Karnataka High Court
Smt. Maggi D Souza vs The Land Tribunal on 29 June, 2012
Author: K.L.Manjunath
Bench: K.L.Manjunath
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 29th DAY OF JUNE, 2012
PRESENT
THE HON'BLE MR.JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR.JUSTICE V.SURI APPA RAO
WRIT APPEAL NO.5793/2011(LR)
BETWEEN
1 SMT. MAGGI D SOUZA
AGED 89 YEARS
W/O LATE LEO D SOUZA
R/AT LACCHIL HOUSE,
SHIVALLI VILLAGE AND POST,
VIA KHUNJIBETTU, UDUPI TALUK &
DISTRICT
2 VALERIAN D'SOUZA
S/O LATE LEO D,SOUZA
AGED ABOUT 59 YEARS
R/AT LACCHIL HOUSE,
SHIVALLI VILLAGE AND POST,
VIA KHUNJIBETTU, UDUPI TALUK &
DISTRICT ... APPELLANTS
(By Sri : KRISHNAMOORTHY D, ADV. )
AND :
1 THE LAND TRIBUNAL
UDUPI TALUK, UDUPI
REP/BY ITS SECRETARY
2 PAULIS D SOUZA
AGED 73 YEARS
S/OLATE REETA ROGINA MASCARENHAS
2
RES/AT BATTLAKODI HOUSE,
SHIVALLI VILLAGE AND POST,
VIA KHUNJIBETTU, UDUPI TALUK
& DISTRICT
3 MAGADALINE D SOUZA
AGED 75 YEARS
D/O LATE REETA ROGINA MASCARENHAS
RES/AT BANDASALE THOTA
SHIVALLI VILLAGE AND POST
VIA KHUNJIBETTU, UDUPI TALUK
& DISTRICT
... RESPONDENTS
(By Sri : KESHAVA REDDY, AGA FOR R1;
R2 & R3 ARE SD )
THIS WRIT APPEAL FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET
ASIDE THE ORDER PASSED IN THE WRIT PETITION
NO.14779/2006(LR) DATED 12/01/2011.
THIS APPEAL COMING ON FOR PRELIMINARY
HEARING THIS DAY, SURI APPA RAO J, DELIVERED
THE FOLLOWING:
JUDGMENT
Challenging the legality and correctness of the order passed by the learned Single Judge in W.P.NO.14779/06 dt.12.1.2011 the appellants filed this appeal, whereby the learned Single Judge dismissed the Writ Petition filed by the appellants to 3 quash the impugned order at Annexure-A dt.6.1.2006 in so far as it relates to the rejection of the claim of the petitioners in respect of the property.
2. The brief facts of the case are as follows:
The appellants filed an application for grant of occupancy rights in respect of several lands and the Land Tribunal considering the application granted occupancy rights. While granting occupancy rights, the Land Tribunal had granted occupancy rights in respect of the schedule land i.e. 70 cents in Sy.No.381/4A on the ground that the petitioners were tenants in possession of the same and they put in possession and enjoyment of the property. This was questioned by the respondents on the ground that the order passed by the Tribunal was in violation of principles of natural justice and the same was remanded to the Tribunal for fresh disposal according to law. The Land Tribunal passed order rejecting the application filed by the appellants on the ground that they had not placed any piece of evidence and material as to the tenancy and there was no 4 application at all for grant of occupancy rights. Admittedly, the appellants have not filed Form No.7 in respect of the land in question at the time of submitting application on 21.8.1974 in respect of the other lands owned by the respondents. Subsequently, in the year 1976, the appellants submitted another Form No.7 application on 11.8.1976 in respect of the land to the extent of 70 cents of land in Sy.381/4 i.e. for Punja land. The learned Single Judge after considering the entire evidence available on record dismissed the Writ Petition filed by the appellants on the ground that the appellants have failed to prove the relationship between the landlord and tenant and they have not produced any kind of evidence to prove that they were in possession of the property as tenants. Aggrieved by the order passed by the learned Single Judge the appellants have filed this appeal.
3. Heard the learned counsel for the appellants and the learned Govt.Advocate.
5
4. The learned counsel for the appellants submitted that the Tribunal as well the learned Single Judge erred in not granting occupancy rights in favour of the appellants in respect of the land 70 cents of land which is in possession and enjoyment of the appellants. It is further submitted that by mistake the appellants could not file Form 7 in the year 1974 while submitting Form 7 in respect of the other lands. Subsequently, after realizing the mistake they submitted the application in 1976 and they are in possession of the property.
5. Per contra, the learned Govt. Pleader submitted that the land is described as punja land not cultivable land and as per the decisions of this court two applications filed by the appellants in respect of the lands belonging to the landlord i.e. respondent-3 is not maintainable under law. In support of his contention, the learned Govt. Pleader placed reliance in the case of SUBHAKAR & OTHERS VS. LAND TRIBUNAL, KARKALA TALUK, KARKALA & OTHERS reported in 1999 (4) Kar.L.J. 524. A Division Bench of 6 this court held that it is for the claimant to prove that the land over which he claims occupancy right is land within meaning of sec.2(A)(18) Act i.e. land used for or capable of being used for agricultural purpose or purpose subservient thereto - where finding is that land in question is "punja" land, which is not cultivable and on which only grass is grown naturally, claims for occupancy over such land is not maintainable.
6. Reliance is also placed on another decision reported in ILR 2008 KAR 280 in the case of DEVALSAB VS. STATE OF KARNATAKA BY ITS SECRETARY FOR THE DEPARTMENT OF REVENUE AND OTHERS. Wherein a Division Bench of this court held subsequent application is not maintainable.
7. The learned Single Judge at para-6 of the Judgement clearly held that the appellants failed to produce any kind of evidence before the Tribunal that the land in question is cultivable land and that the subsequent application filed by the appellants in Form No.7 is not maintainable.
7
8. Therefore, in view of the above facts and circumstances and in view of the Judgments of Division Bench of this court, two applications filed by the appellants in respect of the land which is described as punja land is not maintainable. We are of the view that there are no grounds to interfere with the well considered order of the Learned Single Judge.
9. Accordingly, appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE Ak