Somashekar S/O Mahalingappa Wali vs Deputy Commissioner on 23 March, 2010

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Karnataka High Court

Somashekar S/O Mahalingappa Wali vs Deputy Commissioner on 23 March, 2010

Bench: Anand Byrareddy

IN THE HIGH COURT OF KARNATAKA,
CIRCUIT BENCH AT GULBARGA.

DATED THIS THE 23"' DAY OF MARCH, 

BEFORE

THE HON'BLE MRJUSTICE ANAND   

WP. No.83002/2009    

BEE} WEEN:

SOMASHEKAR 

s/0 MAHALINGAPPA VV_AL_I

AGED ABOUT 48 YEARS"  *

OCGAGRECULTURE, "  V

R/O SARAWADJU/1_LLAc;E"'V.j: _  

B1JApURTALUK'=%tC.i:31s'ii.   
    'V  ..   ...PETI'I'IONER

(SR1   Abv. ,)
1. DEPUTY. C'OMMIS-SIONER
EIJAPUR DI_STRICT,BIJAPUR

V '' COMMISSIONER,
.  -.B1JAPURvS1JB--DNISION, BIJAPUR

3." . ' "'1*HE"'f;/'xHé;S1LDAR

 :4

--4TAw:<:_B1JAPUR, BIJAPUR

'A T THE). ITALUK SHER.IS'I'EDAR
. ' QFFICE OF THE TAHASILDAR
=  BIJAPUR

    SR1. MAHADEJVA



N)

S / O BASAPPA THADALIGI

SINCE DECEASED BY HIS LRS

SMT. YALLAVVA {SISTER OF' THE DECEASED]
W / O MALLASIDDAPPA TOLANUR

AGED 46 YEARS, SHASTRI NAGAR

ATHANI ROAD, BIJAPUR.

6. SMT. PREETHI W/O VIJAYAKUMAR PA*riL.':_." . '7 
NEAR BABALESHWARA NAKA   .. '.  '
JAMAKHANDI ROAD, BIJAI>IIR"'" A

*=I=*

 I. ,1  7

TI-HS WP FILED UNDERARTIOLES 22I?;.:V'AI\§I_D»22--*57 OE."

THE CONSTITUTION, PRAYING'VET(_x) ' QUAs'R_fH-E IMPUGNED
ORDER JPASSED BY ,TI--I_E 1$'i""REAsjI3O1*IDENT"IN 'REVISION
PETITION No.41/07-08'  '1'._5j{2;:oo.'Q'  ANNEXUREN
AND TO QUASHTHE IMPLIGNEQ'V.QI§DEf<;:v,vPASSED BY THE
2ND RESPONEEIQ5' IN=._ R'I'37AP,/:92./"O6..--I)7 DT.23.I0.2007

VIDE  "
TIIIg «. PETIVTIQPEEEE"C§)'1\./IIING ON FOR PRELIMINARY
HEARING TI~:Is'~DA":_', TIfIE~.-COURT MADE THE FOLLOWING:
learned counsel for the petitioner and

thé"r€S}}D12(i.?3fItS.

2 'I   facts are as follows:



2. The petitioner is the owner and in possession

of land bearing Sy.l\io.652/2 measuring 4 acres 5

guntas situate at Mahalabagat Village, Bijapfe1_1'#'VVtiV1%.lﬁiTi'Cf:

it is claimed that the petitioner had purchasecl   

from one Basappa who was theerstwhille owner, iindevr

a registered sale deed dated l5.Vl2:'l979.

the sale, the name of the pe'ti.ticner waslentered in the
record of rights. A  0f_'x[t.hV_€T is produced along
with the petition. Theipppetitioneir's*"naii?ie..was continued

in the record_s4lti11:. '#x02'.---~wiIt transpires that

on the'lVdea'th.§o_f  hislson Mahadeva filed a suit
for partition'  possession claiming half

share in th'e_:s1:.it" property in O.S.No.173/1983. The

."-saild- V' S-nit..was dismissed, against which the 501

 V".i~.,h~erein had filed an appeal in

l99O which was again dismissed. This

 carried in second appeal in R.S.A.No.1505/1995

  before this Court. The second appeal was allowed by

 "ti'iis Court, by judgment dated 7.8.1998, holding that

4
£7



the plaintiff therein Was entitled to haif share in the suit

property.

3. Immediately thereafter the 531  

said to have made an app1icatio_n....to_'resp.orid'ehts"Shana-d if

4 to enter her name in respect of  

in the above survey number. Village .AVc.co"a..in'tant on

a consideration of her appii-e-autio.n"'~cal1ed'upon the 5111
respondent to produce'   if any,

drawing up terms of his order dated' of that order is produced -at to the petition. Therefore, the proceedings,' not finalised. However, the ViliagjevAccour1tant____h.ad proceeded as if notices were served ..on.,t«he'vpetitioner through panchanama, but no notice on the petitioner at that stage, or Cpthereafter, according to the petitioner. The petitioner if 'v~,i_hadi'approached respondents 3 and 4 as regards service ofgnotice and it was found that notice was not in fact ,4?

served on the petitioner for want of proper address. In spite of thi_s infirmity, of the petitioner not havingbeen served with the notice of the proceedings and_.in4' of final decree proceedings not havinHg'g':A'b.eehg.. _g available, the Village Accountant;Jhadfproceeded"te the name of the 5*" respondent inthe'v-recordV~t. the year 2002-03.

4. The petitioner' hand being aggrieved by tvheVjL1_dgifneVnt'i¥n e_No.«:.«V;=3'o5/1995, being allowed, :.I'1ad.__ ;i.p'ijefe:1fifed.._V review petition in R.P.No';§565;'..r'eview petition was allowed by an order "dcatecd whereby the judgment in R.Sv.A¥.l'\lo;1505/i--99_5_gwas recalled. A copy that order is pieioducedmat,2?xnnexure--F. The regular second appeal was"'there&a'ftef'vVlisted for final hearing and ultimately ajudgment dated 30.8.2004.

A in the meanwhile, the 51" respondent on the of mutation entries having been effected in her <1' 6 favour from the year 2002~«O3 has proceeded to execute a sale deed in favour of the 61" respondent, dated 10.53.2004. The 6"! respondent in turn had application to respondents 3 and 4 to enter"-her. 'L the record of rights to the extent"ppu'lrchasVed._ application has been allowed and her has entered in the record of rightvsrto an extentfof acres 2 guntas. _ _ _

6. Further, the 'lE3fl'- l' 61t?%l_vte.respondents had together, challenged this Court in was dismissed as on 1O.5.2OOZi,.._<by_ivavlof "a:ﬁspecial leave petition before the Suvpiierne (v3oLlrt"-Vin_HtS&..L.P.No.26522/2004. That special leave petitionv having been dismissed, the dismissal of tile"-suit olfresipondent No.5 attained finality. 2 7.lW:_ in spite of these circumstances, the A f"restp'ondents 5 8: 6 having proceeded as if the judgment allowing R.S.A.No. 1505/1995 as on 7.8.1998 continued /.7 <.

to be in force, though the same was recalled in review and ultimately dismissed by the judgment V_~-dated 30.8.2004. These circumstances having beﬂenl by the authorities, namely the respondents 3. impugned Annexures are therefcireflbad la*.y,:" it that is sought to be urged in tlh_e:"petitio:n_t'on grounds that are put forth in""arriplifiea'ti_on thenabove.

8. The learned eounsel_..for.resp0ndent_Nof6 would submit that he is a value and has purchased the a Vregistered sale deed on represeiit-a:tiQn's.::put "forth by respondent No.5 and ther'e.__4 was no.' "reason for respondent no.6 to diSb'€T1ieV€ 01' déubtthe veracity of such representations 'and..Vtl1ei=ei"0_r'e,.__ the sale Cannot be ignored by the autl1orities'ti'j'Vifhich is a sale effected in the manner ',_.kno\>im_ law and therefore the petitioner would have to A '~:0f"\ztork~A_.out his remedy by having the duiy registered sale deed set aside, if at all. He would submit that with 51 h,,/ recourse to an independent. suit, in proceedings as against respondent no.5 cannot be raised to effaezie the sale in favour of respondent No.6.

9. This contention on behalﬁof u' not tenable. As seen from :'the[:"above circumstances, the petitioiievr'~..havin'g succeedecl-in the'-' earlier round of litigation betv"Veeri..pAthel l'pet.iti.0lI1er and respondent no.5 and 'having attained ﬁnality, the sale' "No.5 in favour of respondent"rilo_;.6ll:was.la.._null_ityl_ isfor respondent no.6 to avail of may be available in respect of the sa1esdeedlvvhich" a nullity in the eye of law, as resvpoinvdent no.5 .h__ad.no right to execute the sale deed as"'o.n 'dateof execution and even if the same has beerivllexecu.jt_eld'even prior to the judgment of this Court lain R:S..2l;No.1505/1995, the same would be rendered a A on the dismissal of the said appeal. Hence the petition is allowed. Annexures»N, M & L are hereby /1?' 5-51 ﬁ..> 9 quashed. The respondents 13 and 4 are directed to cornpiy with the order dated 6.1.2006 passed in RTS/CR/11/04-05 by the third respon1;i¢n£jfeat Ar1nexure--K. Liberty is reserved to the to work out her remedies, if any,'iﬁ'depe1i-\.den'ii§}=.'.' The writ petition is aliowed .. , J, V'

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