THOMAS D SOUZA vs B YATHIRAJ SHETTY

- 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 29TH DAY OF NOVEMBER 2017

BEFORE

THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA

WRIT PETITION No.13179/2012 (KLR-RES)

BETWEEN

THOMAS D’ SOUZA S/O SEBASTIAN D’ SOUZA AGED ABOUT 68 YEARS

MRS. SEVERINE D’ SOUZA W/O THOMAS D’ SOUZA AGED ABOUT 58 YEARS

BOTH ARE RESIDING AT KUKLOOR VILLAGE, CHAMBA BELLUR VIRAJPET POST COORG DISTRICT

... PETITIONERS

(BY SMT. NEERAJA KARANTH, ADVOCATE)

AND

B. YATHIRAJ SHETTY S/O VASANTH RAM SHETTY AGED ABOUT 51 YEARS R/A “ANUGRAHA”, BEJAI NEW ROAD 2ND CROSS,

MANGALORE

Mr. LUKE PINTO S/O C .J. PINTO AGED ABOUT 46 YEARS

- 2 - RESIDING AT PANORAMA BENDORE, MANGALORE

FELIX AMBRASE D’ SOUZA S/O LATE MICHEAL D’ SOUZA MAJOR R/AT KATLA, IDDYA VILLAGE MANGALORE

ASSISTANT COMMISSIONER MANGALORE SUB - DIVISION MANGALORE D K DISTRICT

THE SECRETARY GOVT. OF KARNATAKA REVENUE DEPARTMENT M S BUILDING DR AMBEDKAR VEEDHI BANGALORE-560001

... RESPONDENTS

(BY SRI S.VISHWAJITH SHETTY, ADVOCATE FOR R1, SRI I.THARANATH POOJARY, ADVOCATE FOR R2, RESPONDENT No.3 SERVED SRI KIRAN KUMAR.T.L, ADDITIONAL GOVERNMENT ADVOCATE FOR RESPONDENT NOs.4 AND 5)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY KARNATAKA APPELLATE TRIBUNAL IN APPEAL No.19/2010 DATED 31/01/2012 VIDE ANNEXURE ‘A’ TO THE PETITION.

THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

- 3 - O R D E R

The petitioners herein are impugning the judgment dated 31.01.2012 (Annexure ‘A’ to the petition) passed by the Karnataka Appellate Tribunal (hereinafter referred to as ‘the K.A.T.’), Bengaluru, in Appeal No.19/2010 (case of Mangalore Camp).

The said appeal was filed by petitioners herein impugning the order dated 23.11.2009 (Annexure ‘B’ to the petition) passed by respondent No.4 herein, namely Assistant Commissioner, Mangaluru sub-division, Mangaluru, in case No.CDIS:LRY:SR:2/2007-08.

The brief facts leading to this writ petition are as under:

3.1 It is the case of the petitioners that the property bearing Sy. No.127/1 measuring 02 Acres 94 cents situate in Iddya village, Surathkal, Mangaluru Taluk, described in schedule ‘A’ to the writ petition belonged to late Juam D’Souza. He died intestate and his property devolved on his

- 4 - wife, namely Mrs. Cossess Suvares / Cosses Suvaris, who in turn, had executed a Codicil dated 22.09.1989 bequeathing the entire property including the petition ‘A’ schedule property inherited from her husband in favour of the petitioners herein. After the death of Mrs. Cossess Suvares on 07.11.1989, petitioners stated to be the executors of the Will dated 17.05.1975 and Codicil dated 22.09.1989, filed an application for grant of probate of the said Will. Since the probate application was contested by Monthu Suvares, the same was converted into a suit in O.S. No.12/1994 on the file of II / III Additional District Judge, Dakshina Kannada. The said suit came to be decreed by judgment dated 24.11.1997 and by virtue of the said judgment, petitioners have become the owners of the petition ‘A’ schedule property.

3.2 It is further stated that the probate application filed by the third respondent herein, namely Felix Ambrase D’Souza, in respect of the Will (dated 14.10.1988) executed by Juvam D’ Souza was contested by Cossess Suvares during her lifetime and after her death, by petitioners herein and the same was converted into suit in O.S. No.8/1994 on the file of

- 5 - III Additional District Judge. The said suit came to be decreed by the trial Court. As against the same, Miscellaneous First Appeal preferred by petitioners herein before this Court came to be dismissed.

3.3 According to the petitioners, the aforesaid Will in respect of which probate was granted by the trial Court in favour of the third respondent herein, did not confer any title on him since he is not a legal heir of late Juam D’Souza and the said Will contravened the provisions of Section 61 of the Karnataka Land Reforms Act, 1961 (hereinafter referred to as ‘the Act’) as it was executed within the prohibited period from the date of grant of occupancy rights in favour of Juam D’Souza.

3.4 Petitioners have pointed out that in the suit in O.S. No.359/1999, which was re-numbered as 21/1999, filed by the second petitioner herein before the III Additional District Judge, against the third respondent herein for the relief of permanent injunction in respect of the petition ‘A’ schedule

- 6 - property, an order of temporary injunction has been granted by the trial Court.

3.5 It is alleged by the petitioners that the third respondent herein, without any title in respect of the petition ‘A’ schedule property, has sold three portions of land measuring 01 Acre 15 cents, 01 Acre 04 cents and 25 cents respectively, in Sy. No.127/1 which are described as schedule ‘B’, schedule ‘C’ and item No.2 properties in the writ petition in favour of respondent Nos.1 and 2 herein under three registered sale deeds dated 29.09.2006, 30.10.2006 and 30.10.2006 vide Annexures ‘C’, ‘D’ and ‘E’ respectively, to the petition. The said sale deeds were executed in violation of the undertaking given by the third respondent herein in his counter affidavit to I.A. No.13 filed by the second petitioner herein in the suit in O.S. No.359/1999.

3.6 In the petition, there is reference to suit in O.S. Nos.550/2006 and 614/2006 filed by the petitioners herein before the Principal Civil Judge (Jr. Dn.) for declaration that the aforesaid registered sale deeds executed by respondent

- 7 - No.3 herein in favour of respondent Nos.1 and 2 herein are null and void and not binding on them.

3.7 When the matter stood thus, the petitioners herein initiated proceedings, which was numbered as CDIS:LRY:SR:2/07-08, before the fourth respondent herein - Assistant Commissioner alleging that sale of the aforesaid three portions of the petition ‘A’ schedule property by respondent No.3 in favour of respondent Nos.1 and 2 was in contravention of the provisions of Sections 79A and 79B of the Act.

3.8 In the said proceedings, the Assistant Commissioner, by order dated 23.11.2009 (Annexure ‘B’ to the petition), has rejected the said application / petition holding that the applicants – petitioners herein failed to establish that there was violation of the provisions of Sections 79A and 79B of the Act with reference to purchase of the said three portions of the petition ‘A’ schedule property by respondent Nos.1 and 2 herein from respondent No.3 herein.

- 8 - The said order was the subject-matter of challenge in Appeal No.19/2010 before the K.A.T.

3.9 The K.A.T., after reappreciation of the material on record, by judgment dated 31.01.2012 (Annexure ‘A’ to the petition), has dismissed the said appeal while confirming the order of the Assistant Commissioner dated 23.11.2009. Hence, the petitioners are before this Court.

Heard the learned counsel for petitioners, learned counsel for respondent No.1, learned counsel for respondent No.2 and learned Additional Government Advocate for respondent Nos.4 and 5. Though respondent No.3 is served, he has remained unrepresented. Perused the material on record.

Admittedly, respondent Nos.1 and 2 herein have purchased three portions of the petition ‘A’ schedule property measuring 01 Acre 15 cents, 01 Acre 04 cents and 0.25 cents in Sy. No.127/1 under three registered sale deeds dated 29.09.2006, 30.10.2006 and 30.10.2006. It is contended by the petitioners that they are the owners of the petition ‘A’

- 9 - schedule property i.e., land measuring 02 Acres 94 cents in Sy. No.127/1 and respondent No.3 had no title to sell portions of the petition ‘A’ schedule property in favour of respondent Nos.1 and 2. The dispute with regard to the title in respect of the petition ‘A’ schedule property is to be gone into by the trial Court in the suit/s, which is/are stated to be filed by the petitioners herein.

The records would indicate that petitioners initiated proceedings before the fourth respondent – Assistant Commissioner making allegations against respondent Nos.1 and 2 herein as having purchased three portions of the petition ‘A’ schedule property i.e., lands measuring 01 Acre 15 cents, 01 Acre 04 cents and 0.25 cents respectively, in Sy. No.127/1 from respondent No.3 in contravention of the provisions of Sections 79A and 79B read with Section 80 of the Act. The application which was filed by the petitioners on 20th March 2007 was enquired into and thereafter, an order has been passed by the fourth respondent on 23.11.2009, wherein it is observed that the applicants – petitioners herein had not produced any document to prove their title in respect of the

- 10 - petition ‘A’ schedule property and on the contrary, name of respondent No.3 was recorded in pahani in respect of the lands in question and Tahasildar vide order No.EDS:LRY:CR:177/06-07 dated 28.09.2006, had issued no objection certificate in his favour for sale or mortgage of the said land. The Assistant Commissioner has further observed that respondents 1 and 2 hailed from agricultural family and their annual income other than the source of agricultural income did not exceed Rs.2,00,000/-. While considering the question as to whether purchase of land by respondent Nos.1 and 2 being the persons of different religion or community and not being the members of the joint family amounted to violation of the provisions of Sections 79A and 79B of the Act, the Assistant Commissioner relying upon the judgment of the Apex Court in the matter of Ramanlal Bhailal Patel and others vs. State of Gujarat reported in 2008(5) SCC 449, has observed that in the absence of any document to show that there was an agreement between respondent Nos.1 and 2 to have common or joint venture, they could not be treated as association of persons as contended by the applicants –

- 11 - petitioners herein and they could only be treated as coowners. Accordingly, the Assistant Commissioner held that the applicants – petitioners herein failed to establish that there was violation of the provisions of Sections 79A and 79B of the Act by respondent Nos.1 and 2 herein with reference to purchase of three portions of land measuring 01 Acre 15 cents, 01 Acre 04 cents and 25 cents respectively, under the sale deeds registered as document Nos.4424/2006-07 dated 29.09.2006, 4906/2006-07 dated 28/30.10.2006 and 4907/2006-07 dated 28/30.10.2006.

In the appeal before the K.A.T., respondent Nos.1 and 2 produced additional documents i.e., income tax returns for the years mentioned in the impugned order and certificate of Chartered Accountant along with I.A. filed under Regulation No.36 of the Karnataka Appellate Tribunal Regulations and the said documents were accepted as additional evidence by the K.A.T. The K.A.T., after considering the contentions of the learned counsel for the parties and on re-appreciation of the material available on record, has reiterated the finding

- 12 - recorded by the Assistant Commissioner to the effect that respondent Nos.1 and 2 had proved that they were agriculturists and their individual income other than the source of agricultural income did not exceed Rs.2,00,000/- per annum and they were to be considered as coowners and not body of individuals or association in accordance with the principles laid down by the Apex Court in Ramanlal Bhailal Patel’s case (supra). Accordingly, the K.A.T. by judgment dated 31.01.2012, has dismissed the said appeal while upholding the order of Assistant Commissioner dated 23.11.2009.

Petitioners herein not being satisfied with the order / judgment passed in the earlier two rounds of litigations i.e., before the Assistant Commissioner in proceedings No.CDIS:LRY:SR:2/07-08 and the K.A.T. in Appeal No.19/2010 are pursuing the present writ petition taking up the same contention that there is violation of the provisions of Sections 79A and 79B inasmuch as respondent Nos.1 and 2 though belong to different families have come together to

- 13 - purchase agricultural lands from respondent No.3. As could be seen from the order passed by the Assistant Commissioner dated 23.11.2009, which is confirmed by the K.A.T., by the impugned judgment, the said purchase is held to be valid and accordingly, the said sale transaction is confirmed by both the Authorities.

In that view of the matter, this Court find that the present Writ Petition filed by the unsuccessful appellants before the K.A.T., is without any merit and they are pursuing the same with an ulterior motive and without having any legal right to challenge the aforesaid registered sale deeds dated 29.09.2006, 28/30.10.2006 and 28/30.10.2006 executed by respondent No.3 in favour of respondent Nos.1 and 2 in respect of the said three portions of the petition ‘A’ schedule property. Hence, such kind of litigations cannot be entertained and attempt of the parties to abuse the legal process must be curbed by imposing cost of Rs.10,000/-.

10.

Accordingly, this Writ Petition is dismissed by imposing cost of Rs.10,000/- (Rupees ten thousand) payable

- 14 - to the Registry within 30 days from this day, failing which, appropriate proceedings shall be initiated for recovery of the same from the petitioners.

Sd/- JUDGE

sma

THOMAS D SOUZA vs. B YATHIRAJ SHETTY