ORDER

K. Ramanna, J.

Page 0338

1. Though the matter is listed for preliminary hearing in 'B' group, with the consent of both the parties, it is heard and disposed of by this order.

2. This is a writ petition filed by the petitioner challenging Annexure-C and C1 dated 10/10/2001 passed by the 2nd respondent-Asst. Commissioner in No. RTS:AP:26:99-2000 and the order passed by the 1st respondent-Deputy Commissioner in case No. RTS:REVISION:36:2001-02 Page 0339 dated 20/10/2003, mainly on the ground that since the petitioner is the bona fide purchaser of the property bearing Sy. No. 35/6 measuring 3 acres 15 guntas of land situated in Aheri village in Sindgi taluk under register sale deed dated 15/6/1994 from the Respondent-5, which was fallen to this share in a petition. Since Respondent-6 being the power of attorney holder has executed a sale deed on behalf of Respondent-5, and ever since from the date of purchase the Petitioner is in possession and enjoyment of the land. Therefore, on the basis of the vardhi submitted by him the mutation was effect in the name of the petitioner. To that effect he has produced Annexure-D the record of rights to show that he is in possession and enjoyment of the same. Since Respondent-4 has been challenging the order of mutation before the Asst. Commissioner, the Asst. Commissioner has held that the since civil suit is pending between Respondent-4 and 5, therefore stayed any entry made in the record of rights on the basis of the sale deed. The Mutation Entry No. 1982 was stayed. Therefore, the petitioner therein and one Shantabai Respondent-5 assailing the said order, preferred a Revision Petition under Section 136(3) of the Karnataka Land Reforms Act before the Deputy Commissioner in No. RTS:REVISION:36:2001-02. After considering the materials placed on record, the Deputy Commissioner, dismissed the revision petition. Therefore, he has come up with this writ petition, to quash Annexures-C and C1 passed by the Asst. Commissioner and the Deputy Commissioner.

3. Heard the arguments of learned Counsel for the petitioner and learned Counsel for respondent No. 4 and Government Advocate for Respondent-1 to 3.

4. It is contended by the learned Counsel for the petitioner that the petitioner is a bane fide purchaser of the land measuring 3 acres 18 guntas of land in Sy. No. 35/6 of Ahari village. Further, it is contended that the father of Respondents-4 and 5 are real brothers and they had jointly purchased the land Sy. Nos. 35/7B measuring 3 acres and 35/6, measuring 3 acres 18 guntas respectively. Accordingly, to the petitioner, after the death of Respondent-4 a partition took place among Respondents-4 and 5. Therefore, the land bearing Sy. No. 35/7B fallen to the share of Respondent-4 and Sy. No. 35/6 fallen to the share of Respondent-5. The petitioner being the bonafide purchaser of the said land from Respondent-5, therefore, the Tashildar who has rightly made the mutation entry, directing the parties to change the name of petition in respect of said land. Further, it is contended that under Section 128 of the Land Reforms Act, even without varthi, if sale took place under registered sale deed, the revenue authority is bound to effect the mutation on the basis of Form No. 'T' received from the Sub-Registrar. In the instant case varthi has been submitted by the petitioner regarding purchase of the land, therefore his name has been mutated as per Annexure-D. The suit filed by Respondent-4 came to be dismissed but the revenue authority viz., the Assistant Commissioner and the Deputy Commissioner who recorded the recorded the finding stating that during the pendency of the suit for partition a mutation was effected by the concerned Page 0340 Tashildar on the basis of the vardhi, is incorrect. Therefore, the Assistant Commissioner and the Deputy Commissioner have wrongly come to the conclusion. Therefore, writ petition is maintainable and the order under challenge Annexures-C and C1 passed by the Asst. Commissioner and the Deputy Commissioner is liable to be quashed.

5. Per contra, learned Counsel for Respondent-4 concerned, submits that the property in question has been purchased in the joint name of Respondents-4 and 5. Therefore, Respondent-4 filed a suit O.S. No. 159/89 on the file of the Civil Judge (Jr. Dn.), Sindgi, seeking for partition and the said suit though dismissed for default, but it was subsequently, Respondent-4 filed a Misc. petition 10/94 to set aside the order of dismissal and to restore the suit. It is contended by Respondent-4 who has filed Writ Petition No. 3635/99 against the order dated 30/9/99 passed by the Civil Court and the order has been set side and the matter has been remanded to the Court below. Therefore, when the civil suit is pending for partition among the brothers vis., Respondents-4 and 5 any sale deed executed by Respondent-5 without ascertaining his share is illegal and incorrect and the order passed by the Tashildar effecting mutation in the name of the petitioner has been rightly set aside by Respondents-1 and 2 and the present writ petition is liable to be dismissed. Further, he contend that the only remedy available for the petitioner to seek for declaration of his title by approaching the competent Civil Court to establish their respective rights. In support of his contention Respondent-4 has relied on a decision of this Court in the case of Rasagouda v. Assistant Commissioner, Chikodi Sub Division, Chikodi, District Belgaum and Ors. Reported in 1999 5 KLJ 559, wherein it has been held that:

The partition of the family properties does not take place, sale by Coparcener even before partition of - Entering name of purchaser in record of rights by revenue authority-Permissibility of- Held, what purchaser has acquired in land in question is only undivided interest of one of the Coparcener it was not permissible for Tahsildar to enter name of such purchaser in record of rights on basis of such sale deed, in absence of partition of joint family property. It is open to purchaser to seek partition.

6. On the other hand, learned High Court Government Pleader appearing for Respondents-1 to 3 filed a detailed objections and submits that during the pendency of the suit for partition among the parties, the third party proceeding the property of unascertained Coparcener property on the basis of which any mutation was effected in the name of the purchaser is liable to be quashed and remedy available is to file a suit for partition before the civil Court. Therefore, the present writ petition is liable to be quashed.

7. I have carefully examined the material placed on record. It is an admitted fact that Respondents-4 and 5 are cousin brothers but their father are real brothers and the disputed lands in question are purchased in the joint name of father of Respondents-4 and 5. It is also an admitted fact that Page 0341 O.S. No. 94/94 came to be filed by Respondent No. 4 against his own cousin brother who was a Coparcener seeking partition. During the pendency of the suit for partition the Respondent No. 5 sold the said land and executed the sale deed in favour of the petitioner through power of attorney holder Respondent No. 6. Of course on the basis of the Vardhi, the Tashildar vis., Respondent No. 3 effected the Mutation Entry No. 1982 as per Annexure-B, which has been challenged by 4th respondent before Respondent Nos. 1 and 2. The 4th respondent has challenged the said order before the Assistant Commissioner and Respondent No. 5. Shantabai and present petitioner who have challenged the order passed by the Asst. Commissioner. When the law is clear that, if the property is in the joint names of Coparcener and when the suit is pending seeking partition filed by one of the Coparcener, if the property purchased by 3rd party from one of the Coparcener during the pendency of the suit for partition which is not permissible in law. Therefore, any entry made by the Tashildar on the basis of the sale deed executed by the 5th respondent on 15/6/94 during the pendency of the suit is liable to be set aside. Therefore, Respondent-1 and 2 the Asst. Commissioner and the Deputy Commissioner are right in setting aside the order of Mutation Entry No. 1982 passed in favour of the petitioner by the Tashildar. Therefore, the decision referred to above by the learned Counsel for Respondent No. 4 is only applicable to the facts of this case. Therefore, the writ petition is not at all maintainable and it is dismissed at the stage of admission.