H R Sathyanarayana vs The State Of Karnataka By Its ...
2021 Latest Caselaw 6084 Kant

                            1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 14TH DAY OF DECEMBER, 2021

                        BEFORE

        THE HON'BLE MR. JUSTICE R. NATARAJ

        WRIT PETITION NO.27115 OF 2012 (LR)

BETWEEN:

H.R. SATHYANARAYANA
S/O RAMANAIAK,
AGED ABOUT 50 YEARS,
R/O HARADAVALLI VILLAGE,
BHAVIKAISARU POST,
THIRTHAHALLI TALUK,
SHIMOGA DISTRICT
                                   ...PETITIONER
(BY SRI K.N. NITISH, ADVOCATE FOR SRI K.V. NARASIMHAN,
ADVOCATE)

AND:

1.     THE STATE OF KARNATAKA
       BY ITS SECRETARY,
       DEPARTMENT OF REVENUE,
       VIDHANA SOUDHA,
       BANGALORE-1

2.     THE DEPUTY COMMISSIONER
       SHIMOGA DISTRICT, SHIMOGA

3.     SMT. NAGARATHNAMMA,
       D/O LATE HIRIYANAIK
       AGE: MAJOR,
       R/O HARADAVALLI VILLAGE,
       BHAVIKAISARU POST,
       THIRTHAHALLI TALUK,
       SHIMOGA DISTRICT
                                2


4.     H.D. SURENDRA GOWDA
       S/O DASAIAH GOWDA,
       MAJOR,
       R/O KANASIMAKATTE
       HOLEHONNA HOBLI,
       BHADRAVATHI TALUK,
       SHIMOGA DISTRICT
       SINCE DEAD BY HIS LR.

4(a)   MR. NAVEEN CHANDRA,
       S/O LATE H.D. SURENDRA GOWDA,
       AGED ABOUT 60 YEARS,                            Amendment carried
       R/O KACHINAKATE,                                out as per Court order
                                                       dated 15.10.2015
       SIDNIPURE POST,
       BHADRAVATHI TALUK,
       SHIMOGA DISTRICT.

5.     THE LAND TRIBUNAL
       THIRTHAHALLI TALUK,
       SHIMOGA DISTRICT
       BY ITS SECRETARY

6.     THE TAHSILDAR               Impleaded as per
       THIRTHAHALLI TALUK,         Court order dated
                                   15.10.2015
       SHIMOGA DISTRICT.
                                               ...RESPONDENTS

(BY SRI. A.R. SRINIVAS, ADDITIONAL GOVERNMENT ADVOCATE
FOR RESPONDENT NOS.1, 2, 5 AND 6
SRI L. SRINIVASA BABU, ADVOCATE FOR CAVEATOR /
RESPONDENT NO.3
RESPONDENT NO.4(a) IS SERVED AND UNREPRESENTED)


     THIS PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 19.07.2012 PASSED BY THE RESPONDENT NO.5
IN CASE NO.L.R.T.(INAM) A.G.R.VRP.32/81-82 PASSED BY THE
RESPONDENT NO.5 VIDE ANNEXURE-G AND ETC.
                                  3


      THIS PETITION COMING ON FOR 'DICTATING ORDER'
THIS DAY, THE COURT PASSED THE FOLLOWING:

                              ORDER

The petitioner has challenged the Order dated

19.07.2012 passed by the respondent No.5 in case

No.LRT(Inam).AGR.VRP.32/81-82 (Annexure 'G' to the

petition).

2. The father of the petitioner was allegedly a

tenant in possession and cultivation of the land bearing Sy.

No.53/2 measuring 13 guntas situated at Virupapura

village, Thirthahalli Taluk, Shivamogga District, which was

an emolument to an inam. His name was entered in the

revenue records from the year 1969 till 1975. After his

father's death, the petitioner alleged that he was

cultivating the land in question. The petitioner claims that

he filed Form No.1 as prescribed under the Mysore

(Personal and Miscellaneous) Inams Abolition Act, 1954

(henceforth referred to as 'the Act of 1954') while the

respondent No.3, the daughter of the petitioner's uncle,

had also filed an application in Form No.1 on the ground

that her father was cultivating the land. The petitioner

claimed that respondent No.3 herein and her sister filed

O.S. No.701/1980 before the Court of Prl. Munsiff,

Shimoga, claiming that they were the owners of 13 guntas

of land in the aforesaid survey number and the said suit

was transferred to the Court of Munsiff at Thirthahalli and

was renumbered as O.S. No.213/1982. The petitioner

claimed that a deed of relinquishment dated 19.03.1984

was executed by the respondent No.3 and her sister, Smt.

Soubhagya, in favour of the petitioner herein and his

brother, Sri H.R. Purushotham, relinquishing their rights in

respect of the properties mentioned therein. Hence, the

suit filed by her in O.S. No.213/1982 was not pursued and

was dismissed for non-prosecution on 02.07.1984.

3. Per contra, the respondent No.3 herein claimed

that her father was cultivating the land and after his death,

the father of petitioner managed to get his name entered

in the revenue records. She alleged that it was she who

was entitled to be registered as an occupant.

4. The case of the petitioner as well as the

respondent No.3 came up for consideration before the

Land Tribunal, Thirthahalli Taluk, (henceforth referred to

as 'the Tribunal') under the Act of 1954. The Tribunal by

its Order dated 07.07.1982, granted occupancy rights

jointly in favour of the petitioner herein and the

respondent No.3 herein and her sister - Smt. Soubhagya.

Since the respondent No.3 had relinquished her right, title

and interest over the land in question, the petitioner

challenged the said order of the Tribunal before this Court

in W.P. No.3237/1983. This Court in terms of the Order

dated 27.11.1984, allowed the writ petition and set aside

the order of grant dated 07.07.1982 passed by the

Tribunal and remanded the case back to the Tribunal for

fresh disposal after holding a common enquiry in strict

compliance with the requirements of Rule 17 of Karnataka

Land Reforms Rules, 1974 (henceforth referred to as 'the

Rules of 1974'). Even after the remand, the Tribunal

passed an order dated 30.09.1992 registering the

respondent No.3 herein as the occupant in respect of the

land in question and dismissed the application filed by the

petitioner herein. This again was challenged by the

petitioner before this Court in W.P. No.33689/1992. This

Court in terms of the Order dated 26.08.1999, set aside

the Order dated 30.09.1992 passed by the Tribunal and

directed the Tribunal to take into consideration the

relinquishment deed executed by the respondent No.3

herein in favour of the petitioner herein and remitted the

case back to the Tribunal for consideration of objections

raised by the parties. Thereafter, Deputy Commissioner,

Shivamogga District, took up the case and framed 3 points

including point No.2 relating to relinquishment deed

executed by the respondent No.3 herein and recorded her

statement who claimed that she had not executed the

relinquishment deed in respect of the land bearing Sy.

No.53/2 and had not received any amount. The Deputy

Commissioner by Order dated 21.06.2003, dismissed the

application in Form No.1 filed by the petitioner herein and

registered the respondent No.3 herein as the occupant in

respect of the land in question. The said order of the

Deputy Commissioner was challenged by the petitioner

herein before the Karnataka Appellate Tribunal (for short,

'the KAT') in Appeal No.801/2003. The KAT by its order

dated 26.02.2008, dismissed the appeal. Being aggrieved

by the said order of the Deputy Commissioner as well as

the KAT, the petitioner herein preferred writ petition in

W.P. No.4677/2008 before this Court. This Court in terms

of the Order dated 17.04.2008 held as follows:

"The tenanted property is 13 guntas of land in Sy.No.53/2. According to the petitioner, there is also a release deed executed in his favour in respect of tenancy rights and also other properties which the respondent challenged and this Court by order dated 26.11.1999 had directed reconsideration of the matter by the Tribunal. Meanwhile, it appears on the point of jurisdiction a decision has been rendered wherein it is clarified by the Supreme Court in the case of M.B.Ramachandran Vs Gowramma & Ors - AIR 2005 SC 751 that where the property in question comes under the Personal and Miscellaneous Inams Abolition Act, it is the subject matter before the Tribunal and not before the Deputy Commissioner and the Deputy Commissioner's jurisdiction is in

respect of Religious & Charitable Inams Abolition Act.

However, despite the direction by this Court the matter was being dealt by the Deputy Commissioner which is a non-est order against which the Appellate Tribunal has also passed an order which is also non-est.

It is the specific case of the petitioner that he is in possession of the tenanted land and is cultivating personally by virtue of the release deed executed. That apart, the question of jurisdiction has also to be considered.

In that view of the matter, the impugned order is quashed. Matter is remanded to the Land Tribunal for disposal in accordance with law. All contentions are left open."

Following the above, the Tribunal has again passed an

Order registering the respondent No.3 herein as the

occupant of the land in question in terms of the Order

dated 19.07.2012.

5. Being aggrieved by the Order dated

19.07.2012 passed by the Tribunal, the present writ

petition is filed.

6. The learned counsel for the petitioner

submitted that despite the Orders dated 26.08.1999 and

17.04.2008 passed by this Court in W.P. No.33689/1992

and W.P. No.4677/2008 respectively, the Tribunal erred in

holding that the petitioner herein had not established his

tenancy over the land in question. The Tribunal also held

that it had no jurisdiction to decide upon the legality of the

release deed allegedly executed by the respondent No.3

herein in favour of the petitioner herein concerning the

land in question. The learned counsel for the petitioner

invited the attention of this Court to the records of the

Tribunal and contended that the revenue records relating

to 13 guntas in Sy. No.53/2 stood in the name of

Ramanaik, the father of the petitioner herein, and

contended that there was ample documentary evidence to

establish that it was he, who was cultivating the land as on

the date prior to the vesting of the land in the State. He

invited the attention of this Court to the RTC extract for

the years 1969-70 up to 1973-74 which indicated the

name of the Petitioner's father, Ramanaika, as the person

in occupation of 13 guntas of land in Sy. No.53/2. He

contended that in view of the presumption attached to

these entries under Section 133 of The Karnataka Land

Revenue Act, 1964, the same was liable to be considered

seriously. He contended that the respondent No.3 herein

had not produced any documents to establish that her

father was in possession and cultivation of the land in

question prior to the date of vesting of the said land in the

State. He contended that as per the plaint filed by Smt.

respondent No.3 and her sister in O.S.No.213/1982, the

age of the respondent No.3 herein as on the appointed

date was 10 years and therefore, she could not have

cultivated the land as on 01.03.1974. He submitted that

the evidence of Smt. Lalithamma (PW.1) was not reliable

as she categorically stated that she and the petitioner

herein were not in good terms. He further submitted that

the respondent No.3 had executed a deed of

relinquishment relating to 13 guntas of land in Sy. No.53/2

and therefore, the Tribunal was bound to consider the said

question and pass appropriate orders. He also contended

that one of the members of the Tribunal noted his dissent

stating that the name of the father of petitioner herein was

found in the revenue records from the year 1950 to 1984

and that the occupancy rights were granted to respondent

No.3 herein without hearing the petitioner herein. He

contended that the impugned order was therefore mala

fide and driven by prejudice against the petitioner. He

further claimed that the suit filed by the respondent No.3

and her sister for declaration of her title in

O.S.No.213/1982 was dismissed and no steps were taken

for restoration of the suit. Thus he contended that the

respondent No.3 had acquiesced the lawful execution of

the release deed as it was not challenged. Even otherwise,

he contended that there was a presumption regarding the

lawful execution of the release deed. In this regard, he

relied upon the Judgment of the Hon'ble Supreme Court in

Prem Singh and others vs. Birbal and others [2006

(5) SCC 353]. He also contended that the Tribunal did not

conduct the proceedings as prescribed under Section 17(5)

of the Rules of 1974, as the evidence was not properly

appreciated and that the impugned Order was not a

speaking order as the basis for grant of occupancy rights in

the earlier rounds, that was set aside by this Court, was

taken into consideration while passing the impugned order.

He also claimed that the proceedings conducted by the

Tribunal were not regular.

7. Per contra, the learned counsel for the

respondent No.3 submitted that it was the father of the

respondent No.3, who was in possession of the land in

question prior to the date of its vesting in the State. He

invited the attention of this Court to the revenue records

which indicated that her father's name was found in

respect of 13 guntas of land in Sy. No.53/2 which was

later on rounded off and the name of the father of the

petitioner herein was entered. He also claimed that after

the death of the father of the respondent No.3, the name

of the petitioner's father was entered. He contended that

respondent No.3 was under the care and control of the

petitioner and his family members as she was an orphan at

that point in time. It is further claimed that the sister-in-

law of the petitioner deposed that it was the father of the

respondent No.3 who was cultivating the land prior to its

vesting and the same was supported by the evidence of a

witness named Ramappa Naik. He further contended that

the release deed was not executed by the respondent No.3

in respect of Sy. No.53/2 and the release deed dated

19.03.1984 was tampered to insert Sy.No.53/2 by hand.

The said tampering by hand was not countersigned by the

petitioner as well as by the respondent No.3. He claimed

that the respondent No.3 did not possess any right to

release her interest in Sy.No.53/2 and she could not have

done so after the land had vested in the State. He relied

on the Judgment of a Coordinate bench of this Court in

Shambhu Eshwar Hegde vs. Land Tribunal Kumta

and Another [(1979) 2 Kant LJ 194]. He submitted that

the majority of the members constituting the Tribunal had

resolved to register respondent No.3 as on occupant and

therefore if one of the members dissented, it did not really

matter. In this regard, he relied on the Judgment of this

Court in V.Virupakshappa vs. D. Hanumanthappa and

others [AIR 1978 KAR 131].

8. In reply, the learned counsel for the petitioner

submitted that the certified copy of the release deed was

also produced before the Tribunal which proved that there

was no tampering. He also claimed that the respondent

No.3 had relinquished her share in the land in Sy. No.53/2

and therefore, there was nothing amiss about the

transaction between the petitioner and the respondent

No.3. He submitted that since this Court had directed the

Tribunal to consider the effect of release deed on the rights

of the petitioner as well as the respondent No.3, it was

incumbent upon the Tribunal to record a finding on the

same and to dispose off the application in accordance with

law.

9. I have considered the submissions made by

the learned counsel for the petitioner and the learned

counsel for the contesting respondents. Perused the

records including the original records of the Tribunal

produced by the learned Additional Government Advocate.

10. It is not in dispute that the land bearing Sy.

No.53/2 is a Brahmadeya inam land, which is governed

under the provisions of the Act of 1954. The respondent

No.3 herein and her sister filed an application in Form No.1

on 30.03.1981 for grant of occupancy rights in certain

lands including 13 guntas in Sy. No.53/2. The records of

the Tribunal discloses that the petitioner had filed two

applications for grant of occupancy rights, the first one was

filed on 21.05.1977 seeking grant of occupancy rights in

respect of 04 guntas in Sy. No.52 and 08 guntas in Sy.

No.53 and another application was filed on 27.10.1980

seeking grant of land measuring 01 Acre in Sy. No.53/2

and 02 Acres 24 guntas in Sy. No.111. He later gave a

statement before the Tribunal on 07.07.1982 stating that

he is not interested to pursue the claim in respect of land

measuring 04 guntas in Sy. No.52 and 02 Acres 24 guntas

in Sy. No.111. In so far as Sy. No.53/2 is concerned, the

petitioner herein restricted his claim for grant of occupancy

rights in respect of 13 guntas of the said land. The Tribunal

therefore restricted the claim of the petitioner to the land

measuring 0-13 guntas in Sy. No.53/2. After the Order of

the Tribunal was set side by this Court in

W.P.No.3237/1983, the respondent No.3 herein was

examined and she marked the pahani register extract for

the year 1962-63 which showed the name of Sri Hiriyanna

Naika in respect of 0-13 guntas of land in Sy.No.53/2. She

examined two witnesses (Sri Ramappa Naika and her co-

sister Smt. Lalithamma). The Tribunal recorded the

evidence of the petitioner on 02.07.1992. He examined the

scribe of the release deed (Sri Shivaramaiah. T.R.) as a

witness. He marked documents as Exs.D1 to D8 which are

as follows:

            Ex.D1         Statement of Smt.Soubhagya,
                          sister of Respondent No.3



            Ex.D2     Release         deed         dated
                      19.03.1984
            Ex.D3     Order           sheet           in
                      O.S.No.213/1982
            Ex.D4     Copy      of   plaint   in    O.S.
                      No.213/1982
            Ex.D5     Written    statement    in    O.S.
                      No.213/1982
            Ex.D6     Issues
            Ex.D7     Pahani from 1969-70 to 1973-
                      74 in respect of land in Sy.
                      No.53/2
            Ex.D8     Certified copy of release deed

11. The oral and documentary evidence on record

unmistakably demonstrated that the father of petitioner

and father of respondent No.3 were brothers. The pahani

extract at Ex.P1 indicates that the father of respondent

No.3 was cultivating the land in question during the year

1962-63. The pahani extracts for the years 1961-62,

1963-64 and 1964-65 which are part of the record of the

Tribunal indicates that it was the father of respondent No.3

who was cultivating the land in question. The claim of

respondent No.3 that this land fell to the share of her

father at a partition between his brother is probable. The

petitioner in his evidence admitted the fact that the father

of respondent No.3 predeceased his father and this

explains how the name of the father of petitioner was

entered in the revenue records at Ex.D.7 for the years

1969-70 to 1973-74. The evidence of the two witnesses

examined by respondent No.3 corroborate this fact,

although Smt.Lalithamma claimed that she was not in

good terms with petitioner. Curiously, the petitioner

himself marked the Statement dated 07.07.1982 given by

the sister of respondent No.3 herein before the Tribunal

where she insisted for the grant of occupancy rights in her

favour in respect of land measuring 13 guntas in

Sy.No.53/2. It is therefore, clear that the father of the

petitioner was cultivating the land in Sy.No.53/2 on behalf

of the respondent No.3 and her sister, as their father and

mother had expired by that time and were in the care and

control of the petitioner's father. The very fact that the

petitioner set up a release deed in respect of the land in

Sy. No.53/2 would indicate that the respondent No.3 had

some subsisting right, title and interest therein. The

Tribunal after perusing the evidence of the parties as well

as the witnesses, took into account the contention of the

respondent No.3 herein that she had not executed any

release deed in respect of the land in Sy. No.53/2, and

rightly held that it cannot render any finding about the

execution of the release deed by the respondent No.3 and

her sister in favour of the petitioner.

12. It is relevant to note that after vesting of the

land in Sy.No.53/2 in the State, the petitioner claims that

the respondent No.3 had executed a release deed, even

before she was granted any rights by the Tribunal or other

authority. The respondent No.3 denied that she had

released her right in the land in Sy.No.53/2 and contended

that as on that date she was a minor.

13. The question whether the respondent No.3 and

her sister had executed a release deed dated 19.03.1984

in respect of land in Sy.No.53/2 or not and whether the

release deed was tampered to incorporate Sy.No.53/2 or

not were all questions which were beyond the jurisdiction

of the Tribunal and therefore, the Tribunal was justified in

rejecting the application of the petitioner and registering

the respondent No.3 as the occupant in respect of the land

in question. The contention of the petitioner that the

Tribunal failed to follow the procedure under Rule 17 of the

Rules of 1974 is raised, only to be rejected as the

petitioner was given all opportunity to lead evidence, mark

documentary evidence. Even otherwise, this Court in

W.P.No.4677/2008 had directed the Tribunal to consider

the effect of the release deed on the claim of the

respondent No.3 and whether it advanced the case of the

petitioner in any manner. Except claiming that the

respondent No.3 had executed a release deed, the

petitioner did not produce any material to show that it was

not the father of the respondent No.3 who was cultivating

the land in question, but it was his father who was

cultivating the same prior to its vesting in the State.

Therefore, the Tribunal had conducted the proceedings in

accordance with Rule 17 of the Rules of 1974.

14. The contention of the petitioner that the suit in

O.S. No.213/1982 before the Court of Munsiff, Thirthahalli,

by the respondent No.3 and her sister for declaration of

their title to the land bearing Sy. No.53/2 measuring 13

guntas was dismissed for non-prosecution on 02.07.1984

has no bearing on the fact of the case, as the Tribunal was

vested with the task to find out as to who was entitled to

be registered as an occupant of the land in question.

In that view of the matter, this Writ Petition lacks

merit and the same is dismissed. The original records

secured and produced by the learned Additional

Government are returned to him.

The pending I.A. stands disposed off.

Sd/-

JUDGE

sma