[Cites 16, Cited by 0]
Karnataka High Court
Thimmaiah vs Sri K Narayana Gowda on 20 January, 2026
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WA No. 1220 of 2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JANUARY, 2026
PRESENT
THE HON'BLE MR. VIBHU BAKHRU, CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
WRIT APPEAL NO. 1220 OF 2025 (LR-SEC)
BETWEEN:
THIMMAIAH
SINCE DEAD BY LRS
H.T. GANGADHARAIAH
SINCE DEAD BY LRS
1. GOVINDAMMA
W/O LATE GANGADHARAIAH
AGED ABOUT 65 YEARS
R/AT NULUGUMMANAHALLI
MANCHENAHALLI HOBLI
Digitally GAURIBIDANUR TALUK
signed by CHIKKABALLAPURA - 561 208
SRIDEVI S
Location:
High Court 2. H.G. GANGEGOWDA
of Karnataka S/O LATE GANGADHARAIAH
AGED ABOUT 42 YEARS
R/AT NULUGUMMANAHALLI
MANCHENAHALLI HOBLI
GAURIBIDANUR TALUK
CHIKKABALLAPURA - 561 208
3. SRI H.T. CHANDRAIAH
S/O LATE THIMMAIAH
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WA No. 1220 of 2025
AGED ABOUT 50 YEARS
R/AT HANUMANTHAPURA VILLAGE
JARABANDHAHALLI POST
MANCHENAHALLI HOBLI
GAURIBIDANUR TALUK
CHIKKABALLAPURA - 561 208
4. SRI H.T. KRISHNEGOWDA
S/O LATE THIMMAIAH
AGED ABOUT 40 YEARS
R/AT HANUMANTHAPURA VILLAGE
JARABANDHAHALLI HOBLI
MANCHENAHALLI HOBLI
GAURIBIDANUR TALUK
CHIKKABALLAPURA - 561 208
5. SMT. VEBKATALAKSHMAMMA
D/O LATE THIMMAIAH
W/O NARASIMHAMURTHY
R/AT SUNKADA GATE
(NEAR GOVT. SCHOOL)
DODDABALLAPURA TALUK
BENGALURU SOUTH TALUK
BENGALURU RURAL - 561 203
6. SMT. NARAYANAMMA
D/O LATE THIMMAIAH
W/O SRI ANJAN KUMAR
R/AT UJJINI HOSHALLI
KAMALURU POST
DODDABALLAPURA TALUK
BENGALURU RURAL - 561 203
...APPELLANTS
(BY SRI P.N. MANMOHAN, ADVOCATE FOR
SRI PRAVEEN KAMATH M.R., ADVOCATE)
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WA No. 1220 of 2025
AND:
1. SRI K. NARAYANA GOWDA
S/O H.A. KEMPAIAH
AGED ABOUT 65 YEARS
R/AT HANUMANTHAPURA VILLAGE
JARABANDHAHALLI POST
MANCHENAHALLI HOBLI
GAURIBIDANUR TALUK
CHIKKABALLAPURA - 561 208
2. ASSISTANT COMMISSIONER
GAURIBIDANUR TALUK
GAURIIDANUR
CHIKKABALLAPURA - 562 101
...RESPONDENTS
(BY SRI YESHWANTH NETAJI, ADVOCATE FOR
SRI K.V. NARASIMHAN, ADVOCATE FOR R-1 &
SMT. NAMITHA MAHESH, AGA FOR R-2)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THIS
WRIT APPEAL AND SET ASIDE THE IMPUGNED JUDGMENT
DATED 16.06.2025 PASSED BY THE LEARNED SINGLE JUDGE
OF THIS HON'BLE COURT IN WRIT PETITION No.37713/2016
(LR-SEC) & ETC.
THIS WRIT APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR
PRONOUNCEMENT THIS DAY, JUDGMENT WAS
PRONOUNCED AS UNDER:
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WA No. 1220 of 2025
CORAM: HON'BLE MR. VIBHU BAKHRU, CHIEF JUSTICE
and
HON'BLE MR. JUSTICE C.M. POONACHA
CAV JUDGMENT
(PER: HON'BLE MR. VIBHU BAKHRU, CHIEF JUSTICE)
1. The appellants have filed the present intra-court appeal
impugning an order dated 16.06.2025 [impugned order] passed
by the learned Single Judge of this Court in WP.No.37713/2016
(LR-SEC). The learned Single Judge partly allowed the said writ
petition by the impugned order, whilst, the claim made by the legal
heirs of Smt. Venkatamma [petitioner No.1(a) to (d) in the writ
petition] claiming occupancy rights in respect of land falling in
Survey No.2/2B, Gollahalli Village, Gauribidanuru Taluk, was
rejected; The claim made by respondent No. 1 (K. Narayana
Gowda) was arrayed as petitioner No.2 in writ petition, claiming
occupancy rights in land falling in Survey No.15/2B, Gollahalli
Village, Gauribidanuru Taluk, to the extent of one- half share, was
allowed. The learned Single Judge had held that respondent No.1
and the representatives of respondent No.2 shared the said subject
land equally.
2. The Appellants claimed that the subject land (land measuring
5 acres and 12 guntas falling in Survey No.15/2B, situated in
Gollahalli Village, Gauribidanuru Taluk, Chikkaballapura District)
belonged to them. It is further stated that the said land was
purchased by the predecessors in interest of the appellants, from
the heirs of the original owner (Kare Rangappa), under two
registered sale deeds dated 18.04.1980 and 18.02.1981. They
claim that the subject land was mutated in the names of the
purchasers/ their successors in interest, are in continuous
possession and enjoyment of the same.
3. The respondent No.1 claims occupancy rights in respect of
part of the subject land, which was rejected. However, the said
claim has been accepted by the learned Single Judge, albeit to the
extent of one half share and the said decision forms the subject
matter of the present appeal.
The Context
4. As noted above, the appellants claim that the subject land
was owned by one Kare Rangappa. His legal heirs had sold the
same to Thimmaiah and his son H.T. Gangadharaiah, under two
registered sale deeds dated 18.04.1980 and 18.02.1981. The
appellants are the legal heirs of late Thimmaiah and H.T.
Gangadharaiah. The appellant No.1 is the wife of late
Gangadharaiah and appellant No.2 is his son. Appellant Nos.3 and
4 are sons of late Thimmaiah and appellant Nos.5 and 6 are his
two daughters.
5. The subject land to the extent of one (01) acre, out of five
(05) acres and twelve (12) guntas was purchased by Sri.
Thimmaiah on 18.04.1980 and H.T. Gangadharaiah (son of late
Thimmaiah), who is since expired, had purchased the remaining
portion of the subject land - land measuring four (04) acres and
twelve (12) guntas - under the registered sale deed dated
18.02.1981. The subject land is mutated in the name of late
Thimmaiah, under MR.No.20/1979-80 and the balance land was
mutated under MR.No.6/1998-99.
6. The revenue records clearly show that the certified copies of
the revenue records have been placed on record. The entries of
the year 1971-72 to 1976-77, reflect the cultivator's name as
Gangadharappa and the owner's name as Kareranga. The entries
of the year 1977-78 to 1980-81, reflect the names of
Gangadharappa, as well as K. Narayana Gowda (R-1) under
Column No.12(2). However, the entries for the year 1981-82,
reflect the names of Gangadharappa, K. Narayana Gowda and
Thimmaiah under Colunm No.12(2).
7. On 27.02.1999, respondent No.1, K. Narayana Gowda filed
an application in Form 7A under Section 77A of the Karnataka
Land Reforms Act, 1961 [KLR Act], claiming occupancy rights in
respect of the subject land. It is relevant to note that prior to the
said date, on 29.01.1999, the mother of respondent No.1, is
petitioner No.1 in the writ petition WP.37713/2016 - had filed Form
'7A' claiming occupancy rights in respect to lands falling in Survey
No.2/2B, to the extent of 37 guntas. Both applications were clubbed
together and considered by the Assistant Commissioner
(respondent No.2).
8. Although the said applications were in respect of different
parcels of land, the Assistant Commissioner, had clubed the same,
as they were filed by related parties i.e., mother and son. The
claim of writ petitioner No.1 for occupancy rights was rejected by
the learned Single Judge of this Court in WP.No.5388/2002, albeit,
to the extent of 25 guntas. The said order had dismissed the claim
of the petitioner No.1. Therefore, as noted above the writ petitioner
No.1 is not arrayed as a party to the present appeal.
9. After the application was filed, Inspection was conducted
pursuant to the said application, which was reported and the survey
report indicates that the surveyor visited the house of Respondent
No.1 and learnt from his mother that he serves as a teacher at
Manchenahalli School and therefore he could not be present for
measurement/survey of the land. Inspection was conducted
subsequently in the year 2003 and the said report dated
05.02.2003 indicates that there was some quarrel between
respondents and petitioners.
10. The Assistant Commissioner considered these applications
for grant of occupancy right and dismissed the same by an order
dated 15.03.2003. Respondent No.2 noted that Gangadharappa,
s/o Kare Rangappa is owner of the subject land and after his
demise, Hanumantharayappa and Radharama were owners and
they cultivated the land from 1972. His sons had given a joint
statement to the effect that the subject lands have been purchased
by their father from Kare Rangappa in the name of the eldest son.
The sale deed are also produced. Respondent No.2 had recorded
their statement. They also made statement to the effect that they
were in cultivation of the subject land. We consider it apposite to
set out the findings of the Assistant Commissioner (respondent
No.2) has set out in the order dated 18.03.2003, insofar as it
relates to the subject land. The same are reproduced. The relevant
extract to the said order is reproduced below.
"The documents concerned to Sy no: 15:2B
in The Gollahali Village, as per the Pahani record,
there is total 6A 12 gunta land there is Kharab 1-00
acre and residue 5acre 12 gunta. This land belongs
to Gangappa. After his death, his brother
Hanumantharayappa and Radharama have sold to
HT Gangadharappa son of Thimmaiah through
registered sale deed in Reg No: 2583:80-81 dated:
18-2-81. The Pahani records have been examined,
the name of K Narayanagowda is in 12:2 from
1977-78 to 1981-82. The name of applicant is not
entried in Cultivation 12:2 column from 1971-72 to
1976-77. Apart from this when Taluk surveyor went
to conduct the survey by informing to present in the
said place in advance, the said was not present
and it has came to know through Mahazar. From
the report it has came to know that on date: 5-2-
2003 when went to conduct survey with Revenue
Inspector, applicants and respondents have fought
and not co-operated to the survey, the 2nd
applicant is the lecturer Manchenahalli Composite
Pre-University College.
The aforesaid aspects have been examined;
it has confirmed that the 2nd applicant submitted
application for Sy No: 15:2B is not cultivator of said
land on date: 1-3-1974 as per Section 77A of
Karnataka Land Reforms Act 1961.
:ORDER:
The Form-7A Applications submitted by 1st
and 2nd applicants for 0-13 gunta land in Sy No:
2:2B and 5 Acre 12 gunta land in Sy No: 15:2B in
Gollahalli Village, Manchenahalli Hobli
Gowribidanuru taluk as per Section 77A of
Karnataka Land Reforms Act 1961 has been
dismissed.
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This order has been dictated to the typists
and typed ad revised and pronounced in Open
court on date: 15-3-2003."
11. Respondent No.1 and his mother (writ petitioner No.1)
preferred an appeal before the Karnataka Appellate Tribunal [KAT]
(Appeal No.602/2003) assailing the order dated 15.03.2003. KAT
rejected the said appeal by an order dated 13.05.2016. We
consider it apposite to set out the finding. The relevant extract of
the said order is set out below.
"10. Now coming to the claim of the 2nd appellant
who has filed Form No. 7A claiming the grant of
occupancy right pertaining to land measuring 5.12
acres in Sy. No. 15/2b. Originally the said land was
belonging to one Karegangappa. After his death his
brothers Hanumantharayappa and Radharam have
sold the same land to one H.T. Gangadharappa
S/o. Thimmaiah vide registered sale deed dated
18.02.1981. The trial court has said that on
verification of RTC the name of the 2nd appellant
K.N. Gowda is found in RTC for the year 1977-78
to 1981-82 and his name is found in Col. No. 12(2).
But the name of the Gangadharappa was found in
Col. No. 12(2) in RTC for the period from 1971-72
to 1981-82. But the name of the 2nd appellant
Narayana Gowda not found in Col. No. 12(2) for
the period 1971-72 to 1976-77 means as on the
relevant point of time i.e. as on 01.03.1974 his
name was not found since he was not the tenant of
the said land. The trial court also rejected the claim
of the 2nd appellant on the ground that the 2nd
appellant is a teacher in the combined Pre-
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University College. This aspect makes it very clear
that the 2nd appellant K. Narayana Gowda 1 is not
the tenant of the disputed land. Merely because the
name of the 2nd appellant Narayana Gowda was
found in Col No. 12(2) for the period 1977-78 to
1981-82 is not the ground for accepting his tenancy
because the 2nd appellant has shown one
Thimmaiah as landlord of his disputed land.
according to the sale transaction his son
Gangadharappa had purchased 5.12 acres in Sy.
No. 15/2b vide sale deed dated 18.02.1981 from
the brothers of Kare Gangappa. When that being
the case, the claim made by the 2nd appellant
against Thimmaiah as his Landlord is not correct.
11. Furthermore, there must be evidence before
the court to say the land in question should be the
tenanted land and it should be vested with the
Government as on the relevant point of time.
Absolutely no material has been placed by the 2nd
appellant to prove regarding the vesting of land.
The purchaser Gangadharappa has given the
evidence before the trial court as under:-
[ಸು ಾರು 1981-82ರ ಾ ನ ಕಯ ೆ ಪ ೆ ಾ ಂದಲೂ ನಮ
ತಂ ೆಯವರು ಾಗು ಾವ ಜ"ೕನು ಾಗುವ$ ಾಡು&'ರು(ೆ'ೕ)ೆ.
ಾವ ಈ ಜ"ೕನನು+ ,ಾ-ಗೂ ೋ-.ಾಗ ೕ ಗು&'.ೆ.ಾಗ ೕ
ೊ/0ರುವ 1ಲ. ಾ)ೇ ಸ2ಂತ ಾಗುವ$ ಾಡು&'ರು(ೆ'ೕ)ೆ. ಸದ-
ಜ"ೕ ನ 3.00 ಎಕ4ೆ ೕಲ - ಮರಗಳನು+ 6ೆ7ೆ8ರು(ೆ'ೕ)ೆ.
4ೇ9ೆ 6ೆ7ೆ ಇದು; ಭತ' 6ೆ7ೆಯು&' ೆ;ೕ)ೆ...]1
(Kannada Extraction)
(Translation of Kannada Version)
"Our father and I have been cultivating the land since we acquired it in the year
about 1981-82. We have not given this land to anyone on loan or lease. We are
cultivating it ourselves. We have grown eucalyptus trees in the said land of 03 acres.
We are also growing silk and rice."
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This is the evidence of the 2nd respondent before
the trial court.
12. Per contra the 2nd appellant herein has given
his evidence which reads as under:
=ದಲು ಗಂ.ಾಧರಪ? @A ಕ4ೆರಂಗಪ? ನಂತರ
ಗಂ.ಾಧರಪ?ನವರ ಪವ& ನಂತರ ಅವರ ಸ ೋದರ4ಾದ ಇವರು
4ಾCಾ4ಾಮ ಹನುಮಂತ4ಾಯಪ? ಭೂ ಾ ೕಕ4ಾ ರು(ಾ'4ೆ. ಾನು
ಸದ- ಜ"ೕನನು+ 1972-ಂದಲೂ ಾಗುವ$ ಾಡು&' ೆ;ೕ ೆ. ಸದ-
ಜ"ೕನು ನನ.ೆ 1972ರ ನನ.ೆ Eೕ ನ ಭೂ ಾ ೕಕರು .ೇF.ೆ
ೕGದ;ರು. 1972ರ Hಂ ೆ ಆದ4ೇ ಸ2ಂತ ಾಗುವ$ ಾಡು&'ದ;ರು.
ಾನು 4ಾ , ಕಡJೇ ಾK, Lೋಳ ಮುಂ(ಾದ 6ೆJೆಯನು+
6ೆ7ೆಯು&'ದ;ವ . 6ೆ7ೆದ ಫಸ ನ ಅಧN Oಾಗ ಭೂ ಾ ೕಕ-.ೆ
ೋರು ರೂಪದ ೊಡು&' ೆ;ನು. ೋರು ೊ/0ರುವ ದ ೆ
,ಾವ ೇ ಾಖJೆಗಳQ ಇರುವ 1ಲ.2
It means the appellant has no any evidence
to prove his tenancy. But it appears that he wanted
to say orally to the effect that he was a tenant since
the year 1972 itself. Even then he has no any
documentary evidence or any believable evidence
on this important issue.
12. As noted above, aggrieved by the said order Respondent
No.1, who is his mother, had preferred a writ petition being
WP.No.37713/2016, which was partly allowed by the impugned
order.
First, Gangadharappa son of Karerangappa, then after the death of
Gangadharappa, his brother Sri Radharama Hanumantharayappa became the land
owner. I have been cultivating the said land since 1972. The said land was given to
me on lease by the above land owner in 1972. Before 1972, I was cultivating it
myself. I used to grow rice, groundnut, jowar etc. I used to give half of the grown
crop to the land owner in the form of Koru. There are no records for giving Koru.
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13. It is apparent from the above that the Assistant
Commissioner and the KAT had examined the claim of the
respondent and had found that the entries made in the land records
did not substantiate his claim in being a tenant in possession and
cultivation of the subject land during the material period.
14. It is relevant to note that respondent No.1 had made an
application for being registered as an occupant of the subject land
under Section 77A of the KLR Act. The said section was introduced
by virtue of Act No.23 of 1998 with effect from 01.11.1988. Section
77A is reproduced below.
77-A. Grant of land in certain cases.--
(1) Notwithstanding anything contained in this Act, if
the Deputy Commissioner, or the [or any other officer
authorised by the State Government in this behalf] is
satisfied after holding such enquiry as he deems fit,
that a person,--
(i) was, immediately before the first day of March, 1974
in actual possession and cultivation of any land not
exceeding one unit, which has vested in the State
Government under Section 44; and
(ii) being entitled to be registered as an occupant of
such land under Section 45 or 49 has failed to apply
for registration of occupancy rights in respect of such
land under sub-section (1) of Section 48-A within the
period specified therein; and
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(iii) has continued to be in actual possession and
cultivation of such land on the date of
commencement of the Karnataka Land Reforms
(Amendment) Act, 1997,
-he may [* * *] grant the land to such person subject
to such restrictions and conditions and in the
manner, as may be prescribed.
(2) The provisions of sub-sections (2A) and (2B) of
Section 77 and the provisions of Section 78 shall
apply mutatis mutandis in respect of the grant of land
made under sub-section (1).]
[Provided that the land so granted together with the
land already held by such person shall not exceed 2
hectares of D class of land or its equivalent thereto.]"
15. The objective of introducing Section 77A of the KLR Act was
to grant another opportunity to a person who is a lawful tenant on
an appointed date, but had failed to make an application under
Section 45 of the KLR Act. Such an applicant could be registered
as an occupant only if the Deputy Commissioner or any other
officer authorized by the State Government was satisfied after
holding such enquiry, as it deems fit, that the applicant was
immediately before the first day of March, 1974 in actual
possession and cultivation of any land, not exceeding one unit, but
which was vested with the State Government by virtue of Section
44 of the KLR Act. Additionally, the Deputy Commissioner was also
required to be satisfied that the applicant had failed to apply for
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registration of the occupancy rights under Section 48 (1A) of the
KLR Act, but had continued to be in actual possession and
cultivation of such land on the date of the Karnataka Land Reforms
Act, 1997. The procedure for grant of land was specified under
Rule 26-C of the Karnataka Land Reform Rules. In Hosabayya
Nagappa Naik and others v. State of Karnataka, by its
Secretary, Revenue Department and others : ILR 2002 KAR.
1342, the Co-ordinate Bench of this Court had considered the
scope of inquiry to be conducted under Section 77A of the KLR
Act. The relevant extract of the said Rule is set out below.
"7. Having indicated the sweep and the
extent of Rule 26C let us now consider the scope
of the Rule. 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 there
possession and cultivation is continued without
being disturbed any further. It is very essential to
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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 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 purposes 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 that 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
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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 ie., 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 as
such the evidence that is required 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 is 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 le. 1.11.1998.
8. We say this for yet another reason namely
that the last date for filing of application under
Section 45 in Form No. 7 had been extended from
time to 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 be noticed. One is that the authority to whom the
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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 inquiring
authority under Section 48A 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
reasoned order ultimately on examination of the
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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."
16. In a later decision, the full Bench of this Court in Lokayya
Poojary and another v. State of Karnataka and others : ILR
2012 KAR 4345, this Court has held as under:
"16. Interestingly, as in the case of Rule 17, for
conducting enquiry, the procedure prescribed
under Section 34 of the Karnataka Land Revenue
Act, 1964, is not made applicable to enquiry under
Section 77-A of the Act. In an enquiry under
Section 77-A read with Section 26-C, the question
of the authority going into the question whether the
land in question is a tenanted land or not, would
not arise, which question, the Tribunal constituted
under the Act alone is competent to go into under
Section 48 of the Act. No such power or jurisdiction
has been conferred under Section 77-A on the
Deputy Commissioner or the Assistant
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Commissioner. The enquiry contemplated under
Section 77-A is to be confined only to the following:
(1) Whether the person who has made an
application under Section 77-A was in actual
possession and cultivation of any land before the
first day of March, 1974;
(2) Being entitled to be registered as occupants of
such land under Section 45 or 49, has failed to
apply for registration of occupancy rights in respect
of such land under sub-Section (1) of Section 48-A
within the period specified therein. In other words, if
such an application had been filed, which claim is
adjudicated upon by the Tribunal and if it is
negatived, then such a person is not entitled to file
an application under Section 77-A;
(3) Whether such a person is continued to be in
actual possession and cultivation of such land on
the date of commencement of the Karnataka Land
Reforms Amendment Act, 1977.
17. Proviso makes it clear that the land so granted
together with the land already held by such person
shall not exceed 2 Hectares of 'D' class of land or
its equivalent thereto. In other words, if the
applicant held land in excess of 2 Hectares of 'D'
Class of land or its equivalent thereto, he was not
entitled to grant of land under Section 77-A of the
Act, even if he was a tenant of the land in question
prior to 01.03.1974 and continued to be in
possession of the land and cultivating the land till
the introduction of Section 77-A of the Act. Though
such land vested with the Government as on
01.03.1974, he was not entitled to grant of land.
18. If we keep the above principle and the
Legislative intent in mind, what emerges is while
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amending the Act and introducing Section 77-A,
the Legislature was very clear in its mind that by
the said amendment, they were not intending to
have one more forum for registration of occupancy
rights under Section 45 of the Act. These two
provisions were intended to cover two independent
fields. Similarly, if a person has availed the benefit
of Section 45-A and lost the battle, Section 77-A
was not meant to give him one more opportunity, a
second innings. The power to grant occupancy
rights under Section 45 was vested with a quasi-
judicial authority like a Tribunal. On the day the
amendment introducing Section 77-A came into
force, the Tribunals were in existence and
functioning. The intention of the Legislature was
not to give them jurisdiction to decide the claims
under Section 77-A. A separate machinery is now
contemplated under Section 77-A. The enquiry that
was contemplated under Section 45 is totally
different from the enquiry under Section 77-A, as is
clear from the fact that corresponding to Section
77-A Rule 26(c) was enacted and the claim under
Section 77-A had to be adjudicated in terms of the
procedure prescribed under Section 26(c). A
reading of Section 77-A makes it very clear this
provision has a limited application. It applies to only
certain cases, It is necessary to bear in mind the
context in which Section 77-A is introduced. This
provision finds a place in Chapter IV, whereunder
as per Section 77 a provision is made for disposal
of surplus lands on such land being vested with the
Government and also other lands which are vested
in the State. Therefore, in a proceeding under
Section 77-A, the enquiry that was contemplated
under Section 48-A is excluded. This is a provision
that enables a person who is in occupation of a
land, of which he was a tenant and continues to be
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in possession as a tenant to apply for grant of such
land, if he had failed to make an application for
grant of occupancy rights within the time stipulated.
Such a person is given an opportunity to make an
application for grant of land provided he continues
to cultivate the land and he was not holding land in
excess of 2 Hectares of land. Therefore, in the said
proceedings the question whether the said land is a
tenanted land or not, cannot be gone into, as is
clear from the language used in Section 77-A. The
entire enquiry contemplated under Section 77-A is
in respect of a land, which is vested in the State
Government under Section 44, as on 01.03.1974. It
should be an undisputed fact. If the said fact is
disputed, then Section 77-A has no application.
The jurisdiction under Section 77-A is attracted only
in respect of undisputed tenanted lands. Vesting of
the land as on 01.03.1974 with the Government,
which fact is not in dispute, is a condition precedent
for application of Section 77-A."
(emphasis added)
17. In the present case, the land records do not reflect that
respondent No.1 was in occupation of the subject lands. The
learned Single Judge had clearly erred in holding that the RTC
extracts produced indicated that respondent No.1 along with the
said Gangadharaiah, were in cultivation of the land under the
landlord Kare Rangappa. On the appointed date i.e., 01.03.1974
does not reflect that respondent No.1 was a tenant under Kare
Rangappa or was in cultivated possession of the subject land. As
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noted above, the certified copy of the RTC extracts reflect the
name of Gangadharappa under Column 12(2) for the years 1971-
72 to 1976-77. The name of respondent No.1 appears along with
Gangadharappa under Column 12(2) in the year 1977-78. The
report of the Revenue Inspector also does not establish that
respondent No.1 was in cultivation of the land in question on the
appointed date.
18. The sons of late Thimmaiah (H.T. Gangadharaiah and
appellant Nos.3 and 4) had deposed that they were in cultivation of
the subject land after execution of the sale deed. However, the
land records reflect the name of Gangadharappa also prior to
1981-82. However, there could not be any material to determine
whether respondent No.1 was cultivating the land as a tenant
under Karerangappa during the relevant year and thereafter. In
view of the above, we are unable to concur with the decision of the
learned Single Judge to interfere with the orders passed by the
Assistant Commissioner and the KAT, which were impugned in the
WP.No.37713/2016.
- 24 -
19. The appeal is accordingly allowed and the impugned order is
set aside.
Sd/-
(VIBHU BAKHRU)
CHIEF JUSTICE
Sd/-
(C.M. POONACHA)
JUDGE
SD
