IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION NO.9119/2013 (LR) BETWEEN 1. H PUSHPA LATHA AGED ABOUT 66 YEARS, D/O.SUNDARI AND SANJEEV POOJARY, W/O.SHASHIPAL BANGERA, "YASHAASHWI" VAMANJOOR, MANGALORE-575018 2. SMT. SUREKHA AGED ABOUT 40 YEARS, W/O NAGESH SALION, D/O PUSHPA LATHA, JAYALAKSHMI BOLLOOR, MANGALORE -575003 3. AASITH AGED ABOUT 18 YEARS, S/O SUREKHA, JAYALAKSHMI COMPOUND, BOLLOOR, MANGALORE- 575003 4. VINODA AGED ABOUT 61 YEARS, D/O SUNDARI ANDSANJEEV POOJARY, W/O.DOMUBAIYA POOJARY, BADEKUTTE HOUSE, BANTWAL, MANGALORE-575071 5. SMT. SOUMYA AGED ABOUT 34 YEARS, D/O.VINODA, BADEKUTTE HOUSE, BANTWAL, MANGALORE-575071 6. SMT. SAPNA AGED ABOUT 32 YEARS, D/O.VINODA, BADEKUTTE HOUSE, BANTWAL, MANGALORE-575071 7. SMT. REVATHI AGED ABOUT 63 YEARS, D/O SUNDARI AND SANJEEV POOJARY, W/O NITHEN KUMAR, KARNEL GARDEN, BONDEL, MANGALORE-575008 8. SMT. ANURATHA AGED ABOUT 35 YEARS, D/O REVATHI NAD NITHEN KUMAR, KARNEL GARDEN, BONDEL, MANGALORE-575008 9. SMT. AMBRITHA AGED ABOUT 34 YEARS, D/O REVATHI AND NITHEN KUMAR, KARNEL GARDEN, BONDEL, MANGALORE-575008 10. SMT. AKASHATHA AGED ABOUT 32 YEARS, D/O REVATHI AND NITHEN KUMAR, KARNEL GARDEN, BONDEL, MANGALORE-575008 11. SMT. MEERA AGED ABOUT 53 YEARS, D/O SUNDARI AND SANJEEV POOJARY, W/O YATHINDRA, PACHANDY, BONDEL, MANGALORE-575008 12. SRI. AMAR DEEP AGED ABOUT 30 YEARS, S/O REVATHI AND NITHEN KUMAR, KARNEL GARDEN, BONDEL, MANGALORE-575008 13. SMT. LAILA AGED ABOUT 36 YEARS, D/O DEVAKI, BOHAR, MANGALORE-575003 14. SRI .VASANTH AGED ABOUT 41 YEARS, S/O LALITHA, VASHI, NEW BOMBAY … PETITIONERS (BY SRI SHIVAKUMAR GOGI, ADV.) AND:
1. THE STATE OF KARNATAKA REP. BY ITS REVENUE SECRETARY, VIDHAN SOUDHA, DR.AMBEDKAR VEEDHI, BANAGALORE-560001 2. THE LAND TRIBUNAL MANGALORE, REP. BY ITS CHAIRMAN.
3. K. KALLYANI S/O.LAKKANNA POOJARY, KALYANI KAVALACHIL HOUSE, PANJIMOGERU VILLAGE, KULOOR, MANGALORE-575 008.
... RESPONDENTS (BY SRI T.S.MAHANTESH, AGA FOR R1 & R2; SRI B.L.ACHARYA, ADV. FOR R3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 20.8.1981 PASSED BY 2ND RESPONDENT, AT ANNEXURE-F AND QUASH THE FORM NO.10 ISSUED BY THE THASHILDAR DATED 31.12.1981 AT ANNEXURE-E AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioners herein are members of joint family of late Mair Hengasu. This writ petition is filed by them seeking quashing of Annexures- E and F. Admittedly Annexure-F is Order dated 28.08.1981 passed in LRT No.303330:77- 78/64:80-81 on the file of Land Tribunal – III, Mangalore Taluk where the application of respondent No.3 i.e. K.
Kalyani and her father Lakkappa Poojary seeking occupancy rights in respect of lands bearing Sy. Nos.2/7 and 6/1 situated at Mangaluru Taluk was entertained and occupancy rights in respect of said survey numbers to an extent of 2 acres and 5 cents was granted in favour of 3rd respondent herein.
2. It is stated that the lands which are subject matter of application in form-7 was initially filed by 3rd respondent’s father Lakkappa Poojary and his daughter Smt. Kalyani – 3rd respondent herein as chalageni tenants of said land. Admittedly the chalageni right to said land was with Lakkappa Poojary’s mother Mair Hengasu who died leaving her surviving four children, namely; Parameshwari, Ponnappe Hengasu, Lakkanna Poojary and Dooma Poojary. It is stated that Lakkappa Poojary is survived by 3rd respondent - K. Kalyani and another person by name Bhujanga as per the genealogy tree at Annexure-
B. The said Lakkappa Poojary and his daughter Kalyani are the persons who initiated proceedings in Form-7 before the Land Tribunal, Mangalore Taluk, in which after the death of Lakkappa Poojary, the application filed by his daughter - 3rd respondent herein was considered and occupancy right was granted in favour of the 3rd respondent K. Kalyani by the Tribunal vide Annexure-F.
3. The grievance of the petitioners is that though the application is filed by Lakkappa Poojary and his daughter and later occupancy right is granted in favour of Lakkappa Poojary’s daughter K. Kalyani, they did not had any independent tenancy right in the said property. According to petitioners herein, the tenancy right to said property was for the joint family of the petitioners for which the application was filed by Lakkappa Poojary and his daughter. Therefore even though the application is considered in the name of 3rd respondent - Kalyani, the same is for the benefit of the joint family and not for individual benefit of 3rd respondent and therefore the order at Annexure-F dated 20.08.1981 which is passed in favour of K. Kalyani is required to be quashed. Consequently the Form-10 which is issued in the name of K. Kalyani as at Annexure-E dated 31.12.1981 is also required to be quashed.
4. After hearing learned counsel for the petitioners as well as contesting respondent No.3 and also learned Additional Government Advocate appearing for respondent Nos.1 and 2, this Court is of considered opinion that the question of quashing the orders at Annexures – E and F does not arise in as much as the right considered to K. Kalyani is actually in favour of the family of Mair Hengasu. Therefore, it is open to the petitioners to seek their respective share in the said property in a suit which is stated to have been already filed for the relief of partition where 3rd respondent – K. Kalyani is also one of the defendants. Assuming for a moment the suit is not already filed, it is open for the petitioners to initiate a suit for partition wherein they are entitled to include the property in respect of which tenancy rights is granted in favour of K. Kalyani considering the fact that the said application in Form No.7, seeking occupancy right was filed by her as one of the legal representatives of Mair Hengasu.
5. In view of the aforesaid observations, this writ petition is disposed of reserving liberty to the petitioners herein to pursue their right in a suit for partition in respect of land which is granted in favour of 3rd respondent herein.
Sd/- JUDGE sac*