Smt. G.C. Bhageerathamma and Sri G.C. Shadakshararadhya vs K. Shanthaveeranna, Tahsildar, Assistant Commissioner and Deputy Commissioner

Huluvadi G. Ramesh, J.—Property in question measures 113 ft x 160 ft in Sy. No. 327 of Tumkur Kasaba. Disputing the right over the said property, parties approached the Civil Court. The Civil Court, at the first instance, declared that the contesting respondent herein has no right or semblance of right as claimed by him, as against which in the appeal by the respondent, he suffered an order of dismissal. In the second appeal before this Court, respondent''s contention was negated and it was opined that respondent was not in possession of the disputed land. Heard the counsel representing the parties.

The subject matter of dispute is the land in Tumkur Kasaba wherein some gaddige is there. Originally the predecessor in title of the petitioners is said to have allowed the respondent to continue worshiping the gaddige. Ultimately, the claim set up by this respondent is based on 1978-79 RTC. What is to be noticed is, the entries in the RTC gives rise to only a presumption under S. 133 of the Karnataka Land Revenue Act and is not a substantive piece of evidence or clear proof of possession. The Civil Court on inquiry, has given a finding that respondent is not in possession.

At this juncture, the respondent''s counsel pointed out that there is a gift deed and in that gift deed, he was gifted of the property to an extent of 30 yards x 90 yards and it comes to 25 guntas and that should be made available to him However, this contention has been negated in the proceedings before the lower courts.

The Tahsildar has passed an order to the effect that respondent is entitled to 61/2 guntas and whether it is accepted by the petitioner or not, an appeal against the said order has been preferred before the Assistant Commissioner and further, revision also is preferred before the Deputy Commissioner and both the Assistant Commissioner as well as the Deputy Commissioner have supported the version of the contesting respondent. The civil court''s finding which ended in the second appeal is also that respondent is not in possession. Might be that plaintiff also would not be in possession as observed obiter. The right of the respondent before this court based on the alleged gift deed has not been upheld by the civil court.

Such being the precarious position, a via media has to be worked out. The petitioners are also agreeable to part with some property to the share of the respondent i.e., gaddige for performance of pooja. It would be appropriate for the petitioners to part with 161/2 guntas to the respondent and the remaining extent of 81/2 guntas be retained with the petitioners. Identifying the boundaries, it is for the respondent authorities to prepare a sketch and conduct phod to the extent as observed above as per the finding of the court in the decree passed. Accordingly, the finding of the Assistant Commissioner and the Deputy Commissioner is modified since the finding of both the authorities in appeal and in revision, are contrary to the finding given by the civil court.

Petition is disposed of.