VENKATAMMA Vs. STATE OF KARNATAKA - BY ITS SECRETARY REVENUE DEPARTMENT, M S BUILDINGS BANGALORE 1 AND OTHERS

JUDGEMENT

(1.) PETITIONERS have sought for quashing the order dated 18.3.1989 -annexure H by the Land Tribunal, Hoskote in LRF A D 187:175 -176 As illegal and opposed to law; issue appropriate order against respondents 3 to 4 for committing fraud and for such other orders.

(2.) ACCORDING to the petitioners, one Venkatagiriyappa husband of the 1st petitioner was the absolute owner in possession and enjoyment of the property in Sy.No.44 of Devalapura Village measuring about 5.14 acres having purchased the same under sale deed date 6.8.1949. It is alleged, the 3rd respondent having tampered the revenue records filed a frivolous application in Form 7 claiming occupancy rights in respect o the property before the Land Tribunal, Hoskote. The RTC extracts issued by the revenue authorities for the year 1968 -69 up to 1973 -74 clearly indicate the name of the husband of the petitioner as khabjedar and cultivator. However, according to the petitioners, by tampering the RTC, the 3rd respondent for the year 1973 -74 up to 1976 -77 produced the same before the Land Tribunal which are at annexure B series. According to the 1st petitioner, her husband earlier had challenged the order of the Land Tribunal granting occupancy rights in favour of the 3rd respondent in WPs 221 -222/1977 and the same was allowed and matter was remanded to the land Tribunal for fresh disposal. In the meanwhile, her husband had executed nominal sale deed in favour of the father of the 2nd petitioner. However, this 2nd petitioner's father did not make any efforts to obtain the katha and the revenue entries and he died subsequently on 10.6.1997 and thereafter, 2nd petitioner succeeded him to the estate. It is also stated, 2nd respondent Land Tribunal had conferred occupancy rights in favour of 3rd respondent to an extent of 1.30 acres However, after remand once again, the Land Tribunal granted occupancy rights in respect of 5.14 acres in favour of 3rd respondent during March 1989. As per the grant order dated 16.11.1989 issued in favour of the 3rd respondent, no sale could be made for fifteen years i.e., till November 2004. According to the petitioner, after remand, no notice is said to have been given to Venkatagiriyappa during his life time and, he died on 3rd September 1986 leaving behind the 1st petitioner, the only legal heir. According to the petitioners, this Venkatagiriyappa had not been served with notice during his life time however, after his death also, even without bringing the petitioner on record and on the basis of false affidavit by the 4th respondent -Munireddy, against whom Venkatarigiriyappa had obtained decree for declaration and junction stating that there are no legal heirs of late Venkatagiriyappa, the Land Tribunal has granted occupancy rights in respect of entire land to 3rd respondent. Also according to the petitioner she came to know about the order passed only in Sept 2004 when there was disturbance to her possession hence, this petition filed on 17.11.2004. It is stated that 5th respondent purchased the entire extent of land under two sale deeds from Krishnappa and sale deed is also signed by Respondents 4 and 7. It is the specific case of the petitioners, based on the false affidavit filed by 4th respondent - Munireddy, against whom the husband of the petitioner had obtained a decree of declaration and injunction, that there are no other legal heirs, of Venkatagiriyappa, an order has been obtained by the Land Tribunal granting occupancy rights in respect of entire land to 3rd respondent. Thus, according to the petitioner, throughout she is in possession of the suit property, she was not aware of the exparte order and since there is a threat to possession as such, writ petition is filed on 17.11.2004.

(3.) ACCORDING to the petitioner's counsel, 4th respondent filed a false affidavit stating that Vekatagiriyappa had no legal representative other than himself whereas petitioner is undisputedly the legal representative of Venkatagiriyappa and she has been neither notified nor brought before the Land Tribunal. Relying solely on the basis of collusive statement, Land Tribunal has granted occupancy rights. The order of the Land Tribunal is not a speaking order. In the RTC for the year 1973 -74 i.e., as on 1.3.1974, name of Venkatagiriyappa is shown as 'svantha' and it is also endorsed by the revenue authorities As such, it clearly establishes that petitioner being a necessary party, was not made as a party. In this regard, counsel relies upon the case of Khetrabasi Biswal Vs. Ajaya Kumar Baral and Others, (2004) 1 BLJR 486 wherein referring to O 1 R 9 and 10(2), CPC for non -joinder of necessary parties, it is held order passed is nullity and has no binding effect. As such, collusion and fraud has affected the right of the petitioner. In this regard, learned counsel has also relied upon the Apex Court decision in the case of Ram Chandra Singh v. Savitri Devi and Ors - (2003) 8 SCC 319 to contend that the court has got inherent jurisdiction to grant relief on such application and principles of resjudicata will not apply if the decree is found to have been obtained by fraud and, counsel has also relied on one more case on the point in the case of Indian Bank Vs. M/s. Satyam Fibres (India) Pvt. Ltd., (1996) 6 AD SC 112 Further, counsel has relied upon the decision in the case of Shri K. Ramadas Shenoy Vs. The Chief Officers, Town Municipal Council, Udipi and Others, AIR 1974 SC 2177 to contend that acquiescence cannot validate a void order and one more decision on the point in the case of Union of India (UOI) and Others Vs. Naman Singh Sekhawat, JT (2008) 4 SC 150 . Counsel has also relied on the case of State of Orissa and Ors v. Ms. Surya Rana - 2001 (8) Supreme 519 to contend that when an order is obtained by fraud, delay will never come in the way of setting aside such orders as it will be against public policy.