Karnataka High Court

Sri. Mageppa S/O Basalingappa ... vs Sri. Balappa Gaibi Karigar on 5 July, 2023

Bench: S.Vishwajith Shetty

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                                                             NC: 2023:KHC-D:6686
                                                                WP No. 66107 of 2011
                                                           C/W WP No. 106448 of 2016



                           IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                   DATED THIS THE 5TH DAY OF JULY, 2023

                                                   BEFORE

                               THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY

                                  WRIT PETITION NO. 66107 OF 2011 (LR)
                                                 C/W
                                   WRIT PETITION NO. 106448 OF 2016

                          IN W.P. NO.66107/2011:

                          BETWEEN:

                          SRI. MAGEPPA
                          S/O BASALINGAPPA TAKKANAVAR
                          AGE: 41 YEARS, OCC: BUSINESS,
                          R/O BADABYAKUD,
                          TQ. RAIBAG, DIST. BELGAUM
                                                                       ...PETITIONER
                          (BY SRI. SRINAND A. PACHHAPURE, ADVOCATE)

                          AND:
          Digitally
          signed by
          RAKESH S             SRI. BALAPPA GAIBI KARIGAR,
          HARIHAR
RAKESH    Location:            SINCE DECEASED BY LRS,
S         High Court of
          Karnataka,
HARIHAR   Dharwad
          Date:           1.   SATEPPA BALAPPA KARIGAR,
          2023.07.11
          11:15:58             AGE: MAJOR, OCC: HOUSEHOLD,
          +0530
                               R/O BADABYAKUD, TQ. RAIBAG,
                               DIST. BELGAUM

                          2.   YANKAVVA BALAPPA KARIGAR,
                               AGE: MAJOR, OCC: AGRICULTURE,
                               R/O BADABYAKUD, TQ. RAIBAG,
                               DIST. BELGAUM

                          3.   BAGAVVA SIDDAPPA BAGI,
                               AGE: MAJOR, OCC: AGRICULTURE,
                               R/O BADABYAKUD, TQ. RAIBAG,
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                                     NC: 2023:KHC-D:6686
                                        WP No. 66107 of 2011
                                   C/W WP No. 106448 of 2016



     DIST. BELGAUM

4.   LAKKAVVA SATTEPPA PUJARI,
     AGE: MAJOR, OCC: HOUSEHOLD WORK,
     R/O BADABYAKUD, TQ. RAIBAG,
     DIST. BELGAUM

5.   BASAPPA BALAPPA KARIGAR,
     AGE: MAJOR, OCC: AGRICULTURE,
     R/O BADABYAKUD, TQ. RAIBAG,
     DIST. BELGAUM

     MADHUKAR VIRUPAKSHI DESHPANDE,
     SINCE DECEASED BY LRS,

6.   GOJU @ SAMEER MADHUKAR DESHPANDE, AGE:
     MAJOR, OCC: BUSINESS,
     R/O BRAHAMANPURI, TQ. MIRAJ, DIST. SANGLI

     RAMAPPA SATYAPPA KARIGAR,
     SINCE DECEASED BY LRS,

7.   SRI. KAREPPA RAMAPPA KARIGAR,
     AGE: MAJOR, OCC: BUSINESS,
     R/O BADABYAKUD, TQ. RAIBAG,
     DIST. BELGAUM

8.   THE LAND TRIBUNAL,
     RAIBAG, DIST. BELGAUM

9.   BHARMAPPA SHIVARAI PUJERI,
     AGE: 40 YEARS, OCC. AGRICULTURE,
     R/O. BADABYAKUD, TQ. RAIBAG,
     DIST. BELAGAVI.
                                        ...RESPONDENTS
(BY SRI. MAHESH WODEYAR, ADV. FOR R1, R3 TO R5,
SRI.VINAYAK S. KULKARNI, AGA FOR R8,
R6, R7 & R9 ARE SERVED,
R1, R3, R4 & R5 ARE TREATED AS
LRS. OF DECEASED R2)
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                                   NC: 2023:KHC-D:6686
                                      WP No. 66107 of 2011
                                 C/W WP No. 106448 of 2016



     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET
ASIDE THE ORDER DATED 04/08/2011 PASSED BY THE LAND
TRIBUNAL, RAIBAG AT ANNEXURE-A, BY ALLOWING THE
IMPLEADING APPLICATION OF THE PETITIONER AND GRANT
ANY OTHER RELIEF AS DEEMED FIT.

IN W.P. NO.106448/2016:

BETWEEN:

     SRI.MADHUKAR VIRUPAXI DESHPANDE
     REPRESENTED BY HIS LRS

1.   SRI GOJU @ SAMEER
     MADHUKAR DESHPANDE
     AGE: 39 YEARS, OCCUPATION:
     BRAHAMAN PURI, MIRAJ
     MAHARASTRA
                                             ...PETITIONER
(BY SRI. K.S.PATIL, ADVOCATE)

AND:

     BALAPPA GAIBI KARIGAR
     REPRESENTED BY HIS LRS

1.   SATTYAPPA BALAPPA KARIGAR,
     AGE: MAJOR, OCC: AGRICULTURE

2.   YANKAVVA BALAPPA KARIGAR,
     (DEAD)

3.   BHAGAVVA
     SHIDDAPPA BAGI
     AGE: MAJOR,
     OCC: HOUSEHOLD

4.   LAKKAVVA
     SATTYAPPA PUJERI
     AGE: MAJOR,
     OCC: HOUSEHOLD
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                                       WP No. 66107 of 2011
                                  C/W WP No. 106448 of 2016




5.   BASAPPA BALAPPA KARIGAR,
     AGE: MAJOR, OCC: AGRICULTURE

     ALL ARE RESIDENTS OF
     BADABYKUD VILLAGE,
     TQ: RAIBAG,
     DIST: BELAGAVI.

     RAMAPPA SATTEPPA KARIGAR
     BY HIS LR

6.   KAREPPA RAMAPPA KARIGAR,
     AGE: MAJOR, OCC: AGRICULTURE
     RESIDENT OF BADABYKUD VILLAGE,
     TQ: RAIBAG, DIST: BELAGAVI

7.   MAGEPPA BASALINGAPPA THAKKANNAVAR
     AGE: 46 YEARS, OCC: AGRICULTURE
     RESIDENT OF BADABYKUD VILLAGE,
     TQ: RAIBAG, DIST: BELAGAVI

8.   THE CHAIRMAN
     LAND TRIBUNAL
     RAIBAG, DIST: BELAGAVI.
                                        ...RESPONDENTS
(BY SRI. MAHESH WODEYAR, ADV. FOR R1, R3 TO R5,
SRI.VINAYAK S. KULKARNI, AGA FOR R8,
R7 SERVED, NOTICE TO R6 DISPENSED WITH,
R1 & R5 ARE TREATED AS LRS. OF DECEASED R2)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE ORDER DATED:04.08.2011, PASSED BY THE LAND
TRIBUNAL      RESPONDENT    NO.8,  RAIBAG    BEARING
NO.T.N.C.S.R.    NO.142/BADABYAKOD   PRODUCED     AS
ANNEXURE-E.

    THESE WRIT PETITIONS, COMING ON FOR FURTHER
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
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                                        NC: 2023:KHC-D:6686
                                          WP No. 66107 of 2011
                                     C/W WP No. 106448 of 2016



                             ORDER

1. These two writ petitions are filed challenging

the order, dated 04.08.2011, passed by the respondent -

Land Tribunal in proceeding bearing TNC : SR : 142 /

BADABYAKUD granting occupancy rights of the land

bearing R.S. No.88, measuring 20 acres 4 guntas, situated

at Badbyakud Village, Raibag Taluk, Belagavi District

(hereinafter referred to as "the land in question") in favour

of the legal representatives of the 1st respondent / original

claimant and therefore, the writ petitions are heard

together and disposed off, by this common order.

2. Heard the learned counsel appearing for the

parties.

3. Facts leading to filing of these two writ

petitions, as revealed from the records, narrated briefly

are, the land in question originally belonged to one

Sri.Gopalrao Deshpande. After his death, his son Virupaxi

Deshpande had succeeded to the said property. Virupaxi

Deshpande had died leaving behind his widow - Indira

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Deshpande and two sons namely Madhukar Deshpande

and Sharad Deshpande. The land in question is an

agricultural land and one Sri.Satteppa Karigar, the

grandfather of the claimant was the protected tenant of

this land, which is evident from the revenue records of the

land in question. After the death of Satteppa Karigar in the

year 1965, the names of his legal representatives was

entered in the revenue records of the land in question.

Satteppa Karigar had died in the year 1965 leaving behind

his three sons namely Venkappa, Gaibu and Ramappa.

4. On 16.11.1971, Sharad Deshpande had

executed a sale deed in favour of Ramappa Satteppa

Karigar in respect of the land in question and on the very

same day, Ramappa Satteppa Karigar and his son Kareppa

Ramappa Karigar had executed another sale deed in

favour of Indira Deshpande in respect of the land in

question. Pursuant to the said sale deed made in favour of

Indira Deshpande, the revenue records in respect of the

land in question were mutated in her name and the

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mutation orders were upheld by the Deputy

Commissioner. When the matter stood thus, after coming

into force of the Act No.1 of 1974, respondent No.1 -

Balappa Gaibu Karigar son of Gaibu Karigar had filed Form

No.7 claiming occupancy rights of the land in question and

showed the name of Madhukar Deshapande as the

landlord of the land in question. The Tribunal considering

the said claim had initially granted occupancy rights of the

land in question in favour of the claimant on 11.01.1982.

The said order was questioned by Madhukar Deshpande

before this Court in W.P. No.40522/1982 and this Court

vide order dated 19.11.1984 had quashed the order

passed by the Tribunal and had remitted the matter for

fresh consideration.

5. When the matter was pending consideration

before the Tribunal, it appears that the 6th respondent,

who is the son of Madhukar Deshpande had entered into

an agreement of sale with the petitioner in W.P.

No.66107/2011 for sale of the land in question in his

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favour. Based on the said agreement of sale, O.S.

No.91/2005 was filed by the petitioner against the 6 th

respondent herein on 19.03.2005, seeking a decree of

specific performance and the said suit was decreed on the

basis of the compromise petition filed by the parties to the

said suit. On the basis of decree passed in O.S.

No.91/2005, the petitioner appears to have filed an

application seeking his impleadment in the proceeding,

which were pending before the Land Tribunal. The Tribunal

vide the order impugned has rejected the said application

and also has proceeded to grant the occupancy rights of

the land in question in favour of the legal representatives

of the 1st respondent / original claimant. Being aggrieved

by the same, W.P. No.66107/2011 is filed by the

impleading applicants before the Land Tribunal and W.P.

No.106448/2016 is filed by Madhukar Deshpande

represented by his son Goju @ Sameer Madhukar

Deshpande, who is the 6th respondent in W.P.

No.66107/2011.

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6. Learned counsel appearing for the petitioner in

W.P. No.66107/2011 submits that in view of the sale deed

executed in the year 1971, the claimants have lost their

status as tenants and therefore, the Form No.7 could not

have been maintained by them. She submits that the land

in question cannot be considered as a tenanted land and

therefore, they do not vest in the State under Section 44

of the Act of 1961. The Land Tribunal had failed to

appreciate this aspect of the matter and had erred in

granting the occupancy rights of the land in question in

favour of the legal representatives of the original claimant.

In support of her arguments, reliance has been placed on

the judgment reported in ILR 1986 KAR 3163 in the

case of Laxminarayana Venkataraman Hegde vs.

State of Karnataka. Learned counsel for the petitioner in

W.P. No.106448/2016 has adopted aforesaid arguments.

7. Per contra, learned counsel appearing for the

legal representatives of the original claimant submits that

the landlord Madhukar Deshpande and his son Goju @

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Sameer Madhukar Deshpande had appeared before the

Tribunal and consented for grant of occupancy rights in

favour of the claimant. He refers to Annexure - R7

produced alongwith statement of objections and submits

that the landlords have also admitted that the sale deeds

executed in the year 1971 are sham documents. He

submits that the compromise decree passed in the suit

O.S. No.91/2005 filed by the petitioner in W.P.

No.66107/2011 was declared as null and void in the suit

O.S. No.75/2012 filed by the contesting private

respondents. He submits that the original tenant is

undisputedly a protected tenant under the provisions of

the Bombay Tenancy and Agricultural Lands Act, 1948

(hereinafter referred to as "Act of 1948"). He refers to

Sections 43 and 64 of the Act of 1948 and submits that

there is a bar for sale of the tenanted lands without prior

permission. He also refers to Section 142 of the Karnataka

Land Reforms Act, 1961 and submits that the aforesaid

provisions of the Act of 1948, continue to operate even

after the Act of 1961 coming into force. In support of his

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submission, he has placed reliance on the judgment of this

Court in the case of Suresh S. Rao and others vs. Land

Tribunal, Belgaum, Represented by its Chairman at

Belgaum and others reported in ILR 2007 KAR 2409.

8. Learned AGA has also argued in support of the

impugned order passed by the Tribunal and has prayed to

dismiss the writ petitions.

9. The material on record would go to show that

the original tenant of the land in question namely Satteppa

Karigar was a protected tenant and in the revenue records

of the land in question, he has been referred to as a

protected tenant right in the year 1954 itself. After the Act

of 1948 coming into force, as provided under Sections 43

and 64 of the said Act, there is a bar for alienation of the

tenanted lands either by the tenant or by the landlord

without prior permission of the competent authority.

Section 64(8) also provides that any such sale made in

contravention of the provision is invalid. Section 142 of the

Karnataka Land Reforms Act, 1961 provides that the

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aforesaid provisions of law of the Act of 1948 continued to

operate even after the Act of 1961 came into force.

10. In the present case, the landlord namely

Madhukar Deshpande had executed a sale deed in favour

of Ramappa S/o. Satteppa on 16.11.1971 and on the very

same day, Ramappa and his son Kareppa had executed

another sale deed in favour of Indira Deshpande, mother

of Madhukar Deshpande. It is not the case of the

petitioners that the said sale deeds were executed in

compliance with the requirement of Sections 43 and 64 of

the Act of 1948. Under the circumstances, it is to be held

that the said sale deeds were not valid. Therefore, the

judgment in the case of Laxminarayana Venkataraman

Hegde vs. State of Karnataka reported in ILR 1986

KAR 3163 on which reliance has been placed by the

advocate for the petitioners would not be applicable to the

facts and circumstances of the present case.

11. The material on record would go to show that

the statement of the landlord namely Goju @ Sameer

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Madhukar Deshpande was filed in the form of an affidavit

before the Land Tribunal on 20.01.2005 and in the said

statement, the landlord has clearly stated that the

claimant and his legal representatives were in possession

and cultivation of the land bearing R.S. No.88 and they

have no objection for granting occupancy rights of the land

in question in favour of the claimant. It is also stated in

the said statement that the sale deeds executed on

24.11.1971 are sham documents and the landlords do not

claim any rights under the said document. It is based on

the said statement and also considering the revenue

records of the land in question and other oral and

documentary evidence available on record, the Tribunal

has proceeded to grant the occupancy rights of the land in

question in favour of the claimant and his legal

representatives. The Co-ordinate Bench of this Court in the

judgment reported in ILR 2007 KAR 2409 in the case of

Suresh S. Rao and others vs. Land Tribunal Belgaum,

Represented by its Chairman at Belgaum and others

at para 10 has observed as follows:

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"10. It may be true that the revenue records do not show the name of the appellant as a tenant, but such entry by itself is not conclusive. On the other hand the owner himself having admitted the possession and cultivation of the applicant on the appointed day and earlier to that and therefore the relationship being that of a landlord and tenant; that relationship having not been terminated in any manner known to law and having continued, the Tribunal is fully justified in conferring occupancy rights in favour of the tenant / 3rd respondent. No interference is warranted."

12. In the case on hand, in addition to the

statement of the landlord, the other material available on

record would go to show that the land in question was

tenanted land and the entry in the revenue records

throughout stood in the name of the tenants.

13. Under the circumstances, I do not find any

illegality in the impugned order passed by the Land

Tribunal granting occupancy rights of the land in question

in favour of the claimant and his legal representatives.

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