Karnataka High Court
Smt Sumithramma W/O Late Dasegowda vs The Assistant Commissioner on 3 January, 2020
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION No.6105/2012(KLR-RR/SUR)
BETWEEN:
1. SMT. SUMITHRAMMA,
W/O LATE DASEGOWDA
AGED ABOUT 75 YEARS
DOOR NO. 300, SHANTHI MARGA,
2ND STAGE, SIDDARTHANAGARA,
MYSORE CITY.
2. D. R. DARSHAN
S/O B. D. RAVI
AGED ABOUT 23 YEARS
R/AT NO. 9, OPPOSITE TO LIBRARY,
BELAGOLA MAIN ROAD,
BELAGOLA, SRIRANGAPATNA TALUK,
MANDYA DISTRICT.
...PETITIONERS
(BY SRI R. S. RAVI, ADVOCATE FOR PETITIONER-2;
PETITIONER NO.1 DELETED VIDE ORDER DATED
03.01.2020)
AND:
1. THE ASSISTANT COMMISSIONER
PANDAVAPURA SUB-DIVISION,
2
PANDAVAPURA,PANDAVAPURA TALUK,
MANDYA DISTRICT.
2. THE TAHSILDAR
SRIRANGAPATNA, SRIRANGAPATNA TALUK,
MANDYA DISTRICT
3. D. SRIDHARA
S/O LATE DASEGOWDA
AGED ABOUT 39 YEARS
4. D. PRABHAKARA
S/O LATE DASEGOWDA
AGED ABOUT 34 YEARS
5. D. BHASKARA
S/O LATE DASEGOWDA
AGED ABOUT 32 YEARS
RESPONDENTS 3 TO 5 ARE R/AT
NEAR PUMP HOUSE,BELGOLA,
BELGOLA POST, SRIRANGAPATNA TALUK,
MANDYA DISTRICT.
6. SMT. SUJATHA
W/O SHANKAREGOWDA,
AGED MAJOR, GADDE HOSAHALLI VILLAGE,
DORANAHALLI HOBLI,
K.R. NAGAR TALUK,
MYSORE DISTRICT.
...RESPONDENTS
(BY SRI Y.D. HARSHA, AGA FOR R1 & R2;
SRI K. SRINIVAS GOWDA, ADVOCATE FOR R3 TO R6)
****
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 26.7.2011 PASSED BY R1 VIDE ANNEXURE-D
ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP FOR THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
The petitioner No.2 has filed the present writ petition for a writ of certiorari to quash the order dated 26.7.2011 made in No.R.Mis.289/06-07 on the file of the Assistant Commissioner, Pandavapura, wherein the Assistant Commissioner set aside M.R. 28/2006-07 made in favour of the 2nd petitioner and directed the Tahasildar to make joint khatha in the names of all the legal representatives of the original khatedar - deceased Dasegowda including the 2nd petitioner.
2. It is the case of the petitioner No.2 that husband of the 1st petitioner had two wives namely - 1st petitioner and one Jayamma. The 1st petitioner did not have any issues. 4 However, the deceased Dasegowda through 2nd wife had four children namely B.D. Ravi and Respondent Nos.4 to 6. During his life time, the deceased Dasegowda had gifted the property bearing Sy.No.54P measuring 4 acres 4 guntas and Sy.No.65P/3 measuring 10 acres 35 guntas orally in favour of the 1st petitioner. The deceased Dasegowda had gifted the above said properties in favour of the 1st petitioner in lieu of her maintenance. The said gift deed executed by the husband enlarged into an absolute right under Section 14(1) of the Hindu Succession Act. Accordingly, the mutation in respect of these lands were mutated in name of the 1st petitioner as per M.R. No.6/72-
73. The executant - Dasegowda died on 28.8.1979. The said mutation has taken place during the life time of the deceased Dasegowda.
3. It is further case of the petitioner No.2 that the 1st petitioner is being taken care of by the father of the 2nd 5 petitioner since from the time of his childhood. The father of the 2nd petitioner and his father have been taking care of the 1st petitioner during her old age. The 1st petitioner in consideration of the service of the 2nd petitioner and his father, has executed registered gift deed on 23.6.2006, gifting the aforesaid properties in favour of the 2nd petitioner. On the basis of the registered gift deed, the Revenue Inspector by the order dated 27.1.2007 mutated the name of the 2nd petitioner in respect of the property in question as per M.R. No.28/2006-07.
4. When things stood thus, the Respondent Nos.4 to 6 filed appeal before the Assistant Commissioner under the provisions of Section 136(2) of the Karnataka Land Revenue Act, 1964 ('the Act' for short) challenging the mutation made in favour of the 2nd petitioner. The 1st respondent - Assistant Commissioner without considering the registered gift deed, set aside the mutation made in favour of the 2nd petitioner and directed the 2nd respondent 6 to make joint khatha in the names of all the legal heirs of the deceased Dasegowda. Therefore, the present writ petition is filed.
5. The respondents have not filed any objections.
6. I have heard the learned counsel for the parties to the lis.
7. Sri R.S. Ravi, learned counsel for the petitioner No.2 contended that by the impugned order, the mutation made in the name of petitioner No.2 on the basis of the registered gift deed has been cancelled by the 1st respondent - Assistant Commissioner and the same is erroneous and cannot be sustained. He would further contend that the 1st respondent - Assistant Commissioner failed to notice that the gift deed dated 23.6.2006 being a registered document, is also source of title as contemplated under sub-section (1) of Section 128 of the Karnataka Land Revenue Act. In the instant case since the registered 7 document is not challenged by anybody, it is the duty of the authorities to enter the name of the 2nd petitioner in the mutation based on the registered gift deed under Section 128(4) of the Act. Based on the registered document when the mutation was entered, the Assistant Commissioner has no jurisdiction to cancel the mutation made based on the source of title. The only course for the aggrieved party is to file appropriate suit for cancellation of the gift deed, if he so desires.
8. He further contended that during the pendency of the proceedings before the Assistant Commissioner, the 3rd respondent filed O.S. No.102/2007 for partition and separate possession in respect of the property in question and other properties against the petitioners and others claiming the suit schedule properties and other properties are the joint family properties of the plaintiffs and the defendants therein. After contest, the suit filed by the present 3rd respondent came to be dismissed on 31.8.2012. 8 Aggrieved by the said order, three appeals were filed by the plaintiffs in R.A. Nos.129/2012, 131/2012 and 138/2012. After contest, the said appeals also came to be dismissed on 11.3.2014. Against the said Judgment & Decree passed by the Lower Appellate Court, two appeals i.e., RSA Nos.825/2014 and 826/2014 are filed by the 3rd respondent and others and the same are pending adjudication before this Court directing the parties to maintain status-quo. Therefore, he sought to allow the writ petition.
9. Per contra, Sri Y.D. Harsha, learned AGA for Respondent Nos.1 and 2 and Sri K. Srinivas Gowda, learned counsel for Respondent Nos.3 to 6 sought to justify the impugned order passed by the Assistant Commissioner and contended that the Assistant Commissioner considering the entire material on record rightly directed to make joint khatha in the names of all the legal representatives of the 9 original Khatedar - Dasegowda. Therefore, sought to dismiss the writ petition.
10. Having heard the learned counsel for the parties, it is the specific case of the petitioners that husband of the 1st petitioner during his life time gifted the property in favour of the 1st petitioner and accordingly, the said property was mutated in the name of the 1st petitioner. After the death of her husband, the 1st petitioner has gifted the property in favour of the 2nd petitioner under the registered gift deed dated 23.6.2006. It is also not in dispute that based on the registered gift deed by the petitioner No.1 in favour of petitioner No.2, the mutation MR No.28/2006-07 came to be entered. It is also not in dispute that Respondent Nos.3 to 6 who filed appeal before the Assistant Commissioner have not challenged the registered gift deed made in favour of the 2nd petitioner dated 23.6.2006.
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11. It is also not in dispute that the 3rd respondent - D. Sridhara and others filed O.S. NO.102/07 for partition and separate possession in respect of the property in question and other properties of the plaintiffs and the defendants contending that the suit schedule properties therein are the joint family properties of the plaintiffs and the defendants and they are entitled to share. On contest, the suit came to be dismissed on 31.8.2012 holding the suit schedule properties are not the joint family properties of the plaintiffs and the defendants.
12. The material on record clearly depicts that the aggrieved parties filed R.A. Nos.129 131 and 138/2012. The learned District Judge after hearing both the parties by the Judgment & Decree dated 11.3.2014 dismissed the appeals. It is the subject matter of RSA Nos.825 and 826/2014 pending before this Court for adjudication between the parties. The fact remains that the registered gift deed dated 23.6.2006 made by the petitioner No.1 in 11 favour of the petitioner No.2 is not set aside by any competent Court.
13. In view of the above, the Assistant Commissioner is not justified in directing the authorities to make the joint khatha in the names of all the legal heirs of the deceased Dasegowda (husband of the 1st petitioner) in view of the Judgment & Decree in O.S. No.102/2007 confirmed by the District Court in R.A. Nos.129/2012, 131/2012 and 138/2012 dated 11.3.2014. It is also not in dispute that the concurrent findings of facts recorded by the Courts below are subject matter of RSA Nos.825 and 826/2014, which are pending adjudication between the parties. In the absence of any challenge or setting aside of the original registered gift deed dated 23.6.2006, in all fairness, the Assistant Commissioner ought to have directed the parties to approach the Civil Court instead of directing to make khatha in the joint names of all the legal 12 representatives of Dasegowda and therefore, the impugned order cannot be sustained.
13. For the reasons stated above, the writ petition is allowed. The impugned order passed by the 1st respondent - Assistant Commissioner as per Annexure-D dated 26.7.2011 is hereby quashed. The 2nd respondent - Tahasildar is hereby directed to restore M.R. No.28/06-07 in the name of petitioner No.2 - D.R. Darshan, which will be subject to the result of RSA Nos.825 and 826/2014 pending between the parties and any judgment and decree to be passed by this Court in the said RSAs not only binding on the parties to the lis but also on the concerned authorities.
Ordered accordingly.
Sd/-
JUDGE Gss/-