IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JULY 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION NO.9136/2013(LR) BETWEEN FAUSTIN O.C. ANDRADE S/O LATE R.B.C.D ANDRADE AGED ABOUT 80 YEARS R/A ANDRADE HOME BOLOOR, MANGALORE-06 ... PETITIONER (BY SRI M VISHWAJITH RAI, ADVOCATE) AND 1. THE STATE OF KARNATAKA REPTD. BY ITS REVENUE SECRETARY DEPARTMENT OF REVENUE M S BUILDING BANGALORE-01 2. THE LAND TRIBUNAL MUDABIDRE MANGALORE TALUK MANGALORE REPTD BY ITS CHAIRMAN PIN CODE :575 001 3. SMT VENKAMMA W/O LATE RAMAPPA AGE : MAJOR 4. PUSHPA MAJOR 5. YOGESH DEVADIGA MAJOR 6. KALYANI MAJOR 7. JAYANTHI MAJOR 8. PRABHAKAR MAJOR 9. DIWAKAR MAJOR 10. POORNIMA MAJOR 11. DYANANDA MAJOR R3 TO R11 ARE CHILDRENS OF LATE RAMAPPA R/A KUNDELU AT KALAVARA VILLAGE MANGALORE DISTRICT-574 174 ... RESPONDENTS (BY SMT.B.P.RADHA, AGA FOR R1 & R2, R4 IS SERVED BUT UNREPRESENTED, VIDE ORDER DATED 17.07.2017, SERVICE OF NOTICE TO R3, R5 TO R11 IS HELD SUFFICENT) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS FROM THE TRIAL COURT WHICH ULTIMATELY PASSING AN ORDER ANNEXURE-A AND QUASH THE ORDER DT.7.2.2013, VIDE ANNEXURE-A, PASSED BY THE 2ND RESPONDENT.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner herein who is son of original land owner has come up in this writ petition impugning the order dated 7.2.2013 passed in No.RRT.822/1979-80 on the file of the Land Tribunal, Moodabidre, Mangalore Taluk, which is at Annexure-A.
2. Admittedly, the said proceedings, was initiated at the instance of one Sankappa Devadiga, who filed an application in Form No.7 seeking occupancy right in respect of land bearing Sy.No.85/5, measuring to an extent of 1 acre of Kalavaru village, Mangaluru Taluk and District contending that he is tenant in respect of aforesaid land. It is stated that initially the application filed by Sankappa Devadiga was allowed in granting occupancy right in his favour which was subject of matter challenge by the petitioner herein before this Court in WP.No.10891/2007 (LR), which came to be disposed of by order dated 8.2.2008, where the order of the Land Tribunal in granting occupancy right in favour of Sankappa Devadiga on 1.10.1981 was set aside and the matter was remanded back to the Land Tribunal for fresh consideration.
3. Subsequently, during the pendency of the remanded matter, the original applicant Sankappa Devadiga died and thereafter, his legal representatives came on record contending that during the lifetime of Sankappa Devadiga, he had bequeathed his tenancy rights in respect of aforesaid land in their favour by executing a Will dated 26.5.1989 vide document No.16/1989. It is stated that the said Will was not produced before the Land Tribunal. However, based on the alleged bequest, in the alleged Will, the proceedings were pursued before the Land Tribunal, where for the second time tenancy right is considered in favour of the persons, who claim occupancy right in their favour based on alleged bequest under a Will which was not produced before the Tribunal.
4. It is the said order of the Land Tribunal dated 7.2.2013, which is in challenge before this Court on two grounds. Firstly, that the land in question is punja land, therefore the same could not be considered as agricultural land for grant under Section 48A of the Karnataka Land Reforms Act, 1961 (‘KLR Act’, for short). Second ground urged is that, since the persons who pursued the matter before the Land Tribunal claim themselves as legal heirs of deceased Sankappa Devadiga are not his family members, they claim to have acquired their title to the land in question under a registered Will, which is not permissible in law. According to petitioner, the same is prohibited for the reason that they do not fall under the definition of ‘family’ under Section 2(12) of the KLR Act. Therefore, execution of Will to bequeath tenancy right in favour of anybody other than the children who are members of the same family, is prohibited. In support of said contention, learned counsel for the petitioner would rely upon judgments of this Court as well as that of Apex Court in the following matters:
1) In the mater of Joseph Albert Lewis vs. MIchael Roque Lewis and Others, reported in ILR 2007 KAR 4174;
2) In the matter of Sangappa Kalyanappa Bangi (dead) through LRs., -vs- Land Tribunal, Jamkhandi and Others, reported in (1998) 7 SCC 294; and 3) In the matter of Jayamma vs. Maria Bai, dead by Proposed LRs., and Another, reported in ILR 2004 KAR 3975.
5. In the light of aforesaid judgments, this Court is of the considered opinion that, the order of the Land Tribunal, Moodabidre, Mangaluru Taluk, dated 7.2.2013 in proceedings bearing No.LRT.822/1979-80 in recognizing the legatees under the alleged Will of Sankappa Devadiga as his legal heirs to claim tenancy right, cannot be accepted. Even otherwise, when the land which is subject matter of proceedings being a punja land, question of considering occupancy right in respect of the same does not arise. Therefore, the said order is required to be set aside.
6. Accordingly, this writ petition is allowed, the order of Land Tribunal Moodabidre, Mangaluru Taluk in No.LRT 822/1979-80 dated 7.2.2013 is hereby quashed.
Sd/- JUDGE nd/-