Karnataka High Court
Sri. Shivaprasad vs The State Of Karnataka on 15 June, 2022
Bench: Alok Aradhe, J.M.Khazi
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JUNE, 2022
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MS. JUSTICE J.M.KHAZI
W.A.NO.5450 OF 2017 (LR)
BETWEEN:
SRI. SHIVAPRASAD
S/O LATE PUTTANNA SHANBHOG
AGED ABOUT 32 YEARS,
RESIDENT OF TENKANIDIYOOR VILLAGE,
UDUPI TALUK AND DISTRICT
PIN - 576 101
... APPELLANT
(BY SRI. RAMA BHAT K, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF REVENUE
BY ITS SECRETARY
MULTISTORIED BUILDING
K. R. CIRCLE,
BENGALURU - 560 001.
2. THE LAND TRIBUNAL
BY ITS SECRETARY
UDUPI - 576 101.
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3. MAHALINGESHWARA TEMPLE,
REP. BY ITS ADHALITHADHIKARI /
THE CHIEF EXECUTIVE OFFICER
TENKANIDIYOOR VILLAGE
UDUPI TALUK AND DISTRICT - 576 101.
4. THE VILLAGE ACCOUNTANT
NO 64, KELARKALABETTU VILLAGE
NO 66, TENKANIDIYOOR
UDUPI TALUK AND DISTRICT - 576 101.
5. SMT. RATHNA SHETTY
AGED ABOUT 56 YEARS
D/O LATE CHALLA SHETTY
W/O GOPALA SHETTY
HAADIMANE, BELKALE
THENKANIDIYUR VILLAGE
POST-KHRODASHRAMA
UDUPI TALUK AND DISTRICT-576106
6. SRI. UDAYA SHETTY
AGED ABOUT 60 YEARS
S/O BHUJANGA SHETTY
ANUSHA NIVASA
NEAR ADISHAKTHI TEMPLE
MOODUSAGRI, DODDANAGUDDE
UDUPI TALUK AND DISTRICT - 576 101
...RESPONDENTS
(BY SRI S RAJASHEKAR, AGA FOR R1, R2 & R4;
SMT. NEERAJA KARANTH, ADVOCATE FOR
SRI. K.SHRIHARI, ADVOCATE FOR R5 & R6;
SRI. S.K.ACHARYA, ADVOCATE FOR R3)
THIS WA IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, 1961 PRAYING TO a)
ALLOW THE WRIT APPEAL AND THEREBY SET-ASIDE THE
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IMPUGNED ORDER DATED 28.03.2017 PASSED BY THE
HON'BLE SINGLE JUDGE IN W.P.NO.40739/2010 (LR-RES);
b) CONSEQUENTLY TO RECALL THE JUDGMENT DATED
06.06.2001 PASSED IN W.P.NO.39382/2000 AND THEREBY
DIRECT THE HEARING OF WRIT PETITION NO.39382/2000
ON MERITS WITH AN OPPORTUNITY TO THE APPELLANT TO
HAVE HIS SAY; AND c) GRANT SUCH OTHER AND FURTHER
RELIEF SO AS TO COST OF THE PROCEEDINGS AS THIS
HON'BLE COURT DEEMS FIT IN THE CIRCUMSTANCES OF
THE CASE IN THE INTEREST OF JUSTICE AND EQUITY.
THIS WA COMING ON FOR FINAL HEARING THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:
JUDGMENT
This intra Court appeal has been filed against a
common order dated 28.03.2017 passed by the learned
Single Judge, by which W.P.No.40739/2010 (LR-RES)
preferred by the appellant has been dismissed.
2. Facts giving rise to the filing of this appeal
briefly stated are that grand father of appellant i.e., Late
Subbannayya claimed to be a tenant in respect of the
land held by Mahalingeshwara temple viz., respondent
No.3.
3. After enforcement of amendment to Karnataka
Land Reforms Act, 1961, the aforesaid Late Subbannayya
filed an application in Form No.7 for grant of occupancy
rights. The Land Tribunal by an order dated 12.01.1981
granted the occupancy rights in favour of Late
Subbannayya viz., grand father of the appellant in 1981.
Thereafter, the property devolved to Late Sathyabhama,
who was the grand mother of the appellant.
4. The order passed by the Land Tribunal was
challenged by the temple viz., respondent No.3 in
W.P.No.39382/2000. In the aforesaid writ petition, the
grand mother of the appellant filed an affidavit stating
that there was no relationship of landlord and tenant
between Late Subbannayya and the temple and that her
husband Late Subbannayya had inadvertently filed
application in Form No.7 for grant of occupancy rights. It
was further stated in the affidavit that the grand mother
of the appellant has no objections for quashing of the
order passed by the Land Tribunal dated 12.01.1981.
Thereupon, the learned Single Judge by an order dated
06.06.2001 quashed the order passed by the Land
Tribunal and allowed the writ petition.
5. After a period of nine years, the appellant who
claims occupancy rights through his grant father and
grant mother has filed the writ petition seeking to recall
the order dated 06.06.2021 passed in
W.P.No.39382/2000 and to afford an opportunity of
hearing to the appellant. The aforesaid claim was made
on the basis of an unregistered Will said to have been
executed in favour of the appellant on 18.12.1988. The
writ petition preferred by the appellant was dismissed by
the learned Single Judge. In the aforesaid factual
background this appeal has been filed.
6. The learned counsel for appellant submitted
that the land in question is comprised of three different
survey numbers and there are three owners of land, out
of which two owners of the land were not impleaded in
the writ petition. It is further submitted that the order
dated 06.06.2001 passed in W.P.No.39382/2000 results
in injustice to the appellant and therefore, the aforesaid
order deserves to be recalled. It is also urged that the
aforesaid matter has not been appreciated by the learned
Single Judge. In view of the submissions made above,
reliance has been placed on the following decisions of
Hon'ble Supreme Court:
(1) AIR 1963 SC 1909
Shivdeo Singh and others Vs. State of Punjab
and others
(2) (2000) 1 SCC 666
M.M.Thomas Vs. State of Kerala and Another
(3) (2019) 3 SCC 203
Municipal Corporation of Greater Mumbai
and Another Vs. Pratibha Industries Ltd.
and others
7. On the other hand learned counsel for
respondent No.3 submitted that prior to the filing of
affidavit in the Court, a letter was written by grand
mother of the appellant to the temple in which it was
admitted that there was no relationship of landlord and
tenant between Late Subbannayya viz., the grand father
of the appellant and the temple. It is further submitted
that the respondent No.3 is bound by the orders passed
by the learned Single Judge. It is also submitted that
claim of the appellant cannot be adjudicated in this
proceedings as the same is against an unregistered Will,
validity of which cannot be examined in the proceedings
under Article 226 of the Constitution of India. It is also
urged that the Will was brought to the light after an
inordinate delay of 17 years in a proceeding seeking to
enter the name of the appellant in revenue records. It is
therefore argued that the order passed by the learned
Single Judge does not call for any interference.
has fairly submitted that the aforesaid respondents have
not challenged the order dated 06.06.2001 passed in
W.P.No.39382/2000. It is further submitted that they
have no grievance in case occupancy rights in respect of
land in question is granted in appeal.
9. We have considered the submissions made on
both the sides and have perused the record.
10. Admittedly, the appellant claims occupancy
rights in the land in question through his grand mother
who has relinquished rights in favour of the appellant in
view of the affidavit filed in W.P.No.39382/2000. In order
to get over the affidavit, the appellant had taken a
contention before the learned Single Judge that his grand
mother was not mentally sound. The aforesaid contention
has not been accepted by the learned Single Judge.
11. It is pertinent to note that the claim of the
appellant is based on an unregistered Will, the validity of
which cannot be adjudicated in this proceeding which are
summary in nature. The contention that the other two
tenants viz., respondent Nos.5 and 6 were not impleaded
in W.P.No.39382/2000 and in their absence, the order
passed by the Land Tribunal was set aside in its entirety
is concerned, it is suffice to say that respondent Nos.5
and 6 have not assigned the validity of the order dated
06.06.2001 passed in W.P.No.39382/2000 by the learned
Single Judge. It is not open for the appellant to take a
contention on behalf of respondent Nos.5 and 6 in this
proceedings, who have accepted the order dated
06.06.2001 passed in W.P.No.39382/2000. In any case,
the appellant has failed to establish the aforesaid
contention before the learned Single Judge, which is
evident from para-5 of the impugned order.
12. For the aforementioned reasons, we do not find
any merit in this appeal. In the result, the appeal fails
and is hereby dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
RR
