Smt Selva Mary vs The State Of Karnataka
2023 Latest Caselaw 58 Kant

                          1

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 2ND DAY OF JANUARY 2023

                       PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                         AND

     THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

            W.A.No.1166/2022 (KLR-RES)

BETWEEN:

SMT. SELVA MARY
D/O LATE SHANTHAPPA
AGED ABOUT 56 YEARS
RESIDING AT BYRATHI VILLAGE
BIDARAHALLI HOBLI
BENGLAURU EAST TALUK
BEGLAURU - 560 077.                        ...APPELLANT

(BY SRI A.G. SHIVANNA, SR. COUNSEL FOR
    SRI Y. RAJENDRA PRASAD SHETTY, ADV.)

AND:

1.     THE STATE OF KARNATAKA
       REP. BY ITS SECRETARY/
       COMMISSIONER
       REVENUE DEPARTMENT
       GOVERNMENT OF KARNATAKA
       VIKAS SOUDHA
       DR. AMBEDKAR VEEDHI
       BENGALURU - 560 001.

2.     THE DEPUTY COMMISSIONER
       AND DISTRICT MAGISTRATE
       BENGLAURU URBNA DISTRICT
       KANDAYA BHAVANA, K.G. ROAD
       BENGLAURU - 560 009.
                             2

3.   THE ASSISTANT COMMISSIONER
     BENGLAURU NORTH SUB DIVISION
     KANDAYA BHAVANA, K.G.ROAD
     BENGLAURU - 560 009.

4.   THE TAHSILDAR
     BENGLAURU EAST TALUK
     K.R. PURAM
     BENGLAURU - 560 036.

5.   SMT. KANIKYA MARY
     D/O ANTHONAPPA
     W/O LAZER
     AGED ABOUT 56 YEARS
     R/AT NO.1401, VICTORIA BUILDING
     BEGUR VILLAGE AND POST
     BENGLAURU SOUTH TALUK
     BENGLAURU - 560 068.                  ...RESPONDENTS

(BY SRI C.M. KEMPE GOWDA, ADV., FOR C/R-5;
 SMT. NAMITHA MAHESH B.G., AGA FOR R-1 TO R-4)

     THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE
ORDER DATED 03/11/2022 PASSED BY LEARNED HON BLE
SINGLE JUDGE IN WP NO.10211/2020 BY ALLOWING THE
WRIT PETITION FILED BY APPELLANT AS PRAYED.


     THIS APPEAL COMING ON FOR PRELIMINARY HEARING
THIS DAY, VISHWAJITH SHETTY          J.,   DELIVERED THE
FOLLOWING:


                    JUDGMENT

This intra court appeal is filed challenging the order

dated 03.11.2022 passed by the learned Single Judge of

this Court in W.P.No.10211/2020.

2. Heard the learned Counsel appearing for the

parties and also perused the material available on record.

3. Brief facts of the case leading to filing of this

intra court appeal are, that the appellant had filed

W.P.No.10211/2020 before this Court assailing the order

dated 06.08.2020 passed by the Deputy Commissioner in

exercise of his power under Section 136(3) of the

Karnataka Land Revenue Act, 1964, wherein certain

entries in the revenue records of the property in question

were directed to be mutated on the basis of the two gift

deeds dated 21.03.2022, respectively. It is the case of

the appellant that there was a registered sale deed dated

14.07.2006 executed by the donor in respect of the

property in question in her favour, and therefore, the

entries in respect of the property in question was

required to be mutated in her name as the said sale deed

is executed after the gift deeds. The learned Single Judge

has dismissed the writ petition reserving liberty to the

appellant to work out her remedy in an appropriate suit.

Being aggrieved by the said order, the petitioner has

preferred this appeal.

4. Learned Senior Counsel appearing for the

appellant submits that respondent no.5 had earlier filed

an appeal before respondent no.3 in R.A.No.181/2012-13

and the said appeal was withdrawn by respondent no.5

without there being any liberty to file a fresh appeal and

after a lapse of five years, a fresh appeal was filed by

respondent no.5 in R.A.No.212/2017-18 and in the said

appeal, the appellant was not made a party and behind

the back of the appellant, the order was passed and

therefore, the learned Single Judge ought to have

allowed the writ petition.

5. Per contra, learned Counsel appearing for

respondent no.5 has argued in support of the impugned

order, however, he does not dispute the fact that the

appellant was not made a party to the appeal filed in

R.A.No.212/2017-18 by respondent no.5.

6. The appellant has specifically contended before

this Court that respondent no.5 had earlier filed an

appeal in R.A.No.181/2012-13 which was withdrawn by

her and after a lapse of five years, she has filed a fresh

appeal without even making the appellant as party to the

said appeal. The said contention of the appellant is not

denied by respondent no.5 and in fact, learned Counsel

for respondent no.5 has fairly submitted that the

appellant was not made a party to the appeal which was

subsequently filed by respondent no.5. The order passed

in the appeal was in violation of the principles of natural

justice. The learned Single Judge has failed to appreciate

this aspect of the matter. Therefore, we are of the

considered view that the order passed by the learned

Single Judge cannot be sustained. Accordingly, the

following order:

7. The writ appeal is allowed. The order dated

03.11.2022 passed by the learned Single Judge in

W.P.No.10211/2020 is set aside. Consequently, the writ

petition is allowed. The order dated 06.08.2020 passed

by respondent no.2 in Revision Petition No.108/2018 and

the order dated 22.02.2018 passed by respondent no.3

in R.A.No.212/2017-18 are quashed. The matter is

remitted back to respondent no.3 with a direction to

implead the appellant herein as party in

R.A.No.212/2017-18 and thereafter dispose of the appeal

afresh after giving an opportunity of hearing to all the

parties in the said appeal.

Sd/-

JUDGE

Sd/-

JUDGE KK