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2012 Supreme(Kar) 1154
IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
Ram Mohan Reddy and B. Manohar, JJ.
Thirakanagouda N. Patil —Appellant
Vs.
State of Karnataka —Respondent
Writ Appeal No. 30699/2012
Decided on : 06-11-2012
Advocate Appeared:
Ravi L. Patil, V.M. Sheelvant, for the Appellant
Mahesh Wodeyar, AGA, F.V. Patil, for the Respondent
Headnote:KARNATAKA LAND REFORMS (SECOND AMENDMENT & MISCELLANEOUS PROVISIONS) ACT, 1974 - Section 3(2): [Ram Mohan Reddy & B. Manohar, JJ] Mandate of the provision Tribunal to enquire into any claim for registration as occupant made by a person who has a tenant immediately prior to 01.03.1974 and who by reason of any Judgment, Decree or an Order is dispossessed subsequent to 01.03.1974 - Held, It is clear from the amended provision mandates that notwithstanding any judgment, decree or order of the Civil Court, the Tribunal under Section 48 of the Karnataka Land Reforms Act, 1961, shall enquire into any claim for registration as occupant made by a person who was a tenant within the meaning of the Act immediately prior to 01.03.1974 and who by reason of any judgment, decree or an order is subsequent to 01.03.1974 dispossessed of the land of which he was a tenant or is any way precluded from pleading his tenancy. Thus, two contingencies are contemplated by the said Section for the Land Tribunal to consider the claim of tenancy if, (i) a tenant within the meaning of the Act prior to 01.03.1974 by reason of any judgment, decree or order has been subsequent to 01.03.1974 dispossessed of the land of which he was a tenant; and (ii) or the tenant is anyway precluded from pleading his tenancy. On facts held, In the fact situation, O.S. No. 182/1966 filed by one of the siblings or the petitioner’s father was for declaration, partition and separate possession, resulting in a compromise decree. Admittedly, in that suit, since the petitioner’s father did not plead tenancy rights over the lands in question to the exclusion of his siblings, much less oppose the claim of the plaintiff for a share in the ancestral joint family properties including tenancy rights, while the landlord of the tenanted land was not arraigned as a party/defendant, no issue over tenancy was framed. The Compromise entered into between the members of the joint family consisting of the petitioner’s father and his siblings, emphatically asserted that the elders of the parties were in joint possession and cultivation of the lands in question as tenants and paying the lease rent (Lavani) to the Landlord and if the name of only one of the brothers was recorded in the revenue records, though no dispute may arise between the brothers, nevertheless agreed to continue the cultivation of the land jointly and also pay the rents to the Landlord jointly.-There can be no more dispute that the requirements of sub-Section 2 of Section 3 of the Act are not complied with so as to address the petitioners claim of exclusive tenancy rights over the lands in question. Findings recorded by the Land Tribunal and Learned Single Judge are justified.
Ram Mohan Reddy, J.—This intra Court appeal is preferred by the petitioners in W.P. No. 16859/2011 aggrieved by the Order dated: 29.5.2012 of the Learned Single Judge dismissing the petition. Facts not in dispute are:
One Naganagouda Patil, said to be the propositus, had eight children, since deceased represented by legal heirs, petitioners and respondents were parties in O.S. No. 182/1966 on the file of the Munsiff, Haveri, for declaration, partition and separate possession of several immovable properties including lands in R.S. Nos. 195 and 129/A measuring 20 acres and 31 guntas and 1 acre and 29 guntas, respectively, of Balambid Village in Hangal Taluk, admittedly, claimed to be in joint possession and cultivation of the siblings, as tenants. In the absence of a dispute over tenancy claims, an issue over claim of tenancy was not framed and the suit ended in a compromise decree dated: 29.9.1966, Annexure-R-3 to the statement of objections of respondents, one of the terms of which reads thus:
Varnacular Matter Omited
2. By this term, the parties agreed that the lands in question since tenanted from the time of their ancestors, and if the property is shown as fallen to the share of one of the parties no disputes would arise, the plaintiff and defendants 1 to 7 to cultivate the lands jointly and as has been done till the present to jointly pay to the Landlord the rent (Lavani).
3. The Deputy Commissioner having initiated action to recover the levy over paddy grown on the said lands, under the Food Control Orders, the petitioners" father responded by an explanation Annexure-R4 to the statement of objections which reads thus:
Varnacular Matter Omited
4. In other words, the dispute between the eight brothers was resolved by way of a compromise recorded in O.S. No. 182/1966 and ever since then each of the parties are in possession and cultivation of their respective shares of the immovable properties, which is also registered. Such of the properties which are taken on lease of which shares by metes and bounds are not effected, it is stated are in joint possession and cultivation of the eight brothers and the produce therefrom equally distributed amongst themselves, after making over the lease rentals (Lavani) to the Landlord.
5. According to the petitioners, since the landlord opposed the mutation entry No. 2033 recording the names of all the brothers as joint tenants and cultivators of the lands in question on the premise that the petitioners" father was the sole tenant, that entry was set-aside by Order dated: 30.9.1968 Annexure-E of the Tahsildar, Hangal, which order when carried in Revision Petition bearing RTS RA SR 8/75-76 before the Special Deputy Commissioner was confirmed by Order dated: 18.10.1975 Annexure-F.
6. On the coming into force of the amendment to the Land Reforms Act, 1961, petitioners" father and his seven brothers filed separate applications in Form No. 7 under Section 48-A of the Land Reforms Act, 1961, wherein petitioners" father claimed occupancy rights over the lands in question as the sole tenant, while his brothers claimed to have a share in the tenanted land on the premise that it was a joint family tenancy. The Land Tribunal in the first instance by Order dated: 7.1.1976 conferred occupancy rights jointly on all the brothers, which when called in question in W.P. No. 1872/1976 was quashed by Order dated: 23.2.1976 and the proceeding remitted for consideration afresh. On remand, the Land Tribunal by Order dated; 16.7.2002 conferred occupancy rights on the father of the petitioners which when called in question in W.P. No. 28770/2002 was quashed by Order dated: 1.6.2007 Annexure-G, formulating an issue as to who was/were cultivating the land, in the fact situation as on 1.3.1974 and thereafterwards, to take a decision on Form No. 7 independently filed by the father of the petitioners and his brothers. On remand, the Tribunal making reference to the evidence both oral and documentary returned a finding th
