Karnataka High Court
Sri Gundappa vs State Of Karnataka on 22 November, 2024
Author: Krishna S Dixit
Bench: Krishna S Dixit
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NC: 2024:KHC:47687-DB
WA No. 4185 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
WRIT APPEAL NO. 4185 OF 2013 (L-RES)
BETWEEN:
1. SRI. GUNDAPPA,
AGED ABOUT 60 YEARS,
S/O SURAPPA GOWDA,
RESIDING AT UBBURU VILLAGE,
NANDAGADDE HOBLI,
THIRTHAHALLI TALUK,
SHIMOGA DISTRICT- 577 432.
(SENIOR CITIZEN BENEFIT NOT CLAIMED)
2. SMT. VISHALAKSHI ,
AGED ABOUT 57 YEARS,
D/O SURAPPA GOWDA,
RESIDING AT UBBURU VILLAGE,
NANDAGADDE HOBLI, THIRTHAHALLI TALUK,
SHIMOGA DISTRICT - 577 432.
Digitally signed
by SHARADA ...APPELLANTS
VANI B (BY SRI. SHANKARANARAYANA BHAT N .,ADVOCATE)
Location:
HIGH COURT AND:
OF
KARNATAKA
1. STATE OF KARNATAKA,
REPRESENTED BY SECRETARY TO GOVERNMENT,
REVENUE DEPARTMENT, M S BUILDING,
DR AMBEDKAR VEEDHI,
BANGALORE - 560 001.
2. THE LAND TRIBUNAL ,
THIRTHAHALLI TALUK,
THIRTHAHALLI, SHIMOGA DISTRICT - 577 432.
BY ITS SECRETARY
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WA No. 4185 of 2013
3. SRI. JNANENDRA ,
AGED ABOUT 61 YEARS
S/O U T SHAME GOWDA
SINCE DEAD BY LRs
3(A) SMT. PUSHPA W/O JNANENDRA,
AGED ABOUT 65 YEARS,
3(B) SRI. NIPUNA S/O JNANENDRA,
AGED ABOUT 40 YEARS,
3(A) & (B) ARE R/AT UBBURU VILLAGE,
NANDAGADDE HOBLI, GUTTI YEDAHALLI POST,
THIRTHAHALLI TALUK,
SHIVAMOGGA DISTRICT - 577 226.
4. SRI. THIMMAPPA,
AGED ABOUT 58 YEARS,
S/O SUBBAIAH GOWDA,
RESIDING AT UBBURU VILLAGE,
GUTTI YEDEHALLI POST,
MANDAGADDE HOBLI,
THIRTHAHALLI TALUK,
SHIMOGA DISTRICT-577 432.
...RESPONDENTS
(BY SRI. M RAJKUMAR., AGA FOR R1 & R2;
SRI. B S PRASAD., ADVOCATE FOR R4;
NOTICE TO R3(A) & (B) IS H/S V.C.O DATED 08.04.2015)
THIS WRIT APPEAL FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED
IN THE WRIT PETITION NO.38971/11 DATED 13/2/2013.
THIS WRIT APPEAL, COMING ON FOR FURTHER
HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS
UNDER:
CORAM: HON'BLE MR JUSTICE KRISHNA S DIXIT
and
HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
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ORAL JUDGEMENT
(PER: HON'BLE MR JUSTICE KRISHNA S DIXIT)
The appellant Nos.1 & 2 being the son and daughter
of late one Sri.Surappa Gowda, are grieving in appeal
against a learned Single Judge's order dated 13.02.2013
whereby, their W.P.No.38971/11 (LR) has been negatived.
In the said petition, they had called in question Land
Tribunal's order dated 26.05.2011 whereby, occupancy
has been registered under section 48A of the Karnataka
Land Reforms Act, 1961, in favour of the 4th respondent
herein in respect of petition land.
2. Learned counsel appearing for the appellants
vehemently argues that the Tribunal committed a grave
error of law in granting occupancy in the absence of
cogent evidentiary material to establish tenancy as on
1.3.1974 in respect of land admeasuring 1 acre in
Sy.No.22 of Ubburu Village, Nandagadde Hobli, Thirthahalli
taluk, Shivamogga District; his clients father & grandfather
were the mortgagors and father of 3rd respondent herein
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was the mortgagee by virtue of registered Mortgage Deed
of 1960s; if he has inducted someone into the land, that
would not create tenancy between his clients and the
inductee. All these aspects having not been properly
appreciated both by the Tribunal and later by the learned
Single Judge, the interference of this court is warranted for
setting the injustice at naught. He takes us to the
provisions of 1961 Act and the provisions of Transfer of
Property Act, 1882, in support of his submission.
3. The respondent-State and Tribunal are
represented by the learned AGA; the 3rd respondent-
mortgagee having died, his L.Rs are brought on record and
they too remain unrepresented. Be that as it may. The 4th
respondent-tenant is represented by his private advocate
who opposes the petition making submission in
justification of the impugned order of the learned Single
Judge and the Land Tribunal order, as well. He notifies to
the court the suit for redemption of mortgage filed by the
father of appellants wherein, his client got impleaded as a
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respondent and thereby, saved the petition land from
being redeemed. He adds that even the appeal against the
decree having failed, the 4th respondent has become the
title holder to the land, regardless of the Land Tribunal
order.
4. Having heard the learned counsel for the parties
and having perused the Appeal Papers, we decline
indulgence in the matter broadly agreeing with the
submission of learned counsel for 4th respondent.
Admittedly, father & grandfather of the appellants had
given the subject land by way of usufructuary mortgage in
favour of the father of 3rd respondent herein; the
mortgagee being examined as the witness before the
Tribunal has admitted that he had inducted 4th respondent
in the subject land and he has been cultivating the same
since decades. Under the Dictionary Clause of 1961 Act, a
usufructuary mortgagee is deemed to be the land owner
and therefore, the arrangement between himself and the
4th respondent assumes the character of tenancy as on
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1.3.1974, the admitted registered mortgage being of
1960s. A contra contention as to the absence of vinculum
juris of tenancy in respect of the land between the
mortgagee and the 4th respondent cannot be
countenanced.
5. Admittedly, father of the appellants have filed
redemption suit in O.S.No.44/1985 wherein, the 4th
respondent got impleaded as the additional defendant and
resisted the suit. The said suit came to be decreed and
mortgage was ordered to be released only to the extent of
2 acres of land, leaving the petition land apart in favour of
this respondent. The challenge to this decree in
R.A.No.69/2003 came to be negatived on 28.02.2006.
There being no further challenge, the appellants have lost
their right of redemption because of this decree. Now,
they cannot maintain another suit for redeeming the
mortgage of this land because of res judicata.
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In the above circumstances, this appeal being devoid
of merits, is liable to be & accordingly dismissed, costs
having been made easy.
The jurisdictional Tahasildar shall grant the certificate
in Form 10 and effect mutation of entries in favour of 4th
respondent on the production of a copy of this judgment,
(if already that has not been done) and report compliance
to the Registrar General of this Court within sixty days.
Sd/-
(KRISHNA S DIXIT)
JUDGE
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
cbc
