IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION No.5699 OF 2018 (KLR-RES) AND WRIT PETITION Nos.6428-6429 OF 2018 (KLR-RES) BETWEEN:
SRI D.ISHWAR BHAT S/O LATE D.KRISHNA BHAT, AGED ABOUT 62 YEARS, R/AT"CHITTARA", KADARI TEMPLE ROAD, KADARI, MANGALURU, DAKSHINA KANNADA. ...PETITIONER (BY SRI T.N.RAGHUPATHY, ADVOCATE) AND:
1. STATE OF KARNATAKA DEPARTMENT OF REVENUE, M.S.BUILDING, BENGALURU – 560 001, R/BY ITS PRINCIPAL SECRETARY.
2. THE DEPUTY COMMISSIONER DAKSHINA KANNADA, MANGALURU - 575 001.
3. THE ASSISTANT COMMISSIONER MANGALURU SUB-DIVISION, MANGALURU - 575 001.
4. THE TAHASILDAR BANTWALA, TALUK BANTWALA, DAKSHINA KANANDA – 575 002.
5. SRI VADIRAJ ACHARY S/O LATE KANTHAPPA ACHARY, AGED ABOUT 55 YEARS, R/AT NO.6-27(A) OLD NO.3-33, MALIYANA MANE, KAINTITHILA VITLA KASABA, BANTWAL TALUK. D.K.-575 002. ...RESPONDENTS (BY SRI VENKATESH DODDERI, AGA FOR R1 TO R4; SRI SAMEER.S.N., ADVOCATE & SRI MOUNITH.A.R., ADVOCATE FOR R5) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT RESPONDENT NOS.2 TO 4 TO INITIATE ACTION UNDER SECTION 192-A OF THE ACT AGAINST THE 5TH RESPONDENT FOR HAVING UNLAWFULLY ENTERED AND OCCUPIED THE LAND IN SY.NO.74/2 MEASURING 4 ACRES 20 CENTS SITUATED AT VITLA KASABA VILLAGE AND TAKE ALL OTHER STEPS AGAINST THE 5TH RESPONDENT THAT ARE NECESSARY TO EVICT THE 5TH RESPONDENT FROM THE LAND.
THESE WRIT PETITIONS COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
* * * O R D E R These writ petitions are filed seeking certain directions to Respondents No.2 to 4 to initiate proceedings under Section 192-A of the Karnataka Land Revenue Act against the 5th respondent for having unlawfully entered and being in occupation of the land in Sy.No.74/2 measuring 4 acres 20 cents situated at Vitla Kasaba Village and also to take all other steps against the 5th respondent to evict him from the said place and other related reliefs.
2. Brief facts leading to filing of these petitions are as under:
Petitioner is claiming to be the owner of land bearing Sy.No.75/5 measuring 3 acres 10 cents and Sy.No.75/6 measuring 10 cents situated at Vitla Kasaba Village, Dakshina Kannada. According to him, he was a member of the joint family, which owned more than 60 acres of land in Vitla Kasaba Village. In a partition between himself and other members of the family on 28.01.2000, land bearing Sy.No.75/5 and 75/6 have fallen to his share and he would also state that adjacent to his property, land bearing Sy.No.74/2 is situated, which according to him is kumki land to the varga land which is owned by him. The grievance of the petitioner is that the 5th respondent and his family initially filed an application in Form No.VII seeking occupancy rights in respect of several properties owned by the petitioner and other members of his family. The said application in Form No.VII initially came to be allowed in Proceedings No.T.N.C.11174/1974-75 in respect of 2.25 acres in Sy.No.75/5. The said order of the Land Tribunal was in favour of one Kanthappa Achari, father of the 5th respondent. The said order was subject matter of challenge by the paternal uncle of the petitioner who was in joint family along with him by filing writ petition in W.P.No.4460 of 1983, which was later transferred to the Land Reforms Appellate Authority and re-numbered as L.R.A.A.T.T.3906/1986. After abolition of the Land Reforms Appellate Authority, the matter was re-transferred to this Court and numbered as W.P.No.2178 of 1997, later the said writ petition came to be allowed by order dated 18.01.1999 in setting aside the grant order passed by the Land Tribunal and remanding the matter back to the Land Tribunal for fresh consideration.
3. It is seen that on 09.08.2001, an injunction order was passed by the Land Tribunal against the petitioner, which was subject matter of challenge in W.P.No.31916 of 2001, which came to be allowed by order dated 19.04.2002. It is thereafter an amendment application is filed by Kanthappa Achari to Form No.VII on 09.09.1979 and 29.12.1980, which were rejected. The rejection of the amendment application was subject matter of challenge in W.P.No.4459 of 2010, which was withdrawn by Kanthappa Achari. Thereafter the proceedings before the Land Tribunal with reference to Form No.VII filed by the father of the 5th respondent came to be rejected by order dated 18.02.2011. As against the said order, 5th respondent filed W.P.No.15511 of 2011, which came to be dismissed in confirming the order of the Land Tribunal rejecting the application for tenancy claim, which is subsequently confirmed in W.A.No.2653 of 2012 by judgment dated 26.09.2013 and affirmed by the Apex Court in S.L.P.No.10844 of 2014. With this, it is seen that the claim of the 5th respondent for tenancy rights in respect of the land bearing Sy.No.75/5 of Vitla Kasaba Village has reached finality.
4. Thereafter, it is seen that the petitioner herein has filed eviction case in S.C.No.1 of 2000 against father of Respondent No.5 who was squatting on a portion of the varga land belonging to the petitioner, which came to be allowed by judgment dated 28.01.2011 in passing an order, evicting the said person where 5th respondent was also residing. The said order of eviction was challenged by 5th respondent by filing revision petition in C.R.P.No.97 of 2011, which also came to be dismissed by order dated 23.07.2014. It is thereafter execution petition is filed by the petitioner herein in Execution Case No.7 of 2016. The order passed in the said proceedings on 27.07.2016 was subject matter of challenge in W.P.Nos. 38801-38802 of 2016 by the 5th respondent which was dismissed by order dated 27.07.2016 and thereafter, petitioner has taken delivery of the said house property.
5. It is in this backdrop, the petitioner would submit that the 5th respondent herein has shifted his residence from the place where he was in possession earlier to a portion of the land bearing No.74/2 of Vitla Kasaba Village contending that the said land is a Government land. Therefore, he has right to squat on the said property and it is also stated that he has filed application in Form No.53 seeking regularization of his so-called un-authorized occupation contending that he has been in possession of the said portion for a period of 40 years as could be seen at page No.29 in the list of documents, which is produced by the 5th respondent on 27.02.2019. Further, when the said document is looked into, the said document is an application seeking regularization of unauthorized occupation in Sy.No.75/5, which is admittedly varga land of the petitioner. In the said document, the 5th respondent would state that he has been residing there for several years and he is trying to stake a claim on the basis of the application in Form No.53 which is yet to be resolved. The petitioner would state that an application was submitted on 22.11.2016 to the Deputy Commissioner, Tahsildar and Chief Officer, Vitla Kasaba Village to evict the 5th respondent from portion of Sy.No.75/5, which is claimed by the petitioner as the land in which he has kumki right. It is also stated that an enquiry was conducted and un-authorized construction which was there was removed by Tahsildar through Chief Officer of Vittala Panchayath on 09.01.2018. It is further stated that subsequent to 09.01.2018, 5th respondent is said to have put up another construction in a portion of Sy.No.75/5, which necessitated filing of the present writ petition seeking direction to Respondents No.2 to 4 in these proceedings, namely, Deputy Commissioner, Assistant Commissioner and Tahsildar of Bantwala Taluk, Dakshina Kannada in removing the 5th respondent from Sy.No.74/2, which is the land in which the petitioner is claiming kumki rights as the same is abutting as varga land.
6. In this petition, 5th respondent has placed several documents to show that he is in un-authorized occupation of Sy.No.74/2. However, the document which is produced by him which is an application in Form No.53 pursuant to Rule 108(cc)(1) of Karnataka Land Revenue Reforms would indicate that he has stated that he is in possession of Sy.No.75. He would state that the same is subsequently corrected in a statement which is recorded on his behalf on a subsequent date and that his application is pending consideration before the competent authority and he would also state that he had earlier filed W.P.No.52665/2014 where he has secured an order in the form of direction to consider his application in Form No.53 within six months and he has also further filed additional documents today in which, he would contend that he has been in possession of this land for more than forty years.
7. When the entire material available on records is looked into, it is clearly seen that the fight between the petitioner and the 5th respondent is akin to Vikram and Bethal. The respondent is creating new avenues to claim tenancy rights, pursuing the same upto the Apex Court. In the process, the petitioner is saddled with one after the other hurdle by the respondent and his father squatting on portion of the land for which eviction proceedings was initiated in S.C.No.1 of 2000 which ultimately dragged upto to the year 2016 and possession is taken up thereafter. Subsequently, the 5th respondent is said to be squatting on the land situated, adjacent to the land of the petitioner in which the petitioner has kumki rights and trying to seek regularization of the same.
8. During the pendency of these proceedings, a direction was given to the Assistant Commissioner to file a report whether the 5th respondent is blocking the way of the petitioner, in his report, the Assistant Commissioner would state that the petitioner has got his right leading to his property from another direction, which is explained by the petitioner contending that when once there was resistance by the 5th respondent in using his kumki land to reach the main road, it was being blocked, he is forced to take alternate road. But, he would still insist that from the time immemorial, the road that was used by petitioner is through the land bearing Sy.No.74/2, which is recently occupied by the 5th respondent and seeking regularization of the same, he has filed an application where he has wrongly contended that he is in possession of the said land for more than forty years, when admittedly he was in possession of the property, which was subject matter of S.C.No.1 of 2000 where his eviction is secured in the year 2011, which was pursued by the 5th respondent himself on behalf of his father by filing revision petition in C.R.P.No.97 of 2001.
9. In this background, this Court is of the considered opinion that the prayer made by the petitioner in seeking eviction of 5th respondent from Sy.No.74/2 appears to be just and proper. Sy.No.74/2 is a Government land in which the petitioner is claiming kumki right. The kumki right is traceable to only 4 acres of ain land held by petitioner. Sy.No.75 and for other portions with reference to large extent of the land which is held by the family of the petitioner, which is subsequently partitioned. The 5th respondent has no manner of right to oppose the same and Authorities have no right to restrict or refuse such right of the petitioner or to take away in considering the prayer of the 5th respondent seeking regularization of the said land. When admittedly, there is no document on record to show that, he has been in the possession of the said property for more than forty years.
10. In that view of the matter, the writ petitions filed seeking direction to Respondents No.2 to 4 in removing the 5th respondent from occupation of a portion of Sy.No.75 appears to be just and proper. Accordingly, by allowing these writ petitions, the Authorities are directed to comply the same at the earliest not later than three months from the date of receipt of copy of this order.
Sd/- JUDGE DH