- 1 - HC-KAR NC: 2025:KHC-D:15950 WP No. 100871 of 2017 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 19TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE WRIT PETITION NO. 100871 OF 2017 (LR) BETWEEN: SRI. SHAMBU SUBRAY BHAT, AGE: 37 YEARS, R/O. BASAVENBETTA, UPPONI, TQ. HONNAVAR, DIST. UTTARA KANNADA. … PETITIONER (BY SRI. J.S. SHETTY, ADVOCATE) AND: 1. SRI. CHINTAMANI GANESH HEGDE, AGE: MAJOR, R/O. BASAVENBETTA, UPPONI, TQ. HONNAVAR, DIST. UTTARA KANNADA. NARAYAN SUBBA HEGDE, SINCE DECEASED BY HIS LR’S., 2. SRI. SUBBA NARAYAN HEGDE, AGE. MAJOR, R/O. BASAVENBETTA, UPPONI, TQ. HONNAVAR, DIST. UTTARA KANNADA. 3. SRI. BELLI KOM GAJANAN HEGDE, AGE: 71 YEARS, R/O. BASAVENBETTA, UPPONI, TQ. HONNAVAR, DIST. UTTARA KANNADA. 4. SRI. SHIVRAM GAJANAN HEGDE, AGE: 46 YEARS, R/O. BASAVENBETTA, UPPONI, TQ. HONNAVAR, DIST. UTTARA KANNADA. CHANDRASHEKAR LAXMAN KATTIMANI Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: High Court of Karnataka, Dharwad Bench Date: 2025.11.27 12:54:35 +0530 - 2 - HC-KAR NC: 2025:KHC-D:15950 WP No. 100871 of 2017 5. SRI. SUBRAMANYA GAJANAN HEGDE, AGE: 44 YEARS, R/O. BASAVENBETTA, UPPONI, TQ. HONNAVAR DIST. UTTARA KANNADA. 6. SRI. ISHWAR PARAMESHWAR HEGDE, AGE: 51 YEARS, R/O. BASAVENBETTA, UPPONI, TQ. HONNAVAR, DIST. UTTARA KANNADA. 7. SRI. SUBRAY SHAMBU BHAT, AGE: 66 YEARS, R/O. BASAVENBETTA, UPPONI, TQ. HONNAVAR, DIST. UTTARA KANNADA. 8. THE TAHASILDAR HONNAVAR, DIST. UTTARA KANNADA. 9. THE ASSISTANT DIRECTOR OF LAND RECORDS, KUMTA, DIST. UTTARA KANNADA. 10. THE DEPUTY DIRECTOR OF LAND RECORDS, TQ. HONNAVAR, DIST. UTTARA KANNADA. 11. THE DEPUTY COMMISSIONER, UTTARA KANNADA, KARWAR. … RESPONDENTS (BY SRI. SURESH S. BHAT, ADVOCATE R1 TO R6; SMT. MALA B. BHUTE, AGA FOR R8 TO 11; NOTICE TO R7 IS SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE OF A WRIT OF CERTIORARI OR ANY OTHER WRIT OR DIRECTION TO QUASH THE ORDER NO. kam / Tam / Bhumapana / Bhudauni / Melmanavi 24/15-16, DATED 07.01.2016 THE COPY OF WHICH HAS BEEN PRODUCED HEREWITH AND MARKED AS ANNEXURE-A AND ALSO THE ORDER DATED 16.01.2017 IN ORDER NO.RB/TECH APPEAL/CR-12/15-16 AS PER ANNEXURE-B. - 3 - HC-KAR NC: 2025:KHC-D:15950 WP No. 100871 of 2017 THIS PETITION COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: ORAL ORDER (PER: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE) This petition is filed assailing the order dated 07.01.2016 passed by respondent No.10 and also the order dated 16.01.2017 passed by Deputy Commissioner, Karwar, who is now arrayed as respondent No.11 as the Court permitted the counsel for the petitioner to implead Deputy Commissioner, Karwar as respondent No.11. 2. Learned Government Advocate accepts notice for respondent No.11. 3. The Deputy Commissioner in terms of the Order dated 16.01.2017 has confirmed the order passed by the Deputy Director of Land Records on 07.01.2016. 4. The order at Annexure-A, dated 07.01.2016 is filed on an appeal under Section 49 of the Karnataka Land Revenue Act, 1964 (for short ‘Act, 1964’). The said appeal is filed by respondent No.1 of this petition. Respondent No.1 has - 4 - HC-KAR NC: 2025:KHC-D:15950 WP No. 100871 of 2017 questioned the sub-division of the property bearing Surrey No.109/1 of Upponi village, Taluk: Honnavar. 5. The Deputy Director of Land Records in terms of the order dated 07.01.2016 has cancelled the sub-division order No.PODI.VIVA/139/2004-05 and the order of the Assistant Director of Land Records in proceeding number HNR/MPR/144/04-05 sub-dividing the property bearing Survey No.109 into 6 sub-divisions. The Assistant Director of Land Records was directed to initiate fresh proceeding for sub-division of the property. 6. The petitioner filed the appeal before the Deputy Commissioner, Karwar and in terms of impugned order dated 16.01.2017, said appeal is dismissed. 7. It is observed by the Deputy Commissioner that O.S. No.7/2016 is pending before the Civil Judge, Honnavar. 8. Learned counsel appearing for the petitioner would submit that appeal before the Deputy Director of Land Records was entertained after 12 years without there being any application for condonation of delay and the appeal is allowed. In - 5 - HC-KAR NC: 2025:KHC-D:15950 WP No. 100871 of 2017 addition to that, it is submitted that the present petitioner was not a party to the said proceeding and his father was a party to the said proceeding and the petitioner ought to have been made a party to the said proceeding as he had acquired right over the property under the registered gift deed dated 07.02.2015. 9. Learned counsel for the petitioner would also urge that the Deputy Commissioner has not appreciated the contentions relating to the delay in filing the appeal and also the contention that the petitioner is not made a party to the proceedings before the Deputy Director of Land Records. 10. Learned counsel for the respondents No.1 to 6 would urge that the Civil Suit in OS.No.7/2016 is adjudicated holding that the present petitioner who was the plaintiff in the said suit is not the owner of the suit schedule property by answering Issue No.1 which is framed as under: “Whether the plaintiff proves that he is the owner of the suit schedule property?” 11. Learned counsel for respondent No.1 would submit that the suit property in the said suit is Survey No.109/6 - 6 - HC-KAR NC: 2025:KHC-D:15950 WP No. 100871 of 2017 measuring 10 guntas. Learned counsel would also urge that appeal filed against such judgment and decree in RA No.22/2020 is also dismissed by the Senior Civil Judge, Honnavar and thus would urge that the petitioner cannot maintain the present petition. 12. Learned counsel appearing for the petitioner by way of reply would contend that the civil suit is dismissed on the premise that the Writ Petition is pending against the order passed by Deputy Director of Land Records setting aside the sub- division, as such the petitioner is not entitled to the relief and the First Appellate Court has dismissed the appeal with an observation that the plaintiff has to get his property identified, thereafter, he has to file a suit to claim his property. It is also submitted in the said suit the plaintiff had also sought an alternative prayer for the possession. 13. The Court has considered the contentions raised at the Bar and perused the records. 14. Sri J.S.Shetty, the learned counsel for the petitioner is right in contending that the appeal is entertained by the - 7 - HC-KAR NC: 2025:KHC-D:15950 WP No. 100871 of 2017 Deputy Director of Land Records after 12 years and there is no application for condonation of delay. And the sub-division in 2004 and 2005 is set aside with a direction to measure the property afresh. It is also noticed that the present petitioner is not a party to the said proceeding, though it appears that a property was gifted to the present petitioner on 07.02.2015. 15. However, the question is; whether the matter has to be remanded to the Deputy Director of Land Records by setting aside the impugned orders on the premise that the delay was not condoned while entertaining an appeal after 12 years and the present petitioner was not made a party to the proceeding. The answer would be, No. The reason is the petitioner had filed a suit claiming declaration of title over the property bearing Survey No.109/6 of Upponi Village Taluk:Honnavar in OS No.07/2016 and same is dismissed holding that the plaintiff is not the owner of the property. 16. The First Appellate Court has held that the plaintiff is not in possession of the property and declaration of ownership cannot be granted unless the petitioner's property is identified. - 8 - HC-KAR NC: 2025:KHC-D:15950 WP No. 100871 of 2017 The relevant portion of the cross-examination extracted by the Appellate Court is reads as under: “zÁªÁ D¹ÛAiÀÄÄ ¸Áé¢üãÀvÉ £À£À߯Éèà EzÉ JAzÀÄ ¸ÀÆa¹zÀgÉ EªÁUÀ £Á£ÀÄ ¸Áé¢üãÀvÉAiÀÄ°è E®è JAzÀÄ ºÉüÀÄvÁÛgÉ. £À£ÀUÉ zÁ£À PÉÆlÖ DV¤AzÀ®Æ zÁªÁ D¹ÛAiÀÄ ¸Áé¢üãÀvÉ £À£Àß°è E®è. zÁªÁ D¹ÛAiÀÄ£ÀÄß ¥ÀæªÁ¢UÀ¼À£ÀÄß MvÀÄÛªÀj ªÀiÁrzÀÝjAzÀ £ÁªÀÅ CzÀgÀ°è §zÀ° D¹ÛUÀ¼À£ÀÄß ¥ÀjªÀvÀð£É gÀÆ¥ÀzÀ°è £À£Àß vÀAzÉ ªÀiÁrPÉÆArzÁÝgÉ. F jÃw ¥ÀjªÀvÀð£É §zÀ¯ÁªÀ£ÉAiÀÄ£ÀÄß £À£ÀUÉ zÁ£À ¤ÃqÀĪÀ ªÉÆzÀ¯Éà £À£Àß vÀAzÉAiÀĪÀgÀÄ ªÀiÁr¹zÁÝgÉ.” 17. The Appellate Court has also observed as under: “19. As admitted the plaintiff since the date of Gift Deed the plaintiff is not possession of the suit schedule property. He has specifically admitted that since the defendants have encroached the property during the life time of his father itself they have made an exchange of their properties. Thus it is crystal clear that the plaintiff is not in possession of the Gift Deed schedule property but on the date of Gift Deed itself he has lost the possession of the said property. Further one thing is confirmed that because the defendants have made an encroachment of the property there was an exchange of the properties as admitted by the PW-1. Under such circumstances which was the property has been exchanged between them and how could it figure out the boundaries of exchanged property has to proved. Thus the title of the plaintiff is totally he is clouded and clumsiness. Under such - 9 - HC-KAR NC: 2025:KHC-D:15950 WP No. 100871 of 2017 circumstances only because he became the owner by virtue of the Gift Deed he shall not be declared as an absolute owner unless his property has been demarcated and identified by the Competent Authority. Accordingly at the out set the plaintiff is required get identify his property then only he can sought the prayer of declaration to declare his ownership over the said property. Thus absolutely there is an identification dispute since the property in survey No.109 is not only 00-09-00 guntas or 00-10-00 guntas of the plaintiff but other defendants are also the owners in the very same property.” 18. In addition to that, in paragraph No.20, the Appellate Court has held that the Survey sketch prepared by the Assistant Director of Land Records has been set aside by the Deputy Director of Land Records and said order is confirmed by the Deputy Commissioner and the Writ Petition is still pending consideration. 19. Thus, First Appellate Court has come to the conclusion that the property of the petitioner is not yet identified. It is to be noticed that in terms of the impugned order, there is a direction to measure the property afresh. Since the petitioner himself has admitted that he is not in possession of the property - 10 - HC-KAR NC: 2025:KHC-D:15950 WP No. 100871 of 2017 and it is also stated that since his father was not in possession of the property while gifting the property to him, as the properties were exchanged, First Appellate Court has rightly entertained the doubt on the petitioner's title over Survey No.109/6 referred to above. 20. This being the position, the Court is of the view that the petitioner's claim in respect of the property is not yet adjudicated for want of proper identification. The First Appellate Court has held that it has to be adjudicated after proper survey. 21. This being the position, the order though passed by the Deputy Commissioner without notice to the petitioner need not to set aside, as the said order directs a fresh survey. 22. Hence, the following: ORDER (i) The Writ Petition is dismissed. (ii) It is made clear that notwithstanding the dismissal of the Writ Petition, the petitioner's right over the property is not yet adjudicated. The finding of the - 11 - HC-KAR NC: 2025:KHC-D:15950 WP No. 100871 of 2017 First Appellate Court that the petitioner is not in possession of the property has attained finality. (iii) In the proper survey to be conducted by the jurisdictional Assistant Director of Land Records, the properties are to be measured and identified with reference to the title deeds of the respective parties. (iv) If any encroachment is noticed, same has to be identified. (v) Thereafter, the parties including the petitioner are at liberty to move appropriate Court for redressal of their grievance, in case the said survey is contrary to their claim. Sd/- (ANANT RAMANATH HEGDE) JUDGE GVP CT:BCK, LIST NO.: 1 SL NO.: 53