- 1 - NC: 2025:KHC-D:3642 WP No. 107635 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 21ST DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 107635 OF 2024 (GM-RES) BETWEEN: 1. TAHERA W/O. LATE RIYAZ NAIK, AGE. 50 YEARS, OCC. NIL, R/O. #2043, NEHARU CHOWK, SAMADHAN HOTEL, NIPPANI- 591237. 2. IMRAN S/O. LATE RIYAZ NAIK, AGE. 33 YEARS, OCC. BUSINESS, R/O. #2043, NEHARU CHOWK, SAMADHAN HOTEL, NIPPANI- 591237. 3. ABID S/O. LATE RIYAZ NAIK, AGE. 30 YEARS, OCC. BUSINESS, R/O. #2043, NEHARU CHOWK, SAMADHAN HOTEL, NIPPANI- 591237. 4. SAJID S/O. LATE RIYAZ NAIK, AGE. 26 YEARS, OCC. BUSINESS, R/O. #2043, NEHARU CHOWK, SAMADHAN HOTEL, NIPPANI- 591237. …PETITIONERS (BY SRI MOHAMMED JAHIR, AND SRI WAQAR A. SHAHPURI, ADVOCATES) Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - NC: 2025:KHC-D:3642 WP No. 107635 of 2024 AND: 1. THE STATE OF KARNATAKA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, M. S. BUILDING, BENGALURU- 560001. 2. THE ASSISTANT COMMISSIONER, BELAGAVI, CHAIRMAN MAINTENANCE AND WELFARE OF THE SENIOR CITIZEN PROTECTION TRIBUNAL, BELAGAVI -590001. 3. NOORJAHAN W/O. LATE NAZIRAHMAD NAIK, AGE. 78 YEARS, OCC. HOUSE WORK, R/O. NEHRU CHOWK NIPANI, DIST. BELAGAVI -590001. …RESPONDENTS (BY SRI SHARAD V. MAGADUM, AGA FOR R1 & R2, SRI VITTHAL S. TELI, ADVOCATE FOR R3) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA IS PRAYING TO A. WRIT OF CERTIORARY OR ANY OTHER APPROPRIATE WRIT AND SET ASIDE THE IMPUGNED ORDER DATED 02/12/2024, PÀæ.» £Á gÀ PÁ: ¹ Dgï-15; 2024-25 AT ANNEXURE-J. PASSED BY 2ND RESPONDENT. B. GRANT SUCH OTHER RELIEF AS THIS HON’BLE HIGH COURT DEEMS FIT UNDER THE CIRCUMSTANCES IN THE INTEREST OF JUSTICE. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - NC: 2025:KHC-D:3642 WP No. 107635 of 2024 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE M.NAGAPRASANNA) 1. The petitioner is before this Court calling in question an order dated 02.12.2024 asked by the respondent No.2-Assistant Commissioner directing change of mutation entries that is stood in the name of the petitioners to be mutated into the name of respondent No.3. 2. Heard the learned counsel Sri.Mohammed Tahir and Waqar A. Shahpuri appearing for the petitioners, learned AGA Sri.Sharad V. Magadum appearing for respondent No.1 and 2 and learned counsel Sri.Vithal S.Teli appearing for the respondent No.3. 3. Facts in brief germane are as follows: It would suffice if the narration in the issue commence from the date on which the respondent No.3 approaches the respondent No.2/Assistant Commissioner invoking its jurisdiction under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (‘the Act’ for short). The backdrop of the - 4 - NC: 2025:KHC-D:3642 WP No. 107635 of 2024 petitioner approaching the Assistant Commissioner is that mutation entry of the property claiming to be belonging to the respondent No.3 is made in the names of the petitioners. The reason for that is an application submitted by the petitioners before the Tahasildar seeking such change of mutation entries on the ground that the respondent No.3 has by way of oral gift transfer the property into the name of petitioners. 4. This application of the petitioner on the said score is entertained by the Assistant Commissioner and the Assistant Commissioner now passes an order directing the change of mutation entries standing in the name of the petitioners to the name of respondent No.3 on manifold reasons. The petitioners are before this Court on the said order passed by the Assistant Commissioner. In effect the Assistant Commissioner has now entertained a petition for change of mutation entries at the behest of a senior citizen owing to the power available to him under the provisions of the Act. - 5 - NC: 2025:KHC-D:3642 WP No. 107635 of 2024 5. Learned counsel Sri.Vithal S. Teli would seek to defend the action, however after arguing the matter at length would submit that he be reserve liberty to knock at the doors of the appropriate fora challenging the mutation entries. The submission merits acceptance for the reason that the Assistant Commissioner under the Act does not get jurisdiction to change to entertain a petition for change of mutation entries. This is by now, too well settled a principle of law, as the remedy to the person who claims that his mutation entries should be changed in not before the Assistant Commissioner. A Coordinate bench of this Court in W.P.No.11991/2021 connected with W.P.No.5142/2021 disposed on 16.01.2024 has held as follows: “11. The questions that arise for consideration in the present matter are: i. Whether the proceeding under Section 23 of the Act of 2007 could be filed in respect of a partition deed? ii. Whether in the present case, the orders passed by the Asst. Commissioner and that of the Deputy Commissioner are proper and correct? - 6 - NC: 2025:KHC-D:3642 WP No. 107635 of 2024 12. Answer to Point No.1: Whether the proceeding under Section 23 of the Act of 2007 could be filed in respect of a partition deed? 12.1. This aspect is no longer res integra. A coordinate Bench of this court vide order dated 25.03.2019 in W.P. No.36601/2017 and other connected matters has categorically come to a conclusion that a partition deed is not covered under Subsection (1) of Section 23 of the Act of 2007 and such a partition deed cannot be questioned in a proceeding under Section 23 of the Act of 2007. 12.2. Hence, I answer point No.1 by holding that the challenge to a partition deed could not be made under Section 23 of the Act of 2007. 13. Answer to Point No.2: Whether in the present case, the orders passed by the Asst. Commissioner and that of the Deputy Commissioner are proper and correct? 13.1. Taking into consideration my answer to point uld be seen that what has been challenged before the Asst. Commissioner is in fact not even the partition deed but MR entry T19/2016-17 which is the entry relating to renumbering of Sy.No.102 falling to the share of Srinivas as Sy.No.102/5. 13.2. The said MR No.T19/16-17 does not relate to any transfer of title being recorded but only records the renumbering of Sy.No.102 as Sy.No.102/5. The name of Srinivas relates to a partition deed dated 15.01.1990 in furtherance of which MR No.3/92-93 was entered in the mutation register. Thus neither the partition nor MR No.3/1992-93 had been challenged before the Asst. Commissioner as aforesaid which is only a resurvey and renumbering of MR No.T19/16-17 which was challenged. Thus, in effect there is no particular challenge to even the partition deed in the proceeding before the Asst. Commissioner. - 7 - NC: 2025:KHC-D:3642 WP No. 107635 of 2024 13.3. In that view of the matter, the Asst. Commissioner could not have set-aside MR No.T19 and directed the insertion of the name of Thimmegowda when the partition deed dated 15.01.1990 and MR No.3/1992-93 continue to be in existence. 13.4. Insofar as the proceedings before the Deputy Commissioner are concerned, Lakshmamma and Srinivas having filed the appeal, the Deputy Commissioner has only tried to pass an order inserting the names of the contesting parties without ascertaining whether the Deputy Commissioner could have adjudicated the dispute in an appeal from the petition under Section 23 and without ascertaining the rights of the parties. 13.5. Merely because Lakshmamma is the first wife of M.K.Thimmegowa, it would not be required of the Deputy Commissioner to direct the insertion of her name in the mutation register, more particularly when a partition deed is of the year 1990 and MR No.3/1992- 93 continues to be in existence. 13.6. These two important documents neither been considered by the Asst. Commissioner nor the Deputy Commissioner. If they had been so considered, it would have been clear to both of them that they are not authorized to exercise jurisdiction under Section 23 of the Act of 2007 in respect of the partition deed. 13.7. Hence, I pass the following: ORDER i. W.P. No.6142/2021 is dismissed. W.P. No.11991/2021 is allowed. The order of the Asst. Commissioner dated 27.06.2019 in No.So.Hi.Na.Ra(M.A.G) 25/2019-20 Annexure-H is quashed, as also the order of the Deputy Commissioner in - 8 - NC: 2025:KHC-D:3642 WP No. 107635 of 2024 NO.MAG/259/2019-20 at Annexure-L are quashed. ii. Respondent No.4-Tahsildar is directed to restore the name of Srinivas, S/o M.K.Thimmegowada in the mutation register in respect of MR No.3/1992-93. iii. Liberty is however reserved to M.K.Thimmegowda to challenge the partition by filing appropriate suit. iv. Lakshmamma and Srinivas are restrained in any manner transferring, dealing with the property covered under Sy.No.102/5 earlier covered under Sy.No.102, measuring 2 acres 9 guntas bearing reference to MR No.3/1992- 93 for a period of 45 days from today. v. In the event if the petitioner not filing a suit within the said period and or obtaining an injunction from the trial Court, this order of injunction would automatically lapse. Needless to state once a suit is filed, it is for the trial Court to pass injunction or not. The trial Court shall deal with the said matter without being influenced by the observations made hereinabove.” 6. In the light of the settled principles of law, the order of the Assistant Commissioner which directs change of mutation entries is rendered unsustainable. 7. Learned counsel appearing for the respondent would submit that the respondent No.3 is not granted any maintenance and she has now to approach the Assistant Commissioner yet again. Learned counsel Sri.Mohammed - 9 - NC: 2025:KHC-D:3642 WP No. 107635 of 2024 Tahir would gracefully agree that Rs.10,000/- per month is to be paid to the grand-mother from today. The submission is placed on record. Subject to the payment as aforesaid the following: ORDER (i) The petition allowed. (ii) The impugned order dated 02.12.2024 passed by respondent No.2 vide Anneuxre-J stands quashed. (iii) Liberty is reserved to the respondent No.3 to initiate proceedings in accordance with law. Ordered accordingly. Sd/- (M.NAGAPRASANNA) JUDGE RHR/- List No.: 1 Sl No.: 49