2019 Supreme(Kar) 153
IN THE HIGH COURT OF KARNATAKA
S. SUJATHA, J.
K.T. Venkatappa - Appellant
Versus
State of Karnataka - Respondent
Writ Petition No. 27773, 25938 of 2010
Decided On : 19-02-2019
Jayakumar S Patil, Adv., B.S. Budihal, Adv., M. Shivappa, Adv., K. Sree Rangarajan, Adv.
Headnote:
Constitution of India,1950 - Articles 226 and 227 - Land Reforms Act - Section 2(12) and 2(17) - deed of partition - seeking occupancy rights - Application filed by the respondent Nos.3 and 4 is said to have been sent through post D.M. had also filed Form No.7 seeking occupancy rights relating to the property in question - Land Tribunal vide order dismissing the claim of Chandrappa allowed the case of respondent Nos.3 and 4 conferring occupancy rights to an extent of 1 acre and 29 guntas - Aggrieved by the was filed by K.T.Venkatappa whereas was filed by Chandrappa challenging the order of Land Tribunal - Writ Petition filed by Chandrappa was dismissed whereas writ petition filed by L.Rs of K.T.Venkatappa was allowed and the matter was remanded to the Land Tribunal - L.Rs of filed and the unsuccessful applicant Chandrappa filed against the order of the learned Single Judge. Writ appeal filed by the L.Rs of Venkatappa was dismissed - Writ Appeal filed by was dismissed – Held, arguments of the learned counsel that personal cultivation of a tenant is not mandatory requirement of section 48-A of the Act to enable them to claim occupancy rights lands could be cultivated engaging the labourers despite respondent Nos.3 and 4 were government employees cannot be countenanced as personal cultivation is sine-qua-non to come within the ambit of Section 2[34] of Act to qualifying as a tenant - These material discrepancies cannot be eschewed while weighing scale of balance to determine veracity and genuineness of the claim made by the respondent Nos.3 and - petitioners to establish that they were cultivating the land as on the relevant date is ex-facie perverse and illegal. In the earlier round, this court has categorically observed that the said reasoning of tribunal is erroneous but the same error is repeated by the Tribunal. Both the parents of the respondent having not made any application, rights under Section 24 of the Act as a successor would not devolve on the respondent Nos.3 and 4 and these vital aspects are not properly considered by the Tribunal - Writ petitions are allowed
S. SUJATHA, J.
1. These petitions involving similar and akin issues, have been considered together and disposed of by this common order.
2. The petitioners have assailed the order dated 13.04.2010 passed by the Land Tribunal, Bangalore South Taluk in proceedings LRF No.3972/1976-77 so far as it relates to granting of tenancy rights to respondent Nos.3 and 4.
3. The facts of the case are:
The petitioners are claiming to be the owners of the lands totally measuring 1 acre 29 guntas in Sy.No.72/1A of Devasandra village, K.R.Puram Taluk, Bangalore District. For better understanding of the dispute, marshalling of the facts is necessary. One Sri. Thimmaiah had three sons namely Sri.Munikenchappa, Sri.Appanna and Sri.Erappa. Under a deed of partition the three sons of Thimmaiah acquired lands to the extent of 1 acre 29 guntas each. It is apt to refer to the family tree of Thimmaiah which is as under:
THIMMAIAH
Sri.Munikenchappa Son
Sri.Appanna Son
Sri.Erappa Son
Sri.D.M.Chandrashekar (his application rejected)
Sri.D.A.Chandrashekaraiah (joint applicants)
Sri.Ramakrishnappa
4. The present petitioners' father K.T.Venkatappa purchased 1 acre 29 guntas from the branch of Sri.Munikenchappa through registered sale deed dated 9.8.1954. Munikenchappa sold 1 acre 29 guntas in favour of Chowdappa on 12.8.1948 who inurn had sold the same to Thimmaiah Shetty on 8.11.1950 from whom the petitioners' father had purchased the said land. Munikenchappa who sold the land never claimed to be tenant thereto. Appanna and Erappa also did not claim to be tenants in respect of the said land after the purchase of the property from K.T.Venkatappa. Respondent Nos.3 and 4 have filed Form No.7 on 29.6.1979 claiming occupancy rights in respect of the land in question measuring 1 acre 29 guntas in Sy.No.72/1A owned by K.T.Venkatappa, the father of the petitioners. The application filed by the respondent Nos.3 and 4 is said to have been sent through post on 29.6.1979. D.M. Chandrashekar @ Chandrappa s/o Munikenchappa had also filed Form No.7 seeking occupancy rights relating to the property in question. The Land Tribunal vide order dated 06.05.1997 dismissing the claim of Chandrappa allowed the case of respondent Nos.3 and 4 conferring occupancy rights to an extent of 1 acre and 29 guntas. Aggrieved by the same, W.P.No.2597/98 was filed by K.T.Venkatappa whereas W.P.No.12850/97 was filed by Chandrappa challenging the order of the Land Tribunal dated 6.5.1997. Writ Petition filed by Chandrappa was dismissed whereas writ petition filed by the L.Rs of K.T.Venkatappa was allowed and the matter was remanded to the Land Tribunal. The L.Rs of Venkatappa filed W.A.No.2561/2001 and the unsuccessful applicant Chandrappa filed W.A.No.7590/2001 against the order of the learned Single Judge. Writ appeal filed by the L.Rs of Venkatappa was dismissed. Writ Appeal filed by Chandrappa was dismissed as withdrawn. Hence claim of Chandrappa has attained finality. Consequent upon remand, 2nd respondent has once again allowed the claim of respondent Nos.3 and 4 by order dated 13.4.2010. Aggrieved by the said order of the 2nd respondent, these writ petitions are filed.
5. Submissions of the petitioners:
Learned Senior Counsel Sri.Jayakumar S. Patil submitted that the last date for filing Form No.7 after the period of extension was 30.6.1979. Both Sri.Appanna and Sri.Erappa's father had not filed any application in Form No.7. The joint application filed by respondent Nos.3 and 4 is not in conformity with Section 48-A of the Karnataka Land Reforms Act, 1961 ('Act' for short). The extent of lands allegedly to be in cultivation of respondent No.3 is mentioned as 1 acre and by respondent No.4 as 29 guntas. The boundaries of the property is not shown. There is discrepancy in the age mentioned and the period shown. Learned counsel pointing out these defects in