BASAPPA LACHAMAPPA MONGYAL Vs. HANUMANTHA RAO ROAOJI RAO

JUDGEMENT

(1.) In this Petition under Articles 226 and 227 of the Constitution, the petitioner has sought for quashing the orders dated 28-6-1982, 20-6-1983 and 26-2-1985 passed by respondents 2, 3 and 4 produced as Annexures A, B and C respectively.

(2.) The land in question is an agricultural land bearing Survey No. 69/2A measuring 7 acres 8 guntas situated at Hirur village, Muddebihal Taluk. There was a suit for partition between the predecessors-in-interest of the first respondent and the vendor of the 7th defendant in the suit by name Dhulappa son of Sanna Dhulappa. The suit was decreed awarding half share to the plaintiff and the defendant on 31-1-1962. There was a Regular First Appeal 82 of 1982 filed before the District Judge, Bijapur which was also dismissed on 7-8-1967. Against the decree passed by the District Judge, there was a Regular Second Appeal No. 987 of 1967 filed before this Court and the same was dismissed on 22nd February, 1972, Thus, a preliminary decree for partition, passed by the trial Court, awarding one half share to the plaintiff and the other half share to the defendant, in the land in question, came to be affirmed by this Court. In the meanwhile, the 7th defendant in the suit, namely Dhulappa, who was himself the purchaser of the entire land, sold the entire land to the petitioner on 19-7-1971.

(3.) Before the Karnataka Act 15 of 1979 came into force on 3-4-1979, there was a proceeding for drawing up of a final decree before the Revenue Authority under Section 54 of the Code of Civil Procedure. In the first round of that proceeding, having regard to the provisions contained in the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, (hereinafter referred to as the 'Act'), it was held that the partition would result in creation of fragment, therefore the land could not be partitioned ; the person entitled to half share, could take the value of it. The proceeding went upto the special Deputy Commissioner, Bijapur, who directed fresh enquiry into the matter, by the order dated 2-4-1978 and remitted the matter to the Assistant Commissioner. The very next date, Karnataka Act No. 15/1979 came into force. By the Amendment, the extent of the fragment came to be reduced from four acres to 2 acres 29 guntas. Having regard to the fact that the extent of the land in question is seven acres 8 guntas, the Assistant Commissioner has held that each one can get half share. Accordingly, by the order dated 28-6-1982, he has directed the Assistant Director of Land Records, Bijapur, to prepare a map dividing the petition land into two parts and submit the same to him. This order was challenged before the Special Deputy Commissioner in Appeal No. BPD/AP/4/82-83, which was dismissed on 20th June, 1983 holding that Karnataka Act No 15 of 1979 was applicable to the proceeding. The Tribunal has also dismissed the appeal by the order dated 26-2-1985.