Karnataka High Court
Miss Chandra R vs The State Of Karnataka on 17 November, 2022
Bench: Alok Aradhe, S Vishwajith Shetty
1 R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF NOVEMBER, 2022
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
W.A.No.3065/2013 (LR-SEC 48-A)
BETWEEN:
1. MISS CHANDRA R
D/O LATE DR. RAJARATHNAM
AGED ABOUT 75 YEARS
RESIDING AT B-3, KEB LAYOUT
BANNERGHATTA ROAD
BANGALORE - 560 076.
2. MRS AMBUJAM SIMON
D/O LATE DR. RAJARATHNAM
AGED ABOUT 74 YEARS
RESIDING AT NO.1284, 3RD STREET
GOLDEN COLONY, MOGAPPAIR
CHENNAI - 600 050.
3. MRS. JEEVANATHI DEVASHAYAM
W/O LATE ALEXANDER DEVASAHAYAM
AGED ABOUT 68 YEARS
RESIDING AT A-1, EWST WING
GRACE GARDEN APARTMENTS
HENNUR MAIN ROAD
BANGALORE - 560 043.
4. SRI DAVID R DEVASHAYAM
S/O LATE ALEXANDER DEVASAHAYAM
AGED ABOUT 50 YEARS
R/AT NO.H-131, D.D.A FLATS
ASHOK VIHAR PHASE - 1
NEW DELHI - 110 052.
2
5. DR. MERCY DEVASHAYAM
D/O LATE ALEXANDER DEVASAHAYAM
AGED ABOUT 48 YEARS
R/AT NO.H-131, D.D.A FLATS
ASHOK VIHAR PHASE - 1
NEW DELHI - 110 052.
6. SMT HEPSIBA LAL
S/O LATE ALEXANDER DEVASAHYAM
AGED ABOUT 46 YEARS
R/AT NO.H-131, D.D.A FLATS
ASHOK VIHAR PHASE - 1
NEW DELHI - 110 052.
7. SRI NITYANADAM
S/O LATE D. RAJARATHNAM
AGED ABOUT 70 YEARS
R/AT B-3, KEB LAYOUT
BANNERGHATTA ROAD
BANGALORE - 560 076.
8. SRI VICTOR THYAGARAJ J
D/O LATE DR.RAJARATHNAM
AGED ABOUT 66 YEARS
RESIDING AT FLAT A, "D" BLOCK
PADIKUPPAM ROAD, SRI BALAJI NAGAR
ANNA NAGAR WEST, CHENNAI - 600 040.
9. DR. R. EARNEST DHANRAJ
S/O LATE D. RAJARATHNAM
AGED ABOUT 64 YEARS
R/AT NO.177, RAJRATHNAM STREET
CARMEL, DAISY NAGAR, KALPUDUR
KATAPADI, VELLORE DISTRICT
TAMILNADU - 632 059.
APPELLANTS NO.1 TO 9 ARE
REPRESENTED BY THEIR
GENERAL POWER OF ATTORNEY HOLDER
SRI R. ALBERT SELVARAJ
S/O LATE DR. RAJARATHNAM
AGED ABOUT 67 YEARS
R/AT A-1, WEST WING
GRACE GARDEN APARTMENTS
HENNUR MAIN ROAD
BANGALORE - 560 043.
3
10. SRI R. ALBERT SELVARAJ
S/O LATE DR. RAJARATHNAM
AGED ABOUT 67 YEARS
R/AT A-1, WEST WING
GRACE GARDEN APARTMENTS
HENNUR MAIN ROAD
BANGALORE - 560 043. ...APPELLANTS
(BY SMT. NALINI CHIDAMBARAM, SR. COUNSEL FOR
SRI D. ASWATHAPPA, ADV.)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS PRINCIPAL
SECRETARY, DEPARTMENT OF REVENUE
M.S. BUILDING, BANGALORE - 560 001.
2. SRI SIDDARANGASWAMY
SINCE DECEASED BY HIS LRS.
2A) SMT. ANJINAMMA
W/O LATE SIDDARANGASWAMY
AGED ABOUT 66 YEARS.
2B) SMT. LAKSHMI DEVI
D/O LATE SIDDARANGASWAMY
AGED ABOUT 45 YEARS.
2C) SMT. RUPA
D/O LATE SIDDARANGASWAMY
AGED ABOUT 43 YEARS.
2D) SRI PRAVIN KUMAR
S/O LATE SIDDARANGASWAMY
AGED ABOUT 41 YEARS.
2E) SRI NAVEEN KUMAR
S/O LATE SIDDARANGASWAMY
AGED ABOUT 38 YEARS.
ALL ARE RESIDING AT NEAR BHARAT GAS
KAKOLU ROAD, RAJANUKUNTE VILLAGE
HESARGAHATTA HOBLI
BANGALORE NORTH TALUK
BANGALORE - 560 064.
4
3. SRI KRISHNAPPA
S/O LATE CHANDRAPPA
AGED ABOUT 61 YEARS
R/AT RAJANKUNTE VILLAGE
HESARGHATTA HOBLI
BANGALORE NORTH TALUK
BANGALORE - 560 064.
4. SRI RAJANNA
S/O LATE CHANDRAPPA
AGED ABOUT 59 YEARS
R/AT RAJANKUNTE VILLAGE
HESARGHATTA HOBLI
BANGALORE NORTH TALUK
BANGALORE - 560 064.
5. SRI JAYANNA
S/O LATE CHANDRAPPA
AGED ABOUT 55 YEARS
R/AT RAJANKUNTE VILLAGE
HESARGHATTA HOBLI
BANGALORE NORTH TALUK
BANGALORE - 560 064.
6. SMT. RANGAMMA
D/O LATE CHANDRAPPA
AGED ABOUT 73 YEARS
R/AT NO.80/75, 8TH CROSS
17TH MAIN ROAD, J.C.NAGAR
BANGALORE - 560 086.
7. SMT. GOWRAMMA
D/O LATE CHANDRAPPA
AGED ABOUT 48 YEARS
SHESHAPPA BAVI, ALMALGE ROAD
DODDABALLAPUR, BANGLORE
RURAL DISTRICT - 562 224.
8. THE LAND TRIBUNAL BANGALORE
NORTH TALUK, VISHWESHWARAIAH
CENTRE PODIUM BLOCK
BANGALORE - 560 001. ...RESPONDENTS
(BY SRI B. RAJENDRA PRASAD, HCGP FOR R-1 & R-8;
SRI UDAYA HOLLA, SR. COUNSEL FOR
5
SRI H.P. LEELADHAR, ADV., FOR R-2 (A-E);
R-3, R-4, R-5, R-6 & R-8 ARE SERVED;
V/O DATED 25.03.2015 NOTICE TO R-7
IS DISPENSED WITH)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
ORDER PASSED IN THE WRIT PETITION NO.48674/11 DATED
15/02/2013.
THIS APPEAL HAVING BEEN HEARD AND RESEVED,
COMING ON FOR PRONOUNCEMENT THIS DAY, VISHWAJITH
SHETTY J., DELIVERED THE FOLLOWING:
JUDGMENT
This intra court appeal is filed assailing the order
dated 15.02.2013 passed by the learned Single Judge of
this Court in W.P.No.48674/2011.
2. Heard the learned Senior Counsel appearing for
the parties, the Additional Government Advocate for
respondent nos.1 & 8 and also perused the material
available on record.
3. Brief facts of the case as revealed from the
records which would be necessary for the purpose of
disposal of this appeal are, land bearing Sy. No.31/1
(New No.53) of Ramanahalli village, Hesaraghatta Hobli,
Bengaluru North Taluk, measuring 5 acres (hereinafter
referred to as 'the land in dispute') was granted to one
Sri Rajarathnam on 16.10.1946. Rajarathnam died on
01.09.1963 and he was survived by his seven children
who inherited the land in dispute. After coming into force
of the Act No.1 of 1974 with effect from 01.03.1974, the
father of respondent nos.2 to 7 herein - late Sri
Chandrappa had filed Form No.7 on 23.12.1974 under
Section 45 of the Karnataka Land Reforms Act, 1961 (for
short, 'the Act') claiming occupancy rights of the land in
dispute contending that he was the tenant in occupation
and cultivation of the land in dispute for the last about 15
years.
4. In the Form No.7 filed by Chandrappa, he had
shown the name of Rajarathnam as the landlord of the
land in dispute. Before the Land Tribunal, the legal heirs
of late Rajarathnam were brought on record and they
had participated in the enquiry proceedings. The Land
Tribunal vide its order dated 07.08.1979 had granted
occupancy rights of the land in dispute in favour of
Chandrappa. The legal heirs of Rajarathnam had filed
W.P.No.33828/1996 challenging the said order dated
07.08.1979 passed by the Land Tribunal. This Court had
allowed the said writ petition and remitted the matter to
the Land Tribunal for fresh consideration. After remand,
the Land Tribunal recorded further evidence of the
parties and by order dated 29.01.2005 once again
granted occupancy rights of the land in dispute in favour
of the claimant - Chandrappa. The said order was
challenged by the legal heirs of Rajarathnam in
W.P.No.16625/2005 which was allowed and the matter
was remitted by this Court vide order dated 12.03.2008.
5. Subsequent to the second remand, when the
matter was pending before the Land Tribunal, the
claimant - Chandrappa died and his legal heirs who are
respondent nos.2 to 7 had come on record. The Land
Tribunal, thereafter, vide order dated 08.12.2011
rejected the Form No.7 filed by the claimant and being
aggrieved by the said order, respondent no.2 -
Siddrangaswamy who is one of the legal heir of the
claimant had filed W.P.No.48674/2011 before this Court
and the learned Single Judge of this Court vide the order
impugned has allowed the writ petition and the order of
the Land Tribunal was quashed and the claimant was
conferred with the occupancy rights in respect of the land
in dispute. Being aggrieved by the said order, the legal
heirs of the landlord late Rajarathnam have preferred this
intra court appeal.
6. Smt. Nalini Chidambaram, learned Senior
Counsel appearing for the appellants submits that Form
No.7 was filed by the claimant as against a dead person,
and therefore, the Land Tribunal could not have
entertained the same and occupancy rights of the land in
dispute cannot be granted in favour of the claimant. She
submits that the land was granted to late Rajarathnam in
the year 1946 considering his service in the military, and
therefore, unless a notification is issued under Section
15(6) of the Act vesting the land with the State, the
claim made for grant of occupancy rights in respect of
the land in dispute cannot be considered by the Land
Tribunal. She submits that the claimant has not produced
any rent receipts for having paid the rent or wara nor has
he deposited the same before the competent authority
and she has invited the attention of this Court to Section
9 of the Act in support of this contention of hers. She has
also contended that the land in dispute was throughout
cultivated personally by the landlord - Rajarathnam and
after his death by his legal heirs and at no point of time,
the land in dispute was leased to the claimant -
Chandrappa and he was not a tenant of the land in
dispute. She submits that the claimant was holding other
lands in the same village and she also refers to a
document, wherein the claimant had sold certain land
and submits that from the aforesaid document it can be
gathered that the claimant was not a tenant of the land
in dispute. In support of her arguments, she has relied
upon the judgments in the case of Y.V.SRINIVASA RAO
& ANOTHER VS ERANICKA - 2002(2) KAR.LJ 236,
S.MALLIKARNJUNAPPA VS STATE OF KARNATAKA &
ORS. - ILR 2004 KAR 2119, and GANGAPPA YAMANAPPA
CHALAWADI VS STATE OF KARNATAKA & OTHERS -
2007 SCC Online KAR 392.
7. Per contra, Sri Udaya Holla, learned Senior
Counsel appearing for the legal heirs of the claimant
submits that the appellants have not produced any
material either before the Land Tribunal or before this
Court to show that late Rajarathnam was in military
service. He submits that except the oral statement of his
son - Albert Selvaraj, there is no material available on
record so as to establish that late Rajarathnam was in
military service and considering the same, the land in
dispute was granted to him. He submits that the oral and
documentary evidence available on record were not
properly appreciated by the Land Tribunal and thereby
the Land Tribunal has erred in rejecting the claim for
grant of occupancy rights of the land in dispute. He
submits that the material on record would go to show
that late Rajarathnam was serving in the office of the
Accountant General and he had retired in the year 1952
and except that there is no material to show that he was
in military service. He also submits that the letter-head
of the Accountant General appears to have been misused
by the legal heirs of late Rajarathnam to establish that he
was in military service earlier. He submits that the grant
certificate issued on 16.10.1946 indicates that
Rajarathnam had purchased the land in dispute under an
auction sale, and therefore, the grant cannot be
considered as a grant made in favour of a soldier.
8. Learned Additional Government Advocate
appearing on behalf of respondent nos.1 & 8 has also
argued in support of the order impugned passed by the
learned Single Judge and has prayed to dismiss the
appeal.
9. The points that arise for consideration in this
intra court appeal are as follows:
(i) whether the appellants have proved
the requirement of issuance of a notification
under Section 15(6) of the Act for considering
claimant's Form No.7?
(ii) whether the Land Tribunal was
justified in rejecting the Form No.7 filed by the
claimant?
10. Point no.(i): It is the specific case of the
appellants that the land in dispute was granted to late
Rajarathnam in the year 1946, who was in military
service and the said land was cultivated by Rajarathnam
personally during his life time and thereafter by his legal
heirs and at no point of time the land in dispute was
leased to the claimant Chandrappa. It is also their case
that since late Rajarathnam was a soldier, in the absence
of a notification under Section 15(6) of the Act, the
claimant is not entitled for grant of occupancy rights of
the land in dispute.
11. Section 5 of the Act provides for prohibition of
leases, etc., but it makes an exception in respect of a
tenancy created or continued by a soldier or seaman and
Section 15 of the Act provides for resumption of land by
soldier or seaman. The expression "land" appearing in
the aforesaid two sections is the land which falls within
the definition of "land" under Section 2(A)(18) of the Act.
12. Sections 5 & 15 of the Act reads as under:
"5. Prohibition of leases, etc.- (1) Save
as provided in this Act, after the date of
commencement of the Amendment Act, no
tenancy shall be created or continued in
respect of any land nor shall any land be
leased for any period whatsoever.
(2) Nothing in sub-section (1) shall apply
to.-
(a) a tenancy created or continued by
a soldier or seaman if such tenancy
is created or continued while he is
serving as a soldier or a seaman or
within three months before he
became a soldier or a seaman.
(b) to any land leased after the
commencement of the Karnataka
Land Reforms (Amendment) Act,
1995 in the districts of Uttara
Kannada and Dakshina Kannada by
land owners or persons registered
as occupants under the provisions
of this Act for the purpose of
utilising the land for acquaculture
for a period not exceeding twenty
years, at such lease rent as may
be determined by mutual
agreement between the parties
and such agreement shall be
registered and a copy thereof shall
be sent to the Deputy
Commissioner within fifteen days
from the date of such registration.
(3) Every lease created under sub-
section (2) shall be in writing."
"15. Resumption of land by soldier or
seaman.- (1) A soldier or a seaman who has
created or continued a lease in accordance
with the provisions of Section 5 shall, subject
to the provisions of this Act, be entitled to
resume land to the extent of the ceiling area
whether his tenant is a protected tenant or
not.
(2) The soldier or the seaman shall, if he
bona fide requires the land to cultivate
personally, issue a notice to the tenant
requiring him to deliver possession of the land
within the period specified in the notice, which
shall not be less than the prescribed period.
(3) The notice referred to in sub-section
(2) shall be given.-
(i) in the case of a soldier in service in
the Armed Forces of the Union, at
any time not later than one year
from the date on which he is
released from the Armed Forces or
is sent to the reserve;
(ii) in the case of the father, mother,
spouse, child or grand-child of a
soldier, within one year from the
date of the death of such soldier,
and
(iii) in the case of a seaman, within one
year from the date on which he
ceases to be a seaman.
(4) If the tenant fails to deliver
possession of the land within the period
specified in the notice, the soldier or the
seaman may make an application to the
Tahsildar within whose jurisdiction the greater
part of the land is situated, furnishing the
prescribed particulars for eviction of the tenant
and delivery of possession of the land.
(5) On receipt of such application, the
Tahsildar shall issue a notice to the tenant
calling upon him to deliver possession of the
land to the soldier or the seaman within such
time as may be specified in the notice, which
shall not be less than the prescribed period and
if the tenant fails to comply, the Tahsildar may
summarily evict the tenant and deliver
possession of the land to the soldier or the
seaman.
(6) Where the Tahsildar, on application
by the tenant or otherwise and after such
enquiry as may be prescribed, is satisfied that
a notice as required by sub-section (2) is not
issued, he shall, by notification, declare that
with effect from such date as may be specified
in the notification the land leased shall stand
transferred to and vest in the State
Government free from all encumbrances. The
Tahsildar may take possession of the land in
the prescribed manner and the tenant shall be
entitled to be registered as an occupant
thereof. The provisions of Section 45 shall
mutatis mutandis apply in this behalf."
13. From a reading of Section 5(1) of the Act, it is
clear that no tenancy shall be created or continued in
respect of any land nor shall any land be leased for any
period whatsoever after coming into force of the
Amendment Act No.1 of 1974 with effect from
01.03.1974, and the prohibition under Section 5(1) of the
Act would not be applicable for the tenancy created or
continued and land leased as provided under Section 5(2)
of the Act. The Division Bench of this Court in NARASING
GOPALRAO DESAI VS THE LAND TRIBUNAL, KHANAPUR
- (1984)1 KLJ 360, has held that even though under sub-
section (1) of Section 5 of the Act, there is a total
prohibition of leasing agricultural lands, sub-section (2)
permits a soldier or seaman to create or continue the
tenancy. In the case of BALASAHEB VENKATESH
KHASBAGH @ KULKARNI VS LAND TRIBUNAL, BELGAUM
- 1985(2) KLJ 569, it has been held that a lease whether
created, continued or granted by a soldier or a seaman
must be in writing.
14. Section 15(1) of the Act provides for
resumption of land of which lease was created or
continued by a soldier or a seaman as provided under
Section 5(2) of the Act and Section 15(2) provides for
issuance of notice by the soldier or seaman to the tenant
and Section 15(3) provides for as to how notice referred
to in sub-section (2) shall be given. Section 15(3)(ii)
provides that if the soldier is dead, his parents, spouse,
children and grand children shall give notice referred to
in sub-section (2) within one year from the date of death
of the soldier. Section 15(6) provides that if a notice as
required under sub-section (2) is not issued, the
Tahsildar shall issue a notification and from the date
mentioned in such notification, the leased land shall
stand transferred to and vest with the State Government
free from all encumbrances and only thereafter, the
tenant shall be entitled to be registered as an occupant of
the leased land.
15. In Narasingh Gopalrao Desai's case (supra), the
Division Bench of this Court has held that unless a
notification under Section 15(6) of the Act is issued
declaring vesting of the land leased by a soldier, the
occupancy rights in respect of such land cannot be
granted under Section 48-A of the Act. The same has
been reiterated in the case of Y.V.Srinivasa Rao's case
(supra) and at paragraph 9 of the said judgment, it has
been observed as under:
"9. This interpretation of mine is also
based on the pronouncement of the Division
Bench of this Court in the case of Narasing
Gopalrao Desai v Land Tribunal, Khanapur. The
Division Bench of this Court has in detail
considered these aspects and has held that "a
tenant of a soldier or seaman cannot get
occupancy right unless the land is vested in the
Government by a special declaration made to
that effect by the Tahsildar as required under
Section 15(6) of the Act. Such a land is not
vested in the State under Section 44. Section
44 of the Act makes an exception to lands held
by tenants under the lease given or continued
by a soldier or seaman. Section 5(2) permits a
soldier or seaman to create or continue the
tenancy although there is a total prohibition of
such leasing of agricultural lands under Section
5(1). Hence, if the tenant in occupancy of such
a land approached the Tribunal for occupancy,
the Tribunal cannot grant occupancy, unless
there is a proof of vesting of that land under
Section 15(6). If the proceedings are before
the Tahsildar, the Tribunal shall defer
consideration of the application for occupancy
till the proceedings before the Tahsildar are
completed or the appeal, if any, is disposed by
the Assistant Commissioner"."
16. The original owner of the land in dispute late
Sri Rajarathnam has died on 01.09.1963. Section 15 of
the Act gets attracted only if the soldier or seaman has
created or continued the lease in accordance with the
provisions of Section 5 of the Act. Sections 5 & 15 of the
Act were substituted by the Act of 1974 with effect from
01.03.1974. Prior to the same, the statute did not
provide for issuing notification of vesting as provided
under Section 15(6) of the Act. Therefore, for the
purpose of issuing a notification under Section 15(6) of
the Act, it has to be first established that the soldier had
created or continued the lease as provided under Section
5(2) of the Act. It is the specific case of the appellants
that the land in dispute was never leased to the claimant
and he was not their tenant at any point of time. If that
is so, Section 15 of the Act which provides for resumption
of tenanted/leased land by the soldier does not get
attracted.
17. The lease/tenancy under Section 5(2)(a) of the
Act is required to be created or continued by the soldier
while he was serving as a soldier or within three months
before he became a soldier and such a lease is required
to be in writing. There is no document available on record
establishing creation or continuation of lease as provided
under Section 5(2)(a) of the Act.
18. The material on record would go to show that
prior to his death, late Rajarathnam was serving in the
office of Accountant General, Bengaluru. The appellants
have not produced any material before the Land Tribunal
or before this Court to show that as on the date of grant
of the land in dispute, Rajarathnam was serving as a
soldier. Unless they establish that late Rajarathnam had
created or continued the lease/tenancy of the land in
dispute when he was serving as a soldier or within three
months before he became a soldier and the tenant had
filed application under Section 45 of the Act claiming
occupancy rights of the land which was subject matter of
such lease, the requirement of issuing any notification of
vesting under Section 15(6) of the Act does not arise,
and therefore, even if the Tahsildar has not issued any
notification under Section 15(6) of the Act, the same will
not come in the way of considering the claim of the
tenant under Form No.7 for grant of occupancy rights of
the land in dispute. The burden to prove that the
tenancy/lease was created or continued by a soldier while
he was serving as a soldier or within three months before
he became a soldier is on the appellants/landlords and in
the present case they have failed to discharge the same,
and therefore, the Land Tribunal was not justified in
holding that the claimant is not entitled to be registered
as a occupant of the land in dispute in the absence of a
notification of vesting under Section 15(6) by the
Tahsildar. Accordingly, we answer point no.(i) for
consideration in the negative.
19. Point no.(ii):- The Form No.7 was filed by the
claimant showing late Rajarathnam as the landlord of the
land in dispute. The material on record would go to show
that his children were brought on record before the Land
Tribunal and thereafter throughout they have
participated in all the proceedings, and therefore, there is
no merit in the contention urged on behalf of the
appellants that Form No.7 of the claimant was liable to
be dismissed since the same was filed against a dead
person.
20. The claimant has stated in his Form No.7 filed
on 23.12.1974 that he was the tenant of the land in
dispute for the last about 15 years. The material on
record would go to show that late Rajarathnam was
serving in the office of Accountant General and he had
retired in the year 1952. Though the appellants who are
the legal heirs of late Rajarathnam have contended that
the land in dispute was cultivated by Rajarathnam during
his life time and thereafter by his legal heirs, they have
failed to prove the same. Late Rajarathnam who died in
the year 1963 had seven children and the material on
record would go to show that five of them had settled out
of Bengaluru and only two of them viz., Nithyananda and
Albert Selvaraj were residing in Bengaluru. Nithyananda
was an employee of a private company and he is residing
at Bannerghatta while Albert Selvaraj was in defence
service and after his retirement, he has settled at
Hennur.
21. Nithyananda has admitted in his statement
recorded before the Land Tribunal that he had seen the
claimant Chandrappa cultivating the land in dispute. The
claimant has deposed before the Land Tribunal
contending that he was the tenant of the land in dispute
under late Rajarathnam and the landlords were
periodically collecting their share in the crop grown by
him towards rentals. His witness Veeranna has
corroborated this evidence and has stated that
Chandrappa was growing Ragi and Hurali crops in the
land in dispute. Even the other witnesses examined on
behalf of Chandrappa have corroborated his evidence.
Ex.R-4 - sketch dated 12.02.1977 prepared by the
Surveyor shows that claimant is in occupation of the land
in dispute.
22. The entries in the revenue records of the land
in dispute for the period from 1971-72 onwards stand in
the name of the claimant Chandrappa, and therefore,
there is a presumption under Section 133 of the
Karnataka Land Revenue Act, 1964, in favour of the
claimant. The appellants have failed to rebut the said
presumption. In addition to this statutory presumption,
the above referred oral and documentary evidence would
also go to show that the claimant was in occupation and
cultivation of the land in dispute as on 01.03.1974 and
immediately prior to the said date. The appellants have
specifically contended that non-issuance of notification of
vesting under Section 15(6) of the Act disentitles the
claimant to be registered as an occupant of the land in
dispute as the same belonged to a soldier. Section 15 of
the Act provides for resumption of leased or tenanted
land by the soldier, if such a lease or tenancy is created
or continued by the soldier in accordance with the
provisions of Section 5 of the Act. Therefore, the
appellants have impliedly admitted the tenancy of the
claimant Chandrappa.
23. In the case of PANDURANG JIVAJIRAO
MANGLEKAR BY LRS VS STATE OF KARNATAKA - ILR
2007(3) KAR 3602, it has been held by this Court that
where the landlord's witness has admitted claimant's
possession as a tenant, it is the best evidence against the
party making it and hence, claimant was entitled for
grant of occupancy rights.
24. In the case of SRIKANTE GOWDA VS LAND
TRIBUNAL - 1977(2) KLJ 126, it has been held by this
Court that the statutory presumption as to the record of
rights under Section 133 of the Karnataka Land Revenue
Act, 1964, cannot be ignored unless such presumption is
rebutted in accordance with law. The circumstantial
evidence along with oral evidence was required to be
considered by the Land Tribunal.
25. The Division Bench of this Court in the case of
RADHAKRISHNA SETTY VS THE LAND TRIBUNAL -
1977(2) KLJ 281 has held that the Land Tribunal is
bound by the statutory presumption as to entries made
in the record of rights and the order of the Tribunal
without any reference to such entries and having no
discussion as to the oral evidence is not valid.
26. It is the specific case of the claimant that the
landlords were collecting share in the crop grown by him
in the land in dispute, towards rentals. It is not his case
that the landlord was refusing to collect rent or wara.
Therefore, there is no requirement of compliance of
Section 9 of the Act by the claimant as contended by the
appellants. It is trite law that rent receipts alone cannot
be considered as a proof for tenancy. The oral and
documentary evidence available on record conclusively
prove that the claimant was in occupation and cultivation
of the land in dispute as a tenant as on 01.03.1974 and
immediately prior to the said date, and therefore, non-
production of any rent receipts would be immaterial in
the present case for deciding the issue of tenancy. The
judgment in S.Mallikarjunappa's case and Gangappa
Yamanappa Chalawadi's case supra would therefore not
be applicable to the facts of the present case.
27. The fact that the claimant owned some other
land or he has sold certain land for valuable
consideration, etc., are irrelevant for the purpose of
considering his claim for grant of occupancy rights of the
land in dispute. What was required to be considered by
the Land Tribunal was whether the claimant had proved
that he was in occupation and cultivation of the land
which was the subject matter of Form No.7 as on
01.03.1974 and immediately prior to the said date as a
tenant of the said land and if such tenancy was created
or continued by a soldier, whether the same was created
or continued in compliance of the requirements of
Section 5(2)(a) of the Act. The Land Tribunal,
unfortunately has placed reliance upon irrelevant
material and has erroneously rejected Form No.7. We,
therefore, answer point no.(ii) also in the negative.
28. In the earlier two rounds of litigation, the Land
Tribunal had granted occupancy rights of the land in
dispute to the claimant. In the third round, the Land
Tribunal has completely overlooked the relevant evidence
available on record and has proceeded to dismiss the
Form No.7 on irrelevant considerations. The Land
Tribunal at one breath has held that the claimant's Form
No.7 cannot be considered by it since a notification of
vesting under Section 15(6) of the Act is not issued by
the Tahsildar, and on the other hand, the Land Tribunal
has also held that the landlords are in possession of the
land in dispute and the lands were not leased to the
claimant at any point of time. The said two findings are
contradictory and cannot go together. The learned Single
Judge was, therefore, fully justified in quashing the
impugned order passed by the Land Tribunal and
granting occupancy rights of the land in dispute to the
claimant in exercise of his powers under Article 226 of
the Constitution of India. We do not see any illegality,
infirmity or perversity in the said order. The writ appeal,
therefore, lacks merit and accordingly, the same is
dismissed.
SD/-
JUDGE
SD/-
JUDGE
KK
