- 1 - NC:
2023. KHC-K:4933 WP No.202908 of 2015 ® IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE5H DAY OF JULY, 2023 BEFORE THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO.202908 OF2015(KLR-RES) BETWEEN: SYED MOHIUDDIN ALI @ MODIN ALI SINCE DECEASED BY LRS1 SHABANA BEGUM W/O SYED PEER PASHA AGED:
45. YEARS OCC: AGRICULTURE2 SYED ANWAR S/O SYED PEER PASHA AGED ABOUT32YEARS OCC: AGRICULTURE3 SYED SABIR S/O SYED PEER PASHA AGED ABOUT29YEARS OCC: AGRICULTURE4 SYED NASER S/O SYED PEER PASHA AGED ABOUT16YEARS OCC: NIL5 ALIYA D/O SYED PEER PASHA AGED ABOUT13YEARS OCC: NIL6 ARSIYA D/O SYED PER PASHA AGED11YEARS OCC: NIL - 2 - NC:
2023. KHC-K:4933 WP No.202908 of 2015 PETITIONERS NO.4 TO6ARE MINORS U/G OF THEIR MOTHER I.E, PETITIONER NO.1 SMT. SHABANA BEGUM7 SYED SHAMSUDDIN S/O MODIN ALI a) SMT. SYEDA RIZWANA W/O LATE SYED SHAMSUDDIN AGED43YEARS OCC:HOUSEHOLD WORK b) SYED GOUSE MOHIUDDIN S/O LATE SYED SHAMSUDDIN AGED29YEARS OCC: PRIVATE SERVICE c) SYEDA AYESHA W/O MOHD. SHAKEEL AGED25YEARS OCC: HOUSEHOLD WORK d) SYED PARVEZ QADRI S/O LATE SYED SHAMSUDDIN AGED23YEARS OCC: PRIVATE SERVICE e) SYEDA ZEBA D/O LATE SYED SHAMSUDDIN AGE:
20. YEARS OCC: PRIVATE SERVICE PETITIONER No.7(a) TO (e) R/O KAMANI BASE BASAVAKALYAN, DIST: BIDAR-585327 8. SYED AHMED S/O SYED MODIN ALI AGED48YEARS, OCC: AGRICULTURE9 SYED SAMAD S/O SYED MODIN ALI AGED50YEARS, OCC: AGRICULTURE10 SYED IBRAHIM S/O SYED MODIN ALI AGED32YEARS, OCC: AGRICULTURE PETIONERS NO.1 TO10ARE R/O KAMANI BASE BASAVAKALYAN DIST. BIDAR-585 327 - 3 - NC:
2023. KHC-K:4933 WP No.202908 of 2015 11. SHAHAJAHAN BEGUM W/O SYED ALI AGED42YEARS OCC: AGRICULTURE R/O VILLAGE SYED AKULGA TQ. SIRUR ANANTPAL DIST. LATUR (MAHARASHTRA)-413544 12. YASEEN BEGUM W/O ABDUL RAHEEM AGED35YEARS OCC: AGRICULTURE R/O H.NO.6-3-24 TALAB KATTA HYDERABAD-500065 13. NAZEEN BEGUM W/O ASHAN OSMANI OCC: AGRICULTURE R/O H.NO3215/62, MALLEPALLI HYDERABAD-500001. …PETITIONERS (BY SRI. V K NAYAK,ADVOCATE) AND:
1. HAFEEZ ALI S/O HOHD. ALI OCC: AGRICULTURE SINCE DEAD BY LR's 1(a) SAEEDA BEE W/O LATE HAFEEZ ALI AGED:
60. YEARS1b) SYED MAJID ALI S/O LATE HAFEEZ ALI AGED:
40. YEARS1c) SYED TAJUDDIN S/O LATE HAFEEZ ALI AGED ABOUT36YEARS1d) NUSRAT D/O LATE HAFEEZ ALI AGED:
25. YEARS - 4 - NC:
2023. KHC-K:4933 WP No.202908 of 2015 1(e) ISHRAT D/O LATE HAFEEZ ALI AGED:
22. YEARS ALL R/O KAMANI BASE, BASAVAKALYAN DIST. BIDAR-585327 2. BURHANUDDIN S/O HASSAN ALI AGED68YEARS OCC: AGRICULTURE R/O KAMANI BASE, BASAVAKALYAN DIST. BIDAR-585327 3. SHABBIR ALI S/O NIZAMUDDIN AGED:
48. YEARS OCC: AGRICULTURE R/O SOTEPPER MASJID, RENA GALLI BASAVAKALYAN-585327.
4. THE TAHSILDAR BASAVAKALYAN-585327 5. THE ASSISTANT C0MMISSIONER BASAVAKALYAN-585327 6. THE DEPUTY COMMISSIONER BIDAR- 585 401 …RESPONDENTS (V/O DATED41/2017 NOTICE ON R1(A TO E) IS HELD SUFFICIENT; SRI. MANVENDRA REDDY., ADVOCATE FOR R2; SRI. MIR MOHAMMED ALI, ADVOCATE FOR R3; SRI. SHIVAKUMAR TENGLI., AGA FOR R4 TO R6) THIS WRIT PETITION FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OR ORDER
OR DIRECTION IN THE NATURE OF CERTIORARI AND QUASH THE ORDER
DATED155.2002 PASSED BY THE ASST. COMMISSIONER, BASAVAKALYAN, IN SDB / REV/ APPL/ CR-42/2000- 01 WHICH IS PRODUCED AS ANNEXURE G AND ETC.-. 5 - NC:
2023. KHC-K:4933 WP No.202908 of 2015 THIS WRIT PETITION, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
1 The petitioners are before this Court seeking for the following reliefs:- a. Issue a writ or order or direction in the nature of certiorari and quash the order dated 15-5-2022 passed by the Asst. Commissioner, Basavakalyan, in SDB/REV/APPL/CR-42/2000-01 which is produced as Annexure-G. b. Issue a writ or order or direction in the nature of certiorari and quash the common order dated 12.01.2015 in RP.No.21/2000-01 and RP No.22/2002-03 which is produced as Annexure-J c. Issue an appropriate writ or order or direction and allow the RP No.21/2000-01 and RP No.22/2002- 03 filed before the Dy. Commissioner, Bidar. d. Issue any other order or direction as this Hon'ble Court deems fit to issue under the facts and circumstances of the case, in the interest of justice and equity.
2. The petitioner No.1 is the wife of the deceased Syed Mohiuddin Ali @ Modin Ali, the petitioners No.2 to 6 are the children of petitioner No.1, petitioner No.7 was another son of Syed Mohiuddin Ali @ Modin Ali who expired during the pendency of the above proceedings and his legal representatives 7 (a) to 7 - 6 - NC:
2023. KHC-K:4933 WP No.202908 of 2015 (e) have been bought on record. The petitioners No.8 to 10 are the other sons and petitioners No.11 to 13 are the daughters of the said Syed Mohiuddin Ali @ Modin Ali.
3. Respondent No.1 is the son of the elder brother of father of Modin Ali, respondent No.2 is the son of the younger brother of the father of Modin Ali, respondent No.3 is stated to be purchaser of a portion of the property subject matter of the above writ petition from respondent No.1.
4. It is contended that amongst various other properties, the properties covered under Sy.No.149 situated at Basavakalayan being inam land was vested with the inammadar Syed Kasim Alli who is the grandfather of petitioner-Modin Ali and respondents No.1 to 3. The said grandfather having expired, it is alleged that a suit for declaration and possession came to be filed in OS No.120/1973 under which a compromise was entered into and the property covered under aforesaid Sy.No.149 was - 7 - NC:
2023. KHC-K:4933 WP No.202908 of 2015 divided among the parties thereto and in pursuance thereof, the necessary entries were made in the concerned revenue records that the parties were enjoying their rights in respect of those land.
5. On the coming into force of the Karnataka Certain Inams abolition Act, 1977, Modin Ali contending that he is the occupant of the aforesaid land in Sy.No.149 filed an application in Form-7 for grant of occupancy right in respect of Sy.No.149, respondent No.2 filed Form-7 in respect of Sy.No.149 as also for Sy.No.114 and 132. The application filed by respondent No.2 came to be rejected in respect of Sy.No.149 and the application filed by the petitioner came to be allowed vide order dated 5.11.1981 and occupancy rights came to be granted to the petitioner. In respect of lands in Sy.Nos.114 and 132 occupancy rights were granted to respondent No.2. Subsequent thereto, it is alleged that there was a memorandum of partition entered into between said Modin Ali, respondents No.1 and 2 on 16.4.1982 in respect of the said land - 8 - NC:
2023. KHC-K:4933 WP No.202908 of 2015 in Sy.No.149, when said the lands were partitioned amongst the said Modin Ali and respondents No.1 and 2. Thereafter, on the basis of the said memorandum of partition Respondent No.2 had approached the Assistant Commissioner, Basavakalyana under Section 136 of Karnataka Land Revenue Act (for short “KLR Act”) to correct the entries of the land in Sy.No.149 by way of its order dated 15.5.2002.
6. Respondent No.2 had approached the ADLR on 30.11.2000 to carry out a phodi in terms of the compromise decree in OS No.120/1973. The phodi having been carried out however the extent of land came to be reduced hence respondent No.2 had challenged the same before the Karnataka Administrative Tribunal in case No.541/2000, since the area had been reduced. The Karnataka Appellate Tribunal set aside the phodi order dated 30.11.2000 reserved liberty to the respondent No.2 to approach an appropriate competent forum.-. 9 - NC:
2023. KHC-K:4933 WP No.202908 of 2015 7. In the meanwhile, respondent No.2 had challenged the grant of occupancy rights in favour of Modin Ali vide order dated 8.9.1981 by filing a writ petition in WP No.25556/2001 which came to be dismissed on 12.7.2005. A writ appeal in WA No.3168/2005 having been filed, the said writ appeal also came to be dismissed on 15.9.2005. The dismissal of both writ petition and writ appeal was on the grounds of delay and latches.
8. The Karnataka Appellate Tribunal vide its order dated 29.6.2001 had observed that the Deputy Director of Land Records (DDLR) would not be the revisional authority competent to hear a challenge to an order passed by the ADLR and it was further observed that the competent authority would be the Joint Director of Land Records (JDLR) and in furtherance of the same the order passed by the DDLR was set aside on the files directed to be returned to the respondent No.2 who was the appellant therein to approach the competent authority.-. 10 - NC:
2023. KHC-K:4933 WP No.202908 of 2015 9. The competent authority mentioned therein being the JDLR, it appears that instated of approaching the JDLR respondent No.2 approached the Assistant Commissioner and the Assistant Commissioner being of the view that the orders of the KAT have to be implemented directed the concerned to do so. It is aggrieved by the order of the Assistant Commissioner before any process could be resorted to the petitioners filed Revision Petition No.21/2000- 01 and respondent No.2 filed Revision Petition No.28/04-05 as also Revision Petition No.21/2004-05 before the Deputy Commissioner, Bidar.
10. The Deputy Commissioner dismissed all the revision petitions on the ground that Modin Ali had been registered as an occupant for 5 acres 36 guntas of land in Sy. No.133. It is aggrieved by the same that the petitioners are before this Court.
11. Sri.V.K. Naik., learned counsel for the petitioner would submits that; - 11 - NC:
2023. KHC-K:4933 WP No.202908 of 2015 11.1. The respondent No.2 could never have approached the ADLR for carrying out of phodi for the land in Sy.No.149 on the basis of the decree in OS No.120/1973 since subsequent thereto, the Karnataka Certain Inams Abolition Act, 1977 (for short “Act of 1977”) was enacted which came into force on 5.6.1978. The submission is that once the Act came into force all actions taken prior to the said Act coming into force were set at naught and decree could not be relied upon by anyone. 11.2. In this regard he relies on sub-section 1 of section 4 of Act 1977, which is reproduced hereunder for easy reference:
4. Abolition, vesting of inams and the consequences thereof.- (1) Notwithstanding anything contained in any contract, grant or other instrument or in any decree or order of court or in any other law for the time being in force, with effect from and on the appointed date, the inam tenure of all inams and minor inams to which this Act applies under section 2 shall stand abolished.-. 12 - NC:
2023. KHC-K:4933 WP No.202908 of 2015 11.3. He further relied upon the decision of Hon’ble Apex Court in the case of Haji Sk. Subhan vs. Madhorao1, more particularly para 3, 11, 13, 15, 39, 43 which are reproduced hereunder for easy reference:
3. It so happened that between the closing of the arguments in the appeal before the High Court, some time before 31-3-1951, and the delivery of judgment on 20-4-1951, the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (M.P. Act 1 of 1951), hereinafter called “the Act”, came into force. This fact does not appear to have been brought to the notice of the High Court as it did not consider the effect of the Act on the appeal before it.
11. The learned Counsel for the appellant has urged that the respondent is not entitled to execute the decree for possession as he had lost the proprietary right which entitled him to get possession. It is further urged that the appellant has secured the right of malik makbuza of the land subsequent to the decree and has thus got a right to remain in possession in spite of the decree. The learned Counsel for the respondent mainly relies on the contention that the execution court cannot go behind the decree and therefore must execute it and deliver possession to the respondent.
13. Section 3 is the vesting section and its sub- sections (1) and (2) read:
1. 1962 Supp (1) SCR123 - 13 - NC:
2023. KHC-K:4933 WP No.202908 of 2015 “(1) Save as otherwise provided in this Act, on and from a date to be specified by a notification by the State Government in this behalf, all proprietary rights in an estate, mahal, alienated village or alienated land, as the case may be, in the area specified in the notification, vesting in a proprietor of such estate, mahal, alienated village, alienated land, or in a person having interest in such proprietary right through the proprietor, shall pass from such proprietor or such other person to and vest in the State for the purposes of the State free of all encumbrances. (2) After the issue of a notification under sub- section (1), no right shall be acquired in or over the land to which the said notification relates, except by succession or under a grant or contract in writing made or entered into by or on behalf of the State; and no fresh clearings for cultivation or for any other purpose shall be made in such land except in accordance with such rules as may be made by the State Government in this behalf.” In accordance with the provisions of this section, the proprietary rights in an estate, mahal, alienated village or alienated land in the area specified in the notification vesting in a proprietor of such estate etc. were to pass from such proprietor and vest in the State for purposes of the State free from all encumbrances. These provisions themselves were sufficient to divest the proprietor of such estate etc., of his proprietary right. The consequences of such vesting are further specified in Section 4. In view of sub-section (2) of Section 3, no right could be acquired over the land which had vested in the State except by succession or under a grant or contract in writing made or entered into by or on behalf of the State. This means that no person could acquire any right over such land under a decree passed in his favour subsequent to the vesting of the estate on the notified date and that therefore the - 14 - NC:
2023. KHC-K:4933 WP No.202908 of 2015 respondent did not acquire the right to possess this land under the decree in his favour.
15. It is to be noted that the consequences mentioned in Section 4 follow the notification under Section 3, notwithstanding anything contained in any contract, grant or document or in any other law for the time being in force. The question is whether the word “document” includes a decree of the Court. We do not see any good reason why a decree of the Court, when it affects the proprietary rights and is in relation to them, should not be included in this expression. The main object of Sections 3 and 4 and in fact, of the Act itself, is that all the bundle of rights which a proprietor possesses on account of his proprietorship of the land within the estate etc. should cease, except such rights which are saved to the proprietor under some specific provision of the Act. Any rights which accrue to the proprietor under a decree by virtue of his proprietary right will not, under the scheme of the Act, prevail over the statutory consequences following the vesting of the proprietary rights in the State and will be lost to the proprietor. One such right is the right of the proprietor under a decree to obtain possession over certain land. Such a decree for recovery of possession is the result of the recognition of the proprietor's right of possession as proprietor over that land as against the claim of the judgment-debtor to retain possession of that land. The proprietary right vests in the State and as a consequence of it the proprietor's right under the decree to obtain possession also vests in the State, even though the State gets right to the possession of the land under other provisions of the Act as well.
39. The contention that the executing court cannot question the decree and has to execute it as it stands, is correct, but this principle has no operation in the facts of the present case. The objection of the appellant is not with respect to the invalidity of the decree or with respect to the decree being wrong. His objection is based on - 15 - NC:
2023. KHC-K:4933 WP No.202908 of 2015 the effect of the provisions of the Act which has deprived the respondent of his proprietary rights, including the right to recover possession over the land in suit and under whose provisions the respondent has obtained the right to remain in possession of it. In these circumstances, we are of opinion that the executing court can refuse to execute the decree holding that it has become inexecutable on account of the change in law and its effect.
43. As we are of opinion that the land in suit could not be the “home-farm” of the respondent as it was not recorded as his khudkasht in the annual papers of 1948-49, the respondent's proprietary right of this land was lost and got vested in the State on the coming into force of the Act. On the other hand, we have also held that the appellant obtained a declaration of malik makbuza in his favour from the State, and thus has secured a right to possess it. In these circumstances, the decree sought to be executed by the respondent has become inexecutable and therefore the order under appeal deserves to be set aside. We accordingly allow the appeal and set aside the order of the court below and allow the objection of the appellant to the execution of the decree and dismiss the execution application filed by the respondent. 11.4. Relying on the above, he submits that any decree which is passed prior to the Act of 1977 coming into force cannot be enforced even though the decree may be valid at the time that it was passed. The rights of all the decree holders being negatived by the Act of 1977, no - 16 - NC:
2023. KHC-K:4933 WP No.202908 of 2015 application could have been made for carrying out phodi. 11.5. Secondly, he submits that on the Act of 1977 coming into force Modin Ali had made an application for grant of occupancy in respect of Sy.No.149 by filing Form-7 which came to be granted in favour of Modin Ali on 5.11.1981 and thereafter Modin Ali being registered as occupant enjoyed all rights relating to the Sy.No.149 neither respondent No.1 nor respondent No.2 could claim any rights as regards the said land, either under the partition or otherwise. 11.6. This he submits has not been taken into consideration by the Assistant Commissioner or the Deputy Commissioner resulting in the impugned orders being passed and as such he submits that the impugned order is required to be quashed and the name of the petitioners who claim under Modin Ali be entered in the - 17 - NC:
2023. KHC-K:4933 WP No.202908 of 2015 revenue records pertaining to Sy.No.149 of Basavakalyan.
12. Sri.Manvendra Reddy, learned counsel appearing for respondent No.2 would submit that 12.1. The land belonging to the family, there being a compromise entered into in O.S.No.120/1973, this fact has been suppressed by the petitioner while submitting his application under Form No.7. 12.2. The petitioner being in occupation of limited extent of land and not the entire land covered under Sy.No.149, the petitioner has deliberately suppressed and misled the Land Tribunal for grant of occupancy rights and on this ground, he submits that there is a fraud which has been committed by the petitioner which vitiates the occupancy rights which had been granted and in this regard, he relies upon the decision of the Hon’ble Apex Court in the case of Ram Chandra Singh vs. Savitri Devi - 18 - NC:
2023. KHC-K:4933 WP No.202908 of 2015 and ors2, more particularly, Paras 15, 16, 17 thereof which are reproduced hereunder for easy reference:
15. Commission of fraud on court and suppression of material facts are the core issues involved in these matters. Fraud as is well- known vitiates every solemn act. Fraud and justice never dwells together.
16. Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by word or letter.
17. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.
13. Sri.Mir Mohammed Ali, learned counsel for respondent No.3 submits that 13.1. there is a partition deed, which has been entered into between the petitioner, respondents No.1 and 2 on 16.04.1982 subsequent to the grant of occupancy rights and the land in Sy.No.149 has been partitioned between the petitioner, respondents No.1 and 2 2 2004 SAR Civil 1 - 19 - NC:
2023. KHC-K:4933 WP No.202908 of 2015 which is sought to be enforced before the ADLR. 13.2. This partition deed would also have to be looked into while carrying out the necessary podi and durasti and entries of the name of the petitioner, respondents No.1 and 2 and subsequently, the name of respondent No.3 who is a purchaser of a portion of the property from respondent No.1. 13.3. On these grounds, he submits that the order passed by the Deputy Commissioner is proper and correct inasmuch as all the rights of the parties have to be decided by a competent Civil Court by instituting a proper suit.
14. Sri.Shivakumar Tengli, learned AGA for respondents No.4 to 6 submits that the Deputy Commissioner has rightly passed the impugned order since the issues which have been raised by all the parties were touching upon the title and in view of the decisions of - 20 - NC:
2023. KHC-K:4933 WP No.202908 of 2015 the Full Bench of this Court in Jayamma vs. State of Karnataka in W.P.No.6872/2013 dated 24.01.2020, the Revenue authorities do not have any right to decide the title. Apart from this, he relies upon the other decisions cited by the Deputy Commissioner to support the finding that the parties have to be relegated to an appropriately instituted civil suit.
15. Heard Sri.V.K.Nayak, learned counsel for the petitioner, Sri.Manvendra Reddy, learned counsel for respondent No.2, Sri.Mir Mohammed Ali, learned counsel for respondent No.3 and Sri.Shivakumar Tengli, learned AGA for respondents No.4 to 6 and perused the papers.
16. The points that would arise for determination are:
1. Whether on coming into force of the Karnataka Certain Inams Abolition Act, 1977, the rights derived by any of the parties under a decree or otherwise prior to the coming into force of the Act of 1977 can be enforceable?. - 21 - NC:
2023. KHC-K:4933 WP No.202908 of 2015
2) Whether in the present case, the order passed by the Deputy Commissioner suffers from legal infirmities requiring this Court to intercede?.
3) What order?.
17. I answer the above points as under:
18. Answer to Point No.1: Whether on coming into force of the Karnataka Certain Inams Abolition Act, 1977, the rights derived by any of the parties under a decree or otherwise prior to the coming into force of the Act of 1977 can be enforceable?. 18.1. It is not in dispute that the lands in question are inam land. It also cannot be disputed that the petitioners and respondent No.1 are Mohammadans following sunni law. In the year 1973, a suit in O.S.No.120/1973 had been filed by respondent No.2 seeking for a declaration that respondent No.2 is a successor of his father and entitled to 1/3rd share in the properties belonging to his father. In the said suit, a compromise was entered into whereunder the properties of the father came - 22 - NC:
2023. KHC-K:4933 WP No.202908 of 2015 to be divided between Modin Ali, respondent No.1 and respondent No.2. 18.2. It is subsequent thereto that on 05.06.1978, the Karnataka Certain Inams Abolition Act, 1977 (for short, ‘Act of 1977’) came into force. Sub-section (1) of Section 4 of Act of 1977, which has been reproduced hereinabove categorically states that any contract, grant or other instrument or in any decree or order of the Court or in any other law for the time being in force, any inam tenure of all inams and minor inams to which the Act applies would stand abolished. 18.3. Thus the right of Modin Ali, respondents No.1 and 2 in respect of the land in question being inam land stood abolished with the Act of 1977 coming into force and the said land vested with the State free of all encumbrances. To put it in other words, on and from the Act of 1977 coming into force, Modin Ali, respondent Nos.1 - 23 - NC:
2023. KHC-K:4933 WP No.202908 of 2015 and 2 lost all their rights, title and interest in the property. 18.4. The Hon’ble Apex Court in the case of Haji SK.Subhan vs. Madhorao3 has categorically held that once any enactment were to intercede, any rights prior to the Act coming into force would stand non-executable. In the present case, though a valid decree had been passed in the year 1974 in O.S.No.120/1973, the decree became unenforceable on account of the Act of 1977 coming into force. Thus, neither Modin Ali nor respondents No.1 and 2 can claim any rights under the compromise decree in O.S.No.120/1973. 18.5. Hence, I answer Point No.1 by holding that any rights which are vested with any one as regards the inam land prior to the Karnataka Certain Inams Abolition Act, 1977 coming into force on 3 AIR1962SC1230- 24 - NC:
2023. KHC-K:4933 WP No.202908 of 2015 05.06.1978 stood divested and the land would stand vested with the State free of all encumbrances.
19. Answer to Point No.2: Whether in the present case, the order passed by the Deputy Commissioner suffers from legal infirmities requiring this Court to intercede?. 19.1. On account of the land being vested with the State, Modin Ali made an application under Form 7 for the grant of occupancy rights. A similar application had been filed by respondent No.2. The application filed by respondent No.2 came to be rejected and that filed by Modin Ali came to be allowed granting occupancy rights in respect of 6 acres 21 guntas in Sy.No.149. 19.2. Subsequent thereto, on 16.4.1982, a Memorandum of Partition is stated to have been executed between Modin Ali and respondents No.1 and 2. Though the petitioners contend that Modin Ali has not executed it nor was respondent No.2 available in India to execute - 25 - NC:
2023. KHC-K:4933 WP No.202908 of 2015 the Memorandum of Partition, these are aspects which are disputed in nature and cannot be decided either by official respondents or by this Court in these proceedings. Be that as it may, there is a claim which has been made that post the grant of occupancy rights, there is a Memorandum of Partition, which has been entered into and as such, the rights which can be claimed by either Modin Ali and his legal representatives or respondents No.1 and 2 can only be under that Memorandum of Partition and not under the compromise decree in O.S.No.120/1973. In the event of the Memorandum of Partition being proved in a Court of law, then respondents No.2 and 3 would derive title. If the said Memorandum of Partition is not proved, then in terms of grant of occupancy rights, it would only be Modin Ali and his legal representatives would have a right over the property.-. 26 - NC:
2023. KHC-K:4933 WP No.202908 of 2015 19.3. Though respondent No.2 post the order of the KAT had approached the Assistant Commissioner instead of the JDLR as directed by the KAT, considering that there is a long lapse of time and considering that though they may not be the proper authorities relegating the parties to a properly instituted suit is a proper and correct order, this lapse on part of the respondent No.2 would not result in setting aside the orders passed by the Assistant Commissioner or the Deputy Commissioner. 19.4. In that view of the matter, I answer Point No.2 by holding that there is no infirmity in the order passed by the Deputy Commissioner and the Assistant Commissioner.
20. Answer to Point No.3: What order?. 20.1. In view of the above discussion, I pass the following: ORDER
1 The Writ Petition is dismissed.-. 27 - NC:
2023. KHC-K:4933 WP No.202908 of 2015
2) The parties are at liberty to approach the competent civil court having territorial and pecuniary jurisdiction seeking for such reliefs as they deem it including declaration of title.
3) Pending applications do not survive for consideration and are as such dismissed. Sd/- JUDGE SR/Prs List No.:
1. Sl No.:
5.