Karnataka High Court
Sri.Chandrashekarayya S/O. ... vs Sri.Shadaksharayya S/O. ... on 23 August, 2023
Bench: M.Nagaprasannapresided Bymnpj
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WP No. 116927 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 23RD DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 116927 OF 2019 (KLR-RR/SUR)
BETWEEN:
1. SRI.CHANDRASHEKARAYYA
S/O. CHANNAYYA NARGUND
@ NARAGUNDMATH
AGE : 52 YEARS,
OCC : AGRICULTURE AND BUSINESS,
R/O : LAKKUNDI
NOW AT HATALAGERI
TQ AND DIST : GADAG
2. SRI.MAHALINGAYYA CHANNAYYA NARGUND
@ NARAGUNDMATH
AGE : 50 YEARS,
VISHAL OCC : AGRICULTURE AND BUSINESS,
NINGAPPA R/O : LAKKUNDI
PATTIHAL
Digitally signed by
NOW AT HATALAGERI
VISHAL NINGAPPA
PATTIHAL TQ AND DIST : GADAG
Date: 2023.08.26
12:08:26 +0530 ...PETITIONERS
(BY SMT. NANDINI SOMAPUR, ADVOCATE)
AND:
1. SRI.SHADAKSHARAYYA
S/O. VEERAYYA NARGUND
@ NARAGUNDMATH
AGE : 50 YEARS,
OCC : AGRICULTURE AND BUSINESS,
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WP No. 116927 of 2019
R/O : LAKKUNDI
NOW AT HATALAGERI
TQ AND DIST : GADAG
2. DEPUTY COMMISSIONER,
GADAG, DIST. GADAG.
3. ASSISTANT COMMISSIONER,
GADAG, DIST. GADAG.
4. TAHASILDAR,
GADAG, DIST. GADAG.
...RESPONDENTS
(BY SRI. MADANMOHAN M. KHANNUR, AGA FOR R2 TO R4,
SRI.K.L.PATIL & SRI.S.S.BETURMATH, ADV. FOR R1)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT OF
CERTIORARI, SETTING ASIDE THE IMPUGNED ORDERS PASSED
BY THE DEPUTY COMMISSIONER GADAG IN
NO.RTS/RA/SR/02/2018-19 DATED 30-10-2019 AND THE
ORDER PASSED BY THE ASSISTANT COMMISSIONER GADAG IN
NO.RTS/AP/39/2015-16 DATED 19-1-2018, VIDE ANNEXURES
A AND B AND CONFIRM THE ORDER OF THE TAHASILDAR
APPROVING MR NO.H 80/14-15.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 116927 of 2019
ORDER
1. The petitioner is before this Court calling in
question the order of the Assistant Commissioner dated
19.01.2018 which sets aside the mutation made by the
Tahasildar in favour of the petitioner and the order of the
Deputy Commissioner dated 30.10.2019 which affirms the
order of the Assistant Commissioner.
2. Heard Smt.Nandini Somapur appearing for the
petitioners and the learned counsel for the respondents.
3. Facts in brief, germane are as follows:
4. One Veerayya files a suit in O.S. No.114/2004.
The suit comes to be decreed and against the decree in
O.S. No.53/2006, the respondent prefers a regular appeal
in R.A. No.7/2018 which also comes to be dismissed. This
is called in question by the respondent in RSA
No.100626/2014. During the pendency of the appeal, the
name of the petitioners had been mutated in terms of the
Will that was the subject matter of the aforesaid
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proceedings. The Co-ordinate Bench in terms of the order
dated 27.10.2016 disposes the RSA by the following order:
6. Learned counsel for the appellant contends
that both the Courts below committed an error in
misreading the evidence on record. That the sole
plaintiff died during the pendency before the First
Appellate Court. In terms of the Will, the legal
representatives were brought on record. Hence,
it is pleaded that the appeal be allowed by
setting aside the judgment.
7. On hearing learned counsels, I'am of the
considered view that there is no merit in this
appeal.
8. The plaintiff is the father. The defendants are
the sons. In view of the consistent interference
by the defendants, the instant suit was filed. The
plea of the plaintiff is that fraud has been played
by entering the name of the defendants is
substantiated by the material evidence on
record. There was no intention by the plaintiffs to
create a partition of the properties. The findings
of fact recorded by both the Courts below are
just and appropriate and do not call for any
interference.
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9. It is further contended by the
appellant's counsel that the legal
representative of the plaintiff claims to be
so on the basis of an alleged 'Will' said to
have been executed in their name vide Ex P-
12. The grievance of the appellant's counsel
is that a finding has been recorded by the
First Appellate Court to the extent that the
property has been bequeathed to the legal
representative of the plaintiff Therefore, he
is of the view that such a finding would
affect his legal right in contesting the 'Will'
in a subsequent suit.
10. Having heard learned counsel, I'am of
the considered view that such an
apprehension is ill-founded. The finding
recorded in para 25 of the judgment of the
First Appellate, Court cannot be held against
the defendants. There was no issue with
regard to the validity of the Will Even
though the "Will' was produced vide Ex.P-
12, the same was intended only to show the
legal representatives. In the absence of any
finding regarding the validity of the Will',
any finding recorded by the First Appellate
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Court on the Will' will not have any binding
on the right of the defendants to institute a
subsequent suit challenging the Will". No
such finding can come in the way of the
defendants only because there was no issue
regarding the same and therefore, any
finding in the absence of any issue will not
have any force of law.
Under these circumstances, l'am of
the considered view that the entire appeal
revolves only around facts. I do not find
any substantial question of law arises for
consideration. Consequently, the appeal
being devoid of merit is dismissed."
5. Pursuant to the order passed by the Co-
ordinate Bench, no steps have been taken by the
petitioner, liberty for which was granted by the Co-
ordinate Bench. Having taken no steps in terms of the
order passed by the Co-ordinate Bench, no fault can be
found with the impugned orders passed by the Assistant
Commissioner and the Deputy Commissioner which are
only in furtherance of what this Court had directed.
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6. In the light of the aforesaid order passed by
this court, no fault can be found with the order of the
Deputy Commissioner or the Assistant Commissioner as
the case may be. Reserving liberty to the petitioner to act
in accordance with what the Co-ordinate Bench ordered
supra.
The petition is disposed.
Sd/-
JUDGE
RSH
