Karnataka High Court
Wahid Saheb vs State Of Karnataka By Its Secretary on 18 September, 2017
Author: B.S.Patil
Bench: B.S.Patil
WP 22906/2005
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF SEPTEMBER, 2017
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
W.P.No.22906/2005 (LR-)
BETWEEN
1. WAHID SAHEB
MAJOR
2. AMEER SAHEB
MAJOR
3. SADIQ ALI
MAJOR
GRAND SON OF LATE DAWOOD SAHEB,
76, BADAGABETTU UDUPI. ... PETITIONERS
(By Sri M.G.KUMAR, ADV.)
AND
1. STATE OF KARNATAKA
BY ITS SECRETARY
REVENUE DEPT.
MULTISTORIED BUILDINGS
AMBEDKAR VEEDHI
BANGALORE - 01.
2. THE LAND TRIBUNAL
UDUPI TALUK
BY ITS SECRETARY
UDUPI.
3. VITTAL SHETTY
S/O SHEENA SHETTY
MAJOR
76 BADAGABETTU UDUPI.
WP 22906/2005
2
4. U.VADIRAJ UPADYA S/O LATE PADMANABHA UPADYA
SINCE DECEASED BY LRs.
(a) SMT.SULOCHANA
W/O LATE VADIRAJA UPADHYA
AGED ABOUT 78 YEARS
(b) K.V.RANGANATH UPADHYA
AGED ABOUT 65 YEARS
S/O LATE VADIRAJA UPADHYA
(c) K.V.NAGARAJA UPADHYA
AGED ABOUT 63 YEARS
S/O LATE VADIRAJA UPADHYA
(d) SUMANGALA P.A.
AGED ABOUT 61 YEARS
S/O LATE VADIRAJA UPADHYA
(e) K.V.KRISHNARAJ UPADHYA
ALL ARE R/AT KANNAR PADY,
KADEKAR VILLAGE,
NEAR KANNAR PADY TEMPLE,
UDUPI TALUK. ... RESPONDENTS
(AMENDED V/C/O DT.10.1.2014)
(By Smt.B.P.RADHA, AGA FOR R1 & R2;
Sri G.BALAKRISHNA SHASTRY, ADV. FOR R3;
Sri V.PADMANABHA KEDILAYA, ADV. FOR R4(a-e))
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED ORDER AT ANN-A DT. 20.9.05 BY R2 - LAND TRIBUNAL
IN SO FAR AS IT REJECTS THE CLAIM OF THE PETITIONERS IN
RESPECT OF LAND BEARING SY.NO.28/18 MEASURING 43 CENTS
OF 76, BADAGABETTU VILLATE, UDUPI, AND ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 13.7.2017, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:
WP 22906/2005
3
ORDER
1. Petitioners are challenging the order dated 20.09.2005 passed by the Land Tribunal, Udupi Taluk, Udupi, thereby dismissing the application filed by late Dawood Saheb - father of petitioners 1 & 2 and grandfather of petitioner no.3 seeking occupancy rights in respect of 43 cents of land comprised in Sy. No.28/18 of Badagabettu village in Udupi Taluk.
2. The Land Tribunal has come to the conclusion that second son of late Dawood Saheb by name Shahabuddin had purchased the land in question on 18.03.1966 from Vadiraja Upadhyaya - respondent no.4 herein. It has held that when Shahabuddin purchased the property, one Vittal Shetty was the Chalagenidhar, therefore, when tenanted land had to be sold, there ought to have been resumption proceedings to resume the land by the landlord and thereafter the property could have been sold. The Land Tribunal has held that there were documents to show possession of the tenant when the land was sold to Shahabuddin and it was on that ground the registered sale WP 22906/2005 4 deed executed in favour of Shahabuddin had been set aside by the Assistant Commissioner; if at all the land had continued to be under the tenancy of Dawood Saheb, there was no occasion or need for his son Shahabuddin to purchase the said land. Hence, the Tribunal has held that Dawood Saheb was not the tenant of the land. The Land Tribunal has further held that Dawood Saheb was only residing in the thatched hut situated in the land. The Tribunal has found that Narsi Shedthy and Vittal Shetty were the tenants of the land. Therefore, occupancy rights were granted in favour of the tenants - Narsi Shedthy and Vittal Shetty. Aggrieved by this order, two other sons of Dawood Saheb by name Wahid Saheb - petitioner no.1 and Ameer Saheb- petitioner no.2 along with Sadiq Ali - grandson of Dawood Saheb have filed this writ petition.
3. It is the case of petitioners that late Dawood Saheb was the Chalageni tenant of the land under Smt. Thungu Shedthy and Narsi Shedthy who were the Moolgenidhars under Upadhyaya family; Moolgenidhars had fallen in arrears of huge rent payable to landlords, hence, as per WP 22906/2005 5 registered release deed dated 27.05.1955 they gave up their moolageni rights; that there was recital regarding continuation of chalageni of Dawood Saheb in respect of the land in question in the said release deed; apart from the same there was a fresh chalageni dated 10.06.1995 executed between Dawood Saheb and Vadiraja Upadhyaya.
4. It is further urged by the petitioners that the Moolgenidhars having executed release deed dated 27.05.1955 appeared to have approached their landlords to lease out the lands in their favour on chalageni basis on humanitarian considerations and the landlords have leased out the lands on chalageni basis except the land in question. It is further contended by petitioners that late Shahabuddin S/o Dawood Saheb who was employed in a construction company was living separately from his father while other members of the family were living with late Dawood Saheb in the thatched house existing in the land. They have also urged that after the Land Reforms Act came into force, respondent no.3 and his mother filed joint application claiming occupancy rights including the WP 22906/2005 6 subject land, whereas late Dawood Saheb filed Form 7 claiming the very same land.
5. It is urged by petitioners that without the knowledge of Dawood Saheb, his son Shahabuddin purchased three items of land including the disputed land from its owner - Vadiraja Upadhyaya during 1966; however, the tenancy rights were never terminated, but were indeed continued.
6. It is relevant to notice here that late Shahabuddin had initiated resumption proceedings under the provisions of the Land Reforms Act which were ultimately rejected by the competent court. The contention of the petitioners in this connection is that, as late Dawood Saheb was not a party to the said proceedings, rejection of resumption proceedings initiated by his son Shahabuddin would not affect the tenancy rights of Dawood Saheb.
7. Learned Counsel for the petitioners contends that the averments made in the registered chalageni clearly disclosed that Dawood Saheb was the tenant of the land and the said tenancy had not been terminated in WP 22906/2005 7 accordance with law. It is his submission that as per Section 92 of the Evidence Act, there can be no evidence permitted to be adduced contrary to the terms and conditions mentioned in the registered document; that moolgenidhars were not entitled for registration of occupancy rights. It is also urged by him that as per Annexure-D - sale deed also, Dawood Saheb continued to be the chalagenidhar. Reliance is also placed on Annexure- C styled as Chalageni Edurunudi to support the tenancy of Dawood Saheb. Learned Counsel urges that the resumption application on which reliance was placed by the so-called rival tenants and their counsel was against Shahabuddin and not against Dawood Saheb or petitioners. He has placed reliance on the following judgments:
(i) M/S. RAVAL AND CO. VS K.G.RAMACHANDRAN & OTHERS - AIR 1974 SC 818;
(ii) S.SAKTIVEL (DEAD) BY LRS VS M.VENUGOPAL PILLAI & OTHERS - AIR 2000 SC 2633(1);WP 22906/2005 8
(iii) B.AHMED MARACAIR VS MUTHUVALLIAPPA CHETTIAR - AIR 1961 MADRAS 28.
8. Learned Counsel appearing for Vittal Shetty - respondent no.3 herein has strongly defended the order passed by the Land Tribunal. He has taken me through the statement of objections and various documents enclosed to the statement of objections in support of his contentions.
9. Having heard the learned Counsel for all the parties and on perusal of the entire materials on record, the following facts emerge.
10. The land in question was owned by the family of Upadhyaya. Question is, whether Dawood Saheb was the tenant of the land or was it respondent no.3 - Vittal Shetty and his mother who were cultivating the land as tenants as on the appointed date i.e., 01.03.1974 as required under the provisions of the Karnataka Land Reforms Act. Fact that Shahabuddin was the son of Dawood Saheb is not in dispute. Landlord - Vadiraja Upadhyaya executed WP 22906/2005 9 registered sale deed dated 18.03.1966 in favour of Shahabuddin is not in dispute. That execution of this sale deed by the landlord - Vadiraja Upadhyaya was in order to defeat the rights of petitioner and his mother as tenants of the land has been demonstrated by the proceedings initiated before the Assistant Commissioner under Section 83 of the Land Reforms Act, seeking annulment of the sale made in favour of Shahabuddin. The Assistant Commissioner, Kundapura, by his order dated 15.07.1975 declared that the said sale deed was null and void. Thereafter, in order to overcome this order, Form 7 was filed by Dawood Saheb on 12.02.1979.
11. Contrary to the assertion made by the petitioners in this writ petition, there is no recital in this sale deed that Dawood Saheb was the chalageni tenant. On the other hand, it has been asserted that Shahabuddin was the tenant. Therefore, the stand taken by the petitioners in this regard to show that Dawood Saheb was the tenant is not tenable. Petitioners have not produced land revenue receipts to show that Dawood Saheb used to pay land WP 22906/2005 10 revenue in respect of Sy. No.28/18. That there was collusion between Vadiraja Upadhyaya and Dawood Saheb was clear from the fact that Vadiraja executed sale deed in favour of Shahabuddin S/o Dawood Saheb on 18.03.1966 in respect of the land in question. The other circumstance, which probablizes this conduct is that on an earlier occasion when the Land Tribunal granted occupancy rights on 13.08.1981 in favour of Dawood Saheb, Vadiraja had conceded his tenancy and did not challenge the said order and it was at the instance of respondent no.3 herein that the said order was set aside and the matter was remanded for fresh consideration by this Court.
12. In so far as the recitals contained in the release deed dated 27.05.1955, the same cannot be taken to prove the tenancy of Dawood Saheb over the land in question as on 01.03.1974. Unless petitioners produce any cogent material to establish that as on 01.03.1974 which is the appointed date for the purpose of vesting of the land in the State and to enable the tenant to claim occupancy rights WP 22906/2005 11 as tenant, petitioners will not be entitled to sustain their claim.
13. Respondent no.3 has produced Annexure-R1 which is the deposition of Vadiraja Upadhyaya before the Land Tribunal. In the said statement, he has admitted the tenancy of Vittal Shetty and Narsi Shedthy. Ameer Saheb, who is petitioner no.2 in this writ petition has been examined on 29.11.2002. His deposition is at Annexure- R2. He has stated that he was not aware whether his father Dawood Saheb was a tenant only of the house and was paying rent of Rs.4/- to respondent no.3. Annexure- R3 produced along with the statement of objections is the resumption application filed by Shahabuddin Saheb S/o Dawood Saheb against Narsi Shedthy and Vittal Shetty seeking resumption of the land in question. In the application filed for resumption, Shahabuddin has clearly admitted the tenancy of respondent no.3 and his mother. Learned Munsiff allowed the application as per order dated 29.09.1970 as is evident from Annexure-R3. M.A.No.204/1970 was filed before the District Judge, WP 22906/2005 12 Mangalore, by Narsi Shedthy and respondent no.3 - Vittal Shetty. The said appeal was allowed on 23.05.1972 setting aside the order passed by the learned Munsiff. The resumption application was dismissed. This is clear from Annexure-R4.
14. Respondent has produced materials along with statement of objections to show that Shahabuddin had initiated rent recovery proceedings against respondent no.3 and his mother. Annexures-R7 to R9 - documents are produced in this regard. It is also relevant to notice that as asserted in the statement of objections by respondent no.3, after Shahabuddin purchased the land from Vadiraja, Shahabuddin and Vadiraja together sent notice of attornment dated 03.08.1966 to respondent no.3 and his mother requiring respondent no.3 to surrender the land in favour of Shahabuddin. This is evidenced by Annexure-R11. This being the position, claim made by Dawood Saheb stating that he was tenant of the land as on 01.03.1974 is wholly untenable. The contents of registered release deed dated 27.05.1955 will not have any bearing WP 22906/2005 13 on the question to be decided as to who was the tenant in actual cultivation of the land as on 01.03.1974. The facts and circumstances adverted above show that respondent no.3 and his mother were tenants.
15. The Land Tribunal has, after appreciating the entire materials on record rightly come to the conclusion that respondent no.3 and his mother had established their tenancy in respect of the land in question and that there was no material to show that Dawood Saheb was the tenant of the land. The facts and circumstances disclose that tenancy rights of respondent no.3 and his mother were sought to be defeated by collusive conduct on the part of the owner of the land - Vadiraja Upadhyaya on the one hand and Dawood Saheb and his son Shahabuddin on the other, as has been pointed out above. None of the judgments on which reliance has been placed by the Counsel for petitioners have any application to the facts of the case.
WP 22906/200514
16. The findings recorded by the Tribunal are based on proper appreciation of the materials on record. It cannot be said that the Tribunal has committed any illegality in recording such findings so as to warrant interference in exercise of writ jurisdiction.
Hence, this writ petition being devoid of merits is dismissed.
Sd/-
JUDGE KK