The court reaffirmed that claims of occupancy rights must consider all heirs unless evidence of exclusion exists, emphasizing the necessity of adjudicating joint ownership properly.

JUDGMENT :

D K SINGH, J.

1. The present writ appeal has been filed impugning the judgment and order dated 14.02.2013 passed by the learned Single Judge in Writ Petition No.1857 of 2008 and other connected writ petitions.

2. Before proceeding with the submissions of the learned counsel appearing for the parties, it would be apt to take note of the relevant facts of the case.

3. One Ayyappa was the cultivator of the lands bearing Survey No.8/2 measuring an extent of 31 guntas, Survey No.49/1 measuring an extent of 1 acre 9 guntas, as also lands in question being Survey Nos.50/12 and 50/13, as a tenant .

4. In view of the provisions of Section 45 of the KARNATAKA LAND REFORMS ACT , 1961, (for short 'the Act') the date of vesting of the lands under tenancy was vested with the Government. However, if any person claims occupancy rights, he is required to submit an application in Form No.7 before the Land Tribunal as contemplated under Sections 48 and 48-A of the Act. A person claiming occupancy rights must have been in possession and cultivation of the land prior to the date of vesting i.e., 01.03.1974. Form No.7 should have been filed by the tenant on or before 31.12.1974 for claiming occupancy rights.

5. It is stated that Sri.Ayyappa, the father of the appellant and respondent No.3 died in the year 1965 and the application in Form No.7 came to be filed only on 26.12.1974. The Land Tribunal, however, granted occupancy rights in respect of the lands in question in Sy.No.50/12 measuring 34 guntas and Survey No.50/13 measuring 1 acre 24 guntas, which were in the possession and cultivation of the father of the appellant and respondent No.3-Sri.Annayyappa. According to the Tribunal, notice was issued only to respondent No.3-Sri.Annayyappa and not to the appellant herein. Under the earlier order passed by the Tribunal on 28.09.1979, the lands in question bearing Survey Nos.50/12 and 50/13, were given only to respondent No.3 - Sri.Annayyappa. The name of the appellant did not find place. Therefore, the Tribunal arrived at a conclusion by recording a finding that in Form No.7, only the name of respondent No.3-Sri.Annayyappa was mentioned, who was the only son of Late Sri.Ayyappa.

6. In view of the aforesaid finding, the Tribunal by the impugned order dated 20.07.2007 passed in LRF/834/74-75, 4623/74-75 & No.3080/75-76, granted occupancy rights in favour of respondent No.3, who was the one of two sons of Late Sri.Ayyappa, in respect of the lands bearing Survey No. 50/12 measuring 34 guntas and Survey No.50/13 measuring 1 acre 24 guntas.

7. The learned Single Judge has affirmed the order passed by the learned Tribunal by the impugned judgment and order dated 14.02.2013. It has been stated that whether the appellant, who was the petitioner in Writ Petition No.1857 of 2008, was an applicant in Form No.7 or not and whether the land was in joint cultivation while living together in the family, requires to be established by leading evidence. The petitioner i.e., the appellant herein has relied on the evidence of the first applicant i.e., respondent No.3 wherein he has deposed that after the conferment of occupancy rights, respondent No.3 would give a share in the property. This piece of evidence cannot be considered and was rightly rejected by the Tribunal. The learned Single Judge has affirmed the order passed by the Tribunal and dismissed the writ petition filed by the appellant herein.

8. It is not in dispute that Sri.Munivenkatappa and Sri.Tanappa are the sons besides the respondent No.3 of Late Sri.Ayyappa. During the pendency of the proceedings before the Land Tribunal, the third son died unmarried, leaving only two sons namely, Sri.Annayyappa-respondent No.3 and Sri.Munivenkatappa - the appellant herein as legal heirs to claim occupancy rights in respect of the lands which were under cultivation and possession of their late father.

9. Respondent No.3- Sri.Annayyappa is the eldest son. There is nothing on record to suggest that the appellant - Sri.