IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 26TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S.G.PANDIT WRIT APPEAL NO.232/2015 (LR) BETWEEN:
1. M.SHATRUNJAYA SHETTY, S/O. LATE M.NEMIRAJ SHETTY, AGED ABOUT 58 YEARS, R/O. JAIN COMPOUND, ATTAVAR, MANGALORE, D.K. DISTRICT-575 001.
2. M. JAYA KEERTHI SHETTY, S/O.LATE M.NEMIRAJ SHETTY, AGED ABOUT 72 YEARS, R/O. 17/41, 2A MAIN ROAD, SAPTHAGIRI NILAYA, C/O. GAJENDRA NAIDU, 3RD CROSS, ITTAMADU, BANASHANKARI, BENGALURU-560 085.
3. SMT. SOUBHAGYAVATHI, W/O. M. SUBALARAJ SHETTY, AGED ABOUT 68 YEARS, R/O. PONNECHAR HOUSE, MOODABIDRI-574 227.
4. MRS. M. VIJAYA, W/O. K. RAVIRAJ, AGED ABOUT 58 YEARS, R/O. HUKKERIKAR NAGAR, SHETTARA COLONY, DHARWAD-580 001.
5. SMT. M.SARASWATHI, W/O. LATE K. VARISENA SHETTY, AGED ABOUT 68 YEARS, R/O. VITTALA HOUSE, P.O. DAREGUDDE, KARKALA TALUK-574 104.
6. SMT. M. PRIYAKARINI, W/O. SRI. BHAGAVANDAS, AGED ABOUT 58 YEARS R/O " SHRUTHA", NEAR POST OFFICE, B.C. ROAD, BANTWAL TALUK, D.K. DISTRICT-574 211. ... APPELLANTS (BY SRI. G.BALAKRISHNA SHASTRY, ADVOCATE) AND:
1. LAND TRIBUNAL, KARKALA, REP. BY ITS CHAIRMAN, KARKALA DISTRICT, UDUPI-574 104.
2. STATE OF KARNATAKA, REP. BY ITS SECRETARY, REVENUE DEPARTMENT, M.S.BUILDING, BENGALURU-560 001.
3. SURAJ KUMAR, S/O.SHANTIRAJA ARASA, MAJOR, YERMALU BEEDU, YERMALU VILLAGE, UDUPI TALUK & DISTRICT-576 101. ... RESPONDENTS (BY MS. N.ANITHA, HIGH COURT GOVERNMENT PLEADER FOR R1 & R2; SRI.VYASA RAO K.S., ADVOCATE FOR R3) ******* THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN WRIT PETITION NO.13709/2012 DATED 2/12/2014.
THIS WRIT APPEAL COMING ON FOR ADMISSION THIS DAY, RAVI MALIMATH J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the order passed by the learned Single Judge in dismissing the writ petition, petitioners have filed this appeal.
2. The case of the petitioners is that the lands in question were owned by Pachappa Shetty. He died unmarried. Smt. Lakshmimathiamma was his sister’s daughter. She and her children having inherited the said lands under Aliyasanthana law, executed a registered release deed dated 19.12.1956 in favour of one Gunavathiamma and her children. Under the release deed, the lands in question came to the ownership of the petitioners through their mother Gunavathiamma. The name of their mother was entered in the record of rights as khathedar in possession of the lands. After coming into force of the Karnataka Land Reforms (Amendment) Act, 1974, respondent No.3 filed Form-VII seeking grant of occupancy rights by arraigning one Sri Narayana Hegde, deceased by his son Sanjeeva Hegde and Nagaveniyamma, the mother of 3rd respondent as respondents before the Land Tribunal, Karkala. By the Order dated 30.08.1980, the Land Tribunal granted occupancy rights of the lands in question in favour of the 3rd respondent. Questioning the said order, the instant writ petition was filed. There was a delay of 32 years in filing the writ petition. The learned Single Judge on considering the various Judgments of this Court as well as the Supreme Court, rejected the petition on the ground of delay. The learned Single Judge also considered the plea of the writ petitioners therein that no notice of the proceedings before the Land Tribunal was served. In the circumstances, the present appeal is filed.
3. Learned counsel for the appellants contends that there is no default committed by the appellants since there was not even a notice issued to them with regard to the proceedings before the Land Tribunal. When the delay has been properly explained, it is pleaded that the appeal be allowed by setting aside the impugned order passed by the learned Single Judge. The same is disputed by the learned counsel for the contesting respondent No.3.
4. This matter was heard at length on the previous date. The only question asked to the appellants’ counsel was as to how the property of Pachappa was inherited by his sister’s daughter. In pursuance thereof, I.A.1/19 has been filed wherein the family tree has been produced. However, not a single submission is made with regard to the only question asked by this Bench on the previous date. Various contentions have been addressed on merits which are not necessary to be considered.
5. The primary plea is that Pachappa Shetty died as a bachelor. It is the case of the petitioners that Pachappa Shetty’s sister’s daughter inherited the properties. The family tree would indicate that Pachappa Shetty was born to Gunavathi and Bhujabali Shetty who had six children including Pachappa Shetty. Therefore on the death of Pachappa Shetty as a bachelor, necessarily in law, his properties would stand divided between his brothers and sisters. There is no material to indicate as to how Lakshmimathiamma daughter of Shivadevi i.e. the sister of Pachappa Shetty, inherited the properties. The properties should have been divided between the brothers and sisters of Pachappa Shetty. It is this question that has remained unanswered even as on date. The contention that the subsequent release deed and the matters of the like nature would not be necessary for us to consider. The lineage of the properties would have to be provided on record. Until and unless it is shown that Lakshmimathiamma has inherited Pachappa Shetty’s properties in accordance with law, the question of the further proceedings being vitiated and such other grounds would not arise at all for consideration. Therefore we do not find any merit in this appeal. The learned Single Judge having considered the delay, was of the view that there is no satisfactory explanation. Hence, on that ground also we do find any merit to interfere with the order of the learned Single Judge.
6. I.A. 2/17 is an application filed under Order XLI Rule 27 read with S.151 of Civil Procedure Code seeking production of five documents namely the cumulative record of the first appellant, the survivor certificate showing appellants as legal representatives of Smt. Gunavathi, application submitted by Ashok Raj for including his name in the record of rights mutation record regarding change of RTC entries from Gunavathi Amma to appellants and thereafter to Ashok Raj, and death certificate of Nemiraja Shetty. None of these documents will come to the aid of the appellants in any manner whatsoever in view of the fact that the inheritance of the property of Pachappa Shetty by his sister’s daughter has not been proved at all. Hence we find no merit.
Appeal is dismissed.
In view of disposal of the main appeal, pending application I.A.1/2017 for temporary injunction is dismissed along with I.A.2/2017 and I.A.1/2019.
Sd/- Sd/-
JUDGE JUDGE sac* CT-RG