IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 29th DAY OF MAY, 2017 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH WRIT PETITION NO. 25661 OF 2011 (LR) BETWEEN:
Smt.Sunitha Rai, W/o Sri.Divakar Rai, Aged about 40 years, R/at Matadakani Road, Mannagudda, Mangalore Taluk, D.K.District Represented by GPA Holder Sri. Diwakar Rai, S/o N.Vasappa Rai, Age 50 years, R/at Matadakani Road, Mannagudda, Mangalore Taluk, D.K.District (By Sri. S.Vishwajith Shetty, Advocate) AND:
1. The State of Karnataka, Represented by its Secretary Revenue Department M.S.Building, Bengaluru.
2. The Land Tribunal, Pani Mangalore and Vitlaparka Bantwal Taluk D.K. By its Chairman.
…Petitioner 3. Smt.Susheela Mailappa Rai, W/o Sri. Mailappa Rai, Aged about 63 years, Kunjathkala House, Pudu Village, Parangipete Post, Bantwal, D.K.
…Respondents (By Smt.B.P.Radha, AGA for R-1 & R-2 Sri.P.G.Yatnal, Advocate for Sri D. Krishnamurthy, Advocate for R-3) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to call for the records from the Respondent No.2 which ultimately resulted in passing order Annexure-A, Dated 17.10.1980, by the Respondent No.2-Tribunal in so far it relates to granting of occupancy rights of the schedule property in favour of the Respondent No.3 Etc.
This Writ Petition coming on for Preliminary Hearing in ‘B’ group this day, the Court made the following:
ORDER The case of the petitioner is that the land bearing Survey No.39-1C totally measuring 78 cents originally belonged to the family of the 3rd respondent. A partition was effected on 30.11.1965. Out of the said survey number, 58 cents was granted to the share of the 3rd respondent and her sister Gulabi Shedthi jointly and remaining 20 cents was granted to the share of another sister Smt.Vajra. On 27.02.1971, the 3rd respondent purchased the undivided rights in respect of 58 cents of land from her sister Gulabi Shedthi and therefore, she became the absolute owner of 58 cents of land in Survey No.39-1C. On the death of Smt.Vajra, 20 cents of land was succeeded by her daughter Smt.Malathi and her name was entered in the revenue records from the year 1988 onwards. In 1997, Smt.Malathi sold 20 cents of land to one Balakrishna Rai who in turn sold to the petitioner’s husband in 1998. In the interregnum, the 3rd respondent filed an application seeking grant of occupancy rights. By order dated 17.10.1980, the same was allowed. Hence, the present petition is filed on the ground that the erstwhile land owners were not made party before the Land Tribunal. That the vendor of the petitioner received the property by virtue of the partition deed wherein the 3rd respondent was also made a party. Therefore, the 3rd respondent was well aware of the partition of the property. She has suppressed the same. She has not brought it to the notice of the Land Tribunal. Therefore, the Tribunal was not aware of the partition deed. Hence, interference is called for.
2. Learned Government Pleader disputes the same. No submission is forthcoming from the learned counsel for the 3rd respondent.
3. Heard learned counsels.
4. The partition deed effected on 30.11.1965 is not in dispute. The impugned order of the Land Tribunal is dated 17.10.1980. Therefore, it was the duty of the 3rd respondent to bring the partition deed to the notice of the Tribunal, which has not been done by her. Even otherwise, the vendor of the petitioner was not aware of the pendency of the proceedings. Hence, the delay caused in filing the writ petition is justified. Sufficient cause has been shown to condone the delay. However, in view of the fact that the vendor of the petitioner was not made a party before the Land Tribunal, who was having a clear right, title and interest over the property in terms of the partition deed, the impugned order of the Tribunal becomes unsustainable.
5. Consequently, the petition is allowed. The order dated 17.10.1980 passed by the Land Tribunal, Pani Mangaluru and Vitlaparka, Bantwal Taluk, Dakshina Kannada in No.TNC.12585/74-75, vide Annexure-A, is quashed to the extent of 20 cents in Survey No.39-1C. The matter is remanded back to the Land Tribunal for a fresh enquiry in accordance with law. The petitioner and others are permitted to file additional documents, if necessary, in support of their case including the partition deed. The Tribunal, after considering all the material in so far as it relates to Sy.No.39-1C to an extent of 20 cents, shall pass orders in accordance with law as expeditiously as possible.
SD/- JUDGE TL