IN THE COURT OF THE DEPUTY COMMISSIONER

AT TUMKUR R.A. /2011

APPELLANT T.C. SATHISH KUMAR S/O T.S. CHANDRAPPA AGED 49 YEARS KATHYAYINI NIVAS 4TH CROSS, ASHOK NAGAR TUMKUR

VS 1

RESPONDENT THE ASSISTANT COMMISSIONER TUMKUR SUB-DIVISION MINI-VIDHANASOUDHA TUMKUR THE VICE CHANCELLOR TUMKUR UNIVERSITY B.H. ROAD, TUMKUR THE REGISTRAR TUMKUR UNIVERSITY B.H. ROAD, TUMKUR

MEMORANDUM OF APPEAL UNDER SECTION 136(2) R/W SECTION 49(b) AND SECTION 25 OF THE KARNATAKA LAND REVENUE ACT:-

The above named appellant prefer this appeal against the orders passed by 1st respondent in Order No. 3393/05-06, dated 17-112005, resulting in M.R. No. 43/2005-06 and also Orders in RRT CR 390/09-10, dated 30-06-2010, culminating in MR No. 41/2010-11 dated 14-09-2010, in relation to Survey number 326/5 for an extent of 1 Acre 01 Gunta in Tumkur Grama, Kasaba Hobli, Tumkur Taluk, Tumkur District. On the following amongst other facts and grounds urged hereunder: 1. That, the address of the parties for the purpose of service of summons, notices, etc., from this Honble Court is as set out in the cause- title.

2. The appeal is in respect to the property hereinafter called as schedule property is morefully described in the schedule hereunder was an agricultural property as far back as from time immemorial. The land is situated in Survey number 326/5 of Tumkur Grama out of total extent of 7 acre 01 gunta, after excluding 18 guntas of kharab and an acquired portion of 5 acre 22 guntas was with Intermediate college and remaining extent of 1 acre 01 guntas, was with vendors of this appellant from time immemorial.

3. The vendors of appellant are Late Hori Muddappa whose name will be found In pattabook of year 1966-67 and subsequent available RTCs of the year 1973-74 to 1977-78 upto MR 20/1977-78. Later this appellants and their family members name is being entered vide above mutation based on Sale deed registered on 18-06-1977 executed by Hori Muddappa and sons before Tumkur Subregistrar in Book No. 1 Vol. 2346, Page 102 to 105, in the year 1977-78, with registration number 1158.

4. As at present from the date of conversion of schedule property made vide the order of The Special Deputy Commissioner Tumkur District in ALNSR 5/1981-82 dated 17-07-1981, and also by same numbered endorsement of dated 24-07-1981 by Tahsildar Tumkur Taluk, the schedule property is fully converted land for dwelling purpose.

5. After alenation of the land, Tumkur Urban Development Authority Vide its order No. TUDA/LAYOUT/SITE

/118/1995-96/1499 dated 06-11-1996, layout approval was given for 9 sites of different dimensions along with road. In 1997 itself road is gifted to Tumkur Municipality. Katha under municipality is opened in katha number 519/1146. In Order No. 21065/2002 dated 29-11-2002 the Municipal Commissioner has ordered to mention site extents of remaining 6 sites in the said katha.

6. The present appellant is the absolute owner in possession of such sites vide Compromise decree between other members of his family in OS 13/1997 dated 11-03-1997 on the file of Prl Civil Judge (Sr.dn) and CJM court at Tumkur. As on present the municipal katha stands in the name of appellant and upto date taxes are being paid by the appellant and being in peaceful private possession and enjoyment from more than five decades.

7. No private party or public authority has challenged or objected such valid possession and enjoyment from all along these years. No court either on its own instance or on the application of anyone has quashed the above stated MR 20/1977-78 and No court has either cancelled the sale deed as mentioned supra. No court has either issued notice to these appellant or his family about any pending or instituted proceedings under such law to do the above such quashing.

8. No superior court of valid jurisdiction has ever quashed the alienation order of the special deputy commissioner as quoted above. No Superior court has called for records of

the conversion order. The order remained unchallenged for more than 30 years.

9. No superior court of valid jurisdiction has ever quashed the layout approval order of the TUDA as quoted above. No Superior court has called for records of the layout approval order. The order remained unchallenged for more than 15 years.

10.

No superior court of valid jurisdiction has ever

quashed the Municipal Katha opening order of the Municipal commissioner under the municipalities act, as quoted above. No Superior court has called for records of the Katha orders. The order remained unchallenged for more than 10 years.

11.

No civil court of valid jurisdiction has ever quashed

the sale deeds and long standing entries in revenue records either on private disputes or on government disputes or by any authorities. No Superior court has called for records of the appellants to inquire any aspect. The state of affairs remained unchallenged for more than 50 years.

12.

There is no pending boundary disputes as elicited

under chapter XII of The Karnataka Land Revenue act. There is no order/ proceedings under section 142(2) of the Karnataka land Revenue act by Tahsildar Tumkur after any private or public authority wanted to dispute boundaries.

13.

There are no acquisition proceedings over the property from this appellant for either

schedule

intermediate college or for Tumkur university or for any authority. During the period of such long years of valid ownership and possession and demarcation of boundaries, no acquisition notification is served either on the family members of appellant or on this appellant even inspite of long standing entries of kathadar names in RTCs and subsequently in municipal records.

14.

The Survey number 326/5 of Tumkur kasaba grama is

not under any acquisition proceedings. The same fact is testified by the endorsement given by Tahsildar Tumkur Taluk vide his Certificate endorsement dated 18-03-1981. The same fact of non-acquisition of an extent of 1 acre 01 guntas in the schedule property was verified by the revenue authorities before according conversion order in 1980s.

15.

In the said way the appellant is having valid title to

the schedule property with all legal facts surrounded over it. The impugned orders and consequent MRs is produced as per separate list of documents as Annexure-1 to Annexure 4. To evidence above stated facts the documents is produced as per list as Annexure-5 to Annexure ___ . The Honble court may be pleased to peruse the documents.

16.

The cause of action for filing this appeal arose on

_______________, when this appellant obtained the copies of RTC and MR to peruse the entire revenue documents. Till that date the impinged orders are not within the knowledge

of

this

appellant.

For

abundant

caution

limitation

application is also filed herewith.

17.

The appellant

further submits, that, they have not filed

any other Suit, Petition or application, initiating any other proceedings before any Court or Authority in respect of the subject matter against the Respondents seeking the same relief sought in this appeal. The appellant submits, that, they have no other alternative, effective or adequate remedy otherwise than by means of filing this appeal. No proceedings is pending before any other Court on same cause of action.

18.

The appellant further submits, The documents are

produced as per separate slip and humbly requests this Honble court to consider them and allow this appellant to produce further documents.

GROUNDS OF APPEAL

1. VIOLATION OF NATURAL JUSTICE:- The impinged orders are made affecting these appellants properties without giving any notice of such proceedings, this is violation of principles of natural Justice.

2. LACK OF JURISDICTION:- The impinged orders were made after land is alienated in 1981 itself and the TUDA layout approval accorded in 1996 itself with Municipal kathas of same periods. The agricultural land nature has already been vanished at the time of promulgating impinged order. Hence the 1st respondent has passed orders without jurisdiction to

do so. In Sushil Kumar Mehta v. Govind Ram Bohra 1990 SCC (1) 193 it is held, A decree passed by a court without jurisdiction over the subject matter or on other grounds which goes to the root of its exercise or jurisdiction, lacks inherent jurisdiction. It is a coram non judice. A decree passed by such a court is a nullity and is nonest. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction stricks at the authority of the court to pass a decree which cannot be cured by consent or waiver of the party.

3. NO PROPER ENQUIRY:- Even inspite of such violations of natural justice, the 1st respondent has not verified all the available documents available with the tahsildar office before passing such orders. No proper enquiry with documents were conducted.

4. REVENUE LAWS IGNORED:- As a law implementing and empowered authority under The Karnataka land Revenue act, the principles of law elicited under that statute is ignored usurping the appellate jurisdiction over higher authority. The alienation order is passed by Special Deputy Commissioner is indirectly quashed by lower authority that is 1st respondent. Which is abuse of process and powers of court.

5. NO FAIR PLAY:- Mere changing of RTCs without passing any reasonable order and without passing any eviction proceedings is highly deplorable conduct of 1st respondent.

The area is already developed and surrounded by buildings. There are real estate mafia elements and blackmailers behind such illegal orders, if anything wrong is there nothing prevented them from issuing notice seeking explanations from these appellants.

6. RE CONVERSION TO AGRICULTURAL IMPOSSIBLE:Urbanised and layout approved part of the land is joined with agricultural category without seeking any further re conversion from appropriate persons. The 1st respondent is not the owner to seek such re-conversion to agricultural status. If any person is having dispute as to boundary, they should have objected at initial stage of erection of buildings and compound.

7. ACTUAL AND REALITY:- The 2nd respondents themselves have demarcated their compound with lot of government funds for all these years. They are very much sure about their land and boundary. binding on these appellants. Now with such illegal grant certificates manipulated from the impinged orders are not

8. WHAT LAND CAN BE GRANTED:- The government can grant land belonging to it and in possession of it. The government cannot grant land of private persons without resorting to land acquisition proceedings and payment of compensation and taking of possession by correct mahazar to that effect. Without following such aspects of law the impinged orders quoted non existing land acquisitions and non-applicable and un-empowered land grants.

9. NO REASONS IN THE ORDER:- The impinged orders is not speaking orders. The impinged orders is not supplied with reasons and clear facts. The revenue authorities decisions should be based on un-disputed facts. Which is not followed in our case. In C.N. Nagendra Singh vs The Special Deputy Commissioner And Ors. (ILR 2002 KAR 2750) The Honble High court of Karnataka Held that : The decision of the Revenue Courts has to be necessarily based on the undisputed facts.

10.

GOVERNMENT SHALL NOT PROVOKE LITIGATIONS:are doing the same with unjustifiable

The government authorities shall not provoke litigations. The respondents contentions and unjust manipulation of documents. In case of Urban Improvement Trust, Bikaner Vs. Mohan Lal before Supreme Court of India, DD 30-10-2009 AIR 2010 SCW page
1612

BENCH JUSTICE R.V. RAVEENDRAN & JUSTICE G.S.

SINGHVI it is observed by court It is a matter of concern that such frivolous and unjust litigation by governments and statutory authorities are on the increase. Statutory Authorities exist to discharge statutory functions in public interest. They should be responsible litigants. They cannot raise frivolous and unjust objections, nor act in a callous and highhanded manner. They cannot behave like some private litigants with profiteering motives. Nor can they resort to unjust enrichment. They are expected to show remorse or regret when their officers act negligently or in an overbearing manner. When glaring wrong acts by their officers is brought to their notice, for which there is no explanation or excuse, the least that is expected is restitution/restoration to the extent possible with appropriate compensation. Their harsh attitude in regard to genuine grievances of the public and

their indulgence in unwarranted litigation requires to be corrected.

11.

PRESUMPTION OF ENTRIES:- Before passing the

impinged orders, 1st respondent has not verified the presumption of entries in old revenue records. The title deeds were not summoned. Even the documents available with department of revenue itself speaks of the valid possession and ownership of 1 acre 01 guntas but such presumptions were overlooked by mere allegations unsupported documents and strict proof to rebute such presumptions. In Karewwa And Ors. vs Hussensab Khansaheb Wajantri And Ors AIR 2002 SC 504, Supreme Court observed as follows presumption of correctness of an entry in revenue record cannot be rebutted by a statement in the written statement. Mere statement of fact in the written statement is not a rebuttal of presumption of correctness of an entry in the revenue record. The respondent was recorded as a tenant in the revenue record in the year 1973 and under law the presumption is that the entry is correct. It was for the appellant to rebut the presumption by leading evidence. The appellant has not led any evidence to show that entry in the revenue record is Incorrect.

12.

NO APPELLATE JURISDICTION:- The orders passed

by Deputy Commissioner is under section 95 of KLR act. The 1st respondent is not the appellate authority over such orders. He disturbs such orders without having jurisdiction to do the same. In MANNALAL JAIN v. STATE OF ASSAM, Their Lordships of the Supreme Court have held in paragraph-12 as follows:- "The wisdom of issuing executive

instructions in matters which are governed by provisions of law is doubtful; even if it be considered necessary to issue instructions in such a matter, the instructions cannot be so framed or utilised as to override the provisions of law. Such a method will destroy the very basis of the Rule of Law and strike at the very root of orderly administration of law."

13.

POSSESSION NOT TRANSFERRED:- On what basis

government handed over or granted land belonging to private persons without acquisitions or without proper transfer of possession in time is not specified in the order or communicated to this appellants.

14.

LACK OF APPRECIATION OF EVIDENCE AND

DOCUMENTS:- In the impinged orders there is clear mentioning that in Bhoomi data base it is clearly showing it is not government land and it is private land. The 1st respondent does not bothered to verify how private persons names were added to that of intermediate college and whether such land is alienated or not. Despite knowledge of sale of lands and entries to such effect in revenue records 1st respondent failed to appreciate the knowledge of documents over the land by revenue authorities. In the decision in Smt Dilboo vs. Smt Dhanraji AIR 2000 SC 3146 , the Apex Court has held that whenever a document is registered, the date of registration acts as the date of deemed knowledge. In other cases, when a fact could be discovered by due diligence, then deemed knowledge could be attributed to the plaintiff because a party cannot be allowed to extend period of limitation by merely claiming that he had no knowledge.

15.

RELIEF TO POSSESSION:- In the impinged orders it is

stated that land was acquired by a notification dated 1941. It is not clearly discussed whether such notification is preceded with proper taking of possession or payment of compensation. It is not discussed how the relevant revenue entries continued in the name of owners. It is not discussed how the presumption of long duration entries both under revenue act and evidence act is rebutted with any evidence. Justice SreedharRao of Karnataka High Court in Pennaiah And Ors. vs Thippamma AIR 2004 Kant 444 has held that When the documents of title relied on by the plaintiff does not correspond with the suit schedule property and in the absence of necessary pleading and proof, the appellate Court was wrong in declaring the title of the plaintiff. May be that the defendant has not proved title of his vendor, but, nonetheless the defendant is held to be in possession of the suit property, when the plaintiff has failed to prove title, he would not be entitled to relief of possession irrespective of the valid title of the defendant. In that view of the matter; the appreciation of facts and evidence and the inference drawn is perverse and contrary to law and evidence on record.

16.

DUTY TO REJECT APPLICATIONS TIME BARRED:-

For taking into possession based on title or for taking possession after acquisition 30 years is the limitation prescribed for any government authorities, 12 years for any non-government bodies like university and college. The impinged order only substitutes the ownership from Kasagi to Sarkari on 30-06-2010 without issuing notice

to all those Kasaagi people in possession and enjoyment. This type of misuse of official powers behind the back of this appellant is highly unconstitutional. The proposal of Tahsildar or intermediate college or Tumkur university should have been rejected by the 1st respondent based on law as elicited in Kamlesh Babu & Ors vs Lajpat Rai Sharma & Ors 2008 (6) SCR 653 It is well settled that Section 3(1) of the Limitation Act casts a duty upon the court to dismiss a suit or an appeal or an application, if made after the prescribed period, although, limitation is not set up as a defence. In Lachmansingh vs Hazarasingh 2008(5) SCC 444 it is held that Limitation is a question of jurisdiction. Section 3 of the Limitation Act puts an embargo on the court to entertain a suit if it is found to be barred by limitation.

17.

12 YEARS IS LIMITATION:- The representation made

by government regarding its land records is quite clear for long decade and the conversion order after due verification are all clear cut explanation of valid title to the property. The present case is also based upon such documents. The Government and its authorities are estopped to raise contrary versions at this stage. To substantiate the points the following decision is brought to the kind attention of appellate court. . John B. James And Others vs Bangalore Development Authority And Another ILR 2000 KAR 4134, 2001 (1) KarLJ 364 Bench: R Raveendran, V Sabhahit The Government and its departments, in administering the affairs of the country are expected to honour their statements of policy or intention and treat the citizens with full personal consideration without any iota of abuse or discretion. The

policy statements cannot be disregarded unfairly or applied selectively. Unfairness in the form of unreasonableness is akin to violation of natural justice. .. Lastly, it is also necessary to notice the position of a trespasser who is in peaceful, open, continuous and uninterrupted possession of another's property, in denial of the title of the true owner, for a long period. Section 27 of the Limitation Act, 1963 provides that at the determination of the period limited under that Act, to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. Article 65 provides the period of limitation for a suit for possession of immovable property based on title as twelve years from the date when the possession of the defendant becomes adverse to the plaintiff. Article 112 provides the period of limitation for such a suit, if filed by or on behalf of the Central Government, or State Government is thirty years instead of twelve years. Article 112 will not however apply to BDA as it is neither the State nor Central Government. . In Nair Service Society's case, supra, the Supreme Court quoted with approved the following passage from Perry v Clissold: "It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provision of the statute of limitation applicable to the case, his right is forever extinguished and the possessory owner acquires an absolute title".

18.

PROMISSORY ESTOPPEL:- The first respondent is

estopped from changing his version of revenue documents

without taking our real owners and possessors version into his consideration State of Himachal Pradesh v Ganesh Wood Products, AIR 1996 SC 149 as follows: ". . . . All that we wish to emphasise is that anything and everything done by the promisee on the faith of the representation does not necessarily amount to altering his position so as to preclude the promisor from resiling from his representation. If equity demands that the promisor is allowed to resile and the promisee is compensated appropriately, that ought to be done. If, however, equity demands, in the light of the things done by the promisee on the faith of the representation, that the promisor should be precluded from resiling and that he should be held fast to his representation, that should be done. To repeat, it is a matter of holding the scales even between the parties to do justice between them. This is the equity implicit in the doctrine. ... To wit, the rule of promissory estoppel being an equitable doctrine, has to be moulded to suit the particular situation. It is not a hard and fast rule but an elastic one, the objective of which is to do justice between the parties and to extend an equitable treatment to them. If it is more just from the point of view of both promisor and promisee that the latter is compensated appropriately and allow the promisor to go back on his promise, that should be done; but if the Court is of the opinion that the interests of justice and equity demand that the promisor should not be allowed to resile from his representation in the facts and circumstances of that case, it will do so. This, in our respectful opinion, is the proper way of understanding the words "promisee altering his position". Altering his position should mean such alteration in the position of the promisee as it makes it appear to the Court that holding the promisor to his

representation is necessary to do justice between the parties...."

19.

LAND ACQUISITION PRINCIPLES:- In the impinged

orders there is mentioning of Acquisition notification dated 1941. That notification seems to have been issue under section 6 of The land acquisition act without any section 4 notification. The said notification itself is illegal after the Supreme court Judgement was passed in 1989. The 1st respondent action in upholding 1941 incompleted acquisition proceedings during 2005 is against the principles of law and it violates supreme court judgement. The Supreme Court in

case of its judgment dated January 11, 1989 in State of Uttar Pradesh Vs. Radhey Shyam Nigam reported in 1989 (1) SCC 591 held that after the commencement of the land Acquisition , the declaration under Section 6 of the Land Acquisition Act, 1894 cannot be made simultaneously with the publication in the Gazette Notification under Section 4(1) even though the application of Section 5-A has been dispensed with under Section 17(4) of the said Act. In a large number of proceedings of acquisition of land for the Development Authorities for the implementation of various housing

schemes, the declaration under Section 6 were made simultaneously with publication in the Gazette of notification under Section 4(1). The said proceedings were likely to be held void in view of the aforesaid judgment of the Supreme Court.

20.

REVENUE COURT CANNOT DECIDE TITLE TO Vs. PATEL RAGHAV

PROPERTY:- STATE OF GUJARAT the Commissioner should

NATHA & ORS. AIR 1969 SC 1297 In a matter of this kind indicate his reasons, however, briefly, so that an aggrieved party may carry the matter

further if so advised. We are also of the opinion that the Commissioner should not have gone into the question of title. It seems to us that when the title of an occupant is disputed by any party before the Collector or the appropriate decide Commissioner and the dispute is serious the

course for the Collector or the Commissioner would be to refer the parties to a competent court and not to the question of title himself against the occupant.

21.

NO 9(1) NOTIFICATION FOR HAVING TAKEN

POSSESSION:- Where the lands are acquired in exercise of emergent powers of the State under Section 17 of the Act, a notification under Section 6 of the Act is issued and the notification itself refers to the provisions of Section 17(1) of the Act. However, notice under Section 9(1) of the Act has to be published to complete and fully invoke the powers vested in the State for taking possession of the land, in terms of Section 17(1) of the Act. After the expiry of 15 days from such publication under Section 9(1), the possession of the land can be validly taken by the Government, whereupon the land would vest absolutely in the Government, free from all encumbrances. In other words, for proper computation of the specified period of 15 days, issuance of notification under Section 9(1) of the Act would be necessary. Without such notification there is no assumption or presumption of taking possession by the government. This is the law under Land acquisition act, which is mandatory since it deprives the land and property. In the instant case there is whisper in the impinged order about 9(1) notification, without resorting to such notification the putting up of claims either from any

authority is null and void. In a proceeding under the Act for acquisition of land all interests are wiped out. Actual possession of the land becomes necessary. for its use for the public purpose for which it has been acquired. Therefore, the taking of possession under the Act cannot be "symbolical" in the sense as generally understood in Civil Law. Surely it cannot be a possession merely on paper. What is required under the Act is the taking of actual possession on the spot. In the eye of law the taking of possession will have the effect of transferring possession from the owner or the occupant of the land to the Government. (AIR 1975 SC 1767).

22.

NEGLECTING LAND REVENUE ASPECTS:- Karnataka

Land Revenue Act Section 128 (4) : Acquisition of rights to be reported: 4. No document by virtue of which any person acquires a right in any land as holder, occupant, owner, mortgage, landlord or tenant or assignee of the rent or revenue thereunder, shall be registered under the Indian Registration Act, 1908 unless the person liable to pay the registering authority such fees as may be prescribed for making the necessary entries in the record of rights and registers referred to in Section 129; and, on the registration of such a document, the registering authority shall make a report of the right to the prescribed officer.

Section 129 (2) Whenever a prescribed officer makes as entry in the Register of Mutations, he shall at the same time post up a complete copy of the entry in a conspicuous place in the chavadi and shall give written intimation to all

persons appearing from the Record of Rights or Register of Mutations to be interested in the mutation, and to any other person whom he has reason to believe to be interested therein.

Section 129 (6) Entries in the Register of Mutations shall be tested and if found correct or after correction, as the case may be, shall be certified by such officer as may be prescribed.

Section 129 (7) The transfer of entries from the Register of Mutations to the Record of Rights shall be effected in the prescribed manner, provided that any entry in the Register of Mutations shall not be transferred to the Record of Rights until such entry has been duly certified.

Justice R Jois, Justice Ramakrishna in Srimanmaharaja Niranjana 1059, Sri Murugharajendra (1) KarLJ 373 Bruhan XI Mutt of of the Chitradurga vs Deputy Commissioner ILR 1986 KAR 1986 Chapter Act,(Karnataka Land Revenue Act) which regulates the

making of the entry in the Record of Rights. Section 127 of the Act deals with the preparation of record of rights according to the prescribed procedure. According to Subsection (3) of Section 127 of the Act, the record of rights so prepared and completed in respect of any village is required to be published in the Official Gazette in such manner as may be prescribed. In other words, this provision relates to the preparation of record of rights in the first instance under the provisions of the Act. Section 128 of the Act

provides for reporting of the acquisition of rights in respect of lands covered by the provisions of the Act. Therefore, whenever any person acquires the right to any landed property for which the Act applies from its original owner by lease, mortgage, gift, purchase etc., the said Section provides for reporting of such acquisition of rights and for receiving it by the authority specified on payment of prescribed fee. Section 129 prescribes the procedure for registration of mutations reported under Section 128. Subsection (1) of Section 129 of the Act provides for making an entry in the register of mutations of every report made to him under the provisions of Section 128 of the Act. Subsection (2) of Section 129 of the Act provides for publication of a copy of the entry so made as also for giving written intimation to all persons interested, as disclosed in the revenue records. If there were to be any objections,, Subsection (3) requires the prescribed officer to enter the particulars of the objection in the register of disputed cases. Sub-section (4) of Section 129 of the Act empowers the prescribed authority to decide the disputes following the procedure as prescribed under Sub section (5). Subsection (6) of Section 129 of the Act provides for making an entry and certifying the entry relating to mutations in accordance with the order made after such inquiry. Sub-section (7) of Section 129 provides for transfer of certified entries made in the register of mutations to the record of rights. Section 135 of the Act bars the jurisdiction of the Civil Courts in respect of an order made under any of the provisions of the Chapter against the Government. The proviso under the said provision, however, provides that a person aggrieved by any entry made in any record or register may institute a suit against any person denying or interested in denying his title

to such right and also provides that the entries in the record of right shall be amended in accordance with any declaration granted by the Civil Court. Justice H.V.G. Ramesh, in Mahadevappa And Ors. vs State Of Karnataka ILR 2008 KAR 1750 It is high time to intimate the Revenue Department and the concerned Department to meticulously follow the procedure as provided under Section 128 & 129 of the Karnataka Land Revenue Act and also it should be made mandatory as a matter of responsibility on the part of the Government to save the public from the precarious situation and also there shall be timely action by the revenue authorities without there being any delay on their part in making entries in the mutation register and other registers in the revenue office and in the Corporation/Municipality in city limits to avoid future complications. . Government Pleader to communicate this order to the Government and the Government in turn shall direct Secretary to Revenue Department to circulate this order in the department to follow the procedure as provided under Section 128 & 129 of the Land Revenue Act for due compliance and taking follow up action. For such non-compliance by the concerned Revenue Authorities, the Department shall prescribe some norms to initiate action. Bhimappa Channappa Kapali ... vs Bhimappa Satyappa Kamagouda ILR 2002 KAR 3055, 2003 (2) KarLJ 148 Bench Justice N Jain, Justice N Kumar, The entry in the RTC is made during the pendency of the legal proceedings initiated by Shivawwa for cancellation of the gift deed and more so it is on the basis of a collusive vardhi, as such the

said entry would not give rise to any presumption. That apart she submitted that before an entry is made in the RTC in the name of the deceased appellant, the procedure prescribed in law under Sections 128 and 129 of the Land Revenue Act has not been followed, as such no presumption would arise under Section 133 of the said Act Any person who does not lawfully enter on the land of another and cultivate the same cannot claim the status of a deemed tenant under Section 4 of the Act. Though, in the case of Dahya Lala, supra, the Hon'ble Supreme Court held it is not the condition that the applicant must cultivate land with the consent or under the authority derived directly from the owner, to import such a condition is to rewrite the section, and destroy its practical utility, a person who derives his right to cultivate land from the owners would normally be a contractual tenant and he will obviously not be a "deemed tenant". Persons such as licensees from the owner may certainly be regarded as falling within the class of persons lawfully cultivating the land belonging to others, but it cannot be assumed therefrom that they are the only persons who are covered by the section. A tenant lawfully inducted by a mortgagee shall on redemption of the mortgage be deemed to be a tenant under the mortgagor."Lawfully cultivating" must have some foundation in a legal right to cultivate the property. Lawful cultivation cannot Be established without concomitant existence of a lawful relationship. Lawful cultivation must have origin in a legal right to cultivate the property. In the absence of any such right to cultivate, it cannot be said that merely because a person is cultivating the land he is held to be in lawful cultivation. A person who cultivates the land against the wishes of the owner cannot be said to be in lawful

cultivation. Merely because no action is taken against him and he has continued to cultivate for a considerable period of time would not make his cultivation lawful. The essence of lawful cultivation is that one should enter possession of the land under some colour of right and cultivate the land as a matter of right, otherwise it cannot be said that he is in lawful cultivation of the land in question. Therefore, in the absence of any legal right a person who is cultivating the land cannot claim a status of deemed tenant under Section 4 of the Act. In Jayamma v. Maria Bai Dead by proposed L.Rs. and Another [(2004) 7 SCC 459], this Court has held that when an assignment or transfer is made in contravention of statutory provisions, the consequence whereof would be that the same is invalid and thus opposed to public policy. 23. The appellant reserves his liberty to raise further

grounds by way of arguments on merits.

WHEREFORE, in the above facts and circumstances of the case, the Plaintiff most respectfully prays that, this Honble Court may be pleased to PASS INTERIM ORDERS against the Respondents herein for the following relief/s: DIRECTION TO 1st,

i.

respondent to produce all relevant

revenue records along with present survey report records of the of Survey no: 326/5 of Tumkur Grama kasaba Hobli. DIRECTION TO 1st

ii.

respondent to produce all relevant

proceedings of Survey no: 326/5 of Tumkur Grama kasaba Hobli.

WHEREFORE, in the above facts and circumstances of the case, the Plaintiff most respectfully prays that, this Honble Court may be pleased to PASS FINAL ORDERS AFTER ENQUIRY against the Respondents herein for the following relief/s: Quashing of Mutation orders in Order No. 3393/05-06,

dated 17-11-2005, resulting in M.R. No. 43/2005-06, in relation to Survey number 326/5 for an extent of 1 Acre 01 Gunta in Tumkur Grama, Kasaba Hobli, Tumkur Taluk, Tumkur District Quashing of Mutation orders in Orders in RRT CR 390/09-

10, dated 30-06-2010, culminating in MR No. 41/2010-11 dated 14-09-2010, in relation to Survey number 326/5 for an extent of 1 Acre 01 Gunta in Tumkur Grama, Kasaba Hobli, Tumkur Taluk, Tumkur District.

DIRECTION to the Respondents, not to interfere in Survey

number 326/5 for an extent of 1 Acre 01 Gunta in Tumkur Grama, Kasaba Hobli, Tumkur Taluk, Tumkur District

DIRECTION to the Respondents to pay the appellant the

costs of this petition and grant such other relief or reliefs as this Honble Court deems fit to grant in the circumstances of the case. Schedule Property All the piece and parcel of former Agricultural property situated at Tumkur Taluk, Kasaba hobli, Tumkur grama in survey number 326/5 for an extent of 1 Acre 01 Gunta bounded on by East:

West: North: South:

ADVOCATE FOR APPELLANT APPELLANT

V E R I F I C A T I O N. I, T.C. SATHISH KUMAR, the appellant, hereby declares, that, what is stated in the above paras at 1 to 18 of the appeal memo are true and correct to the best of my knowledge, information and belief.

PLACE : TUMKUR
DATED :

APPELLANT

IN THE COURT OF THE DEPUTY COMMISSIONER

AT TUMKUR IA 1/2011 IN R.A. /2011

APPELLANT/APPLICANT T.C. SATHISH KUMAR

VS 1

RESPONDENT THE ASSISTANT COMMISSIONER & OTHERS

INTERLOCUTORY APPLICATION UNDER SECTION 25 R/W SECTION 55 OF KARNATAKA LAND REVENUE ACT:The Applicant/APPELLANT in the above case most respectfully submits that, for the reasons sworn to in the accompanying affidavit, this Honble Court may be pleased to grant an exparte ad-interim Order of STAY OF M.R. No. 43/2005-06 AND MR No. 41/2010-11 IN BELOW MENTIONED SCHEDULE PROPERTY, pending disposal of the above case, in the interest of justice and equity. Schedule Property All the piece and parcel of former Agricultural property situated at Tumkur Taluk, Kasaba hobli, Tumkur grama in survey number 326/5 for an extent of 1 Acre 01 Gunta bounded on by East: West: North: South:

PLACE: TUMKUR DATED: ADVOCATE FOR APPLICANT

IN THE COURT OF THE DEPUTY COMMISSIONER

AT TUMKUR IA 1/2011 IN R.A. /2011

APPELLANT/APPLICANT T.C. SATHISH KUMAR

VS 1

RESPONDENT THE ASSISTANT COMMISSIONER & OTHERS

AFFIDAVIT
I, T.C. SATHISH KUMAR S/O T.S. CHANDRAPPA, AGED 49 YEARS, KATHYAYINI NIVAS, 4TH CROSS, ASHOK NAGAR, TUMKUR, do hereby solemnly affirm and state on oath as follows : 1. I submit, that, I am the APPELLANT in the above case. I am well conversant with the facts of the case. Hence, I am swearing to the contents of this affidavit. 2. I submit, that, I have filed the above appeal against the RESPONDENTS questioning illegal entries in RTCs and fake Mutations without issuing any notice to real occupants and kathadars and without any registered deed. Further, I submit that, the averments made in the appeal may kindly be read as part and parcel of this affidavit in order to avoid repetition of the facts. 3. I submit, that, I have produced several documents for the schedule property wherein there is no valid ground to enter the name of respondent number two institution this shows that the entries made in RTC are fraudulently made with an intention to take away this valuable land of applicants family. 4. Further I submit, that, we have been in peaceful possession and enjoyment of the Schedule Property without any let or hindrance from any body by exercising all rights of ownership by paying the taxes of the appeal Schedule Property. 5. I submit, that, when things stood thus, the Defendant 2 TO 3 who has no any manner of right, title and interest over the Schedule Property is planning to interfere with peaceful possession and enjoyment of the Schedule Property by having fictitious entry in RTC. 6. Further I submit, that, the Defendant herein is bent upon to dispossess me from the Schedule Property and forcibly occupy the Schedule Property

from me. I submit, that, I have no other alternative and efficacious remedy other than to approach this Honble Court for the relief of STAY OF RTCS ENTRIES restraining the Defendant 2 to 3 and their men from interfering with the peaceful possession and enjoyment of the Schedule Property based upon such fictitious entries. Hence this interlocutory application.. 7. I submit that, if the RTC ENTRIES IS NOT STAYED by means of Temporary Injunction from interfering with my peaceful possession and enjoyment of the suit Schedule Property in any manner whatsoever pending disposal of this suit, I will be put to very great hardship, irreparable loss and injury, which cannot be equated in terms of money or monies worth. If the order of Temporary Injunction is passed in my favour no harm or injury will be caused to the other side. 8. I submit that, I have made out a prima facie case. The balance of convenience fully lies in my favour. If the interim order of Temporary Injunction is granted in my favour no harm will be caused to the other side. Hence, this Interlocutory Application for interim order, restraining the Defendant from interfering with the peaceful possession and enjoyment of the suit Schedule Property BY STAY OF RTC ENTRIES AND MUTATION. WHEREFORE, in the above facts and circumstances of the case, I respectfully pray, that, this Honble Court be pleased to grant an exparte order of Temporary STAY of M.R. No. 43/2005-06 AND MR No. 41/2010-11 of the suit Schedule Property pending disposal of the suit in the interest of the justice and equity. I the deponent herein, do hereby declare that, this is my name, signature and contents of the affidavit are true and correct to the best of my knowledge, information and belief. PLACE : TUMKUR DATED: Identified by me Advocate

DEPONENT

IN THE COURT OF THE DEPUTY COMMISSIONER

AT TUMKUR IA 2/2011 IN R.A. /2011
VS 1

APPELLANT/APPLICANT T.C. SATHISH KUMAR

RESPONDENT THE ASSISTANT COMMISSIONER & OTHERS

INTERLOCUTORY APPLICATION SECTION 5 OF LIMITATION ACT:-

The Applicant/APPELLANT in the above case most respectfully submits that, for the reasons sworn to in the accompanying affidavit, this Honble Court may be pleased to condone the delay if any in filing this appeal, in the interest of justice and equity.

PLACE: TUMKUR DATED: ADVOCATE FOR APPLICANT

IN THE COURT OF THE DEPUTY COMMISSIONER

AT TUMKUR IA 2/2011 IN R.A. /2011
VS 1

APPELLANT/APPLICANT T.C. SATHISH KUMAR

RESPONDENT THE ASSISTANT COMMISSIONER & OTHERS

AFFIDAVIT
I, T.C. SATHISH KUMAR S/O T.S. CHANDRAPPA, AGED 49 YEARS, KATHYAYINI NIVAS, 4TH CROSS, ASHOK NAGAR, TUMKUR, do hereby solemnly affirm and state on oath as follows : 1. I submit, that, I am the APPELLANT in the above case. I am well conversant with the facts of the case. Hence, I am swearing to the contents of this affidavit. 2. I submit, that, I have filed the above appeal against the RESPONDENTS questioning illegal entries in RTCs and fake Mutations without issuing any notice to real occupants and kathadars and without any registered deed. Further, I submit that, the averments made in the appeal may kindly be read as part and parcel of this affidavit in order to avoid repetition of the facts. 3. I submit, that, I have produced several documents for the schedule property wherein there is no valid ground to enter the name of respondent number two institution this shows that the entries made in RTC are fraudulently made with an intention to take away this valuable land of applicants family. 4. The entries in RTCs were made behind the back of this appellants and due to conversion of land from agriculture to non agriculture we have not verified revenue documents all along these years, non verification of it is due to bonafide reasons, it is timely not found and recently when the respondents made unlawfull entry it came to this appellants knowledge. From the date of knowledge the appeal is filed in time if there is any delay kindly condone the delay in the interest of justice. WHEREFORE, in the above facts and circumstances of the case, I respectfully pray, that, this Honble Court be pleased delay if any in filing this appeal in the interest of the justice and equity. I the deponent herein, do hereby declare that, this is my name, signature and contents of the affidavit are true and correct to the best of my knowledge, information and belief. PLACE : TUMKUR DATED: Identified by me Advocate DEPONENT

IN THE COURT OF THE DEPUTY COMMISSIONER

AT TUMKUR R.A.
APPELLANT/APPLICANT T.C. SATHISH KUMAR VS 1

/2011
RESPONDENT THE ASSISTANT COMMISSIONER & OTHERS

NO 1

2 3

INDEX PARTICULARS MEMORANDUM OF APPEAL UNDER SECTION 136(2) R/W SECTION 49(b) AND SECTION 25 OF THE KARNATAKA LAND REVENUE ACT VAKALATH INTERLOCUTORY APPLICATION UNDER SECTION 25 R/W SECTION 55 OF KARNATAKA LAND REVENUE ACT ALONG WITH AFFIDAVIT INTERLOCUTORY APPLICATION SECTION 5 OF LIMITATION ACT LIST WITH DOCUMENTS PROCESS MEMO

PAGES

4 5 6

DATE:PLACE: TUMKUR ADVOCATE FOR APPELLANT

IN THE COURT OF THE DEPUTY COMMISSIONER

AT TUMKUR R.A.
APPELLANT/APPLICANT T.C. SATHISH KUMAR VS 1

/2011
RESPONDENT THE ASSISTANT COMMISSIONER & OTHERS

NO

LIST OF DOCUMENTS PARTICULARS

PAGES

DATE:PLACE: TUMKUR ADVOCATE FOR APPELLANT