IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF APRIL 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION NOs.11724/2019 & 12107/2019 (KLR-RES) BETWEEN SRI. NAGARJUNA S/O LATE SRI SHEKHARAPPA AGED ABOUT 45 YEARS R/O KARGAL VILLAGE HUMCHA HOBLI HOSANAGARA TALUK SHIVAMOGGA DISTRICT-577 436 ... PETITIONER (BY SRI PRASHANTH H S, ADVOCATE) AND 1. THE DEPUTY COMMISSIONER SHIVAMOGGA DISTRICT SHIVAMOGGA-577201 2. THE ASSISTANT COMMISSIONER SAGARA SHIVAMOGGA DISTRICT SHIVAMOGGA-577 201 3. THE TAHASILDAR HOSANAGARA TALUK HOSANAGRA SHIVAMOGGA DISTRICT-577 401 4. GOVERNMENT HIGHER PRIMARY SCHOOL HUMCHA, HOSANAGARA TALUK SHIVAMOGGA DISTRICT-577436 REPRESENTED BY THE PRESIDENT THE SCHOOL DEVELOPMENT AND MANAGEMENT COMMITTEE ... RESPONDENTS (BY SRI VENKATESH DODDERI, AGA FOR R1 TO R3 SRI A NAGARAJAPPA, ADVOCATE FOR R4) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD:17.12.2018 PASSED BY THE 1ST RESPONDENT HEREIN IN PROCEEDING BEARING NO.R.MISC.NO.15/2017-18 VIDE ANNEXURE-A WHEREBY THE ORDER DTD:28.10.2016 PASSED BY THE 2ND RESPONDENT HEREIN IN PROCEEDING VIDE ANNEXURE-B AND THE ENDORSEMENT GIVEN BY THE 3RD RESPONDENT DTD:28.1.2016 VIDE ANNEXURE-C WERE UPHELD AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:` ORDER Petitioner herein is son of one Shekharappa. The said Shekharappa was the brother of Karagal Nanjappa Gowda. The family of petitioner i.e, his father, his father’s brothers were landlords and that, their family was owning land bearing Sy.No.116 measuring to an extent of 7 acres situated at Humcha village, Humcha Hobli, Hosangara Taluk, Shivamogga District.
2. According to the petitioner, in a partition in the larger family of petitioner, their Branch got 3 acres 20 guntas in Sy.No.116 which was referred to as Sy.No.116/1. According to petitioner, his paternal uncle Karagal Nanjappa Gowda gifted 2 acres of land for the purpose of same being utilized to construct a school. The gift by petitioner’s paternal uncle Karagal Nanjappa Gowda is executed on 15.1.1956 in favour of Raj Pramukh of Mysore State. The copy of Gift Deed dated 15.1.1956 is at Annexure-D to this writ petition, wherein it is clearly seen that an extent of 2 acres for which said Karagal Nanjappa Gowda was the owner in first division out of Sy.No.116 was gifted in favour of the State and remaining extent was retained by him. The petitioner would state that the said remaining extent is in his possession. He would also state that from out of Sy.No.116/1, 2 acres which is given to the Educational Institution is given Sy.No.116/1B and what was retained by him in the family is referred to as Sy.No.116/1A.
3. It is the grievance of the petitioner that, the portion which is retained by his family is to an extent of 1 acre 27 guntas is bearing Hissa No.19, but in the column of the owner and possessor the name of Mysore Raj Pramukh is shown which should have been only to an extent of 2 acres bearing Sy.No.116/1B, which is the subject matter of property in Gift Deed dated 15.1.1956. The petitioner would state that when an attempt was made by him to get the name of Mysore Raj Pramukh is removed from column No.9 of RTC and in the said column to get the name of the petitioner inserted by conducting IH proceedings, the same is not considered by the Tahsildar in proceedings bearing No.HADA.VIVA.381/2012-13 dated 28.1.2016. It is the said order of Tahsildar, Sagar, was subject matter of challenge before the Assistant Commissioner, Sagar Sub Division in proceedings bearing No.HADA (HO) VIVA.186/2014-15, which also came to be rejected by order dated 28.10.2016.
4. The order of Assistant Commissioner dated 28.10.2016 was subject matter of challenge before the 1st respondent - Deputy Commissioner in proceedings bearing No.R.Misc.15/2017-18, wherein the order impugned was confirmed and accordingly, the appeal filed by the petitioner was rejected. Being aggrieved by the same the petitioner has come up in these writ petitions contending that when the proceedings before the respondent authorities were going on, the 4th respondent – Government Primary School tried to enclose the property belonging to the petitioner to an extent of 1 acre 27 guntas also in the compound to be put up by the said school. It is in this behalf while challenging the order of the Deputy Commissioner in confirming the order of the Assistant Commissioner and Tahsildar there is also a prayer to restrain the 4th respondent from encroaching into the property of the petitioner referred to as Schedule-B property to the writ petition, which according to the petitioner is retained by his family.
5. In this proceedings, notice was given to respondents 1 to 4. On behalf of the State, learned Additional Government Advocate Sri.Venkatesh Dodderi would submit that prior to 1955, in erstwhile Mysore State, all gifts that were made in favour of the State was received by the Raj Pramukh representing the State, as such entry with reference to RTC in respect of Sy.No.116 appears to be just and proper. However, this Court find that the submission made by learned Additional Government Advocate does not touch the aspect of Gift Deed which is executed by the petitioner’s paternal uncle Karagal Nanjappa Gowda in favour of the school, that the respondent authorities will have to look into the same and then should take appropriate decision regarding said aspect.
6. In the meanwhile, the 4th respondent institution represented by its Principal would place before this Court three Gift Deeds executed in favour of the school in conveying three bits of lands in Sy.No.116 of Humcha village, Hosanagara Taluk. He would also furnish copy of sketch along with a memo. The original Gift Deeds are returned to the learned counsel for 4th respondent after going through the same, however the memo along with sketch are taken on record. When the Gift Deeds which are produced for and on behalf of the 4th respondent school are looked into, it would disclose that it is in respect of lands bearing Sy.No.116/1B, 116/2B and 116/2A. So far as Sy.No.116/1A is concerned, it is the remaining portion in Sy.No.116/1, which was larger extent of land measuring 3 acres 20 guntas, out of which when 2 acres which is already gifted in favour of the school is taken out, the remaining extent would be only an extent of 1 acres 20 guntas though petitioner claimed 1 acre 27 guntas with his family.
7. In any event, this Court is of the opinion that there is no serious dispute between the parties with reference to total extent of land available in Sy.No.116/1, three Gift Deeds being executed by different persons in favour of the school bequeathing several portions in said survey number, also the petitioner’s uncle Karagal Nanjappa Gowda retaining a portion of land in Sy.No.116/1 renumbered as Sy.No.116/1A, which according to petitioner as well as 4th respondent is not claimed by 4th respondent – school, but they are claiming Sy.No.116/1B which is subject matter of Gift Deed executed by Karagal Nanjappa Gowda in favour of the school and the other two Gifts are with reference to Sy.Nos.116/2A and 116/2B also from the members of the same family belonging to different branches of the original family of the petitioner.
8. In this background, this Court would allow these writ petitions and set aside the order passed by the Tahsildar in No.HADA.VIVA.381/2012-13, dated 28.1.2016 which is confirmed by the Assistant Commissioner in proceedings bearing No.HADA(HO) VIVA 186/2014-15 dated 28.10.2016 which is subsequently confirmed by the Deputy Commissioner in proceedings No.R.Misc 15/2017-18 dated 17.12.2018.
9. While setting aside the orders impugned, this Court would direct the ADLR and Tahsildar of Hosanagara to get the entire extent of land in Sy.No.116 of Hamchi village measured, thereafter to identify Sy.No.116/1B which is subject matter of Gift Deed dated 15.1.1956 executed by Karagal Nanjappa Gowda in favour of 4th respondent - school and register the same in the name of State of Karnataka and similarly, the lands which are referred to in the sketch produced by 4th respondent this day namely Sy.Nos.116/2A and 116/2B also should be registered in the name of State of Karnataka by removing the name of Raj Pramukh of Mysore. So far as the remaining extent of land in Sy.No.116/1, which is referred to as Sy.No.116/1A is concerned, there is reference to said land in the schedule to Gift Deed dated 15.1.1956 wherein Karagal Nanjappa Gowda would state that he has retained a portion of land with him after bequeathing 2 acres of land in favour of Government to utilize the same for construction of school and therefore that remaining extent of land should be registered in the name of the petitioner. The entire exercise in this behalf should be completed within 60 days from the date of receipt of a copy of this Court.
Sd/- JUDGE nd/-