Karnataka High Court
Ninganagouda S/O Chulachanagoud ... vs The State Of Karnataka on 1 October, 2012
Equivalent citations: 2012 (4) AIR KAR R 647
Author: N.K. Patil
Bench: N.K. Patil
1
IN THE HIGH COURT OF KARNATAKA,
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 1ST DAY OF OCTOBER, 2012
:PRESENT:
THE HON'BLE MR. JUSTICE N.K. PATIL
AND
THE HON'BLE MR. JUSTICE B.V.PINTO
W.A.No.6295 of 2010 (LR)
and
Misc.W.No.61954/2010 in W.A.No.6295 of 2010 (LR)
Between:
1. Ninganagouda
S/O Chulachanagoud Mallanagoudra,
Aged about 56 Years, R/O Kulenoor,
Tq. & Dist. Haveri.
Chenabasavva
W/O Basanagouda Mallanagoudra
Since deceased by L.Rs
2. Neelavva
D/O Basanagouda Mallanagoudra
Age: 24 Years, R/O Kulenoor,
Tq. & Dist. Haveri.
3. Shambanna
S/O Basanagouda Mallanagoudra,
Age: 22 Years, R/O Kulenoor,
Tq. & Dist. Haveri.
4. Ravi
2
S/O Basanagouda Mallanagoudra,
Age: 20 Years, R/O Kulenoor,
Tq. & Dist. Haveri.
5. Dyamavva
W/O Sangappa Yelukollav,
Aged about 48 Years,
R/O Kundapur, Kulenoor,
Tq. & Dist. Haveri.
6. Girijavva
W/O Hanamanthagouda,
Giriappagoudar,
Aged about 49 Years,
R/o Kulenoor,
Tq: & Dist: Haveri.
... Appellants
(Common)
(By Sri. Dayananda Bandi for
Sri. M C Bandi & Associates, Advocates)
And
1. The State of Karnataka
by its Secretary to the Dept. of Revenue,
M.S. Building, Bangalore-1.
2. The Land Tribunal, Haveri,
Rep. by its Chairman,
Tirkappa S/O Basappa Venkatpur,
Since Deceased By L.Rs
3. Smt. Basavva
W/O Hanumantappa Katagi,
Aged about 52 Years, R/O Agadi,
Tq. & Dist. Haveri.
3
4. Mudevva W/O Basetappa Katagi,
Aged about 50 Years, R/O Agadi,
Tq & Dist. Haveri.
5. Hanumavva W/O Ramappa Katagi,
Aged about 48 Years, R/O Kulenoor,
Tq & Dist. Haveri.
6. Hanumantappa
S/O Late. Tirkappa Venkatapur,
Aged about 46 Years, R/O Kulenoor,
Tq & Dist. Haveri.
7. Girijavva W/O Guttappa Hosamani,
Aged about 52 Years, R/O Byagavadi,
Tq. Hangal, Dist. Haveri.
... Respondents
(Common)
(By Sri. P.H.Gotkhindi, Govt. Pleader for R1 & R2,
R3, 4, 5, 6 & 7- served and unrepresented)
This Writ Appeal is filed U/S.4 of the Karnataka High
Court Act, 1964, praying to, set aside the order dated:
28/05/2010, passed in W.P.No.40218/2002 (LR) by the
learned Single Judge by allowing this appeal.
This Misc.W. is filed under Order 41 Rule 5 R/w 151
of C.P.C. praying to stay the execution and operation of the
impugned order dated 28.05.2010 passed in
W.P.No.40218/2002 by the learned Single Judge of this
Hon'ble Court, pending disposal of this Writ Appeal, for the
reasons stated therein.
This Writ Appeal & Misc. W. coming on for Preliminary
Hearing this day, N.K.Patil J., delivered the following
4
:JUDGMENT:
In this appeal, appellants claiming to be the owners are assailing the correctness of the order dated 28th May 2010 passed by the learned Single Judge in W.P.No.40218/2002, wherein, the writ petition filed by them against the order dated 3rd October 2002 passed by the second respondent - Land Tribunal, Haveri, in proceeding No.LRT:OCT:SR:17: Haveri, granting occupancy rights in favour of 3rd respondent, has been dismissed by the learned Single Judge.
2. The brief facts of the case are that, all the appellants are the members of the joint family. They are the legal representatives of Smt. Neelavva, w/o Chulchanagouda Mallanagoudra. They have common grievance and none of them have sought for separate or distinct reliefs. It is the contention of the appellants that, they are the owners of lands bearing RS No. 108/1 measuring 4 acres 34 guntas and 1 acre 6 guntas out of 5 Sy.No.109/2 situate at Kulenoor, Taluk and District, Haveri.
3. It is the further case of the appellants that, one Puttappa, S/o. Basappa Venkatapur had filed Form No.7 on 23.8.1974, claiming occupancy rights in respect of the aforesaid lands. He died leaving behind his wife and daughter. Subsequently, his wife also died. However, she had adopted a son who is living. The deceased 3rd respondent one Tirakappa Basappa Venkatapur was neither the member of the family of deceased Puttappa Basappa Venkatapur nor succeeded to the estate of deceased Puttappa. Form No.7 filed by deceased Puttappa was rejected earlier by the Land Tribunal by its order dated 3.1.1979. Thereafter, 3rd respondent now deceased had filed a Writ Petition before this Court in No.11453/1983 contending that he was the tenant of lands in question and that he had been cultivating said lands for the last 40 years. The said writ petition came to be allowed on 12.8.1983 and 6 the matter has been remanded to the Land Tribunal for fresh disposal in accordance with law. After the remand, both the parties adduced their evidence before the Land Tribunal and produced some documents. The Land Tribunal by its order dated 17.3.1988 has rejected the claim of 3rd respondent. Being aggrieved by the said order, 3rd respondent has filed an appeal before the Additional Land Reforms Appellate Authority, Haveri, in LRA No.50/1988. When the said matter was pending adjudication before the Appellate Authority, in view of amendment to the Land Reforms Act, the Appellate Authority has been abolished, granting permission to the parties to file a Civil Petition before the Hon'ble High Court. Accordingly, 3rd respondent has filed C.P.No.723/1991 which was converted into writ petition No.27562/1992. The said writ petition has been allowed by this Court quashing the order passed by the Tribunal on 17.3.1988 and remanded the matter to the Land Tribunal for fresh consideration. After the 7 remand, the 2nd respondent-Land Tribunal has taken up the matter for consideration on 3rd October 2002 and after hearing the parties and after considering the material available on record, has allowed the same granting the occupancy rights in favour of 3rd respondent. Being aggrieved by the same, the appellants herein have filed a Writ Petition before this Court in W.P.No.40218/2002. The said writ petition has been dismissed by the learned Single Judge on 28th May 2010. Being aggrieved by the order passed by the learned Single Judge, the appellants have presented this appeal.
4. We have heard learned counsel for the appellants and learned Government Pleader appearing for the respondents. The contesting respondents served and unrepresented.
5. The submission of the learned counsel for the appellants, at the outset is that, 3rd respondent herein was neither the member of the family of the deceased 8 Putttappa Basappa Venkatapur nor succeeded to the estate of the deceased who claims to be the tenant and 3rd respondent is cultivating the lands in question. It is the further submission of learned counsel for appellants that, neither the lands in question are tenanted lands nor vested in the Government as on 1.3.1974. The appellants being the purchasers of the lands in question in 1972 were in possession of the said lands and as such, it is not vested in the Government as on 1.3.1974. Purchase made by the appellants is valid in the eye of law. Even the Land Tribunal has not recorded the finding of fact that the lands in question are tenanted lands as on 1.3.1974 nor the 3rd respondent has produced any documents or examined any independent witnesses to establish that the lands in question are a tenanted lands. In fact, 3rd respondent himself has appeared before the Land Tribunal and given a statement that he is not cultivating the said lands and they are cultivated by the owners of the lands in 9 question. But, the Land Tribunal without considering the statement of the deceased 3rd respondent and without conducting enquiry in strict compliance of the relevant provisions of Land Reforms Act has proceeded to conclude the proceedings registering the occupancy rights in favour of 3rd respondent. Even as on 1.3.1974 the name of tenant is not notified in the records nor it has been shown as tenanted lands. Further, he submitted that the impugned order passed by the Land Tribunal cannot be sustained and is liable to be set aside, on the ground that, as per Rule 17 of Land Reforms Rules, the Land Tribunal is bound to give substantial opportunity to the parties and this aspect of the matter has not been looked into or considered by the learned Single Judge while confirming the order passed by the Land Tribunal holding that the finding of the Land Tribunal that as on 1.3.1974 original tenant Puttappa was in occupation as tenant of the lands in question is supported by the evidence and therefore, it 10 is liable to be set aside. It is the further submitted by the learned counsel for the appellants that, late Puttappa has not at all filed Form No.7 in the year 1974 on the ground that, he is alleged to have been died in the year 1970 and therefore, the question of he filing the said application claiming occupancy rights as tenant in the year 1974 does not arise and it is liable to be rejected. But these relevant aspects of the matter have not at all been considered either by the Land Tribunal or by the learned Single Judge. Therefore, he submitted that the order passed by the Land Tribunal is liable to be set aside and consequently, the order of the learned Single Judge is also liable to be set aside and matter requires reconsideration by the Land Tribunal afresh, after affording opportunity to the appellants to cross examine 3rd respondent and other witnesses.
6. Per contra, learned Government Pleader appearing for respondent Nos. 1 and 2, inter-alia contended and substantiated the impugned order 11 passed by the Land Tribunal and confirmed by the learned Single Judge. Further he submitted that, the Land Tribunal after taking into consideration all the relevant materials available on file has recorded the finding of fact that, the lands in question are tenanted lands and vested in the Government as on 1.3.1974 and therefore, the Land Tribunal is justified in registering the occupancy rights in favour of 3rd respondent on the ground that, it is the stand of the 3rd respondent that he is the brother of the deceased and claiming his right on account of the death of the deceased Puttappa and the lands in question are cultivated by them during the lifetime of his father and that fact has been rightly considered by the Land Tribunal and confirmed by the learned Single Judge. Further, he has submitted that, Form No.7 is filed by Puttappa for the benefit of the members of the joint family. Further he submitted placing reliance on para- 6 of the order of the learned Single Judge that, the 12 learned Single Judge has extracted the relevant portion of para-3 of the averment made by 3rd respondent in W.P.No.11453/1983 as to under what circumstances he had given statement on 3.1.1979 and it has been considered by this Court as early as in the year 1983 and now it is not open to the appellants to contend, at this belated stage, that the statement made by the 3rd respondent on 3.1.1979 has to be considered, as they have not taken such a stand either before the Land Tribunal or before the Appellate Authority or before the learned Single Judge and for the first time, it has been taken before this Court and there is no proof to defend the said stand taken by the appellants and therefore, it is liable to be rejected. Further, he submitted that, learned Single Judge, after due consideration of the oral and documentary evidence has passed a well considered and well reasoned order and therefore, interference by this Court is not called for. Therefore, he submitted 13 that the appeal filed by the appellants is liable to be dismissed with costs.
7. After hearing the learned counsel for the parties, after careful evaluation of the original records available on file at threadbare and the orders passed by the Land Tribunal as well as the learned Single Judge, we do not find any error of law, much less material irregularity as such committed either by the Land Tribunal or by the learned Single Judge resulting in mis- carriage of justice as contended by the learned counsel for the appellants.
8. The undisputed facts as it emerges from the records available on file are: the deceased Puttappa has filed Form No.7 claiming registration of occupancy rights as early as on 23.8.1974, wherein, he has declared his family as himself and his wife Puttamma and their age has been shown as 60 years and 50 years respectively. He has not stated anything about his brothers or any other family members. The said 14 application filed by Puttappa had come up for consideration before the Land Tribunal. The Land Tribunal, after thorough evaluation of the records, has declined to consider his request. It could be seen from the ordersheet maintained by the Land Tribunal at red ink page No.3 running page No.265 that, when the matter was taken up for consideration on 6.1.1978, 3rd respondent was present and he has put his signature as "Thirakappa Basappa Venkatapur" which indicates that Basappa is none other than the father of the deceased 'Puttappa Basappa Venkatapur'. He continuously participated in the said proceedings and put his signatures as and when the matter was taken up for consideration. After microscopic evaluation of the original records made available by the learned Government Pleader for Respondent Nos. 1 and 2, it emerges that, as per the records of rights for the agricultural years 1966-67 to 1975-76, in Col.No.12(2), the name of "Venkatappa Thirakappa and Puttappa 15 Basappa" is shown and the same name is continued till 1975-76.
9. One more aspect that has to be borne in mind is that, in Col.No.12(3), the mode of cultivation for the agricultural years 1966-67 to 68-69 is shown as '4' and for the years 1969-70 to 1975-76 it is shown as '3', which establish beyond reasonable doubt that, late Puttappa was cultivating the said lands as tenant. When this Court has put a specific question to the counsel appearing for appellants Sri.Dayanand Bandi as to the meaning of '3' and '4' shown in Col.No.12(3) of ROR, he has answered that Mode of cultivation is shown as '1' i.e. the owner and he does not know about the significance of entry found in column 12(3). As per the Revenue Code, in column No.12(3) if it is shown as '4' and '3', it means that the lands are cultivated by the tenant. This aspect proves beyond reasonable doubt that lands in question are tenanted lands. In fact, the Land Reforms Act came into force in the year 1961, 16 there was an amendment to the said Act in the year 1965 and further amendment in the year 1974-75. As per the statute, all the tenanted lands vest in the Government as on 1.3.1974. In the instant case also, after microscopic evaluation of the records available on file, particularly, the certified copies of record of rights which are issued by the competent authority, we are of the considered view that, in fact, the lands in question are shown as tenanted lands since 1966-67 till 1974- 75, which establishes beyond reasonable doubt that lands in question are tenanted lands. It is the case of the appellants that they have purchased the lands in the year 1972 without verifying the title of the previous vendor. When there is a total bar for purchase, the sale deed obtained from the vendor of the lands who does not possess any title in respect of the lands in question is nullity in the eye of law.
10. Further it is significant to note that, when this Court has put a specific question to the counsel for the 17 appellants as to whether the names of the appellants are entered in the record of rights after they purchased the same, he is unable to answer the same because he has no information nor any piece of documentary evidence such as, mutation certificate issued by the competent authority to show that, after purchase, their names have been entered in ROR either before the Land Tribunal or before the Appellate Authority or before this Court, which shows that he has no evidence to show that he is cultivating the land in question.
11. Further, learned counsel for the appellants submitted that, the Land Tribunal alone has got right to record a finding of fact that, lands in question are tenanted lands as on 1.3.1974. This submission cannot be accepted for the reason that, in fact, the Land Tribunal has specifically recorded the finding of fact in the order impugned by stating that the name of the 3rd respondent has been shown as tenant in Col.No.12(2) and (3) and as per Section 44 of the Land reforms Act, 18 all the tenanted lands vest with government as on 1.3.1974. The reasoning and finding given by the Land Tribunal has been rightly appreciated and accepted by the learned Single Judge in para-10 of the order holding that, the Tribunal has recorded a finding of fact that as on 1.3.1974 original tenant Puttappa was in occupation as tenant of the lands in question is supported by the evidence and therefore, there is no justifiable ground to interfere with the same. Further, as rightly pointed out by the learned Government Pleader for respondents, learned counsel for the appellants has placed reliance on the statement/evidence given by the 3rd respondent on 3.1.1979 wherein, he has admitted that he is not cultivating the said lands and his owner is cultivating and that aspect has been considered by the learned Single Judge in para-6 of his order by extracting the statements made in para-3 of the writ petition No.11453/1983 and allowed the said writ petition by 19 his order dated 12.8.1983 and remanded the matter back to the Land Tribunal for fresh disposal, in accordance with law, after affording opportunity to both the parties to adduce evidence. Though this Court in the order has not made any reference as to under what circumstances, the 3rd respondent has made the statement as per Annexure-D, it has directed the Land Tribunal to record fresh evidence by setting aside the order of the Land Tribunal. Therefore, the appellants cannot press into service the statement of 3rd respondent made earlier.
12. One more aspect to be borne in mind as rightly pointed out by the learned Government Pleader appearing for respondents 1 & 2 is that, 3rd respondent has given his detailed evidence in the year 1988. When the matter was remanded, liberty was given to the appellants to cross examine him. Though they have examined him elaborately and extensively, nothing has been elicited in his cross examination. The 20 said statement recorded by the Land Tribunal on 18.2.1988 is very much available in the original records at ink page No.417. Therefore, the submission made by the learned counsel for the appellants that the Tribunal has not taken into consideration the evidence does not hold any water. Taking all these factors into consideration, we are of the considered view that the Land Tribunal is justified in holding that the lands in question are tenanted lands as on 1.3.1974 and vest in the Government and that 3rd respondent has established that he is the legal heir and his deceased brother was cultivating the said lands being the kartha of the joint family. It is not in dispute that, at no point of time, 3rd respondent has taken such a stand except stating that he is in no way connected to the family and the said statement cannot be accepted for the reason that he has appeared before the Land Tribunal and put his signature in the order sheet maintained by the Land Tribunal as and when the matter was taken up for consideration. Taking all these aspects into consideration and the totality of the case in hand, we do not find any error or illegality, much less 21 material irregularity as such committed by the Land Tribunal and the learned Single Judge. Nor the appellants have made out any case to interfere with the well considered order passed by the Land Tribunal which has been confirmed by the learned Single Judge.
13. Hence, the writ appeal filed by the appellants is dismissed, confirming the order passed by the Land Tribunal as well as the order passed by the learned Single Judge.
14. In view of dismissal of the writ appeal on merits, the prayer sought in Misc.W.61954/2010 does not survive for consideration. Hence, it is dismissed as having become infructuous. Ordered accordingly.
Sd/-
JUDGE Sd/-
JUDGE tsn*