IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MAY, 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION NO.27033/2012 (LR-SEC 48-A) BETWEEN :
Sri K. Nagendra S/o late H. Krishnappa Aged about 68 years Presently residing at , No.205, 21st Block, Jeevansathi Apartment J.P.Nagar I Phase Bengaluru-560 078 … Petitioner (By Sri R. Nataraj, Advocate) AND :
1. State of Karnataka Revenue Department Represented by its Revenue Secretary Vidhana Soudha Bengaluru-560 001.
2. The Land Tribunal, Tumakuru, Represented by its Chairman.
3. Sri Hanumanthaiah Father’s name not known to the petitioner Aged about 48 years Residing at B.H.Palya Dibbur, Kasaba Hobli Tumkur District.
(R3 is deleted vide Court order dated 11.03.2019) 4. Rangaswamaiah S/o late Rangaiah R/at Dibbur, Kasaba Hobli, Tumakuru District (R4 is impleaded vide Court order dated 11.03.2019) … Respondents (By Sri S.T.Naik, HCGP for R-1 and R2 vide Order dated 26.4.2017 notice to R4 is held sufficient;
R3 is deleted vide order dated 11.03.2019) This Writ Petition is filed under Article 226 of the Constitution of India praying to set aside the order passed by R2 the Land Tribunal Tumakuru, dated 26.09.2011 in case No.KLRM.278/1975-76 vide Annexure-H and consequently reject the Form No.7 and etc., This Writ Petition coming on for further arguments this day, the Court made the following:-
O R D E R The petitioner herein has challenged the order dated 26.9.2011 passed in KLRM.No.278/1975-76 by the Land Tribunal, Tumakuru, in allowing the application filed by one Rangaiah, S/o.Hanumanthaiah, seeking occupancy rights in respect of the land bearing Sy.No.48/2C of Dibbur Village, Kasaba Hobli, Tumkuru Taluk/District.
2. Admittedly the aforesaid land was belonging to the father of the petitioner Sri H.Krishnappa. The material on record would indicate that an application in Form No.7 was filed by Rangaiah on 28.12.1974 seeking occupancy rights in respect of two items of land i.e., land bearing Sy.No.48/2, measuring 1 acre 30 guntas and another extent of 1 acre 5 guntas in the very same survey number. If the said application is seen in the original records, the same was initially registered in No.15/1974-75 and subsequently it is renumbered as KLRM.278/1975-76. It would also indicate that the applicant Rangaiah would contend that he was cultivating the aforesaid land along with his son-in-law Ramanna for the last five years before filing the application in Form No.7. Incidentally his son-in-law was not co-applicant with him in the said proceedings. However, with reference to the second item in the very same survey number, measuring 1 acre 5 guntas, there is no reference as to since how many years the aforesaid extent of land is under his cultivation and when it was taken by him on lease from the original owner.
3. However, in the proceedings in KLRM.278/1975- 76 on the file of the Land Tribunal, Tumakuru, where the evidence of the applicant is recorded, the applicant Rangaiah in his evidence recorded on 28.2.1979 would state that he was cultivating only 1 acre 15 guntas in the said survey number, though in the application he has claimed that he was cultivating 2 acres 35 guntas of land as tenant. It is clearly seen that he does not state as to which portion of the said survey number was under his cultivation. However, he admits that there is no document available to substantiate the said claim. His evidence is countered by the respondent in the said proceedings who is father of the petitioner herein stating that he is the owner of the land measuring 1 acres 29 guntas in Sy.No.48/2C and the said Rangiah was in cultivation of the land on coolie basis during 1965-69. The said evidence is supported by a document which is marked in the very same proceedings where the receipt dated 24.4.1969 for payment of Rs.75/- towards coolie is produced, wherein the applicant Rangaiah would clearly state that in respect of the land which is in possession of Krishnappa, he has done coolie work for which he has received Rs.75/-. The said document is also supported by the oral evidence of the respondent demonstrating that the said land was under cultivation on coolie basis for the year 1969.
4. Besides this, there are two more evidence, one is the evidence of Puttaswamaiah, the witness examined on behalf of the landlord, who would depose that khatedar himself was cultivating the land and it is not within his knowledge as to presently who is cultivating the said land. Another witness is Venkatalakshmamma, who has adduced evidence on the same date, i.e., on 28.2.1979 to the effect that the said land was given for coolie to the applicant Rangaiah. However the Tribunal without verifying the said evidence, has proceeded to allow the application filed by Rangaiah in Form No.7 by its order dated 28.2.1979, wherein 1 acre 15 guntas of land is granted in favour of the applicant though his application is not with reference to the said extent of land.
5. The order of the Land Tribunal was challenged by the petitioner’s father before this Court in WP.No.25598/1991 which was allowed by order dated 31.7.1997 in quashing the order of the Land Tribunal, dated 28.2.1979 passed in KLRM.278/75-76 and remanding the matter for fresh consideration. It is seen that the remanded matter was taken up for consideration by the Land Tribunal and thereafter disposed of on 26.9.2011, which is the subject matter of this writ petition.
6. It is seen that during the pendency of the remanded matter, original applicant Rangaiah died on 8.10.1997 which was reported to the Land Tribunal by one Rangaswamaiah by filing a memo dated 22.1.1999 contending that he is the son of the deceased Rangaiah. However, for long time no steps are taken to implead the L.Rs of the deceased Rangaiah. Subsequently, after five years, Rangaswamaiah got himself impleaded and proceeded with the matter. In the said proceedings serious objection was raised by the petitioner contending that the applicant Rangaiah himself had stated that he did not have any male issue and as such the 4th respondent Rangaswamaiah is not the son of the deceased Rangaiah. Though such an objection was raised, the same was not considered by the Land Tribunal. There is no document produced by Rangaswamaiah to demonstrate that he is the son of the applicant Rangaiah. Even he has not led any oral evidence of any third parties to support the said statement made by him that he is the son of the deceased Rangaiah. However, the Tribunal has proceeded to grant 1 acre 2 guntas of land in Sy.No.48/2C in favour of the 4th respondent Rangaswamaiah as if he is the son of the deceased original applicant Rangaiah. The said order is under challenge in these proceedings on several grounds.
7. The main contention of the petitioner is that there is no relationship of father and son between Rangaiah and 4th respondent herein. In the application filed by the applicant in Form No.7, it is not mentioned as to which part of Sy.No.48/2 was under his cultivation. Though initially occupancy rights are sought in respect of two items measuring 2 acres 35 guntas, where with reference to first item which is measuring 1 acre 30 guntas he would contend that he is cultivating the said land along with his son in law Ramanna. Admittedly, Ramanna was not the co-applicant in Form No.7 filed on 28.12.1974. In so far as the second item measuring 1 acre 5 guntas of land is concerned, he does not mention as to since how many years he was cultivating the said land. Several documents were produced before the Land Tribunal, including RTCs which would indicate that for the year 1973-74 onwards, the name of Krishnappa is shown in the cultivator’s column, i.e., at column Nos.9 to 12. From 1974-75 onwards, the name of Rangaiah is seen and incidentally for including the said entry, there is no order passed by any competent authority and there is nothing on record to show that he was cultivating the land from 1974-75 onwards.
8. If the entire material on record is seen, there is non application of mind on the part of the Land Tribunal while considering the application of Rangaiah for issuance of occupancy rights. As the land in Sy.No.48/2 of Dibbur Village has more than one part, i.e., A, B and C and which part of the land was under cultivation of Rangaiah is not forthcoming. The Tribunal only on assumption that Rangaiah was cultivating the land in Sy.No.48/2, has granted occupancy rights in his favour which is contrary to the evidence of the applicant recorded on 28.2.1979. When he has categorically stated in the application filed in Form No.7 that he was under cultivation of the land only to the extent of 1 acre 30 guntas in Sy.No.48/2 and he did not specify as to whether it is A, B or C of the said survey number and when he admitted in his evidence that the contents of the application are erroneous and contrary to the actual facts, the Land Tribunal ought to have diligent in considering the said application and in granting the occupancy rights.
9. The Tribunal however has considered non existing right of the applicant when the application filed by him itself does not clearly indicate the right of the applicant in respect of the property for which the occupancy rights were sought for. In that view of the matter, this Court is of the considered opinion that a serious error is committed by the Land Tribunal in granting occupancy rights in favour of the 4th respondent, when there is clear evidence to show that the land in question was under the ownership and cultivation of petitioner’s father H.Krishnappa. The material would also indicate that the said grant of occupancy right is against the evidence of the applicant where he has admitted that he was the coolie for one year under the petitioner’s father and he received the coolie of Rs.75/- under the receipt dated 24.4.1969 which is produced in the proceedings before the Land Tribunal. Hence, the order passed by the Land Tribunal cannot be accepted and the same is required to be quashed.
Accordingly, writ petition is allowed. Consequently, impugned order dated 26.9.2011 passed by the Land Tribunal, Tumakuru, in KLRM.278/1975-76 vide Annexure-H, is hereby quashed.
Sd/- JUDGE *ck/-