Karnataka High Court
Gudda Poojary vs Somayya Poojari on 21 November, 2022
Bench: Alok Aradhe, S Vishwajith Shetty
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF NOVEMBER 2022
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
W.A.No.268/2021 (LR)
BETWEEN:
GUDDA POOJARY
SINCE DECEASE BY HIS LRS
APPI POOJARTHY
SINCE DEAD BY HER LRS
1. SMT. MEENAKSHI
D/O LATE GUDDA POOJARY
AGED ABOUT 72 YEARS.
2. SMT. SUSHEELA
D/O LATE GUDDA POOJARY
AGED ABOUT 70 YEARS.
3. SMT. GULABI
D/O LATE GUDDA POOJARY
AGED ABOUT 67 YEARS.
4. SMT. SUNDARI
D/O LATE GUDDA POOJARY
AGED ABOUT 65 YEARS.
CHANDRASHEKAR
DECEASED BY HIS LRS
5. SMT. LEELAVATHI
W/O CHANDRASHEKHAR
AGED ABOUT 61 YEARS.
6. SRI ROAHAN
S/O CHANDRASHEKHAR
AGED ABOUT 39 YEARS.
2
7. SMT. PADMINI
D/O LATE CHANDRASHEKHAR
AGED ABOUT 37 YEARS.
8. SMT. SULOCHANA
D/O LATE GUDDA POOJARY
AGED ABOUT 57 YEARS.
9. SRI BHASKARA
S/O LATE GUDDA POOJARY
AGED ABOUT 54 YEARS.
10. SRI VASANTHA
S/O LATE GUDDA POOJARY
AGED ABOUT 52 YEARS.
11. SRI RAVINDRA
S/O LATE GUDDA POOJARY
AGED ABOUT 48 YEARS.
ALL ARE R/AT "SUVARNASHEREE"
BADAGUMANE POLIPU
PADU VILLAGE, POST KAUP
UDUPI TALUK AND
DISTRICT - 574 106. ...APPELLANTS
(BY SRI SACHIN B.S, ADV.)
AND:
SOMAYYA POOJARI
DEAD BY HIS LRS
1. SMT. SUMITHRA
D/O LATE SOMAYYA POOJARI
AGED ABOUT 72 YEARS.
2. SMT. GANGA
D/O LATE SOMAYYA POOJARI
AGED ABOUT 64 YEARS.
3. SMT. GOWRI
D/O LATE SOMAYYA POOJARI
AGED ABOUT 62 YEARS.
4. SRI BHASKARA
D/O LATE SOMAYYA POOJARI
AGED ABOUT 52 YEARS.
3
5. SMT. YASHODA
D/O LATE SOMAYYA POOJARI
AGED ABOUT 48 YEARS.
6. SRI SURESHA
S/O LATE SOMAYYA POOJARI
AGED ABOUT 44 YEARS.
ALL ARE RESIDING AT "SAGAR HOUSE"
NEAR POLIPU JUNIOR COLLEGE
PADU VILLAGE POST KAUP
UDUPI TALUK AND
DISTRICT - 574 106.
7. THE STATE OF KARNATAKA
DEPARTMENT OF REVENUE
M.S. BUILDING
BANGALORE - 560 001
BY SECRETARY TO GOVERNMENT.
8. THE LAND TRIBUNAL
UDUPI TALUK, UDUPI
DISTRICT - 576 101
REPRESENTED BY ITS SECRETARY.
9. SARVOTHAMMA SHETTY
S/O ANANTHA SHETTY
ADVOCATE MANGALORE
DAKSHINA KANNADA - 575 001.
10. SMT. UMAVATHI SHETTY
W/O SEETHARAMA SHETTY
ASHA GARDEN MOODANIDUMBUR
UDUPI - 574 105. ...RESPONDENTS
(BY SRI RAJESH SHETTIGAR, ADV., FOR C/R-1 (A-F)
SMT. NAMITHA MAHESH B.G., AGA FOR R-7)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE
THE ORDER DATED 10.12.2020 PASSED IN
W.P.NO.43770/2015 PASSED BY LEARNED SINGLE JUDGE.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING
THIS DAY, VISHWAJITH SHETTY J., DELIVERED THE
FOLLOWING:
4
JUDGMENT
This intra court appeal is filed assailing the order
dated 10.12.2020 passed by the learned Single Judge of
this Court in W.P.No.9889/2020 c/w W.P.No.43770/2015.
2. Heard the learned Counsel for the parties and
also perused the material available on record.
3. Brief facts of the case relevant for the purpose of
disposal of this appeal as revealed from the records are,
the father of the appellants herein had filed Form No.7
under the Karnataka Land Reforms Act, 1961 (for short,
'the Act') claiming occupancy rights of the land bearing
Sy. No.12/9B measuring 34 cents situated at Padu
village, Udupi Taluk & District. The Land Tribunal,
considering the said Form No.7 by order dated
13.10.1981 had granted occupancy rights in favour of the
appellants' father late Sri Gudda Poojary. The father of
respondent nos.1 to 6 - late Somayya Poojari appears to
have also filed Form No.7 claiming occupancy rights of
certain items of land situated at Padu village, Udupi
Taluk. Considering the said Form No.7, the Land Tribunal
vide order dated 15.10.1981 had granted occupancy
rights of five items of land including the land bearing Sy.
No.12/9B measuring 30 cents in favour of Somayya
Poojari. Challenging the said order dated 15.10.1981 in
so far as it relates to Sy. No.12/9B, the appellants herein
had filed W.P.No.25168/1994 and the learned Single
Judge of this Court by order dated 18.06.2002 had
allowed the said writ petition and quashed the order
dated 15.10.1981 to the extent it relates to granting
occupancy rights of Sy. No.12/9B on the ground that
Somayya Poojari had not made any claim in respect of
the said land, and therefore, the Land Tribunal had erred
in granting occupancy rights of the said land in favour of
Somayya Poojari.
4. Respondent nos.1 to 6 had filed a review petition
in R.P.No.1404/2014 which was disposed of by this Court
by order dated 07.01.2016 with an observation that the
learned Single Judge had not committed any error while
allowing W.P.No.25168/1994 since there was no material
placed before him to show that Somayya Poojari had
made a claim in respect of the land bearing Sy. No.12/9B
and it was further observed that if there is any
supplementary claim made in respect of the said land,
the same would be considered in the pending writ
petition i.e., W.P.No.43770/2015 which was filed by
respondent nos.1 to 6 challenging the order dated
13.10.1981 passed by the Land Tribunal granting
occupancy rights of the land in question bearing Sy.
No.12/9B in favour of the father of the appellants. In the
meanwhile, the appellants appears to have filed
O.S.No.585/2014 seeking possession of the land in
question. In the said suit, respondent nos.1 to 6 had filed
an application under Sections 132 & 133 of the Act with a
prayer to stay further proceedings in the suit in view of
the pendency of W.P.No.43770/2015. The said
application was rejected by the Trial Court. Being
aggrieved by the same, respondent nos.1 to 6 had filed
W.P.No.9889/2020.
5. W.P.No.43770/2015 & W.P.No.9889/2020 were
clubbed together, heard and disposed of by the learned
Single Judge by a common order and being aggrieved by
the same, the appellants have preferred this writ appeal.
6. Learned Counsel for the appellants submitted
that the learned Single Judge was not justified in
quashing the order passed by the Land Tribunal after a
lapse of nearly 35 years. He submits that the writ
petition ought to have been dismissed on the ground of
delay and latches. He also submits that respondent nos.1
to 6 have failed to produce any material before the
learned Single Judge to show that their father had made
a claim in Form No.7 in respect of land bearing Sy.
No.12/9B and in absence of the same, the learned Single
Judge could not have entertained W.P.No.43770/2015 in
view of the specific observation made by this Court while
disposing of R.P.No.1404/2014. He submits that the
order passed in W.P.No.25168/1994 has not been set
aside or recalled, and therefore, unless respondent nos.1
to 6 are able to show before this Court that their father
had made a claim in Form No.7 in respect of the land in
question bearing Sy. No.12/9B, their writ petition
challenging the order of the Land Tribunal wherein
occupancy rights of the land in question has been
granted to the appellants' father could not have been
entertained by the learned Single Judge. He submits that
under the circumstances, the learned Single Judge was
also not justified in allowing W.P.No.9889/2020.
7. Per contra, learned Counsel appearing for
respondent nos.1 to 6 submits that though there is no
claim made in respect of the land in question in Form
No.7 filed by Somayya Poojari, during the course of his
examination before the Land Tribunal in the year 1981,
he has made a claim even in respect of the land in
question bearing Sy. No.12/9B.
8. From the perusal of Annexure-F which is the
order dated 15.10.1981 passed by the Land Tribunal on
Form No.7 filed by Somayya Poojari - father of
respondent nos.1 to 6, it is seen that Somayya Poojari
had filed Form No.7 claiming occupancy rights of four
items of land. However, the Land Tribunal has granted
occupancy rights in respect of five items of land which
included the land bearing Sy. No.12/9B measuring 30
cents though there was no claim made by late Somayya
Poojari in respect of the said land.
9. It is relevant to mention here that the Land
Tribunal vide its order dated 13.10.1981 had granted
occupancy rights of the land in question bearing Sy.
No.12/9B measuring 34 cents in favour of Gudda Poojary
considering his Form No.7. The Form No.7 filed by Gudda
Poojary and the order dated 13.10.1981 which are
available on record would go to show that Gudda Poojary
had made a specific claim in respect of Sy. No.12/9B,
whereas Somayya Poojari had not made any claim in
respect of Sy. No.12/9B. It is under these circumstances,
the learned Single Judge of this Court in
W.P.No.25168/1994 had quashed the order dated
15.10.1981 passed by the Land Tribunal, wherein it had
granted occupancy rights of the land bearing Sy.
No.12/9B measuring 30 cents in favour of Somayya
Poojari. In the review petition which was filed by
respondent nos.1 to 6 seeking review of the order passed
in W.P.No.25168/1994 on the ground that the said order
was erroneous, this Court has refused to review or recall
the order dated 18.06.2002 passed in
W.P.No.25168/1994. However, an observation was made
that in the event respondent nos.1 to 6 establish in the
writ petition filed by them challenging the order dated
13.10.1981 passed by the Land Tribunal granting
occupancy rights of the land bearing Sy. No.12/9B
measuring 34 cents in favour of Gudda Poojary, the same
would be relevant and would be considered in the said
writ petition notwithstanding that the same was not
brought to the attention of the learned Single Judge in
W.P.No.25168/1994.
10. From the aforesaid observations made by the
learned Single Judge of this Court while disposing of
R.P.No.1404/2014, it is very clear that it was for
respondent nos.1 to 6 to establish in W.P.No.43770/2015
filed by them challenging the order dated 13.10.1981
wherein occupancy rights of the land bearing Sy.
No.12/9B measuring 34 cents was granted in favour of
Gudda Poojary, that their father - Somayya Poojari had
made a claim in respect of the very same land in his
Form No.7 filed before the Land Tribunal, or to produce
any material to establish that there has been a
supplementary claim in respect of the very same land by
Somayya Poojari. Respondent nos.1 to 6 have failed to
produce any material before the learned Single Judge to
show that Somayya Poojari had filed Form No.7 in
respect of the land bearing Sy. No.12/9B or that there
was any supplementary claim by him in respect of the
said land. In the absence of such material and in view of
the specific observation made by the learned Single
Judge while disposing of R.P.No.1404/2014, the learned
Single Judge could not have entertained
W.P.No.43770/2015 which is filed by respondent nos.1 to
6 herein challenging the order dated 13.10.1981 passed
by the Land Tribunal granting occupancy rights of the
land bearing Sy. No.12/9B in favour of the appellants'
father - Gudda Poojary. It is needless to state that the
learned Single Judge of this Court while disposing of
R.P.No.1404/2014 vide its order dated 07.01.2016 has
not disturbed the order passed in W.P.No.25168/1994,
wherein the order dated 15.10.1981 passed by the Land
Tribunal granting occupancy rights of the land bearing
Sy. No.12/9B measuring 30 cents in favour of Somayya
Poojari was quashed.
11. It is also relevant to mention here that
W.P.No.25168/1994 was disposed of by this Court on
18.06.2002 and though respondent nos.1 to 6 were
parties to the said writ petition, inspite of service of
notice, they had not entered appearance in the said
petition before this Court. The review petition filed by
them with a prayer to review/recall the order dated
18.06.2002 passed in W.P.No.25168/1994 has been
disposed of without interfering with the order passed by
the learned Single Judge in W.P.No.25168/1994 subject
to certain observations and in furtherance of such an
observation, respondent nos.1 to 6 have failed to
produce any material in W.P.No.43770/2015 so as to
show that there is a claim or supplementary claim made
by Somayya Poojari in respect of land bearing Sy.
No.12/9B. The principle of clubbing the application by the
Land Tribunal will arise only if there are rival claims in
respect of the same property. But in the present case,
respondent nos.1 to 6 have failed to show that there was
a claim by Somayya Poojari in respect of land bearing Sy.
No.12/9B.
12. Under the circumstances, we are of the
considered view that the learned Single Judge was not
justified in allowing W.P.No.43770/2015 and quashing
the order dated 13.10.1981 passed by the Land Tribunal
and remitting the matter for fresh consideration.
W.P.No.9889/2020 has been allowed in view of the order
passed by the learned Single Judge in
W.P.No.43770/2015. However, since we have now held
that the learned Single Judge was not justified in allowing
W.P.No.43770/2015, the order passed in
W.P.No.9889/2020 is also liable to be set aside.
Accordingly, the following order:
13. The writ appeal is allowed. The order dated
10.12.2020 passed by the learned Single Judge in
W.P.No.43770/2015 c/w W.P.No.9889/2020 is set aside.
SD/-
JUDGE
SD/-
JUDGE
KK
