IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF DECEMBER 2017 BEFORE THE HON’BLE MR. JUSTICE S.N.SATYANARAYANA WRIT PETITION NO.54220 OF 2014 (KVOA) BETWEEN:
SMT.SHAMANTHAMANI N.L. W/O LATE SRINIVASA MURTHY NOW AGED ABOUT 53 YEARS RESIDING AT 2ND CROSS KUVEMPU NAGAR, ‘A’ DIVISION CHANNAPATNA TOWN – 562 160 NOW RAMANAGARA DISTRICT REPRESENTED BY HER POWER OF ATTORNEY HOLDER B.K.SHIVARAJU S/O KALABYRAIAH AGE: 53 YEARS RESIDING AT NO.84A, 7TH CROSS 4TH MAIN, BAPUJINAGAR MYSORE ROAD BANGALORE – 560 026 … PETITIONER (BY SRI.PRADEEP J.S., ADV. FOR SRI.N.SUBBA SHASTRY, ADV.) AND:
1. STATE OF KARNATAKA BY ITS CHIEF SECRETARY M.S.BUILDING BANGALORE – 560 001 2. THE TAHSILDAR CHANNAPATNA TALUK CHANNAPATNA – 562 160 NOW RAMANAGARA DISTRICT 3. SRI.KEMPEGOWDA S/O LATE KEMPEGOWDA @ CHIKKA HYDA GOWDA AGE: 61 YEARS R/O BALLAPATNA VILLAGE VIRUPAKSHIPURA HOBLI CHANNAPATNA TALUK-562 160 NOW RAMANAGARA DISTRICT 4. SMT.JAYAMMA D/O LATE KEMPEGOWDA @ CHIKKAHYDE GOWDA W/O LATE HALASINA KARIYANNA AGE: 59 YEARS R/O BALLAPATNA VILLAGE VIRUPAKSHIPURA HOBLI CHANNAPATNA TALUK-562 160 NOW RAMANAGARA DISTRICT … RESPONDENTS (SRI.Y.D.HARSHA, AGA FOR R1 AND R2 SRI.K.P.BHUVAN, ADV. FOR R3 AND R4) - - -
This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying to call for records in M.A.No.2/2007 from the file of the I Addl. District and Sessions Judge Court at Ramanagara.
This Petition coming on for Preliminary Hearing ‘B’ Group this day, the Court made the following:-
ORDER The petitioner, in proceedings bearing No.HOA.CR.45/91-92 on the file of Tahsildar, Channapatna, has come up in this writ petition impugning the order of Tahsildar dated 11.12.1998 which is confirmed in M.A.No.2/2007 on the file of I Addl. District and Sessions Court, Ramanagara.
2. The proceedings before 2nd respondent – Tahsildar was initiated by petitioner herein along with other persons seeking occupancy right in respect of land bearing Sy.No.25/1 measuring 3 acres 14 guntas of Ballapatna Village, Virupakshipura Hobli, Channapatna Taluk which was admittedly shanbhog inam of Shanbog Bhaskarappa.
3. The material on record would indicate that Bhaskarappa had 3 children by name Gundappa, Narayanappa and Surappa. It is stated that on 31.10.1972 the grand sons of Shanbog Bhaskarappa i.e.
his first son Gundappa’s children Sundar Rao and Srinivasa Murthy are said to have executed a registered sale deed dated 31.10.1972 conveying the aforesaid land in favour of father of respondent Nos.3 and 4 namely, Kempegowda @ Chikka Hyda Gowda who is said to have become owner of aforesaid land and is in possession and cultivation of the same. After issuance of notification for considering the applications for re-grant on 7.8.1978, it is seen that an application is filed by the widow of one of the vendors Srinivasa Murthy namely Shamanthamani seeking re-grant of aforesaid land in her favour. Along with her, there were other persons who filed applications on the basis of agreements of sale under which they were claiming title to the said property.
4. In the proceedings before 2nd respondent – Tahsildar which is in No.HOA.CR.45/91-92, the prayer of petitioner herein seeking occupancy right was rejected and the same was confirmed in favour of father of respondent Nos.1 and 2 and others which was the subject matter of appeal in M.A.No.2/2007 on the file of District and Sessions Court, Ramanagara wherein the District Court, by its order dated 26.11.2013, dismissed the appeal in M.A.No.2/2007 and consequently confirmed the order of Tahsildar dated 11.12.1998. Being aggrieved by the same, the appellant in M.A.No.2/2007 has come up in this petition on the premise that gross injustice is caused in not appreciating the material on record which discloses that the possession of the land continued with the vendors’ family even after execution of sale deed dated 31.10.1972 which is not looked into and further the order of re-grant passed by the Tahsildar directly in favour of the alienee, is contrary to the judgment rendered by the Full Bench of this Court in the matter of ‘SYED BHASHEER AHAMED AND OTHERS v. STATE OF KARNATAKA’ reported in ILR 1994 KAR 159.
5. Heard the learned counsel for petitioner as well as contesting respondent and learned Additional Government Advocate appearing for respondent Nos.1 and 2.
6. On going through the material available on record, though it is urged by the petitioner herein that the land continued to be in possession and enjoyment of the family members of vendors under sale deed dated 31.10.1972, they have failed to establish the same before the Tahsildar as well as before the District Court in appeal in M.A.No.2/2007. On the contrary, when the sale deed and other documents are looked into, immediately after purchase of the property, it is the father of respondent Nos.3 and 4 who was in possession, cultivation and enjoyment of the property and he was the person in possession as on the appointed date when application was made by him seeking occupancy right.
7. In that view of the matter, the judgment relied upon by the petitioner rendered in the aforesaid matter of ‘SYED BHASHEER AHAMED AND OTHERS v. STATE OF KARNATAKA’ reported in ILR 1994 KAR 159, would not apply to the facts of the case inasmuch as the purchaser being in possession and enjoyment of the same, was entitled to seek occupancy right in his favour and it is rightly considered by the 2nd respondent – Tahsildar in proceedings bearing No.HOA.CR.45/1991-92 disposed of by order dated 11.12.1998 which is confirmed by the Court of District and Sessions Judge in M.A.No.2/2007 by its order dated 26.11.2013 which does not call for interference by this Court in this writ proceedings.
8. Accordingly, this writ petition is dismissed.
Sd/- JUDGE RV