Karnataka High Court
Smt Nagaratnamma vs The Commissioner on 26 April, 2013
Author: A.S.Bopanna
Bench: A.S. Bopanna
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 21ST DAY OF JANUARY, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.S. BOPANNA
WRIT PETITION NO.2105/2011 (LB-BMP)
BETWEEN:
SMT. NAGARATNAMMA,
W/O. C.K. BHADRAYYA,
AGED ABOUT 57 YEARS,
R @ 101, 7TH CROSS,
MARIYAPPANAPALYA,
KEMPAPURA - AGRAHARA,
MAGADI RASTHE,
BANGALORE - 560 023.
... PETITIONER
(BY SRI.M.R.HIREMATHAD, ADV.)
AND:
1. THE COMMISSIONER,
BRUHAT BANGALORE MAHANAGARA PALIKE,
BANGALORE.
2. THE ASSISTANT REVENUE OFFICER,
(GALI ANJANEYA DEVSASTHANA),
BRUHAT BANGALORE MAHANAGARA PALIKE,
BANGALORE
... RESPONDENTS
(BY SRI.B.V.MURALIDHAR, ADV. FOR R1 & R2)
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THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO
QUASH THE ENDORSEMENT ISSUED BY THE
RESPONDENTS DATED 2.11.2010 AT ANNEXURE-G.
THIS WRIT PETITION COMING ON FOR
PRELIMINARY HEARING 'B' GROUP THIS DAY, THE
COURT PASSED THE FOLLOWING:
ORDER
The petitioner is before this Court assailing the endorsement dated 02.11.2010 which is impugned at Annexure-G to the petition. The petitioner has also sought for issue of direction to the respondents to effect khatha of the property in the name of the petitioner based on the sale deed dated 30.01.2009.
2. The case of the petitioner is that she is the owner of the property bearing Site No.12*, 7th Cross, Hanumanthappa Layout, Deepanjalinagar, Bangalore. The petitioner claims to be in possession and enjoyment of the said site which was formed in Sy. Nos. 41/1 and 42/1* of Ramanahalli Village. The petitioner further *Corrected vide Court order dated 26.04.2013 3 claims that she has been in possession of the site from the year 1981 when a General Power of Attorney was executed in her favour by the owners of the property. In that regard, the holder khatha has been granted in favour of the petitioner. Presently, the petitioner is seeking registration of the regular khatha in her name by relying upon a sale deed dated 30.01.2009 under which the petitioner claims absolute right in respect of the property.
3. The respondents on examining the said document have issued a endorsement dated 02.11.2010 indicating to the petitioner that her request cannot be considered at this stage, since the sale deed on which the petitioner places reliance has been executed in her favour by the petitioner herself acting as the agent under the Power of Attorney said to have been executed by the owners. It is in that context, the petitioner claims to be aggrieved by the endorsement is before this Court. 4
4. On having heard the learned counsel for the parties, I am of the opinion that though as a position of law, the learned counsel for the respondents is justified in seeking to sustain the endorsement issued by the respondents, the facts evolving in the instant case requires to be noticed. In that regard, the Power of Attorney dated 20.07.1981 as at Annexure-A would disclose that the owners of the property have executed the Power of Attorney in favour of the petitioner. The said Power of Attorney is registered in the office of the Sub-Registrar. The petitioner in that light claims to be in possession of the site by enjoying the same and also that a construction has been put up and the property has been assessed to tax. Based on the said Power of Attorney, the petitioner had sought for the holder khatha based on her possession to the property and the same been considered by the respondents and khatha had been issued as per Annexures-B and C. The tax in 5 respect of the property has been paid in the name of the petitioner as disclosed from the property tax receipt at Annexure-D. When this was the position, the petitioner in order to have a better title over the property has secured a sale deed dated 30.01.2009. Since the petitioner had the benefit of the registered Power of Attorney in her favour, the sale deed was executed by her to her own name. The records would disclose that there is no objection from any other parties, though at the first instance, the respondents had registered the holder khatha in the name of the petitioner. The assessment made would indicate that construction has been put up on the site and no other person has made any claim with the respondents with regard to the said property, even after they have noticed the construction that was being put up therein.
5. Therefore, these aspects of the matter would indicate that in the year 1981, the Power of Attorney was 6 executed in favour of the petitioner and she has been in possession and no other person has objected to the same and the sale deed secured by the petitioner is for better title in respect of the property and based on the same, the application seeking regular khatha has been made. As noticed, in the instant facts, since there is material to indicate the long possession of the property by the petitioner, and there being no third party right claimed in respect of the property, the petitioner at this juncture cannot be directed to secure any declaration from the Civil Court or seek for any other right in her favour. Even if presently the regular khatha is issued in favour of the petitioner and if there are any other claims, it would always be open for the respondents to review its decision as contemplated under Section 114 (A) of the Act and in that view of the matter, no prejudice would be caused to any other parties.
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6. Keeping all these aspects in view, I am of the opinion that though it is not necessary to quash the endorsement, a direction is issued to the 2nd respondents to consider the request of the petitioner and effect regular khatha in favour of the petitioner which shall however remain subject to any objections that may be putforth by any of the interested parties subsequently. The same shall be done within four weeks from the date on which a copy of this order is furnished.
7. In terms of the above, the petitioner is allowed in part. No costs.
Sd/-
JUDGE ST*