LURDH MARRY @ KAMALAMMA W/O. LATE CHELUVARAJU @ SUSAINATHAN AND OTHERS Vs. THE DEPUTY COMMISSIONER MANDYA DISTRICT, MANDYA AND OTHERS

JUDGEMENT

(1.) THE appellants are challenging the legality and correctness of the order dated 7.6.2011 passed by the learned Single Judge in W.P.Nos.34092 -34094/2010 (KLR -RR/SUR). The dispute is in regard to change of mutation in respect of immovable property situated in Pandavapura Taluk. Having heard the learned counsel for the parties, we notice that the appellants are legal heirs of one Cheluvaraju, who had filed a suit for partition against his brother Joseph and respondent Nos.4 to 12 are the legal heirs of Joseph. In other words, there is a dispute between the children of both the brothers viz., Cheluvaraju and Joseph, who are not alive. The deceased Cheluvaraju had filed a suit in O.S.No.602/1989 on the file of Munsiff, Srirangapatna, seeking partition and separate possession. In the said suit, the deceased Joseph had filed the written statement contending that suit for partition is not maintainable, since the family properties were divided in the year 1962 in the presence of their mother Mary Bhagyamma and in the said partition Item Nos.3 and 4 of plaint schedule property viz., 1 acre 20 guntas was allotted to the share of deceased Cheluvaraju, the father of the appellants herein, and northern portion of the residential house and plaint Item No. 5 in the aforesaid suit. The trial court believing the defence of Joseph has dismissed the suit. Therefore, it is clear that the respondents, who are legal heirs of Joseph cannot contend contrary to the written statement filed by their father in regard to allotment of properties in favour of the deceased Cheluvaraju in the oral partition of the year 1962. The actual dispute in the present proceedings is that the legal heirs of the deceased Cheluvaraju filed an application, as if there is a decreee granted in their favour by the Civil Court. But the same is contrary to the factual aspects. The application filed for changing transfer of katha in respect of the properties claimed by the plaintiff on the ground that there is no partition and that they have no independent right, the learned Single Judge has also directed the parties to approach the Civil Court, therefore, the present appeal is filed.

(2.) HAVING heard the learned counsel for the parties it is clear that even the legal heirs of Joseph cannot dispute the properties allotted to deceased Cheluvaraju in the oral partition of the year 1962 as contended by Joseph in the suit for partition. Therefore, we are of the view, that the appellants be granted liberty to file a fresh application before the Tahsildar or the Revenue Authorities based on the written statement filed by late Joseph in the earlier suit and get the katha transferred and if such an application, is filed based on the written statement, respondents herein, who are legal heirs shall not object for the same as they contend contrary to the written statement filed by their father in a suit for partition and separate possession. Granting liberty to the appellants to file fresh application for transfer of katha, these appeals are disposed of.