Annappa S/O Malleshappa Khapali vs Bhupal S/O Awanna Janoji on 8 July, 2011

[Cites 2, Cited by 0]

Karnataka High Court

Annappa S/O Malleshappa Khapali vs Bhupal S/O Awanna Janoji on 8 July, 2011

Bench: Ashok B.Hinchigeri, Aravind Kumar

IN THE HIGH COURT O I"__KARNAT[gKAv = n "
CIRCUIT BEN'-"'31-LAT DHARWAD

Pr¢os.er_1i-_ ..

THE HON'BLE MR...4_J'USTggg.AS__H

Dated this the 8m°'d_ay ofJLi1y 20,11

'K_B.HINCVHIGERI

THE HON'BLE MR.'J1V',VIS 5I_'ib(:3bE KUMAR

Appkéfaii N4o';*:>'1;3.1aV/2008
I 59C./w1K/.A.No_.,61101 /12010

In W.A.Nc)§'21S_'1;[2'O'Q§ _ _
BETwFo_4;ﬂ:oaV%%o-A _ " *

1. Ann appa, V aMa1'1ve_éh.apa Khapali,
aged about 60 tye ar_s1T;'~ . a
r / at F2abaaka'vi,°T <:1; VJa.makhandi,
Dist: Bagalkohte. ' "

A 2v;':o_ji:<2ad.appa, S/o"Ma11eshapa Khapali,

V ag¢5d«a.1oAo--ut 58 years,
" V _ "1"/a't._RaVba.k:§,Vi, Tq. Jamakhandi,
" .__DIs)t: 'Bagaikote. ...Appe11ants

S1<.i:..Mf'uthyunjaya Tata Bangi, Advocate)

.5' N "

T " Eihupal, S/o Awanna Janoji,

aged about 60 years,
r/at Savadi, Tq. Athani,
Dist: Belgaum.

2. The Land Tribunal, Athani,
by its Chairman, Athani,
Dist: Belgaum.

3. The State of Karnataka,
by its Secretary to the Revenue ».
Department, M.S.Building,
Bangalore.

4. Shiddappa, S/o Ningappa"'Janoji',v- .
aged about 35 years,
r/at Savadi, Tq Athani,

Dist: Belgaurn. '

5. Bujapali, S/o Ningappa
aged about 3-4 year's';* -- " L
r / at Savajidii; Athani;

Dist: 'V if}. . ...Respondents
(By sr1iiri_Rav1oii's Ealsikaji', .fKdivo.cate~i for R1

sir. K.'B;Adhj%.a'pak,..iAdd1. Govt. Adv., for R2 85 R3
M.G.Nag-ajénurii,.A'dVocate for R4)

Thiis' "writ filed under Section 4 of the
Kar_nataka"H_igh. Court 'Act praying to set aside the order
pasised" in tF1*e.VV__§_?_\_/grit Petition No.32113/2002 dated

'' V' g1t9=.1 1f--..'2oo7_.

"in. 6~1:c_>1..1 /2010
EE+WEf.9E:

1. Awanna Janoji,
_ agedabout 65 years,

_ : V "r./at Savad taluk, Athani,
*B'e1gaurn District. ...Appe11ant

~(By Sri. R.K.Hatti, Advocate)

AND:

1 The Land Tribunal Athani,
by its Chairman, Athani,
Belgaum District.

2. The State of Karnataka,
by its Secretary, Revenue
Department, M.S.Bu1'lding,
Bangalore l.

3. Shiddappa, S/o Ningappa_iJanoj_yi,
age Major, R/o Savadi T'alul<~,- V
Athani, Belgaum Dist.' 5 "

4. Bujabali, Ningaprpag =lanfoj_il, A
aged major,' l\/Eajc.-r,--~~'R/'o ASa_"vva_di.iTalu1<,

Athani,

5. Annagppa, Ma,ll'eshapa__lﬁhiapali,
aged l\/lajyor, R7/o Rlabakavi,
Ta1_uk_ Ja_rn'la.l'<han.gdi~,_gV .. r
Bagalkot Dist1fict."--.__y"'~»«

6. Kadapipa,_:lS/.ofl\/Ialleshapa Khapali,
.».i§tged Major,=..Rv_/o Rabakavi,
~ ..._Tal.--u:k J am akh andi,

A " » _VBa..galyk0_t"D_istrict. ...Respondents

D" '--(Al§j;Ji'Sir'iLAK'.-.B',:Adhyapak, Addl. Govt. Adv., for R1 85 R2

Sri~.~ [\_/I4jl..--G.Naganuri 85 S.P.Patil, Advocate for R3
Sr'i.. l\/lruthyunjaya Tata Bangi, Adv. for R5 and R6)

(R/J.«_-- appeal abated.)

This writ appeal is filed under Section 4 of the

-IlKarnatal<a High Court Act praying to call for recordsin

W.P.No.32ll3/2002 and set as."Ldei--._die d'rd'.er~.pasis;e'd,i;b3g
the learned single .»Ju_dge in Peltitiong
No.32l 13/2002 (LR) dated'--v..lg9,l 1.2007 'by"'_:allowing this

writ appeal and remand the matter to the land Tribunal
in respect of Sy.No.93/.21] 'A94/ﬁle', 95/ll" and 96/1
agricultural lands sigtluategd "'Savlad_i village, Athani
Taluk, for fresh disposal in with law.

These ,app'e.als[ corriing.Vi0ne~.forlffinal hearing this
day, Aravincll J, delivere-d lthemfollowing:

dad. 0 d'a.':'e;1": 019.1 1.2007 passed in

by the learned single Judge is

'cagllledniliin question in this intra court writ appeal.

2. are referred to as per their rank in the

writ proceedings.

3. Petitioner sought for quashing of the order

0' "dated 24.07.2002 passed by the Land Tribunal, Athani,

(Annexure~A) and sought for conferment of occupancy
rights in respect of the lands bearing Sy. Nos.93/1,

94/lg, 95/l and 96/1 of Savadi Village, Athani Taluk,

Belgaum District in favour of petitioner and respondentt

Nos.3 and 4. The lands referred to hereinyabioyelliil'gyere

taken on lease by father of the pe7ti:tiojner'

grandfather of respondent Nos.:.3iand«4l by l

Awanna. After his demise? father the p'etlitiC'ne:rfand-..p

father of respondent 4 contilnueid to cultivate

the lands as tenantand in possession and
enjoyment of the samle.~fA_sl '[l.~i«!:itléij?¢l.V.€'Xt1"aC'[S, it was
claimed that yvas entered as a
'protected provisions of Bombay
Tenancy Act, 1948 and, as
petitioner continued to be in

possession" in the same capacity. Petitioner, son of Sri.

. Janoji, Form No.7 before Land Tribunal for

V' lgr.ant...o'f_eoccupancy rights in respect of these four items

oI'---..__the.-lands. Tribunal, on adjudication of said From

No.7", its order dated l5.09.197©, granted occupancy

ll --..fr'i»gbi=ts in respect of Sy.No.95/1 measuring 7 acres 17

..§guntas and 96/1 measuring 4 acres 11 guntas.

Occupancy rights were notjgranted_, in _i'rie_spect of T.

Sy.Nos.93/l and 94/1. 4 ihier.eii1,

viz., Sriyuths Shiddappaia~ri:d=.Bhuja«bal»..c:hal'le-ingeid the

said order of Land...' rtti:,une;'1j'; 'be-fjore iith'i's'"iiCourt in
W.P.No.4909/ 1995 rights
ought to the joint family
and not Sri.Bhujbal, the
petitioner'; bjviiiioirider dated 12.06.1998
allowed. remanded the matter back

to Land Tir'ib_una..i"-- for adjudication viz., to adjudicate as

' to~v,.vv'he-t.hei--r, the issue regarding tenancy would enure to

itlieiibegiggfjﬁiiio.fit.he individual or to the benefit of the joint

Court also held that, in the event, Land

Tribun_al answers that tenancy was the individual

of Sri. Bhupal, then the order passed on

.. _..l5.09.l976 would continue to hold the field and in the

event Land Tribunal were to hold that tenancy is joint
family tenancy, it would stand automatically quashed

and, in its place, Land Tribunal will pass an order

¢[

conferring occupancy rights in favour of joint.--«family

consisting of Bhupal and respondents 3

writ petition. Parties to the said proceediiiigls ialsiio 0'

granted liberty to question the s'a"iid"crde.r of

in appropriate proceedings:

4. Pursuant to the f'ei~i%i:;igci_f)assed by
this Court, Land the matter for
consideration once further
evidence ._ considering the
sides, by order dated
rights enures to the joint
family Vacicordiginglyiiallotted half share to each

of the.__1_"_a_n1ily viz., Bhupal and Lingappa.

~ Aggrieyed'<byvthe said order, a writ petition came to be

bfitled' beifio--teiAis;his Court in W.P.No.32ll3/2002 by Sri.

Bhupalp \«i'l'1€f€UHd€f he sought for quashing of the order

paissped by the Tribunal dated 24.07.2002 and also

sought for conferrnent of occupancy rights of all the

c¥~/

lands i.e., Sy.Nos.93/l, 94/i,_95__/i E_iIi1ii(l:lii"(i):i_F§'V.///ill';,l_l,\[h'€_ﬁi'

the matter was pending before :'writ'_"co'iurt,~.a®_Ioint'v'ilVlein:o

was filed by the petition'er""~a,nd respondent:si"'3vV»and 4"'

therein, whereunderﬁthey that oridcr. offthe Land
Tribunal passed V respect of
Sy.Nos.95/ lv insofar as the
adjudication]..%_gj::iit}i._V'1 'ﬁg }los.93 / l and 94 / 1
matte?baclk""'to"lthe Tribunal for being
said tenancy enures to the

benefit olf«--..i_Vndi\(id__L1al,ioriithe joint familv. In View of the

Joint3.,iMemoli"fil.ed«,' this Court, by order dated

' ;l9.=1_l';v2:OQ'7?,iidisposed of the writ petition accordingly.

it this order, which is assailed, in the present

. appeal'"by respondent Nos.5 and 6, who are the owners

"ofthie land in question.

6. Heard Sri. Mrutyunjaya Tata Bangi, learned
counsel appearing for the appellant, Sri. R.K.Hatti, Sri.

Ravi.S.Balil<ai and Sri lVl.G.Naganuri, learned advocates

appearing for the contesting respondents a«;":.d the
Government Advocate appearing for the
the impugned order as also the orders
Tribunal dated 15.09.1976 rnade" av'ailab1e i
learned advocates during the
also the original records byl

Advocate.

7. It Mirutyuniaya ma
Bangi, the appellant that
learnedcctsinglie remanded the matter
baicklito respect of lands in Sy.Nos.93/1

and 94/ll'1_s,linVcell of the Land Tribunal passed on

had._____1_1ot considered the issue regarding

, occupancy rights in respect of these two
confined only to the lands bearing
and 96/1 and, as such, he contends that the
of remand directing the Tribunal to adjudicate the

status of tenancy in respect of Sy.Nos.93/1 and 94/1 is

45/

outside the scope of the order of Land Tribunal itself and

hence the order of remand is erroneous and liableyto. be

set aside. He would also elaborate his

contending that, in the earliier""roundg.ofi«__lit'i'gation,T.

Tribunal had granted occupancifrighits
Sy.Nos.95/1 and 95/1 andﬂglandsi mi aﬁid
94/1 were never gra'nt_ed andiisarne was not
in dispute at all. On submit that
order of to hold enquiry
regardingi and remanding the

matter reiquuii5e_s beéiset aside.

8. 'Perl ::Voint_ra',.. l"ear'ned advocates appearing for the

respondents o'tVhe___r___than the State, in chorus, would

. 'V-%,.u»ppo.r_vt"theiiorder passed by the learned single Judge and
'Would that at no point of time, the landlords

have .rai..sed their little finger to dispute the tenancy of the

vi reiispondents herein in respect of all the lands, and on

:nw:a:ar:svamm¢uz~m=~uw-m-~-----"W '

account of infighting between two branches of the family,

3?'

:1l:

landlords are attempting to take undue advantage-___and at

no point of time, they have been in possession"oif--.,tih.ese

lands and since there was dispute arhi,ongAa.,:ttie

branches of family of the te1j1lant's<.\yi..th itheil

entitlement of the particular '~
pending which would goitiomslioxxr vizi,
93/1 and 94/1 wete.,requi'redi-Iitoiiiibegadjudicated by the
Land Tribunal to arrixi/eh to whether the
tenancy beloiig.s,:p:i:--o the the individual, as
such, they 'memo was filed seeking
for back to Tribunal for
adjudiicalti.on Sy.Nos.93/ 1 and 94/1 and as

such,they"supp.ctrtii'thie"order of the learned single Judge

,w'hiich--f"ha'"s..been"passed by taking into account the Joint

,"by}~petitioner and respondents 3 and 4 (in the

xiv:-f,it _pro.cfeedings). They would also elaborate their

Agstubmisision by contending that tenancy was not
i'..,is*urrendered at any point of time and, as such,

.---presumption has to be drawn that tenant continues to be

:19:

in possession of the lands in question. On thesetgrounds

they seek for dismissal of the appeal.

9. Learned Government A-id'vecate'_ haéi/ic1*ig pro:du'c.ed'j

the original records would
time of passing the orderiib;y:ig:i"the
had been brought iSiy';'Nosi.93/l and
94/1 was not the "earlier round of
litigation "this fact was also
noticed at paragraphs 3 and
4 ofithie" anidgiias such, it is submitted

that sluitiable ordersii'bepassed in this regard.

10. Sri learned counsel appearing for

. :e«onte.Vstingﬁrespondent has relied upon the judgment of

ii Court in the case of Thimmappa Rai Vs.

Rdlrnaliznc.iiiRai and Others reported in 2007(5) Kar.L.J. 413

ii itoigcontend that where occupancy right granted to

lcultivating tenant was on basis of his declaration that his

possession and cultivation of land is for and on behalf of

¢/

:l3:

joint family and benefit of occupancy right

would enure to benefit of other'rnernbers_vofT'famil}i; and T

contends that Land Tribunal haAd«Ve:§--clusivTe .Jipurisdi'c;t'iori"to

adjudicate the said plea such' supports the

order of remand.

11. Having fad'V'-ocates appearing
for the partie:§.7 we Land Tribunal,
Shri.BhupEilll"1j..€i€~ in respect of all the four
There is no dispute on
this Tfactuallv "l Tribunal, after taking into

consideration the 'V€.Vl"Cl'é'l;lC€ tendered by respective parties

beforeiit, ha'd.._passed an order on 15.09.1976 granting

it 'o.cvcLipTl3i1C;ifVi."TightS ln respect of Sy.Nos.95/1 and 95/1

"A:'t"_~v.thi.,T.sV:'"juncture, it would be relevant to note the

ob"serv_'ati-on made by Land Tribunal in the said order

..d&__tedV"--'1s5.O9.l976 wherein it is specifically recorded that

T '~_ir'i~ respect of Sy.Nos.93/l and 94/1 claimant himself had

Aadrnitted that owners are cultivating these two lands.

:14:

Taking note of this admission and also the':liev_i'd_e'nce

available on record, Land Tribunal granted

rights in respect of Sy.Nos.95/v.l""a»nd 1:1.,OtVV>:'

grant any occupancy rights in reisipe7c't"of

94/1. Said applicant, ShriliB:hu_pal who'isifwri't;:p'e'titioner,' L

before Land Tribunalggdid pn'ot:.ﬂ:c-hall.engei'thevsaid order
which in effect is said order. Yet
another lflioticed by Us is,
against the Land Tribunal on
l5.O9..vl97.A6l:"5lgafl':igtqrit'f:>peltition~V-"was filed by Sriyuths
viz., the members of other

branch the-_ before this Court in WP.

No'.'<l-.9Q_9,/200i5§"'Th_i_svapplicant, Sri Bhupal, was arrayed

' .3I'd~._respoind_ent in said writ petition. This Court, after

considering the rival contentions and having noticed the

conit€.nlti..ons raised by both the branches of the family

vizi"'.'--,..Awherein one branch contended that Form No.7 was

in individual capacity and the other branch

L "contended that it was filed on behalf ofjoint family, this

:l6:

Tribunal contended before this Court in writj'p'e't«i.tio:ni

occupancy rights ought to have been gra.nte--di'lr1"r.es«peCtofb

sy.Nos.93/1 and 94/1 also. Aidmitteedlgvﬁp for

time, this petitioner has.'questione"d the.e'"'earlier:§order;

passed by Land Tribunal asfgconfirmed
by this Court in with regard to
Sy.Nos.93/ la and 94/1. pending before

this Court," Jvo--i'nt;_'".Merr1o"'"has been filed in

W.P.No.3i'i_l 4:""i.':jw.h'evrieunder petitioner and
agreed for confirmation of the

order bf Land' as Sy.Nos.95/l and 96/1

and .requeste_d this Court to remand the matter in respect

of!.iiiSy:A;-eNo'vs:93/ll""'and 94/l. Conveniently, appellants

liereein";..whio~.vvere respondent Nos.5 and 6, were not made

sigénatoriesj. the said Joint Memo. It would also be of

relevance to note at this juncture itself the submission

by the learned Government Advocate that, while

this Court was considering the Joint Memo. It was

specifically brought to the notice of the learned sin le

:17:

Judge by the Government Advocate that in earlieiprlround

of litigation i.e., W.P.No.4909/1995 centered_.arlo«urid'jo:rily

with regard to Sy.Nos.95/1 and 96/1

94/1. lnfact, learned single hvas

under:

"4. The objection 'takenl."'The_fEact
remains thatVi--.itlf;«--3' of the
preamble to the vifpjalssed in
was only
to 1- 95,41 1;); Sailadi village."

Having""'iiot;it:eqi°3f:.;l:is'«.,fact,illearned single Judge has
procee"ded._ would not disentitle the

petitionerand rVes'v.__ooin_,die~nit to seek their claim in respect of

and"-~94/1, which we are not inclined to

p accept' for reasons ~

i}*f:i4\'d"mittedl_V, when Land Tribunal passed an
order on 15.09.1976 while adjudicating the
claim of all the four lands, it has specifically

granted occupancy rights in respect of only two

:18:

lands viz., Sy.l\los.95/l and 96/1

Sy.Nos.93/l and 94/ l; and

ii) While the original appil'ican_tildid"not. qtii{"s;~:i;3ii._

the order of LandTriibunaliiidatedi1v_5:Cl§i"l'9i;76, T

is only the ,.other:T-brian.cih.._of thevv..fa,rhily, who
questioned Tribunal, and
whileii' ._this:'iiii «vl.ll7i".iiP.No.4909/ 1995

the _rnatte_r Land Tribunal, no

V ____ 'V7pl'€.§tiii"'u\:i«:9::§VV1@l'S§'idi of the parties with
V regaij.d and 94/ 1.

In that t_hie._rnaii.~tter, we are unable to accept the
cori'.tenition raisedby the two branches of the tenants who
' Sy. Nos.93/1 and 94/1 is required to be

Land Tribunal.

ii The issue which came up for consideration
'before Hon'ble Apex Court in Thimmappa Rai's case was

Hias to whether lease can be granted for cultivating land for

:l9:

and on behalf of the joint familv. In the

the occupancy right granted to a cultivatin:g_te.nant was

on the basis of a declarationizijithathisjpo.s's:essio_ini.,and 9

cultivation of land is for arid4_'.oniljeh'alf
and, as such, the benefit to
him would enure to members of the
family and as such the the joint family
sought for said proposition
CE1m10t iiisaidiissue does not arise at
all which relates to in the
instant tenants having accepted the
order ofiiibaind 15.09.1976 as confirmed by
"'W,,__P_,No.4909/1995 dated l2.06.l998 can

, and contend that lands in Sy.Nos.93/1
iiizsiiiiialso required to be adjudicated by Land
observed hereinabove, the tenants having
2 AA1"1"(;?_t' raised their little finger, at no point of time, with
to Sy.Nos.93/1 and 94/1 would not be entitled to

H challenge the same in the writ petition while seeking writ

¥~/

would not arise at all. In that view of the matter',V.i§>$>*ei'pVass

the following:

ORDER'

i) Writ appeal is allowed. 01'-der
passed in W.P.No.32ll3. (ilgl?-)V:pin_»sofar itlfirelates to

remanding the matte<r:b_ac--l< 'lri.bunal to consider

the apportionment o.f"'i'an:d and 94/1 of

Savadi vilglage, a__lul<__«,-- district is hereby
set aside, ll'

'--1_\Jo.'o'1*deil4Vas» to _c"o_sts_. '

V._VInsolf'arV_lVas..'--W'ritl"'Appeal No.6lOl/2010, which is

&c1riallle?rig€di.'by themapplicant is on the ground that he had

his son to file the joint memo in

l3/2002. Writ Appeal No.25l/2008 having

xbeenz allowed and insofar as the Joint Memo filed by the
ll-..gp--et.i:tioner and respondent Nos.3 and 4 therein having

2 _.'i3e6U Set aside by us, this appeal is also dismissed by

:22:

confirming the order of the Land VTribun_"a12:.j'<-.t11'a:ted

27.04.2002 insofar as it relates to S}7.Nos.95:,/

of Savadi village, Athani Taluk ofBe_1gau_ffiHD'i't§..t;'it§t_V<_"'.0'

Sri. K.B.Adhyapak,V; 1€arr1A€d0*-- Addy A2(.}Vo{/€f};1tﬁ3t1"tt.

Advocate is permitted to fiu1'e._'21n_em<)2"oftajapéarance on

behalf of respondent:N'Qs.2;2§p2§j0" .('2j:ﬁ..W,A.1v\2IAAo;A251/2008),

and respondents 1 gtnvti *W.%.A';.6v1.<01/2010) within

outer limit of 'v.7e"eks fr"orr1°t(jd~:§1}/;----~*

....

sd/' NDGE Kr_ns-'., _ 2

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Karnataka High Court

Annappa S/O Malleshappa Khapali vs Bhupal S/O Awanna Janoji on 8 July, 2011

Bench: Ashok B.Hinchigeri, Aravind Kumar