VITTAL SHETTY Vs. DEPUTY COMMISSIONER THE ASSISTANT COMMISSIONER

JUDGEMENT

(1.) THIS is a writ petition filed by the petitioner-Vittal Shetty under Articles 226 and 227 of the constitution of India to issue a Writ of Certiorari or any other appropriate writ quashing the order dated 9/2/2004 passed by the Deputy Commissioner-respondent No. 1 in file No. C. Dis: rap/234/2002-03 Annexure-A.

(2.) BRIEF facts leading to this case are that, the land bearing Sy. No. 129 measuring 1 acre 65 cents situated in Kolambe village of Mangalore Taluk, is the family property of the petitioner. The petitioner is governed by the Aliyasanthana Law of Inheritance, Originally, the revenue records were standing in the name of Manjaiah Shetty, who was the senior most member and Yajman of the Aliyasanthana family of the petitioner. After his death, Thyampanna Shetty become the yejaman of the joint family of the petitioner, who was the senior most member of the said family. Accordingly, after the death of Manjaah Shetty, revenue records have been changed in the name of Thyempanna Shetty. Thyamapanna Shetty died in the year 1947 and after his death ramu Shetty, then senior most member of the family became the Yejaman and the revenue records are also changed in his name, Ramu Shetty died in the year 1966 and after his death, the names of Gangu Hengsu, wife of Dasu Rai, Veeramma wife of Kodu Shetty, Subbu- wife of beda Poonja and Rukku, wife of Nakara Shetty were entered in the revenue records as per annexure-B. The record of rights for the year 1968 till 1982 clearly disclose their names and the said entries continued till 1996. But, in 1996 the name of 3rd respondent has been entered on her request made before the revenue inspector of Gurupur, which has been challenged by the petitioner mainly on the ground that change of mutation was effected without notice to the petitioner. So he has challenged the said order before the Assistant Commissioner. Accordingly, the Asst. Commissioner set aside the order and remanded the matter before the Taahildar for enquiry, After fresh enquiry, the Tashildar held that it is a family property of the petitioner and they are governed by Aliyasanthana Law of Inheritance and the katha of the said property was standing in the name of senior most member of the family. The 3rd respondent who has challenged the said order before the Asst. Commission, the Asst. Commissioner dismissed the appeal by its order dated 10/12/2002 as per Annexure-G. Again 3rd respondent challenged it before the Deputy Commissioner-1st respondent in No. C. Dis. RAP:234/02-03 and the Deputy commissioner in turn held that the said property is self acquired property of late Ramu Shetty and partition suit No. 261/00 was pending in the Civil Court. Therefore, the Deputy commissioner allowed the revision petition filed by the 3rd respondent. Therefore, the petitioner herein is before this Court in this writ petition with prayer to quash the impugned Order under challenge.

(3.) AFTER appearance, the 3rd respondent filed detailed objections, contending that the land Sy. No. 129 measuring 1 acres 65 cents was originally the Government Land and it was granted to one Manjanna Shetty. The said Manjanna Shetty as per Sale Deed dated 4/4/ 1930 has conveyed the said property in favour of Thyamppanna Shetty. In fact Thyamppanna Shetty has mortgaged the same for a sum of Rs. 75/- in favour of Santhan Rodrigus for want of funds. The brother of thyamppanna Shetty by name Ramu Shetty the father of 3rd respondent repaid the said mortgage loan. Therefore Thyamppanna Shetty transferred the property in the name of Ramu shetty. Since the 3rd respondent is the only legal heir to succeed the property of the deceased, she has acquired right and title over the property. The suit filed by one Bhoojanga Poonja in O. S. No. 261/2000 on the file of the 3rd Additional Civil Judge (Jr. Dn.), Mangalore, seeking for declaration and partition against the 3rd respondent came to be dismissed. Therefore, the property in question is the self acquired property of her father. Therefore, Revenue inspector has rightly entered her name and so also the 3rd respondent for the year 1996 by making some mutation entries. Hence, writ petition is not at all maintainable.