Buddesab Hussainsab vs Basavantappa Channabasappa and Another

Sri K.V. Narayana Raju:-Revision 1191/78 filed by Buddesab is directed against the order dated 4-11-1978 passed by the learned Special Deputy Commissioner, Dharwad in BDA. AP. 1/ 78-79 confirming the order dated 27-3-78 passed by the learned Assistant Commissioner, Dharwad in No. BDD. AP 8/77 dismissing the appeal from the order dt. 13-9-1977 passed by the learned Tahsildar Hubli in BDD. SR. 228 directing the appellant to vacate 2 acres 20 guntas from Sy. No. 274 of Ingalhalli, Hubli.

Revision 49/79 is directed against the order dated 20-12-1978 passed by the learned Special Deputy Commissioner, Belgaum in RB. BND. AP. 9/78 confirming the order dated 30-5-1978 passed by the learned Assistant Commissioner, Chikodi in BND. AP. 3/77 confirming the order passed by the Tahsildar calling upon the appellant to vacate 1 gunta and 12 annas from Sy. No. 334/1-2B of Nippani village.

Revision 72/80 is directed against the order dated 26-3-1980 passed by the learned Deputy Commissioner, Belgaum dismissing Apl. RB. LND. AP 18/78 from the order dated 23-10-1978 passed by the learned Assistant Commissioner, Bailahongal in BND. AP. 678/78 from the order dated 2-12-1977 passed by the learned Tahsildar, Gokak in BND. SR. 4 determining the boundary between Sy. Nos. 141/2 and 141/1 of Gokak and directing the eviction of the petitioner from 1 acre 26 guntas of Sy. No. 141/1 belonging to respondent Ramachandra. The petitioner Kenchawwa claims that she is the tenant of Sy. No. 141/2 belonging to respondent-2 Yamunappa.

These three revision petitions under S. 56 of the Karnataka Land Revenue Act are in relation to more or less the same type of proceedings. In each case on the request of the respondent the Tahsildar had purported to determine the boundary between his holding and that of the petitioner under S. 140 of the Land Revenue Act, and directed that the petitioner who was found to be in possession of land in the adjoining field should vacate the land which did not appertain to his own field.

This Tribunal has held in a case reported in Basavannappa v. Gundeppa, 1977 KLJ Tri. 60, that the power conferred on the Deputy Commissioner or the Tahsildar under S. 140 of the Land Revenue Act to decide the dispute and determine the boundary is not the same as deciding the ownership of a person over the land which may be within a survey number; and that unless there has been a settlement of the boundary dispute by arbitration under S. 141, the Tahsildar cannot under S. 142(2) of the Land Revenue Act proceed to evict any person from the land in his possession. That case was decided on 12-1-1977 and the said ruling has been relied upon in several subsequent cases.

The petitioners in these three cases relied upon the said decision of the Tribunal and the counsel for the respondent urged that the said decision 1977 Kar. LJ. (T) 60 should be re-considered. We are unable to see any good reason for taking a view different from the one taken in that decision.

Ss. 137 to 147 are in Chapter XII under the heading boundaries and boundary marks. S. 137 deals with determination of village boundary, and S. 138 with settlement of village boundary by agreement. S. 139 lays days down the procedure in case of disagreement or dispute. Likewise S. 140 refers to determination of boundary of lands forming a Sy. No. or a holding, and S. 141 deals with the settlement of boundary dispute by arbitration. It may be noticed that Ss. 137 and 140 deal with the determination of the boundary, while Ss. 139 and 141 deal with settlement of boundary depute by arbitration. There is a clear distinction intended and maintained between a mere determination of boundary by Survey Officers or other Officers, and settlement of boundary dispute by the arbitration of a Survey Officer on the request of the parties concerned in a boundary dispute, There can be no doubt that while determination of the boundary is one sided, a settlement of the boundary arises only when there has been fixation of the boundary at the request of the parties to the dispute. S. 142 lays down the effect of the settlement of a boundary. S. 142(1) reads:

"142. Effect of the settlement of a boundary-(1) The settlement of a boundary under this Chapter shall be determinative- (a) of the proper position of the boundary line or boundary marks and (b) of the right of the landholders on either side of the boundary fixed in respect of the land adjudged to appertain or not to appertain, to their respective holdings."

The words "settlement of a boundary" in this Chapter can refer only to the settlement of the boundary of a village under S. 138 or the settlement of boundary of two fields under S. 141, both by arbitration, and definitely not to a mere determination of a boundary in the absence of an agreement between the parties to the dispute. S. 142(2) says that where the boundary has been so fixed, the Tahsildar may at any time summarily evict any landholder, who is wrongfully in possession of any land which has been adjudged in the settlement of a boundary not to appertain to his holding or to the holding of any person through or under whom he claims. We fail to understand how S. 142(2) of the Land Revenue Act can be invoked where there has been no settlement of the boundary either under S. 138 or under S. 141 of the Land Revenue Act.

We should only reiterate that the Tahsildar has no power at all to evict summarily any person consequent upon a mere determination of the boundary under S. 140 of the Land Revenue Act. It is agreed in all these cases boundary was determined at the request of the respondent who complained of encroachment. The Tahsildar cannot adjudicate the boundary dispute by a mere determination of the boundary. The special and rare power of deciding a dispute of a civil nature is conferred on the Tahsildar or the Survey Officer only when the parties to the dispute agree in writing and request the Survey Officer or the Tahsildar to settle the dispute between them. There has been no such agreement or settlement and therefore we must set aside all the orders passed by the authorities below.

In the result all the three revision petitions are allowed and the orders passed by the authorities below reversed.