Karnataka High Court
Sri Muniyappa @ Sen Muniyappa S/O Late ... vs The State Of Karnataka on 17 August, 2012
Author: Vikramajit Sen
Bench: Chief Justice, Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 17th DAY OF AUGUST, 2012
PRESENT
THE HON'BLE MR.VIKRAMAJIT SEN, CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
WRIT APPEAL No.3724/2005 (LR)
BETWEEN
Sri Muniyappa @ Sen Muniyappa,
S/o Late Ramaiah,
Aged about 68 years,
Residing at Vajarahalli Village,
Uttarahalli Hobli,
Bangalore South Taluk .... APPELLANT
(By Sri Srinivasa K, Advocate for M/s. Ram Bhat & Assts.)
AND
1. The State of Karnataka,
By its Principal Secretary,
Department of Revenue,
M.S. Building, Bangalore-560 001.
2. The Land Tribunal,
Bangalore South Taluk,
Bangalore.
3. Sri Munigeregappa,
S/o Late Byrappa,
Since died by his Legal Heirs;
a) Sri Ashwathanarayana,
S/o Late Munigerappa
Aged about 43 years
2
b) Sri Bhakthavatsala,
S/o Late Munigerappa,
Aged about 41 years
c) Sri Prakash,
S/o Late Munigerappa,
Aged about 39 years
d) Sri Nataraj,
S/o Late Munigerappa,
Aged about 37 years,
(All are residing at No.420,
2nd Cross, 9th 'E' Main,
Vijayanagar, Bangalore-560 040).
4. Smt. B. Renuka
D/o B. Lokandha Naidu,
Aged about 52 years,
5. Smt. Hemalatha,
W/o Sri R. Rajagopal Naidu,
Aged about 58 years,
6. Sri B.R. Chandrashekar,
S/o R. Rajagopal Naidu,
Aged about 32 years,
Respondents 4 to 6 are Residing at:
No.25, 7th Main Road, 4th Block,
Jayanagar,
Bangalore-560 011.
(Amended as per Court order dt.20.7.2011)
... RESPONDENTS
(By Sri D.L. Jagadeesh, Advocate for Respondent 4 to 6,
Sri B.Veerappa, AGA for State-Respondents,)
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This writ appeal is filed under Section 4 of the Karnataka
High Court Act praying to set aside the order passed in the Writ
Petition No.32697/2002 dated 06.10.2005.
This writ appeal having been heard and reserved for
pronouncement of judgment, this day, the Chief Justice delivered
the following:
JUDGMENT
Vikramajit Sen, C.J.
This appeal has been filed by Muniyappa against the order dated 6.10.2005 of the learned Single Judge rejecting the writ petition filed under Articles 226 & 227 of the Constitution of India. The petitioner had filed Form No.7 under the Karnataka Land Reforms Act, 1961 claiming that he is a tenant of land measuring 1 acre 2 guntas in Sy.No.10/1, Vajrahally village, Uttarahally Hobli, Bangalore South Taluk. This land was originally owned by one Mavalli Thippanna, who inducted Ramaiah, petitioner's father as a 'Vara' tenant in 1960. After the death of Thippanna the land was sold to Munigeragappa, but late Ramaiah continued as the tenant and after his death the tenancy devolved on the petitioner and his brother Krishnappa. The Tribunal as well as the learned Single Judge have noted that the revenue records (RTCs) are in the name of the petitioner Muniyappa from 1969-1992. The claim of the 4 petitioner had on an earlier occasion been rejected by the Land Tribunal, but pursuant to orders passed in W.P.No.3814 of 1980, the matter was remanded for fresh consideration. The legal representatives of Munigeragappa are ostensibly resisting the petitioner's claim through their General Power of Attorney holder namely, Ramakrishnappa. Before the Land Tribunal the petitioner had examined himself and two independent witnesses, whereas only the said GPA holder Ramakrishnappa has entered the witness box to support the land owner's case.
2. Krishnappa, the brother of the petitioner had earlier successfully filed Form No.7 in respect of the said lands but yet another remand order was passed in W.P.No.2495 of 1980 and 4079 of 1980; he did not participate in any further in the proceedings after the remand. All through, the case of the petitioner is that he had tenancy rights equal to his brother Krishnappa, which in turn are traceable to their father late Ramaiah. It also appears that Munigeragappa was treated as a 'Kadim' tenant under the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954 by orders of the Special Deputy Commissioner for Abolition of Inams, Bangalore by order dated 5 19.12.1958. It is not in dispute that neither the petitioner nor his brother Krishnappa had made any claim under the Inams Abolition Act.
3. So far as the proceedings before the Land Tribunal are concerned, reliance has been placed on a Single Bench decision in Krishnamurthy.B.M. vs. State of Karnataka 1976(2) Kar.L.J. 433. The learned Single Judge, before whom the decision of Three Judge Bench in Muniyallappa vs. B.M.Krishnamurthy AIR 1992 SC 212 (the appeal against the order of the learned Single Judge) was duly cited, has applied the decision of the learned Single Judge even though it stood specifically over-ruled by the Apex Court. It appears to us that where a person fails to take advantage of a particular legislation (in this case the Inams Abolition Act), it does not preclude or disentitle him to seek the succour of the beneficent quotient of a subsequent Act, i.e., the Karnataka Land Reforms Act, where essentially like relief has been again extended. Since the factual matrix obtaining in the context of the later legislation would invariably lack similitude to that existing earlier, resjudicata would apply in rare circumstances. The Division Bench view in Shri Dharmarayaswamy Temple vs. Chinnathayappa ILR 1990 KAR 6 4242 - Manu/KA/0484/1990 sets down this appreciation of the law, especially so because of the later exposition to be found in Krishnamurthy. We can do no better than reproduce the following paragraphs of the judgment of the Apex Court in Krishnamurthy:
" 4. The learned Single Judge in the instant case has set aside the order of the Tribunal on two grounds: (i) the respondent-landlord was denied fair hearing and the entire proceedings of the Tribunal were conducted in gross violation of the rules of natural justice; and (ii) the appellant was denied registration of occupancy under the Inam's Abolition Act and he has no right to claim occupancy right under S.45 of the Tenancy Act.
5. It may be stated that the purpose and scope of the two Acts are distinct. The Inams Abolition Act was enacted for the purpose of abolition of Inam tenures and conversion of such tenures into Ryotwari tenure and in that process grant of occupancy rights to the Inamdars and the three classes of tenants specified in that Act. The purpose of the Land Reforms Act, however, is quite different. The main purpose was to abolish the relationship of landlord and tenant in respect of tenanted lands and to confer occupancy rights on tenants who are personally cultivating the 7 lands. Therefore, the rejection of the claim of the appellant under the Inam's Abolition Act does not lead to the inference that he has no claim for occupancy right under the Land Reforms Act. The appellant claims that he is a deemed tenant as provided under S.4 of the Land Reforms Act. The requirement of deemed tenant, as provided under S.4 of the Tenancy Act, must be determined by the Land Tribunal. The High Court having come to the conclusion that the procedure adopted by the Land Tribunal was not in accordance with the rules of natural justice ought to have remitted the matter to the Tribunal for fresh disposal."
The decisions of learned Single Judge as well as Land Tribunal inasmuch as they run counter to the above are therefore unsustainable.
4. So far as the evidence recorded by the Land Tribunal is concerned suffice it to reiterate that the petitioner has himself deposed that he was a tenant in respect of the said land and this version was supported by two independent witnesses. On 21.4.1979, his brother Krishnappa @ Kitappa had stated on oath that the subject land was being cultivated by his younger brother 8 Muniyappa; that Krishnappa was cultivating the dry land; the brothers were living as a joint family and the pahanis are in their respective names. The Tribunal ought to have found it suspicious that after the remand the petitioner's brother had reversed his statement and not supported his brother's case. So far as we are concerned, we think that he must have been persuaded by Munigeragappa or his GPA holder Ramakrishnappa. The previous statement made by him, where he has unequivocally supported his brother's case has been completely overlooked. So also the attempt in cross-examination of the GPA holder with the entries in the name of Muniyappa in the RTC columns had not been assailed. No advantage is available to the purchaser from the Division Bench decision in Chandrasekhariah vs. Land Tribunal, Shimoga 1980(1) KLJ SN 153 which decision reiterates that entries in 'pahanis' have presumptive evidentiary value. In that case the evidence led established that the pahanis were not correct which does not mean that pahanis can be discounted altogether.
5. In this conspectus, we are of the view that the order assailed before us is not sustainable. We are also of the opinion that the Single Bench decision in Papanna vs. Smt.Chitra 9 Annaswamy ILR 2008 Kar.4782 is of no advantage to the respondents since there is no judicial pronouncement against the appellant with regard to his application for occupancy rights in Form No.7. The earlier proceedings under the Inams Abolition Act will not preclude or close any consideration under the Land Reforms Act. The appeal is accordingly allowed by setting aside the impugned orders and the application under Form No.7 filed by the petitioner is allowed.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE Snb/Vr