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2015 Supreme(Kar) 603
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
K.N. PHANEENDRA, J.
KALAGONDADHA BASAVANNAPPA – Petitioner
Vs.
STATE OF KARNATAKA and Ors. – Respondent
W.P. No. 29314/2002 (LR)
Decided On : 10.09.2015
For the Petitioner:SRI. LAXMAN T. MANTAGANI, ADVOCATE FOR PETITIONER NO.1, SRI DINESH M. KULKARNI, ADVOCATE FOR PETITIONER NO.2 (AD)
For the Respondent:SMT. K. VIDYAVATHI, A.G.A. FOR R1 & R2, SRI K.L. PATIL, ADVOCATE FOR 3(AD)
Headnote:CONSTITUTION OF INDIA - Article 226: [K. N. Phaneendra, J] Question of granting occupancy rights to tenant - Claim by landlord as to surrender of land by tenant - Held, Question of surrender recorded by judicial court cannot be questioned before High Court in petition filed either by landlord or tenant and Court cannot give any finding with regard to genuinely and validity of order. However, in such case Court is well within its power to consider whether said surrender order was actually acted upon and possession has been taken over by land owner.
KARNATAKA LAND REFORMS ACT, 1961 - Sections 44, 45 & Karnataka Land Reforms Rules, 1974, Rule 19: [K. N. Phaneendra, J] - Grant of occupancy rights - Landlord claiming surrender of land by tenant, in his favour - Documentary and oral evidence showing that tenant did not deliver possession but was in possession for about nine years from date of alleged surrender - Held, Presumption can be raised under Section 133 of Land Revenue Act that tenant continued to be in possession of land.
KARNATAKA LAND REFORMS ACT, 1961 - Sections 44, 7: [K. N. Phaneendra, J] Grant of occupancy rights - Plea that land was surrendered by tenant to original owner - Continuation of tenant in possession even after surrender of land - Thus, surrender was not shown to have acted upon and tenant was not dispossessed from land - Land vested in Government in view of Section 44 - Grant of occupancy rights on such tenant by Land Tribunal is propoer. Section 7 dealing with restoration of possession to tenant dispossessed in certain circumstances not applicable in such case as tenant was not dispossessed.
KARNATAKA LAND REFORMS ACT, 1961 - Sections 44, 2(11): [K. N. Phaneendra, J] Grant of occupancy rights - Plea that respondent tenant to whom occupancy rights were granted was teacher who cannot personally cultivate land and that therefore, he was not entitled for grant of occupancy rights - Respondent was aged 75 years - Absence of clear cut evidence before Court with regard to when tenant joined duty as a teacher and when he retired - Further, it is not mandatory on part of tenant to cultivate lands personally and he can do dual work by means of supervision of cultivation of land by engaging labour or servant or any members of his own family - Held, Grant of occupancy rights in his favour cannot be challenged.
KARNATAKA LAND REFORMS ACT, 1961 - Sections 44, 45: [K. N. Phaneendra, J] Grant of occupancy rights - Land Tribunal is a body constituted consisting of members and Assistant - Commissioner as a Chairman, who are not well trained in law or procedure - Therefore, only summary procedure is contemplated - If the Court is of opinion that Land Tribunal has understood the case of parties, applied intention of legislation and considered material on record and passed orders granting occupancy rights, that would suffice requirement of summary proceedings.
1. Petitioner No. 1 is the legal representative of original owner of the land by name Eerappa. Petitioner No.2Basavanneppa Shivamurthappa Nandigavi is the subsequent purchaser of the land bearing Sy. No 24/1 measuring 1 acre 38 guntas of Lingadevarakoppa village filed this writ petition calling in question the order passed by the Land Tribunal, Hirekerur, Haveri District, vide order dated 17.07.2002 in No. VLR.SR.21 in granting occupancy rights in respect of the said survey number in favour of the deceased third respondent. During the pendency of the writ petition, 2nd petitioner as well as respondent no.3 died and their legal representatives were also brought on record. During the pendency of the writ petition, on 22.07.2008 petitioner no.1 has filed an application under Order I Rule 10(2) of CPC for impleading petitioner no.2 as respondent no.4. The said application was allowed on 06.11.2013. Respondent no.4 has filed an application on 12.12.2013 for transposing himself as petitioner no.2. On the same day this Court allowed the said application. Respondents have also filed their additional statement of objections in lieu of the said transposition of petitioner no.2 to the petition. Respondent no. 3(ac) have also filed writ appeal in W.A. No. 100101/2014 being aggrieved by the order dated 12.12.2013 in transposing the respondent no.4 as petitioner no.2. The writ appeal was dismissed with the observation that the respondent nos.3(ac) can file appropriate statement of objections in the writ petition. Petitioner no.1 during the pendency of the proceedings before the Tribunal has sold the property in favour of petitioner no.2 on 17.11.1999. Therefore, he claims the said property as owner in view of the said transaction.
2. It is the case of the petitioners that deceased respondent no.3Veerabhadrappa Veerappa Kavali, during his lifetime was cultivating the land in question upto 27.09.1966. Thereafter, respondent no.3 has surrendered the said land in question on 27.09.1966 in S.L.C. No. 732/1966 and the Court of Principal Civil Judge has permitted respondent no.3 to surrender the land and permitted the land owner Kalagondadha Basavannappa to enter upon the land in question.
3. It is the further case of the petitioners that landlord entered into the possession of the said property and cultivating the said land from 1966 itself and mutation was also accepted in the name of the landlord on 30.01.1975. But, subsequently in the year 1978 deceased respondent no.3 had filed Form No. 7 claiming occupancy rights over the said land on the ground that he continued to be in possession and enjoyment of the said land as a tenant. The Land Tribunal at the first instance after hearing the parties in detail rejected the claim of the deceased respondent no.3 vide order dated 04.11.1981.
4. Questioning the said order, respondent no.3 approached this Court in W.P. No. 9376/1984. This Court remanded the matter to the Land Tribunal for fresh enquiry vide order dated 03.06.1986. Once again after hearing the parties in detail and looking into the records and also considering the surrender of the land in question in favour of the petitioners, the Tribunal again rejected the claim of the respondent no.3 vide order dated 26.11.1988. Respondent no.3 being aggrieved by the said order again challenged the said order before this Court in W.P. No. 20012/1992. Once again vide order dated 17.04.1996 this Court allowed the writ petition and remanded the matter to the Land Tribunal with a specific direction to consider the effect of surrender of the land in question by the respondent no.3 and also following the provisions of Section 44 and 45 and also Rule 19 of the Land Reforms Act and Rules respectively. The Land Tribunal once again conducted the enquiry and granted occupancy rights in favour of the respondent no.3 vide its order dated 17.07.2002 which is under challenge in this writ petition by the petitioners.
5. It is contended by the petitioners’ counsel
