Chandrappa Apayyappa Agasimani vs Shekar Gurusiddappa Agasimani
2022 Latest Caselaw 508 Kant

                             :1:


         IN THE HIGH COURT OF KARNATAKA
                 DHARWAD BENCH

     DATED THIS THE 12TH DAY OF JANUARY, 2022

                           BEFORE

        THE HON'BLE MR. JUSTICE R. NATARAJ

 WRIT PETITION NO.108550/2014 (KLR-RR/SUR)

BETWEEN:

Shri Chandrappa Apayyappa Agasimani,
Age 38 years,
R/o.: Hirebagewadi,
Tq. & Dist.: Belgaum.
                                          ... Petitioner

(By Shri Girish S.Hiremath, Advocate)

AND:

1.     Shekar Gurusiddappa Agasimani,
       Age major, Occ:

2.     Shivappa Shivabasappa Agasimani,
       Age major, Occ:

3.     Gurappa Shivabasappa Agasimani,
       Since deceased by his L.Rs.,

       Smt. Mahadevi Gurappa Agasimani,
       Age major, Occ: Household work,

4.     Smt. Vidya Kom. Vitappa Hosani,
       Age major, Occ: Household work,

5.     Rvindra Gurappa Agasimani,
       Age major,
                                :2:


6.   Gajendra Shivabasappa Agasimani,
     Age major, Occ:

7.   Shri Ningappa Shivabasappa Agasimani,
     Age major, Occ: Household work,

     All are R/o.: Hirebagewadi,
     Tq. & Dist.: Belgaum.

8.   The Assistant Commissioner, Belgaum.

9.   The Deputy Commissioner, Belgaum.
                                                     ... Respondents

(Respondent Nos.1 and 2 are served;
 Shri Prashant S.Kadadevar, Advocate for R3 to R6;
 Shri Shivaprabhu S.Hiremath, AGA for R8 & R9;
 Notice to R7 is held sufficient)

      This writ petition is filed under Articles 226 & 227 of the
Constitution of India, praying to quash the orders dated
05.10.2012, passed by respondent No.8 in RTS AP/177/2010
vide Annexure-B and respondent No.9 dated 31.07.2014 in
No.RB/RTA-37/2012-13 vide Annexure-C.

      This petition coming on for Preliminary Hearing B-Group,
this day, the Court made the following:

                              ORDER

The petitioner has challenged the order dated 31.07.2014,

passed by respondent No.9 in RB/RTA-37/2012-13, by which the

order passed by respondent No.8 dated 05.10.2012 in RTS

AP/177/2010 was confirmed.

2. The petitioner claimed that the land bearing

R.S.No.122/3, 124/1+2, 460/3, 460/4A+13A+16A, 460/7, 481/4

and 481/5 situate at Hire Bagewadi belonged to Shivappa

Agasimani who had four sons namely (i) Gurusiddappa (ii)

Shivabasappa (iii) Appayappa (iv) Gurappa. It is claimed that the

four sons had orally partitioned the properties and were in

possession of their respective share. It is claimed that after the

death of Appayappa, the names of his legal heirs were not

entered in the revenue records. Thus, the petitioner obtained the

consent of the other co-owners and filed an application before

the Tahasildar, who forwarded it to the village accountant. The

village accountant assigned number 127/130 to the application

and published a notice in Form-21. The respondents objected to

the same and therefore was treated as a dispute and referred to

the Deputy Tahasildar for adjudication. The Deputy Tahasildar

after hearing the parties passed an order dated 28.09.2010

certifying 127/130 of Hire Bagewadi and directed the names of

the legal heirs of Appayappa to be entered in the revenue

records. Being aggrieved by the order, the respondents 1 and 2

challenged it before the respondent No.8, who noticed that a suit

in O.S.No.356/2002 was filed for partition and separate

possession which was decreed declaring that the parties were

entitled to 1/4th share in the suit properties. He also noticed that

the petitioner himself had filed FDP No.4/2009 while the

respondent No.3 had filed another final decree and obtained his

1/4th share and got the possession of his share in Execution

Petition No.17/2009. Though the petitioner claimed that he filed

a miscellaneous petition to set aside the decree in

O.S.No.356/2002, the respondent No.8 held that there cannot be

parallel proceedings and hence set aside the mutation that was

accepted by the Deputy Tahasildar. The petitioner challenged the

order passed by respondent No.8 before the respondent No.9 in

a revision petition. The respondent No.9 held that the documents

on which the petitioner relied upon to get his name entered did

not bear any date. He noticed that those who had allegedly

executed the documents had expired on 20.09.2004 and

25.09.2007. He also found that the suit in O.S.No.356/2002 was

decreed in respect of which FDP No.4/2009 was filed. Thus, he

held that the respondent No.8 was justified in reversing the

mutation that was accepted by the Deputy Tahasidar and thus

rejected the revision petition. He held that the parties shall be

bound by the outcome of FDP No.4/2009.

3. Being aggrieved by the aforesaid order, the present

writ petition is filed.

4. Learned counsel for the petitioner submitted that

there were documents, which indicated that subsequent to the

judgment and decree passed in O.S. No.356/2002, respondent

No.1 and others had consented to enter the names of the

petitioner and his brothers in respect of certain survey numbers

referred to above and therefore, the respondents ought to have

allowed the same. He submitted that a miscellaneous petition

was filed to set aside the judgment and decree in

O.S.No.356/2002 which was pending consideration. Therefore,

he submitted that the respondent Nos.8 and 9 could not have

relied upon the decree in O.S.No.356/2002. The learned counsel

was not able to indicate the stage of the miscellaneous petition.

5. Per contra, the learned counsel for the respondents

submitted that respondent No.3 had filed final decree

proceedings and had taken his share in EP No.7/2009. He

submitted that the petitioner had also initiated FDP No.4/2009

and therefore if there was any consent deeds in favour of the

petitioner or his brothers, the same had to be adjudicated in the

final decree filed by the petitioner which would certainly not be

done by the Revenue Authorities. He therefore submitted that

the petitioner may establish his claim before the final decree

Court. He also submitted that FDP No.4/2009 filed by the

petitioner herein was dismissed for non-prosecution.

6. It is not in dispute that a suit was filed for partition

and separate possession of the undivided share of the petitioner

in respect of the suit schedule properties and that the said suit

was decreed. Therefore, the petitioner is entitled to seek final

decree for demarcation of his undivided share. In the final decree

proceedings, he may establish that one or many co-sharers had

any of the relinquished their share or that some of them had

consented to enter his name in the revenue records etc., in his

favour and the final decree Court would consider the same in

accordance with law. However, the petitioner cannot pursue the

revenue authorities to get his name entered in the revenue

records based on certain disputed documents such as

relinquishment deed/consent deed etc.,

7. In that view of the matter, the revenue authorities

were justified in directing the petitioner to work out his remedy

in FDP No.4/2009 filed by him. In the circumstance, there is no

merit in this writ petition and the same is dismissed.

It is open for the petitioner to seek restoration of the final

decree proceedings in FDP No.4/2009 and work out his remedy

in the final decree proceedings. It is needless top mention that if

the decree in O.S. No.356/2002 is set aside by any Court, the

names of all the sharers shall be entered in the revenue records.

All contentions are left open.

Learned Additional Government Advocate is permitted to

file memo of appearance within ten days from today.

Sd/-

JUDGE Vnp*