The court holds that the admission of tenancy by the father of the petitioners establishes the right of the respondents to occupancy rights.

ORDER :

In this writ petition, the petitioners are challenging order dated 23rd January, 2013 passed by the Land Tribunal, Byadagi, in No.TEN/SR/45/KUMMUR (Annexure-E to the writ petition).

2. For the purpose of convenience, the parties to the petition are referred to as per their rank before the Land Tribunal.

3. It is the case of the petitioners that the father of the petitioners–Hussainmiya was owner of the land bearing Sy.No.23/1 measuring 7.01 acres of Kummur village. After the death of the father of the petitioners on 18th October, 2007, the petitioners are in cultivation of the subject land. It is further stated that, father of the petitioner never leased any land much less in favour of one Mohammed Ismailsab (father of the respondents 2 to 6). The petitioner contended that, the deceased Mohammed Ismailsab alleged to have filed Form No.7 seeking occupancy rights in respect of the subject land (Annexure-A). The Land Tribunal, without considering the material on record, granted occupancy rights in favour of the deceased Mohammed Ismailsab by order dated 25th October, 1977 and the same was challenged by the father of the petitioners in Writ Petition No.13969 of 1977. This Court quashed the order passed by the Land Tribunal and as such, remanded the matter to the Land Tribunal for fresh consideration. Thereafter, the Land Tribunal, on remand, passed the order dated 27th May, 1988, rejecting Form No.7 filed by the said Mohammed Ismailsab and the same was challenged before this Court in Writ Petition No.43375 of 2001 and this Court after considering the material on record, by its order dated 04th January, 2005, allowed the writ petition and consequently, remanded the matter to the Land Tribunal for fresh consideration. Pursuant to the same, the Land Tribunal without considering the observation made by this Court, passed the order dated 23rd January, 2013 and being aggrieved by the same, the petitioners have presented this writ petition.

4. I have heard the learned counsel appearing for the parties.

5. Learned counsel appearing for the petitioners contended that, the impugned order passed by the Land Tribunal is contrary to law and the direction issued by this Court in Writ Petition No.43375 of 2001. It is submitted that, the claimants have examined one Abdul Mazeed Amminabhavi, who claims to be the brother of the alleged tenant–Mohammed Ismailsab and further contended that, the said witness was not aware about the factual aspects and therefore, the Land Tribunal, solely based on the evidence of the said Abdul Mazeed Amminabhavi, has arrived at a conclusion by granting occupancy rights in favour of contesting respondents, which is not correct. He further contended that, though the name of the father of the contesting respondents was enumerated in the records of rights, however, there is no supporting documents incorporating the name of the father of the contesting respondents by way of mutation entries and therefore, sought for interference of this Court by relying upon the judgment of this Court in case of BHIMAPPA CHANNAPPA KAPALI AND OTHERS v. BHIMAPPA SATYAPPA KAMAGOUDA AND OTHERS reported in ILR 2002 KAR 3055.

6. Per contra, Sri. Ravi S. Balikai, learned counsel appearing for the contesting private respondents sought to justify the impugned order passed by the Land Tribunal. It is the principal submission of the Sri. Ravi S. Balikai that the father of the petitioners has made an application on 26th March, 1981 seeking compensation in respect of leasing the land in question and pursuant to the same the lease amount was released in favour of the father of the petitioners and therefore, the said aspect has been considered by the Land Tribunal while passing the impugned order and therefore sought for dismissal of the petition. In this regard, Learned counsel appearing for the respondent places reliance on the judgment of the Hon’ble Apex Court in the case of SUNDERABAI W/O. DEVRAO DESHPANDE AND ANOTHER v. DEVAJI WHO CALLS HIMSELF A