Sri Shivabasappa vs The Deputy Commissioner
2021 Latest Caselaw 896 Kant

             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

         DATED THIS THE 15TH DAY OF JANUARY 2021

                          BEFORE

     THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

           WRIT PETITION NO.4453/2007 (KLR-RR/SUR)

BETWEEN:

SRI SHIVABASAPPA S/O BASAPPA GADDI,
AGED: 72 YEARS,
 R/AT HIREYARANAKERI VILLAGE
TQ: HUNGUND, DIST: BAGALKOT 587 118.
                                            ...PETITIONER
(BY SRI.R.M.KULKARNI, ADVOCATE FOR
SRI G BALAKRISHNA SHASTRY, ADVOCATE)

AND:

1.     THE DEPUTY COMMISSIONER
       BAGALKOT

2.     THE ASSISTANT COMMISSIONER
       BAGALKOT

3.     SMT MAMATAJ W/O RAFIQUE ITAGI, MAJOR
       R/AT HADAGALI VILLAGE
       TQ: HUNGUND, DIST: BAGALKOT

4.     SMT HAJIMA @ NAZIMA
       W/O JUNGALISAB ITAGI, MAJOR
       R/AT CHALUKYA S T D,
       BADAMI VILLAGE, DISTRICT BAGALKOT.
                                        .....RESPONDENTS
(BY SRI.VINAYAK KULKARNI, AGA FOR R1 AND R2
NOTICE TO R3 HELD SUFFICIENT,
NOTICE TO R4 - SERVED)
                                   2




     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO STAY OPERATION
OF THE ORDER DATED 09.11.2006 IN RTS/RE:59/2002-03 PASSED
BY THE DEPUTY COMMISSIONER, BAGALKOT PRODUCED AT
ANNEXURE-A    AND   THE   ORDER    DATED   08.07.2002  IN
NO.RTS/AP/16/2000 PASSED BY THE ASSISTANT COMMISSIONER,
BAGALKOT, PRODUCED AT ANNEXURE-B IN THE ENDS OF
JUSTICE.

     THIS PETITION COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:

                               ORDER

The present writ petition is filed in the nature of writ of

certiorari praying to quash the order dated 08.07.2002 in No.

RTS/AP/16/2000 passed by the respondent No.2-Assistant

Commissioner and order dated 09.11.2006 in No.RTS/RE:59/2002-

03 passed by the respondent No.1-Deputy Commissioner.

2. Brief facts of the case are:

It is stated that respondent No.3 is the wife of one Rafique @

Ravi Itagi and respondent No.4 is daughter of respondent No.3 and

Rafique @ Ravi Itagi. The said respondent Nos.3 and 4 have filed

suit in O.S.No.126/1999 before the Court of Civil Judge (Jr.Dn)

Hungund, against Rafique @ Ravi S/o: Huchchesab for

maintenance. In the said suit a land survey No.32/1+2B measuring

4 acres 8 guntas in Hireyaranakeri Village, of Hungund Taluk and

also house bearing G.P.No.1298 situated at Amingad, Taluk

Hungund, are the subject matters. The said O.S.NO.126/1999 is

ended in compromise on 14.02.2002, before the Court of Civil

Judge (Jr.Dn) Hungund, to the effect that the said Rafique @ Ravi

S/o: Huchchesab shall give 1/3 share to respondent Nos.3 and 4 in

respect of house GPA No.1298 situated at Hireyaranakeri Village, of

Hungund Taluk. Therefore the subject matter of the land bearing

No.32/1+2B in the suit is not the subject matter in the compromise

decree dated 14.02.2002 and in the compromise decree the said

subject matter of land is not at all touched. It is further stated that

the said Rafique @ Ravi is one of the joint owner of land

Sy.No.32/1+2B stated above along with three other owners had

sold the said land in favour of the petitioner by way of registered

sale deed dated 05.04.1999, as per Annexure-D. The respondent

Nos.3 and 4 have filed suit for maintenance against Rafique @ Ravi,

which is instituted on 28.05.1999. Even though the order of

attachment before the judgment is passed in the suit that is after

sale of the land as the land was sold on 05.04.1999 itself, therefore

submitted that the observations made by the respondent Nos.1 and

2 in their impugned orders at Annexure-A and B that as on the

purchasing the said land on 05.04.1999, the order of attachment of

judgment was in force is not correct. Further submitted that even

though the above subject matter of land is made at the schedule in

O.S.No.126/1999 but in the compromise decree entered on

14.02.2002, the said land was not at all touched and the

compromise effected only in respect of the house GPA No.1298

situated at Amingad. The Tahsildar, Hungund, had effected

mutation entry by entering the name of petitioner by honoring

registered sale deed executed on 05.04.1999 in respect of land

above stated. But the order of Tahsildar is passed as per

Annexure-C, which is challenged before the Assistant Commissioner

and the Assistant Commissioner had observed that since there is an

attachment by the Civil Court in the said suit, which the sale is

effected during the pendency of the suit. Therefore, cancelled the

mutation entry as per Annexure-B, which is made effected by the

Tahsildar. The said order of Assistant Commissioner is confirmed by

the Deputy Commissioner, as per Annexure-A.

3. In the present case, the petitioner has purchased the

above stated agricultural land from four joint owners by way of

registered sale deed on 05.04.1999. Respondent Nos.3 and 4 have

filed suit on 28.05.1999, their might have been order of attachment

before the judgment but it is after the sale is taken place which was

effected on 05.04.1999. Therefore, in this regard the observations

made by the respondent No.1-Deputy Commissioner and

respondent No.2-Assistant Commissioner that the registration of

sale deed taken place during the subsistance of order of attachment

before the judgment is not correct. Further more, even though the

said land is also included is one of the subject matter in

O.S.Nno.126/1999 but in the compromise decree in the said suit

which is effected on 14.02.2002, it is only in respect of house GPA

No.1298 situated at Amingad, but the said land is not at all subject

matter in the compromise decree. Hence, there is no compromise

to the effect that her share is given in respect of the landed

properties also. Therefore, in this regard, the observations made

by the respondent Nos.1 and 2 in their impugned orders by virtue

of the said compromise decree and charge is liable to be create is

not correct. In case of failure of honoring the compromise decree by

the Rafique @ Ravi, it is only in respect of creating charge over the

house property but not on the landed property. Therefore, for all

the above facts and circumstances and for the reasons stated

above, the mutation entry No.902 as certified by the Tahsildar,

Hungund is correct but consequently setting aside the said mutation

entry effected in favour of petitioner by respondent Nos.1 and 2 is

illegal and not correct and they are liable to be quashed. Hence, I

proceed to pass the following:

ORDER

The writ petition is allowed.

The order dated 09.11.2006 in No.RTS/RE:59/2002-03

passed by the Deputy Commissioner, Bagalkot produced at

Annexure-A and order dated 08.07.2002 in No.RTS/AP/16/2000

passed by the Assistant Commissioner, Bagalkot, produced at

Annexure-B are hereby quashed.

Rule is made absolute.

Sd/-

JUDGE RM