IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION NOs.35736/2012 & 37514/2012 (LR) BETWEEN SMT. JAIBUNNISA AGED ABOUT 60 YEARS, GRAND DAUGHTER OF LATE PATEL IMAM SAHEB R/AT THENKKA EKKARU VILLAGE, PERMUDE POST, MANGALORE - 574509, D.K. ... PETITIONER (BY SRI UDAYA PRAKASH MOOLIYA, ADVOCATE) AND 1. STATE OF KARNATAKA REP. BY ITS SECRETARY, DEPARTMENT OF REVENUE, VIDHANA SOUDHA, BANGALORE - 560001 2. LAND TRIBUNAL MOODABIDRE, MANGALORE - 574260, DAKSHINA KANNADA REP. BY ITS CHAIRMAN.
3. PUTTU GOWDA AGED ABOUT 68 YEARS, S/O LATE ANNAPPA GOWDA, R/AT DOOR NO. 111-75, THURUKARA POADAVU, TENKA YEKKAR VILLAGE, PERMUDE POST, MANGALORE – 574 509, D.K.
4. VARADARAJA VENKATRAMANA TEMPLE GURUPURA, MANGALORE – 574 142, D.K. DISTRICT, REPRESENTED BY ITS MANAGING TRUSTEES. ... RESPONDENTS (BY SRI G BALAKRISHNA SHASTRY, ADVOCATE FOR CAVEATOR – RESPONDENT No.3 SRI B.S.BUDIHAL, HIGH COURT GOVERNMENT PLEADER FOR RESPONDENT NOs.1 AND 2 RESPONDENT No.4 IS SERVED BUT UNREPRESENTED) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DT.26.7.2012 PASSED BY THE 2ND RESPONDENT - LAND TRIBUNAL AS PER THE IMPUGNED ORDER PRODUCED AT VIDE ANNEXURE-A AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner herein is said to be the granddaughter of late Patel Imam Saheb and she is impugning the order dated 26.07.2012 (Annexure ‘A’ to the petitions) passed by the second respondent, namely, Land Tribunal, Moodabidri, Mangaluru Taluk, in proceedings Nos.LRT.1216/1979-80 and LRT.194/1980-81.
2. The petitioner would state that her grandfather, Sri Patel Imam Sab was tenant of the land measuring to an extent of 02 Acres in Sy. No.89 and also land measuring to an extent of 12 cents in Sy.No.116/6 which are situate at Thenka Ekkaru village, Permude post, Mangaluru.
3. Admittedly, Form No.7 was filed by Sri Patel Imam Saheb, the grandfather of the petitioner herein, on 16.10.1976 (Annexure ‘B’ to the petitions) for grant of 02 Acres in Sy. No.89 only. In the said application, respondent No.4 - Sri Venkataramana Temple of Gurupur and Annappa Gowda, the father of respondent No.3 herein, were shown as land owners. Pursuant to the said application, proceedings in LRT.1216/1979-80 came to be registered before the Land Tribunal. However, the said Patel Imam Saheb did not seek occupancy rights in respect of the land bearing Sy. No.116/6 situate at Thenka Ekkaru village.
4. It is seen that much earlier to filing of Form No.7 by Sri Patel Imam Saheb, the third respondent’s father, Annappa Gowda / Annappagowda, had filed Form No.7 on 03.09.1974 (Annexure ‘C’ to the petitions) seeking conferment of occupancy rights in respect of various lands in survey numbers mentioned therein including land measuring 40 cents in Sy. No.116/6. Annappa Gowda claimed that he was tenant under respondent No.4 - Varadaraja Venkataramana Temple of Gurupura. Pursuant to the said application, proceedings in LRT.194/1980-81 were registered before the Land Tribunal.
5. In proceedings No.L.R.T(2).1216/79-80, the Land Tribunal observed that the applicant – Patel Imam Saheb had filed application in Form No.7 seeking conferment of occupancy rights in respect of the land measuring 02 Acres in Sy. No.89 only, however, at the time of conducting of survey, the applicant got measured the land measuring to an extent of 1½ acre in Sy. No.116 apart from the land in Sy. No.89. The applicant claimed to be subtenant under the said Annappa Gowda. The rival claimant - Annappa Gowda contended that he was tenant in respect of land totally measuring 6 Acres 91 cents comprised in Sy. No.89 and Sy. No.116 under Venkataramana Temple (respondent No.4 herein) Sri Patel Imam Saheb was not subtenant under him and sought for dismissal of the application filed by Sri Patel Imam Saheb. The Land Tribunal proceeded on the basis that Sri Imam Patel Sab had not produce any document to show that he was subtenant under Annappa Gowda, however, during spot inspection, on enquiry from the neighbouring land owners, it was found that he was subtenant under Annappa Gowda. Accordingly, the Land Tribunal by its order dated 30.07.1979 (Annexure ‘E’ to the petitions), conferred occupancy rights in respect of the lands measuring to an extent of: 01 Acre 38 cents in Sy. No.89 and 12 cents in Sy.No.116/6 in favour of the applicant – Sri Patel Imam Saheb. While doing so, the Land Tribunal rejected the application filed by Annappa Gowda in respect of the said lands.
6. The said order of the Land Tribunal was the subject matter of challenge in W.P. No.14512/1979 preferred by Annappagowda before this Court. Learned single Judge of this Court in his order dated 16.01.1984 (Annexure ‘R1’ to the statement of objections), observed that the Land Tribunal had not conducted proper enquiry inasmuch as the statements of the parties were recorded by a person other than the Chairman of the Land Tribunal and those persons were not tendered by it for cross-examination of the opposite party. Accordingly, learned single Judge of this Court allowed the writ petition by quashing the order dated 30.07.1979 passed by the Land Tribunal in proceedings No.LRT(2).1216/1979-80 and remitted the matter to the Land Tribunal for fresh disposal of the applications of the petitioner – Sri Annappagowda and respondent No.1 – Sri Patel Imam Saheb after holding a fresh enquiry in strict compliance with Rule 17 of the Karnataka Land Revenue Rules, 1966. Learned single Judge also observed that it was open for the petitioner – Annappagowda to take preliminary objection before the Tribunal regarding the claim of respondent No.1 – Sri Patel Imam Saheb in respect of land bearing Sy. No.116/6 on the ground that the same had not been included in Form No.7 filed by him.
7. After remand, the Land Tribunal issued notice to the parties and observed that writ petitioner – Sri Annappa Gowda did not participate in the enquiry and though Smt. Jaibunnisa (petitioner herein) appeared before the Land Tribunal, she did not produce authorization letter from Sri Imam Patel Saheb. The Land Tribunal on verification of the records, by its order dated 19.04.1989 (Annexure ‘F’ to the petitions) reiterated its earlier stand and conferred occupancy rights in respect of the land measuring to an extent of: 01 Acre 38 cents in Sy. No.89 and 12 cents in Sy.No.116/6 in favour of Sri Patel Imam Saheb, the grandfather of the petitioner herein.
8. Respondent No.3 herein, namely Puttu Gowda / Puthu Gowda being aggrieved by the said order of the Land Tribunal, preferred writ petition in W.P. No.34643/1993 before this Court. Learned single Judge of this Court in his order dated 03.06.1996 (Annexure ‘R2’ to the statement of objections), held that the order was passed by the Land Tribunal against a dead person inasmuch as the landowner, Sri Annappa Gowda, had died in the year 1985 and the Land Tribunal without bringing his legal representatives on record, had proceeded to pass the order impugned in the said petition. Accordingly, learned single Judge allowed the writ petition by quashing the order dated 19.04.1989 passed by the Land Tribunal and remanded the matter to the Land Tribunal, Mangaluru Taluk, for fresh disposal in accordance with law after issuing notice to the parties and after considering their respective case. Learned single Judge further observed that if respondent Nos.1 and 2, namely, Smt. Ameena and Smt. Jainunneessa / Smt. Jaibunnisa were found to be in possession of the lands in question by virtue of the earlier orders, their possession was required to be protected until a fresh order was passed.
9. After remand of the matter for second time, the Land Tribunal clubbed the application in Form No.7 filed by Sri Imam Patel Saheb, which was registered in proceedings No.LRT(2):1216:1979-80 with application in Form No.7 filed by the rival claimant - Sri Annappa Gowda, which was registered in proceedings No. LRT:7:194:80-81. Since Sri Imam Patel Saheb and Annappa Gowda had died, their respective legal heir/s were brought on record. The Land Tribunal in its order dated 28.08.1997 (Annexure ‘G’ to the petitions) has referred to the statement of Smt. Jaibunnissa that her grandfather (stated as father in the said order) was subtenant under Annappa Gowda and was cultivating the lands in question since 30 years from the date of her statement and that a house was constructed in the lands in question after obtaining licence. The Land Tribunal has also referred to the earlier statement made by Annappa Gowda before the Land Tribunal on 18.07.1979 to the effect that he was letting Patel Imam Saheb to graze his cattle in the said lands. In the light of the same, the Land Tribunal held that Patel Imam Saheb was cultivating the lands in question as subtenant under Annappa Gowda and accordingly, granted occupancy rights in respect of lands measuring to an extent of: 01 Acre 38 cents in Sy. No.89 and 12 cents in Sy. No.116/6 in favour of Sri Patel Imam Saheb since deceased and represented by Smt. Jaibunnisa (petitioner herein). The Land Tribunal observed that proceedings in LRT:7:194:80-81 insofar as it related to the other lands claimed by Annappa Gowda in his Form No.7, would be considered and decided later.
10. The said order of the Land Tribunal was the subject matter of challenge in writ petition in W.P. No.35559/1997 (LR) preferred by Puthu Gowda (respondent No.3 herein) before this Court. Learned single Judge of this Court observed that after remand of the matter for the second time by this Court, the Land Tribunal had not conducted fresh spot inspection and had not considered the records produced by the petitioner – Sri Puthu Gowda. Hence, the said writ petition came to be allowed by learned single Judge of this Court by his order dated 14.09.2005 (Annexure ‘R3’ to the statement of objections), wherein the order dated 28.08.1997 passed by the Land Tribunal insofar as it related to proceedings No.LRT.(2).1216/79-80 was quashed and the matter was remitted back to the Land Tribunal with direction to secure the presence of both the parties, permit them to adduce oral and documentary evidence, if any, and after making spot inspection in the presence of both the parties, to dispose of the case in accordance with law as expeditiously as possible. However, it was clarified that the order dated 28.08.1997 passed by the Land Tribunal in proceedings No.LRT.7/194/80-81 was undisturbed.
11. Subsequently, the Land Tribunal considered the application in Form No.7 filed by Sri Annappa Gowda with reference to the remaining lands i.e., other than the lands measuring to an extent of 01 Acre 39 cents in Sy. No.89 and 12 cents in Sy.No.116/6, in respect of which occupancy rights had already been conferred by the Land Tribunal in favour of Smt. Jaibunnisa. The Land Tribunal after conducting enquiry, by its order dated 13.03.2003 (Annexure ‘D’ to the petitions) held that Sri Annappa Gowda was tenant in respect of the remaining lands stated in the application in Form No.7 filed by him and accordingly, granted occupancy rights in his favour in respect of 15 items of land mentioned in the said order. However, the land measuring to an extent of 04 Acres 47 cents in Sy. No.89 was included in the list stated in the said order.
12. In the remanded proceedings Nos.LRT.194/1980-
81 and 1216/79-80 pursuant to the direction of this Court dated 14.09.2005 in W.P. No.35559/1997, the land Tribunal conducted enquiry and noticed that in the revenue records including RTC for the year 1968-69, where in column No.11 the name of rival claimant – Sri Annappa Gowda was shown as chalageni tenant. It has relied upon documents such as geni chit and geni receipt, produced by Puthu Gowda, who is respondent No.3 herein, which indicated that Annappa Gowda was tenant under respondent No.4 - Sri Varadaraja Venkataramana temple. It is observed by the Land Tribunal that the applicant - Patel Imam Saheb since deceased and represented by Smt. Jaibunnisa (petitioner herein) had not produced any document to show that he was subtenant under Annappa Gowda as on 01.03.1974, the appointed date under the Karnataka Land Reforms Act. Though Smt. Jaibunnisa claimed that a house was constructed on the lands in question about 15 years prior to the date of her cross-examination, during spot inspection conducted by the president and members of the Land Tribunal, it was found that the same was a small construction and it was not a residential house as claimed by Smt. Jaibunnisa. The Land Tribunal noticed that witness, Smt. Sundari, who supported the case of Smt. Jaibunnisa in her cross-examination had admitted that there was a dispute between her children and Sri Puthu gowda (respondent No.3 herein) in respect of certain land and there was a complaint lodged in police station in that regard, which fact was evident from Exs.P70 and P71 produced by Puthu Gowda. The land tribunal further noticed that earlier in proceedings No.LRT.194/1980-81 the rival claimant - Annappa Gowda had sought for grant of occupancy rights in respect of lands measuring to an extent of 05 Acres 85 cents in Sy. No.89 and 96 cents in Sy.No.116/6. However, he was granted occupancy rights in respect of lands measuring to an extent of 4 Acres 47 cents in Sy. No.89 and 84 cents in Sy.No.116/6 only.
13. Having regard to the aforesaid material on record, the Land Tribunal by its order dated 26.07.2012 (Annexure ‘A’ to the petitions), rejected the application in Form No.7 filed by the applicant – Sri Patel Imam Saheb which was registered in proceedings No.RRT.1216/1979-80. While doing so, the Land Tribunal has allowed the application in Form No.7 filed by Sri Annappa Gowda, who was the rival claimant / applicant in proceedings No.RRT No.194/1980-81 and granted occupancy rights in respect of lands measuring to an extent of 01 Acre 38 cents in Sy. No.89 and 12 cents in Sy.No.116/6 in favour of Annappa Gowda since deceased represented by his son Puthu Gowda (respondent No.3 herein). Being aggrieved by the same, the petitioner is before this Court.
14. Heard the learned counsel for the petitioner, learned Additional Government for respondent Nos.1 and 2, learned counsel for respondent No.3. Perused the material on record including the statement of objections filed by learned counsel for respondent No.3 and the order sheet maintained in these petitions which discloses that interim stay of the impugned order insofar as it related to land measuring to an extent of 02 Acres in Sy. No.89 situate at Thenka Ekkaru village was granted by coordinate Bench of this Court vide order dated 13.09.2012.
15. In this proceedings, several documents were produced by the petitioner in support of her prayer that though her grandfather, Sri Patel Imam Saheb, was subtenant in respect of the aforesaid two items of land i.e., land measuring to an extent of 01 Acre 38 cents in Sy. No.89 and 12 cents in Sy. No.116/6, the said aspect has not been considered by the Tribunal in its latest order which is passed on 26.07.2012 vide Annexure ‘A’ to the petitions. It is also stated that with reference to the very same lands, the petitioner had earlier filed the suit in O.S. No.671/1994 for the relief of permanent injunction against Sri Puthu Gowda (respondent No.3 herein) before the Court of III Additional Civil Judge (Jr. Dn.), Mangaluru. The said suit came to be decreed with costs by the trial Court by judgment dated 13.02.1998 (copy of decree at Annexure ‘H’ to the petitions). It is contended by the petitioner that by virtue of the said judgment and decree, the possession of the petitioner was recognized in respect of lands measuring to an extent of 01 Acre 38 cents in Sy. No.89 and 12 cents in Sy.No.116/6.
16. Learned counsel for respondent No.3 would bring to the notice of this Court that the said judgment and decree dated 13.02.1998 passed by the trial Court in O.S. No.671/1994 was the subject matter of challenge in R.A.
No.379/2004 (old No.31/1998) preferred by Sri Puthu Gowda (respondent No.3 herein) before the Court of II Additional District Judge, Mangaluru. The first appellate Court by its judgment dated 11.06.2007 (Annexure ‘R9’ to the statement of objections), allowed the said appeal while setting aside the judgment and decree dated 13.02.1998 passed by the trial Court in O.S. No.671/1994. While doing so, the first appellate Court has remitted the matter back to the said Court by staying further proceedings till final adjudication of occupancy rights either in favour of the plaintiff – Smt. Jaibunnisa or the defendant – Sri Puthu Gowda was confirmed by the concerned Land Tribunal. The status quo order passed on 13.10.1993 was ordered to continue to operate till final adjudication of the occupancy rights by the Land Tribunal.
17. It is seen that as per the judgment passed by learned II Additional District Judge, Dakshina Kannada, Mangaluru, dated 11.06.2007 vide Annexure ‘R9’ to the statement of objections, the matter was remanded to the trial Court with direction to await the final adjudication of occupancy rights by the Land Tribunal. Therefore, the said judgment passed in R.A. No.379/2004 has now merged with the order of the Land Tribunal dated 26.07.2012 vide Annexure ‘A’ to the petitions.
18. When the entire material available on record is looked into, it clearly discloses that though the petitioner’s grandfather, Sri Patel Imam Sab, contended that he was an agriculturist and he was a chalageni tenant under the third respondent’s father, Annappa Gowda, who was admittedly Mulageni tenant of several items of land including two items of land measuring to an extent of 01 Acre 38 cents in Sy. No.89 and 12 cents in Sy. No.116/6 under respondent No.4 –Sri Vardaraja Venkatramana Temple, the evidence adduced by Sri Puthu Gowda, son of Annappa Gowda before the Land Tribunal, would indicate that Annappa Gowda used to hire the services of Sri Patel Imam Saheb, the petitioner’s grandfather, to treat their cattle and other animals when they fell ill and as such he never indulged in any agricultural activity at any point of time. Though the Land Tribunal on several earlier occasions had repeatedly passed orders confirming the occupancy rights in respect of lands measuring to an extent of 01 Acre 38 cents in Sy. No.89 and 12 cents in Sy. No.116/6 in favour of the petitioner’s grandfather, the material available on record would clearly indicate that the same was erroneous as could be seen from the reasoning given by the second respondent, Land Tribunal, in its latest order dated 26.07.2012, which is at Annexure ‘A’ to the petitions. On going through the said order, it is clearly seen that the third respondent’s father, Annappa Gowda not only sought for occupancy rights in respect of the aforesaid two items of land, but he sought for occupancy rights in respect of several items of lands as could be seen from Annexure ‘R13’ to the statement of objections, which is an extract of village-wise register where at second page, there is reference to lands in: Sy. No.89 measuring 05 Acres 85 cents and Sy. No.116/6 which is shown in two bits i.e., 48 cents and 40 cents being in possession and enjoyment of Sri Annappa Gowda, the third respondent’s father. Besides that in the application in Form No.7 filed by Sri Patel Imam Sab on 16.10.1976 (Annexure ‘B’ to the petitions), he had claimed occupancy rights in respect of the land measuring to an extent of 02 Acres in Sy. No.89 and not 01 Acre 38 cents, which was considered by the Land Tribunal and further, he had not sought for grant of occupancy rights insofar as the land measuring to an extent of 12 cents in Sy. No.116/6. Despite the same, the said application was generously considered by the Land Tribunal in granting land measuring to an extent of 12 cents in Sy. No.116/6 on more than one occasion. The said anomalies in the earlier orders of the Land Tribunal were looked into by the land Tribunal in its latest order dated 26.07.2012 and accordingly, it dismissed the application in Form No.7 dated 16.10.1976 filed by Sri Patel Imam Saheb, the petitioner’s grandfather. In that view of the matter, the impugned order passed by the Land Tribunal does not call for interference in these writ petitions.
19. Accordingly, these writ petitions are dismissed.
20. Learned Additional Government Advocate is directed to file memo of appearance within two weeks from today.
Sd/- JUDGE sma