Karnataka High Court
Uday Kumar vs The State Of Karnataka And Ors on 15 June, 2023
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2023:KHC-K:1111
WP No. 200036 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 15TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 200036 OF 2019 (LB-RES)
BETWEEN:
UDAY KUMAR
S/O GOVINDA RAO MANDEWALKAR
AGED ABOUT 63 YEARS,
OCC RETIRED GOVERNMENT EMPLOYEE,
R/O H.NO.3-1001/1
BEHIND SHRADHA MALL (BIG BAZAAR)
GAZIPURA ROAD,
KALABURAGI-585101.
SINCE DECEASED THROUGH LR's
1(a) SANDHYA
W/O UDAY KUMAR
AGE: 60 YEARS,
OCC: HOUSEHOLD
R/O H-3-1001/1, BEHIND TIRANDAZ TALKIES,
GAZIPUR ROAD, KALABURAGI-585101.
Digitally signed by
VARSHA N RASALKAR
Location: HIGH COURT
OF KARNATAKA 1(b) ANURAG
S/O UDAY KUMAR
AGE: 35 YEARS,
OCC: PRIVATE SERVICE
R/O H-3-1001/1, BEHIND TIRANDAZ TALKIES,
GAZIPUR ROAD, KALABURAGI-585101.
1(c) PURNIMA
W/O SRIKANTHA KULKARNI
D/O UDAY KUMAR
AGE: 31 YEARS,
OCC: PRIVATE SERVICE
R/O H-3-1001/1, BEHIND TIRANDAZ TALKIES,
GAZIPUR ROAD, KALABURAGI-585101.
(AMENDED AS PER ORDER DATED 18.08.2021)
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NC: 2023:KHC-K:1111
WP No. 200036 of 2019
...PETITIONERS
(BY SRI. AMEET KUMAR DESHPANDE., SR. COUNSEL FOR
SRI. GANESH S KALBURGI., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
KARNATAKA URBAN DEVELOPMENT DEPARTMENT
M.S.BUILDING,
BENGALURU-560001.
2. THE REGIONAL COMMISSIONER
KALABURAGI REGION
KALABURAGI-02
3. THE COMMISSIONER,
CORPORATION OF CITY OF KALABURAGI,
KALABURAGI-585102.
4. THE ZONAL COMMISSIONER
ZONAL OFFICE NO.1
CORPORATION OF CITY OF KALABURAGI,
KALABURAGI-585102.
5. SRI.GOPAL RAO
S/O GOVINDA RAO MANDEWALKAR
AGED ABOUT 67 YEARS,
OCC: RETIRED BANK EMPLOYEE,
R/O H.NO.1-866/1/3, BHAGVATI NAGAR,
KALABURAGI-585102.
...RESPONDENTS
(BY SRI. SHIVAKUMAR TENGLI., AGA FOR R1 & R2;
SRI. D.P. AMBEKAR., ADVOCATE FOR R3 & R4;
SRI. ASHOK PATIL., ADVOCATE FOR R5)
THIS WRIT PETITION FILED UNDER ARTICLES 226 OF THE
CONSITTUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED
24.12.2018 PASSED IN FILE NO.REV/RC/PURSABHE/APPEAL/03/
2018-19/11183 ON THE FILE OF THE RAGIONAL COMMISSIONER
KALABURAGI, THE ORIGINAL ORDER IS AT ANNEXURE-H AND ETC.
THIS WRIT PETITION, COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
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WP No. 200036 of 2019
ORDER
1. The petitioners are before this Court seeking for the following reliefs:
a. Quash the order dated 24.12.2018 passed in file No.REV/RC/Purasabhe/Appeal/03/2018-19/11183 on the file of the Regional Commissioner, Kalaburagi, the original order is at Annexure-H;
b. Issue any other appropriate writ, order or direction as this Hon'ble Court may deem fit to grant in the circumstances of the case, in the interest of justice.
2. The original petitioner Uday Kumar and respondent No.5 were brothers. During the pendency of the above matter, Uday Kumar expired and his legal representatives were brought on record. They have another brother by name Manohar who passed away leaving his widow Pushpalatha and sister by name Meera. Their father Sri.Govinda Rao Mandewalkar held various properties as under:-
i. Sy.No.66/A/2 measuring 4 acres 16 guntas (known as Manyadahola) and Sy.No.66/B/1 measuring 5 acres 24 guntas, totally measuring 10 acres situated at Village Mandewal, taluka Jewargi, Dist:
Kalaburagi.
ii. Sy.No.57/2 measuring 9 acres (known as Dondeda Manyada Hola) at village Mandewal, taluka Jewargi, Dist: Kalaburagi.-4-
NC: 2023:KHC-K:1111 WP No. 200036 of 2019 iii. Sy.No.212 measuring 26 acres 23 guntas (known as Dhotar Patti Thota) situated at village Mandewal, taluka Jewargi, Dist: Kalaburagi.
iv. Open land bearing Sy.No.1-68/2 measuring 51 Feet X 25 feet situated at Mandalwal town taluk Jewargi, Dist: Kalaburagi.
v. House No.3-1001/1 and open space abutting the said house totally measuring 4232 sq. ft. Situated at Shradha Mall behind Big Bazar, Gazipura, Kalaburagi.
vi. 169.62 grams of gold jewelry. vii. 4 k.g. and 36 grams of Silver articles.
3. On the expiry of Sri.Govinda Rao Mandewalkar, the aforesaid children are stated to have executed a Memorandum of Partition dated 18.04.2009 which was followed by another partition deed dated 11.06.2010. By virtue of which, earlier partition dated 18.04.2009 was cancelled. Both these partitions were not registered but were notarized. In furtherance of the same claiming that the property bearing House No.3-1001/1 had been allotted to the share of the original petitioner, he made an application for entering his name in the katha register by relying upon the partition deed dated -5- NC: 2023:KHC-K:1111 WP No. 200036 of 2019 11.06.2010. Initially, the said application was accepted and entries directed to be made.
4. The same came to be challenged by respondent No.5 by filing an appeal in Appeal No.1/201/214-15 which appeal came to be dismissed by order dated 11.08.2016, which came to be set aside on a challenge being made in W.P.No.204717/2016, this Court vide order dated 10.10.2017, remitted the matter back to Zonal Office, Zone No.I, CMC, Kalburagi to reconsider the matter.
5. Upon reconsideration, vide order dated 07.05.2018 on the ground that respondent No.5 has admitted the execution of the partition deed dated 11.06.2010 but only raised a dispute as regards the same not having been registered, observed that the disputes have to be resolved in a civil proceedings and partition carried out in the said civil proceedings. Aggrieved by the same, respondent No.5 preferred a -6- NC: 2023:KHC-K:1111 WP No. 200036 of 2019 Revision Petition in No.3/2018-19/11183 which came to be allowed vide order dated 24.12.2018. It is aggrieved by it, the petitioner is before this Court.
6. Sri.Ameet Kumar Deshpande, learned Senior Counsel for Sri.Ganesh S.Kalaburgi, learned counsel for the petitioners would submit that the partition deed dated 11.06.2010 having been admitted to be executed and respondent No.5 having agreed to have signed the same, the Revision Petition could not have been filed nor entertained. The order passed by respondent No.3 was proper and correct. The entries being continued in the name of Sri.Uday Kumar, any dispute relating thereto is required to be agitated in a civil proceeding by filing appropriate suit. Lastly, he submits that though the partition deed has been disputed insofar as house property is concerned but has been acted upon in terms of other properties and as such, respondent No.5 cannot take a distinct and/or contradictory stand. On these -7- NC: 2023:KHC-K:1111 WP No. 200036 of 2019 grounds, he submits that the order passed by respondent No.2 is required to be set aside and the order passed by respondent No.3 is required to be confirmed.
7. Sri.Ashok Patil, learned counsel for respondent No.5 submits that the partition deed has not been acted upon by any of the parties and there is no transfer effected by mutation or otherwise in respect of any of the properties belonging to late Govinda Rao Mandewalkar which had been detailed hereinabove and all the properties would be subject to any decree passed in an appropriately instituted civil proceeding. His submission is that there is a consistent stand on part of respondent No.5 that the partition deed dated 11.06.2010 has not been signed by respondent no.5 or by any other family members and the same is created by the petitioner and as such, could not have been acted upon. This aspect has been taken into consideration by respondent No.2 and respondent -8- NC: 2023:KHC-K:1111 WP No. 200036 of 2019 No.2 has directed that the entries would have to continue in the names of all the family members as it existed prior to the application made by the petitioner by relying on the partition deed dated 11.06.2010. The same protects everybody's interest and this Court ought not to have intercede in the matter.
8. Sri.D.P.Ambekar, learned counsel for the respondents No.3 and 4 submits that insofar as respondents No.3 and 4 are concerned, the order of respondents No.3 and 4 having been set aside by respondent No.2, it is funtus officio and there is no submissions to make to that effect.
9. Sri.Shivakumar Tengli, learned AGA for respondents No.1 and 2 would submit that respondent No.2 has exercised powers under Section 102 of the Municipal Corporations Act and has corrected the illegality which had crept in the order of respondent No.3 -9- NC: 2023:KHC-K:1111 WP No. 200036 of 2019 inasmuch as respondent No.3 could not have relied upon an unregistered notarized document to effect change in the katha and this aspect having been brought to the notice of the Regional Commissioner, the Regional Commissioner was required to exercise its powers under Section 102 of the Municipal Corporations Act to correct the error. On this ground, he submits that the Writ Petition is required to be dismissed.
10. Heard Sri.Ameet Kumar Deshpande, learned Senior Counsel for Sri.Ganesh S.Kalaburgi, learned counsel for the petitioners, Sri.Shivakumar Tengli, learned AGA for respondents No.1 and 2, Sri.D.P.Ambekar, learned counsel for the respondents No.3 and 4 and Sri.Ashok Patil, learned counsel for respondent No.5 and perused the papers.
11. The relationship between the petitioner, respondent No.5 and other family members is not in dispute. It
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NC: 2023:KHC-K:1111 WP No. 200036 of 2019 is also not in dispute that the properties being ancestral stood in the name of Govinda Rao Mandewalkar. It is also not in dispute that the petitioner and respondent No.5 and certain others are his children and one Pushpalatha is his daughter- in-law.
The dispute arose subsequent to the death of Govinda Rao Mandewalkar and the dispute relates to the Memorandum of Partition said to have been executed on 11.06.2010. Respondent No.5 contending that he has not executed the said document and the same is a fabricated document whereas the petitioner contending that the said document is validly executed and binding on all the parties.
12. A perusal of the document being Memorandum of Partition dated 11.06.2010 indicates that not only the earlier partition deed dated 18.04.2009 is
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NC: 2023:KHC-K:1111 WP No. 200036 of 2019 cancelled but also partition and division of properties is effected under the document of 11.06.2010. Therefore, it is clear that the said document is not a recordal of a partition but is a partition deed by itself under which rights and obligations are created. Thus, it would be required that the said document in order to be acted upon and recognized by any statutory authority like respondents No.3 and 4 is registered and duly stamped. The same not having been done, respondent No.3 could not have relied upon such a document to effect transfer of katha in respect of property bearing House No.3-1001/1 behind Big Bazar, Kalaburgi. This aspect though taken on appeal, the respondent No.3 Commissioner negatived the appeal on the ground that the entry made in the notarized partition deed would be taken into consideration and dismissed the appeal filed by respondent No.5. On a revision, respondent No.2 set aside the said order and directed the names of all the
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NC: 2023:KHC-K:1111 WP No. 200036 of 2019 family members to be entered into subject to any result of any suit filed thereto.
13. I am of the considered opinion that the conclusion that has been arrived upon by the respondent No.2 is proper and correct inasmuch as respondent No.3 had acted upon a unregistered partition deed which could not have been so acted upon more particularly when the very execution of such document had been disputed by one of the parties viz., respondent No.5.
14. The submission of Sri.Ameet Kumar Deshpande, learned Senior counsel for the petitioners is that the Memorandum of Partition dated 11.06.2010 has been acted upon in respect of other properties, when enquired if any document is placed on record, a Passover was sought for to produce the RTC, in the afternoon session the RTC is produced by Respondent No.5 which negates the contention of Sri.Ameet Kumar Deshpande, learned Senior counsel
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NC: 2023:KHC-K:1111 WP No. 200036 of 2019 the RTC which has been produced in respect of Sy.No.212 indicates that the names of all the parties including the wife of the deceased petitioner is entered therein, such a stand taken without placing the RTC on record and now being negated as being contrary to public documents was in my considered opinion taken to obtain undue advantage and is as such deprecated.
15. Such being the case, it cannot be said that the property in Sy.No.212 has fallen to the share of respondent No.5 by acting upon the Memorandum of Partition dated 11.06.2010. In that background, when there are litigations between the parties, none of them can take advantage of any statutory authority like respondent No.3 but would have to resort to a properly instituted civil suit for partition and then approach respondent No.3. In that view of the matter, I pass the following:
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NC: 2023:KHC-K:1111 WP No. 200036 of 2019 ORDER i. The Writ Petition stands dismissed.
ii. The order dated 24.12.2018 passed in file No.REV / RC / Purasabhe/Appeal/03/2018- 19/11183 by respondent No.2 is confirmed.
iii. Respondent No.4 is directed to cause the entries of the names of all the family members in the katha register pertaining to the property bearing House No.3/1001/1, Gazipur, Behind Tirandaz Talkies, Kalaburagi.
iv. The revenue authorities though not parties to these proceedings, in the interest of parties, are directed to enter the names of all the family members in respect of Sy.No.66/A-2, Sy.No.66/B-1, Sy.No.57/2, Sy.No.1-68/2 and Sy.No.212. The entries shall remain subject to the decree if any passed in a civil proceeding initiated by any of the family members.
Sd/-
JUDGE PRS List No.: 1 Sl No.: 6