Lakshman vs The Land Tribunal Hukkeri
2022 Latest Caselaw 1048 Kant

                                  :1:


          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

     DATED THIS THE 24TH DAY OF JANUARY, 2022
                              BEFORE
        THE HON'BLE MR. JUSTICE R. NATARAJ

           WRIT PETITION NO.863/2008 (LR)

BETWEEN:
Lakshman S/o. Balagouda Patil,
Age 80 years, Occ: Agriculture,
R/o.: Kanagala Village,
Tq.: Hukkeri, Dist.: Belgaum.
                                                       ... Petitioner
(By Shri Dinesh M.Kulkarni, Advocate)

AND:
1.     The Land Tribunal, Hukkeri,
       Rep. by its President.
2.     Annasaheb S/o. Gopal Rao Deshpande,
       (Chandurkar) Age 50 years,
       R/o Mahadev Galli, Belgaum.
3.     Bhima S/o. Mallappa Kalyani,
       Age 70 years, Occ: Agriculture,
       R/o. Kanagala Village, Tq.: Hukkeri,
       Dist.: Belgaum.
       Sice deceased by his L.R.
3A.    Shri Ramagouda Adopted S/o. Bhima Kalyani,
       Age 46 years, Occ: Agriculture,
       R/o.: Kanagala-591 225,
       Tq.: Hukkeri, Dist.: Belagavi.
4.     The State of Karnataka,
       Rep. by Secretary, Department of Revenue,
       M.S. Building, Bengaluru.
                                                    ... Respondents
(By Smt. Girija S.Hiremath, HCGP for R1 & R4;
 Respondent No.2 - served;
 Smt. Sunanda P.Patil, Advocate for R3A)
                                 :2:

      This writ petition is filed under Articles 226 & 227 of the
Constitution of India, praying to quash the impugned order vide
Annexure-N, dated 01.03.2007, passed by respondent No.1 as null and
void.

      This Writ Petition coming on for Final Hearing, this day, the
Court made the following:

                              ORDER

The petitioner has challenged the order dated 01.03.2007,

passed by respondent No.1 in case No.TNC/SR/7533, by which

Form No.7 filed by him in respect of the land bearing

Sy.No.455/15 measuring 8 acres 17 guntas and Sy.No.456/20

measuring 9 acre 17 guntas both situate at Kanagala Village,

Hukkeri Taluka, was rejected.

2. The writ petition discloses that a person named

Mallappa Kallappa Kalyani was a tenant of the land measuring 8

acres 17 guntas in Sy.No.455 and 9 acres 17 guntas in

Sy.No.456 of Kanagala Village, Hukkeri Taluka. The said

Mallappa Kallappa Kalyani had two sons and three daughters.

Both sons died issueless. The petitioner is the son of one

daughter, while respondent No.3 is the son of another daughter

of Mallappa Kallappa Kalyani. The petitioner claims that he was a

tenant along with Mallappa Kallappa Kalyani in respect of the

aforesaid lands and was independently tendering rent to the

owner of the lands and that his tenancy was also recognized by

the owner namely respondent No.2 herein.

3. The petitioner claims that during the life time of

Mallappa Kallappa Kalyani, he gave up 1/2 portion of the total

extent of land in favour of the petitioner i.e., 9 acres 2 guntas.

The petitioner claims that since the other tenants were in

possession of different portions of the property, the portion of

the property which was in his possession was renumbered as

Sy.Nos.455/15 and 456/20. The petitioner claims that the record

of rights of the land bearing Sy. Nos.455 and 456 for the years

1955-56 to 1973-74 indicated that the petitioner was a tenant.

He thus filed an application in Form No.7 seeking grant of

occupancy rights in respect of the aforesaid extent of land. The

petitioner alleged that he had obtained necessary permission

from the State Government to raise tobacco in the lands in

question.

4. When things stood thus, respondent No.3 claimed

that he was the adopted son of the original tenant Mallappa

Kallappa Kalyani and that he had inherited the entire lands which

were in possession of late Mallappa Kallappa Kalyani. Since, the

petitioner disputed right of respondent No.3, a suit in O.S.

No.174/1959 was filed by respondent No.3 for possession. The

said suit was decreed. The petitioner filed R.A. No.31/1961,

which was allowed. Respondent No.3 challenged the same in RSA

No.819/1963. This Court in terms of the judgment dated

11.07.1966, held that respondent No.3 was entitled for

possession of 1/3rd share in the suit lands. Later respondent No.3

filed E.P. No.28/1967 and recovered possession of a larger

extent of land than what constituted 1/3rd. In the meanwhile,

respondent No.3 purchased 10 acres 25 guntas of land in

Sy.Nos.455/15 (2.05 acres), 455/16 (2.31 acres), 456/20 (2.06

acres) and 456/21 (3.12 acres) from the original owner of the

aforesaid lands in terms of the sale deed dated 02.09.1968. The

petitioner who noticed that respondent No.3 had recovered

possession of a larger extent of land while executing the

judgment and decree in O.S. No.174/1959, filed Execution

Appeal No.472/1972, which was dismissed. The petitioner

thereafter filed Execution Second Appeal No.52/1974. This Court

in terms of the order dated 01.07.1975, allowed the Ex. Second

Appeal and set aside the orders passed by the Executing Court

as well as the Appellate Court and ordered restoration of the

portion of the properties to which respondent No.3 was entitled

to.

5. When things stood thus, the petitioner filed Form

No.7 claiming occupancy rights in respect of the land bearing

Sy.No.455/15 (8.17 acres) and 456/20 (9.17 acres). The

Tribunal considered the earlier proceedings between the

petitioner and respondent No.3 and rejected the application by

an order dated 30.11.1981. The petitioner challenged the order

before this Court in W.P. No.25348/1993, which was allowed in

terms of the order dated 29.05.2002 and the case was remitted

back to respondent No.1. The respondent No.1 again in terms of

the order dated 01.03.2007 rejected the application filed by the

petitioner. The petitioner claims that respondent No.1 had posted

the case on 01.06.2006, but no further date was given until the

order passed on 01.03.2007. The petitioner has therefore

challenged the order passed by the Tribunal in this writ petition.

6. Learned counsel for the petitioner submitted that the

Tribunal could not have banked upon the finding recorded in O.S.

No.174/1959 as well as the order passed in RSA No.819/1963

since there was a clear bar under Section 85 of the Bombay

Tenancy and Agricultural Lands Act, 1948 for the Civil Court to

consider the issues that were to be decided under the said Act of

1948. He contended that the evidence on record more

particularly the evidence of the Clerk, who was maintaining the

records on behalf of the land owner, indicated that the petitioner

was a tenant, paying yearly rent to the landlord and therefore,

the Tribunal ought to have considered these facts to

independently examine whether the petitioner was a tenant as

on the appointed date. He next contended that the name of the

petitioner was found in the revenue records relating to the lands

in question for the year 1955-56 till 1967-68 and therefore by

applying the theory of continuity, the petitioner was deemed to

be in cultivation of the land as there was no evidence to show

that he was dispossessed from the land in question. Therefore,

he claimed that the petitioner was a protected tenant and was

thus entitled to be registered as an occupant.

7. Respondent No.3 on the other hand contended that

the trial Court in O.S. No.174/1959 had categorically held that

respondent No.3 was the adopted son of Mallappa Kallappa

Kalyani. Insofar as issue Nos.2 and 4 in the said suit, the trial

Court held that the petitioner was in unlawful possession of the

suit property, he having dispossessed respondent No.3, three

years prior to filing of the suit. It also held that the petitioner

herein was not a co-tenant of the suit property along with

Mallappa Kallappa Kalyani. Though this judgment of the trial

Court was initially upset in R.A. No.31/1961, this Court

confirmed the said judgment and decree in O.S. No.81/1963 i.e.,

long prior to coming into force of Section 48-A of the Karnataka

Land Reforms Act, 1961. Learned counsel submitted that these

findings clearly bound the petitioner and therefore in the absence

of any material to establish that the petitioner was inducted as a

tenant in respect of the property by respondent No.3, the

petitioner could not claim to be a tenant as on the appointed

date i.e., 01.03.1974. The learned counsel invited the attention

of the Court to Form No.7 filed by the petitioner which indicated

that the petitioner had admitted that respondent No.3 was the

adopted son of the original tenant Mallappa Kallappa Kalyani.

She also invited the attention of the Court to the statement

made by the petitioner in Form No.7 which indicated that the

petitioner had handed over 1/3rd area of the land in favour of

respondent No.3, which meant that the petitioner had accepted

the decree in RSA No.819/1963. Learned counsel therefore

contended that Form No.7 was explicitly clear that the petitioner

was not a tenant as on the appointed date.

8. Learned counsel submitted that Section 85 of the

Bombay Tenancy and Agricultural Lands Act, 1948 did not bar

the filing of the suit between co-tenants and therefore the finding

recorded in O.S. No.174/1959 was valid and binding. She also

contended that the son of the petitioner had purchased two acres

of land from respondent No.3 for a sum of Rs.33,00,000/- and

that this proved beyond doubt that respondent No.3 validly

owned and possessed the land measuring 10 acres 25 guntas in

Sy.Nos.455/15, 455/16, 456/20 and 456/21 as referred to

above.

9. Learned counsel also invited the attention of the

Court to O.S. No.257/2020 filed by respondent No.3, wherein it

was specifically mentioned that the son of the petitioner had

purchased two acres of land.

10. During the pendency of this writ petition, respondent

No.3 died and on an application filed by a person claiming to be

the legal representative of respondent No.3, this Court passed an

order dated 08.06.2021, which is as follows:

"learned counsel for the petitioner submits that the proposed applicant is claiming to be an adopted son of the deceased is yet to prove his credentials. keeping the said issue open, I.A. Nos.1 to 3 of 2021 are considered. Being satisfied with the cause shown, delay in filing the application is condoned. Abatement is set aside. The legal representative of deceased respondent No.3 is permitted to be brought on record as respondent No.3(a)."

11. Learned counsel for the petitioner submitted that

respondent No.3(a) is yet to establish his relationship with the

deceased respondent No.3 and therefore, respondent No.3(a)

should be directed to establish the same before the competent

Court.

12. Learned counsel submitted that the larger question

whether the petitioner was a tenant as on 01.03.1974 was really

not considered by the Tribunal. He therefore prayed that the

impugned order passed by the Tribunal be set aside and the case

be remitted back to the Tribunal for reconsideration.

13. Learned counsel for the petitioner relied upon the

judgment in the case of Karibasappa Sivalingappa Nalawadada

(dead by L.R.) V. Tirukappa Nagappa Sortur reported in 1992(2)

KLJ 574. While the learned counsel for respondent No.3 relied

upon the judgments in the case of Ballesha Rama Khot and

others V. the Land Tribunal, Chikodi and others reported in AIR

1978 KAR 73 and in the case of Ramachandra Keshav Adke

(dead) by Lrs. V. Govind Joti Chavare and others reported in

AIR 1975 SC 915.

14. I have considered the aforesaid submissions made by

the learned counsel for the parties.

15. The fact that the petitioner and respondent No.3 are

the grand sons of late Mallappa Kallappa Kalyani is not much in

dispute. The fact that respondent No.3 was the adopted son of

Mallappa Kallappa Kalyani was proved before the Civil Court in

O.S.No.174/1959. The trial Court held that respondent No.3 was

the adopted son of Mallappa Kallappa Kalyani. The question

whether the petitioner herein was a tenant or a trespasser in

possession of the property possessed by respondent No.3 was

extensively considered by the trial Court in O.S. No.174/1959,

where it held as follows:

"question now is whether the defendant is trespasser as against the plaintiff. It is admitted on all hands, that Malla was the tenant of the two suit lands over several years proceeding the suit. It is claimed by the plaintiff that Malla was a permanent tenant of the two lands and that the family of Kalyanis held the land over several generations and that the original of their tenancy is lost the antiquity. In order to prove the permanancy of Malla's tenancy, reliance is placed by the plaintiff on several extracts of the village registers. Sy. Nos.455 and 456 of which the suit lands from part, formerly bore Sy. Nos.42 and 43 respectively as can be seen from Exhibit Nos.7 and 8 which are extracts of Pakka Book for the year 1881. Exhibit Nos.9 and 10 are also the extracts of Pakka

Book for main Sy. Nos.42 and 43 respectively for the year 1949. They mention the name of Appachi Bin Mariyappa Kalyani as the vahivatdar in personal cultivation. From this it is sought to be argued that this Appaji Bin Mariyappa Kalyani must be an ancestors of Malla Kalla Kalyani. There is no evidence, apart from the similarity of the surnames that the Appaji was an ancestor of Malla. It is seen also that in Exhibit Nos. 7 and 8 which are Pakka Books for the year 1881, the name of the persons doing vahivat is not mentioned at all in respect of both the lands though there is a separate column provided in the extract for noting the name of the person in actual cultivation of the lands in question. Reference is also made to the extracts of village From No.12."

15. The judgment of the trial Court in Original Suit

No.174/1959 was confirmed in R.S.A. No.819/1963. Though,

the right of the respondent No.3 was limited to 1/3rd of the

property owned by Mallappa Kallappa Kalyani. It is not in

dispute that respondent No.3 recovered possession of 1/3rd of

the portion of the land in the aforesaid survey number.

16. Long after, the petitioner filed Form No.7 in respect

of 8.17 acres in Sy. No.455/15 and 9.17 acres in Sy. No.456/20

as against respondent No.3 herein. Though the petitioner

described the events that transpired between him and

respondent No.3, he did not disclose as to when he became a

tenant under respondent No.3. On the contrary, the petitioner

relied upon the entries made in the revenue records to contend

that he became a tenant and the Tribunal ought to have decided

the question whether he was a tenant as on 01.03.1974 without

being influenced by findings recorded in O.S.No.174/1959. The

evidence recorded by the Tribunal did not indicate whether the

petitioner was a tenant as on 01.03.1974. The contention of the

learned counsel for the petitioner that the finding recorded in

O.S.No.174/1959 has to be ignored by the tribunal in view of

Section 85 of the Bombay Tenancy and Agricultural Lands Act,

1948 was also considered by the trial Court in Original Suit

No.174/1959, which held that the dispute essentially was

between co-tenant and not between a tenant and a landlord and

hence the bar under Section 85 was not attracted. As such, the

findings recorded in the Original Suit No.174/1959 cannot be

ignored by the tribunal. As is evident from the findings recorded

in Original Suit No.174/1959, the petitioner was a trespasser in

the property that was possessed by respondent No.3. Such

trespass was undone by recovering possession of the land prior

to 01.03.1974. Therefore, the petitioner cannot reassert that

notwithstanding the finding recorded by the Courts in

O.S.No.174/1959, he continued in possession of the property as

a tenant. The findings recorded by the Tribunal that the

petitioner was not a tenant as on the appointed date is

sufficiently fortified by the findings recorded in O.S.No.174/1959.

This Court does not find any exception to the findings recorded

by the trial Court. Therefore, the rejection of the application

filed by the petitioner in Form No.7 is thoroughly justified and

does not call for any interference.

17. Since the petitioner has disputed the parentage of

the respondent No.3(a) as well as his relationship with

respondent No.3, this Court noticed that a similar contention was

raised in Original Suit No.257/2020 and the trial Court while

considering an interim application held that the said question

deserves to be established in a full-fledged trial. In that view of

the matter, since Form No.7 filed by the petitioner is rejected by

the Tribunal, which is confirmed by this Court the issue whether

respondent No.3(a) is the adopted son of respondent No.3 is left

to be considered in the O.S.No.257/2020 pending trial before the

Principal Civil Judge and JMFC, Sankeshwar.

The writ petition is stands disposed off, subject to the

above observations.

Sd/-

JUDGE Vnp* & SMM