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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF JUNE, 2023 BEFORE THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM WRIT PETITION NO. 4101 OF 2022 (SCST)
BETWEEN:
LATE THIMMARAJU SINCE DCEASED BY HIS LEGAL HEIRS
1. SMT.MALLAMMA D/O LATE THIMMARAJU AGED ABOUT 55 YEARS.
2. SMT.VASANTHAMMA W/O LATE THIPPESWAMY AGED ABOUT 46 YEARS.
LATE EERANNA SINCE DECEASED BY HIS LEGAL HEIRS Digi tally signed by
3. SRI.V THIPPESWAMY CHAITHRA A S/O LATE EERANNA Location:
HIGH COURT AGED ABOUT 40 YEARS.
OF KARNATAKA
4. SMT.DEVEERAMMA W/O LATE EERANNA AGED ABOUT 56 YEARS.
PETITIONERS 1 TO 4 R/T NAYAKANAHALLI VILLAGE CHALLAKERE TALUK CHITRADURGA 577 522
5. SRU VEERABHADRAPPA S/O LATE SANNATHIMMAYYA AGED ABOUT 60 YEARS
6. LATE SMT THIMMAKKA D/O LATE SANNATHIMMAYYA SINCE DECEASED BY HER SON SRI SHIVAMURTHY S/O EKANTHAPPA AGED ABOUT 61 YEARS
7. SMT BASAMMA D/O EKAANTHAPPA AGED ABOUT 58 YEARS
8. LATE LAKSHMAKKA SINCE DECEASED BY HER LEGAL HEIR SRI THIPPESWAMY S/O LATE NINGAPPA AGED ABOUT 60 YEARS
9. LATE SMT MALLAMMA D/O LATE SANNATHIMMAIAH SINCE DECEASED BY HER SON SRI P THIPPESWAMY S/O LATE PAPANNA AGED ABOUT 58 YEARS
10. LATE SMT SHANTHAMMA D/O LATE SANNATHIMMAYYA SINCE DECEASED BY HER SONS SRI MAHADEVAPPA S/O LATE THIPPESWAMY AGED ABOUT 54 YEARS
11. SRI MALLESHA S/O LATE THIPPESWAMY AGED ABOUT 54 YEARS
12. SMT THIPPAMMA @ THIPPAKKA W/O LATE RAVI AGED ABOUT 54 YEARS 13. SMT CHOWDAMMA W/O SIDDAPPA D/O LATE SANNATHIMMAYYA AGED ABOUT 69 YEARS (WRONGLY SHOWN AS DECEASED IN THE CAUSE TITLE OF THE IMPUGNED ORDERS)
14. SRI S KRISHNAMURTHY S/O SIDDAYYA AGED ABOUT 51 YEARS R/AT NAYAKANAHALLI VILLAGE CHALLAKERE TALUK CHITRADURGA 577 522 …PETITIONERS (BY SRI.AJITH ANAND SHETTY, ADVOCATE)
AND:
1. STATE OF KARNATAKA DEPARTMENT OF REVENUE M S BUILDING DR AMBEDKAR VEEDHI BANGALORE 560 001 BY ITS PRINCIPAL SECRETARY 2. DEPUTY COMMISSIONER CHITRADURGA DISTRICT CHITRADURGA 515 281
3. ASST COMMISSIONER CHITRADURGA SUB DIVISION CHITRADURGA 515 281
4. TAHSILDAR CHALLAKERE TALUK CHALLAKERE 577 522 5. SMT THIMMAKKA W/O LATE MALLAPPA MAJOR IN AGE
6. SRI M KUMAR S/O LATE MALLAPPA MAJOR IN AGE
7. SRI M INDRESH S/O LATE MALLAPPA MAJOR IN AGE
8. SRI M RAJU S/O LATE MALLAPPA MAJOR IN AGE
9. SRI M SHIVAMURTHY S/O LATE MALLAPPA MAJOR IN AGE RESPONDENTS 4 TO 8 ARE R/AT BEHIND GOVT MIDDLE SCHOOL GANDHINAGAR CHALLAKERE CHITRADURGA 577 522 10. SMT HASEENAJAN W/O LATE SHEIKH IMITIAZ MAJOR IN AGE
11. SRI MOHIDULLAH S/O LATE SHEIKH IMITIAZ MAJOR IN AGE
12. SRI TOUHIDULLAH S/O LATE SHEIKH IMITIAZ MAJOR IN AGE
13. SRI MOHAMMED TAHAFARAAZ S/O LATE SHEIKH IMITIAZ MAJOR IN AGE R/T SRI RANGA NILAYA YARAGUNTESHWARA LAYOUT BEHIND LIC OFFICE HIRIYURU CHITRADURGA 572 143 14. SRI M S JAYARAM S/O LATE M SRIRAM MAJOR IN AGE
15. SRI M S RAJARAM S/O LATE M SRIRAM MAJOR IN AGE
16. SRI M S SRINIVAS S/O LATE M SRIRAM MAJOR IN AGE
17. SRI M S SRINATH S/O LATE M SRIRAM MAJOR IN AGE R/T GANDHINAGARA CHALLAKERE TOWN BEHIND KARNATAKA TEXTILE CHALLAKERE CHITRADURGA 577 522 …RESPONDENTS (BY SRI.VENKATA SATYANARAYANA, HCGP FOR R1 TO R4;
SRI.A.G.SHIVANNA, SR.COUNSEL FOR SRI.NARENDRA GOWDA, ADVOCATE FOR R7 TO R9;
V/O. DTD.22/05/2023 R7 TO R9 ARE TREATED AS L.RS OF R6 DECEASED; SRI.DEVADAS N, SR.COUNSEL FOR SMT.K.S.ANUSUYADEVI, ADVOCATE)
THIS W.P. IS FILED PRAYING TO SET ASIDE THE IMPUGNED ORDERS DTD. 05.01.2022 PASSED BY THE R-2 AUTHORITY IN PROCEEDINGS AS PER ANNX-J AND K RESPECTIVELY AND ETC., THIS PETITION, COMING ON FOR PRILIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The captioned writ petition is filed by the petitioners feeling aggrieved by the order of respondent No.2-Deputy Commissioner who has set aside the order of respondent No.3-Assistant Commissioner ordering for restoration of the land bearing Survey No.471 measuring 9 acres 27 guntas.
2. Though the controversy revolves around a very narrow compass, unfortunately, the order of respondent No.3-Assistant Commissioner has only lead to complications and confusions and has also resulted in the long drawn litigation at the instance of the petitioners, who strictly speaking have no right over the land bearing No.248/1 now re-assigned Sy.No.471.
3. Before, I advert to the reasons assigned by respondent No.2-Deputy Commissioner, it would be useful for this Court to revert back to the grant order which would be absolutely necessary to ascertain the rights of the parties before this Court.
4. It is not in dispute that one Guruvayya, Sanna Thimmayya and Dodda Thimmayya were granted with lands in Survey No.248 vide order dated 14.4.1956. Survey No.248/1 measuring 9 acres 27 guntas is granted to one Guruvayya, similarly, land bearing survey No.248/2 measuring 9 acres 27 guntas is granted to Sanna Thimmayya and the land bearing Survey No.248/3 measuring 9 acres 27 guntas is granted to one Dodda Thimmayya.
5. Respondents 10 to 13 are tracing their right and title through the original grantee namely Guruvayya based on a registered sale deed. It is not in dispute that petitioners are the legal heirs of one Sanna Thimmaiah, while respondents 5 to 9 are the legal heirs of Guruvayya, who are not disputing the title of respondents 5 to 13. Survey No.248/1 which is granted to Guruvayya is re- assigned new survey No.471 while Survey No.248/2 measuring 9 acres 27 guntas which was granted to Sanna Thimmaiah is reassigned new Survey No.472.
6. The petitioners herein strangely moved an application before respondent No.3-Assistant Commissioner seeking change of khata on the premise that the land which was granted to their ancestor Sanna Thimmaiah is now restored by the competent authority under the provisions of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (for short "PTCL Act"). Respondent No.3-Assistant Commissioner in turn, referred the matter to Respondent No.4-Tahsildar to hold an enquiry. On receipt of report by Respondent No.4-Tahsildar vide Annexure-G, Respondent No.3-Assistant Commissioner strangely takes up a suo-moto enquiry under the provisions of the PTCL Act and passes an order for restoration in respect of Survey No.471 which was never granted to the petitioners' ancestor namely Sanna Thimmaiah.
7. Respondents 10 to 13 feeling aggrieved by this order of restoration, preferred an appeal before respondent No.2-Deputy Commissioner. Respondent No.2- Deputy Commissioner on an enquiry found that petitioners were not entitled to seek restoration of the land. Accordingly, respondent No.2-Deputy Commissioner has allowed the appeal and reversed the order of restoration. The Deputy Commissioner while allowing the appeal held that petitioners cannot assert and claim that they are the legal heirs of Guruvayya. The second ground on which the Deputy Commissioner reversed the order is on the premise that the lis between the parties is purely a disputed question of fact and therefore, has proceeded to relegate both the parties to establish their right before the competent civil Court.
This order is under challenged at the instance of the petitioners.
8. On meticulous examination of the entire material on record, I would not hesitate to hold that the entire claim of the petitioners is found to be totally misconceived. Under the garb of change of katha, petitioners have cleverly made an attempt to lay a claim over Survey No.248/1 now reassigned as Survey No.471 which is granted to Guruvayya. If Survey No.471 was allotted to Guruvayya and he during his life time has sold half portion in favour of the ven
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