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2019 DIGILAW 1490 (KAR)

Ganapati v. Deputy Commissioner Belagavi

2019-07-01

ARAVIND KUMAR, BELLUNKE A.S.

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JUDGMENT : ARAVIND KUMAR, J. 1. Though matters are listed for preliminary hearing/orders by consent of learned Advocates appearing for parties, it is taken up for final disposal. 2. We have heard the arguments of Sri Srinand Pachchapure, learned counsel appearing for appellants and Sri Shivaraj P.Mudhol, learned counsel appearing for 5th respondent (Sri Srikant Nimbalkar) and Smt.Veena Hegde, Learned Additional Government Advocate appearing for respondent Nos.1 to 4. 3. Appellants and 5th respondent are staking claim over the property bearing R.S.No.901/1+2 measuring 3 acres situated at Sadalga village, Chikodi Taluk, Belagavi District over which civil dispute has arisen and is now pending before this Court in R.S.A.No.5160/2011. 4. Though sale deed was registered in the name of 5th respondent (Sri Shrikanth), Varadi is said to have been submitted by him to the jurisdictional to revenue authority for mutating revenue records in the joint names of himself and his two brothers Sri Mahadev & Sri Ganapati and accordingly mutation entry No.2166 came to be effected on 28.09.1996. Said entry continued till 2006 namely till the writ petitioner filed an appeal before the Assistant Commissioner seeking for cancellation of said mutation entry No.2166 dated 28.09.1996, which appeal came to be allowed on 13.11.2006. 5. Being aggrieved by the same, revision petition was preferred by the appellants herein, which came to be dismissed on 13.07.2019. However, during the pendency of review petition order of the Assistant Commissioner dated 13.11.2006 had been stayed by the Deputy Commissioner. 6. Being aggrieved by the order of dismissal of the revision petition passed by the Deputy Commissioner, appellants herein filed writ petition in W.P.No.65705/2009 and same was pending. However, in the year 2006 i.e., on 12.12.2006 i.e., during pendency of the revision petition before the Deputy Commissioner, appellants herein filed a suit O.S.No.256/2016 for partition and separate possession claiming 2/3rd share in the suit property on the ground that 1st defendant therein i.e., 5th respondent herein had refused to grant share. Said suit came to be dismissed, which was carried in appeal in R.A.No.67/2008 and same was allowed on 30.08.2010. Based on the preliminary decree passed in R.A.No.67/2008 appellants herein made an application for mutating the revenue records of the subject property in their names, since by that time the revenue record had been mutated to the name of the writ petitioner. Based on the preliminary decree passed in R.A.No.67/2008 appellants herein made an application for mutating the revenue records of the subject property in their names, since by that time the revenue record had been mutated to the name of the writ petitioner. Based on the said application submitted by the appellants, Deputy Tahasildar, Sadalga certified mutation entry No.756 and mutated the revenue records by entering the names of the appellants in the revenue records by order dated 04.03.2011 and had also included the names of writ petitioners. 7. Aggrieved by this said order, writ petitioner challenged the same before the Assistant Commissioner, which appeal came to be dismissed on 28.05.2012 and matter was carried before the Deputy Commissioner by the writ petitioner who allowed the revision petition and had stayed the order of Assistant Commissioner and directed the revenue authorities to continue the names of all the persons since the matter was at large before this Court pending in R.S.A.No.5160/2011. Hence, both appellants and writ petitioner came before this Court by filing W.P.No.103316/2018 and W.P.No.102429/2018 respectively. 8. Learned single Judge after hearing the learned advocates appearing for parties disposed of the writ petitions by a common order dated 17.12.2018 by allowing the writ petition No.102429/2018 and dismissed writ petition No.103316/2018. It was ordered that revenue entries with respect to the suit schedule property i.e., R.S.No.901/1+2 is to be restored in the name of the writ petitioner subject to outcome of RSA No.5160/2011. Hence, these two appeals. 9. Heard Sri Srinand Pachchapure, learned counsel appearing for appellants and Sri Shivaraj P.Mudhol. It is contended by Sri Shivaraj P.Mudhol that order passed by the learned single Judge would not call for interference since on the strength of a preliminary decree revenue entries cannot be mutated by relying upon judgment of Co-ordinate Bench of this court rendered in W.A.Nos.50003-50005/2013 dated 26.02.2013 and also contending that by virtue of the entry in the sale deed which is a registered instrument reflecting the name of the writ petitioner, the name of the writ petitioner alone is to be entered in the revenue record. Hence, he prays for dismissal of writ appeals. 10. Hence, he prays for dismissal of writ appeals. 10. There cannot be any dispute to the proposition of law that revenue authorities cannot be made on the strength of a preliminary decree nor revenue authorities would be empowered to alter the names of kathedars in the revenue records, in as much as a preliminary decree does not define the shares of the respective sharers. Until and unless share is determined and defined by final decree, mutation entry cannot be effected. Hence, there cannot be any dispute to said proposition of law. However, in the instant case it is not merely on the basis of a preliminary decree the revenue record has been mutated, but also on the strength of earlier varadi which had been given by the very writ petitioner himself way-back in the year 1996 based upon which name of the petitioners and 5th respondent had been entered, which entry had continued for a period of 20 years i.e., till 2006 and even when the order came to be passed on 13.11.2006 by the Assistant Commissioner allowing the appeal filed by the writ petitioner and setting aside the mutation entry which was in their joints names, said order also came to be stayed by the Deputy Commissioner for a period of three years. It is only thereafter in the year 2011, Deputy Tahasildar certified M.E.N0.756 and mutated the names of appellants and respondents which was also based on the preliminary decree. This exercise could not have been undertaken by the Deputy Tahasildar. To that extent only Sri Shivaraj P.Mudhol, learned counsel appearing for writ petitioner would be correct in contending so. 11. However, the fact remains that for the period of 20 years and thereafter again for a period of 9 years, names of the appellant as well as writ petitioner continued in the revenue records. It is only after order came to be passed by the learned Single Judge revenue entries came to be mutated in the name of petitioner that too on the strength of the sale deed of the year 1992, ignoring the fact that there was already entry in the joint names of writ petitioner as well as appellants. It is only after order came to be passed by the learned Single Judge revenue entries came to be mutated in the name of petitioner that too on the strength of the sale deed of the year 1992, ignoring the fact that there was already entry in the joint names of writ petitioner as well as appellants. Hence, entry of revenue record in the name of writ petitioner alone is erroneous, particularly in the background of earlier entries having continued in the joint names of appellants as well as 5th respondent - writ petitioner for long number of years. 12. This opinion expressed by us only for the limited purpose of continuing the mutation entries of subject property for a limited period i.e., till disposal of RSA.No.5160/2011 and it is explicitly made clear that entries so effected would be subject to final result or outcome of RSA No.5160/2011. In the event of either parties succeeding in the said appeal, the revenue authorities necessarily would undertake the exercise of mutating the revenue records on the basis of said decree. 13. Accordingly, appeal stands allowed. Order of the learned Single Judge dated 17.12.2018 passed in W.P.No.102429/2018 and W.P.No.103316/2018 is hereby set aside and it is ordered that revenue entries in respect of suit schedule property in R.S.No.901/ 1+2 measuring 3 acres situated at Sadalga village, Chikodi Taluk, Belagavi District shall be continued in the name of writ petitioner (Sri Srikant Nimbalkar) and the appellants (Sri Ganapati and Sri Rajendra), which would be subject to result of R.S.A.No.5160/2011. 14. We made it clear that no opinion with regard to possession of the property is expressed and it is open for both parties to work out their remedy in the pending R.S.A.No.5160/2011. I.A.No.2/2019 filed for stay, does not survive. Stands rejected.