ORDER :

1. Whether Bhimappa Channappa Kapali (appellant), who is represented by his legal representatives, was entitled to be declared as an occupant of land comprised in survey Nos. 135/3, 135/4, 135/7, 135/8,135/9, 135/12, 212/2, 216/1, 219/1 and 223/2 of Village Kabbur, Taluk Chikodi, Karnataka and whether the High Court committed an error by setting aside the order passed by the Land Tribunal, Chikkodi (for short, 'the Tribunal') in favour of the appellant are the questions which arise for consideration in this appeal filed against the judgment of the Division Bench of the Karnataka High Court.

2. Girappa Kamagouda owned the land in question. He is said to have cultivated the land till his death. His wife Shivavva executed gift deed dated 17.1.1961 in favour of respondent No.1 Bhimappa Satyappa Kamagouda (grandson of the brother of Girappa Kamagouda) and got the same registered. The gift deed contained a stipulation that during her lifetime, Shivavva would retain possession of the land for the purpose of maintenance.

3. Soon after executing the gift deed, Shivavva filed O.S. No.275 of 1961 for cancellation of the gift deed by alleging that she had executed the same due to fraud practised by respondent No.1. Respondent No.1 contested the suit and denied the allegation that the gift deed was an end product of fraud or misrepresentation.

4. On the pleadings of the parties, the trial Court framed the following issues:

"1. Whether plaintiff proves that the defendants took the gift deed from her on dated 17/1/1961 by misrepresentation and committing fraud on her, as alleged in the plaint?

2. Whether the suit is properly valued for the purposes of court fees and jurisdiction?

3. Is plaintiff entitled to the reliefs sought for?

4. What decree or order?"

5. In support of her claim, Shiva was examined herself and the appellant, who was the son of her elder brother and was living with her from childhood. Respondent No.1 examined himself and other witnesses to prove that the gift deed was valid and it was vitiated by fraud or misrepresentation.

6. After considering the pleadings of the parties and the evidence produced by them, the trial Court dismissed the suit vide judgment dated 10.10.1963 by recording a finding that the gift deed was not vitiated by fraud or misrepresentation. The first and the second appeals filed by Shivavva were dismissed by the lower appellate Court and the High Court respectively and the judgment of the trial Court was upheld.

7. After about three years of dismissal of the second appeal filed by Shivavva, the appellant made an application under Section 48A(1) read with Section 45 of the Karnataka Land Reforms Act, 1961 (for short, 'the Act'), as amended by Act No.1 of 1974 read with Rule 19(1) of the Karnataka Land Reforms Rules, 1974 (for short, 'the Rules') for declaring him as an occupant of the land by asserting that he was inducted as a tenant by Shivavva and that he was cultivating the land for many years. His brother Rudrappa Shivappa Kapali also submitted similar application. Both the applications were dismissed by the Tribunal vide order dated 2.7.1976.

8. Rudrappa Shivappa Kapali did not challenge the order of the Tribunal but the appellant did so by filing Writ Petition No.7085/1976.The learned Single Judge dismissed the writ petition by observing that the appellant had failed to adduce any evidence to prove that he was a tenant of the land in question. Writ Appeal No.2752/82 filed by the appellant was allowed by the Division Bench of the High Court and the case was remanded to the Tribunal for fresh disposal of his application after giving opportunity to the parties to adduce evidence. Thereafter, the appellant examined himself and Shivavva in support of his claim for being declared as an occupant of the land. The relevant portions of their statements are extracted below:

(A.) The appellant

"These lands belongs to Shivavva Giriyappa Kamagouda of Kabbur.

I have been cultivating these lands since the last 40 years