Karnataka High Court
Sri S B Manjunath vs The Executive Officer on 24 May, 2022
Bench: R. Nataraj
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF MAY, 2022
BEFORE
THE HON'BLE MR.JUSTICE R.NATARAJ
WRIT PETITION NO.11820 OF 2013 (LB - RES)
BETWEEN:
SRI. S. B. MANJUNATH,
S/O LATE BORE GOWDA,
AGED ABOUT 55 YEARS,
BORAPURA VILLAGE,
KIKKERI HOBLI, K R PET TALUK,
MANDYA DISTRICT.
...PETITIONER
(BY SRI.ABHINAY Y.T., ADVOCATE)
AND:
1. THE EXECUTIVE OFFICER,
TALUK PANCHAYATH,
K R PET.
2. THE SECRETARY
KIKKERI GRAM PANCHAYATH,
KIKKERI.
3. SMT. LAKSHMAMMA,
W/O LATE K N RAJE GOWDA,
MAJOR,
4. SRI. K. R. RAMALINGE GOWDA,
S/O LATE K N RAJE GOWDA,
MAJOR,
5. SRI. K. R. INDRA KUMAR,
S/O LATE K N RAJE GOWDA,
MAJOR,
2
6. SRI. K. R. MAHESH,
S/O LATE K N RAJE GOWDA,
MAJOR,
ALL R/AT KIKKERI VILLAGE,
KIKKERI HOBLI, K R PETE TALUK,
MANDYA DISTRICT - 570 014.
...RESPONDENTS
(BY SRI.ADITYA BHAT, ADVOCATE FOR
M/S.G.S.BHAT AND ASSTS., ADVOCATES FOR C/R3 -6;
R1 AND R2 SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 23RD FEBRUARY 2013 PASSED BY THE 1ST
RESPONDENT IN APPEAL NO.6/2012 VIDE ANNEXURE - J AND
DIRECT THE 1ST RESPONDENT TO ENSURE THAT THE PROPERTY
OF THE PETITIONER MEASURING AN EXTENT OF 9' X 27' IS NOT
INCLUDED IN THE NAME OF THE RESPONDENTS 3 TO 6 AS
HELD BY THE CIVIL COURTS WHILE REGISTERING THE KHATHA
IN FAVOUR OF RESPONDENTS 3 TO 6 AND WHILE ACCORDING
PERMISSION FOR THEM TO ERECT A STRUCTURE.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner has sought for a writ in the nature of
certiorari to quash the order dated 23.02.2013 passed by
respondent No.1 in Appeal No.6/2012 and to direct
respondent No.1 to ensure that the property of the
petitioner measuring 9 feet X 27 feet is not included in the
names of respondent Nos.3 to 6 while registering their
names in the Assessment Register Extract, in view of the
Judgment and Decree passed by the Civil Judge (Jr.Dn.)
and JMFC, K.R.Pet in O.S.No.183/1991.
2. The petitioner claims that at a partition on
27.09.1975 between the sons of Nanjundegowda, the
eldest son K.N.Nanjegowda was allotted certain properties,
of which, item No.10 was a house property that measured
as 36 feet X 27 feet. Contemporaneously the youngest son
of Nanjundegowda namely Rajegowda was allotted certain
properties, one of which was a house property measuring
105 feet X 30 feet. The property that fell to the share of
Nanjegowda was sold to the father of the petitioner in
terms of a sale deed dated 13.01.1988. Thereafter, a suit
was filed in O.S.No.183/1991 by K.N.Rajegowda against
the father of the petitioner for declaration and injunction in
respect of an area measuring 120 feet X 39 feet which was
larger than what he derived under the partition deed dated
27.09.1975. The suit after contest was dismissed and an
appeal in R.A.No.5/2000 was filed. During the pendency
of the regular appeal, the children of Rajegowda had
entered into a partition partitioning a larger extent of
property measuring 120 feet X 39 feet. Following this
partition, the katha of the property was transferred to the
name of the private respondents vide M.R.No.70/2012-13.
After the death of the father of the petitioner, the name of
the petitioner was entered in the assessment register to an
extent of 36 feet X 27 feet in line with the sale deed dated
13.01.1988. R.A.No.5/2000 filed by Rajegowda, which was
later pursued by his children was dismissed and became
final. Notwithstanding the above, the children of
Rajegowda sought for sanction of a building plan and
license to construct a building on an area measuring
120 feet X 39 feet. The respondent No.2 without verifying
the above, sanctioned the plan which became the subject
matter of an appeal under Section 269 of the Panchayath
Raj Act, 1993. The respondent No.1 being the appellate
authority though noticed that the names of the respondent
Nos.3 to 6 were entered in respect of a larger extent but
yet refrained from exercising jurisdiction and directed the
parties to approach the civil court. Being aggrieved by the
aforesaid order, the present writ petition is filed.
3. This Court in terms of the order dated
11.03.2013, prima facie found from the sanctioned plan
that a portion of the proposed construction by the
respondent Nos.3 to 6 encroached into the property of the
petitioner and therefore, restrained the respondent Nos.3
to 6 from putting up construction over the area reserved
for construction of shop No.1 and permitted the
respondents to construct Nos.2 and 3.
contends that they have not encroached into the property
of the petitioner and therefore, continuance of the order
dated 11.03.2013 is unwarranted.
5. The fact that partition was entered into
between the predecessor in title of the petitioner as well as
the predecessor of the respondent Nos.3 to 6 is not in
dispute. Since the aforesaid partition deed is duly
registered, it was incumbent upon the authorities to enter
the name of predecessors of the petitioner in the
assessment register of the property in question. The father
of the petitioner having purchased the said property form
the father of respondent Nos.3 to 6, was entitled to get his
name entered in the assessment register extract
maintained by the respondent No.2. It is also evident from
the documents placed on record that the name of the
father of the petitioner was entered in the assessment
register extract in respect of an area measuring 36 feet X
27 feet, based on the sale deed dated 13.01.1988. Now
that the suit filed by K.N.Rajegowda who is the
predecessor of the respondent Nos.3 to 6 for declaration of
title in respect of 120 feet X 39 feet is dismissed and is
confirmed in R.A.No.5/2000, they cannot claim any title in
respect of any area more than 105 feet X 30 feet. If
respondent No.2 has registered the name of the
respondent Nos.3 to 6, in respect of an area exceeding of
105 feet X 30 feet, the same need correction and has to be
restricted to 105 feet X 30 feet. Likewise, the plan
sanctioned enabling the respondent Nos.3 to 6 to put up
construction in an area measuring 120 X 39 feet has to be
restricted to 105 feet X 30 feet. In order to achieve the
aforesaid, it is appropriate that the respondent No.2 is
directed to reconsider the case afresh by physically
inspecting the property of the petitioner as well as
respondent Nos.3 to 6 and identify the limits of their
respective properties based on the sale deed dated
13.01.1988 as well as the partition deed dated 27.09.1975
and restrict the katha to their respective properties as well
as the license and plan to put up construction. While doing
so, the respondent No.2 shall take into account the order
dated 11.03.2012 passed by this Court in this writ petition.
6. In view of the above, this writ petition is
allowed in part and the impugned order passed by
respondent No.1 is set aside. The respondent No.2 is
directed to physically measure the property of the
petitioner as well as the respondent Nos.3 to 6 and effect
katha based on the sale deed dated 13.01.1988 in favour
of the petitioner and as per the partition deed dated
27.09.1975 in respect of the petitioner and respondent
Nos.3 to 6. The respondent No.2 shall also take proper and
effective steps to restrict the plan and license to put up
construction as per their respective ownership. The
petitioner and respondent Nos.3 to 6 are directed to
appear before the respondent No.2 on 30.06.2022 at
03.00 pm and furnish all the documents as referred above.
The respondent No.2 shall consider the same and pass
appropriate orders within a period of three months from
30.06.2022.
Sd/-
JUDGE
NR/-
