Karnataka High Court
Pakeera Moolya vs Mari Bhat on 2 February, 1994
Equivalent citations: ILR1994KAR809
ORDER
Rajendra Babu, J
1. These two Petitions arise out of an order made by the Land Tribunal granting occupancy rights in favour of Dooma Moolya and Krishna Moolya who are the legal representatives of Manku Moolya and Pakeera Moolya. So far as Manku Moolya is concerned, the Tribunal granted occupancy rights in respect of land comprised in survey number 33/3, measuring about 1 acre 17 cents.
In regard to Pakeera Moolya, petitioner in Writ Petition 17527 of 1991, the Tribunal granted occupancy rights in respect of following items:-
Survey No. Extent 31-2A 0-82 31-2C 0-82 17-7B2 0-20 17-8B 0-13 13-3 0-05 132C 0-02 33-2 1-26 33-3 0-74 13-2A 0-69
2. It is contended on behalf of the petitioner in Writ Petition 17528/1991 that the Tribunal based its decision on the statement of the petitioner's father, entries in the Levy Register for the year 1973-74 and certain proceedings before the Tahsildar in relation to entries made in the RTCs. It is urged that the Tribunal could not have relied upon the proceedings before the Tahsildar as that was in serious dispute and no final orders had been made as on the date the order was made by the Tribunal in regard to entries to be made in RTCs. It is submitted that in regard to Levy Register there is no particular reference to the lands or the survey numbers thereof much less the entry in the Levy Register is in favour of tenants in question. On the other hand, it is submitted that the Levy Register shows the name of the petitioner alone. It is also urged that the Tribunal could not have relied upon the concession made by the father of the petitioner inasmuch as there was serious dispute between them and in fact a civil suit had been filed and a decree had been passed in the suit
3. Countering these submissions learned Counsel for the respondents submitted that the Tribunal has taken into consideration all aspects of the matter properly in granting occupancy rights in favour of petitioner. However, it failed to take into consideration the full claim made by the tenant Pakeera Moolya inasmuch as the claim of the tenant was not only in respect of items granted but there were certain other items which had been claimed in Form No. 7 even earlier. The supposed amendment is not available on the record and there is no amendment application as such and whatever amendment application is found in the record cannot be treated as an amendment application at all inasmuch as it is a concocted document and introduced into the file subsequent to the proceedings.
4. On this aspect of the matter as regards the amendment application being filed, learned Counsel appearing for the owner of the lands brings to our notice what has been noted in the course of the order by the Tribunal while disposing of the matter finally. That application was filed on the very day on which the order was made by the Tribunal, it is noticed therein that on 23.11.1988 when the matter had been set down for enquiry the owner of the lands in question and also the applicants Pakera Moolya and Dooma Moolya stated that on the basis of survey report with reference to correct survey numbers occupancy rights in lands could be granted. Thereafter the Tribunal noticed that the survey numbers stated in the original application form were not in order and therefore needed revision or amendment and hence the amendment was allowed by the same order. It is made clear that amendment was as per the schedule to the order made by it and based on that amendment the order has been finally passed.
5. In the light of the contentions urged on behalf of both the parties, the first question that arises for consideration in these cases is whether there was any application for amendment filed by Pakera Moolya at all or not. So far as Manku Moolya is concerned, the matter is very clear that the Tribunal had granted occupancy rights only in regard to land comprised in survey number 33/3 which was the land in respect of which he had made claim even originally. Therefore this aspect of the matter does not touch upon the case in relation to Manku Moolya.
6. In the file produced before us at page 131 there is an application made seeking amendment and that is signed by the tenant Pakeera Moolya and is dated 23.11.1988. Considering the fact that the Tribunal has granted occupancy rights not on the basis of the original application filed in Form No. 7, but on the basis of the amendment application filed on 23.11.1988 to which reference had been made in the course of the order made by the Tribunal earlier, it becomes very difficult to accept the contention advanced on behalf of the tenant that no such application has been made at all. In that view of the matter, we do not think we can accept the contention made on behalf of the tenant that the application available on the file at page 131 is a concocted document introduced into the file subsequent to the disposal of the proceedings before the Tribunal because there is specific reference to such an amendment in the course of the order made by the Tribunal. In fact, the Tribunal has noted in its order as follows:-
The contention on behalf of the tenant that there is no reference to the amendment in the order is untenable.
7. The dispute that remains for consideration is whether there was any difference in respect of lands now granted to the tenant and originally claimed, inasmuch as, according to the owner of the lands, new items have been introduced in the amendment application and such a grant could not have been made. So far as lands comprised in Survey number 33/2 measuring 1 acre 26 cents, Survey number 33/3 measuring 74 cents and Survey number 13/2A measuring 69 cents are concerned, there is no dispute between the parties that Pakeera Moolya has not made any claim in regard to the same and the order of the Tribunal to that extent needs modification. Similarly, there is no dispute between the parties that tenants had made claim in the original applications filed in Form No. 7 in regard to lands comprised in survey number 33/3 by Manku Moolya and 31/2A, 31/2C, 17/7B2 and 17/8B by Pakeera Moolya. The only dispute in regard to these lands is whether the Tribunal could have acted upon the concession made by the father of the petitioner in Writ Petition 17528/1991. The contention advanced on behalf of the owners of the land that there were serious disputes between the father and the son and therefore a civil suit had been filed may not be of much significance in this case because that civil suit was only for partition of properties which ended in a compromise. How serious is the dispute between the parties is not very clear particularly when the matter ended in a compromise and the owner is aged hardly 23 years. Bearing in mind the age of the owner and the nature of the dispute between them, we cannot accept that there was a serious dispute between him and his father nor that his father would act against the interests of his son. In that view of the matter, the Tribunal was justified in making the order on the basis of concessions by him.
8. In the original application in Form No. 7 Pakeera Moolya had not made a claim in regard to land comprised in survey number 13/3 measuring 5 cents and survey number 13/2C measuring 2 cents, but Tribunal proceeded to grant claim on the basis of amendment to Form No. 7. Therefore, question that arises for consideration is extent to which amendments could be carried out on Form No. 7 filed before the Tribunal. This Court in SEETHA DEVI v. NARAYANA KAMATH, , after examining the legal position on the scope of amendment held that if any mistake has been committed in the application filed in Form No. 7 filed within the prescribed time under Section 48A of the Act, the application for amendment can be made by the party concerned before the Tribunal and the Tribunal has the jurisdiction to allow the amendment application if it is satisfied that in not allowing the amendment, it would result in miscarriage of justice. It was also made clear therein that no-person can make an application in Form No. 7 or an application in the nature of an amendment after the expiry of the period fixed under Section 48A(1) of the Act seeking occupancy right in respect of new item of land not included in the application filed within time. Learned Counsel for the tenant very seriously urged that this Court has not correctly decided the legal position in that case as to scope or ambit of amendments and the said Decision requires reconsideration. He drew our attention specifically to Section 48A(3) of the Act wherein by an amendment made by Act 1 of 1979, with effect from 1.3.1974, a clause was introduced that the Tribunal may for valid and sufficient reasons permit the tenant to amend the application. Learned Counsel for the tenant urged that in view of this provision it was certainly open to the tenant to amend his application in Form No. 7 even by inclusion of new items. Such an amendment would become necessary considering the fact that tenants being ignorant will not be in a position to set out correctly the survey number or extent or description of boundaries. Countering this contention learned Counsel for the owner pointed out that under Sub-section (8) of Section 48A of the Act where no application is made within time allowed under Sub-section (1), the right of any person to be registered as an occupant shall have no effect. Thus, it introduced a bar of limitation as to making of applications claiming occupancy rights.
9. It is no doubt true that tenants and landlords who reside in rural areas may not be fully aware of particulars of land entered in revenue records. The time for filing applications was extended by five years from 1.3.1974 to 30.6.1979 and by which time there was at least one round of litigation or another and enough time to find out particulars of lands thereof. The argument of ignorance of litigants therefore does not appeal to us because for a person of diligence five years is a very long period to set right all discrepancies of substantial nature. Although in an application several items of lands may be included claiming occupancy rights, the claim in respect of each one of the lands mentioned therein is a separate claim. Understood thus, a claim must be made in respect of a land that he is a tenant and seek for registration of occupancy rights in his favour. If any land is omitted in the original application and after the expiry of the period of limitation it will not be permissible to amend such an application to include new item of land is very clear because that would amount to making a new claim in respect of a new item. If any claim had been made in respect of any land which is identifiable any discrepancy in the application is in regard to description of a property, amendment may be made so that the property can be easily recognised. Making new claim in respect of a new item of land is introducing new cause of action as is ordinarily understood. Indeed, the scope of amendment of pleadings in such cases has been succinctly explained by the Supreme Court in A.K. GUPTA & SONS LTD v. DAMODAR VALLEY CORPORATION, , that the expression 'cause of action' in that context does not mean every fact which is material to be proved to entitle the plaintiff to succeed. The expression only means a new claim made on a new basis constituted by new facts. In the present case where claims have been made in respect of certain items of land which are not part of the original application at all must be treated new claims giving rise to new cause of action and such a course is not permissible at all particularly in the light of Section 48A(8) of the Act. With respect we agree with the view expressed in SEETHA DEVI's case and there is no reason to make a departure from that view expressed by this Court earlier. The consent of a party also cannot confer jurisdiction on the Tribunal. When the Tribunal could not adjudicate on the claim of tenant in respect of certain lands as not having formed part of original claim and amendment carried out after expiry of period of limitation to make claims, no grant could be made in that regard. The Tribunal exceeded its jurisdiction in granting amendment of Form No. 7 in regard to lands comprised in Survey number 13/3 and 13/2C measuring 5 cents and 2 cents. The order made by the Tribunal in regard to lands comprised in Survey numbers 13/3, 13/2C, 33/2, 33/3, 13/2A shall stand quashed. In other respects the order of the Tribunal cannot be disturbed.
10. Learned Counsel for the tenant urged that the Tribunal has not considered the claim of the tenant made as per the original Form No. 7 and it should not have considered the amendment at all and the Tribunal has not at all considered that aspect of the matter. In the light of the order made by the Tribunal which we have extracted earlier, the amendment had been carried out by the tenant and it is on the basis of that amendment the Tribunal granted occupancy rights. What we have stated just now is in respect of those items of land in respect of which there could be no amendment at all and thus there could not be a claim. When the tenant himself had given up the claim in regard to the lands in respect of which he had made an application earlier pursuant to the amendment petition filed by him and virtually by consent of parties the Tribunal granted occupancy rights and therefore the question of examining that aspect of the matter will not arise. In that view of the matter, he find no merit in any of the contentions advanced on behalf of the tenant. Writ Petition 17527/1991 is dismissed and Writ Petition 17528/1991 is allowed in part.