Karnataka High Court
Padmanahbhaiah vs Ramayya Aithala Since Dead By Lrs on 4 November, 2022
Bench: Alok Aradhe, S Vishwajith Shetty
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF NOVEMBER, 2022
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
W.A.NO.4897/2011(KLRA)
C/W
W.A.NO.5201/2011 (KLRA)
IN W.A. NO.4897/2011:
BETWEEN:
PADMANAHBHAIAH
SINCE DEAD BY LR'S
1. SMT. LAKSHMI
W/O LATE PADMANABHAIAH
AGED ABOUT 67 YEARS.
2. JAYAPRAKASH N
S/O LATE PADMANABHAIAH N
AGED ABOUT 50 YEARS
1 AND 2 ARE R/O PANCHAKSHARI
PERLAPU (P), KADESHIVALAYA
BANTWAL TALUK, DAKSHINA
KANNADA DISTRICT.
3. SHAILASHRI MOHAN
W/O MOHAN
D/O LATE PADMANABHAIAH N
AGED ABOUT 36 YEARS
R/O B/6, "ADVAITHA", 2ND A MAIN
11TH BLOCK, NAGARABHAVI 2ND
STAGE, BENGALURU - 560 072. ...APPELLANTS
(BY SRI S.P. SHANKAR, SR. COUNSEL FOR
SRI S.S. PARIKSHIT, ADV.)
2
AND:
RAMAYYA AITHALA
SINCE DEAD BY LRS
1. VENKATARAMANA AITHALA @
VENKATAKRISHNA AITHALA
AGED ABOUT 55 YEARS
WORKING AS COOK IN
SRI KOLLUR MUKAMBIKA TEMPLE
KOLLUR, KUNDAPUR TALUK.
2. VISHVESHVARAYYA
S/O SADASHIVAYYA
AGED ABOUT 83 YEARS
R/AT HALASANAU, HAKLADY
VILLAGE, KUNDAPUR TALUK.
3. LAND REFORMS APPELLATE
KUNDAPURA TALUK
KUNDAPURA, D.K.
4. CHANDRASHEKARA SHETTY
SINCE DEAD BY LR'S
4a. SMT. SUSHELLA C. SHETTY
AGED ABOUT 65 YEARS
W/O LATE U. CHANDRASHEKHAR SHETTY.
4b. DR. RAJESH KUMAR A
AGED ABOUT 45 YEARS
S/O LATE U. CHANDRASHEKHAR SHETTY.
4c. SRI ROOPESH KUMAR A
AGED ABOUT 40 YEARS
S/O LATE U. CHANDRASHEKHAR SHETTY.
4d. MISS RASHMI KUMARI
AGED ABOUT 30 YEARS
D/O LATE U. CHANDRASHEKHAR SHETTY
ALL ARE R/O "NAGALAKSHMI"
KALLATGTE, HALADY POST
KUNDAPURA TALUK
UDUPI DISTRICT - 576 222. ...RESPONDENTS
(BY SRI K. SUMAN, SR. COUNSEL FOR
SRI SIDDARTH SUMAR, ADV., FOR R-1;
3
V/O DATED 21.09.2012 APPEAL AGAINST R-2 IS
DISMIEES AS ABATED; R-3 IS SERVED;
R-4(a), (b) AND 4(d) ARE SERVED;
SRI AJITH SHETTY, ADV., FOR R-4(c);
SRI B. RAJENDRA PRASAD, HCGP FOR R-5)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE ORDER
PASSED BY THE LEARNED SINGLE JUDGE IN W.P.NO.25075/1994
DATED 22.02.2011 AND ALLOW THIS APPEAL.
IN W.A. NO.5201/2011:
BETWEEN:
LATE CHANDRASHEKAR SHETTY
SINCE DECEASED BY HIS LEGAL HEIRS
1a. SMT. SUSHEELA C SHETTY
W/O LATE CHANDRASHEKAR SHETTY
AGED ABOUT 68 YEARS.
1b. DR. RAJESH KUMAR A
S/O LATE CHANDRASHEKAR SHETTY
AGED ABOUT 48 YEARS.
1c. SRI ROOPESH KUMAR A
S/O LATE CHANDRASHEKAR SHETTY
AGED ABOUT 43 YEARS.
1d. MISS RASHMI KUMARI
S/O LATE CHANDRASHEKAR SHETTY
AGED ABOUT 33 YEARS.
ALL ARE RESIDING AT 'NAGALAKSHMI'
KALLATGE, P.O. HALADY
KUNDAPUR TALUK
UDUPI - 576 222. ...APPELLANTS
(BY SRI S.P. SHANKAR, SR. COUNSEL FOR
SRI AJITH SHETTY, ADV.)
AND:
1. SRI VENKATARAMANA AITHAL
@ VENKATAKRISHNA AITHAL
S/O RAMAYYA AITHAL
4
AGED ABOUT 76 YEARS
C/O SHREE MOOKAMBIKA TEMPLE
KOLLUR KUNDAPURA TALUK
UDUPI DISTRICT.
2. VISHWESHWARAYYA
S/O SADASHIVAYYA
AGED ABOUT 78 YEARS
RESIDING AT BALASANADU
HAKLADY VILLAGE & POST
KUNDAPURA, UDUPI.
3. LATE PADMANABHAYYA
SINCE DECEASED BY HIS LEGAL HEIRS
3(a) SMT. LAKSHMI
W/O LATE PADMANABHAIAH
AGED ABOUT 68 YEARS.
3(b) SRI JAYAPRAKASH N
S/O LATE PADMANABHAIAH
AGED ABOUT 39 YEARS
BOTH ARE RESIDING AT PANCHAKSHARI
PARALAPU POST, KADESHIVALAYA
BANTWALA TALUK, MANGALORE.
3(c) SMT. SHAILASHRI MOHAN
D/O LATE PADMANABHAIAH
AGED ABOUT 37 YEARS
RESIDING AT NO.6.6, ADVAITH
2ND 'A' MAIN, 11TH BLOCK
NAGARBHAVI, 2ND STAGE
BANGALORE - 560 072.
4. LAND REFORMS APPELLATE AUTHORITY
KUNDAPURA
BY ITS SECRETARY. ...RESPONDENTS
(BY SRI K. SUMAN, SR. COUNSEL FOR
SRI SIDDARTH SUMAR, ADV., FOR R-1;
V/O DATED 21.09.2012 APPEAL AGAINST
R-2 IS DISMISSED AS ABATED;
SRI S.N. BHAT, ADV., FOR R-3;
SRI B. RAJENDRA PRASAD, HCGP FOR R-4)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
5
ORDER PASSED IN THE WRIT PETITION NO.25075/1994
DATED 22.02.2011.
THESE APPEALS HAVING BEEN HEARD AND RESEVED,
COMING ON FOR PRONOUNCEMENT, THIS DAY,
VISHWAJITH SHETTY J., DELIVERED THE FOLLOWING:
JUDGMENT
These two intra court appeals have been filed assailing the order dated 22.02.2011 passed by the learned Single Judge of this Court in W.P.No.25075/1994, and therefore, they are heard together and disposed of by this common judgment.
2. Heard the learned Counsel appearing for the parties and also perused the material available on record.
3. Brief facts of the case as revealed from the records for the purpose of disposal of these two appeals are, respondent no.2 herein is the owner of lands bearing Sy. No.45/2 measuring 19 cents and Sy. No.45/3 measuring 20.5 cents situated at Kollur village in Udupi District. Respondent no.1 herein who allegedly was a tenant in the building situated in a portion of the aforesaid lands and who was serving as a priest in a local temple of Lord Ganapathi had filed Form No.7 under the 6 Karnataka Land Reforms Act, 1961 (for short, 'Act of 1961') claiming occupancy rights of the aforesaid lands.
4. The Land Tribunal, initially, rejected the said claim vide its order dated 21.10.1975 holding that the lands which were the subject matter of Form No.7 were not agricultural lands and there was no agrarian relationship between the applicant and the owner of the lands. This order was questioned by respondent no.1 before this Court in W.P.No.5691/1982 which was allowed and remanded by order dated 17.12.1982 on the ground that the order of the Land Tribunal was not signed by all its members.
5. In the meanwhile, the appellant in W.A.No.4897/2011 Sri Padmanabhaiah had purchased ⅔rd portion of the land in question and the appellant in W.A.No.5201/2011 Sri Chandrashekhar Shetty had purchased ⅓rd portion of the land in question along with the building existing in the said lands under two separate registered sale deeds.
6. The appellant in W.A.No.4897/2011 viz., Padmanabhaiah had got himself impleaded before the 7 Land Tribunal after the matter was remanded by this Court in W.P.No.5691/1982. The Land Tribunal vide its order dated 30.04.1987 granted occupancy rights of the lands in question in favour of respondent no.1 herein. This order was questioned before the Land Reforms Appellate Aurthority by Padmanabhaiah in LRA No.1381/1988 and consequent to the abolition of the Land Reforms Appellate Authority, Padmanabhaiah had filed a civil petition before this Court under Section 17 of the Karnataka Land Reforms (Amendment) Act No.18 of 1990, with a prayer to transfer the appeal that was pending before the Land Reforms Appellate Authority and register the same as writ petition before this Court. The said civil petition was allowed and the appeal in LRA No.1381/1988 was transferred to this Court and numbered as W.P.No.25075/1994. In the said writ petition, the appellant in W.A.No.5201/2011 viz., Chandrashekhar Shetty had got himself impleaded as respondent no.4.
7. The learned Single Judge of this Court vide order dated 26.02.2008 had allowed the writ petition and 8 remanded the matter to the Land Tribunal for disposal in accordance with law, and being aggrieved by the same, respondent no.1 herein had filed W.A.Nos.296/2009 & 716/2009 which were allowed by the Division Bench of this Court and the matter was remanded to the learned Single Judge for fresh consideration on the ground that the writ petition was disposed of without giving an opportunity to the legal representatives of deceased respondent no.1 to contest the writ petition. Thereafter, the learned Single Judge of this Court vide the order impugned has dismissed the writ petition. Being aggrieved by the same, the petitioner and respondent no.4 in W.P.No.25075/1994 have filed these two intra court appeals.
8. Learned Senior Counsel appearing for the appellants submits that the land in question is a urban land and not a land within the meaning of Section 2(A)(18) of the Act of 1961. He submits that the appellants as well as respondent no.1 herein were tenants of the building existing in the aforesaid land which belonged to respondent no.2 and appreciating the 9 same, the Land Tribunal initially vide its order passed on 21.10.1975 had dismissed the claim of respondent no.1 holding that the lands in question is not an agricultural land and there was no agrarian relationship between the parties. He submits that the revenue records would go to show that the lands in question were punja and dry land, respectively, and there is absolutely no material on record to show that these lands were brought under cultivation at any point of time by respondent no.1, who admittedly is a priest by profession. In support of his arguments, he has placed reliance on the following judgments:
i) VANAJAKSHI VS LAND TRIBUNAL, UDUPI & ANR.
- ILR 1979 KAR 480.
ii) SUBHAKAR & ORS. VS HARIDEESH KUMAR & OTHERS - (2007) 9 SCC 561.
iii) VENKATESH SHET VS NARAYANA ACHARI - 1979 SCC KAR 60.
iv) K.KUNHAMBU VS CHANDRAMMA & ORS. -
(2004) 9 SCC 174.
9. Per contra, learned Senior Counsel appearing for respondent no.1 submits that the appellants have no 10 locus standi either to maintain the writ petition or the writ appeal since they were not the owners of the lands in question as on 01.03.1974, more so when respondent no.2 who is the original landlord has not chosen to challenge the order passed by the Land Tribunal granting occupancy rights to respondent no.1. He also refers to the Memorandum of Civil Petition and submits that the grounds which are urged before the Court are not at all pleaded, and therefore, it is not open to the appellants to raise a new plea before this Court, and accordingly, prays to dismiss the writ appeals.
10. The undisputed facts of the case are, respondent no.2 is the original owner of the lands in question and respondent no.1 had filed Form No.7 claiming occupancy rights of the lands in question. After the dismissal of his claim petition initially in the year 1975, the appellants herein had purchased ⅔rd and ⅓rd portion of the lands in question, respectively, from respondent no.2 under separate registered sale deeds, and thereafter, when the matter was remanded to the Land Tribunal by this Court in W.P.No.5691/1982, the 11 appellant in W.A.No.4897/2011 viz., Padmanabhaiah had got himself impleaded as a party respondent before the Land Tribunal and had contested the claim of respondent no.1 for grant of occupancy rights of the lands in question in his favour. It is also not in dispute that the appellant in W.A.No.5201/2011 viz., Chandrashekhar Shetty was impleaded as party respondent no.4 in W.P.No.25075/1994 before this Court. Under the circumstances, we do not find any merit in the contention of the learned Counsel for respondent no.1 that the appellants herein have no locus standi to challenge the order passed by the Land Tribunal granting occupancy rights in his favour when respondent no.2 who is the original landlord had not questioned the same. Respondent no.2, undisputedly, has sold the lands in favour of the appellants herein under two separate registered sale deeds and since the appellants have stepped into the shoes of respondent no.2-landlord, we are of the considered view that the writ petition as well as the writ appeal filed by them are maintainable. 12
11. In so far as the contention of respondent no.1 that there is no pleadings in the civil petition in respect of the arguments now advanced on behalf of the appellant is concerned, the civil petition is filed under Section 17 of the Karnataka Land Reforms (Amendment) Act No.18 of 1990, only with a prayer to transfer the appeal pending before the Land Reforms Appellate Authority consequent to the abolition of the said authority, and therefore, the pleading in the appeal memorandum of the appeal that was pending before the Land Reforms Appellate Authority is required to be considered and a perusal of the same would clearly go to show that the relevant grounds have been urged in the same, and therefore, there is no merit in the contention urged on behalf of respondent no.1 that no sufficient pleading in the civil petition.
12. The revenue records of the lands in question would go to show that the said lands are punja and dry lands, respectively. There is absolutely no material on record to show that these lands were brought under cultivation by respondent no.1 at any point of time and these lands were leased to him by respondent no.2 for 13 agricultural purpose at any point of time. The Land Tribunal initially by its order dated 21.10.1975 had dismissed the claim of respondent no.1 on the ground that the lands in question were not agricultural lands and there was no agrarian relationship between the parties. The said order was set aside by this Court on the technical ground that all the members of the Land Tribunal had not signed the order. Thereafter, in the second round, the Land Tribunal has granted occupancy rights of the lands in question in favour of respondent no.1 herein on the ground that there were few coconut trees, arecanut trees and fruit bearing trees existing in the lands in question. The material on record would also go to show that initially after dismissal of Form No.7 filed by respondent no.1, he had filed Form No.2-A under Section 38-A of the Act of 1961 claiming that he was in occupation of the dwelling house situated in the lands in question. The said application was allegedly rejected by the Land Tribunal.
13. The material on record would also go to show that respondent no.1 had admitted in his statement 14 dated 21.08.1975 recorded before the Land Tribunal that the lands in question are not agricultural lands. However, the learned Single Judge has refused to place reliance on the said statement since the same does not bear the signature of the Chairman or any other member. The statement recorded before the Land Tribunal is only required to be signed by the Deponent and it is not required to be signed either by the Chairman or the Members of the Land Tribunal, and therefore, the learned Single Judge was not justified in refusing to consider the statement dated 21.08.1975 made by respondent no.1 before the Land Tribunal, wherein he has clearly admitted that the lands in question are not agricultural lands. It appears that based on such statement, the Land Tribunal had initially rejected the claim of respondent no.1 for grant of occupancy rights.
14. The spot inspection report which is available on record is dated 26.03.1987. The material on record would go to show that as early as on 21.08.1975 itself, respondent no.1 had admitted before the Land Tribunal that the lands in question are not agricultural lands. The 15 relevant date for considering the claim in Form No.7 being 01.03.1974, the tenant who claims occupancy rights of the lands in question is required to prove that as on 01.03.1974, the lands in question were agricultural lands. Further, merely for the reason that in the spot inspection report dated 26.03.1987 it is stated that there were few coconut trees, arecanut trees and fruit bearing trees existing in the lands in question, the Land Tribunal was not justified in granting occupancy rights of the lands in question in favour of respondent no.1. Section 2(A)(18) of the Act of 1961, defines 'Land', which reads as under:
2(A)(18 - "Land" means agricultural land, that is to say, land which is used or capable of being used for agricultural purposes or purposes subservient thereto and includes horticultural land, forest land, garden land, pasture land, plantation and tope but does not include house-site or land used exclusively for non-agricultural purposes.
15. Respondent no.1 is required to prove before the Land Tribunal that the land of which occupancy rights have been claimed by him, is a 'Land' within the meaning 16 of Section 2(A)(18) of the Act of 1961. The material on record would go to show that he has failed to prove the same.
16. The Division Bench of this Court in Vanajakshi's case supra has held that mere fact that there are some plants and trees in the compound of a house will not render the premises as an agricultural land and for the purpose of determining whether the premises should be regarded as an agricultural or non-agricultural land, one must look to the dominant characteristics of such premises.
17. In Subhakar's case, the Division Bench of this Court has held that punja lands in Dakshina Kannada is not an agricultural land and if only punja land is brought under cultivation for agricultural purpose, such land can be considered as an agricultural land, and this judgment has been affirmed by the Hon'ble Supreme Court in the judgment reported in (2007)9 SCC 561.
18. In Venkatesh Shet's case supra, this Court has held as under:
17
"6. .....In the Dist. of S. Kanara and also in the former State of Coorg, there was no such classification of lands as agricultural and non-agricultural. It is common knowledge that throughout the West-Coast, when a house is let there will be some land which forms a compound for the house and within such a compound a few coconut trees or mango trees or such other fruit, trees are grown. Within the area of Mangalore Municipality, it is very rare to find a house with a compound where there is no coconut or mango trees. Similar is the case in other towns in the Dist. In the instant case, there is no dispute about the extent of the land on which there is a tiled house. The total extent of the land with the house is 27 cents, which is approximately one- fourth of an acre. The defendant contends that there are a few coconut and other fruit trees. In such a case, there is no presumption that the lease is for agricultural purposes......"
19. In K.Kunhambu's case supra, the Hon'ble Supreme Court has held that the land which was leased out for industrial purpose in which few coconut and other trees had been found, cannot be considered as an agricultural land within the meaning of Section 2(A)(18) of the Act of 1961.
18
20. In the case on hand, undisputedly, the lands in question are referred to as punja land and dry land in the revenue records and there is absolutely no material on record to show that these lands were leased to respondent no.1 for agricultural purposes by respondent no.2 and that respondent no.1 has cultivated or carried on any agricultural activities in the said land as on 01.03.1974.
21. From the judgments which are referred to herein above, it is very clear that in Dakshina Kannada District, of which Udupi was also a part, punja lands are not considered as agricultural lands unless there is material to show that the said lands were brought under cultivation and on the basis of mere existence of few coconut and other fruit bearing trees, no presumption can be drawn that the said lands are agricultural lands. In addition to the same, at the earliest point of time, when the statement of respondent no.1 was recorded before the Land Tribunal, he had admitted that the lands which were the subject matter of Form No.7 were not agricultural lands. Under the circumstances, on the basis 19 of a spot inspection report of the year 1987 wherein it is stated that there existed a few coconut and other fruit bearing trees, the Land Tribunal was not justified in granting occupancy rights of the lands in question in favour of respondent no.1. The learned Single Judge has failed to appreciate this aspect of the matter and has erred in dismissing the writ petition. Accordingly, the following order:
22. The writ appeals are allowed. The order dated 22.02.2011 passed by the learned Single Judge in W.P.No.25075/1994 is set aside, and consequently, the order dated 30.04.1987 passed by the Land Tribunal granting occupancy rights in respect of land bearing Sy. Nos.45/2 & 45/3 situated at Kollur village in Udupi District, in favour of respondent no.1, is also set aside.
SD/-
JUDGE SD/-
JUDGE KK