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Judgment
L. Narayana Swamy, J.—The petitioner is challenging the order passed by the Assistant Commissioner in R.A. No. 149/1996-97 dated 19,05.2008 and also the order passed by the Deputy Commissioner in No. RA/117/2005-06 dated 05.04.2008 and sought for quashing the same.
The petitioner preferred an appeal before the Assistant Commissioner against the revenue entries made in MR No. 344-2/95-96 & 344-3/95-96. The Assistant dispute between the petitioner and the 4th respondent is civil in nature, hence in order to sort out the dispute, they have to approach the competent civil Court. Further, the Assistant Commissioner has held that the entries made in the revenue records is on the basis of the sale deed dated 09.09.1970. The sale deed has been executed by Shamanna and his brother Narayanappa. Against the order passed by the Assistant Commissioner, the petitioner preferred a revision before the Deputy Commissioner, Kolar District After issuance of notice and after verifying the entire records, the Deputy Commissioner has affirmed the older passed by the Assistant Commissioner. Hence this petition.
The first contention of the petitioner is that the petitioner''s father namely Beerappa was the owner in respect of land in survey No. 37, old No. 11/1, measuring 2 acres 25 guntas of Chakothimmanahalli, Duggasandra Hobli, Mulbagal Taluk and the said land was mortgaged in the year 1968 and the same was redeemed in the year 1982-83. Between the said period, late Beerappa has not executed any sale deed. The land has been sold by Sri Shamanna and Narayanappa, which is a defective transaction as they cannot transfer any title since their names were not entered in the revenue records. Accordingly, the entire sale deed is null and void and the Tahsildar has entered the name of the 4th respondent, which is illegal and contrary to the provisions of Sections 128 & 129 of the Karnataka Land Revenue Act, 1964 (for short, ''the Act'').
The second contention of the petitioner is that till 1983, the land was in the possession of mortgagee and hence no right could have been transferred in favour of the 4th respondent and all these things have not been gone into by the Assistant Commissioner or the Deputy Commissioner.
The third contention of the petitioner is that since the vendors of the 4th respondent had no valid title, the same should have been verified before effecting revenue entries and no notice was issued to the petitioner''s husband in this regard. Hence, the entire exercise of mutation and the orders in appeal and revision are contrary to the provisions of the Act and accordingly, prayed for setting aside the impugned orders.
The fourth contention of the petitioner is that through out the proceedings before the Assistant. Commissioner and the Deputy Commissioner, no registered sale deed has been produced for the purpose of verification before the revenue authorities. Hence, the petitioner suspects the very existence of the sale deed itself.
In support of his contention, the learned Counsel for the petitioner has relied on the judgments of this Court, reported in 1995 (6) Kar.L.J. 133 (in the case of Ningamma Vs. Shivarajegowda and Others, and Smt. Devamma Vs. Somegowda and Others, and submitted that on any occasion, before effecting revenue entries, issue of notice to the affected parties is necessary and any order passed without notice contravenes the provisions of law.
The learned Counsel for the 4th respondent submitted that even during the period of mortgage, the land could be sold and revenue entries could be changed. The sons of late Beerappa have sold the land in the year 1970 in favour of the 4th respondent Accordingly, the revenue authorities have no authority to object the entry made in the name of the 4th respondent in the revenue records. Hence, there cannot be any defect in making the entries.
Secondly, it is submitted that the alleged sale deed is not produced before the revenue authorities and also before this Court.
At this stage, the learned Counsel for the 4th respondent would submit that if an opportunity is given, the sale deed would be produced.
Thirdly, the learned Counsel for the petitioner would submit that the appellate authority and the revisional authority have not decided the rights of either of the parties. They have permitted the parties to approach the competent civil Court in order to establish their rights. Hence, this Court cannot interfere with the said outers. Accordingly, the learned Counsel for the 4th respondent prays for dismissal of the petition.
Sri R. Kumar, learned HCGP submits that the Assistant Commissioner has verified all the documents pertaining to survey No. 37 and also verified the sale deed dated 09.09 1970 and further verified the mortgage entered into between the parties and felt that the matter requires to be resolved before the competent civil Court. The Assistant Commissioner has verified even the registered sale deed also. Accordingly, parties were advised to approach the competent civil Court.
I have heard the arguments made by the learned Counsel for the parties.
In the light of the submissions made by the learned Counsel for the respective parties, the following points would arise for my consideration:
Whether the revenue authorities registered the name of the 4th respondent/purchaser of the land in question on the basis of the registered sale deed?
Whether the revenue authorities verified the registered sale deed and decided the rights of the parties before entering the name of the 4th respondent/purchaser of the land in the revenue records?''
The contention of the petitioner is that late Beerappa was the owner in respect of the land in question. (sic) any one. The land in question is the self-acquired property of late Beerappa and except him nobody can claim any right over the property. When things stood thus, the sons of late Beerappa cannot sell the property to the 4th respondent. It is not made known as to whether late Beerappa was alive on the date of alleged transaction. Presumption can be drawn that late Beerappa was alive as on the alleged date of transaction, since the land was redeemed in his favour. If a person acquires right over the property, he possesses ownership of the property. Beerappa has not sold the land to any other persons. But the sons of late Beerappa sold the land in question to the 4th respondent in the year 1970. The said sale deed has not been challenged either by the petitioner or late Beerappa under the provisions of the Act. Whenever a document is registered in the Office of the Sub-Registrar, the revenue officer has to obtain registration certificate and change the revenue entries. The revenue authorities are duty bound to verify who is the owner of the property and who sold the land to the purchaser.
In the instant case, without possessing ownership of the land, the vendors namely Shamanna and Narayanappa have sold the land in question to the 4th respondent. This should have been verified by the revenue authorities, before entering the name of the 4th respondent in the revenue records.
The contention of the petitioner is that at no point of time, registered sale deed has been produced before the Assistant Commissioner or the Deputy Commissioner. Even the 4th respondent has not produced the name before this Court.
In the internal para 6 of the order of the Assistant Commissioner, there is a reference that even after issuance of notice to the 4th respondent neither the party nor his counsel has produced any document before the Assistant Commissioner to defend the case of the 4th respondent, with which we can draw an inference that if the alleged sale deed was in existence, the same should have been produced before the Assistant Commissioner or the Deputy Commissioner. Though the same was not produced before the revenue authorities, the 4th respondent should have produced the sale deed before this Court at this stage also.
The judgments are referred by the learned Counsel for the petitioner to the extent that the revenue authorities before changing mutation in favour of the purchaser, a notice should have been issued to the parties. The ownership of a party though not a fundamental right, it is a constitutional right available to the owner of a property. Except the owner, nobody can exercise the right conferred on him. If the sale deed is executed without permission of the owner of the property, then the authorities under any statute of law cannot transfer the revenue entries, without there being any notice to the affected party. Basically while effecting mutation in the revenue records, the prescribed authority should verify the documents to the effect that who is the previous owner and who is the subsequent purchaser and whether the previous owner has transferred his title to the subsequent purchaser or a stranger has done the same. If some surrogate or stranger executes the sale deed, then notice should go to the owner of the property in question. Hence, I answer the aforesaid points in favour of the petitioner.
u/s 128 of the Act, the revenue officer/Tahsildar has to verify whether the name of the owner of the property finds a place in the revenue records and he has transferred the land to the purchaser. If the name of the owner appears, then he can effect the mutation in the revenue records. If a person disputes the same, then he has to place reliance on the disputed documents before the revenue authorities.
Under Rule 65 of the Karnataka Land Revenue Rules, 1966 (for short, the Rules''), notice is required to be issued to the affected person. Section 128 of the Act says that "any person acquires right 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 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. The provisions of Section 128 clarifies that any person acquires right by virtue of a registered document shall be exempted from the obligation to report to the prescribed officer."
In the said provision, it is made clear that the duty is cast on the revenue authorities to verify whether the mutation made in respect of a property in favour of a person has affected the right of the previous owner of the property or not. In the instant case, from the entries made by the Tahsildar, it is seen that the petitioner has not been issued a notice in this regard. Hence, action on the part of the Tahsildar violates Rule 65 of the said Rules.
In view of the above, I pass the following:
ORDER
The petition is allowed. The impugned orders passed by the Tahsildar, Assistant Commissioner and the Deputy Commissioner are set aside. The Tahsildar is directed to verify from the alleged sale deed as to whether late Beerappa was the absolute owner of the land in question as on the date of execution of alleged sale deed and whether the alleged sale deed was executed by late Beerappa in favour of the 4th respondent. If the alleged sale deed is executed by the sons of late Beerappa, then the Tahsildar is directed to verify whether late Beerappa had transferred his right to his sons, as on the date of execution of the alleged sale deed in favour of the 4th respondent. The petitioner and the 4th respondent are directed to appear before the Tahsildar on 03.08.2009, without awaiting any notice from the Tahsildar and the Tahsildar is directed to pass appropriate orders in accordance with law within a period of four months from the date of receipt of a copy of this order.