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2019 DIGILAW 1075 (KAR)

Lakshmamma v. Assistant Commissioner Bangalore Sub-Division

2019-06-03

S.N.SATYANARAYANA

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JUDGMENT : S.N. Satyanarayana, J. 1. These three writ petitions are filed by Smt.Lakshmamma, widow of Sri.Doddegowda purchaser of land bearing Sy.No.97, measuring to an extent of 33 guntas, situated at Tavarekere Village, Begur Hobli, Bengaluru South Taluk. 2. Admittedly, the aforesaid land was Thoti Inam land available to the predecessors of Gunda and Kapiliga. The records would indicate that the petitioner's husband Doddegowda purchased the aforesaid land under registered sale deed executed in his name on 15.11.1969. Subsequently, the same was re-granted to petitioner - Lakshmamma on an application filed before the competent authority for re-grant under the provisions of the Karnataka Village Offices Abolition Act where the order of re-grant was passed on 29.12.1986 by the competent authority, Assistant Commissioner, Bengaluru South Sub Division. Based on that, she got the said land mutated in her name vide MR.No.1/1986-87. It is thereafter, litigation between the parties commenced resulting in three writ petitions being filed. 3. It is necessary to place on record that all the writ petitions are filed by Smt.Lakshmamma widow of original purchaser Doddegowda. First of that is WP.No.12303/2005 where she is impugning the judgment dated 5.12.2013 passed in MA.No.238/1990 on the file of XLI Additional City Civil Judge (CCH-42), Bengaluru. The said appeal was filed by one of the legal heirs of Gunda contending that the regrant order dated 26.11.1969 in favour of legal representatives of Kapiliga only by the competent authority - Assistant Commissioner, Bengaluru Sub Division is erroneous inasmuch as they being the legal heirs of the family of Barawardar the re-grant should have been made in their favour. It is seen that the said appeal is filed against various persons excluding petitioner - Smt.Lakshmamma who by then had already secured re-grant on 29.12.1986 in respect of land in question in view of the registered sale deed executed in her husband's favour. In the absence of Lakshmamma, initially once the said appeal was dismissed on 14.7.2000 on the ground of limitation, against which CRP.No.3838/2000 was filed by the appellants in MA.238/1990, the said CRP was allowed on 22.8.2002 and the matter was remanded back to the authority. Thereafter, the present judgment dated 5.12.2013 is passed, which is sought to be challenged in WP.No.12303/2015. 4. Thereafter, the present judgment dated 5.12.2013 is passed, which is sought to be challenged in WP.No.12303/2015. 4. Now coming to second of the writ petitions in WP.Nos.30297/2016 & 30630-631/2016, it is filed challenging the order of the Assistant Commissioner dated 29.4.2016 in proceedings bearing No.HOA.CR(S) 02/2014- 15, which was filed by Smt.Muniyellamma w/o Gunda and others seeking to effect mutation and RTC entries in respect of 33 guntas of land in Sy.No.97 in their favour pursuant to judgment passed in MA.No.238/1990 on the file of City Civil Court, Bengaluru. 5. So far as third writ petition in WP.No.39795/2016 is concerned, it is filed in challenge to the order dated 28.2.2015 in RP.No.258/2012-13 on the file of Deputy Commissioner, Bengaluru Urban District, where the order dated 4.10.2010 passed in proceedings bearing No.RA(S).189/2009-10 on the file of Assistant Commissioner, Bengaluru South Sub Division, was challenged by petitioner herein, which revision petition is dismissed by order dated 28.2.2015, which is the subject matter in this writ petition. 6. These three writ petitions are at the stage of Preliminary Hearing in 'B' Group, they are clubbed together and taken up for consideration since the parties being one and the same, the subject matter of grant in all the three writ petitions being one and the same, again the orders which are passed by various authorities being in challenge to re-grant of land bearing Sy.No.97, measuring 33 guntas of Tavarekere village in favour of petitioner instead of considering the same in re-grant to the contesting respondents, namely the lineal descendants of one of the Thoties, Gunda. 7. Heard the learned counsel appearing for both the parties as well as learned Additional Government Advocate for the State. 8. When the material on record is seen, the fact that the land bearing Sy.No.97 measuring 33 guntas situated at Tavarekere village, Begur Hobli, is the land attached to the post of Thoti Village Office, is not in dispute. It is also not in dispute that the said land was attached to the office of Thoti whose lineal descendants are Gunda and Kapiliga. It is seen that immediately after the Karnataka Village Offices Abolition Act coming into force in 1961, the aforesaid extent of land was sold in favour of petitioner's husband - Doddegowda under registered sale deed 15.11.1969. It is also not in dispute that the said land was attached to the office of Thoti whose lineal descendants are Gunda and Kapiliga. It is seen that immediately after the Karnataka Village Offices Abolition Act coming into force in 1961, the aforesaid extent of land was sold in favour of petitioner's husband - Doddegowda under registered sale deed 15.11.1969. It is based on this sale deed the petitioner approached the competent authority Assistant Commissioner Bengaluru South Sub Division seeking regrant of the land in her favour. In fact, as enunciated in the judgment rendered in the matter of Lakshamana Gowda vs State of Karnataka & Ors., (1981) 1 KarLJ 1 , the said re-grant is not questionable. 9. However, it is seen that re-grant of land in question was subject matter of challenge in MA.238/1990 on the file of City Civil Court, Bengaluru, by the lineal descendants of Gunda on the premise that said re-grant in favour of legal representatives of Kapiliga only was erroneous. The said proceedings was initiated without arraigning petitioner herein - Lakshmamma, who had by then had already secured re-grant in her favour on the basis of registered sale deed executed in her husband's favour (Doddegowda). In her absence, the appeal filed by them is allowed by judgment dated 5.12.2013. 10. It is seen that pursuant to the order in MA.No.238/2990, the appellants therein have approached the Assistant Commissioner of Bengaluru South seeking to change mutation entry and RTC in their name by initiating proceedings in No.HOACR(S)2/2014-15 which is allowed by order dated 29.4.2016. In the meanwhile, the legal heirs of Gunda have also approached the Assistant Commissioner of Bengaluru South Sub Division in challenging the mutation entry in MR.No.1/1986-87 which was passed pursuant to sale deed executed in favour of Doddegowda on 15.11.1969 which is taken up by the Assistant Commissioner, Bengaluru South Sub Division, in RA(S)189/2009-10, which is allowed by him by order dated 4.10.2010, which is subject matter of revision in RP.No.258/2012-13 before the Deputy Commissioner, Bengaluru, wherein by looking into the judgment in MA.No.238/1990 the revision filed by Lakshmamma petitioner herein is rejected. It is in this background these three writ petitions are filed. 11. When the entire material on record is seen what is observed by this Court is that, a serious error is committed by the Civil Court while considering MA.No.238/1990. It is in this background these three writ petitions are filed. 11. When the entire material on record is seen what is observed by this Court is that, a serious error is committed by the Civil Court while considering MA.No.238/1990. The judgment in the said appeal is the basis for all subsequent orders, in which neither the original purchaser Doddegowda nor his legal representatives were made as parties. The said lapse is the root-cause for all the subsequent orders. If only liberty were to be given to the petitioner to represent in the said proceedings in MA.238/1990 to demonstrate that Gunda and Kapiliga both had joined together to convey the sale deed in favour of Doddegowda or either one of them sold the property in his favour and the other person has given consent to said sale, things would have come to an end at that stage. On the contrary, if the purchaser/Doddegowda or his legal heirs were not in a position to prove the same, their sale deed to the extent of the share of the person who had executed the same would have got confined to that extent and with reference to the share of others, the Civil Court would have passed appropriate orders. In the absence of the purchaser/Doddegowda being made as a party, it has caused confusion regarding title and caused multiplicity of proceedings. 12. In this background, what is required to be done is the mutation order passed by the Assistant Commissioner in No.HOACR (S) 2/2014-15 is required to be set aside, consequently revenue entry with reference to sale deed dated 15.11.1969 is required to be restored. While doing so, the order dated 28.2.2015 passed in RP.No.258/2012 -13 is also required to be set aside. By setting aside these two orders, the judgment passed in MA.No.238/1990 dated 5.12.2013 is also required to be set aside. Accordingly, the aforesaid orders are set aside. Thereafter, the appeal is remitted back to the Civil Court for reconsideration. While doing so, this Court would observe that during re-hearing of MA.No.238/1990, there shall not be revival of any proceedings either in HOACR or in revision with reference to revenue entries to the land in question. Accordingly, the aforesaid orders are set aside. Thereafter, the appeal is remitted back to the Civil Court for reconsideration. While doing so, this Court would observe that during re-hearing of MA.No.238/1990, there shall not be revival of any proceedings either in HOACR or in revision with reference to revenue entries to the land in question. It is only after MA.No.238/1990 which is remitted back to the Civil Court for fresh consideration is decided, the revenue entries if necessary will have to be re-considered based on the judgment to be rendered in the remanded matter or otherwise to be continued in the name of the petitioner's husband -Doddegowda and thereafter it should be changed to petitioner's name or in the name of any other person who would be entitled to get it registered in his name by appropriate orders regarding change of katha. 13. With such observations all these three writ petitions are disposed of. It is made clear that in the remanded matter Court notice should be ordered to petitioner - Lakshmamma. In any event, it is not a precondition for her to enter appearance in the said proceedings. If she so desires, on her own she can participate in said proceedings. It is also made clear that the entire proceedings is confined to only Sy.No.97 measuring 33 guntas of Taverekere village, Begur Hobli, Bengaluru South Taluk.