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2009 Supreme(Kar) 855
High Court of Karnataka
THE HONOURABLE MR. JUSTICE A.S. BOPANNA
Sakammanavara Muniyappa (Since dead) by L.R.
Versus
The Land Tribunal, Sidlaghatta, Kolar District & Others
Writ Petition No. 42055 of 2001 (LR)
Decided on: 02-12-2009
For the Petitioner:M.S. Varadarajan, Advocate.
For the Respondents:Ramachandra R. Naik, High court Government Pleader, Sri R.S. Gupta, E. Thirthappa, Advocates.
Headnote:KARNATAKA LAND REFORMS ACT, 1961 - Sections 45 & 48-A [As amended by Karnataka land Reforms (Amendment) Act, 1974]: [A.S.Bopanna,J] Grant of occupancy right -Tenant filed application in Form 7 claiming occupancy right - Land originally inam lands- Sold by inamdar - Sale challenged by tenant under Mysore Tenancy Act, 1952 - Sale was set aside - In view of Inams Abolition land was vested with Government -Tenant was put back in possession -Inamdar challenged - Special Deputy Commissioner held that occupant was a permanent tenant - Order challenged - Matter remanded back - Meanwhile purchaser of land the sale of which was set aside instituted suit for recovery of sale consideration - Suit decreed -Execution proceedings instituted - Judgement-debtor obtained land in the sale proceedings - Tenant not questioned the decree and the execution proceedings -The Tribunal rejected application filed in Form 7 from tenant - Questioned in writ petition by tenant - Held, A perusal of the order passed by the Land Tribunal would indicate that the Tribunal no doubt has noticed the entire sequence of events and the manner in which the purchaser became the owner of the property in view of the auction conducted by the Court in the execution proceedings. It is stated that the purchaser had not accepted the applicant as a tenant. The tenant has not questioned the decree and execution proceedings in any proceedings before the Court. The Tribunal has therefore concluded that though the applicant was a sub-tenant prior to 1954 before it vested, has not shown that he was a tenant immediately prior to 1.3.1974 prior to filing the Form 7 and the application is rejected by the Tribunal. Since the fact that applicant was a tenant under the judgment-debtor at least prior to 1965 is accepted by the Tribunal, the moot question would be whether such possession got interrupted by the order in execution proceedings so as to conclusively prove that physical possession of the property was handed over to the decree-holder/auction purchaser. The procedure for the same is contemplated in Order 21, Rules 94 to 96 of the Civil Procedure Code, 1908. There is no material available to indicate the manner in which possession was delivered to the auction purchaser in as much as, whether constructive possession was handed over or the physical possession. In the absence of the same, the other material would have to be noticed to come to the conclusion as to whether the claim of the auction purchaser that he has remained in physical possession pursuant to execution proceedings can be accepted on face value. Prima facie the observation of the Tribunal that the tenancy is prior to 1954 and that too as a sub-tenant and the auction purchaser has been in possession after the Court sale does not appear to be correct and needs to be revisited. When it was shown that at a point earlier to the appointed day, the tenant was in possession as tenant, if the auction purchaser contended that he had taken possession in the execution proceedings, there should be conclusive proof to that effect or in the alternative, the manner in which possession was taken before the appointed day would have to be established and this matter will require reconsideration by the Tribunal. The matter was remitted to the Land Tribunal, to reconsider the same afresh.
1. The petitioner is calling in question the order dated 28-6-2001 passed by the Land Tribunal. Sidlaghatta Taluk, sidlaghatta, in Case No. LRM/394/74-75. The said order is impugned at Annexure-Z to the petition. By the said order, the Tribunal has rejected the claim of the petitioner seeking occupancy right in respect of the lands bearing Sy. No. 20-F measuring 27 guntas and Sy. No. 20-G measuring 3 acres guntas of Sonnenahalli Village, Kasaba Hobli, Sidlaghatta Taluk, Kolar District.
2. The application in Form 7 was filed by Sakammanavara Muniyappa, the father of the present petitioner claiming occupancy rights in respect of the property stated above. The Land Tribunal by its order dated 18-8-1976 had rejected the claim. The father of the petitioner was before this Court in W.P. No. 11663 of 1979. This Court quashed the said order and remitted the matter to the Land Tribunal. The claim was again rejected by order dated 27-11-1993. The petitioner herein had questioned the same in W.P. No. 15684 of 1994. The said order was once again quashed and the matter was remitted to the Tribunal for fresh consideration. After such consideration, the present impugned order dated 28-6-2091 is passed.
3. The brief facts of the case are that the lands in question are said to be originally the inam land regarding which application were also filled by the father of the petitioner. Prior to this the property was old by Sri S. Venkatramaiah in favour of father of the fourth respondent under sale deed dated 6-7-1954. The father of the petitioner questioned the same by filing an application under the Mysore Tenancy Act, 1952 contending that the sale without notice to him though he is Kadim tenant is null and void. Though initially the said application was dismissed by the Tahsildar, the appeal against the same was allowed by the Assistant Commissioner and the sale was set aside by order dated 27-2-1959 holding that the father of petitioner was tenant under the third respondent. Meanwhile the property vested in view of the Inams Abolition. During the said proceedings, there was an order for appointment of receiver and subsequently this Court had observed that the father of the petitioner is in possession of the lands and directed the receiver to put him in possession. Hence, on 16-11-1961 as per the mahazar which was drawn, the father of the petitioner was put back in possession. As stated, the father of the petitioner had filed an application before the Special Deputy Commissioner, Sri S. Venkataramaiah had also filed an application. By order dated 15-11-1961, the application filed by the father of petitioner was rejected while the name of Sri S. Venkataramaiah was registered. Against the order dated 15-11-1961, the father of the petitioner had filed an appeal to the Karnataka Appellate Tribunal. During the pendency the third respondent herein made an application before the Tahsildar, sidlaghatta for recovery of rent. The Tahsildar by his order dated 19-10-1964 ordered the same to give horse gram and ragi. In the meanwhile the appeal before the Tribunal was allowed, the order dated 15-11-1961 was set aside and the matter was remanded to the Special Deputy Commissioner for fresh disposal by order dated 23-5-1967. The Special Deputy Commissioner reconsidered the matter and by order dated 10-6-1968 held that the petitioner’s father is a permanent tenant in respect of the land. The said order was questioned by the third respondent before the Appellate Tribunal and the same was set aside and remanded by order dated 23-6-1972.
4. Since as stated earlier, the sale made by third respondent in favour of the father of the fourth respondent had been set aside, the fourth respondent instituted a suit for recovery of the sale consideration. The sit was decreed and towards recovery of the said amount, the execution proceedings in Ex. C. No. 60 of 1965 was instituted. The father of the fourth respondent purchased the same in the sale proceedings for re
