- 1 - NC: 2025:KHC:2672 WP No. 35669 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM WRIT PETITION NO.35669 OF 2024 (KLR-RES) BETWEEN: SRI G. ALAPPA S/O LATE GANGAPPA AGED 80 YEARS R/O KENKERE VILLAGE HULIYAR HOBLI C.N.HALLI TALUK TUMAKURU DISTRICT-572218 …PETITIONER (BY SRI.CHANDRACHUD, ADVOCATE FOR SRI.N.S.HIREMATH, ADVOCATE) AND: 1. THE STATE OF KARNATAKA BY ITS SECRETARY TO THE GOVERNMENT REVENUE DEPARTMENT M.S.BUILDING DR.AMBEDKAR VEEDHI BENGALURU-560 001 2. THE DEPUTY COMMISSIONER TUMAKURU DISTRICT TUMAKURU-572101 Digitally signed by AL BHAGYA Location: HIGH COURT OF KARNATKA - 2 - NC: 2025:KHC:2672 WP No. 35669 of 2024 3. THE ASSITANT COMMISSIONER TIPTUR SUB-DIVISION TUMKUR -572226 4. THE TAHASILDAR C.N.HALLI TALUK C.N.HALLI TUMAKURU DISTRICT-572214 5. CHANNABASAVAIAH S/O LATE RUDRAPPA AGED 62 YEARS R/O KENKERE VILLAGE BHARADALEPALYA HULIYAR HOBLI C.N.HALLI TALUK TUMAKURU DIST-572218. …RESPONDENTS (BY SMT.B.P.RADHA, AGA FOR R.1 TO R.4) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER 21.10.2022 PASSED IN RA NO.709/2021 ON THE FILE OF THE ASST COMMISSIONER, TIPTUR SUB-DIVISION, TIPTUR, TUMAKURU DISTRICT VIDE ANNX-K AND THE ORDER DATED 22.10.2024 PASSED IN RP NO.271/222 ON THE FILE OF DEPUTY COMMISSIONER TUMAKURU DISTRICT, TUMAKURU, VIDE ANNX-N BY ISSUE OF WRIT OF CERTIORARI AND ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM - 3 - NC: 2025:KHC:2672 WP No. 35669 of 2024 ORAL ORDER This captioned writ petition is filed by the petitioner assailing the order dated 21.10.2022 passed by respondent No.3 - Assistant Commissioner as per Annexure-K and the order dated 22.10.2024 passed by respondent No.2 - Deputy Commissioner as per Annexure-N. 2. Heard learned counsel for the petitioner and learned AGA. 3. The petitioner contends that his name was mutated based on a Will dated 29.08.1980. However, respondent No.5’s claim under the same Will was not accepted by respondent No.4 – Tahsildar, who instead ordered the deletion of the petitioner’s name from the records. Aggrieved by this order, the petitioner challenged it before respondent No.3 – Assistant Commissioner. 4. Respondent No.5, dissatisfied with the order of the Assistant Commissioner rejecting his claim for - 4 - NC: 2025:KHC:2672 WP No. 35669 of 2024 mutation based on the Will, filed an appeal. Meanwhile, the Assistant Commissioner also declined to entertain the petitioner’s claim under the same Will but directed the removal of the petitioner’s name from the records. Aggrieved by this decision, the petitioner filed a revision petition before respondent No.2 – Deputy Commissioner. The Deputy Commissioner dismissed the revision on the grounds that the petitioner had failed to produce a judgment from the Civil Court. Additionally, the Deputy Commissioner directed that the katha should only be executed after the adjudication of the pending cases in O.S.No.43/1994, O.S.No.45/1994, R.A.No.10043/2017, and R.A.No.10044/2017. 5. The petitioner’s counsel argued that judgments from the Civil Courts have upheld the petitioner’s Will dated 29.08.1980, warranting the setting aside of the orders passed by the Assistant Commissioner and the Deputy Commissioner. He further highlighted that the - 5 - NC: 2025:KHC:2672 WP No. 35669 of 2024 petitioner is benefiting from an interim order issued by this Court in RSA No.1120/2024 and RSA No.904/2024. 6. Despite the extensive documentation submitted, there remains considerable ambiguity regarding the mutation based on the oral partition and the competing Wills asserted by the petitioner and respondent No.5. However, the judgment of the Appellate Court in R.A.No.10043/2017 and R.A.No.10044/2017 clearly indicates that the petitioner currently lacks the standing to challenge the mutation proceedings, given the pendency of two second appeals before this Court. This Court finds it pertinent to reference the relevant paragraphs, Nos. 44 and 45, from the Appellate Court’s judgment, where the petitioner’s claim under the Will was expressly negatived. These paragraphs are extracted below: "44. Coming to the point, whether, the defendant prove the Will dated 21.08.1980, the defendant has not proved the said Will by examining attesting witness. Thus, no weight can be attached to Will dated 21.08.1980. Of course, - 6 - NC: 2025:KHC:2672 WP No. 35669 of 2024 the defendant has relied upon this Will to prove that, there was a oral partition among the sons of Gangappa in the year 1974. I have perused the said Will marked at Ex.D.-110, the said Will is registered and there is a recital with regard to oral partition of the year 1974. But, since the said document is not proved, no weight can be attached to even contents of the said document. Coming to the question, whether the defendant proved oral partition of the year 1974, no reliable evidence is placed. The learned counsel for defendant tried to elicit about this aspect in the cross examination of P.W.1 and 2 but has failed to elicit anything in this regard. Even, the revenue documents are admittedly not in accordance with alleged oral partition. From the evidence of both the parties it appears the parties are transacted independently in respect of the properties in which they were in possession. But, that cannot be construed as actual oral partition. Thus, I hold that, the defendant has failed to prove the either Will dated 21.08.1980 or alleged oral partition. 45. So, in this case, both parties have failed to prove their respective cases. The learned counsel for defendant has relied upon the judgment reported in ILR 1988 (4) KAR Page 3025 in the case between N.Mukund Shet V/s N.Nagesh Sheety - 7 - NC: 2025:KHC:2672 WP No. 35669 of 2024 and argues that, injunction cannot be granted in favour of the plaintiff not in actual possession of the property and argues that, the plaintiffs are not in actual possession of the suit schedule properties and hence injunction cannot be granted in their favour. I have perused the judgment wherein it is held that, injunction cannot be granted in favour of the plaintiff not in actual possession of the property. However, the said judgment is not applicable to the case on hand. Since, both the parties failed to prove their respective cases. In fact, since the suit schedule properties are acquired by Gangappa in a partition held between his brothers treating the suit schedule properties as joint schedule properties and since all the suit schedule properties are belongs to Gangappa and the plaintiffs and defendant inherited suit schedule properties. Thus, the suit schedule properties becomes joint family properties of plaintiffs and defendant. Thus, in respect of the joint family properties, injunction cannot be granted." 7. In view of the findings recorded by the Appellate Court in R.A.No.10043/2017 and R.A.No.10044/2017, it is evident that the petitioner cannot presently claim to be an aggrieved party in the context of the mutation proceedings. The Appellate Court has expressly negated - 8 - NC: 2025:KHC:2672 WP No. 35669 of 2024 the petitioner’s reliance on the Will dated 29.08.1980, effectively undermining his claim to the disputed property. The rights of the petitioner, as well as those of respondent No.5, are now contingent upon the outcome of the two second appeals currently pending before this Court, i.e., RSA No.1120/2024 and RSA No.904/2024. 8. During the course of the hearing, this Court specifically queried the petitioner’s counsel regarding whether the findings of the Appellate Court on the validity of the petitioner’s Will had been challenged in a higher forum. In response, counsel candidly admitted that no such appeal has been filed against the Appellate Court’s judgment on this issue. This admission further underscores the lack of grounds for the petitioner to assert a valid claim at this stage. 9. Given these substantial developments and the pendency of the second appeals, this Court is of the opinion that no interference or indulgence is warranted at this juncture. The matter involving the disputed property - 9 - NC: 2025:KHC:2672 WP No. 35669 of 2024 is now squarely under the consideration of this Court in RSA No.1120/2024 and RSA No.904/2024, and any determination of rights or claims must necessarily await the outcome of these second appeals. Any premature adjudication or interference in the ongoing mutation proceedings would not only be unwarranted but might also prejudge the issues that are sub judice in the pending second appeals. Hence, the petitioner’s claims do not merit further consideration in the present proceedings. Accordingly, the writ petition is devoid of merits and stands dismissed. SD/- (SACHIN SHANKAR MAGADUM) JUDGE NBM List No.: 1 Sl No.: 29