Karnataka High Court
Munivenkatappa vs The Special Deputy Commissioner on 9 July, 2013
Bench: K.L.Manjunath, Ravi Malimath
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`IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 09th DAY OF JULY 2013
PRESENT
HON'BLE MR.JUSTICE K.L. MANJUNATH
AND
HON'BLE MR.JUSTICE RAVI MALIMATH
WRIT APPEAL.NO.3965 OF 2009(LR)
BETWEEN:
SRI. MUNIVENKATAPPA
S/O. AYYAPPA
SINCE DECEASED BY HIS LEGAL REPRESENTATIVES
1a. SMT. THULASAMMA
W/O. LATE MUNIVENKATAPPA
AGE 64 YEARS AMENDMENT
CARRIED OUT
1b. SMT. VAJRAMMA VIDE COURT
W/O. SRINIVAS ORDER DATED
AGE 40 YEARS 20.3.2013
1c. SMT. GOWRAMMA
W/O. GANESH
AGE 37 YEARS
1d. SRI. YALLAPPA
S/O. MUNIVENKATAPPA
AGE 35 YEARS
1e. SMT. MUNIRATHNA
W/O. VENU
2
AGE 31 YEARS
1f. SMT. MANJULA. M.
W/O. NAGARAJ
AGE 29 YEARS
1g. SMT. PADMA
W/O. MUNILAKSHMAPPA
AGE 28 YEARS
APPELLANT NOS.1(a) TO 1(e) ARE
R/AT NO.188, I BLOCK, I MAIN
SARJAPURA ROAD
KORAMANGALA
BANGALORE- 74
APPELLANT Nos.1(f) AND 1(g) ARE R/AT
NO.283, HEBBAGODI,
KORAMANGALA
MUNESHWARANAGAR
BANGALORE. .......APPELLANTS
(SRI:P. CHANDRASHEKAR, ADV., FOR RAVI B. NAIK ASSTS)
AND:-
1. THE SPECIAL DEPUTY COMMISSIONER
BANGALORE DISTRICT TALUK OFFICE
COMPOUND
K.G. ROAD
BANGALORE-560 009.
2. SRI. BASAVANNA DEARU DEITY
REPRESENTED BY THE
TAHSILDAR/MUZARAI OFFICER
BANGALORE SOUTH TALUK
K.G. ROAD
BANGALORE-560 009.
3. SRI. GOPALASWAMY DEITY
REPRESENTED BY SRI. RANGACHARI(INAMDAR)
S/O. SRINIVASACHAR
3
AGE MAJOR
R/O. AGARA VILLAGE BEGUR HOBLI
BANGALORE SOUTH TALUK
BANGALORE.
4. SRI. ANNAYYAPPA
S/O. AYYAPPA
AGE 76 YEARS
R/O. JAKKASANDRA VILLAGE
BEGUR HOBLI
BANGALORE SOUTH TALUK. ....RESPONDENTS
(BY SRI: M.S. RAJENDRA PRASAD, SR COUNSEL, FOR R4
D. VIJAY KUMAR, AGA FOR R1
R2 AND R3 SERVED)
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THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDER PASSED IN THE WRIT PETITION NO.6164/2008
DATED 17.09.2009.
THIS WRIT APPEAL COMING ON FOR HEARING
THIS DAY, K.L. MANJUNATH, J., DELIVERED THE
FOLLOWING:
JUDGMENT
The legality and correctness of the order passed by the learned Single Judge on 17th September 2009 in W.P.No.6164/2008 is called in question in this appeal by the appellants. 4
Heard the learned counsel for the appellants and Sri. M.S. Rajendra Prasad, learned Senior counsel for respondent No.4 and learned Additional Government Advocate Sri. D. Vijay Kumar for respondent No.1.
2. The facts leading to this appeal are as follows:-
Sy.Nos.8/1 and 8/2 of Jakkasandra village in Bangalore South Taluk were Inam lands endowed to Sri. Basavanna Devaru Diety and Sri Gopalaswamy Diety. The 4th respondent Annayyappa and the appellant Late Munivenkatappa are the children of one Late Ayyappa. The 4th respondent Annayyappa made an application for regrant of lands before the Spl. Deputy Commissioner for Inams Abolition Act under LRF.INA.561/79-80 and the said application is in the form of a representation. Said application 5 came to be filed on 22.9.1970 stating that Sy.Nos.8/1 and 8/2 each measuring 30 guntas are endowed to deity Basavanna devaru and Gopalaswamy Diety and the Archaks of the said temple had leased lands in favour of his elders and they are cultivating the same as tenants for more than thirty years and thereafter he has been cultivating and requested the Special Deputy Commissioner (Inams Abolition) to regrant the land in his favour.
3. In the said proceedings, the appellant Sri. Munivenkatappa also made an application to come on record stating that he is also entitled for a share in the lands as son of Ayyappa. Therefore, both the applications were considered together. On 13.12.1985, the statement of the 4th respondent was recorded on oath, wherein he contended that he has been cultivating the land in his individual capacity 6 and that his brother Munivenkatappa has no right, title or interest over the same and that there was partition amongst his father Ayyappa and his three sons Sri. Annayyappa-4th respondent, Munivenkatappa-the appellant and another brother by name Thanappa. Therefore, he requested the Tribunal to consider his application and to reject the claim of Sri. Munivenkatappa. The Tribunal after considering the entire case on merits, granted occupancy rights in favour of the 4th respondent Sri. Annayyappa and rejected the claim of the appellant Sri. Munivenkatappa.
4. Munivenkatappa filed an appeal before the Land Reforms Appellate Authority. Since Land Reforms Appellate Authority came to be abolished due to amendment to the Karnataka Land Reforms Act, the matters which were pending before the Appellate Authority stood transferred to the High 7 Court and the same was numbered as W.P.No.25630/1993. Said writ petition was allowed and remanded by the learned Single Judge of this Court on 24.7.1997. Against which, an appeal came to be filed by the 4th respondent Annayyappa in W.A.No.5375/1997, which appeal came to be dismissed by confirming the order of the learned Single Judge.
In the circumstances, the matter was again considered by the Special Deputy Commissioner in Case No.INA.CR.16/2000-2001. The Special Deputy Commissioner, Bangalore by his order dated 25th February 2008 came to the conclusion that Munivenkatappa had not made an application for grant of occupancy rights. Accordingly, confirmed the occupancy rights in favour of 4th respondent Annayyappa. Said order came to be challenged by the appellant by filing writ petition in 8 W.P.No.6164/2008. The learned Single Judge dismissed the writ petition, confirming the order of the Spl. Deputy Commissioner for Inams Abolition. Therefore, the present appeal is filed by the appellants herein.
5. The main contention of the appellants' counsel is that the Spl. Deputy Commissioner has committed serious error in not considering the background of the case and the case pleaded by the parties. He also contends that the learned Single Judge also committed the same error in not considering the case of the appellants properly.
6. According to him, even if the Special Deputy Commissioner had accepted the contention of the 4th respondent that the appellant herein had not made any separate claim, the appellant as well as 4th respondent have let in evidence to show that the 9 lands in question were tenanted lands. The appellant had let in evidence to show that his father late Ayyappa was cultivating the lands as a tenant and after his death, 4th respondent being the eldest brother, as a kartha of the family was cultivating the lands. According to him, in the application filed by 4th respondent in LRF.INA.561/79-80 dated 22.9.1970, the 4th respondent has categorically admitted that the tenancy rights belongs to the family and the family was enjoying the lands as tenants of the temple. When the application for regrant of occupancy rights filed by the 4th respondent discloses that it is not his individual right, and it is a family tenancy right, such a tenancy right is heritable after the death of father of the appellant Ayyappa by all his three sons viz. 4th respondent Annayyappa, the appellant Munivenkatappa and another brother Thanappa, 10 when the application of the 4th respondent clearly discloses that he has not made any claim in his individual capacity and when the father of the parties was cultivating the lands as tenants and after the death of their father, if the eldest son is cultivating the lands and the documents are standing in his name, the tenancy right would enure to the benefit of all the children of original tenant, since the father died intestate. Therefore, he contends that even if the appellant had not made any application alongwith 4th respondent, 1/3rd share of the appellant could not have been denied to him by the Spl. Deputy Commissioner.
7. He further contends that the 4th respondent while giving his evidence before the Tribunal on 13.12.1985, has stated his age as 52 years. If his age was '52' years on the date of his deposition, when he made an application for regrant of the land 11 on 22.9.1970, the age of Annayyappa on the date of filing the application in the year 1970 could be 37 years only. He further contends that in the application filed for regrant made on 22.9.1970, he states that the land is in the cultivation for last 30 years. If the age of the 4th respondent was 37 years on the date of filing of the application for regrant, if the land is being cultivated for the last 30 years, the age of the 4th respondent could be hardly six or seven years when the land was taken on lease and no temple land could be leased to a minor, who was aged six or seven years. Taking us through these dates and taking us to the application filed by the 4th respondent for regrant, he contends the contents of the application for regrant that the lands in question was a tenanted lands from the time of his elders is proved beyond doubt and that the father of Annayyappa was cultivating the land. By taking us 12 through the records maintained by the Land Tribunal and relying upon the lease deed of the year 1956 executed by the father of the appellant and the 4th respondent in the year 1956 in favour of Gunda Dikshit, the Archak of the temple for a period of five years, contends that there were ample records to show that the lands were tenanted lands of the father of the appellant and 4th respondent and it was never a tenanted land of the 4th respondent. He further contends that the Special Deputy Commissioner and also the learned single Judge without considering these documents and without considering that as on the date of grant of lease, the age of the 4th respondent was hardly six years and that no minor can take the land on lease and that he could not have cultivated the land as a minor, have failed to consider the case of the appellant herein.
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8. He further contends that the 4th respondent has relied upon the partition of the family house to show that there was no joint family and joint family properties and joint family was disrupted long back. According to the appellant, there was only one ancestral residential house, which was divided during the life time of the father of the parties. Since the lands in question was tenanted lands of the father, the same was not included in the said partition. The father of the appellant and 4th respondent died subsequent to the partition intestate. As it was tenanted lands of the father, as he died intestate, the tenancy rights has been inherited by three children of Ayyappa -the appellant, 4th respondent and another son Thanappa. Therefore, he contends that the learned Single Judge as well as Special Deputy 14 Commissioner without considering this important point have rejected the claim of the appellant.
9. He lastly contends that since the lands is tenanted lands of the family, as tenancy rights has to be recognised in favour of the three sons of Late Ayyappa, the appellant being one of his sons, is entitled to 1/3rd share and that there is no necessity for the appellant to approach the Civil Court for partition and his share may be determined in the present case. Accordingly, he requests this Court to set-aside the order of the Deputy Commissioner, so also the order of the learned Single Judge and determine the share of the appellant to the extent of 1/3rd share in both the survey numbers.
10. Learned Senior Counsel Sri. Rajendra Prasad, submits that either the learned Single Judge or the Deputy Commissioner have not 15 committed any error in granting the occupancy rights in favour of the 4th respondent, because the appellant had not made any claim. He further submits that the appellant cannot be permitted to blow hot and cold. According to him, appellant in one breath denies the earlier partition and in another breath contends that the said partition is only pertaining to the residential house and not in respect of the lands in question.
11. He further submits that the contention of the appellant that the lands in question was tenanted land of the father of the parties late Ayyappa cannot be believed, because the appellant has not made claim separately. He also submits that the contention of the appellant that the 4th respondent was only a minor of five or six years cannot be believed, because the application filed by the 4th respondent on 22.9.1970 was not confronted 16 to him, when the 4th respondent was in the witness box and for the first time, such a contention is raised by the appellant and such plea cannot be permitted to be raised in a writ appeal, that too, in an intra Court appeal. In the circumstances, he requests the Court to dismiss the appeal.
12. Having heard the learned counsel for the parties, we had to consider the following points in this appeal:-
a. Whether the lands in question was taken on lease by late Ayyappa, the father of the appellant and the 4th respondent?;
b. Whether the 4th respondent can claim exclusive right over the entire extent of land?;
c. Whether the appellant is also entitled for share in the land in question?; and 17 d. Whether the learned Single Judge and the Special Deputy Commissioner have committed any error in order to interfere with the same?.
13. The admitted facts in this appeal are:-
Sy.Nos.8/1 and 8/2 of Jakkasandra village were inam lands endowed to Basavanna Devaru Deity and Gopalaswamy Deity. It is also not in dispute that Archaks of the temple had leased the lands.
14. The 4th respondent cannot dispute the contents of the application filed by him for regrant of the land filed on 22.9.1970 in LRF.INA.561/79-
80. The said application is the basis or the genesis for his claim. In other words, respondent No.4 cannot deny the admissions made in writing in his application for regrant of the land. Filing of such 18 application by the 4th respondent is not disputed by the 4th respondent's counsel. On perusal of the application, it is clear that in unequivocal terms, 4th respondent has admitted that the lands in question were cultivated by his elders on lease under Archaks of the temple and therefore he has requested the Spl. Deputy Commissioner for Inams Abolition to regrant the said lands in his favour.
15. On perusal of the application filed on 22.9.1970, the 4th respondent has not claimed any individual right or tenancy in his personal capacity. He has made an application on the ground that the lands were cultivated by elders of the family. If the application itself discloses the nature of tenancy, as the 4th respondent has not claimed any individual right over such lands, he cannot be permitted to contend that he alone is entitled for grant of occupancy rights in his favour. He has deposed 19 before the Land Tribunal, Bangalore South Taluk in the aforesaid case on 13.12.1985, he has mentioned his age as '52' years. As rightly pointed by learned counsel for the appellant, if the 4th respondent was aged 52 years as on 13.12.1985. When he made an application for grant of land on 22.9.1970, he was aged about 37 years. From this, it is clear that on the date of making the application for regrant, the 4th respondent was aged about 37 years. The Inams Abolition Act has come into force in the year 1959. If the 4th respondent was aged about 37 years in the year 1970, when the Inams Abolition Act has come into force in the year 1959, he was aged about 26 or 27 years. But, in the application filed for regrant on 22.9.1970, it is stated by him that the lands in question are under the cultivation of his elders for last 30 years. If it is so, if we consider 30 years from 22.9.1970, the age of the 4th respondent would 20 hardly be six or seven years as contended by the appellant. If he was aged six or seven years, he was still a minor, no temple land can be leased in favour of a minor and minor cannot claim any right over the same. In addition to that, in the application itself, he has stated that the elders of the family were cultivating the lands. Then question would be who were the elders who were cultivating the lands. The elder was none other his father late Ayyappa. If his father Ayyappa was a tenant of the lands, when he died intestate, when these lands are not excluded in the earlier partition while dividing the family house during the life-time of the father, after the death of the father, since tenancy rights is heritable, the same shall be enjoyed by all the three sons of Ayyappa viz., the appellant Munivenkatappa, 4th respondent Annayyappa and another son Thanappa. Unfortunately, these facts 21 are not taken into account either by the Special Deputy Commissioner or by the learned Single Judge. Both the Deputy Commissioner and the learned Single Judge have proceeded on the premises that all the joint family properties were divided during the life time of late Ayyappa. But, unfortunately, no one has considered the non- availability of the lands for partition at that point of time, because, the lands were personal tenancy right of the father Ayyappa. The same can be claimed by the children only, after his death. Therefore, we are of the view that these lands were never under the personal cultivation of the 4th respondent to claim exclusive right over the same and we are of the view that these lands were tenancy rights of the family and after the death of the father Ayyappa, it has to be divided equally by three sons Munivenkatappa, 4th respondent 22 Annayyappa and another son Thayappa. Accordingly, we had to answer point Nos.1 and 2.
16. Sri. M.S. Rajendra Prasad, learned Senior counsel for the 4th respondent has relied upon the judgment of the Hon'ble Supreme Court in Municipal Corporation of the City of Jabalpur Vs. State of Madhya Pradesh and another reported in AIR 1996 SC 837 by contending that a new point cannot be permitted to be raised by the appellant herein. But, unfortunately, said judgment has no application to the facts of this case, because, right from the beginning, it is the case of the appellant that the lands in question are the tenancy rights of the family. Therefore, the judgment cited by the learned senior counsel has no application to the facts and circumstances of the case. 23
17. In the result, the appeal is allowed. The order passed by the Special Deputy Commissioner, Bangalore dated 25.2.2008 in case INA.CR.16/2000-2001 and the order passed by the learned single Judge in W.P.No.6164/2008 dated 17th September 2009 are hereby set-aside and we modify the order of the Special Deputy Commissioner holding that the appellant is entitled to 1/3rd share in Sy.Nos.8/1 and 8/2 of Jakkasandra village. Accordingly, occupancy rights is granted in favour of the appellants to the said extent by collecting the premium or any other fees payable by the appellants to the State Government.
We also direct the Addl. Government Advocate Sri. D. Vijay Kumar to preserve the application filed by the 4th respondent dated 22.2.1970 in case LRF.INA.561/79-80 and the deposition copy of the 4th respondent Annayyappa deposed before the 24 Land Tribunal, Bangalore in LRF.ISA.561/74-75 dated 31.12.1985, because, these two are important documents and basis for the claim of the parties. Parties to bear their costs.
Sd/-
JUDGE Sd/-
JUDGE *mn/-