Karnataka High Court
Vilas Alias Gundu Ananthacharya vs State Of Karnataka on 9 March, 1987
Equivalent citations: ILR1987KAR1427
ORDER Kulkarni, J.
1. This is a revision by the appellants (appellants in No. R.A.L.R. 1078/86) against the order dated 27-1-1987 passed by the Land Reforms Appellate Authority, Belgaum, in No. R.A.L.R. 1078/1986 dismissing the same.
2. The parties have been referred to with reference to their position in the Appellate Authority.
3. Appellant-1 is the elder brother's son of appellant-2. Appellant-3 is the younger brother of appellant-2. S.No. 20/1 measuring 5 acres assessed at Rs. 6-13-0 and S.No. 154/1B measuring 6 acres 4 guntas assessed at Rs. 12-8-0 situate in Devarasheegihalli village of Bailhongal taluk, belong to the appellants. Respondents-3 and 4 who are the brothers, claim that these lands had been leased to their father more than 20 to 50 years back and that their father was in possession and cultivation of these lands till his death and that ever since the death of their father, they are in possession and cultivation of these lands upto date. So claiming, they filed applications in Form No. 7 under Section 45 of the Karnataka Land Reforms Act for conferment of occupancy rights. The Tribunal conferred occupancy rights on respondents-3 and 4 in respect of both the lands. The appellants being aggrieved by the said order, had approached this Court with Writ Petition No. 10223 of 1983. This Court quashed the order passed by the Tribunal and remitted the matter to the Tribunal for fresh consideration. The order passed by the single Judge in Writ Petition No. 10223 of 1983 was challenged in Writ Appeal No. 527 of 1983. This Court by the Order dated 22-7-1986 set aside the order passed by the Single Judge and transferred it to the Appellate Authority, Belgaum, for disposal according to law as per the amended provisions of the Land Reforms Act.
4. The Appellate Authority, Belgaum, on the request of the parties allowed both of them to lead oral as well as documentary evidence. Appellant 2 Krishnacharya examined himself and also examined Basappa Veerabhadrappa Gundagomi, Neelappa Poojari and Veerabhadrappa Basappa Gundagamvi and marked Exhibits A1 to A44. Respondent-3 examined himself and also examined Srikanta Shantappa Thippannavar, Shanta Nemichandra Madnur, Mahaveer Rayappa Kodachavad, Kareppa Bhimappa Valikar, Payappa Hennappa Kodachavad and Chintamani Badappa Majar and marked Exhibits B1 to B53.
5. The Appellate Authority on a consideration of the oral and documentary evidence, affirmed the decision rendered by the Tribunal. Hence the revision by the appellants.
6. The learned Counsel Shri Narayana Rao submitted that the Appellate Authority could not and ought not to have allowed the parties to lead fresh oral and documentary evidence in the appeal. For that purpose, he relied on Section 113 of the Karnataka Land Reforms Act. It reads as :-
"Save as otherwise expressly provided in this Act, the provisions of the Code of Civil Procedure, 1908 (Central Act V of 1908) shall he applicable in respect of all applications and proceedings under this Act before the Court.
(2) The Appellate Authority shall, for the purpose of the disposal of the appeals before it, have the same powers as are vested in a Court of Appeal under the Code of Civil Procedure, 1908 (Central Act 5 of 1908), except the following, namely :-
(a) power of remanding the appeal to the Tribunal either for recording fresh decision or for recording further evidence or for any other purpose ;
(b) power of referring any point or points for decision to the Tribunal ;
(c) such other matters as may be prescribed ;
" (3) The State Government may make rules for-
(a) conferment of such other powers on the Appellate Authority as may be considered necessary.
(b) regulating the practice and procedure of the Appellate Authority and the conduct of its business."
7. Order 41 Rule 27 C.P.C. reads as :-
"Production of additional evidence in Appellate Court, --
(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if,
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not after exercise of due diligence be produced by him at the time when the decree appealed against was passed, or
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment ; or for any other substantial cause, the Appellate Court may allow such evidence to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
According to him, it was not the grievance of any of the parties that the Tribunal had refused to permit them to lead the evidence or that the Tribunal refused to admit the evidence which ought to have been admitted. According to him, it is not the case of any one of the parties that such evidence was not within their knowledge or could not be had after due exercise of diligence by them at the time when the Land Tribunal passed the order. According to him, it is not even the case of the Appellate Authority that the oral evidence and the documentary evidence adduced in the appeal was found necessary by it to pronounce the judgment. Thus he submitted that the recording of the oral evidence and the admission of the documentary evidence by the Appellate Authority was opposed to Order 41 Rule 27 C.P.C. and that thus it should be shut out The Rules as contemplated by Section 113(3) of the Land Reforms Act have been framed by the Government, they are known as the Karnataka Land Reforms Appellate Authority Rules, 1986. As can be seen from it, they have come into force at once. Rule 9 of the said Rules reads as :--
"9. Hearing and production of additional evidence. --
(1) On the day fixed for hearing or any other day to which the hearing may be adjourned, the appellant or petitioner or his agent or pleader shall be heard in support of the appeal or petition. The respondent or his agent or pleader shall, if necessary be heard next and in such cases the appellant or his agent or pleader shall be entitled to reply.
(2) The hearing of an appeal or petition shall generally be on the entire case. However, the Appellate Authority may direct the parties to address arguments with regard to limitation, maintainability or such other grounds when it considers that the matter can be disposed of on such grounds only.
(3) The appellant or petitioner shall not, except by leave of the Appellate Authority, urge or be heard in support of any ground of objection in an appeal or petition, not set forth in the memorandum of appeal or petition :
Provided that the Appellate Authority shall not rest the decision on any other ground of fact unless the party who may be affected thereby had sufficient opportunity of contesting the same on that ground.
(4) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary before the Appellate Authority. But if-
(i) the Tribunal from whose order the appeal is preferred has refused to admit evidence which ought to have been admitted; or
(ii) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not after the exercise of the due diligence, be produced by him at the time when the order Appealed Against was passed ; or
(iii) the Appellate Authority requires any document to be produced or any witness to be examined or enable it to pronounce judgment or for any other substantial cause ; or
(iv) the Appellate Authority considers it necessary so to do in the ends of justice, the Appellate Authority may allow such evidence or document to be produced or witness to be examined.
5) A party desiring to produce additional evidence shall file an application stating the evidence proposed to be produced, supported by an affidavit giving the reasons therefor, and shall serve copies of such application and affidavit on the opposite party.
(6) Whenever additional evidence is allowed to be produced by the Appellate Authority, the Appellate Authority shall record the reasons for its admission.
(7) Where additional evidence is directed or allowed to be taken, the Appellate Authority shall specify the points to which the evidence is to be confined and record on its proceedings the points so specified."
This is in pari materia with Order 41 Rule 27 C.P.C.
8. A look at the order sheet and the proceedings in the Appellate Court shows that on 6-1-1987 the appellants filed an application I.A. No. 1 under Order 41 Rule 27 C.P.C. which is the same as Rule 9 of the Appellate Authority Rules, for seeking permission to produce oral and documentary evidence The appellate authority has stated in the order sheet that the said application was supported by an affidavit also. It has stated that the interest of justice demanded that the appellants should be given an opportunity to lead evidence to show that they have been in personal possession and cultivation of the suit lands. They have also pointed out that this Court in Writ Petition No. 10223 of 1983 had stated that the proceedings before the Land Tribunal were in contravention of Rule 17. Hence it found that it was absolutely necessary in these circumstances to permit the appellants to lead evidence. As an opportunity was given to the appellants, the Appellate Authority also thought it fit to allow respondents-3 and 4 also to lead necessary evidence. They have given permission to both the parties to lead evidence. Therefore the reasons given by the Appellate Authority for permitting the parties to lead oral and documentary evidence fall squarely within the limit of Rule 9 of the Appellate Authority Rules and Order 41 Rule 27 CP.C.
9. As can be seen from the proceedings before the Land Tribunal, it is clear that it has recorded the evidence of the parties in a most hapazard way and the parties have not been given any opportunity to cross-examine the witnesses at all. From the proceedings before the Land Tribunal, it appears that the parties were not permitted to produce the necessary documents in support of their case. Therefore as rightly pointed out by the Appellate Authority, the ends of justice do demand that an opportunity should be given to both the parties to lead oral and documentary evidence. Hence, under these circumstances, the argument of the learned Counsel Shri Narayana Rao in this connection merits to be rejected. Therefore the entire evidence adduced by both the parties will have to be taken as one produced by them according to law and it ought to be taken into consideration while deciding or disposing of the case in question.
10. The learned Counsel Shri Narayana Rao for the appellants and the learned Counsel Shri Mandagi for respondents 3 and 4 strived very hard and addressed very elaborate and lengthy arguments to point out the powers of this Court while hearing the revision petition. According to Shri Mandagi this Court while disposing of the revision will have to confine itself to the legality of such an order and the regularity of such proceedings. In short, Shri Mandagi contended that this Court cannot re-assess the evidence adduced by the parties. According to Shri Narayana Rao under Section 121A of the Karnataka Lands Reforms Act, it was permissible for this Court while disposing of the prevision to re-assess the evidence. Section 121A of the Karnataka Land Reforms Act reads as :-
"The High Court may at any time call for the records of any order or proceeding recorded by the Appellate Authority under this Act or any other law for the purpose of satisfying itself as to the legality of such order or as to the regularity of such order proceeding and may pass such order with respect thereto as it thinks fit ;
Provided that no such order shall be made except after giving the person affected a reasonable opportunity of being heard."
According to Shri Narayana Rao in order to find out the legality of the order, this Court will have to look into the evidence and if necessary re-assess the evidence. For that purpose, he relied on M.K.Narayanappa v. Geetha Stores, 1980(2) KLJ 347. In the said case, Section 50 of the Karnataka Rent Control Act which dealt with the power of this Court, came up for consideration. Section 50 of the Karnataka Rent Control Act, which came up for discussion in the said case, reads as :-
"Revision.-- (1) The High Court may at any time call for and examine any order passed or proceeding taken by the Court of Small Causes or the Court of Civil Judge under this Act or any order passed by the Controller under Sections 14, 15, 16 or 17 for the purpose of satisfying itself as to the legality or correctness of such order or proceeding and may pass such order in reference thereto as it may think fit "
So Section 50 of the Karnataka Rent Control Act gives the High Court the power to call for and examine records relating to any decision given or proceeding taken by the District Judge for the purpose of satisfying itself as to the legality or correctness of such decision, order or proceeding and it further empowers the High Court to pass such order as it thinks fit. In the said decision, it is pointed out that the revisonal power of the High Court under Section 115 C.P.C. is extremely limited while the power of revision under Section 50 of the Karnataka Rent Control Act is wider and wider than the ambit prescribed by Section 115 C.P.C. In the said Narayanappa's case, 1980(2) KLJ 347 the decision in Dattopant Gopalvarao Devakate v. Vithalrao Marutirao, AIR 1975 SC 111 was referred to. It has been laid down in the said Dattopant's case, AIR 1975 SC 111 as :-
"It is true that the power conferred on the High Court under Section 50 is not as narrow as the revisional power of the High Court under Section 115 of the Code of Civil Procedure. But, at the same time, it is not wide enough to make the High Court a second Court of first appeal."
Section 50 of the Karnataka Rent Control Act came up for consideration in Dattaram v. K. Guraraja Bhat, 1971(2) Mys. L.J. 402. It has been held in the said case that if the High Court found that the material evidence on record was ignored or a finding was such that on the evidence taken as a whole no Court can give such a finding, or a decision is manifestly unjust the High Court is entitled to interfere, and re-assess the evidence. In the said Dattaram's case, 1971(2) Mys. L.J. 402 regarding the scope of Section 50 of the Karnataka Rent Control Act, Range Gowda, J. in the light of the interpretation placed by the Supreme Court in Central Tobacco Company, Bangalore v. Chandra Prakash, (1969) 1 RCR 579 has stated as :--
"When the High Court in the exercise of its revisional jurisdiction is of the opinion that the material evidence on record is ignored or a finding is such that on the evidence taken as a whole no Court can give such a finding or a decision is manifestly unjust, the High Court is entitled to interfere."
11. In P. K. Rukmini Bai v. Venkateswara Silk House, 1971 (2)Mys L.J. 635 this Court after reviewing the authorities bearing on the scope of Section 50 of the Karnataka Rent Control Act observed as :
"Therefore, having regard to the scheme of the Mysore Rent Control Act and the power conferred upon the High Court under Section 50 of the Mysore Rent Control Act, the jurisdiction to go into the question of legality or correctness of the decision includes the power to reappreciate the evidence. An examination of the correctness of the finding on fact involves the actual reassessment of evidence, and therefore, this Court is entitled to go into the question of fact and arrive at a decision."
12. The scope of Section 50 of the Karnataka Rent Control Act has been considered in more elaborate and thorough manner by this Court by Venkatachalaiah, J. in Narayana Gangasa Bhure v. Ramachandra Ambasa Kalburgi., 1977 (2) KLJ 202 In para 20 it is stated as :
"Shri R. U. Goulay next contended that the Courts below had concurrently held, as a fact, that the need of the respondent was both bona fide and reasonable and that this Court should not in revision embark upon a reappreciation of the evidence, unless, there was a miscarriage of justice. He relied on some observations of the Supreme Court in Phiroze Bamanji Desai v. Chandrakant M. Patel . In that case, the Supreme Court was concerned with the revisional powers of the High Court under Section 29(3) of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947, which limited the revisional jurisdiction of the High Court only to examining whether the decision of the District Judge was 'according to law'. But, having regard to the language of Section 50 of the Act this contention does not seem to be apposite. It is true that while the power conferred on the High Court under Section 50 of the Act is not as narrow as the re-visional power of the High Court under Section 115 C.P.C. it is not also wide enough to make the High Court a second Court of first appeal. But having regard to the scheme of the Act and the power conferred upon the High Court under Section 50, the jurisdiction to go into the question of legality or correctness of the decision includes the power to reappreciate the evidence. The High Court can interfere if the findings of the appellate Court are shown to be erroneous (See Neta Ram v. Jiwal Lal and P. K. Rukmini Bai v. Venkateswara Silk House (AIR 1972 Mys. 143) "
This Court after elaborately considering the scope of power under Section 50 in Narayanappa's case, 1980(2) KLJ 347 has held that though the power under Section 50 of the Karnataka Rent Control Act was not wide enough to make the High Court a second Court of first appeal, still the powers under Section 50 of the Karnataka Kent Control Act are wider than the ones regulated under Section 115 C.P.C. and the High Court while exercising the revisional jurisdiction under Section 50 of the Karnataka Rent Control Act in order to find out the legality or otherwise of the order can reappreciate the evidence though in a limited manner. This Court in the said Narayanappa's case, 1980(2) KLJ 347 has further stated on page 350 as :-
"From the above it is clear that it is open to this Court to reappreciate the evidence and decide the case finally also. But before doing so, it is useful to examine what an appeal is, the limitations recognised in deciding an appeal even in the absence of any limitation placed by the Act on the powers of an Appellate Court and whether the Learned District Judge, the first and final Court of appeal under the Act, has decided the appeal bearing those principles."
This Court in the said Narayanappa's case, 1980(2) KLJ 347 has further stated in para 10 as :-
"A proceeding under the Act is a civil proceeding. An appeal is a complaint to a superior Court against an order made by an inferior Court. According to Lord Davey in Ponnamma v.- Arumogam (1905 A.C. 390), An appeal, strictly So Called, is one 'in which the question is, whether the order of the Court from which the appeal is brought was right on the materials which that Court had before it'. In deciding an appeal, an Appellate Court is required to examine the legality, correctness and propriety of the order that is challenged before it. An Appellate Court, in the absence of any restriction placed by the statute, has all the powers of the original Court. But, that does not necessarily mean that an Appellate Court can decide an appeal without examining the reasons and conclusions drawn by the lower Court. On the other hand it is bound to consider the reasons and findings of the lower Court and give reasons, for its concurrence or difference."
It has been further stated in para 11 on page 351 as :-
"An Appellate Court in examining an appeal should always bear in mind that on questions of fact that largely depend on oral testimony, the conclusions of the Trial Court will not be lightly interfered with, vide Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh and Radha Prasad Singh v. Gajadhar Singh In Sarju Pershad Ramdeo Sahu's case the Supreme Court stated the principles in these words :
"The rule is and it is nothing more than a rule of practice - that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the Trial Judge's notice or there is sufficient balance of improbability to displace his opinion at to where the credibility lies, the Appellate Court should not interfere with the finding of the Trial Judge on a question of fact.
....The duty of Appellate Court in such cases is to see whether the evidence taken as a whole can reasonably justify the conclusion which the Trial Court arrived at or whether there is an element of improbability arising from proved circumstances which, in the opinion of the Court, outweighs such finding."
"Another equally important well recognised principle touching on the credibility of witneses, re-stated by the Supreme Court in T. D. Gopalan v. Commissioner, H.R.C.E Madras is this :
"The universal practice in the matter of appreciation of evidence has been that, if the Trial Court has given cogent and detailed reasons for not accepting the testimony of a witness, the Appellate Court, in all fairness to it, ought to deal with those reasons before proceeding to form a contrary opinion about accepting the testimony which had been rejected by the Trial Court."
13. Shri Mandagi, learned Counsel for respondents-3 and 4. relied on Yelappa Garappa Mudashi v. Kallappa Hallappa Hanchiyal and Ors., 1959 Mys. L.J 932. It is stated in the said case as :-
"On the question as to whether it was competent for the Bombay Revenue Tribunal to retain the revision Petition on its file and call for findings from the District Deputy Collector, it is not necessary for us to express any opinion in this case since it was not argued before us that the procedure adopted by the Bombay Revenue Tribunal in that way was not in conformity with the provisions of the Act. But the mere fact that the Bombay Revenue Tribunal called for findings from the District Deputy Collector did not entitle the Board of Revenue to reassess the evidence on which those findings were based and to investigate into the question as to whether those findings were correct. So long as the District Deputy Collector had evidence before him which he believed and which supported he findings recorded by him, it was not open to the Board of Revenue to consider the correctness of those findings even though such findings had been transmitted, to the Board of Revenue as a result of an order which had been made by the Tribunal, They were nevertheless findings of fact which became final the moment they were recorded by the District Deputy Collector The revisional jurisdiction which the Board of Revenue could have exercised after the receipt of those findings was still the jurisdiction which it could exercise only under Section 76 of the Bombay Tenancy and Agricultural Lands Act under which the Board of Revenue could not go into the correctness of those findings of fact."
14. Under Section 76 of the Bombay Tenancy and Agricultural Lands Act, 1948, an application for revision would lie against any order of the Collector on the following grounds :-
(a) that the order of the Collector was contrary to law ;
(b) that the Collector failed to determine some material issue of law ; or
(c) that there was a substantial defect in following the procedure provided by this Act, which has resulted in the miscarriage of justice."
The requirements laid down by Section 76 of the Bombay Tenancy and Agricultural lands Act are entirely different from the requirements laid down in Section 121A of the Karnataka Land Reforms Act or Section 50 of the Karnataka Rent Control Act. Therefore, as the requirements of Section 76 of the Bombay Tenancy and Agricultural Lands Act are entirely different, the principle laid down in the said Yellappa Garappa Mudashi's case, 1959 Mys. L.J 932 will not be of much help in the present case. After the decision in Yellappa Garappa Mudashi's case, 1959 Mys. L.J 932 was rendered, there have been rulings of the Supreme Court and of this Court regarding the interpretation of Section 50 of the Karnataka Rent Control Act which is almost akin to Section 121A of the Karnataka Land Reforms Act. Therefore, the principle laid down in the said Yellappa Garappa Mudashi's case, 1959 Mys. L.J 932 will not be an authority while finding out the scope of revision while deciding the case under Section 121A of the Karnataka Land Reforms Act.
15. Shri Mandagi then referred to V. Ramachandra Ayyar and Anr. v. Ramalingam Chettiar and Anr., in elaboration of his contention that once there has been a final decision of the case then this Court even while deciding the scope under Section 100 C.P.C. cannot enter into reappreciation of the evidence. However it has been stated in the said decision as :-
"If a finding of fact has been recorded by the first Appellate Court without any evidence, that finding can be successfully challenged in second appeal, because a finding of fact which is not supported by any evidence can be questioned under Section 100 ; and in that connection, it may be said that the decree proceeding on such a finding discloses a substantial defect or error in procedure. This, however, does not mean that wherever the High Court thinks that the evidence accepted by the lower appellate Court could not have been reasonably accepted, the High Court would be justified in interfering with the decision of the lower appellate Court. All that it means is that it should be a case where the evidence, which is accepted by the lower appellates Court, no reasonable person could have accepted and that really amounts to saying that there is no evidence at all."
Therefore 'even in the second appeal, a Court can interfere with the question of fact if the High Court finds that the evidence which was accepted by the lower appellate Court no reasonable person could have accepted. Therefore, under these circumstances, the said Supreme Court decision would not materially advance the contention of the learned Counsel Shri Mandagi.
16. According to the learned Counsel Shri Mandagi, this Court while disposing of the revision is bound by the conclusion of the lower Appellate Court on the question of fact however erroneous it might be and however grossly perverse it might be so long as the Appellate Court had the power or jurisdiction to decide the same. But, as already indicated above even by the Supreme Court, if a conclusion arrived at by the lower appellate Court is not supported by any evidence on record and if there is no evidence to support the conclusion arrived at by the Appellate Court, then the High Court will have to step in and correct the error or the defect in the conclusion even arrived at by the Appellate Court. Normally the High Court while exercising the revisional jurisdiction will be bound by the findings of facts recorded by the Appellate Court so long as it is substantiated by the material on record and so long as there is material on record to support that conclusion But if there is no evidence to support that conclusion and if the evidence relied on by the lower Appellate Court for arriving at such conclusion is grossly misread by the lower appellate Court, then this Court cannot shut its eyes and cannot refuse to interfere.
17. According to Shri Mandagi, the appeal is a rehearing of the suit itself by a superior Court and that therefore the Appellate Court also had the power to reassess the evidence. According to Shri Mandagi, the revision is only a critical examination of the record by this Court and this Court should not embark and has no jurisdiction to embark upon the reappreciation of the evidence. Normally the revisional Court would be bound by the findings of fact recorded by the lower Appellate Court or the Trial Court. But if the finding recorded by the Trial Court or the first Appellate Court is not supported by the evidence on record and if the evidence relied on by the lower Appellate Court for arriving at such a conclusion is grossly misread by it and if there is no evidence to support the conclusion arrived at by the lower appellate Court or the Trial Court, this Court, in order to find out the legality of the order has still got the power to re-appreciate the evidence.
18. The learned author Shri Sabhahit in his commentary on the Karnataka Rent Control Act, 1983 Edition, has stated on page 468 as :-
"The revisional jurisdiction of the High Court is wide enough to cover both question of law as well as of facts, where principles of natural justice are violated (Raman and Raman Ltd., v. Government of Madras ), It may be that revision lies both against orders passed by the District Judge in appeal and against orders passed by the Controller under Sections 14, 15 and 16. The revisional jurisdiction conferred under this Section on the High Court is much wider than the revisional jurisdiction conferred by Section 115 of the Code of Civil Procedure, though it is true that the revisional jurisdiction conferred under this Section cannot be put on a par with the jurisdiction exercisable in an appeal. (Purachand -v. Motilal : A.I.R. 1954 SC 461)."
19. If this Court refuses even under these circumstances to reappreciate the evidence, it would be as good as this Court perpetuating the unjust and incorrect order passed by the lower Courts Therefore after perusing Section 121A of the Karnataka Land Reforms Act and the similar provision contained in Section 50 of the Karnataka Rent Control Act and after reading it in comparison with Section 115 of the Civil Procedure Code and after taking into consideration the purpose underlying Section 121A introduced in the Land Reforms Act by the Amendment Act No 19 of 1986, it appears to me that this Court while exercising the revisional power is required to reappreciate the evidence whenever it finds that the conclusion arrived at by the lower Appellate Court runs contrary to the material on record or when it finds that there is no evidence to support the conclusion of the Appellate Court or when it finds that the reasons given by the Appellate Court are absolutely perverse and cannot be supported by the evidence on record.
20. The revision petitioners-appellants have produced the record of rights extracts, which show the name of cultivators also. They show that both the lands in question are in the personal cultivation, possession and enjoyment of the appellants-revision petitioners at least for the period from 1954 down to the end of 1976 and onwards. Section 133 of the Land Revenue Act reads as :-
"An entry in the Record of Rights and a certified entry in the Register of Mutations (or in the patta look) shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor."
The Appellate Authority has lightly dealt with this statutory presumption by stating that the oral evidence adduced by the respondents sufficiently rebuts the same. The oral evidence adduced by the respondents, as can be shown later on, is far from being satisfactory If the entries made by a public servant in discharge of his duties as a public servant are to be held as rebutted by the oral, discrepant, incredible, tainted and interested testimony of the parties and their witnesses, then the entries would have no meaning at all. The Karnataka Land Reforms Act has been on the anvil since 1965, Prior to that, the Bombay Tenancy and Agricultural Holdings Act was in force ever since 1948 and even prior to it there were Tenancy Acts prevailing in the Bombay area. If respondents, 3 and 4 were really cultivating the land, it is too much to say that they would allow the Village Accountant to make wrong entries and would permit the public authorities to continue to make wrong entries for such a long number of years. Respondents 3 and 4 have tried to give an explanation that they did not make any attempt to get the entries rectified because they were afraid that the landlords may dispossess them from the lands. The explanation is not satisfactory and acceptable. However, considerable provisions have been made in order to safeguard the interest of the tenants. Therefore, the explanation given by respondents 3 and 4 for not getting these entries rectified, does not merit to be accepted.
21. The learned Counsel Sri Mandagi referred me to the record of rights extract Exhibit B. 49 relating to Survey No. 154/1B, which shows that Rudrappa, father of respondents 3 and 4, was the cultivator of S. No. 154/1B for the years 1945-46 to 1952-53. Even assuming for a moment that Rudrappa was cultivating Survey No. 154/1B (which is one of the petition lands) for the years 1945-46 to 1952-53, we cannot rush to raise a presumption that even thereafter, he continued to be in possession and cultivation of the lands in question.
22. The learned Counsel Sri Mandagi relied on Thunga Bai & Ors. v. Visbalakshi Heggadthi and Anr., 1974 (2) KLJ 484. It was a case where an allegation had been made that the tenants Govinda Naika and Badiya Naika had surrendered the land. It is not the case of the revision petitioners in this case that Rudrappa -- father of respondents 3 and 4, had surrendered the land to them. It was a case where legal representatives of Govinda Naika and Badiya Naika contended that they were the tenants in possession of the suit land till the Land Reforms Act came into force on 2-10-1965. The record of rights extract Exhibit B-49 does not show that Rudrappa was in possession and cultivation of Survey No. 154/1B round about or on the date when the Land Reforms Act of 1965 came into force or at least on 1-3-1974. Therefore, the principle laid down in the said Thunga Bai's case, 1974 (2) KLJ 484 will not help him much.
23. He then relied on Ramchandra Keshav Adke (Dead) by L.Rs v. Govind Joti Cbavare and ors., . The Supreme Court has stated in the said case that in order to make a surrender effective and -legal, the following requirements must be satisfied ;
"(1) It must be in writing (2) It must be verified before the Mamlatdar (3) While making such verification the Mamlatdar must satisfy himself in regard to two things, namely, (a) that the tenant understands nature and consequences of the surrender, and (b) that it is voluntary. (4) The Mamlatdar must endorse his finding as to such satisfaction upon the document of surrender."
As already stated above, it is not even the case of the revision petitioners in this case that Rudrappa was in possession and cultivation of even Survey No. 154/1B at any time or that he surrendered the same. The case of surrender is not pleaded either by the revision petitioners or Respondents 3 and 4. Therefore, the principle laid down in the said Supreme Court case will not be of much help to Mr. Mandagi.
24. Sri Mandagi then referred me to Sita Ram Bhau Patil v. Ramachandra Nago Patil (Dead) by L.Rs., and Anr., . It considered the presumption to be raised under Section 135-J of the Bombay Land Revenue Code, which appears to be in pari-materia with Section 133 of the Karnataka Land Revenue Act. The Supreme Court has stated in para 20, as --
"With regard to the record of rights Counsel for the appellant said that presumption arises with regard to its correctness. There is no abstract principle that whatever will appear in the record of rights will be presumed to be correct when it is shown by evidence that the entries are not correct. Apart from the intrinsic evidence in the record of rights that they refer to facts which are untrue it also appears that the record of rights have reference to the mutation entry that was made by the Circle Officer on 30 January 1956. Counsel for the respondent rightly contended that no presumption could arise for two principal reasons. First, the oral evidence in this case nullified the entries in the record of rights as showing a state of affairs opposed to the real state of affairs, and, second, no notice was ever given to the respondent with regard to mutation proceedings."
In the said Supreme Court case, the oral evidence was found to be satisfactory and acceptable. The necessary entries in the record of rights referred to a mutation entry, which had been carried out without issuing notice and without following the procedure laid down by the law. In this case, there is no question of mutation entry at all by virtue of which the name of Rudrappa was deleted and names of the revision petitioners were shown in the record of rights. As would be shown later, the oral evidence of respondents 3 and 4 and their witnesses is unsatisfactory and no reasonable person would ever be inclined to accept the same. Therefore, the principle laid down in the said Supreme Court case also will not be of any help to, him in the present case.
25. Admittedly Rudrappa died long back i.e, round about 1960. If Rudrappa was really in possession and cultivation of the land RS No. 154/1B, his name would have appeared and would have continued to appear in the record of right in respect of S.No 154/1B at least till his death in or about 1960. Exhibit B-49 shows the name of Rudrappa for the years 1945-46 to 1952-53. This circumstance would also show that the entries found in the cultivator's column in Exhibit B-49 are not correct. Respondents 3 and 4, who claim to be cultivating the land even after the death of their father, have not chosen to get their names entered in the record of rights or in the cultivator's column. Therefore, the argument of Sri Mandagi that by virtue of the entries to be found in Exhibit B-49 for the years 1945 46 to 1952-53, a presumption should be drawn that Rudrappa till his death and thereafter his sons are cultivating the land, is rather too far fetched and cannot be accepted. Merely because long long ago the name of Rudrappa is found in the cultivator's column, no presumption can be drawn that Rudrappa continued to be in possession of the land till his death and that thereafter his sons respondents 3 and 4 continued to be in possession and cultivation of the land down till to-day or at least till 1-3-1974. That no such presumption arises on account of the entries for the period long long ago, is made clear by the Supreme Court in Sri Bhimeshwara Swami Varu Temple v. Pedapudi Krishna Murthy & ors., . It is stated in paras 5 and 8 as :
"5. It is true that the name of the appellant is recorded as a "ryot" in 3 entries in the revenue accounts, Exhibits A-9, A-10 and A-ll. Exhibit A-9 is an extract from the Settlement Register of the village of Vungutur and is referred to as No. 10 account of Vungutur village. Exhibits A-10 and A-ll are extracts from the Diglet Register It has however to be remembered that as against these stray entries almost the entire revenue record is in favour of the Archaks. For example, Exhibit B-39 which is an extract from the Resettlement Register of the year 1866 shows that old survey No. 256 corresponding to R.S. No, 1057, with which we are concerned, stood in the name of "Kottalanka Ramanna Ganganna" as the pattadar. Ramanna and Ganganna were brothers, both being Archakas of the temple. Exhibit B-2 of the year 1896 which is called a "Keroyati Patta" also shows that old Survey No. 256 was granted to Kotta Lanka Bupanna, who was the Archaka of the temple. The rough patta Exhibit B-15 dated June 4, 1900 and the fair patta Exhibit B-43 of the year 1902 are also in the name of Kothalanka Bupanna. The long course of entries which were consistently in favour of the Archakas cannot be ignored in preference to the entries in favour of the temple for a solitary year.
8. No useful purpose will be served by discussing the oral evidence led by the parties. That evidence is of an uncertain character and is inadequate to displace the presumption arising out of the several entries spread over a large number of years showing that R.S. No. 1057 belonged to the Archakas and was in their possession in their own right."
26. The Appellate Authority has mis-read the effect of the record of rights Exhibit B-49 in the case. This has resulted in grave injustice, 11 the record of rights Exhibits A-l to A-4, which are for the years 1953-54 to 1975-76 are read and due statutory presumption is raised from the entries made in them, the evidence of the revision petitioners that they have been in possession and personal cultivation and enjoyment of both the suit lands for the last fifty years, merits to be accepted.
27. Exhibit A-5 is a levy notice issued to the revision petitioners. Exhibits A-6 and A-7 are the levy receipts showing that the revision petitioners have given the levy. It may be that the levy receipts are not required to be maintained in discharge of a statutory duty, but at least some little weight can be attached to these documents, because they have come into existence at an undisputed point of time.
28. It is admitted by both the parties that sugar cane and paddy are being raised in the petition lands and that the sugar cane grown is being sold to Malaprabha Co-operative Sugar Factory, Mugut Khan Hubli. Admittedly the sugar cane grown in the lands is being transported to the factory and there it is weighed. Exhibits A-8 to A-36 are the sugar cane weighment receipts issued by the said Sugar Factory and they are of the year 1971. They go to show that they relate to Survey No. 154/1B and Survey No. 20/1. They show the name of petitioner-2 as the owner of the sugar cane. The revision petitioners have stated in the course of their evidence that respondents 3 and 4 were taking the work of cutting the sugar cane and removing the same to the sugar factory and that therefore their names were shown. The said receipts show the names of the cartmen as Devappa, Parisappa, Jinnappa (Respondent No. 4), Malleshappa, Devendrappa (Respondent No. 3), etc. Therefore, the story of the revision petitioners that they alone were raising the sugar cane in the petition lands and that respondents 3 and 4 were taking the work of cutting and transporting the sugar cane from their petition lands to the sugar factory, is well corroborated by the entries found in the said weighment receipts Exhibits A-8 to A-36. The contention of respondent Nos. 3 and 4 that the revision petitioners had not led any evidence to show that respondents 3 and 4 were taking up the work of cutting and transporting the sugar cane on contract, stands belied by the entries to be found in Exhibits A-8 and A-36.
29. Exhibit A-37 is the certificate issued by the malaprabha Co-operative Sugar Factory on 1-12-1980, certifying that the Sugar Factory had purchased the sugar cane raised in Survey No. 20/1 and 154/1B by revision petitioner-2 Krishnacharya. This is also a circumstance to strengthen the case of the revision petitioners that it is they that have been raising sugar cane crop in both the Petition lands. Exhibit A-38 is another certificate issued by the said Sugar Factory showing that it had purchased the sugar cane from Ananthacharya, father of Petitioner-1, raised in Survey Nos. 20/1 and 154/1B- It is also dated 1-12-1980. Exhibit A-41 is the sugar cane final bill dated 26-9-1972. It shows the name of revision petitioner-2 Krishnacharya. This also supports the case of the revision petitioners. Exhibit A-42 is a declaration or an affidavit made by revision petitioner-2, while taking loan of Rs. 2,500/- from the Society. It is shown therein that Survey Nos. 20/1 and 154/1B, which are petition lands belong to the revision petitioners and they are cultivated by them- It is dated 12-6-1969, It is signed by revision petitioner-2, It is attested by Devendrappa Rudrappa Budnur (Respondent No. 3). The explanation given by respondents 3 and 4 that respondent-3 attested the said document in order to enable the landlord to raise the loan is rather hard to believe. The very fact that respondent-3 attested the declaration or the affidavit, which shows that the lands are cultivated by the revision petitioner, would belie the story of respondents-3 and 4 that they were cultivating the petition lands since last 50 to sixty years till to-day. Exhibit A-43 is another Kabuliyath executed by revision petitioner No. 2 in favour of Chairman of Devarashigihally Village Service Co-operative Society. It is dated 18-3-1980. It also supports the revision petitioners' case. Exhibit A-44 is a certificate issued by Chairman, Devarasigihally village Service Co-operative Society to revision petitioner-2 stating that loan had been advanced by the society to him on the charge of Survey No. 20/1 and 154/1B, which are the petition lands. This document has come into existence long before the present dispute arose between the parties.
30. The respondents have produced the document described as lavani parishilu for the year 1977-78. It shows the name of respondent-3 Devendrappa. But the land mentioned therein is Survey No. 154/1 A. Survey No. 154/1A is not the petition land at all. Therefore, it will not help the respondent Nos. 3 and 4. Exhibits B-2 to B-13 either refer to Survey No. 154 or Survey No. 154/1. They do not refer to Survey No. 154/1B at all. Therefore, though they may show the name of respondent-3 Devendrappa as the owner of the sugar cane sold to the society, they will not help respondents 3 and 4 in showing that Survey No, 154/1B, which is one of the petition lands, was in the cultivation of respondents 3 and 4. Exhibits B-14 to B-29 no doubt refer to Survey No. 20/1. They give the name of respondent-4 Jinnappa as the owner of sugar cane. After all the said weighment receipts are issued by the factory in the premises of the factory. They would not have had any knowledge about the cultivation of the sugar cane crop. The information mentioned in such weighment receipts is the one given by the person, who would have carried sugar cane to the factory. Such receipts only contain hearsay information on the basis of which the Survey number of the land would be mentioned in them. Therefore the said receipts Exhibits B-14 to B-29 also do not help respondents 3 and 4.
31. Weighment receipts Exhibits B-30 to B-47 show the name of respondents 3 and 4 as owner of the sugar cane crop sold to the factory. But they give Survey No. 20 only. Survey No. 20 is not the subject matter of the petition at all. Therefore, the said receipts will not help respondents 3 and 4. As already stated above, the name of the owner of the sugar cane mentioned in the said weighment receipts does not mean that it was he that had raised the sugar cane. As already indicated above, the information relating to the survey number mentioned in the said receipts would be based on the information given by the person who might have carried the sugarcane to the factory. It would be rather hazardous to base any conclusion on such documents.
32. Further it can be seen with advantage that respondents 3 and 4 have not produced any pahani or record of rights to show that Survey No. 20/1 was in the possession and cultivation of either their father or themselves at any time. If this is also taken into considetation, the said weighment receipts would not help respondents 3 and 4 in the least.
33. Further it can be seen with advantage that Exhibits B-l and B-13 are of the year 1977 and Exhibits B-14 to B-47 are of the year 1979. Applications for conferment of occupancy rights have been filed in the year 1978. Receipts Exhibits B-14 to B-47, which are of the year 1979 have come into existence only after the applications for conferment of occupancy rights had been filed by respondents 3 and 4. Therefore, they are the documents, which came into existence after the riling of the applications by respondents 3 and 4. Therefore, they would not have much evidentiary value at all. So far as Exhibits B-1 and B-13 are concerned, they do not refer to the petition lands, Survey Nos. 154/1B and 20/1. Therefore they also will not help the respondents. Therefore, the documentary evidence adduced by respondents 3 and 4 is thoroughly unsatisfactory and does not even remotely indicate that they were in possession and cultivation of the suit lands at any time or since the last 50 to 60 years as claimed by them or atleast during the relevant period i.e. 1-3-1974. On the other hand, the documentary evidence adduced by the revision petitioners show that they were in possession of both the petition lands from 1953-54 onwards down till to-day.
34. The learned Counsel Sri Mandagi drew my attention to the definition of the word 'agriculture' given in Section 2(1) of the Karnataka Land Reforms Act, which reads, as--
"Agriculture includes :
(a) horticulture ;
(b) the raising of crops, grass or garden product ;
(c) dairy farming ;
(d) poultry farming ;
(e) breeding of livestock ;
(f) grazing but does not include the cutting of wood only."
He contended that cutting of the sugar cane crop had not been excluded from the definition of the word 'agriculture' According to him, the person cutting sugar cane will have to be deemed as carrying on agriculture. A little acquaintance with the village life would show that the person growing sugar cane would not actually or personally cut the sugar cane or would not remove or transport it to the factory. Labourers will be engaged to cut the sugar cane. The work of cutting and transporting the sugar cane, some times, would be given on contract. If the argument of the learned Counsel Sri Mandagi is to be accepted, then the persons, who would have been casually entrusted with the contract work of cutting and transporting the sugar cane, will have to be deemed to be agriculturist. It would be too hazardous a conclusion to be drawn from the definition of agriculture under Section 2(1) of the Karnataka Land Reforms Act.
35. The word 'tenant' has been defined by Section 2(34) of the Karnataka Land Reforms Act. It reads as -
" "tenant" means an agriculturist who cultivates personally the land he holds on lease from a landlord and includes :--
(i) a person who is deemed to be a tenant under Section 4;
(ii) a person who was protected from eviction from any land by the Karnataka Tenants (Temporary Protection from Eviction) Act, 1961;
(iia) a person who cultivates personally any land on lease under a lease created contrary to the provisions of Section 5 and before the date of commencement of the Amendment Act;
(iii) a person who is a permanent tenant; and
(iv) a person who is a protected tenant."
The present tense is used in the said definition. Therefore, in order to get the benefit of the Karnataka Land Reforms Act, the person claiming to be a tenant must show that he has been and he is in cultivation of the land even on the material date i.e., on 1-3-1974. The definition of the word 'tenant' does not include persons, who were tenants some time before 1-3-74 or some time before the coming into operation of the Land Reforms Act. Therefore, the argument of the learned Counsel Sri Mandagi based on the entries in the record of rights extract Exhibit B-49 that Rudrappa who was shown as cultivator for the years 1945-46 to 1952-53 regarding Survey No. 154/1B, should be presumed to have been continued as tenant, runs contrary to the law and also the principle laid down in the above said B.S.V. Temple case.
The explanation given to Section 2(34) reads as--
"A person who takes up a contract to cut grass, or to gather the fruits or other produce of any land, shall not on that account only be deemed to be a tenant."
This explanation renders hollow and unacceptable the argument of the learned Counsel Sri Mandagi that if the work of cutting sugar cane and transporting sugar cane, is given on contract, the person who would take up such contract would be a tenant. His argument cannot be accepted in view of the said Explanation to Section 2(34) of the Land Reforms Act.
36. Section 44 of the Land Reforms Act reads as-
"Vesting of land in the State Government :--
(1) All lands held by or in the possession of tenants (including tenants against whom a decree or order for eviction or a certificate for resumption is made or issued) immediately prior to the date of commencement of the Amendment Act, other than lands held by them under leases permitted under Section 5, shall, with effect on and from the said date, stand transferred to and vest in the State Government."
Therefore, this makes it clear that only those lands, that were in possession of the tenants, on or about 1-3-1974. would stand vested in the State Government. Therefore. the lands, even if they were in possession of the tenants some time or some years before 1-3-1974, would not be vested in the State Government at all. It is only in respect of such land vested in the State Government that the tenant has been given a right to file an application for conferment of occupancy rights.
37. Section 45 reads as :
Subject to the provisions of the succeeding Section of this Chapter, every person who was a permanent tenant, protected tenant or other tenant or where a tenant has lawfully sublet, such sub-tenant shall with effect on and from the date of vesting be entitled to be registered as an occupant in respect of the lands of which he was a permanent tenant. Protected tenant or other tenant or sub tenant before the date of vesting and which he has been cultivating personally."
(underlining is mine) Therefore, the right to apply for conferment occupancy rights has been extended 10 the tenant only if the land in: question was in cultivation of the tenant round about 1-3-1974. The material, oral or documentary, does not show that respondents 3 and 4 were in possession and cultivation and enjoyment of the petition lands or any one of them round about or immediately prior to 1-3-1974. Admittedly Rudrappa, father of Respondents 3 and 4 died in the year 1960. Therefore, he cannot be said to be in possession and cultivation of the lands round about 1-3-1974. Therefore, the question of the lands or any one them having vested in State Government does not arise. Therefore, Respondents 3 and 4 do not get any right at all as per Section 45 of the Land Reforms Act to seek conferment of occupancy rights in respect of the petition lands or any one of them.
38. The Appellate Authority has considered the evidence of the revision petitioner-2 Krishnacharya and his witnesses Basappa, Neelappa and Veerabhadrappa by stating in one sentence that their evidence is not satisfactory. The normal presumption is that a person is honest. Therefore, to disbelieve the witnesses by one stroke would not be according to law. If the evidence of a witness is to be disbelieved, his evidence must be considered in detail and after due consideration, it is open to the appellate authority to discard his evidence. But without showing as to how his evidence is un-creditworthy, it would not be proper to brand a person as untrustworthy or to hold that his evidence is not acceptable. This is also a material and serious illegality committed by the appellate authority.
39. Revision-petitioner No. 2 has stated that he and other revision petitioners have been in possession and cultivation of both the petition lands every since the time of his father till to-day and that they have been raising sugar cane and paddy in the petition lands and they have been irrigating the sugar cane crop by using the oil engine. According to him the oil engine was being taken on hire. The Court below has made much of the fact that he does not know the horse-power of the oil engine. It should not be forgotten that the revision petitioners come from a village. They may not be knowing the horse-power of the oil engine. Merely because the horse-power of the engine was not known to revision-petitioner-2, his testimony cannot be discarded. His evidence that Respondents 3 and 4 were taking up the work of cutting sugar cane from the petition lands and of transporting the same to the sugar factory, is supported by the weighment receipts Exhibits A-l to A-36 and B-l to B-47. Therefore, the Appellate Authority committed an error in discarding the testimony of the revision petitioner Krishnacharya without any valid or satisfactory grounds at all.
40. Basappa A-2 has stated that his land is just near the Petition lands and that both the lands have been in possession and cultivation of the revision petitioners. He has stated that Respondents 3 and 4 were never cultivating the petition lands. The Appellate Authority has discarded the testimony of this witness on the ground that he has given the extent of both the petition lands as two koorgis approximately. One koorgi is equal to four acres. Both the lands put together measure about eleven acres. This is a little more than two koorgis. It should be borne in mind that A-2 is a rustic villager, who has not got much education. Therefore, this reason given by the Appellate Authority for discarding his testimony, is not all satisfactory. The Appellate Authority has given another reason to discard the evidence of A-2 to the effect that he is not able to give the survey number of his own land. If a rustic villager is able to give the survey number and the exact extent of his land, then there would not have been any trouble at all in this Country. The agriculturists coming from the rural areas are not having even the formal education. Many of them would not have come to the cities even. Therefore, the Appellate Authority committed an illegality in discarding his testimony without any reasons, muchless sufficient.
41. Neelappa A.3 has supported the revision petitioners fully. The Appellate Authority stated that as he had given the extent of the petition lands as two kooriges, his evidence cannot be accepted. That has already been discussed in detail above. The Appellate Authority has given another reason for discarding his testimony to the effect that he has not been able to give the survey number of his own land, This is not the reason to discard the testimony of a rustic villager like Neelappa A-3. He has denied the suggestion that disputes were taking place between him and respondents 3 and 4 while playing musical instruments at the time of festivals. Respondents 3 and 4 themselves do not state that there were disputes between them and A-3. Therefore, there was no reason to discard the testimoney of this witness.
42. Veerabhadrappa A-4 has stated that the revision petitioners have been in possession and cultivation of both the Petition lands ever since the time of their father till today. It was suggested to him that a proceeding under Section 107 Cr. P.C. had been stated against him. He had denied the same. Merely because he does not know the survey number of the Petition lands, it is no reason to discard his testimony. Merely because he does not know the exact extent of the petition lands and the survey numbers, it is not a ground to discard his testimony. The Appellate Authority has made much of a portion of his evidence, which reads as follows--
A little acquaintance with the village life would show that when a villager says that he has not seen a person doing a particular act, it only means that he wants to deny the same. The evidence of revision petitioner-2 and his three witnesses is satisfactory, cogent, reliable and acceptable. There is nothing improbable or unnatural in their evidence at all. Therefore, the Appellate Authority committed a serious illegality in disbelieving the evidence of revision petitioner-2 and his witnesses by single stroke of pen and by stating in one sentence that they are not inclined to accept their evidence.
43. The Appellate Authority has accepted the evidence of respondent-3 Devendrappa and his witnesses by stating in Short that their evidence sounds natural. That is not the approach to be made by an Appellate Authority, which would be normally the final Court on facts. Respondent-3 Devendrappa himself has admitted that he had no documents to show that petition lands survey numbers 154/1B and 20/1 had been in their possession and cultivation since last 50 years till to-day. He admits that he has not got any receipts to show the payment of rent to the landlords. He also admits that he has not given any application to the authorities concerned to get their names entered in respect of the petition lands. His explanation that he did not give any application to the concerned authorities fearing that the revision petitioners might evict them from the lands, is not at all satisfactory and acceptable. According to him, ever since before 1977 he and his family members were raising sugar cane in the petition lands and that they were transporting the same to the sugar factory. The case of the respondents 3 and 4 that they were raising sugar cane in the petition lands and transporting sugar cane, is not borne out by any documentary evidence in the case. Therefore, the said circumstances emanating from the evidence make his evidence rather highly unnatural, incredible and unacceptable.
44. Their another witness Srikanth no doubt appears to be a person holding the land in the vicinity of the petition lands. He has stated that since last ten years respondents 3 and 4 have been raising sugar cane in Survey No. 154/1B Sugar cane is grown in the land by rotation. It will not be continuously raised in a land years together. His evidence is not supported by any documentary evidence. Therefore, the Appellate Authority has committed an illegality in acting upon such discrepant evidence.
45. Shantha B.3 stated that respondents 3 and 4 alone have been cultivating the petition lands. She is a close relative of respondent-3. According to her, her husband is working as a teacher in Kolivada and she has been cultivating her husband's lands in Devarasigihally herself. I do not think that she would live away from her husband that too at such an young age. Taking into consideration the discrepant and interested nature of her evidence the Appellate Authority has committed an illegality in acting upon her evidence.
46. Mahaveer B4 has stated that Respondents 3 and 4 have been cultivating Survey No. 20/1. He also claims that respondents 3 and 4 have been cultivating the other petition Land survey No. 154/1B. His evidence appears to be inherently improbable and discrepant. Kareppa B-5 speaks that the petition land measuring 5 acres, which is near his land and respondents 3 and 4 have been cultivating them since last thirty years. He is a person residing in Mavinakoppa and the petition lands are in Devarasigihally. He admits that it is respondent-3 that called him to come and give evidence on his behalf. Therefore, under these circumstances, his evidence is rather discrepant, unnatural and incredible. The Appellate Authority has committed serious illegality in accepting his evidence.
47. Payappa, B-6 speaks that Respondents 3 and 4 have been cultivating the petition lands since 25 to 30 years. He is not in a position to say in how much area Respondents 3 and 4 were raising sugar cane and other crops in the petition lands. His evidence also appears to be rather artificial and appears to be incredible. Therefore, the Appellate Authority has committed an error in accepting such evidence.
48. Chintamani, B-7 has stated that he had seen one of the petition lands adjoining his land being cultivated by respondents 3 and 4. He was an accused in a murder case. He does not know in what area the sugar cane crops was grown. Therefore, under these circumstances, his evidence is. rather discrepant and interested. Therefore, the Appellate Authority has committed an error in accepting his evidence.
49. As already stated above, the Trial Court has brushed aside the evidence of revision petitioner-2 and his witnesses by stating in one sentence that they are not inclined to accept, their evidence. The reasons, as already shown above, given by the Appellate Authority for accepting the evidence of respondent-3 and his witnesses, are highly unacceptable and they are not at all reasonable. On the other hand, as already stated above, the evidence of respondent-3 and his witnesses is highly discrepant, interested and self-serving. It runs contrary to the documentary evidence. Therefore, the Appellate Authority committed a serious error in accepting the oral evidence of the respondent No. 3 and his witnesses. The appellants-revision petitioners, by producing record of rights A-1 to A-4, have shown that they have been in possession and cultivation of both the petition lands since before 1953-54 down till to-day. The revision petitioners have also produced levy notice and the levy receipts A-5 to A-7 to show that they have been paying levy. Sugar cane weighment receipts A-8 to A-38 show that the revision petitioners are owners of the sugar cane transported to the Sugar Factory and sold to the Sugar Factory, The said receipts give the names of the cartmen Jinnappa, Parisappa, Malleshappa etc. These recitals in the weighment receipts probabilise the revision petitioners' story that the work of cutting sugar cane and transporting the same was being taken on contract by respondents 3 and 4. The certificates Exhibits A-37 and A-38 also help the revision petitioners in showing that they have been in possession and cultivation of the petition lands and it is they who were raising sugar cane crop in the said lands. A-39 is the permission given by the Factory to the revision petitioners to cut the sugar cane crop from the petition land Survey No. 154/1B. This is of the year 1971. Exhibit A-40 is a card issued by the Agricultural Department for supplying agricultural materials like insecticides etc, to the revision petitioners. Both the petition lands are mentioned in that card and it shows that the petition lands are in possession and cultivation of the revision petitioners. Exhibit A-41 is the final bill issued by the sugar factory in the year 1972 in the name of revision petitioners. Exhibit A-42 is a material document, which is attested by respondent-3, which shows that the petition lands are of the ownership of the revision petitioners and they are being cultivated by the revision petitioners. Exhibits A-43 and A-44 are also bills, which support the case of the revision petitioners. respondents 3 and 4.
50. Sugar cane is a crop, which needs irrigation. Admittedly there is no well in the petition lands From where they (respondent 3 & 4) were getting the water is not explained by them. They did not state as to how they were irrigating the sugar cane crop raised in the petition lands. This is also a circumstance to negative the claim of respondents 3 and 4 that they were raising the sugar cane crop in the petition lands.
51. As already indicated above, the weighment receipts Exhibits B.1 to B.13 refer to Survey No. 154/1, which is not one of the petition lands. Exhibits B.14 to B-29 no doubt show Survey No. 20/1. But they are for the year 1979 i.e., they have come into existence after respondents 3 and 4 filed applications for conferment of occupancy rights. Exhibit B. 30 to B-47 refer only to Survey No. 20, which is riot one of the petition lands. As already indicated above, the mention of the survey number in the said receipts is made by the Sugar Factory on the basis of the information given to them by the person, who might have brought the sugar cane to the Factory. The mention of the survey number in the said weighment receipts is purely based on the hearsay information, Therefore, these documents do not help respondents 3 and 4 in the least. Therefore, there is no satisfactory and acceptable evidence to show that the respondents 3 and 4 or their father were cultivating the petition lands or any of them at any time. On the other hand, the evidence on record conclusively proves that the revision petitioners have been in possession, cultivation and enjoyment of both petition lands since the last 50 or 60 years till today.
52. Therefore, under these circumstances, the order passed by the Appellate Authority is highly illegal, perverse and runs contrary to the evidence on record. Therefore, under these circumstances, the order passed by the Appellate Authority suffers from serious illegality. The order passed by the Tribunal is perfunctory even opposed to the evidence on record.
53. Therefore, the order passed by the Appellate Authority conferring occupancy rights in respect of both the lands on respondents 3 and 4 and the order passed by the Tribunal conferring the occupancy rights on respondents 3 and 4 are set aside. The revision is allowed. The applications filed by respondents 3 and 4 in Form No. 7 for conferment of occupancy rights in regard to both the lands are dismissed.
54. All the parties are ordered to bear their own costs throughout.
55. At this stage, the learned Counsel Sri Mandagi sought for stay of the operation of this order submitting that his clients desire to approach the Supreme Court. Whenever a party desires to approach the Supreme Court, an opportunity should not be denied to such a party. Therefore, under these circumstances, the operation of the present order is stayed till 10th of June, 1987.