IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JULY 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION NO.9120/2013(LR/SEC 48A) BETWEEN 1. SMT. RAMANI AGED ABOUT 65 YEARS, W/O VISHWANATH KARKAERA, DEVAMMA COMPOUND, ATTAVARA, MANGALORE – 575 003.
2. SRI SANJEEV AGED ABOUT 70 YEARS, S/O KALYANI AND SHESHAPPA AMIN, DURGA NIVAS, NEAR PUMP OIL, MANGALORE -575 008.
3. SMT.LALITHA AGED ABOUT 68 YEARS, D/O KALYANI AND SHESHAPPA AMIN, SALIAN, SAKET A-6 (TATA POWER SOCIETY), SECTOR-16A, VASHI NEW BOMBAY, THANE (DISTRICT-400703.
4. SMT.DEVAKI AGED ABOUT 63 YEARS, D/O SHESHAPPA AMIN, KORGA POOJARY COMPOUND, BOHAR, MANGALORE -575 003.
5. SMT.PUSHPALATHA AGED ABOUT 66 YEARS, D/O SUNDARI AND SANJEEV POOJARY, W/O SHASHIPAL BANGERA, “YASHASHWI” VAMANJOOR, MANGALORE-575018.
6. SMT.SUREKHA AGED ABOUT 40 YEARS, W/O NAGESH SALION, D/O PUSHPA LATHA, JAYALAKSHMI BOLLOOR, MANGALORE-575003.
7. MR.AASITH AGED ABOUT 18 YEARS, S/O SUREKHA, JAYALAKSHMI COMPOUND, BOLLOOR, MANGALORE-575003.
8. SMT.VINODA AGED ABOUT 61 YEARS, D/O SUNDARI AND SANJEEV POOJARY, W/O DOMUBAIYA POOJARY, BADEKUTTE HOUSE, BANTWAL, MANGALORE-575071.
9. SMT.SOUMYA AGED ABOUT 34 YEARS, D/O VINODA, BADEKUTTE HOUSE, BANTWAL, MANGALORE-575071.
10. SMT.SAPNA AGED ABOUT 32 YEARS, D/O VINODA, BADEKUTTE HOUSE, BANTWAL, MANGALORE-575071.
11. SMT.REVATHI AGED ABOUT 63 YEARS, D/O SUNDARI AND SANJEEV POOJARY, W/O NITHEN KUMAR, KARNEL GARDEN, BONDEL, MANGALORE-575 008.
12. SMT.ANURADHA AGED ABOUT 35 YEARS, D/O REVATHI AND NITHEN KUMAR, KARNEL GARDEN, BONDEL, MANGALORE-575 008.
13. SMT.AMBRITHA AGED ABOUT 34 YEARS, D/O REVATHI AND NITHEN KUMAR, KARNEL GARDENM, BONDEL, MANGALORE-575008.
14. SMT.AKASHATHA AGED ABOUT 32 YEARS, D/O REVATHI AND NITHEN KUMAR, KARNEL GARDEN, BONDEL, MANGALORE-575008.
15. SMT.MEERA AGED ABOUT 53 YEARS, D/O SUNDARI AND SANJEEV POOJARY, W/O YATHINDRA, PACHANDY, BONDEL, MANGALORE-575008.
16. SRI AMAR DEEP AGED ABOUT 30 YEARS, S/O REVATHI AND NITHEN KUMAR, KARNEL GARDEN, BONDEL, MANGALORE-575008.
17. SMT.LAILA AGED ABOUT 36 YEARS, D/O DEVAKI, BOHAR, MANGALORE-575003.
18. SRI VASANTH AGED ABOUT 41 YEARS, S/O LALITHA, VASHI, NEW BOMBAY. ... PETITIONERS (BY SRI SHIVAKUMAR GOGI, ADVOCATE) AND 1. THE STATE OF KARNATAKA REP. BY ITS REVENUE SECRETARY, VIDHANA SOUDHA, DR.AMBEDKAR VEEDHI, BANGALORE-560 001.
2. THE LAND TRIBUNL MANGALORE -575 008 REP. BY ITS CHAIRMAN.
3. SMT.MINAKSHI AGED ABOUT 68 YEARS, W/O. SADASHIVA POOJARY, 4. SMT.SHOBHA AGED ABOUT 48 YEARS, D/O SASASHIVA POOJARY, 5. SMT.JAYSHREE AGED ABOUT 46 YEARS, D/O SADASHIVA POOJARY, 6. SRI.JAGADISH AGED ABOUT 44 YEARS, S/O SADASHIVA POOJARY, 7. SRI.YOGESH AGED ABOUT 42 YEARS, S/O SADASHIVA POOJARY, 8. SRI.MAHESH AGED ABOUT 40 YEARS, S/O SADASHIVA POOJARY, RESPONDENT NOS.3 TO 8 ARE RESIDING AT KALYANI KAVALACHIL HOUSE, PANJIMOGERU VILLAGE, KULOOR, MANGALORE- 575 008. ... RESPONDENTS (BY SMT.B.P.RADHA, AGA FOR R1 & R2, SRI RAVISHANKAR SHASTRY, ADVOCATE FOR R3 TO R8) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DT.20.8.1980 PASSED BY THE 2ND RESPONDENT AT ANNEXURE-F & QUASH THE FORM NO.10 ISSUED BY THE THASHILDAR ON 14.8.1993 AT ANNEXURE-E.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioners herein are challenging the order dated 20.8.1980 in proceedings No.LRT:2:3333/77-78 passed by 2nd respondent vide Annexure-F and consequently issuance of Form No.10 by Tahsildar of Mangaluru Taluk on 14.8.1993 vide Annexure-E.
2. The material on record would indicate that the petitioners and respondents herein are lineal descendants of one Maire Hengasu, who was admittedly owner and tenant of several lands. It is stated that she died leaving her surviving her 4 children, namely Parameshwari, Ponnappe Hengasu, Lakkanna Poojary and Dooma Poojary and after the death of Maire Hengasu there was dispute between her lineal descendants with reference to sharing of lands which belonged to said Marie Hengasu both under Chalgeni rights and ownership.
3. In fact, this Court in the recent past decided one another writ petition in WP.No.9119/2013, which is with reference to members of the very same family, where the petitioners were lineal descendants of Maire Hengasu through her 2nd daughter Ponnappe Hengasu. In the present writ petition also, the very same petitioners and some others are challenging the order impugned in this proceedings on the premise that tenancy right which is conferred in favour of some of the respondents, namely respondents 3 to 8 herein are with reference to the properties in respect of which they are also having right. It is contended that besides the properties in question, there are some more properties owned by Maire Hengasu which are also succeeded by them.
4. Therefore, in the light of discussion in the order passed in WP.No.9119/2013, disposed off on 10.7.2019, this Court is of the considered opinion that, if ownership to the properties in question in the said writ petition is traceable to Maire Hengasu, then all the petitioners and respondents in the said proceedings are entitled to a share in all the properties where the petitioners sought for such share, for the simple reason that, there is already a suit decided where the rights of the parties is recognized with reference to the share which each one of them are entitled to. If any of the properties which is not included in the said suit and if it is found to be belonging to Maire Hengasu without there being any dispute, the petitioners, respondents 3 to 8 and others would get a share in those properties also in the same ratio in which their rights are decided in the earlier round of original suit where their right to succession is decided by a judgment and decree.
5. Therefore, in this proceedings the responsibility of this Court is limited to recognize the said judgment and decree secured by the parties in the afore mentioned suit so far as it pertains to share to which they are entitled to in the properties left behind propositus - Maire Hengasu. If for any reason, they have failed to seek share in any of the properties belonging to Maire Hengasu either due to ignorance or not being aware of said properties were also the properties of Maire Hengasu, then the petitioners, respondents 3 to 8 and others are at liberty to seek re- distribution of that properties in the manner in which decree is granted in OS.No.237/1997. The said share they can seek in the Court which decided their respective right or by filing Execution Petition on the basis of the judgment and decree in the aforesaid suit, where the share of each of the parties is identified and if the properties in question in this writ petition and other properties could be demonstrated as the property of Maire Hengasu, then the Executing Court by itself conduct an enquiry under Order 21 Rule 97 of CPC and re-allocate the share in respect of the properties that belong to Maire Hengasu as if it was part of the schedule to the original suit, which was filed for the relief of partition as sought in the said suit.
6. With such observations, this writ petition is also disposed of.
Sd/- JUDGE nd/-