Karnataka High Court
Babu Madivala (Deceased) By L.Rs And ... vs Kuddu Madivala And Ors. on 26 February, 2002
Equivalent citations: ILR2002KAR3417, 2002(3)KARLJ645
Author: N.S. Veerabhadraiah
Bench: N.S. Veerabhadraiah
ORDER N.S. Veerabhadraiah, J.
1. The petitioners have questioned the order of the Land Reforms Appellate Authority, Udupi (Dakshina Kannada), passed in L.R.A. No. 1270 of 1988, dated 2/3-1-1989, modifying the order of the Land Tribunal to grant occupancy right only in respect of respondent 1-Kuddu Madivala.
2. The brief facts are as follows:
The respondent 1-Kuddu Madivala filed Fonn 7 on 30-12-1974, claiming occupancy in respect of 16 cents of land in Survey No. 82/5 of Shivalli Village and also in respect of other extent of land, which is not the subject-matter in this revision. On filing of the Form 7, public notices were issued. The owners namely, Sulochana Bhat and Ramak-rishna Acharya were notified. The Land Tribunal recorded the evidence of the applicant Shri Kuddu Madivala. After considering the relevant records the Land Tribunal, Udupi, by its order dated 19-8-1981 granted occupancy in favour of the family to the extent of 16 cents in Survey No. 82/5. It appears after the occupancy was granted, the petitioner-Babu Madivala and others filed O.S. No. 90 of 1986 before the Civil Judge Court, Udupi, for partition as the occupancy right was granted in favour of the 'family'. It is also alleged that the petitioners made efforts to include their names in the revenue records. Therefore, Kuddu Madivala filed the Writ Petition No. 382 of 1986, before this Court questioning the order of the Land Tribunal insofar as it relates to grant of the occupancy right in favour of the family'. On establishment of the Appellate Authority, the proceedings in W.P. No. 382 of 1986 was transferred to the Appellate Authority and numbered as L.R.A. No. 1280 of 1988. The Appellate Authority by its order dated 2/3-1-1989 modified the order of the Land Tribunal to the extent that the occupancy should be granted only in favour of the applicant Kuddu Madivala. The petitioners being aggrieved by the orders of the Appellate Authority ordering to grant occupancy right only in the name of Kuddu Madivala, approached this Hon'ble Court in this L.R.R.P. No. 1861 of 1989, questioning the order of the Appellate Authority. This Court by an order dated 29-8-1996 dismissed the revision with the observation that "the petitioners have not filed any application as contemplated in law nor they have made any statement before the Tribunal regarding their interest in the property consequent to issue of public notice, they have absolutely no locus standi to question the order of the Appellate Authority in this revision under Section 121-A of the Land Reforms Act".
3. On the dismissal of L.R.R.P. No. 1861 of 1989 by this Court, the petitioners filed civil appeal before the Apex Court in number 2956 of 1997. The Apex Court allowed the civil appeal with the following observations:
"In these proceedings we are not concerned with the merits of the appellant's claim but with the question whether the order of the Land Tribunal made for the benefit of the entire family of the respondent 1 could be modified by the Appellate Authority to the prejudice of the claims of the other members of the family, who are prejudiced by the order made by the Appellate Authority without notice to them. The Appellate Authority's order suffers from this infirmity which alone was sufficient to set aside the order in the revision filed before the High Court.
Accordingly, the appeal is allowed. The impugned judgment of the High Court is set aside. The matter is remitted to the High Court for a fresh decision in accordance with the above. No costs".
On remand, now the matter stands posted for disposal on merits.
4. The learned Counsel Shri G. Balakrishna Shastry vehemently contended that it is clear from the records that it is Shri Babu Madivala who was the original tenant. Merely because of the reason that Form 7 was filed only by Kuddu Madivala does not mean that he alone is entitled for occupancy rights. The application filed by the elder member of the family enures to the benefit of all members and is to protect the interest. Therefore, the Land Tribunal has rightly granted occupancy right in favour of the "family", that means it is the joint family and not the family as defined under Section 2(12) of the Land Reforms Act. Secondly, contended that in the light of the above the Apex Court has rightly set aside the order of the Appellate Authority and remanded the matter to this Court for consideration regarding whether the occupancy was granted in favour of the family or a joint family. On this ground, prayed to set aside the order of the Appellate Authority and to confirm the order of the Land Tribunal as it is admitted in the evidence of the applicant Kuddu Madivala that his father was cultivating the land prior to filing of Form 7 which enures to the benefit of the "whole family members".
5. On the other hand, the learned Counsel Shri K. Radhesh Prabhu for respondent 1 firstly contended that there was no rival claim for grant of occupancy. Secondly contended that there was no objection by any one for grant of occupancy. Therefore, the grant of occupancy is for the family which enures to the benefit of the applicant's spouse and children and not for the members of the joint family as defined under Section 2(17) of the Land Reforms Act. It is also sought to be contended that in fact, the applicant's mother was cultivating the land as a tenant and she defaulted in making the payment of the rents. It is this applicant Kuddu Madivala who paid the rents to the landlord. Therefore, he continued to be the tenant. Thirdly, he contended that the petitioners have not questioned the order of the Land Tribunal and even they do not come within the meaning of the definition of the "joint family". Therefore, they cannot be the "aggrieved persons". Accordingly, even if the order of the Appellate Authority were to be set aside, no other views can be taken when the grant of occupancy right is only for the benefit of the family as defined under Section 2(12) of the Land Reforms Act. On these grounds prayed to dismiss the revision petition.
6. Heard the learned Government Pleader.
7. In the light of the submissions, the point for consideration that arises in this petition is:
"Whether the grant of occupancy is for the benefit of the 'joint family' as defined under Section 2(17) of the Land Reforms Act or for the 'family' as defined under Section 2(12) of the Land Reforms Act?"
8. It is not in dispute that the Form 7 came to be filed only by the applicant Kuddu Madivala. In the Form 7 it is mentioned that he has been cultivating the land since last 25 years. In the evidence, Kuddu Madivala has specifically stated that his father was cultivating the land since last 50 years under one Narayanappa, and the said land came to be purchased by Sulochana Bhat and Ramakrishna Achar. In the evidence of Kuddu Madivala, it is no where stated that he has been separated from the family and living with his wife and children separately.
9. The learned Counsel Shri G. Balakrishna Shastry made available the property tax assessment in respect of Survey No. 82/5, which is found to be in possession of Booba Madivala, i.e., the father, the petitioners 1 to 4 as well as the respondent 1-Kuddu Madivala. Now the question that has to be examined is as on 1-3-1974 who was the person actually cultivating the land, whether Kuddu Madivala was cultivating the land for himself and his family or for the benefit of the joint family.
10. Section 2(12) of the Land Reforms Act, 1961 reads thus: " "Family" means
(a) in the case of an individual who has a spouse or spouses, such individual, the spouse or spouses and their minor sons and unmarried daughters, if any;
(b) in the case of an individual who has no spouse, such individual and his or her minor sons and unmarried daughters;
(c) in the case of an individual who is a divorced person and who has not remarried, such individual and his minor sons and unmarried daughters, whether in his custody or not; and
(d) where an individual and his or her spouse are both dead, their minor sons and unmarried daughters".
This refers to the family inclusive of wife and children, minor sons, unmarried daughters etc. If the Form 7 were to have filed for himself, then the Tribunal would not have used the word "kutumba", which refers to the family. It is no doubt true that the family as defined under Section 2(12) refers to the wife, minor children and daughters. But at the same time, in the background of the evidence led in and also taking into consideration the meaning of the "joint family" as defined under Section 2(17) of the Land Reforms Act, when the grant of occupancy is for "kutumba", it enures to the benefit of the whole family. It is in this context, the Apex Court has clearly observed that the Appellate Authority was not justified in modifying the order for grant of occupancy only in favour of the applicant Kuddu Madivala. It has to be held that the grant of occupancy enures for the benefit of the family of the deceased Booba Madivala. Therefore, the other brothers are also entitled for grant of occupancy.
11. Accordingly, the order of the Appellate Authority is hereby set aside. The matter is remitted back to the Land Tribunal for the limited purpose to find out the share of the petitioners and respondent 1 in the light of the decision in Mudakappa v. Rudrappa and Ors., for adjudication of the dispute among the members of the family for grant of occupancy.
12. With the said observations, this petition is disposed off.
13. The registry is directed to transmit the records forthwith to comply with the orders of this Court.