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2000 DIGILAW 732 (KAR)

Fakirappa Bhimappa Talwar v. State of Karnataka

2000-11-09

K.SREEDHAR RAO

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ORDER K. Sreedhar Rao, J.—The dispute pertains to mutation of khata entries in respect of Sy. No. 36, measuring 16 acres, 17 guntas of Hanagandi Village, Jamkhandi Taluk, Bagalkot District. The Petitioner claiming to be an adopted son, under Adoption Deed dated 13.10.1987 at Annexure-A made an application before the Revenue Authorities for mutation of his name. The Respondent No. 5 under a Will said to have been executed by Thippavva made a rival claim for his name be in entered as khatadar in respect of the aforesaid land. The land in question originally belonged to one Bhimappa Thalwar who after adoption of the Petitioner and died in a year after adoption. Thippavva is said to be the wife of Bheemappa Thalwar, her name was mutated in khata on 29.8.1992 and continued so until her death in the year 24.1.1999. Thippavva said to have executed registered Will under which the 5th Respondent claims right to have his name entered. Admittedly both the parties have filed a civil suit seeking declaration of their right. It is the contention of the Petitioner that Thippavva is not the legally wedded wife and she had no right to execute the Will in question. 2. In support of the case of the 5th Respondent, the decision of the Division Bench of this Court reported in 1969 (2) Mysore Law Journal 198 is cited. The Counsel for the Petitioners relied upon the Division Bench decision of this Court reported in ILR 1999 Short Notes 12, 23. 3. The ratio laid down in the decision of this Court in Payappa Nemanna Huded Vs. Chamu Appaya Huded and Others, 1969 (2) Mys LJ it is held that when there is a serious dispute with regard to the title between the contesting parties, invoking of writ jurisdiction is not permissible as the entries made by the Revenue authorities are not final and conclusive and it is open for the aggrieved parties to institute a suit to establish their title. In the latter Division Bench decision, there was a contest between two rival parties, one claiming mutation of khata in his favour by virtue of the registered Will and other claiming mutation of khata by virtue of an unregistered Will. In the latter Division Bench decision, there was a contest between two rival parties, one claiming mutation of khata in his favour by virtue of the registered Will and other claiming mutation of khata by virtue of an unregistered Will. In the context of the said facts, it was held that when there are rival claims, it is appropriate that the parties should approach a Civil Court to establish the title. 4. A close reading of the ratio laid down in both the decisions rendered by the Division Bench of this Court, it would reveal that if there is a serious dispute with regard to the title between the contesting parties and based upon the answer to the question of title, the mutation entry is to be effected, in such a situation, it would not be proper for the revenue Court to adjudicate the title in a summary enquiry and effect the khata change and to give any finding in respect of the title. But in cases where the title is not in question between the contesting parties, it would be always open for the revenue Court to decide the dispute regarding the khata entry. In the instant case, a very queer situation is found. Both the parties, do not claim under the same propositus. The Petitioner claiming under his adopted father, the 5th Respondent claiming under a Will of Thippavva, her Status as wife of Bhimappa Thalwar is in dispute. 5. Rightly or wrongly, the name of Thippavva has been entered and shown as Khatedar and continued for over 8 years till her death. Now for effecting the khata change by way of testamentary succession, the 5th Respondent is claiming to have his name mutated. Although the competence of Thippavva to execute a Will is in serious dispute and challenged in a suit. But nonetheless, for the purpose of revenue records Thippavva has been shown as khatedar and after her demise, it is necessary from the stand point of the State and in the interests of the revenue administration, that a mutation has to be effected and name of a living person is to be shown as khatedar. Since the khata entries not merely give some legal advantages but also fasten certain liabilities on the khatedar like answerable for payment for revenue. Since the khata entries not merely give some legal advantages but also fasten certain liabilities on the khatedar like answerable for payment for revenue. It is also not possible to keep the khata entries in a freezed state by not allowing anybody's name entered, merely on the ground that the title of both the parties is in serious dispute. As for as the claim of the 5th Respondent is concerned, it is based on a Will, although is in dispute. Being a successor to a erstwhile khatedar, his claim is being pressed into service. On the other hand, the Petitioner claims title to the property by virtue of adoption. In fact, no serious prejudice would enure to both the parties, if their names is not shown as khatedar. Since parties are already litigating in a civil suit, ultimately subject to the result of the civil suit, entries have to be made. 6. A mere entry of a name as khatedar also cannot affect the actual possession and enjoyment of any person who is in actual possession and enjoyment. Irrespective of being a khatedar one can be in actual possession and enjoyment and the actual possession and cultivation will be reflected in the column No. 12 of record of rights. Therefore, under these circumstances, the submissions made by the Counsel for the Petitioner that if the khata is continued in the name of the 5th Respondent, it would Jeopardise his possession would not be a tenable argument. Therefore, under the circumstances, I deem it proper, that by virtue of being a successor to erstwhile khatedar, the 5th Respondent's name may be continued subject to the result in the civil suit pending between the parties. 7. Accordingly, the writ petition is allowed. 8. The Government Pleader is permitted to file memo within four weeks.