Karnataka High Court
K Malkachari vs The Deputy Commissioner Bellary ... on 7 January, 2022
Bench: R Natarajpresided Byrnj
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 7th DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE R. NATARAJ
WRIT PETITION NO.137/2007 (KLR-RES)
BETWEEN
K MALKACHARI S/O MANAPPACHARI,
AGED ABOUT 66 YRS,
R/AT M.B.IYYANAHALLI,KUDLIGI TQ,
BELLARY DISTRICT, BELLARY.
...PETITIONER
(BY SMT.V.VIDYA, ADV.)
AND
1. THE DEPUTY COMMISSIONER,
BELLARY DIST, BELLARY.
2. THE TAHSILDAR
KUDLIGI TQ, KUDLIGI,
BELLARY DISTRICT.
3. SMT BANAMMA
W/O LATE SHRISHAILACHARI,
MAJOR, R/O M B IYYANAHALI,
KUDLIGI TQ, BELLARY DISTRICT.
4. SHYLACHARI
S/O LATE SHRISHAILACHARI,
MAJOR, R/O M B IYYANAHALLI,
KUDLIGI TQ, BELLARY DISTRICT.
5. MALLAPPACHARI
S/O LATE SHRISHAILACHARI,
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MAJOR, R/O M B IYYANAHALLI,
KUDLIGI TQ, KUDLIGI, BELLARY DIST.
6. VISHWANATHACHARI
S/O LATE SHRISHAILACHARI ,
MAJOR, R/O M B IYYANAHALLI,
KUDLIGI TQ, KUDLIGI, BELLARY DISTRICT.
7. BHOODEVAMMA
D/O LATE SHRISHAILACHARI,
MAJOR, R/O M B IYYANAHALLI,
KUDLIGI, KUDLIGI TQ, BELLARY DISTRICT.
8. GOWRAMMA
D/O LATE SHRISHAILACHARI,
MAJOR, R/O M B IYYANAHALLI,
KUDLIGI TQ, BELLARY DISTRICT.
....RESPONDENTS
(BY SRI.SHIVAPRABHU S HIREMATH, AGA FOR R1 & R2;
SRI.S G KADADAKATTI, ADV. FOR R4 TO R7;
R8 SERVED; R4-R8 ARE TREATED AS LRS OF R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
THE IMPUGNED ORDER PASSED BY THE R1, FOUND AT ANN-F
DT.19/22.12.1988, IN SO FAR AS IT RELATES TO RECONVEYING
SY.NO.162-A, 165, 211/B IN FAVOUR OF LATE
SHRISHAILACHARI AND ALSO THE IMPUGNED ENDORSEMENT
DT.14.2.2006, ISSUED BY THE R1, FOUND AT ANN-J AND
FURTHER ISSUE A WRIT OF MANDAMUS DIRECTING R1, TO
PASS AN ORDER RECONVEYING SY.NO.162-A, 165,211/B
SITUATED AT M.B.IYYANAHALLI VILLAGE, KUDLIGI TQ. BELLARY
DIST.
THIS PETITION COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
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ORDER
1 The petitioner claims that he is the adopted son of
Smt.Seethamma, who died in the year 1980. It is claimed that
Smt.Seethamma was the owner and in possession of the land
bearing Sy.Nos.38 and 211/A of M.B.Ayyanahalli village, Kudligi
taluk.
2 It is claimed that the said Smt.Seethamma
purchased the land bearing Sy.Nos.162A, 165 and 211B on
27.12.1968 from Sri.Shrishailachari, the husband of respondent
No.3 and father of respondents 4 to 8. It is claimed that during
the lifetime of Smt.Seethamma, the aforesaid lands were
mortgaged with the Primary Land Development Bank for raising
a loan. Since the loan was not repaid, the properties were
brought for sale and the possession of the properties was taken
over by the State Government. Subsequently, the Government
rolled out a policy, which provided for re-delivery of possession
of properties wherever the loan was repaid without interest.
Accordingly, Smt.Seethamma cleared the entire loan on
31.01.1984. It is claimed that after the repayment of the entire
loan amount, the petitioner requested respondent No.1 to re-
convey the mortgaged lands in favour of the petitioner. The
respondent No.1 in terms of his letter dated 29.09.1985 sought
for a report from respondent No.2. It is claimed that though
Smt.Seethamma had mortgaged all the five survey numbers,
which were owned by her, yet respondent No.1 passed an order
re-conveying the lands bearing Sy.No.38 and 211/A in favour of
the petitioner herein, being the legal heir of Smt.Seethamma
while the lands which were purchased under the sale deed dated
27.12.1968 namely Sy.Nos.162A, 165 and 211B were ordered to
be re-conveyed in favour of Shrishailachari, the husband of
respondent No.3 and father of the respondents 4 to 8. This order
was challenged before this Court in Writ Petition No.26563/2005.
However, on 19.12.2005 the petitioner withdrew the writ petition
with liberty to pursue the matter before other forum. Later, the
petitioner submitted a representation to respondent No.1 on
10.01.2006 to review the order dated 19/22.12.1988. The
respondent No.1 in terms of the endorsement dated 14.02.2006
refused to review the earlier order dated 10.01.2006. Hence,
aggrieved by the aforesaid order, the present writ petition is
filed.
3 Learned counsel for the petitioner submitted that
when once the husband of respondent No.3 had sold
Sy.Nos.162A, 165 and 211B to Smt.Seethamma on 27.12.1968,
nothing remained with the husband of respondent No.3 to
restore the title and possession of the property to the respondent
No.3. She therefore submitted that respondent No.1 is liable to
be directed to re-convey of the properties bearing Sy.Nos.162A,
165 and 211B to the petitioner herein, who is the legal heir of
Smt.Seethamma.
4 Per contra, learned counsel for respondents 4 to 8
submitted that the land bearing Sy.Nos.162A, 165 and 211B was
mortgaged with the Land Development Bank prior to the alleged
sale in favour of Smt.Seethamma. In this regard, learned
counsel invited the attention of this Court to Annexure-R3, which
was the statement of Shrishailachari on 20.02.1968. He
therefore submitted that the sale in favour of Smt.Seethamma
was fabricated. He also submitted that the revenue records in
respect of the aforesaid lands stood in the name of
Shrishailachari and therefore it is improbable that the land in
question were sold by Shrishailachari to Smt.Seethamma. He
therefore contended that respondent No.1 was thoroughly
justified in directing restoration of the land bearing Sy.Nos.162A,
165 and 211B in favour of Shrishailachari, whose name was
entered in the revenue records.
5 Learned counsel also submitted that the petitioner
having withdrew the writ petition filed earlier, cannot be
permitted to file another writ petition on the very same cause of
action. In that regard, reliance is placed on the judgment of the
Apex Court in the case of Sarguja Transport Service Vs.State
Transport Appellate Tribunal, M.P., Gwalior and others
reported in (1987)1 SCC 5.
6 I have considered the submissions made by the
learned counsel for the parties.
7 It is not in dispute that the petitioner is the adopted
son of Smt.Seethamma and the land bearing Sy.Nos.38 and
211/A, which are the subject matter of the mortgage and which
were sold in public auction was re-conveyed to the petitioner as
the legal representative of Smt.Seethamma. Insofar as the land
bearing Sy.Nos.162A, 165 and 211B, though the petitioner
claims that the husband of the respondent No.3 and father of
respondents 4 to 8 (Shrishailachari) had sold them to
Smt.Seethamma on 27.12.1968, the same is disputed by
respondents 4 to 8 and contend that the sale deed was
concocted and fabricated for the purpose of the case. However,
though respondents 4 to 8, were notified of the said sale in
O.S.No.205/1995 as well as in the present writ petition, no steps
are taken by respondents 4 to 8 to challenge the sale deed. In
that view of the matter, it cannot now lie in the mouth of
respondents 4 to 8 to contend that their predecessor-
Shrishailachari did not execute the sale deed dated 27.12.1968.
In the face of the sale deed executed in favour of
Smt.Seethamma, it was inevitable for respondent No.1 to re-
covey the possession as well as title of the land bearing
Sy.Nos.162A, 165 and 211B to the petitioner herein as the legal
representative of deceased-Smt.Seethamma.
8 In that view of the matter, this writ petition is
allowed. The impugned order insofar as re-coveying the land
bearing Sy.Nos.162A, 165 and 211B to Shrishailachari, the
husband of respondent No.3 and the father of respondents 4 to
8, is hereby set aside.
9 Respondent Nos.1 and 2 shall take all necessary
steps to re-covey the aforesaid lands to the petitioner within a
period of three months from the date of receipt of certified copy
of this order.
10 The revenue records in respect of the aforesaid three
survey numbers shall be accordingly entered in the name of the
petitioner.
Sd/-
JUDGE
KGK
