Karnataka High Court
Smt Thopamma vs The State Of Karnataka on 26 May, 2022
Bench: Alok Aradhe, J.M.Khazi
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF MAY 2022
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MS.JUSTICE J.M. KHAZI
W.A. NO.6356 OF 2017 (LR-SEC 48)
BETWEEN:
SMT. THOPAMMA
SINCE DECEASED BY LR'S.
1. SMT. CHIKKAMANI
W/O DODDAIAH
AGED ABOUT 70 YEARS
R/AT. T. GOLLAHALLI
BELLAVI HOBLI
TUMKUR TALUK-572107
TUMKUR DISTRICT.
2. SMT. MAHADEVAMMA
W/O CHIKKANARASIMHAIAH
AGED ABOUT 67 YEARS
R/AT. KATANAHALLI
NANDIHALLI POST
GUBBI TALUK, TUMKUR DISTRICT-572 125.
3. SMT. DODDAMANI
W/O LATE LAKKANNA
AGED ABOUT 65 YEARS
R/AT. KATANAHALLI
NANDIHALLI POST
GUBBI TALUK -572 125
TUMKUR DISTRICT.
2
4. SMT. THIMMAVVA
W/O KARININGAPPA
AGED ABOUT 63 YEARS
R/AT. KALLARDHGERE
KALLARDHGERE POST
GUBBI TALUK
TUMKUR DISTRICT-572223.
5. SMT. LAKSHMAMMA
W/O NARASIMHAIAH
AGED ABOUT 60 YEARS
R/AT. DODDERI, BELLAVI POST
TUMKUR TALUK
TUMKUR DISTRICT-572112.
6. SMT. KEMPAKKA
W/O CHIKKANNA
AGED ABOUT 57 YEARS
R/AT. KAGGERE
IRAKASANDRA POST
GUBBI TALUK
TUMKUR DISTRICT-572130.
... APPELLANTS
(BY MR. Y.R. SADASIVA REDDY, SR. COUNSEL FOR
MR. RAHUL S. REDDY, ADV.,)
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS SECRETARY
REVENUE DEPARTMENT
VIDHANA SOUDHA
BENGALURU -560 001.
2. THE LAND TRIBUNAL
GUBBI TALUK, GUBBI
TUMKUR DISTRICT-572216
BY ITS SECRETARY.
3
3. SRI. SHIVARAMAIAH
S/O MUDLAIAH
AGED ABOUT 64 YEARS
R/AT. P. GOLLAHALLI
SOREKUNTE POST
TUMKUR TALUK-572 128
TUMKUR DISTRICT.
... RESPONDENTS
(BY MR. UDAYA HOLLA, SR. COUNSEL FOR
MRS. MAYA HOLLA, ADV., FOR C/R3
MR. S. RAJASHEKAR, AGA FOR R1 & R2)
---
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT, PRAYING TO SET ASIDE THE ORDER DATED
05/09/2017 PASSED IN THE WRIT PETITION 20594/2012.
THIS W.A. COMING ON FOR FINAL HEARING, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:
JUDGMENT
In this intra court appeal, the appellant has assailed
the validity of the order dated 05.09.2017 passed by learned
Single Judge by which writ petition preferred by respondent
No.3 has been allowed and the order dated 23.05.2012
passed by the Land Tribunal, Gubbi Taluk by which the
occupancy rights which were conferred on the appellant in
respect of the land in question has been set aside.
2. Facts giving rise to filing of this appeal briefly
stated are that land bearing Sy.No.173 measuring 2 acres
and 19 guntas situate at MMA Kaval Vilalge, Gubbi Taluk,
Tumkur District was joint family property of one Sri.Mallaiah.
The father of the appellants on or about 26.12.1974 filed an
application in Form No.7 under the Karnataka Land Reforms
At, 1961 (hereinafter referred to as 'the Act' for short)
seeking grant of occupancy rights. The aforesaid application
was rejected by the land tribunal by an order dated
01.10.1981 and it was inter alia held that the owner of the
land was in possession of the lands in question.
3. After a period of 16 years from the date of
rejection of the claim of the father of the appellants, the
respondent No.3 purchased the schedule property from the
owner vide registered sale deed dated 29.07.1997. The order
passed by the land tribunal was assailed by Smt.Thopamma
viz., mother of the appellants in W.P.No.30759/1997. The
said writ petition was allowed by an order dated 16.09.1998
inter alia on the ground that the order passed by the land
tribunal is a non speaking order and the matter was remitted
to the land tribunal.
4. The land tribunal by an order dated 23.05.2012
conferred the occupancy rights in favour of the mother of the
appellants. The respondent No.3 thereupon filed a writ
petition against the aforesaid order. The learned Single Judge
by an order dated 05.09.2017 allowed the writ petition and
quashed the order passed by the land tribunal. It was inter
alia held that there is no documentary evidence on record to
show that the land in question at any point of time was in
cultivation of the tenants. It was further held that there was
no iota of evidence on record to show that the father of the
appellants was in cultivating possession of the land as on
01.03.1974. It was also held that there was no material on
record that father of the appellants had paid land revenue.
The learned Single Judge also took note of the fact that spot
inspection conducted by the land tribunal clearly states that
some of the persons present at the time of spot inspection
have supported the claim of the appellants, whereas, some of
them have supported the claim of the Respondent No.3.
Accordingly, the writ petition was allowed. In the aforesaid
factual background, this appeal has been filed.
5. Learned Senior counsel for the appellant
submitted that learned Single Judge ought to have
appreciated that from perusal of the sketch as well as spot
inspection report, it was evident that father of the appellants
was in occupation as tenant in respect of schedule property.
Therefore, the learned Single Judge erred in interfering with
the order passed by the land tribunal. On the other hand,
learned Senior counsel for respondent No.3 has invited the
attention of this court to the cross examination of the mother
of the appellants viz., Smt.Thopamma and has submitted
that she is unaware about the extent of the schedule land
and admitted that she has not paid any lease rent. It is
further submitted that the spot inspection report by itself, in
the absence of any documentary evidence does not lead to
an inference that the father of the appellants was in
possession of the land in question as on 01.03.1974 and
therefore, the land tribunal grossly erred in granting
occupancy rights in favour of the appellants and therefore,
the same has rightly been set aside by the learned Single
Judge. In support of aforesaid submissions, reliance has
been placed on 'S.MALLIKAJUNAPPA VS. THE STATE OF
KARNATAKA BY ITS SECRETARY, REVENUE
DEPARTMENT, BANGALORE AND OTHERS', ILR 2004
KAR 2119, 'PARAMESHWAR TIMMAYYA HEGDE AND
OTHERS VS. VENKATARAMAN MANJAPPA HEGDE
(DECEASED) BY LRS AND OTHERS', 2000(5) KLJ 456,
'SHIVARAMU VS. GANGAMMA AND OTHERS', 2003 (3)
KLJ 412, LAXMI SHEDTHI AND ANOTHER VS. UDIPI
TALUK LAND TRIBUNAL, UDIPI, SOUTH KANARA AND
OTHERS', ILR 1978 KAR 472 AND 'KRISHNA BHAT VS. I
LAND TRIBUNAL, BANTTWAL', ILR 1986 KAR 1575.
6. We have considered the submissions made on
both sides and have perused the record. Section 77-A of the
Act deals with grant of land in certain cases. The aforesaid
provision enables a person who was a lawful tenant, before
01.03.1974 to file an application to be registered as an
occupant of the land. An applicant to the grant of land as an
occupancy tenant is not only required to prove that he has
been cultivating the land in question before 01.03.1974 but
is in actual possession of the land in question as on the date
of submission of an application. Thus, a person is required to
produce documentary evidence to sustain his claim with
regard to occupancy rights by adducing documents such as a
lease deed or entries in the revenue records or by other
documents showing payment of lease rent.
7. In the instant case, the mother of the appellants in
her cross examination has admitted that she is unaware
about the extent of the tenancy land and has further
admitted that she was not paying any lease rent for the
tenancy land. The appellants have not adduced any
documentary evidence such as lease deed or entries in the
revenue records or by other documents showing payment of
lease rent in support of their claim that their father/mother
was in occupation of the land as an occupancy tenant. There
is no material on record to hold that the parents of the
appellants were in possession of the land in question as an
occupied tenent either before 01.03.1974 or on the date of
submission of an application for grant of occupancy rights.
8. It is relevant to note that a spot inspection can only
disclose the state of affairs as it exists on the date of the
inspection and cannot conclusively establish a person's
possession either before 01.03.1974 or on the date of
submission of an application for grant of occupancy rights. In
the instant case, spot inspection was carried out on
18.09.2001 and from the spot inspection report, it cannot be
inferred that the parents of the appellants were in possession
of the land in question either before 01.03.1974 or on the
date of submission of an application for grant of occupancy
rights. In the spot inspection report itself, it has been stated
that during the spot inspection some of the villagers
expressed an opinion in favor of the appellants whereas
some others expressed an opinion in favor of the respondent
No.3. In any case, no inference can be drawn from the spot
inspection report that the parents of the appellants were in
possession of the land in question either before 01.03.1974
or on the date of submission of an application for grant of
occupancy rights.
9. The learned Single Judge on the basis of meticulous
appreciation of the evidence on record has set aside the
order of the land tribunal. We do not find any ground to
interfere with the order passed by the learned Single Judge.
In the result, the appeal fails and is hereby dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
SS
