Karnataka High Court

Smt Gangavva vs The State Of Karnataka on 26 June, 2024

Author: Pradeep Singh Yerur

Bench: Pradeep Singh Yerur

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                                                                 NC: 2024:KHC-D:8658
                                                                      WP No. 101078 of 2024




                                   IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                                         DATED THIS THE 26TH DAY OF JUNE, 2024
                                                        BEFORE
                                    THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
                                    WRIT PETITION NO.101078 OF 2024 (KLR-RR/SUR)
                              BETWEEN:

                              1.   SMT. GANGAVVA
                                   W/O LATE. CHANNAGOUDA PATIL
                                   @ RAMNAGOUDRU, AGE: 67 YEARS,
                                   OCC. AGRICULTURE AND HOUSEHOLD WORKER.

                              2.   SRI RAMESH @ BASANAGOUDA
                                   CHANNAGOUDA PATIL
                                   S/O CHANNAGOUDA PATIL,
                                   AGE: 50 YEARS, OCC: AGRICULTURE.

                              3.   SRI. TAMMANAGOUDA CHANNAGOUDA PATIL
                                   S/O CHANNAGOUDA PATIL,
                                   AGE: 46 YEARS,
                                   OCC: AGRICULTURE.

                              4.   SRI. RAJU @ RAJENDRAGOUDA
                                   CHANNAGOUDA PATIL
                                   S/O CHANNAGOUDA PATIL,
                                   AGE. 40 YEARS,
                                   OCC. AGRICULTURE,
           Digitally signed
           by BHARATHI
           HM

BHARATHI
           Location: HIGH
           COURT OF
                                   (PETITIONER 1-4 ARE RESIDENT OF
           KARNATAKA
HM         DHARWAD
           BENCH                   WARD NO.85, GOUDARA ONI,
           Date:
           2024.07.06
           12:14:18 +0530          MALLURU VILLAGE, TQ: SAVADATTI,
                                   DIST: BELAGAVI-591111).

                              5.   SMT. NIRMALA
                                   @ AKKAMMA SRISHAILA KARDI,
                                   W/O SRISHAILA KARDI, AGE:
                                   OCC: AGRICULTURE, R/O: HITTANAGI,
                                   HEAD POST: SUTTAGATTI,
                                   TQ: SOUNDATTI,
                                   DIST: BELAGAVI-591126.
                                                                           ... PETITIONERS
                              (BY SMT. VIDYAVATI M. KOTTURSHETTAR, ADVOCATE)
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                                     NC: 2024:KHC-D:8658
                                       WP No. 101078 of 2024




AND:

1.   THE STATE OF KARNATAKA,
     R/BY PRINCIPAL SECRETARY,
     VIKAS SOUDHA,
     BANGALORE-560001.

2.   THE DEPUTY COMMISSIONER,
     OFFICE OF DEPUTY COMMISSIONER,
     BELAGAVI-591126.

3.   THE ASST. COMMISSIONER,
     BAILHONGAL, TQ: BAILHONGAL,
     DIST: BELAGAVI-591102.

4.   THE TAHASILDAR SOUNDATTI,
     TQ: SOUNDATTI,
     DIST: BELAGAVI-591126.

5.   THE REVENUE INSPECTOR,
     MURGOD, TQ: SOUNDATTI,
     DIST: BELAGAVI-591119.

6.   SMT. SHANTAVVA W/O ARJUNAPPA KARADI,
     AGE: 45 YEARS, OCC: HOUSEHOLD,
     R/O: HITTANAGI, TQ: SOUNDATTI,
     DIST: BELAGAVI-591126.
                                               ... RESPONDENTS

(BY SMT. GIRIJA S. HIREMATH, HCGP FOR R1-R5;
 SRI LAXMAN T. MANTAGANI, ADVOCATE FOR R6)


       THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN
THE NATURE OF CERTIORARI BY QUASHING THE IMPUGNED ORDER
VIDE    NO.RB/RTA/310-2022      BELAGAVI   DATED   21.12.2023,
                        ND
ANNEXURE-H ISSUED BY 2       RESPONDENT AND ETC.


       THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
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                                        NC: 2024:KHC-D:8658
                                         WP No. 101078 of 2024




                              ORDER

Heard learned counsel for the petitioners and learned

HCGP appearing for respondents No.1 to 5/State as well as

learned counsel for respondent No.6.

2. This petition is filed by the petitioners seeking to

quash the impugned order dated 21.12.2023 vide Annexure-

H passed by the 2nd respondent and consequently quash the

impugned order dated 28.12.2022 passed by the 3rd

respondent and also sought to issue writ of mandamus

directing respondent No.4 to restore the name of original

owner to the land bearing Sy.No.62/1 of Govinakoppa

village.

3. It is the case of petitioners that they are the legal

heirs and children of one Sri Channagouda Patil, who died on

03.10.2005 and his wife Gangawwa, who owned the

agricultural land bearing Sy.No.62/1 measuring 08 acre, 16

guntas including PK 0.02 gunta assessed at Rs.13.45 paisa

situated at Govanakoppa K.Y. village, Savadatti Taluka and

Belagavi District. According to the petitioners, their father

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late Sri Channagouda Patil was absolute owner of the said

property and record of rights stood in his name.

4. Respondent No.6, who is no way related to the

petitioners' family is stated to have clandestinely secured a

document namely 'Kabuli Patra' from the father of petitioners

i.e., Sri Channagouda Patil and without mentioning the name

of executants, survey number of land, extent of land and

without the same registered in accordance with law, filed an

application before the 5th respondent-Revenue

Inspector/Village Accountant for entry of her name in the

revenue records by stating that deceased-Sri Channagouda

Patil had relinquished Sy.No.62/1 measuring 08 acre, 16

guntas of Govanakoppa K.Y. village, taluka Savadatti,

District-Belagavi in favour of respondent No.6-Smt.

Shantavva W/o.Arjunappa Karadi. Based on the said

application made by respondent No.6, the Village Accountant

colluding with respondent No.6 and on the basis of 'Kabuli

Patra' which is a fraudulent fabricated document treating it

to be 'Deed of Relinquishment', made an entry in the

mutation register deleting the name of erstwhile owner-Sri

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Channagouda Patil and mutated the name of respondent

No.6-Smt.Shantavva Karadi in the record of rights.

5. This being the state of affairs, petitioners who are

the legal representatives of deceased-Sri Channagouda Patil

after his death in the year 2005 i.e., 03.10.2005 came to

know later on that the entries in the mutation have been

effected in the name of respondent No.6-Smt.Shantavva

Karadi. Accordingly, petitioners filed an appeal under Section

136(2) of the Karnataka Land Revenue Act, 1964 (for short,

'the Act, 1964') before the 3rd respondent-Assistant

Commissioner contending that document 'Kabuli Patra' so

produced by the 6th respondent is a fraudulent document and

that it is not a valid and reliable document. It cannot be

termed as 'Relinquishment Deed' and sought to revert the

name of original erstwhile owner-Sri Channagouda Patil by

cancelling the mutation entry made in favour of respondent

No.6-Smt. Shantavva Karadi so also a plea was taken that

no opportunity was given to the petitioners, who are the

legal representatives of original owner as contemplated

under Section 129(2) of the Act, 1964. The said appeal came

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to be dismissed by respondent No.3 without proper

application of mind considering the said 'Kabuli Patra' as

'Relinquishment Deed'.

6. Aggrieved by the order, petitioners preferred a

revision petition before the 2nd respondent under Section

136(3) of the Act, 1964 which also came to be rejected

affirming the order passed by the 3rd respondent without

proper application of mind. Therefore, aggrieved by the

impugned orders passed by the 2nd and 3rd respondents, the

petitioners are before this Court.

7. It is the vehement contention of learned counsel for

the petitioners that the application filed for change of

mutation entry on the basis of alleged 'Kabuli Patra' is a

fraudulent, created and concocted document. Though,

certain names are depicted in the said document, who have

consented to be shown as that of the petitioners herein, who

are none other than the legal heirs of deceased-Sri

Channagouda Patil. There is absolutely no mention of survey

number, description of the property and extent of the area of

the land in the said fraudulent 'Kabuli Patra'. Therefore,

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when there is a document presented before the Tahashildar

for changing the mutation entry which is contemplated under

Section 128 of the Act, 1964, there are certain formalities

and rules which are applicable while considering the said

application for change of mutation entry. If it is a registered

document under 2nd proviso to Section 128(2) of the Act,

1964 takes care of the requirement of exemption on the part

of the applicant as it would be valid and registered

instrument in the eye of law.

8. In the present case, admittedly, it is not a registered

instrument, when if it is not a registered instrument or a

document, the law contemplates as per Section 129(2) of the

Act, 1964, which deals with registration of mutations and

better understanding :

"128. Acquisitions of rights to be reported.--(1) Any person acquiring by succession, survivorship, inheritance, partition, purchase, mortgage, gift, lease or otherwise, any right as holder, occupant, owner, mortgagee, landlord or tenant of the land or assignee of the rent or revenue thereof, shall report orally or in writing his acquisition of such right to the prescribed officer of

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the village within three months from the date of such acquisition, and the said officer shall at once give a written acknowledgment of the receipt of the report to the person making it:

Provided that where the person acquiring the right is a minor or otherwise disqualified, his guardian or other person having charge of his property shall make the report to the prescribed officer:

Provided further that any person acquiring a right by virtue of a registered document shall be exempted from the obligation to report to the prescribed officer:

Provided also that any person reporting under this sub-section the acquisition by him of a right in partition in respect of the land shall annex with the report a sketch showing the metes and bounds and other prescribed particulars of such land and such person shall get the sketch prepared by a licensed surveyor.

129. Registration of mutations and register of disputed cases.--(1) The prescribed officer shall enter in the Register of Mutations every report made to him under sub-section (1) of section 128 or received by him under sub-section (2) or subsection (4) of the said section.

(2) Whenever a prescribed officer makes an entry in the Register of Mutations, he shall at the same time post up a complete copy of the entry in a conspicuous place in the chavadi and shall give written intimation to all persons appearing from the

NC: 2024:KHC-D:8658

Record of Rights or Register of Mutations to be interested in the mutation, and to any other person whom he has reason to believe to be interested therein.

(3) Should any objection to any entry made under sub-section (1) in the Register of Mutations be made either orally or in writing to the prescribed officer, it shall be the duty of the prescribed officer to enter the particulars of the objection in a Register of Disputed Cases.

(4) The objections entered in the Register of Disputed Cases and such other objections as may be made during the enquiry shall be enquired into and disposed of by such officer and in such manner as may be prescribed. Orders disposing of such objections shall be recorded in the Register of Mutations by such officer.

(5) The officer holding an enquiry under sub- section (4) shall have all the powers under Chapter III, that a Revenue Officer has in making a formal or summary enquiry under this Act."

9. Under the circumstances, learned counsel for the

petitioners vehemently contends that required procedure has

not been followed by the Tahashildar while mutating the

name of respondent No.6. Upon challenge made to the said

mutation entry made by the Tahashildar, Assistant

Commissioner though holds that he does not have powers to

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decide the title and ownership of the property on the basis of

'Kabuli Patra' has considered the 'Kabuli Patra' as

Relinquishment Deed. The Assistant Commissioner dismissed

the case of the petitioners affirming the mutation entries

made by the Tahashildar on the basis of 'Kabuli Patra' which

was treated as 'Relinquishment Deed' by late Sri

Channagouda Patil and consented by legal representatives of

Sri Channagouda Patil before the Assistant Commissioner,

when the petitioners have made several allegations with

regard to the alleged document to be concocted, fabricated

and fraudulent document, a duty is cast upon the Assistant

Commissioner to apply his mind while considering the appeal

preferred by the petitioners on the said document and while

dealing with the same, he cannot decide the title or

ownership of the property as powers are not vested with

him. But however, gives a go by to the provision of Section

129 of the Act, 1964 dismissed the case of petitioners which

is affirmed by the 2nd respondent-Deputy Commissioner by

rejecting the revision petition.

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10. Learned counsel for the petitioners contends that

the entire order passed by the Tahashildar as well as

Assistant Commissioner and the Deputy Commissioner are

contrary to the provisions of law and well established

Judgment of the Hon'ble Apex Court and this Court, hence

the same deserve to be quashed.

11. Per Contra, learned HCGP representing respondents

No.1 to 5-State sustains the orders passed by the 2nd, 3rd

and 4th respondents by contending that a consent letter of

'Kabuli Patra' has been produced by respondent No.6 seeking

change of mutation entry along with signatures of the

erstwhile owner-Sri Channagouda Patil, based on which, the

entries have been mutated. Hence, there is no illegality or

perversity in the order so also she sustains the order of

respondents No.2 and 3 and seeks dismissal of this petition

so also it is contended that there is a huge delay of 18 years

in filing the appeal and during lifetime of said Sri

Channagouda Patil no appeal or objection came to be filed by

the erstwhile owner, who has issued the 'Kabuli Patra'.

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12. Whereas, learned counsel for respondent No.6 Sri

Laxman T. Mantagani vehemently contends that the order

passed by the respondents are not tainted with any

malafides or arbitrariness or illegality, they are in accordance

with law on the application filed by respondent No.6 in the

guise of 'Kabuli Patra' which is a consent letter by taking

signatures of other legal heirs of erstwhile owner Sri

Channagouda Patil. The application came to be filed and

same was entertained and mutation entries were made as

they were no objection from the legal heirs who had

consented in the said application, therefore mutation entry

made by the Tahashildar is not tainted with any illegality.

13. Learned counsel further contends that during

lifetime of late Sri Channagouda Patil nothing was filed

challenging the said 'Kabuli Patra' or change of mutation

entries having been made by the Tahasildar. But after a

period of 18 years, the present petitioners, who are legal

heirs of erstwhile owner Sri Channagouda Patil with ill motive

and malafide intentions, have filed the appeal before the

Assistant Commissioner seeking to set aside the mutation

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entries made in favour of respondent No.6. He further

contends that on giving a fair hearing and applying his mind,

the 3rd respondent-Assistant Commissioner has rightfully

dismissed the appeal as there was no merits in the

contentions raised by the petitioners, which also came to be

dismissed on challenge made before respondent No.2-

Deputy Commissioner in the revision petition, thereby

affirming the order of the Assistant Commissioner.

14. Learned counsel further contends that the

document of 'Kabuli Patra', since signed and consented by

other legal representatives of late Sri Channagouda Patil, the

erstwhile owner, there was no need for issuance of notice to

the parties. Hence, the mutation entries were rightfully

changed in the name of respondent No.6. He also contends

that in case the petitioners were aggrieved by the change of

mutation entry on the basis of 'Kabuli Patra', which was

consented too by them. It was left open for them to

challenge the same before the appropriate Civil Court by

seeking relevant directions for appropriate remedies which

has not been done in the present case. Hence, there is no

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merit in the petition preferred by the petitioners and the

orders passed by the respondents No.2 to 4, it does not call

for any interference and petition deserves to be dismissed.

15. Having heard the learned counsel for both parties,

it is not in dispute that the erstwhile owner late Sri

Channagouda Patil was owner of Sy.No.62/1 measuring 08

acre, 16 gunta in Govanakoppa village, Muragod Hobali,

Savadatti Taluka and Belagavi District. When an appeal is

preferred before the Assistant Commissioner challenging the

mutation entries made by the Tahashildar on the ground that

a fraudulent document has been presented without consent

of the legal heirs and it is an un-registered document. The

Assistant Commissioner ought to have applied his mind

before passing the impugned order as to whether the

provisions of Section 129 of the Act, 1964 has been followed

with regard to issuance of notice and as to whether provision

2 to Section 128 of the Act, 1964 is followed if the alleged

document is a registered document and ought to have

considered the matter by applying these principles and the

principles laid down by this Court in several judgments when

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the matter relates to immovable properties of un-registered

document presented for change of mutation entries. In the

present case, the petitioners alleged that document so

presented by respondent No.6 is a fraudulent, concocted and

fabricated document.

16. Further, there was no consent provided by the legal

heirs of late Sri Channagouda Patil and it is not a registered

document in the eye of law. Admittedly, and when such

being the case, Tahashildar could not have changed the

mutation entries. He should have issued notice to the

concerned parties, who are legal heirs of late Sri

Channagouda Patil including Sri Channagouda as he was

alive at the time of conducting enquiry under Section 129 of

the Act, 1964 given a fair hearing and decided the matter in

accordance with law. This having not been done and also

opining if there is a dispute with regard to the property by

rival claimants, the Assistant Commissioner does not have

powers to decide the question of title or ownership of

property, the impugned order passed is not sustainable in

the eye of law, the same deserves to be set aside and

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quashed. Challenging the order of the Assistant

Commissioner before the Deputy in revision, the revisional

Court has also not considered all these facts and without

application of mind dismissed the revision petition affirming

the order passed by the Assistant Commissioner.

17. Learned counsel for the petitioners relies on the

Judgment of the co-ordinate Bench of this Court in the case

of Sri Hanmantappa vs. The Municipal Commissioner,

Yadgir and others reported in 2022 (4) KCCR 3843. The

said matter has extensively deals with the question of fraud

alleged by one of the party while transfer of the entries with

regard to unregistered document by the revenue authorities.

Prima facie on perusal of the document that is 'Kabuli Patra',

it is apparently seen that there is absolutely no mention of

survey number, village, extent of land and the name of

village mentioned in 'Kabuli Patra' is different Hittanagi

village, whereas the village is Govanakoppa, Muragod

Hobali, taluka Savadatti, District Belagavi. According to the

petitioners, the Sy.No.62/1 measuring 08 acre 16 guntas,

which is also not forthcoming in the said alleged 'Kabuli

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Patra', which is disputed by the petitioners. These aspects

have been totally ignored by the Tahashildar, Assistant

Commissioner as well as the Deputy Commissioner.

18. Having gone through the Judgment relied by the

learned counsel for the petitioners, the said judgment is

squarely applicable to the present case on hand. The fraud is

seriously alleged against the 6th respondent while filing the

concocted 'Kabuli Patra' to change the mutation entry by

concocting the document by taking the fabricated signatures

of the consenting parties i.e., legal heirs of Sri Channagouda

Patil. It is needless to mention that fraud vitiates all

proceedings as contemplated in the case of Meghmala and

others vs. G. Narasimha Reddy and others, reported in

(2010) 8 SCC 383, which is extracted in the

aforementioned Judgment for the sake of better

understanding paragraph No.25 of the said Judgment is

extracted :

"25. Fraud is an intrinsic, collateral act, and fraud of an egregious nature would vitiate the most solemn proceedings of courts of justice. Fraud is an act of deliberate deception with a design to secure something, which is otherwise not due. The expression "fraud"

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involves two elements, deceit and injury to the person deceived. It is a cheating intended to get an advantage. (Vide Dr. Vimla Vs. Delhi Administration AIR 1963 SC 1572; Indian Bank Vs. Satyam Fibres (India) Pvt. Ltd. (1996) 5 SCC 550; State of Andhra Pradesh Vs. T. Suryachandra Rao AIR 2005 SC 3110;"

19. Admittedly, in the present case, respondent No.6 is

not a family member neither he stated in the said application

for mutation entry that she is a family member of late Sri

Channagouda Patil. Other question that falls for

consideration is, there is delay of 18 years in filing the

appeal by the petitioners herein. It is stated by the

petitioners that they were under the impression that the

mutation entries were still standing in the name of their

father and they realized only in the year 2020 when they

applied for compensation because of the floods and the crops

destroyed and when they applied they realized that the

entries were changed by the Tahashildar by the impugned

orders. No doubt, delay is an important aspect to be

considered while entertaining an appeal. But however, delay

has to be looked at in a very pragmatic manner and it is not

the number of days of delay that requires to be considered.

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It is the cause for delay and the reasons assigned for

causation of the delay that requires to be seen in such

circumstances, while condoning the delay and appreciating

the matter on merits.

20. The second aspect would be that when a stranger

approaches the authorities and applied for change of

mutation entry and the authorities, should verify compliance

of the provisions of Section 128 (1) and (2) or section

129(2) of the Act, 1964. The duty is cast upon the appellate

authority to look into the aspects alleged in the appeal in a

careful manner by applying its mind and pass a considered

order. Having not done so, having dismissed the appeal

solely on the ground of delay, in my humble opinion, may

not be appropriate and proprietary demand that when there

is a fraud alleged and delay ought to have been condoned

and the main matter ought to have been decided on merits

rather than dismissing it on the ground of delay itself.

Therefore, looked at any angle, the impugned orders passed

by the respondents is not sustainable in the eye of law. The

same will have to be set aside and quashed. This Court

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having looked at the alleged document styled in the name of

'Kabuli Patra' does not augur well with the document to be

truthful or genuine. But however, no opinion is expressed by

this Court that it is to be decided in appropriate proceedings.

Be that as it may, the impugned orders passed are

unsustainable in law. Accordingly, I pass the following:

ORDER

(i) Petition is allowed.

(ii) The order dated 21.12.2023 passed by the

2nd respondent vide Annexure-H is hereby

quashed and the order dated the 28.12.2022

passed by the 3rd respondent vide Annexure-

G is hereby quashed so also the order dated

10.07.2022 change of mutation entries by the

5th respondent-Tahashildar vide Annexure-D

and dated 03.06.2022 at Annexure-E is hereby

quashed.

(iii) Writ of mandamus is issued to respondent

No.4 to restore the name of erstwhile

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owner/legal representatives with regard to

land bearing Survey No.62/1 to the extent of

08 acre, 16 guntas of Govanakoppa village,