Karnataka High Court
Shri Pratapsingh S/O Tulujaramsigh ... vs Ratansingh A/S Raghunathsingh Thakur on 29 July, 2024
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
-1-
NC: 2024:KHC-D:10665-DB
WA No.100009 of 2024
C/W WA No.100007 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 29TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE KRISHNA S.DIXIT
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
WRIT APPEAL NO.100009 OF 2024 (KLR-RES)
C/W
WRIT APPEAL NO.100007 OF 2024 (KLR-RES)
IN WA NO.100009/2024
BETWEEN:
1. SHRI. PRATAPSINGH S/O. TULUJARAMSIGH THAKUR,
AGE. 68 YEARS, OCC. AGRICULTURE,
R/O.H.NO. 147, JADHAV BUILDING MATH GALLI,
BELAGAVI-590001, TQ & DIST: BELAGAVI
NOW RESIDING AT CTS NO.11959, OM NAGAR,
1ST CROSS, BESIDE KADAM GENERATORS,
PATSON SHOWROOM BELAGAVI,
TQ & DIST. BELAGAVI-590003.
2. SHRI. DILIPSINGH S/O. TULUJARAMSIGH THAKUR,
AGE. 64 YEARS, OCC. AGRICULTURE,
Digitally signed R/O.H.NO.147, JADAV BUILDING MATH GALLI,
by JAGADISH T BELAGAVI-590001. TQ & DIST. BELAGAVI-590003.
R
...APPELLANTS
Location: High
Court of (BY SRI. SANTOSH B. RAWOOT, ADVOCATE)
Karnataka
Dharwad Bench AND:
1. SMT. SUNITA D/O. VASANTARAO ANASKAR,
(AFTER MARRIAGE SMT. SUNITA
W/O. JAIPRAKASH RAMANAND)
AGE. 55 YEARS, OCC. HOUSEHOLD,
R/O. RAJGRIHA HANUMAN NAGAR,
UJALAIWADI, TALUKA: KARVEER,
DISTRICT- KOLHAPUR-416004.
2. SMT. PADMAJA D/O. VASANTRAO ANASKAR,
(AFTER MARRIAGE-SMT. NEHA W/O. GOVIND
WELLING), AGE. 53 YEARS, OCC. HOUSEHOLD,
-2-
NC: 2024:KHC-D:10665-DB
WA No.100009 of 2024
C/W WA No.100007 of 2024
R/O. B.C.86, CAMP, BELAGAVI,
TALUKA & DISTRICT: BELAGAVI-590001.
3. SHRI. RATANSIGH S/O. RAGHUNATHSINGH THAKUR,
AGE. 61 YEARS, OCC. BUSINESS,
R/O.H.NO.904/11B, GAS SERVICE,
OLD DHARWAD ROAD, BELAGAVI,
TQ & DIST. BELAGAVI-590005.
4. SMT. RAMABAI W/O. PARASHURAMSINGH THAKUR,
AGE. 80 YEARS, OCC. NIL,
R/O.H.NO.904/11B, GAS SERVICE,
OLD DHARWAD ROAD, BELAGAVI,
TQ. & DIST. BELAGAVI-590005.
5. SMT. VIMAL W/O. LALSINGH RAJPUTH,
AGE. 78 YEARS, OCC. NIL
R/O.H.NO.904/11B, GAS SERVICE,
OLD DHARWAD ROAD, BELAGAVI,
TQ. & DIST. BELAGAVI-590005.
6. SMT. KAMAL W/O. UDAYSINGH THAKUR,
AGE. 75 YEARS, OCC. NIL,
R/O.H.NO.904/11B, GAS SERVICE,
OLD DHARWAD ROAD, BELAGAVI,
TQ. & DIST. BELAGAVI-590005.
7. SMT. SUMAN W/O. MOHANSIGH THAKUR,
AGE. 68 YEARS, OCC. NIL,
R/O.H.NO.904/11B, GAS SERVICE,
OLD DHARWAD ROAD, BELAGAVI,
TQ. & DIST. BELAGAVI-590005.
8. THE ASSISTANT COMMISSIONER
BELAGAVI SUB- DIVISION BELAGAVI
TALUKA AND DISTRICT. BELAGAVI-590001.
9. THE DEPUTY COMMISSIONER
BELAGAVI-590001, DIST. BELAGAVI.
...RESPONDENTS
(BY SRI. V. S. KALASURMATH, HCGP FOR R8 & R9)
THIS WRIT APPEAL IS FILED U/SEC.4 OF KARNATAKA HIGH
COURT ACT, 1961, PRAYING TO SET ASIDE THE IMPUGNED ORDER
DATED 08/11/2023 PASSED BY THE SINGLE JUDGE OF THIS
HON'BLE COURT IN WRIT PETITION NO.101573 OF 2021 (KLR-RES)
BY ALLOWING THIS WRIT APPEAL IN THE INTEREST OF JUSTICE
AND EQUITY.
-3-
NC: 2024:KHC-D:10665-DB
WA No.100009 of 2024
C/W WA No.100007 of 2024
IN WA NO.100007/2024
BETWEEN:
1. SHRI. PRATAPSINGH S/O. TULUJARAMSIGH THAKUR,
AGE. 62 YEARS, OCC. AGRICULTURE,
R/O. CTS NO.11959, OM NAGAR,
1ST CROSS, BESIDE KADAM GENERATORS,
PATSON SHOWROOM, BELAGAVI-590003.
TQ. & DIST. BELAGAVI.
2. SHRI. DILIPSINGH S/O. TULUJARAMSIGH THAKUR,
AGE. 62 YEARS, OCC. AGRICULTURE,
R/O. H.NO.147, JADAV BUILDING MATH GALLI,
BELAGAVI-590001, TQ. & DIST. BELAGAVI.
...APPELLANTS
(BY SRI. SANTOSH B. RAWOOT, ADVOCATE)
AND:
1. RATANSINGH A/S. RAGHUNATHSINGH THAKUR,
AGE. 66 YEARS, OCC. BUSINESS,
R/O.H.NO.904/11(B), NEAR GAS SERVICE,
OLD DHARWAD ROAD, BELAGAVI-590001.
2. THE DEPUTY COMMISSIONER
BELAGAVI-590001, DIST. BELAGAVI.
3. THE ASSISTANT COMMISSIONER
BELAGAVI-590201, DIST. BELAGAVI.
4. THE TAHSILDAR
BELAGAVI-591201, DIST. BELAGAVI.
...RESPONDENTS
(BY SRI. V. S. KALASURMATH, HCGP FOR R2 TO R3)
THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH COURT
ACT, 1961, PRAYING TO, SET ASIDE THE IMPUGNED ORDER DATED
08/11/2023 PASSED BY THE SINGLE JUDGE OF THIS HON'BLE
COURT IN WRIT PETITION NO.100848 OF 2021 (KLR-RES) BY
ALLOWING THE APPEAL IN THE INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
-4-
NC: 2024:KHC-D:10665-DB
WA No.100009 of 2024
C/W WA No.100007 of 2024
CORAM:HON'BLE MR. JUSTICE KRISHNA S.DIXIT
AND
HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL
ORAL JUDGMENT
(PER: HON'BLE VIJAYKUMAR A.PATIL) These intra court appeals are filed against to the orders date 08.11.2023 passed in Writ petitions Nos.101573/2021 and 100848/2021 by the learned Single Judge, wherein the writ petitions filed by the petitioners have been allowed by passing the following orders:
"In WP No.101573/2021
ORDER
i) Petition is allowed.
ii) The impugned order at Annexure-A dated 26.11.2020 issued by the 10th respondent and the order dated 03.07.2018 marked at Annexure- G issued by the 9th respondent respectively are quashed.
iii) The respondent-authorities shall restore the names of the purchaser * to an extent of 7 acres 33 guntas i.e., the petitioners in Writ Petition No.101573/2021 pursuant to the registered Sale Deed dated 05.02.1976 in respect of properties covered in the said Sale Deed.
iv) In respect of properties which are not sold which are allotted to the petitioners' father in the year 1966 as per the partition, names of thepetitioners * in W.P.No.100848/2021 are to be restored based on the partition.
v) The names of contesting respondents have to be entered in the property records in respect of properties allotted to the share of respondents No.1 to 3 in the partition of 1966. -5-
NC: 2024:KHC-D:10665-DB WA No.100009 of 2024 C/W WA No.100007 of 2024 In WP No.100848/2021 ORDER
i) Petition is allowed.
ii) The impugned orders at Annexures-N and J dated 26.11.2020 issued by the 1st respondent and dated 03.07.2018 issued by the 2nd respondent respectively are quashed.
iii) The respondent-authorities shall restore the names of the purchaser i.e., the petitioners in Writ Petition No.101573/2021 pursuant to the registered Sale Deed dated 05.02.1976 in respect of properties covered in the said Sale Deed.
iv) In respect of properties are not sold which are allotted to the petitioners' father in the year 1966 as per the partition, names of the petitioners are to be restored based on the partition.
v) At the same time, names of contesting respondents have to be entered in the property records in respect of properties allotted to the share of respondents No.4 to 6 in the partition of 1966."
2. The parties to the proceedings are refereed as per their ranking before the learned Single Judge.
3. The father of the petitioners in W.P.No.101573/2021 Shri.Vasantarao Anaskar and one Shri.Veeranna Koujalagi have jointly purchased land bearing Sy.No.27/1 measuring 15 acres and 17 guntas and 07 guntas of pot karab land at Zad Shahapur Village, Belagavi Taluk from the legal heirs of Raghunathsingh Thakur i.e., from deceased -6- NC: 2024:KHC-D:10665-DB WA No.100009 of 2024 C/W WA No.100007 of 2024 Yashodabai W/o. Raghunathsingh Thakur and respondents No.4 to 8 by registered sale deed dated 05.02.1976. Pursuant to the registered sale deed, the names of the purchasers have been entered into the revenue records as mutation entry/Diary No.566. The dispute arose between Shri.Vasantrao Anaskar and Veeranna Koujalagi. Hence Shri.Vasantrao Anaskar filed suit for partition and separate possession in OS No.217/1995. The said suit was decreed by judgment and decree dated 21.06.2001 by granting ½ share in Sy.No.27/1 to Shri.Vasantrao Anaskar i.e., father of the petitioners in W.P.No.101572/2021. Thereafter, based on the decree, Shri.Vasantrao Anaskar filed final decree proceedings in F.D.P No.14/2001. In the said proceedings, Court Commissioner was appointed and allotted Northern portion of the subject land measuring 07 Acres 34 guntas, 6 Mango trees, 160 Sapota trees and 1 borewell to Shri.Vasantrao Anaskar. Having aggrieved by the order passed in FDP No.14/2001, Shri. Veeranna Koujalagi filed regular appeal in R.A.No.17/2008 which came to be dismissed. Shri.Veeranna Koujalagi assailed the said order in RSA No.5493/2011 before this Court, which also came to be dismissed on 04.11.2011. Thereafter, the petitioners have filed -7- NC: 2024:KHC-D:10665-DB WA No.100009 of 2024 C/W WA No.100007 of 2024 execution petition in E.P. No.1321/2012 and got allotted a portion of the FDP No.14/2001 in R.S. No.27/1 to the extent of 7 Acres 34 guntas and they got possession of the said land in E.P. No.1321/2012 which came to be disposed off on 20.03.2013.
4. The said Ragunathsingh Thakur and his brother Tuljaramsingh Thakur have partitioned the property between all the family members by the registered partition deed dated 28.04.1966 and as per the partition, RS No.27/1 has been allotted to the share of Raghunathsingh Thakur.
5. Respondents No.1 to 3, children of Tuljaramsingh Thakur filed O.S.No.225/2011 for partition including subject property, which came to be dismissed with costs by judgment dated 27.06.2014. Respondents No.1 to 3 filed RA No.147/2014 assailing the judgment and decree dated 27.06.2014, but the same was not pressed. Respondents No.1 to 3 along with other sisters filed another suit in O.S. No.198/2013 which also came to be dismissed on 13.12.2016. Aggrieved by the judgment and decree, they preferred R.A. No.23/2017 which also came to be dismissed on 11.10.2018. -8-
NC: 2024:KHC-D:10665-DB WA No.100009 of 2024 C/W WA No.100007 of 2024
6. Respondents No.1 to 3, legal heirs of Tuljaramsingh Thakur have challenged the mutation entry/Diary No.412 dated 28.04.1996 by filing appeal No.271/2015-16 under Section 136(2) of the Karnataka Land Revenue Act, 1964 (hereinafter referred to as the 'KLR Act'), which came to be allowed without making the petitioners as the parties to the proceedings. The petitioners have assailed the order of the Assistant Commissioner dated 03.07.2018 before the Deputy Commissioner, Belagavi, which came to be dismissed. Being aggrieved, the petitioners have filed writ petitions before the learned Single Judge, which came to be allowed.
7. Respondents No.1 and 3/appellants herein opposed the writ petitions stating that the sale in favour of the petitioners father was in violation of the terms and conditions of the grant. It is contended that the partition is inequitable and the Assistant Commissioner and the Deputy Commissioner have justified in passing the order. They sought dismissal of the order.
8. Learned Single Judge considering the rival submissions, allowed the writ petitions by quashing the orders -9- NC: 2024:KHC-D:10665-DB WA No.100009 of 2024 C/W WA No.100007 of 2024 impugned and further directed to enter the names of the petitioners in the revenue records.
9. Sri. Santosh B.Rawooth, learned counsel for the appellants submits that the alleged partition is not equitable partition and the Assistant Commissioner has rightly come to the conclusion and allowed the appeal and the alleged sale is in violation of the terms and conditions of the grant. It is further submitted that the suit filed by the appellants came to be dismissed on the ground that matter is sub judice before the Land Trubunal, Belagavi and not on merits. Hence, he seeks to allow these appeals.
10. Learned AGA appearing for the respondents No.9 and 10 supports the appellants and seeks to sustain the impugned orders of the Assistant Commissioner and Deputy Commissioner and seeks to pass appropriate orders.
11. We have heard the arguments of the learned counsel for the appellants, learned AGA and meticulously perused the material available on record.
12. The undisputed facts are that one Shri.Veeranna Koujalagi and Sri.Vasant Anaskar jointly purchased the subject
- 10 -
NC: 2024:KHC-D:10665-DB WA No.100009 of 2024 C/W WA No.100007 of 2024 land bearing RS No.27/1 measuring 15 acres 17 guntas and 7 guntas of pot karab land situtated at Zab Shahapur, Belagavi from the legal heirs of Raghunathsingh Thakur i.e. from deceased Yashodabai W/o.Raghunathsing Thakur and respondents No.4 to 8 by registered sale deed dated 05.02.1976. The records indicate that one of the purchasers i.e Vasant Anaskar, the father of the petitioner filed O.S. No.217/1995 for partition and separate possession which came to be decreed on 21.06.2001 by granting ½ share in the subject land. In FDP No. 14/2001 as per the Court Commissioner's report, the Northern portion of the subject land measuring 7 acres 34 guntas along with trees and bore well were allotted the plaintiffs. And in the execution proceedings in E.P. No.1321/2012 the father of the petitioners got physical possession of his ½ share. Shri.Veeranna Koujalagi challenged the FDP proceedings before the First Appellate Court in RA 17/2008 which came to be dismissed. He challenged the same in RSA No.5493/2011 before this Court which also came to be dismissed. The allottment of ½ share of the subject property in favour of the father of the petitionera has attained finality.
- 11 -
NC: 2024:KHC-D:10665-DB WA No.100009 of 2024 C/W WA No.100007 of 2024
13. The records indicate that Raghunathsingh Thakur and Tuljaramsingh Thakur are the brothers and got their property partitioned by registered partition dated 28.04.1966. In the said partition, Raghunathsingh Thakur was allotted the subject property i.e. RS No.27/1. The legal heirs of Tuljaramsingh Thakur challenged the said partition in O.S. No.225/2011 which came to be dismissed. The legal heirs of Tuljaramsingh Thakur filed another suit in O.S. No.198/2013 seeking prayer for declaration and injunction declaring registered partition deed dated 28.04.1966 and consequential revenue entries are null and void. The said suit came to be dismissed on 13.12.2016. The same was assailed in RA.23/2017 which also came to be dismissed on 11.10.2018.
14. When things stood thus, the legal heirs of Tuljaramsingh Thakur challenged mutation entry/Diary No.412 dated 28.04.1966 in an appeal filed under Section 136(2) of KLR Act. The Assistant Commissioner without appreciating the aspect of delay has erroneously come to the conclusion that the partition is not proper and directed to enter the name of the legal heirs of Tuljaramsingh Thakur in the revenue records. Admittedly, the petitioners were not parties to the said
- 12 -
NC: 2024:KHC-D:10665-DB WA No.100009 of 2024 C/W WA No.100007 of 2024 proceedings. The Revisional Authority exercising its power under Section 136(3) of KLR Act affirmed the order of the Assistant Commissioner. The law is fairly settled with regard to the challenge to the mutation entry. Firstly, the Assistant Commissioner has committed grave error in entertaining the appeal after the period of more than 50 years from the date of mutation entry. The respondents No.1 to 3 have not assigned any justifiable grounds for the enormous delay in preferring the appeal. Secondly, the Assistant Commissioner has erred in recording the finding with regard to the registered partition entered between the parties in the year 1966. The revenue authorities have failed to appreciate the fact that two suits filed by the legal heirs of Tuljaramsingh Thakur have been dismissed as referred supra. Hence, on this ground also the impugned orders before the learned Single Judge do not sustain. Insofar, as the writ petition in WP No.100848/2021 filed by son of Raghunatsingh Thakur came to be dismissed by the learned Single Judge by recording finding that the challenge to the partition on the premise that the partition is inequitable was unsuccessful, as the plaint was rejected on the premise that the suit is barred by limitation and also the suit is barred under
- 13 -
NC: 2024:KHC-D:10665-DB WA No.100009 of 2024 C/W WA No.100007 of 2024 Section 133 of the KLR Act and the said finding have attained finality. Thus, the impugned order of the Assistant Commissioner is contrary to the said finding.
15. The learned Single Judge has further recorded the finding that the Divisional Commissioner, Belagavi vide letter dated 20.05.1964 would clearly demonstrate that the permission was granted to alienate the property. The said finding of the learned Single Judge are strictly inconsonance with the settled principles of law, the evidence available on record and does not call for any interference in the appeal.
16. The contention of the learned counsel that the sale is in violation of the terms and conditions of the grant is taken note by the learned Single Judge at para 8 of the impugned judgment in W.P. No.101573/2021 and recorded the clear finding that there was a permission granted to alienate the property. The said finding of the learned Single Judge is based on the material available on record and does not call for any interference.
17. For the aforementioned reasons, we do find any error in the finding recorded by the learned Single Judge in
- 14 -
NC: 2024:KHC-D:10665-DB WA No.100009 of 2024 C/W WA No.100007 of 2024 both the impugned orders calling for interference in the present appeals. Hence, we pass the following:
ORDER Both the writ appeals are dismissed as devoid of merits.
Sd/-
(KRISHNA S.DIXIT) JUDGE Sd/-
(VIJAYKUMAR A.PATIL) JUDGE RH/ct-an LIST NO.: 1 SL NO.: 17