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2022 DIGILAW 1020 (KAR)

Rathnamma v. Deputy Commissioner

2022-08-03

ALOK ARADHE, S.VISHWAJITH SHETTY

body2022
JUDGMENT VISHWAJITH SHETTY J. - This intra court appeal has been filed by the unsuccessful petitioners challenging the order dtd. 15/6/2022 passed by the learned Single Judge of this Court in W.P.No.14932/2021. 2. Brief facts of the case as revealed from the records are, one Basavalingaiah had five children viz., Basavaiah, Rathnamma (appellant no.1), Nagamma, Gowramma (mother of respondents 5 & 6) and Shanthamma (respondent no.4.). The daughters of Basavalingaiah had instituted a suit for partition in O.S.No.788/1989 in respect of five items of agricultural lands against their brother Basavaiah. Smt. Nagamma who was originally one of the plaintiff in O.S.No.788/1989 was subsequently transposed as defendant no.2 in the said suit. O.S.No.788/1989 was decreed on 11/11/1993 and the plaintiffs and defendants were held entitled for 1/5th share in the schedule properties. As against the judgment and decree passed in O.S.No.788/1989, defendant no.1 - Basavaiah had filed R.A.No.1/1994, which was dismissed on 23/1/2022 and the Regular Second Appeal filed by him in R.S.A.No.327/2002 was also dismissed on 10/12/2007. Therefore, the preliminary decree passed in O.S.No.788/1989 had attained finality. 3. During the pendency of the Regular Appeal, the plaintiffs had initiated final decree proceedings before the Trial Court in FDP.No.28/1994 and a final decree was also drawn on 11/10/2001. In the meanwhile, the revenue entries in respect of the lands which were the subject matter of the suit were ordered to be mutated in the name of the children of late Basavalingaiah as per the mutation orders passed in M.R.No.18/1996-97. Thereafter, Smt. Gowramma and Smt. Shanthamma allegedly agreed for the revenue entries to be mutated in favour of appellant no.1 herein, and accordingly, the name of appellant no.1 was entered in the revenue records on 31/12/2001. Subsequently, Gowramma, Shanthamma and appellant no.1 herein jointly sold certain portion of the land under two registered sale deeds dtd. 18/1/2011. After executing the aforesaid sale deeds, on 7/5/2011 appellant no.1 herein has gifted the remaining land in favour of her daughter - appellant no.2 herein under a registered gift deed and based on the said document, the khatha of the land which was the subject matter of the gift deed was transferred in the name of appellant no.2. 4. 18/1/2011. After executing the aforesaid sale deeds, on 7/5/2011 appellant no.1 herein has gifted the remaining land in favour of her daughter - appellant no.2 herein under a registered gift deed and based on the said document, the khatha of the land which was the subject matter of the gift deed was transferred in the name of appellant no.2. 4. When the matter stood thus, the legal representatives of Gowramma and Shanthamma, have preferred an appeal under Sec. 136(2) of the Karnataka Land Revenue Act, 1964 (for short, 'the Act'), before the Assistant Commissioner, challenging the entries made in the revenue records of the land which were the subject matter of the suit, on the ground they are contrary to the final decree. The Assistant Commissioner had dismissed the appeal and in revision, the Deputy Commissioner had set aside the order passed by the Assistant Commissioner and had directed to enter the names in the revenue records of the lands in question in accordance with the final decree passed in FDP.No.28/1994. Being aggrieved by the same, the appellants had filed W.P.No.14932/2021 which was dismissed by the learned Single Judge of this Court vide the order impugned. Hence, this appeal. 5. Learned Counsel for the appellants submits that the appeal under Sec. 136(2) of the Act was filed after a delay of 10 years, and therefore, the Assistant Commissioner was justified in dismissing the same. She submits that with the consent of her sisters - Gowramma and Shanthamma, the revenue records of the property were changed in the name of appellant no.1 and the three sisters have jointly executed the sale deed in respect of the portion of the land. She submits that thereafter a registered gift deed has been executed in the name of appellant no.2 and already entries are made in the name of appellant no.2 on the strength of the registered gift deed. Therefore, the Deputy Commissioner was not justified in setting aside the order passed by the Assistant Commissioner directing to enter the names in the revenue records as per the final decree passed in FDP No.28/1994. 6. We have carefully appreciated the arguments addressed by the learned Counsel for the appellants and also perused the material on record. 7. Therefore, the Deputy Commissioner was not justified in setting aside the order passed by the Assistant Commissioner directing to enter the names in the revenue records as per the final decree passed in FDP No.28/1994. 6. We have carefully appreciated the arguments addressed by the learned Counsel for the appellants and also perused the material on record. 7. The undisputed facts of the case are, the rights of the contesting parties herein with regard to the lands in question have been already adjudicated in a suit for partition and pursuant to the preliminary decree passed in the said suit in O.S.No.788/1989, a final decree has been already passed in FDP No.28/1994. The existence of the final decree granted by a competent Civil Court in FDP.No.28/1994 was never brought to the notice of the revenue authorities and the revenue entries were allegedly changed on the basis of the consent of two sisters. Subsequently, appellant no.1 and the other two sisters have jointly sold certain portion of the lands under two registered sale deeds and in respect of the said land, the learned Single Judge has rightly observed that the entries in the revenue records cannot be mutated in accordance with the final decree and the same are required to be done as per the registered deeds executed by the three sisters on 18/1/2011. 8. In so far as the remaining items of lands are concerned, the learned Single Judge has observed that the entries in the revenue records of the said lands are required to be done in accordance with the final decree passed in FDP.No.28/1994. The learned Single in paragraph no.18 has observed as under: "18. In my view, this reasoning of the Deputy Commissioner cannot be found fault with, especially when it is the admitted case of the 1st petitioner herself that there is a decree granted by the Civil Court. Once a decree has been granted by the Civil Court, neither the 1st petitioner, nor her sisters can wish away the said preliminary decree and demand the revenue authorities to mutate the names in the revenue records to suit their convenience. Even if such a mutation is made, since it would be contrary to the decree passed by the Trial Court, the same cannot be sustained. Even if such a mutation is made, since it would be contrary to the decree passed by the Trial Court, the same cannot be sustained. The Deputy Commissioner was, therefore, absolutely justified in allowing the revision and directing the revenue records to be made out in accordance with the final decree proceedings. 9. Undisputedly, Smt. Gowramma and Smt. Shanthamma are not the parties to the gift deed and the said deed has been executed only by appellant no.1 in favour of her daughter - appellant no.2. The validity of the said deed has been questioned by respondents 4 to 6 herein in O.S.No.247/2021 and considering this aspect of the matter, the learned Single Judge has observed that if the jurisdictional court upholds the gift deed executed in favour of appellant no.2 and dismissed the suit of respondents 4 to 6, the revenue authorities would be bound by such a decree. 10. Under the circumstances, we are of the considered view that the impugned order passed by the learned Single Judge of this Court does not suffer from any illegality or irregularity which calls for interference. We, therefore, find no good grounds to interfere with the said order. Accordingly, the writ appeal is dismissed.