Karnataka High Court
Padmanahbhaiah vs Ramayya Aithala Since Dead By Lrs on 4 November, 2022
Bench: Alok Aradhe, S Vishwajith Shetty
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF NOVEMBER, 2022
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
W.A.NO.4897/2011(KLRA)
C/W
W.A.NO.5201/2011 (KLRA)
IN W.A. NO.4897/2011:
BETWEEN:
PADMANAHBHAIAH
SINCE DEAD BY LR'S
1. SMT. LAKSHMI
W/O LATE PADMANABHAIAH
AGED ABOUT 67 YEARS.
2. JAYAPRAKASH N
S/O LATE PADMANABHAIAH N
AGED ABOUT 50 YEARS
1 AND 2 ARE R/O PANCHAKSHARI
PERLAPU (P), KADESHIVALAYA
BANTWAL TALUK, DAKSHINA
KANNADA DISTRICT.
3. SHAILASHRI MOHAN
W/O MOHAN
D/O LATE PADMANABHAIAH N
AGED ABOUT 36 YEARS
R/O B/6, "ADVAITHA", 2ND A MAIN
11TH BLOCK, NAGARABHAVI 2ND
STAGE, BENGALURU - 560 072. ...APPELLANTS
(BY SRI S.P. SHANKAR, SR. COUNSEL FOR
SRI S.S. PARIKSHIT, ADV.)
2
AND:
RAMAYYA AITHALA
SINCE DEAD BY LRS
1. VENKATARAMANA AITHALA @
VENKATAKRISHNA AITHALA
AGED ABOUT 55 YEARS
WORKING AS COOK IN
SRI KOLLUR MUKAMBIKA TEMPLE
KOLLUR, KUNDAPUR TALUK.
2. VISHVESHVARAYYA
S/O SADASHIVAYYA
AGED ABOUT 83 YEARS
R/AT HALASANAU, HAKLADY
VILLAGE, KUNDAPUR TALUK.
3. LAND REFORMS APPELLATE
KUNDAPURA TALUK
KUNDAPURA, D.K.
4. CHANDRASHEKARA SHETTY
SINCE DEAD BY LR'S
4a. SMT. SUSHELLA C. SHETTY
AGED ABOUT 65 YEARS
W/O LATE U. CHANDRASHEKHAR SHETTY.
4b. DR. RAJESH KUMAR A
AGED ABOUT 45 YEARS
S/O LATE U. CHANDRASHEKHAR SHETTY.
4c. SRI ROOPESH KUMAR A
AGED ABOUT 40 YEARS
S/O LATE U. CHANDRASHEKHAR SHETTY.
4d. MISS RASHMI KUMARI
AGED ABOUT 30 YEARS
D/O LATE U. CHANDRASHEKHAR SHETTY
ALL ARE R/O "NAGALAKSHMI"
KALLATGTE, HALADY POST
KUNDAPURA TALUK
UDUPI DISTRICT - 576 222. ...RESPONDENTS
(BY SRI K. SUMAN, SR. COUNSEL FOR
SRI SIDDARTH SUMAR, ADV., FOR R-1;
3
V/O DATED 21.09.2012 APPEAL AGAINST R-2 IS
DISMIEES AS ABATED; R-3 IS SERVED;
R-4(a), (b) AND 4(d) ARE SERVED;
SRI AJITH SHETTY, ADV., FOR R-4(c);
SRI B. RAJENDRA PRASAD, HCGP FOR R-5)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE ORDER
PASSED BY THE LEARNED SINGLE JUDGE IN W.P.NO.25075/1994
DATED 22.02.2011 AND ALLOW THIS APPEAL.
IN W.A. NO.5201/2011:
BETWEEN:
LATE CHANDRASHEKAR SHETTY
SINCE DECEASED BY HIS LEGAL HEIRS
1a. SMT. SUSHEELA C SHETTY
W/O LATE CHANDRASHEKAR SHETTY
AGED ABOUT 68 YEARS.
1b. DR. RAJESH KUMAR A
S/O LATE CHANDRASHEKAR SHETTY
AGED ABOUT 48 YEARS.
1c. SRI ROOPESH KUMAR A
S/O LATE CHANDRASHEKAR SHETTY
AGED ABOUT 43 YEARS.
1d. MISS RASHMI KUMARI
S/O LATE CHANDRASHEKAR SHETTY
AGED ABOUT 33 YEARS.
ALL ARE RESIDING AT 'NAGALAKSHMI'
KALLATGE, P.O. HALADY
KUNDAPUR TALUK
UDUPI - 576 222. ...APPELLANTS
(BY SRI S.P. SHANKAR, SR. COUNSEL FOR
SRI AJITH SHETTY, ADV.)
AND:
1. SRI VENKATARAMANA AITHAL
@ VENKATAKRISHNA AITHAL
S/O RAMAYYA AITHAL
4
AGED ABOUT 76 YEARS
C/O SHREE MOOKAMBIKA TEMPLE
KOLLUR KUNDAPURA TALUK
UDUPI DISTRICT.
2. VISHWESHWARAYYA
S/O SADASHIVAYYA
AGED ABOUT 78 YEARS
RESIDING AT BALASANADU
HAKLADY VILLAGE & POST
KUNDAPURA, UDUPI.
3. LATE PADMANABHAYYA
SINCE DECEASED BY HIS LEGAL HEIRS
3(a) SMT. LAKSHMI
W/O LATE PADMANABHAIAH
AGED ABOUT 68 YEARS.
3(b) SRI JAYAPRAKASH N
S/O LATE PADMANABHAIAH
AGED ABOUT 39 YEARS
BOTH ARE RESIDING AT PANCHAKSHARI
PARALAPU POST, KADESHIVALAYA
BANTWALA TALUK, MANGALORE.
3(c) SMT. SHAILASHRI MOHAN
D/O LATE PADMANABHAIAH
AGED ABOUT 37 YEARS
RESIDING AT NO.6.6, ADVAITH
2ND 'A' MAIN, 11TH BLOCK
NAGARBHAVI, 2ND STAGE
BANGALORE - 560 072.
4. LAND REFORMS APPELLATE AUTHORITY
KUNDAPURA
BY ITS SECRETARY. ...RESPONDENTS
(BY SRI K. SUMAN, SR. COUNSEL FOR
SRI SIDDARTH SUMAR, ADV., FOR R-1;
V/O DATED 21.09.2012 APPEAL AGAINST
R-2 IS DISMISSED AS ABATED;
SRI S.N. BHAT, ADV., FOR R-3;
SRI B. RAJENDRA PRASAD, HCGP FOR R-4)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
5
ORDER PASSED IN THE WRIT PETITION NO.25075/1994
DATED 22.02.2011.
THESE APPEALS HAVING BEEN HEARD AND RESEVED,
COMING ON FOR PRONOUNCEMENT, THIS DAY,
VISHWAJITH SHETTY J., DELIVERED THE FOLLOWING:
JUDGMENT
These two intra court appeals have been filed
assailing the order dated 22.02.2011 passed by the
learned Single Judge of this Court in
W.P.No.25075/1994, and therefore, they are heard
together and disposed of by this common judgment.
2. Heard the learned Counsel appearing for the
parties and also perused the material available on record.
3. Brief facts of the case as revealed from the
records for the purpose of disposal of these two appeals
are, respondent no.2 herein is the owner of lands bearing
Sy. No.45/2 measuring 19 cents and Sy. No.45/3
measuring 20.5 cents situated at Kollur village in Udupi
District. Respondent no.1 herein who allegedly was a
tenant in the building situated in a portion of the
aforesaid lands and who was serving as a priest in a local
temple of Lord Ganapathi had filed Form No.7 under the
Karnataka Land Reforms Act, 1961 (for short, 'Act of
1961') claiming occupancy rights of the aforesaid lands.
4. The Land Tribunal, initially, rejected the said
claim vide its order dated 21.10.1975 holding that the
lands which were the subject matter of Form No.7 were
not agricultural lands and there was no agrarian
relationship between the applicant and the owner of the
lands. This order was questioned by respondent no.1
before this Court in W.P.No.5691/1982 which was
allowed and remanded by order dated 17.12.1982 on the
ground that the order of the Land Tribunal was not
signed by all its members.
5. In the meanwhile, the appellant in
W.A.No.4897/2011 Sri Padmanabhaiah had purchased
⅔rd portion of the land in question and the appellant in
W.A.No.5201/2011 Sri Chandrashekhar Shetty had
purchased ⅓rd portion of the land in question along with
the building existing in the said lands under two separate
registered sale deeds.
6. The appellant in W.A.No.4897/2011 viz.,
Padmanabhaiah had got himself impleaded before the
Land Tribunal after the matter was remanded by this
Court in W.P.No.5691/1982. The Land Tribunal vide its
order dated 30.04.1987 granted occupancy rights of the
lands in question in favour of respondent no.1 herein.
This order was questioned before the Land Reforms
Appellate Aurthority by Padmanabhaiah in LRA
No.1381/1988 and consequent to the abolition of the
Land Reforms Appellate Authority, Padmanabhaiah had
filed a civil petition before this Court under Section 17 of
the Karnataka Land Reforms (Amendment) Act No.18 of
1990, with a prayer to transfer the appeal that was
pending before the Land Reforms Appellate Authority and
register the same as writ petition before this Court. The
said civil petition was allowed and the appeal in LRA
No.1381/1988 was transferred to this Court and
numbered as W.P.No.25075/1994. In the said writ
petition, the appellant in W.A.No.5201/2011 viz.,
Chandrashekhar Shetty had got himself impleaded as
respondent no.4.
7. The learned Single Judge of this Court vide order
dated 26.02.2008 had allowed the writ petition and
remanded the matter to the Land Tribunal for disposal in
accordance with law, and being aggrieved by the same,
respondent no.1 herein had filed W.A.Nos.296/2009 &
716/2009 which were allowed by the Division Bench of
this Court and the matter was remanded to the learned
Single Judge for fresh consideration on the ground that
the writ petition was disposed of without giving an
opportunity to the legal representatives of deceased
respondent no.1 to contest the writ petition. Thereafter,
the learned Single Judge of this Court vide the order
impugned has dismissed the writ petition. Being
aggrieved by the same, the petitioner and respondent
no.4 in W.P.No.25075/1994 have filed these two intra
court appeals.
8. Learned Senior Counsel appearing for the
appellants submits that the land in question is a urban
land and not a land within the meaning of Section
2(A)(18) of the Act of 1961. He submits that the
appellants as well as respondent no.1 herein were
tenants of the building existing in the aforesaid land
which belonged to respondent no.2 and appreciating the
same, the Land Tribunal initially vide its order passed on
21.10.1975 had dismissed the claim of respondent no.1
holding that the lands in question is not an agricultural
land and there was no agrarian relationship between the
parties. He submits that the revenue records would go to
show that the lands in question were punja and dry land,
respectively, and there is absolutely no material on
record to show that these lands were brought under
cultivation at any point of time by respondent no.1, who
admittedly is a priest by profession. In support of his
arguments, he has placed reliance on the following
judgments:
i) VANAJAKSHI VS LAND TRIBUNAL, UDUPI & ANR.
- ILR 1979 KAR 480.
ii) SUBHAKAR & ORS. VS HARIDEESH KUMAR &
OTHERS - (2007) 9 SCC 561.
iii) VENKATESH SHET VS NARAYANA ACHARI -
1979 SCC KAR 60.
iv) K.KUNHAMBU VS CHANDRAMMA & ORS. -
(2004) 9 SCC 174.
9. Per contra, learned Senior Counsel appearing for
respondent no.1 submits that the appellants have no
locus standi either to maintain the writ petition or the
writ appeal since they were not the owners of the lands
in question as on 01.03.1974, more so when respondent
no.2 who is the original landlord has not chosen to
challenge the order passed by the Land Tribunal granting
occupancy rights to respondent no.1. He also refers to
the Memorandum of Civil Petition and submits that the
grounds which are urged before the Court are not at all
pleaded, and therefore, it is not open to the appellants to
raise a new plea before this Court, and accordingly, prays
to dismiss the writ appeals.
10. The undisputed facts of the case are,
respondent no.2 is the original owner of the lands in
question and respondent no.1 had filed Form No.7
claiming occupancy rights of the lands in question. After
the dismissal of his claim petition initially in the year
1975, the appellants herein had purchased ⅔rd and ⅓rd
portion of the lands in question, respectively, from
respondent no.2 under separate registered sale deeds,
and thereafter, when the matter was remanded to the
Land Tribunal by this Court in W.P.No.5691/1982, the
appellant in W.A.No.4897/2011 viz., Padmanabhaiah had
got himself impleaded as a party respondent before the
Land Tribunal and had contested the claim of respondent
no.1 for grant of occupancy rights of the lands in
question in his favour. It is also not in dispute that the
appellant in W.A.No.5201/2011 viz., Chandrashekhar
Shetty was impleaded as party respondent no.4 in
W.P.No.25075/1994 before this Court. Under the
circumstances, we do not find any merit in the contention
of the learned Counsel for respondent no.1 that the
appellants herein have no locus standi to challenge the
order passed by the Land Tribunal granting occupancy
rights in his favour when respondent no.2 who is the
original landlord had not questioned the same.
Respondent no.2, undisputedly, has sold the lands in
favour of the appellants herein under two separate
registered sale deeds and since the appellants have
stepped into the shoes of respondent no.2-landlord, we
are of the considered view that the writ petition as well
as the writ appeal filed by them are maintainable.
11. In so far as the contention of respondent no.1
that there is no pleadings in the civil petition in respect of
the arguments now advanced on behalf of the appellant
is concerned, the civil petition is filed under Section 17 of
the Karnataka Land Reforms (Amendment) Act No.18 of
1990, only with a prayer to transfer the appeal pending
before the Land Reforms Appellate Authority consequent
to the abolition of the said authority, and therefore, the
pleading in the appeal memorandum of the appeal that
was pending before the Land Reforms Appellate Authority
is required to be considered and a perusal of the same
would clearly go to show that the relevant grounds have
been urged in the same, and therefore, there is no merit
in the contention urged on behalf of respondent no.1 that
no sufficient pleading in the civil petition.
12. The revenue records of the lands in question
would go to show that the said lands are punja and dry
lands, respectively. There is absolutely no material on
record to show that these lands were brought under
cultivation by respondent no.1 at any point of time and
these lands were leased to him by respondent no.2 for
agricultural purpose at any point of time. The Land
Tribunal initially by its order dated 21.10.1975 had
dismissed the claim of respondent no.1 on the ground
that the lands in question were not agricultural lands and
there was no agrarian relationship between the parties.
The said order was set aside by this Court on the
technical ground that all the members of the Land
Tribunal had not signed the order. Thereafter, in the
second round, the Land Tribunal has granted occupancy
rights of the lands in question in favour of respondent
no.1 herein on the ground that there were few coconut
trees, arecanut trees and fruit bearing trees existing in
the lands in question. The material on record would also
go to show that initially after dismissal of Form No.7 filed
by respondent no.1, he had filed Form No.2-A under
Section 38-A of the Act of 1961 claiming that he was in
occupation of the dwelling house situated in the lands in
question. The said application was allegedly rejected by
the Land Tribunal.
13. The material on record would also go to show
that respondent no.1 had admitted in his statement
dated 21.08.1975 recorded before the Land Tribunal that
the lands in question are not agricultural lands. However,
the learned Single Judge has refused to place reliance on
the said statement since the same does not bear the
signature of the Chairman or any other member. The
statement recorded before the Land Tribunal is only
required to be signed by the Deponent and it is not
required to be signed either by the Chairman or the
Members of the Land Tribunal, and therefore, the learned
Single Judge was not justified in refusing to consider the
statement dated 21.08.1975 made by respondent no.1
before the Land Tribunal, wherein he has clearly admitted
that the lands in question are not agricultural lands. It
appears that based on such statement, the Land Tribunal
had initially rejected the claim of respondent no.1 for
grant of occupancy rights.
14. The spot inspection report which is available on
record is dated 26.03.1987. The material on record would
go to show that as early as on 21.08.1975 itself,
respondent no.1 had admitted before the Land Tribunal
that the lands in question are not agricultural lands. The
relevant date for considering the claim in Form No.7
being 01.03.1974, the tenant who claims occupancy
rights of the lands in question is required to prove that as
on 01.03.1974, the lands in question were agricultural
lands. Further, merely for the reason that in the spot
inspection report dated 26.03.1987 it is stated that there
were few coconut trees, arecanut trees and fruit bearing
trees existing in the lands in question, the Land Tribunal
was not justified in granting occupancy rights of the lands
in question in favour of respondent no.1. Section
2(A)(18) of the Act of 1961, defines 'Land', which reads
as under:
2(A)(18 - "Land" means agricultural land,
that is to say, land which is used or capable of
being used for agricultural purposes or
purposes subservient thereto and includes
horticultural land, forest land, garden land,
pasture land, plantation and tope but does not
include house-site or land used exclusively for
non-agricultural purposes.
15. Respondent no.1 is required to prove before
the Land Tribunal that the land of which occupancy rights
have been claimed by him, is a 'Land' within the meaning
of Section 2(A)(18) of the Act of 1961. The material on
record would go to show that he has failed to prove the
same.
16. The Division Bench of this Court in Vanajakshi's
case supra has held that mere fact that there are some
plants and trees in the compound of a house will not
render the premises as an agricultural land and for the
purpose of determining whether the premises should be
regarded as an agricultural or non-agricultural land, one
must look to the dominant characteristics of such
premises.
17. In Subhakar's case, the Division Bench of this
Court has held that punja lands in Dakshina Kannada is
not an agricultural land and if only punja land is brought
under cultivation for agricultural purpose, such land can
be considered as an agricultural land, and this judgment
has been affirmed by the Hon'ble Supreme Court in the
judgment reported in (2007)9 SCC 561.
18. In Venkatesh Shet's case supra, this Court has
held as under:
"6. .....In the Dist. of S. Kanara and
also in the former State of Coorg, there was no
such classification of lands as agricultural and
non-agricultural. It is common knowledge that
throughout the West-Coast, when a house is
let there will be some land which forms a
compound for the house and within such a
compound a few coconut trees or mango trees
or such other fruit, trees are grown. Within
the area of Mangalore Municipality, it is very
rare to find a house with a compound where
there is no coconut or mango trees. Similar is
the case in other towns in the Dist. In the
instant case, there is no dispute about the
extent of the land on which there is a tiled
house. The total extent of the land with the
house is 27 cents, which is approximately one-
fourth of an acre. The defendant contends that
there are a few coconut and other fruit trees.
In such a case, there is no presumption that
the lease is for agricultural purposes......"
19. In K.Kunhambu's case supra, the Hon'ble
Supreme Court has held that the land which was leased
out for industrial purpose in which few coconut and other
trees had been found, cannot be considered as an
agricultural land within the meaning of Section 2(A)(18)
of the Act of 1961.
20. In the case on hand, undisputedly, the lands in
question are referred to as punja land and dry land in the
revenue records and there is absolutely no material on
record to show that these lands were leased to
respondent no.1 for agricultural purposes by respondent
no.2 and that respondent no.1 has cultivated or carried
on any agricultural activities in the said land as on
01.03.1974.
21. From the judgments which are referred to
herein above, it is very clear that in Dakshina Kannada
District, of which Udupi was also a part, punja lands are
not considered as agricultural lands unless there is
material to show that the said lands were brought under
cultivation and on the basis of mere existence of few
coconut and other fruit bearing trees, no presumption
can be drawn that the said lands are agricultural lands.
In addition to the same, at the earliest point of time,
when the statement of respondent no.1 was recorded
before the Land Tribunal, he had admitted that the lands
which were the subject matter of Form No.7 were not
agricultural lands. Under the circumstances, on the basis
of a spot inspection report of the year 1987 wherein it is
stated that there existed a few coconut and other fruit
bearing trees, the Land Tribunal was not justified in
granting occupancy rights of the lands in question in
favour of respondent no.1. The learned Single Judge has
failed to appreciate this aspect of the matter and has
erred in dismissing the writ petition. Accordingly, the
following order:
22. The writ appeals are allowed. The order dated
22.02.2011 passed by the learned Single Judge in
W.P.No.25075/1994 is set aside, and consequently, the
order dated 30.04.1987 passed by the Land Tribunal
granting occupancy rights in respect of land bearing Sy.
Nos.45/2 & 45/3 situated at Kollur village in Udupi
District, in favour of respondent no.1, is also set aside.
SD/-
JUDGE
SD/-
JUDGE
KK
