C P KALAPPA Vs. TAHSILDAR VIRAJPET TALUK KODAGU

JUDGEMENT

(1.) THESE petitions are filed by C. P. Kalappa and four others challenging the order dated 28-8-2004 in Case No. LR/inam/1/83-84/87-88 connected with proceedings No. MAG 71/2002-2003 at Annexure-B. They also want for a direction directing the fourth respondent to get the allegations levelled in the writ petitions enquired into by COD or any other high level agency followed by appropriate action to secure the ends of justice.

(2.) PREDECESSORS of the petitioners obtained vast extent of lands by way of usufructuary mortgage for a period of 99 years under two mortgage deeds during the years 1955 and 1967 bearing Survey Nos. 9, 10, 12 and 13 of Bettageri Village from the predecessor in title of the 2nd respondent Sri N. Channabasava Deshikendra Swamigalu (for short, 'swamiji' ). Petitioners sticceeded to the said mortgaged property along other successors of the original mortgage. They are in actual possession of the property. The bulk of the properties are cultivated with coffee and the coffee registration certificates are all standing in the name of the petitioners. The said property so mortgaged were inam lands and the mortgages have been accorded according to the then law in force by obtaining prior permission of the State Government. After coming into force of the Kamataka Certain Inams Abolition Act, 1977 ('inams abolition Act', for short), second respondent preferred an application before the 1st respondent seeking occupancy rights of the mortgaged property by filing Form 1. Same was allowed by the Tahsildar on 11-2-1993. Petitioners challenged the same in this Court in Writ petition No. 6379 of 1993. This Court ruled that the second respondent is not entitled for the occupancy rights and the petitioners are also not entitled to continue in possession of the mortgaged lands. This Court further ruled that the lands vest with the State Government and the state Government should resume the lands for distribution to the landless persons. Appeals were filed against the said order in Writ appeal Nos. 5689 of 1997 and 5816 of 1997 (N. Channabasava desikendra Swamigalu v C. P. Poonacha and Others, ILR 1999 Kar. 4394 (DB) ). A Division Bench of this Court confirmed the occupancy rights granted by the Land tribunal in favour of the Swamiji subject to the mortgage deeds. This court in terms of the order dated 14-6-2002 corrected the errors in terms of I. A. No. 2 of 2002. Against the said order of correction, Swamiji had preferred SLP before the Supreme Court and leave has been granted without continuing the stay in the matter. Petitioners refer to various litigations including two writ petitions challenging the issuance of Form 5 and also the transfer of revenue records in favour of second respondent. The appeal preferred against the transfer of revenue records in favour of second respondent in obedience to the directions of this court is still pending disposal. Two civil suits are also pending in O. S. No. 92 of 2002 and O. S. No. 74 of 2001 in the matter.

(3.) ACCORDING to the petitioners, first respondent-Tahsildar, behind the back of the petitioners passed an order dated 28-8-2004 in Case No. LR/inam/1/83-84/87-88. The said case was disposed of along with a connected matter in No. MAG 71/2002-2003 authorising the second respondent to evict the petitioners from the occupation of the mortgaged lands. The said order was not at all pronounced in the open Court. First respondent had issued a notice to the petitioners on 21-8-2004 calling upon them to appear before him on 28-8-2004. Petitioner-Kalaiah attended the Tahsildar's office but the first respondent the Tahsildar did not turn up to the office at all on 28-8-2004. Therefore, the order at annexure-B was not pronounced in the open Court. The author of annexure-B, the third respondent herein retired from service on 31-8-2004. Till his retirement he did not pronounce the impugned order at all. According to the petitioners third respondent prepared the impugned order on 2-9-2004 in collusion with the second respondent ante dating it as 28-8-2004 and planted it into the office file on 2-9-2004. Second respondent is a Mathadipathi and politically influential person and has won over the first respondent in terms of the petition averments. Petitioners therefore say that Annexure-B is a fabricated document. Second respondent taking advantage of the impugned order is making all efforts to dispossess the petitioners from their lawful possession of the lands by physical force. Moreover, the second respondent prevented the petitioners in the matter. Police registered a case against the second respondent under the Act. A copy of the FIR is filed in these writ petitions. The impugned order is without basis. It is a concocted order. Petitioners state that the second respondent is entitled to be in actual possession of the mortgaged property only after the mortgage period of 99 years expires and not before that. The lands vested with the State government under Section 4 (b) of the Karnataka Land Reforms Act, 1961 are subject to mortgages and not free from mortgages. The impugned order is without authority of law, illegal and without jurisdiction. Petitioners want this Court to set aside the impugned order in these petitions.