Before :- R. Banumathi, A.S. Bopanna and Hrishikesh Roy, JJ.
Civil Appeal No. 5692 of 2009. D/d. 27.11.2019.
Siddaramappa - Appellants
Versus
Siddappa (D) Thr. Lr. & Ors. - Respondents
For the Appellants :- S. N. Bhat, Priyank Jain, N.P.S. Panwar, Advocates.
For the Respondents :- Raja Venkatappa Naik, Sachin Pahwa, Ms. Apeksha Gupta, Rameshwar Prasad Goyal, Amit Kumar, Harvinder Singh Maan, K.R. Satheesh, Vijay Singh, Advocates.
ORDER
A.S. Bopanna, J. - The appellant herein is assailing the Order dated 10.07.2008 passed in Writ Appeal No.77 of 2006, by the High Court of Karnataka, Circuit Bench at Gulbarga.
2. The appellant herein contends that he is the owner of the property bearing Survey No.4 measuring 33.08 acres in Kusnoor Village, Gulbarga, having purchased in the year 1969 from Tukaram. On Karnataka Land Reforms (Amendment) Act coming into force, the respondent No.1, claiming to be a tenant in cultivation of the property in-question, had filed the application in Form No.7 before the Land Tribunal, Gulbarga, claiming occupancy rights in respect of the property inquestion.
3. The Land Tribunal had rejected the claim of the respondent no.1. Claiming to be aggrieved by the same, the respondent preferred Writ Petition NO.45012 of 2001 before the High court of Karnataka at Bangalore. Learned Single Judge while examining the matter was of the opinion that the procedure as contemplated under Rule 17 of the Karnataka Land Reforms Rules had not been adhered to by the Land Tribunal while conducting the enquiry and as such through the Order dated 02.12.2005 in Case NO.LRA/75-76/213 had set aside the order dated 08.02.1988 passed by the Land Tribunal, Gulbarga, Karnataka, and remanded the matter for fresh consideration by the Tribunal. The appellant claiming to be aggrieved by the same was before the Division Bench of the High Court assailing the order passed by the learned Single Judge. The Division Bench while examining the matter in Writ Appeal NO.77 of 2006 has taken note of the order passed by the learned Single Judge and by taking into consideration the conclusion of the learned Single Judge to remit the matter for reconsideration by the Land Tribunal, has upheld the order of the learned Single Judge. Claiming to be aggrieved by the same, the appellant is before this Court.
4. We have heard Mr. S.N. Bhat, learned counsel appearing for the appellant and Mr. Raja Venkatappa Naik, learned counsel appearing for the private respondents and also perused the impugned judgment and the materials on record.
5. Mr. S.N. Bhat, learned counsel appearing for the appellant, while assailing the order would contend that the remand of the matter to the Land Tribunal for the third time would not be justified. It is contended by him that in the earlier instance also the Land Tribunal had rejected the claim. It is further contended by learned counsel that the private respondents herein had in fact claimed right to the property by instituting a suit before the Civil Court in O.S. NO.184/1964 against the vendor of the appellant herein claiming specific performance based on an Agreement dated 22.01.1960. In that view, he contends that a consideration to that effect was made by the Trial Court and though the suit was partly decreed insofar as the injunction in favour of respondent no.1, in R.Appeal No.220 of 1965 it was set aside and suit was dismissed, which was upheld by the High Court in R.S.A.No.1280 of 1970. In that view, it is contended that at the first instance the respondent herein had filed a suit in a Civil Court and subsequently the second suit seeking grant of injunction was filed in O.S.No.159 of 1970 which was also dismissed by the Principal Munsiff, Gulbarga. Hence, the question of consideration of the matter before the Land Tribunal does not arise when no such claim of tenancy was raised in the suit and that too when the said civil suits were prior to coming into force of the Land Reforms (Amendment) Act. Mr. Bhat in that regard has referred to the judgment of the Division Bench of the Karnataka High Court at Bangalore in B.R. Ganganna Gowda (Since Dead) by Lrs. v. State of Karnataka and Others - 2010(1) KAR.L.J. 192 (DB) to contend that it has been held therein that if a suit instituted has been decided prior to the appointed day i.e. 01.03.1974 the same would bind the parties. Learned counsel contends that having failed in the Civil Court at the first instance, it would bar the consideration by the Land Tribunal as the land in-question cannot be considered to be a tenanted land.
6. On the other hand, Mr. Raja Venkatappa Naik, learned counsel appearing for the private respondents, would, however, contend that at the first instance when the matter was pending before the Land Tribunal, an application was made seeking grant of injunction and the Tribunal through the Order dated 17.11.1980 had arrived at the conclusion that the respondent(s) herein is in possession of the property in-question and granted injunction in his favour. In that light, it is contended by learned counsel, the fact that the respondent is in possession, had been taken note of by the Land Tribunal at the interlocutory stage but has thereafter committed the error in dismissing the application. On this aspect, learned counsel for the appellant has however submitted that the order passed on the interlocutory application has merged with the Order of the Tribunal by which the Tribunal has rejected the claim of the tenant and as such the respondent cannot take advanatage of the same.
7. Though the above contentions are put forth by learned counsel for the parties, in our opinion, this Court in a proceedings of the present nature would be handicapped in arriving at a definite conclusion on the aspect of tenancy, dehors a finding of fact to be recorded by the Land Tribunal after following the procedure in accordance with law. To that extent, though at the first instance a consideration by the Tribunal was made and claim had been rejected, the orders of the Land Tribunal had been set aside and remanded for reconsideration which has resulted in the present impugned order. In the present proceedings, the learned Single Judge while taking note of the correctness or otherwise of the Order dated 08.02.1988 which was in issue in the said writ appeal, before adverting to the merits of the rival contentions, has taken note of the legal position that the procedure adopted by the Land Tribunal is in violation of Rule 17 of the Karnataka Land Reforms Rules.
8. In such circumstance the issue as to whether the land in question is a tenanted land and as to whether the respondent(s) herein was the tenant in cultivation, is a matter of fact which is to be adverted to by the Land Tribunal by following the procedure laid down under Rule 17 of the Karnataka Land Reforms Rules. Therefore, the question on merit as to the nature of the Land and the actual affect of the cultivation of the land is left open by the High Court, to be considered by the Land Tribunal. Since learned counsel for the appellant has relied on the decision in the case B.R. Ganganna Gowda (Since Dead) By Lrs. (supra), the effect of the same is also to be taken note of by the Tribunal while arriving at a conclusion. In that circumstances when the Division Bench of the High Court has upheld the order of the learned Single Judge requiring reconsideration by the Land Tribunal, we see no reason to interfere with the order impugned.
9. The appeal being devoid of merit is accordingly dismissed. The Land Tribunal would now proceed to consider and dispose of the matter as expeditiously as possible but not later than six months from the date a copy of this order is made available to it.
10. We make it clear that we have not expressed any opinion on the merits of the rival contentions which are left open to be decided by the Tribunal based on the evidence that would be placed before it.
