IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION No.9881/2012(LR-SEC 48-A) BETWEEN 1. N. VIJAYAKUMAR AGED ABOUT 51 YEARS S/O LATE SULOCHANA 2. N. SHASHIKALA AGED ABOUT 56 YEARS D/O LATE SULOCHANA 3. N. SHOBHA AGED ABOUT 47 YEARS D/O LATE SULOCHANA PETITIONERS 1 TO 3 ARE RESIDING AT KELAGINAMANE, KOWDOOR, KARKALA TALUK, BAILOOR-574 102 UDUPI DISTRICT. ... PETITIONERS (BY SRI T.R.SUBBANNA, SENIOR ADVOCATE ALONG WITH SMT.DIVYA KRISHNA, ADVOCATE FOR M/s. SIVAN & SIVAN ASSTS) AND 1. GOPALAKRISHNA S/O LATE B.PARAMESHWARA AGED ABOUT 64 YEARS R/AT THIMMAPPA KRUPA, VOLAKADU, UDUPI TOWN, UDUPI DISTRICT.
2. THE LAND TRIBUNAL KARKALA TALUK, UDUPI DISTRICT REPRESENTED BY ITS CHAIRMAN TALUK OFFICE, KARKALA UDUPI DISTRICT 3. THE STATE OF KARNATAKA REVENUE DEPARTMENT REPRESENTED BY ITS CHIEF SECRETARY REVENUE DEPARTMENT VIDHANA SOUDHA BANGALORE – 560 001 ... RESPONDENTS (BY SRI ABHINAV RAMANAND, ADVOCATE FOR R1 SRI B.S.BUDIHAL, HIGH COURT GOVERNMENT PLEADER FOR RESPONDENT NOs.2 AND 3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED.17.12.2011 PASSED IN TRL.275/81-82 VIDE ANNEXURE ‘F’ TO THE PETITION.
THIS WRIT PETITION COMING ON FOR FURTHER ARGUMENTS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioners herein are the children of Smt. Sulochana, the applicant in Form No.7 on the file of the Land Tribunal, Karkala. The said Smt.Sulochana is said to be the daughter of Achu @ Laxmayya Sherigara / Laxmiah Servegara.
2. The records would indicate that Smt. Sulochana, the mother of petitioners herein, initially filed application in Form No.7 on 17.08.1974 seeking occupancy rights in respect of 5 items of lands i.e., land/s measuring to an extent of: 54 cents Sy. No.27/5; 15 cents in Sy. No.21/7; 38 cents in Sy. No.21/12; 24 cents in Sy. No.27/6 and 02 Acres 69 cents in Sy. No.27/3 situate in Kowdoor village, Kalaginamane, Dakshina Kannada District. The total extent of land in all these five survey numbers is 04 Acres. She claimed to be a chalageni tenant under moolageni tenant Sri Parameshwara, son of Sri Beeru @ Balayya Sherigara. It is seen that the said application is registered in proceedings No.TRL.764/74-75 on the file of the Land Tribunal, Karkala.
3. It has come on record that several suits were pending between the landlord - Sri B. Parameshwara and the applicant – Smt. Sulochana and one such suit was O.S. No.224/1971 filed by Sri B. Parameshwara since deceased and represented by his widow and four children against Smt. Sulochana, before the Court of Principal Munsiff, Karkala, South Kanara, on 15.04.1971. The said suit was filed for the relief of permanent injunction restraining her from entering into the plaint ‘A’ schedule properties i.e., two items of nanja lands measuring to an extent of 72 cents in Sy. No.27/2 and 38 cents in Sy. No.21/12 situate at Kowdoor village, Karkala Taluk, and interfering in any manner with the plaintiffs’ possession and enjoyment of the same and also for damages.
4. In the said suit (O.S. No.224/1971), the defendant – Smt.Sulochana filed her written statement on 27.07.1971 denying the allegations made in the plaint and inter alia contending that she has been in possession and enjoyment of the aforesaid plaint ‘A’ schedule properties since nine years next before the date of filing the written statement. In that regard, Principal Munsiff, Karkala, South Canara, vide his communication dated 30.10.1975 bearing Dis. No.184075 to the Secretary, Land Tribunal, asked the latter to give finding as to whether the defendant – Smt. Sulochana was a tenant under the plaintiffs (Sri B. Parameshwara since deceased and represented by his widow and children) and whether she was in possession of the plaint ‘A’ schedule properties.
5. It is in this background, the Land Tribunal, which was seized of the matter in TRL.764/74-75 considered the application filed by Smt. Sulochana in the said proceedings on 13.01.1976 for injunction against Sri Nagappa Shervegar, general power of attorney holder of Smt. Rajeevi (widow of late Sri B. Parameshwara) and her children, in respect of lands, which were the subject matter of the application in Form No.7 filed by her on 17.08.1974 as well as the land measuring to an extent of 72 cents in Sy. No.27/2 and 38 cents in Sy. No.21/12 situate at Kowdoor village. The Land Tribunal after issuing notice to the parties and considering the material on record, has observed that patta with regard to the disputed properties stood in the name of late Sri B. Parameshwara, son of late Beeru Yane Balaiah. It is further observed that Sri Beeru Yane Balaiah (father of Sri B. Parameshwara) and Sri Achu alias Laxmana / Achu alias Laxmayya (father of the applicant – Smt. Sulochana) were direct brothers. Smt. Sulochana had taken up the contention that her father during his lifetime was cultivating the disputed properties and after his death, she continued to cultivate the same. Since the applicant’s father and father of Sri B. Parameshwara were members of single joint family, the applicant’s father could not be considered as a tenant of the lands belonging to his own brother’s son and hence, the applicant was not entitled to put forth the tenancy claim. In that view of the matter, the land Tribunal, by its order dated 16.06.1976, rejected the application dated 13.01.1976 filed by Smt. Sulochana for injunction and declined to allow the tenancy claim put forth by her in the declaration filed by her. The said order would indicate that the tenancy claim of Smt. Sulochana with regard two items i.e., land measuring to an extent of 72 cents in Sy. No.27/2, which was not covered under application in Form No.7 filed by Smt. Sulochana on 17.08.1974, and 38 cents in Sy. No.21/12, which was covered under declaration dated 17.08.1974, situate at Kowdoor village, was also rejected by the Land Tribunal.
6. The material on record discloses that the applicant – Smt. Sulochana filed one more application in Form No.7 on 17.01.1976, wherein along with five items of lands measuring: 54 cents in Sy. No.27/5; 15 cents in Sy. No.21/7; 38 cents in Sy. No.21/12; 24 cents in Sy. No.27/6 and 02 Acres 69 cents in Sy.No.27/3 situate at Kowdoor village, which were the subject matter of the earlier Form No.7 filed by her on 17.08.1974, one more item of land measuring to an extent of 72 cents in Sy. No.27/2 situate at Kowdoor village, was included.
7. Pursuant to the application in Form No.7 filed by Smt. Sulochana on 17.01.1976, proceedings in LRY.TRL.764/76-77 was registered before the Land Tribunal. Perusal of the order sheet maintained in the said proceedings reveals that the Land Tribunal has passed an order on 22.07.1977, which reads as under:
“Case called. Orders have already been passed on 16-6-76. Hence, no further enquiry is required in this regard. The fresh notices have been issued on mistaken notion.”
When the earlier order dated 16.06.1976 passed by the Land Tribunal in proceedings No.TRL.764/74-75 is looked into, it is seen that the Land Tribunal has considered and rejected the tenancy claim of Smt. Sulochana in respect of five items of lands, which were the subject matter of the application in Form No.7 filed by her on 17.08.1974, as well as in respect of land measuring to an extent of 72 cents in Sy. No.27/2, which is additional item of land in respect of which Smt. Sulochana had sought conferment of occupancy right in Form No.7 filed by her on 17.01.1976. It may be noted that the said land measuring to an extent of 72 cents in Sy. No.27/2 along with land measuring to an extent of 38 cents in Sy. No.21/12 (covered under earlier Form No.7 dated 17.08.1974) were the subject matter of the suit in O.S. No.224/1971 filed by the legal heirs of Sri B. Parameshwara against Smt. Sulochana before the Prl. Munsiff Court, Karkala, and in respect of which the opinion of the Land Tribunal was sought by the said Court.
8. The order dated 16.06.1976 passed by the Land Tribunal in proceedings No.TRL.764/1974-75 was the subject matter of challenge in W.P.No.10913/1977 filed by Smt.Sulochana before this Court. A coordinate Bench of this Court in its order dated 22.07.1983, has observed that subsequent to filing of the said writ petition, the application in Form No.7 filed by the tenant (Smt. Sulochana) itself had been disposed of by the Land Tribunal and as a result, the writ petition itself had become infructuous and accordingly, dismissed the said writ petition. With this, the proceedings in TRL.764/74-75 is said to have reached a quietus.
9. At this juncture, it is required to take a pause and see as to what happened to the proceedings in TRL.275/1981-
82 before the Land Tribunal, Karkala. The said proceedings was initiated pursuant to the application filed by the very same person, Smt. Sulochana, in Form No.7 seeking occupancy rights in respect of the land measuring to an extent of 03 Acres 51 cents in Sy. No.211 of Nire / Neere village. Admittedly, the said application was filed by her on 28.12.1976.
10. Now, one more pause is required to clarify as to what are the particulars of the lands in respect of which occupancy rights was sought by Smt. Sulochana in the said application. The contesting first respondent herein, who is the son of Sri B. Parameshwara, would contend that in the application dated 28.12.1976 filed by Smt. Sulochana, which was registered in proceedings No.TRL.275/1981-82, she had sought occupancy right in respect of only one item of land i.e., land measuring to an extent of 03 Acres 51 cents in Sy. No.211 situate at Neere village. In that behalf, certified copy of application in Form No.7 filed by Smt. Sulochana dated 28.12.1976 is produced at Annexure ‘R15’ to the statement of objections filed by learned counsel for respondent No.1. However, it is stated that subsequently, the said application has been tampered by Smt. Sulochana in replacing the same with another application, wherein occupancy rights were sought in respect of six items of lands i.e., land measuring to an extent of 72 cents in Sy. No.27/2; 54 cents in Sy. No.27/5; 15 cents in Sy. No.21/7; 38 cents in Sy. No.21/12; 24 cents in Sy. No.27/6 and 02 Acres 69 cents in Sy. No.27/3 situate at Kowdoor village, along with land measuring to an extent of 03 Acres 51 cents in Sy. No.211.
11. It is seen that the said insertion of new numbers in the application dated 28.12.1976 pending in proceedings No.TRL.275/81-82 on the file of the Land Tribunal was brought to the notice of the revenue authorities in respect of which an enquiry was ordered and same was pending consideration.
12. When the matter stood thus, the third application in Form No.7 filed by Smt. Sulochana on 28.12.1976, which was registered in proceedings No.TRL.275/1981-82, was taken up for consideration by II Land Tribunal, Karkala, Dakshina Kannada. The II Land Tibunal has taken into consideration the earlier order of the Land Tribunal dated 16.06.1976 passed in proceedings No.TRL.764/74-75, whereby application dated 13.01.1976 filed by Smt. Sulochana for injunction against the respondent therein as well as tenancy claim made by her in respect of lands covered in Form No.7 filed by her on 17.08.1974 as well as in respect of land measuring to an extent of 72 cents in Sy. No.27/2 were rejected on the ground that the applicant and original landlord / moolageni tenant - Sri B. Parameshwara belonged to the same family and in that regard, W.P. No.10913/1977 filed by Smt. Sulochana was pending consideration before this Court. The II Land Tribunal has further observed that the subsequent proceedings No.TRL.275/1981-82 also involved the same applicant - Smt. Sulochana and the legal heirs of Sri B. Parameshwara (represented by their power of attorney, Sri Nagappa Shervegar) and they belonged to the same family and hence, the provisions of the Karnataka Land Reforms Act, 1961, did not apply to the said case. It has also taken note of the fact that the land (measuring to an extent of 03 Acres 51 cents in Sy. No.211) in respect of which Smt. Sulochana had sought conferment of occupancy rights was a punja land and was not brought under cultivation. For the aforesaid reasons, the II Land Tribunal rejected the application in Form No.7 filed by Smt. Sulochana on 28.12.1976.
13. It has come on record that against the said order dated 25.09.1981 passed by II Additional Land Tribunal, Smt.
Sulochana had preferred writ petition in W.P. No.23985/1982 before this Court and during the pendency of the said writ petition, the provisions of the Karnataka Land Reforms Act, 1961, (for short, ‘the Act’) were amended by incorporating Sections 116A and 116B in the said Act whereby the Land Reforms Appellate Authority/ies was/were constituted. On account of the same, Writ Petition No.23985/1982 was transmitted to the Land Reforms Appellate Authority to be registered as an appeal. Accordingly, the Land Reforms Appellate Authority, Kundapura, registered the said writ petition as Appeal No.741/1988. However, in view of the amendment brought to the Karnataka Land Reforms Act, 1961, by virtue of Act No.18 of 1990, Sections 116A and 116B of the said Act were deleted and the Land Reforms Appellate Authority/ies was/were abolished. However, under Section 117 of the Karnataka Land Reforms Act, 1961, subsequent to abolition of the Land Reforms Appellate Authority, Kundapura, aggrieved parties were permitted to file applications for transfer of appellants to this Court. Accordingly, Smt. Sulochana filed application in C.P. No.4761/1991 seeking permission to transfer the appeal from Land Reforms Appellate Authority to this Court. Consequently, the said appeal (741/1988) was transmitted to this Court and numbered as Writ Petition No.20564/1993, which was considered by coordinate Bench of this Court on 01.04.1998.
14. Surprisingly, in the order dated 01.04.1998 passed in the said writ petition (W.P. No.20564/1993), there is reference to only six items of land i.e., land/s measuring to an extent of:72 cents in Sy. No.27/2; 54 cents in Sy. No.27/5; 15 cents in Sy. No.21/7; 38 cents in Sy. No.21/12; 24 cents in Sy. No.27/6 and 02 Acres 69 cents in Sy. No.27/3 situate at Kowdoor village, Karkala taluk, and there is no reference to land measuring to an extent of 03 Acres 51 cents in Sy. No.211 of Neere village in respect of which the proceedings in TR.275/1981-82 was initiated before II Land Tribunal. However, coordinate Bench of this Court, in its order dated 01.04.1998 (Annexure ‘C’ to the petition), has observed that the order dated 25.09.1981 passed by the land Tribunal in proceedings No.TRL.275/1981-82 suffered from lacuna as it did not spell out any valid ground for rejection of the application in Form No.7 filed by Smt. Sulochana under Section 48-A of the Act and the Land Tribunal has failed to hold an enquiry by requiring the contesting parties to adduce oral and documentary evidence in support of their rival claims as also to peruse the report submitted by the Tahasildar in terms of Rule 19 of the Karnataka Land Reforms Rules, 1974. Accordingly, coordinate Bench of this Court by its order dated 01.04.1998, quashed the impugned order and remanded the matter to the Land Tribunal with directions stated therein including the one to dispose of the application filed by Smt. Sulochana within three months from the date of receipt of the said order and allowed the writ petition to the said extent.
15. It is seen that the order of remand passed by coordinate Bench of this Court in W.P. No.20564/1993 was the subject matter of challenge by Sri Gopalakrishna (respondent No.1 herein) and two daughters of Sri Parameshwara in writ appeal in W.A. No.2489/1999 (LR). In the said writ appeal, it was contended on behalf of the appellants that the remand order dated 01.04.1998 passed by coordinate Bench of this Court was required to be confined to Sy. No.211 of Neere village. In the light of the said submission and after considering the material on record, Division Bench of this Court noted that earlier Division Bench in its order dated 12.10.1999 had recorded the finding that the appellants in the appeal (W.A. No.2489/1999) were not served in the writ proceedings and that the matter was disposed off behind their back. In that view of the matter, Division Bench of this Court, by its judgment dated 03.07.2002 (Annexure ‘D’ to the petition), has set aside the order dated 01.04.1998 passed by learned single Judge of this Court in W.P. No.20564/1993 and remanded the proceedings back to the learned single Judge / regular Court taking up land reforms cases to decide as to whether remand of the matter to the Land Tribunal was at all necessary and in the event if a remand was necessary, as to which of the survey number should be the subject matter of reconsideration by the Land Tribunal.
16. Pursuant to the judgment dated 03.07.2002 passed by Division Bench of this Court in W.A. No.2489/1999 (LR), writ petition in W.P. No.20564/1993 was revived and it was heard by coordinate bench of this Court. It is seen that in the order dated 13.11.2002 (Annexure ‘E’ to the petition) passed in W.P. No.20564/1993 (KLRA), coordinate Bench of this Court has observed that no oral or documentary evidence was discussed by the Land Tribunal to come to the conclusion that there was no relationship of landlord and tenant between the legal heirs of Sri B. Parameshwara and the applicant – Smt. Sulochana in the proceedings - TRL.275/81-82 and hence, the matter required reconsideration by the Land Tribunal. Accordingly, coordinate Bench of this Court allowed the writ petition by setting aside the order dated 25.09.1981 passed by the Land Tribunal, Karkala Taluk and remitted the matter to the said Tribunal with a direction to dispose of the same afresh after due notice to all the parties concerned.
17. It is seen that in the said order dated 13.11.2002 passed in W.P. No.20564/1993 (KLRA), coordinate bench of this Court has not referred to the survey number and extent of land in respect of which the matter was remanded to the Land Tribunal. However, when the entire material available on record is looked into, it is clearly seen that what is remanded back to the Land Tribunal, is application in Form No.7 filed by Smt. Sulochana, which was registered in proceedings No.TRL.275/1981-82 as could be seen in the preamble portion of the order dated 13.11.2002.
18. It is pursuant to the said order dated 13.11.2002, the Land Tribunal has taken up for consideration proceedings No.TRL.275/1981-82. In the remanded proceedings, the Land Tribunal after issuing notice to the parties, conducted the spot inspection on 07.09.2011. It is stated that the applicants therein participated in the proceedings, whereas respondents did not appear in person before the Tribunal, but filed their objections. The Land Tribunal has taken note of the fact that the applicant’s (Sri Gopalakrishna’s) house was located in land bearing Sy. No.27/3 situate at Kowduru village and the distance between their house and land measuring to an extent of 03 Acres 50 / 51 cents in Sy. No.211 was about 4 to 5 Kilometers and that the said land was not under cultivation and accordingly, rejected the claim of Smt. Sulochana since deceased represented by her legal heirs, petitioners herein, with reference to the land measuring to an extent of 03 Acres 51 cents in Sy. No.211 of Neere village by its order dated 17.12.2011 (Annexure ‘F’ to the petition). This order is sought to be challenged in this writ petition on various grounds and one of that is the application registered in proceedings No.TRL.275/81-82 was not only with reference to the land measuring to an extent of 03 Acres 51 cents in Sy. No.211 of Neere village, but also with reference to the other six items of land situate in Kowdoor village, which are required to be reconsidered as the said lands have been left out in the impugned order passed by the Land Tribunal in spite of there being a speaking order dated 13.11.2002 passed by coordinate Bench of this Court while disposing of writ petition in W.P. No.20564/1993 (KLRA). Further, it is also contended by the petitioners that the Land Tribunal has committed an error in restricting its proceedings only to Sy. No.211 of Neere village.
19. It is pointed out by learned counsel for respondent No.1 that Smt. Sulochana had filed application in Form No.7A dated 30.12.1998 (Annexure R12 to the statement of objections) seeking occupancy rights in respect of about sixteen items of lands including the lands (situate both at Kowdoor and Neere villages) covered under applications in Form No.7 filed by her on 17.08.1974, 17.01.1976 and 28.12.1976. It is further stated that the competent authority by its order dated 07.03.2003 passed in proceedings No.7A.Kowduru.35:98-99, has rejected the application in Form No.7A filed by Smt. Sulochana on the ground that fresh enquiry was being held in proceedings No.275/81-82 pursuant to the order passed by coordinate Bench of this Court in W.P. No.20564/1993.
20. Heard the learned senior counsel, Sri T.R. Subbanna, appearing for petitioners and learned counsel, Sri Abhinav Ramanand, appearing for respondent No.1 and learned High Court Government Pleader, Sri B.S. Budihal, appearing for respondent Nos.2 and 3.
21. When the entire records are looked into, what is perplexing in the entire litigation is the manner in which applications were filed by the original applicant, Smt. Sulochana, daughter of Achu @ Laxmayya Sherigara / Laxmiah Servegara. She has filed an application in Form No.7 on 17.08.1974 seeking occupancy rights in respect of five items i.e., land/s measuring to an extent of: 54 cents Sy. No.27/5; 15 cents in Sy. No.21/7; 38 cents in Sy. No.21/12; 24 cents in Sy. No.27/6 and 02 Acres 69 cents in Sy. No.27/3 situate in Kowdoor village. The said application was registered in proceedings No.TRL.764/74-75 before the Land Tribunal. Admittedly, there were several litigations between the moolageni tenant / landlord – Sri Parameshwara and applicant - Smt. Sulochana and in the suit in O.S. No.224/1971 referred supra, learned Principal Munisff, Karkala, had asked the Land Tribunal to give its finding as to whether the defendant in the said suit – Smt. Sulochana was a tenant under the plaintiffs (Sri B. Parameshwara since deceased and represented by his children) in respect of lands measuring to an extent of 72 cents in Sy. No.27/2 (this land was not covered under Form No.7 dated 17.08.1974) and 38 cents in Sy. No.21/12 (this land was covered under Form No.7 dated 17.08.1974). The Land Tribunal by its order dated 16.06.1976 while rejecting the application dated 13.01.1976 filed by Smt. Sulochana for temporary injunction against the respondent therein, has rejected the claim of Smt. Sulochana in respect of the lands covered under her declaration dated 17.08.1974 as well as the aforesaid two items of lands in respect of which the learned Principal Munsiff, Karkala, had sought opinion of the Land Tribunal with regard to tenancy claim of the defendant – Smt. Sulochan.
22. Subsequently, Smt. Sulochana filed one more application in Form No.7 on 17.01.1976 seeking occupancy rights in respect of land measuring to an extent of 72 cents in Sy. No.27/2 in addition to five items of lands covered under her earlier declaration dated 17.08.1974. Pursuant to the said application dated 17.01.1976, proceedings No.LRY.TRL.764/76-77 was registered before the Land Tribunal. The Land Tribunal relying upon its earlier order dated 16.06.1976 passed in proceedings No.TRL.764/74-75, has rejected the subsequent application dated 17.01.1976 vide order dated 22.07.1977. It is stated that the said order was not challenged by Smt. Sulochana.
23. The order dated 16.06.1976 passed by the Land Tribunal in proceedings No.TRL.764/1974-75 was called in question in W.P. No.10913/1977 preferred by Smt. Sulochana before this Court. A coordinate Bench of this Court by its order dated 22.07.1983, has dismissed the said writ petition for the reason that it had become infructuous in the light of the fact that the application in Form No.7 filed by the petitioner – Smt. Sulochana itself had been disposed of by the Land Tribunal. In the absence of challenge to the order dated 22.07.1983 passed by coordinate Bench of this Court, the proceedings in TRL.764/74-75 is stated to have reached a quietus.
24. It is seen that the third application in Form No.7 was filed by Smt. Sulochana on 28.12.1976. It is the contention of the first respondent herein that in the said application, initially Smt. Sulochana had sought for occupancy rights in respect of land measuring to an extent of 03 Acres 51 cents in Sy. No.211 situate at Neere village only, however, the said application was tampered later in including six items of lands situate at Kowdoor village, which were covered under her earlier application in Form No.7 dated 17.01.1976, along with the land measuring to an extent of 03 Acres 51 cents in Sy. No.211 situate at Neere village. The third application in Form No.7 filed by Smt.Sulochana on 28.12.1976 was registered in proceedings No.275/1981-82 before the II Land Tribunal. The said application has been rejected by II Land Tribunal by its order dated 25.09.1981 as stated supra.
25. Now, what remains for consideration is only the application dated 28.12.1976 filed by Smt. Sulochana and which was registered in proceedings No.TRL.275/1981-82 seeking occupancy right in respect of land measuring to an extent of 03 Acres 51 cents in Sy. No.211 of Neere village. Admittedly, distance between Neere village and Kowdoor village is about 5 kilometers. It is contended by learned counsel for respondent No.1 that initially, the application which was filed by Smt. Sulochana on 28.12.1976 was only with reference to one item of land i.e., land measuring to an extent of 03 Acres 51 cents in Sy. No.211 situate at Neere village. Thereafter, it appears she has clandestinely got the said application removed and got it replaced with another application, wherein she claimed occupancy rights not only in respect of the land measuring to an extent of 03 Acres 51 cents in Sy. No.211 of Neere village, but also with reference to six items of land situate at Kowdoor village in respect of which separate proceedings was already initiated in TRL.764/1974- 75 and LRY.TRL.764/1976-77 and which were disposed of by Land Tribunal by orders dated 16.06.1976 and 22.07.1977. The original records, which are produced before this Court, would indicate that in the book in which all the materials are stitched serial-wise, page bearing No.174 is missing, which is said to be the application which is filed by Smt. Sulochana in Form No.7, where in addition to land measuring to an extent of 03 Acres 51 cents in Sy. No.211 of Neere village, she has also sought for grant of occupancy rights in respect of six items of lands situate at Kowdoor village, which was the subject matter of proceedings, TRL.764/1974-75 and LRY.TRL.764/76-77 referred supra.
26. However, the proceedings in TRL.275/81-82 is considered only with reference to Sy. No.211 and same was rejected by order dated 25.09.1981 passed by the II Land Tribunal, Karkala. The said order was the subject matter of challenge in appeal No.741/88 filed before the Land Reforms Appellate Tribunal, Kundapura, as stated above. Subsequent to filing of the appeal, the Appellate Authority was abolished and hence, pursuant to application in C.P. No.4761/1991 filed by Smt. Sulochana, the said appeal was remitted to this Court, where it was registered as W.P. No.20564/1993.
27. The material on record discloses that confusion with regard to land/s in respect of which Smt. Sulochana sought for conferment of occupancy rights in her third application in Form No.7 filed on 28.12.1976 started after the order dated 01.04.1998 came to be passed by coordinate Bench of this Court in W.P. No.20564/1993. Though the order under challenge in the said writ petition was order dated 25.09.1981 passed by II Land Tribunal, Karkala Taluk, in proceedings No.TRL.275/81-82, the order passed in the said writ petition referred to six items of land situate at Kowdoor village, which were the subject matter of proceedings in TLR.764/74-75 and TRL.764/76-77 registered pursuant to applications filed by Smt. Sulochana on 17.08.1974 and 17.01.1976 respectively, and which were disposed of by orders dated 16.06.1976 and 22.07.1977 respectively. There is no reference to Sy. No.211 of Neere village in the said writ petition. However, coordinate Bench of this Court by its order dated 01.04.1998, quashed the order dated 25.09.1981 passed by the II Land Tribunal in proceedings No.TRL.275/81-
82 and remanded the said proceedings back to the Land Tribunal for fresh disposal.
28. The said order (dated 01.04.1998) of remand passed by coordinate Bench of this Court was the subject matter of challenge in W.A. No.2489/1999 (LR) preferred by the legal heirs of Sri Parameshwara. In the said writ appeal, they tried to bring to the notice of the Division Bench that in the order dated 01.04.1998, the lands situate in Kowdoor village were wrongly referred to in the order of learned single Judge even though the order (dated 25.09.1981) under challenge in the said writ petition was with reference to proceedings in TRL.275/1981-82, which was confined only to land measuring to an extent of 03 Acres 51 cents in Sy. No.211 of Neere village. Therefore, learned single Judge could not have remanded the proceedings in respect of six items of land situate in Kowdoor village. When the Division Bench heard the said appeal, it opined that the matter should be placed before the learned single Judge to consider which are all the items of lands which should be taken up for reconsideration by the Land Tribunal. Accordingly, Division Bench of this Court by its judgment dated 03.07.2002, has set aside the order dated 01.04.1998 passed by learned single Judge of this Court and revived W.P. No.20564/1993 and remitted the matter back to the learned single Judge / regular Court taking up land reforms cases with certain directions.
29. In WP.No.20564/1993 the learned Single Judge confirmed remittance of the matter back to the Land Tribunal. While doing so, though it is not stated which items of lands should be subject matter of consideration before the Land Tribunal, it is understood that what should be considered by the Land Tribunal is the subject matter of application in Case No.TRL.275/1981-82, in as much as the order which was passed by the Land Tribunal in rejecting the claim of Sulochana for occupancy right in respect of land bearing Sy.No.211 of Neere village, was subject matter of consideration. Though in the writ petition which was filed in No.20564/1993 there is reference to 6 items of lands of Kowdoor village, Karkala Taluk, that was never subject matter of consideration in proceedings bearing No.TRL.275/1981-82.
30. At this juncture, it is necessary to refer to certain observations made supra. The accusation of the landlords against the tenant is in making multiple applications in Form No.7 before the Land Tribunal seeking occupancy right on 17.8.1974, 17.1.1976 and 28.12.1976. Out of that, first of the applications was numbered as TRL.764/1974-75, wherein in all five items of lands of Kowdoor village were referred to. In the said proceedings, it is seen that the Civil Court has referred two more items of lands for consideration regarding injunction to be granted in a case pending before it, out of that one of the items was in duplication and another was in addition, accordingly, in all 6 items of lands were considered in the said application. If that is taken in to consideration, the application which is filed on 17.1.1976 though is in duplication, it is noting but an attempt to improvise the earlier application filed on 17.8.1974. In fact, second application dated 17.1.1976 was never taken up for consideration before any authority. Instead, in respect of the lands referred to therein were subjected to consideration by the land Tribunal, Karkala in No.TLR.764/1974-75 wherein on two occasions orders are passed, one on 16.6.1976 in rejecting the claim for tenancy right in respect of 2 items of lands in Sy.Nos.27/2 and 21/12 of Kowdoor village and subsequent order dated 25.9.1991 is in rejecting the remaining 5 items of lands which otherwise should be read as 4 items for the reason that Sy.No.21/12 is repeated twice in the said proceedings. If that is taken in to consideration, 6 items of lands referred to in application dated 17.1.1976 are considered and it has reached quietus in order dated 25.9.1981 of Land Tribunal, which is not challenged by the tenant.
31. Therefore, when it comes to the order under challenge in this writ petition, it should be understood that the Tribunal has considered the application for occupancy right in respect of Sy.No.211 of Neere village and no other property could be subject matter of consideration before the Land Tribunal, Karkala. With this, it is clearly seen that the grounds which are urged with reference to non consideration of lands in Kowdoor village, does not call for interference by this Court.
32. Now coming to the order impugned dated 17.12.2011 in No.TRL.275/1981-82 is subject to the remand made by the Co-ordinate Bench of this Court in WP.No.20564/1993, wherein as referred to in the said order the Tribunal has conducted survey of land bearing Sy.No.211 of Neere village, and found to be Punja land as well as fallow land covered with shrubs and wild trees indicating that it was never under cultivation by anybody. Incidentally, said Neere village is about 4 to 5 kms., away from Kowdoor village, where applicant – Sulochana and her father Lakshmaiah were residing and at no point of time it is indicated that they were either in cultivation or in enjoyment of the said land.
33. Therefore, the Tribunal while considering the remand application in TRL.275/1981-82 has rightly appreciated the material on record and consequently, dismissed the claim of applicant - Sulochana who is mother of petitioners 1 and 2 herein. Therefore, the order dated 17.12.2011 does not call for interference by this Court. Accordingly, the same is required to be rejected. With reference to the proceedings said to be pending in Second Appeal so far as the other lands are concerned, it is totally outside the purview of this writ petition. Therefore, question of making any reference with reference to said lands in this proceedings, does not arise. Accordingly, this Court would reiterate that the finding of the Land Tribunal with reference to rejection of the claim of the petitioners’ mother Sulochana for occupancy right in respect of land bearing Sy.No.211 of Neere village, measuring to an extent of 3.51 Acres, does not call for interference in this proceedings.
Accordingly, this writ petition is rejected.
sma/ nd/-
Sd/- JUDGE