Karnataka High Court
Sri. Lawrence Saldanha vs Smt. Leela on 14 December, 2021
Bench: P.S.Dinesh Kumar, P.Krishna Bhat
W.A No.1030/2016
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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.1030 OF 2016 (LR)
BETWEEN :
SRI. LAWRENCE SALDANHA
S/O SRI. KASHMIRA SALDANHA
AGED ABOUT 70 YEARS
BOLLUR VILLAGE-565 004
MANGALORE TALUK
DAKSHINA KANNADA DISTRICT ... APPELLANT
(BY SHRI. K. CHANDRANATH ARIGA, ADVOCATE)
AND :
1. SMT. LEELA
W/O SRI. ANANDA
AGED ABOUT 89 YEARS
GUDDEHITHLU HOUSE
NEAR PANCHALINGESHWARA
TEMPLE, URVA-575 006
MANGALORE
1(A). SMT. VEERAVATHI
D/O LATE SMT. LEELA
AGED ABOUT 72 YEARS
1(B). SRI. VAJRAKSHA
S/O LATE SMT. LEELA
AGED ABOUT 70 YEARS
1(C). SRI. SURESH KUMAR
S/O LATE SMT. LEELA
AGED ABOUT 68 YEARS
W.A No.1030/2016
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1(D). SRI. JAYAPRAKASH
S/O LATE SMT. LEELA
AGED ABOUT 66 YEARS
1(E). SRI. DAYANANDA
S/O LATE SMT. LEELA
AGED ABOUT 64 YEARS
1(F). SRI. SRIKANTHA
S/O LATE SMT. LEELA
AGED ABOUT 62 YEARS
ALL ARE RESIDING AT
GUDDE HITHLU HOUSE
NEAR PANCHALINGESHWARA
TEMPLE, URVA
MANGALORE-575 006
2. THE STATE OF KARNATAKA
REPRESENTED BY ITS
SECRETARY TO
REVENUE DEPARTMENT
DR.AMBEDKAR ROAD
M.S.BUILDING
BANGALORE-560 001
3. THE LAND TRIBUNAL
MANGALORE TALUK
TALUK OFFICE
MANGALORE-575 001
DAKSHINA KANNADA DISTRICT ... RESPONDENTS
(BY SHRI. G. RAVISHANKAR SHASTRY, ADVOCATE FOR R1 (A-F);
SHRI. C.N. MAHADESHWARAN, AGA FOR R2 & R3)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER
PASSED IN THE WRIT PETITION No.9844/2008 DATED 24.03.2016.
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.1030/2016
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JUDGMENT
This intra court appeal is directed against order
dated March 24, 2016, passed by the Hon'ble Single Judge in
W.P.No.9844/2008.
2. For the sake of convenience, parties shall be referred as
per their status in the writ petition.
3. Writ petitioner, Smt.Leela has filed the instant writ
petition contending, inter alia, that out of total extent of 3
Acres 61 cents land in Sy.No.49/2, 1 Acre 18 cents belonged
to her husband and the remaining area fell to the share of
other family members. One Srinivas Prabhu was the 'moola
genidar' (original tenant) to the extent of 1 Acre 14 guntas in
Sy.No.49/2 and Sy.No.52/2 of Bolur Village, Mangaluru Taluk.
The Land Tribunal granted 9 cents of land in LRT
No.281/77-78 to petitioner's husband Ananda. He bequeathed
his moola geni rights in petitioner's favour under Will dated
February 16, 1960. Thus, petitioner and her children became
owners of 9 cents in Sy.No.49/2.
W.A No.1030/2016
4. Petitioner was also in possession of 1-05 Acre in
Sy.No.49/2 and 0.14 acres in Sy.No.54/2 as moola geni
tenant.
5. The third respondent, Lawrence Saldanha
filed Form-7 for grant of occupancy rights in respect of
Sy.No.54/1A and some other lands. The Land Tribunal,
vide order dated December 31, 1981, granted occupancy
rights in respect of four lands in favour of third respondent.
6. The third respondent filed Form-7A under Section 77A of
the Karnataka Land Reforms Act, 19611, claiming occupancy
rights in respect of 1.18 Acres in Sy.No.49/2 and 0.20 Acres in
Sy.No.52/2A. By order dated August 24, 2004, the Form-7A
filed by the third respondent has been rejected.
Subsequently, on January 21, 2006, third respondent filed
an application seeking correction of the order dated
December 31, 1981. The Land Tribunal, without issuing notice
to the petitioner, has granted Sy.No.49/2 and Sy.No.54/2A in
the guise of correction. Accordingly, petitioner prayed for
'the Act' for short
W.A No.1030/2016
quashing the order dated June 30, 2007. The Hon'ble Single
Judge has allowed the writ petition. Hence, this writ appeal.
7. We have heard Shri G.Ravishankar Shastry, learned
advocate for the writ petitioner, learned AGA for the
State and Shri K.Chandranath Ariga, learned advocate for the
third respondent.
8. Shri Chandranath Ariga submitted that third respondent
had filed his Form-7 seeking occupancy rights in respect of
1 Acre 18 cents in Sy.No.49/2. However, the Land Tribunal,
vide order dated December 31, 1981, granted occupancy
rights in respect of 0-33 cents in Sy.No.48/2(H), 0-14 cents in
Sy.No.48/2(K), 0-50 cents in Sy.No.48/2(M) and 0-15 cents in
Sy.No.54/1A. He submitted that the third respondent has
rightly filed an application seeking rectification of the Survey
numbers and the same has been ordered by the Land Tribunal.
The Hon'ble Single Judge has allowed the writ petition holding
that the error occurred could not be corrected as 'an
arithmetic error or clerical error'. He contended that this
finding is erroneous in view of the Division Bench judgment in
W.A No.1030/2016
the case of Sri Rama Poojary Vs. Sri Sadhashiva Kodgi and
others2.
9. Opposing the appeal, Shri Ravishankar submitted that,
firstly the Tribunal had no jurisdiction to correct the order.
Secondly, the correction has been ordered without notice to
the writ petitioner.
10. In reply, Shri Ariga submitted that petitioner's husband
Ananda, in his statement dated September 13, 1977, has
clearly admitted that except 11 cents of land, he had no
objection for granting the lands in favour of tenants' family.
11. We have carefully considered rival contentions and
perused the records.
12. Undisputed facts of the case are, by the first order
dated December 31, 1981, the Land Tribunal, Mangaluru,
has considered the applications filed by five claimants/tenants
namely,
(i) Martin Saldanha & Francis Saldanha,
(ii) Egbart Govios & four others,
Order dated October 16, 2019 in W.A.No.545/2012
W.A No.1030/2016
(iii) Kashmir Saldanha (since deceased) by Paul, Cyril,
Jones and Lawrence Saldanha,
(iv) Cyril Saldanha S/o Kashmir Saldanha, and
(v) Lawrence Saldanha S/o Kashmir Saldanha
and granted occupancy rights in favour of Martin Saldanha,
Cyril Saldanha and Lawrence Saldanha. We are concerned
with grant of occupancy rights in favour of Lawrence Saldanha.
Land Tribunal has granted following lands in favour of
Lawrence Saldanha.
Sl. Survey Number Extent
No.
1 48/2 portion (H) 33 cents
2 48/2 portion (K) 14 cents
3 48/2 portion (M) 50 cents
4 54/1A portion (3) 15 cents
13. The Tribunal has allowed the application filed by the
third respondent and corrected the Survey numbers, by the
impugned order.
14. Two main grounds have been urged on behalf of the
writ petitioner. Firstly, that the Tribunal had no jurisdiction to
make correction. Secondly, that correction has been effected
without notice.
W.A No.1030/2016
15. So far as the first ground is concerned, Shri Ariga's
argument is, proviso to Sub-Section 6 of Section 48-A of the
Act, permits the Land Tribunal to correct any
clerical or arithmetic mistakes. In support of this contention,
he has placed reliance on the Division Bench judgment in
Sri Rama Poojary3. He is right in his submission.
16. The second proviso to Sub-Section 6 of Section 48-A of
the Act4 requires actual measurement and giving opportunity
to the concerned parties before passing any order. The
impugned order passed by the Tribunal shows that survey has
been conducted. The writ petitioner's another grievance is
that the order has been passed without notice. Writ petitioner
is the wife of the land lord Late Ananda. Late Ananda has
given his statements before the Land Tribunal (Annexures-R2
and R3). Annexure-R3 is dated 13.09.1977. He has stated
therein that he had given his lands bearing Sy.No.49/2A
measuring 0-66 cents, Sy.No.49/2B measuring 0-24 cents,
Sy.No.49/2D measuring 0-36 cents, Sy.No.49/2I measuring
0-19 cents, Sy.No.49/2J measuring 0-36 cents, Sy.No.48/3B
Order dated 16.10.2019 in W.A.No.545/2012
Karnataka Land Reforms Act, 1961
W.A No.1030/2016
measuring 0-41 cents to Cyril Saldana and Lawrence Saldana
on lease (chaala geni). He has also qualified his statement
that 68 coconut trees and other trees in 0-11 cents were in his
possession. We have also perused the original file of the
Land Tribunal produced by the learned AGA. It contains the
statement of Shri Ananda dated 11.09.1981 at page 289 of
the file. It shows that Shri Ananda had no objection for
granting lands in favour of Lawrence Saldana and Cyril
Saldana.
17. In view of the above undisputed facts, the Tribunal has
made correction of survey numbers. The controversy is only
with regard to Survey numbers 48/2(H) measuring 0-33 cents,
48/2(K) measuring 0-14 cents and 48/2(M) measuring 0-50
cents. The total area is 0-97 cents. In the corrected order
dated 30.06.2007, the Tribunal has granted Sy.No.49/2(P2)
measuring 0-32 cents, 49/2(P3) measuring 0-22 cents and
49/2(P4) measuring 0-38 cents. The total area now granted is
0-92 cents which is, in fact, 0-5 cents less than what was
granted in the first order. Shri Ananda's statement is
unambiguous to the effect that he had given the said lands on
lease in favour of the third respondent and his brother.
W.A No.1030/2016
18. Thus in substance, appellant tenant as got 92 cents
which is 0-5 cents less than the original grant of 0-97 cents.
19. Therefore, in our considered view, reasons recorded by
the Hon'ble Single Judge are not sustainable.
20. Resultantly, this appeal merits consideration. Hence,
the following;
ORDER
(i) Writ appeal is allowed;
(ii) Order dated March 24, 2016, passed in W.P.
No.9844/2008 is set-aside; and
(iii) Order dated June 30, 2007, passed by the Land
Tribunal, Mangaluru (Annexure-A), is restored.
No costs.
Sd/-
JUDGE
Sd/-
JUDGE
AV
