Smt. R. Sharada Vs. The Commissioner And Ors - Court Judgment

SooperKanoon Citationsooperkanoon.com/1232892
CourtKarnataka Kalaburagi High Court
Decided OnFeb-12-2020
Case NumberWA 200131/2019
JudgeG.NARENDAR AND M.NAGAPRASANNA
AppellantSmt. R. Sharada
RespondentThe Commissioner And Ors
Excerpt:
1 r in the high court of karnataka kalaburagi bench dated this the12h day of february, 2020 present the hon’ble mr.justice g.narendar and the hon’ble mr.justice m.nagaprasanna writ appeal no.200131/2019 (lb-res) between: smt. r. sharada w/o late r. dharmaraj age:52. years, occ: household r/o 3-9-24, jain temple road raichur, dist. raichur … appellant (sri vidyashankar g. dalwai & sri mahantesh patil, advocates) and:1. the commissioner city municipality, raichur dist. raichur-584101 2. smt. geeta sanabal w/o pradeep kumar age:40. years, occ: household r/o h.no.7-6-255 (ganga nivas) vasavi nagar, raichur dist. raichur-584101 2 3. smt. jyoti sanabal w/o ramesh sanabal age:35. years, occ: household r/o h.no.7-6-255 (ganga nivas) vasavi nagar, raichur dist. raichur-584101 … respondents.....
Judgment:

1 R IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE12H DAY OF FEBRUARY, 2020 PRESENT THE HON’BLE MR.JUSTICE G.NARENDAR AND THE HON’BLE MR.JUSTICE M.NAGAPRASANNA WRIT APPEAL NO.200131/2019 (LB-RES) Between: Smt. R. Sharada W/o Late R. Dharmaraj Age:

52. Years, Occ: Household R/o 3-9-24, Jain Temple Road Raichur, Dist. Raichur … Appellant (Sri Vidyashankar G. Dalwai & Sri Mahantesh Patil, Advocates) And:

1. The Commissioner City Municipality, Raichur Dist. Raichur-584101 2. Smt. Geeta Sanabal W/o Pradeep Kumar Age:

40. Years, Occ: Household R/o H.No.7-6-255 (Ganga Nivas) Vasavi Nagar, Raichur Dist. Raichur-584101 2 3. Smt. Jyoti Sanabal W/o Ramesh Sanabal Age:

35. Years, Occ: Household R/o H.No.7-6-255 (Ganga Nivas) Vasavi Nagar, Raichur Dist. Raichur-584101 … Respondents (Sri Gourish S. Khashampur, Advocate for R1 Sri Ameet Kumar Deshpande, Advocate for R2 & R3) This Writ Appeal is filed under Section 4 of the Karnataka High Court Act, praying to set aside the order passed by the learned Single Judge in W.P.No.202410/2019 dated 18.06.2019 and consequently impugned notice dated 06.05.2019 bearing No.£À¸ÀgÁ/vÁAwæPÀ±ÁSÉ/¹Dgï/2019-20 issued by the respondent No.1 vide Annexure-K and allow the said writ petition, in the interest of justice and equity. This appeal coming on for Admission this day, Narendar J., delivered the following:

JUDGMENT

Heard the learned counsel for the appellant, learned counsel for the respondent No.1 and the learned counsel for the respondent Nos.2 and 3.

2. The appeal is listed for admission and same is taken up for disposal with the consent of the learned counsel appearing for the parties at this stage itself in view of the short point involved. 3

3. For the sake of convenience and brevity, the parties in the appeal, are referred to by their nomenclature in the writ petition.

4. The brief facts necessary for disposal of this intra Court appeal is as under; (i) It is the case of the petitioner that she is the absolute owner and in exclusive possession of the plot assigned No.B-5 bearing Municipal No.4-4- 101/18/1 (old), 4-4-560 (new), measuring 30 x 45 Sq. ft. and the open plot assigned No.B-6 bearing Municipal No.4-4-101/19/1 (old) 4-4-462 (new), measuring 30 x 45 Sq. ft. That, both the housing sites are situated in an approved layout formed in NA lands bearing Sy.Nos.1216/A, 1217/A and 1218/A of Raichur and that the layout is commonly known as Dhanalaxmi Layout, Zaheerabad, Racihur. (ii) It is further contended that the said properties are purchased under registered sale deeds dated 27.10.2010, registered as Document No.5794/2010- 4 11 and sale deed of even dated registered as Document No.5796/-2010-11, respectively. That after the purchase of the sites, the name of the petitioner came to be mutated in the Municipal records and that from the date of purchase, she is holding and enjoying the site properties as absolute owner. (iii) That the petitioner has paid tax to the Municipality regularly. Since both the housing sites are situated adjacent to each other and having common boundary, the petitioner desired to construct a house and applied for grant of sanction plan. The respondent No.1 by its proceedings dated 15.02.2019 bearing No.RCR-LBPAS-10384/18- 19/BP sanctioned the building plan.

5. It is alleged that, on 10.04.2019, husbands of respondent Nos.2 and 3 and their henchmen tried to obstruct the digging of a borewell work in the schedule property. The petitioner being aggrieved by the interference, 5 approached the Civil Court and got instituted a suit in O.S.No.95/2019, praying therein for permanent injunction against the husbands of respondent Nos.2 and 3, their henchmen and legal representatives. In the said suit, the petitioner had preferred an interlocutory application praying for an ex parte interim order under Order XXXIX Rules 1 and 2 of Code of Civil Procedure (‘CPC’, for short) and the trial Court appreciating the prima facie case made out by the petitioner was pleased to grant ex parte interim relief and thereby restrained the defendants and their henchmen, servants, legal heirs and legal representative from interfering with the petitioner’s peaceful possession. The order came to be granted on 18.04.2019.

6. After the grant of ex parte interim injunction, a complaint dated 27.04.2019 is lodged by the defendant Nos.2 and 3, which is produced at Annexure-J to the writ petition. On perusal of the same it reads as under; “£ÀªÀÄä ºÉ¸Àj£À°è £ÉÆAzÀuÉAiÀiÁzÀ SÁ° ¤ªÉñÀ£À ¸ÀASÉå 22, ªÀÄÄ£À¹¥À¯ï £ÀA.4-4-101/22, F ¤ªÉñÀ£ÀzÀ°è Dgï. ±ÁgÀzÁ UÀA. ¢. zÀs£ÀgÁd zËdð£Àå¢AzÀ CwPÀæªÀÄt¢AzÀ PlÀ ÖqÀ PlÀ ÄÖwÛzÀÄÝ F6PÁAiÀÄðªÀ£ÀÄß ¤°è¹ £ÀªÀÄUÉ £ÁåAiÀÄ PÉÆr¸ÀĪÀ PÀÄjvÀÄ.

7. The respondent No.1 on receipt of the complaint and acting with alacrity got issued the communication dated 06.05.2019 captioned as “¸ÀÆZÀ£Á ¥ÀvÀæ” (Intimation Letter) and under the said letter, reference to a complaint by respondent No.2 dated 30.04.2019. In the column subject it is recorded as under: “ gÁAiÀÄZÀÆgÀÄ £ÀUÀgÀzÀ ªÁqÀð £ÀAB13g°À è §gÀĪÀ zÀs£À®Qëäà ¯ÉÃOmï gÀ°è CwPÀæªÀÄt¢AzÀ PlÀ ÖqÀ ¤ªÀiÁðt ªÀiÁqÀÄwÛÃgÀĪÀ zÀÆj£À PÀÄjvÀÄ.

8. The petitioner aggrieved by the said Intimation Letter, which is produced at Annexure-K to the writ petition, preferred the writ petition seeking for the following reliefs:- “PRAYER a. Issue a WRIT in the nature of Certiorari to quash the impugned order dated:

06. 05.2019 bearing No.£À¸ÀgÁ/vÁAwæPÀ±ÁSÉ/¹Dgï/2019-20 passed by 7 the respondent No.1, vide Annexure-K, in the interest of justice.

9. The said writ petition came to be strongly resisted by the respondent Nos.2 and 3, who got filed their statement of objections and it was contended that the averments are false. It was further contended that the petitioner is constructing the house in plot No.22, measuring 40 x 60 Sq. ft. in Dhanalaxmi Layout, Raichur City and that the site belongs to the respondent Nos.2 and 3. That the said site was purchased by them under registered sale deed bearing Document No.11550 dated 03.11.2018 for valuable consideration and that by virtue of the sale deed, they have become the absolute owners of plot No.22. It is further alleged that the petitioner has created false sale deeds and false tax receipts and has got mutated the two alleged plots and has obtained the khatas and on the strength of the said document has obtained the sanction plan from respondent No.1 for putting up the construction and in paragraph No.4 of the statement of objections, respondent Nos.2 and 3 admitted the filing of 8 the suit. It is further admitted that the petitioner had started construction activities, like drilling borewell etc. and that they have objected to the same and at the time of objecting they were shown the order of temporary injunction and thereafter they filed the complaint with the respondent No.1, complaining about illegal construction in the property belonging to the respondent Nos.2 and 3 and that the respondent No.1 after noticing the illegality, rightly issued the impugned communication order, suspending the construction permission subject to verification of title documents.

10. That, the respondent Nos.2 and 3 have obtained e-khata in respect of plot No.22. That the petitioner had undertaken the construction with the intention of harassing the respondent Nos.2 and 3 on the strength of the order of the temporary injunction coupled with the interim order granted by this Court staying the operation of the impugned order, the petitioner is continuing her illegalities. 9

11. It is further contended that the respondent Nos.2 and 3 have also preferred a suit registered in O.S.No.14/2019 and have obtained an ex parte temporary injunction restraining the petitioner from interfering in their possession of plot No.22, and it is contended that the instant writ petition is not maintainable as the petitioner is also having an alternative remedy. Further, the impugned proceedings is sought to be supported by contending that the order suspending construction permission is neither arbitrary, illegal nor erroneous and that the order is made after it become known to the respondent No.1 that the petitioner is putting the construction in the plot belonging to respondent Nos.2 and 3. That, the impugned order only prevents the situation from worsening and hence the writ petition is premature and is liable to be rejected.

12. In the above background, the learned Single Judge has been pleased to dispose of the writ petition with a direction to the respondent No.1, that after the petitioner produces all her documents to inspect the plot personally, and then pass appropriate orders in accordance with law 10 within two weeks from the date of receipt of copy of the impugned order. The petitioner was further directed to furnish the copy of the order along with all the necessary documents which she has, pertaining to the construction of her building and the site on which she is putting up the construction. It is further ordered that till the respondent No.1 passes an order, the status-quo regarding direction issued by the respondent No.1 impugned before the Court was to be continued. Aggrieved by this, the petitioner is before us in this intra Court appeal.

13. It is contended by the learned counsel for the petitioner that the properties were purchased by her under a registered sale deed way back on 27.10.2010 and that immediately thereafter the name of the petitioner came to be mutated in the records of the City Municipality, Raichur and from the said date, she is in exclusive possession as absolute owner. That, as the sites abut each other, she applied for permission to put up construction in the property and the permission also came to be granted on 15.02.2019, and when there was interference by the 11 respondent Nos.2 and 3, she has approached the Civil Court and the Civil Court, appreciating the prima facie case of the petitioner was pleased to grant interim relief injuncting the respondent Nos.2 and 3 and that the respondent Nos.2 and 3 after being notified about the order have proceeded to lodged the complaint and that the respondent No.1 succumbing to political pressure has passed the impugned order, suspending the construction permission, granted to her.

14. The learned counsel would contend that the learned Single Judge has virtually permitted the respondent No.1 to usurp the jurisdiction conferred on the Civil Court by directing the respondent No.1 to adjudicate the issue of title. In this regard, he would invite the attention of the Court to the complaint, which is produced at Annexure-J to the writ petition. On reading of the same, it is apparent that the respondent Nos.2 and 3, have in categorical terms, complained to the respondent No.1 that the petitioner has encroached upon their land and is putting up the construction in a high handed manner. 12 That, the site over which the construction is being put up is actually plot No.22 and the petitioner has no right over the said plot and that the land over which the construction is being put up belongs to them.

15. Learned counsel for the petitioner further would contend that the very contents demonstrate that the factum of the complaint, pertains to the petitioner’s possession and title over the lands, which he would submit, is impermissible and he would also submit that the construction has been continued by her to a substantial extent. We are of the opinion that there is substance in the contention canvassed by the petitioner’s counsel.

16. Nextly, he would invite the attention of the Court to the impugned Intimation Letter, Annexure-K. He would further invite the attention of the Court to the caption wherein he would submit that neither the Act nor the Rules empower the authority to issue an Intimation Letter. He would further contend that the very caption would suffice to demonstrate that the proceedings is not in 13 exercise of the power vested in the respondent No.1 under the statute. He would contend that the impugned order nowhere states that the construction being put up is in violation of the sanctioned plan. He would further invite the attention of the Court to the operative portion of the impugned order and would submit that the respondent No.1 has called upon the petitioner to produce the title documents. He would contend that the jurisdiction to examine and adjudicate the validity of title over immovable property is vested in the Civil Court only and that by the impugned proceedings the respondent No.1 is attempting to usurp the jurisdiction conferred on the Civil Court under Section 9 of CPC.

17. Per contra, the learned counsel for the respondent No.1 would fairly submits that the factum of pendency of the civil suit before the jurisdictional Court was never brought to the notice of the authority and that had the said facts been brought to its notice, it would not have issued the impugned order. 14

18. Be that as it may, on the Court pointing that the impugned proceedings calls upon the petitioner to produce documents of title, he would fairly admit that the respondent No.1 has no authority to adjudicate the title dispute and he would once again reiterate the contention, that the authorities, at the relevant point of time, were unaware about the pending litigation and hence the petitioner was called upon to produce the title deeds on the complaint lodged by the respondent Nos.2 and 3.

19. Per contra, the learned counsel for the respondent Nos.2 and 3 would submit that mere alteration of site numbers would not vest any title in the petitioner and that as asserted in the statement of objections before the learned Single Judge, the respondent Nos.2 and 3 have also preferred a civil suit and in the said civil suit the petitioner had been injucted from interfering with their possession and enjoyment over plot No.22. He would contend that, by the impugned order, the learned Single Judge has merely attempted to expedite the process and 15 the same cannot be faulted with. He would support the findings and directions issued by the learned Single Judge.

20. We have perused the material on record and the proceedings impugned in the writ petition and the findings and conclusions of the learned Single Judge.

21. The short point that arises for our consideration in the instant appeal is, whether the learned Single Judge was right in directing the respondent No.1 to adjudicate the inter-se title claim dispute raised by the respondent Nos.2 and 3 under the complaint dated 27.04.2019 produced as Annexure-J to the writ petition.

22. Our finding to the above point is in the Negative.

23. From the reading of the impugned order, we are of the considered opinion that the learned Single Judge has virtually conferred the jurisdiction of the Civil Courts on the respondent No.1, which is impermissible. It is not the case of the respondents that any title or right over the suit schedule property is claimed by the Municipal Body 16 and had that been the case, we could have found some justification. What is more important is that, on the complaint by the respondent Nos.2 and 3 claiming title, the Municipal Body deemed it fit to call upon the petitioner to produce the documents of title. The claim of the title being asserted by the respondent Nos.2 and 3, adversely against the petitioner, it would have been at least logical, if the respondents were called upon to produce documents of title demonstrating their claim, but on the contrary the petitioner is directed to produce the documents of title. This is intriguing in the background of the fact, that it is the same authority which had sanctioned the building plan. The Act and Rules mandate, that a building plan for approval has to be accompanied by several documents and one amongst them is the document of title. It is also the law that a building plan can be approved only after inspecting the site. If this be position in law, as per the statute, it is not made known why the respondent No.1, ignored these documents in its possession. It is not the case of the respondent No.1 that, it had perused the title 17 documents of the respondent and that of the petitioner. Had such an exercise preceded the impugned order, ordering suspension of the construction work and plan, they could have albeit pleaded that their exercise was a bonafide attempt.

24. On perusal of Annexure-J, the complaint, we do not find any reference, which demonstrates the production of documents by the respondent Nos.2 and 3. On this count alone the impugned proceedings of the respondent No.1 is liable to be held as arbitrary. Secondly, it is settled law that in a inter se disputes involving private parties, the courts have consistently held that it is not open for the authorities to adjudicate the lis involving title dispute and which exactly is what the respondent No.1 has attempted to do in the instant case. Further, the observations of the learned Single Judge that there is no lis insofar as it relates to site No.22, it virtually amounts to a declaration by the learned Single Judge that property bearing No.22 vests in the respondents and which is in our opinion beyond the scope of the writ petition and it 18 virtually amounts to a declaration of the claim asserted by the respondent Nos.2 and 3. Such a declaration is impermissible. Further, the learned Single Judge erred in construing the impugned proceedings by the respondent No.1 as a show-cause notice.

25. On a plain reading of the impugned proceedings, it is apparent that the petitioner has been called upon to produce documents of title. The impugned proceedings does not even whisper about any illegality in the sanction accorded to the petitioner, nor is there even a whisper about construction being contrary to the sanctioned plan. Furthermore, the learned Single Judge after having noticed the pendency of litigation before the jurisdictional courts, seriously erred in conferring the jurisdiction to look-in and adjudicate the title right of the parties. The said direction is unsustainable and it would virtually amount to permitting the executive to usurp the jurisdiction of the Civil Court vested in it under the provisions of Section 9 of the CPC. 19

26. In this regard reliance is placed on the observations and findings of the Hon’ble Full Bench rendered while disposing off the W.P.No.6872/2013 (KLR). The following paragraphs are extracted to demonstrate that the issue is no more res-integra. The Hon’ble Full Bench in paragraph 59 has placed reliance on ruling by an other co- ordinate Bench rendered in the case of C.N. Nagendra Singh Vs. The Special Deputy Commissioner, Bangalore District and Others, reported in ILR2002KAR2750 as under; “59. He further contended that the second question under reference relates to competence of revenue officials (Revenue Court) to adjudicate complex adversarial revenue disputes relating to title. The said question is no more res integra. This Court, in the case of C.N. Nagendra Singh vs. The Special Deputy Commissioner, Bangalore District and others reported in ILR2002KAR2750and held that the revenue courts are precluded from going into title of property and revenue authorities have no jurisdiction to find out whether sale deed is valid or not.” 20 Thereafter in paragraph 62 the citations relied upon by the State has been succinctly noted as follows:- “62. In support of his contentions, learned Advocate General relied upon following judgments. REVENUE COURTS PRECLUDED FROM GOING INTO TITLE (i) C.N. Nagendra Singh -vs- The Special Deputy Commissioner, Bangalore District and Others reported in ILR2002KAR2750(FB) (head note and para 8); (ii) Bhagwan Dayal (since deceased), by LR., Bansogoal Deney and Another - vs- Mst. Reoti Devi (deceased) represented by her daughter Mst. Dayavati reported in AIR1962SC287(para 8 and

13) Revenue Court is precluded from going into title. It cannot decide title to property; (iii) N. Vasudevaraju and Another -vs- The Deputy Commissioner, Ramanagaram District, Ramanagaram and Others reported in 2011(1) Kar LJ422(para 12 to 17, 18); (iv) Sri Basappa Ningappa Makapur -vs- The Assistant Commissioner and Others reported in 2001(1) KCCR488(head note and para 7 &

8) - Revenue authorities have no jurisdiction to find out whether sale deed is valid or not; 21 (v) The State of Gujarat -vs- Patil Raghav Natha and Others reported in 1969 (2) SCC187(para

14) - Commissioner under Land Revenue Act cannot go into the question of title; (vi) Offshore Holdings Private Limited - vs-Bangalore Development Authority and Others reported in 2011(3) SCC139(para 67 &

71) - Entries in 7th Schedule are not source of power, but merely demarcate fields legislation and that these are to be construed liberally and widely so as to attain the purpose. (vii) Ujagar Prints -vs- Union of India reported in 1989 (3) SCC488(const. Bench)(para

48) - Entries to the legislative list are merely topics of fields of legislation and must receive a liberal construction inspired by a broad and generous spirit and not in a narrow and pedantic sense. The expression "with respect to" in Article 246 brings in the doctrine of "pith and substance" in the understanding of the exertion of the legislative power and wherever the question of legislative competence is raised the test is whether the legislation, looked at as a whole, is substantially 'with respect to' the particular topic of legislation. If the legislation has a substantial and not merely a remote connection with the 22 entry, the matter may well be taken to be legislation on the topic. (viii) State of Rajasthan -vs- Shri G. Chawla and Dr. Phumal reported in AIR1959SC544(para

8) - Legislature possesses plenary powers of legislation. Power to legislate includes power to legislate on ancillary matters. (ix) Bidi, Bidi Leaves and Tobacco Merchants' Association, Gondia and Others -vs- State of Bombay and Others reported in AIR1962SC486(para

20) - If legislation enables something to be done, it gives power by necessary implication to do something which is indispensable for carrying out the purpose. (x) Khatija Bi -vs- State of Karnataka & Others reported in 1975 (2) Kar LJ (para 10, 24 to

29) (xi) H.S. Srinivasa Raghavachar and Others -vs- State of Karnataka and Others reported in 1987(2) SCC602(head note & para

8) - Layman Land Tribunal constituted under the Karnataka Land Reforms Act is not illegal or ultravires the Constitution. (xii) Khazan Singh (Dead) by LRs -vs- Gurbhajan Singh and Others reported in 2007 (3) SCC169(para

16) 23 (xiii) Binani Zinc Limited -vs- Kerala State Electricity Board and Others reported in 2009 (11) SCC244(para 25 & 26)- Court cannot issue writ to legislature to law. (xiv) M/s. Narinder Chand Hem Raj and Others - vs- Lt. Governor, Administrator, Union Territory, Himachal Pradesh and Others reported in 1971 (2) SCC747(para 7); (xv) State of Himachal Pradesh and Others -vs- Satpal Saini reported in 2017(11) SCC42(para 7 to

11) - Court cannot issue writ to legislate or even frame Rules; (xvi) Dundappa -vs- Sundrawwa and Others reported in 2017(6) Kar LJ138(para 9 &

10) Section 135 makes it clear that its proviso enables institution of a suit against any person denying or interest to denying for relief of declaration. Similarly, Section 62 also enables private parties to institute a civil suit in the Civil Court for the purpose of establishing their private right although it may be effected by any entry in any land record.” In paragraph Nos.68 & 69, the Hon’ble Full Bench has examined the intention behind the legislation of the Land Revenue Act which is as under:- 24 “68. The intention of the legislature while enacting the Karnataka Land Revenue Act is the assessment and recovery of land revenue, the land revenue administration and other matters as contemplated under Entry 45, List II, Schedule VII of Constitution of India and nothing beyond that. In view of the reference/questions framed by learned Single Judge, it is relevant to consider the provisions of Chapter VI- 'Revenue Jurisdiction' i.e., Sections 60 to 66 and Chapter XI- 'Record of Rights' - Sections 127 to 136. The provisions of Section 61(1) clearly defines the exclusive jurisdiction of Revenue Courts to determine, decide or dispose of any matter which is empowered to do so under the Act and no Civil Court shall exercise jurisdiction as to any such matters. That is, the assessment, the recovery of land revenue, the land revenue administration and other matters mentioned in Section 61(2) of the KLR Act i.e., (a) claims against government relating to any property pertaining to any office or for any service whatsoever, (b) objections- (i) to the amount or incidence of any assessment of land revenue, or (ii) to the mode of assessment or levy, or to the principle on which such assessment or levy is fixed, or (iii) to the validity or effect of the notification of survey or settlement; 25 (c) claims connected with or arising out of any and the proceedings for realization of land revenue or other demands recoverable as arrears of land revenue under the Act, or any other law for the time being in force; (d) to set aside the claims, on account of irregularity, mistake or any other ground, except fraud, sales for arrears of land revenue etc.

69. The provisions of Section 61 of the Act is the exclusive Jurisdiction of Revenue Courts and bar of jurisdiction of Civil Courts. The only relevant exception is Sub-Section (c) of Section 62 of the Act which provides that, suits between private parties for possession of any land being a whole survey number or sub-division of a survey number or part thereof, but, this is not a suit falling within the ambit of the provision. When the Civil Court has no jurisdiction to hold that an entry made in any record of revenue survey or settlement is wrong, it cannot, in law, proceed to grant the relief as prayed for by the plaintiff because the relief is based on such a finding to be recorded by the Civil Court.” With regard to the futility of the proceedings before the revenue authorities in so far as it relates to determination of issues relating to title, Hon’ble Full Court held as under; 26 “83. Though the Land Revenue Act came into force on 19th March, 1964 any persons affected by an order under Sub-section (4) or (6) of Section 129 before such officer prescribed (Assistant Commissioner) by the State Government and the Deputy Commissioner on his own motion or on application of a party, call for and examine any records made under Sections 127 and 129 and pass such orders as he may deem fit. The fact remains that any order made by the Assistant Commissioner or Deputy Commissioner under Chapter-XI of the Land Revenue Act is neither final nor conclusive even after more than five decades and the aggrieved parties have to approach this Court under Articles 226 and 227 of the Constitution of India or file a suit for declaration of rights.

84. Admittedly the object of the Act is only relating to land, the assessment and recovery of land revenue, the land revenue administration and other matters as contemplated under Entry 45 List- II of Seventh Schedule to the Constitution of India.

85. The scope and object of the Act is only to deal with the land revenue including assessment and collection of revenue, maintenance of land revenue records, survey for revenue purpose, record of rights and alienation of revenue and authorities under Land Revenue Act have no 27 jurisdiction to decide the title between the parties in respect of immovable property.” The Hon’ble Full Bench has further elaborated by placing reliance the law laid down by the Hon’ble Apex Court in paragraph 87 as under:- “87. The Hon'ble Supreme Court while considering the powers of Revenue Court in the case of Bhagwan Dayal -vs- Reoti Devi reported AIR1962SC287at paragraphs- 8 and 13 has held as under:

"8. We shall first take the question whether the judgment of the Revenue Court passed on the findings recorded by the District Munsif in Suit No.15 of 1939 operates as res judicata in the present suit in respect of the plaintiff's right to succeed to the share of her husband, Raghubar Dayal, in the joint properties. Some of the facts relevant to the question may be recapitulated. The respondent Reoti Devi filed Suit No.15 of 1939 in the Revenue Court for recovery of her share of profits of Village Chaoli against Bhagwan Dayal in respect of 1343, 1344 and 1345 Fasli on the ground that she was his co- sharer. The present appellant, who was the defendant in that suit, contested the suit, inter alia, on the ground that he 28 and his deceased brother constituted members of a joint Hindu family and that on his brother's death his interest in the entire joint family property devolved on him by right of survivorship. As the defendant raised the question of title, the Revenue Court framed an issue on the question of title raised in the pleadings and referred the same to the civil court for decision under Section 271 of the Agra Tenancy Act, 1926 (hereinafter called the Act). The learned District Munsif decided the issue against the appellant herein, with the result that the Revenue Court made a decree on the basis of that finding in favour of the respondent herein. Against the said decree, the appellant preferred an Appeal (No.65 of 1941) to the District Court, Agra, but that appeal was dismissed. The second appeal filed by him in the High Court of Allahabad was also dismissed. The result of that litigation was that a decree was given in favour of the respondent herein for recovery of her share of the profits of village Chaoli. The question is whether the said decree operated as res judicata in the present suit. The learned Judges of the High Court differed on the question of res judicata; Agarwala, J., held that the said decision of the Revenue Court in Suit No.15 of 1939 did not 29 operate as res judicata, while Gurtu, J., held that it did.

13. The first query is whether the present sun is based on a cause of action in respect of which relief can be obtained by means of a suit specified in the Fourth Schedule to the Act. The present suit is for a declaration of the plaintiff's title to the plaint schedule properties and for an injunction restraining the execution of the decree obtained by the defendant in the Revenue Court. The plaintiff claims title to the suit properties on the ground that he was a member of a joint Hindu family along with his deceased brother and, therefore, he succeeded to his share by right of survivorship. The question is whether such a suit is in the nature of suits specified in the Fourth Schedule to the Act. The said Schedule does not provide for any suit by a person claiming to be the proprietor of a property and in possession thereof praying for a declaration of his title and for an injunction against another who is trying to interfere with his title. If so, under Section 230 of the Act, the Revenue Court has no exclusive jurisdiction to entertain a suit of the nature that is before us. If it is not a suit of that nature, under that section, the civil court's jurisdiction is not ousted. A Full Bench of the Madras High Court 30 had occasion to consider a similar question arising under the Madras Estates Land Act, 1908, in Venkatarama Rao v. Venkayya [AIR1954Mad 788]. . There, certain tenants filed a petition under Section 40 of the Madras Estates Land Act, 1908, in the Revenue Court for commutation of rent against the landholders. The landholders raised the plea that the village in which the petitioners' lands were situated was not an estate and, therefore, the petition was not maintainable in the revenue court. The Revenue Divisional Officer held that it was not an estate and, on that finding, dismissed the petition. The matter was taken up on appeal to the District Court and thereafter to the High Court without success. Subsequently, the landlords filed a suit in the civil court against the tenants for an injunction restraining them from removing the paddy crops standing on the suit lands until the rent was paid to them. The landholders raised the plea that the decision of the Revenue Court holding that the village was not an estate was binding on the civil court. The Full Bench of the Madras High Court held that the said finding was not binding on the civil court. Adverting to Section 189(3) of the Madras Estates Land Act, which corresponds to Section 230 of the 31 present Act, the learned Judges observed thus at p. 790:

"Therefore, it is clear that it is only in respect of such disputes or matters as are covered by the suits or applications specified in Section 189(1) that the Revenue Court can be said to have exclusive jurisdiction, that is, jurisdiction to the exclusion of a civil court. *** If a particular matter is one which does not fall within the exclusive jurisdiction of the revenue court, then a decision of a Revenue Court on such a matter, which might be incidentally given by the revenue court, cannot be binding on the parties in a civil court."

"We agree with the said observations. On the same analogy, the present suit was not within the exclusive jurisdiction of the Revenue Court and, therefore, the suit in the civil court was maintainable. If so, Section 11 of the Code of Civil Procedure is immediately attracted to the present suit. The relevant part of Section 11 of the Code reads:

32. /p>

"11. No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court."

In this case the title to properties now put in issue was tried in the Revenue Court. But that court is not competent to try the present suit in which the same issue is raised. It follows that in terms of Section 11 of the Code, the decision on the said issue in the Revenue Court could not operate as res judicata for the necessary condition of competency of that court to try the present suit is lacking."

Proceeding further, the Hon’ble Full Bench has concluded in paragraph 95 as follows:- “95. For the reasons stated above, question No.1 framed under reference has to be answered in the affirmative holding that the State is 33 authorized to enact the law under Entries in List-II of Seventh Schedule in the background of constitutional mandate under Article 246 (3) of Constitution of India and not to traverse beyond authorized field of legislation set out in Entry 45. Entry 65 is not applicable with regard to revenue matters. Accordingly, question No.2 has to be answered in negative holding that the revenue officials in the rank of Assistant Commissioner/Appellate Authority and Deputy Commissioner/Revisional Authority under provisions of Section 136 (2) and (3) of the Karnataka Land Revenue Act cannot decide the dispute between interse parties involving adjudication relating to title and possession and they are authorized only to decide the entries based on the source of title.” A useful reference could also be made to the observation of the Full Bench at paragraph 100 as under:- “100. It is the experience of this Court that though the aggrieved or affected parties by an order passed under the provisions of Sub-section (4) or an entry certified under Sub-section (6) of Section 129 or records made under Section 127 or 129 under Chapter XI of the Karnataka Land Revenue Act can file an appeal under Section 136(2) of the Karnataka Land Revenue Act before such Officer as may be prescribed by the State Government (Assistant Commissioner) 34 whose decision shall be final and Deputy Commissioner may on his own motion or on the application of a party, call for and examine any records made under Sections 127 and 129 of the Act. The fact remains that even after a lapse of five decades, the party who approaches the revenue authorities on either of the provisions stated supra neither final nor conclusive and ultimately aggrieved party either from the order of the Assistant Commissioner or Deputy Commissioner or writ or Division Bench or upto Supreme Court, proceeding under those provisions, ultimately has to approach the competent Civil Court to decide his title or possession in respect of immovable property. The procedural aspect either appeal or revision is a long drawn litigation before the revenue authorities and ultimately, the revenue authorities have no jurisdiction to decide the title between the parties except the entries based on source of title and there is no need for the aggrieved party to necessarily undergo a futile exercise for any entry made either under the provisions of Section 127 or 129 of Karnataka Land Revenue Act. Therefore, it is for the litigant, to directly approach the competent Civil Court, aggrieved by any order or entry made either under Section 127 or 129 of KLR Act in order to avoid futile exercise which is in violation of the provisions of Articles 14 and 21 of Constitution of India.

27. The learned Single Judge has also failed to appreciate the fact that the impugned proceedings do not 35 refer to any illegality, either in the grant of the permission or any violation in the construction that is being put up. The Learned Single having noticed that the issue was seized of by the jurisdictional Court, ought not to have issued the direction in the nature it has now proceeded to grant. The said direction virtually nullifies the validly instituted suit and pending before the jurisdictional Court. Furthermore, on perusal of the documents and on perusal of the petition averments, it is obvious that the petitioner has traced her title to a sale deed registered in the year 2010, which in turn refers to a sale deed executed in favour of the predecessor-in-title in the year 2002. On the contrary, the sale deed in favour of the respondent Nos. 2 and 3 is executed by their predecessor-in-title in the year 2018 who traces his title to a sale deed of the year 1984- 85. But interestingly the sale deed in favour of respondent Nos.2 and 3 produced as Annexure-R refers to mutation proceedings of the year 2014-15 dated 30.10.2014. The claim of the petitioner that she has been continuingly paying taxes is also not rebutted. Further, it is the claim of 36 the petitioner that her name has been mutated in the revenue records of the City Municipality as early as in 2010 itself. The copies of the property assessment registers are produced as Annexures-C & D.

28. Be that as it may. In these appeal proceedings, we do not intend to discuss or declare the rights of either of the parties, which is to be exclusively gone into by the jurisdictional civil courts and determined after a full-fledged trial. The above point noted by us, are some of the aberrations, which in our considered opinion the learned Single Judge has failed to take note of. In the light of the above, we are of the considered opinion that the order of the learned Single Judge is unsustainable and does not stand the test of law. In that view of the matter, this intra Court appeal is required to be allowed and is accordingly allowed. The final order dated 18.06.2019 passed by learned Single Judge in W.P.No.202410/2019 is set aside. 37 Consequently, the writ petition is allowed. The impugned proceedings bearing No.£À¸ÀgÁ/vÁAwæPÀ±ÁSÉ/¹Dgï/2019-20 dated 06.05.2019, issued by the respondent No.1 vide Annexure-K to the writ petition stands quashed. It is made clear that the trial Court shall not be influenced by the findings rendered by this Court in the consideration and disposal of the writ appeal. The trial courts have to independently consider and dispose of the suits uninfluenced by any of the observations made herein above. In view of disposal of main appeal, I.A.No.4/2019 does not survive for consideration, accordingly same stands disposed of. Sd/- JUDGE Sd/- JUDGE BL/Chs*