BASANA GOWDA Vs. DEPUTY COMMISSIONER GADAG DISTRICT GADAG

JUDGEMENT

(1.) THE lands in dispute belonged to the joint family of which one Kariyappa Gowda was the member. He filed a suit L. C. No. 112 of 1944 for partition and separate possession of his l/3rd share in all the joint family properties. After contest the suit came to be decreed on 19-8-1947 declaring Kariyappa Gowda as the owner of l/3rd share in all the suit schedule properties. Aggrieved by the same the present petitioners preferred an appeal in L. A. No. 24 of 1947. After contest the decree of the Court below was confirmed and the appeal came to be dismissed and the said decree has become final. Thereafter, Kariyappa gowda initiated final decree proceedings for securing his l/3rd share. In the year 1953 when the Civil Court transmitted the papers to the deputy Commissioner under Section 54 of the Civil Procedure Code for effecting partition, the deputy Commissioner in turn sent the papers to the Assistant Commissioner.

(2.) THE record discloses that the revenue authorities did not probably effect partition. Therefore, the parties on 1-7-1977 presented before him compromise petition agreeing to effect partition among themselves in the manner suggested therein and they also took possession of the respective properties which had fallen to their share. On the basis of the compromise petition, the assistant Commissioner passed a final decree as per Annexure-R2 in the year 1978. Thereafter, the parties moved the Civil Court for recording compromise and entering full satisfaction. The civil Court by its order dated 24-7-1977 recorded the compromise and also entered full satisfaction of the decree. It appears that Kariyappa Gowda during his lifetime did not make application to the revenue authorities to mutate his name in terms of the aforesaid partition decree. He died in the year 1989. After his death, in the year 1992 the respondents 4 to 7, his legal representatives, who are sons of Kariyappa Gowda made application for mutating their names in respect of four items which had fallen to their share in the said partition, namely, the land bearing Sy. No. 71/1, measuring 4 acres 3 guntas, Sy. No. 108/2 measuring 4 acres 23 guntas, Sy, No. 108/a2 measuring 20 guntas and Sy. No. 113/3 measuring 2 acres 6 guntas. On such application being made, the Tahsildar mutated the names of respondents 4 to 7 in the mutation register in respect of the aforesaid lands. Aggrieved by the said order dated 3-6-1992 the petitioners herein preferred an appeal under Section 136 (2) of the Karnataka Land Revenue act before the Assistant Commissioner. After contest, the Assistant Commissioner allowed the appeal and set aside the mutation entry in the name of respondents 4 to 7. Aggrieved by the said order of the Assistant Commissioner, respondents 4 to 7 preferred writ petition before this Court in Writ Petition No. 523 of 1993. This Court set aside the order of the Assistant Commissioner as well as Tahsildar by order dated 18-6-1992 and remanded the matter back to the Tahsildar for fresh disposal in accordance with law after notice to all the parties. After fresh enquiry the tahsildar rejected the application of the respondents 4 to 7 by his order dated 13-12-1993. Aggrieved by the said order, respondents 4 to 7 preferred an appeal to the Assistant commissioner who dismissed the appeal on 30-3-1999, Aggrieved by the said order, respondents 4 to 7 preferred a revision before the Deputy Commissioner. The Deputy Commissioner on taking note of the proceedings referred to supra came to the conclusion that in terms of the compromise petition a final decree is passed and the aforesaid lands have fallen to the share of respondents 4 to 7 and therefore directed their names to be entered in the mutation register by his order dated 1-6-2001. Aggrieved by the said order the petitioners have preferred this writ petition.

(3.) SRI G. S. Vishweswara, learned Senior Counsel for the petitioners contend, the petitioners dispute the compromise at Annexure-Rl and he submits a final decree for partition could be acted upon only when it is embossed in a stamp paper. Therefore, in the absence of final decree being embossed on the stamp paper, there is no compromise in the eye of law. Therefore, the direction issued by the Deputy Commissioner to enter the name of the respondents 4 to 7 is illegal and liable to be set aside. Secondly, he contended that when the Assistant Commissioner passed an order acting on the compromise petition, he has not allotted those four properties to respondents 4 to 7, on the contrary, he has set-out all the said items and has declared that Kariyappa Gowda was entitled to l/3rd share and petitioners were entitled to 2/3rd share and therefore the petitioners have no objection for entering the names of all the persons in respect of all the lands, but the names of respondents 4 to 7 cannot be entered in respect of these four lands exclusively.