Karnataka High Court
Mr B Vasantha Rama Shetty, vs State Of Karnataka, on 26 September, 2012
Author: B.S.Patil
Bench: B.S.Patil
WP 29160/2011
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26TH DAY OF SEPTEMBER, 2012
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
W. P. No. 29160/2011 (LR-SEC 48-A)
BETWEEN:
Mr. B. Vasantha Rama Shetty
S/o. Late Smt. Durgamma Hengasu
Aged 80 years,
Flat No.1501, 15th Floor,
Inland Abony,
Kadri,
Mangalore - 575 004, D.K. ... PETITIONER
(By Sri. K. Chandranath Ariga, Adv.)
AND:
1. State of Karnataka
By its Secretary,
Revenue Department,
Vikasa Soudha,
Dr. Ambedkar Road,
Bangalore - 560 014.
2. The Chairman
Land Tribunal,
Moodabidri - 574 001.
3. Sri. Sadhu Poojary
S/o. Padu Poojary,
Aged about 57 years,
Badakajal House,
Belvai Village,
WP 29160/2011
2
Karkala Taluk,
Udupi District. ... RESPONDENTS
(By Sri.Shashidhar S.Karmadi, G.P. for R1 & 2)
********
This writ petition is filed under Articles 226 & 227 of the
Constitution of India, praying to quash the order dated
24.2.2011 vide Annexure-H passed by the 2nd respondent and
etc.
This petition coming on for preliminary hearing-B group
this day, the Court made the following:
ORDER
1. In this writ petition, petitioner is calling in question the order dated 24.02.2011 passed by the Land Tribunal, Moodabidri, in Case No.TRL 644/79-80, conferring occupancy rights in favour of respondent No.3 in respect of land bearing Sy. Nos.1/2B and 1/3A measuring 2 acres 90 cents and 1 acre 78 cents, respectively, situated at Belvai village in Karkala Taluk.
2. /Petitioner claims to be the owner of the lands in question. Application in Form No.7 claiming occupancy rights for the two lands was filed by late Mudara Poojary under Section 48-A of the Karnataka Land Reforms Act, 1961 (for WP 29160/2011 3 short, 'the Act'). Occupancy rights were earlier granted by order dated 31.02.1981 by the Tribunal in favour of Sadhu Poojary who is the father of the present respondent No.3. This was challenged by the petitioner by filing W.P.No.10049/1983. After the establishment of the Land Reforms Appellate Authority, the said writ petition was transferred to the Appellate Authority. However, on the abolition of the Appellate Authority, upon a civil petition filed by the present petitioner, the records of the Appellate Authority were called and the matter was registered as W.P.No.38428/2001. This Court disposed of the writ petition on 23.09.2005 setting aside the order passed by the Tribunal and remitting the matter back for fresh consideration. After fresh inquiry, the Tribunal has now passed the impugned order conferring occupancy rights in favour of respondent No.3. Aggrieved by the same, the present writ petition is filed.
3. The main contention urged by the learned Counsel for the petitioners is, that the Tribunal has failed to take note of the objections filed by the petitioner-owner on 04.09.1980. It is next contended by him that as on 01.03.1974, the land was not tenanted and it was the petitioner who was in possession. In WP 29160/2011 4 this regard, he points out that the petitioner had instituted O.S.No.26/1972 on the file of the Munsiff Court at Karkala, wherein an order of temporary injunction was passed against Mudara Poojary - the original tenant under whom the present respondent No.3 claims. He also points out that a receiver was appointed for cultivation and harvesting the crops for nearly three years. It is his next contention that the present respondent - Sadhu Poojary is in no way connected with the land in question as he was not the tenant cultivating the land nor was he the heir of deceased Mudara Poojary.
4. Per contra, learned Counsel appearing for respondent No.3 draws the attention of the Court to Annexure-R5 - proceedings of the Special Tahsildar in No.RRC 95/81-82, wherein an order dated 15.02.1982 has been passed holding that the owner of the land viz., Sundari Shetty who was the sister of Duggamma Hengasu and the joint owner of the property had instituted proceedings under Section 42(3) of the Act, seeking recovery of the land from Sadhu Poojary. As can be seen from the said order, the owner of the two properties has admitted the relationship of landlord and tenant between herself and Mudara Poojary and has sought for recovery of rent. WP 29160/2011 5 The Tahsildar has allowed the claim and ordered for payment of arrears of rent due and payable from the tenant to the landowner. Reliance is also placed by the learned Counsel for the respondent on the revenue records and also the evidence of the neighbour of the land one Kariya Poojary who has also deposed in support of the tenant.
5. Upon hearing the learned Counsel for the parties and on consideration of the materials on record, I find that the Tribunal has considered the entire materials on record relevant for the purpose of determining the question whether there was relationship of landlord and tenant between late Smt. Sundari Shetty and Duggamma Hengasu on the one hand and Mudara Poojary on the other hand. It places reliance on the proceedings initiated by the very owner of the lands under Section 42(3) of the Act, wherein she has admitted the relationship of landlord and tenant while seeking recovery of the rent. This order dated 15.02.1982 which is produced at respondent No.5, is decisive in the matter, in as much as, the relationship of landlord and tenant between the parties i.e., the original owners and Mudara Poojary gets established. In fact, it has to be noticed here that these proceedings are instituted WP 29160/2011 6 during the year 1981-82 long after the filing of the application seeking conferment of occupancy rights by Mudara Poojary. That means to say that the land owner being conscious of the fact that Mudara Poojary was asserting his rights as tenant and was seeking occupancy rights has admitted the relationship of landlord and tenant and has sought for recovery of rent payable for these two lands. Petitioner cannot be latter permitted to dispute the relationship of landlord and tenant.
6. In addition, the revenue records also disclose that Mudara Poojary was inducted as tenant and was cultivating the land during 1968-69, 70-71, thereafter on account of the civil suit filed by Duggamma Hengasu - the joint owner of the property, there was a temporary injunction granted against the tenant. The mere fact that an interim order of temporary injunction operated during the relevant period and that a receiver was appointed by the Civil Court will not result in cessation of the relationship of landlord and tenant. In fact, Civil Court has no jurisdiction to decide the question of tenancy and despite any such interim orders passed by the Civil Court, it was competent for the Tribunal to examine the relationship of landlord and tenant and the Tribunal has rightly examined the WP 29160/2011 7 same and based on the admission made by the very owner in the proceedings initiated under Section 42(3) of the Act, the Tribunal has properly appreciated the oral and documentary evidence before it.
7. As rightly contended by the learned Counsel for respondent No.3, Sadhu Poojary had come on record to prosecute the application filed in Form No.7 by Mudara Poojary and it was he who was made party - respondent No.2 in the earlier round of litigation in W.P.No.38420/2001. Upon his death, his son Sadhu Poojary was brought on record in the writ proceedings by the very petitioner. Therefore, petitioner now cannot contend that Sadhu Poojary had nothing to do with the land of Mudara Poojary - the original tenant.
8. Tenancy rights are heritable and in the absence of any material to establish that Sadhu Poojary was not entitled as heir to the estate left behind by Mudara Poojary and in the wake of the fact that the petitioner himself had impleaded Sadhu Poojary as the legal representative of Mudara Poojary in the previous round of litigation, petitioner cannot urge these grounds.
WP 29160/20118
9. In the light of the above, I do not find any merit in this writ petition and the same is therefore dismissed.
Sd/-
JUDGE KK