Karnataka High Court
Sri Veerabadrachari vs The State Of Karnataka on 20 June, 2022
Bench: R. Nataraj
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
WRIT PETITION NO.55157 OF 2014 (LB-RES)
BETWEEN:
SRI. VEERABADRACHARI
SINCE DECEASED BY HIS LRS
1(a) SMT. ASHWATHAMMA
W/O LATE VEERABADRACHARI
1(b) SRI. MURALI MOHAN
S/O LATE VEERABADRACHARI
AGED ABOUT 38 YEARS
1(c) SMT. ARUNA V.S.
D/O LATE VEERABADRACHARI
AGED ABOUT 34 YEARS
ALL ARE RESIDING AT NO.58,
KILLARIPET,
KOLAR -563 101.
...PETITIONERS
(BY SRI. S. VISWESWARAIAH, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY,
DEPARTMENT OF REVENUE
M.S.BUILDING,
DR. AMBEDKAR VEEDHI,
BENGALURU-560001.
2
2. THE DEPUTY COMMISSIONER
KOLAR DISTRICT,
KOLAR-563 101.
3. SMT. BHAGYALAKSHMAMMA
W/O SURYANARAYANACHAR,
AGED ABOUT 65 YEARS,
RESIDING AT NO.515,
ANJANEYASWAMY TEMPLE STREET,
GULPET, KOLAR-563 101
...RESPONDENTS
(BY SRI. V.S.KALASURMATH, HIGH COURT GOVERNMENT
PLEADER FOR RESPONDENT NOS. 1 AND 2;
SRI. N.S.SHESHADRI, ADVOCATE FOR RESPONDENT NO.3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER PASSED BY THE 2ND RESPONDENT IN CASE
NO.MUN:APPEAL:CR:03(A)/2010-11 DATED 22.01.2014 VIDE
ANNEXURE-E.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 01.06.2022 AND COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
The petitioner (since deceased) represented by his
legal representatives, has challenged the order dated
22.01.2014 passed by the respondent No.2, by which he
directed the name of the respondent No.3 to be entered in
the Property Register (khatha) of the property bearing
No.337/1 of Kolar Municipal Council, which comprised of a
shop and a room bound on the East by road, West by
Veerabadrachari's 1/3rd share, North by road, South by
Rammaiah's house.
2. The property bearing khatha No.337/1, A.R.
No.2442/1, Old khatha No.930, New No.1412, situated at
2nd Division, Kilaripet, Kolar Town, measuring East to
West: 36 feet and North to South : 30 feet was owned and
possessed by the grandfather of the petitioner - Sri.
Veerabadrachari and the respondent No.3, he having
purchased it in terms of the sale deed dated 29.11.1911.
After the death of their father and mother, the petitioner,
his brother - Shankarachari and the respondent No.3
succeeded to the estate. The petitioner and his brother-
Shankarachari gifted a portion of the above property,
measuring East to West : 12 feet and North to South : 22
feet in terms of a gift deed dated 16.06.1969 in favour of
the respondent No.3. It is contended that the respondent
No.3 was placed in possession of the property so gifted. In
the meanwhile, since Shankarachari denied the title of the
petitioner in respect of his 1/3rd share, the petitioner was
forced to file a suit in O.S.No.262/1979 against his brother
Shankarachari and a person named Muddakrishna for
declaration of his title and other reliefs before the Principal
Munsiff, Kolar. The said suit was decreed in favour of the
petitioner declaring him to be the absolute owner in
respect of the property and also for recovery of
possession. The petitioner claimed that he was in
possession of the property which was the subject matter of
the decree in O.S.No.262/1979 and that the khatha of the
said property, measuring 12 feet x 30 feet and 6 feet x 12
feet was transferred to the name of the petitioner by the
Commissioner on 03.11.2002 after holding an enquiry and
after scrutiny of documents.
3. In the meanwhile, the respondent No.3 filed an
appeal before the respondent No.2 challenging the khatha
made out in the name of the petitioner contending that the
khatha registered in the name of the petitioner was in
respect of a property, which was different than the
property which was involved in O.S.No.262/1979. She
claimed that she had filed a suit against his brother
Shankarachari and one Narasimharaju in respect of the
same property in O.S.No.292/1977 for relief of declaration
and that she obtained a decree and had taken symbolic
possession in Execution No.25/1979. The respondent No.2
allowed the appeal filed by the respondent No.3 and
remitted the case for fresh consideration. The respondent
No.3 again approached the respondent No.2 by filing an
appeal to set aside the khatha made out in the name of
the petitioner. The respondent No.2 without holding any
independent enquiry and relying upon the Judgment and
Decree passed in O.S.No.292/1977 allowed the appeal
filed by the respondent No.3, reversing his earlier order
dated 05.05.2007 and ordered for registration of khatha in
the name of the respondent No.3 in respect of 1/3rd
portion measuring 12 feet x 30 feet. The petitioner
challenged the said order.
4. During the pendency of this writ petition, the
petitioner died and his legal representatives are brought on
record.
5. The learned counsel for the petitioners
submitted that the respondent No.3 was entitled to the
property measuring 12 feet x 22 feet and nothing more
and therefore, the order passed by the respondent No.2
directing transferring of the khatha to an extent of 12 feet
x 30 feet is without jurisdiction.
6. The learned counsel for the respondent No.3
submitted that the respondent No.3 had filed a suit in
O.S.No.292/1977, wherein it was specifically mentioned
that the property that was gifted to her constituted 1/3rd
share in the property measuring 36 feet x 30 feet and
therefore, the respondent No.2 was justified in directing
the name of the respondent No.3 to be entered in respect
of an area measuring 12 feet x 30 feet. The learned
counsel further contended that the respondent No.3 had
filed O.S.No.682/2009 for perpetual injunction against the
deceased petitioner and that the suit after contest was
decreed in respect of 1/3rd share in the aforesaid property.
Learned counsel therefore submitted that the respondent
No.2 was justified in directing the entry of the name of the
respondent No.3 in respect of the area measuring 12 feet x
30 feet.
7. I have considered the submissions made by
the learned counsel for the parties.
8. It is not in dispute that the deceased petitioner
and his brother had gifted an area measuring 12 feet x 22
feet in the aforesaid property. There is no declaration of
title in respect of 1/3rd share in favour of the respondent
No.3. The decree obtained by the respondent No.3 in
O.S.No.292/1977 was not against the deceased petitioner
herein but was against her other brother Shankarachari
and a person named Narasimharaju. Likewise, the decree
obtained by the deceased petitioner in O.S.No.262/1979
was not against the respondent No.3 herein. In that view
of the matter, there is no decision on merits about the
entitlement of the respondent No.3 to 1/3rd share in the
aforesaid property. Consequently, the respondent No.2
could not have travelled beyond the gift deed in favour of
the respondent No.3 and could not have directed the name
of the respondent No.3 to be entered in the Property
Register Extract in respect of a larger extent than 12 feet x
22 feet. Hence, the impugned order passed by the
respondent No.2 ordering the name of respondent No.3 to
be entered in respect of 12 feet x 30 feet deserves to be
set aside.
9. Consequently, this writ petition is allowed.
The impugned order passed by the respondent No.2 dated
22.01.2014 in case No.MUN:Appeal:CR:03(A)/2010-11
(Annexure - E) is set aside. The khatha in favour of
respondent No.3 is ordered to be restricted to 12 feet x 22
feet.
10. It is, however, open for the respondent No.3 to
establish her claim to the remaining portion in the
aforesaid property constituting her 1/3rd share and
thereafter get her name entered in the khatha register.
The decree of perpetual injunction granted in
O.S.No.682/2009 shall not be affected.
All contentions are left open.
Sd/-
JUDGE
PMR
