K. Sadananda Bhat vs Smt. Akku Poojarthy
2023 Latest Caselaw 1574 Kant

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                                                        WA No.920 of 2014




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                          DATED THIS THE 24TH DAY OF FEBRUARY 2023
                                           PRESENT
                            THE HON'BLE MR. JUSTICE ALOK ARADHE
                                              AND
                          THE HON'BLE MR. JUSTICE VIJAYKUMAR A PATIL
                               WRIT APPEAL NO.920 OF 2014 (LR)
                   BETWEEN:

                   1.   K. SADANANDA BHAT
                        S/O K. KRISHNA BHAT
                        AGED ABOUT 64 YEARS
Digitally signed
by RUPA V               R/O. KUTPADY VILLAGE
Location: High          UDUPI TALUK-574134
Court of                REPRESENTED BY HIS GPA HOLDER
Karnataka               K. RAGHAVENDRA BHAT.

                                                             ...APPELLANT
                   (BY SRI. M.S. VENUGOPAL, ADV.,)
                   AND:

                   1.   SMT. AKKU POOJARTHY
                        W/O LATE KARIYA POOJARY
                        SINCE DEAD BY LRS.

                   a)   SMT. THUKRI POOJARTHY
                        D/O AKKU POOJARTHY
                        AGED ABOUT 63 YEARS.

                   b)   SANJEEVA POOJARY
                        S/O AKKU POOJARTHY
                        AGED 61 YEARS.

                   c)   SHEENA POOJARY
                        S/O AKKU POOJARTHY
                        AGED 58 YEARS.
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                                        WA No.920 of 2014




4.   SMT. GIRIJA POOJARTHY
     D/O LATE KARIYA POOJARY
     AGED 55 YEARS.

     RESPONDENTS 1(a) TO (c) AND
     RESPONDENT NO.2 ARE
     RESIDING AT KUTPADY VILLAGE
     NEAR BALIPADE, P.O. KUTPADY
     UDUPI TALUK AND DISTRICT-574134.

3.   THE LAND TRIBUNAL
     UDUPI TALUK, UDUPI
     REP. BY ITS SECRETARY-576101.

4.   STATE OF KARNATAKA
     BY ITS SECRETARY TO DEPARTMENT
     OF REVENUE
     GOVERNMENT OF KARNATAKA
     M.S. BUILDING, BANGALORE-01.

                                           ...RESPONDENTS


(BY SRI. A. ANANDA SHETTY, ADV., FOR R1(a-c) & R2
   SMT. NAMITHA MAHESH B.G. AGA FOR R2 & R3
V/O DTD:5/4/2016 NOTICE TO R3 IS H/S
        R3 & R4 SERVED)


      THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER
PASSED IN THE WRIT PETITION NO.32937/2002 DATED
7/2/2014.

      THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:
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                                            WA No.920 of 2014




                       JUDGMENT

This intra court appeal emanates from an order

dated 07.04.2014 passed by Learned Single Judge, by

which writ petition preferred by the appellant has been

allowed and the matter is remitted to the land tribunal

for fresh consideration. The appellant is aggrieved by

the order passed by the Learned Single Judge only to

the extent it directs remand of the matter to the land

tribunal (hereinafter referred to as 'the tribunal' for

short).

2. Facts giving rise to filing of this appeal briefly

stated are that father of the appellant viz., late

Sri.Krishna Bhat was owner of lands bearing

Sy.No.50/11, Sy.No.50/12, Sy.No.50/13B, Sy.No.50/26

and Sy.No.50/27 measuring 19 cents, 44 cents, 37

cents, 09 cents and 09 cents respectively situate at

Village Kuthpady, Taluk and District Udupi. On death of

Sri.Krishna Bhat, the aforesaid lands devolved on his

son viz., the appellant. The original respondent No.1

WA No.920 of 2014

Smt.Akku Poojarthy and respondent No.2 Smt.Girija

Poojarthy filed an application on 17.30.1978 in Form

No.7 under provisions of Karnataka Land Reforms Act,

1961 (hereinafter referred to as 'the Act' for short) for

grant of occupancy rights. The tenancy was claimed in

respect of land bearing Sy.No.50/11, 50/12, 50/13B,

50/26 and 50/27 measuring 19 cents, 44 cents, 37

cents, 9 cents respectively.

3. The tribunal by an order dated 23.10.1981

granted occupancy rights in favour of respondents No.1

and 2 in respect of all the lands in respect of which a

claim was made in the application. The said order was

challenged by the appellant in a writ petition viz.,

W.P.No.31234/1981, which was allowed by an order

dated 05.09.1984 and the matter was remitted to the

tribunal for fresh disposal.

WA No.920 of 2014

4. After the remand, an enquiry was held by the

tribunal and by an order dated 28.10.1988, the tribunal

granted occupancy rights to respondents No.1 and 2 in

respect of land bearing Sy.No.50/11, 50/12 and 50/26

and the claim in respect of other lands was rejected. The

appellant and respondents No.1 and 2 challenged the

order passed by the tribunal in W.P.No.5641/1996 and

W.P.No.5119/1995 respectively. The aforesaid writ

petitions were disposed of by an order dated 20.02.2001

and the matter was again remitted to the tribunal for

fresh disposal in accordance with law. The tribunal

again after holding an enquiry, by an order dated

11.07.2002 granted occupancy rights to respondents

No.1 and 2 in respect of all the lands for which claim

was made.

5. The order passed by the tribunal was

challenged by the appellant in W.P.No.32937/2002. The

Learned Single Judge by an order dated 11.12.2007

WA No.920 of 2014

allowed the writ petition and ejected Form No.7 filed by

respondents No.1 and 2 on the ground that there are no

documents to establish the tenancy. The aforesaid order

passed by Learned Single Judge was challenged by legal

representatives of respondents No.1 and 2 before the

division bench in W.A.No.361/2008. A division bench of

this court by an order dated 07.08.2012 allowed the

writ appeal and remitted the matter to the Learned

Single Judge to consider the writ petition afresh. A

division bench of this court while deciding the aforesaid

appeal, recorded certain findings adverse to the interest

of the appellant.

6. The appellant thereupon challenged the

aforesaid order before Hon'ble Supreme Court in Special

Leave Petition (Civil) No.5789/2013. The aforesaid

Special Leave Petition was dismissed by Hon'ble

Supreme Court with a clarification that the Learned

Single Judge decide the matter on merits. The Learned

WA No.920 of 2014

Single Judge by an order dated 07.02.2014 allowed the

writ petition filed by the appellant and quashed the

order dated 11.07.2002 of the tribunal granting

occupancy rights in favour of respondents No.1 and 2.

However, the Learned Single Judge in order to give an

opportunity to the parties to produce the relevant

evidence, once again, remitted the matter. The

appellant feeling aggrieved by the impugned order

insofar as it contains a direction to remand the matter

has filed this appeal.

7. Learned counsel for the appellant submitted

that the burden was on respondents No.1 and 2 to

prove the tenancy and they have failed to discharge the

aforesaid burden. It is submitted that the dispute

between the parties is pending for past more than three

decades and in the absence of any cogent and

convincing reasons assigned by the respondents No.1

and 2, the Learned Single Judge ought not to have

WA No.920 of 2014

remitted the matter to the tribunal. It is contended that

no additional evidence was produced by the

respondents No.1 and 2 to justify the order of remand.

In support of aforesaid submissions, reliance has been

placed on decision of Hon'ble Supreme Court in HEINZ

INDIA (P.) LTD. VS. STATE OF U.P.', (2012) 5 SCC 443

as well as division bench decision of this court in

'K.A.SUBBA RAO (DECEASED BY LRS) VS.

BALARAMEGOWDA AND OTHERS', (1999) 1

KAR.L.J.206 (DB) and in 'SMT.NANJAMMA AND

OTHERS VS. STATE OF KARNATAKA AND OTHERS',

ILR 2002 KAR 2795.

8. On the other hand, Learned counsel for

respondents No.1 and 2 submitted that the relationship

of landlord and tenant exists between the parties and

Learned Single Judge in the facts of the case has rightly

directed remand of the matter to enable the parties to

adduce evidence before the tribunal.

WA No.920 of 2014

9. We have considered the submissions made on

both sides and have perused the record. It is trite law

that power of remand is not to be lightly exercised as it

gives protracted life to a litigation. A necessity of remand

may arise if a party is not given a proper opportunity to

adduce evidence.

10. In the instant case, first order was passed by

the tribunal on 23.10.1981, which was set aside and the

matter was remitted to the tribunal. Thereupon the

tribunal passed another order dated 28.10.1988. The

said order was again set aside and the matter was

remitted to the tribunal. The tribunal thereupon again

passed an order on 11.07.2002. It is pertinent to note

that the proceedings between the parties are pending for

past more than three decades. It is neither the case of

the respondents No.1 and 2 that they have been

deprived of an opportunity to adduce evidence, nor the

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WA No.920 of 2014

respondents No.1 and 2 had tendered any additional

evidence to justify the order of remand.

11. The respondents No.1 and 2 have been given

enough opportunity to adduce evidence. The Learned

Single Judge on the basis of the evidence / material

produced by respondents No.1 and 2 in para 25 to 31,

has analyzed the evidence and has found that the

relationship between the parties viz., as landlord and

tenant is not proved. The Learned Single Judge could

not have remitted the matter only with a view to give

opportunity to the parties. The order of remand

therefore, in the facts and circumstances of the case is

not justified.

12. The Learned Single Judge in para 25 has held

that in order to establish the possession in respect of

land in question, the respondents No.1 and 2 have not

produced any RTC for the relevant period. The copies of

the RTC produced pertain to year 1967-68, whereas, the

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WA No.920 of 2014

issue which needs to be ascertained is whether

respondents No.1 and 2 were in possession of the land

in question as on 01.03.1974. The Learned Single Judge

has further held that rent bond is not a Chalgeni

Tenancy Agreement. It has further been held that sport

inspection reports dated 28.02.1981 and 060.06.1988

do not throw any light on the factum of possession of

respondents No.1 and 2 in respect of land in question. It

has also been noticed that the appellant has produced

neither produced any lease deed nor any levy register

extracts. The Learned Single Judge therefore, rightly

quashed the order dated 11.07.2002 passed by the

tribunal.

13. However, for the aforementioned reasons,

Learned Single Judge ought not to have remitted the

matter to the tribunal. The order passed by Learned

Single Judge dated 07.02.2014 insofar as it contains a

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WA No.920 of 2014

direction to remand the matter to the tribunal is set

aside.

In the result, appeal is allowed.

Sd/-

JUDGE

Sd/-

JUDGE

SS