1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF FEBRUARY, 2025 BEFORE THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM WRIT PETITION NO.14689 OF 2016 (KLR-RES) BETWEEN: P. MUNISHAMAPPA @ P. MUNISWAMY S/O SRI. PILLAMARAPPA SINCE DEAD BY HIS LRS. 1. SMT. RUKMINAMMA W/O LATE T. KRISHNAPPA DAUGHTER-IN-LAW OF LATE P. MUNISHAMAPPA @ P. MUNISWAMY AGED ABOUT 44 YEARS. 1A. SMT. RASHMI D/O LATE T. KRISHNAPPA AGED ABOUT 28 YEARS. 1B. SMT. RAMYA D/O LATE T. KRISHNAPPA AGED ABOUT 26 YEARS. 2. SMT. MANJULAMMA W/O LATE AHWATHANARAYANA DAUGHTER IN LAW OF LATE P. MUNISHAMAPPA @ P.MUNISWAMY AGED ABOUT 36 YEARS. 2 2A. SMT. SAVITHA D/O LATE AHWATHANARAYANA AGED ABOUT 34 YEARS 2B. SRI. A RAGHU S/O LATE AHWATHANARAYANA AGED ABOUT 26 YEARS 3. SMT. YASHODAMMA D/O LATE P. MUNISHAMAPPA @ P.MUNISWAMY AGED ABOUT 54 YEARS. 4. SMT. NAGAVENAMMA D/O LATE P. MUNISHAMAPPA @ P.MUNISWAMY AGED ABOUT 52 YEARS 5. SMT. SHANTHAMMA D/O LATE P. MUNISHAMAPPA @ P.MUNISWAMY AGED ABOUT 44 YEARS ALL ARE RESIDING AT THIMMAHALLI VILLAGE VIJAYAPURA HOBLI DEVANAHALLI TALUK BANGALORE RURAL DISTRICT - 560 043. ...PETITIONERS (BY SRI. C.R.GOPALASWAMY, SENIOR ADVOCATE FOR SRI M.SRINIVASA, ADVOCATE) AND: 1. THE STATE OF KARNATAKA REVENUE DEPARTMENT M.S. BUILDING BANGALORE - 560 001. REPRESENTED BY ITS SECRETARY. 3 2. THE DEPUTY COMMISSIONER BANGALORE RURAL DISTRICT PODIUM BLOCK, V.V. TOWER BANGALORE - 560 001. 3. THE ASSISTANT COMMISSIONER DODDABALLAPURA SUB-DIVISION DODDABALLAPURA BANGALORE RURAL DISTRICT. 4. THE TAHASILDAR DEVANAHALLI TALUK DIVANAHALLI BANGALORE RURAL DISTRICT. 5. SMT. RAMACHANDRAMMA D/O LATE BACHAPPA AGED ABOUT 56 YEARS 6. SMT. RATHNAMMA D/O LATE BACHAPPA SINCE DEAD BY LRS. 6A. SMT. NALINI D/O LATE RATHNAMMA AGED ABOUT 30 YEARS. 6B. SMT. NANDINI D/O LATE RATHNAMMA AGED ABOUT 28 YEARS. 6C. SMT. NAIDNI D/O LATE RATHNAMMA AGED ABOUT 26 YEARS. 6D. SRI. MOHAN S/O LATE RATHNAMMA AGED ABOUT 24 YEARS. 4 7. SMT. NAGAVENAMMA D/O LATE BACHAPPA AGED ABOUT 52 YEARS. 8. SRI. B. ASHWATHAPPA S/O LATE BACHAPPA AGED ABOUT 49 YEARS. 9. SRI. B. NARAYANA SWAMY S/O LATE BACHAPPA AGED ABOUT 46 YEARS 10. SRI. B. NAGARAJ S/O LATE BACHAPPA AGED ABOUT 44 YEARS. 11. SMT. SUVARNAMMA W/O LATE B. RAMESH AGED ABOUT 32 YEARS. 11 A. BABY MANYA D/O LATE B. RAMESH AGED ABOUT 10 YEARS 11 B. BABY KAVYA D/O LATE B. RAMESH AGED ABOUT 7 YEARS RESPONDENT NOS. 11A AND 11B ARE MINORS REPRESENTED BY THEIR NATURAL GUARDIAN MOTHER SMT. SUVARNAMMA 12. SMT. NARAYANAMMA D/O LATE BACHAPPA AGED ABOUT 65 YEARS 5 RESPONDENT NOS. 5 TO 12 ARE RESIDING AT THIMMAHALLI VILLAGE VIJAYAPURA HOBLI DEVANAHALLI TALUK BANGALORE RURAL DISTRICT -560 043. …RESPONDENTS (BY SMT. B.P. RADHA, AGA FOR R1 TO R4; SRI. T.S.VENKATESH, ADVOCATE FOR R5 TO R12) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER ANNEXURE-A DATED 11.02.2013 MADE IN RP NO.13/2009-10 PASSED BY THE RESPONDENT NO.2 THE DEPUTY COMMISSIONER, AND THE ORDER ANNEXURE-B DATED 30.05.2009 MADE IN RA (DE)191/2007-08 PASSED BY THE RESPONDENT NO.3 ASSISTANT COMMISSIONER, SETTING ASIDE THE MUTATION ENTRIES MADE IN THE NAME OF SRI. P.MUNISHAMAPPA @ P. MUNISWAMY IN IHR.126/1992-93 AND MUTATION IN MR.NO.4/1992-93; AND ETC. THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 04.02.2025, THIS DAY ORDER WAS PRONOUNCED THEREIN, AS UNDER: CORAM: HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM 6 CAV ORDER The captioned petition is filed by one P.Munishamappa assailing the order passed by the respondent No.2/Deputy Commissioner vide Annexure-A affirming the order passed by the respondent No.3/Assistant Commissioner vide Annexure-B. 2. Before this Court proceeds further, this Court deems it fit to cull out the family tree which is furnished along with notes tendered by the learned counsel for the petitioners: Channabyrappa | _______________ |________________ | | Pillamarappa Bachappa | | Munishamappa (petitioner) Respondent Nos.5 to 12 7 3. The facts leading to the case are as under: One Channabyrappa is shown to be the propositus who had two sons namely Pillamarappa and Bachappa. The original petitioner Munishamappa is no more and his legal heirs are prosecuting the captioned petition. Contesting respondent Nos.5 to 12 represent the branch of Bachappa. Respondent Nos.5 to 12 assailing the mutation entry under IHR No.126/1992-93 filed appeal before the respondent No.3/Assistant Commissioner. The respondent Nos.5 to 12 seriously disputed the claim of the original petitioner Munishamappa regarding oral partition effected in the family and alleged consent given by respondent Nos.5 to 12 which is evidenced at Annexure-F. The respondent No.3/Assistant Commissioner while entertaining the appeal which was filed assailing the mutation effected 15 years ago, referring to records held that under the oral partition original petitioner Munishamappa was allotted four lands and accordingly allowed the appeal and set aside the 8 mutation. This order is confirmed by the respondent No.2/Deputy Commissioner. 4. Learned Senior Counsel appearing for the petitioners reiterating the grounds would point out that the family owned several lands which are indicated in Schedule 'A' properties to the writ petition totally measuring 72 acres 34 guntas. He would contend that Pillamarappa died while original petitioner Munishamappa was a minor and therefore, he was under the care and custody of Bachappa, his uncle. Learned Senior Counsel referring to the records would point out that there was a family partition in 1963, but since Munishamappa was a minor under the custody of Bachappa, all the lands indicated in schedule 'A' continued to stand in the name of Bachappa. However, after demise of Bachappa, the original petitioner Munishamappa submitted an application to respondent No.4/Tahsildar, Devanahalli seeking change of mutation in terms of oral partition. The original petitioner contended that respondent 9 Nos.5 to 12 consented to this application and mutation was effected under IHR.No.126/1992-93. 5. Learned Senior Counsel would further point out a striking factor in the manner in which parties have conducted themselves post mutation effected under IHR.No.126/1992-93. He would point out that the petitioners family inter se have further divided schedule 'B' properties allotted to their share under oral partition under registered partition deed dated 04.12.2003. He would point out that respondent Nos.5 to 12 having suffered a decree in O.S.No.523/1995 dated 26.02.2008 have changed the mutation effected in 1992-93 before the respondent No.3/Assistant Commissioner in appeal bearing RA(De) No.191/2007-08 questioning the mutation which was based on a consent form and oral partition. 6. One more crucial factor which is brought to the notice of this Court that pending mutation proceedings 10 more particularly appeal before the Assistant Commissioner, respondent Nos.5 to 12 have also inter se partitioned schedule 'C' properties which were allotted to them in oral partition under registered partition deed dated 04.12.2003. He would point out that interestingly respondent Nos.5 to 12 have not laid a claim over schedule 'B' properties. 7. Referring to these significant details, learned Senior Counsel would point out that respondent Nos.5 to 12 have unequivocally admitted oral partition and before respondent No.3/Assistant Commissioner have set up a plea that four lands were allotted to the petitioners family and sought for setting aside the disputed mutation. Respondent No.3/Assistant Commissioner without even adverting to the RTC of these lands has blindly accepted that there is a oral partition and petitioners family were allotted four lands namely Sy.Nos.76, 37/2, 38/2 and 39/1. Learned Senior Counsel referring to Annexure-L series, would point out that 11 these lands do not belong to petitioners and private respondents family and the same can be gathered from the names reflected in the RTC at Annexure-L series. 8. Referring to these significant details, he would point out that the mutation effected in 1992-93 sought to be challenged in 2007-08 i.e., after lapse of 15 years, the revenue authorities ought to have relegated the respondent Nos.5 to 12 to the Civil Court. On the contrary, the authorities have entertained the claim made by the respondent Nos.5 to 12 and therefore, the orders under challenge are liable to be set aside. 9. Per contra, learned counsel appearing for respondent Nos.5 to 12 reiterating the grounds urged in the statement of objections, however, contended that the disputed mutation under IHR No.126/1992-93 is based on a fraudulent declaration/consent tendered in Form No.19. He would point out that this form No.19 could not have been 12 tendered as petitioners are not the class-I heirs of Bachappa. He would also emphasize on the fact that this alleged consent is dated 25.12.1992 which was obviously a general holiday on account of Christmas and therefore, the petition which is based on concocted documents is rightly set aside by the respondent No.3/Assistant Commissioner. 10. Learned counsel appearing for respondent Nos.5 to 12 contends that respondent Nos.5 to 12 have succeeded to the estate left behind by their father Bachappa who was the absolute owner of these lands and they are in exclusive possession and cultivation of the above said properties. It is further contended that Bachappa expired on 15.12.1991 and it is only respondent Nos.5 to 12 who have inherited the properties left behind by Bachappa as class-I heirs. While justifying the orders passed by the respondent No.3/Assistant Commissioner, he would point out that Assistant Commissioner has meticulously assessed the materials on record and has rightly set aside the disputed 13 mutation as bonafide acquisition of Munishamappa is not forthcoming from the disputed mutation. He would further vehemently argue and contend that the alleged consent is a fraudulent document and the mutation effected by fraudulent document is rightly set aside by the respondent No.3/Assistant Commissioner and is confirmed by the respondent No.2/Deputy Commissioner and therefore, does not warrant any interference at the hands of this Court and therefore, learned counsel would persuade this Court to dismiss the writ petition. 11. Heard learned Senior Counsel appearing for the petitioners, learned counsel appearing for respondent Nos.5 to 12 and learned AGA appearing for the respondent Nos.1 to 4. 12. This Court has carefully examined the documents tendered by both the parties. This Court has also given its anxious consideration to the additional 14 documents placed on record by the petitioners and the counter documents furnished by the respondent Nos.5 to 12. The additional documents which are placed on record by the petitioners also reveal that respondent Nos.8 to 10 have already filed a comprehensive suit seeking relief of declaration of title and have sought possession of the disputed schedule 'B' properties which are now in possession of the petitioners. The said suit is filed in O.S.No.313/2009 pending on the file of the Civil Judge (Sr.Dn.), Devanahalli. This suit is filed seeking possession of five properties while petitioners' father's name is mutated to nine properties totally measuring 36 acres 27 guntas. In the plaint, the respondents have also referred to partition deed dated 04.12.2003 which is effected inter se between petitioners family. The prayer sought in the said suit would be necessary and the same is extracted which reads as under: 15 "a. Declaring the plaintiffs are the absolute owners of the suit schedule properties and they are entitled to their possession coupled with a direction to the Defendant to quit and deliver the vacant possession of the same to the Plaintiffs. b. A permanent injunction restraining the Defendants from alienating / disposing off any of the suit schedule properties. c. An enquiry as to the mesne profits. d. To grant such other relief/s as this Hon'ble Court may deem fit to grant in the circumstances of the case in the interest of justice." 13. At para 9 of the plaint filed in O.S.No.313/2009, respondent Nos.8 to 10 have specifically asserted that schedule 'B' properties are self acquired properties of their father Bachappa. Same is indicated in para 9 and therefore, respondent Nos.8 to 10 contended that after demise of Bachappa, they have inherited to the properties while original petitioner Munishamappa who is arrayed as 16 defendant No.1, it is alleged that he has got his name mutated behind the back of respondent Nos.8 to 10. There is a reference to the disputed mutation in IHR.No.126/1992-93. 14. On closer examination of the stand taken by the private respondent Nos.5 to 12 before the Assistant Commissioner while preferring an appeal after 15 years in R.A.No.191/2007-08, they have admitted in unequivocal terms that there was a oral partition between appellant's father Bachappa and his brother Pillamarappa. Para 5 would be relevant and the same is culled out which reads as under: "5. The appellant respectfully submits that the properties bearing Sy.No.34/1 measuring 3 acre 18 guntas, Sy.No.37/B measuring 12 guntas, Sy.No.35/1 measuring 7 guntas, Sy.No.36 measuring 22 guntas, Sy.No.37/1 measuring 18 guntas of land situated at Timmahalli Village, Vijipura Hobli, Devanahalli Taluk, Bangalore District belongs to Appellants father who acquired during his 17 lifetime through the oral partition between the appellants father and his brother Pillamarappa. It is submitted after the appellants father acquired the above referred properties he was in possession and enjoyment of the same without any interference from any body. After the demise of the said Bachappa the appellants succeeded to the estate of the deceased Bachappa and accordingly they are in possession and enjoyment of the properties referred to above as on this date and they are the absolute owners of the above referred properties." 15. In the next paragraph, the private respondents assert that Sy.Nos.76, 37/2, 38/2 and 39/1 was allotted to the petitioners branch. Para 6 would be also relevant and the same is extracted which reads as under: "6. The appellants submits that the 2nd respondent and his father have separated from the joint family long back and they acquired certain properties bearing Sy.No.76, 37/2, 38/2, 39/1, situated at Timmahalli Village, Vijipura Hobli, Devanahalli Taluk, Bangalore District, as such the appellants and 2nd respondent are in joint family 18 from last three decades. As such the question of joint status of the parties as on the date of 03.02.1993 does not arise for consideration." 16. A careful reading of the above-extracted paragraphs reveals that respondent Nos.5 to 12 have explicitly acknowledged the existence of an undivided Joint Hindu Family comprising both the petitioners' branch and their own. Their categorical admission regarding an oral partition is of significant legal consequence. They contend that specific properties were allotted to the petitioners’ branch as part of this oral partition, including lands bearing Sy.Nos.76, 37/2, 38/2, and 39/1. However, the petitioners have effectively refuted this assertion by producing documentary evidence in the form of RTC records, which are annexed as Annexure-L series. These records prima facie demonstrate that the alleged allotment of these four properties to the petitioners' branch is factually incorrect. The petitioners have successfully established that these 19 properties were never in their possession or ownership, nor were they ever legally allotted to them in any form. Therefore, the assertion made by respondent Nos.5 to 12 in regard to allotment of lands in oral partition appears to be unfounded and is directly contradicted by the documentary evidence on record. 17. In this backdrop, a crucial question arises as to whether respondent No.3, the Assistant Commissioner, could have entertained the appeal in R.A.No.191/2007-08 despite a considerable delay of nearly 15 years, particularly in the absence of an application under Section 5 of the Limitation Act, 1963, seeking condonation of such delay. The law on limitation is well settled, and in cases where a belated appeal is preferred, the authority hearing the appeal must first examine whether sufficient cause has been demonstrated for the delay before proceeding with the merits of the case. However, in the present case, there is no indication that the Assistant Commissioner considered 20 the issue of limitation or recorded any finding on whether the delay was justifiable. Furthermore, even assuming that the appeal was maintainable, the Assistant Commissioner failed to appreciate the fact that in their memorandum of appeal, respondent Nos.5 to 12 themselves admitted to the oral partition. This admission casts serious doubt on the subsequent challenge to the mutation entry that had been effected way back in 1992-93. Instead of deciding the matter summarily, the Assistant Commissioner ought to have relegated the private respondents to the jurisdiction of the Civil Court, particularly in light of the complex nature of the dispute and the conflicting claims regarding ownership and partition. 18. Another significant aspect that cannot be overlooked is the subsequent legal action initiated by respondent Nos.5 to 12. It is evident from the records that, after the Assistant Commissioner passed the impugned order, the private respondents promptly approached the 21 Civil Court and instituted O.S.No.313/2009, seeking comprehensive reliefs concerning the disputed properties. The institution of this suit further reinforces the position that the issues at hand are best adjudicated in a civil proceeding where the rights of all parties can be thoroughly examined based on oral and documentary evidence. However, neither respondent No.3, the Assistant Commissioner, nor respondent No.2, the Deputy Commissioner, took into consideration this subsequent development while passing impugned orders. The failure to account for the pending civil suit and the legal implications arising from it amounts to a serious lapse on the part of these authorities. Once a civil suit is filed to adjudicate property disputes, revenue authorities ought to refrain from interfering, as such disputes fall squarely within the jurisdiction of the Civil Court. 19. It is also pertinent to note that the total extent of the disputed properties is 72 acres and 34 guntas, as 22 indicated in Schedule ‘A’ of the petition. The petitioners, who represent the branch of Pillamarappa, claim that they were allotted nine lands measuring a total of 36 acres and 27 guntas, while respondent Nos.5 to 12 were allotted 27 lands measuring 36 acres and 7 guntas. The very fact that respondent Nos.5 to 12 have sought possession in their suit suggests that they themselves acknowledge the possession of the petitioners over these lands. In such circumstances, the burden lies upon the private respondents to establish that the properties in question were self-acquired by their father, Bachappa, rather than being part of the joint family estate. However, this claim is directly at odds with their own admission regarding the oral partition, as reflected in the revenue proceedings and, more particularly, in paragraph 5 of their appeal memorandum. If respondent Nos.5 to 12 indeed believed that the properties were self- acquired by Bachappa, then their admission regarding the oral partition and their reliance on it in earlier proceedings 23 appear to be contradictory. This inconsistency severely weakens their case and further reinforces the necessity of adjudication by the Civil Court rather than the revenue authorities. 20. Another crucial aspect that raises serious doubts regarding the claims of respondent Nos.5 to 12 is their selective approach in seeking partition. While they have proceeded to effect partition in respect of Schedule ‘C’ properties, they have conspicuously excluded Schedule ‘B’ properties from the partition process. This raises legitimate concerns as to whether they are attempting to retain exclusive control over certain properties while disputing the claims of the petitioners over others. If the properties standing in the name of the petitioners were indeed part of the joint family estate, then there is no plausible reason for their exclusion from the partition proceedings initiated by respondent Nos.5 to 12. This selective and inconsistent approach further substantiates the contention that the 24 respondents’ claim regarding the self-acquired nature of these properties lacks credibility. The issue, therefore, requires a detailed and meticulous examination by the trial court in O.S.No.313/2009. Given the complexity of the claims and counterclaims, and the existence of a pending civil suit, the orders passed by the Assistant Commissioner and Deputy Commissioner cannot be sustained. They are legally unsound and are accordingly liable to be set aside. 21. Considering the foregoing reasons and the factual matrix of the case, this Court is of the firm view that the impugned orders passed by respondent No.3/Assistant Commissioner and respondent No.2/Deputy Commissioner cannot be sustained in law. It is an undisputed fact that respondent Nos.5 to 12 have already approached the Civil Court by filing O.S.No.313/2009, wherein they have specifically sought reliefs of declaration and possession in respect of only three properties. The very act of instituting a suit before the Civil Court indicates that the private 25 respondents themselves recognize the necessity of adjudication by a competent Civil Court rather than a summary determination by revenue authorities. Once a civil suit is pending on the same subject matter, any parallel proceedings before revenue authorities would be unwarranted and could lead to conflicting decisions. It is a well-settled principle of law that when complex questions of title, ownership, and partition arise, such disputes must be adjudicated by a Civil Court rather than through revenue proceedings. Therefore, the interference of the Assistant Commissioner and Deputy Commissioner in matters involving title and possession, despite the existence of a civil suit, is legally unsustainable. 22. Furthermore, the claim of respondent Nos.5 to 12 that four specific properties were allotted to the petitioners' family, as evidenced at Annexure-L, requires a detailed and thorough examination by the Civil Court. The petitioners have strongly contested this assertion and have 26 raised serious doubts regarding the alleged allotment, particularly in light of revenue records that contradict the claims of the private respondents. If the petitioners, in their defense before the Civil Court, challenge the nature and ownership of these properties, the trial Court will be best suited to evaluate the documentary evidence, consider oral testimonies, and determine the legal status of these properties. The issue involves intricate questions of partition, possession, and ownership, which cannot be conclusively decided in summary revenue proceedings. 23. Additionally, this Court takes cognizance of the significant delay in challenging the mutation entry. The mutation in question was effected in the year 1993, and it remained unchallenged for nearly 15 years, until respondent Nos.5 to 12 preferred an appeal in 2007-08. The law of limitation serves to prevent stale claims from being entertained after an unreasonable delay, unless sufficient cause is shown. In the present case, there is no 27 material on record to indicate that respondent Nos.5 to 12 made any efforts to challenge the mutation entry in a timely manner. The absence of an application under Section 5 of the Limitation Act, 1963, seeking condonation of delay, further weakens their case. Revenue authorities ought to have considered the impact of such an inordinate delay before entertaining the appeal. The failure to do so renders the orders of the Assistant Commissioner and Deputy Commissioner legally untenable. 24. In view of the above, this Court finds that the orders passed by respondent No.3/Assistant Commissioner and respondent No.2/Deputy Commissioner suffer from serious legal infirmities. Given that a comprehensive civil suit is already pending, and considering the long delay in challenging the mutation, the impugned orders cannot be sustained. Accordingly, they are liable to be set aside. 28 25. For the reasons stated supra, this Court proceeds to pass the following: ORDER (i) Writ petition is allowed; (ii) The impugned order passed by the respondent No.2/Deputy Commissioner vide Annexure-A confirming the order passed by the respondent No.3/Assistant Commissioner vide Annexure-B are hereby quashed; (iii) It is made clear that the disputed mutation in IHR.No.126/1992-93 will be subject to outcome of the suit pending in O.S.No.313/2009; (iv) Pending I.As., if any, do not survive for consideration and stand disposed of. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE CA