Karnataka High Court
H R Sathyanarayana vs The State Of Karnataka By Its Secretary on 14 December, 2021
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE R. NATARAJ
WRIT PETITION NO.27115 OF 2012 (LR)
BETWEEN:
H.R. SATHYANARAYANA
S/O RAMANAIAK,
AGED ABOUT 50 YEARS,
R/O HARADAVALLI VILLAGE,
BHAVIKAISARU POST,
THIRTHAHALLI TALUK,
SHIMOGA DISTRICT
...PETITIONER
(BY SRI K.N. NITISH, ADVOCATE FOR SRI K.V. NARASIMHAN,
ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY ITS SECRETARY,
DEPARTMENT OF REVENUE,
VIDHANA SOUDHA,
BANGALORE-1
2. THE DEPUTY COMMISSIONER
SHIMOGA DISTRICT, SHIMOGA
3. SMT. NAGARATHNAMMA,
D/O LATE HIRIYANAIK
AGE: MAJOR,
R/O HARADAVALLI VILLAGE,
BHAVIKAISARU POST,
THIRTHAHALLI TALUK,
SHIMOGA DISTRICT
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4. H.D. SURENDRA GOWDA
S/O DASAIAH GOWDA,
MAJOR,
R/O KANASIMAKATTE
HOLEHONNA HOBLI,
BHADRAVATHI TALUK,
SHIMOGA DISTRICT
SINCE DEAD BY HIS LR.
4(a) MR. NAVEEN CHANDRA,
S/O LATE H.D. SURENDRA GOWDA,
AGED ABOUT 60 YEARS, Amendment carried
R/O KACHINAKATE, out as per Court order
dated 15.10.2015
SIDNIPURE POST,
BHADRAVATHI TALUK,
SHIMOGA DISTRICT.
5. THE LAND TRIBUNAL
THIRTHAHALLI TALUK,
SHIMOGA DISTRICT
BY ITS SECRETARY
6. THE TAHSILDAR Impleaded as per
THIRTHAHALLI TALUK, Court order dated
15.10.2015
SHIMOGA DISTRICT.
...RESPONDENTS
(BY SRI. A.R. SRINIVAS, ADDITIONAL GOVERNMENT ADVOCATE
FOR RESPONDENT NOS.1, 2, 5 AND 6
SRI L. SRINIVASA BABU, ADVOCATE FOR CAVEATOR /
RESPONDENT NO.3
RESPONDENT NO.4(a) IS SERVED AND UNREPRESENTED)
THIS PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 19.07.2012 PASSED BY THE RESPONDENT NO.5
IN CASE NO.L.R.T.(INAM) A.G.R.VRP.32/81-82 PASSED BY THE
RESPONDENT NO.5 VIDE ANNEXURE-G AND ETC.
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THIS PETITION COMING ON FOR 'DICTATING ORDER'
THIS DAY, THE COURT PASSED THE FOLLOWING:
ORDER
The petitioner has challenged the Order dated 19.07.2012 passed by the respondent No.5 in case No.LRT(Inam).AGR.VRP.32/81-82 (Annexure 'G' to the petition).
2. The father of the petitioner was allegedly a tenant in possession and cultivation of the land bearing Sy. No.53/2 measuring 13 guntas situated at Virupapura village, Thirthahalli Taluk, Shivamogga District, which was an emolument to an inam. His name was entered in the revenue records from the year 1969 till 1975. After his father's death, the petitioner alleged that he was cultivating the land in question. The petitioner claims that he filed Form No.1 as prescribed under the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954 (henceforth referred to as 'the Act of 1954') while the respondent No.3, the daughter of the petitioner's uncle, had also filed an application in Form No.1 on the ground 4 that her father was cultivating the land. The petitioner claimed that respondent No.3 herein and her sister filed O.S. No.701/1980 before the Court of Prl. Munsiff, Shimoga, claiming that they were the owners of 13 guntas of land in the aforesaid survey number and the said suit was transferred to the Court of Munsiff at Thirthahalli and was renumbered as O.S. No.213/1982. The petitioner claimed that a deed of relinquishment dated 19.03.1984 was executed by the respondent No.3 and her sister, Smt. Soubhagya, in favour of the petitioner herein and his brother, Sri H.R. Purushotham, relinquishing their rights in respect of the properties mentioned therein. Hence, the suit filed by her in O.S. No.213/1982 was not pursued and was dismissed for non-prosecution on 02.07.1984.
3. Per contra, the respondent No.3 herein claimed that her father was cultivating the land and after his death, the father of petitioner managed to get his name entered in the revenue records. She alleged that it was she who was entitled to be registered as an occupant. 5
4. The case of the petitioner as well as the respondent No.3 came up for consideration before the Land Tribunal, Thirthahalli Taluk, (henceforth referred to as 'the Tribunal') under the Act of 1954. The Tribunal by its Order dated 07.07.1982, granted occupancy rights jointly in favour of the petitioner herein and the respondent No.3 herein and her sister - Smt. Soubhagya. Since the respondent No.3 had relinquished her right, title and interest over the land in question, the petitioner challenged the said order of the Tribunal before this Court in W.P. No.3237/1983. This Court in terms of the Order dated 27.11.1984, allowed the writ petition and set aside the order of grant dated 07.07.1982 passed by the Tribunal and remanded the case back to the Tribunal for fresh disposal after holding a common enquiry in strict compliance with the requirements of Rule 17 of Karnataka Land Reforms Rules, 1974 (henceforth referred to as 'the Rules of 1974'). Even after the remand, the Tribunal passed an order dated 30.09.1992 registering the respondent No.3 herein as the occupant in respect of the 6 land in question and dismissed the application filed by the petitioner herein. This again was challenged by the petitioner before this Court in W.P. No.33689/1992. This Court in terms of the Order dated 26.08.1999, set aside the Order dated 30.09.1992 passed by the Tribunal and directed the Tribunal to take into consideration the relinquishment deed executed by the respondent No.3 herein in favour of the petitioner herein and remitted the case back to the Tribunal for consideration of objections raised by the parties. Thereafter, Deputy Commissioner, Shivamogga District, took up the case and framed 3 points including point No.2 relating to relinquishment deed executed by the respondent No.3 herein and recorded her statement who claimed that she had not executed the relinquishment deed in respect of the land bearing Sy. No.53/2 and had not received any amount. The Deputy Commissioner by Order dated 21.06.2003, dismissed the application in Form No.1 filed by the petitioner herein and registered the respondent No.3 herein as the occupant in respect of the land in question. The said order of the 7 Deputy Commissioner was challenged by the petitioner herein before the Karnataka Appellate Tribunal (for short, 'the KAT') in Appeal No.801/2003. The KAT by its order dated 26.02.2008, dismissed the appeal. Being aggrieved by the said order of the Deputy Commissioner as well as the KAT, the petitioner herein preferred writ petition in W.P. No.4677/2008 before this Court. This Court in terms of the Order dated 17.04.2008 held as follows:
"The tenanted property is 13 guntas of land in Sy.No.53/2. According to the petitioner, there is also a release deed executed in his favour in respect of tenancy rights and also other properties which the respondent challenged and this Court by order dated 26.11.1999 had directed reconsideration of the matter by the Tribunal. Meanwhile, it appears on the point of jurisdiction a decision has been rendered wherein it is clarified by the Supreme Court in the case of M.B.Ramachandran Vs Gowramma & Ors - AIR 2005 SC 751 that where the property in question comes under the Personal and Miscellaneous Inams Abolition Act, it is the subject matter before the Tribunal and not before the Deputy Commissioner and the Deputy Commissioner's jurisdiction is in 8 respect of Religious & Charitable Inams Abolition Act.
However, despite the direction by this Court the matter was being dealt by the Deputy Commissioner which is a non-est order against which the Appellate Tribunal has also passed an order which is also non-est. It is the specific case of the petitioner that he is in possession of the tenanted land and is cultivating personally by virtue of the release deed executed. That apart, the question of jurisdiction has also to be considered.
In that view of the matter, the impugned order is quashed. Matter is remanded to the Land Tribunal for disposal in accordance with law. All contentions are left open."
Following the above, the Tribunal has again passed an Order registering the respondent No.3 herein as the occupant of the land in question in terms of the Order dated 19.07.2012.
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5. Being aggrieved by the Order dated 19.07.2012 passed by the Tribunal, the present writ petition is filed.
6. The learned counsel for the petitioner submitted that despite the Orders dated 26.08.1999 and 17.04.2008 passed by this Court in W.P. No.33689/1992 and W.P. No.4677/2008 respectively, the Tribunal erred in holding that the petitioner herein had not established his tenancy over the land in question. The Tribunal also held that it had no jurisdiction to decide upon the legality of the release deed allegedly executed by the respondent No.3 herein in favour of the petitioner herein concerning the land in question. The learned counsel for the petitioner invited the attention of this Court to the records of the Tribunal and contended that the revenue records relating to 13 guntas in Sy. No.53/2 stood in the name of Ramanaik, the father of the petitioner herein, and contended that there was ample documentary evidence to establish that it was he, who was cultivating the land as on 10 the date prior to the vesting of the land in the State. He invited the attention of this Court to the RTC extract for the years 1969-70 up to 1973-74 which indicated the name of the Petitioner's father, Ramanaika, as the person in occupation of 13 guntas of land in Sy. No.53/2. He contended that in view of the presumption attached to these entries under Section 133 of The Karnataka Land Revenue Act, 1964, the same was liable to be considered seriously. He contended that the respondent No.3 herein had not produced any documents to establish that her father was in possession and cultivation of the land in question prior to the date of vesting of the said land in the State. He contended that as per the plaint filed by Smt. respondent No.3 and her sister in O.S.No.213/1982, the age of the respondent No.3 herein as on the appointed date was 10 years and therefore, she could not have cultivated the land as on 01.03.1974. He submitted that the evidence of Smt. Lalithamma (PW.1) was not reliable as she categorically stated that she and the petitioner herein were not in good terms. He further submitted that 11 the respondent No.3 had executed a deed of relinquishment relating to 13 guntas of land in Sy. No.53/2 and therefore, the Tribunal was bound to consider the said question and pass appropriate orders. He also contended that one of the members of the Tribunal noted his dissent stating that the name of the father of petitioner herein was found in the revenue records from the year 1950 to 1984 and that the occupancy rights were granted to respondent No.3 herein without hearing the petitioner herein. He contended that the impugned order was therefore mala fide and driven by prejudice against the petitioner. He further claimed that the suit filed by the respondent No.3 and her sister for declaration of her title in O.S.No.213/1982 was dismissed and no steps were taken for restoration of the suit. Thus he contended that the respondent No.3 had acquiesced the lawful execution of the release deed as it was not challenged. Even otherwise, he contended that there was a presumption regarding the lawful execution of the release deed. In this regard, he relied upon the Judgment of the Hon'ble Supreme Court in 12 Prem Singh and others vs. Birbal and others [2006 (5) SCC 353]. He also contended that the Tribunal did not conduct the proceedings as prescribed under Section 17(5) of the Rules of 1974, as the evidence was not properly appreciated and that the impugned Order was not a speaking order as the basis for grant of occupancy rights in the earlier rounds, that was set aside by this Court, was taken into consideration while passing the impugned order. He also claimed that the proceedings conducted by the Tribunal were not regular.
7. Per contra, the learned counsel for the respondent No.3 submitted that it was the father of the respondent No.3, who was in possession of the land in question prior to the date of its vesting in the State. He invited the attention of this Court to the revenue records which indicated that her father's name was found in respect of 13 guntas of land in Sy. No.53/2 which was later on rounded off and the name of the father of the petitioner herein was entered. He also claimed that after 13 the death of the father of the respondent No.3, the name of the petitioner's father was entered. He contended that respondent No.3 was under the care and control of the petitioner and his family members as she was an orphan at that point in time. It is further claimed that the sister-in- law of the petitioner deposed that it was the father of the respondent No.3 who was cultivating the land prior to its vesting and the same was supported by the evidence of a witness named Ramappa Naik. He further contended that the release deed was not executed by the respondent No.3 in respect of Sy. No.53/2 and the release deed dated 19.03.1984 was tampered to insert Sy.No.53/2 by hand. The said tampering by hand was not countersigned by the petitioner as well as by the respondent No.3. He claimed that the respondent No.3 did not possess any right to release her interest in Sy.No.53/2 and she could not have done so after the land had vested in the State. He relied on the Judgment of a Coordinate bench of this Court in Shambhu Eshwar Hegde vs. Land Tribunal Kumta and Another [(1979) 2 Kant LJ 194]. He submitted that 14 the majority of the members constituting the Tribunal had resolved to register respondent No.3 as on occupant and therefore if one of the members dissented, it did not really matter. In this regard, he relied on the Judgment of this Court in V.Virupakshappa vs. D. Hanumanthappa and others [AIR 1978 KAR 131].
8. In reply, the learned counsel for the petitioner submitted that the certified copy of the release deed was also produced before the Tribunal which proved that there was no tampering. He also claimed that the respondent No.3 had relinquished her share in the land in Sy. No.53/2 and therefore, there was nothing amiss about the transaction between the petitioner and the respondent No.3. He submitted that since this Court had directed the Tribunal to consider the effect of release deed on the rights of the petitioner as well as the respondent No.3, it was incumbent upon the Tribunal to record a finding on the same and to dispose off the application in accordance with law.
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9. I have considered the submissions made by the learned counsel for the petitioner and the learned counsel for the contesting respondents. Perused the records including the original records of the Tribunal produced by the learned Additional Government Advocate.
10. It is not in dispute that the land bearing Sy. No.53/2 is a Brahmadeya inam land, which is governed under the provisions of the Act of 1954. The respondent No.3 herein and her sister filed an application in Form No.1 on 30.03.1981 for grant of occupancy rights in certain lands including 13 guntas in Sy. No.53/2. The records of the Tribunal discloses that the petitioner had filed two applications for grant of occupancy rights, the first one was filed on 21.05.1977 seeking grant of occupancy rights in respect of 04 guntas in Sy. No.52 and 08 guntas in Sy. No.53 and another application was filed on 27.10.1980 seeking grant of land measuring 01 Acre in Sy. No.53/2 and 02 Acres 24 guntas in Sy. No.111. He later gave a statement before the Tribunal on 07.07.1982 stating that 16 he is not interested to pursue the claim in respect of land measuring 04 guntas in Sy. No.52 and 02 Acres 24 guntas in Sy. No.111. In so far as Sy. No.53/2 is concerned, the petitioner herein restricted his claim for grant of occupancy rights in respect of 13 guntas of the said land. The Tribunal therefore restricted the claim of the petitioner to the land measuring 0-13 guntas in Sy. No.53/2. After the Order of the Tribunal was set side by this Court in W.P.No.3237/1983, the respondent No.3 herein was examined and she marked the pahani register extract for the year 1962-63 which showed the name of Sri Hiriyanna Naika in respect of 0-13 guntas of land in Sy.No.53/2. She examined two witnesses (Sri Ramappa Naika and her co- sister Smt. Lalithamma). The Tribunal recorded the evidence of the petitioner on 02.07.1992. He examined the scribe of the release deed (Sri Shivaramaiah. T.R.) as a witness. He marked documents as Exs.D1 to D8 which are as follows:
Ex.D1 Statement of Smt.Soubhagya,
sister of Respondent No.3
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Ex.D2 Release deed dated
19.03.1984
Ex.D3 Order sheet in
O.S.No.213/1982
Ex.D4 Copy of plaint in O.S.
No.213/1982
Ex.D5 Written statement in O.S.
No.213/1982
Ex.D6 Issues
Ex.D7 Pahani from 1969-70 to 1973-
74 in respect of land in Sy.
No.53/2
Ex.D8 Certified copy of release deed
11. The oral and documentary evidence on record unmistakably demonstrated that the father of petitioner and father of respondent No.3 were brothers. The pahani extract at Ex.P1 indicates that the father of respondent No.3 was cultivating the land in question during the year 1962-63. The pahani extracts for the years 1961-62, 1963-64 and 1964-65 which are part of the record of the Tribunal indicates that it was the father of respondent No.3 who was cultivating the land in question. The claim of respondent No.3 that this land fell to the share of her 18 father at a partition between his brother is probable. The petitioner in his evidence admitted the fact that the father of respondent No.3 predeceased his father and this explains how the name of the father of petitioner was entered in the revenue records at Ex.D.7 for the years 1969-70 to 1973-74. The evidence of the two witnesses examined by respondent No.3 corroborate this fact, although Smt.Lalithamma claimed that she was not in good terms with petitioner. Curiously, the petitioner himself marked the Statement dated 07.07.1982 given by the sister of respondent No.3 herein before the Tribunal where she insisted for the grant of occupancy rights in her favour in respect of land measuring 13 guntas in Sy.No.53/2. It is therefore, clear that the father of the petitioner was cultivating the land in Sy.No.53/2 on behalf of the respondent No.3 and her sister, as their father and mother had expired by that time and were in the care and control of the petitioner's father. The very fact that the petitioner set up a release deed in respect of the land in Sy. No.53/2 would indicate that the respondent No.3 had 19 some subsisting right, title and interest therein. The Tribunal after perusing the evidence of the parties as well as the witnesses, took into account the contention of the respondent No.3 herein that she had not executed any release deed in respect of the land in Sy. No.53/2, and rightly held that it cannot render any finding about the execution of the release deed by the respondent No.3 and her sister in favour of the petitioner.
12. It is relevant to note that after vesting of the land in Sy.No.53/2 in the State, the petitioner claims that the respondent No.3 had executed a release deed, even before she was granted any rights by the Tribunal or other authority. The respondent No.3 denied that she had released her right in the land in Sy.No.53/2 and contended that as on that date she was a minor.
13. The question whether the respondent No.3 and her sister had executed a release deed dated 19.03.1984 in respect of land in Sy.No.53/2 or not and whether the release deed was tampered to incorporate Sy.No.53/2 or 20 not were all questions which were beyond the jurisdiction of the Tribunal and therefore, the Tribunal was justified in rejecting the application of the petitioner and registering the respondent No.3 as the occupant in respect of the land in question. The contention of the petitioner that the Tribunal failed to follow the procedure under Rule 17 of the Rules of 1974 is raised, only to be rejected as the petitioner was given all opportunity to lead evidence, mark documentary evidence. Even otherwise, this Court in W.P.No.4677/2008 had directed the Tribunal to consider the effect of the release deed on the claim of the respondent No.3 and whether it advanced the case of the petitioner in any manner. Except claiming that the respondent No.3 had executed a release deed, the petitioner did not produce any material to show that it was not the father of the respondent No.3 who was cultivating the land in question, but it was his father who was cultivating the same prior to its vesting in the State. Therefore, the Tribunal had conducted the proceedings in accordance with Rule 17 of the Rules of 1974. 21
14. The contention of the petitioner that the suit in O.S. No.213/1982 before the Court of Munsiff, Thirthahalli, by the respondent No.3 and her sister for declaration of their title to the land bearing Sy. No.53/2 measuring 13 guntas was dismissed for non-prosecution on 02.07.1984 has no bearing on the fact of the case, as the Tribunal was vested with the task to find out as to who was entitled to be registered as an occupant of the land in question.
In that view of the matter, this Writ Petition lacks merit and the same is dismissed. The original records secured and produced by the learned Additional Government are returned to him.
The pending I.A. stands disposed off.
Sd/-
JUDGE sma