Karnataka High Court
Sri. Shivanagouda vs Sri. Annasaheb & Ors on 16 February, 2018
Author: B Sreenivase Gowda
Bench: B. Sreenivase Gowda
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 16TH DAY OF FEBRUARY, 2018
BEFORE
THE HON'BLE MR. JUSTICE B. SREENIVASE GOWDA
W.P.No.200597/2018 (KLR-RR-SUR)
Between:
Sri Shivanagouda S/o Sanganagouda Biradar,
@ Kademani, Age : 76 Years,
Occ : Agriculture, R/o Babaleshwar,
Tq. and Dist. Vijayapur-586101.
... Petitioner
(By Sri Ajay Kumar A.K., Advocate)
And:
1. Sri Annasaheb S/o Sanganagouda Biradar,
@ Kademani, Age 81 Years,
Occ : Bidarar, R/o Babaleshwar,
Tq. and Dist. Vijayapur-586101.
2. The Assistant Commissioner,
Vijayapur, Dist. Vijayapur-586101.
3. The Deputy Commissioner,
Vijayapur, Dist. Vijayapur-586101.
...Respondents
This Writ Petition is filed under Article 226 of the
Constitution of India praying to, issue a order or writ in
2
the nature of certiorari quashing impugned order dated
28.12.2017 passed in File No.RTS/REV/26/2017-18
passed by the respondent No.3 vide Annexure-E and
etc.,.
This petition coming on for preliminary hearing
this day, the Court made the following:-
ORDER
Petitioner has preferred this writ petition seeking a writ of certiorari to quash the order dated 28.12.2017, passed by the Deputy Commissioner, Vijayapur, in file No.RTS/REV/26/2017-18, as per Annexure-E.
2. Heard the learned counsel appearing for the petitioner. Perused the writ petition and Annexures produced along with the writ petition.
3. The case of the petitioner is that petitioner, respondent No.1 and one Appasaheb are three sons of one Sanganagouda Biradar and they are direct brothers. Respondent No.1 Annasaheb filed form No.7 before the Land Tribunal, Vijayapur, seeking to grant occupancy 3 right in respect of lands bearing Sy.Nos.1063 and 1064 measuring 18 acres 37 guntas and 14 acres 24 guntas respectively, both are situated at Kakandaki village Vijayapur Taluk and District. The Land Tribunal by order dated 25.10.1982, registered him as occupant of the aforesaid lands. Petitioner claims that respondent No.1 during the year 2005-2006 released his right, title and interest to an extent of 6 acres 20 guntas out of 18 acres 37 guntas in Sy.No.1063 of Kakandaki village in favour of the petitioner through an unregistered release deed and based on said unregistered release deed he obtained Khata for the said extent of 6 acres 20 guntas in his name and his name entered in the revenue records. Respondent No.1 challenged the said mutation order passed by the Tahsildar for effecting Khata in the name of petitioner by preferring an appeal before the Assistant Commissioner who rejected the appeal on two grounds firstly, on the ground that the appeal was filed eight years after mutation was effected. Secondly, on the 4 ground that there is already a suit pending between the parties.
4. The grievance of the petitioner is that the Deputy Commissioner, Vijayapur, without considering the above aspect of the matter committed an error in allowing the revision petition filed by respondent No.1 and setting aside the mutation effected by the Tahsildar in his favour.
5. Learned counsel submits that the order passed by the Deputy Commissioner at Annexure-E is contrary to the judgment of this Court in W.P.No.1973/2004, in case of Sri Basappa Vs. The Deputy Commissioner and Others. Wherein it was held that the revenue authorities should not order for change of entries when suit is pending.
6. It is not in dispute that the Land Tribunal on 25.10.1982, granted occupancy right in favour of 5 respondent No.1 in respect of Sy.Nos.1063 and 1064 measuring 18 acres 37 guntas and 14 acres 24 guntas respectively both are situated at Kakandaki village, Vijayapur Taluk and District. Petitioner claims that respondent No.1 released his right, title and interest to the extent of 6 acres 20 guntas out of 18 acres 37 guntas in Sy.No.1063 in favour of the petitioner through an unregistered release deed and based on the said unregistered release deed he got his name mutated in the revenue records in respect of 6 acres 30 guntas. It is also not in dispute that brother of respondent No.1 and petitioner by name Appasaheb filed a suit in O.S.No.84/2013, against the petitioner and respondent No.1 for partition and separate possession of his share in Sy.Nos.1063 and 1064. At the same time petitioner has also filed a suit in O.S.No.235/2014, against sons of respondent No.1 for the relief of permanent injunction. The trial Court by judgment dated 25.04.2016, decreed the suit for partition and dismissed 6 the suit filed by the petitioner for the relief of injunction. Petitioner aggrieved by the said judgment and decree of the Courts below challenged the same by preferring a regular first appeal in RFA No.200061/2016 before this Court and it is pending.
7. It is to be noted that based on the order passed by the Land Tribunal granting occupancy right of Sy.Nos.1063 and 1064, in favour of respondent No.1, the Tahsildar effected mutation of the said lands in the name of respondent No.1 and his name appeared in the revenue records. Petitioner got his name mutated in the revenue records in respect of 6 acres 20 guntas out of 18 acres 37 guntas in Sy.No.1063 on the basis of an unregistered release deed stated to have been executed by respondent No.1 in his favour. It is settled principles of law that no right, title or interest of an immovable properties which is worth more than Rs.100/- can be transferred from one person in favour of another 7 through an unregistered deed and that Tahsildar ought not to have effected mutation in the name of the petitioner in respect of 6 acres 20 guntas in Sy.No.1063 on the basis of an unregistered release deed stated to have been executed by respondent No.1 in favour of petitioner. However, subsequent to the said mutation a suit has been filed by the brother of petitioner and respondent No.1 against the petitioner and respondent No.1 for partition and separate possession of his share in Sy.Nos.1063 and 1064 and the said suit has been decreed and suit for permanent injunction filed by the petitioner against the sons of respondent No.1 has been dismissed. Now matter is pending before this Court in RFA No. No.200061/2016, if that is so, rights of the parties will have to be finally determined in that regular first appeal, till then mutation effected by the Tahsildar in favour of respondent No.1 on the basis of the order passed by the Land Tribunal should be continued and it will be subject to result of the partition suit which is 8 pending in appeal before this Court. If that is so there is absolutely no reason for the grievance of the petitioner. The judgment cited by the learned counsel for the petitioner has no application to the facts of the case.
Hence, the following:
ORDER Writ petition is dismissed as devoid of merits.
Sd/-
JUDGE RSP