Karnataka High Court
P Munishamappa @ P. Muniswamy vs The State Of Karnataka on 5 February, 2025
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.14689 OF 2016 (KLR-RES)
BETWEEN:
P. MUNISHAMAPPA @ P. MUNISWAMY
S/O SRI. PILLAMARAPPA
SINCE DEAD BY HIS LRS.
1. SMT. RUKMINAMMA
W/O LATE T. KRISHNAPPA
DAUGHTER-IN-LAW OF
LATE P. MUNISHAMAPPA
@ P. MUNISWAMY
AGED ABOUT 44 YEARS.
1A. SMT. RASHMI
D/O LATE T. KRISHNAPPA
AGED ABOUT 28 YEARS.
1B. SMT. RAMYA
D/O LATE T. KRISHNAPPA
AGED ABOUT 26 YEARS.
2. SMT. MANJULAMMA
W/O LATE AHWATHANARAYANA
DAUGHTER IN LAW OF
LATE P. MUNISHAMAPPA @ P.MUNISWAMY
AGED ABOUT 36 YEARS.
2
2A. SMT. SAVITHA
D/O LATE AHWATHANARAYANA
AGED ABOUT 34 YEARS
2B. SRI. A RAGHU
S/O LATE AHWATHANARAYANA
AGED ABOUT 26 YEARS
3. SMT. YASHODAMMA
D/O LATE P. MUNISHAMAPPA @ P.MUNISWAMY
AGED ABOUT 54 YEARS.
4. SMT. NAGAVENAMMA
D/O LATE P. MUNISHAMAPPA @ P.MUNISWAMY
AGED ABOUT 52 YEARS
5. SMT. SHANTHAMMA
D/O LATE P. MUNISHAMAPPA @ P.MUNISWAMY
AGED ABOUT 44 YEARS
ALL ARE RESIDING AT
THIMMAHALLI VILLAGE
VIJAYAPURA HOBLI
DEVANAHALLI TALUK
BANGALORE RURAL DISTRICT - 560 043.
...PETITIONERS
(BY SRI. C.R.GOPALASWAMY, SENIOR ADVOCATE FOR
SRI M.SRINIVASA, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REVENUE DEPARTMENT
M.S. BUILDING
BANGALORE - 560 001.
REPRESENTED BY ITS SECRETARY.
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2. THE DEPUTY COMMISSIONER
BANGALORE RURAL DISTRICT
PODIUM BLOCK, V.V. TOWER
BANGALORE - 560 001.
3. THE ASSISTANT COMMISSIONER
DODDABALLAPURA SUB-DIVISION
DODDABALLAPURA
BANGALORE RURAL DISTRICT.
4. THE TAHASILDAR
DEVANAHALLI TALUK
DIVANAHALLI
BANGALORE RURAL DISTRICT.
5. SMT. RAMACHANDRAMMA
D/O LATE BACHAPPA
AGED ABOUT 56 YEARS
6. SMT. RATHNAMMA
D/O LATE BACHAPPA
SINCE DEAD BY LRS.
6A. SMT. NALINI
D/O LATE RATHNAMMA
AGED ABOUT 30 YEARS.
6B. SMT. NANDINI
D/O LATE RATHNAMMA
AGED ABOUT 28 YEARS.
6C. SMT. NAIDNI
D/O LATE RATHNAMMA
AGED ABOUT 26 YEARS.
6D. SRI. MOHAN
S/O LATE RATHNAMMA
AGED ABOUT 24 YEARS.
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7. SMT. NAGAVENAMMA
D/O LATE BACHAPPA
AGED ABOUT 52 YEARS.
8. SRI. B. ASHWATHAPPA
S/O LATE BACHAPPA
AGED ABOUT 49 YEARS.
9. SRI. B. NARAYANA SWAMY
S/O LATE BACHAPPA
AGED ABOUT 46 YEARS
10. SRI. B. NAGARAJ
S/O LATE BACHAPPA
AGED ABOUT 44 YEARS.
11. SMT. SUVARNAMMA
W/O LATE B. RAMESH
AGED ABOUT 32 YEARS.
11 A. BABY MANYA
D/O LATE B. RAMESH
AGED ABOUT 10 YEARS
11 B. BABY KAVYA
D/O LATE B. RAMESH
AGED ABOUT 7 YEARS
RESPONDENT NOS. 11A AND 11B ARE
MINORS REPRESENTED BY
THEIR NATURAL GUARDIAN
MOTHER SMT. SUVARNAMMA
12. SMT. NARAYANAMMA
D/O LATE BACHAPPA
AGED ABOUT 65 YEARS
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RESPONDENT NOS. 5 TO 12 ARE
RESIDING AT
THIMMAHALLI VILLAGE
VIJAYAPURA HOBLI
DEVANAHALLI TALUK
BANGALORE RURAL DISTRICT -560 043.
...RESPONDENTS
(BY SMT. B.P. RADHA, AGA FOR R1 TO R4;
SRI. T.S.VENKATESH, ADVOCATE FOR R5 TO R12)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER ANNEXURE-A DATED 11.02.2013 MADE IN RP
NO.13/2009-10 PASSED BY THE RESPONDENT NO.2 THE
DEPUTY COMMISSIONER, AND THE ORDER ANNEXURE-B DATED
30.05.2009 MADE IN RA (DE)191/2007-08 PASSED BY THE
RESPONDENT NO.3 ASSISTANT COMMISSIONER, SETTING
ASIDE THE MUTATION ENTRIES MADE IN THE NAME OF SRI.
P.MUNISHAMAPPA @ P. MUNISWAMY IN IHR.126/1992-93 AND
MUTATION IN MR.NO.4/1992-93; AND ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 04.02.2025, THIS DAY ORDER WAS
PRONOUNCED THEREIN, AS UNDER:
CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
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CAV ORDER
The captioned petition is filed by one P.Munishamappa
assailing the order passed by the respondent No.2/Deputy
Commissioner vide Annexure-A affirming the order passed
by the respondent No.3/Assistant Commissioner vide
Annexure-B.
2. Before this Court proceeds further, this Court
deems it fit to cull out the family tree which is furnished
along with notes tendered by the learned counsel for the
petitioners:
Channabyrappa
|
_______________ |________________
| |
Pillamarappa Bachappa
| |
Munishamappa (petitioner) Respondent
Nos.5 to 12
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3. The facts leading to the case are as under:
One Channabyrappa is shown to be the propositus
who had two sons namely Pillamarappa and Bachappa. The
original petitioner Munishamappa is no more and his legal
heirs are prosecuting the captioned petition. Contesting
respondent Nos.5 to 12 represent the branch of Bachappa.
Respondent Nos.5 to 12 assailing the mutation entry under
IHR No.126/1992-93 filed appeal before the respondent
No.3/Assistant Commissioner. The respondent Nos.5 to 12
seriously disputed the claim of the original petitioner
Munishamappa regarding oral partition effected in the
family and alleged consent given by respondent Nos.5 to 12
which is evidenced at Annexure-F. The respondent
No.3/Assistant Commissioner while entertaining the appeal
which was filed assailing the mutation effected 15 years
ago, referring to records held that under the oral partition
original petitioner Munishamappa was allotted four lands
and accordingly allowed the appeal and set aside the
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mutation. This order is confirmed by the respondent
No.2/Deputy Commissioner.
4. Learned Senior Counsel appearing for the
petitioners reiterating the grounds would point out that the
family owned several lands which are indicated in Schedule
'A' properties to the writ petition totally measuring 72 acres
34 guntas. He would contend that Pillamarappa died while
original petitioner Munishamappa was a minor and
therefore, he was under the care and custody of Bachappa,
his uncle. Learned Senior Counsel referring to the records
would point out that there was a family partition in 1963,
but since Munishamappa was a minor under the custody of
Bachappa, all the lands indicated in schedule 'A' continued
to stand in the name of Bachappa. However, after demise
of Bachappa, the original petitioner Munishamappa
submitted an application to respondent No.4/Tahsildar,
Devanahalli seeking change of mutation in terms of oral
partition. The original petitioner contended that respondent
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Nos.5 to 12 consented to this application and mutation was
effected under IHR.No.126/1992-93.
5. Learned Senior Counsel would further point out a
striking factor in the manner in which parties have
conducted themselves post mutation effected under
IHR.No.126/1992-93. He would point out that the
petitioners family inter se have further divided schedule 'B'
properties allotted to their share under oral partition under
registered partition deed dated 04.12.2003. He would point
out that respondent Nos.5 to 12 having suffered a decree in
O.S.No.523/1995 dated 26.02.2008 have changed the
mutation effected in 1992-93 before the respondent
No.3/Assistant Commissioner in appeal bearing RA(De)
No.191/2007-08 questioning the mutation which was based
on a consent form and oral partition.
6. One more crucial factor which is brought to the
notice of this Court that pending mutation proceedings
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more particularly appeal before the Assistant
Commissioner, respondent Nos.5 to 12 have also inter se
partitioned schedule 'C' properties which were allotted to
them in oral partition under registered partition deed dated
04.12.2003. He would point out that interestingly
respondent Nos.5 to 12 have not laid a claim over schedule
'B' properties.
7. Referring to these significant details, learned
Senior Counsel would point out that respondent Nos.5 to 12
have unequivocally admitted oral partition and before
respondent No.3/Assistant Commissioner have set up a plea
that four lands were allotted to the petitioners family and
sought for setting aside the disputed mutation. Respondent
No.3/Assistant Commissioner without even adverting to the
RTC of these lands has blindly accepted that there is a oral
partition and petitioners family were allotted four lands
namely Sy.Nos.76, 37/2, 38/2 and 39/1. Learned Senior
Counsel referring to Annexure-L series, would point out that
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these lands do not belong to petitioners and private
respondents family and the same can be gathered from the
names reflected in the RTC at Annexure-L series.
8. Referring to these significant details, he would
point out that the mutation effected in 1992-93 sought to
be challenged in 2007-08 i.e., after lapse of 15 years, the
revenue authorities ought to have relegated the respondent
Nos.5 to 12 to the Civil Court. On the contrary, the
authorities have entertained the claim made by the
respondent Nos.5 to 12 and therefore, the orders under
challenge are liable to be set aside.
9. Per contra, learned counsel appearing for
respondent Nos.5 to 12 reiterating the grounds urged in the
statement of objections, however, contended that the
disputed mutation under IHR No.126/1992-93 is based on a
fraudulent declaration/consent tendered in Form No.19. He
would point out that this form No.19 could not have been
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tendered as petitioners are not the class-I heirs of
Bachappa. He would also emphasize on the fact that this
alleged consent is dated 25.12.1992 which was obviously a
general holiday on account of Christmas and therefore, the
petition which is based on concocted documents is rightly
set aside by the respondent No.3/Assistant Commissioner.
10. Learned counsel appearing for respondent Nos.5
to 12 contends that respondent Nos.5 to 12 have succeeded
to the estate left behind by their father Bachappa who was
the absolute owner of these lands and they are in exclusive
possession and cultivation of the above said properties. It
is further contended that Bachappa expired on 15.12.1991
and it is only respondent Nos.5 to 12 who have inherited
the properties left behind by Bachappa as class-I heirs.
While justifying the orders passed by the respondent
No.3/Assistant Commissioner, he would point out that
Assistant Commissioner has meticulously assessed the
materials on record and has rightly set aside the disputed
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mutation as bonafide acquisition of Munishamappa is not
forthcoming from the disputed mutation. He would further
vehemently argue and contend that the alleged consent is a
fraudulent document and the mutation effected by
fraudulent document is rightly set aside by the respondent
No.3/Assistant Commissioner and is confirmed by the
respondent No.2/Deputy Commissioner and therefore, does
not warrant any interference at the hands of this Court and
therefore, learned counsel would persuade this Court to
dismiss the writ petition.
11. Heard learned Senior Counsel appearing for the
petitioners, learned counsel appearing for respondent Nos.5
to 12 and learned AGA appearing for the respondent Nos.1
to 4.
12. This Court has carefully examined the
documents tendered by both the parties. This Court has
also given its anxious consideration to the additional
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documents placed on record by the petitioners and the
counter documents furnished by the respondent Nos.5 to
12. The additional documents which are placed on record
by the petitioners also reveal that respondent Nos.8 to 10
have already filed a comprehensive suit seeking relief of
declaration of title and have sought possession of the
disputed schedule 'B' properties which are now in
possession of the petitioners. The said suit is filed in
O.S.No.313/2009 pending on the file of the Civil Judge
(Sr.Dn.), Devanahalli. This suit is filed seeking possession
of five properties while petitioners' father's name is
mutated to nine properties totally measuring 36 acres 27
guntas. In the plaint, the respondents have also referred to
partition deed dated 04.12.2003 which is effected inter se
between petitioners family. The prayer sought in the said
suit would be necessary and the same is extracted which
reads as under:
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"a. Declaring the plaintiffs are the absolute
owners of the suit schedule properties and they are
entitled to their possession coupled with a direction
to the Defendant to quit and deliver the vacant
possession of the same to the Plaintiffs.
b. A permanent injunction restraining the
Defendants from alienating / disposing off any of the
suit schedule properties.
c. An enquiry as to the mesne profits.
d. To grant such other relief/s as this Hon'ble
Court may deem fit to grant in the circumstances of
the case in the interest of justice."
13. At para 9 of the plaint filed in O.S.No.313/2009,
respondent Nos.8 to 10 have specifically asserted that
schedule 'B' properties are self acquired properties of their
father Bachappa. Same is indicated in para 9 and
therefore, respondent Nos.8 to 10 contended that after
demise of Bachappa, they have inherited to the properties
while original petitioner Munishamappa who is arrayed as
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defendant No.1, it is alleged that he has got his name
mutated behind the back of respondent Nos.8 to 10. There
is a reference to the disputed mutation in
IHR.No.126/1992-93.
14. On closer examination of the stand taken by the
private respondent Nos.5 to 12 before the Assistant
Commissioner while preferring an appeal after 15 years in
R.A.No.191/2007-08, they have admitted in unequivocal
terms that there was a oral partition between appellant's
father Bachappa and his brother Pillamarappa. Para 5
would be relevant and the same is culled out which reads as
under:
"5. The appellant respectfully submits that the
properties bearing Sy.No.34/1 measuring 3 acre 18
guntas, Sy.No.37/B measuring 12 guntas,
Sy.No.35/1 measuring 7 guntas, Sy.No.36
measuring 22 guntas, Sy.No.37/1 measuring 18
guntas of land situated at Timmahalli Village,
Vijipura Hobli, Devanahalli Taluk, Bangalore District
belongs to Appellants father who acquired during his
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lifetime through the oral partition between the
appellants father and his brother Pillamarappa. It is
submitted after the appellants father acquired the
above referred properties he was in possession and
enjoyment of the same without any interference
from any body. After the demise of the said
Bachappa the appellants succeeded to the estate of
the deceased Bachappa and accordingly they are in
possession and enjoyment of the properties referred
to above as on this date and they are the absolute
owners of the above referred properties."
15. In the next paragraph, the private respondents
assert that Sy.Nos.76, 37/2, 38/2 and 39/1 was allotted to
the petitioners branch. Para 6 would be also relevant and
the same is extracted which reads as under:
"6. The appellants submits that the 2nd
respondent and his father have separated from the
joint family long back and they acquired certain
properties bearing Sy.No.76, 37/2, 38/2, 39/1,
situated at Timmahalli Village, Vijipura Hobli,
Devanahalli Taluk, Bangalore District, as such the
appellants and 2nd respondent are in joint family
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from last three decades. As such the question of
joint status of the parties as on the date of
03.02.1993 does not arise for consideration."
16. A careful reading of the above-extracted
paragraphs reveals that respondent Nos.5 to 12 have
explicitly acknowledged the existence of an undivided Joint
Hindu Family comprising both the petitioners' branch and
their own. Their categorical admission regarding an oral
partition is of significant legal consequence. They contend
that specific properties were allotted to the petitioners'
branch as part of this oral partition, including lands bearing
Sy.Nos.76, 37/2, 38/2, and 39/1. However, the petitioners
have effectively refuted this assertion by producing
documentary evidence in the form of RTC records, which
are annexed as Annexure-L series. These records prima
facie demonstrate that the alleged allotment of these four
properties to the petitioners' branch is factually incorrect.
The petitioners have successfully established that these
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properties were never in their possession or ownership, nor
were they ever legally allotted to them in any form.
Therefore, the assertion made by respondent Nos.5 to 12 in
regard to allotment of lands in oral partition appears to be
unfounded and is directly contradicted by the documentary
evidence on record.
17. In this backdrop, a crucial question arises as to
whether respondent No.3, the Assistant Commissioner,
could have entertained the appeal in R.A.No.191/2007-08
despite a considerable delay of nearly 15 years, particularly
in the absence of an application under Section 5 of the
Limitation Act, 1963, seeking condonation of such delay.
The law on limitation is well settled, and in cases where a
belated appeal is preferred, the authority hearing the
appeal must first examine whether sufficient cause has
been demonstrated for the delay before proceeding with the
merits of the case. However, in the present case, there is
no indication that the Assistant Commissioner considered
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the issue of limitation or recorded any finding on whether
the delay was justifiable. Furthermore, even assuming that
the appeal was maintainable, the Assistant Commissioner
failed to appreciate the fact that in their memorandum of
appeal, respondent Nos.5 to 12 themselves admitted to the
oral partition. This admission casts serious doubt on the
subsequent challenge to the mutation entry that had been
effected way back in 1992-93. Instead of deciding the
matter summarily, the Assistant Commissioner ought to
have relegated the private respondents to the jurisdiction of
the Civil Court, particularly in light of the complex nature of
the dispute and the conflicting claims regarding ownership
and partition.
18. Another significant aspect that cannot be
overlooked is the subsequent legal action initiated by
respondent Nos.5 to 12. It is evident from the records that,
after the Assistant Commissioner passed the impugned
order, the private respondents promptly approached the
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Civil Court and instituted O.S.No.313/2009, seeking
comprehensive reliefs concerning the disputed properties.
The institution of this suit further reinforces the position
that the issues at hand are best adjudicated in a civil
proceeding where the rights of all parties can be thoroughly
examined based on oral and documentary evidence.
However, neither respondent No.3, the Assistant
Commissioner, nor respondent No.2, the Deputy
Commissioner, took into consideration this subsequent
development while passing impugned orders. The failure to
account for the pending civil suit and the legal implications
arising from it amounts to a serious lapse on the part of
these authorities. Once a civil suit is filed to adjudicate
property disputes, revenue authorities ought to refrain from
interfering, as such disputes fall squarely within the
jurisdiction of the Civil Court.
19. It is also pertinent to note that the total extent
of the disputed properties is 72 acres and 34 guntas, as
22
indicated in Schedule 'A' of the petition. The petitioners,
who represent the branch of Pillamarappa, claim that they
were allotted nine lands measuring a total of 36 acres and
27 guntas, while respondent Nos.5 to 12 were allotted 27
lands measuring 36 acres and 7 guntas. The very fact that
respondent Nos.5 to 12 have sought possession in their suit
suggests that they themselves acknowledge the possession
of the petitioners over these lands. In such circumstances,
the burden lies upon the private respondents to establish
that the properties in question were self-acquired by their
father, Bachappa, rather than being part of the joint family
estate. However, this claim is directly at odds with their
own admission regarding the oral partition, as reflected in
the revenue proceedings and, more particularly, in
paragraph 5 of their appeal memorandum. If respondent
Nos.5 to 12 indeed believed that the properties were self-
acquired by Bachappa, then their admission regarding the
oral partition and their reliance on it in earlier proceedings
23
appear to be contradictory. This inconsistency severely
weakens their case and further reinforces the necessity of
adjudication by the Civil Court rather than the revenue
authorities.
20. Another crucial aspect that raises serious doubts
regarding the claims of respondent Nos.5 to 12 is their
selective approach in seeking partition. While they have
proceeded to effect partition in respect of Schedule 'C'
properties, they have conspicuously excluded Schedule 'B'
properties from the partition process. This raises legitimate
concerns as to whether they are attempting to retain
exclusive control over certain properties while disputing the
claims of the petitioners over others. If the properties
standing in the name of the petitioners were indeed part of
the joint family estate, then there is no plausible reason for
their exclusion from the partition proceedings initiated by
respondent Nos.5 to 12. This selective and inconsistent
approach further substantiates the contention that the
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respondents' claim regarding the self-acquired nature of
these properties lacks credibility. The issue, therefore,
requires a detailed and meticulous examination by the trial
court in O.S.No.313/2009. Given the complexity of the
claims and counterclaims, and the existence of a pending
civil suit, the orders passed by the Assistant Commissioner
and Deputy Commissioner cannot be sustained. They are
legally unsound and are accordingly liable to be set aside.
21. Considering the foregoing reasons and the
factual matrix of the case, this Court is of the firm view that
the impugned orders passed by respondent No.3/Assistant
Commissioner and respondent No.2/Deputy Commissioner
cannot be sustained in law. It is an undisputed fact that
respondent Nos.5 to 12 have already approached the Civil
Court by filing O.S.No.313/2009, wherein they have
specifically sought reliefs of declaration and possession in
respect of only three properties. The very act of instituting
a suit before the Civil Court indicates that the private
25
respondents themselves recognize the necessity of
adjudication by a competent Civil Court rather than a
summary determination by revenue authorities. Once a
civil suit is pending on the same subject matter, any
parallel proceedings before revenue authorities would be
unwarranted and could lead to conflicting decisions. It is a
well-settled principle of law that when complex questions of
title, ownership, and partition arise, such disputes must be
adjudicated by a Civil Court rather than through revenue
proceedings. Therefore, the interference of the Assistant
Commissioner and Deputy Commissioner in matters
involving title and possession, despite the existence of a
civil suit, is legally unsustainable.
22. Furthermore, the claim of respondent Nos.5 to
12 that four specific properties were allotted to the
petitioners' family, as evidenced at Annexure-L, requires a
detailed and thorough examination by the Civil Court. The
petitioners have strongly contested this assertion and have
26
raised serious doubts regarding the alleged allotment,
particularly in light of revenue records that contradict the
claims of the private respondents. If the petitioners, in their
defense before the Civil Court, challenge the nature and
ownership of these properties, the trial Court will be best
suited to evaluate the documentary evidence, consider oral
testimonies, and determine the legal status of these
properties. The issue involves intricate questions of
partition, possession, and ownership, which cannot be
conclusively decided in summary revenue proceedings.
23. Additionally, this Court takes cognizance of the
significant delay in challenging the mutation entry. The
mutation in question was effected in the year 1993, and it
remained unchallenged for nearly 15 years, until
respondent Nos.5 to 12 preferred an appeal in 2007-08.
The law of limitation serves to prevent stale claims from
being entertained after an unreasonable delay, unless
sufficient cause is shown. In the present case, there is no
27
material on record to indicate that respondent Nos.5 to 12
made any efforts to challenge the mutation entry in a
timely manner. The absence of an application under
Section 5 of the Limitation Act, 1963, seeking condonation
of delay, further weakens their case. Revenue authorities
ought to have considered the impact of such an inordinate
delay before entertaining the appeal. The failure to do so
renders the orders of the Assistant Commissioner and
Deputy Commissioner legally untenable.
24. In view of the above, this Court finds that the
orders passed by respondent No.3/Assistant Commissioner
and respondent No.2/Deputy Commissioner suffer from
serious legal infirmities. Given that a comprehensive civil
suit is already pending, and considering the long delay in
challenging the mutation, the impugned orders cannot be
sustained. Accordingly, they are liable to be set aside.
28
25. For the reasons stated supra, this Court
proceeds to pass the following:
ORDER
(i) Writ petition is allowed;
(ii) The impugned order passed by the respondent No.2/Deputy Commissioner vide Annexure-A confirming the order passed by the respondent No.3/Assistant Commissioner vide Annexure-B are hereby quashed;
(iii) It is made clear that the disputed mutation in IHR.No.126/1992-93 will be subject to outcome of the suit pending in O.S.No.313/2009;
(iv) Pending I.As., if any, do not survive for consideration and stand disposed of.
Sd/-
(SACHIN SHANKAR MAGADUM) JUDGE CA