Karnataka High Court
Smt. Kanthamma vs The Deputy Commissioner on 3 September, 2024
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NC: 2024:KHC:35902
WP No. 21067 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 21067 OF 2024 (KLR-RES)
BETWEEN:
SMT. KANTHAMMA
SINCE DEAD BY HER LRS
1. P. MANOHAR
S/O LATE PATALAIAH .A
AGED ABOUT 45 YEARS
R/AT NO.27, GOKUL NIVAS
BANJARA LAYOUT, KALKERE
HORAMAVU POST
BENGALURU-560 043.
2. P. MURALIDHAR
S/O LATE PATALAIAH .A
AGED ABOUT 48 YEARS
R/AT NO.143
OLD FLOOR MILL ROAD
Digitally signed KALKERE, HORAMAVU POST
by CHAITHRA A BENGALURU-560 043.
Location: HIGH
COURT OF
KARNATAKA 3. P. MADHUSUDHAN
S/O LATE PATALAIAH .A
AGED ABOUT 50 YEARS
R/AT CHIGURU NILAYA
NRI LAYOUT, 1ST CROSS
KALKERE, HORAMAVU POST
BENGALURU-560 043.
4. SMT. CHANDRAKALA
W/O LAKKAPPA
D/O LATE PATALAIAH .A
AGED ABOUT 52 YEARS
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WP No. 21067 of 2024
R/AT NO.27, GOKULA NIVAS
BANJARA LAYOUT, KALKERE
HORAMAVU POST
BENGALURU-560 043.
...PETITIONERS
(BY SRI. K. VIJAYKUMAR, ADVOCATE)
AND:
1. THE DEPUTY COMMISSIONER
BENGALURU URBAN DISTRICT
KANDAYA BHAVAN, K.G.ROAD
BENGALURU-560 009.
2. THE ASSISTANT COMMISSIONER
BENGALURU NORTH SUB-DIVISION
KANDAYA BHAVAN, K.G.ROAD
BENGALURU-560 009.
3. THE TAHASILDAR
BANGALORE NORTH (ADDITIONAL)
TALUK, KANDAYA BHAVAN, K.G.ROAD
BENGALURU-560 009.
4. D. VENKATESH
S/O DESIKACHARI
AGED ABOUT 64 YEARS
R/AT THIMMASANDRA VILLAGE AND POST
BENGALURU NORTH TALUK
BENGALURU-562 157.
5. SMT. ANUSUYAMMA
W/O LATE NAGARAJ
AGED ABOUT 64 YEARS
6. SRI. MANJUNATH .K.N
S/O LATE NAGARAJ
AGED ABOUT 37 YEARS
R5 AND R6 ARE R/AT NO.117
VASVI MAHAL ROAD
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WP No. 21067 of 2024
K.R.PURAM, NEAR BASAVANNA TEMPLE
BENGALURU-560 036.
7. SMT. LAVANAYA .L
D/O LATE LAKAPPA
AGED ABOUT 38 YEARS
8. SRI. MANJUNATH .L
S/O LATE LAKAPPA
AGED ABOUT 34 YEARS
R/AT NO.140, OLD FLOOR MILL ROAD
KALKERE VILLAGE, HORAMAVU POST
K.R.PURAM HOBLI
BENGALURU-560 043.
9. SMT. BHAGYAMMA
W/O NAGARAJ
AGED ABOUT 57 YEARS
R/AT NO.7, 3RD CROSS, 5TH MAIN
GRAPES GARDEN
ST.THOMAS TOWN POST
BENGALURU-560 084.
...RESPONDENTS
(BY SMT. B.P. RADHA, AGA FOR R1 TO R3;
SRI. AKASH .V.T, ADVOCATE FOR C/R4)
THIS WP IS FILED PRAYING UNDER ARTICES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING FOR
DIRECTION TO QUASH / SET ASIDE THE ORDER DATED
12/06/2024 PASSED BY THE R1 IN RP NO. 287/2011-12,
ANN-A AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
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WP No. 21067 of 2024
ORAL ORDER
The captioned petition is filed assailing the
concurrent orders passed by the respondent
No.2/Assistant Commissioner under Section 136(2) of the
Karnataka Land Revenue Act, 1964 confirmed by the
respondent No.1/Deputy Commissioner, wherein the
mutation is certified in favour of respondent No.4 to an
extent of 2 acres 20 guntas based on registered sale deed
dated 28.11.2002.
2. Heard learned counsel for the petitioners and
learned counsel appearing for the private respondents and
learned AGA.
3. The records reveal that the judgment is
rendered by the civil Court and therefore, this Court
deems it fit to take cognizance of the family tree furnished
by the learned counsel appearing for respondent No.4.
Same is culled out as under:
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MIR MOHAMMED USMAN SAHED
__________________________________________|_______________________________
| | | |
SAIFURNNISSA THERUNNISSA MEHARUNNISSA MOHAMMED NAZIR
| | |
1. ABDUL WAHID KHAN 1. G. SYED IBRAHIM MAHABOOB BI
(PLAINTIFF NO.1) (DEFENDANT NO.1) (DEFENDANT NO.1)
(WIFE OF NAZIR)
2. ZAIOUNNISA KHANUM 2. SYED MOHAMMED SALEHA
(PLAINTIFF NO.2) (DEFENDANT NO.2)
3. AKHTHARI KHANUM 3. SYED SULTHAN MAHAMOOD
(PLAINTIFF NO.3) (DEFENDANT NO.3)
4. DODAMOOD KHANUM 4. SHAMSHUNNISSA
(PLAINTIFF NO.4) (DEFENDANT NO.4)
5. AHAMADI KHANUM
(PLAINTIFF NO.5)
6. ADDUL MAJID KHAN
(PLAINTIFF NO.6)
4. It is not in dispute that petition property was
originally owned by Mir Mohammed Usman Saheb.
He died intestate and the property was inherited by three
daughters and one son by name Mohammed Nazir. The
present petitioners are tracing their right and title through
sale deed obtained by their grandfather from the daughter
of Mohammed Nazir namely Mahaboob Bi. It is borne out
from the records that the legal heirs of pre-deceased
daughter Saifurnnissa filed a suit for partition and separate
possession in O.S.No.161/1971. The said suit was
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decreed. It is relevant to note that alienation made in
favour of petitioners grandfather was also subject matter
of the said partition suit. The operative portion would be
relevant. Therefore, this Court deems it fit to cull out the
operative portion which reads as under:
"Order
The suit of the plaintiff is decreed in the following
terms:
a) It is hereby declared that the plaintiffs are
together entitled to 1/5th share in the suit 'A'
schedule properties except the properties sold in
favour of 14th defendant.
b) It is further declared that the alienation made
by the 1st defendant in favour of defendants 12, 13,
15, 16 and 17 are not binding on the plaintiffs;
c) The suit schedule properties except the
properties alienated in favour of the 14th defendant
shall be divided by metes and bounds into five equal
shares and one share shall be allotted to the
plaintiffs and possession of that share be given to
them;
d) The partition shall be effected by the Deputy
Commissioner or any of his gazetted subordinate as
provided under law;
Draw up preliminary decree.
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In the circumstances of the case, the parties are
directed to bear their own costs."
5. On examining the judgment rendered in
O.S.No.161/1971, coupled with the fact that in the final
decree proceedings, the petition land was in fact allotted
to third daughter namely Meharunnissa, this Court is of
the view that petitioners having already filed a suit in
O.S.No.537/2006 seeking relief of declaration and
injunction and cancellation of sale deed obtained by the
respondent No.4, no indulgence is warranted in the
mutation proceedings. Respondent No.4 has purchased 2
acres 20 guntas from legal representatives of Mahaboob Bi
who were allotted this land in final decree proceedings.
While petitioners are tracing their title through their
grandfather who obtained sale deed from Mahaboob Bi,
the preliminary decree drawn in O.S.No.161/1971 clearly
indicates that petitioners grandfathers sale deed was held
as not binding in plaintiff share.
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6. The fact that petitioners have in fact chosen to
challenge the sale deed obtained by respondent No.4,
coupled with the fact that petitioners are tracing their right
through their vendor but were allotted this land in final
decree proceedings, the scope of enquiry under Section
128 being very limited, both the authorities were justified
in relegating the petitioners to substantiate their right in
the pending suit filed by them. The order relegating the
petitioners to work out their remedy in a pending suit
strictly aligns with the consistent view taken by this Court
in catena of judgments.
7. In the light of the judgment rendered by the
Full Bench in the case of Jayamma and Others vs. State
of Karnataka1, the order relegating the petitioners does
not warrant any interference at the hands of this Court.
Petitioners shall substantiate their right in the pending
suit. The mutation effected in favour of respondent No.4
will be subject to outcome of the pending suit.
ILR 2020 Kar 1449
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8. With these observations, the writ petition
stands dismissed.
SD/-
(SACHIN SHANKAR MAGADUM)
JUDGE
CA
