Karnataka High Court
Smt Eliza Lasrado vs Mr Vincent Castelino on 26 July, 2024
1
WA NO. 2540/2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE V KAMESWAR RAO
AND
THE HON'BLE MR JUSTICE C M JOSHI
WRIT APPEAL NO. 2540 OF 2019 (LR)
BETWEEN:
1. SMT. ELIZA LASRADO,
MAJOR,
D/O LUCY CASTELINO,
BEHIND ST. DOMNIC CHURCH,
KODIKAL, URVA STORES,
MANGALORE-575 006.
2. MRS. FLORA NAMBIAR,
MAJOR,
D/O EMMI CASTELINO,
BEHIND ST. DOMNIC CHURCH,
KODIKAL, URVA STORES,
MANGALORE-575 006.
...APPELLANTS
(BY SRI SHRIHARI K, ADVOCATE)
AND:
1. MR. VINCENT CASTELINO,
S/O LATE VICTOR CASTELINO,
AGED ABOUT 64 YEARS,
KUDUPU MUNDREL HOUSE,
KUDUPU VILLAGE,
MANGALORE TALUK-575 006.
2
WA NO. 2540/2019
2. THE STATE OF KARNATAKA,
DEPARTMENT OF REVENUE,
M.S.BUILDING,
BANGALORE-560 001.
REP. BY ITS SECRETARY.
3. THE LAND TRIBUNAL,
MANGALORE TALUK,
MANGALORE, D.K.-575 001.
REP. BY ITS CHAIRMAN.
...RESPONDENTS
(BY SRI PUNDIKAI ISHWARA BHAT, ADVOCATE FOR R-1;
SRI DEVARAJ.C.H, GOVERNMENT ADVOCATE FOR R-2;
VIDE ORDER DATED 08.08.2019 R-3 IS TREATED AS A
FORMAL PARTY)
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED
11/06/2019 PASSED IN WP NOS.49909-49910/2012.
THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED
ON 25.06.2024, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR JUSTICE V KAMESWAR RAO
AND
THE HON'BLE MR JUSTICE C M JOSHI
CAV JUDGMENT
(PER : HON'BLE MR JUSTICE C M JOSHI)
The appellants are respondent Nos. 3 and 4 in Writ
Petition Nos.49909-49910/2012 and being aggrieved by the
order passed by the learned Single Judge in the said writ
petitions dated 11-06-2019 are before this Court.
2. Respondent No.1-Vincent Castelino happens to
be the writ petitioner.
3. The petitioner had approached this Court in Writ
petitions assailing the proceedings bearing No.LRT.875/
1978-79 and 868/1978-79. The petitioner claimed that he
is the owner of the land bearing Survey No.10/2P2
measuring 9 cents and Survey No.192/P2 measuring 11
cents situated at Kudupu village, Mangaluru Taluk. The writ
petitioner claimed that among other lands, these two lands
were purchased by his father-Victor Castelino under
registered sale deed dated 01-08-1974 from its erstwhile
owner. Thereafter, the Victor Castelino executed a Will on
31-12-1986 wherein he bequeathed Survey No.10/2P2 to
the petitioner and bequeathed the second item Survey
No.192/P2 measuring 11 cents jointly to the petitioner as
well as another son Henry John Castelino. Later, there was
a partition between the writ petitioner and his brother
Henry John Castelino on 10-08-2001 and Survey No.192/P2
came to the share of the petitioner. The petitioner
contended that his name was shown in the RTC as owner
for both the lands and there was an attempt in the year
2012 by respondent Nos.3 and 4 to enter the above said
properties on the ground that they are the occupants as per
the order passed in LRT 875/1978-79 and 868/1978-79
dated 13-10-1981by Land Tribunal. It is only thereafter
that the writ petitioner came to know about the LRT
proceedings and therefore, he approached this Court in the
writ petitions.
4. The appellants herein, who are respondent Nos.
3 and 4 before the Writ Court filed objection statements
contending that the challenge laid by the writ petitioner is
bad on the ground of delay and laches since it is filed nearly
31 years after the order of the Land Tribunal. It was
contended that the petitioner was not a party in the
proceedings contemplated under Section 44 of the
Karnataka Land reforms Act, because on the appointed date
i.e., 01-03-1974, the father of the petitioner was not the
owner of the property and therefore, the lands had vested
in the Government on 01-03-1974 itself and as such, the
petitioner is not entitled for any relief.
5. After hearing both the sides, the learned Single
Judge noticed that the Land Tribunal while dealing with the
Form No.7 filed by the appellants herein had not bestowed
its attention to the fact that the name of the writ petitioner
was appearing in the records. It is also noticed that though
the name of the father of the petitioner, i.e., Victor
Castelino was shown in the revenue records, the Tribunal
had not applied its mind to the material on record. The
learned Single Judge has also observed that the land
bearing Survey No.192 being a Punja land, it could not
have been an agricultural land and as such, the claim of
tenancy was not maintainable, and the Tribunal had not
shown any reason as to whether the Tribunal could pass an
order in LRT proceedings when the land was not used as
agricultural land. Therefore, the learned Single Judge
remanded the matters to the Tribunal to hold a fresh
enquiry and pass appropriate orders in the matter.
6. Being aggrieved by the said order passed by the
learned Single Judge, the appellants, who are respondent
Nos.3 and 4 before the learned Single Judge have
approached this Court in appeal.
7. Learned counsel appearing for the appellants
would submit that on 01-03-1974, the lands came to be
vested with the Government and at that time, the
appellants were the tenants. Therefore, the sale deed
executed by the land owner dated 01-08-1974, could not
have conveyed any title to the purchaser i.e., Victor
Castelino. He submits that the Tribunal had bestowed its
attention on the admissions by the land owner as well as
the mahazar which was prepared at the initiation of the
proceedings and therefore, the Tribunal was justified in
granting the occupancy rights to the appellants herein. He
further submitted that RTC for the year 1968-69 shows
their name and therefore, the Tribunal came to right
conclusion.
8. In support of his contentions, he placed reliance
on the judgment in the case of Pundaleekappa Vs. The
Land Tribunal, Bijapur District,1 wherein, it was held
that "merely because the claimants have become owner
subsequent to the appointed date i.e. 01-03-1974, the
tenant cannot be deprived of the valuable rights accrued to
him under the Act". He also relied on the unreported
judgment in the case of The Lord Bishop and another
Vs. The Land Tribunal Bantwal, D.K. and others2 to
contend that "writ courts have to operate on a theory of
justice that can serve as the basis of practical reasoning
and that would invariably include the ways of judging how
to reduce injustice and advance justice, rather than aiming
only at the characterization of perfectly just scenarios. A
demand for perfect justice if conceded to, would breed
injustice, inasmuch as conflicting considerations cannot be
fully resolved in any society". The above observations were
2000(4) Kar.L.J. Sh.Notes 23
WP No.1762/2005 DD 29-11-2022
made in the background that the petitioner approached the
Court after considerable delay.
9. Per contra, the learned counsel appearing for
respondent No.1/petitioner has contended that the order of
the Tribunal is not a speaking order, and it has not
bestowed its attention on the material on record. If it had
bestowed its attention on the RTC certainly, it could have
seen that the name of Victor Castelino was mentioned in
the same. He contends that the claim is only in respect of
the portion of the Survey numbers and the extent of the
lands mentioned in the order of the Land Tribunal are
different. The subject matter of the sale by the land owner
in favour of Victor Castelino was not in respect of the entire
portions of the properties, but it was only to the extent of 9
cents and 11 cents. He submits that the grounds raised by
the appellants are not sustainable in law, inasmuch as,
when the Land Tribunal took up the matter for
consideration, the name of Victor Castelino was very much
in the RTC. He points out to the observation of the learned
Single Judge, who had secured the original records and
bestowed his attention on the same. Therefore, he resisted
the appeal by relying on the judgment in the case of
Gadigeyya Gulaiah Chebbi Vs. Chandrappa
Basavanyappa Kivudanavar and another3, wherein, it
was held that
".........the order that is required to be passed by the
Tribunal is a speaking order and when the order
impugned in the said judgment was not a speaking
order and by merely stating that the claimant is a
tenant, amounts to mere subjective satisfaction of
the Tribunal. It must be objective satisfaction for
which the reasons for coming to that conclusion
must be disclosed in the order. Therefore, such
orders are open for judicial review by the Writ
Courts."
10. He also relied on the judgment in the case of
Bakilana Chinnappa Vs. Land Tribunal, Mercara Taluk
and others4, which lays down that :
ILR 1976 Karnataka 1442
1975(1) Kar.L.J. 75
"......when a claim is in respect of a portion of a
survey number the application in Form No.7 should
show the demarcation of the portion claimed therein
and the notice in Form No.9 issued to the land lord
also should demarcate the portion and the order of
the Tribunal should demarcate the portion which
has vested in the Government. Without demarcating
the portion and setting out the boundaries, grant of
occupancy rights would be violative of principles of
natural justice".
11. He also relied on the judgment in the case of
Subhakar and others Vs. The Land Tribunal, Karkala
Taluk, Karkala and others5, to contend that, the question
whether the Punja land is cultivable or not is a pure
question of fact and if it is brought under cultivation, it can
be considered as agricultural land.
12. When we peruse the records in the light of the
above contentions raised by appellants and respondent
No.1 herein, it is evident that there is no dispute that the
lands came to be vested in the Government on 01-03-1974
1999(4) Kar.L.J.524 (DB)
if it was occupied by the tenants. It is also an admitted fact
that the sale deed is executed by land owner on
01-08-1974 which is subsequent to the coming into the
force of Karnataka Land Reforms Amendment Act.
13. The argument of the learned counsel for the
appellants that merely because the father of respondent
No.1 had purchased the land which was tenanted, does not
convey any title to subsequent purchaser in view of Section
44 of the Land Reforms Act is concerned, we are unable to
accept the said argument, for the reason that, the question
whether the writ petitioner was a tenant as on 01-03-1974
was considered by the Tribunal at a later date in the
proceedings which was initiated by virtue of Form No.7
dated 26-03-1979. The question that was to be considered
by the Tribunal was whether on the appointed dated i.e., on
01-03-1974, the applicants in Form No.7 were the tenants
or not? It is because, the lands vest in Government on
01-03-1974 only if they were occupied by the tenants.
Therefore, as on the year 1979, when the RTC discloses
that the name of Victor Castelino was mentioned in the
records by virtue of the sale deed dated 01-08-1974, it was
incumbent upon the Tribunal to issue a notice to the
landowner, whose name was appearing in the RTC.
Obviously, in the year 1979, when the Tribunal took up the
application (Form No.7) filed by writ petitioner, the name of
Victor Castelino was mentioned in the RTC. In other words,
Tribunal was bound to issue notice to the landowner, whose
name was appearing in the revenue records at the time of
considering the grant of the occupancy rights. It is evident
that there are no records that would show that immediately
after 01-03-1974 and before the Form No.7 was filed on
15-3-1979, the name of the Government was entered as
vesting of the lands had taken place.
14. A perusal of the order of the Land Tribunal would
indicate that there is no objective satisfaction of the fact
that the land was demarcated. It would indicate that the
Secretary of the Land Tribunal had verified the records and
notices were issued. The lands were surveyed and survey
report was obtained. There is no survey report which was
available for perusal. On the other hand, the sale deed
executed by the landowner in favour of writ petitioner who
is the son of Victor Castelino would show that, after the sale
deed, there was a registered Will on 31-12-1986 executed
by Victor Castelino in favour of his two sons. The said Will is
accompanied by a sketch. Thereafter, there was a partition
between writ petitioner Vincent Castelino and his brother
Henry John Castelino. Therefore, this shows that there were
several transactions after the sale deed by the landowner
on 1-8-1974. Obviously, the claim of the writ petitioner is
that he only came to know about the order passed by the
Land Tribunal when the appellants herein came and started
obstruction by citing the order passed by the Land Tribunal.
Therefore, the contention that the writ petitions are bad for
delay and laches is not sustainable.
15. Moreover, simply because in the year 1968-69,
the names of the appellants herein was mentioned in the
records of rights, it cannot be presumed to have continued
until 1974. The records do not show that in the year
1973-74 the name of the appellants herein was appearing
in the record of rights as tenants. Though the appellants
have sought to produce certain additional documents in the
form of records of rights showing the appellants names
appearing in the year 1968-69 that would not be of any
help to the appellants. Moreover, this Court cannot enter
into the appreciation of the evidence which has to be done
by the Tribunal.
16. In that view of the matter, we are of the
considered opinion that the question whether the appellants
were the tenants as on the appointed date i.e. 01-03-1974,
is a matter to be determined by the Tribunal. Without
ascertaining as to whether on the appointed date the
appellants were tenants, and that the sale of portion of the
property in favour of Victor Castelino was subsequent to
such vesting of the lands on account of the tenancy, is a
matter to be decided by the Tribunal. Hence, we do not find
any reason for indulgence in the order passed by the
learned Single Judge. Hence, the appeal is bereft of any
merits and as such, the same is dismissed.
17. Consequently, IA No.1/2019 filed for production
of additional documents does not survive for consideration
and hence, it is dismissed.
Sd/-
(V KAMESWAR RAO)
JUDGE
Sd/-
(C M JOSHI)
JUDGE
tsn*
