Karnataka High Court
Basavanni Shankar Ammanagi vs Smt. Keshavva And Ors. on 30 November, 2001
Equivalent citations: ILR2002KAR581, 2002 AIR - KANT. H. C. R. 1494, 2002 AIHC 2350 (2002) 2 ICC 102, (2002) 2 ICC 102
Author: N.K. Patil
Bench: N.K. Patil
ORDER N.K. Patil, J.
1. This petition is taken up for final hearing with the consent of Counsels for both the parties.
2. The petitioner assailing the impugned order dated 18-7-2001 passed by the third respondent bearing No. RB/RTA/H1/2000-2001, a copy of which has been produced at Annexure-C, the order dated 3-11-2000 bearing No. RTS/CR/45/2000 passed by the 4th respondent, a copy of which has been produced at Annexure-B and the order dated 10-10-2000 bearing No. HES/SR/267/1999-2000, a copy of which has been produced at Annexure-A passed by the 5th respondent.
3. The petitioner is an agriculturist. The first respondent is the mother of the petitioner. The petitioner had an younger brother by name Shivanand alias Shivappa. The younger brother of the petitioner was unmarried and he died on 5-11-1999. The first respondent-mother is the only legal heir of the deceased-Shivanand. As contended by the petitioner, the second respondent filed an application to the 5th respondent alleging that she is the legally wedded wife of deceased-Shivanand and prayed for issuing heirship certificate showing herself and respondent 1 as heirs of the deceased-Shivanand. The petitioner filed objections contending that the second respondent is not the wife of the deceased-Shivanand. Hence, she could not become the heir of the deceased. The 5th respondent without considering the objections filed by the petitioner has proceeded to pass the order dated 10-10-2000 holding that the second respondent is the wife of deceased-Shivanand and respondents 1 and 2 are the survivors of deceased-Shivanand and issued the heirship certificate. Feeling aggrieved by the order passed by the 5th respondent dated 10-10-2000, the petitioner filed an appeal under Section 49 of the Kar-nataka Land Revenue Act before the 4th respondent. The 4th respondent in turn issued an endorsement refusing to entertain the appeal on the ground that the 5th respondent has not passed the order under the Karnataka Land Revenue Act, 1964. Feeling aggrieved by the said endorsement issued by the 5th respondent, the petitioner filed an appeal under Section 50 of the said Act before the 3rd respondent. The third respondent by its order dated 18-7-2001 dismissed the appeal.
4. The learned Counsel appearing for the petitioner submitted that the Deputy Commissioner has failed to consider the case put forth by the petitioner in accordance with law on the ground that the petitioner has specifically disputed the relationship of the second respondent and also contended that the Tahsildar or the Revenue Authorities have no power or jurisdiction to declare the heirs or survivors of the deceased-Shivanand. The said question has to be decided only by the competent Civil Court. Hence, he contended that the impugned order passed by the 5th respondent is one without jurisdiction and further contended that the Assistant Commissioner has committed an error in not entertaining the appeal as not maintainable and also placing reliance on the decision of this Court in the case of S. Halappa v. Assistant Commissioner, Shi-moga Sub-Division, Shimoga and Ors. Therefore, he contended that in view of the law laid down by the Division Bench of this Court, the impugned order passed by the respondent is one without jurisdiction. Hence, it is liable to be rejected.
5. The learned Counsel for the second respondent inter alia contended that the order passed by the Tahsildar, 5th respondent is within his jurisdiction and he has got the power to issue the survivorship certificate. However, he is not in a position to justify in support of legal heirship certificate issued by the Tahsildar. Further, he contended that the said certificate issued by the 5th respondent-Tahsildar may be treated as survivorship certificate instead of legal heir certificate.
6. As contended by the learned Counsel appearing for the petitioner, a short question that arises for consideration in the instant case is, Whether the order passed by the first respondent is in accordance with law?
7. The 5th respondent has got no jurisdiction to issue the legal heir certificate, in view of the relevant provisions of the Act and also the law laid down in the order of this Court. It is clear in page No. 2 of the impugned order Annexure-A passed by the 5th respondent, which reads as under:
8. The Tahsildar has got power only to issue survivalship certificate and not the legal heirship certificate. If the second respondent contends that she is the class I heir of the deceased-Shivanand, she must get the order from the competent Court to establish that she is the class I heir of the deceased. Therefore, the impugned order passed by. the 5th respondent is not sustainable in the eye of law. The order passed by the 4th respondent holding that the appeal is not maintainable under the order passed by the Tahsildar is contrary to the relevant provisions of the Act. The appeal filed by the petitioner is maintainable and the order passed by the 5th respondent is not maintainable. Hence, the Assistant-Commissioner has committed an error in passing the impugned order declaring that the appeal filed by the petitioner is not maintainable. The said impugned order passed by the 5th respondent is contrary to the law laid down by this Court in the case of Guddanagouda Tirukanagouda Patil v. Assistant Commissioner, Haveri Sub-Division and Ors., wherein it is held that the order passed by the Tahsildar in exercise of supervisory powers on the administrative side, the Assistant Commissioner is entitled to correct the order of the Tahuldar. Therefore, the impugned order passed by the 4th respondent is not sustamable. Hence, it is liable to be rejected.
9. Further, the second appeal is filed before the third respondent. The third respondent has upheld the order passed by the 5th respondent and the third respondent without going into the merits of the case held that the first respondent is the only legal heir of the deceased-Shivanand and the second respondent has obtained heirship certificate in respect of Shivanand from the Tahsildar, Hukeri, holding that the impugned order passed by the Tahsildar, Hukeri, is not made under the provisions of Karnataka Land Revenue Act or the Land Revenue Rules.
10. In view of the above, the order passed by the Assistant Commissioner is not correct in rejecting the appeal, on the point of maintainability and on the merits of the case. Accordingly, the appeal was dismissed reserving liberty to the parties to approach the Civil Court to seek appropriate remedy. The said impugned order passed by the third respondent is one without application of mind. Therefore, in my considered view, the said order is not sustainable and therefore, it is rejected. Accordingly, the writ petition is allowed and the order impugned vide Annexures-A, B and C, dated 10-10-2000, 3-11-2000 and 18-7-2001 respectively are hereby quashed.
11. However, liberty is reserved to the second respondent to work out her remedy before the Competent Authority. This order would not come in the way of the 5th respondent to issue survivorship certificate only. The competent authority shall consider the same without being influenced by the order passed by this Court.