Karnataka High Court
Kori Erappa Since Dead By His Lrs vs State Of Karnatgaka Department Of ... on 21 December, 2023
-1-
WP No.6169/2008
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 21ST DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
WRIT PETITION NO. 6169/2008
BETWEEN
KORI ERAPPA SINCE DEAD BY HIS LRS,
1. SMT. KORI RUDRAMMA
W/O. LATE SRI KORI ERAPPA,
AGED ABOUT 88 YEARS.
2. KORI LINGAPPA S/O. LATE SRI KORI ERAPPA
AGED ABOUT 61 YEARS,
PETITIONER NO.1 & 2 ARE R/AT: 10,
MUDDAPURA VILLAGE, HOSAPETE TALUK,
BALLARI DISTRICT-583132.
3. SMT. HANUMANTHAMMA
D/O. LATE SRI KORI ERAPPA, W/O. ERANNA,
AGED ABOUT 65 YEARS,
R/AT GOMARSI VILLAGE, TQ: SINDANOOR TALUK,
MOHANKUMAR RAICHOOR DISTRICT-583229.
B SHELAR
Digitally signed by
MOHANKUMAR B 4. SMT. JADEMMA D/O. LATE SRI KORI ERAPPA
SHELAR
Date: 2023.12.22 W/O. MALLAPPA,
11:05:16 +0530
AGED ABOUT 63 YEARS,
R/AT NO.10, MUDDAPURA, HOSAPETE TALUK,
BALLARI DISTRICT-583132.
5. SMT. YELLAMMA D/O. LATE SRI KORI ERAPPA
W/O. CHIDANANDAAPPA,
AGED ABOUT 59 YEARS,
R/AT HULGI VILLAGE, MUNIRABAD,
KOPPALA TALUK, KOPPAL DISTRICT-583211.
...PETITIONERS
(BY SMT. V. VIDYA, ADVOCATE FOR PETITIONER,
SRI. UMESH C. AINAPUR, ADVOCATE FOR PETITIONER NO.2 (NOC
NOT OBTAINED)
-2-
WP No.6169/2008
AND
1. STATE OF KARNATGAKA
DEPARTMENT OF REVENUE
REPRESENTED BY ITS SECRETARY,
M. S. BUILDING, BENGALURU-560001.
2. THE ASSISTANT COMMISSIONER,
HOSPET SUB-DIVISION,
HOSAPETE, BALLARI-583101.
3. THE AND TRIBUNAL
HOSAPETE, REP. BY ITS SECRETARY,
BALLARI-583101.
4. K. VISHWANATH S/O. SHANKARAPPA,
AGED ABOUT 73 YEARS, R/AT. KAMPALI,
HOSAPETE TALUK, BALLARI DISTRICT,
BALLARI-583132.
5. K. BASAVARAJ S/O. RAJAPPA,
SINCE DEAD BY HIS LRS.
5A K. KAVITHA D/O. LATE SRI. K. BASAVARAJ
AGED ABOUT 48 YEARS.
5B K. SANJAY S/O. LATE SRI. K. BASAVARAJ,
AGED ABOUT 44 YEARS.
5C K. VINOD S/O. LATE SRI. K. BASAVARAJ
AGED ABOUT 41 YEARS,
ALL ARE R/O. SUDHA CROSS,
NEAR MINES COMPLEX, NEAR TB HOSPITAL,
BALLARI CITY, BALLARI DISTRICT-583101.
...RESPONDENTS
(BY SRI. SHIVAPRABHU HIREMATH, AGA FOR RESP. NO.1 TO 3,
SRI. ASHOK R. KALYANASHETTY, ADV. FOR RESPONDENT NO.4,
SRI. JAGADISH PATIL, ADVOCATE FOR RESPONDENT NO. 5(A TO C)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT
CERTIORARI OR ANY OTHER APPROPRIATE WRIT ORDER OR
DIRECTION QUASHING THE IMPUGNED ORDER PASSED BY
RESPONDENT NO.3 FOUND AT ANNEXURE-E IN CASE NO.7A. 12/99-
2000 DATED 24.2.2006 AND ALSO THE IMPUGNED ORDER PASSED
-3-
WP No.6169/2008
BY THE RESPONDENT NO.2 IN CASE NO.699/76-77 DATED 27.3.81
FOUND AT ANNEXURE-C ALLOW THIS WRIT PETITION WITH COST.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 20.12.2023, COMING ON FOR PRONOUNCEMENT
FOR ORDER, THIS DAY, THE COURT MADE THE FOLLOWING,
ORDER
The order dated 24.02.2006 passed by the
Assistant Commissioner, Hospet rejecting form No.7A
filed by the petitioner in proceeding No.7A.12/99-2000
and the order passed by the 3rd respondent Land
Tribunal granting occupancy rights in favour of
contesting respondent in proceeding No.699-76-77
dated 27.03.1981 are called in question before this
Court.
2. The brief facts necessary for adjudication of
the case are as under:-
Petitioner claims to be the tenant in respect of
Survey No.202, measuring 0.53 acres, Survey No.224,
measuring 0.73 acres and Survey No.229, measuring
0.63 acres in Muddapur village, Taluk Hospet for more
than 60 years. It is further stated that he being
illiterate could not file form No.7 and the lands being
tenanted lands, he filed Form No.7A on 29.12.1998.
It is stated that in the year 2000, he realized that
occupancy rights were already granted in respect of
the aforementioned property in favour of contesting
respondent. Thus, he filed W.P. No.36191/2000
challenging the order of the Tribunal dated
27.03.1981 granting occupancy right in favour of
contesting respondent. This Court rejected the writ
petition on the premise that the petitioner has no
locus-standi to question the order of the land Tribunal
as the petitioner had not filed Form No.7, and also on
the premise that the challenge is laid after lapse of 20
years.
3. This Court also noted that the petitioner's
form No.7A is pending consideration before the
Assistant Commissioner and granted the liberty to the
petitioner to prosecute the said application.
4. The jurisdictional Assistant Commissioner
rejected form No.7A on the premise that occupancy
rights are already granted as such, the petitioner is
not entitled to claim grant under form No.7A.
5. Aggrieved by the aforementioned order, the
petitioner is before this Court.
6. Learned counsel for the petitioners would raise
following contentions:-
i) Records from 1958 to 1998 would reveal
that the petitioner is in possession of the
properties as a tenant.
ii) Form No.7 alleged to have been filed by
the contesting respondents is submitted
by the landlord, in person and the same
speaks about the collusion.
iii) The alleged tenant who owns 84 acres of
land did not mention the petition lands in
his declaration in Form No.11 disclosing
the petition lands as the properties in his
possession as a tenant.
iv) The Tribunal has not applied its mind and
did not record a finding that the alleged
tenant was in possession of the properties
as a tenant immediately before
01.03.1974 as contemplated under
Section 48 of the Karnataka Land Reforms
Act.
v) No notice is issued to the interested
person (the petitioner) which is a
mandatory provision under the Act.
vi) The Tahasildar's report did not indicate
that contesting respondent was a tenant
and that report is ignored by the Tribunal.
vii) Merely because objections are not filed by
the landlord, the Tribunal is not under the
obligation to grant occupancy, as it has to
satisfy itself as to the requirement of
lawful cultivation as a tenant by the
applicant immediately before 01.03.1974.
viii) The second writ petition is maintainable as
the liberty was granted in the earlier
round of litigation.
7. Learned counsel for the petitioner in support of
her contention has relied on the following judgments.
1) A.V.Papayya Sastry and Others vs
Govt. of A.P. and Others [(2007) 4
SCC 221].
2) Meghmala and Others vs
G.Narasimha Reddy and Others
[(2010) 8 SCC 383].
3) Channiah vs Ramiah & Others
[(1979)1 Kant LJ 315].
4) Anjanappa vs Land Tribunal,
Nelamangala & Others [(1979) 2
Kant LJ 330].
5) Sannegowda vs Land Tribunal,
Periyapatna and Others
[W.A.No.1772/21980]
8. The learned counsel appearing for the
contesting respondent would submit that;
(a) The form No.7A cannot be filed in a situation
where the form No.7 is already allowed and
occupancy rights are granted to a third party.
(b) The earlier petition challenging the order of the
land Tribunal is dismissed with an observation
that the petitioner has no loucs-standi as such,
the petitioner cannot make a claim under form
No.7A.
(c) The petitioner not having filed form No.7 cannot
challenge the order granting occupancy right in
favour of contesting respondent.
(d) The records produced by the petitioner do not
indicate that the petitioner was lawfully
cultivating the properties as a tenant before
01.03.1974.
(e) In view of dismissal of writ petition in W.P. No.
36191/2000, the petition is hit by principle of
res-judicata.
9. In support of his contention, the learned
counsel for the contesting respondent relied upon the
following judgments:-
(i) Lokayya Poojari & Another vs State of
Karnataka, 2012 4 KCCR 3411
(ii) Hosabayya Nagappa Naik and Others vs State of
Karnataka, by its Secretary, Revenue Department
and others.
10. This Court has considered the contentions
raised at the Bar and perused the records.
11. Admittedly, the order dated 27.03.1981 passed
by the Land Tribunal was questioned before this Court in
W.P. No.36191/2000 and same was dismissed vide order
dated 20.02.2001. This Court in the said writ petition has
held that the petitioner cannot question the order granting
occupancy in favour of the contesting respondent as the
petitioner has not filed form No.7. This Court has also
observed that the petition is filed 20 years after the order
granting occupancy. However, the very same order is now
- 10 -
called in question along with the order rejecting form
No.7A filed by the petitioner. Since, form No.7A was
pending consideration when the aforementioned writ
petition was heard by this Court, the liberty is granted to
the petitioner to prosecute form No.7A. However, said
order cannot be construed as an order recognizing the
right of the petitioner to question the order granting
occupancy right in favour of the contesting respondent.
12. The learned counsel for the petitioner urged
that the grant of occupancy in favour of contesting
respondent is nothing but a fraud played on the Land
Tribunal. It is urged that the owner himself has presented
the application for grant of occupancy showing the
contesting respondent who is his cousin as the tenant of
the land. It is further urged that fraud vitiates everything
and this Court in terms of the order dated 20.02.2001
passed in W.P. No.36191/2000 has granted liberty to
prosecute form No.7A application and form No.7A
application not considered on merit and the same is
- 11 -
dismissed on the premise that occupancy right is already
granted in favour of contesting respondents. Thus the
petition is maintainable as the cause of action is different.
On the premise that the order of the Land Tribunal is
vitiated by fraud, the petitioner is urging that the matter
granting occupancy requires reconsideration vis-à-vis the
claim of the petitioner.
13. Though, the contention that the fraud vitiates
everything sounds attractive, to reconsider the claim of
the petitioner the Court is required to consider whether a
prima-facie case is made out to show that the petitioner
was cultivating the land in a capacity of lawful tenant
before 01.03.1974. Only if the petitioner is able to prima
facie establish that he was cultivating the lands in
question, lawfully as a tenant, then the Court can consider
the contentions whether the order passed in the year 1981
is vitiated by fraud.
14. The records placed before this Court do not
prima facie indicate that the petitioner was cultivating the
properties in dispute in his capacity as a lawful tenant
- 12 -
under the landlord. There are no revenue records or rent
receipts or any other record evidencing the landlord and
tenant relationship before 01.03.1974.
15. Placing reliance on the documents issued by the
Cooperative Sugar Factory in favour of the petitioner, the
petitioner is trying to make out a case that the petitioner
was a tenant immediately before 01.03.1974. The said
records cannot be accepted as the records to prima-facie
hold that petitioner was cultivating the land immediately
before 01.03.1974 as a tenant.
16. Since, the petitioner is unable to place prima-
facie acceptable material to establish the relationship of
landlord and tenant in respect of the disputed properties,
the contention that the order of the Tribunal is vitiated by
fraud cannot be accepted.
17. Though, the learned counsel appearing for the
petitioner pointed out to the revenue records after
01.03.1974 to urge the point that the petitioner was a
tenant, this Court has to hold that said entry in the record
- 13 -
of right after 01.03.1974 has no sanctity in the eye of law
as lease of agriculture land is barred after 01.03.1974.
18. Under these circumstances, the further
contentions raised by the petitioner that impugned order
passed by the Tribunal is vitiated for want of notice to the
petitioner cannot be accepted. When the records placed
before the Tribunal as on 01.03.1974 did not indicate the
fact that the petitioner was in a possession of the property
as a tenant and when the petitioner has not filed any Form
No.7 application seeking occupancy rights, the contention
that the petitioner's name reflected in Column No.12 of
RTC after 01.03.1974 cannot be the basis to say that the
Tribunal ought to have issued notice to the petitioner. This
being the position, this Court does not find any reason
why the Tribunal should have issued the notice to the
petitioner before passing the orders in favour of the
contesting respondent.
19. Though the amendment of Section 77-A
enabled the persons who did not file form No.7A before
the appointed day, said provision also prescribed few
- 14 -
conditions to make a claim for grant of land under form
No.7A. The conditions are;
(a) The person should be in possession of the
property as on the date of application.
(b) He should have been a tenant lawfully
cultivating the land before 01.03.1974.
(c) He should not have filed form No.7
application earlier.
20. The Assistant Commissioner dismissed the
application on the premise that form No.7 is already
granted by the competent Tribunal.
21. This Court has rejected the challenge to the
earlier order of the Tribunal on the premise that the
petitioner has not filed form No.7. Thus, the petitioner will
get a right to file form No.7 only if he is able to establish
that he was lawfully cultivating the disputed lands as a
tenant immediately before 01.03.1974. Since, prima-facie
materials are not established to indicate that the petitioner
was lawfully cultivating the lands as a tenant immediately
- 15 -
before 01.03.1974, it cannot be said that the order
granting occupancy in favour of the contesting
respondents is on account of collusion between the
landlord and the contesting respondent who are relatives.
22. In the light of the aforementioned
circumstances, the earlier order passed by this Court
holding that the petitioner has no locus-standi comes in
the way of adjudicating the petitioner's claim for grant of
occupancy right.
23 The judgments cited by the learned counsel for
the petitioner on the procedures to be followed by the
Land Tribunal have no application to the present set of
facts of the case, as the petitioner has not made out any
grounds to show that the petitioner was a tenant
immediately before 01.03.1974. Hence, the petitioner who
has not filed form No.7 and who has filed form No.7A after
granting of occupancy rights in favour of the contesting
respondent and the petitioner who has suffered an order
of dismissal of the writ petition in his first attempt to
challenge the order granting occupancy in favour of
- 16 -
contesting respondent, cannot question the order granting
occupancy in favour of contesting respondent.
24. The judgment cited on the principle of fraud
cannot not be made applicable to the facts of the present
case where the petitioner is unable even to prima facie
establish that he was in lawful possession in his capacity
as a tenant immediately before 1.03.1974.
Accordingly, the writ petition is dismissed.
Sd/-
JUDGE
CHS/ct-an
