IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE S.N. SATYANARAYANA W.P.NO.1897/2016 C/W W.P.NOs.32150/2016 & 48861-864/2016, 28583/2015(LR-RES) IN W.P.NO.1897/2016: BETWEEN:
1. SHRI. B. SRINIVAS S/O SHRI. BALAPPA AGED 45 YEARS.
2. SMT. SARASWATHI W/O SHRI. B. SRINIVAS AGED ABOUT 40 YEARS.
PETITIONER 1 & 2 ARE RESIDING AT NO.515/1 T.CH. COLLEGE ROAD NAGAVARA VILLAGE & POST BENGALURU - 560 045.
3. SHRI. C.M. ANJANAPPA S/O LATE SHRI. MUNIYAPPA AGED ABOUT 41 YEARS.
4. SMT. GAYATHRAMMA W/O SHRI. C.M. ANJANAPPA AGED ABOUT 33 YEARS.
PETITIONERS 3 & 4 ARE RESIDING AT CHIKKABANAHALLI VILLAGE, KANNAMANGALA POST BENGALURU - 560 067.
PETITIONERS 1 TO 4 ARE REPRESENTED THROUGH THEIR POWER OF ATTORNEY HOLDER.
M/S. K.M.K. DEVOLOPERS PVT. LTD., NO.845, 5TH CROSS ROAD 10TH MAIN ROAD, INDIRANAGAR BENGALURU, REPRESENTED BY ITS AUTHORIZED SIGNATORY SHRI. MANJUNATHA REDDY S/O LATE SHRI. N. NARAYANA AGED ABOUT 50 YEARS RESIDING AT NO.23, 2ND FLOOR K.R. COLONY, DOMLUR LAYOUT BENGALURU – 560 071.
... PETITIONERS (BY SRI. G.A. SRIKANTE GOWDA., ADVOCATE) AND:
1. THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY DEPARTMENT OF LAND REVENUE VIKASA SOUDHA BENGALURU - 560 001.
2. THE LAND TRIBUNAL BENGALURU EAST REPRESENTED BY ITS CHAIRMAN ASSISTANT COMMISSIONER BENGALURU NORTH SUB-DIVISION BENGALURU – 560 001.
3. SHRI. K.N. NARAYAN REDDY S/O LATE K. NANJAPPA AGE: NOT KNOWN OCC: NOT KNOWN KUMBENA AGRAHARA VILLAGE BIDARAHALLI HOBLI BENGALURU EAST TALUK – 560 045.
4. SAMPATH NARAYANA S/O RAJA MANIKYAVELU R/AT DOMMASANDRA VILLAGE BIDARAHALLI HOBLI BENGALURU EAST TALUK.
... RESPONDENTS (BY SRI. B.P. RADHA., A.G.A. FOR R-1 & R-2;
SRI. G. LAKSHMIPATHI REDDY., ADVOCATE FOR R-3; VIDE ORDER DATED:06.07.2017 R-4 IS DELETED) THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS AND PROCEEDINGS OF THE CASE QUASH THE IMPUGNED ORDER DATED:18.07.2011 [ANNEX-P] PASSED BY THE LAND TRIBUNAL, BENGLAURU EAST TALUK, IN CASE NO.LRF[B] KA.6/1346/1974-75, IN SO FAR AS IT RELATES TO THE LANDS IN SY.NO.50/G, MEASURING 29 GUNTAS, SITUATED AT DOMMASANDRA VILLAGE, BIDARAHALLI HOBLI, BENGALURU EAST TALUK.
IN W.P.NOs.32150/2016 & 48861-864/2016: BETWEEN:
1. SHRI. GOVINDARAJU S/O SHRI BALAPPA AGED 43 YEARS.
2. SMT. MUNIRATHNAMMA W/O SHRI. GOVINDARAJU AGED ABOUT 40 YEARS.
BOTH ARE RESIDING AT: RESIDING/AT NO.515/1 T.CH. COLLEGE ROAD NAGAVARAJA VILLAGE & POST BENGALURU - 560 045.
PETITIONERS 1 AND 2 ARE REPRESENTED THROUGH THEIR POWER OF ATTORNEY HOLDER.
M/S. K.M.K. DEVOLOPERS PVT. LTD., NO.845, 5TH CROSS ROAD 10TH MAIN ROAD, INDIRANAGAR BENGALURU, REPRESENTED BY ITS AUTHORIZED SIGNATORY SHRI. MANJUNATHA REDDY AGED ABOUT 51 YEARS S/O LATE SHRI. N. NARAYANA RESIDING AT NO.23, 2ND FLOOR K.R. COLONY, DOMLUR LAYOUT BENGALURU – 560 071.
... PETITIONERS (BY SRI. JAYAKARA SHETTY H., ADVOCATE) AND:
1. THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY DEPARTMENT OF LAND REVENUE VIAKA SOUDHA BENGALURU - 560 001.
2. THE LAND TRIBUNAL BENGALURU EAST REPRESENTED BY ITS CHAIRMAN, ASSISTANT COMMISSIONER BENGALURU NORTH SUB-DIVISION, BENGALURU.
3. SHRI. K.N. NARAYAN REDDY S/O LATE K. NANJAPPA AGE: NOT KNOWN OCC: NOT KNOWN KUMBENA AGRAHARA VILLAGE BIDARAHALLI HOBLI BENGALURU EAST TALUK.
... RESPONDENTS (BY SMT. B.P. RADHA., A.G.A. FOR R-1 & R-2; SRI. G.V. KODANDARAM., ADVOCATE FOR R-3) THESE W.Ps. ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS AND PROCEEDINGS OF THE CASE, THIS HON'BLE COURT BE PLEASED TO EXERCISE ITS JURISDICTION UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA AND QUASH THE IMPUGNED ORDER DATED:18.01.2011 ANNEX-R PASSED BY THE LAND TRIBUNAL, BENGALURU EAST TALUK, IN CASE NO.LRF(B)KA.6/1346/1974-75 SO FAR AS IT RELATES TO THE LAND IN SY.NO.66, MEASURING 1 ACRE 6 GUNTAS, SY.NO.75/B, MEASURING 1 ACRE 10 GUNTAS, BOTH ARE SITUATED AT DOMMASANDRA VILLAGE, BIDARAHALLI HOBLI, BENGALURU EAST TALUK.
IN W.P.NO. 28583/2015: BETWEEN:
SRI. NARENDRABABU S/O Y. TAMMAIAH AGED ABOUT 50 YEARS OCC: AGRICULTURE AND SELF EMPLOYMENT, R/AT:NO.231 1ST CROSS, 1ST MAIN, 1ST STAGE 1ST PHASE, WEST OF CHORD ROAD RAJAJINAGAR, BENGALURU – 560 010.
... PETITIONER (BY SRI. G.A. SRIKANTE GOWDA., ADVOCATE) AND:
1. THE STATE OF KARNATAKA REP. BY ITS SECRETARY DEPARTMENT OF LAND REVENUE VIKAS SOUDHA BENGALURU – 560 001.
2. THE LAND TRIBUNAL BENGALURU EAST, REP BY ITS CHAIRMAN THE ASSISTANT COMMISSIONER BENGALURU SUB-DIVISION BENGALURU.
3. SRI. K.N. NARAYAN REDDY S/O LATE K.NANJAPPA AGE NOT KNOWN OCC: NOT KNOWN R/AT KUMBENA AGRAHARA VILLAGE, BIDARAHALLI HOBLI BENGALURU EAST TALUK – 560 029.
... RESPONDENTS (BY SMT. B.P. RADHA., A.G.A., FOR R-1 & R-2;
SRI. G.R. LAKSHMIPATHI REDDY., ADVOCATE FOR R-3) THIS W.P.IS FILED UNDER ARTICLES 26 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS AND QUASH THE IMPUGNED ORDER DATED:18.01.2011 PASSED BY THE R-2 VIDE ANNX-B.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R These three writ petitions are in challenge to tenancy rights conferred in favour of one Sri K N Narayana Reddy, s/o late Nanjappa, applicant in form No.7 seeking occupancy rights in respect of 4 items of lands bearing Sy.Nos.50/G measuring 29 guntas, Sy.No.62 measuring 1 acre 6 guntas, Sy.No.66 measuring 1 acre 4 guntas and Sy.No.75/B measuring 1 acre 10 guntas situated at Dommasandra village, Bidarahally Hobli, Bangalore East Ealuk, earlier Hoskote Taluk.
2. Admittedly, land bearing Sy.No.62 measuring 1 acre 6 guntas was under the ownership of Sri Y.Tammaiah and remaining three lands were under the ownership of Sri Raja Manikyavelu. The applicant Sri K N Narayana Reddy has filed an application in form No.7 seeking occupancy rights in respect of four lands mentioned herein above which was taken up for consideration before the land Tribunal, Hoskote Taluk whereunder he had shown the owner of lands bearing Sy.Nos.50/G, 66 & 75/B of Dommasandra village as Sri Raja Manikyavelu as on 28.12.1974. So far as land bearing Sy.No.62 is concerned, applicant Sri K.N.Narayana Reddy has shown the name of Sri Y.Tammaaiah as owner of the land. Admittedly, said application in form No.7 dated 28.12.1974 came to be rejected by the land Tribunal, Hoskote Taluk by order dated 26.12.1981.
3. The order of rejection of occupancy rights in respect of 4 items of lands were the subject matter of challenge by Sri K N Narayana Reddy before this Court in W.P.No.28868/1991. It is seen that said writ petition came to be allowed by order dated 16.11.2000 by setting aside the order impugned and remanding the matter to the Land Tribunal for fresh consideration. It is further stated that though order of remand was passed on 16.11.2000 by the co-ordinate Bench of this Court in the aforesaid writ petition, the matter was taken up before Land Tribunal, Bangalore East Taluk for re-consideration only on 03.11.2009. In the said proceedings, it is stated that Sri K.N.Narayana Reddy, s/o late Nanjappa did not appear before the Tribunal, instead, his power of attorney holder Sri K.N.Krishna Reddy appeared. It is based on the evidence of Sri K N Krishna Reddy recorded before the Tribunal, application in form No.7 came to be allowed by order dated 18.01.2011 where occupancy rights are conferred in favour of the applicant Sri K N Narayana Reddy in respect of the four lands referred to supra in addition to one another land. However, petitioners in these writ petitions are confined only with reference to the grant of occupancy rights in favour of Sri K N Narayana Reddy in respect of survey numbers referred to supra.
4. The contention of the petitioners in W.P.No.1897/2016 and W.P.Nos.32150/2016 & 48861-48864/2016 appears to be common inasmuch as, petitioners in the said writ petitions are persons who have acquired title to lands bearing Sy.Nos.50/G, 66 & 75/B which were lands originally belonged to Sri Raja Manikyavelu. According to Sri K N Narayana Reddy, he was the tenant of Sri Raja Manikyavelu as on the appointed date under the provisions of the Karnataka Land Reforms Act, 1961 namely, 01.04.1974 and that he filed an application in Form No.7 seeking occupancy rights against said person.
5. Incidentally, material on record in these proceedings would indicate that Sri Raja Manikyavelu died on 03.07.1969 itself. Thereafter, there was no relationship of tenant and landlord between deceased Sri Raja Manikyavelu and the applicant Sri K N Narayana Reddy. Incidentally, in an application filed under form No.7, he has not arrayed the then owners of the properties namely, legal heirs of Sri Raja Manikyavelu. It is seen that subsequently one of the nephew of Sri Raja Manikyavelu has dealt with these properties in selling the same in favour of petitioners in W.P.Nos.1897/2016 and 32150/2016 & 48861-
48864/2016 under two separate sale deeds dated 06.01.2006 i.e., during the interregnum period when the applicant – Sri K N Narayana Reddy had secured an order of remand of the application filed by him in form No.7 for re-consideration of his claim to the properties bearing Sy.Nos.50/G, 66, 75/9 and 62 of Dommasandra village.
6. Incidentally, what is to be seen is whether vendors of the petitioners herein namely, legal heirs of Sri Raja Manikyavelu were party to the proceedings before the Land Tribunal in Case No. LRF(B)KA.6/1346/1974-75 under which he had claimed occupancy rights. When the said order is looked into, it clearly discloses that none of these persons were parties to the said proceedings. Incidentally, vendor of the petitioners namely, Sri Niranjana Narayan who is claiming himself as successor to the said property was arraigned as party to the proceedings in W.P.No.28868/1991 filed by Sri K N Narayana Reddy who was challenging rejection of his claim for occupancy rights for aforesaid lands. It is also seen that subsequently, when the remanded matter was taken up for consideration on 03.11.2009, even then, vendor of the petitioners herein was not arrayed as party before the Land Tribunal.
7. Therefore, in the fact situation, proceedings which is conducted so far as occupancy rights in respect of the lands bearing Sy.Nos.50/G, 66 & 75/B of Dommasandra village is against a dead person and without bringing his legal representatives on record either in the original proceedings or in the writ petition which was filed by the tenant challenging the order of rejection of his claim at the first instance and in the second round of litigation which commenced in the year 2009, after order of remand was passed in W.P.No.28868/1991 in the year 2000. Therefore, tenancy right which was conferred in favour of Sri K N Narayana Reddy with reference to aforesaid three lands cannot be accepted inasmuch as, material on record would clearly indicate that after the death of Sri Raja Manikyavelu in the year 1969, the applicant Sri K.N.Narayana Reddy was not in possession and cultivation of the land.
8. This is for the simple reason that as on 06.01.2006 when the said land was sold by the legal heir of Sri Raja Manikyavelu in favour of the petitioners herein, there is no opposition by the applicant Sri K N Narayana Reddy and same would indicate that he was neither in possession nor cultivating the said land. It is also seen that petitioners herein having acquired title to the said property under two separate sale deeds dated 06.01.2006 have proceeded with development of the said properties which was not brought to the notice of this Court nor challenged the same before any Court or it is brought to the notice of the Tribunal when the remanded matter was pending consideration before Land Tribunal, which would clearly indicate that applicant – Sri K N Narayana Reddy, based on his tenancy claim prior to 1969 has filed form No.7 seeking occupancy rights and as on the appointed date, his possession is not established though RTC which was initially entered during the period when Sri Raja Mankikyavelu was alive and same is continued without being disturbed. But however, possession has not remained with him as discussed supra.
9. Therefore, order of Land Tribunal in the remanded proceedings in case No.LRF/(B)KA.6/1346/1974-75 dated 18.01.2011 cannot be sustained and same requires to be set aside insofar as lands bearing Nos.50/G, 66 & 75/B which measures respectively 29 guntas, 1 acre 4 guntas and 1 acre 10 guntas of Dommasandra village, Bidarahally Hobli, Bangalore East Taluk.
10. The order of Land Tribunal is not sustainable not only for the aforesaid reason but also for one another reason that the order which was passed by the land Tribunal without recording the evidence of the applicant Sri K N Narayana Reddy is not sustainable in the eye of law. Since the application is pursued by him through his Power of Attorney Sri K.N.Krishna Reddy who is admittedly not the tenant according to form No.7 which was taken up for consideration in the said proceedings. Therefore, evidence of the applicant through Power of Attorney holder Sri K N Krishna Reddy recorded by the Land Tribunal is unsustainable in the light of the observations made by Hon’ble Apex Court in the case of JANKI VASHDEO BHOJWANI AND ANOTHER vs INDUSIND BANK LIMITED AND OTHERS reported in (2005)2 SCC 217 wherein, it is observed as under:
“15. Apart from what has been stated, this Court in the case of Vidyadhar v. Manikrao (1999)3 SCC 573 observed at SCC pp.583-84, para 17 that:
“17. Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct...”
17. On the question of power of attorney, the High Courts have divergent views. In the case of Shambhu Dutt Shastri v. State of Rajasthan (1986)2 WLN 713 (Raj) it was held that a general power-of-attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in the witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power-of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.”
Therefore, order dated 18.01.2011 passed by the Land Tribunal is not tenable and accordingly, same is liable to be set aside.
11. Setting aside of the order dated 18.01.2011 passed by the Land Tribunal cannot be the subject matter of challenge for one more reason that application in form No.7 was filed against a dead person. Therefore, order of tenancy certificate secured is akin to a decree and same is not sustainable in the light of the judgment rendered in the matter of C.MUTTU vs BHARATH MATCH WORKS, SIVAKAS reported in AIR 1964 MYSORE 293 wherein the Division Bench of this Court has observed as under:
“6. In Mohun Chunder Koondoo v. Azeem Gazee Chowkeedar, 12 Suth W.R. 45 : 3 Beng LR AC 233 Sir Barnes Peatock C.J. who delivered the judgment of the Bench held that courts have no jurisdiction to decide the suit filed against a dead person and it is a nullity. This decision was followed by the Madras High Court in Veerappa. Chetty v. Tindal Ponnen, ILR 31 Mad 86 and observed in the Madras case as follows:-
“It does not appear to have ever been suggested that the issue of a writ against a dead man could be anything but a nullity, and we see no reason for regarding the presentation of a plaint, which under our system corresponds to the issue of the writ, as anything more”.
7. In Municipal Corporation ………….. It is thus clear that a suit filed by the petitioner against a dead person was a nullity and that the learned Subordinate Judge was perfectly justified in dismissing the suit on the ground that the respondent could not be substituted in the place of the Original defendant who was dead on the date of the presentation of the suit. We do not find any good ground to interfere with the order passed by the Subordinate Judge.”
12. With the aforesaid observations, this Court would make it clear that while setting aside the order of occupancy rights passed by the Land Tribunal, Hosakote Taluk, in proceedings No. LRF(B)KA.6/1346/1974-75 it is not necessary to remand the matter for reconsideration in respect of three items of land in Sy.Nos.50/G, 66 & 75/B of Dommasandra village, inasmuch as, filing of the application seeking occupancy right in respect of aforesaid three lands itself was erroneous inasmuch as he having no right to seek such relief. Therefore, the applicant Sri K.N.Narayana Reddy does not have any right to pursue the same before any authority or before this Court questioning denial of occupancy rights in respect of Sy.Nos.50/G, 66 & 75/B of Dommasandra village.
13. Now coming to W.P.No.28583/2015, petitioner has filed the said writ petition challenging the very same order of the Land Tribunal, Hosakote Taluk, so far as it pertains to Sy.No.62 measuring 1 acre 6 guntas of Dommasandra village. Admittedly, the said land belonged to Sri Y Tammaiah who was a party to the proceedings in LRF(B)KA.6/1346/1974- 75 at the initial stage, where application of Sri K N Narayana Reddy was rejected by order of Land Tribunal dated 26.12.1981 which was the subject matter of writ petition in W.P.No.28868/1991. When the said writ petition was pending, it is stated that Sri Y Tammaiah died on 04.01.1996. Thereafter, writ petition was allowed on 16.11.2000 by setting aside the order passed by the Land Tribunal and remanding the matter to the Land Tribunal. Though order of remand was passed on 16.11.2000, for nearly 9 years, nothing progressed and it is only on 03.11.2009 remanded matter was taken up for consideration before Land Tribunal where legal representatives of said Sri Y Tammaiah were not brought on record and proceedings continued against a dead person. Therefore, the order passed against a dead person in a proceedings is not sustainable in the eye of law as observed in the matter of C MUTTU referred to supra.
14. This Court would also have to observe that order granting occupancy rights in the remanded matter is unsustainable for the reason discussed supra, which is supported by judgment referred to in paragraph No.11 supra. In that view of the matter, order of the Land Tribunal so far as grant of occupancy rights in favour of Sri K N Narayana Reddy i.e., land bearing Sy.No.62 measuring 1 acre 6 guntas is not sustainable in the eye of law and same requires to be set aside and matter requires to be remanded back to the Tribunal for fresh consideration after giving notice to the legal representatives of deceased Y Tammaiah.
15. (a) Accordingly, W.P.Nos.1897/2016 and 32150/2016 & 48861-48864/2016 are allowed and order dated 18.01.2011 passed by the Land Tribunal, Hosakote, in granting occupancy rights to the applicant in respect of land bearing Sy.No.50/G measuring 29 guntas, Sy.No.66 measuring 1 acre 4 guntas and Sy.No.75/B measuring 1 acre 10 guntas of Dommasandra village in LRF.(B)KA.6/1346/ 1974-75 is set aside. Consequently, the claim of applicants to aforesaid land is rejected.
(b) W.P.No.28583/2015 is allowed and order dated 18.01.2011 so far as it pertains to land bearing Sy.No.62 measuring 1 acre 6 guntas of Dommasandra village said to be belonging to Y.Tammaiah in proceedings No.LRF.(B)KA.6/1346/ 1974-75 is set aside and matter is remitted back to the Land Tribunal, Hosakote Taluk, for fresh consideration in respect of aforesaid land bearing Sy.No.62 of Dommasandra village only. The same shall be reconsidered after giving notice to the legal representatives of deceased Y.Tammaiah.
Sd/- JUDGE *sp