Karnataka High Court
Mr.Shivaram Shetty S/O Late Sheenappa ... vs The Land Tribunal on 27 November, 2012
Author: N.Kumar
Bench: N.Kumar
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27TH DAY OF NOVEMBER 2012
PRESENT
THE HON'BLE MR. JUSTICE N.KUMAR
AND
THE HON'BLE MR. JUSTICE B.V.PINTO
WRIT APPEAL NO.858/2008(LR)
BETWEEN :
1. Mr.Shivaram Shetty,
S/o.Late Sheenappa Shetty,
Aged about 68 years,
R/o.College Road,
Karkala Taluk,
Udupi District.
2. Smt.Lakshmi Shedthi,
W/o.Late Sheenappa Shetty,
Aged about 87 years,
R/o.College Road,
Karkala Taluk,
Udupi District. ...APPELLANTS
(BY Sri.K.Shashikiran Shetty, Adv.)
AND :
1. The Land Tribunal,
Udupi District.
2. Smt.Jalaja Shedthi,
W/o.Late Narayan Shetty,
Aged about 78 years,
R/o.Kalapa Guthur,
Mudradi Village,
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Karkala Taluk,
Udupi District. ...RESPONDENTS
(By Sri.K.Krishna, AGA for R1,
Sri.Padubidri Mohan Rao, Adv. for R2)
. . . .
This writ appeal is filed under Section 4 of the
Karnataka High Court Act praying to set-aside the order
passed in the writ petition No.2514/2003 dated
12.02.2008.
This writ appeal coming on for hearing, this day,
N.Kumar J., delivered the following:
JUDGMENT
This appeal is filed challenging the order passed by the learned Single Judge, who has declined to set- aside the order granting occupancy rights in favour of the 2nd respondent under the provisions of the Karnataka Land Reforms Act.
2. For the purpose of convenience, the parties are referred to as they are referred to before the Land Reforms Tribunal.
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3. The subject matter of these proceedings is land bearing Sy.No.13/1 measuring 4 acres 75 cents, 13/2 measuring 95 cents, 13/3 measuring 69 cents, Sy.No.278/7 measuring 2 acres 1 cent and Sy.No.278/8B measuring 1 acre 99 cents, in all 10 acres 99 cents situated at Mudradi village, Karkala Taluk, Dakshina Kannada District. The said land originally belonged to one Sri. Hiriyanna Shetty, who was the owner. He leased the property to one Sheenappa Shetty as Mulagenidar and conferred moolageni rights. The said Seenappa Shetty died leaving behind his wife Lakshmi Shedthi and son Shivaram Shetty. Seenappa Shetty had sister by name Rukmini Shetty, who in turn had two sons Muddappa Shetty and Narayana Shetty. Narayana Shetty's wife is Jalaja Shedthi. The material on record discloses that the children of Sheenappa Shetty filed a suit for partition and separate possession of the properties belonging to the family of Sheenappa Shetty and Rukmini Shetty and the aforesaid lands were also the subject matter of the said suit. A preliminary decree came to be passed on -4- 23.10.1969. Narayana Shetty, the husband of Jalaja Shedthi was a defendant in the said suit. The preliminary decree was not challenged and it became final. In the said preliminary decree, the aforesaid properties fell to the share of Sheenappa Shetty's branch. They in turn filed an application for drawing up of a final decree. During the pendency of the said proceedings, Narayana Shetty died and his wife Jalaja Shedthi was brought on record as his legal representative. It is at that stage, Jalaja Shedthi brought to the notice of the Civil Court that she has filed an application in Form No.7 in respect of the aforesaid property claiming tenancy rights and therefore, the Civil Court has no jurisdiction to effect partition.
4. Jalaja Shedthi filed Form No.7 claiming tenancy rights in the aforesaid properties. After filing the said application, she had not appeared before the Land Tribunal. From the order passed by the Land Tribunal on 22.07.1976, it is clear that her husband Narayana Shetty appeared before the Tribunal and submitted that -5- the applicant and the respondents are all members of a joint family. They have filed a suit in a Civil Court for partition and therefore, the Tribunal dismissed the application on the ground that the dispute being inter se between the family members cannot be gone into in a proceeding under the Land Reforms Act. Probably after coming to know of the said dismissal in the aforesaid manner, Jalaja Shedthi filed one more application claiming occupancy rights. The said application also came to be rejected on the ground that her earlier application was rejected.
5. Aggrieved by the said order, she preferred a writ petition before this Court in W.P.No.7592/1980. This Court was of the view that that the impugned order was not preceded by a proper enquiry as required under Rule 17 of the Karnataka Land Reforms Rules. Further, it was held that the statement of the petitioner's husband who appeared on her behalf before the Tribunal on 22.07.1976 was wrongly recorded by the Tribunal and on the basis of the said statement, order has been passed. In fact the statement of her husband -6- was not at all recorded. Therefore, accepting her contention the writ petition was allowed. The impugned orders were quashed and the entire matter was remitted to the Tribunal for fresh disposal of the application of the said Jalaja Shedthi before the Land Reforms Tribunal. The said order of the High Court also has attained finality.
6. It is after remand, an enquiry was conducted in which, the appellants herein were also parties and the Tribunal, on considering the material on record held that the applicant has proved her tenancy in respect of the land in question and accordingly, it granted occupancy rights. Aggrieved by the said order, a writ petition was filed challenging the correctness of the said order. The learned Single Judge dismissed the said writ petition on the ground that it is a family dispute and therefore, they should approach competent Civil Court to claim their respective shares in the property, if they are able to demonstrate that the properties belong to the joint family. Aggrieved by the said order, the present appeal is filed.
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7. The learned counsel appearing for the appellants, assailing the order passed by the learned Single Judge as well as the Tribunal contends that once the application is filed in Form No.7 and that application came to be dismissed, second application in Form No.7 was not maintainable. The writ petition preferred was against the order dismissing the second application in Form No.7. When the High Court set- aside the said order and remanded the matter back to the Tribunal for fresh consideration, the Tribunal has considered the first application and therefore, the order passed by the Tribunal is void-ab-initio and is liable to be set-aside. Consequently, he contended that the land in question was a subject matter of Mulageni tenancy insofar as Sheenappa Shetty is concerned. After his death, they have become the land owners because they are in possession of the property and therefore the land did not vest with the Government as on 01.03.1974 and the Land Tribunal had no jurisdiction to grant occupancy right. It was also contended that there was no documentary evidence of lease of the property by -8- Sheenappa Shetty in favour of Jalaja Shedthi. The geni receipts produced show the Left Thumb Impression of Sheenappa Shetty. Sheenappa Shetty was not a literate person and he was signing. The applicant did not prove by any acceptable evidence that those receipts were issued by Sheenappa Shetty as originals were not produced and only Xerox copy was produced. Similarly all other documents did not establish tenancy. The name of Sheenappa Shetty was shown in the cultivators column till the year 1950 and later the name of Jalaja Shedthi is shown, she being the member of Joint Family. The benefits extend to other members also and in the absence of tenancy, the land had not vested with the Government. Therefore seen from any angle, the order passed by the learned Single Judge requires interference.
8. Per contra, the learned counsel appearing for the applicant, supporting the order contended that the parties are governed by the Aliyasantana law. The brothers and Sisters are not members of the Joint Family. The applicant is the wife of the son of Rukmini -9- Shetty, whose brother is Sheenappa Shetty. It is Sheenappa Shetty, who leased the property in favour of the applicant in 1950. From that day she is cultivating the land, RTC Stands in her name and she has been paying the tax. She was paying the rent to Sheenappa Shetty. She has been enjoying the property uninterruptedly and therefore, the Tribunal is justified in holding that the tenancy rights are established and she is entitled to be registered as tenant under the Land Reforms Act. The same cannot be found fault with. If she belongs to joint family and the land belongs to all of them, it is open to her to approach the Civil Court, but no case is made out for setting aside these orders.
9. From the aforesaid facts, it is not in dispute that the aforesaid lands belong to Hiriyanna Shetty, who was the owner of the property. He in turn leased the property to Sheenappa Shetty as Mulagenidar. Therefore, the land when it was in possession of Sheenappa Shetty became tenanted land. By virtue of the Land Reforms Act, a Mulageni tenant will not become a owner of the property. On the day the Land
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Reforms Act came into force, the tenancy of a Mulagenidar results in vesting of the land with the Government free from all encumbrances with a right to Mulagenidar to file an application in Form No.7 claiming occupancy rights under Section 48A of the Land Reforms Act. So once it is not in dispute that the land in question was a Mulageni land, the said land vested with the Government as on 01.03.1974. The original owner lost his title and Mulagenidar had a right to apply in Form No.7 and get occupancy rights. As Sheenappa Shetty was dead when the Act came into force, his children could have made an application claiming occupancy rights. Neither the widow nor his son, till today, have filed any application and the time prescribed is over and the question of granting occupancy rights under Form No.7 or Section 48A of the Act would not arise.
10. Here the case of the applicant is Sheenappa Shetty, during his life time gave that land as Chalageni sub lease in favour of Jalaja Shedthi. She was in occupation of the land cultivating the land as tenant till
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the date of vesting. Her claim is supported by RTC, rent receipts and other Revenue records. It is interesting to note that from 1950 onwards in none of these records the name of Sheenappa Shetty is found in the cultivators column. After his death, neither his widow nor his son, have made any attempt to get their names entered nor it finds a place. Only the name found is the name of the applicant. Even, a sub-tenant, if she was in possession of the land is entitled to occupancy rights under the Land Reforms Act. That is how an application in Form No.7 came to be filed by the applicant. Unfortunately, her husband went to the Tribunal and stated it is a family property and got the application dismissed. She filed one more application and the second application is dismissed on the ground that the first application is dismissed. As it is clear from the order of this Court, the question was whether the Tribunal recorded any statement of the husband of the applicant and there is compliance of Rule 17. The Court held that as there was no compliance of Rule 17, the order passed dismissing Form No.7 on the
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submission of Narayana Shetty was found fault with. In the second order, nothing was decided because, first application was dismissed, second application also was dismissed. Therefore, this Court set-aside both the orders and remanded the matter to the Tribunal for fresh consideration. It is after fresh consideration, the impugned order is passed.
11. From the aforesaid material, it is clear that the land in question is a tenanted land and it is vested with the Government as on 01.03.1974. The mulagenidar did not make any application. It is the chalagenidar, who has made the application and the Land Reforms Tribunal has rightly granted occupancy right in favour of the applicant. The case of the petitioners-appellants is the applicant is a member of the family. There cannot be a tenancy between them and therefore, the Tribunal was not justified in granting occupancy rights in her favour. As the appellants have not filed any application in Form No.7, they have no right in the property. They would not become owners of the land under the Land Reforms Act as contended by them with
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the passing of the Act. Even the owner's right stand extinguished. The right is given to the tenant to make an application and get the land re-granted. It is the Chalageni sub-tenant, who has filed an application and got the lands granted in her favour. If she happens to be the member of the family and if they want to claim through her, as rightly pointed out by the learned Single Judge, it is a matter to be decided in a Civil Court. If the appellants have not filed any Form No.7 at all, then the land has vested with the Government as on 01.03.1974. Neither the applicant nor the appellant herein would have any right and the land vests with the Government free from encumbrance insofar as the land is a tenanted land as on 01.03.1974. We do not see any merit in this appeal. Accordingly, appeal stands dismissed.
SD/-
JUDGE SD/-
JUDGE SPS