N BHAGYALAKSHMAMMA Vs. SUBBULAKSHMAMMA

JUDGEMENT

(1.) THE petitioner herein filed this writ petition challenging Annexure-L, dated 29-4-2000 passed by the 9th respondent in Case No. RA 205/96-97, Annexure-R, dated 24-8-2002 passed by the 10th respondent in Case No. RA 37/2000-01 and to restore the mutation Entry M. R. No. 5/95-96, annexure-E in favour of the petitioner.

(2.) THE case of the petitioner is that late C. S. Narayana Rao, the husband of the deceased 1st respondent-Subbulakshmamma and father of respondents 2 to 4 being the Barabardar (Baravadhar) of Varamallenahalli Village pursuant to appointment order dated 7-5-1925 was in exclusive possession and enjoyment of the inam land bearing Sy. No. 1 measuring 6 acres 37 guntas of Varamallenahalli Village, Chickballapur Taluk. After coming into force of the karnataka Village Offices Abolition Act, 1961, late C. S. Narayana Rao made an application for grant of the said land in his favour. Accordingly, the said land was regranted in his favour by the tahsildar, Chickballapur in the year 1991 with certain conditions regarding alienation, etc. Accordingly, his name alone came to be entered as kabjedar in the revenue records as is evident from the record of rights and pahani for the year 1993-94 as per Annexure-A. Therefore, late narayana Rao being the absolute owner of the said land and since he was not in a position to cultivate the land decided to sell the land in order to help his children to construct a house at bangalore. Therefore, late Narayana Rao executed power of attorney in favour of respondent 5-M. R. Krishna, who is none other than the son of petitioner herein and the power of attorney came to be executed on 26 9-1994 as per Annexure-B by late C. S. Narayana Rao husband of 1st respondent, respondent 3-C. N. Chandrashekar Rao and other legal representatives of late C. N. Narayana Rao. An agreement of sale was entered into between the petitioner and deceased 1st respondent and respondents 2 to 4 and C. S. Narayana Rao sold the said properly for a sum of Rs. 65,000/- as per Annexure-A. The agreement of sale was executed on 26th of September, 1994. In pursuance of the agreement of sale, the power of attorney as per Annexures-B and Bl, sale deed came to be executed in favour of the petitioner through the power of attorney holder of the respondent 5 herein on behalf of respondents 1, 2 to 4 and late C. S. Narayana Rao, that too after obtaining necessary permission from the concerned revenue authorities to alienate the property as per Annexure-Cl, dated 29-3-1995 and the sale deed was executed on 31-3-1995 as per annexure-D. Therefore, after execution of the sale deed, mutation was effected in M. R. No. 5/95-96 and the name of the petitioner was entered in the record of rights for the year 1996-97 and patta book was issued as per Annexure-E2 and Annexure-E3 is the record of rights for the year 1999-2000. The petitioner is cultivating the land as the absolute owner. Annexure-G came to be filed by C. N. Chandrashekar before the Revenue Authority stating that his two brothers and his father executed power of attorney in favour of respondent 5-M. R. Krishna only to cultivate the land. So on the basis of the power of attorney respondent 5 executed sale deed in favour of his own mother the petitioner herein. Consequently, katha has been changed and the name of the petitioner has been entered in the record of rights. Therefore, respondent 3-Chandrashekar Rao seeks to set aside the sale deed and the land restored to their possession. So, on the basis of the representation dated 19-6-1996 at Annexure-G a case came to be registered before the Assistant commissioner in R. A. No. 205/96-97. Notice came to be issued and the same was allowed. The petitioner herein challenged the same before this Court in W. P. No. 36318 of 1997 and this Court by an order dated 13-7-1999 allowed the writ petition and quashed the impugned order and remitted the matter back to the Assistant Commissioner for fresh disposal in accordance with law. After remand Annexure-L came to be passed by the very Assistant Commissioner on 29-4-2000 allowing the appeal and setting aside M. R. No. 5 of 1995-96, directing the 5th respondent and the petitioner herein to approach the Civil Court to prove their title, which has been challenged by the petitioner before the Deputy Commissioner as per Annexure-R, dated 24-8-2002. The Deputy Commissioner passed an order holding that respondent 5 who has executed a sale deed was not a kathedar and the power of attorney has not been registered. Therefore, the Deputy Commissioner dismissed the appeal R. A. No. 37 of 2000-01 filed by the 5th respondent and the petitioner therein as per Annexure-R. Therefore, the petitioner herein has come up with this writ petition, as the very petitioner who has challenged the order passed by the 8th respondent. Tahsildar, Chickballapur, dated 8-8-2001 in Writ Petition No. 33877 of 2001 before this Court, which was allowed as per Annexures-Q and K in the said writ petition was quashed. The submissions made at the Bar and from the pleadings, it is clear that it is a dispute regarding the property rights between the petitioner and respondents 1 to 4. Such disputes have to be settled in a manner known to law. Therefore, the petitioner herein, being the purchaser of the land has come up with this writ petition to quash Annexures-L and R and restore the mutation Entry No. 5/1995-96.

(3.) RESPONDENTS 1 to 3 have taken the contention in the counter that there was a condition that land shall not be alienated for a period of 15 years from the date of regrant. After regrant, the katha came to be changed in favour of late C. S. Narayana Rao vide M. R. No. 2 of 1994-95. All the family members of C. S. Narayana Rao were and are in possession and enjoyment of the land in dispute after the land was re-granted by the Tahsildar. The katha also stands in the name of c. S. Narayana Rao and the entries in the pahanies were standing in his name and C. S. Narayana rao has paid Kandayam also. The General Power of Attorney came to be executed on 29-6-2004 by C. S. Narayana Rao in favour of 5th respondent to manage and develop the land in dispute on their behalf. But 5th respondent has executed an agreement of sale in favour of the petitioner who is none other than his mother by colluding with her with a mala fide intention of grabbing this valuable land. The power of attorney is not coupled with interest and it is not registered one. Respondents have developed the land in question by spending a lot of money and labour and made it garden land containing 500 coconut trees, borewell along with pump sets and motor and also put up sheds. The alleged sale deed said to have been executed by respondent 5 on 2-10-1994 in favour of the petitioner who is none other than his mother and the petitioner has claimed title to the property on the basis of the alleged sale deed said to have been executed by the power of attorney holder i. e. , 5th respondent. Since the power of attorney is not a registered document and it is not coupled with any interest and the said General Power of Attorney is compulsorily registerable document as per Section 17 of the Registration Act, 1908 and 5th respondent who is the power of attorney holder had no saleable interest to transfer the property in favour of the petitioner, as he was not the absolute owner of the property as on 31-3-1995. Therefore, the Assistant Commissioner and the Deputy Commissioner are right in recording the findings by holding a detailed enquiry. The Deputy Commissioner has clearly held that respondent 5 has no right to execute sale deed in favour of the petitioner as he is not the owner and the power of attorney is null and void and the Tahsildar has no jurisdiction to issue annexure-Rl when the writ petition is pending before this Court. Therefore, the order is one without any jurisdiction. At any stretch of imagination the Tahsildar cannot direct the change of katha in the name of the petitioner by sitting over the judgment of the Deputy Commissioner. Hence, the respondents 1 to 3 prays for dismissal of the writ petition.