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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF OCTOBER, 2022
PRESENT
THE HON’BLE MR. JUSTICE ALOK ARADHE
AND
THE HON’BLE MR. JUSTICE S.VISHWAJITH SHETTY
WRIT APPEAL NO.3656/2019(LR)
BETWEEN:
1.
ANTHONY GOMES
S/O LATE ALEX GOMES
DEAD BY HIS LRS
1(a). KATRIN GOMES
W/O LATE ANTONY GOMES
AGED ABOUT 70 YEARS
R/AT NO.6-2 GOMES HOUSE
KEMUNDELU POST, YELLUR VILLAGE
VIA YERMAL UDUPI TALUK
& DISTRICT - 574 119.
1(b). BENEDICTA GOMES
D/O LATE ANTONY GOMES
AGED ABOUT 69 YEARS
R/AT NO.6-2 GOMES HOUSE
KEMUNDELU POST, YELLUR
VILLAGE, VIA YERMAL UDUPI
TALUK & DISTRICT - 574 119.
1(c). HELEN GOMES
D/O LATE ANTONY GOMES
AGED ABOUT 67 YEARS
R/AT B/305A BLUE DIAMOND CHS
L.M.ROAD, NAVAGAON DAHISAR
WEST MUMBAI - 400 068.
1(d). CHRISTIN GOMES
D/O LATE ANTONY GOMES
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AGED ABOUT 64 YEARS
R/AT SAHYOJ APARTMENT BUILDING
NEAR KAPOL NIVAS
ROOM NO.104, V.S. ROAD
VIRAR EAST, GOPCHAR PADA
MUMBAI - 401 305.
1(e). SIMON GABRIAL GOMES
S/O LATE ANTONY GOMES
AGED ABOUT 61 YEARS
R/AT SHIVNERI RAHIVASI MANDAL
LBS NAGAR, LM ROAD
KANDERPADA, DAISAR WEST
MUMBAI - 400 068.
1(f). VALERIAN GOMES
S/O LATE ANTONY GOMES
AGED ABOUT 59 YEARS
R/AT NO.6-2 GOMES HOUSE
KEMUNDELY POST, YELLUR
VILLAGE, VIA YERMAL UDUPI
TLAUK & DISTRICT - 574 119.
1(g). JAMES PHILP GOMES
S/O LATE ANTONY GOMES
AGED ABOUT 54 YEARS
R/AT NO.6-2 GOMES HOUSE
KEMUNDELY POST, YELLUR
VILLAGE, VIA YERMAL UDUPI
TLAUK & DISTRICT - 574 119.
1(h). AGNES MATHAIS
D/O LATE ANTONY GOMES
AGED ABOUT 52 YEARS
R/AT ROOM NO.44, KAPASWADI
BUILDING DN NAGAR, POLICE
STATION, ANDHERI WEST
MUMBAI - 400 058.
1(i). MARGARET MARY GOMES
D/O LATE ANTONY GOMES
AGED ABOUT 49 YEARS
R/AT 2-40 (16), VELANKANI
KRIPA, KAUP, PADU KAUP
UDUPI DISTRICT AND
TALUK - 574 106.
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1(j). THERESA D SOUZA
D/O LATE ANTONY GOMES
W/O VALERIAN D SOUZA
AGED ABOUT 46 YEARS
R/AT KASHIKATTE, SULLIA TALUK
SUBRAMANYA, DAKSHINA
KANNADA - 574 238.
1(k). WILIUM GOMES
S/O LATE ANTONY GOMES
AGED ABOUT 43 YEARS
R/AT NO.6-2 GOMES HOUSE
KEMUNDELU POST, YELLUR
VILLAGE, VIA YERMAL UDUPI
TALUK & DISTRICT - 574 119.
1(l). JYOTHI MONICA RODRIGUS
D/O LATE ANTONY GOMES
W/O PAUL RODRIGUS
AGED ABOUT 41 YEARS
R/AT PAMMAJE, KANNAJE BAIL
LAILA, DAKSHINA KANNADA - 574 214.
1(m). ANJELINE GOMES
D/O LATE ANTONY GOMES
W/O WILFRED JOCKIM SEQUEIRA
AGED ABOUT 39 YEARS
NO.2-9/1 DAILA MOODFERAR
MOODFERAR POST AND VILLAGE
KANDAVARA KINNIKAMBLA
KARNATAKA - 574 151.
1(n). EMILIAN GOMES
D/O LATE ANTONY GOMES
W/O LANCY D CUNHA
AGED ABOUT 35 YEARS
R/AT T 209(4A), DREAMS HOUSE
BELTHANGADY, KARANDUR PALLE
TENKAKARANDUR, DAKSHINA
KANNADA - 574 214.
...APPELLANTS
(BY SRI BALAKRISHANA SHASTRY, ADV.)
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AND:
1.
STATE OF KARNATAKA
REPRESENTED BY ITS
SECRETARY, DEPARTMENT OF
REVENUE, VIDHANA SOUDHA
BANGALORE - 560 001.
2.
THE ADDITIONAL LAND TRIBUNAL
KAUP HOBLI, UDUPI TALUK
REPRESENTED BY ITS
PRESIDENT AND SPECIAL
ASSISTANT COMMISSIONER
LAND TRIBUNAL UDUPI.
3.
SMT. SUSHEELA UDUPA
W/O LATE SRIDHARA UDUPA
AGED ABOUT 78 YEARS
SANANJE HOUSE, YELLUR VILLAGE
AND POST, UDUPI TALUK
DISTRICT - 574 132. ....RESPONDENTS
(BY SRI B. RAJENDRA PRASAD, AGA FOR R-1 & R-2;
SRI VYASA RAO K.S, ADV., FOR R-3)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
ORDER DATED 18.06.2019 IN W.P.NO.8325/2012, TO THE
EXTENT OF REJECTION OF THE CLAIM OF THE APPELLANT IN
RESPECT OF THE LANDS BEARING SY.NO.185/1 AREA 10
ACRES 45 CENTS, 188/1A AREA 3 ACRES 75 CENTS, 186/2
AREA 3 ACRES 75 CENTS OF YELURU VILLAGE, TALUKA AND
DISTRICT UDUPI, ORDER OF THE LAND TRIBUNAL, UDUPI
DATED
27.12.2011
IN
NO.LRY-140-170-TRI-574/80-81
PRODUCED AT ANNEXURE-A BE SET ASIDE IN RESPECT OF
THE AFORESAID THREE SURVEY NUMBERS AND THE LAND
TRIBUNAL, UDUPI BE DIRECTED TO GRANT OCCUPANCY
RIGHT TO THE APPELLANT IN RESPECT OF THE AFORESAID
LANDS AND THIS WRIT APPEAL BE ALLOWED WITH COSTS
THROUGHOUT IN THE INTEREST OF JUSTICE.
THIS APPEAL COMING ON FOR ORDERS ON ADMISSION
THIS DAY, VISHWAJITH SHETTY J., DELIVERED THE
FOLLOWING:
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This intra court appeal is filed assailing the order
dated 18.06.2019 passed by the learned Single Judge of
this Court in W.P.No.8325/2012.
Heard the learned counsel appearing for the
appellant,
learned
Additional
Government
Advocate
appearing for respondent Nos.1 and 2 and learned
counsel appearing for respondent No.3.
Brief facts of the case as revealed from the
records which are necessary for the purpose of disposal
of this appeal are, the appellant had filed Form No.7
claiming occupancy rights of several items of the land
situated at Yelluru Village, Udupi Taluk inclusive of the
lands bearing survey No.185/1 and 188/1A measuring 10
acres 45 cents and 1 acres 68 cents respectively. The
Land Tribunal by order dated 22.08.1981 had granted
occupancy rights of certain items of land in favour of
appellant but had not granted occupancy rights of the
land bearing survey Nos.186/1, 184/1, 186/2, 185/1 and
188/1A. As against the said order, the appellant had filed
W.P.No.8017/1982 whereas respondent No.3 landlord
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had filed W.P.No.16057/1982. During pendency of the
said writ petitions before this Court, the Land Reform
Appellate Authority was constituted and therefore, the
said writ petitions were transferred to the Land Reforms
Appellate Authority and subsequent to abolition of the
said
appellate
authority,
W.P.No.16057/1982
was
retransferred
to
this
Court
and
numbered
as
W.P.No.39427/2000. However, W.P.No.8017/1982 was
not pursued further after abolition of the appellate
authority.
4.
W.P.No.39427/2000 filed by respondent No.3
was allowed by this Court on 01.03.2006 and the matter
was remanded to the Tribunal to consider the matter
afresh. The Land Tribunal in the remanded matter only
considered the claim of the appellant in respect of survey
No.185/1 and 188/1A measuring 10 acres 45 cents and 1
acre 68 cents respectively and rejected the claim of the
appellant on the ground that the said lands are punja
lands. Being aggrieved by the said order dated
27.12.2011,
the
appellant
had
preferred
W.P.No.8325/2012 which was disposed off by the learned
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Single Judge vide the order impugned directing the Land
Tribunal to grant occupancy rights of the land bearing
survey No.187/6 and 181/4 in favour of the appellant
and confirmed the order passed by the Tribunal in so far
it rejects the claim of the appellant in respect of the land
bearing survey No.185/1 measuring 10 acre 45 cents and
land bearing survey No.188/1A measuring 1 acres
68cents. Being aggrieved by the said order, the
unsuccessful petitioner has preferred this appeal.
5.
The learned counsel appearing on behalf of
the appellant submits that though the land bearing
survey No.185/1 and 188/1A were not subject matter of
the Geni Chit, the possession of the said land by the
appellant was admitted by respondent No.3 in the legal
notice issued to the appellant. He submits that the
revenue records of the aforesaid two items of land stood
in the name of the appellant and the appellant had grown
cashew plants in these two items of the lands and
therefore, the Tribunal was not justified in rejecting the
claim for grant of occupancy rights of these lands. He
submits that, if the tenant is able to show that the punja
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lands were cultivated, the occupancy of the said lands
can be granted and he also submits that the lands in
question were utilized by the appellant for subservient
purposes to cultivate the warga land of which occupancy
rights have been granted to the appellant and this aspect
has not been properly appreciated by the Tribunal. In
support of his arguments, he has placed reliance on the
following judgments:-
Subhakar vs. Land Tribunal Karkala1
Subhakar vs. Harideesh kumar2
Gurubasappa Ningappa Banakar vs. The Land
Tribunal Dharwar & Ors.3
4.
Moorji Vaikunta Prabhu vs. Moorji Gopal
Prabhu4
5.
Ramachandra Devasthanam Sawada vs.
Subbanna Shetty & Ors5
6.
Huchusab Janglisab vs. State of Karnataka6
7.
Byalappa vs. State of Karnataka & Ors7
8.
State of Karnataka & Ors vs
