED ABOUT 45 YEARS,
3. SMT. MANJULA
W/O MUNISWAMIGOWDA,
AGED ABOUT 41 YEARS,
R/AT KODAGALAHATTI VILLAGE,
HUNASAMARANAHALLI POST,
JALA HOBLI,
Digitally signed by
SHARMA ANAND BENGALURU NORTH TALUK-562157.
CHAYA
Location: High Court
of Karnataka
...PETITIONERS
(BY SRI. VIJAYA KUMAR K., ADVOCATE)
AND:
1. THE DEPUTY COMMISSIONER
BENGALURU URBAN DISTRICT,
D.C.OFFICE BUILDING,
KANDAYA BHAVANA,
K.G.ROAD,
BENGALURU-560009.
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WP No. 23407 of 2023
2. THE ASSISTANT COMMISSIONER
BENGALURU NORTH SUB DIVISION,
KANDAYA BHAVAN,
K.G.ROAD,
BENGALURU-560009.
3. THE SPECIAL TAHSILDAR
YELAHANKA TALUK,
YELAHANKA,
BENGALURU-560064.
4. SMT. ASHA PARADESHI
W/O RAMESH PARADESHI,
AGED ABOUT 71 YEARS,
R/AT FLAT NO.13, NO.12,
KUBERA GARDEN,
N.I.B.M. ROAD, KONDWA,
PUNE-411048.
5. SMT. KAMINI R. RAMNANI
W/O N. RAMESH,
AGED ABOUT 52 YEARS,
R/AT NO.4, 3RD FLOOR,
A.G.S. PLAZA, R.T.NAGAR,
BENGALURU-560032.
6. SRI. N. RAMESH
S/O NARAYANA DAS,
AGED ABOUT 70 YEARS,
R/AT NO.33,
11TH MAIN, MALLESHWARAM,
BENGALURU-560003.
...RESPONDENTS
(BY SRI. C.N. MAHADESHWARAN, AGA FOR R1 TO R3;
SRI. G.L. VISHWANATH, SENIOR COUNSEL APPEARING FOR
SRI. JOSEPH ANTHONY, ADVOCATE FOR R4 (GPA HOLDER)
VIDE ORDER DATED 16.11.2023 SRI. SANGAMESH M.
NAVADAGI, ADVOCATE FOR R5 AND R6)
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WP No. 23407 of 2023
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
DIRECT/ TO QUASH / SET ASIDE THE ORDER DATED
07/10/2023 PASSED BY THE RESPONDENT NO.1 IN R.P. NO.
225/2022 (ANNEXUvRE-A) HOLDING THE SAME AS ILLEGAL
AND CONSEQUENTLY DISMISS THE R.P. NO. 225/2022 FILED
BY THE RESPONDENT NO.4 BY ALLOWING THIS WRIT
PETITION.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
In this writ petition, the petitioners are assailing the
order dated 07.10.2022 passed by the respondent No.1 in
R.P.No.225 of 2022 (Annexure-A) interalia sought for
direction to dismiss R.P.No.225 of 2022.
2. Relevant facts for the adjudication of the case
are that, the husband of the petitioner No.1-late
K.M.Ashwatappa, had three sons and one daughter and
during the lifetime of K.M.Ashwatappa, he had acquired
the land bearing Sy No.145/3, (New Sy No. 145/4) of
Hunasamaranahalli Village, to an extent of 31 guntas as
per registered Sale Deed dated 08.08.1978. It is stated
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that, pursuant to the same, revenue entries stands in the
name of the husband of the petitioner No.1. It is further
stated in the writ petition that, the respondent No.6, has
created documents dated 26.11.1996 styled as registered
General Power of Attorney and said to have been executed
by late K.M.Ashwatappa and his sons Muniswamy Gowda
(Petitioner No.2) and another deceased son
Munikrishna as per Annexure-C. It is further stated in the
writ petition that, by virtue of the registered General
Power of Attorney dated 26.11.1996, the attorney has sold
the land in question in favour of the respondent No.6, as
per Sale Deed dated 27.12.2002 (Annexure-D). It is
pleaded by the petitioners that, the said registered Sale
Deed dated 27.12.2002 is illegal and therefore, contended
that, no such alienation ought to be done as the said
General Power of Attorney, died on 08.09.1997
(Annexure-F). In that view of the matter, it is contended
by the petitioners that, any further acquisition of the
property by the contesting respondents do not conform to
ingredients of 'Sale' under Section 54 of the Transfer of
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Property Act and as such, the revenue entries made in
favour of the contesting respondents, in terms of the
impugned order dated 07.10.2023 in RP No.225/2022, by
the respondent No.1 is contrary to law and therefore, the
petitioners have presented this writ petition.
3. I have heard Sri Vijaykumar .K., learned
counsel senior appearing for the petitioners and
C.N.Mahadeshvaran, learned Additional Government
Advocate appearing for the respondent-State and Sri
G.L.Vishwanath learned Senior Counsel appearing on
behalf of Sri Joseph Anthony, learned counsel appearing
for the respondent No.4 and Sri Sangamesh M. Navadagi
learned counsel appearing for the respondent Nos.5 and 6.
4. Sri Vijayakumar .K., learned counsel appearing
for the petitioners contended that, the impugned order
passed by the respondent No.1 is suffer from infirmity on
the ground that the petitioner Nos.2 and 3 herein have
executed the Release Deed dated 02.02.2022 in favour of
the petitioner No.3 (Annexure-J) and without hearing the
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petitioner No.3, who is the owner in possession of the land
in question, the impugned order is passed by the
respondent No.1, is nonest. Accordingly, he sought for
interference of this court.
5. Secondly, it is contended by learned counsel
appearing for the petitioners that, the father in law of the
petitioner No.3-Sri K.M. Ashwathappa, died on 08.09.1997
and therefore, the transfer of property by attorney at the
behest of the death person as per Annexure-C dated
26.11.1996 and thereafter, execution of the Sale Deed
dated 27.12.2002, (Annexure-D) does not confer any
right to the purchasers thereunder and accordingly,
submitted that, the disputed question of facts are involved
in this writ petition and in that view of the matter, the
revenue authorities have no right to adjudicate the rights
of the parties in as much as it is so contended that the
respondent No.4, has filed OS No.689 of 2022 against the
petitioner No.1, before the competent court, seeking
declaration with regard to the property in question and in
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that view of the matter, unless the rights are properties
are crystallized in the civil court, the revenue records shall
stands in the name of the original owner of the land in
question i.e. late K.M.Ashwatappa and accordingly, he
sought for interference of this court. In this regard, he
refers to the judgment of this Court in the case of Smt.
Jayamma and others vs State of Karnataka others
reported in ILR 2020 KAR 1449 and contended that, as
the Tahasildar by exercising jurisdiction under Section 129
of the Karnataka Land Revenue Act, 1964 has mutated the
revenue records in favour of the petitioner No.3, in terms
of the registered Release Deed dated 02.02.2022 as per
Annexure-J and thereafter, the respondent No.3 herein
has passed an order dated 12.10.2022, in RRT (Dis) CR
No.187-2022-23 and in that view of the matter, he
contended that, finding recorded by the respondent No. 1
is contrary to law and requires to be set aside in this writ
petition.
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6. Per contra, Sri G.L.Vishwanath, learned Senior
Counsel appearing for the contesting respondents argued
that, it is not dispute with regard to the title vested with
late K.M.Ashwatappa in terms of the Sale Deed dated
08.08.1978. However, the said K.M.Ashwatappa and his
children have executed General Power of Attorney as per
Annexure-R4 dated 19.10.1996 empowering the attorney
to sell the land in question and pursuant to the same the
registered Sale Agreement 19.10.1996 has been executed
by the late K.M.Ashwatappa and his children in favour of
M/s Maha's Wonder World (Pvt) Ltd., a registered
Company, represented by its Director N. Ramesh, who is
the attorney as per the registered General Power of
Attorney dated 19.10.1996 (Annexure-R4). Accordingly, it
is contended that as Sale Agreement has been executed
by the K.M.Ashwatappa and his children and in terms of
the recital in the Sale Agreement as the vendor therein
have handed over the vacant possession of the suit
schedule property in favour of the purchasers therein, who
is the attorney holder of the late K.M.Ashwatappa and his
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children and in this regard a portion of the consideration
transferred to the late K.M.Ashwatappa and in their
children and in view of the same, as per Section 202 of the
Indian Contract Act, 1972, the rights insofar as sale of the
property in question transferred to the agent and as such,
the death of the K.M.Ashwatappa does not make
difference insofar as the execution registered Sale Deed in
favour of the purchasers as per Annexure-R4 to the writ
petition and accordingly, it is contended that the
submission made by the learned counsel appearing for the
petitioners cannot be accepted. That apart, it is contended
by the learned Senior Counsel that, the mutation entries
have been effected as per Annexures-R6 and R7 in favour
of the contesting respondents herein as per the registered
sale deed made by K.M.Ashwatappa and his sons
(Annexure-R5) and thereafter, respondent No. 4 has
purchased the same from the attorney of late
K.M.Ashwatappa and his children in favour of the
respondent No.4 and in that view of the matter, the RRT
proceedings initiated and concluded by respondent No.3
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herein in respect of the respondent No.4 is just and
proper and does not call for interference. It is also
submitted that suit filed by one of the sons of late
K.M.Ashwatappa-Ravi Kumar in OS No.303 of 2013, before
the Senior Civil Judge, Devanahalli and in the said suit the
petitioner No.2 and the contesting respondents are also
the defendants and in the said suit it is concluded as the
parties have entered into Compromise Deed and pursuant
to the same, the said plaintiff- Ravi Kumar, had executed
the Confirmation Deed dated 03.04.2017 (Annexure-R11)
and in that view of the matter, it is contended that as
there is lawful transfer of the property in favour of
contesting respondents, accordingly, no interference is
called for in this writ petition.
7. Per contra, learned Additional Government
Advocate appearing for the respondent-Government
sought to justify the impugned order passed by
respondent No.1.
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8. In the light of the submission made by the
learned counsel appearing for the parties, on careful
examination of writ papers would indicate that, there is no
dispute with regard to ownership lies with late
K.M.Ashwatappa as per registered Sale Deed 08.08.1978
as per Annexure-P to the writ petition. The said
K.M.Ashwatappa along with his children had executed the
registered General Power of Attorney in favour of one
N.Ramesh as per Annexure-C, and attorney has been
empowered to execute all necessary documents pertaining
to sale of the property in question and also it is also
forthcoming from the writ papers that Agreement of Sale
has been executed as per Annexure-R3 dated 19.10.1996
in favour of the respondent No.6 herein. Perusal of the
Sale Agreement, evidencing that there is handing over of
possession in favour of the respondent No.6. The sale
consideration relating to the land in question is also
reflected in the Sale Agreement, however, the respondent
No.6, by virtue of the registered General Power of
Attorney has sold the property in question in favour of the
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respondent No.5 herein as per registered Sale Deed dated
27.12.2002 (Annexure-R5). It is the contention of the
petitioners that, no such Agreement Of Sale has been
executed and that apart as on the date of registration of
Sale Deed dated 27.12.2002 by late K.M.Ashwatappa and
his children through their General Power of Attorney-
respondent No.6 in favour of the respondent No.5, the
K.M.Ashwatappa was no more and he died on 08.09.1997
(Annexure-F). It is also forthcoming from the writ petition
that, the respondent No.5 has sold the property in favour
of the respondent No.4. The revenue entries has been
changed as per Annexures-R6 and R7 in terms of the
registered Sale Deed between the parties. However, the
contention of the petitioner that as the petitioner Nos. 1
and 2 have executed registered Release Deed in favour of
the petitioner No.3 through the Release Deed dated
02.02.2022 (Annexure-J) to the writ petition. Undisputedly
the petitioner No.3, is not a party before the respondents
1 and 2 herein as the petitioner No.3 had acquired the
property through registered Release Deed dated
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02.02.2022 during the pendency of the proceedings before
the competent authority. In that view of the matter, taking
into consideration these disputed facts and petitioners
have disputed the alleged Agreement of Sale as well as
the power of the attorney holder to execute the registered
Sale Deed in favour of the respondent No.4 and taking into
consideration the death of the late K.M.Ashwatappa as on
the date of execution of registered Sale Deed dated
27.12.2002 (Annexure-F) and that apart, as the
respondent No.4 herein has filed suit before the competent
court in OS No.689 of 2022 (Annexure-L), against the
petitioner No.1, seeking relief of declaration with
consequential relief and in the said suit, an averment has
been made with regard to application of Section 202 of
Indian contract Act, I am of the view that, the rights of the
parties to be crystallized in the said suit as well as the
right of the petitioner No.3 is to be determined in terms of
execution of Release Deed as per Annexure-J, I am of the
view that, impugned order passed by respondent No.1 is
not correct and accordingly, the writ petition is liable to be
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allowed setting the order dated 07.10.2023 in R.P.No.225
of 2022. However, as it is contended by the learned
counsel appearing for the parties, that during the
pendency of the revenue proceedings Release Deed has
been executed by petitioners 1 and 2 in favour of
petitioner No. 3 and in the meanwhile respondent No.3
has passed an order in RRT (Dis) CR.187 of 2022-23,
modifying the mutation entry in favour of the petitioner
No.3 is concerned, I am of the view that, entire matter be
remitted to the respondent No.2 herein to re-hear the
parties and taking into consideration the change of
mutation made pursuant to the execution of the Release
Deed as per Annexure-J. It is pertinent to mention that,
the mutation entries made pursuant to registered Sale
Deed effected in terms of Annexures-R6 and R7,
respondent No.2 shall take decision in accordance with law
following the declaration of law made by the Full Bench of
this Court in the case of Smt. Jayamma's case supra and
pass appropriate orders within four months from the date
of receipt of certified copy of this order. Therefore, the
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matter is remitted to respondent No.2 to take decision,
afresh in terms of the observations made above. Till the
consideration of the appeal by the respondent No.2 herein,
as stated above, the parties have to maintain status-quo
insofar as the entries are concerned. With these
observations, the writ petition is allowed.
SD/-
JUDGE
SB
