Karnataka High Court
Shyalachari Alias ... vs The Deputy Commissioner on 16 March, 2022
Bench: S.Sunil Dutt Yadav, K.S.Hemalekha
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WA No. 100054 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 16TH DAY OF MARCH, 2022
PRESENT
THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
WRIT APPEAL NO. 100054 OF 2022 (KLR-RES)
BETWEEN:
1. SHYALACHARI ALIAS SHRISHAILACHARI
S/O. LATE SHRISHILACHARI
AGED ABOUT 66 YEARS
R/O. M.B. IYYANAHALLI-583135
TQ. KUDLIGI, DIST. BALLARI
2. MALLAPPACHARI
S/O. LATE SHRISHILACHARI
AGED ABOUT 63 YEARS
R/O. M.B. IYYANAHALLI-583135
TQ. KUDLIGI, DIST. BALLARI
3. VISHWANATHACHARI
S/O. LATE SHRISHILACHARI
AGED ABOUT 66 YEARS
R/O. M.B. IYYANAHALLI-583135
TQ. KUDLIGI, DIST. BALLARI
4. BHOODEVAMMA
D/O. LATE SHRISHILACHARI
JAGADISH AGED ABOUT 60 YEARS
TR R/O. M.B. IYYANAHALLI-583135
Digitally signed by
JAGADISH T R TQ. KUDLIGI, DIST. BALLARI
Location: DHARWAD
Date: 2022.03.24
11:08:25 +0530
5. GOWRAMMA
D/O. LATE SHRISHILACHARI
AGED ABOUT 59 YEARS
R/O. M.B. IYYANAHALLI-583135
TQ. KUDLIGI, DIST. BALLARI
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WA No. 100054 of 2022
...APPELLANTS
(BY SRI. S G KADADAKATTI, ADVOCATE)
AND:
1. THE DEPUTY COMMISSIONER
BALLARI DISTRICT-583101
2. THE TAHASILDAR
KUDLIGI TALUK-583135
DISTRICT BALLARI
3. K. MALKACHARI S/O. MANAPPACHARI
AGED ABOUT 80 YEARS
R/O. M.B. IYYANAHALLI-583135
TQ. KUDLIGI, DIST. BALLARI
...RESPONDENTS
(BY SRI. PRASHANT V MOGALI, HCGP FOR R1 & R2)
(BY SMT. V. VIDYA, ADV. FOR C/R3)
THIS WRIT APPEAL FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING THIS HONBLE COURT TO CALL FOR
RECORDS IN WRIT PETITION NO.137/2007 AND SET ASIDE
THE ORDER DATED 07.01.2022 PASSED BY THE LEARNED
SINGLE JUDGE IN WP.NO.137/2007 BY ALLOWING THIS WRIT
APPEAL AND TO DISMISS THE WRIT PETITION FILED BY THE
3RD RESPONDENT, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR PRELIMINARY
HEARING, THIS DAY, S.SUNIL DUTT YADAV J., DELIVERED
THE FOLLOWING:
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WA No. 100054 of 2022
JUDGMENT
The learned HCGP accepts notice for respondents No.1
and 2.
2. This intra-court appeal is filed by one Shylachari
S/o Late Shrishailachari, who was respondent No.4 in the writ
proceedings as well as by other appellants, who are
respondents No.5 to 8 before the learned Single Judge calling
in question the order dated 7.1.2022 passed in WP
No.137/2007, whereby the learned Single Judge has allowed
the writ petition and the impugned order insofar as directing
re-conveying the land bearing Sy.Nos.162A, 165 and 211B to
Shrishailachari was set-aside. Further, the learned Single
Judge had directed for re-conveyance of the aforesaid lands to
the petitioner in the writ petition within a period of three
months and also directed to enter the name of the petitioner in
the revenue records in respect of the aforesaid three survey
numbers.
3. The parties are referred to by their ranks before the
learned Single Judge for the purpose of convenience.
WA No. 100054 of 2022
4. The aforesaid writ petition came to be filed by the
petitioner, who is the adopted son of late Seethamma seeking
to set-aside the order of Deputy Commissioner at Annexure-F
dated 19/22.12.1988 insofar it relates to re-conveying the
lands in Sy.Nos.162/A, 165, 211/B in favour of late
Shrishailachari and had also sought for setting aside the
endorsement dated 14.2.2006 at Annexure-J, whereby the
application for reconsideration of the order at Annexure-F came
to be rejected.
5. Admitted facts being that, insofar as Sy.Nos.162/A,
165 and 211/B is concerned, registered sale deed came to be
executed on 27.12.1968 by Sri.Shrishailachari, husband of
respondent No.3 and father of respondents No.4 to 8 in favour
of late Seethamma. It is submitted that the petitioner is the
adopted son of late Seethamma, who derived the rights insofar
as said properties are concerned. Further undisputed facts are
that late Seethamma had taken the loan by mortgaging the
aforesaid lands to the Bank and subsequently though the
properties were auctioned by the Government and the
possession was taken over, in the light of the government
WA No. 100054 of 2022
order, wherein the opportunity was granted to the loanee to
repay the loan amount without interest and consequently, the
properties would be reconveyed. It is submitted that the late
Seethamma had cleared the entire loan on 31.1.1984. It is
further submitted that the subsequent to death of Seethamma,
the petitioner requested for re-conveyance of the said lands in
his favour. However, as per order at Annexure-F dated
19/22.12.1988, the Deputy Commissioner had directed for re-
conveyance of the lands, which were subject matter of the sale
deed dated 27.12.1968 in favour of Srishailachari and insofar
as other properties, which were stated to be inherited by late
Seethamma lands in Sy.Nos.38 and 211/A are concerned, the
Deputy Commissioner had directed for re-conveyance of the
said lands in favour of the petitioner.
6. Aggrieved by the said order, WP No.26563/2005
came to be filed. In the said writ petition, though the matter
was heard, the said writ petition finally came to be dismissed
on 19.12.2005 in terms of the following observation:
Though this matter was heard and the order
was in the process of being dictated, the
learned counsel for the petitioner files a
memo praying for withdrawal of the writ
WA No. 100054 of 2022
petition, without prejudice to the rights of the
petitioner to pursue the matter before other
forum. Submission is recorded. Memo is
received. Writ petition is dismissed
accordingly.
7. Subsequent to which, according to the petitioner, in
the light of the observation in the said writ petition, the
petitioner approached the Deputy Commissioner once again for
reconsideration of the order at Annexure-F. However, the
Deputy Commissioner had rejected to reconsider the order at
Annexure-F as per endorsement dated 14.2.2006 at Annexure-
J. It is the said order at Annexure-J, which has been assailed
in WP No.137/2007 while assailing the order at Annexure-F.
The learned Single Judge has allowed the said writ petition
setting aside the order of the Deputy Commissioner and
directed for re-conveyance of the lands in Sy.Nos.162/A, 165
and 211/B to the petitioner and also directed for transfer of
revenue records in the name of petitioner.
8. Respondents No.3 to 8 have contended that the
learned Single Judge has not taken note of non-maintainability
of the writ petition in the light of the earlier order passed,
whereby WP No.26563/2005 came to be dismissed in the light
WA No. 100054 of 2022
of the memo for withdrawal. It is submitted that in the light of
withdrawal of the earlier writ petition, wherein the order at
Annexure-F was challenged, 2nd round of litigation by way of
WP No.137/2007 was barred by principles of res-judicata and
that the judgment relied on by the respondents in the case of
Sarguja Transport Service Vs. State Transport Appellate
Tribunal, M.P., Gwalior and Others reported in (1987) 1
SCC 5 has not been adverted to and no finding on such
contention has been taken. It is further submitted that in the
light of the revenue entries having been continued in the name
of Shrishailachari and his legal representatives till date, the
order of re-conveyance ought to be made only in the name of
the parties in whose name revenue entries stood and there was
no option for the parties to take any other stand. This aspect
of the matter has not been considered by the learned Single
Judge. It is further submitted that the sale deed was a nominal
sale deed and the execution of the sale deed was also open for
challenge and was not acted upon for all these years and that
the execution of the sale deed was also denied.
9. Learned counsel for the petitioner has contended
that the sale deed remains on record as on the date of order of
WA No. 100054 of 2022
re-conveyance and in the light of sale deed executed in favour
of late Seethamma by Srishailachari, there was no option, but
for reconveyance in favour of legal representatives of
Srishailachari. It is further pointed out that there was no
dispute with regard to mortgage of the lands by Seethamma
and repayment of loan.
10. Heard both sides.
11. Insofar as contention of the private respondents is
concerned, it must be noted that WP No.26563/2005, no doubt,
has called in question the validity of the order at Annexure-F
dated 19/22.12.1988, but was dismissed while observing that
the memo was filed seeking for withdrawal of the writ petition
without prejudice to the rights of the petitioner to pursue the
matter before other forum and after recording such submission
and receiving the memo, writ petition was dismissed
accordingly.
12. Memo filed for withdrawal of WP No.26563/2005 is
self-explanatory and it reads as follows:
In the above case, the petitioner seeks
permission to withdraw the petition.
WA No. 100054 of 2022
Hence, the petition may be dismissed
as withdrawn with liberty to the
approach the appropriate authority in
the interest of justice.
13. It is clear that in the memo for withdrawal, the
petitioner had sought for dismissal of the writ petition as
withdrawn with liberty to approach the appropriate authority.
The order passed in WP No.26563/2005 was also to the effect
that in the light of memo filed and recording the submission for
withdrawal of writ petition, after receiving the memo, writ
petition was dismissed accordingly.
14. Use of the word 'accordingly' has to be given due
significance and would mean that the writ petition is dismissed
in the light of the memo filed, whereby the petitioner had
sought to pursue the matter before other forum. It has to be
noted that after disposal of WP No.26563/2005 on 19.12.2005,
the petitioner had approached the Deputy Commissioner for
reconsideration of the order at Annexure-F and endorsement
dated 14.2.2006 came to be issued, whereby the Authority had
rejected such prayer for reconsideration. Accordingly, the order
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WA No. 100054 of 2022
at Annexure-F and the endorsement at Annexure-J came to be
challenged before this Court in WP No.137/2007.
15. The question of operation of res-judicata in writ
proceedings is not in dispute. The law laid down by the Hon'ble
Apex Court in the cases of Upadhyay & Co. Vs. State of U.P.
and others reported in (1999) 1 SCC 81; Sarguja
Transport Service Vs. State Transport Appellate Tribunal,
M.P., Gwalior & others reported in (1987) 1 SCC 5;
Gulabchand Chhotalal Parikh Vs. State of Gujarat reported
in AIR 1965 SC 1153 and Abhishek Malviya Vs. Additional
Welfare Commissioner & Another reported in (2008) 3
SCC 108 is also not in dispute. The only question as to
whether, in fact, in the present matter, writ petition was
dismissed without liberty.
16. In the light of analysis as made above, it is clear
that WP No.26563/2005 was disposed of in the light of the
memo filed. Accordingly, we hold that it is always open for the
petitioner to approach this Court by way of filing WP
No.137/2007. As noticed above, the order at Annexure-J was
subsequent to the order passed in WP No.26563/2005 in the
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WA No. 100054 of 2022
first round. Accordingly, there was a changed circumstance
permitting the petitioner to approach this Court by way of fresh
writ petition. After the matter was reconsidered if order was
passed in favour of the petitioner, instead of an adverse order
passed at Annexure-J, question of approaching this Court would
not arise. However, in the light of rejection of the prayer of the
petitioner to reconsider the order at Annexure-F as per
endorsement at Annexure-J, right of the petitioner to approach
this Court remains preserved.
17. Insofar as contention of the petitioner that the
revenue entries continued to stand in the name of the
Srishailachari and his legal representatives is concerned, it
must be noted that the order of the learned Single Judge taking
note of the sale deed executed in favour of late Seethamma on
27.12.1968 cannot be faulted. Though the learned counsel for
the respondents would contend that the relationship between
late Seethamma and the petitioner is disputed such matter
could be raised before the appropriate forum and the same
cannot be disputed in the present appeal. Title would take
precedence and conferment of substantive right by way of
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WA No. 100054 of 2022
reconveyance made in favour of persons claiming through
Seethamma ought to be given precedence as compared to a
person in whose name, the revenue entries stand. Accordingly,
we find no reasons to interfere with the impugned order passed
by the learned Single Judge. Appeal is dismissed.
Pending applications, if any, do not survive for
consideration, and accordingly, they are disposed of.
Sd/-
JUDGE
Sd/-
JUDGE
JTR
