IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

DATED THIS THE 27^TH DAY OF JANUARY 2021

BEFORE

THE HON’BLE MR.JUSTICE N.S.SANJAY GOWDA

W.P.No.82853/2013 (KLR-RES)

BETWEEN:

1.

Shri Tukkappa Lakkappa Kuri,

Age 32 years, Occ: Agriculture,

R/o.: Bad Byakud, Tq.: Raibag,

Dist.: Belgaum.

2.

Shri Shivaji Lakkappa Kuri,

Age 43 years, Occ: Agriculture,

R/o.: Bad Byakud, Tq.: Raibag,

Dist.: Belgaum.

3.

Shri Basappa Lakkappa Kuri,

Age 38 years, Occ: Agriculture,

R/o.: Bad Byakud, Tq.: Raibag,

Dist.: Belgaum.

… Petitioners

(By Shri A.B. Nesargi, Advocate)

AND:

1.

The Deputy Commissioner,

D.C. Compound, Belgaum.

2.

The Technical Assistant to

Deputy Commissioner and Ex-Officio

Deputy Director of Land Records,

D.C. Compound, Belgaum.

: 2 :

3.

The Tahasildar (Survey),

Raibag, Dist.: Belgaum.

4.

Smt. Sheelavanti W/o.Mayappa Hawaldar,

Age 40 years, Occ: Household work,

R/o.: Bad Byakud, Tq.: Raibag,

Dist.: Belgaum.

… Respondents

(By Shri Vinayak S.Kulkarni, AGA for R1 to R3;

Smt.Chitra G. for Shri N.D. Gunde, Advocate for R4)

This writ petition is filed under Articles 226 & 227 of the

Constitution of India praying to quash the order dated

29.08.2013, passed by the respondent No.1 – the Deputy

Commissioner, Belgaum produced at annexure-F.

This petition coming on for final hearing, this day the Court

made the following:

ORDER

1.

The petitioners are the brothers of fourth respondent. The

fourth respondent had filed a suit in O.S.No.364/1998 seeking

for partition and separate possession. The said suit ended in

compromise petition and a decree was drawn up in terms of the

compromise petition.

2.

It is not in dispute that in the compromise, the fourth

respondent was allotted one acre of land in R.S.No.36/1, which

totally measured 7 acres 9 guntas along with 3 guntas of phot

karab. It is also not in dispute that in the very same compromise

petition, different portions were allotted to the petitioners and

the fourth respondent. In other words, both the petitioners and

: 3 :

the fourth respondent were parties to the compromise decree,

under which R.S.No.36/1 was divided.

3.

It was the case of the petitioners that pursuant to the

compromise petition, fourth respondent appears to have made

an application to the third respondent to measure only the

portion allotted to her and the Survey authorities acting on the

said application, have conducted a Tatkal phodi, which is not in

conformity with the compromise decree in which the portion

allotted to the fourth respondent had been demarcated and a

sketch was also annexed to the compromise petition. It is their

case that they were not heard in the matter nor were they given

a chance to participate in the survey proceedings.

4.

Learned counsel for the petitioners submits that when all

the parties were claiming right over R.S.No.36/7 under the

compromise decree, interest of justice demanded that all of them

be heard in the matter before phodi was done in respect of the

said land.

5.

A perusal of the impugned order does not indicate that the

petitioners were heard in the matter and that they afforded an

opportunity before the Thatkal phodi was conducted. In fact, the

: 4 :

Deputy Commissioner in his order has stated that it was not

necessary for the Survey authorities to consider the case of the

petitioners and it was only necessary to the Survey authorities to

demarcate the share of the fourth respondent. In my view, this

approach of the authorities was completely erroneous. When the

petitioners and the fourth respondent were claiming certain

portions in respect of R.S.No.36/7 under the same compromise

decree, any phodi that would have to be done would have to be

done in the presence of and with the participation of all the

parties to the compromise petition. That having not been done,

the impugned orders