Karnataka High Court
Hasanasab Allasaheb Pedari vs State Of Karnataka By Its Secy To The Dept ... on 11 December, 2013
Author: Ravi Malimath
Bench: Ravi Malimath
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
ON THE 11TH DAY OF DECEMBER 2013
BEFORE
THE HON'BLE MR.JUSTICE RAVI MALIMATH
WRIT PETITION NO.14046/2003 (LR)
BETWEEN:
1. HASANSAB ALLASAHEB PEDARI.
2. HUSSAINSAB ALLASAAHEB PENDARI.
SINCE EXPIRED HIS LEGAL HEIRS:
2.A. ASHABHI HUSSAINSAB PENDARI.
2.B. IQUBAL SAB HUSSAINSAB PENDARI.
2.C. BASHIRAHAMED HUAASAINSAB PENDARI.
S/O. HUSSAINSAB.
2.D. ABDULSAB HUAASAINSAB PENDARI.
2.E. SMT. RASHIDA BEGUM H. TINNWALE,
D/O. HUSSAINSAB.
2.F. SMT. JARINA BEGUM S. GABBUR.
2.G. RAMEJA BEGUM H. PENDAR,
D/O. HUSSAINSAB.
ALL ARE RESIDING NEAR
KANNADA SCHOOL NO.12,
SAPTAPUR, DHARWAD. ...PETITIONERS
(BY SRI G.B.GIRADDI, ADV.)
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AND:
1. STATE OF KARNATAKA
BY ITS SECY TO THE
DEPT OF REVENUE,
VIDHANA SOUDHA
BANGALORE
2. CHAIRMAN,
LAND TRIBUNAL, DHARWAD
3. ARUN M. SATHE
SINCE EXPIRED HIS LEGAL HEIRS
3.A. SAROJA ARUN SATHE,
AGE: 59 YEARS, OCC. PENSIONER.
R/O. 8TH CROSS, SAPTAPUR,
DHARWAD.
3.B. RESHMA D/O. ARUN SATHE,
AGE: 36 YEARS,
OCC. PRIVATE SERVICE,
R/O. 8TH CROSS,
SAPTAPUR, DHARWAD. ...RESPONDENTS
(BY SRI VINAYAK S. KULKARNI, HCGP FOR R1 AND R2,
SRI SACHIN S. MAGADUM, ADV. FOR R-3.A AND R-3.B)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
& 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DT. 4-3-2002 PASSED BY THE LAND
TRIBUNAL, DHARWAD VIDE ANNEXURE - L.
THIS WRIT PETITION COMING ON FOR FINAL
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners claim to be tenants of the land situated in Block No.249 measuring 19 acres 20 guntas at Kelageri Village, Taluk and District Dharwad, since :3: 1961. That along with their father they were tenants of the said land. That they were paying rents as well as crop share. That the record of rights were in the name of the 3rd respondent as a consequence to the partition affected in their family.
2. On coming into force of the amended Land Reforms Act, the petitioners filed Form No.7, seeking grant of occupancy rights. The Tribunal rejected the said plea by the order dated 26.12.1981. The same was questioned in a Writ Petition before the Hon'ble High Court, wherein the order was set aside and the matter was remanded. On the second occasion, the Tribunal granted occupancy rights by its order dated 13.11.1992. The same was challenged by the 3rd respondent landlord in Writ Petition No.2346/1993. The same was allowed. The order of the Land Tribunal was set aside and the matter was remanded for a fresh enquiry. Evidence was led in before the Tribunal. Spot inspection was conducted. Thereafter, by the impugned order, the plea :4: of the petitioners - tenants was rejected. Hence, the present petition.
3. Learned counsel for the petitioners contends that the impugned order is bad in law and liable to be set aside. That the Tribunal failed to consider the true scope of the case of the petitioners - tenants. That even thought the record of rights stand in the name of the landlords, ever since 1961 onwards, the same is opposed to law. The landlords entered into an agreement of sale dated 17.06.1976 in favour of the petitioners. Therein it was admitted by them that the tenants have been cultivating the land prior to 1961. Therefore, this itself is sufficient to hold that the petitioners are tenants of the land in question. It is further contended that the petitioners filed a suit seeking specific performance of the said agreement. The suit was decreed. Aggrieved by the same, the defendants filed R.A. No.78/2004, which was dismissed. Aggrieved by the same, the defendants have filed R.S.A. No.5333/2009, which is pending adjudication before :5: the High Court. It is therefore pleaded that the petition be allowed and the order of the Land Tribunal be set aside and occupancy rights be granted.
4. On the other hand, Shri Sachin S. Magadum, learned counsel appearing for the respondents - landlords defends the impugned order. He contends that there is no error committed by the Land Tribunal that calls for any interference. That the records of right admittedly stand in the name of the landlords, since the year 1961. That the agreement of sale is dated 17.06.1976. It is much subsequent to the cutoff date. Therefore, no right could be claimed by the tenants. That the declaration made by the petitioners in the Form No.7 filed by them dated 26.08.1974 does not refer to the present land. It is with reference to the another land. The second Form No.7 is filed in the year 1979, which shows the present land. Therefore, such an erroneous declaration cannot be considered by the Tribunal. It is further pleaded that the evidence of the tenants themselves would disentitle them for any relief. :6:
5. Learned Government Pleader supports the impugned order. Heard learned counsels and examined the records.
6. The admitted facts are that the name of the landlord is entered in the record of rights, ever since the year 1961 onwards. An agreement of sale has been affected by the vendor, the landlord, in favour of the tenants dated 17.06.1976. The suit was decreed and is presently under challenge in R.S.A. No.5333/2009 before this Court. The contention of the petitioners - tenants is that the reading of the agreement to sale itself, would show that he is been possession of the land in question, as tenants, 20 years prior to that date. The date of agreement is 17.06.1976. Therefore, the tenants were in possession ever since 1956. Therefore, this clause itself is sufficient to hold that the tenants are in possession of the land in question. So far as the agreement is concerned, I'am of the considered view that the same would not be of any assistance to the tenants. Even assuming that the suit is decreed, the :7: same would be to the affect of executing the sale deed. The agreement has been entered into on 17.06.1976. In order to claim occupancy rights, the tenants would have to show that they are the tenants in cultivation of the land in question as on 01.03.1974. As on 01.03.1974, the agreement to sell did not exist. Therefore, the tenants would have to establish their tenancy as on the relevant date and not under the agreement to sell. Therefore, even assuming the suit is to be decreed, it could only be decreed to the extent of executing the agreement of sale dated 17.06.1976. It would not have any bearing on the right of the tenants claiming occupancy rights, as tenants, as on 01.03.1974. Therefore, it is only the rights of the purchaser, so far as agreement to sell is concerned, which would be finally determined in the judgment to be passed in R.S.A. No.5333/2009.
7. The landlords contend that two applications were made by the tenants under Form No.7 claiming occupancy rights. The first application is dated :8: 26.08.1974 with respect to Block No.258 of Kelageri village. The landlord is shown as one Shantaveerappa Mensinkai. Thereafter, in the year 1979 the instant Form No.7 has been filed by the very petitioners, seeking grant of occupancy rights in Block No.249, by showing the name of the respondent No.3 as the landlord. Therefore, there are two lands with two different landlords. The contention of the landlord is that when a declaration is made, the same should contain the list of all the lands that the tenants cultivate as tenants. They cannot make piecemeal applications. The first application shows that they are tenants in Block No.258. There is no reference to the instant schedule land. Therefore, he pleads that the second application requires to be rejected on that ground.
8. On hearing learned counsels, I'am of the considered view that the said contention of the landlords requires to be accepted.
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9. This Hon'ble Court in the judgment reported in ILR 2000 KAR 3170 (Parameshwar Timmayya Hegde vs. Venkataraman Manjappa Hegde since deceased by hi LRs and Others), were concerned with the very question herein. Reliance was placed on the order dated 18.07.1983 passed in Writ Petition No.31/1989, wherein it was held that Form No.7 would have to confirm with Rule 19, to the effect that every applicant is to state in the application the particulars of all lands held by him including the land held by any member of his family etc. In so relying, the learned Single Judge in Parameshwar's case held that the principle of Order 2 Rule 2 CPC is applicable and therefore, the second Form No.7 is liable to be rejected. Therefore, it was of the view that the procedure adopted by the Land Tribunal in entertaining the second Form No.7 and considering it, is highly irregular. Order 2 Rule 2 postulates that every suit shall include the whole claim, however, the plaintiff may relinquish any portion of his claim. In the instant case, the first Form No.7 does not include the : 10 : schedule lands herein. Rule 19 of the Karnataka Land Reforms Rules would state that the application should contain particulars of all lands held under each separate tenancy, situated in one or more taluk etc. Therefore, the reference therein, is to all the lands held by the applicant. This is a mandatory provision in terms of what is declared in Parameshwar's case. Therefore, when the tenants have failed to inculcate the schedule lands in the first application filed by him, the order of the Land Tribunal is wholly without jurisdiction while considering the second Form No.7 filed by him. Therefore, in view of the principles as enunciated in the aforesaid judgment, entertaining the application of the petitioners by the Tribunal is itself irregular.
10. The second contention advanced by the landlord is that when the evidence of the petitioners - tenants was recorded, he has stated that he was not in cultivation of the land in question. That only after the death of their father that they started cultivating the lands. Undisputedly, the father died in the year 1988. : 11 : The Form No.7 has been filed in the year 1979, during the lifetime of the father of the petitioners - tenants. I have examined the evidence of the 1st petitioner. He has very categorically stated that the lands were being cultivated by his father and only after his death, that he has been cultivating the land. Therefore, this evidence of the petitioner himself, is sufficient to conclude that they were not cultivating the land in question during the lifetime of their father.
11. This Hon'ble Court in the judgment reported in ILR 2002 KAR 62 (A.G. Lakshminarayana vs. State of Karnataka by its Secretary, Department of Revenue and Others) held that during the lifetime of the father and in view of the admission that the father was tenant of the land in question, no occupancy rights could be granted to the sons who have filed Form No.7. The Hon'ble Division Bench held at para 15 as follows: -
"15. The essential condition for an applicant to be registered as an occupant is that he should be the tenant in respect of the : 12 : land in respect to which he claims occupancy rights on and before the date of vesting (1.3.1974) and should have been personally cultivating the land. If a land is leased to the father, and the father was alive on 1.3.1974 and even thereafter, a son can not file an application for registration of occupancy rights during the life time of the father. In this case Shivalingaiah, who according to the third Respondent, was the tenant, was alive till 1977. Therefore third Respondent could not have filed Form No.7 in 1974 on the ground that he was the tenant. We are fortified in this view by a decision of a Learned Single Judge of this Court in JAHIRODIN vs. LAND TRIBUNAL in that case the applicant claimed that his father was the tenant and that as his father was old, he was cultivating the lands and filed an application for registration of occupancy rights in his name. This Court held that the application was liable to be rejected, as he was not the tenant as on the date of vesting, namely 1.3.1974. We therefore hold that the Tribunal ought to have rejected the claim of the third respondent for registration of Occupancy rights in view of his specific admission that : 13 : his father was the tenant in respect of the lands and his father was alive on the date when he (third respondent) filed Form No-7."
12. Therefore, in view of the admitted fact, the Form No.7 filed by the son during the lifetime of his father who was admittedly the tenant of the land in question, therefore cannot be considered. Therefore, on these grounds, I'am of the considered view that the Tribunal was justified in passing the impugned order. The Tribunal on considering the material and evidence on record, has rightly rejected the Form No.7. Here too, in view of the aforesaid judgments relied upon, the same covers the issues on hand, firstly on the ground that a fractured Form No.7, is unacceptable in law and secondly that no claim for occupancy rights could lie during the lifetime of the father, when admittedly the father is the tenant of the land in question.
13. By the order dated 28.03.2003, the impugned order of the Land Tribunal was stayed for a period of two weeks. It was subsequently continued. By : 14 : the order dated 19.08.2003 status quo was ordered in respect of the property in question, as on the date of passing of the impugned order. It is therefore, pleaded that the said interim order be continued till the expiry of the period of limitation to file a writ appeal. I'am of the considered view that the plea is just and reasonable. Consequently, the order dated 19.08.2013 directing both the parties to maintain status quo, as on the date of passing of the impugned order by the Land Tribunal, is continued till the expiry of the period of limitation to file an appeal.
14. For the aforesaid reasons, the petition being devoid of merit, is dismissed.
Rule discharged.
SD/-
JUDGE Rsh