Sri Seetharama Bhat vs Smt Ramakka
2022 Latest Caselaw 7701 Kant

                            1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 30th DAY OF MAY, 2022

                        BEFORE

       THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA

     WRIT PETITION No.4930/2012 (LR - SEC 48A)

BETWEEN:

SRI. SEETHARAMA BHAT,
SON OF LATE SRI.KRISHNA BHAT,
AGED ABOUT 75 YEARS,
RESIDING AT ALAPE MATA,
ALAPE VILLAGE, ALAPE POST,
DAKSHINA KANNADA DISTRICT.
MANGALORE - 575 007.
SINCE DEAD BY HIS LEGAL REPRESENTATIVE:

SRI. SRIDHAR.A.
SON OF LATE SEETHARAMA BHAT,
AGED 47 YEARS,
RESIDING AT ALAPE MATA,
ALAPE POST, ALAPE VILLAGE,
MANGALORE - 575 007.                    ... PETITIONER

(BY SRI. S.N.PRASHANTH CHANDRA, ADV.)

AND:

1.     SMT. RAMAKKA,
       DAUGHTER OF LATE CHENNAMMA,
       RESIDING AT ALAPE VILLAGE,
       ALAPE POST,
       DAKSHINA KANNADA DISTRICT.
       MANGALORE - 575 007.

2.     THE LAND TRIBUNAL,
       MANGALORE,
                              2



     DAKSHINA KANNADA DISTRICT,
     BY ITS CHAIRMAN.                    ... RESPONDENTS

(BY SRI. M.VISHWAJITH RAI, ADV. FOR R-1;
    SRI. A.R.SRNIVAS, AGA FOR R-2)


    THIS PETITION IS FILED UNDER ARTICLES 226 AND
227 CONSTITUTION OF INDIA, PRAYING TO DIRECT OR
ORDER AND SET ASIDE ORDER DATED:07.10.2011 VIDE
ANNEXURE-H PASSED BY THE 2ND RESPONDENT, ETC.

     THIS PETITION COMING ON FOR FINAL HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:

                          ORDER

1. This is a petition filed by the land-lord challenging

the conferring of the occupancy rights in respect of the

land bearing Sy.No.4/4 measuring 0.30 cents.

2. Sri.S.N.Prashanth Chandra, learned counsel for the

petitioner, contended that the tenant Smt.Chennamma

had made an application seeking conferment of the

occupancy rights in respect of the land bearing

Sy.No.4/3 and yet the Land Tribunal had proceeded to

register her as an occupant in respect of Sy.No.4/4

contrary to her own claim and hence, the writ petition

deserves to be allowed.

3. Sri.M.Vishwajith Rai, learned counsel for

respondent No.1, on the other hand, contended that

mere wrong mentioning of survey number in Form No.7

would not be fatal to the case of the tenant. He

contended that the survey number had been correctly

mentioned as Sy.No.4 and there was only a mistake in

the mentioning of the sub number.

4. Prior to filing of Form No.7, the tenant had filed an

affidavit on 28.08.1976, which reads as under:

"I Smt.Chennamma wife of Degra Pujary aged about 55 years residing at Denja, Alape Village, Mangalore Taluk do take oath and state as follows:-

I am a Chalgeni tenant in respect of Survey number 4/3 of Alape village measuring about 0.25 cents of land.

I am an illiterate person and do not know the survey number of the plot.

Recently on enquiry I came to know the survey number and I am arranging to file my application in Form 7.

The delay is unavoidable and may be condoned.

All this is true.

Left hand thumb impression of Chennamma

Sworn and signed in my presence after the contents were read over and explained in Tulu a language known to the deponent and admitted by her to be correct.

Left hand thumb impression affixed in my presence.

Sd/- 28.8.76 D.Mohan Rao, Notary for South Kanara District Mangalore, 28.08.1976.

5. A reading of the said affidavit indicates that till

28.08.1976, the tenant was unaware of the survey

number and only thereafter, she became aware that she

was chalgeni tenant in respect of Sy.No.4/3. On the

very same day, a Form No.7 was filed claiming

Sy.No.4/3.

6. This indicates that the tenant was specifically

aware of the fact that she was a tenant in respect of

Sy.No.4/3. It cannot, therefore, be contended that the

entry of Sy.No.4/3 in Form No.7 was a mistake which

could be ignored and the Tribunal could nevertheless

ascertain as to what was the exact land the tenant was

in possession of.

7. It may be pertinent to state here that in the

original records, there is an endorsement that the sub

number 4 has been amended on 25.05.1989 as per the

order on 03.05.1989 passed on I.A. No.III.

8. The learned Additional Government Advocate as

well as the learned counsel for the tenant on verification

of the records admit that no such order was passed on

03.05.1989 and no application is also found in the

records indicating that an attempt was made to correct

the sub number as Sy.No.4/4. It is, therefore, clear that

the tenant all along claimed Sy.No.4/3 and an attempt to

claim Sy.No.4/4 is an afterthought.

9. Sri.M.Vishwajith Rai, learned counsel, sought to

place reliance on the judgment rendered by this Court in

the case of Y.S.RAMACHANDRA RAO vs. STATE OF

KARNATAKA AND OTHERS, reported in ILR 2005 Kar

2111.

10. No doubt, in that case, this Court has followed the

Division Bench ruling of this Court in which it is held that

the applicants being villagers could be ignorant and there

was every possibility that they may mention a wrong

survey number in their Form No.7 and in such cases, the

Tribunal after holding an inquiry could ascertain the

correct survey number and grant occupancy rights

accordingly.

11. However, in this case, it was the specific case of

the tenant that she was unaware of the exact survey

number and on coming to know the exact survey

number, she was making Form No.7. In the light of this

specific assertion made by the tenant way back in the

year 1976, it is impermissible for the tenant to thereafter

contend that the survey number in her Form No.7 was

incorrect and the Tribunal was required to conduct an

inquiry to ascertain the correct survey number. Since,

admittedly, Sy.No.4/4 was never claimed by the tenant,

the order of the Tribunal conferring occupancy rights in

respect of Sy.No.4/4 cannot be sustained and the same

is accordingly set aside.

12. The writ petition is accordingly allowed.

Sd/-

JUDGE

RK CT: SN