AI Structured Summary
Not yet generated for this judgment
Judgment
Hon''ble Mr Justice Huluvadi G Ramesh
Petitioners have sought for quashing the order dated 18.3.1989 -annexure H by the Land Tribunal, Hoskote in LRF A D 187:175-176 As illegal and opposed to law; issue appropriate order against respondents 3 to 4 for committing fraud and for such other orders.
According to the petitioners, one Venkatagiriyappa husband of the 1st petitioner was the absolute owner in possession and enjoyment of the property in Sy.No.44 of Devalapura Village measuring about 5.14 acres having purchased the same under sale deed date 6.8.1949. It is alleged, the 3rd respondent having tampered the revenue records filed a frivolous application in Form 7 claiming occupancy rights in respect o the property before the Land Tribunal, Hoskote. The RTC extracts issued by the revenue authorities for the year 1968-69 up to 1973-74 clearly indicate the name of the husband of the petitioner as khabjedar and cultivator. However, according to the petitioners, by tampering the RTC, the 3rd respondent for the year 1973-74 up to 1976-77 produced the same before the Land Tribunal which are at annexure B series. According to the 1st petitioner, her husband earlier had challenged the order of the Land Tribunal granting occupancy rights in favour of the 3rd respondent in WPs 221-222/1977 and the same was allowed and matter was remanded to the land Tribunal for fresh disposal. In the meanwhile, her husband had executed nominal sale deed in favour of the father of the 2nd petitioner. However, this 2nd petitioner''s father did not make any efforts to obtain the katha and the revenue entries and he died subsequently on 10.6.1997 and thereafter, 2nd petitioner succeeded him to the estate. It is also stated, 2nd respondent Land Tribunal had conferred occupancy rights in favour of 3rd respondent to an extent of 1.30 acres However, after remand once again, the Land Tribunal granted occupancy rights in respect of 5.14 acres in favour of 3rd respondent during March 1989. As per the grant order dated 16.11.1989 issued in favour of the 3rd respondent, no sale could be made for fifteen years i.e., till November 2004. According to the petitioner, after remand, no notice is said to have been given to Venkatagiriyappa during his life time and, he died on 3rd September 1986 leaving behind the 1st petitioner, the only legal heir. According to the petitioners, this Venkatagiriyappa had not been served with notice during his life time however, after his death also, even without bringing the petitioner on record and on the basis of false affidavit by the 4th respondent -Munireddy, against whom Venkatarigiriyappa had obtained decree for declaration and junction stating that there are no legal heirs of late Venkatagiriyappa, the Land Tribunal has granted occupancy rights in respect of entire land to 3rd respondent. Also according to the petitioner she came to know about the order passed only in Sept 2004 when there was disturbance to her possession hence, this petition filed on 17.11.2004. It is stated that 5th respondent purchased the entire extent of land under two sale deeds from Krishnappa and sale deed is also signed by Respondents 4 and 7. It is the specific case of the petitioners, based on the false affidavit filed by 4th respondent - Munireddy, against whom the husband of the petitioner had obtained a decree of declaration and injunction, that there are no other legal heirs, of Venkatagiriyappa, an order has been obtained by the Land Tribunal granting occupancy rights in respect of entire land to 3rd respondent. Thus, according to the petitioner, throughout she is in possession of the suit property, she was not aware of the exparte order and since there is a threat to possession as such, writ petition is filed on 17.11.2004.
According to the 5th respondent, the Land Tribunal issued notice to all concerned parties on remand and granted occupancy rights in favour of the 3rd respondent by order dated 18.3.1989 The grant certificate issued on 16.11.1989 stipulates no sale could be made for fifteen years i.e., till November 2004 and way back in the year 1990-91, mutation entries were changed to reflect the name of the 3rd respondent, mutation entries were changed to reflect the name of the 3rd respondent. At that time, no steps were taken by the petitioner to object such change. Also it is stated on 21.2.1991, petitioner made an application to the Tahsildar, Hoskote for receiving compensation on behalf of Venkatagiriyappa for the grant of land made to the 3rd respondent Krishnappa. As such, petitioner is not aggrieved by the order of the Land Tribunal dated 18.3.1989. If there was any fraud played by Munireddy, she would not have made any application for compensation. Petitioner''s signature on the application has been marked as Ex.D3. The forensic report is found to match with the specimen signature. As such the application was genuine. Also are order is made by the Tahsildar, Hoskote on 23.2.1991 for release of compensation of Rs.1370/- in favour of petitioner pursuant to the order of the Land Tribunal. That clearly depicts that petitioner was acting pursuant to the order of the Land Tribunal dated 18.3.1989 and the forensic report does not state that signatures do not match. But it only says signature on the receipts were too smudged for giving any finding. It is also contended that, in the office file also it is noted that compensation amount is released to the petitioner. The 3rd respondent and his sons involved in a partition suit, later got it settled and issued public notice in Vijaya Karnataka on 21.10.2004. But, petitioner did not file any objection to the public notice. By November 2004, fifteen years bar period as per the Grant Certificate was due to complete. Petitioners filed the writ petition challenging the order of the Land Tribunal dated 18.3.1989. The writ petition is withdrawn by the parties. Even prior to the sale, the 5th respondent issued a public notice on 17.9.2005 inviting objections regarding purchase of land in Sy.No.44. On 4.10.2005, the 5th respondent purchased land in Sy.No.44 from 3rd respondent Krishnappa. The order dismissing the present petition was recalled as the petitioner stated that she did not sign the memo of withdrawal and this is done only to extract money from the 5th respondent. This Court dismissed WP 22834/2005 challenging the same order dated 18.3.1999, filed by one P Jayachandra on 11.6.2007. In that, petitioner was a respondent. This Court also dismissed WP 3331/2006 filed by the petitioner against the order of the Land Tribunal dated 23.12.1981 on 11.6.2007.
According to the petitioner''s counsel, 4th respondent filed a false affidavit stating that Vekatagiriyappa had no legal representative other than himself whereas petitioner is undisputedly the legal representative of Venkatagiriyappa and she has been neither notified nor brought before the Land Tribunal. Relying solely on the basis of collusive statement, Land Tribunal has granted occupancy rights. The order of the Land Tribunal is not a speaking order. In the RTC for the year 1973-74 i.e., as on 1.3.1974, name of Venkatagiriyappa is shown as ''svantha'' and it is also endorsed by the revenue authorities As such, it clearly establishes that petitioner being a necessary party, was not made as a party. In this regard, counsel relies upon the case of Khetrabasi Biswal Vs. Ajaya Kumar Baral and Others, wherein referring to O 1 R 9 and 10(2), CPC for non-joinder of necessary parties, it is held order passed is nullity and has no binding effect. As such, collusion and fraud has affected the right of the petitioner. In this regard, learned counsel has also relied upon the Apex Court decision in the case of Ram Chandra Singh v. Savitri Devi & Ors - (2003) 8 SCC 319 to contend that the court has got inherent jurisdiction to grant relief on such application and principles of resjudicata will not apply if the decree is found to have been obtained by fraud and, counsel has also relied on one more case on the point in the case of Indian Bank Vs. M/s. Satyam Fibres (India) Pvt. Ltd., Further, counsel has relied upon the decision in the case of Shri K. Ramadas Shenoy Vs. The Chief Officers, Town Municipal Council, Udipi and Others, to contend that acquiescence cannot validate a void order and one more decision on the point in the case of Union of India (UOI) and Others Vs. Naman Singh Sekhawat, . Counsel has also relied on the case of State of Orissa & Ors v. Ms. Surya Rana - 2001 (8) Supreme 519 to contend that when an order is obtained by fraud, delay will never come in the way of setting aside such orders as it will be against public policy.
It is argued by the petitioners'' counsel regarding reliance placed on the application, voucher and the register based on which it is contended that the petitioner has withdrawn the amount and obtaining of the LTM of the petitioner, that it may be the hand work of the 4th respondent. The opinion of the finger print expert on the LTM found on the voucher cum receipt and the register which were referred to him is, minimum parameters for comparison were not available. As such, it is clear that the LTM on the receipt as well as the register is not that of the petitioner Venkatamma as such, no inference could be drawn that she has withdrawn the money. Entries in the RTC register itself is clear that the name of Venkatagiriyappa is mentioned in the cultivators column as ''svantha'' which clearly indicates that land was under personal cultivation and the land does not vest in the State Government under the provisions following the procedure as required under S.128 and 129 of the Karnataka Land Revenue Act depicting the name of the 3rd respondent or any other person has no evidentiary value. As such, presumption is not available under S.133 of the Act as is held in Bhimappa Channappa Kapali (Deceased) by L.Rs and Others Vs. Bhimappa Satyappa Kamagouda and Others, . In view of the collusion and fraud on the part of respondents, it is stated, petition has to be allowed.
Counsel representing respondents 3(a) to (d) have filed objections contending that Venkatagiriyappa was the land lord of Sy.No.44 to an extent of 5.14 acres and that the 3rd respondent Krishnappa was the tenant and in the year 1975 he filed Form 7 claiming occupancy rights however, occupancy rights were granted to an extent of 1.30 acres and he challenged the said order before this Court and on the matter being remanded, the Land Tribunal issued notice to Venkatagiriyappa and the 3rd respondent. The 4th respondent appeared before the Tribunal and filed an affidavit staling that he is the only legal representative and also that the 3rd respondent was cultivating the entire extent of 5.14 acres. Thereafter, the Tribunal granted occupancy rights in favour of the 3rd respondent. It is also their case that, the petitioner Venkatamma sought for compensation on 21.2.1991 and also received the compensation as per receipt dated 23.2.1991. It is also stated, the petitioner was all along aware of the order of the Land Tribunal and she stating that the order dated 18.3.1989 is obtained by fraud is baseless as she has personality received the compensation. Further, it is stated, the 3rd respondent sold the property to the 5th respondent by a sale deed dated 4.10.2005 and that the 5th respondent is in possession of the same and only with a view to extract more money, though the writ petition was dismissed for non-prosecution, an application is filed for recalling and the matter is contested.
The 4th respondent - Munireddy has also filed statement of objections contending that at the relevant point of time, he had been serving in the Army and he had no knowledge that the 3rd respondent tampering with the revenue records, had filed the application in Form 7 claiming occupancy rights before the Land Tribunal. It is also stated, when the Land Tribunal issued notice in the name of the husband of the 1st petitioner to his old address by which time, the petitioner''s husband was no more, it reached him and when he took the notice to the 1st petitioner, on her instructions, he appeared before the Tribunal and stated that Venkatagiriyappa was no more and the 3rd respondent was the tenant and based on his statement, the Tribunal has passed the order. It is also stated, there is no collusion between him and the 3rd respondent.
Further, counsel for the 5th respondent has filed written arguments contending that as per the order of the Land Tribunal granting occupancy rights in favour of the 3rd respondent to the extent of 5.14 acres in Sy.No.44, mutation entries are made in 1991 and no steps are taken by the petitioner to object such change, that depicts petitioner was not aggrieved by the order of the Land Tribunal dated 18.3.1989 and there was no fraud and, she would not have made any application if really there was fraud. The petitioner''s signature on the application marked as Ex.D3 sent to the Forensic Laboratory for comparison was found matching with the specimen signature. It is contended as per the forensic report, signature on the receipts were too smudged for giving any opinion. If the petitioner had not received the amount, no such file would have been built. Even during 2004 when public notice was issued on October 21st, petitioner has not filed any objection. During November 2004, when the fifteen years non-alienation period was due to complete, one Ashok filed a petition challenging the order of the Land Tribunal dated 18.3.1989. Even when public notice was issued by 5th respondent during September 2010, petitioner did not object. It is also specifically staled, order of dismissal of the present writ petition was recalled since the petitioner stated she did not file the memo of withdrawal and this was done only to extract money from the 5th respondent. It is also submitted, writ petition filed in 22834/2005 against the order of Land Tribunal dated 18.3.1989 by one P Jayachandra Reddy, came to be dismissed wherein Venkatamma was the respondent. Writ petition filed by Venkatamma in WP 3331/2006 is dismissed by this Court on 11.6.2007. Accordingly, learned counsel has relied upon the case of Haryana State Handlook & Handicrafts Corpn. Ltd v, Jain School Society - AIR 2004 SC 850 on the point of delay and contended that respondent need not wait for years to see that nothing was being done to utilise the land. When once petitioner received compensation for the land and she was not defrauded as such, she has lost her right. Also contending that present petition is filed after a lapse of 17 years; third party interest is created; delay has not been explained and nature and particulars of fraud has not been pleaded, she has relied upon the decision in the case of Situ Sahu and Others Vs. The State of Jharkhand and Others, . Learned counsel has also relied upon the decision in the case of M/s. Samant and Another Vs. Bombay Stock Exchange and Others, to contend that dismissal of the petition by the High Court on the point of delay and laches has been justified. She has also relied upon the decision of the Supreme Court in Sreedam Chandra Ghosh Vs. State of Assam and others, to contend that court should decline to intervene if there is delay in filing the petition and third party rights are created and also one more decision on the point in the case of Basanthi Prasad v. Chairman, Bihar School Examination Board & Ors - (2009) 6 SCC 679. Counsel has also relied on the case of R and M Trust Vs. Koramangala Residents Vigilance Group and Others, and also the decision in Banda Development Authority, Banda Vs. Moti Lal Agarwal and Others, on the point of delay. It is also contended the husband of the petitioner had sold a portion of 4 acres to one Changa Reddy on 6.5.1977 by way of nominal sale deed as such, when the right of Changa Reddy has been dismissed on the ground of delay in WP 22834/2005, nothing survives for consideration. Accordingly, learned counsel has prayed for dismissal of the petition.
In the light of the arguments advanced, let me consider whether the writ petition has to be dismissed on the ground of delay and laches; whether the order of the Land Tribunal suffers from illegality for want of non-joinder of necessary parties; whether there is fraud played on the petitioner; whether there is any proof of amount being drawn by the petitioner herself as compensation amount to contend that petitioner herself has drawn the compensation and, whether the order of the Land Tribunal needs interference at this point of time.
What is being noticed is, petitioner is a rustic lady and after remand of the matter by this court, after the death of original landlord Venkatagiriyappa, it appears somebody has represented to contend that there are no legal heirs of Venktagiriyappa. But surprisingly it is to be noted that petitioner is alive.
As regards the contention of the respondents that petitioner has drawn the compensation and also filed an application, might be under mysterious circumstances parties who are interested must have obtained the signature on the application and in that fact situation, the finding of the forensic expert may not assume much importance. On the very contention of the respondents that amount was drawn by the petitioner towards compensation, the receipt was referred to forensic expert and he has given an opinion that the thumb impression is too smudged as such, it cannot be exactly said that the petitioner has drawn the amount.
The order of the Land Tribunal has been assailed on the ground that till 1973-74, the name of Venkatagiriyappa the landlord continued in the RTC as such, question of tenancy does not arise arid also it is contended that the Land Tribunal did not consider the records available to the landlord while conferring occupancy rights and also after remand, without bringing the real and genuine legal representatives on record i.e., the petitioner who represents the original landlord, on the ground of somebody filing a memo to the effect that there are no legal representatives of deceased Venkatagiriyappa, order came to be passed without impleading the petitioner, behind her back, in suppression of the true fact In the circumstances, on going through the several decisions relied upon by the parties and their contentions and the documents produced, it could be presumed that since inception, there appears to be fraud played on the petitioner. In the circumstances, delay is immaterial. If fraud is discovered, while condoning the delay, this Court has to take a lenient view in the matter.
Might be that third party''s interest is created i.e., in selling the land which was granted in favour of the 3rd respondent to the 5th respondent. From the inception, the case suffers from suppression of facts. The Tribunal being a fact finding authority, has to look into the RTC available at the relevant point of time which were standing in the name of petitioner''s husband and also the effect of not brining the petitioner on record and order is passed on the basis of the memo filed to the effect that there are no Legal Representatives of Venkatagiriyappa despite the fact petitioner being the wife of late Venkatagiriyappa, is very much alive. Even the alleged thumb impression on the receipt for payment of compensation being smudged, and in the absence of any other cogent evidence, it is rather difficult for this Court to conclude that the case of the petitioner has no merit. Rather, as a matter of fact finding it is for the Land Tribunal to consider the above aspects in detail and to pass appropriate orders in accordance with law.
Since it is stated, third party interest is created, however, direction could be issued to the Land Tribunal to dispose of the matter in six months from the date of receipt of this order. Petition is allowed. Impugned order is set aside. Matter is remitted to the Land Tribunal for disposal of the matter in the light of the observation made above, in accordance with law. Send back the records.