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Judgment
Huluvadi G. Ramesh, J.—Petitioners have sought for quashing the order dated 3.6.2007 - annexure D in RRT (2) DAS 10/2007-08 certifying the entries in the name of the 3rd respondent in respect of land in Sy. No. 131/3 measuring 1.25 acres of Narayanakere Village, Hoskote Taluk, Bangalore; to restore the mutation entries in the names of the petitioners in respect of the said land to the said extent; to quash the order passed by the Karnataka Appellate Tribunal on 17.1.2008 confirming the order of the Assistant Commissioner; to quash the order of the Tahsildar at Annexure F and to declare that the sale deed executed by the 3rd respondent in favour of Smt Lakshmi/5th respondent as null and void.
Sy. No. 131/3 measuring 1.25 acres is said to be the property granted in favour of the father of the petitioners pursuant to the order of the Assistant Commissioner under the Karnataka Religious & Charitable Inams Abolition Act by order dated 17.12.1963. The name of the petitioner''s father was entered in the Mutation Register during 1965-66 in No. 97. On the application filed by the 3rd respondent stating that she is in occupation of the said land, by producing a document alleged to have been ordered by the la respondent - Assistant Commissioner granting occupancy rights in her favour, an order came to be passed by the competent authority/Tahsildar on 3.6.2007 certifying the entries in favour of the 3rd respondent. However, this has been disputed by the petitioners.
In the meanwhile, 3rd respondent also, acting upon the mutation entries being made by the Tahsildar, sold the property in favour of one Lakshimi/5th respondent. Questioning the act of the Tahsildar in certifying the mutation entry and, also seeking for cancellation of the sale deed executed by the 3rd respondent in favour of the 3rd respondent on such mutation entry ordered to be made, petitioners are before this Court on the ground that the order passed by the Tahsildar is on a fraudulent document produced by the 3rd respondent stating that she had been granted occupancy rights by the Assistant Commissioner although no such order has been passed.
According, to the petitioners, the 1st respondent/Assistant Commissioner himself has voluntarily appeared before the Court confessing that he has nor passed any such order and the so called order produced by the 3rd respondent is a fake order. In this regard, even a complaint is filed against the 3rd respondent and after inquiry, charge sheet is also filed.
So far as the order of the Tahsildar to make entries in the Mutation Register is concerned, it will become a nonest order since the order so passed is on the basis of a fraudulent document being produced by the 3rd respondent. Accordingly, the said entry made by the Tahsildar as at annexures D and F have to be quashed.
As regards making entries of the names of the petitioners are concerned, it is for the respondent authorities to lake action to enter the name of the petitioner at the earliest in the revenue records. The question raised by the petitioners is that, for no fault of theirs, they have to approach the civil court. Apprehension expressed by the petitioners'' counsel is that, since the cancellation of the sale deed amounts to seeking for a declaration, it would not be nominal court fee that may have to be paid before the civil court and in stead, they have to pay the court fee on the consideration in the sale deed or as per the market value. Accordingly, they have sought for a direction to the 3rd respondent or the respondent authority to pay the costs by way of court fee so as to fight the litigation.
Government Pleader submitted that Section 7(2)(a) of the Act provides for exception regarding the court fee payable on market value of the land in suits falling u/s 38 (suit for cancellation of decree) and it is twenty live times the revenue so payable.
In the decision in Karnataka Housing Board, Bangalore v. Yamanur Sab and Ors. 2000 (3) KCCR 1910 it is held that when the prayer in the suit is one for setting aside the sale deed, therefore, the property is to be valued at least at the value given in the sale deed. In another decision in the case of Bheemanda Devaiah Vs. Kanjithanda Karumbaiah, wherein it is held as per Section 7(2)(d) of the Court Fees & Suit Valuation Act, market value of the land shall be the market value of the land themselves as on the date of the presentation of the plaint.
Government Pleader submits that the above judgments are not applicable to the ease on hand as they are in respect of other lands. The judgment in the ease of Bheemanda Devaiah''s deals with payment of advalorem court tee on the basis of the market value at the time of presentation of the plaint whereas, in Karnataka Housing Board''s case it is observed that it is to be paid on the value mentioned in the sale deed and necessarily, it provides for payment of court ice for the purpose of declaration.
The above judgments are of course rendered in the usual course. When a question is raised as to what would be the court fee payable, what is to be considered is whether it is in respect of the entire property or a portion of the property which was sought to be declared.
Here is a case where prima facie it is proved that due to the fraudulent act of the 3rd respondent, registration was made pursuant to the order being passed by the Tahsildar. The order of the Tahsildar on verification, could not be sustained since the order is passed based on fraudulent document produced/created by the 3rd respondent. In the circumstances, also when criminal action has been initiated against the 3rd respondent and charge sheet has been filed noting that there is fraud being played in order to obtain an order from the Tahsildar, necessarily the 3rd respondent is involved in the commission of the offence at whose instance and for whose benefit the order has been passed.
For the present, in order to file a suit for declaration seeking for cancellation of the sale transaction executed by the 3rd respondent in favour of the 5th respondent, twenty five times the revenue so payable as provided in Section 7(2)(a) of the Act has to be paid by the petitioners at the time of filing the plaint and such declaration could be made only by the Civil Court as a matter of fact finding authority and an order could not be passed in a writ proceeding to cancel such sale deed executed by the 3rd respondent in favour of the 5th respondent.
Although an order has been obtained fraudulently by the 3rd respondent on the basis of which mutation entry is being made in the records and the 3rd respondent has sold the property in favour of the 5th respondent, in the circumstances, the names of petitioners be continued in the records in the place of their father in stead of the name of the 3rd respondent. Further, the order dated 8.4.2001 by the Secretary to the Government, Revenue Department has made it clear that an order is made by the Tahsildar, Hoskote on 10.12.2008 restoring the right of the bonafide owners of the land in question. It is for the respondent authorities to make the entry of the names of the petitioners in the revenue-records.
Further, since it is established that due to fraudulent transaction such a sale deed has been executed, there shall not be delay in disposing of the case by the trial court. It is for the petitioners to file the suit at the earliest. On such filing of the suit, it is for the trial court to dispose of the matter in accordance with law, after notice to the 5th respondent and so also act to the 3rd respondent. However, due to the deliberate act of the 3rd respondent, the petitioners are put to hardship by way of filing a suit for a declaration and it would meet the ends of justice if the 3rd respondent is imposed with const which is determined at Rs. 10,000/-, payable to the petitioner.
Petition is disposed of with the above observations while quashing the impugned orders at annexures D & F.