Karnataka High Court
Basana Gowda And Ors. vs The Deputy Commissioner, Gadag ... on 19 July, 2002
Equivalent citations: 2002(5)KARLJ157
Author: N. Kumar
Bench: N. Kumar
ORDER N. Kumar, J.
1. The lands in dispute belonged to the joint family of which one Kariyappa Gowda was the member. He filed a suit L.C. No. 112 of 1944 for partition and separate possession of his l/3rd share in all the joint family properties. After contest the suit came to be decreed on 19-8-1947 declaring Kariyappa Gowda as the owner of l/3rd share in all the suit schedule properties. Aggrieved by the same the present petitioners preferred an appeal in L.A. No. 24 of 1947. After contest the decree of the Court below was confirmed and the appeal came to be dismissed and the said decree has become final. Thereafter, Kariyappa gowda initiated final decree proceedings for securing his l/3rd share. In the year 1953 when the Civil Court transmitted the papers to the Deputy Commissioner under Section 54 of the Civil Procedure Code for effecting partition, the Deputy Commissioner in turn sent the papers to the Assistant Commissioner.
2. The record discloses that the revenue authorities did not probably effect partition. Therefore, the parties on 1-7-1977 presented before him compromise petition agreeing to effect partition among themselves in the manner suggested therein and they also took possession of the respective properties which had fallen to their share. On the basis of the compromise petition, the Assistant Commissioner passed a final decree as per Annexure-R2 in the year 1978. Thereafter, the parties moved the Civil Court for recording compromise and entering full satisfaction. The Civil Court by its order dated 24-7-1977 recorded the compromise and also entered full satisfaction of the decree. It appears that Kariyappa Gowda during his lifetime did not make application to the revenue authorities to mutate his name in terms of the aforesaid partition decree. He died in the year 1989. After his death, in the year 1992 the respondents 4 to 7, his legal representatives, who are sons of Kariyappa Gowda made application for mutating their names in respect of four items which had fallen to their share in the said partition, namely, the land bearing Sy. No. 71/1, measuring 4 acres 3 guntas, Sy. No. 108/2 measuring 4 acres 23 guntas, Sy, No. 108/A2 measuring 20 guntas and Sy. No. 113/3 measuring 2 acres 6 guntas. On such application being made, the Tahsildar mutated the names of respondents 4 to 7 in the mutation register in respect of the aforesaid lands. Aggrieved by the said order dated 3-6-1992 the petitioners herein preferred an appeal under Section 136(2) of the Karnataka Land Revenue Act before the Assistant Commissioner. After contest, the Assistant Commissioner allowed the appeal and set aside the mutation entry in the name of respondents 4 to 7. Aggrieved by the said order of the Assistant Commissioner, respondents 4 to 7 preferred writ petition before this Court in Writ Petition No. 523 of 1993. This Court set aside the order of the Assistant Commissioner as well as Tahsildar by order dated 18-6-1992 and remanded the matter back to the Tahsildar for fresh disposal in accordance with law after notice to all the parties. After fresh enquiry the Tahsildar rejected the application of the respondents 4 to 7 by his order dated 13-12-1993. Aggrieved by the said order, respondents 4 to 7 preferred an appeal to the Assistant Commissioner who dismissed the appeal on 30-3-1999, Aggrieved by the said order, respondents 4 to 7 preferred a revision before the Deputy Commissioner. The Deputy Commissioner on taking note of the proceedings referred to supra came to the conclusion that in terms of the compromise petition a final decree is passed and the aforesaid lands have fallen to the share of respondents 4 to 7 and therefore directed their names to be entered in the mutation register by his order dated 1-6-2001. Aggrieved by the said order the petitioners have preferred this writ petition.
3. Sri G.S. Vishweswara, learned Senior Counsel for the petitioners contend, the petitioners dispute the compromise at Annexure-Rl and he submits a final decree for partition could be acted upon only when it is embossed in a stamp paper. Therefore, in the absence of final decree being embossed on the stamp paper, there is no compromise in the eye of law. Therefore, the direction issued by the Deputy Commissioner to enter the name of the respondents 4 to 7 is illegal and liable to be set aside. Secondly, he contended that when the Assistant Commissioner passed an order acting on the compromise petition, he has not allotted those four properties to respondents 4 to 7, on the contrary, he has set-out all the said items and has declared that Kariyappa Gowda was entitled to l/3rd share and petitioners were entitled to 2/3rd share and therefore the petitioners have no objection for entering the names of all the persons in respect of all the lands, but the names of respondents 4 to 7 cannot be entered in respect of these four lands exclusively.
4. Per contra, learned Counsel appearing for the respondents 4 to 7, Sri Chandrashekar Patil submits, on the basis of the compromise petition filed before the Assistant Commissioner for effecting partition and separate possession of their respective shares, the parties have taken possession of the properties which have fallen to their respective share. Thereafter, compromise petition was filed before the Court and the Court acting on the said compromise petition accepted the terms therein and recorded full satisfaction. Even proceedings before the Civil Court the fact of accepting the compromise and entering full satisfaction has not been disputed by respondents 4 to 7. It is a matter of Court record. Once the properties are partitioned, separate possession has been granted to the respective parties, the said fact has been recorded by the Civil Court and decree has been fully satisfied, merely because the said decree was not embossed on stamp paper, that would not take away the effect of the decree. Therefore, he submits, the order passed by the Deputy Commissioner is legal and just and it does not call for any interference.
5. From the aforesaid facts, it is clear that the rights of the parties to the properties in dispute is not in dispute. Respondents 4 to 7 are having l/3rd share in all the joint family properties. When the revenue authorities to whom the matter was transmitted for effecting partition and separate possession, failed to do so within reasonable time, the parties have filed compromise petition effecting partition by themselves and reporting that they have taken the properties which had fallen to their respective share. The said compromise petition is also filed before Court which has been recorded and the Court acting upon the said compromise petition has entered full satisfaction of the decree. Merely because the Assistant Commissioner without understanding the import of the compromise decree has passed final decree which is contrary to the compromise petition or when such a final decree has not been embossed on stamp paper and registered, the respondents' right to the said property do not get extinguished. It is unfortunate, though proceedings were initiated in the year 1944, decrees were passed within three years, even after 55 years the parties are agitating the matter on technical grounds. When the respondents 4 to 7 have been put in possession of the property which has fallen to their share which fact has been recorded in the Civil Court, the Civil Court had entered full satisfaction in the year 1977. It is too late in the day for the petitioners to contend that in the absence of final decree which is embossed in stamp paper and registered, the entries cannot be made exclusively in the name of respondents 4 to 7. Under these circumstances, the order passed by the Deputy Commissioner is just and proper and do not call for any interference. Hence, I pass the following order:
Writ petition is dismissed. Parties to bear their own costs.