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NC: 2025:KHC-D:18650

WP No. 21847 of 2017

HC-KAR

ORAL ORDER

(PER: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE)

1. Heard the learned counsel appearing for the petitioners

and the learned counsel appearing for the respondents.

2. This petition is filed assailing the order dated

05.04.2017 passed by the Land Tribunal, Shiggaon

rejecting petitioners’ applications seeking occupancy

rights. The petitioners sought occupancy rights in

respect of property bearing Survey No.390/2 of

Bankapura village, Taluk Shiggaon. The total extent of

land is for 4 acres 31 guntas.

3. The petitioners claim that one Hanumantagowda was

the tenant in respect of entire property and his claim

relating to tenancy and lawful cultivation immediately

before 1974 is very much established and the Tribunal

has rejected without noticing the order in the earlier

proceedings and also the order passed in the

proceedings relating to surrender of tenancy.

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4. Learned counsel for the petitioners would refer to the

judgment of the Co-ordinate Bench of this Court in W.P.

No.51128/2003 in terms of the order dated 03.02.2005

the writ petition is allowed and matter is remitted to the

Tribunal for fresh consideration in accordance with law.

5. Learned Counsel would also refer to the observation

made in paragraphs No.3 to 6 and also the paragraph

No.9 and urged that the remand is a open remand

where the Tribunal was required to consider the claim of

the petitioner on the basis of the evidence led before

the Tribunal.

6. Learned counsel for the petitioners would also urge that

the tenancy is very much established given the fact that

the landlord has filed an application for surrender of

tenancy and despite the order of surrender, the tenant

did not hand over the possession. And, tenant continued

to be in possession of property and this aspect has not

been noticed by the Tribunal and erroneously rejected

the application for grant of occupancy.

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7. Learned counsel for the respondent landlord would urge

that the tenant surrendered the entire property though

order for surrender was only half of the property.

Tenant moved an application to surrender the entire

property and later he did not continue to be in

possession of the property and noticing the fact that the

tenant is not cultivating the property immediately before

01.03.1974, the Tribunal has rejected the application

seeking occupancy rights.

8. The Court has considered the contentions raised at the

Bar and perused the records.

9. As can be noticed from the order dated 03.02.2005 in

W.P. No.51128/2003 the Co-ordinate Bench of this

Court has noticed that suit was filed in SLC Suit

No.58/1972 before the Additional Munsiff, Savanur and

on 09.06.1972. The said suit was allowed and

petitioner in the said suit namely the tenant was

permitted to surrender 2 acres 15 ½ guntas of land out

of 4 acres 31 guntas in survey No.115/2 referred to

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WP No. 21847 of 2017

HC-KAR

above and the landlord was permitted to enter into the

possession of the said land.

10. It is also required to be noticed that the landlord had

also filed an application for resumption of entire land

bearing survey No.115/2 in SLC No.58/1972 and that

suit was dismissed as not pressed in terms of order

dated 12.06.1972 and relevant portion of the order

reads as under:-

i. “Sy.No.115/2 was cultivated by opponent

No.2 and he has surrendered the land

under S.L.C. No.58/1972. Hence, she

has given up claim against him”.

11. It is also noticed from paragraph No.6 of the

observations made by the Co-ordinate Bench of this

Court in the aforementioned order, that tenant who had

filed aforementioned writ petition had contended that

since the petitioner had surrendered 50% of the land,

the Tribunal ought to have held tenant has continued in

respect of the remaining half portion. Though the

paragraph No.9 of the order would indicate that the

entire or