Karnataka High Court
S. Mallikarjunappa vs The State Of Karnataka, By Its ... on 8 January, 2004
Equivalent citations: ILR2004KAR2119, 2004(5)KARLJ504
Author: V. Gopala Gowda
Bench: V. Gopala Gowda
ORDER V. Gopala Gowda, J.
1. I..A III/03 is allowed and the delay in filing I.A. IV/03 is condoned. For the reasons stated I.A IV/03 is allowed and the order dated 16-4-2003 dismissing the petition against respondents 5, 6 and 9 is recalled.
2. As per the Memo filed, Respondents 5 and 6 are permitted to be deleted at the risk of the petitioner. Consequently I.A.VIII/03 filed to treat respondents 7, 8 and 10 as legal representatives of deceased respondents 5 and 6 is rejected as unnecessary in view of deletion of respondents 5 and 6.
3. For the reasons stated in the applications, I.As V, VI & VII are allowed. Delay is condoned, abatement is set aside and the legal representatives of deceased 9th respondent are permitted to bring on record.
4. Counsel for the petitioner shall furnish the amended cause title within two weeks.
5. On the joint application filed by respondents 3 and 4, the Land Tribunal granted occupancy rights in their favour by order at Annexure-H dated 11-6-1979 in respect of 4-00 acres of land in Old Sy. No. 119, New No. 204 of Aggunda village in Arasikere Taluk. The petitioner, claiming to have entered into agreement dated 26-6-1973 for purchasing the said land and claiming to have been put in possession of the land, has challenged the order of the Land Tribunal. Consequent upon establishment of Appellate Authorities, the Writ Petition was transferred and registered as appeal before the Land Reforms Appellate Authority. By order dated 31-7-1989 passed divergent orders. While the Judicial Member of the Appellate Authority allowed the appeal and set aside the order of the Land Tribunal, the Revenue Member dismissed the appeal. Therefore, the matter was referred to the opinion of Civil Judge under Section 118(1-A) of the Karnataka Land Reforms Act. The Civil Judge registered the case in Misc.No. 31/89. When the matter was pending before the Civil Judge, Section 118(1-A) of the Act was deleted and the Appellate Authorities were abolished. Therefore, the matter had been got transferred to this Court and registered as present Writ Petition.
6. The case of the petitioner is that he was put in possession of the land towards part performance of the sale agreement dated 26-6-1973. His further allegation is that in order to avoid the said agreement, his vendor Siddappa instigated respondents 3 and 4 and when they tried to interfere with the petitioner, the petitioner filed suit in O.S.No. 337/73 for permanent injunction against them and obtained temporary injunction. The order-sheet is produced as Annexure-C and it shows that the interim order was extended from time to time from 7-12-1973. By order dated 18-1-1974 the plaintiff was allowed to harvest the standing crop on the land by furnishing security. Since question of tenancy was raised by respondents 3 and 4, the proceedings of the suit were stayed and the parties had been directed to approach the Land Tribunal to get a finding on the tenancy issue. In view of the injunction order and also the permission accorded to the petitioner to harvest the standing crop, without any hesitation it can be held that petitioner was in possession of the land as claimed by him eversince the date of the sale agreement in his favour.
7. Admittedly, petitioner is neither the landlord nor the tenant of the land. He is an agreement - holder for purchasing the land. He was not a party to the proceedings before the Land Tribunal. Hence, no relief can be granted to him by this Court. Already, the petitioner has filed suit in O.S.No. 23/76 for specific performance of the agreement and to direct the legal representatives of deceased Siddappa to execute registered sale deed. The petitioner has to work-out his right in the said suit.
8. Since the issue of tenancy has to be determined by the Land Tribunal and the same is the subject matter of this Writ Petition, this Court proceeds to consider the correctness of the findings of the Land Tribunal the impugned order.
9. The Land Tribunal granted occupancy rights on the basis of the entries in favour of respondents 3 and 4 for the years 1968-69 and 1969-70 and the statement of Siddappa in the written statement filed in O.S.No. 337/73. In order to grant occupancy rights, the crucial date is 1-3-1974. The applicants have to prove that they were the tenants of the land on the aforesaid date or immediately prior to that. In this case, the pahani extract at page 288 of the original records mentions the name of Siddappa for the years 1970-71 to 1972-73 and the cultivation is shown as "own". For the year 1973-74 the name of the petitioner is mentioned, probably on account of his possession of the land by virtue of the agreement of sale. From this it is clear that the applicants/respondents 3 and 4 were not cultivating the land on the appointed date 1-3-1974 or immediately prior to that. Therefore, grant of occupancy rights in their favour was not correct.
10. In form. 7 filed by respondents 3 and 4 it is mentioned that they were cultivating the land since 1961-62. If that was true, their names ought to have been entered in the pahanis. The application was filed on 1041-1974. But, their names figures only for two years, 1968-69 and 1969-70. Thereafter, the name of the land owner Siddappa is mentioned. After the petitioner entered into the agreement, his name is appearing in the RTC record pertaining to the land in question. The entries in the name of the petitioner were questioned by the respondents 3 and 4 by filing an Appeal No. R.A. 16/74 before the Assistant Commissioner Hassan, Sub-Division, Hassan in Appeal No. RA. 16/ 74 and the same came to be allowed by setting aside the entries vide his order dated 22-7-1976 and remanded the matter to the Tahsildar, Arsikere Taluk for his reconsideration. Therefore, it is not known why the name of the applicants were not entered from 1961-62 and as to how their names were entered only for the aforesaid two years.
11. I have perused the original RTC register in respect of the land in question. Two RTCs. for the years 1965-66 to 1969-70 are found at pages 331 and 332. Both are written in same ink and in the same handwriting. However, in page 331 the name of respondents 3 and 4 are written for the aforesaid two years 1968-69 and 1969-70. The same is in a different ink and even the hand writing also is different. This is nothing but tampering of the original RTC record with a deliberate intention to prefer a false claim of tenancy to deprive valuable rights of petitioner. Their names are not found at page 332 though pertaining to the same period. On the strength of such entries tenancy claim was put forth, which was granted by the Land Tribunal without application of mind.
12. The reliance placed upon the agreement dated 26-6-1973 marked as Exhibit-BI produced as additional evidence before the Appellate Authority alleged to have been executed by the petitioner in favour of the original owner, to contend that the possession of the land was not delivered to the petitioner by the owner, cannot be accepted for the following reasons:
(a) Regarding the execution of this document the original owner has not stated either in his legal notice or written statement filed in the original suit filed by the petitioner;
(b) The original owner has not produced this document before the Land Tribunal.
(c) Respondents 3 and 4 have not satisfactorily explained how they came into possession of this document
(d) In the agreement of sale admittedly was executed by the original owner to the petitioner as per Ex A15, there is a recital regarding delivery of possession of the land in question. Such being the case, it is not possible for this Court to accept the contention another agreement was executed by petitioners in respect of the land in question quite contrary to the undisputed agreement of sale referred to supra.
(e) The document Exhibit-B1 was produced and marked through respondents 3 and 4 when it was alleged to have been executed in favour of the original owner, who has supported the claim of tenancy of respondents 3 and 4. Therefore I am of the view that the above said document is a suspicious document. Hence the same does not support their case. That apart, the said document was not proved in accordance with law.
13. Further the claim of tenancy rights in respect of the land cannot be accepted for the reason that the original owner has not stated regarding tenancy rights of respondents No. 3 and 4 upon the land in question either in his legal notice or written statement or statement of objections filed to the interlocutory application filed by the petitioner for grant of temporary injunction order in his favour in respect of the land in question in the original suit and therefore this Court is of the view that after grant of temporary injunction the original owner has deliberately set up the respondents 3 and 4 as tenants of the land in question to deprive the valuable right of the petitioner upon the land.
14. Except the pahani entries for two years, there is no other document produced by the respondents 3 and .4 to establish their tenancy rights upon the land in question. There is no lease deed. No receipts are produced for having given the alleged wara to the landlord to justify their claim of tenancy rights to show that the respondents 3 and 4 have been paying wara to the tenants landowner for having cultivated the land as tenants. In the absence of any proof of tenancy, the Land Tribunal should not have granted occupancy rights.
15. In the agreement for sale, there is no mention that the land is tenanted. Even in the notice sent to the petitioner through advocate on 5-12-1973 and also the written statement filed by the landlord in the original suit it is not stated that the land is tenanted.
16. The Judicial Member of the Appellate Authority has elaborately discussed the tenancy claim of respondents 3 and 4 and has categorically held that the land was not tenanted and respondents 3 and 4 were not the tenants.
17. In fact, the joint application in Form.7 filed by respondents 3 and 4 was not maintainable as they do not belong to same family. They are different persons and their interest, if any, in the land was separate and individual. On this ground alone the application ought to have been rejected.
18. For the reasons stated above, the Writ Petition is allowed. The impugned order is hereby quashed.