Karnataka High Court
Sri. Basavaraj S/O Irappa ... vs The State Of Karnataka on 17 July, 2023
Bench: S.Vishwajith Shetty
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WP No. 102208 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 17TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY
WRIT PETITION NO. 102208 OF 2023 (KLR-RES)
BETWEEN:
1. SRI. BASAVARAJ S/O IRAPPA KURAGUND,
AGE. 38 YEARS, OCC. GOVT. TEACHER,
R/O. UPPINA BETAGERI-5800206, JANATA PLOT,
TQ & DIST. DHARWAD, NOW RESIDING AT
ANNIGERI, TQ. ANNIGERI-582201, DIST. DHARWAD.
2. SMT. FAKKIRAVVA W/O RUDRAPPA KURAGUND,
AGE. 53 YEARS, OCC. HOUSEHOLD WORK,
R/O. NEAR VEERADRESHWAR TEMPLE,
UPPINA BETAGERI-580206, TQ & DIST. DHARWAD.
3. SMT. ANNAPURNA W/O ASHOK MATTI,
AGE. 32 YEARS, OCC. HOUSEHOLD WORK,
VISHAL R/O. KARIKATTI-591126, TQ. SAVADATTI,
NINGAPPA
DIST. BELAGAVI.
PATTIHAL
Digitally signed by 4. SMT. MAHADEVI W/O HANUMANTHAPPA BYAHATTI,
VISHAL NINGAPPA
PATTIHAL AGE. 27 YEARS, OCC. HOUSEHOLD WORK,
Date: 2023.07.19 R/O. NEAR VEERADRESHWAR TEMPLE,
11:32:23 +0530
UPPINA BETAGERI-580206, TQ & DIST. DHARWAD.
... PETITIONERS
(BY SRI. S L MATTI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
DEPARTMENT OF REVENUE,
VIDHAN SOUDHA, BENGALURU,
REPRESENTED BY ITS SECRETARY.
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WP No. 102208 of 2023
2. DEPUTY COMMISSIONER,
DHARWAD, DIST. DHARWAD.
3. ASSISTANT COMMISSIONER,
DHARWAD DIVISION, DIST. DHARWAD.
4. SRI. MALLAPPA @ MALLESHAPPA S/O ADIVEPPA
KURAGUND, AGE. 78 YEARS, OCC. AGRICULTURE,
R/O. UPPINA BETAGERI-580026, JANATA PLOT
TQ & DIST. DHARWAD.
5. SRI. SALEEM S/O IBRAHIMSAB JALAGAR,
AGE. & OCC. NOT KNOWN TO THE PETITIONERS,
R/O. GOKUL ROAD, HUBBALLI-580030,
DIST. DHARWAD.
6. THE TAHASILDAR,
DHARWAD TALUK, DHARWAD.
... RESPONDENTS
(BY SRI. VINAYAK S KULKARNI, AGA FOR R1, R2, R3 & R6;
SRI. A P MURARI, ADVOCATE FOR R4;
R5 NOTICE DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO A
WRIT OF CERTIORARI BY QUASHING AN ORDER PASSED BY
THE ASSISTANT COMMISSIONER, DHARWAD RESPONDENT NO.
3 IN RTS/AP/ID/81/2021 DATED 27/07/2022 VIDE ANNEXURE-
E, IN THE ENDS OF JUSTICE AND EQUITY & ETC.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 102208 of 2023
ORDER
1. The petitioners are before this Court challenging the
order passed by the Assistant Commissioner, Dharwad dated
27.07.2012 vide Annexure-E and the order passed by the
Deputy Commissioner, Dharwad dated 16.03.2023 vide
Annexure-F.
2. Heard the learned counsel for the parties.
3. Facts leading to filing of this petition narrated
briefly are; the petitioners claim that the 4th respondent is their
joint family member. It is the case of the petitioners that there
was a partition between the 4th respondent, father of the 1st
petitioner, husband of the 2nd petitioner and father of the 3rd
and 4th petitioners in respect of the land bearing Block No.19/1
measuring 3 acres 7 guntas and Block No.19/2A measuring 4
acres 12 guntas situated at Hanamanakoppa village, Annigeri
taluk, district Dharwad and pursuant to the said partition, the
mutation entries in respect of the lands in question were
changed in view of the waradi submitted by the parties to the
alleged partition that had taken place in the year 1998.
Pursuant to such a waradi, the Jurisdictional Revenue Officer
had passed an order dated 20.03.1999 in proceedings bearing
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M.E.No.1782. Assailing the same, the 4th respondent had
earlier filed an appeal under Section 136(2) of the Karnataka
Land Revenue Act, 1964 (for short, 'the Act of 1964') before
the Assistant Commissioner and the said appeal was dismissed
by order dated 24.10.2011 vide Annexure-B. Subsequently, the
4th respondent had filed a suit in O.S.No.444/2012 before the
Principal Civil Judge and JMFC, Dharwad with a prayer to
declare his title over the lands in question and also had
challenged the order dated 20.03.1999 passed in M.E.No.1782.
The said suit was dismissed by the Jurisdictional Civil Court by
judgment and decree dated 20.10.2012. Thereafter it appears
that the 4th respondent had once again filed an appeal before
the Assistant Commissioner under Section 136(2) of the Act of
1964, which was allowed by the Assistant Commissioner vide
Annexure-E dated 27.07.2022. The petitioners had challenged
the said order dated 27.07.2022 before the Deputy
Commissioner, who has dismissed the revision vide Annexure-F
dated 16.03.2023. Assailing the orders at Annexures-E and F
passed by the Assistant Commissioner as well as the Deputy
Commissioner, the petitioners are before this Court.
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4. Learned counsel for the petitioners submits that the
4th respondent had filed an appeal under Section 136(2) of the
Act of 1964 before the Assistant Commissioner challenging the
order dated 20.03.1999 passed in M.E.No.1782 and the said
appeal was dismissed by the Assistant Commissioner. Without
challenging the said order, the petitioners could not have once
again preferred an appeal before the Assistant Commissioner.
He submits that pursuant to the dismissal of the First Appeal
filed before the Assistant Commissioner, the 4th respondent had
initiated O.S.No.444/2012 before the Competent Civil Court
seeking decree of declaration of his title and also had
challenged the validity of order dated 20.03.1999 passed in
M.E.No.1782 and the said suit was also dismissed. Therefore
the Assistant Commissioner as well as the Deputy
Commissioner could not have passed orders impugned on the
face of the judgment and decree passed in O.S.No.444/2012.
5. Per contra, learned counsel appearing for the 4th
respondent submits that the order dated 20.03.1999 passed in
M.E.No.1782 was prima facie bad in law and the said order was
based on an unregistered disputed document. He submits that
the said order was void ab initio. After dismissal of the appeal
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by the Assistant Commissioner in the year 2011, on the basis
of the observation made in the orders passed by the Assistant
Commissioner, the 4th respondent had taken necessary steps to
cancel phot hissas made in the lands in question and had
approached the Deputy Director of the Lands Records in this
regard by filing an appeal. Pursuant to the orders passed in the
said proceedings, the 4th respondent has once again
approached the Assistant Commissioner under Section 136(2)
of the Act of 1964 and therefore no fault can be found in the
orders passed by the Assistant Commissioner.
6. I have given my anxious consideration to the
arguments addressed on both sides and also perused the
material on record.
7. It is not in dispute that assailing the order dated
20.03.1999, the 4th respondent had earlier filed an appeal
under Section 136(2) of the Act of 1964, which was dismissed
by the Assistant Commissioner vide order at Annexure-B dated
24.10.2011. The said order has attained finality. Thereafter the
4th respondent had approached the Jurisdictional Civil Court in
O.S.No.444/2012 with a prayer to grant decree declaring his
title over the lands in question and a challenge was also made
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to the order dated 20.03.1999 passed in M.E.No.1782, in the
said suit. The said suit was dismissed by the Civil Court vide
judgment and decree dated 20.10.2012 as per Annexure-D and
the said judgment and decree has attained finality. When the
4th respondent has suffered a decree in O.S.No.444/2012,
wherein he had questioned the validity of the order dated
20.03.1999 passed in proceedings bearing M.E.No.1782, I am
of the considered view that the Assistant Commissioner and the
Deputy Commissioner could not have passed the order
impugned in this writ petition placing reliance on the orders of
the Deputy Director of Land Records in an appeal filed by the
4th respondent challenging the phot hissa made in the lands in
question pursuant to the orders dated 20.03.1999 in
M.E.No.1782. The judgment and decree in O.S.No.444/2012
has been passed in suit filed by the 4th respondent and the
same is binding on the 4th respondent. The 4th respondent
appears to have suppressed the fact of he suffering a decree in
O.S.No.444/2012 before the Civil Court, in the appeal
proceedings that was subsequently initiated by him before the
Assistant Commissioner under Section 136(2) of the Act of
1964. Under the circumstance, I am of the considered view that
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the impugned orders passed at Annexures-E and F dated
27.07.2012 and 16.03.2023 respectively by the Assistant
Commissioner and the Deputy Commissioner, cannot be
sustained. Accordingly, the following:
ORDER
Writ petition is allowed.
The impugned orders at Annexures-E and F dated
27.07.2012 and 16.03.2023 respectively passed by the
Assistant Commissioner and the Deputy Commissioner are
quashed.
Sd/-
JUDGE
Kgk/Ct:Bck
