Karnataka High Court
Dayanand S/O Venkatesh Bhat vs Shivanand S Aigal on 20 December, 2021
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20TH DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION NO.1572 OF 2008 (KLR)
BETWEEN
DAYANAND S/O. VENKATESH BHAT
AGED ABOUT 52 YEARS,
R/O.AVERSA, ANKOLA TALUK,
UTTARA KANNADA DISTRICT-581316,
BY HIS GPA HOLDER
POORNANAND VENKATESH BHAT
S/O.VENKATESH BHAT,
AGED 58 YEARS,
R/O.AVERSA, ANKOLA TALUK,
UTTARA KANNADA DISTRICT-581316,
...PETITIONER
(BY SRI. SHARAD M PATIL, ADV., FOR
SRI. V. P. KULKARNI, ADV., FOR PETITIONER)
AND
1. SHIVANAND S AIGAL,
S/O.TANDE SANTAPPA,
AGED ABOUT 50 YEARS,
R/O.BALIGULI CROSS,
ANKOLA TALUK,
UTTARA KANNADA DISTRICT-581316
2. DEPUTY COMMISSIONER
UTTARA KANNADA DISTRICT,
KARWAR-581301.
3. THE ASSISTANT COMMISSIONER
KUMTA SUB DIVISION,
KUMTA-58141.
2
4. THE TAHSILDAR
KARWAR TALUK,
KARWAR-581301.
...RESPONDENTS
(BY SRI. GANAPATHI S SHASTRI, ADV., FOR R1;
SMT. GIRIJA S HIREMATH, HCGP FOR R2 TO R4)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER OF
THE DEPUTY COMMISSIONER, UTTARA KANNADA DISTRICT KARWAR
DATED 22.12.2007, VIDE ANNNEXURE-G.
THIS WRIT PETITION COMING ON FOR THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
The petitioner purchased standing timber trees in Survey No.186 and 187 situated at Alavalli village of Ankola Taluk by a registered sale deed dated 04.11.1980 and in pursuance to the same, the name of the petitioner was mutated as owner in respect of standing timber on the lands in question. Respondent No.1 purchased the said lands in question through a registered sale deed dated 13.11.1981 except the standing timber on the lands in question. The petitioner was constrained to file a suit in O.S.No.133/1981 against respondent No.1, when the the Respondent No.1 started interfering with the right of the 3 petitioner in respect of the standing timber. The said suit was dismissed against which regular appeal was filed, which culminated in passing of decree directing respondent No.1 not to interfere with the process of cutting of said standing timber and also directed the petitioner to deposit a sum of Rs.3,221/-. In terms of the order passed by the First Appellate Court, the petitioner deposited an amount of Rs.3,221/- before the Civil Judge (Jr.Dn), Ankola.
2. When things stood thus, respondent No.1 filed an application with respondent No.4 so as to delete the mutation entry in favour of the petitioner. The Tahasildar rejected the application submitted by respondent No.1 and it was also confirmed in appeal filed before the Assistant Commissioner concerned. However, the Deputy Commissioner passed an order deleting the name of the petitioner from the revenue records in respect of standing timbers in the lands in question. Hence, this writ petition.
3. Learned counsel for the petitioner would submit that the name of the petitioner was mutated in revenue records in 4 pursuance of the registered sale deed executed in his favour for having purchased standing timbers on the lands in question and the standing timbers come under the purview of definition immovable property and thus, the Tahasildar was justified in mutating the name of the petitioner in respect of standing timbers.
4. Learned HCGP appearing for respondent No.1 justifies the impugned order passed by respondent No.2.
5. I have considered the submissions made by the learned counsel for the parties. It is not in dispute that the petitioner purchased the standing timbers on the lands in question through a registered sale deed and in pursuance of the same his name was mutated in revenue records. The First Appellate Court has also held that the standing trees are immovable property and if they are cut and sold, they are treated as movable property. The First Appellate Court decreed the suit in part and declared that the petitioner is entitled to cut the standing timbers on the lands in question provided he shall deposit a sum of Rs.3,221/- before the Trial Court on or before 5 15.02.2001. However, the petitioner has deposited the said amount before the Trial Court on 23.06.2001. Respondent No.2 has set aside the mutation entry in favour of the petitioner on the ground that he has failed to take the benefit of the judgment passed by the First Appellate Court even after 15.02.2001 i.e., the date fixed by which the civil right was to be exercised by the petitioner. The name of the petitioner was mutated as owner of the standing timbers on the lands in question and respondent No.2 could not have set aside the mutation in favour of the petitioner on the ground that he has not taken the benefit of the decree passed by the First Appellate Court. The petitioner had acquired right over the standing timbers by virtue of registered sale deed and his name was mutated in the revenue records in conformity with section 128 of the Karnataka Land Revenue Act. Merely because the petitioner has not taken benefit of the decree passed by the First Appellate Court, respondent No.2 could not have deleted the name of the petitioner from the revenue records at the instance of Respondent No.1 who has no right over the standing timber. Hence, the impugned order passed by 6 respondent No.2 is unsustainable in law. Accordingly, I proceed to pass the following:
ORDER The writ petition is allowed.
The impugned order dated 22.12.2007 passed by respondent No.2 at Annexure-G is hereby quashed.
Petitioner is at liberty to execute decree passed in R.A.No.8/1990 passed by the Civil Judge (Sr.Dn), Karwar and time spent in other proceedings be excluded under Section 14 of the Limitation Act for the purpose of executing the decree.
Liberty is reserved with the petitioner to move an application with the Forest Department so as to obtain permission for cutting standing timber in the lands in question.
Sd/-
JUDGE yan