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2013 DIGILAW 752 (KAR)

Shakhamma v. State of Karnataka Rep. by Chief Secretary Vidhana Soudha

2013-07-02

D.V.SHYLENDRA KUMAR

body2013
Judgment : 1. Though the matter is listed for preliminary hearing 'B' Group, with the consent of counsel appearing for the parties, the matter is taken up for disposal. 2. Writ petitioners claim interest to an extent of 16 guntas of land in Sy. No.9 situated at Mudagere Plantation, Marluru Hobli, Channapatna Taluk, Ramanagara District. Petitioners claim that it was property of their ancestors and they are legal heirs of the members of the family. 3. It is the case of the petitioners that 16 guntas of land had fallen to the share of first petitioner's husband Thimmadasaiah who along with his brothers Ramaiah, Kannaiah, Kalidasaiah, Thimmaiah, H N Kariyappa had all shared 16 guntas each and in all measuring 2 acres as per Panchayath Parikath dated 16.11.1982. It is averred in the writ petitions that first petitioner's husband died on 7.9.2001. The third respondent by name Bhagyamma - Daughter-in-law of elder brother of Thimmadasaiah had got mutated an extent of 32 guntas of land in this survey number in MR No.17/2005-06 without the consent of the writ petitioners and questioning this mutation entry, first writ petitioner who is wife of late Thimmadasaiah, second petitioner - daughter of late Thimmadasaiah along with two daughters had preferred an appeal to the Assistant Commissioner, Ramanagar Sub Division impleading the third respondent as party questioning the legality of the revenue entries mutated under MR No.17/2005-06 and MR No.2/1984-85 relating to the extent of 2 acres of land in Sy. No.9 of Mudagere Plantation. 4. The Assistant Commissioner it appears passed an order on 23.1.2009 allowing the appeal and noticing that there was no contest by the first respondent in that appeal and the third respondent in this writ petition -Bhagyamma and opining that transferring khata in respect of 16 guntas of land which had fallen to the share of predecessor in title of the appellant to the name of the third respondent is not proper, set aside MR No.2/1984-85 and MR No.17/2005-06 in respect of 32 guntas of land in Sy. No.9 and remanded the matter to the Tahsildar directing him to issue opportunities to all concerned and then to pass orders in accordance with law etc. 5. No.9 and remanded the matter to the Tahsildar directing him to issue opportunities to all concerned and then to pass orders in accordance with law etc. 5. It is the case of the petitioners that as per this order, the Deputy Tahsildar has already passed an order dated 18.2.2009 after issue of notice to third respondent herein and khata has been made in favour of the first petitioner to the extent of 16 guntas and while the petitioners claim that they are content with this order, they have now been issued with notice from the Tahsildar, Channapatna Taluk at the instance of the third respondent and purporting to be in respect of proceedings in MR No.17/2005-06 and the Tahsildar is adjourning the matter from time to time though it had been pointed out to him that the matter is already concluded by the order passed by the Deputy Tahsildar and there is nothing more to be done etc. 6. It is in this background, petitioners have approached this court. 7. Notice had been issued to the respondents. While the State and the Tahsildar are represented by Smt. S. Susheela, learned Additional Government Advocate, third respondent is unrepresented. 8. Sri. M D Basavanna, learned counsel for petitioners has very vehemently urged that pursuant to the remand order passed by the Assistant Commissioner, the Deputy Tahsildar having already passed orders, nothing else is required to be done and the matter at any rate cannot be reopened by the Tahsildar; that he has no jurisdiction to pass orders and the third respondent could not have made any grievance to the Tahsildar as against the order dated 18.2.2009 passed by the Deputy Tahsildar; that the third respondent could have preferred an appeal and should not have invoked the jurisdiction of the Tahsildar yet again etc. 9. On the other hand, what is submitted by Smt. Susheela, learned Additional Government Advocate is that the matter had been remanded to the Tahsildar by the Assistant Commissioner and if the Deputy Tahsildar has passed the order without jurisdiction and therefore if the Tahsildar seeks to implement the remand order, no exception can be taken etc. 10. Be that as it may, it is not necessary to go into this question in these writ petitions as I find that the entire proceedings are at the instance of members of the family and dispute is inter se between them. 10. Be that as it may, it is not necessary to go into this question in these writ petitions as I find that the entire proceedings are at the instance of members of the family and dispute is inter se between them. If the petitioners are content with the order passed by the Deputy Tahsildar and it is one to retain khata in the name of the petitioners to an extent of 16 guntas, it is open to the petitioners to point out this position before the Tahsildar. If the petitioners feel that the Tahsildar is acting contrary to the order passed by the Assistant Commissioner, it is open to them to bring it to the notice of the Assistant Commissioner and ask for suitable orders. In a matter of this nature, it is not necessary for this court to go into the legality or otherwise of such proceedings as the entire proceedings are dependent on the remand order passed by the Assistant Commissioner and therefore this court will not in exercise of writ jurisdiction either try to certify the order of the Assistant Commissioner as valid or the order passed by the Deputy Tahsildar or the Tahsildar on such remand. 11. It is open to the petitioners to avail remedies as are available in law or to defend their possession as per the order passed by the Deputy Tahsildar by pointing out the same to the Tahsildar. 12. Without prejudice, these writ petitions are dismissed.