M.Venkatesh Murthy, J.
1. This Writ Appeal is against the order in Writ Petition No. 41682 of 1993 dismissing the Writ Petition challenging the order of the Assistant Commissioner, Belgaum Sub-division, Belgaum in RTS.AP. 65/93 dated 5-11-1993.
2. The Writ Petitioner is the son of A.G. Kulkarni who purchased 5 guntas and 4 annas of land in Survey No. 73/2/4 of Anagol Village, Belgaum Taluk under registered Sale Deed dated 25.5.1956. The petitioner claiming that his name has not been recorded in the RTC., in respect of 5 guntas and 4 annas of land, made an application to the Tahsildar, Belgaum for necessary correction of the record of rights in terms of the Sale Deed dated 25.5.1956. The Tahsildar gave notice to the third respondent herein who was the vendor and conducted a summary enquiry and found that the land claimed by the petitioner was in his possession and directed the entering of his name in respect of Survey No. 73/2/4 of Anagol village. Being aggrieved by the order of the Tahsildar in RTS.SR. 51/92-93 dated 30.4.1993, the third respondent appealed to the Assistant Commissioner, Belgaum Sub-Division in RTS.AP. 65193 dated 5.11.1993. The Assistant Commissioner allowed the appeal on the ground that the Tahsildar could not have effected the change on the ground that the request was made beyond twelve years and that the appellant was entitled to move the Civil Court. Being aggrieved by the order of the Assistant Commissioner, the appellant herein fitted the Writ Petition as aforesaid and lost his claim. Hence, this appeal.
3. The case of the Writ Petitioner before the Tahsildar and in the Writ Petition was that his father A.G. Kulkarni purchased the land measuring 5 guntas and 4 annas under a Sale Deed dated 25-5-1956 and thereafter the land was mutated in the name of his father as Survey No. 73/2/4A and since then, the RTC., extracts are standing in petitioner's father's name and thereafter in his name. The third respondent, meanwhile, under a Sale Deed dated 5.11.1959 sold an extent of 7 guntas of land out of the balance of 7 guntas and 8 annas to one Shankar Ambaji Sonavalkar. Thus, the third respondent had possession and title to only 8 annas of land in Survey No. 73/2/ 4 of Anagol village. Apparently, the petitioner sought correction of the RTC Extract to accord with the mutation in Survey No. 73/2/4A. After the sales referred to above, the authorities were obliged to make corresponding deductions in the RTC extracts relating to Survey No. 73/2/4. However, the same not having been done, the petitioner approached the Tahsildar for the necessary correction and obtained the same. The Assistant Commissioner set it aside as aforesaid.
4. The question is, whether the Assistant Commissioner could have rejected the claim of the petitioner for reasons stated by him?
5. Before the Tahsildar, the third respondent filed a written objection admitting the sale dated 9.11.1959 in favour of Shankar Ambaji Sonavalkar in respect of 7 guntas of land under the Sale Deed dated 5.9.1959. However, in respect of the Sale Deed under which the petitioner claimed, he sought to deny it though not specifically. The Tahsildar conducted a summary enquiry in accordance with Section 129 of the Karnataka Land Revenue Act and found that the property under the Sale Deed 25.5.1956 was in the possession of the petitioner in terms of the Sale Deed. At the stage of arguments, the third respondent appears to have denied the execution of the Sale Deed dated 25.5.1956 and asserted that he was in possession of the properties. It has to be noticed that the third respondent never sought to challenge the enquiry conducted by the Tahsildar either before the Assistant Commissioner or in the Writ Petition or in this Writ Appeal as being violative of natural justice or otherwise.
6. Chapter VI of the Karnataka Land Revenue Act, 1964 (hereinafter called 'the Act') deals with maintenance of Record of Rights. Section 128 deals with acquisition of rights to be reported, Section 129 deals with registration of Mutations and the procedure for such registration, Section 129A deals with issue of patta book containing the copy of the Record of Rights pertaining to such land. Section 130 deals with the obligation to furnish information for compilation or revision of the Record of Rights and as to the bar of suits against the State Government or its officials in respect of dams for having the entry made in the Record of Rights, reserving expressly the right to seek a correction of the entry in the Record of Rights against persons who are interested in denying such a right. It is clear from the above provisions that the entries in the Record of Rights made after enquiry as provided for in Section 129 of the Act is always subject to a final adjudication of the rights between the parties to the land in question. At this stage, it is also necessary to observe and reiterate that the enquiry is essentially summary in nature.
7. The contention on behalf of the third respondent was that the order of the Assistant Commissioner is not open to challenge is as much as the Assistant Commissioner found that the Tahsildar could not have usurped the functions of a Civil Court adjudicating on title and possession of the property. In support of his contention, the learned Counsel for the third respondent relied upon the decisions reported in PAYAPPA NEMANNA HUDED v. CHAMU APPAYYA HUDED, 1969(2) Mys.L.J. 198 and S. HALAPPA v. ASSISTANT COMMISSIONER, SHIMOGA SUB DIVISION, SHIMOGA, 1993(1) Kar.L.J. 82 and a decision in Writ Petition No. 2156 of 1977 dated 21.10.1982 RAYANAGOUDA v. RAJASAHEB BALSAHEB JATGAR AND ORS, W.P. No.2156/1977 dd 21-10-1982.
8. An examination of the case of Payappa Nemanna Huded's case referred to above would show that the Deputy Commissioner ordered the recording of name of the first respondent therein in the Record of Rights and in that circumstance, the Court declined to exercise its Writ Jurisdiction, to the case of Hatappa this Court interfered with the order of the Assistant Commissioner on the ground that though Sale Deed pertained to survey No. 82/2, the Assistant Commissioner could not have held that the lands sold was Survey No. 82/1, which jurisdiction was exercisable only by a Civil Court. Having found that the Assistant Commissioner had exercised the jurisdiction wrongly, the Court restored the situation by directing that the land registered in respect of Survey No. 82/2 according to the 'apparent tenor' of the Sale Deed. So, it is clear that where the Assistant Commissioner exceeded his power, as in this case, Writ jurisdiction could be exercised by the Court. Even in the decision in Rayariagouda's case relied upon by the Learned Counsel for the third respondent, the contention against the mutation being effected in the name of the purchaser was that the deed was nominal and the transfer was in contravention of the Inam Abolition Law. This Court rejected the claim on the ground that the same was beyond the scope of an enquiry under Section 129 of the Act. Thus all the decisions referred to above are very clear in the interpretation of the scope of the enquiry under Section 129 of the Act holding that the appellant tenor of the document should be given effect to leaving the party contending otherwise to his remedy in a Civil Court.
9. The Assistant Commissioner who passed the order apparently lost sight of the fact that what was being done on the application of the petitioner was to delete 5 guntas and 4 annas of land from Survey No. 73/2/4 of Anagol Village that was apparently conveyed under the Sale Deed dated 25.5.1956. The land of the petitioner has already been sub-divided, first by the way of a pencil entry and thereafter regularly, as Survey No. 73/2/4A. Therefore the question of the claim of the petitioner being hared by limitation was a matter, the Assistant Commissioner himself could not have found against the petitioner especially in the light of the fact that the enquiry of the Tahsildar brought forth the fact that the petitioner was in possession of the land measuring 5 guntas and 4 annas. The order of the Assistant Commissioner that the Tahsildar acted as if it were a Civil Court was itself misconceived. Therefore the Assistant Commissioner's order cannot be sustained and requires to be set-aside.
10. The Learned Counsel for the third respondent sought to contend that when once third respondent denied the Sale Deed and asserted possession of the land there was no way by which the Tahsildar could have found against him and only a Civil Court could decide the matter and therefore the order of the Tahsildar is unsustainable. This submission requires to be mentioned to 'be rejected. It has to be seen that the first entry of sub-division of the land into 73/2/4A stood may way-back in the year 1960-61 and it stood unaltered and unchanged upto this day. If there were any bonafides in the claim of the third respondent he would not have slept over the matter all these days. His objection to the petition before the Tahsildar almost to be opportunistic. If he has a grievance against the apparent tenor of the document he has executed in favour of A.G. Kalkarni and the Sale Deed executed in favour of Sankar Ambaji Sonavalkar it is the Civil Court which could settle his contention. It is needless to state that mere raising of objection to mutation by a party in proceedings under Section 129 of the Act, does not render the enquiry futile forcing the applicant to vindicate his title in a Civil Court. The nature of the objection raised must be of such a nature as to lead to a conclusion that the decision to be taken on the application is more appropriately one that has to be taken by a Civil Court.
The appeal is allowed. The order of the Assistant Commissioner, Belgaum Sub-division, Belgaum in RTS.AP.65/93 dated 5.11.1993 is set-aside and the order of the Tahsildar in proceedings No. RTS.SR 51/92-93 is restored. The parties are directed to bear their own costs.