MUNIYAPPA Vs. STATE GOVERNMENT REVENUE DEPARTMENT

JUDGEMENT

(1.) THIS is a Writ Petition filed Under Article 226 and 227 of Constitution of India dt: 26-04-2004 passed by the Spl. Deputy Commissioner, Bangalore in Revision Petition No. 28/2002-03 at annexure-'j' by restoring the revenue in entries in favour of the Petitioner in respect of land bearing Sy. No. 47/1, Balagere Village in Varthur Hobli to the extent of 1. 34 guntas.

(2.) HAVING heard the learned Counsel for both the parties the short point that arises for consideration and determination is, whether the order under challenge passed by the Revenue authorities without appreciating the contentions taken by the petitioner over the knowledge of the orders passed are liable to be quashed.

(3.) IT is seen that petitioner-Muniyappa is stated to be the nephew of one Yellamma through whom he claims to be the owner of the property hearing Sy. No. 47/1 situated at Balagere village, varthur Hobli, Bangalore South Taluk, Bangalore to the extent of 1 acre 34 guntas. In order to show that she was the owner and in possession of the said item of the land, the petitioner has produced the documents like record of rights, mutation extracts and her name has been continued till 1982-83 in the concerned records. This fact has not been seriously disputed by the contesting respondents. During the year 1983-84 till 1987-88 the name of the petitioner has been entered in column Nos. 9 and 12 (2) shown both as a cultivator and owner in possession. Likewise name of one Patel Ramaiah Reddy the father of 5th respondent is also entered against column No. 9 as per M. R. No. 5/84-85 but his son's name has not been shown against column No. 12 (2 ). During the year 1984-85 upon 1987-88 though his name has been shown against column No. 9 this fact has been clearly mentioned in Annexure-B the record of rights produced by the petitioner. Subsequently, the name of the petitioner has been deleted and Ramaiah Reddy's name has been entered in both columns No. 9 and 12 (2) and record of rights Annexure-k for the year 1988-89 in the mutation M. R. No. 5/84-85. However, the name of Ramaiah Reddy has been entered in the owners column as well as in cultivators column but the name of petitioner herein has been deleted. Therefore, it is clear when the mutation M. R. 5/84-85 for the year 1988-89 name of muniyappa has been drawn for the reasons best known to the revenue authorities later the name of late Ramaiah Reddy is shown. Even the 5th respondent and the 6th respondents were unable to produce any prima facie evidence to show that their father's name has been entered in column no. 9 and 12 (2) of Record of Rights on the basis of the documentary evidence. Therefore, the petitioner who claims the property in the capacity under unregistered gift deed is said to have been executed by Yellamma his maternal aunt so also claims property as successor. Since, no opportunity was given before deleting the name of the petitioner in both column Nos. 9 and 12 (2) of record of rights in respect of land Sy. No. 47/1, after coming to know of his fact, the petitioner herein has applied for certified copy and thereafter filed an appeal before the Assistant commissioner in R. A. No. 31/2000-01, with an application for condonation of delay stating that he was not aware of the impugned order passed by the 4th respondent in M. R. No. 5/84-85. He came to know about the death of Ramaiah Reddy when the 1st respondent made an application before the respondents to accord katha. Therefore, there is a delay in filing the appeal before the asst. Commissioner. Of course the delay has been explained by the petitioner but the Asst. Commissioner dismissed the appeal filed by the petitioner on the ground that even though he had the knowledge about the M. E. No. 5/84-85 passed long back; the record of rights and other records produced by him for the year 1981-84, but the appeal came to be filed in 2000. Considering the fact that Hon'ble Apex Court in recent Judgment in the case of Balakrishnan v. M. Krishnamurthy reported in 1998 VI AD (SC )465 , AIR1998 SC 3222 , (1999 )1 CALLT51 (SC ), 1998 (2 )CTC533 , JT1998 (6 )SC 242 , (1999 )I MLJ114 (SC ), (1999 )121 PLR462 , RLW1999 (1 )SC 107 , 1998 (5 )SCALE105 , (1998 )7 SCC123 , [1998 ]supp1 SCR403 , court in expected to see whether the delay, if any, caused in filing the appeal or revision is with a mala fide or deliberate intention. The Court should also keep in mind the consequent litigation expenses to be incurred by the opposite party and should compensate him accordingly - Where a court condones delay in positive exercise of discretion, superior court and more particularly the revisional court should not normally disturb the same. It is open to the superior Court to give its own finding on the basis of the explanation for the delay given by the party. The petitioner specifically pleaded that he came to know about the change of katha and deletion of his name when the respondents who are the L. Rs of deceased Ramaiah Reddy filed an application for change of khatha. It is an undisputed fact that Ramaiah Reddy died in the year 1999 and thereafter the L. Rs of Ramaiah Reddy filed an application for change of khatha. So from the date of knowledge the petitioner has obtained the certified copies. Subsequently he filed an appeal under Section 136 (2) of the Karnataka Land Revenue Act to change the mutation m. E. No. 5/84-85. Both the Asst. Commissioner and the Deputy Commissioner have not considered the fact that if delay is not condoned, then the parties will be forced to approach the courts for further litigation. So in order to control multiplicity of litigation and to avoid the litigation expenses which may burden the parties, the Hon'ble Apex Court has held that if the delay in filing the appeal is accompanied by an application for condonation of delay then such applications are to be allowed for condonation of delay. But, in the instant case though the Asst. Commissioner dismissed the appeal on the said count, whereas the Deputy Commissioner has dismissed the revision on other grounds also which he is not required to dismiss. Of course the petitioner herein claims the property on the basis of the so called 'gift deed' said to have been executed by Yellawwa to Muniyappa in the year 1955, so also on the basis of inheritance. But revenue court has no jurisdiction to decide the right of the parties on the basis of such documents. Of course so called gift deed through which the petitioner claims the property was an unregistered one. In a writ jurisdiction the High Court is not a fact finding body, it is for the civil court to decide all these matters. In a full dressed trial, Under Article 226 of the Constitution the court is expected to see whether the principles of natural justice have been provided for the parties, before passing such an impugned order. The records disclose that after the death of yellawwa petitioner's name has been entered and his name is continued upto 84-85. Therefore, the impugned orders under challenge passed by the Asst. Commissioner and the Deputy commissioner are liable to be dismissed and the revenue authorities are directed to enter the name of the petitioner both in column No. 9 and 12 (2) of Record of rights and the other records if any. Accordingly the writ petition is allowed.