Karnataka High Court
Smt Kalavathi vs The State Of Karnataka on 2 January, 2024
Author: R Devdas
Bench: R Devdas
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NC: 2024:KHC:109
WP No. 3347 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE R DEVDAS
WRIT PETITION NO. 3347 OF 2017 (LR)
BETWEEN:
1. SMT KALAVATHI
AGED ABOUT 70 YEARS,
W/O LATE SRI MADHAVA KINI
DODDERANGADI,
POST KUKKUJE VILLAGE 574103
KARKALA TALUK,
UDUPI DISTRICT
2. SMT SHASHIKALA
AGED ABOUT 45 YEARS,
D/O LATE SRI MADHAVA KINI
DODDERANGADI,
Digitally signed by POST KUKKUJE VILLAGE 574103
JUANITA KARKALA TALUK,
THEJESWINI
Location: HIGH UDUPI DISTRICT
COURT OF
KARNATAKA ...PETITIONERS
(BY SRI. CHANDRANATH ARIGA K., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY THE SECRETARY
DEPARTMENT OF REVENUE
VIKASA SOUDHA
DR AMBEDKAR ROAD
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WP No. 3347 of 2017
BANGALORE 560001
2. THE CHAIRMAN
LAND TRIBUNAL, KARKALA
KARKALA 574104
UDUPI DISTRICT
3. SRI JAGADISH SHETTY
S/O LATE SRI NARANGA SHETTY
PATHE HOUSE
POST KUKKUJE VILLAGE 574103
KARKALA TALUK,
UDUPI DISTRICT
...RESPONDENTS
(BY SRI. SESHU V, HCGP FOR R1 & R2
SRI. AMRUTHESH C., ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
THE RECORDS IN TRL.NO.645 & 651/77-78 ON THE FILE OF
THE R-2 AND QUASH THE ORDER DTD.27.10.2016 PASSED BY
THE IV LAND TRIBUNAL, KARKALA TO THE EXTENT REJECTING
THE CLAIM OF THE PETITIONER VIDE ANNEX-C AND ETC.,
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
R.DEVDAS J., (ORAL):
The petitioners being the legal representatives of Sri
Madhava Kini, who had filed Form No.7 seeking grant of
Occupancy Rights before the Land Tribunal, Karkala, are
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before this Court, aggrieved of the impugned order dated
27.10.2016 passed by the Land Tribunal, Karkala.
2. It is not disputed that earlier the Land Tribunal
had passed an order on 16.09.1981 and 28.08.1981
conferring occupancy rights in favour of Sri Madhava Kini
in respect of Sy.No.32/3A measuring 25 cents, Sy.No.88
measuring 23 cents and Sy.No.184/4 measuring 51 cents,
while occupancy rights were conferred in favour of another
rival claimant Sri Ramachandra Nayak in respect of
Sy.No.88 measuring 34 cents, Sy.No.142/2 measuring 1
acre and 90 cents, Sy.No.142/3 measuring 6 cents and
Sy.No.184/4 measuring 59 cents. However, this Court by
order dated 01.02.1984, in W.P.Nos.23450 and
23451/1982 remitted the matter back to the Land Tribunal
for fresh disposal while setting aside the impugned orders
therein. On reconsideration, the impugned order was
passed by the Land Tribunal, Karkala Taluk on
27.10.2016.
3. Learned Counsel for the petitioners submits that it
is clear from the impugned orders that the Land Tribunal is
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of the opinion that since Sri Madhava Kini, the original
applicant had not mentioned Sy.Nos.88 measuring 23
cents and Sy.No.184/4 measuring 51 cents in Form No.7,
such claim made on behalf of Sri Madhava Kini could not
be considered. The learned Counsel would submit that if
the Land Tribunal had earlier found favour with the
applicant and conferred occupancy rights even in respect
of Sy.No.88 and Sy.No.184/4, on remand the Land
Tribunal could not have arrived at such a conclusion.
Moreover, provision was made in Section 48-A of the
Karnataka Land Reforms Act, 1961, by incorporating two
provisos after sub-section (6) to enable the applicant to
seek rectification or correction of the orders of the
Tribunal. Learned Counsel would draw the attention of
this Court to a recent decision of the Hon'ble Supreme
Court in the case of Nadakerappa Vs. Pillamma, 2022
SCC OnLine SC 387 and submits that the Hon'ble Supreme
Court has clearly held that in view of the second proviso, it
was permissible for the tenant to make an application
seeking correction of the extent of land in the order of the
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Land Tribunal. The second proviso was inserted on
20.10.1995 and the tenant was permitted to seek
correction of the order of the Land Tribunal. In that case,
such a memo seeking correction was filed in the year 2002
and this Court had held that since the application was filed
after a delay of about 20 years, such amendment could
not be allowed. However, the Hon'ble Supreme Court held
that the learned Single Judge was not justified in quashing
the notice. The learned Counsel has in fact taken support
from another decision which was cited by the learned
Counsel appearing for respondent No.3 in the case of
Honnamma and Others Vs. Nanjundaiah in Appeal
(Civil) No.5312-5318/2001 dated 31.03.2008 wherein the
Hon'ble Supreme Court has held that the amendment
application filed consequent to the second proviso could
not be held as one filed beyond limitation, since the
application would date back to the date when Form No.7
was filed. The learned Counsel would further submit that
after the matter was remanded by this Court in the year
1984, the applicant filed a written statement on
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17.02.1994 clearly stating and including Sy.No.88
measuring 23 cents and Sy.No.184/4 measuring 51 cents,
which in fact was allowed and occupancy rights were
earlier conferred by the Land Tribunal. In that view of the
matter, learned Counsel would submit that the impugned
order cannot be sustained since it proceeds on a footing
that the applicant had not mentioned Sy.Nos.88 and 184/4
in Form No.7.
4. Insofar as Sy.No.32/3A is concerned, learned
Counsel would submit that the finding of the Land Tribunal
is also as if the said survey number was not mentioned in
Form No.7, while it is clear from the records that
Sy.No.32/3A has been mentioned in Form No.7.
5. On the other hand, the learned Counsel for
respondent No.3 would submit that the finding of the Land
Tribunal insofar as Sy.No.32/3A is concerned, is not the
same as the finding insofar as the other two survey
numbers are concerned. Learned Counsel would submit
that the Tribunal has rejected the application of Sri
Madhava Kini on the ground that the record of rights
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would clearly show the name of the landlord alone and not
the name of the tenant as claimed in the application. The
learned Counsel would also submit that there is a clear
finding of the Land Tribunal that in the gheni chit the
name of Sri Madhava Kini is not found in respect of all the
three survey numbers.
6. Having heard the learned Counsels and on
perusing the petition papers, this Court finds that the Land
Tribunal has not bestowed its attention to the relevant
provisions of law. It is necessary to notice that in the
earlier order of the Land Tribunal, if the Land Tribunal
found favour with Sri Madhava Kini, and conferred
occupancy rights in respect of all the three survey
numbers, there was no reason why the Tribunal had to
proceed on a footing that the two survey numbers i.e.,
Sy.No.88 and 184/4 were not mentioned in Form No.7.
Regard being had to the two judgments cited at the Bar
and the ruling of the Hon'ble Supreme Court that the
amended provisions in the form of the second proviso to
sub-section (6) of section 48-A would enable the tenant to
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seek amendment and inclusion of survey numbers which
were left out initially, the matter requires reconsideration.
7. In the case of Honnamma (supra) such an
amendment application was filed consequent to the
addition of the second proviso, seeking inclusion of certain
survey numbers that were left out and the Hon'ble
Supreme Court has held that the High Court erred on the
question of limitation. In paragraph-8, it has been held as
follows:
"A perusal of the first and the amended application
would reveal that as Survey Nos. 64, 81, 75, 75, 13
did not figure in the original application, the proposed
amendment was rejected and that order has been
maintained even by the High Court. The claim
pertaining to Survey No. 12 in Village Mylanahalli too
has also been rejected for the same reasons. The
amendments have however been allowed with respect
to the other survey numbers and also with respect to
a change in the name of the village(s) on the
understanding that a mere misdescription of the
property was to be rectified by amendment. To our
mind therefore, a mere misdescription while
identifying the land in Form 7 as originally filed would
not be hit by the embargo with respect to the last
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date of the filing of Form 7 i.e. on 30-6-1979. The
judgment referred to by the High Court is based on a
different set of facts inasmuch as certain items which
had not been included in the original plaint were
sought to be included by amendment, a proposal
which the Court held could not be justified. The
observations in Jai Jai Ram Manohar Lal v. National
Building Material Supply [(1969) 1 SCC 869 : AIR
1969 SC 1267] are meaningful. It has been observed
that a party cannot be refused amendment in a case
of a misdescription of property as the purpose of
amendment is to ensure that the real issues are
addressed and that in such a case no question of
limitation would arise and the amended plaint must
be deemed to have been instituted on the date on
which the original plaint had been filed. We are,
therefore, of the opinion that the finding of the High
Court on the question of limitation is erroneous."
8. Therefore, on remand, when the matter was
reconsidered and in the written statement of the applicant
it was clearly mentioned that two survey numbers which
were not mentioned initially in Form No.7 were also
claimed by the applicant, the Tribunal was required to
consider such a claim made by the applicant.
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9. Insofar as Sy.No.32/3A is concerned, this Court
does not find any reasoning of the Tribunal for sustaining
the impugned order. In the impugned order it is merely
stated that the name of the applicant was not found in the
RTC, while the name of the landlord alone was found in
the RTC. In the considered opinion of this Court, this is
not the only way to find out about the truth and test the
veracity of the claim made by the applicant. There are
many other ways to find out as to whether a person was a
tenant under the landlord and whether his claim could be
considered having regard to the express provisions made
in the statute. Such a reasoning not forthcoming from the
impugned order, this Court is of the considered opinion
that the impugned order cannot be sustained. It is also
noticeable that as regards the nature of the lands, there
are contradictory opinion found in the impugned order.
10. However, at this juncture learned Counsel for
respondent No.3 would submit that insofar as Sri
Ramachandra Nayak is concerned, respondent No.3 has
amicably settled the matter with the said party and if
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there is any rival claim between the petitioners and Sri
Ramachandra Nayak, since Sri Ramachandra Nayak has
not been made a party to these proceedings, no findings
can be given insofar as the conferment of occupancy rights
in favour of Ramachandra Nayak is concerned.
11. For the reasons stated above, this Court
proceeds to pass the following:
ORDER
i) The writ petition is partly allowed.
ii) The impugned order insofar as Sri Madhava Kini is
concerned, is quashed and set aside.
iii) The matter is once again remitted back to the
Land Tribunal, Karkala, for reconsideration having
regard to the observations made by this Court in
respect of all the three survey numbers.
All contentions of the parties are kept open.
Ordered accordingly.
Sd/-
JUDGE
JT/-
CT: JL
