Gangaji Malakaji Parandekar vs Mallappa Sanganabasappa ...
2023 Latest Caselaw 7767 Kant

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                                                                  NC: 2023:KHC-D:13367
                                                                       WP No. 101261 of 2023




                                 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                       DATED THIS THE 17TH DAY OF NOVEMBER, 2023

                                                         BEFORE
                                     THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
                                     WRIT PETITION NO. 101261 OF 2023 (KLR-RR/SUR)

                                BETWEEN:

                                GANGAJI MALAKAJI PARANDEKAR
                                AGE: 64 YEARS, OCC: PRIVATE WORK,
                                R/O. KITTUR, DIST: BELAGAVI.
                                                                        ...PETITIONER
                                (BY SRI. ABHINANDAN M. GUNDAWADE, ADVOCATE)

                                AND:

                                1.    MALLAPPA SANGANABASAPPA TUMBAGERI
                                      AGE: YEARS, OCC:
                                      R/O. KITTUR, DIST: BELAGAVI.

                                2.    DISTRICT COMMISSIONER
                                      DC-OFFICE, BELAGAVI, BELAGAVI.

                                3.    ASSISTANT COMMISSIONER,
                                      AC-OFFICE, BAILHONGAL, DIST: BELAGAVI.
             Digitally signed
             by
             MOHANKUMAR
MOHANKUMAR
B SHELAR
             B SHELAR
             Date:
                                4.  TAHASHILDAR
             2023.11.20
             10:58:17 +0530         TAHASHILDAR OFFICE-KITTUR, DIST: BELAGAVI.
                                                                          ...RESPONDENTS
                                (BY SRI. DINESH M. KULKARNI, ADV. FOR R1,
                                SRI. SHIVAPRABHU HIREMATH, AGA FOR R2 TO R4)

                                     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
                                AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL
                                FOR THE RECORDS FROM THE OFFICE OF THE DEPUTY
                                COMMISSIONER, BELAGAVI, OF THE CASE BEARING NO.
                                RB/RTA/29/2022-23 PRODUCED AT ANNEXURE-H AND ISSUE A
                                WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER WRIT
                                SETTING ASIDE THE IMPUGNED ORDER DATED 06.09.2022,
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                                        NC: 2023:KHC-D:13367
                                            WP No. 101261 of 2023




PASSED BY THE DEPUTY COMMISSIONER, BELAGAVI, IN CASE
BERING NO.RB/RTA/29/2022-23, PRODUCED AT ANNEXURE-F.

     THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:

                                ORDER

The petitioner is questioning the order passed by the Deputy

Commissioner, Belagavi. In terms of the impugned order, the

Deputy Commissioner in exercise of the power under Section

136(3) of the Karnataka Land Revenue Act, 1964 has allowed the

revision petition and set-aside the order passed by the Assistant

Commissioner who had cancelled the mutation certified by the

Tahsildar in favour of the 1st respondent to this petition.

2. Certain other facts necessary for adjudication of the case

can be summarized as under:

- Petitioner claims to have purchased certain properties

under registered sale deed dated 25.06.1998. Based on the sale

deed, petitioner's name is entered in the property records. The

vendor's sisters filed a suit challenging the sale deed in

O.S.148/2008 on the premise that the sale deed does not bind the

interest of the plaintiffs. The suit was decreed holding that the

NC: 2023:KHC-D:13367 WP No. 101261 of 2023

three sisters of the vendor have 3/18th share (1/18th share each) in

the suit schedule properties. The decree has attained finality.

Final Decree Proceedings (FDP) is initiated in FDP No.13/2005 on

the file of Civil Judge, Junior Division, Bailhongal. The FDP is

concluded in terms of the order dated 30.03.2012. The petitioner

who claims to have purchased the property prior to the institution of

the suit participated in the FDP as he was also a party to the suit.

The petitioner's claim to demarcate his share is not entertained by

the FDP Court. One more suit was filed in O.S.125/98 by the 1st

present 1st respondent who claimed to be the son of the petitioner's

vendor. The said suit is dismissed holding that the present 1st

respondent, who was the plaintiff in the said suit is not the son of

the petitioner's vendor. The said decree has attained finality.

3. Though it is declared that the contesting 1st respondent of

this petition is not the son of the petitioner's vendor, it appears that

the 1st respondent created a document styled as partition deed and

wherein he claims that petitioner's vendor allotted certain

properties to him. It is stated that the sisters of the petitioner's

vendor are also parties to the said proceeding. Petitioner claims

that his signature is forged on the said document. Based on the

NC: 2023:KHC-D:13367 WP No. 101261 of 2023

said partition deed, the 1st respondent moved an application to

enter his name in the property records. The Tahsildar has

accepted the claim and certified the mutation based on the alleged

partition deed dated 19.07.2019. The said document is

unregistered.

4. Aggrieved by the said order, the present petitioner has

filed an appeal before the Assistant Commissioner. The Assistant

Commissioner has allowed the appeal and did not accept the claim

based on unregistered partition.

5. The 1st respondent filed a revision before the Deputy

Commissioner. The Deputy Commissioner has ordered

certification of mutation entry on the premise that the sale deed in

favour of the petitioner is declared to be null ad void by the Civil

Court. Aggrieved by the said order, the petitioner is before this

Court.

6. Learned counsel for the petitioner would submit that the

entry in the name of the 1st respondent is contrary to the decree

passed by the Civil Court which has held that 1st respondent is not

the son of the petitioner's vendor.

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7. The judgment in O.S.125/1998 is produced at Annexure

- L and the decree at Annexure - L1. From the aforementioned

records, it is apparent that Civil Court has held that 1st respondent

is not the son of the petitioner's vendor. This being the position, 1st

respondent cannot claim any right in the property purchased by the

petitioner or the petitioner's vendor, unless there is a registered

document transferring the valid title in favour of the 1st respondent.

In the absence of any such registered document, 1st respondent

does not acquire any title in the property sold by the petitioner's

vendor or the property belonging to the family of the petitioner's

vendor as the 1st respondent is not a member of the family of the

petitioner's vendor. The Tahsildar was not justified in accepting

the claim based on unregistered document submitted by the 1st

respondent. The Assistant Commissioner is justified in allowing the

appeal and canceling the mutation.

8. The Deputy Commissioner in the revision petition has

taken a view that the sale deed in favour of the petitioner is

declared to be null and void. That observation is incorrect.

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9. In the suit filed by the sisters of the petitioner's vendor,

the trial Court has granted a decree for partition holding that three

sisters of the petitioner's vendor are having 3/18th share together

(1/18th share each). Though there is a sentence in the said

judgment which would indicate that the Court has given a

declaration that the sale deed is 'bogus', that one sentence cannot

be interpreted to say that the Court has declared that the sale deed

is bogus. The judgment is to be understood in the context in which

it is delivered. The suit is by the sisters of the petitioner's vendor

challenging the alienation on the premise that the alienation does

not bind the share of the vendor's sisters. Vendor has contested

the suit and vendor has tried to defend the alienation. The vendor

did not challenge the sale deed executed by him. The court has

concluded that the property being the joint family property,

alienation is not for the family necessity and vendor did not have

the right to alienate the share of his sisters. That does not mean

that the sale deed is invalid to the extent of the share of the vendor.

The decree passed by the trial Court recognizes and declares the

share of the plaintiffs in the suit property. It does not nullify the sale

transaction in favour of the petitioner to the extent of share held by

the vendor. Unfortunately, this aspect is not noticed by the Deputy

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Commissioner. It is also required to be noticed that this aspect is

not noticed by the FDP Court. In the FDP, the Court has refused to

demarcate the share of the purchaser.

10. Sri Dinesh Kulkarni, learned counsel appearing for the

respondent would submit that during the pendency of the FDP, the

petitioner has sold certain properties to the present 1st respondent

under registered sale deed dated 10.02.2006 and the name of the

1st respondent is to be entered in respect of property records as per

the said sale deed.

11. Since the 1st respondent is declared by the competent

court as not the son of the petitioner's vendor, the remedy of a

purchaser who has purchased the undivided share from one of the

joint holders is to file a suit for partition. Hence, 1st respondent has

to work out his remedy in an appropriate proceeding based on the

registered sale deed dated 10.02.2006.

12. It is brought to the notice of this Court that during the

pendency of the proceeding, a portion of the land in Sy.No.95/1

measuring 404 sq. mtrs is acquired. Therefore, petitioner is not

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entitled to make a claim to enter his name in the property records

to the said extent.

13. This Court in exercise of power under Article 226 of the

Constitution of India has taken a view that the sale deed dated

25.06.1998 executed in favour of the petitioner is valid to the extent

of the share of his vendor. Thus, the view taken by this Court in

this regard overrides the observation in the judgment in

O.S.No.148/2008 referred to above.

14. The petitioner is entitled to have his name entered in the

property records to the extent of his vendor's share in the property

minus the extent of the property sold by the petitioner and the

property acquired as referred to above. The dismissal of the

petitioner's claim to have his share demarcated in FDP No.13/2005

referred to above shall not be construed as his right in respect of

the portion of the property purchased by him is extinguished. The

petitioner's title in the property purchased by him is recognized by

this Court to the extent indicated above.

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15. For the aforementioned reasons, the impugned order

dated 06.09.2022 passed by the Deputy Commissioner, Belagavi

vide Annexure - H is set-aside.

Accordingly, writ petition is allowed-in-part

Sd/-

JUDGE

BRN