Karnataka High Court
Hasansab Allasab Pendari vs The State Of Karnataka on 6 March, 2017
Bench: Vineet Kothari, H.B.Prabhakara Sastry
1
Date of Judgment: 06.03.2017
WA No.100057 of 2014
Hasansab Allasaheb Pendari
R
through LRs Vs. The State of
Karnataka & others
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 06th DAY OF MARCH 2017
PRESENT
THE HON'BLE DR. JUSTICE VINEET KOTHARI
AND
THE HON'BLE DR. JUSTICE H. B. PRABHAKARA SASTRY
WRIT APPEAL No.100057 OF 2014 [LR]
BETWEEN:
1. HASANSAB ALLASAB PENDARI
AGE: 73 YEARS OCC: AGRICULTURE
R/O SAPTAPUR, DHARWAD
DIST. DHAWRAD
SINCE DECEASED, REPTD. BY HIS LRS:
1a. AMINA
W/O.NAZERAHMED DHARWADKAR,
AGE: 50 YEARS, OCC: HOUSEHOLD,
R/O.VANASHREE NAGAR, SATTUR,
DHARWAD, DIST: DHARWAD
1b. KHAIRUNISSA
W/O.ABDUL HAMMED SHAIKH
AGE: 46 YEARS, OCC: HOUSEHOLD,
R/O.VANASHREE NAGAR, SATTUR,
2
Date of Judgment: 06.03.2017
WA No.100057 of 2014
Hasansab Allasaheb Pendari
through LRs Vs. The State of
Karnataka & others
DHARWAD, DIST: DHARWAD
1c. RAJAMMA
W/O.NAZEER AHMED SHAIKH
AGE: 48 YEARS, OCC: HOUSEHOLD,
R/O.HAVERIPETH, SAVADATTI ROAD,
DHARWAD,
DIST: DHARWAD.
1d. CHANDABI W/O. GOUSUSAB PENDARI,
AGE: 26 YEARS, OCC: HOUSEHOLD,
R/O. SAPTAPUR, DHARWAD,
DHARWAD.
1e. MEHABOOBI W/O. WAJIRSAB BARIGIDAD,
AGE: 24 YEARS, OCC: HOUSEHOLD,
R/O.YEKKUNDI VILLAGE, TQ: SAVADATTI,
DIST: BELGAUM.
1f. FATHIMA W/O. YUSUF KALADAGI,
AGE: 22 YEARS, OCC: HOUSEHOLD,
R/O. JAVAL GALLI, GADAG,
DIST: GADAG.
1g. AMINSAB S/O. HASANSAB PENDARI,
AGE: 44 YEARS, OCC: AGRICULTURE,
1h. MAHABOOBSAB S/O.HASANSAB PENDARI,
AGE: 41 YEARS, OCC: AGRICULTURE.
1j. MOHAMMEDALI S/O. HASANSAB PENDARI,
AGE: 36 YEARS, OCC: AGRICULTURE,
1k. ISMAILSAB S/O.HASANSAB PENDARI,
3
Date of Judgment: 06.03.2017
WA No.100057 of 2014
Hasansab Allasaheb Pendari
through LRs Vs. The State of
Karnataka & others
AGE: 34 YEARS, OCC: COOLIE
1l. AKBARSAB S/O.HASANSAB PENDARI,
AGE: 32 YEARS, OCC: COOLIE,
1m. SHAUKATALI S/O.HASANSAB PENDARI,
AGE: 30 YEARS, OCC: COOLIE,
1n. NASIRAHMED S/O. HASANSAB PENDARI,
AGE: 28 YEARS, OCC: COOLIE.
A1(g) to A1(n) ARE
R/o. HOYASAL NAGAR,
DHARWAD, DIST: DHARWAD.
... APPELLANTS
(By Sri F V PATIL ADV.)
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS SECRETARY
DEPT OF REVENUE, M.S.BUILDING
BANGALORE
2. THE LAND TRIBUNAL
DHARWAD
DIST-DHARWAD
REP. BY ITS CHAIRMAN
3. SHANTHAVEERAPPA
CHANDRASHEKARAPPA MENASINAKAI
AGE: MAJOR
R/O SWESHVARODA
4
Date of Judgment: 06.03.2017
WA No.100057 of 2014
Hasansab Allasaheb Pendari
through LRs Vs. The State of
Karnataka & others
MALAMADDI, DHARWAD
DIST. DHARWAD
... RESPONDENTS
(By Sri.M.KUMAR, AGA FOR R1-R2;
Sri.JAGADISH PATIL, ADV. FOR R3)
THIS WRIT APPEAL IS FILED U/S.4 OF THE
KARNATAKA HIGH COURT ACT, 1961, AND RULE 27
OF THE WRIT PROCEEDINGS RULES, PRAYING TO, SET
ASIDE THE ORDER OF THE LEARNED SINGLE JUDGE
DTD.18.12.2013 PASSED IN WRIT PETITION
NO.39146/2004 AND WRIT PETITION MAY KINDLY BE
ALLOWED WITH A DIRECTION TO THE LAND
TRIBUNAL, DHARWAD TO CONFER OCCUPANCY
RIGHTS TO THE APPELLANT/TENANT IN RESPECT OF
THE LAND IN QUESTION AFTER SETTING ASIDE THE
ORDER OF THE LAND TRIBUNAL, DHARWAD
DTD.01.07.2002 IN NO.KLR : KELAGERI:SR-27 IN
RESPECT OF LAND BEARING SVY.NO.258 MEASURING
17 ACRES 19 GUNTAS AT KELAGERI VILLAGE, TQ AND
DISTRICT: DHARWAD VIDE ANNEXURE-E.
THIS APPEAL COMING ON FOR FINAL HEARING
ON 01st MARCH 2017 AND THE SAME HAVING BEEN
HEARD AND RESERVED FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, DR. VINEET KOTHARI, J.,
PRONOUNCED THE FOLLOWING:
JUDGMENT RESERVED ON: 01.03.2017.
JUDGMENT PRONOUNCED ON: 06.03.2017.
5
Date of Judgment: 06.03.2017
WA No.100057 of 2014
Hasansab Allasaheb Pendari
through LRs Vs. The State of
Karnataka & others
JUDGMENT
Mr.F.V.Patil, Adv. for appellants. Mr.M.Kumar, AGA for respondent Nos.1 and 2, Mr.Jagadish Patil, Adv. for Respondent No.3.
1. This writ appeal was filed by the petitioner Sri.Hasansab son of Allasaheb Pendari, who is now represented by his Legal Representatives aggrieved by the order dated 18th December 2013 of the learned Single Judge dismissing his Writ Petition No.39146 of 2014 (LR).
2. The appellant in the present third round of litigation has been claiming occupancy rights under the provisions of the Karnataka Land Reforms Act, 1961 (for short 'the Act') in respect of the land bearing Sy.No.258 measuring 17 acres 19 guntas situated at Kelageri Village, Dharwad District.
6Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others
3. The appellant claims to be a tenant of the respondent No.3, Sri.Shanthaveerappa Chandrashekarappa Menasinakai and claims that from the time of his father since 1965, his father and the appellant were cultivating the land of the respondent No.3 land-lord and in view of Section 4 of the Act, they were to be deemed to be the tenants in respect of the said land and the learned Land Tribunal ought to have given the Occupancy Certificate in favour of the appellant-petitioner.
4. The case has a long checkered history and in the first instance, the appellant filed application in Form No.7 before the learned Land Tribunal which came to be rejected on 26th December 1981, against which the appellant filed a Writ Petition in W.P. No.30439 of 1982, which came to be allowed by the High Court on 03rd January 1985 and the matter was remanded to the Land Tribunal for fresh enquiry. However, upon remand, on 10th April 1991, the claim of the appellant was allowed and therefore, the respondent No.3, 7 Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others Shanthaveerappa challenged the said order of the Land Tribunal dated 10th April 1991 by way of a Writ Petition in W.P. No.13792 of 1992 which came to be allowed by the High Court on 06th November 1996 and again the matter was remanded back to the Land Tribunal for fresh enquiry. This time, the learned Land Tribunal rejected the application of the appellant by order dated 01st July 2002 and refused to grant the occupancy rights to the appellant. Aggrieved by which, the present Writ Petition No.39146 of 2004 (LR) was filed by Sri.Hasansab Allasab Pendari, which came to be dismissed by the learned Single Judge on 18th December 2013 and against which the present intra-court appeal has been filed.
5. It would be relevant to reproduce some portions of the impugned orders passed by the Land Tribunal on 01st July 2002 and the order passed by the learned Single Judge on 18th December 2013.
8Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others
6. The learned Land Tribunal in its order dated 01st July 2002 observed as under:
" The applicant has completely failed to prove that, land in dispute was an agricultural land as on 01/03/1974 since, if the land in dispute was an agricultural land, it would vest in the Government as per section 44 of the Karnataka Land Reforms Act. But, the land in dispute has not vested in the government as per the said Act and neither during 1973-74 nor prior thereof, respondent is reflected to be in personal cultivation of the land in dispute and method of cultivation is mentioned as 1.
Applicant has failed to prove the landlord- tenant relationship between himself and the landlord. On examining the document relied upon by the applicant i.e. agreement, it appears that, respondent Shanthaveerappa Chandrashekarappa Menasinakayi had granted the land in dispute to the applicant for grazing the cattle at Rs.75-00 per annum and it appears that, agreement is entered for using the grass grown in the said land and for 9 Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others removing the weeds grown in the said land and preparing it for cultivation. Similarly, it also appears that, there is agreement that, only till the said land is cultivable, applicant has to be pay charges towards grass to the respondent at the rate of Rs.75/- per annum and obtain receipt for the same.
It is very clear that, after the said land is suitable for cultivation, they shall act according the agreement. The same is admitted by the applicant in his cross-examination and has replied in the cross-examination that, there is no agreement between the applicant and the landlord after preparing the said land for cultivation.
The said agreement is examined thoroughly and it is clear that, the land in dispute is a forest not suitable for cultivation and there existed naturally grown grass in the said forest. As per the said agreement applicant had agreed to use the grass in the said forest and to clear the weeds. But, nowhere there is reference for having 10 Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others granted the land in dispute as farmer or tenant for cultivation. Hence, on the basis of the said agreement, it is not proved that, applicant was a tenant in the land in dispute.
Further, on examining the receipts produced by the applicant, out of the same, a receipt is issued on 16/08/1981 by S.C.Menasinakayi acknowledging receipt of the Rs.150-00 towards grass pasture for the year 1979-80.
Similarly, on examining another receipt, even therein, it appears that, it is the receipt issued by respondent on 22/10/1974 for having received a sum of Rs.300-00 is acknowledged without any dues, towards fodder from grass pasture for two years (1972-73 and 73-47 (sic! 73-74) from the Kelageri forest.
Similarly, in another receipt, it is shown that, a sum of Rs.150-00 is received from Sri.Hasansaheb Vallad Allasaheb Pendhari R/o.Sapthapura, Dharwad towards our forest 11 Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others No.258 at Kelageri limits for the fodder for grass pasture for the year 1974-75.
Similarly, even in another receipt, respondent has issued receipt to the applicant only for grazing in the land in dispute and there is no mention therein for having granting the land in disputes on tenancy or for cultivation as farmer. The applicant has admitted this factor that, there is no clear mention about payment of rents.
As per section 2(10) of Karnataka Land Reforms Act, the expression 'cultivation of land' is defined as under:
'To cultivate', with its grammatical variations and cognate expression means to till or husband the land for the purpose of raising or improving (agricultural produce) whether by manual labor or by means of cattle or machinery or to carry on any agricultural operation thereon and the expression 'uncultivated' shall be construed correspondingly.
Explanation: A person who takes up a contract to cut grass, or to 12 Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others gather the fruits or other produce of any land shall not that account only 'be deemed to cultivate such land'.
If the aforesaid section 2(10) of Karnataka Land Reforms Act and examination in supplement to it are construed properly, it would be clear that, applicant was neither farmer or cultivator of the land in dispute and also appears that, he held agreement to use grass pasture naturally grown in the land in dispute.
As such, applicant has failed to prove that, he was in lawful possession as farmer in the land in dispute as on the prescribed date i.e. on 01/03/1974. Applicant has stated in his chief examination to mean that, as one among the respondent was Assistant Commissioner, Dharwad, he has influenced from entering his name in the cultivator's column of the RTC in respect of the land in dispute. But, if he was a lawful farmer in the land in dispute, he has not produced any documents or evidences for his attempts to get registered his name as cultivator in 13 Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others the land in dispute. As contended by the applicant, if one among the respondent was an Assistant Commissioner, Dharwad and if the applicant was obstructed by him from getting his name entered, applicant would have approached the Special Deputy Commissioner or Deputy Commissioner of the District or competent court. But, applicant has not produced any document in this regard and in his replay to the cross-examination, he admits that, he had no evidences or documents to prove that, Assistant Commissioner Menasinakai Summoned him and instructed not to get his name entered and also admits that, he had not submitted application to the Deputy Commissioner in this regard.
Wherefore, no truth could be found in the statement of the applicant.
From the statements adduced in reply to the cross-examination, applicant has admitted that, he has filed another separate application in Form No.7 for the land pertaining to another Saate's before the land Tribunal.14
Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others He has admitted that, has not mentioned about his cultivation of Menasinakai's land in the said Form No.7 and also that, he has not admitted regarding cultivation of Saate's land in the Form No.7 pertaining to the present case.
By observing all these, it is confirmed that, applicant has failed to prove that, there existed tenant and landlord relationship between him and the respondent as on 01/03/1974.
Applicant has failed to prove his lawful tenancy over the land in dispute as on 01/03/1974. It is confirmed from above that, Original Suit No.161/82 filed by the said applicant, is dismissed by the Civil Court.
In the said Original Suit, applicant has prayed to decree the suit declaring him as tenant to the land in dispute and to grant injunction against respondent - landlord as admitted by the applicant in the cross-examination. It is also admitted that, the said suit is dismissed. He also 15 Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others admitted in his cross-examination about dismissal of the appeal filed by him against the said suit.
He has also admitted that, nowhere in the civil court, he is declared as tenant.
On examining all these factors, it is clear that, applicant has failed to prove his lawful tenancy over the land in dispute as on 01/03/1974.
It is confirmed on verification of the documents that, land in dispute is not vested with the government as per section 44(1) of Karnataka Land Reforms Act as on 01/03/1974.
Another document relied upon by the applicant is the notice stated to be sent to the KEB through counsel for the respondent. A letter stated to be copy of the said document is produced by the applicant. But, applicant has failed to obtain either its original or certified copy from KEB and to produce the same before this Tribunal. Learned counsel for respondent has also denied and 16 Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others disowned the signature in the said notice. Hence, applicant has failed to prove on the basis of the said document that, he is the lawful tenant of the land in dispute.
For all the aforesaid reasons, it is unanimously decided that, applicant is not a lawful tenant in the land in dispute and proceed to pass the following order:
ORDER We, the Chairman and the members of the Land Tribunal have carefully considered the factors explained in the preamble and arrive at a conclusion that, land in Block No.258 measuring 17-19 acres of Kelageri Village, Dharwad Taluk is not vested in the government as on 01/03/1974. Applicant was not a tenant of the land in dispute as on 01/03/1974 and immediately preceding thereof. As it is confirmed to the members of the Land Tribunal on verification of the RTC pertaining to the year 1973-74 that, respondent - landowner was in personal possession and 17 Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others cultivation of the land in dispute, it is hereby unanimously ordered, rejecting the application filed by Sri.Hasansab Allasab Pendaari in Form No.7 seeking occupancy rights of the land in dispute.
This order is dictated to the typist, corrected, verified and signed by me and pronounced in the open court on 01/07/2002.
Sd/-
(M.R.Hiremath) Chariman, Land Tribunal, Dharwad. "
(Emphasis supplied)
7. The learned Single Judge in the order under appeal, while dismissing the Writ Petition and upholding the aforesaid findings of the learned Land Tribunal, scrupulously examined the evidence on record also and reaffirmed the findings against the appellant-petitioner in the following manner:
18Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others " 4. Heard learned counsels and examined the records. The primary contention of the petitioner-
tenant is based on the agreement dated 2-5-1969. I have examined the same. It would narrate that the land in question has been handed over to the petitioner herein. It is for the purpose of utilising the grass that is grown by itself. It would imply that the grass was not being cultivated either by the landlord or by the tenant. By the agreement, the petitioner was permitted to utilise the grass grown. Therefore, it cannot be said that the petitioner was growing grass on the land in question, nor is it his case that he is growing grass.
5. The second issue in the agreement is that the tenant after cutting the grass would be entitled to clean the land, cut the waste trees and to do that such acts necessary in order to bring the land fit for cultivation. On so doing he will be entitled to cultivate the land in question. These are the contents of the agreement. Therefore the tenant would have to show that as a consequence 19 Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others to the said agreement, he has brought the land fit for cultivation. He would have to show that the grass, the shrubs and other material were cleared by him to make it cultivable. This is so because the document itself would narrate that certain extent of land were uncultivable. Therefore, the agreement was executed permitting the tenant to do all such acts to bring the land under cultivation. However, on considering the material it does not show that any effort was made by the tenant to bring the land fit for cultivation. Whether the tenant was making use of the grass, is not a relevant consideration. There is no material to show that the land was brought fit for cultivation and that the land was really being cultivated by the tenant. Therefore, the plea of the tenant based on this agreement, to contend that he is cultivating the land and growing grass as a tenant, cannot be accepted.
6. It is further contended that growing of grass would amount to cultivation. That taking care of the trees and the shrubs would also amount 20 Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others to cultivation. However, that is not the issue for consideration. It is nobody's case that grass was being cultivated. Infact, it is an admitted position that there was no cultivation of grass and it grew by itself. The tenant was only permitted to cut the grass that has grown by itself. It is not a case of cultivation of a grass. Hence, such a contention is unacceptable.
7. The further contention is that certain rent receipts have been executed by the landlord to evidence the fact of cultivation. I have examined the receipts. The rent receipt is dated 16-8-1981 for the year 1979-80. The rent receipt dated 22- 10-1974 is for the year 1972-73 and 1973-74. The rent receipt dated 25-6-1975 is for the year 1974-
75. The rent receipt dated 8-7-1970 for the year 1970, a rent receipt dated 1.3.1969 for the year 1969-70, a rent receipt dated 10-11-1967 for the year 1968-89 (sic! 1968-69), a rent receipt dated 26-4-1967 for the year 1967-68. It is therefore pleaded that these rent receipts constitute payment as rent for cultivation of crops. However on 21 Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others examining the receipts it could be seen that the rent receipts are only for the purpose of taking the grass that existed. It does not indicate that rents have been paid for the purpose of either growing the crops or otherwise. The specific reference therein is, 'rents towards the grass'. The reading of the rent receipts runs together with the contents of the document dated 2-5-1969, wherein it is stated that rent is being collected for the grass that is grown. Therefore in terms of the document, the same matches the rent receipts. The rent receipts are for payment being made towards cutting of the grass that is grown by itself.
8. It is further contended that the landlord has issued a legal notice through his Advocate dated 2.9.1971. The notice is to the Mysore State Electricity Board, Dharwad, objecting to the fixing of electric poles to the land in question. In the notice, the respondent landlord has stated that he is the owner of the land in question and his cultivating the same through the petitioner. That he has raised Jowar crop to an 22 Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others extent of 4 acres 20 guntas and in the rest, he has raised grass for his cattle. Therefore it is pleaded that the same amounts to admission by the landlord that he is a tenant in question. The acknowledgements for having issued the legal notice is also produced. The acknowledgement bear the seal and signature of the concerned official. Even assuming that such a letter has been written by the landlord, the same would not lend any support to the case of the tenant. The paragaph relied upon by the petitioner is to the effect that the landlord is cultivating the same through the petitioner. The nature of the cultivation and status of the petitioner therein is found wanting. In order to show that the tenant is in occupation of the land in question and is cultivating the same as a tenant various materials would have to be shown to the said effect. Merely relying upon a legal notice of a proceeding unconnected with the matter of tenancy would not assist the tenant in any manner. It would not amount to an admission. Therefore, such legal notice unconnected with the matters of tenancy 23 Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others would not come to the aid of the petitioner-tenant. Hence, this contention is unacceptable.
For the aforesaid reasons, the petition being devoid of merit is dismissed. Rule discharged.
Sd/-
(Ravi Malimath) Judge "
8. Mr.F.V.Patil, learned counsel appearing for the appellants, vehemently submitted before us that under the provisions of Section 4 of the Act of 1961, a person lawfully cultivating any land belonging to another person has to be deemed to be a tenant and therefore, the appellant who was in cultivation of the land in question, was required to be deemed to be a tenant, because, the respondent No.3, Shanthaveerappa, never filed any application in Form No.7 before the Land Tribunal as required under the Proviso to Section 4 of the said Act. He also urged before us, taking us through the evidence on record and some case laws cited at the Bar, that the appellant had paid rent to the respondent No.3 for cultivating the said land also, in terms of the agreement executed between these 24 Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others parties on 02nd May 1969 and various rent receipts were produced on record before the Land Tribunal and in the legal notice dated 02nd September 1971 issued by the Advocate of the respondent No.3-landlord himself, which was addressed to Mysore State Electricity Board, Dharwar, which was intending to fix certain electric poles in the said land in question and while objecting to the same, the respondent No.3-landlord clearly stated that he is the owner of the land in question and he was cultivating the said land through the present appellant- Hasansab and Jowar crop was also raised in a part of the said land to the extent of 4 acres 20 guntas and in the rest part of the land, he has reared grass for cattle. Mr.F.V.Patil, therefore, contended that the learned Land Tribunal as well as the learned Single Judge have erred in rejecting the claim of the present appellant and therefore, the present appeal deserves to be allowed.25
Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others
9. He also relied upon the following decisions in support of his contentions:
(i) Gurubasappa Ningappa Banakar vs. The Land Tribunal, Dharwar & others, ILR 1979 KAR 156;
(ii) Suresh S.Rao and Others Vs. Land Tribunal, Belgaum and others, 2007 (5) Kar.L.J. 303;
(iii) Baleshwar Tewari by LRs and others Vs. Sheo Jatan Tiwary and others, ILR 1997 KAR 2186;
(iv) Venkatappa Ningappa Vs. State of Karnataka and others, 1981(1) Kar.L.J. 382;
(v) Papila Bai Vs.Chavdas T.Bhortakke (Dead) by LRs and Others, (2005) 2 SCC 509;
(vi) Byalappa Vs. State of Karnataka and others, 1981 (2) Kar.L.J. 221;26
Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others
10. Per contra, Sri.Jagadish Patil, learned counsel for the respondent No.3, Shanthaveerappa and Sri.M.Kumar, learned Additional Government Advocate, supported the impugned orders passed by the learned Land Tribunal and the learned Single Judge and submitted that the present Writ Appeal has no force and is liable to be dismissed. They urged that the appellant was only given the right to cut the grass which was naturally grown there on the land in question for the rent of `75/- paid to the respondent No.3-landlord and to make the land cultivable by removing the grass, weeds, etc., under the agreement dated 02nd May 1969 and the appellant never actually cultivated the said land in question and therefore, there was no question of treating him as a deemed tenant under Section 4 of the Act. They also contended that under the Proviso to Section 4 of the Act, an owner of the land is not required to file Form No.7, unless there is a tenant on the said land in question under a voluntarily executed lease in his favour 27 Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others and therefore, the contention of Mr.F.V.Patil, learned counsel for the appellant in this respect is misconceived. The Respondent No.3 owner has specifically denied the existence of the legal notice dated 02nd September 1971 sent through an advocate addressed to Mysore State Electricity Board, Dharwar.
The learned counsel contended that on the basis of such disputed document, for which the appellant was even allowed the opportunity by the learned Land Tribunal to adduce the original document and prove it, which was never done, therefore, on the basis of such secondary evidence, not even proved before the learned Land Tribunal, there was no merit in the contention of the appellant that the landlord had admitted his tenancy by way of cultivating the said land.
11. He also pointed out that in the said legal notice, even if it was assumed for argument sake, that it was an admissible evidence, it was clearly stated that the respondent No.3 himself was cultivating the said land and had grown the 28 Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others crop of Jawar and grass for the cattle. Therefore, the right to cut the said grass and take it away for animal feeding was only the right given to the present appellant-Hasansab, who has now expired and is represented by legal representative only, and therefore, no cultivation was actually ever done by him on the said land in question nor he was ever authorised to do so. They further contended that the agreement dated 02nd May 1969 was only to allow the appellant to make the land cultivable which he never made and therefore, in view of there being no cultivation done by him on the said land in question, there was no question of granting any occupancy rights in favour of the appellant under the Act of 1961 and the appellant has indulged in repeated litigation right from 1981 including having lost his civil suit in OS No.161 of 1982 and now, finally when the learned Land Tribunal and the learned Single Judge have also rejected his claim after appreciating the entire relevant 29 Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others evidence, the present appeal filed by the appellant deserves to be dismissed with costs.
12. We have given our earnest consideration to the relevant provisions of the Act, the material on record and the judgments cited at the Bar.
13. First let us reproduce the relevant provisions of the Act for the ready reference. The definitions of certain terms in the Act and the relevant provisions of Chapter III dealing with Conferment of Ownership on Tenants including Sections 44, 45 and 48A of the Act are quoted below:
" 2(10) "to cultivate" with its grammatical variations and cognate expressions means to till or husband the land for the purpose of raising or improving agricultural produce whether by manual labour or by means of cattle or machinery, or to carry on any agricultural operation thereon; and the expression "uncultivated" shall be construed correspondingly;30
Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others Explanation.--A person who takes up a contract to cut grass, or to gather the fruits or other produce of any land, shall not on that account only be deemed to cultivate such land; 2(28) "rent" means money paid or payable by a tenant on account of the use and occupation of the land held by him;
2(34) "tenant" means an agriculturist who cultivates personally the land he holds on lease from a landlord and includes,--
(i) a person who is deemed to be a tenant under section 4;
(ii) a person who was protected from eviction from any land by the Karnataka Tenants (Temporary Protection from Eviction) Act, 1961;
(iia) a person who cultivates personally any land on lease under a lease created contrary to the 31 Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others provisions of section 5 and before the date of commencement of the Amendment Act.
(iii) a person who is a permanent tenant; and
(iv) a person who is a protected tenant.
Explanation.--A person who takes up a contract to cut grass, or to gather the fruits or other produce of any land, shall not on that account only be deemed to be a tenant;
4. Persons to be deemed tenants.--A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not:
(a) a member of the owner's family, or
(b) a servant or a hired labourer on wages payable in cash or kind but not in crop share cultivating the land under the personal supervision of the owner or any member of the owner's family, or 32 Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others
(c) a mortgagee in possession:
Provided that if upon an application made by the owner within one year from the appointed day [x x x],--
(i) the Tribunal declares that such person is not a tenant and its decision is not reversed on appeal, or
(ii) the Tribunal refuses to make such declaration but its decision is reversed on appeal, such person shall not be deemed to be a tenant.
44. Vesting of lands in the State Government.--
(1) All lands held by or in the possession of tenants (including tenants against whom a decree or order for eviction or a certificate for resumption is made or issued) immediately prior to the date of commencement of the Amendment Act, other than lands held by them under leases permitted under section 5, shall, with effect on and from the said date, stand transferred to and vest in the State Government.33
Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others (2) Notwithstanding anything in any decree or order of or certificate issued by any Court or authority directing or specifying the lands which may be resumed or in any contract, grant or other instrument or in any other law for the time being in force, with effect on and from the date of vesting and save as otherwise expressly provided in this Act, the following consequences shall ensue, namely,--
(a) all rights, title and interest vesting in the owners of such lands and other persons interested in such lands shall cease and be vested absolutely in the State Government free from all encumbrances;
(b) all [x x x] amounts in respect of such lands which become due on or after the date of vesting shall be payable to the State Government and not to the land-owner, land-lord or any other person and any payment made in contravention of this clause not be valid;
34Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others
(c) all arrears of land revenue, cesses, water rate or other dues remaining lawfully due on the date of vesting in respect of such lands shall after such date continue to be recoverable from the land- owner, landlord or other person by whom they were payable and may, without prejudice to any other mode of recovery, be realised by the deduction of the amount of such arrears from the amount payable to any person under this Chapter;
(d) no such lands shall be liable to attachment in execution of any decree or other process of any Court and any attachment existing on the date of vesting and any order for attachment passed before such date in respect of such lands shall cease to be in force;
(e) the State Government may, after removing any obstruction which may be offered, forthwith take possession of such lands:
Provided that the State Government shall not dispossess any person of any land in respect of which it considers, after such enquiry as may be 35 Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others prescribed, that he is prima face entitled to be registered as an occupant under this Chapter;
(f) the land-owners, landlord and every person interested in the land whose rights have vested in the State Government under clause (a), shall be entitled only to receive the amount from the State Government as provided in this Chapter;
(g) permanent tenants, protected tenants and other tenants holding such lands shall, as against the State Government, be entitled only to such rights or privileges and shall be subject to such conditions as are provided by or under this Act;
and any other rights and privileges which may have accrued to them in such lands before the date of vesting against the landlord or other person shall cease and determine and shall not be enforceable against the State Government.
45. Tenants to be registered as occupants of land on certain conditions.--(1) Subject to the provisions of the succeeding sections of this Chapter, every person who was a permanent 36 Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others tenant, protected tenant or other tenant or where a tenant has lawfully sublet, such sub-tenant shall, with effect on and from the date of vesting, be entitled to be registered as an occupant in respect of the lands of which he was a permanent tenant, protected tenant or other tenant or sub-tenant before the date of vesting and which he has been cultivating personally.
(2) If a tenant or other person referred to in sub- section (1),--
(i) holds land partly as owner and partly as tenant but the area of the land held by him as owner is equal to or exceeds a ceiling area he shall not be entitled to be registered as an occupant of the land held by him as a tenant before the date of vesting;
(ii) does not hold and cultivate personally any land as an owner, but holds land as tenant, which he cultivates personally in excess of a ceiling area, he shall be entitled to be registered as an occupant to the extent of a ceiling area;
37Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others
(iii) holds and cultivates personally as an owner of any land the area of which is less than a ceiling area, he shall be entitled to be registered as an occupant to the extent of such area as will be sufficient to make up his holding to the extent of a ceiling area.
(3) The land held by a person before the date of vesting and in respect of which he is not entitled to be registered as an occupant under this section shall be disposed of in the manner provided in section 77 after evicting such person.
48A. Enquiry by the Tribunal, etc.--(1) Every person entitled to be registered as an occupant under section 45 may make an application to the Tribunal in this behalf. Every such application shall, save as provided in this Act, be made before the expiry of a period of six months from the date of the commencement of section 1 of the Karnataka Land Reforms (Amendment) Act, 1978, [x x x].
38Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others (2) On receipt of the application, the Tribunal shall publish or cause to be published a public notice in the village in which the land is situated calling upon the landlord and all other persons having an interest in the land to appear before it on the date specified in the notice. The Tribunal shall also issue individual notices to the persons mentioned in the application and also to such others as may appear to it to be interested in the land.
(3) The form of the application, the form of the notices, the manner of publishing or serving the notices and all other matters connected therewith shall be such as may be prescribed. The Tribunal may for valid and sufficient reasons permit the tenant to amend the application.
(4) Where no objection is filed, the Tribunal may, after such verification as it considers necessary, by order either grant or reject the application.
(5) Where an objection is filed disputing the validity of the applicant's claim or setting up a 39 Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others rival claim, the Tribunal shall, after enquiry, determine, by order, the person entitled to be registered as occupant and pass orders accordingly.
(5A) Where there is no objection in respect of any part of the claim, the Tribunal may at once pass orders granting the application as regards that part and proceed separately in respect of the other part objected to.
(6) The order of the Tribunal under this section shall be final and the Tribunal shall send a copy of every order passed by it to the Tahsildar and the parties concerned.
Provided that the Tribunal may, on the application of any of the parties, for reasons to be recorded in writing, correct any clerical or arithmetical mistakes in any order passed by it.
Provided further that the Tribunal may on its own or on the application of any of the parties, for reasons to be recorded in writing correct the 40 Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others extent of land in any order passed by it after causing actual measurement and after giving an opportunity of being heard to the concern parties.
(7) The person to be registered as an occupant shall pay to the State Government as premium an amount equal to fifteen times the net annual income referred to in sub-section (2) of section 47 in the case of A Class, B Class and C Class lands referred to in part A of Schedule 1 and twenty times such income in the case of D Class land referred to in the said Part A, plus the amount, if any, payable under sub-section (3) of that section:
Provided that the premium payable by a permanent tenant shall be six times the difference between the rent and the land revenue of the land. (8) Where no application is made within the time allowed under subsection (1), the right of any person to be registered as an occupant shall have no effect. "41
Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others
14. We are of the considered opinion that there was no actual cultivation of land by the present appellant-petitioner.
The agreement dated 02nd May 1969 only gave a right to make the land in question cultivable by removal of the grass and the rent was paid by the appellant towards the cutting of the naturally growing grass only. The various rent receipts examined by the learned Single Judge as well as the learned Land Tribunal were only for payment being made towards the cutting of grass which naturally grew on the land in question.
The said agreement clearly stipulated that after the said land is made cultivable, fresh agreement would be entered into for actually giving the right of cultivation to the appellant-
petitioner, but that never happened and there is no evidence on record that the appellant-petitioner has actually cultivated the land in question.
15. The sheet anchor argument of the learned counsel for the appellant-petitioner, Mr.F.V.Patil, banking upon the 42 Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others legal notice of the advocate dated 02nd September 1971, addressed to Mysore State Electricity Board, Dharwar, is bereft of any merit. Not only that the said legal notice itself was disputed and denied by the respondent No.3 and the fact that the same was never proved before the learned Land Tribunal by the appellant-petitioner, despite opportunity given to him by the Tribunal, the same speaks volumes against him.
16. Notwithstanding this, in view of persistence of the learned counsel for the appellant, we examined the contents of the said legal notice. Relevant paragraphs of the said legal notice by the advocate Sri.M.A.Choudhari, addressed to the Assistant Executive Engineer, Mysore State Electricity Board, Dharwar-7, are quoted below for ready reference:
" That my client is the owner and Wahiwatdar of Block No.258, as measuring 17 acre 19 guntas assessed at Rs.7-10-50 of Village Kelgeri and is cultivating the same through one Sri.Hasansaheb. Allasaheb Pendhari of Saptapur 43 Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others Dharwar, and has raised Jawar crop, to the extent of 4 acre 20 gunthas, and in the rest he has reared grass for his cattle.
But it is learnt that your representatives have un-authorisedly entered upon, and having criminally tresspassed thereover, have dug 3 pits of 3'x2'x5' damaging the Jawar crops in Block No.258 of Kelgeri for fixing the Electric poles leading to Sri.Jamakhana's Pump Set inspite of oral objections of my client and Shri.Hasansab Pendhari. Please note that his action on the part of your deputies, your representatives, and in servants is a Grave offence, involving Criminal tresspass, lurking tresspass, nuisance, insult and defamation also involving Civil liability for which you alone are liable and answerable.
Please take notice that your failure, to desist from such acts and to instruct your deputies, agents, servants, to desist from such acts and to remedy the damages within 24 hours from the date of receipt of this notice will entail civil and 44 Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others Criminal actions against the concerned persons at his cost and consequences. "
17. From the said quoted portion of the legal notice, the averments that the owner-respondent No.3 "is cultivating the same through one Sri.Hasansaheb Allasaheb Pendhari (appellant) and has raised Jawar crop to the extent of 4 acres 20 guntas and in the rest of the land, he has reared grass for his cattle" does not indicate in any manner that the said cultivation was done by the present appellant-Hasansab. On the contrary, while objecting to the fixing of the poles by the Mysore State Electricity Board, Dharwar, Respondent No.3-owner claims that the land is under cultivation by him through Sri.Hasansab, the present appellant. The respondent No.3, owner, could very well claim the present appellant to be working as a servant or a hired labour on wages, which is excluded in the definition of 'deemed tenant' under Section 4(b) of the Act quoted above.
Therefore, such averments by Respondent No.3 owner cannot 45 Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others be said to any admission on his part about the cultivation by the Appellant.
18. The documentary evidence in the form of agreement dated 02nd May 1969 was only for the limited purpose of giving him right to cut the grass and make the land cultivable. There is no connection between the said agreement dated 02nd May 1969 and the aforesaid quoted portion of the legal notice dated 02nd September 1971, even if the later legal notice was to be treated as admissible evidence, though it is not, since it was never proved before the Land Tribunal in accordance with law.
19. Unless a person is in actual cultivation of the land under the tenancy rights given to him by the landlord, the question of his being deemed to be a tenant under Section 4 of the Act and getting the occupancy rights under Section 45 of the Act does not simply arise. A owner of the land, like 46 Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others respondent No.3, who denies any tenancy in favour of any other person, including the present appellant, need not apply to the Land Tribunal under the Proviso to Section 4 of the Act, unless the said landlord admitted any such tenancy and wanted to claim a declaration that such a person is not a tenant on the land in question. There was no such occasion for the respondent No.3 to approach the learned Land Tribunal for declaration of his own ownership or title for the land in question as he never admitted any tenancy in favour of the present appellant-
Hasansab. The rent paid by the appellant on various dates was only for the purpose of right to cut the naturally growing grass on the land belonging to the respondent No.3 and take away the same and the work assigned under the agreement dated 02nd May 1969 was to make the land cultivable. None of these documents prove actual cultivation of the land in question by the present appellant-petitioner and therefore, there is no question of granting him the occupancy rights under Section 45 47 Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others of the Act. As the conditions precedent for the same are not at all satisfied, we, therefore, do not find any error in the orders passed by the learned Land Tribunal and as upheld by the learned Single Judge in the order under appeal before us.
20. A brief review of the judgments relied upon by the learned counsel for the appellant is found to be opportune here.
21. In Gurubasappa Ningappa Banakar vs. The Land Tribunal, Dharwar & others, ILR 1979 KAR 156, a Division Bench of this Court held that the definition of 'land' in Section 2(18) of the Act of 1961 includes land used for a purpose subservient to agriculture and the definition of the word 'cultivate' would include improving agricultural produce and it is not necessary that the basic operations like tilling, sowing and planting in the very land, was necessary to construe it as an activity of cultivating the land. Paragraphs 11 and 12 of the judgment are quoted below for ready reference.
48Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others " 11. Shri Thipperudrappa argued, unless basic operations of tilling sowing of seeds, planting and similar work were carried on the land in question, the subsequent operations like thrashing and stacking would not make that land an agricultural land and that likewise, stacking of fodder grown on some other land and thrashing of crops grown on some other land, could not be regarded as cultivation of this land.
12. Since the definition of land in Section 2(18) of the Act includes land used for a purpose subservient to agriculture and the definition of the word 'Cultivate' includes improving agricultural produce, we are unable to accept the contention of Shri.Thipperudrappa that unless the petitioner was carrying on basic operations like tilling, sowing and planting in this very land, he could not be regarded as cultivating the land for the purpose of Section 45 of the Act. "
There is no dispute on the principles propounded in the said decision, but we do not find any evidence in the present 49 Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others case that the appellant was doing any such cultivation activities like improving of the agricultural produce or stacking of fodder grown on some other land, thrashing of crops, etc., subservient to the main activity of the agriculture like tilling, sowing and planting, etc. The activity of cutting of the naturally grown grass cannot be compared with the subservient activities carried out in that case and that is specifically excluded from the definition of 'Cultivation' under 1961 Act. Therefore, the said decision is clearly distinguishable on facts.
22. In Suresh S.Rao and Others Vs. Land Tribunal, Belgaum and others, 2007 (5) Kar.L.J. 303, a learned Single Judge of this Court held that even if the revenue records do not show the name of the applicant as a tenant, but the owner himself has admitted the possession and cultivation of the applicant on the appointed day and earlier to that, the relationship between the landlord and tenant shall be treated as established and unless such relationship is terminated in any 50 Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others manner known to law, the Tribunal was justified in conferring occupancy rights in favour of the tenant.
The facts in the present case are contrary to the facts in that case before the learned Single Judge, where not only the actual cultivation by the appellant is denied, but the activity of cutting of the grass and making the land cultivable cannot be deemed to be sufficient for the appellant to be described or deemed as a tenant at all. Therefore, the question of entering his name in the revenue records as tenant does not arise.
23. In Baleshwar Tewari by LRs and others Vs. Sheo Jatan Tiwary and others, ILR 1997 KAR 2186, the Hon'ble Supreme Court held that the entries in the revenue records is the paradise of the Patwari and the tiller of the soil is rarely concerned with the same and he would not interfere with the command of the intermediary so long as his possession is not disturbed. Therefore, creation of records is a camouflage to 51 Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others defeat just and legal right or claim and interest of the raiyat, the tiller of the soil on whom the Act confers title to the land he tills.
Again, there cannot be any dispute on the principles laid down by the Hon'ble Supreme Court, but there must exist facts and evidence on record to apply the law in favour of the appellant-petitioner. But, we do not find any such facts established by the appellant-petitioner in the present case and therefore, the said judgment is also of little help to the appellant-petitioner.
24. In Venkatappa Ningappa Vs. State of Karnataka and others, 1981(1) Kar.L.J. 382, a learned Single Judge of this Court was dealing with a case of lack of personal supervision of the owner in the matter of cultivation by the tenant and found that whether under an agreement of hired labour, the petitioner was cultivating the land, in the absence of 52 Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others personal supervision of the owner over the cultivation, who was residing 120 miles away of the land, the petitioner's cultivation does not amount to cultivation by hired labour and the petitioner could be deemed to be a tenant under Section 4(b) of the Act.
No such facts are forthcoming in the present case and therefore, this judgment is also found to be distinguishable on facts.
25. In Papila Bai Vs.Chavdas T.Bhortakke (Dead) by LRs and Others, (2005) 2 SCC 509, the Hon'ble Supreme Court dealing with the provisions of Bombay Tenancy and Agricultural Lands Act, 1948, held that a person inducted as a tenant on mortgaged land by mortgagee in possession could be deemed to be a tenant and upon extinction of the mortgage by redemption also, the High Court held that the respondent No.1 was lawfully cultivating the land and therefore, could be 53 Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others deemed to be a tenant under Section 4 of the Act was justified in so holding.
As noted above, the present case is clearly on a different footing as neither the respondent No.3 is a mortgagee of the land in question nor the appellant was put in possession by him lawfully and on the contrary, his possession and cultivation is stoutly denied by the respondent No.3 and therefore, the said judgment is not applicable to the facts of the present case.
26. In Byalappa Vs. State of Karnataka and others, 1981 (2) Kar.L.J. 221, a Division Bench of this Court held that where the grievance of the petitioner in the Writ Petition against the order of the Land Tribunal granting of occupancy rights to the respondent No.3 was that he did not have sufficient opportunity to put forth his case before the Land Tribunal, the Court quashing the order impugned, remanded the case back to 54 Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others the Land Tribunal for fresh disposal after affording an opportunity to the petitioner.
The said judgment relied upon by the learned counsel for the appellant is also misquoted, because in the present case, thrice the Tribunal has dealt with the case of the petitioner and there is no question of adequate opportunity not having given to the present appellant-petitioner for leading the evidence. The facts are, to the contrary, that despite opportunity given to him, he failed to adduce the cogent evidence to establish cultivation of land by him, before the Land Tribunal.
27. Therefore, none of the cases relied upon by the learned counsel for the appellant-petitioner are applicable to the facts of the present case and cannot come to the rescue of the appellant-petitioner for allowing his claim in any manner. 55
Date of Judgment: 06.03.2017 WA No.100057 of 2014 Hasansab Allasaheb Pendari through LRs Vs. The State of Karnataka & others
28. Therefore, we do not find any merit in the present appeal. The same is liable to be dismissed and the same is accordingly dismissed. No costs.
Sd/-
JUDGE Sd/-
JUDGE RK/-