Karnataka High Court
Sri Frank Martin Lobo vs The State Of Karnataka on 10 July, 2012
Author: Huluvadi G.Ramesh
Bench: Huluvadi G Ramesh
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 10th day of July, 2012
Before
THE HON'BLE MR JUSTICE HULUVADI G RAMESH
Writ Petition 12680 / 2008 (LR)
Between
1 Sri Frank Martin Lobo, 76 yrs
2 Sri Gerald Joseph Lobo, 67 yrs
Both are S/o late Henry Joseph Lobo
and are r/a Sangeeth Vihar
Near Bijai Church, Mangalore Petitioners
(By Sri Pundikai Ishwara Bhat, Adv.)
And
1 State of Karnataka - by its Secretary
Dept. of Revenue, M S Bldg., Bangalore
2 Land Tribunal, Mangalore
By its Chairman
3 Smt K Jalajakshi W/o Sheena Kottari
R/near National Tile Works
Boloor, Mangalore Respondents
(By Sri Shashidar S Karmadi, GP for R1-2;
Sri V R Prasanna, Adv. for R3)
2
The Writ Petition is filed under Art.226/227 of the Constitution praying to
quash the order dated 22.1.1981 - annexure A by the Land Tribunal, Mangalore.
The Writ Petition having been reserved for Orders on 5th July, 2012, the
Court made the following:
ORDER
Petitioners are before this Court aggrieved by the order of the Land Tribunal, Mangalore at annexure A dated 22.1.1981.
It is the petitioners' case, their father had purchased the mooli right from one Duggaiah Hengsu under a registered sale deed dated 27.7.1945 in respect of TS 762/3 and 761/2 totally measuring 1.17 acres and he has been in possession and enjoyment pursuant thereto. According to the petitioners, these properties are situate in Mangalore City and are non-agricultural properties. The 3 rd respondent's father Venkappa Kotari purchased moolgeni right in respect of eastern portion of T S 761/2 measuring 29 cents from the earlier moolgeni tenant Jokim D'Mello and his sons under registered deed on 30.5.1958. It is also stated, petitioners' father was running a tile factory in Mangalore City and the moolganidhar Venkappa Kotari was a tile factory contractor and both of them are not agriculturists but businessmen by profession. After the death of Henry Joseph Lobo during 1979, petitioners have been enjoying the properties. Likewise, after the death of original moolgeni tenant Venkappa Kotari, the 3rd respondent is 3 enjoying the property. It is stated, the property situate within Mangalore City Corporation is a non-agricultural property and the RTC also stands in the name of the petitioners' father.
Meanwhile, during 1979, the 3rd respondent filed Form 7 claiming occupancy right in respect of TS 761/2 measuring 29 cents on the ground that she has been cultivating the land as tenant since twenty two years. The Land Tribunal without holding inquiry and without notice to the petitioners granted occupancy right in favour of the 3rd respondent on 22.1.1981 - annexure A. The father of the petitioners was shown as the landlord and in the order of the Tribunal there is a reference that the landlord is dead. However, without impleading the legal heirs i.e., the petitioners, occupancy rights have been granted. Accordingly, it is contended by the petitioners that the order passed is against a dead person and a nullity in the eye of law. There was no notice issued on the legal heirs and they were not brought on record. There are no reasons assigned to come to a conclusion that the land in question is an agricultural land and there is no enquiry conducted. They were also not aware of the order of the Land Tribunal. Only when they secured the copy of the RTC extract during 2008 wherein the name of 3rd respondent was mutated pursuant to the order of the Land Tribunal, they came to know of the impugned order. Hence, they are before this Court assailing the 4 order of the Land Tribunal, Mangalore, on various grounds.
Heard the counsel representing the parties.
It is the submission of the counsel representing the contesting respondent that there is sufficient notice and mere carrying out activity other than agriculture for livelihood cannot be treated so as to hold that respondent is not an agriculturist and property is not agricultural property. The notice sent to the father of the petitioners came returned with an endorsement on 28.10.1980 that Henry Joseph Lobo died and notice issued to the legal representatives was returned as 'refused' on 21.11.1980 and the Land Tribunal having inquired into the material available on record, rightly rejected the claim of the petitioners.
In the detail statement of objections filed, it is stated, impugned order is of the year 1981 and petition is filed in the year 1008. The father of the petitioners had purchased the mooli right in respect of two properties which measures about 1.17 acres out of two survey numbers during 1945. It is contended that though the property is situate in the Town limits, land in question itself is classified as bhagayat and they are agriculture in nature as on 1.3.1974 and the father of the 3rd respondent purchased mulgeni right in respect of 29 cents 5 in TS 761/2 under a registered sale deed dated 30.5.1958. Though the father of the respondent was doing business as a contractor but not only that, he was also looking after agricultural property. Petitioners had not produced any death extract to prove the death of the father on 11.7.1979. It is also contended, petitioners virtually admitted possession of the 3rd respondent and as on 1.3.1974, it had been a bhagayat land and accordingly, counsel has sought for dismissal of the petition.
It is seen the order of the Land Tribunal is of the year 1981. Respondent is shown to have purchased the mulgeni rights to an extent of 29 cents under a sale deed dated 30.5.1958. The petitioners' father appears to be the purchaser of mooli rights to the extent of 1.17 acres during 1945 July. There is an entry in the record of rights that the land in question is bhagayat land. The prime contention of the petitioners is, they were not served with notice and apart from that, the land is situate in the heart of the City of Mangalore and it is not the survey number but TS number is given and the land has lost the character of agriculture.
The fact that respondent's father was a mulgeni right holder is shown to be indirectly admitted. More over land is shown as bhagayat as per the revenue records and it cannot be held to be a non-agricultural land. On the death of the father of the petitioners, there appears to be notice issued to the petitioners 6 themselves which has returned with an endorsement 'refused'. Though the order is passed by the Tribunal without bringing the legal heirs on record, but before passing the said order, notice is shown to be served on the petitioners to represent their father, which was refused. In the circumstances, it has to be treated that there is substitution and sufficient notice. Further more, the petitioners did not make any attempt to come before this Court till 2008 and now they plead that the order is against a dead person. More than anything else, there is delay and laches on the part of the petitioners in approaching this Court which has not been properly explained.
In the circumstances, petition being devoid of merit, accordingly is dismissed.
Sd/-
Judge an