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Basappa Lachamappa Mongyal Vs. Hanumantha Rao Roaoji Rao - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberW.P. No. 7147 of 1985
Judge
Reported inILR1987KAR867
ActsKarnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966; Karnataka Prevention of Fragmentation and Consolidation of Holdings (Amendment) Act, 1979; Code of Civil Procedure (CPC), - Sections 54
AppellantBasappa Lachamappa Mongyal
RespondentHanumantha Rao Roaoji Rao
Advocates:S.K. Kulkarni, Adv.
DispositionPetition Rejected
Excerpt:
.....to a preliminary decree for partition and separate possession. even in the case of partition without intervention of the court also, the act as it stands on the date of actual division is applicable. so also in the case of transfer inter vivos the act as it stands on the date of executing the deed of transfer becomes applicable. therefore, the amendment effected to the act by karnataka act no. 15 of 1979, which came into force on 3-4-1979, became applicable to the proceeding. - karnataka land reforms act, 1961.[k.a. no. 10/1962].section 48a: [n.k. patil, j] grant of occupancy rights petitioner, in spite of being given sufficient opportunity, has failed to substantiate his defence land tribunal has proceeded on the basis of relevant clinching material available on its file and..........by the order dated 2-4-1978 and remitted the matter to the assistant commissioner. the very next date, karnataka act no. 15/1979 came into force. by the amendment, the extent of the fragment came to be reduced from four acres to 2 acres 29 guntas. having regard to the fact that the extent of the land in question is seven acres 8 guntas, the assistant commissioner has held that each one can get half share. accordingly, by the order dated 28-6-1982, he has directed the assistant director of land records, bijapur, to prepare a map dividing the petition land into two parts and submit the same to him. this order was challenged before the special deputy commissioner in appeal no. bpd/ap/4/82-83, which was dismissed on 20th june, 1983 holding that karnataka act no 15 of 1979 was applicable to.....
Judgment:
ORDER

K.A. Swami, J.

1. In this Petition under Articles 226 and 227 of the Constitution, the petitioner has sought for quashing the orders dated 28-6-1982, 20-6-1983 and 26-2-1985 passed by respondents 2, 3 and 4 produced as Annexures A, B and C respectively.

2. The land in question is an agricultural land bearing Survey No. 69/2A measuring 7 acres 8 guntas situated at Hirur village, Muddebihal Taluk. There was a suit for partition between the predecessors-in-interest of the first respondent and the vendor of the 7th defendant in the suit by name Dhulappa son of Sanna Dhulappa. The suit was decreed awarding half share to the plaintiff and the defendant on 31-1-1962. There was a Regular First Appeal 82 of 1982 filed before the District Judge, Bijapur which was also dismissed on 7-8-1967. Against the decree passed by the District Judge, there was a Regular Second Appeal No. 987 of 1967 filed before this Court and the same was dismissed on 22nd February, 1972, Thus, a preliminary decree for partition, passed by the trial Court, awarding one half share to the plaintiff and the other half share to the defendant, in the land in question, came to be affirmed by this Court. In the meanwhile, the 7th defendant in the suit, namely Dhulappa, who was himself the purchaser of the entire land, sold the entire land to the petitioner on 19-7-1971.

3. Before the Karnataka Act 15 of 1979 came into force on 3-4-1979, there was a proceeding for drawing up of a final decree before the Revenue Authority under Section 54 of the Code of Civil Procedure. In the first round of that proceeding, having regard to the provisions contained in the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, (hereinafter referred to as the 'Act'), it was held that the partition would result in creation of fragment, therefore the land could not be partitioned ; the person entitled to half share, could take the value of it. The proceeding went upto the special Deputy Commissioner, Bijapur, who directed fresh enquiry into the matter, by the order dated 2-4-1978 and remitted the matter to the Assistant Commissioner. The very next date, Karnataka Act No. 15/1979 came into force. By the Amendment, the extent of the fragment came to be reduced from four acres to 2 acres 29 guntas. Having regard to the fact that the extent of the land in question is seven acres 8 guntas, the Assistant Commissioner has held that each one can get half share. Accordingly, by the order dated 28-6-1982, he has directed the Assistant Director of Land Records, Bijapur, to prepare a map dividing the petition land into two parts and submit the same to him. This order was challenged before the Special Deputy Commissioner in Appeal No. BPD/AP/4/82-83, which was dismissed on 20th June, 1983 holding that Karnataka Act No 15 of 1979 was applicable to the proceeding. The Tribunal has also dismissed the appeal by the order dated 26-2-1985.

4. It is contended by Sri S.K. Kulkarni, learned Counsel for the petitioner that on the date the preliminary decree was passed and sent under Section 54 of the C.P.Code to the Revenue Authority for effecting partition, the Karnataka Act No. IS/79 had not come into force; therefore the rights of the parties should be determined as per the law that prevailed on the date of the passing of the preliminary decree. It is not possible to accept this contention. The suit must be deemed to be pending till the actual partition by metes and bounds takes place and the possession is delivered pursuant to the partition. The Act becomes relevant only at the time of actual division of the land pursuant to a preliminary decree for partition and separate possession. Even in the case of partition without intervention of the Court also, the Act as it stands on the date of actual division is applicable. So also in the case of transfer intervolves the Act as it stands on the date of executing the deed of transfer becomes applicable. Therefore, the amendment effected to the Act by Karnataka Act No. 15 of 1979, which came into force on 3-4-1979, became applicable to the proceeding. By the Karnataka Act 15 of 1979, the extent of the fragment has been reduced. This reduction is in favour of the subject.

5. For the reasons stated above, the authorities below are right in applying Act No. 15 of 1979. Consequently, the conclusion reached by them that each one of the parties, is entitled to half share in the land in question, is just and proper. Hence, I do not see any justification to entertain this petition. Accordingly, it is rejected.


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