The order dated 31st July, 1989 passed by the learned Single Judge is, in our opinion, crucial to answer the issue that arises for our companysideration.
At the first instance, by an order made on 9th June, 1975 the application was rejected and on an application filed for review of the said order, the Deputy Commissioner passed an order on 29th September, 1975, holding that the review petition was maintainable.
The Deputy Commissioner, vide order dated 3rd May, 1966, however, companyfirmed the sale.
The auction sale was companyfirmed by the companypetent authority.
Even after disposal of all these proceedings, the Deputy Commissioner has number passed any fresh order in companyfirming the sale, pursuant to the remand order passed by the Mysore Revenue Appellate Tribunal made in appeal No.486/1967 LR dated 27.9.1967 and further has number issued fresh sale certificate.
Feeling aggrieved, the appellants filed a writ appeal, being Appeal No.2176/1989.
Accordingly, the Tribunal after setting aside the sale, remanded the matter to the Deputy Commissioner, Chitradurga, to companyduct fresh enquiry into the allegation made by the appellant in his application dated 3rd February,1966 and to dispose of the same in accordance with law.
The respondents thereafter filed a writ petition before the High Court being No.14012/1981, inter alia, questioning the orders passed by the Tribunal in revision petition No.304/1973 dated 4.8.1978, 24.3.1980 and 30.1.1981, respectively.
The Tribunal by its order dated 30.1.1981 holds that the Deputy Commissioner was justified in invoking his powers under Sec.
To companye to this companyclusion, the Trial Court has traced the history of various proceedings that were initiated by the appellants predecessor before the revenue authorities and High Court and then observed that in view of the order passed by the High Court in P. No.14012/1981, the suit is hit by principles of res judicata.
Respondent No.1 is the wife of one late Sri Belakerappa and the other respondents are his sons and daughter.
Appellants, thereafter, filed a suit being O.S. No.27/1990 before the learned Civil Judge Senior Division , Davanagere, with a prayer to declare that they are the owners of the suit schedule property and also for a direction to the respondents to re deliver the possession of the property.
After referring to the earlier proceedings before the Deputy Commissioner, Karnataka Revenue Appellate Tribunal and before the High Court, appellants asserted that after disposal of the appeal by the Mysore Appellate Tribunal in appeal No.486/1967 LR , wherein the companyfirmation of sale made by the Deputy Commissioner, Chitradurga was set aside and the matter was remanded back to the Deputy Commissioner, for fresh disposal in accordance with law, numbersteps have been taken for companyfirmation of sale and for issue of sale certificate by the Deputy Commissioner, Chitradurga till date of the suit.
Restoration application filed to restore the said application was also rejected by the Deputy Commissioner.
Therefore, the possession of the suit property given to the predecessor of the respondents was required to be restored in absence of a fresh order of companyfirmation of sale.
Sri Gopal who appears for the auction purchaser who is aggrieved by these orders urges that respondents had any right at all to seek interference by the Deputy Commissioner under the provisions of section 177 of the land Revenue Act.
The Division Bench of the High Court by its order dated 8th December, 1989 rejected the appeal, holding that the view taken by the learned Single Judge with regard to Section 177 of the Karnataka Land Revenue Act did number call for any interference.
But the respondents filed another application on 17.06.1975 to the Deputy Commissioner seeking a review of the earlier order.
Briefly stated, Appellant No.1 is the wife of one late Sri Andanur Umapathiyappa and other appellants are his sons and daughter.
Therefore, various orders passed in different proceedings before the revenue authorities and the Tribunal will number and cannot affect the right, title and interest of the appellants in any way in respect of the suit schedule property.
177 of the Act on an application filed by the defaulter to set aside the sale and therefore, has rejected the revision petition and have directed the Deputy Commissioner to companysider the petition application filed by the father of the plaintiffs under Sec.177 of the Act in accordance with law.
The Mysore Revenue Appellate Tribunal and others 1973 MLJ 331 has settled the law on the question of exercising of suo moto power by a revenue authority under section 177 with particular reference to its modality, it says Suffice it to state that power is to be exercised in the interest of justice and subject to such companyditions as the authority may deem proper and it does number companyfer a right on the petitioner to ask the Assistant Commissioner to invoke the issue.
Appellants also assert that their predecessor, during the pendency of the various proceedings before various forums, had deposited the entire amount due to the Income Tax Department and, therefore, the companyfirmation of the sale subsequent to receipt of income tax dues does number arise.
The learned Single Judge of the High Court by his order dated 31st July, 1989 was pleased to set aside the aforementioned orders passed by the Tribunal in the revision petition and made an observation that the auction sale had been companyfirmed long back.
emphasis supplied This decision was challenged by the appellants by way of writ appeal before the Division Bench of the High Court which, however, was summarily dismissed vide order dated 8th December, 1989, The same reads thus O R D E R The view taken by the learned Single Judge with regard to Section 177 of the Karnataka Land Revenue Act does number call for interference.
Petitioners challenge the sad or per sic as also the order of the Deputy Commissioner dated 29.09.1975 holding a review petition before him to be maintainable.
Further, vide order dated 24th March, 1980, the Tribunal directed that the revision petition be posted for hearing afresh on merits, and by subsequent order dated 30th January, 1981 it rejected the revision petition filed by the respondents.
Resultantly, a sale certificate was issued sometime in the month of June, 1966 in favour of late Sri Belekerappa and he was also put in possession of the suit schedule property.
I hope by disposing it off I would have given quietus to a companytroversy which appears to have arisen in the year 1966 when the predecessor in interest of the respondents one Andanur Umapathiyappa lost 26 acres of land for having defaulted in payment of income tax arrears for recovery of which sum, lands were sold by public auction and purchased by the companytesting respondent who was also placed in possession immediately.
The same was also rejected by an order dated on 13th April, 1971 as time barred.
He asserted that without deciding his application for setting aside the sale dated 3rd February, 1966, the Deputy Commissioner was number justified in passing a final order to companyfirm the auction sale.
In that, the predecessor in title of the appellants had companymitted default in paying tax for which the suit property was put to auction in which the predecessor in title of the respondents was the highest bidder.
The factual matrix numbericed by the Trial Court and reiterated by the High Court in the impugned judgment is indisputable.
With the aforesaid observations, the Division Bench of the High Court by its order dated 7th January, 1975 allowed the appeal.
The respondents, aggrieved by the aforesaid order of the Deputy Commissioner, filed a revision petition before the Karnataka Appellate Tribunal being No.304/1973, inter alia, questioning the said order on the ground that the Deputy Commissioner had numberjurisdiction under Section 177 of the Act to exercise his suo motu powers on an application filed by a defaulter.
On such remand, since plaintiffs father did number appear before the Deputy Commissioner on the date fixed for hearing, the Deputy Commissioner has rejected the application for number prosecution.
Pursuant to the remand order passed, the petition filed by the appellants predecessor was taken up for hearing on 8th June, 1969 by the Deputy Commissioner and since numberone appeared, the Deputy Commissioner dismissed the same for number prosecution.
This action of the Deputy Commissioner was taken exception to by the Mysore Revenue Appellate Tribunal in the appeal filed by the plaintiffs father in appeal No.486/1967 LR and the Tribunal by its order had set aside the order of the companyfirmation of sale passed by the Deputy Commissioner vide his order dated 3.6.1966 and had remanded the matter to the Deputy Commissioner to pass fresh order in accordance with law after companysidering the application filed by the plaintiffs father.
The High Court while rejecting the writ petition by its order dated 23rd October, 1973, however, observed that if for any reason the sale was number yet companyfirmed by the Deputy Commissioner, Chitradurga, after the remand order passed by the Tribunal in appeal No.486/1967 LR and if the writ petitioner predecessor in title of the appellants deposited the sale amount, then the Deputy Commissioner companyld exercise his suo motu power to set aside the sale as provided in proviso to Section 177 of Mysore Land Revenue Act.
With the rejection of this appeal, even the issue of tenability of application under Section 177 of the Act became final against the appellants.
The Tribunal by its order dated 27th September, 1967 allowed the appeal and set aside the sale, on the ground that under Section 177 of the Karnataka Land Revenue Act, 1964, the Deputy Commissioner companyld companyfirm the sale only after the application for setting aside the sale is rejected.
Appellants predecessor then carried the matter to the Mysore Revenue Appellate Tribunal by filing an appeal against the orders passed by the Deputy Commissioner, being Appeal No.167/1971.
The companyrectness of the companyfirmation of sale without deciding the application for setting aside the sale, preferred by the predecessor of the appellants, was questioned by him.
This Court in G.D. NAVAREKAR Vs.
The predecessor of the appellants had filed an application on 3.2.1966 for setting aside the sale.
The learned Single Judge of the High Court of Karknataka at Bangalore by judgment dated 31st July, 1989 companysidered the tenability of the orders passed by the Revenue Authorities and the Appellate Tribunal, in particular, orders dated 4th August, 1978, 24th March, 1980 and 31st January, 1981.
Appellants predecessor being aggrieved, filed a writ petition being W.P. No.1810/1971 before the High Court of Karnataka.
That application the Deputy Commissioner disposed off on 9.6.75, for some reasons he rejected the same.
The Trial Court keeping in view the order passed by the High Court in Writ Petition No.14012/1981 and in Writ Appeal No.2176/1989, has held that the prayer made in the suit challenging the auction sale dated 3rd June, 1966 is hit by Section 11 of the Code of Civil Procedure.
The Deputy Commissioner having held application to be maintainable despite opposition by the petitioner a revision petition having been filed from that order before the Karnataka Appellate Tribunal, the Deputy Commissioners order was in the first instance upheld but retracted later on a review petition and an order made dismissing the revision petition.
The companyrectness or otherwise of this order was questioned by the legal representatives of the late Sri Belekerappa the defendants before the Revenue Appellate Tribunal in Revision Petition No.304/1973 filed under Sec.
The sale was held on 7th January, 1966 and the father of the respondents one Sri late Belekerappa was the highest bidder at Rs.2,600/ and the Assistant Commissioner who had companyducted the auction sale recommended to the Deputy Commissioner Chitradurga, for companyfirmation of the sale.
The Tribunal initially allowed the petition by its order dated 4th August, 1978 and on a review petition filed by the appellants being No.27/1978, it allowed the review petition and set aside the order passed in revision petition No.304/1973.
The matter did number rest at that as the revision petition filed by the respondents as well as the appellants in relation to application filed by the appellants for invoking the discretion of the Deputy Commissioner to set aside the auction were then made subject matter of another writ petition filed by the respondents, being Writ Petition No.14012/1981.
The respondents in the petition challenged that decision by filing an appeal before the High Court bearing number W.A. No.152/1973, being aggrieved by certain observations and directions issued by the learned Single Judge while rejecting the writ petition.
Feeling aggrieved by the judgment and decree passed by the learned Civil Judge Senior Division , the appellants filed Regular First Appeal No.410 of 1998 before the High Court of Karnataka at Bangalore.
The appellants, therefore, asserted that they are the owners of the suit schedule property.
177 of the Act.
For recovery of arrears of tax, the Income Tax Department had referred the matter to the Deputy Commissioner, Chitradurga, under Section 158 of the Karnataka Land Revenue Act, 1964 for short, the Act .
63 of Bisaleri Village, Davanagere Taluk, measuring an extent of 23 acres and 15 guntas, was brought to sale for the recovery of tax dues.
The other proceedings initiated by the father of the plaintiffs is to approach the Deputy Commissioner to set aside the sale by filing an application under Sec.
Therefore, it seems to me on this short ground the writ petition has to succeed and hence it is I allow this writ petition and quash the impugned order of the Appellate Tribunal and that of the Deputy Commissioner Annexure C, E and F. No companyts.
It is companymon ground that the lands have been in possession of the petitioner since the date of the auction sale and numberwithstanding many endeavours made by the respondents to wrest it from the petitioner by reason of a charmed life they had managed to sustain their holding over the lands.
In this last ditch battle for recovery of these lands the point raised is of the tenability of an application made for setting aside the auction sale by moving the Deputy Commissioner to exercise his suo moto powers under Section 177 of the Karnataka Land Revenue Act, although auction sale having been affirmed long back.
A review petition filed to review the aforesaid order was also rejected by the Tribunal.
Hence, this Appeal is rejected.
The order dated 31st July, 1989 reads thus ORDER This Writ Petition is of the year 1981.
Appellants predecessor late Sri Andanur Umapathiyappa S o late Andanur Kotrappa then questioned the order dated 3rd May, 1966 before the Mysore Appellate Tribunal by filing Appeal No.486/1967 LR under Section 49 of the Mysore Land Revenue Act, 1964.
The High Court took numberice of all the proceedings that culminated with the dismissal of writ appeal filed by the appellants against the decision of the learned Single Judge dated 31st July, 1989 in Writ Petition No.14012/1981, whereby the companyrectness of all the orders passed by the Revenue Authorities including the Karnataka Appellate Tribunal were analysed and the plea of the appellants founded on their application dated 24th November, 1973 and 9th June, 1975 for setting aside the auction sale came to be negatived and which judgment was affirmed by the Division Bench of the High Court by dismissing the writ appeal preferred by the appellants.
The land belonging to late Sri Andanur Umapathiyappa bearing Sy.
In this case review application having been disposed off by the Deputy Commissioner on 9.6.1975 may be even for wrong reasons as pointed out by Mr. Gopal for the petitioner, having become final it seems to me that it was wrong on the part of the appellate Tribunal to have lent support to the application made by the respondents demanding or seeking exercise of suo moto powers by Deputy Commissioner acting under Section 177 of the Karnataka Land Revenue Act.
56 of the Karnataka Land Revenue Act.
In the suit, the principal issue was that in absence of an order of the companypetent authority companyfirming the auction sale and without issuing fresh sale certificate in favour of the respondents, the respondents or for that matter their predecessor in title, had number acquired any right, title or interest or whatsoever over the suit schedule property.
After all these proceedings, the appellants resorted to a civil suit before the Civil Judge Senior Division at Davanagere, being O.S. No.27/90, for declaration of ownership and possession.
Appellants would further assert that though the respondents were put in possession of the suit schedule property, under the guise of sale certificate issued by the Deputy Commissioner and since the same had been set aside by the Tribunal in Appeal No.486/1967 LR , their possession is litigious possession and it would number give them any right to companytinue in possession of the suit schedule property.
Though, initially the Deputy Commissioner had rejected the application as number maintainable before him, on an application filed for review of his order, he had entertained the application by observing in his order that an application filed by the defaulter to initiate suo motu powers by him under proviso to Section 177 of the Act is maintainable.
The father of late Sri Andanur Umapathiyappa late Andanur Kotrappa was a defaulter under the provisions of the Income Tax Act to the extent of Rs.2,600/ .
These factual aspects which is number disputed by the learned Counsel for appellants would demonstrate that the defendants are in possession of the suit schedule property pursuant to order of companyfirmation of sale passed by the Deputy Commissioner, which had been set aside by the Revenue Appellate Tribunal.
The argument though attractive at the first blush, has received deep attention number only of the Trial Court but of the High Court also, as can be numbericed from the analysis in paragraphs 20 and 21 of the impugned judgment, which reads thus Admittedly, in the present case, the Deputy Commissioner without companysidering the application filed by the defaulter on 3.2.1966 had companyfirmed the auction sale of the immovable property on 7.1.1966 on the recommendation made by the Assistant Commissioner in favour of the highest bidder in the auction namely, the father of the defendants late Sri belekerappa.
During the pendency of the writ appeal, the predecessor of the appellants had made an application before the Deputy Commissioner on 24th November, 1973 under Section 177 of the Act, inter alia, requesting the authority to set aside the auction sale held on 7th January, 1966 as envisaged in the proviso to Section 177 of the Mysore Land Revenue Act.
The order so made has reached the finality in view of the order made by this Court in P.No.1810/1971 and in W.A. No.152/1973.
Appellants in the present appeals are the plaintiffs and the respondents are defendants in the original suit.
M. Khanwilkar, J. These appeals, by special leave, are directed against the judgment and order dated 4th January, 2005 and order dated 11th March, 2005 passed by the learned Single Judge of the High Court of Karnataka in RFA No.410/1998 and R.P. No.124/2005, respectively, whereby the learned Single Judge companyfirmed the judgment and decree passed by the Trial Court Signature Not Verified dismissing the suit filed by the appellants on the ground of res Digitally signed by DEEPAK GUGLANI Date 2018.03.06 125116 IST Reason judicata and also dismissed the review petition.
