Karnataka High Court
Smt Tulasiamma Since Dead By Lr vs The Land Tribunal on 15 November, 2012
Bench: Chief Justice, B.V.Nagarathna
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 15TH DAY OF NOVEMBER 2012
PRESENT
THE HON'BLE MR.VIKRAMAJIT SEN, CHIEF JUSTICE
AND
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
Writ Appeal No. 79/2012 (LR)
BETWEEN:
SMT. TULASIAMMA
SINCE DEAD BY LR
DR SUKANYA RAO
D/O LATE VYASA RAO
AGED ABOUT 52 YEARS
'VEDARAJ', KODAVOOR VILLAGE
MOODABETTU,
UDUPI TALUK & DISTRICT.
... PETITIONER
(BY SRI PUNDIKAI ISHWARA BHAT, ADV.)
AND:
1. THE LAND TRIBUNAL
MANGALORE TALUK
D K DISTRICT.
2. SMT. KUSUMA
W/O SRI K MADHAVA RAO
AGED ABOUT 48 YEARS
R/AT "SHUBHA SHREE"
REGENT PARK, HOSABETTU
UDUPI D K.
3. SRI SHIVAPRASAD SHANBHOGUE
S/O SRI VENTARAMANA SHANBHOGUE
AGED ABOUT 39 YEARS
R/A "ASHLESHA", OPP NITK,
SHRINIVAS NAGAR
P O SURATKAL, D K.
4. SMT. MANORAMA
W/O SRI NARAYAN RAO
2
AGED ABOUT 59 YEARS
R/AT KOTTIGE HOUSE
P.O. BELMAN, KARKALA TALUK
UDUPI DISTRICT, D K.
5. SRI LAXMINARAYANA SHANBHOGUE
S/O SRI VENKATARAMANA SHANBHOGUE
AGED ABOUT 39 YEARS
R/AT "ANVESHA",
OPP. NITK SHRINIVAS NAGAR P O
SURATKAL D.K.
6. SMT UMA S SHANBHOGUE
W/O LATE S SUBRAMANYA SHANBHOGUE
AGED ABOUT 50 YEARS
CARE OF SHANBHOGUE STORES
OPP NITK, SHIRINIVAS NAGAR
P.O. SURATKAL, D.K.
7. SMT. VEDAMABHA R SHANBHOGUE
W/O LATE RAMAKRSIHNA SHANBHOGUE
AGED ABOUT 53 YEARS
CARE OF SRI C S NARAYANA RAO
NEAR OLD VETERINARY HOSPITAL
KARKALA, D K.
8. SMT C MAHALAKSHMI
W/O SRI C BALAKRISHNA RAO
AGED ABOUT 56 YEARS
R/AT KEB COLONY
KAVOOR, MANGALORE, D.K.
... RESPONDENTS
(BY SRI BASAVARAJ KAREDDY, PRL. GA FOR R1
SRI VIJAYAKRISHNA BHAT, ADV. FOR R2 TO R8)
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER
PASSED IN THE WRIT PETITION NO.26188/2005 (LR) DATED
18/09/2007.
THIS WRIT APPEAL COMING ON FOR PRELIMINARY
HEARING THIS DAY, CHIEF JUSTICE DELIVERED THE
FOLLOWING:
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JUDGMENT
VIKRAMAJIT SEN, C.J. (Oral) :
This appeal assails the order dated 18.9.2007 passed by the learned Single Judge in WP No.26188/05 directing the Land Tribunal to grant occupancy rights in respect of land admeasuring 33 cents in Sy.No.61/30 situated in Surathkal Village, Mangalore Taluk.
2. By its order dated 08.09.2005, the Land Tribunal had dismissed the application pertaining to the said land on 3 grounds. Firstly, that the name of the applicant had not been found in the RTC 1968-69. We have perused the said RTC and found that the conclusion is factually incorrect since the name of the contesting respondent finds due mention therein. The second reason is that the Survey Report does not disclose that the declarant/contesting respondent is in possession of the land. In this regard, we have carefully inspected so called Form No.7 dated 21.12.1976 which states with a preface that the Surveyor had found the declarant to be in possession of the said parcel of land and therefore, the Form which according to the declarant was in the nature of an amendment to the original Form was filed. Thirdly, the Land Tribunal has wrongly observed that the applicant had kept quiet for a period of 30 years for which there was no conceivable 4 justification in that, the Land Tribunal had passed its order on 22.01.1977. What has escaped the notice of the Land Tribunal is that the "second Form No.7" which, we are satisfied in the nature of an amendment application had already been filed prior to passing of the order dated 22.01.1977.
3. In all the proceedings before the Land Tribunal, the land lord who is legal representative now before us as appellant, had remained ex-parte. Obviously, on the coming into force of the Law protecting the occupancy of tenants, the landlord had evinced no interest in the claim that occupancy rights in Form No.7. Since the amendment application was already on the record of the Land Tribunal, before it passing the order dated 22.01.1977, it would not be unfair for us to conclude that the contesting respondents or the occupants of the lands in question were under a reasonable as it turns out mistaken belief, that the entire claim as mentioned in both Form No.7 had been allowed.
4. We may immediately note that the Law does not mandate that there should be only one Form No.7 in respect of all parcels of land of which occupancy rights are claimed; it is permissible to file separate Form No.7 for each and every parcel of land within the occupation of the particular person. 5 Even there is a Division Bench decision of long standing reported as Pakeera Moolya vs. Mari Bhat ILR 1994 KAR 809 which indicates this position of law as also the second proposition which is to the effect that, if an amendment in Form No.7 is sought to be introduced after the expiry of the period permitted for making a claim of occupancy rights it would be treated as a second Form No.7 and therefore, would not be entertainable. In the present case, we hasten to add that the amendment application has been filed within the period permitted by law i.e. 30.06.1979.
5. Twenty four parcels of land were claimed in the Form No.7 originally filed on 24.07.1974 and it would not be sanguine to accept that there would always be a possibility of having failed to make a mention of the particular land by oversight. There is another aspect of the case which has already weighed in the mind of the learned Single Judge that these lands were covered by a lease deed of considerable antiquity, being dated 22.05.1953. This parcel of land i.e. Sy.No.61/13, measuring 33 cents finds due mention in the said lease deed, further fortifying our conclusion that its non- inclusion in the original Form No.7 was by oversight. 6
6. In Narasimhaiah vs. Bacahappa (1980) 2 Kar.L.J. Page No.22, Short Note 74, the Division Bench has clarified that if an application has been disposed of on merits, in respect of the same lands, the applicants cannot present another application. This is not the position which obtains before us since the amendment application had been preferred before a decision pertaining to Form No.7 had been taken. It is also relevant for the reason that the Division Bench has frowned upon the absence of a clear order pertaining to a motion before a quasi-judicial body since in that case the application was ordered merely to be filed. Parameshwar Thimmayya Hegde and Others vs. Venkataraman Manjappa Hegde ILR 2000 KAR 3170 is a single bench decision to the same effect.
7. Reliance has been placed almost in entirety on the Division Bench Judgment in Davalsab vs. State of Karnataka ILR 2008 KAR 280, it no doubt holds that a second application in Form No.7 is not maintainable under the Karnataka Land Reforms Act, 1961 inter alia on the application of Order II Rule 2 of CPC. This position is also of no assistance to the appellant for the simple reason that the amendment application was already pending in the proceedings for adjudication of Form No.7 in which we may add, the landlord had shown complete 7 lack of interest inasmuch as he had been set exparte. The amendment application therefore, ought to have been disposed of along with the main application in Form No.7 but inexplicably remained pending for thirty long years and was opposed only when the notice of that application came to be issued by the Tribunal to the landlord or his legal heirs.
8. There are instances where a claim for one particular land has been raised and rejected and thereafter, another claim is made for the same land by another party. Such a second claim in Form No.7 would not be entertained as it would be clearly an after-thought and endeavour to make a claim for a parcel of land only because of third party has failed in such a claim.
9. We must immediately refer to the Single Bench decision in Giriyappa ILR 2000 KAR 1166 relied upon by the Division Bench in Davalsab and in that case, claim had already been rejected. This difference in the factual matrix should not be lost sight of as in the present case, there has been no rejection of the claim for occupancy rights in respect of said Survey No.61/13 at the hands of the contesting respondents or any other party.
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10. In these circumstances , we are of the view that the learned Single Judge was perfectly right on facts and in law in passing a direction to the Land Tribunal for recording occupancy rights in respect of the said land in favour of the contesting respondent.
The appeal fails and is dismissed.
Since the matter has been discussed in detail by us, because of its widespread implications, the delay of 1539 days will be deemed to have been condoned.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE Sk/-