1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JANUARY, 2025 BEFORE THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM WRIT PETITION NO.56087 OF 2016 (LR-RES) BETWEEN: HEMANNA SINCE DEAD BY LRS. 1 AKKAYAMMA SINCE DEAD BY HER LRS 2 SRI. DANEGOWDA S/O LATE HEMANNA AGED ABOUT 64 YEARS 3 SRI. MUNIVENKATEGOWDA S/O LATE HEMANNA AGED ABOUT 59 YEARS 4 SRI. GOPALAGOWDA @ PRAKASH S/O LATE HEMANNA AGED ABOUT 57 YEARS ALL ARE RESIDING AT SATHNUR VILLAGE, JALA HOBLI, BANGALORE NORTH TALUK KARNATAKA. 2 (PETITIONER NOS.2 TO 4 ARE LRS OF PETITIONER NO.1 AS PER ORDER DATED 09.07.2024) ...PETITIONERS (BY SRI. G.BALAKRISHNA SHASTRY, ADVOCATE) AND: 1. STATE OF KARNATAKA DEPARTMENT OF REVENUE REPRESENTED BY SECRETARY VIKASA SOUDHA BANGALORE- 560 001. 2. THE LAND TRIBUNAL DEVANAHALLI TALUK DEVANAHALLI - 562 110. REPRESENTED BY SECRETARY. 3. SRI. MUNIYAPPA S/O LATE MUNIYAPPA @ DOMMANNA AGED ABOUT 49 YEARS 4. SMT. PAPAMMA W/O LATE NARAYANASWAMY AGED ABOUT 55 YEARS 5. SMT. MOUNA D/O LATE NARYANASWAMY AGED ABOUT 32 YEARS 6. SRI. AVALAPPA S/O LATE MUNIYAPPA @ DOMANNA AGED ABOUT 52 YEARS 7. SMT. ANASUYAMMA W/O KEMPANNA 3 AGED ABOUT 40 YEARS 8. KUM. ASHWINI D/O LATE KEMPANNA AGED ABOUT 18 YEARS 9. MR. ARUN S/O LATE KEMPANNA AGED ABOUT 15 YEARS REPRESENTED BY HIS MOTHER SMT. ANASUYAMMA RESPONDENTS NO. 3 TO 9 ARE RESIDING AT SATHNUR VILLAGE, JALA HOBLI, BANGALORE NORTH TALUK KARNATAKA - 560 015. …RESPONDENTS (BY SMT. WAHEEDA, AGA FOR R1 & R2; SRI D.P. SHIVAPRASAD, ADVOCATE FOR R3 TO R9) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER OF THE LAND TRIBUNAL RESPONDENT NO.2 IN LRF NO.1/1979/80 DATED 13.07.1982 IN GRANTING OCCUPANCY RIGHTS IN FAVOUR OF DOMMANNA @ MUNISWAMAPPA IN RESPECT OF LAND IN SURVEY NO.4 MEASURING 1 ACRE AND 2 ACRE 8 GUNTA IN SURVEY NO.6 OF SATHANUR VILLAGE, JALA HOBLI, VIDE ANNEXURE-B AND DISMISS THE FORM NO.7 FILED BY LATE DOMMANNA @ MUNISWAMAPPA. THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 29.01.2025, THIS DAY ORDER WAS PRONOUNCED THEREIN, AS UNDER: 4 CORAM: HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM CAV ORDER The petitioners in the captioned petition are assailing the order of the respondent No.2/Land Tribunal dated 13.07.1982 conferring occupancy rights to the father of respondent No.3-Domanna @ Muniyappa in respect of petition lands bearing Sy.No.4 measuring 1 acre and Sy.No.6 measuring 2 acres 8 guntas in Sathanur Village, Jala Hobli, Devanahalli Taluk. 2. The facts leading to the case are as under: It is not in dispute that these lands were originally owned by Muniswamappa who is the grandfather of respondent No.3. The said Muniswamappa borrowed loan from Primary Land Development Bank, Devanahalli by mortgaging the lands on 13.08.1965. In view of default by the borrower, these lands were subjected to public auction and the husband of the petitioner No.1 and father of 5 petitioner Nos.2 to 4 purchased the lands in auction and the sale certificate came to be issued on 30.06.1978. In the meanwhile, the father of respondent No.3- Domanna @ Muniyappa filed Form No.7 claiming occupancy rights in respect of petition lands. The Land Tribunal after enquiry vide order dated 13.07.1982 allowed the application filed in Form No.7 and registered Domanna @ Muniyappa as occupant of the land. The said order passed by the Tribunal was challenged by the husband of petitioner No.1 in W.P.No.28672/1982. This Court allowed the petition vide order dated 17.09.1984 thereby quashed the order of the Land Tribunal and matter stood remitted for fresh consideration. The respondent No.3's father challenged the order passed in W.P.No.28672/1982 in W.A.No.667/1985 and the Division Bench allowed the appeal and set aside the order passed by the learned Single Judge vide order dated 6 16.09.1987. In the light of amendment and establishment of Land Reforms Appellate Authority, matter stood remitted to the Appellate Authority. Subsequently, in view of abolition of Appellate Authority, the husband of petitioner No.1 filed a CP to treat the appeal as a writ petition in W.P.No.25394/1992. The said writ petition filed in W.P.No.25394/1992 was dismissed for non-prosecution vide order dated 12.07.1993. The husband of petitioner No.1 and father of petitioner Nos.2 to 4 filed application seeking recalling of the order dated 12.07.1993. The same was numbered as C.P.No.1281/2001. This Court however rejected the petition vide order dated 07.12.2001 which was sought to be reviewed by the husband of petitioner No.1 namely Hemanna by filing a review petition in R.P.No.41/2002. The review petition was also rejected vide order dated 26.08.2004. 7 Simultaneously, in view of occupancy rights granted in favour of father of respondent No.3, the mutation proceedings also came to be initiated and the husband of petitioner No.1 namely Hemanna probably questioning the mutation granted to respondent No.3's father based on Land Tribunal order questioned the order of the Tahsildar by filing an appeal before the Assistant Commissioner in R.A.No.50/2004-05. The Assistant Commissioner vide order dated 07.09.2004 allowed the appeal and set aside the order of the Tahsildar. This order was challenged by the present respondent No.3 before the Deputy Commissioner who dismissed the revision petition vide order dated 22.06.2007. The present respondent No.3 and other legal heirs of the original applicant/tenant filed writ petition in W.P.No.10750/2007. This Court vide order dated 02.11.2012 set aside the orders of the Assistant Commissioner and Deputy Commissioner and restored the order of the Tahsildar. The original petitioner Hemanna 8 challenged the order passed in W.P.No.10750/2007 in W.A.No.8592/2012. This appeal was withdrawn with liberty to file a civil suit. Recording the prayer sought in the memo, the Division Bench permitted the husband of petitioner No.1 to withdraw the appeal vide order dated 25.03.2014. The present petitioners filed review petition in 2016 seeking review of the order passed in W.A.No.8592/2012. However, this review petition was also rejected by the Division Bench vide order dated 14.07.2016. Pursuant to dismissal of the review petition in R.P.No.1263/2014, now present writ petition is filed assailing the order of the respondent No.2/Land Tribunal dated 13.07.1982. 3. Learned counsel appearing for the petitioners reiterating the grounds in the writ petition has ardently contended that dismissal of writ petition filed in W.P.No.25394/1992 for non-prosecution which was filed 9 primarily questioning the order of the Land Tribunal granting occupancy rights will not bar the petitioners in maintaining the present writ petition. Citing the reported judgment rendered by the coordinate Bench in The Managing Director, The Cauveri Neeravari Nigam Limited vs. Sri Manjegowda1, learned counsel has tried to persuade this Court that earlier dismissal of writ petition for non-prosecution will not operate as res judicata and the present writ petition is maintainable and this Court is vested with jurisdiction to examine the correctness of the order granting occupancy rights on private respondents. Petitioners counsel arguing on the same line has further placed reliance on the judgment rendered by the Hon'ble Apex Court in the case of Daryao and Others vs. State of U.P.2. While placing reliance on the judgment, he would contend that rule of res judicata is not merely a technical rule but it is based on public policy and therefore, citizens 1 2008 (2) KCCR 1085 2 AIR 1961 SC 1457 10 are ordinarily entitled to appropriate relief when writ jurisdiction is invoked. He has further placed reliance on the latest judgment rendered by the Hon'ble Apex Court in the case of Beerbal Singh (Dead) Through legal representatives vs. State of Uttar Pradesh and Others3. 4. Learned counsel would further point out that dismissal of the writ petition for default and for non- prosecution will not attract principles governing Res- Judicata.He has cited Hon'ble Apex Court judgment in the case of Raj Kishore Pandey vs. State of Uttar Pradesh and Others4. Citing this judgment, he would contend that Court should be lenient while considering restoration of the petition filed for default. He has also cited the judgment rendered by the Hon'ble Apex Court in the case of Tukaram Kana Joshi and Others vs. Maharashtra 3 (2018) 13 SCC 675 4 (2009) 2 SCC 692 11 Industrial Development Corporation and Others5. Citing this judgment, he would point out that even if right to property seizes to be a fundamental right, however, the right to property is a statutory right as amended under Article 300A of the Constitution of India. Citing the law laid down by the coordinate Bench in the case of Sri Govind Krishanarao Deshpande vs. The Land Tribunal and Others6, learned counsel for the petitioners has vehemently argued and contended that discretion needs to be exercised if it is found that it is unreasonable in diffusing justice. 5. Citing these judgments, he argues that the father of Respondent No.3 filed Form No.7 against his own father solely to circumvent the auction sale and the petitioners' purchase in the auction, thereby claiming occupancy rights. Therefore, he would contend that this is a clear case of fraud. Citing the judgment of the Hon'ble 5 (2013) 1 SCC 353 6 ILR 2006 Kar 1872 12 Apex Court in the case of Janak Raj vs. Gurdial Singh7, he would contend that once sale certificate is confirmed, the subsequent challenge to award and even if the award is set aside that will not invalidate the sale certificate confirmed by the competent authority. 6. Per contra, learned counsel appearing for the respondent Nos.3 to 9 would point out that the order of the Land Tribunal conferring occupancy rights is dated 13.07.1982 and the present writ petition is filed in 2016. Therefore, she would request this Court to dismiss the writ petition only on the ground of delay and laches. While countering petitioners claim that Form No.7 filed by father of respondent No.3 was set up by the defaulter who had failed to repay the loan, she would point out that this contention is not sustainable. Referring to registered partition deed, she would point out that father of respondent No.3, the son of original defaulter, separated 7 AIR 1967 SC 608 13 from his father under registered partition deed dated 07.09.1965 and therefore, there is no bar/impediment to maintain Form No.7 against his separated father. 7. Referring to the order sheet, she would point out that though one D.V.Padmanabhaiah is shown to be an Advocate for petitioner, infact, he was an Advocate appearing for the respondent. Further referring to the records, she would point out that petitioners had made an attempt to recall the order dated 12.07.1993 which was dismissed for non-prosecution. This petition which was filed in C.P.No.1281/2001 seeking recall of the dismissal order in W.P.No.25394/1992 was also dismissed. Application to recall this order was also rejected on 07.12.2001. Review petition filed in R.P.No.41/2002 was dismissed on 26.08.2004. 8. She would further point that the present writ petition filed after lapse of 34 years cannot be a 14 entertained since petitioners were found litigating simultaneously while assailing the mutation orders based on a Land Tribunal order conferring occupancy rights. Referring to these significant details, she has placed reliance on the following judgments: 1) Kharaiti Lal vs. Raminder Kaur and Others - (2000) 3 SCC 664; 2) U.Nilan vs. Kannayyan (Dead) Through Lrs. - (1999) 8 SCC 511; 3) Challamane Huchha Gowda vs. M.R.Tirumala and Another - (2004) 1 SCC 453; 4) Sri Maruthi Devasthan Modag vs. The Land Tribunal, Belgaum - W.P.No.37541/1997; 5) State of U.P. and Another vs. Labh Chand - (1993) 2 SCC 495; 6) Dabulu Shedthi vs. State of Karnataka and Others - 2005 SCC Online Kar 181; 7) D.Sangya Naik vs. Department of Telecom by its Head of the Dept., New Delhi and Others - ILR 2005 Kar 1874; 15 8) Sri S.Gautam Raj vs. Bruhat Bengaluru Mahanagara Palike - ILR 2016 Kar 2804; 9) Papanna vs. State of Karnataka and Others - ILR 001 Kar 580; 10) Gopal Rao vs. Land Reforms Tribunal Basavakalyan & Anr. - 1978 SCC Online 285; 11) Basavaraj M. vs. State of Karnataka - W.P.No.26693 of 1981. 9. While countering petitioners contention and judgments cited, she as a counter has placed reliance on the judgment rendered by the Hon'ble Apex Court in the case of State of Uttar Pradesh vs. Labh Chand8. Citing this judgment, she would contend that second writ petition after dismissal in limine ,second writ is not maintainable. She has also placed reliance on the judgment rendered by the Division Bench in the case of Dabulu Shedthi vs. State of Karnataka and Others9. Referring to the principles laid down by the Division Bench, she would point 8 (1993) 2 SCC 495 9 2005 SCC Online Kar 181 16 out that if coordinate Bench did not find the explanation plausible, while dealing with civil petition, another Bench cannot review that the explanation is satisfactory. She has also placed reliance on the judgment rendered by the coordinate Bench rendered in the case of D.Sangya Naik vs. Department of Telecom by its Head of the Dept., New Delhi and Others10. 10. While countering petitioners claim on maintainability of Form No.7, reliance is placed on the judgment rendered by the coordinate Bench in the case of Basavaraj M. vs. State of Karnataka and Others11 to demonstrate that junior member of Joint Hindu family more particularly son can maintain application for registration of occupancy rights during lifetime of father. 11. Heard learned counsel appearing for the petitioners, learned AGA appearing for respondent Nos.1 10 ILR 2005 Kar 1874 11 W.P.No.26693 of 1981 17 and 2 and learned counsel appearing for respondent Nos.3 to 9. 12. Based on the contentions advanced by the counsel on record, following points arises for consideration: 1) Whether the present writ petition is liable to be dismissed on the ground of delay and laches? 2) Whether petitioner can maintain second writ petition in view of dismissal of review petition filed in R.P.No.41/2002 which is preceded by dismissal of civil petition filed in C.P.No.1281/2001? Finding on Point No.1: 13. In the case on hand, it is not that petitioners were not aware of the dismissal of the civil petition filed in C.P.No.1281/2001 and also dismissal of the writ petition by Division Bench in W.P.No.25394/1992 for default. The writ petition filed in W.P.No.25394/1992 assailing the order of 18 the Land Tribunal dated 13.07.1982 conferring occupancy rights on private respondents was dismissed for non- prosecution on 12.07.1993. Assailing the dismissal for non- prosecution, a civil petition was filed in C.P.No.1281/2001. The Division Bench dismissed the civil petition vide order dated 07.12.2001. This Court deems it fit to extract relevant portion of the order passed in C.P.No.1281/2001, which reads as under: "3. Generally, this Court is lenient in condoning the delay if reasonable and sufficient cause is made out. In the instant case, we are not satisfied with the explanation given by the petitioner for not appearing before court on 12.7.93 and for non- compliance. On consideration, we find no ground to recall the order. However, the parties are free to take action in accordance with law." 14. A Review petition was filed before the Division Bench to recall the dismissal of writ petition for non- prosecution dated 12.07.1993. This review petition is also 19 dismissed on 26.08.2004. The relevant portion of review petition is extracted as under: "5. This Court considered the matter in detail while passing the order in C.P.No.1281/2001 and found that there was no good ground to recall the order dated 12-7-1993 passed in the writ petition. Under the circumstances, we find no reason to review the order passed in C.P.No.1281/2001. This review petition is dismissed." 15. In the intervening period, the petitioners have been persistently engaged in litigation against the private respondents, primarily contesting their title based on the sale certificate issued by the competent authority. Additionally, the petitioners have been continuously involved in mutation proceedings since 2003. The case records indicate that, pursuant to the order of the Land Tribunal, the legal heirs of Domanna submitted an application before the Tahsildar seeking a change in the katha. This application was considered and subsequently 20 allowed, resulting in the names of Domanna’s legal heirs— who are the successors of the original applicant/tenant— being officially mutated in the revenue records on 15.11.2003. 16. However, this order was challenged by Hemanna, the ancestor of the petitioners, before the Assistant Commissioner. Upon reviewing the matter, the Assistant Commissioner allowed the appeal, thereby setting aside the order passed by the Tahsildar. Aggrieved by this decision, the legal heirs of Domanna, including Respondent No.3 and others, preferred an appeal questioning the Assistant Commissioner’s order. Simultaneously, Hemanna also filed an application seeking the restoration of the auction purchaser’s title. After considering both contentions, the Deputy Commissioner, in an order dated 22.06.2007, dismissed the revision petition filed by the legal heirs of the original applicant/tenant and instead allowed the application 21 filed by Hemanna, effectively reinstating the auction purchaser’s rights. 17. Dissatisfied with the Deputy Commissioner’s decision, Respondent Nos.3 to 9 approached this Court by filing W.P.No.10750/2007, challenging the said order. Upon consideration, this Court allowed the writ petition through an order dated 02.11.2012, setting aside the orders passed by both the Assistant Commissioner and the Deputy Commissioner and thereby restoring the order of the Tahsildar. In response, Hemanna, the ancestor of the petitioners, assailed this judgment by filing W.A.No.8592/2012. However, during the proceedings, the said writ appeal was dismissed as withdrawn on 25.03.2014. 18. Despite withdrawing the writ appeal, the petitioners made an unusual move by subsequently filing a review petition in R.P.No.1263/2014, seeking a recall of the 22 earlier order. However, this review petition was thoroughly examined and ultimately dismissed on 14.07.2016. Thus, having faced an adverse outcome in the mutation proceedings at every stage, the petitioners’ ancestor, after exhausting all available remedies, eventually filed the present writ petition in W.P.No.56087/2016. 19. Another significant development pertains to W.P.No.25394/1992, which was originally filed to challenge the Land Tribunal’s order dated 13.07.1982. This writ petition, however, was dismissed for non-prosecution on 12.07.1993. Interestingly, while the petitioners remained highly active in contesting mutation proceedings and asserting their title based on the sale certificate, they deliberately chose not to challenge the dismissal of this writ petition. 20. Furthermore, the matter did not end there. The Division Bench not only dismissed the writ petition for non- 23 prosecution, but subsequent attempts to revive the case also failed. A civil petition was filed in C.P.No.1281/2001, followed by a review petition in R.P.No.41/2002, both of which were dismissed. If the petitioners wished to challenge these adverse orders, they ought to have pursued appropriate legal remedies in a timely manner, as prescribed by law. However, having consciously refrained from challenging these dismissals, their present claims must be viewed in light of their previous inaction. 21. The petitioners, despite having full knowledge of the proceedings arising out of the mutation dispute, failed to act within the prescribed time and have thus forfeited their rights due to inaction. This is a clear case of waiver. A Coordinate Bench of this Court, while relying on the judgment of the Hon’ble Apex Court in Balwant Singh v. Jagdish Singh, has emphasized that neither a liberal approach nor a justice-oriented perspective can be used to override the substantive law of limitation. The Hon’ble Apex 24 Court, in the aforesaid judgment, categorically held that the law of limitation, being a substantive provision, has definitive consequences on the rights and obligations of litigating parties. Once a party gains a valuable right due to the deliberate inaction and laxity of the opposing party, such inordinate delay especially when arising from negligence cannot be condoned. The Hon’ble Apex Court has held that discretion vested with the Court while considering delay application under section 5 of the Limitation Act has to be exercised in a systematic manner informed by reasons. 22. In the light of discussion made supra, this Court is of the view that this writ petition is liable to be dismissed on the ground of laches. Accordingly, point No.1 is answered in the affirmative. 25 Finding on point No.2: 23. Regarding the maintainability of the present petition, the petitioners contend that the dismissal of the writ petition in W.P.No.25394/1992 vide order dated 12.07.1993 does not preclude them from challenging the issue afresh through a separate writ petition. However, this argument cannot be accepted. The case records clearly establish that the petitioners did attempt to revive W.P.No.25394/1992 by filing a civil petition in C.P.No.1281/2001. It is pertinent to note that this civil petition was filed only in 2001, whereas the Division Bench had dismissed W.P.No.25394/1992 for non-prosecution as early as 12.07.1993. Thus, there was an inordinate delay of eight years before the petitioners made an attempt to resuscitate the original writ petition by filing C.P.No.1281/2001. 26 24. Upon consideration, the Division Bench was not inclined to recall the earlier dismissal order, and consequently, C.P.No.1281/2001 was dismissed in 2001. This demonstrates that the petitioners, despite having ample opportunity, failed to take appropriate legal steps in a timely manner. Their belated attempt to revive the matter, after nearly a decade, was rightly rejected by the Division Bench. 25. Following the dismissal of their civil petition, the original petitioner, Hemanna, made a final attempt by filing a review petition in R.P.No.41/2002, seeking a reconsideration of the orders passed in W.P.No.25394/1992 and C.P.No.1281/2001. However, the Division Bench once again declined to interfere, firmly refusing to recall any of the previous orders. This resulted in the dismissal of the review petition as well. 27 26. From the sequence of events, it is evident that the petitioners did not maintain a fresh writ petition independently; rather, they systematically pursued multiple legal avenues to challenge the dismissal of their original writ petition for non-prosecution. First, they filed C.P.No.1281/2001, which was dismissed. Then, they filed R.P.No.41/2002, which also met the same fate. If the petitioners were genuinely aggrieved by these dismissals, they ought to have pursued further legal remedies in the manner prescribed by law at the appropriate time. Instead, having suffered adverse orders at multiple stages, they now seek to bypass the legal consequences of their own inaction by relying on certain judicial precedents. However, the judgments cited by the petitioners do not apply to the present case, as their situation is distinct and governed by established principles of finality in litigation. 28 27. On the other hand, the judgments relied upon by the learned counsel for Respondent Nos.3 to 9 are directly applicable to the present case. The petitioners, having repeatedly failed to secure the restoration of W.P.No.25394/1992, remained inactive for nearly twelve years before filing the present writ petition. Additionally, they have already suffered multiple adverse orders in the mutation proceedings. It is significant to note that the present writ petition is directed against the Land Tribunal’s order passed in 1982 an order that was left unchallenged for decades. 28. The petitioners cannot circumvent the legal consequences of the decisions rendered by the Division Bench in W.P.No.25394/1992, C.P.No.1281/2001, and R.P.No.41/2002. These orders have attained finality and serve as a clear legal bar against the maintainability of the present writ petition. The principle of res judicata and the doctrine of finality in litigation apply squarely to this 29 case, estopping the petitioners from reopening settled issues through fresh proceedings. 29. The present writ petition, W.P.No.56087/2016, has been filed by the petitioners only after suffering repeated setbacks in the mutation proceedings, culminating in the dismissal of R.P.No.1263/2014 on 14.07.2016. The review petition was an attempt to challenge the earlier adverse orders, including the decision of this Court in W.P.No.10750/2007, which had set aside the orders of the Assistant Commissioner and Deputy Commissioner while restoring the Tahsildar's order. Despite these repeated efforts, the petitioners' claims were consistently rejected, and their review petition was thoroughly examined and dismissed. It is evident that the petitioners, having exhausted all available remedies in the mutation proceedings, have now filed the present writ petition as a last-ditch attempt to reopen settled issues, which were conclusively adjudicated against them. 30 30. Accordingly, this Court finds that the petitioners are not entitled to maintain the present writ petition, and point No.2 is answered in the negative. 31. For the foregoing reasons, this Court proceeds to pass the following: ORDER Writ petition is dismissed. SD/- (SACHIN SHANKAR MAGADUM) JUDGE CA