IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 27TH DAY OF FEBRUARY, 2017 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH WRIT PETITION NO.14341 OF 2010(KLR-RR/SUR) BETWEEN:
SRI THIPPANNA S/O MUNISHAMAPPA, AGED ABOUT 60 YEARS, AGRICULTURIST, RESIDING AT NEELAKANTA AGRAHARA VILLAGE, MALUR TALUK, KOLAR DISTRICT. ... PETITIONER (BY SRI K.N.DAYALU, ADVOCATE FOR M/S.K.N.DAYALU ASSOCIATES, ADVOCATES) AND:
1. SRINIVAS S/O CHINNAPPA, AGED ABOUT 57 YEARS 2. RAMACHANDRAPPA S/O CHINNAPPA, AGED ABOUT 50 YEARS BOTH ARE RESIDING AT NEELAKANTA AGRAHARA VILLAGE, MALUR TALUK, KOLAR DISTRICT.
3. THE REVENUE INSPECTOR MALUR TALUK, MALUR.
4. THE ASSISTANT COMMISSIONER KOLAR DISTRICT, KOLAR.
5. DEPUTY COMMISSIONER KOLAR DISTRICT, KOLAR. ... RESPONDENTS (BY SRI B.ROOPESH, ADVOCATE FOR R1 SRI T.S.MAHANTESH, AGA FOR R3-R5 R2-SERVED) ***** THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 8.10.2009 PASSED IN R.A.NO.170/2005-2006 ON THE FILE OF DEPUTY COMMISSIONER, KOLAR, MARKED AS ANNEXURE- A, AND CONFIRM THE ASSISTANT COMMISSIONER ORDER AND REVENUE INSPECTOR ORDER.
THIS WRIT PETITION COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner’s father, first respondent’s father and the second respondent’s father are brothers. They are sons of one Shamanna. They were in possession and enjoyment of the property bearing Sy.No. 26, situated at Neelakatha Agrahara village, Malur Kasaba Hobli, Malur Taluk along with other properties. After the death of Shamanna the petitioner, the 1st and the 2nd respondents succeeded to their estates. They were cultivating the schedule property and other joint family properties for the last 20 years. An oral partition was effected in 1996 and it was reduced into writing in the year 1998. Therefore, without notice the 1st & the 2nd respondents, there was change of mutation. An appeal was filed before the Assistant Commissioner. The Assistant Commissioner rejected the same. The same was challenged before the Deputy Commissioner. The Deputy Commissioner allowed the appeal, set aside the order of the Assistant Commissioner and ordered mutation in the names of respondents 1 & 2. Hence, the present petition.
2. The learned counsel for the petitioner contends that there was no adequate notice before the Deputy Commissioner. That all materials were placed before the Assistant Commissioner with regard to the family partition etc. Having considered all these documents, the Assistant Commissioner had rejected the plea of respondent No.1. However, due to inadvertence he could not put up all these documents before the Deputy Commissioner. Even otherwise, all material was available before the Deputy Commissioner. He has failed to consider the same. Hence, he pleads that the petition be allowed.
3. On the other hand, the learned Government Advocate supports the impugned order. The counsel for respondent No. 1 is absent. Respondent No.2 is served and unrepresented.
4. On hearing learned counsels, I’am of the view that appropriate relief requires to be granted. The factum of division of properties being effected between the brothers is undisputed. The same was placed before the Assistant Commissioner who on the said basis, rejected the plea of the respondents. Unfortunately, the same could not be placed before the Deputy Commissioner for his consideration when the final order was passed. Hence, it is just and proper that in the interest of the petitioner to place all these materials before the Deputy Commissioner in support of his case. Due to the lapse by the petitioner in not bringing it to the notice of the Deputy Commissioner, it is only just to impose costs while setting aside the impugned order.
For the reasons stated, the petition is allowed. The order dated 8-10-2009 vide Annexure-A passed by the 5th respondent in R.A.No.170/2005-06 is set aside. The matter is remanded to the Deputy Commissioner for fresh enquiry in accordance with law.
The petitioner is directed to pay a sum of Rs.5,000/- as costs within two weeks from the date of receipt of a copy of this order before the Registry of this court.
SD/- JUDGE Rsk/-