Mrs K Sulochana and Smt. Jayanthi vs The Deputy Commissioner Dakshina Kannada District Mangalore and Others

D.V. Shylendra Kumar

Writ petitioners claim to be legal heirs of one Putta S/o. Aitha, in whose favour they contend had been granted an extent of 68 cents of land in Sy. No. 60/1L situated at Kodailbail Village of Mangalore Taluk, as per grant order dated 21.10.1931 in D.R. No. 132/41. It is the version of the petitioners that while writ petitioners alone are the legal heirs of the said grantee his sister Smt. Leela W/o. Aitha being daughter-in-law and daughter of sister of the grantee, as the grantee had died bachelor and his sister alone was a legal heir to the grantee, but nevertheless the respondent Nos.5 and 6 claiming to be the legal heirs of such a grantee having been embarked upon a transaction of sale in favour of 4th respondent for transfer of an extent of 35 cents of land in this granted land by impersonating as legal heirs of the original grantee and a joint application seeking permission for the transaction though was rejected by the Asst. Commissioner as per his order dated 16.10.1984, but in further appeal, being reversed and the Deputy Commissioner - the 1st respondent having granted such permission and based on such transfer, revenue entries having come to be mutated recently in M.R. No. 6/2009-2010 in favour of 4th respondent, whereas till that time the revenue entries stood in the name of the petitioners and petitioners being ignorant of these developments, but having come to know of the change of entries and on such premise have approached this Court praying for the following relief : Quashing the order dated 28.06.1988 in No. ADIS SC ST PTL 117/84-85 passed by the first respondent and the endorsement No. EDIS. PTCL. D.R. 66/2009-10 dated 9.06.2010 which is at Annexures-A and B further direct the respondent Nos. 1 to 3 and to hold an enquiry and hear the petitioners, in the interest of justice and equity.

Petition had been admitted on 30.5.2011 by issue of rule and emergent notice had been issued to the respondents. 2. Sri R. Omkumar, learned AGA was directed to take notice for respondent Nos. 1 to 3 and the matter is listed today before the Court for effecting service in respect of respondent Nos.4 to 6. After the petition was admitted matter is listed today before the Court for such purpose.

Mr. Cyril Prasad Pais, learned counsel for the petitioners submits that fresh steps in respect of respondent Nos. 4 to 6 have been taken today.

However. Mr. Omkumar, learned AGA points out that it is proper for the petitioners to approach the Civil Court, if the petitioners are aggrieved by the change of entries in the revenue records and also as the proceedings are not under the provisions of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Properties) Act, 1978. (for short ''the Act'') but a permission though is a requirement in terms of sub-section (2) of Section 4 of the Act, nevertheless being one granted under the provisions of the Karnataka Land Revenue Act and the Rules framed thereunder, it is appropriate for the petitioners to approach the Civil Court and in such a situation Section 5(2) of the Act may not act as a bar for necessary relief which the petitioners can seek before the Civil Court, particularly, for declaration if any in the context of sale deed executed by respondent Nos.5 and 6 in favour of 4th respondent a fortiori so, when the petitioners are alleging that respondent Nos. 5 and 6 are impersonated and have played fraud on the petitioners.

However, Mr. Cyril Prasad Pais, learned counsel for the petitioners submits that apart from the bar under the provisions of Section 5(2) of the Act, if the petitioners are prevented to go to Civil Court, it may not be fair to the petitioners and therefore, this Court may direct the respondent Nos. 1 to 3 to hold an enquiry and quash the order of permission granted by the Deputy Commissioner in this matter etc.

The writ petition in the first instance does not have any live cause of action for quashing the permission order passed by the Deputy Commissioner as it was an order passed in the year 1988.

Moreover, the dispute essentially revolves around the assertions that whereas the petitioners alone are the legal heirs of the original grantee - Putta and if respondent Nos.5 and 6 have come up, claiming to be as legal heirs of the said Putta and on such premise permission is granted by the Deputy Commissioner with the very assumption that a fraudulent act is played by the respondent Nos.5 and 6, that is a matter which is essentially required to be determined and opined upon by Civil Court and not by other authorities. An exercise of this nature cannot be undertaken by this Court in writ jurisdiction, more so, when it involves disputed facts and an exercise of ascertaining as to who exactly are the legal heirs whether the petitioners or even the respondent Nos. 5 and 6 could have been the legal heirs etc. Therefore, while this writ petition is dismissed without going into the further aspects of the matters. Liberty is reserved to the petitioners to work out theirs rights and remedies elsewhere in accordance with law. Rule discharged.