SHANTHA SHETTY Vs. SUCHARITHA SHETTY

JUDGEMENT

(1.) PETITIONER claims to belong to an undivided Aliya santhana family in which her mother was allotted immovable properties in terms of the final decree in RIA 1555/1953 in O.S.321/50 on the file of the Subordinate Judge, Mangalore, Annexure -A. Respondent's father, it is stated is a member of the said family entitled to 1/26th undivided share. It is the allegation of the petitioner that 1st respondent is a local politician against whom several cases are filed in the local police stations and his family consists of mother, brothers and sisters, entitled to 1/26th share in the property left behind by his father and are enjoying the yield from agricultural, without sharing the income with the members of the Petitioner's family for over several years in the past. According to the petitioner, the immovable property in question is agricultural land not diverted for use to non -agricultural purposes, nevertheless during the first week of April petitioner and her family members came to know that 1st respondent was making preparations to construct another house on a portion of the agricultural land. Therefore, petitioner instituted O.S. 65/2012 before the Sr. Civil Judge and ACJM, Karkala, arraigning the members of the family including the 1st respondent, as defendants, for declaration that the said properties belong to undivided Aliya Santhana family and to deliver 1/18th share to the petitioner. In that suit, it is said, petitioner obtained interim injunction by order dated 16.10.2012 Annexure -F. It is the allegation of the petitioner that 1st respondent without authority of law, while respondents 2 and 3 colluded with the 1st respondent and permitted the construction of the building on agricultural land. Hence the petition for the following reliefs:

(2.) PETITION is opposed by filing statement of objections of the 1st respondent inter alia denying the right, title and interest of the petitioner over the immovable property in question, while admitting the fact of pendency of O.S.65/2012 as well as the interim order. In addition, it is stated that Section 64 of the Karnataka Panchayat Raj Act, 1993 provides for grant of licence to put up construction of the building and after obtaining the licence dated 1.3.2012 Annexure -R1 and the payment of tax as per the receipt Annexure -R2 has put up the construction. Lastly it is stated that 1st respondent and other respondents have jointly filed a written statement in O.S. 65/2012 Annexure -R4 which suit is pending.

(3.) HAVING heard the learned counsel for the parties, perused the pleadings, there is no more dispute on facts that the 1st respondent did not obtain an order under Section 95 of the Karnataka Land Revenue Act, 1964 for diversion of the agricultural land to non -agricultural, residential purpose which is the sine qua non (condition precedent) to erect the building, in compliance with clause (3) of the licence, Annexure -R1, to the statement of objections of the 1st respondent and as indicated in the statement of objections of the 2nd respondent. If that is so, 2nd respondent is answerable as to why action in accordance with law was not initiated for preventing the construction of the building by the 1st respondent without complying with the condition in clause (3) of Annexure R -1.