ORDER
1. A question of law regarding the rights of the parties on the basis of a mutation entry specially in North Karnataka areas like Belgaum, Bijapur, Dharwar etc., arises for consideration in this petition.
2. The petitioner is the son-in-law of respondents 2 and 3. The land bearing Survey No. 13/2A/1 situated at Karikatti Village, Khanapur Taluk, Belgaum District is still in the ownership of second respondent Sri Jinnappa. In the year 1971, a vardhi was given to the competent authority to enter in the name of his wife third respondent. Accordingly, a mutation was certified by entering the name of the third respondent in respect of Survey No. 13/2A/1. In the year 1981, the third respondent due to her old age decided to give 3 acres of land to the petitioner and 5 acres jointly to the other two sons-in-law viz. Patil Surendra Jinnappa and Pashetty Sunil Jeevanna. Accordingly, a vardhi was given to the revenue authorities to enter the name of the petitioner for 3 acres and 5 acres in the name of the other two sons-in-law. Consequently, a mutation was certified on 20-8-1991 showing the name of petitioner for 3 acres and Patil Surendra Jinnappa and Pashetty Sunil Jeevanna for 5 acres in the said survey number. It is the case of the petitioner that they have been enjoying the suit lands as per the mutation entries.
3. The second respondent challenged the mutation entry made in favour of Sunil Jeevanna Pashetty -- one of his sons-in-law. In the year 1986, the mutation entry was cancelled. Aggrieved by the said order, Sunil Jeevanna challenged the same in the appeal before the Assistant Commissioner. His appeal was allowed in the year 1993. The second respondent has again challenged the mutation entry made in favour of the petitioner. The Assistant Commissioner has allowed the same without considering the question of limitation involved in filing the appeal and the legality of the mutation made on 20-8-1991 in M.E. No. 336. The petitioner has therefore, challenged the said order praying this Court to quash the same by issuing a writ of certiorari or any other suitable writ. The second respondent in particular is the contesting party, in his counter-affidavit, he has justified the change of mutation passed by the Assistant Commissioner.
4. It has come to the knowledge of this Court by an innumerable number of the writ petitions filed on the basis of the mutation entriesgiving rise to all sorts of litigation both in the revenue and in the Civil Courts. An entry in the mutation is essentially an act of the revenue authority who is required to follow the provisions of Chapter IX of the Karnataka Land Revenue Act, 1964. Section 127 provides for preparation of record of rights of every village. Section 128 of the Act provides for acquisition of rights to be reported to the concerned authorities. The acquisition of rights as enumerated in sub-section (1) of Section 128 are by succession, surveyorship, partition, purchase, mortgage, gift, lease or otherwise, any right as holder, occupant, owner, mortgagee, landlord or tenant of the land or assignee of the land or revenue thereof, such persons who acquire such rights are required to report the same orally or in writing to the prescribed officer of the village within three months from the date of such acquisition and the said officer shall at once give acknowledgement of the receipt of the report of the person making it.
5. Making such a report either orally or in writing is exempted where a person acquires a right by virtue of a registered document. Under the said provision, it is the duty of the registering authority to report the same to the concerned revenue authority to change the mutation on the basis of the acquisition of rights under the registered document.
6. In case of disputed claims, the concerned authority has to hold a formal enquiry as provided under the Act and decide the question. The aggrieved person has a right of appeal before the Assistant Commissioner under Section 136(2) of the Act or a revision under Section 136(3) of the Act. Insofar as the right of appeal or in the alternative a revision to the Deputy Commissioner, it is now settled by a judgment of this Court in Sriman Maharaja Niranjana Jagadguru Mallikarjuna Murugharajendra Mahaswamy Matadipathy v Deputy Commissioner, Co-org, that except as provided in sub-section (1) of Section 128 and sub-sections (2) and (3), a Revenue Authority cannot make entries in the record of rights. The Karnataka Land Revenue Act, 1964 came into force on the 9th day of March, 1964 but, the law has virtually made inapplicable to the Bombay Karnataka area insofar as the mutation entries are concerned. It is brought to the notice of this Court that the practice prevailing in this area which is not recognised by any law as to transfer of right or possession of the property by making a vardhi to the village accountant who acts upon the said vardhi and certifies a new entry upon which families litigate on the premise that they have acquired a right in the immovable property by virtue of a mutation entry made in the revenue records. This has given rise to unending litigation both on the revenue and civil side. Having regard to the provisions of Chapter IX of the Karnataka Land Revenue Act, the Court has to examine whether a person in whose favour a mutation is effected and certified by the Revenue Inspector which acquisition is not in conformity with Section 128 of the Act acquires right in the property? Revenue authorities are not bound to make such entries in the revenue records as the party does not acquire any right in the property by any means other than enumerated in Section 128. Therefore, these entries have no legal sanction unless the entries are in confirmity with Section 128 of the Karnataka Land Revenue Act.
7. After hearing the learned Counsel appearing on both sides, I am of the opinion that the parties are litigating on the presumption that they have acquired their rights in the property by virtue of the change of mutation. It is made clear that a party does not acquire any right in the immovable property only by change of mutation upon such vardhis. Therefore, the parties who are litigating in this writ petition, virtually do not get any right in the property at all. If any one of them have been in occupation of any portion of the land, they can as well justify their possession against the true owner. The parties can agitate their rights only in a Civil Court and not in these mutation proceedings in the Revenue Courts, At this stage, it is submitted by the learned Counsel for respondent 2 that now that the respondent 2 has filed a suit in O.S. No. 220 of 1994 on the file of the Munsiff, Khanapur, for bare injunction against the petitioner herein. The parties could as well settle their rights in the said suit if they are so advised uninfluenced by any observations made in this writ petition.
8. One another thing which needs consideration in this writ petition is the legality of the order of the Assistant Commissioner. That was an appeal filed under Section 136(2) of the Karnataka Land Revenue Act after a lapse of 12 years from the date of mutation entry made in favour of the petitioner on 20-8-1991. An appeal is required to be filed against the order of the Tahsildar within 60 days. There is no whisper in the order regarding the condonation of delay. It is settled law that unless the Courts condone the delay in filing the proceeding before it, the Court does not get jurisdiction to entertain a proceeding. That itself is an illegality committed by the Assistant Commissioner. Therefore, the impugned order does not stand to scrutiny. The writ petition is, therefore, allowed. The impugned order passed by the Assistant Commissioner is quashed.
9. Registrar General is directed to send a copy of the judgment to all the Deputy Commissioners of Dharwad, Belgaum and Bijapur and new districts of Haveri, Gadag District to give further instructions to their subordinate Revenue Officers for necessary action in this regard.