KESHAVLAL Vs. TALUK MAGISTRATE RAIBAG

JUDGEMENT

(1.) In this writ petition under Art. 226 of the Constitution, the petitioner has challenged an Order bearing No. KDR/SR-16 dated 2-5-1977 (Ext. K) of the Taluka Magistrate, Raibag, extinguishing the mortgage debt of Rs. 14,000 contracted by respondent Nos. 2 and 3 from the, petitioner and directing him to deliver possession of the lands bearing S. Nos. 448/1 an 764/1 (l/3rd share) to respondents Nos. 2 and 3. Admittedly respondent No 2 is the mother of respondent No. 3 and they are either jointly or separately the owner of the agricultural lands bearing S. No. 448/1 measuring 5 acres and 7 guntas and S. No. 764/1 measuring 4 acres and 5 guntas (l/3rd share) situated in Mugalkhod village, Ragbag Taluk, Belgaum District. At some stage, respondent No. 2 has claimed that she is the owner of these lands and at some stage she has claimed that her daughter is the owner of these lands. There is no dispute between them on the ownership of these lands and their interest is one and the same and therefore I will refer to them in the course of my order as the respondent.

(2.) Among others, the petitioner appears to be a money lender in to the village. It is the case of the respondent herself that for various domestic and other needs like the marriage of her daughter, she has borrowed various amounts from the petitioner on the security of these lands and that possession of these la,nds has at some point of time been delivered to him and that he is in possession of these lands ever since their delivery. It is her case that the petitioner has not acted according to the terms of the transactions and the matter should be enquired into by the authorises and the possession of the lands re-delivered to her. On a liberal interpretation of the case of the respondent, one can possibly slay that the petitioner is in possession of the lands as usufructuary mortgagee and the mortgage stands discharged and therefore she is entitled for the delivery of the lands from the petitioner. With these and other allegations that are not necessary to set out, the respondent addressed a petition dated 12-3-1977 to the Chief Minister, Government of Karnataka, and sent copies of that petition to the various revenue and police authorities. One such, copy was sent to the Tahsildar, Raibag. Another copy of the petition addressed to the Divisional Commissioner, Belgaum, was in due course forwarded to the Tahsildar, for action and report. On receipt of the copy of the petition addressed to him, the Tahsildar, Raibag, (hereinafter referred to as 'the Tahsildar'), on 25-3-1977 directed one of his Revenue Inspectors; to make an immediate enquiry and report marking the same as 'confidential.' On the very next day one Shri Ramachandra Naika Patil who is stated to be a relative of respondent No. 2 and also claims to be her power of attorney holder at a later stage of the proceedings, appeared before the Tahsildar and made a statement inter alia stating that the respondent had borrowed a sum of Rs. 4,000 from the petitioner and that though she was ready and willing to pay that amount, the petitioner was not willing to receive the same and deliver possession of the lands and therefore requested the Tahsildar to obtain possession of the lands from the petitioner and deliver them to the respondent. On, the same day, the Tahsildar evidently on the basis of the statement made by Shri Ramachandra Naika Patil issued a notice to the petitioner calling upon him to appear on 31-3-1977 at 11-00 A.M. and furnish his replies before him. In pursuance of that notice, in petitioner appeared, before the Tahsildar and inter-alia stated that the respondent had, borrowed a sum of Rs. 14,000 and that when she was unable to pay she agreed to sell the same for a sum of Rs. 30,000 and towards the sale price a sum of Rs. 17,000 has been paid and the balance of Rs. 13,000 had been agreed to be paid to the respondent at the time of execution of the sale deed, He denied that he was in possession of the lands as a mortgagee. After recording the statement of the petitioner and another statement of Shri Ramachandra Naika Patil on the same day evidently without affording either of the parties to cross-examine the other and test the veracity of their respecive statements, the Tahsildar adjourned the case. On 15-4-1977 the parties appeared to have appeared and produced certain documents in support of their respective cases. The case appears to have been set down for hearing on 26-4-1977 on which day it appears to have been adjourned at the request of the petitioner. On 27-4-1977 the petitioner presented a petition (Ex. F.) complaining that the Tahsildar was demanding a sum of Rs. 5,000 'to decide the case in his favour which he was not willing to comply and therefore requested him to transfer the case to any other officer. Evidently on that petition the Divisional Commissioner on the same day wrote a letter to the Tahsildar (Exhibit G) to submit the papers tc his office to consider the request of the petitioner for transfer. That letter reads thus:-

(3.) In this writ petition, the petitioner while alluding to the various facts noticed by me earlier, has referred to a compromise entered into between him and respondent Nos. 2 and 3 on 14-9-1976 which is evidenced by a deed oif that date. He has averred that on 29-9-1976 respondent Nos. 2 and 3 have executed an agreement to sell in Marati language and has produced a translation of the same in Kannada, (Ext. 'C') and the original has been produced before the Tahsildar. It is his case that in pursuance of the agreement to sell, he is in possession, of the lands and therefore thr provisions of the Karnataka Debt Relief Act of 1976 (hereinafter referred to as 'the 1976 Act') have no application. Lastly the petitioner has averred that the Tahsildar Taluka Executive Magistrate-respondent No. 1 demanded Rs.5,000 as illegal gratification to decide the case in his favour and therefore he approached the Divisqinal Commissioner for transfer of the case to the file of any other officer.