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Guddappa Fakirappa Madar v. The Deputy Commissioner (Karnataka) : Law Finder Doc
Id # 422043

2002(5) KantLJ 295

KARNATAKA HIGH COURT

Before :- N. Kumar, J.

Writ petition No. 14889 of 2001(KLR-RR/SUR). D/d. 17.06.2002.

Guddappa Fakirappa Madar and Others - Petitioner

Versus

The Deputy Commissioner and Others. - Respondent

For the Petitioner :- F.V. Patil, Advocate.

For the Respondent Nos. 1 and 2 :- K. Shantharaj, Advocate.

For the Respondent No. 3 :- Chandrashekar P. Patil, Advocate.

ORDER

N. Kumar, J. - One Fakirappa Madar was the owner of land bearing Sy. No. 14/A
measuring 9 acres 29 guntas situated at Nellikoppa Village, Byadagi Taluk, Haveri
District. He died in the year 1971. On his death, the third respondent herein made an
application to the Revenue Authorities to mutate his name in place of his deceased
father as the deceased father left behind the third respondent as the only legal heir. On
that basis, the name of third respondent was entered in the mutation register. It
continued up to 1986. In the year 1986, on the basis of a consent wardi given on 20-12-
1986, the petitioners names were entered in the mutation register and the name of third
respondent was deleted. Aggrieved by the same, the third respondent preferred an
appeal before the Assistant Commissioner in Appeal No. RTS.AP.3/90-91 without filing
any application for condoning the delay. The said appeal came to be dismissed in limine
as barred by time. Thereafter, the third respondent after a larges of six years preferred
one more appeal suppressing the fact that he had preferred earlier appeal and it had
been dismissed on the ground of bar of limitation. In the second appeal he made an
application for condonation of delay. The Assistant Commissioner condoned the delay
and set aside the mutation entry made by the Tahsildar on the basis of joint wardi.
Aggrieved by the same, the petitioners preferred a revision before the Deputy
Commissioner. In the meanwhile, the third respondent has also preferred a revision
against the order dismissing the earlier appeal as barred by time. The Deputy
Commissioner after hearing both the revisions dismissed the revision filed by the
petitioners and allowed the revision filed by the third respondent on the ground that the
Assistant Commissioner has already set aside the entry in the mutation register in the
second appeal. Aggrieved by the said order , the petitioners have preferred this writ

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petition.

2. Sri F.V. Patil, learned Counsel appearing for the petitioners, contended that when the
first appeal preferred by the third respondent was dismissed as barred by limitation, the
second appeal filed by him with an application for condonation of delay on the ground
that he was not aware of the earlier proceedings could not have been allowed by the
Deputy Commissioner as it clearly amounts to suppression of facts. Secondly, he
contends when the third respondent did not challenge the order passed in appeal which
was dismissed as barred by time, the second appeal itself was not maintainable. The
Deputy Commissioner committed serious error in dismissing the revision filed by the
petitioners and in entertaining the revision preferred by third respondent. Lastly, he
contended when a joint wardi was the basis for making an entry it was not open to the
third respondent to challenge the same and if really he is aggrieved he should initiate
appropriate civil proceedings to establish his title to the property and the proceedings
initiated by him by way of revision and appeal is not a remedy for him.

3. Per contra, Sri Chandrashekar P. Patil, learned Counsel for the third respondent
contends, though there is some irregularity in the procedure adopted by the second
respondent in challenging the mutation order , the fact remains that the petitioners are
in no way related to the third respondent. They were not the legal heirs of deceased
Fakirappa, the original owner, and in joint wardi their names could not have beer
entered as it does not confer any title on them and more over when the petitioners have
already filed a suit for declaration of title and injunction in O.S. No. 64 of 1999 on the
file of Civil Judge (Senior Division), Ranebennur. When the matter is pending
consideration before the Civil Court , the Revenue Authorities should not have entered
the names of the petitioners till a final judgment is given in the said suit. In this view of
the matter, he submits that the orders passed by the Assistant Com- missioner and
Deputy Commissioner will not call for any interference.

4. From the facts stated supra and the rival contentions, the undisputed facts are that
the land bearing Sy. No. 14/A measuring 9 acres 29 guntas situated at Nellikoppa
Village, Byadagi Taluk, Haveri District, originally belonged to Fakirappa Madar. He died in
the year 1971. On his death, the mutation entry was made in the name of third
respondent whose name continued till the year 1986. In 1986, on the basis of a joint
wardi made by the petitioners and third respondent, the petitioners' names have been
entered in the mutation register. The recitals of the mutation entries disclose that the
third respondent was the rightful owner of the said property and he has relinquished his
right in favour of the petitioners and on the basis of joint wardi, his name is entered. If
the petitioners acquire title to the said property, in a manner known to law, then the
petitioners will be entitled to get their names entered in the mutation register.

5. Admittedly, the mode in which the petitioners acquired title to the property in
question is not evidenced by any registered document. Petitioners contend that they are
also children of deceased Fakirappa, original owner, and by inheritance they have a right
and by consent of third respondent their names are entered. Fakirappa on his part
disputed the relationship. In other words, status of the petitioners are disputed and also
dispute the fact that it is a joint family property. Revenue Authorities cannot go into the
question of status of the parties, nature of the property in proceedings under Sections
128 and 129 of the Karnataka Land Revenue Act. Therefore, in the absence of registered
document evidencing acquisition of right by the petitioners to the property in dispute,
solely on the basis of joint wardi, the Revenue Authorities should not have mutated the
names of petitioners as there is no provision in the Karnataka Land Revenue Act for such
entries being made. Therefore, the order passed by the Tahsildar, mutating the names
of the petitioners is one without jurisdiction and cannot be sustained.

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6. No doubt, third respondent made an attempt to challenge the order by way of an
appeal after lapse of six years which came to be dismissed as barred by time. Again, he
filed one more appeal with an application for condonation of delay, This time he was
successful in getting the delay condoned and the order set aside. Both the parties
preferred revision before the Deputy Commissioner who in exercise of revisional power
has dismissed the appeal filed by the petitioner and confirmed the order of the Assistant
Commissioner. Though the procedure adopted by the Revenue Authorities is not proper,
still in this case having regard to the facts and circumstances, justice has been done. An
order which is passed without jurisdiction is set aside and the name of the original
owner has been restored. The petitioners have filed a suit for declaration of their title
and for other consequential relief in respect of the property in dispute. If they succeed in
the suit, ultimately, the Revenue Authorities are bound to give effect to the decision of
the Civil Court decree. In the result, I pass the following order :

Writ petition is dismissed. The impugned orders passed by the Assistant

Commissioner and Deputy Commissioner do not call for any interference. However,
the Civil Court where the suit for declaration is pending shall decide the rights of
the parties to the property in dispute without being in any way influenced by the
orders passed by this Court as well as the orders passed by the Assistant
Commissioner and Deputy Commissioner. Parties to bear their own costs.

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