Kamappa and Others vs The State of Karnataka and Others

B. Veerappa, J.—1. The petitioners filed the above writ petition for writ of certiorari to quash the impugned order dated 14.09.1989 at Annexure-D, passed by the Assistant Commissioner and review the order dated 28.08.1995 passed by this Court in W.P. No. 19320/1989.

It is the case of the petitioners that the elder brother of the petitioners, namely Yamanappa and mother of the 5'' respondent -- Hanamawa were the bahubans, and the properties bearing Survey No. 86/2+3 measuring 2 acres 2 guntas, survey No. 86/7 measuring 22 guntas, survey No. 94/1+1+2 measuring 5 acres 14 guntas and survey No. 95/2+3 measuring 7 acres 33 guntas were the ancestral joint family properties and there was no partition by metes and bounds between the family members. On 17.08.1960, there was oral mutual partition between the aforesaid Yamanappa and Hanamawa. In the partition, survey No. 86/2+3, survey No. 86/7 and survey No. 94/1+1+2 fell to the share of Hanamawa, whereas, the remaining survey No. 95/2+3 fell to the share of Yamanappa. On the basis of the said partition, Mutation Entry No. 790 was effected by the jurisdictional Tahasildar. It is further case of the petitioners that, since the name of Yamanappa was not entered in respect of survey number allotted to him in the partition, he approached the Assistant Commissioner to enter his name and the Assistant Commissioner, by order dated 29.04.1987, directed the Tahasildar to enter the name of Yamanappa. The respondent No. 5 filed objections before the Tahasildar, Badami, contending that his mother, Hanamawa has relinquished the said land in his favour and he is in possession of the same. Respondent No. 4, on the basis of the report filed by the Revenue Inspector, proceeded to held that Yamanappa was in possession and cultivation of the said land, and accordingly, the order came to be passed certifying Mutation Entry No. 1412 for entering the name of Yamanappa in respect of survey No. 95/2+3 in pursuance of M.E. No. 790.

It is further contended that, after lapse of 29 years, the said Hanamawa and the respondent No. 5, filed an appeal before the Assistant Commissioner challenging the mutation entry. The Assistant Commissioner, without condoning the delay and without hearing the parties, allowed the appeal, set aside the mutation entry, which was challenged before this Court by the brother of the petitioners, namely Yamanappa in W.P. No. 19320/1989. This Court dismissed the said petition for non-prosecution on 28.08.1995. It is further case of the petitioners that, now after the death of Yamanappa, in the year 2012, respondent No. 5 filed O.S. No. 8/2012 before the Senior Civil Judge, Badami, against the petitioners for declaration that he is the absolute owner of the land in question and sought for consequential relief of injunction, contending that the name of deceased Yamanappa was wrongly entered pursuant to M.E. No. 790. The petitioners -- defendants 1 and 2 in the suit, also filed a counter claim for declaration of title. Since the writ petition filed by the brother of the petitioners came to be dismissed for non-prosecution. The petitioners were unaware of the previous litigation and only after institution of the suit by the respondent No. 5, on enquiry, it came to the knowledge of the petitioners that writ petition filed by their deceased brother is dismissed for non-prosecution. Hence the present writ petition is filed.

I have heard Sri Vijayendra Bhimakkanavar, learned Counsel for the petitioners.

The learned Counsel for the petitioners contended that the writ petition came to be dismissed by this Court for non-prosecution, as there was no service of notice on the brother of the petitioners, and the impugned order passed by the Assistant Commissioner is illegal, arbitrary and in violation of principal of natural justice. He also contended that, in view of the suit filed by the 5'' respondent for declaration, the orders passed by the Assistant Commissioner and by this Court would come in the way of the petitioners to establish their title before the Trial Court. Therefore, he sought to set aside the impugned order passed by the Assistant Commissioner and sought review of the order passed by this Court.

I have given my anxious consideration to the arguments advanced by the learned Counsel for the petitioners and perused the entire material on record.

It is an admitted fact that, according to the petitioners, there was partition between the Yamanappa and Hanamawa, the members of the family on 17.08.1960 and in pursuance of the alleged partition, entry was not effected in respect of the properties allotted to Hanamawa and Bhimappa. Therefore, have filed an appeal before the Assistant Commissioner. Before the Assistant Commissioner, the brother of Yamanappa was appeared. After hearing both the parties, the Assistant Commissioner, by an order dated 14.09.1989, allowed the appeal and mutation entry made in favour of the brother of the petitioners was cancelled. Therefore, the brother of the petitioners filed W.P. No. 19320/1989 before this Court. This Court by its order dated 28.08.1995, passed the order, which reads as under:

"A. court notice was directed to be sent to the petitioner since his Counsel, Sri R.S. Chakrabhavi, was reported to have died.

The notice was sent at the address mentioned in the cause title of the Writ Petition, but the same has been returned unserved with a postal shara "in-complete address". There is no other address available on the record on which a fresh notice may be sent.

Under the circumstances, there is no option except to dismiss this Writ Petition for non-prosecution.

Writ Petition is according dismissed."

According to the petitioners, they were not aware of the order passed by this Court till 2012. According to the petitioners, their brother died in 2004 and they came to know about the orders passed by this Court and the Assistant Commissioner only in the year 2012, when the respondent No. 5 -- Bhimappa filed the suit for declaration. Therefore, they filed the present writ petitions.

It is also not in dispute that the petitioners and their brother were in join possession. When the order passed in the year 1989, against the brother of the petitioners, they filed a writ petition before this Court in 1989 itself, and the writ petition came to be dismissed for non-prosecution on 28.08.1995. The brother of the petitioners, Yamanappa was alive till 2009. He did not take any steps to recall the order passed by this Court and there is no explanation in the entire writ petition as to why the petitioners have kept quite at least from 2009 till 2015 to take necessary steps to protect the lands, if belonging to them or to file application to recall the order dated 28.08.1995, insofar as the challenge in respect of 1989 order. After lapse of 27 years, absolutely no explanation is forthcoming.

The petitioners have not made out any grounds to review the order passed by this Court on 28.08.1995, at this stage, after 21 years. The order clearly depicts that there is no other address of the petitioners available on record, on which fresh notice may be sent. The conduct and attitude of the petitioners clearly indicates that they are not diligent to protect their land from 1989 or from 1995 or even in 2009. It is also not in dispute that the 5'' respondent filed suit for declaration in respect of the property in question, so also the present petitioners filed counter claim under Order 8 Rule 6A of CPC. It is for the parties to adjudicate their rights before the competent Civil Court in the pending suit between the parties for adjudication.

For the reasons stated above, the petitioners have not made out any grounds to interfere with the order passed by the Assistant Commissioner or to review the order passed by this Court.

Accordingly, the writ petitions are dismissed.