(BY SMT. VAISHALI HEGDE, ADVOCATE FOR R1 & R3,
VIDE ORDER DATED 19.11.2018, R2 - DELETED)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH / SET
ASIDE THE ORDER DATED 31.01.2018 IN INTERLOCUTORY
APPLICATION NO. XXIX IN O.S.16/2005 ON THE FILE OF THE
SR. CIVIL JUDGE AND ADDL. CHIEF JUDICIAL MAGISTRATE,
KARKALA THEREBY REJECTING THE APPLICATIONS FILED BY
THE PETITIONERS VIDE ANNEX-A AND ETC.
4. SMT MANORAMA S SHETTY
W/O DR B SHEKAR SHETTY
AGED ABOUT 56 YEARS,
R/O MYSORE CLINIC
THURUVEKERE-572 221
TUMKURU DISTRICT
...RESPONDENTS
(BY SRI. RAHUL CARIAPPA, AGA FOR R1,
SMT. VAISHALI HEGDE, ADVOCATE FOR R2-R4)
THIS W.P IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH OF THE
ORDER DTD:15.7.2011 PASSED BY THE RESPONDENT NO.1
IN LRY:7A 1197/2006-07, WHICH IS PRODUCED AT
ANNEXURE-A AND ETC.
NC: 2025:KHC:53722
HC-KAR AND 1 OTHER
BETWEEN:
1. SRI THINGALE VIKRAMARJUNA HEGDE
S/O SRI THINGALE RAVINDRA HEGDE,
AGED ABOUT 50 YEARS,
RESIDENT OF THINGALE CHAVADI HOUSE,
NADAVUPADU VILLAGE,
AJIKKARU HOBLI,
KARKALA TALUK-574 104.
2. MS. SPOORTHI RAI
D/O SRI PRADEEP RAI,
AGED ABOUT 30 YEARS,
RESIDENT OF ANANTHANAGAR,
SONI CLINIC ROAD,
MANIPAL POST-576 104,
UDUPI TALUK & DISTRICT.
THE PETITIONER NO.2 IS
REPRESENTED BYPETITIONER NO.1
AS GENERAL POWER OF ATTORNEY HOLDER
SRI THINGALE VIKRAMARJUNA HEGDE,
S/O SRI THINGALE RAVINDRA HEGDE,
AGED ABOUT 50 YEARS,
RESIDENT OF THINGALE CHAVADI HOUSE,
NADAVUPADU VILLAGE-574 104,
AJIKKARU HOBLI, KARKALA TALUK.
...PETITIONERS
(BY SRI. D.R. RAVISHANKAR, SENIOR COUNSEL FOR
SRI. SUYOG HERELE E, ADVOCATE AND
SRI. NISHANTH S.K, ADVOCATE FOR P1 & P2)
AND:
SMT SARITHA P BHANDARY
W/O PRAHLAD BHANDARY,
AGED ABOUT 29 YEARS,
RESIDING AT 2260,
NC: 2025:KHC:53722
HC-KAR AND 1 OTHER
HOUSE NO.1, II FLOOR,
I MAIN, 4TH 'A' CROSS,
RPC LAYOUT,
VIJAYANAGAR,
BENGALURU - 560 040.
...RESPONDENT
(BY SMT. VAISHALI HEGDE, ADVOCATE)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH / SET ASIDE
THE ORDER DATED 31.01.2018 IN INTERLOCUTORY
APPLICATION NO. XXXIV IN O.S.13/2005 ON THE FILE OF
THE SR. CIVIL JUDGE AND ADDL. CHIEF JUDICIAL
MAGISTRATE, KARKALA THEREBY REJECTING THE
APPLICATIONS FILED BY THE BY THE PETITIONERS VIDE
ANNEX-A AND ETC.
THESE PETITIONS HAVING BEEN RESERVED FOR
ORDERS ON 10.12.2025 COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE RAJESH RAI K
CAV ORDER
'Fraud' is an act of deliberate deception with the design
of securing something by taking unfair advantage of another.
In fraud, one gains at the loss and the cost of another. The
instant case is one of such kind.
2. The petitioners and the contesting respondents are the
family members. Their interse relationship is as under:
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HC-KAR AND 1 OTHER
Seethamma Heggadthi
Dr.Karunakara Hegde Ravindra Hegde Manorama S Shetty
Sarojini Hegde(spouse) Vanaja Hegde(spouse) Dr B Shekar Shetty S/o
Late K Thimmappa
Shetty(spouse)
Sajan Hegde Malikarjuna Hegde
Sujan Hegde Saritha P Bhandary
Asha(spouse)
Harshavardan Hegde Anil Shetty
Sucharitha S Shetty
Adarsh Hegde Manoj Shetty
Suchetha P Rai
Praveen T S alias Deepak
Spoorthi Rai(D/o Suchetha P
Rai)
Vikramarjuna Hegde-Smitha
Priya V Hege(spouse)
3. WP.No.27436/2017 is by Asha Mallikarjuna Hegde
(daughter-in-law of Vanaja Ravindra Hegde) and others against
Saritha Bhandary (daughter of Manorama Shetty), Sarojini
Hegde (wife of Dr.Karunakara Hegde) and Manorama Shetty
seeking quashing of order dated 15.07.2011 passed by the
Land Tribunal in LRY:7A 1197/2006-07 and order dated
23.01.2016 passed in Appeal No.714/2011 and order dated
27.05.2017 passed in Review Petition No.3/2016.
4. WP.No.27438/2017 is by Thingale Vikramarjuna Hegde
against Saritha Bhandary (daughter of Manorama Shetty),
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HC-KAR AND 1 OTHER
Sarojini Hegde (wife of Dr.Karunakara Hegde) and Manorama
Shetty seeking quashing of order dated 15.07.2011 passed by
the Land Tribunal in LRY:7A 1197/2006-07 and order dated
23.01.2016 passed in Appeal No.864/2011 and order dated
27.05.2017 passed in Review Petition No.4/2016.
5. WP.No.6397/2018 is by Thingale Vikramarjuna Hegde
and Spoorthi Rai (daughter of Suchetha P.Rai) against Saritha
Bhandary seeking quashing of order dated 31.01.2018 passed
on I.A.No.34 filed seeking framing of additional issues in
O.S.No.13/2005 and order dated 31.01.2018 passed on
I.A.No.35 filed seeking stay of further proceedings in
O.S.No.13/2005 till the disposal of WP.Nos.27436 and
27438/2017.
6. WP.No.6398/2018 is by Thingale Vikramarjuna Hegde
and Spoorthi Rai against Manorama Shetty seeking quashing of
order 31.01.2018 passed on I.A.No.29 filed seeking framing of
additional issues in O.S.No.16/2005 and order dated
31.01.2018 passed on I.A.No.30 filed seeking stay of further
proceedings in O.S.No.16/2005 till the disposal of
WP.Nos.27436 and 27438/2017.
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HC-KAR AND 1 OTHER
7. The case of Thingale Vikramarjuna Hegde is that lands he
has filed Form No.7A on 03.12.1998 claiming occupancy right
in respect of Sy.No.75/11 measuring 4.18 acres, 75/3
measuring 1.58 acres, 75/11 measuring 0.65 acres, 75/6
measuring 0.34 acres, 75/5 measuring 1.06 acres, 75/10
measuring 0.71 acres, 75/4 measuring 3.23 acres, 75/12
measuring 1.13 acres, 109/3A measuring 3.87 acres and 109/6
measuring 0.58 under the landlords namely Raghunath Hegde
and Sridhar Hegde.
8. It is the case of Asha Mallikarjuna Hegde (daughter-in-
law of Vanaja Ravindra Hegde) and others that Vanaja Ravindra
Hegde has filed Form No.7A on 02.12.1998 claiming occupancy
right in respect of Sy.No.75/6 measuring 0.34 acres, 75/10
measuring 0.71 acres, 75/6 measuring 1.06 acres, 75/3
measuring 4.46 acres and 75/93 measuring 0.89 acres under
the landlord namely Manorama Shetty.
9. The Land Tribunal, after detailed enquiry, rejected their
applications vide order dated 15.07.2011 in LRY:7A-
1197/2006-07. Aggrieved by which, they filed appeals in
Appeal No.864 and 714/2011 before the Karnataka Appellate
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HC-KAR AND 1 OTHER
Tribunal ("KAT"), which came to be dismissed on 23.01.2016.
Against which, they filed Review Petition No.3 and 4/2016,
which came to be rejected vide order dated 27.05.2017.
Challenging the aforesaid order, they are before this Court in
WP.Nos.27436 and 27438/2017.
10. Further, Saritha Bhandary filed O.S.No.13/2005 against
Thingale Vikramarjuna Hegde, Manorama Shetty, Suchetha
P.Rai, Dr.Karunaka Hegde and others seeking declaration that
she is the absolute owner on mooli right in respect of properties
(which were claimed by Thingale Vikramarjuna Hegde in
aforesaid Form No.7A) by virtue of registered Will dated
28.12.1974 executed by K.Thimmappa Shetty (her paternal
grandfather, who got the said properties from Raghunatha
Hegde, Sridhara Hegde and Sadashiva Hegde, who are children
of Lakshmi Heggadthi). In the said suit, Thingale Vikramarjuna
Hegde has filed I.A.No.34 seeking framing of additional issues
and I.A.No.35 seeking stay of further proceedings in
O.S.No.13/2005 till the disposal of WP.Nos.27436 and
27438/2017, which came to be rejected vide order dated
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HC-KAR AND 1 OTHER
31.01.2018. Against which, he along with Spoorthi Rai are
before this Court in WP.No.6397/2018.
11. Further, Manorama Shetty and others filed
O.S.No.16/2005 against legal heirs of Vanaja Ravindra Hegde
seeking declaration that she is the absolute owner of residence
in property bearing No.75/12 measuring 1 acre 13 cents and
permanent injunction in respect of properties bearing
Sy.No.75/3 - 2 acres 62 cents, Sy.No.75/9 - 1 acre,
Sy.No.75/11 - 0.60 cents, Sy.No.75/11 - 0.60 cents. In the
said suit, legal heirs of Vanaja Ravindra Hegde have filed
I.A.No.29 seeking framing of additional issues and I.A.No.30
seeking stay of further proceedings in O.S.No.16/2005 till the
disposal of WP.Nos.27436 and 27438/2017, which came to be
rejected vide order dated 31.01.2018. Against which, Thingala
Vikramarjuna Hegde and Spoorthi Rai are before this Court in
WP.No.6398/2018.
12. I have heard Sri. D.R.Ravishankar, learned Senior
Counsel for Sri Suyog Herele and Sri Nishanth S.K., learned
counsel for the legal heirs Vanaja Ravindra Hegde; Smt.Vaishali
Hegde, learned counsel for contesting respondents and
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NC: 2025:KHC:53722
HC-KAR AND 1 OTHER
Sri Rahul Cariappa, learned Additional Government Advocate
for respondent-State.
13. The primary contention of the learned Senior Counsel for
the petitioners - legal heirs of Vanaja Ravindra Hegde is that
the Authorised Officer/Additional Deputy Commissioner has
passed the impugned order dated 15.07.2011 without
considering the documents produced by the petitioners by
affording them an opportunity to lead evidence, without
following the procedure as contemplated under Rule 26(c) of
the Karnataka Land Reform (Amendment) Rules, 1998 (for
brevity, "the KLR Rules") and without conducting an enquiry
as contemplated under Section 48-A of the Karnataka Land
Reforms Act (for brevity, "the KLR Act").
14. He further contended that undisputedly the petitioners
are in possession of the lands claimed by them before and as
on 01.03.1974 as a tenant under the respondent-landlords and
continued to be in possession. The said aspect is fortified in
view of the suit filed by Saritha Bhandary for declaration and
possession against the petitioners in O.S.No.13/2005.
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NC: 2025:KHC:53722
HC-KAR AND 1 OTHER
15. He further contended that the Authorised Officer has
failed to delve into the ingredients of Section 77A of the KLR
Act, which contemplates three basic ingredients i.e., (1) the
possession and cultivation of the applicant as on 01.03.1974,
(2) the applicant has failed to apply for registration under
Section 48-A within the period specified and (3) whether the
applicant continued to be in actual possession and cultivation.
According to the learned Senior Counsel, all these ingredients
have been fulfilled by the petitioners by placing sufficient
documents. To prove the possession and tenancy, the
petitioners produced the geni chits, record of right, receipt of
payment of assessment etc. Further, the petitioners have filed
Form No.7A in time and they also proved that they are in
continuous possession of the land claimed by them in view of
the declaration suit filed by Saritha Bhandary. Despite placing
all these prima facie evidence, the Authorised Officer has failed
to grant the land claimed by them.
16. He also contended that the contention of the contesting
respondents that the geni chit and other documents have been
forged and there is a truth lab report cannot be accepted for
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HC-KAR AND 1 OTHER
the reason that these documents were never the part of the
original proceedings and petitioners never had an opportunity
to disprove the allegation of forgery by cross-examining the
witness or author of such report.
17. He further contended that the reasoning of the Authorised
Officer that there existed no landlord and tenant relationship in
view of the relationship between the petitioners and contesting
respondents and the petitioners possessing excess land as
contemplated under Clause (ii) of Section 77-A (1) of KLR Act is
totally misread. On the other hand, the petitioners proved their
possession over lands claimed by them by placing RTC and the
said aspect has been admitted by the contesting respondents.
18. The spot inspection conducted by the Land Tribunal and
passing of the impugned order based on such report is totally
without jurisdiction in view of the limited enquiry as
contemplated under Rule 26(c) of KLR Rules. With these
submissions, he prays to allow the writ petition. To buttress his
argument, he relied on the following judgments:
i) Bheemappa Basappa Athani Vs. The Land
Tribunal, Jamkhandi - 1977 SCC Online Kar 128.
- 18 -
NC: 2025:KHC:53722
HC-KAR AND 1 OTHER
ii) Yeribasavana Gouda & Others Vs. State of
Karnataka - 2006 SCC Online Kar 83.
iii) B.Somanatha Rao Vs. Karmil D'Souza &
Others - 2006 SCC Online Kar 978.
iv) Lokayya Poojary & Another Vs. State of
Karnataka & Others - 2011 SCC Online Kar 27.
19. Per contra, the learned counsel for the contesting
respondents contended that the Authorised Officer and the KAT
have rightly rejected the claim of the petitioners under Section
77A of the KLR Act for the reason that the petitioners claimed
occupancy right as tenants against family members in respect
of property purchased by way of Sale Deed, Partition Deed and
the Will.
20. Further, the petitioners have failed to produce any iota of
evidence to prove that they were cultivating lands claimed by
them as tenants prior to 01.03.1974 and post 1974.
21. The geni chits produced by the petitioners are totally
concocted and forged as per the report submitted by the Truth
Lab. According to the learned counsel, there was a partition
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HC-KAR AND 1 OTHER
between the brothers and sister i.e., Ravindra Hegde,
Dr.Karunakara Hegde and Manorama Shetty by way of a
registered Partition Deed dated 01.06.1972.
22. It is submitted that as per the Partition Deed, Ravindra
Hegde had continued to stay in the ancestral house along with
other family members of Karunkara Hegde and Manorama
Shetty even after the partition till his demise, with absolutely
no rights over the same and after his demise, the said ancestral
house had reverted solely to the share and possession of family
members of Manorama Shetty. She further contended that
Manorama Shetty thereafter was in peaceful possession and
cultivation of lands.
23. The petitioners immediately on completion of the 13 th
day ceremony, along with his henchmen got the contesting
respondents evicted from the house and the lands claimed by
them. As such, the action of the petitioners was in clear and
total violation of the terms of the Partition Deed between the
family members. She further contended that, in light of
highhanded and unlawful activities of the petitioners,
Manorama Shetty was constrained to file O.S.No.315/1986
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NC: 2025:KHC:53722
HC-KAR AND 1 OTHER
renumbered as O.S.No.16/2005 against the petitioners seeking
declaration of title and consequentially, possession of the
properties along with mesne profits. Saritha Bhandary has also
filed O.S.No.190/1989 which was renumbered as
O.S.No.13/2005 seeking a declaratory decree, declaring that
she was the absolute owner on Mooli right in respect of lands
claimed by Thingale Vikramarjuna Hegde in Form-7A by virtue
of registered Will dated 28.12.1974 executed by K.Thimmappa
Shetty (her paternal grandfather) and for consequential relief of
possession.
24. She further contended that the lands claimed by the
petitioners for grant of occupancy right by filing Form No.7A
dated 02.12.1998 and 03.12.1998 under Section 77-A of the
KLR Act are the self-acquired and the ancestral joint family
properties inherited by Manorama Shetty and Saritha
Bhandary. The lands bearing Sy.Nos.75/6, 75/10, 75/3 and
75/98 were the joint family properties which fell to the share of
Kamala Heggadthi, the aunt of Saritha Bhandary by way of
partition. Thereafter, Saritha Bhandary by way of registered
Sale Deed dated 20.12.1972 purchased the above stated lands
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HC-KAR AND 1 OTHER
from Kamala Heggadthi. Till the time of sale, the said lands
were being cultivated by Kamala Heggadthi, thereafter from
1972 till 1986, Saritha Bhandary cultivated the said lands
personally. Therefore, the above stated lands being the self-
acquired properties of Saritha Bhandary, the petitioners have
no right whatsoever over the said lands.
25. She also contended that, the petitioner - Thingale
Vikramarjuna Hegde who claimed tenancy on the ground that
he was in possession and cultivation of the lands claimed by
him since 1972, cannot be believed at any stretch of
imagination, as while filing Form-7A in the year 1998, he
mentioned his age as 31 years. As such, a six year old boy
cannot be expected to cultivate the lands in the year 1972.
In such circumstance, it is obvious the entire claim of the
petitioners is only to knock off the lands claimed by them by
placing false and concocted documents. With these
submissions, she prays to dismiss the writ petitions. To
buttress her argument she relied on the following judgments:
i) Hosabayya Nagappa Naik & Others Vs.
State of Karnataka & Others - ILR 2002 KAR 1342.
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NC: 2025:KHC:53722
HC-KAR AND 1 OTHER
ii) Aboobakkar Vs. The Authorised Officer -
2007 (2) KCCR 817.
iii) Lokayya Poojary & Another Vs. State of
Karnataka & Others - ILR 2012 Kar 4345.
26. I have given my anxious consideration to the contentions
of the learned counsel for the respective parties, so also
perused the materials on record.
27. As could be gathered from records, writ petition
Nos.27436/2017 and 27438/2017 are filed by the daughter-in-
law (Asha Mallikarjuna Hegde) claiming under Vanaja Ravindra
Hegde and son of late Thingale Ravindra Hegde (Thingale
Vikramarjuna Hegde) respectively, who are the claimants
before the Authorised Officer by claiming occupancy rights in
respect of aforesaid lands in Form No.7A under Section 77A of
the KLR Act. According to them, originally lands claimed by
them along with other lands were being cultivated by Thingale
Ravindra Hegde as tenant under one Raghunatha Hegde and
Sridhara Hegde, children of Lakshmi Heggadathi. However, he
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HC-KAR AND 1 OTHER
could not file any application in Form No.7 till his life time and
died in the year 1986. Thereafter, Thingale Vikramarjuna
Hegde and Vanaja Ravindra Hegde continued in possession and
cultivation of the lands claimed by them under the landlords
namely Raghunath Hegde & Sridhara Hegde, and Manorama
Shetty respectively.
28. According to the petitioners, a Geni chit has been issued
by the landlords - Raghunath Hegde & Sridhara Hegde to
Ravindra Hegde (father of Thingale Vikramarjuna Hegde) on
04.06.1973, and Manorama Shetty to Vanaja Ravindra Hegde
on 04.10.1972 in respect of lands claimed by them by receiving
the geni/rent.
29. Further, as observed by the Tribunal, Thingale
Vikramarjuna Hegde had filed Form No.7A in the year 1998
stating that he was cultivating the land since 1972 and his age
was mentioned as 31 years as on 1998. As such, his age as on
1972 would be six years and a six year old boy cannot be
expected to cultivate the lands. Thus, the cultivation of lands
claimed by Thingale Vikramarjuna Hegde cannot be believed at
any stretch of imagination.
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HC-KAR AND 1 OTHER
30. On careful perusal of Form No.7A filed by Vanaja
Ravindra Hegde i.e., mother-in-law of the petitioner in
W.P.No.27436/2017, it is stated that she was cultivating the
said land since 1972 under Manorama Shetty. As a matter of
fact, she was 30 years at that point of time and her husband
Ravindra Hegde was very much alive. It is pertinent to state
here that the geni chit produced by Vanaja Ravindra Hegde
clearly states that she had claimed tenancy under Manorama
Shetty, who is none other than her own sister-in-law. Thus, she
being the family member cannot be said to be the landlord, as
such, there is no relationship of tenant and landlord between
Vanaja Ravindra Hegde and Manorama Shetty. Thus, the claim
in WP.No.27436/2017 is also far from truth. As such, both the
petitioners have miserably failed to prove their landlord and
tenant relationship in respect of lands claimed by them in their
respective Form-7A.
31. It is the specific case of the contesting respondent i.e.,
Saritha Bhandary that the lands bearing Sy.Nos.75/6, 75/10,
75/3 and 75/98 were the joint family properties which fell to
the share of Kamala Heggadthi, the aunt of Saritha Bhandary
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HC-KAR AND 1 OTHER
by way of partition as per Aliyasanthana Law prevalent among
the Bunt Committees in South Canara District. Thereafter,
Saritha Bhandary by way of registered Sale Deed dated
20.12.1972 purchased the above stated lands from Kamala
Heggadthi.
32. As far as lands fell into the share of Manorama S Shetty
by way inheritance from her mother Seethamma Heggadathi
(propositus), the same is not seriously disputed by the
petitioners.
33. The next aspect of the matter is that, whether an
application filed in Form No.7A under Section 77A of the KLR
Act envisages an enquiry as contemplated under Section 48-A
of the KLR Act as argued by the learned Senior Counsel for the
petitioners or a limited enquiry under Rule 26(c) of the KLR
Rules. The Division Bench of this Court in the case of
HOSABAYYA NAGAPPA NAIK & OTHERS Vs. STATE OF
KARNATAKA - ILR 2002 KAR 1342 in paragraphs 7 and 8 has
held as under:
"7. Having indicated the sweep and the extent of
Rule 26C let us now consider the scope of the Rule.
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HC-KAR AND 1 OTHER
Sub-Rule 5 of the Rule is only to be understood in the
context of Section 77A and this is where the main
provision of Section 77A takes control of the situation.
The procedure envisaged under Rule 26C for the
purposes of granting of land under Section 77A of the
Act cannot go beyond the purpose for which the
section is provided for. As noticed earlier the object of
the section is to provide an opportunity to those who
might have been truly and lawfully tenants of the
land, who were in possession and cultivation and
continued to be in possession and cultivation, who
might have missed the bus by not making an
application within the stipulated period which in fact
had come to be extended from time to time and to
ensure that their possession and cultivation is
continued without being disturbed any further. It is
very essential to point out that an application under
Section 77A is not the same as an application under
Section 45, and the enquiry contemplated under
Section 77A cannot be the same as an enquiry
conducted by the Land Tribunal under Section 48A of
the Act. Whereas on an application under Section 45,
enquiry by the Land Tribunal is for grant of
conferment of occupancy rights, an application under
Section 77A to the Deputy Commissioner or other
Officer authorised by the State Government is for the
purpose of grant of land. The provisions of Section
77A is for the purpose of granting of land on
satisfaction of certain conditions namely three
conditions mentioned therein. It is to be noticed that
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HC-KAR AND 1 OTHER
conditions (1) and (2) are conditions which should
have been satisfied and foregone in respect of the
land. It is not an enquiry to ascertain whether a
person can be granted land being a tenant as on the
appointed date; such an enquiry was within the scope
of Section 48A and not for the purpose of condition
(1) of Section 77A. Here the enquiry is only for a
limited purpose to find out the accomplished fact as to
whether the person was in actual possession and
cultivation of the land on the appointed date. It is not
as though the authorities are to hold an enquiry for
the purpose of conferment of occupancy rights on the
premise that the applicants were lawful tenants on the
appointed date and the enquiry was for such purpose.
The factum of the applicants being a lawful tenant on
the appointed date and was in cultivation as on the
appointed date is not to be established now in the
present enquiry, but it should have been a concluded
fact and the scope of the present enquiry is to let in
evidence to satisfy or prove the existence of such a
concluded fact. It is for the applicant to show that it
was an undisputed fact and on record and that without
anything further more he was a tenant lawfully in
possession and cultivation of the land on the
appointed date. The second condition is also of
significance and importance in the context of
considering the application i.e., the land should have
been vested in the State Government as on the
appointed date as it was a tenanted land. This again is
an event which should have already taken place and
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HC-KAR AND 1 OTHER
as such the evidence that is requires to be placed by
the applicant to show that this is an event that has
taken place already. Obviously it should find a place in
some official record, as vesting of the land is in favour
of the State Government. In the absence of any such
record it again becomes a disputed fact which again is
not within the scope of an enquiry under Section 77A
of the Act. If these two conditions are fulfilled then
there is the necessity and scope for inquiring with
regard to the third condition namely as to whether the
applicant has continued to be in possession and
cultivation of such land as on the date of the
commencement of the amending Act i.e., 1.11.1998.
8. We say this for yet another reason namely
that the last date for filing of application under Section
time. If the scope of enquiry contemplated under
Section 77A of the Act was to be the same as an
enquiry under Section 48A of the Act then it would
have been the simplest thing for the Legislature to
extend such date instead of providing for a separate
provision as under Section 77A. On the other hand the
Legislature has advisedly provided for an enquiry
under the Section and two very important
distinguishing features have to he noticed. One is that
the authority to whom the application under Section
77A is to be made is the Deputy Commissioner or any
other Officer authorised by the State Government in
this behalf and not the Land Tribunal which is the
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HC-KAR AND 1 OTHER
inquiring authority under Section 48 A of the Act and
secondly that the application in Form No.7A is for
grant of land whereas an application under Form No.7
of the Rules and filed under Section 45 of the Act was
for grant of occupancy rights. Having regard to these
distinctions we are of the view that the scope of
enquiry under Section 26C is to be understood for this
purpose and not as though it is an enquiry as
contemplated under Section 48A of the Act though for
enquiry under either section, Section 48A or 77A, it is
mentioned to be a summary enquiry as contemplated
under Section 34 of the Karnataka Land Revenue Act.
Though the procedure mentioned under Rule 17 or
Rule 26C of the Rules is the same procedure as the
one contemplated under Section 34 of the Karnataka
Land Revenue Act, one should not lose sight of the
fact that the enquiry under Rule 26C is for the
purposes of Section 77A for ascertaining fulfillment of
the three conditions enumerated therein. As such the
interpretation placed in the context of an enquiry
under Rule 17 though is as provided under Section 34
of the Karnataka Land Revenue Act, cannot be very
apt in the context of the provisions of Section 77A and
Rule 26C. There cannot be any dispute about the
fundamental requirements of one observing the
principles of natural justice, recording the summary of
evidence of the witnesses examined, for offering the
witness examined in chief for cross examination by
the opposite side, affording sufficient opportunity to
each party to present their case and passing of
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reasoned order ultimately on examination of the
evidence on record. But in a situation where there is
no scope for observance of these aspects as in the
instant case where the documents on record doesn't
indicate anything positive with regard to compliance of
the first two conditions enumerated in Section 77A,
the question of offering the respondents for cross
examination or even shutting out the applicants from
examining the witnesses for the purposes of proving
the existence of the first two conditions doesn't arise.
What is not in existence and is not borne out on
record in respect of an accomplished fact and of a past
event cannot be made good by means of oral evidence
at the time of an enquiry for the purposes of Section
77A of the Act.
Thus, it is clear that the enquiry contemplated under Rules
26(c) of the KLR Rules is a limited enquiry which has been
complied by the Authorised Officer. As such, the contention of
the learned Senior Counsel that, the Authorised Officer has
passed the impugned order without affording any opportunity
to the petitioners to lead evidence and to cross- examine the
witnesses to test the veracity of their claim and the documents
placed by them, does not hold much water.
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34. As a matter of fact, the impugned order clearly depicts
that, a spot inspection has been conducted by the Revenue
Inspector in respect of the lands claimed by them and the
documents were perused in detail, which revealed that there
was no landlord and tenant relationship between the petitioners
and respondents and no relevant documents were placed by
the petitioners to prove their tenancy and cultivation of the
lands claimed by them. Further, it is also revealed that the
petitioners were possessing excess land than the ceiling limit as
contemplated under proviso to Section 77-A (2) of the KLR Act.
35. The contention of the learned counsel for the petitioners
that to disprove the allegation of forgery of geni chits and other
documents produced by the petitioners, an opportunity ought
to have been extended to the petitioners by way of cross-
examination of author of the report does not hold much water
for the reasons discussed supra that Form No.7A itself discloses
that the claim of the petitioners are false and for unlawful gain
and in view of the limited enquiry under Rule 26 (c) of the KLR
Rules. Nonetheless, the Truth Lab Report in respect of the
alleged geni chits relied by the petitioners, produced before the
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KAT by the respondents, clearly reveals that, the signatures
were forged and concocted as examined by the KAT. The
Hon'ble Apex Court in the case of MURARI LAL Vs. STATE OF
MADHYA PRADESH - (1980) 1 SCC 704, has held that in cases
where the reasons for the opinion are convincing and there is
no reliable evidence throwing a doubt, the uncorroborated
testimony of an handwriting expert may be accepted in view of
Section 45 of the Indian Evidence Act.
36. In the instant case, Form No.7A filed by Thingale
Vikramarjuna Hegde has been rejected on the ground that he
has falsely stated that he was cultivating the land as tenant
since 1972, though he was six years old as on 1972, and Form
No.7A filed by Vanaja Ravindra Hegde has been rejected on the
ground that Manorama Shetty, under whom she claimed to be
the tenant, being a family member, there is no relationship of
tenant and landlord between them. As such, the Authorised
Officer and the KAT have rightly accepted the same and passed
the impugned orders.
37. It is also pertinent to state here that in the Written
Statement filed by Thingale Vikramarjuna Hegde in
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O.S.No.13/2005 (OS.No.190/1989), he claimed right over the
lands by way of adverse possession, whereas in Form No.7A,
he claimed right over the lands as a tenant. Thus, the same are
mutually destructive pleas, which clearly establish that he was
not in possession of the lands claimed by him as a tenant at
any point of time. This aspect further strengthens the plea of
the respondents and the report of Truth Lab that the petitioners
were not the tenants under the respondents and they were not
paying geni/rent to the respondents.
38. The next contention raised by the learned counsel for the
contesting respondents is that the petitioners are not entitled
for grant of land in view of the proviso to Section 77-A (2) of
the KLR Act, as they crossed the ceiling limit of 2 hectares of
land. The said aspect has been clearly depicted in the RTCs of
the land possessed by the petitioners that they own large
extent of land than the ceiling limit. In order to maintain an
application under Section 77-A of the KLR Act, the petitioners
have to prove that they are not holding more than 2 hectares
of land. On that count also, the petitioners are not entitled for
the grant of lands as claimed by them.
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39. It is pertinent to state here that the factum of possession
and status of the applicant as on the appointed date should be
an undisputed fact. Under Section 48-A of the KLR Act, if a land
is tenanted, it gets vested with the State and only on
application of the tenant in Form No.7, occupancy right can be
granted. Whereas, the condition prescribed in respect of
Section 77-A of the KLR Act is that the lands which were
already vested with the State alone can be brought within the
purview of Section 77-A of the Act. However, in this case, the
petitioners have failed to prove that the lands were already
vested with the State since the lands claimed by them were not
tenanted lands and that they have also failed to prove their
actual possession and cultivation as on 01.03.1974 and their
continuous possession and cultivation of lands thereafter.
40. In view of the above discussions, I am of the considered
view that the impugned orders do not call for any interference
at the hands of this Court.
41. Thus, it is clear from the above discussions, the
petitioners had filed Form No.7A against their own close family
members, that too in respect of the self acquired and inherited
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property of contesting respondents, playing fraud on them by
producing forged geni chits, though they were not cultivating
the lands as tenants as claimed by them and thus, failed to
prove that the land vested with the State Government and that
they continued to be in possession and cultivation of lands
claimed by them under Form-7A. That apart, they were holding
the land more than the ceiling limit. Hence, it is clear that they
filed Form-7A only for unlawful gain by playing fraud on their
own family members.
42. As held by the Apex Court in K.D. Sharma Vs. Steel
Authority of India Limited - (2008) 12 SCC 481, the Court
defined 'fraud' as an act of deliberate deception with the design
of securing something by taking unfair advantage of another.
In fraud, one gains at the loss and the cost of another. Even
the most solemn proceedings stand vitiated if they are actuated
by fraud.
43. Further, the petitioners dragged the dispute for more
than decades in one or the other manner. This conduct of the
petitioners has to be deprecated as they not only dragged the
contesting respondents before this Court by filing multiple
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frivolous litigations, but also wasted the precious time of the
Courts.
44. In the instant case, the petitioners want to gain at the
loss and the cost of the respondents, who are none other than
the family members. Thus, the said conduct of the petitioners
has to be dealt with iron hands by imposing costs. Hence, writ
petitions are dismissed with costs of Rs.1,00,000/- each
payable by the petitioners.
45. The costs shall be payable to Karnataka Legal Services
Authority, within a period of one month, failing which, the
registry is directed to take necessary action.
SD/-
(RAJESH RAI K)
JUDGE
PKS
List No.: 2 Sl No.: 3
