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2006 DIGILAW 255 (KAR)

BASAPPA v. DEPUTY COMMISSIONER, BIJAPUR DISTRICT

2006-03-08

K.RAMANNA

body2006
ORDER Though the matter is listed for preliminary hearing in 'B' group, with the consent of both the parties, it is heard and disposed of by this order. 2. This is a writ petition filed by the petitioner challenging Annexures-C and C1, dated 10-10-2001 passed by the 2nd respondent Assistant Commissioner in No. RTS:AP:26:99-2000 and the order passed by the 1st respondent-Deputy Commissioner in case No. RTS:REVISION:36:2001-02, dated 20-10-2003, mainly on the ground that since the petitioner is the bona fide purchaser of the property bearing Sy. No. 35/6 measuring 3 acres 15 guntas of land situated in Aheri Village in Sindgi Taluk under register sale deed dated 15-6-1994 from the respondent 5;which was fallen to his share in a partition. Since respondent 6 being the power of attorney holder has executed a sale deed on behalf of respondent-5, and ever since from the date of purchase the petitioner is in possession and enjoyment of the land. Therefore, on the basis of the vardhi submitted by him the mutation was effected in the name of the petitioner. To that effect he has produced Annexure-D the record of rights to show that he is in 'possession and enjoyment of the same. Since respondent 4 has been challenging the order of mutation before the Assistant Commissioner, the Assistant Commissioner has held that the since civil suit is pending between respondents 4 and 5, therefore stayed any entry made in the record of rights on the basis of the sale deed. The Mutation Entry No. 1982 was stayed. Therefore, the petitioner therein and one Shantabai, respondent 5 assailing the said order, preferred a revision petition under Section 136(3) of the Karnataka Land Revenue Act, 1964 before the Deputy Commissioner in No. RTS:REVISION:36:2001-02. After considering the materials placed on record, the Deputy Commissioner, dismissed the revision petition. Therefore, he has come up with this petition, to quash Annexures-C and C1 passed by the Assistant Commissioner and the Deputy Commissioner. 3. Heard the arguments of learned Counsel for the petitioner and learned Counsel for respondent 4 and Government Advocate for respondents 1 to 3. 4. It is contended by the learned Counsel for the petitioner that the petitioner is a bona fide purchaser of the land measuring 3 acres 18 guntas of land in Sy. No. 35/6 of Aheri Village. 3. Heard the arguments of learned Counsel for the petitioner and learned Counsel for respondent 4 and Government Advocate for respondents 1 to 3. 4. It is contended by the learned Counsel for the petitioner that the petitioner is a bona fide purchaser of the land measuring 3 acres 18 guntas of land in Sy. No. 35/6 of Aheri Village. Further, it is contended that the father of respondents 4 and 5 are real brothers and they had jointly purchased the land Sy. Nos. 35/7B measuring 3 acres and 35/6 measuring 3 acres 18 guntas respectively. Accordingly, to the petitioner, after the death of respondent 4 a partition took place among respondents 4 and 5. Therefore, the land bearing Sy. No. 35/7B fallen to the share of respondent 4 and Sy. No. 35/6 fallen to the share of respondent 5. The petitioner being the bona fide purchaser of the said land from respondent 5, therefore, the Tahsildar who has rightly made the mutation entry, directing the parties to change the name of petitioner in respect of said land. Further, it is contended that under Section 128 of the Land Revenue Act, even without vardhi, if sale took place under registered sale deed, the revenue authority is bound to effect the mutation on the basis of Form 'T' received from the Sub-Registrar. In the instant case vardhi has been submitted by the petitioner regarding purchase of the land, therefore his name has been mutated as per Annexure-D. The suit filed by respondent 4 came to be dismissed but the revenue authority viz., the Assistant Commissioner and the Deputy Commissioner who recorded the finding stating that during the pendency of the suit for partition a mutation was effected by the concerned Tahsildar on the basis of the Vardhi, is incorrect. Therefore, the Assistant Commissioner and the Deputy Commissioner have wrongly come to the conclusion. Therefore, writ petition is maintainable and the order under challenge Annexures-C and C 1 passed by the Assistant Commissioner and the Deputy Commissioner is liable to be quashed. 5. Per contra, learned Counsel for respondent 4 concerned, submits that the property in question has been purchased in the joint name of respondents 4 and 5. Therefore, writ petition is maintainable and the order under challenge Annexures-C and C 1 passed by the Assistant Commissioner and the Deputy Commissioner is liable to be quashed. 5. Per contra, learned Counsel for respondent 4 concerned, submits that the property in question has been purchased in the joint name of respondents 4 and 5. Therefore, respondent 4 filed a suit O.S. No. 159 of 1989 on the file of the Civil Judge (Junior Division), Sindgi, seeking for partition and the said suit though dismissed for default, but it was subsequently, respondent 4 filed a Misc. Petition No. 10 of 1994 to set aside the order of dismissal and to restore the suit. It is contended by respondent 4 who has filed Writ Petition No. 3635 of 1999 against the order dated 30-9-1999 passed by the Civil Court and the order has been set aside and the matter has been remanded to the Court below. Therefore, when the civil suit is pending for partition among the brothers viz., respondents 4 and 5 any sale deed executed by respondents 5 without ascertaining his share is illegal and incorrect and the order passed by the Tahsildar effecting mutation in the name of the petitioner has been rightly set aside by respondents 1 and 2 and the present writ petition is liable to be dismissed. Further, he contend that the only remedy available for the petitioner is to seek for declaration of his title by approaching the competent Civil Court to establish their respective rights. In support of his contention respondent-4 has relied on a decision of this Court in the case of Basagouda v Assistant Commissioner, Chikodi Sub-Division, Chikodi, Belgawn District and Others!, wherein it has been held that: "The partition of the family properties does not take place, sale by coparcener even before partition of - Entering name of purchaser in record of rights by revenue authority - Permissibility of - Held, what purchaser has acquired in land in question is only undivided interest of one of the coparcener it was not permissible for Tahsildar to enter name of such purchaser in record of rights on basis of such sale deed, in absence of partition of joint family property - It is open to purchaser to seek partition". 6. 6. On the other hand, learned High Court Government Pleader appearing for respondents 1 to 3 filed a detailed objections and submits that during the pendency of the suit for partition among the parties, the third party proceeding the property of unascertained coparcener property on the basis of which any mutation was affected in the name of the purchaser is liable to be quashed and remedy available is to file a suit for partition before the Civil Court. Therefore, the present writ petition is liable to be quashed. 7. I have carefully examined the material placed on record. It is an admitted fact that respondents 4 and 5 are cousin brothers but their father are real brothers and the disputed lands in question were purchased in the joint name of father of respondents 4 and 5. It is also an admitted fact that O.S. No. 94 of 1994 came to be filed by respondent 4 against his own cousin brother who was a coparcener seeking partition. During the pendency of the suit for partition the respondent 5 sold the said land and executed the sale deed in favour of the petitioner through power of attorney holder respondent 6. Of course on the basis of the Vardhi, the Tahsildar viz., respondent 3 effected the Mutation Entry No. 1982 as per Annexure-B, which has been challenged by 4th respondent before respondents 1 and 2. The 4th respondent has challenged the said order before the Assistant Commissioner and respondent 5-Shantabai and present petitioner who have challenged the order passed by the Assistant Commissioner. When the law is clear that, if the property is in the joint names of coparcener and when the suit is pending seeking partition filed by one of the coparceners, if the property purchased by 3rd party from one of the coparceners during the pendency of the suit for partition which is not permissible in law. Therefore, any entry made by the Tahsildar on the basis of the sale deed executed by the 5th respondent on 15-6-1994 during the pendency of the suit is liable to be set aside. Therefore, respondents 1 and 2-the Assistant Commissioner and the Deputy Commissioner are right in setting aside the order of Mutation Entry No. 1982 passed in favour of the petitioner by the Tahsildar. Therefore, respondents 1 and 2-the Assistant Commissioner and the Deputy Commissioner are right in setting aside the order of Mutation Entry No. 1982 passed in favour of the petitioner by the Tahsildar. Therefore, the decision referred to above by the learned Counsel for respondent 4 is only applicable to the facts of this case. Therefore, the writ petition is not at all maintainable and it is dismissed at the stage of admission.