Sri S Somasandeep vs Bruhat Bangalore Mahanagara ...
2022 Latest Caselaw 7295 Kant

                              1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 23RD DAY OF MAY, 2022

                        BEFORE

        THE HON'BLE MR. JUSTICE R. NATARAJ

       WRIT PETITION NO.53482/2014 (LB-BMP)


BETWEEN:


1.     SRI. S. SOMASANDEEP
       S/O SRI S. SOMASUNDAR,
       AGED ABOUT 22 YEARS,
       DEAD BY LRs.,

1(a)   SMT. LAKSHMI
       W/O SOMASUNDAR S.
       AGED ABOUT 47 YEARS,

1(b)   SRI. SOM SANKETH S.,
       S/O SOMASUNDAR S,
       AGED ABOUT 22 YEARS,

       BOTH ARE RESIDING AT
       No.22, 1ST CROSS,
       NEAR GNANA PRAKASH SCHOOL,
       BILEKAHALLI,
       BANGALORE-560 076.

       AMENDMENT TO THE CAUSE TITLE
       CARRIED OUT ON 13.01.2022 AS PER
       THE ORDER DATED 07.01.2022

2.     KUM. S. SRISHAILA,
       D/O LATE P. SOMESHWARAPPA,
       AGED ABOUT 43 YEARS,
                             2




       BOTH ARE R/O KATHA NO.246,
       OLD KATHA NO.188,
       TUBARAHALLI VILLAGE,
       VARTHUR HOBLI,
       BANGALORE EAST TALUK,
       BANGALORE CITY.
                                        ...PETITIONERS

(BY SRI. SURESHA, ADVOCATE FOR LRS., OF PETITIONER
NO.1)

AND:

1.     BRUHAT BANGALORE MAHANAGARA PALIKE
       REPRESENTED BY THE COMMISSIONER,
       BANGALORE CITY,
       BBMP OFFICE BUILDING,
       HUDSON CIRCLE,
       BANGALORE-560 009.

2.     THE JOINT COMMISSIONER AND
       APPELLATE AUTHORITY,
       BBMP, MAHADEVAPURA CIRCLE,
       WHITEFIELD MAIN ROAD,
       RHB COLONY, MAHADEVAPURA,
       BANGALORE-560 048.

3.     THE ASSISTANT REVENUE OFFICER,
       HOODI SUB-DIVISION, BBMP,
       OPP. PHOENIX MARKET CITY,
       NEAR MAHADEVAPURA CORPORATION BANK,
       RHB COLONY, MAHADEVAPURA,
       BANGALORE-560 048.

4.     SMT. PUTTAMMA,
       W/O LATE P. SOMESHWARAPPA,
       AGED ABOUT 74 YEARS,

5.     SRI. SOMASHEKAR,
       W/O LATE P. SOMESHWARAPPA,
       AGED ABOUT 39 YEARS,
                             3




     RESPONDENT NOs.4 AND 5 ARE
     R/AT NO.126,
     TUBARAHALLI VILLLAGE,
     WHITEFIELD POST,
     BANGALORE-560 066.
                                      ...RESPONDENTS


(BY SRI. H. DEVENDRAPPA, ADVOCATE FOR RESPONDENT
NOs.1 TO 3;
SRI. G.B.MANJUNATH, ADVOCATE FOR RESPONDENT NOs.4
AND 5)


     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDERS PASSED BY THE 2ND RESPONDENT IN CASE
No.JAAM/MV/A-15/2013-14     DATED        12.11.2014       VIDE
ANNEXURE-H AS THE SAME IS IMPUGNED, PERVERSE AND
CAPRICIOUS AND IS LIABLE TO BE SET ASIDE OR, IN THE
ALTERNATIVE   TO   REMAND   THE       MATTER   TO   THE    2ND
RESPONDENT    TO   DECIDE       THE   MATTER    AFRESH     BY
CONSIDERING ALL THE ASPECTS BY QUASHING THE IMPUGNED
ORDER IN CASE No.JAAM/MV/A-15/2013-14 DATED 12.11.2014
VIDE ANNEXURE-H.


     THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:


                          ORDER

The petitioners claim that Smt. Sonnamma was the

owner of a site bearing old No.188, new No.42 situate at

Tubarahalli village, Varthur Hobli, Bengaluru East Taluk,

and measuring East to West 60 feet and North to South 40

feet (henceforth referred to as "site in question") presently

included within the limits of Bruhat Bengaluru Mahanagara

Palike ('BBMP' for short).

2. Petitioners claim that Smt. Sonnamma was

granted the site in question in the year 1973 and that all

the revenue records stood in her name. They alleged that

Smt. Sonnamma could not personally look after and

manage the site in question and therefore, she executed a

Power of Attorney dated 12.06.1996 in favour of Sri.

S.Somasundar, the father of the petitioner No.1 and the

brother of petitioner No.2. Petitioners further claim that

the said Sri. S.Somasundar executed a gift deed dated

04.10.2012 in their favour and conveyed the site to them.

Following the above, the names of the petitioners were

entered in the assessment records of the BBMP. They

alleged that the respondent Nos.4 and 5 though having no

manner of right, title or interest in respect of the site in

question, challenged the khata made in favour of the

petitioners before the respondent No.3 which was later

entertained as an appeal before the respondent No.2. The

petitioners allege that the respondent Nos.4 and 5 claimed

that Smt. Sonnamma had executed a Will dated

19.11.1992 in favour of Sri P.Someshwarappa, the

husband of respondent No.4 and the father of respondent

No.5. The petitioners contended that Smt. Sonnamma

having once executed the Power of Attorney, had

transferred title, possession and enjoyment of the site in

question to Sri. S.Somasundar, the predecessor of the

petitioners. They allege that the respondent No.2

entertained the appeal and transferred the khata to the

name of the respondent No.4. The petitioners contend that

the respondent Nos.4 and 5 along with others had filed

O.S.No.3977/2013 against Sri Somasundar S., the father

of the petitioner No.1 and petitioner No.2 and another

before the Court of V Additional City Civil and Sessions

Judge, Bengaluru, for partition and separate possession

which was dismissed for non-prosecution on 31.10.2014.

The petitioners therefore have challenged the Order of the

respondent No.2 dated 12.11.2014 cancelling the khata

effected in their names in respect of the site in question

while upholding the change of khata in the name of the

respondent No.4 contending that the Will dated

19.11.1992 propounded by the respondent Nos.4 and 5 is

not proved in accordance with law and the respondent

No.2 has no authority to adjudicate upon the valid

execution of the Will.

3. The learned counsel for petitioners submitted

that the petitioner No.1 herein (since deceased) and

petitioner No.2 filed a suit in O.S. No.9134/2014 for

declaration of title and permanent injunction against the

respondents herein in respect of the site in question before

the Court of X Additional City Civil and Sessions Judge,

Bengaluru, and the said suit came to be dismissed for non-

prosecution in terms of the Order of the Trial Court dated

22.02.2018. Being aggrieved by the same, the petitioner

No.1 herein (since deceased) and petitioner No.2 herein

preferred petition in Misc. No.563/2018 and the same is

pending consideration before the Court of X Additional City

Civil and Sessions Judge, Bengaluru.

4. Per contra, the learned counsel for the

respondent Nos.4 and 5 submits that Smt. Sonnamma

died on 04.05.2011. Later, the name of the respondent

No.4 was entered in the assessment extract relating to

property bearing khata No.1314 while the petitioners had

also got their names entered in respect of the very same

property. He therefore submits that the respondent Nos.4

and 5 initiated proceedings under Section 114A of the

Karnataka Municipal Corporations Act, 1976. He thus

submitted that the respondent No.2 was justified in

ordering entry of the name of the respondent No.4 in the

assessment register in respect of the site in question.

5. It is not in dispute that the site in question was

granted to Smt. Sonnamma. The predecessor of the

petitioners, Sri. S.Somasundar, was admittedly not the

class-I legal heir of Smt. Sonnamma but was the nephew

of Smt. Sonnamma. The gift deed dated 04.10.2012

executed in favour of the petitioners was by Sri.

S.Somasundar in his individual capacity and not as the

power of Attorney of Smt. Sonnamma. Therefore, the

contention of the petitioners that they derived title to the

site in question is highly improbable. This is fortified by the

recitals in the gift deed dated 04.10.2012 where Sri.

S.Somasundar claims that the site in question was his self

acquisition and there was no proof as to how he acquired

title to the site in question. He definitely could not have

derived title under the alleged power of attorney dated

12.06.1996. Be that as it may, respondent Nos.4 and 5

claim title to the site in question based on the aforesaid

Will dated 19.11.1992 and in view of the Judgment of a

Full Bench of this Court in C.N. Nagendra Singh v. The

Special Deputy Commissioner, Bangalore District and

Others [ILR 2002 KAR 2750 (FB)], the respondent No.2

could not have adjudicated upon the validity of the Will. In

addition, the parties are already litigating before the Civil

Court in Misc.No.563/2018, which is pending consideration

before the Court of X Additional City Civil and Sessions

Judge, Bengaluru, and therefore, the entries in the

assessment register should be based upon the outcome of

the civil proceedings in Misc.No.563/2018.

6. In that view of the matter, this Writ Petition is

allowed in part. The impugned Order passed by the

respondent No.2 dated 12.11.2014 (Annexure-H to the

petition) in Case No.dAD/ªÀĪÀ/C-15/2013-14 is set aside and

the assessment register extract in respect of the site in

question is ordered to be left blank. The respondent No.3

is directed to notify in the khata register about this Order,

so that third parties do not enter into any transaction with

the petitioners or the respondent Nos.4 and 5.

7. The respondent No.3 is directed to take steps

to enter the name/s of the person/s in the khata register

of the site in question depending upon the outcome of

Misc. No.563/2018 pending before the Court of X

Additional City Civil and Sessions Judge, Bengaluru. If the

said petition is allowed and the suit in O.S No.9134/2014

is restored, then the name/s of the person/s who succeed

in the said suit shall be entered in the khata register of the

site in question.

Sd/-

JUDGE

sma