IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE Mr. JUSTICE S.N.SATYANARAYANA WRIT PETITION NO.9906 OF 2007 (LR) BETWEEN:
1. CHANDRASHEKARAPPA, DEAD BY HIS LRs:
1(a) SUNANDA A., AGED ABOUT 50 YEARS, W/O LATE CHANDRASHEKARAPPA.
1(b) A.C. SANTHOSH, AGED ABOUT 30 YEARS, S/O LATE CHANDRASHEKARAPPA.
1(c) A.C. CHANDANA, AGED ABOUT 28 YEARS, D/O LATE CHANDRASHEKARAPPA.
1(d) A.C. SUPRITH, AGED ABOUT 25 YEARS, S/O LATE CHANDRASHEKARAPPA.
ALL ARE ABOVE PETITIONERS ARE RESIDENTS OF 1ST CROSS, 4TH MAIN, H.S. EXTENSION, HARIHAR – 577 601, DAVANAGERE DISTRICT.
(CAUSETITLE AMENDED BY IMPLEADING ABOVE LRs AS PER ORDER DATED 11/02/2016) 2. RUDRAMUNI, AGED ABOUT 51 YEARS, S/O LATE D. GURUSIDDAPPA, R/O 1ST CROSS, 4TH MAIN, H.S. EXTENSION, HARIHAR, DAVANAGERE DISTRICT, PIN CODE – 577 601.
3. A.P. NAGARAJA, S/O LATE D. GURUSIDDAPPA, SINCE DEAD, REPRESENTED BY LRs – PETITIONERS 1(a) TO 1(d) AND PETITIONER NO.2.
(CAUSETITLE AMENDED AS PER ORDER DATED 28/02/2017 ON MEMO) ... PETITIONERS (By Sri. R. GOPAL, ADVOCATE) AND:
1. THE LAND TRIBUNAL, HARIHAR TALUK, DAVANAGERE DISTRICT, REP. BY ITS CHAIRMAN. PIN CODE – 577 601.
2. STATE OF KARNATAKA, REVENUE DEPARTMENT, M.S BUILDING, DR. AMBEDKAR VEEDI, BANGALORE – 560 001. REP. BY ITS SECRETARY.
3. S. HALAPPA, AGED ABOUT 53 YEARS, 4. S. PAKEERAPPA, AGED ABOUT 56 YEARS, RESPONDENTS 3 & 4 ARE S/O LATE SHIVARAMAPPA, R/O A.K COLONY, HARIHAR, DAVANAGERE DISTRICT – 577 601.
5. B.H. AJJAPPA, S/O LATE HANUMANTHAPPA, AGED MAJOR, R/O HALLADAKERI, HARIHAR TALUK, DAVANAGERE DISTRICT – 577 601.
... RESPONDENTS.
(By Smt. B.P. RADHA, ADDL. G.A. FOR R-1 AND 2. SRI. PRASANNA B.R., ADVOCATE FOR C/R-5, R3 and R4 ARE SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER VIDE ANNEX.A. DT. 23.3.2007 PASSED BY R1.
THIS PETITION COMING ON FOR FURTHER ARGUMENTS, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Respondents 1(a) to (c) in LRM.TC:742/79-80 on the file of the Land Tribunal Harihara, have come up in this writ petition impugning the order dated 23.03.2007 passed in the aforesaid proceedings.
2. Brief facts leading to this writ petition are as under:
The proceedings in LRM.TC:742/79-80 is with reference to an application filed by the father of the fifth respondent seeking occupancy right in respect of 18 guntas of land in Sy.No.2 of Mahajenahalli of Harihara Taluk, Davanagere District. Admittedly, the land bearing Sy.No.2 originally measured 1 acre 37 guntas inclusive of 5 guntas of kharab appended thereto. The fact that the said land was subject matter of tenancy under various tenants, is not in dispute. It is also not in dispute that several agreements were there between the land owners and tenants prior to 1.03.1974, for sale of land in possession of individual tenants in their favour. In the present proceedings, what is in dispute is the tenancy rights of Hanumanthappa who is the father of fifth respondent, with reference to an extent of 18 guntas of land said to be in his possession as tenant, which according to him includes roughly around 8 ½ guntas of land which was subject matter of sale dated 5.8.1968 executed by the original land owners in favour of one Smt. Shivagangamma who is the mother of Respondents 1(a) to 1(c). The records would disclose that an agreement came to be entered into between the original owners and one Gurusiddappa, husband of Smt. Shivagangamma, on 10.03.1968 for sale of 9,000 sq.ft. which is shown as measuring 90’ x 100’ with the boundaries as under:
East by road towards Shimoga West by remaining land of vendors in same survey number.
North by land sold by vendors themselves to Somalli, Advocate South by road in the same land formed by the owners for the use of the owners of the land.
3. It is seen that the same schedule is provided to the agreement dated 10.03.1968 and also the sale deed dated 5.8.1968. However, by the time sale deed dated 5.8.1968 was executed, the agreement holder Gurusiddappa had died. Hence, the sale deed was executed in favour of his widow Shivagangamma. Records would also indicate that subsequently, there was obstruction for use and enjoyment of land sold in favour of Shivagangamma by the original land owners and the said interference is said to be by the father of fifth respondent Shri Hanumanthappa, which necessitated a suit being filed by Shivagangamma in O.S.No.459/1968 for the relief of declaration of her title to the said extent of 9,000 sq.ft. in Sy.No.2. The said suit against Hanumanthappa came to be decreed by judgment and decree dated 4.2.1970. In the said suit, 9,000 sq.ft. of land was identified as land equivalent to 8 ½ guntas. Against the judgment and decree passed in O.S.No.459/1968, an appeal in R.A.No.42/1970 was filed by Hanumanthappa, which also came to be dismissed by judgment dated 28.03.1972, thereby indicating that as on 28.03.1972, the dispute between Shivagangamma and Hanumanthappa with reference to title of 8 ½ guntas of land equivalent to 9,000 sq.ft. in land bearing Sy.No.2 of Mahajenahalli, had reached finality.
It is seen that pursuant to the decree passed in the aforesaid proceedings, mutation proceedings were conducted and the aforesaid land measuring 8 ½ guntas in Sy.No.2 purchased by her was mutated in favour of Shivagangamma and was phoded and assigned Sy.No.2/2 in her name, is not in dispute.
When the matter was at this stage, it is seen an application in Form No.7 for occupancy right was filed by Hanumanthappa with reference to 18 guntas of land in Sy.No.2 of Mahajenahalli village, without mentioning the boundaries to identify the same in land bearing Sy.No.2. In the said proceedings, Shivagangamma impleaded herself and opposed the same contending that the applicant Hanumanthappa was not in possession of 18 guntas of land and it was stated that in the guise of seeking occupancy right to an extent of 18 guntas, he is indirectly staking claim to 8 ½ guntas of land which is already purchased by Shivagangamma in the year 1968, much before the amendment to Land Reforms Act came into force with effect from 1.3.1974. It was also contended that even prior to the amendment to Land Reforms Act coming into force, the title to said extent of 8 ½ guntas / or 9000 sq.ft. was conferred by the Civil Court in her favour, which is coupled with possession. The said application of Hanumanthappa came to be dismissed, against which it is stated a writ petition was filed by Hanumanthappa in W.P.12653/1981. This Court, by order dated 15.09.1983, allowed the said writ petition and remanded the matter to the Land Tribunal for fresh disposal of Form No.7, after affording an opportunity to both parties. It is stated that in the remanded matter, the Land Tribunal reversed its earlier order and granted occupancy right in favour of Hanumanthappa in respect of 18 guntas of land. Against the said order, Shivagangamma had preferred W.P.No.35529/1993, which writ petition came to be allowed by order dated 22.11.2000 and the order of the Land Tribunal dated 21.01.1993 granting occupancy rights in favour of Hanumanthappa, was quashed. The order was again subject matter of appeal in W.A.No.972/2001 wherein the Division Bench, by its order dated 29.03.2004, allowed the appeal filed by Hanumanthappa. While doing so, the order of Land Tribunal as well as the order of learned Single Judge was set aside and matter was remanded back to Land Tribunal for fresh enquiry, wherein it was observed that the Land Tribunal shall get the land surveyed and thereafter shall decide the claim of Hanumanthappa for occupancy right. In the remanded matter, it is seen that the land was subjected to survey by the Taluk Surveyor of Harihara Taluk, who submitted his report to the Land Tribunal as seen in Annexure-“G” to this writ petition. Based on that, the Land Tribunal disposed of the application in Form No.7 by order dated 23.03.2007 which is impugned at Annexure-“A” in this writ proceedings. By then, the original tenant Hanumanthappa had died. In his place, his son D.H. Ajjappa had come on record and he had pursued the matter. On behalf of Shivagangamma who had died, her legal heirs – the petitioners herein were Respondents 1 (a) to 1(c) before the Tribunal.
4. The present writ petition is filed by Respondents 1(a) to (c) in LRM.TC No.742/79-80 impugning the order dated 23.03.2007, which is pursuant to a direction issued in W.A.No.972/2001 disposed of by judgment dated 29.03.2004. When this matter was taken up for final disposal, several documents were placed before this court, which included the original agreement of sale executed by the land owners in favour of Gurusiddappa, Husband of Shivagangamma, as well as the sale deed which is subsequently executed by the land owners in favour of Shivagangamma since Gurusiddappa had died during the interregnum period from the date of agreement, that is on 10.03.1968 and the date of sale which is on 5.8.1968. In these proceedings, the survey sketch which was prepared by Taluk Surveyor before the Land Tribunal and filed into the Land Tribunal is also produced as one of the documents, which is at Annexure-“G”.
5. Heard the learned counsel for the petitioners as well as contesting 5th respondent - B.H. Ajjappa, who is the son of original applicant in the aforesaid proceedings initiated by filing Form No.7 seeking occupancy rights in respect of 18 guntas of land in Sy.No.2 of Mahajenahalli. On going through the same, what is clearly seen is that the husband of Shivagangamma, namely Gurusiddappa, the father of fifth respondent, namely Hanumanthappa and various other persons were tenants of different portions of land bearing Sy.No.2 belonging to its original owners. Much before the amendment to Land Reforms Act came into force in the year 1974, the tenants had made an attempt to purchase the lands which were in their possession and cultivation, under various agreements. One of the agreement that was executed by the land owners in favour of the petitioner’s father Gurusiddappa is agreement dated 10.03.1968. The recitals of the said agreement would clearly indicate that 10 years prior to the said date, the agreement holder Gurusiddappa was in possession and enjoyment of an extent of 90’ x 100’ of land in Sy.No.2 which was being used by him as thrashing field, as could be seen from the recitals of the agreement dated 10.03.1968. The land which was in his possession and enjoyment as tenant was said to be purchased by him for valuable consideration of Rs.4,500/-. It is stated that as on the date of agreement, a sum of Rs.1,500/- was paid by Gurusiddappa. Subsequently, on two dates, that is on 10.04.1968 and 30.07.1968, he has paid a sum of Rs.500/- on each occasion and thereafter prior to execution of sale deed by the owner in favour of Gurusiddappa, he had died by then. Hence, sale deed was executed in favour of his widow Shivagangamma by receiving balance sale consideration of Rs.2,000/-. The sale deed which is executed in her favour clearly indicates that she was already in possession of an extent of 9,000 sq.ft. of land 10 to 15 years prior to the date of agreement itself and that possession which was with them as tenant, is confirmed as that of owner subsequent to the date of the execution of sale deed. Though the sale deed was executed in her favour, there appears to be some dispute between the purchaser Shivagangamma and one Hanumanthappa who is father of 5th respondent herein with reference to the boundary of the property in their respective possession. It is seen that fifth respondent’s father claimed the land which is purchased by Shivagangamma as land forming part of the land which is in his occupation as tenant and it is also contended by him that he had entered into an agreement on 16.05.1968 for purchase of the said land. Though he claimed that he has secured agreement on 16.05.1968 for purchase of 18 guntas of land including the land sold in favour of Shivagangamma, the said agreement is not pursued by him by filing suit for specific performance and he has given up his right to seek specific performance of that extent of land. However, it is contended by him that he continued to be in possession of the said land even as on 1.03.1974 when amendment to Land Reforms Act came into force and as such, he was entitled to seek occupancy rights in respect of the entire extent of 18 guntas.
6. It is necessary to add at this juncture, even before the amendment to Land Reforms Act came into force, that is in the year 1968 itself, when there was disturbance to possession of the property purchased by Shivagangamma under registered sale deed dated 5.8.1968, she filed a suit for declaration and permanent injunction against Hanumanthappa in O.S.No.459/1968, which after framing of appropriate issues regarding title and possession, came to be decreed in favour of Shivagangamma by judgment and decree dated 4.2.1970 declaring that she is the absolute owner in possession and enjoyment of the said land. It is seen that the said judgment and decree was subject matter of appeal by Hanumanthappa in R.A.No.42/1970 which also came to be dismissed. Therefore, even as on the date the amendment to Land Reforms Act had come into force on 1.3.1974, there was already a decree by a Civil Court recognizing the title and possession of Shivagangamma to an extent of 9,000 sq.ft. of land which is shown as 90’ x 100’ in sale deed dated 5.8.1968 with boundaries referred to therein and which is also referred to as approximately 8 ½ guntas in the decree in the original suit as well as the appeal. When these documents were there to confirm the title of Shivagangamma, the revenue authorities mutated the land in favour of Shivagangamma to the aforesaid extent, who also proceeded to phod land bearing Sy.No.2 and assigning sub no.2 to Sy.No.2, which is to an extent of 8 ½ guntas roughly or equivalent to 9000 sq.ft.
7. When matters stood thus, considering all these, an application which was initially filed seeking occupancy right by Hanumanthappa without showing any boundaries to the land which he was claiming in Sy.No.2, came to be dismissed rightly in the year 1981 which was subject matter of a writ petition filed by him in W.P.No.12653/1981 which initially came to be allowed by this Hon’ble Court by order dated 15.09.1983 in referring the matter to Land Tribunal for fresh disposal of Form No.7, since no evidence was recorded in the earlier round. In the remanded matter, it is seen Shivagangamma examined herself as a witness and also examined another independent witness Bharmappa who is holder of adjacent property situated on the Northern side. In the said proceedings, after recording the evidence of applicant Hanumanthappa, two witnesses on behalf of the applicant, namely Guddappa and Rayappa and after going through the records which included the judgment of the Civil Court, the majority members of the Tribunal gave an opinion that occupancy rights required to be granted to Hanumanthappa to an extent of 8 ½ guntas, ignoring the judgments in favour of the respondent in the Civil Court establishing her title and possession. The said order of the Tribunal dated 21.01.1993 was subject matter of writ proceedings in W.P.No.35529/1993 before a Co-ordinate Bench of this Court, which came to be allowed by order dated 22.11.2000 and the order of Land Tribunal was quashed. Against which, Hanumanthappa preferred an appeal in W.A.No.972/2001, which was disposed of by judgment dated 29.03.2004. While doing so, the Division Bench of this court set aside the order of learned Single Judge in W.P.No.35529/1993 as well as the order dated 21.01.1993 of the Land Tribunal and referred the matter back to the Tribunal to get a surveyor appointed to identify the land which is said to be in possession of the applicant vis-à-vis the purchaser Shivagangamma and thereafter to pass appropriate orders. In this background, the Taluk Surveyor was appointed by the Tribunal to measure the entire extent of land bearing Sy.No.2 of Mahajenahalli village, Harihara Taluk and to submit its report to the Land Tribunal, which is at Annexure-“G”. The said report would identify the land bearing Sy.No.2/2 as the land having boundary as seen in the schedule to the sale deed dated 5.8.1968 as well as 10.03.1968. While providing the said sketch, an attempt is made to show as if there is a cart track available on Northern portion of land bearing Sy.No.2/2 in addition to the road which is in existence on Southern side of land bearing Sy.No.2/2, which is subject matter of sale deed dated 5.8.1968, which appears to be clearly mischievous in trying to create a confusion in the mind of the Land Tribunal.
It is seen that the said report is accepted in spite of the fact that the Surveyor has failed to state as to who is actually in possession of land bearing Sy.No.2/2, which the surveyor has conveniently mentioned as the land which is claimed by both the parties, that is applicant Hanumanthappa’s family members as well as the purchaser Shivagangamma, in allowing that matter to be sitting on the fence again.
8. However, the Land Tribunal, while considering the said sketch and the report, has ignored the same and has also not taken into consideration the judgment rendered by Civil Court in O.S.No.459/1968, which is confirmed in R.A.No.42/1970 wherein at an earliest point of time, even before the amendment to Land Reforms Act coming into force, the title, possession and enjoyment of Shivagangamma to suit land is decided by the Trial Court on framing appropriate issues regarding title and possession and identifying the land which is in possession of purchaser Shivagangamma under sale deed dated 5.8.1968. In the said judgment and decree, it is surprising that the Land Tribunal members have completely given a go-by to the judgment of the Civil Court in O.S.No.459/1968 which is confirmed in appeal in R.A.No.42/1970 and contrary to these two documents, have deliberately allowed the claim of Hanumanthappa in respect of the land which is already sold by the original owner in favour of Shivagangamma prior to Land Reforms Act coming into force. The possession being confirmed in her favour by a decree of the Civil Court, is a grave error committed time and again by the Tribunal, not looking into in the earlier two rounds of litigation wherein the parties have tried to highlight their rights to the property only on the basis of application filed under Form No.7 which is without providing any boundaries and seeking 18 guntas of land in larger extent of Sy.No.2 which totally measured 1 acre 37 guntas inclusive of 5 guntas of kharab as on that date which has led to all the confusion.
The learned counsel for the fifth respondent has relied upon a short notes holding that, having regard to the express provision contained in Act No.31 of 1974, the Land Tribunal is not bound by any decree or order of the Civil Court as to possession or tenancy and it can investigate the genuineness of any claim of tenancy as also the reasons and circumstances under which the plea of tenancy was not raised or given up before the Civil Court and can come to its own conclusion.
9. It is to be seen that the above view cannot be applicable to the present case on hand. Therefore, in the absence of Land Tribunal looking into the Trial Court’s two judgments and having proceeded to accept the contention of applicant Hanumanthappa and his LR Ajjappa with reference to their possession and enjoyment of 18 guntas of land and holding that their land is over-lapping 8 ½ guntas which is already sold in favour of petitioner’s mother Smt. Shivagangamma, is erroneous and accordingly, the order dated 23.03.2007 requires to be set aside. This court would further reiterate that the aforesaid finding is further strengthened by the fact that the agreement dated 15.05.1968 which is relied upon by the applicant Hanumanthappa which is not pursued by him also clearly indicates that there is no boundary shown to 18 guntas of land which he was claiming from the original land owner under the said agreement to strengthen his possession and cultivation of his land in Sy.No.2 of Mahajenahalli village.
While doing so, this court would further observe that the judgments which are relied upon by the fifth respondent reported in ILR 1979 KAR 1937, ILR 2007 KAR 2409, (2000) 1 SCC 518, ILR 2006 KAR 2061 and (2004) 7 SCC 796 will not have any bearing to the facts of the present litigation between the petitioners and fifth respondent. In as much as, the first judgment in the matter of Mallappa Bhimanna Katti vs. The Land Tribunal, Sindagi and Others (ILR 1979 KAR 1937) is on the ground that the tenancy right would come to an end when once there is an agreement entered into between the parties for purchase of land. Here, there is no rejection of the application filed by Hanumanthappa, on the ground that there was already an agreement entered into by himself and original owner, but the same was not pursued. Therefore, the said judgment will not have any bearing to the facts of the present case.
Similar is the judgment in the case of Suresh S. Rao and Others vs. Land Tribunal Belgaum (ILR 2007 KAR 2409). When it comes to the third judgment which is relied which is in the matter of Mohan Balaku Patil and others vs. Krishnoji Bhaurao Hundre (Dead) by LRs, is with reference to presumption under the correctness of entries in Record of Rights, which has no bearing to the facts of the present case for the reason that the right of Respondent Nos.1(a) to (c) before the Tribunal has been recognized not on the basis of revenue entries but on the basis of registered documents dated 5.8.1968 which is much before the amendment to Land Reforms Act which has come into force with effect from 1.3.1974. Therefore, this judgment has no relevance to the case on hand.
Coming to the fourth judgment in the matter of Vasantha Nanasaheb and Others vs. Piraji Pandu Patil and Others (ILR 2006 KAR 2061), it is with reference to presumption regarding revenue entries under Section 133. As stated supra, the said judgment is similar to the one reported in ILR 2007 KAR 2409. Therefore, this judgment would also not have any bearing to the facts of the present case. Further, the judgment relied in the case of Ram and Another vs. State of Karnataka and others (2004) 7 SCC 796 is with reference to exclusive occupancy right in respect of the same land claimed by three close relatives by filing Form No.7 claiming 1/4th share each. Hence, this case also would not have any relevance to the facts of the present case.
10. Therefore, the cases relied upon by the counsel for the fifth respondent do not support the case of fifth respondent in trying to assert that the Land Tribunal was justified in granting occupancy rights in his favour with reference to 18 guntas of land.
Accordingly, this writ petition is allowed by setting aside the order of grant dated 23.03.2007 passed in LRM.TC: 742/1979-80 on the file of the Land Tribunal, Harihara.
Sd/- JUDGE KS