At, High Court of Karnataka
By, THE HONOURABLE MR. JUSTICE B.S. PATIL
For the Appearing Parties: H.S. Dwarakanath, V. Vishwanath Setty, T.S. Mahantesh, AGA, G. Papi Reddy, N. Nagaprasanna, R.V. Jayaprakash, Advocates.
B.S. Patil, J.
1. Challenge in these writ petitions is to the order dated 12.09.2013 passed by the Deputy' Commissioner, Bangalore District, Bangalore in Survey Revision Petition No.5/2012-13 whereby the revision petition tiled under Section 56(2) of the Karnataka Land Revenue Act, 1964 by writ petitioners has been dismissed. The Deputy Commissioner has held that grievance made by petitioners regarding 30 ft. road as to whether it fell in the middle of the lands belonging to petitioners and 8th respondent herein could not be decided by him because the said dispute was required to be decided by the competent Civil Court. The Deputy Commissioner has thus upheld the order dated 21.03 2012 passed by the Deputy Director of Survey Settlement and Records/Ex-officio Technical Director, in respect of l
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and bearing Sy. No.83 sub-divided into Sy.Nos. 83/1 and 83/2 situated at Byatarayanapura, Yelahanka Hobli, Bangalore North (Additional) Taluk. The Deputy Director had dismissed the appeal filed before him challenging the hissa phodi conducted in the year 2004 whereby the property was assigned Sy. Nos.83/1 and 83/2 based on the partition deed dated 24.01.2002.
2. It is not in dispute that as per the partition deed, 1 acre of land fell to the share of respondent No.8 herein - Smt. Bhavani and 2 acres 15 guntas fell to the share of other sharers namely petitioners 1 to 4 herein. Based on the partition deed dated 24.01.2002, 8th respondent herein appears to have applied for effecting phodi of the land. The Assistant Director of Land Records get the phodi and survey conducted and effected phodi and durast of the old Sy. No.83 which was divided into 83/1 and 83/2.
3. As already stated above phodi was effected in the year 2004. For nearly 7 years petitioners did not make any grievance regarding the phodi conducted. They challenged it on 17.02.2011 before the Deputy Director of Land Records by filing an appeal. It was contended that phodi was conducted behind the hack of petitioners and was therefore, illegal. Appeal filed was resisted. The Deputy Director dismissed the appeal vide his order dated 21.03.2012. Said order of the Deputy Director was challenged before the Deputy Commissioner by way of revision which has also been dismissed on 12.09.2013 by the impugned order produced at Annexure-C. Aggrieved by the orders passed by the Deputy Commissioner and the Deputy Director and the hissa phodi conducted in the year 2004, petitioners have filed this writ petition.
4. Main contention of the learned counsel for petitioners is that without issuing notice to petitioners hissa phodi was conducted and therefore though tire hissa phodi had been conducted in the year 2004 they could not file the appeal uptil 2011 as petitioners were not aware of the hissa phodi conducted. It is their next contention that as per the partition deed, 30 ft. road passes in between the lands of petitioners and 8th respondent. That being so, in the hissa phodi survey officers who conducted survey ought to have shown existence of 30 ft. road in between the lands of petitioners and 8th respondent; without earmarking the road between the lands hissa phodi had been conducted, therefore, it was illegal. In support of the contention that no notice was given to petitioners, learned counsel for petitioners have invited the attention of the Court to the enquiry report dated 28.03.2014 submitted against the then surveyor one Venkatesh wherein it has been allegedly found that he had conducted survey illegally and there was no material to show that he had given notice of the said survey on all the interested persons including petitioners herein. Reliance is also placed on the statement of" the said Venkatesh given in the departmental enquiry initiated against him wherein he has stated that he effected service of notice on persons who were identified as owners of the adjoining land by the husband of 8th respondent. These two documents have been produced as additional documents.
5. Per contra, learned counsel appearing for respondents would vehemently contend that proceedings initiated challenging the hissa phoai after a lapse of 7 long years was an after thought and motivated inasmuch as based on the very phodi and durast conducted, sub division numbers were assigned to old survey No.83 as Sy.Nos.83/1 and 83/2; both petitioners on the one hand and respondent No.8 on the other got their land converted for non-agricultural purpose based on the very phodi conducted. They have also contended that immediately after the phodi was conducted, mutation was effected and katha was transferred in the names of respective holders which was well within the knowledge of petitioners 1 to 4 herein. It is urged that having taken advantage of the hissa phodi conducted, it was not open for petitioners to urge that they were not notified and heard while effecting hissa phodi.
6. It is also contended by the respondents that a suit has been filed by present petitioners in O.S.No.7377/2015 seeking a declaration that there was a read in existence in between the property of petitioners and 8th respondent. It is also brought to the notice of the Court that another suit for permanent injunction has been filed in O.S.No.3596/2015 by petitioners 1 and 2. It is, therefore, urged that as the matter is seized by the Civil Court, this Court will desist from interfering with the orders under challenge.
7. Learned Additional Government Advocate submits that dispute raised by the parties is fairly civil in nature and parties have already gone before the Civil Court. Therefore, this Court need not interfere in the matter.
8. Having heard the learned counsel for all parties I find that order passed by the Deputy Commissioner makes it clear that after the hissa phodi was conducted in respect of Sy.No.83 mutations were effected based on the survey report; hissa phodi conducted and mutations effected were not assailed by the petitioners. It is born out from the records that appeal was filed before the Deputy Director of Land Records after 7 years making a grievance regarding the hissa phodi. As rightly found by the Deputy Commissioner, petitioners were fully aware about the hissa phodi conducted by the surveyor inasmuch as they have made use of the same for the purpose of getting the land that fell to their share converted vide order passed in this regard on 27.01.2009. There is no dispute with regard to the fact that Sy.No.83/1 which came to the share of petitioners had been got converted by petitioners. It is also a fact established in the form of materials on record that Sy.No.83/2 which has fallen to the share of 8th respondent has also been got converted on 17.01.2005. Both parties have thereafter continued to enjoy their portion of the land. After 7 years dispute has been raised by petitioners regarding the phodi conducted alleging that no notice had been given. Change of mutation pursuant to the hissa phodi and subsequent act of getting the land converted for non-agricultural purpose clearly shows that petitioners have come up with a baseless assertion that hissa phodi conducted was without their knowledge.
9. As rightly urged by the learned counsel for respondents, having taken advantage of the hissa phodi conducted by securing conversion of their portion, it is not open for petitioners now to contend that hissa phodi conducted was illegal because they were not notified. Had they been not notified of the phodi, they ought to have challenged the same immediately thereafter or within a reasonable period. Therefore, I do not find any illegality in the order passed by the Deputy Commissioner who has clearly stated in categorical terms that dispute regarding existence or the.-wise of the 30 ft. road in between the lands of petitioners and 8th respondent is a matter which falls within the purview of the Civil Court to be decided and not within the jurisdiction or powers of the revenue authorities. Therefore, the parties have to work out their remedy before the Civil court.
10. Hence, I do not find any merit in these writ petitions. Writ petitions are accordingly dismissed.