MUNIYAMMA Vs. KUMBAIAH

JUDGEMENT

(1.) THE petitioners, assailing the correctness of the judgment dated 21st February, 2003 in M. A. (VOA) No. 26 of 1992 on the file of the II Additional District Judge, Tumkur, have presented the instant writ petition.

(2.) THE first respondent herein had assailed the correctness of the order dated 16th August, 1971 passed by the Assistant Commissioner, Tumkur in proceedings No. . . . . ordering to re-grant 1/3rd share to the first respondent herein and the petitioners herein in respect of land bearing Sy. Nos. 23 and 57 totally measuring 08 guntas and 22 guntas situated at Hadonahalli, Yediyur Hobli, kunigal Taluk, Tumkur District on the ground that the order passed by the Assistant commissioner re-granting the land under the Karnataka Village Offices Abolition Act, 1961 in favour of the petitioners to an extent of 1/3rd share, is contrary to the material on record and the same is done without conducting the enquiry and without deciding as to whether the petitioners are entitled to 1/3rd share in the lands in question referred above. The learned II Additional district Judge, Tumkur, after considering the oral and documentary evidence and after affording an opportunity to both the parties, has passed the impugned judgment setting aside the order passed by the Assistant Commissioner dated 16th August, 1971 and remitted the matter to the assistant Commissioner, Tumkur with a direction to hold proper enquiry in the light of the observations made in the said judgment. Further, the learned Judge directed the Assistant commissioner to dispose of the matter within six months from the date of receipt of the order. Being aggrieved by the impugned order referred above, the petitioners have presented the instant writ petition.

(3.) THE learned Counsel appearing for the petitioners vehemently submitted that, the impugned order passed by the Trial Court is not justifiable and it is liable to be set aside at the threshold itself solely on the ground that, there is inordinate delay in filing the said appeal and the said delay has not been satisfactorily explained nor cogent reasons are assigned. The Trial Court has accepted the explanation given by the appellant therein and condoned the delay and entertained the miscellaneous appeal and passed the impugned order, contrary to the material on record. Further, he submitted that, the petitioners are in settled position in pursuance of the re-grant order passed by the Assistant Commissioner since more than two decades and therefore, the said settled position of the petitioners may not be disturbed and the Trial Court is not justified in setting aside the re-grant order passed by the Assistant Commissioner and remitting the matter for reconsideration afresh.