Sheena Shetty vs State Of Karnataka
2021 Latest Caselaw 6105 Kant

                                           W.A No.660/2016

                                     1


        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 14TH DAY OF DECEMBER, 2021

                                PRESENT

         THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR
                                    AND
           THE HON'BLE MR. JUSTICE P. KRISHNA BHAT

                WRIT APPEAL No.660 OF 2016 (LR)

BETWEEN :

1.       SHEENA SHETTY
         S/O KIRNI SHETTY
         SINCE DEAD BY LR'S

1(A).    SRI. MANMATH KUMAR
         S/O LATE SHEENA SHETTY
         MAJOR
         NEAR HOSAMANE
         JAIN PET, NEAR NELLIKARU
         VILLAGE AND P.O.
         MANGALORE
         D.K.DIST., PIN-574 109              ... APPELLANT

(BY SHRI. N. SUKUMAR JAIN, ADVOCATE)

AND :

1.       STATE OF KARNATAKA
         REPRESENTED BY ITS SECRETARY
         DEPT. OF LAND REVENUE
         M.S.BUILDING
         BANGALORE-01

2.       THE LAND TRIBUNAL
         BELTHANGADY TALUK
         BELTHANGADY
         D.K.DISTRICT-574 214

3.       SRIDHARA SHERIGARA
         S/O DHARMANA SHERIGARA
         AGED ABOUT 86 YEARS
                                                  W.A No.660/2016

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     R/AT: ANANTHASHRI
     JAINPETE, MURAMELU
     NARAVI VILALGE
     BELTHANGADY TALUK
     D.K. DIST-574 109

     SMT. IRADEVI
     SINCE DEAD BY LR'S

4.   SMT. PADMA KUMARI
     AGED 48 YEARS
     R/AT GOKULAM
     MYSORE-570 002
5.   SMT. SADHUMANI
     AGED 43 YEARS
     R/AT CHECKLANI
     AHMEDABAD
     GUJARATH-380 001
6.   SMT. MANJULA
     AGED 40 YEARS
     R/AT ANDHERI WEST
     MUMBAI-400 053
7.   KUM. PRAFULLA
     AGED 36 YEARS
     R/AT JAINPET IN NARAVI
     BELTHANGADY TALUK
     D.K. DIST-574 109
     ALL ARE REP. BY
     SPECIAL POWER OF ATTORNEY HOLDER
     SHAKUNTALA KUMARI
     D/O NABHIRAJA INDRA
     R/AT JAINPET IN NARAVI
     BELTHANGADY
     D.K.DIST-574 214                            ... RESPONDENTS

(BY SHRI. C.N. MAHADESHWARAN, AGA FOR R1 & R2;
    R3-SERVED;
    SHRI. K. SRIHARI, ADVOCATE FOR R4 & R7)

      THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT
ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION
NO.26332/2005 DATED 18.02.2016.

     THIS WRIT APPEAL, HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 16.09.2021 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, P.S.DINESH KUMAR.   J, PRONOUNCED THE
FOLLOWING:-
                                                W.A No.660/2016

                               3


                         JUDGMENT

This intra court appeal is directed against order dated

February 18, 2016, passed by the Hon'ble Single Judge in

W.P.No.26332/2005.

2. For the sake of convenience, parties shall be

referred as per their status in the writ petition.

3. Brief facts of the case are, writ petitioners

approached this Court contending inter alia that their

grand mother has filed an application in Form-7 of the

Karnataka Land Reforms Act, 1961, in respect of

agricultural property measuring 36 cents in Sy.No.60/6 of

Naravi village in Beltangadi Taluk, D.K. district. The Land

Tribunal had rejected petitioners' claim on the ground that

their grand mother Smt.Iradevi had not filed Form-7. The

Hon'ble Single Judge has held that denial of occupancy

rights only on the ground that the application in Form-7 was

not traceable is unfair and accordingly allowed the writ

petition.

W.A No.660/2016

4. Shri Vinay, learned advocate for the appellant-

land owner submitted that the Land Tribunal has passed a

detailed order and recorded a finding that Form-7 is not

found in the records. Therefore, question of granting

occupancy rights to a 'non claimant' is unsustainable in law.

Hence, the impugned order is liable to be set aside.

5. Shri Rajashekar, learned advocate for the

tenant-respondents submitted that this Court in

W.P.No.19727/1992 has held that Smt. Iradevi had filed her

application. The matter was remanded to the Land Tribunal

for fresh consideration. Therefore, the order passed by the

Tribunal is contrary to the record and the Hon'ble Single

Judge has rightly allowed the writ petition.

6. We have carefully considered rival contentions

and perused the records.

7. By it's order dated August 4, 19811, the Land

Tribunal had granted the land in question2 in favour of

In LRY 108/74-75 & connected cases on the file of Land Tribunal, Belthangadi

Sy.No.60/6 measuring 36 cents in Naravi village of Beltangadi Taluk, D.K. district.

W.A No.660/2016

Shri Sridhara Sherigara. The said order has been set aside

by this Court3 and matter remitted for fresh consideration.

This Court has also permitted the parties to adduce further

evidence, if they so desired. After remand, the Tribunal

has passed the impugned order. The Hon'ble Single Judge

has allowed the writ petition on the premise that this Court,

had observed in W.P.No.19727/1992 that Smt.Iradevi had

also filed Form No.7.

8. Therefore, the entire case hinges

around determination of the fact as to whether Smt.Iradevi

had filed her application in Form-7 or not.

9. Learned AGA has produced the original records

of the Land Tribunal. In the said records, copy of the order

dated August 4, 19814 passed by the Land Tribunal is found

between pages 93 to 96. By the said order, the land in

question was granted in favour of Sridhara Sherigara. The

following proceedings of the Land Tribunal are relevant. In

vide Order dated 21.07.1997 in W.P.No.19727/1992

In LRY 108/74-75 & connected cases on the file of Land Tribunal, Belthangadi W.A No.660/2016

the order dated September 13, 2001, the Tribunal has

recorded as follows:

"case called. GPA executed by petitioners filed. The entry regarding the claim Form-7 application may be verified in the register. Call on 01st October."

10. The order dated November 29, 2001 reads as

follows;

"case called. The application in Form-7 of the writ petitioner is not found in file. Call on 20th December."

11. The order dated January, 15, 2002 reads as follows;

"Case called. The entry regarding the application is not found even in the register. Call on 14th February."

12. Thereafter, the case has been adjourned on

several dates. One Smt.Shakuntala Kumari, the GPA holder

of legal representatives of Smt.Iradevi has been

cross-examined. In the cross-examination held on May 13,

2003, she has admitted that she had no knowledge about

the place where the declaration was prepared nor its

scribe. She also admitted that she did not know when it W.A No.660/2016

was filed. She has admitted that the Taluk office gives an

acknowledgment when a declaration is filed. But the

acknowledgment was not available.5

13. On June 17, 2003, the Tribunal has recorded as

follows:

"Case called. All the c/s are present except KSG. As sufficient opportunity was given to KSG to lead further evidence, he has shown no inclination. Consequently, L/T goes ahead and closes his case due to deadline to dispose of the case."

14. The Tribunal has recorded that on verification, no

record was found in the Taluk office with regard to

submission of Form-7 by Smt.Iradevi; and that there is no

record which evidences payment of lease amount. It has

also recorded that the Tahasildar, Belthangadi, has not

shown applicant as a tenant.

15. The main argument advanced on behalf of the

writ petitioners is, in the earlier round of litigation, this

5 at pages 176 to 178 of original record W.A No.660/2016

Court has recorded that Smt.Iradevi has also filed

Form-7. The relevant paragraph in order dated July 21,

1997 in W.P.No.19727/1992 reads as follows:

"4. It is seen from the records that present petitioner also filed Form-7 claiming occupancy rights in respect of the above said land."

16. A copy of the W.P.No.387/1986 is also found

in the original records. In para 3 of the said writ petition, it

is stated that a copy of the claim application of petitioner

was annexed as Annexure-E. The said writ petition was

transferred to the Additional District Land Reforms Appellate

Tribunal, Puttur, D.K. and re-registered as

LRA.No.630/1986. Upon abolition of the Land Reforms

Appellate Tribunal, a Civil Petition was filed under Section

17 of the KLR Act before this Court and that came to be

re-registered as W.P.No.19727/1992. Though it is observed

in Para-4 of the order in W.P.No.19727/1992 that the

petitioner had also filed Form-7, there is no indication in the

order that the original file of the Tribunal was called for and

perused. It was argued by the learned advocate for the W.A No.660/2016

appellant that an uncertified copy of Form-7 was annexed

to the writ petition and this Court may have considered the

same and held that Smt.Iradevi had filed Form-7. This

submission has some force, because in para-3 of the writ

petition filed by Smt.Iradevi6, it is stated that a copy of

Form-7 was produced as Annexure-E.

17. It is settled that the Land Tribunal is the fact

finding authority. In this case, the Land Tribunal has relied

upon the records of the Taluk Office, the Tahasildar's report

and the evidence of Smt.Shakunthala Kumari to arrive at a

conclusion that Smt.Iradevi's Form-7 has not been

found/registered. However, the Hon'ble Single Judge has

allowed the writ petition by placing reliance on the finding

recorded by this Court in W.P.No.19727/1992. As recorded

hereinabove, this Court has not held that said finding is

based perusal of original record. The Land Tribunal being

the fact finding authority, it's findings cannot be disturbed

without verification of records. In contradistinction, we have

Writ Petition No.387/1996 W.A No.660/2016

carefully perused the original records maintained by the

Tribunal. Therefore, we hold that the view taken by the

Hon'ble Single Judge is unsustainable in law because the

said view is contrary to material on record.

18. Resultantly, this writ appeal merits consideration

and hence the following:

ORDER

i) Writ appeal is allowed;

ii) Order dated February 18, 2016 in W.P.No.26332/2005

is set aside;

iii) Order dated May 13, 2005 in case

No.MR:108:87,88,110:74-75 passed by the Additional Land

Tribunal, Belthangady (Annexure-A) is restored.

No costs.

Sd/-

JUDGE

Sd/-

JUDGE AV/Yn