Karnataka High Court
Shanmburao Kirloskar vs The State Of Karnataka on 19 April, 2017
Bench: Vineet Kothari, H.B.Prabhakara Sastry
Date of Judgment 19.04.2017 WA No.101512/2016
Shanmburao Kirloskar since deceased by his L.Rs.
Vs.
The State of Karnataka and others.
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 19TH DAY OF APRIL, 2017
PRESENT
THE HON'BLE DR. JUSTICE VINEET KOTHARI
AND
THE HON'BLE DR. JUSTICE H. B. PRABHAKARA SASTRY
WRIT APPEAL No.101512/2016 (LR)
BETWEEN:
SHANMBURAO KIRLOSKAR,
SINCE DECEASED BY HIS L.RS.
RANGANATH ADOPTED SON OF
LATE SHAMBU RAO KIRLOSKAR
SINCE DECEASED BY
UMABAI W/O. LATE SHAMBURAO.
SINCE DECEASED BY HER L.RS.
VIJAYA W/O. LATE RANGNATH KIRLOSKAR.
SINCE DECEASED BY HE L.RS.
1 JAYASHREE W/O. ASHOK MANOLI,
AGE ABOUT 50 YEARS,
OCC: HOUSE WIFE,
R/O. AT DOMBI VILI,
(WEST) THANE MAHARASTRA.
Date of Judgment 19.04.2017 WA No.101512/2016
Shanmburao Kirloskar since deceased by his L.Rs.
Vs.
The State of Karnataka and others.
2
2 SUDHAMSHU S/O. LATE RANGNATH
KIRLOSKAR, AGE ABOUT 55 YEARS,
OCC: BUSINESS,
R/O. AT DOMBI VILI, (WEST)
THANE MAHARASTRA.
PETITIONER NO.1 IS BEING THE
REPRESENTED BY THEIR GPA HOLDER,
COL. SHRIRAM NARAYAN PENDHARKAR,
AGE 77 YEARS, OCC: RETIRED MILITARY
SERVICE, R/O. AT AMARNATH TALUK,
KALYAN MAHARASTRA STATE.
... APPELLANTS
(BY SRI S.T.PATIL & SRI ROHIT S. PATIL, ADVS.,)
AND:
1 THE STATE OF KARNATAKA,
REP. BY ITS SECRETARY,
REVENUE DEPARTMENT,
DR. AMBEDKAR VEEDHI,
VIDHANA SOUDHA, BENGALURU.
2 THE LAND TRIBUNAL
BY ITS CHAIRMAN AT DHARWAD,
DHARWAD, DIST. DHARWAD.
3 SUBHASH CHANDRA S/O. LATE KRISHNAPPA
PAWAR ALIA ARERA,
AGE 40 YEARS, OCC: AGRICULTURE,
R/O. KELEGERI, DHARWAD TALUK,
DIST. DHARWAD.
Date of Judgment 19.04.2017 WA No.101512/2016
Shanmburao Kirloskar since deceased by his L.Rs.
Vs.
The State of Karnataka and others.
3
4 NARAYAN S/O. LATE KRISHNAPPA PAWAR,
ALIA ARERA, AGE 41 YEARS,
OCC: AGRICULTURE,
R/O. KELEGERI,
DHARWAD TALUK AND DISTRICT.
...RESPONDENTS
THIS APPEAL IS FILED UNDER SECTION 4 OF
KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET
ASIDE THE ORDER PASSED BY SINGLE JUDGE IN WRIT
PETITION NO.26143/2005, DATED 27.06.2016 AND
COSNEQUENTLY PLEASED TO ALLOW THE WRIT
PETITION AS PRAYED FOR.
THIS APPEAL COMING ON FOR PRLIMINARY
HERING THIS DAY, DR. VINEET KOTHARI, J., DELIVERED
THE FOLLOWING:
JUDGMENT
1. This appeal is directed against the direction issued by the learned Single Judge on 27.06.2016, disposing of WP No.2260/2004 (LR) along with WP No.26143/2005 (LR).
2. The learned Single Judge, while confirming the order passed by the Land Tribunal in respect of one portion of land in question measuring 8 acres 36 guntas in Block No.269 and 9 Date of Judgment 19.04.2017 WA No.101512/2016 Shanmburao Kirloskar since deceased by his L.Rs.
Vs. The State of Karnataka and others.
4 acres in Block No.281, remanded the matter back to the Land Tribunal, for the other portion of the land situated in Kelageri village, Dharwad.
3. The reasons assigned by the learned Single Judge in the impugned order before us, read as follows:
"8. Learned counsel for the landlord at the outset contended that the very application in Form No.7 ought not have been entertained by the Land Tribunal since admittedly the claimants in the application were minors and as such there cannot be a contract of tenancy. In that regard, the learned counsel has relied on the decision in the case of United India Insurance Co. Ltd. & Another -vs- Samir Chandra Chaudary [(2005) 5 SCC 784] wherein it is held that an admission made cannot be resiled and in that light, it is pointed out that the claimants in their cross examination have admitted that they are minors. In that background, the decision in the case of Shivaramu -vs- Gangamma (LAWS(KAR)-2003-1-79) is relied to contend Date of Judgment 19.04.2017 WA No.101512/2016 Shanmburao Kirloskar since deceased by his L.Rs.
Vs. The State of Karnataka and others.5
that the view of the Appellate Authority that a tenant being a minor was not entitled to contract of tenancy is upheld by this Court and as such the application filed by the claimants herein also cannot be entertained.
9. Having noticed the said contention as also the decisions cited, I have perused the papers and the fact situation in the instant case. There can be no dispute to the fact that as on the date of filing the Form No.7 the tenants were minors and the application was filed by being represented through their natural guardian- mother. However, that by itself cannot be a disqualification in the instant factual matrix. In the decision cited, the applicant had contended that he himself was cultivating the lands and in that regard, had claimed the occupancy rights. While considering such claim the wavering evidence given by him was noticed by the Appellate Authority and it was observed that the petitioner himself was not sure when he was cultivating the property. In that background, it was concluded that if his evidence is taken into consideration, he would have been a minor and Date of Judgment 19.04.2017 WA No.101512/2016 Shanmburao Kirloskar since deceased by his L.Rs.
Vs. The State of Karnataka and others.6
could not have been a tenant. On the other hand, in the instant case that is not the position. The definite case of the tenants from the very beginning is that their father was the tenant in cultivation for nearly 40 years and thereafter their mother was cultivating with whom they were residing and having inherited the right, they have filed the application being represented by their mother as the natural guardian. On the legal aspect, there can be no quarrel that though a minor cannot enter into a contract in individual capacity, can do so if represented by a guardian. Therefore, in the instant case, the application filed on behalf of the tenants is valid and when they tendered evidence before the Tribunal they had attained the age of majority, but have claimed tenancy through their father. Hence, the contention in that regard cannot be accepted.
10. The learned counsel for the landlord has next relied on the decision in the case of Bhimappa Channappa Kapali(D) by L.Rs. - vs- Bhimappa Satyappa Kamagouda (D) L.Rs. & Ors (LAWS (SC)-2012-10-107 to Date of Judgment 19.04.2017 WA No.101512/2016 Shanmburao Kirloskar since deceased by his L.Rs.
Vs. The State of Karnataka and others.7
contend that the presumption regarding the revenue entries can be raised only if it is shown that the entries were made pursuant to lawful mutation orders after following the due procedure. It is contended that in the absence of the same, the entries contained in the Record of Rights in the instant case cannot be accepted. In that regard, a perusal of the records of the Land Tribunal at pages 135 to 145 discloses that the revenue entries have been made as early as 1966-67 and that too after an order made prior to the same. Neither the original owner or the legal heirs have assailed the said entries in the appropriate forum. In such situation, the person claiming to be the Power of Attorney holder or claiming under the WILL, at this stage cannot raise an off the cuff contention in the present proceedings. It was open for the representative of the landlord to tender such evidence or summon the documents before the Tribunal to establish that the documents relied on behalf of the tenant are not genuine entries in order to rebut the presumption. As such a Date of Judgment 19.04.2017 WA No.101512/2016 Shanmburao Kirloskar since deceased by his L.Rs.
Vs. The State of Karnataka and others.8
vague contention at this stage cannot be countenanced.
11.That apart, as against such claim of tenancy by the tenants, the contention of the landlord is not certain and definite. As noticed, the stand has been shifting from time to time. Taking note of the earlier contentions, the Land Tribunal had granted the occupancy rights for the entire extent of the land by the orders dated 23.04.1977 and 06.04.1993. Though the same were set aside by this Court, it was only on the technical ground that notice had not been issued and opportunity by adjourning the matter had not been granted. Thereafter, the evidence has been tendered by the tenants as P.Ws.1 and 2. The neighbouring land owner was examined as PW-3, who has spoken to the fact that the tenants have been cultivating the lands in question. The Land Tribunal in its order has taken note of the evidence in detail. As against the evidence on behalf of the tenants, Col. S.N.Pendharkar has filed the affidavit dated 15.12.2003 after he has entered the scene during that year. He claims to be the Power of Date of Judgment 19.04.2017 WA No.101512/2016 Shanmburao Kirloskar since deceased by his L.Rs.
Vs. The State of Karnataka and others.9
Attorney holder of the legal representatives of the landlord and by himself claims right to the property under the WILL dated 19.12.1972 said to have been executed by late Umabai Kirloskar, the wife of the original landlord. It is claimed by him that he, as a defence personnel was awarded the Gallantry Award which was announced on 17.12.1972 and as such, in appreciation of the same, the WILL was executed and the property was given to him.
12. Such contention has been raised with a view to claim certain privileges in the light of exemptions provided from the applicability of the Land Reforms Act to the land belonging to service personnel and in that regard reference is made to Section 107 of the Act. However, the fallacy in such contention is very evident on the face of it and it creates an impression that it is now being contended so as a ploy to wrest the property since the original landlord and the legal representative seem to be caught in their own web of admitting the tenancy. At the first instance, the Power of Attorney holder had indicated the consent of the landlord to grant Date of Judgment 19.04.2017 WA No.101512/2016 Shanmburao Kirloskar since deceased by his L.Rs.
Vs. The State of Karnataka and others.10
the occupancy right but had wriggled out by filing the writ petition contending that such consent had been recorded by the Land Tribunal without issuing notice. The Land Tribunal records at page 285 indicate that Sri. R.S.Kirloskar, the adopted son of the landlord had written a letter dated 11.05.1981, wherein it is stated that the tenant has sold the usufructs and as such has claimed the compensation. The documents relied on by the tenants also indicate that the landlord had filed an application under Section 14 (7) of the Act and by the order dated 28.02.1969 it is held as non-resumable land and the tenants herein are referred as the tenants. Further, the order dated 28.08.1975 indicates that the landlord filed an application against the tenants herein for determination of the rents, which was ordered and the same was paid under the receipt dated 01.12.1975. The copies of the same are at Annexures-C to E in W.P.No.2260/2004.
13. In the above backdrop, a perusal of the affidavit of Col. S.N.Pendharkar would indicate that the Gallantry Award was announced on Date of Judgment 19.04.2017 WA No.101512/2016 Shanmburao Kirloskar since deceased by his L.Rs.
Vs. The State of Karnataka and others.11
17.12,1972 and Smt. Umabai executed the WILL on 19.12.1972. However, he states that the WILL came to his knowledge only recently before filing the affidavit and in any event, the application in that regard was filed only on 22.08.2002. If actually the bequeath was being made in recognition of his achievement, it is difficult to digest as to why she would not have told him during her lifetime itself about the same so that he could take benefit of it immediately after her death. The said Umabai died on 10.06.1977 and it is hard to believe that a WILL if in fact was left behind her and that too with such intention, it will come to the knowledge of the beneficiary only after 25 years. This will indicate that such contention is being urged only to get the lands out of the purview of the Act so as to retrieve the same, even if it is held to be tenanted.
14. However, on the legal aspect even if the WILL is accepted as genuine also, the same cannot make a difference to the claim of the tenants. As noticed, though the WILL is claimed to be dated 19.12.1972, the same can take Date of Judgment 19.04.2017 WA No.101512/2016 Shanmburao Kirloskar since deceased by his L.Rs.
Vs. The State of Karnataka and others.12
effect only on the death of the Testator. In the instant case, the date of death is 10.06.1977 i.e., after the appointed date viz., 01.03.1974. As on the appointed date, the tenanted land will vest in the Government in terms of Section 44 of the Act. As such even before the alleged WILL in the instant case became operative, the lands in question had vested under the Act. That position can be negative only if it is established that the land was never tenanted. As already indicated, in view of other material to that effect, the theory of WILL is put forth at this juncture. In any event, to one portion of the land, the Land Tribunal has accepted the tenancy and to that extent, the same does not call for interference.
15. The question therefore is as to whether the method adopted by the Land Tribunal to deny the remaining portion is justified. As seen, the Land Tribunal has entirely relied on the spot inspection that was conducted. Certainly no fault could be found if the spot inspection is held and the mahazar drawn therein is considered with the other materials and a decision is taken. In Date of Judgment 19.04.2017 WA No.101512/2016 Shanmburao Kirloskar since deceased by his L.Rs.
Vs. The State of Karnataka and others.13
the instant case, the Land Tribunal has declined the occupancy right to a portion of the land by only assuming the age of the mango trees. That by itself cannot be the basis. Firstly, no concrete material was relied to compute the age of the trees. Secondly, even if the original landlord had planted the trees, if subsequently he had given the tenancy to the father of the petitioner-tenants for cultivation, it would still qualify as tenanted land and only because some mango trees are there, it will not take away status of the land unless it is also shown in the records. Therefore, this aspect of the matter will require detailed reconsideration by the Land Tribunal. Further, in respect of certain other portions which have been denied, based on the spot inspection it has been stated that it is fallow and where there is natural growth of grass. The cultivation is to be with reference to 01.03.1974 or immediately prior and not as it is at this stage. Therefore, local enquiries are also to be made and not to conclude only on the basis of what is visible.
Date of Judgment 19.04.2017 WA No.101512/2016 Shanmburao Kirloskar since deceased by his L.Rs.
Vs. The State of Karnataka and others.14
16. On this aspect of the matter, it is to be noticed that though the Land Tribunal had taken note of the contention on behalf of the tenants about the order that the land cannot be resumed was passed and also the fixation of rent was made at the instance of the landlord and the rent was paid, there is no consideration of that aspect one way or the other. Hence, in that background, the Land Tribunal while keeping in view the spot inspection report will have to also take note of that aspect, consider the veracity of the said proceedings and in that light, the extent of land involved in that proceedings will have to be taken into consideration and thereafter come to a conclusion with regard to the remaining extent. It is only if such consideration is made, the Land Tribunal will be in a position to come to the conclusion about the actual extent over which the occupancy right is to be considered when the fact that they were the tenants under the landlords herein is established and they have been held entitled for occupancy rights in respect of one portion of the land.
Date of Judgment 19.04.2017 WA No.101512/2016 Shanmburao Kirloskar since deceased by his L.Rs.
Vs. The State of Karnataka and others.15
17. To enable such consideration, the portion of the order denying occupancy to a portion of the land alone is to be set aside and the other portion of the order granting occupancy right to the extent of 8 acres 36 guntas in Block No.269 and 9 acres in Block No.281 shall stand confirmed.
18. For all the aforestated reasons, the following:
ORDER
(i) The W.P.No.2260/2004 is allowed in part.
(ii) The W.P.No.26143/2005 is dismissed.
(iii) Consequently, the order dated 06.01.2004 passed in Case No. KLR/Kelageri/SR/35 by the Land Tribunal to the extent of rejection of portions of the land in Block Nos.269 and 281, Kelageri Village, Dharwad, is set aside and remanded to the Land Tribunal for reconsideration limited to that extent.
(iv) Insofar as the grant of 8 acres 36 guntas in Block No.269 and 9 acres in Block No.281 by way of occupancy right under Date of Judgment 19.04.2017 WA No.101512/2016 Shanmburao Kirloskar since deceased by his L.Rs.
Vs. The State of Karnataka and others.
16 the said order dated 06.01.2004, the same shall stand confirmed.
(v) Parties to bear their own costs."
4. The learned counsel for the appellant represented by Col. Shriram Narayan Pendharkar, Retired Military Officer and holder of General Power of Attorney of legal representatives of deceased Shanmburao Kirloskar, submitted that the appellant had a WILL executed by Smt. Umabai W/o. Late Shamburao in his favour, purportedly on 19.12.1972 and the said deceased Smt. Umabai was a close relative of the appellant - Col. Shriram Narayan Pendharkar and he was also awarded a Gallantry Award on 17.12.1972, which is prior to the said Will executed in his favour, which however, he claimed in his favour only in the proceedings initiated against him only after 25 years of the same.
Date of Judgment 19.04.2017 WA No.101512/2016 Shanmburao Kirloskar since deceased by his L.Rs.
Vs. The State of Karnataka and others.
17
5. The learned Single Judge while disbelieving this version of the appellant, also observed in the aforequoted findings of the order, that this appears to have been contended by him to avail certain privileges in the light of exemptions provided from the applicability of the Land Reforms Act, in view of Section 107 of the said Act to the service personnel.
6. The learned counsel for the appellant has also urged before us that, the remand of the case to the Land Tribunal for the other portion of the land in question was not necessary because besides Inspection Report, there were ample other evidences, based on which the tenancy rights could be ascertained by the Land Tribunal and there was no justification for the said remand by the learned Single Judge.
7. We are not impressed by the said arguments of the said learned counsel. We find considerable force in the reasons shown by the learned Single Judge, while confirming the Date of Judgment 19.04.2017 WA No.101512/2016 Shanmburao Kirloskar since deceased by his L.Rs.
Vs. The State of Karnataka and others.
18 tenancy rights in favour of the tenants on the own admission of the landlords in respect of the aforesaid land of Block Nos.269 and 281.
8. However, the reasons assigned for remand, particularly in para 15 of the order of learned single Judge, that besides the spot inspection report, the learned Land Tribunal ought to have taken note of the other evidences available on record to be produced by the parties, even now we are not inclined to take a different view of the matter.
9. Once the matter has been remanded by the learned Single Judge to weigh such evidence already available and the Land Tribunal can allow the parties to lead further evidence. As such, the remand directions of the learned Single Judge cannot be said to be erroneous in any manner. Therefore, we are not inclined to interfere with the said order in any manner.
Date of Judgment 19.04.2017 WA No.101512/2016 Shanmburao Kirloskar since deceased by his L.Rs.
Vs. The State of Karnataka and others.
19 Accordingly the present writ appeal is dismissed. No costs.
Sd/-
JUDGE Sd/-
JUDGE *Svh/-