SMT SHAILAJA P ALVA v. DEPUTY COMMISSIONER

(BY SRI. SESHU.V., HCGP FOR R1 TO R3 SRI. K.CHANDRANATH ARIGA., ADVOCATE FOR SRI. RAKESH KINI., ADVOCATE FOR R4 R12 SERVED – UNREPRESENTED V/O/D.20.01.2026, NOTICE TO R7, R9, R11, R13 & R4 D/W) THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING ORDER DATED 26.10.2021 PASSED BY THE DEPUTY COMMISIONER, DAKSHINA KANNADA DISTRICT, MANGALURU CERTIFIED COPY OF WHICH IS PRODUCED AT ANNEXURE-A AND QUASHING THE ORDER DATED 10.03.2015 ASSISTANT COMMISSIONER, MANGALURU SUB DIVISION, MANGALURU CERTIFIED COPY OF WHICH IS PRODUCED AT ANNEXURE-B AND ETC. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE R DEVDAS ORAL ORDER The petitioner is before this Court aggrieved of the impugned order dated 10.03.2015, passed by - 4 - NC: 2026:KHC:4650 WP No. 1429 of 2022 HC-KAR Assistant Commissioner, Mangaluru Sub-Division, Mangaluru at Annexure-B and the impugned order dated

26.10.2021, passed by the Deputy Commissioner, Dakshina Kannada District, at Annexure-A.

2. Facts briefly stated are that one Smt.Devaki and others acquired 42 cents of land in Survey No.69/2 of Belma Village, Mangaluru Taluk, Dakshin Kannada District in a family partition that took place in the year 1963. In the year 1987, Smt.Devaki and others sold 10 cents of land in favour of respondent No.4 under a registered sale deed dated 09.07.1987. The petitioner herein purchased 10 cents of land in Survey No.69/2 from Smt.Devaki and others under a registered sale dated 31.03.1997. Thereafter, the name of the petitioner was entered in the revenue records in terms of mutation order bearing M.R.No.7/1997-98. The 4th respondent filed an appeal before the Assistant Commissioner, in RRT/SR/110/2007- 2008, calling in question the mutation entry made in favour of the petitioner in terms of M.R.No.7/1997-1998. - 5 - NC: 2026:KHC:4650 WP No. 1429 of 2022 HC-KAR The Assistant Commissioner after hearing the 4th respondent and petitioner, passed the impugned order canceling the mutation entry in M.R.No.7/1997-98 dated

30.06.1997, while further directing the respondent- Tahsildar to enter the name of the 4th respondent in the revenue records pursuant to the registered sale deed dated 09.07.1987. The petitioner filed a revision petition before the Deputy Commissioner invoking Section 136(3) the Karnataka Land Revenue Act, 1964 (hereinafter referred to as ‘the Act’, for short) and the Deputy Commissioner dismissed the revision petition while upholding the orders passed by the Assistant Commissioner.

3. Learned Counsel for the petitioner submits that the Assistant Commissioner and Deputy Commissioner have exceeded their jurisdiction by passing the impugned orders. It is submitted that both the authorities have held that at an earlier point of time the 4th respondent purchased the property in question from Smt.Devaki and - 6 - NC: 2026:KHC:4650 WP No. 1429 of 2022 HC-KAR others and therefore, the name of the 4th respondent should have been entered in the revenue records. Learned Counsel submits that such disputed questions of title have been decided by the revenue authorities, which is not permissible in law. Learned Counsel submits that, firstly, it is disputed as to whether the same property which was earlier purchased by the 4th respondent was subsequently purchased by the petitioner. Secondly, Since there is a dispute on the title of the property, the revenue authorities could not have entered into such disputed questions of title, in terms of the law laid down by this Court. On both counts, the learned Counsel submits that the impugned orders cannot be sustained. Moreover, there is a question of delay, which has not been considered by the revenue authorities. The revenue entries were made in favour of the petitioner in the year 1997 and an appeal under Section 136(2) of the Act, was filed by the 4th respondent in the year 2007-2008, after a lapse of nearly 10 years from the date when which the revenue entries - 7 - NC: 2026:KHC:4650 WP No. 1429 of 2022 HC-KAR were made in favour of the petitioner. No plausible explanation is offered by the respondent. No application for condonation of delay was filed by the 4th respondent and therefore, it was impermissible for the Assistant Commissioner to have entertained such an appeal which was filed after lapse of nearly 10 years, without an application for condonation of delay.

4. Per contra, learned Counsel for the 4th respondent submits that the 4th respondent has never raised the question of title before the revenue authorities. All that the 4th respondent is seeking is, to enter her name in the revenue records on the strength of the registered sale dated 09.07.1987, which was at an earlier point of time, when compared to the sale deed obtained by the petitioner herein. The learned Counsel sought to press into service Rule 63 and Rule 64 of the Karnataka Land Revenue Rules, 1966, to contend that it was the bounden duty of the Tahsildar to have entered the name of the 4th respondent immediately after receiving information from - 8 - NC: 2026:KHC:4650 WP No. 1429 of 2022 HC-KAR the Sub-Registrar. Learned Counsel therefore submits that when the law provides that the name of the 4th respondent should have been entered in the revenue records automatically in terms of Rule 63 and Rule 64 of the Rules, the respondent authorities are right while pointing out to the date of two sale deeds, one claimed by the 4th respondent and the other claimed by the petitioner. Learned Counsel submits that the revenue authorities have not decided any disputed question of title and therefore, this Court should reject the writ petition. Learned Counsel for the 4th respondent has placed reliance on a decision of the Apex Court, in the case of Ganpatbhai Mahijibhai Solanki Vs. State Of Gujarat & Others, (2008) 12 SCC 353 to contend that the fraud vitiates everything. Therefore, the revenue authorities are right in passing the impugned order, noticing the fraud played by the petitioner. The learned Counsel has also placed reliance on a decision of a co-ordinate Bench of this Court in the case of Smt.Danalaxmi Vs. Deputy - 9 - NC: 2026:KHC:4650 WP No. 1429 of 2022 HC-KAR Commissioner and Others, in W.P.No.203043/2014 dated 06.01.2021, to support his contention, that in terms of Rules 63 and 64 of the Rules, the name of the 4th respondent should have been entered in the revenue records immediately after the J-slip was received by the Tahsildar from the office of the Sub-Registrar.

5. Heard the learned Counsel for the petitioner, the learned Counsel for the 4th respondent and the learned High Court Government Pleader and perused the petition papers.

6. A Full Bench of this Court in the case of Smt.Jayamma Vs. State of Karnataka and Others, AIR 2020 (NOC) 862 (KAR), has declared that the revenue authorities viz., the Tahsildar, Assistant Commissioner and Deputy Commissioner have no jurisdiction to decide the title dispute between the parties in respect of the immoveable property/properties. It is the exclusive domain of the competent Civil Court to - 10 - NC: 2026:KHC:4650 WP No. 1429 of 2022 HC-KAR adjudicate the dispute/title in respect of the immoveable property/ properties and ultimately if any decree is passed by the competent Civil Court, it will be binding on the parties as well as the revenue authorities. That being the position which has been reiterated at the hands of the Full Bench, of this Court which was also the case in many decided cases, it will be futile on the part of the learned Counsel for the 4th respondent to contend that he is not urging the question of title and the Assistant Commissioner has not decided or entered into any disputed questions of title. Such a contention cannot be accepted, since in an appeal filed under Section 136(2) of the Act, the Assistant Commissioner is required to consider the claim of the appellant to have his or her name entered in the revenue records. For deciding such a question, the Assistant Commissioner will have to consider the facts that are borne out of the records.

7. Having regard to the undisputed facts narrated herein above, it is clear that the 4th respondent is - 11 - NC: 2026:KHC:4650 WP No. 1429 of 2022 HC-KAR contending that she acquired title over the property in question under a registered sale deed dated 09.07.1987. On the other hand, the petitioner is claiming title over the property in question in terms of sale deed dated

31.03.1997. It is also clear that the petitioner got her name entered in the revenue records in terms of mutation order bearing No.M.R.7/1997-98. Therefore, if the 4th respondent filed an appeal after 10 years raising a challenge to the mutation order in M.R.7/1997-98, firstly, the Assistant Commissioner was required to consider the question of delay and laches on the part of the 4th respondent. Admittedly, no application for condonation of delay was filed by the 4th respondent. Therefore, the Assistant Commissioner ought to have rejected the application on the ground of delay and laches.

8. Secondly, the Assistant Commissioner could not have said that the sale deed of the 4th respondent is at an earlier point of time and the sale deed of the petitioner is at a later point of time. By saying so, the Assistant - 12 - NC: 2026:KHC:4650 WP No. 1429 of 2022 HC-KAR Commissioner has entered into disputed questions of title. This is what is deprecated by the Full Bench in the judgment in the case of Smt.Jayamma (supra). At any rate, the 4th respondent cannot contend that she is not asking the Assistant Commissioner to decide the question of title. It is the duty of the Assistant Commissioner to consider the claim of the appellant based on the title to say whether the 4th respondent’s name should be entered in the revenue records. Even if the words employed in the impugned order passed by the Assistant Commissioner, “the sale made by Devaki Rai and others 10 years after the execution of a sale deed in favour of the 4th respondent is illegal”, is eschewed from the impugned order, nevertheless, the Assistant Commissioner has entered into disputed questions of title. Without considering the title of the parties, it is not permissible for the revenue authorities to direct entry of their names in the revenue records. This would mean, that the revenue authorities can consider a claim, on undisputed facts only. - 13 - NC: 2026:KHC:4650 WP No. 1429 of 2022 HC-KAR

9. Basically, the Assistant Commissioner is required to consider the claim of the parties based on registered documents or decrees passed by a competent Civil Court. It is only if the Assistant Commissioner is convinced that the appellant has title over the property and the respondent has no title over the property, such directions could be issued by the Assistant Commissioner, however, subject to the law of limitation. In whichever angle the case is considered, it cannot be said that the Assistant Commissioner nor the Deputy Commissioner have not entered into disputed questions of title. Indeed they have entered into disputed questions of title which is not permissible in law. It is only a competent Civil Court which can decide as to whether the 4th respondent has title over the property. The decision in the controversy may require the court to decide whether the previous owner sold the same property under two Sale Deeds. The possession of the property is also to be considered. Such a declaration can only be given by a competent Civil Court. - 14 - NC: 2026:KHC:4650 WP No. 1429 of 2022 HC-KAR If such a declaration is obtained by the 4th respondent, then the revenue authorities shall be bound by such declaration. That being so, this Court is of the considered opinion that the Assistant Commissioner could not have entertained the appeal filed by the 4th respondent, who sought to have her name entered in the revenue records by cancelling the mutation entry made in favour of the petitioner.

10. Consequently, the writ petition is allowed. The impugned order dated 10.03.2015, passed by Assistant Commissioner, Mangaluru Sub-Division, Mangaluru at Annexure-B and the impugned order dated

26.10.2021, passed by the Deputy Commissioner, Dakshina Kannada District, at Annexure-A, are hereby quashed and set aside. DL CT: JL Sd/- (R DEVDAS) JUDGE