IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF APRIL 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION NOs.18881-18890/2017(*LR-RES) BETWEEN 1. SMT. VIDYAVATHIDAS D/O LATE SEETHA AGED ABOUT 83 YEARS, PRESENTLY RESIDING AT No.55, BOULDER CREEK WAY, IRWIN CA92602, USA, REPRESENTED BY HER P.A. HOLDER SMT JEEVANA PRABHA W/O LATE P UMESH AGED ABOUT 69 YEARS R/A No.787, “BHAGAVATHI”
9TH MAIN, BHUVANESHWARINAGAR BSK III STAGE BANGALORE - 560085 2. SRI DHARMASHANKAR S/O LATE SEETHA SINCE DECEASED BY HIS LRs.
2(a) MRS. SREEKUMARI AGED ABOUT 65 YEARS R/A BHOOMI HARMONY CHS PLOT No.82, SECTOR 1 - B WING 806, KAMOTHA NAVI MUMBAI – 410 209 3. SMT. NAMISHA M. BANGERA * Corrected vide chamber order dated 09.07.2019 D/O LATE PADMINI AGED ABOUT 52 YEARS R/A NEELAM NAGAR No.6, L WING, ROOM No.101 GAVANPADA, MULUND EAST, MUMBAI – 400 081 4. SRI RAJESH UDYAVAR S/O LATE PADMINI AGED ABOUT 51 YEARS R/A ROSABELLA FLAT No.2604, OPP. SURAJ WATER PARK GODHBUNDER ROAD THANE (WEST) – 400 615 5. SRI SANJAY S RAJ S/O LATE JYOTHI AGED ABOUT 49 YEARS R/A #432 - C/4, THILAK COLONY ASHOK BLOCK, SECTION 28, ULLASNAGAR – 421 004 6. SMT. ARATHI PRAJOTHKUMAR D/O LATE JYOTHI AGED ABOUT 47 YEARS R/A # EMP-26-FLAT-403, EVERSHINE MILLENIUM PARADISE THAKUR VILLAGE KANDIVILLI EAST MUMBAI – 400 101 7. SRI SUJAY S. RAJ S/O LATE JYOTHI AGED ABOUT 45 YEARS R/AT # 432-C/4, THILAK COLONY, ASHOK BLOCK, SECTION 28 ULLASNAGAR -421 004 8. SRI JAYARAJ B M S/O SEETHA AGED ABOUT 72 YEARS R/AT No.22/34 OLD TOWNSHIP OFFICE ROAD AMBATHUR CHENNAI – 600 053 9. SMT. JEEVANA PRABHA D/O SEETHA AGED ABOUT 69 YEARS R/AT No.787, BHAGAVATHI, 9TH MAIN, BHUVANESHWARI NAGAR BSK 3RD STAGE BANGALORE – 560 085 10. SMT. REKHA PRAVEEN W/O LATE PRAVEEN SHANKAR AGED ABOUT 54 YEARS R/A No.2401, KINGSTON PALACE CHINCHOLI BUNDER ROAD MALAD WEST MUMBAI – 400064 ... PETITIONERS (BY SRI M RAMAKRISHNA, ADVOCATE) AND 1. THE LAND TRIBUNAL MANGALORE REP. BY ITS CHAIRMAN TALUK OFFICE MANGALORE – 575 003 2. THE STATE OF KARNATAKA REP. BY ITS REVENUE SECRETARY DEPARTMENT OF REVENUE M S BUILDINGS Dr. AMBEDKAR ROAD BANGALORE - 560001 3. SMT. KOUSALYA D SHETTY DEAD BY LEGAL REPRESENTATIVES., (a) SMT. JYOTHI A ALVA W/O K. ASHOKA ALVA, MAJOR R/A KODAILGUTHU WEST NEAR VISHAL NURSING HOME KODIALBAIL MANGALORE – 575 003 (b) SRI PRAKASH SHETTY S/O LATE SARVOTHAMA SHATTY MAJOR R/A KODAILGUTHU WEST NEAR VISHAL NURSING HOME KODIALBAIL MANGALORE – 575 003 (c). SRI PRADEEP SHETTY S/O LATE SARVOTHAMA SHATTY MAJOR, R/A 223-C BEACH ROAD, VETTUVENKENI CHENNAI- 400 041 (d). PRATHIBHA KARANTH W/O ULLAS KARANTH MAJOR, R/A No.403, SEEBOW APARTMENT No.26/2, ALPHA ABBAS ALI ROAD BANGALORE - 560047 (e). SRI MANAVENDRANATHA SHETTY S/A SARVOTHAMA SHETTY MAJOR, R/A KODAILGUTHU WEST NEAR VISHAL NURSING HOME KODIALBAIL MANGALORE – 575 003 4. SMT. DEVAKI C DEAD BY LEGAL REPRESENTATIVES., a) GEETHA T POONJA W/O THIMMAPPA POONJA MAJOR b) KOTI PRAKASH RAI S/O LATE CHIKKAPPA RAI AGED ABOUT 71 YEARS c) AJITH KUMAR RAI S/O LATE CHIKKAPPA RAI MAJOR R4(a) to (c) ARE R/A MALADY KAVOOR MANGALORE – 575 001 5. SRI RAJEEVA S/O LATE DEVI HENGSU MAJOR 6. SRI CHANDRASHEKARA S/O LATE DEVI HENGSU MAJOR 7. SRI CHAMPAVATHI S/O LATE DEVI HENGSU MAJOR 8. SRI VIAHALA S/O LATE DEVI HENGSU MAJOR 9. SRI RANJINI S/O LATE DEVI HENGSU MAJOR R5 TO R9 ARE R/A KADRI KANNEBETTU POST BEJAI MANGALORE – 575 004 10. SMT. PREMA D/O LATE SMT. KALYANI MAJOR, 11. SRI ASHOKA S/O LATE SMT KALYANI MAJOR, 12. SRI JAGADEESHA S/O LATE SMT. KALYANI MAJOR, 13. SRI PRAFULLA S/O LATE SMT. KALYANI MAJOR, R10 TO R13 ARE R/A KADRI KANNABETTU BEJAI MANGALORE – 575 004 14. SMT. SHASHIKALA W/O KRISHNA KOLARI MAJOR, R/A DOOR No.1131 1ST MAIN, 2ND CROSS, SRIRAMAPURAM VIVEKANANDA NAGAR MYSORE – 570 023 15. SMT. SARALA W/O ANANDA PRASAD MAJOR, R/A DOOR Nos.2 -28 ANMOL APARTMENTS NEAR THALAR POST CHANDLODIA AHAMADABAD – 382 481 16. SMT. VATHSALA W/O PURUSHOTHAM MAJOR, R/A SHARDHAI SHREE BEHIND GOVERNMENT HOSPITAL POST KUMBLE – 671 321, KERALA 17. SMT. CHANDRAKALA W/O PRABHAKAR, MAJOR, R/A DOOMANNA NILAYA OPP: RAILWAY STATION KUMBLE -671 321, KERALA 18. SMT. BHAGYALAAKSHMI W/O PADMANABHA SALIAN MAJOR, R/A MS/RB 3/4 ROOM No.6, 2ND FLOOR, STATION ROAD, GTB NAGAR, SIAN EAST MUMBAI – 400 022 19. SMT.VAGDEVI W/O BALAKRISHNA RAO MAJOR, R/A FLAT No.304, 3RD FLOOR, SASHANTH HOUSING SOCIETY NEAR KID LAND HIGH SCHOOL KOPRA ROAD, DOMBAVILI WEST MUMBAI – 421 202 20. SRI V R DEVADATTA S/O RAGHAVA K.P, MAJOR, R/A 6TH CROSS, RAJENDRA PRASAD ROAD CHRISTIAN COLONY MANDYA- 571 401 21. SRI RAMESH KUMAR S/O CHOODAPPA SALIAN AGED ABOUT 66 YEARS 22. SMT. URMILA RAMESH W/O RAMESH KUMAR AGED ABOUT 64 YEARS R21 AND R22 ARE RESIDING AT SARASWATHI OPP. MANGALA STADIUM GANDHINAGAR, MANGALORE- 575 003 23. LAND TRADE BUILDERS AND DEVELOPERS, PROPRIETARY CONCERN HAVING ITS OFFICE AT I FLOOR, NEW MILAGRES MANSION FALNIR, MANGALORE REPRESENTED BY ITS PROPRIETOR SRI K SHRINATH HEBBAR S/O LATE K SRINIVAS HEBBAR, AGED ABOUT 53 YEARS R/A FLAT No.307, MERCARA HEIGHTS MERCARA HILL ROAD, MANGALORE – 575 002 24. MAURISHKA RESIDENTS ASSOCIATION VYAS RAO ROAD, OFF KADRI ROAD, MANGALORE – 575 003 REPRESENTED BY ITS PRESIDENT POORNIMA SALIAN 25. Mr.VICTOR OLAV FERNANDES S/O URBAN STANISLAUS, AGED ABOUT 61 YEARS R/A URBAN HOUSE, M.W.R.A-B, NEXT TO COLLECTORS BUNGALOW KOLLAM KERALA – 691 001 26. Mr. RAVINDRA SHETTY S/O SUBBANNA SHETTY AGED ABOUT 51 YEARS 27. MRS. AMBIKA SHETTY W/O RAVINDRA SHETTY AGED ABOUT 38 YEARS R26 AND R27 ARE R/A SREE DURGA BHAND SALAMANE, TEKKATTE KUNDAPUR – 576 231 28. Dr. NARAYANA KILARKAJE S/O KRISHNA SEREGARA AGED ABOUT 48 YEARS 29. Dr. (MRS) PRASHANTHI NARAYAN W/O NARAYANA KILARKAJE AGED ABOUT 44 YEARS R28 and R29 ARE R/A #210, B BLOCK, MAHARAJA RESIDENCY BALMATTA ROAD MANGALORE - 575001 30. MR ALOK SHETTY S/O JAYARAM SHETTY AGED ABOUT 43 YEARS 31. MRS DEEPTHI ALOK SHETTY W/O ALOK SHETTY AGED ABOUT 38 YEARS R30 and R31 ARE R/A 706, A WING LAKE PLEASANT, LAKE HOMES, NEAR GOPAL SHARMA HIGH SCHOOL, POWAI, MUMBAI – 400 076 32. DR PRIYANK S CHATRA S/O DR S S CHATRA AGED ABOUT 36 YEARS R/A POOJA HOUSE UJJRE, BELTHANGADY TALUK D K. KARNATAKA - 574240 33. MRS PREETHI CHANDRASHEKAR RAO W/O CHANDRASHEKAR RAO V AGED ABOUT 45 YEARS R/A 3-30-2480 THULASI SADAN KADRI KAMBLA ROAD MANGALORE - 575004 34. MR SHIV PRASAD KUMAR S/O LATE M PARAMESHWARA AGED ABOUT 74 YEARS R/A A-3, BEJAI COLONY BEJAI NEW ROAD MANGALORE - 575004 35. MR NOEL VINCENT VAZ S/O ALPHONSO FRANCIS VAZ AGED ABOUT 53 YEARS 36. MRS JUDITH CAROLINE VAZ W/O NOEL VINCENT VAZ AGED ABOUT 51 YEARS R35 AND R36 ARE RESIDING AT 101 BHAG CHS, PLOT NO 29, SECTOR 14 VASHI NAVI MUMBAI – 400 703 37. MR KARUNAKARA RAMANNA SHETTY S/O LATE RAMANNA KOCHANNA SHETTY AGED ABOUT 70 YEARS 38. MRS. PREMALATA KARUNAKARA SHETTY W/O MR KARUNAKARA RAMANNA SHETTY AGED ABOUT 62 YEARS R37 AND R38 ARE RESIDING AT YUSUF BIN AHMED KANOO WILL, P .O BOX 45, MANAMA BAHRAIN 39. DR IVAN D’ SOUZA S/O ALBAN E. D’ SOUZA AGED ABOUT 34 YEARS R/A 32, GARDEN MANOR, LADY HILL URWA MARKET ROAD MANGALORE - 575006 40. MR DARRYL GONSALVES S/O WILFRED GONSALVES AGED ABOUT 40 YEARS R/A FLAT No.32, ANNABELLE MANOR - I NEAR KMC, BEJAI MANGALORE – 575 004 41. DR PRAKASH JOSEPH S/O K T JOESPH AGED ABOUT 45 YEARS R/A 42, GARDEN MANOR, LADY HILL, URWA MARKET ROAD MANGALORE – 575 006 42. MR ALBAN E D’SOUZA S/O LATE PETER D’SOUZA AGED ABOUT 67 YEARS 43. MRS IRENE D’SOUZA W/O ALBAN E D’SOUZA AGED ABOUT 68 YEARS R42 AND R43 ARE R/A 32, GARDEN MANOR, LADY HILL, URWA MARKET ROAD MANGALORE – 575 006 44. MRS SUDHA JAYARAM W/O JAYARAM KODIALBAIL AGED ABOUT 56 YEARS 45. MR. NIKHIL JAYARAM S/O JAYARAM KODIALBAIL AGED ABOUT 33 YEARS R44 AND R45 ARE R/A 3-104/C, SUJANI OPP. DHARMAGIRI CHURCH VAMANJOOR MANGALORE – 575 028 46. DR. HAZEL GONSALVES D/O WILFRED GONSALVES AGED ABOUT 36 YEARS R/A FLAT No.32, ANNABELLE MANOR - 1 NEAR KMC, BEJAI MANGALORE - 575004 47. Dr. M.RAMGOPAL SHETTY S/O LATE Dr. VENUGOPAL SHETTY AGED ABOUT 71 YEARS R/A “SWAGATH”, OLD KENT ROAD MANGALORE – 575 001 48. MRS LATHA A BHANDARY W/O ANIL BHANDARY AGED ABOUT 66 YEARS R/A # 12, ALIASKER ROAD BANGALORE – 560052 ... RESPONDENTS (BY SRI B.S.BUDIHAL, HIGH COURT GOVERNMENT PLEADER, FOR RESPONDENT NOs.1 AND 2, SRI B.V.ACHARYA, SENIOR COUNSEL FOR SRI B.L.ACHARYA, ADVOCATE, FOR RESPONDENT NOs.3(a) and 4(b), SRI NAGARAJ IJARI, ADVOCATE FOR RESPONDENT NOs.5 AND 13, VIDE ORDER DATED 10.04.2019, NOTICE TO RESPONDENT No.16 IS HELD SUFFICIENT, SRI K.ANANDA RAMA, ADVOCATE FOR RESPONDENT NOs.24 TO 46, SRI M.SUDHAKAR PAI, ADVOCATE FOR RESPONDENT NOs.21 TO 23 RESPONDENT NOs.3(e), 4(a)(c) AND 48 ARE SERVED) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS WHICH ULTIMATELY RESULTED IN PASSING OF THE ORDER ANNEXURE-A, DATED 08.09.2006 PASSED BY THE 1ST RESPONDENT - LAND TRIBUNAL, MANGALURU IN LRT:698/77-78.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The Petitioners herein are impugning the order dated 8.9.2006 in LRT 698/77-78 on the file of the Land Tribunal Mangalore. The aforesaid proceedings was initiated pursuant to an application filed in Form No.7 of the Land Reforms Act, by Smt.Devi Hengasu, claiming occupancy right in respect of land measuring to an extent of 02 Acres 53 cents in Sy.No.70/3 of Kadri village, Mangaluru Taluk, Dakshina Kannada District.
2. The brief facts leading to these writ petitions are as under:
According to petitioners, the original owner of said land was Smt.Ratna Rai, after her it was succeded by Smt.Kousalya D.Shetty, 3rd Respondent since deceased represented by her legal representatives Respondents 3(a) to 3(e) and Smt.Devaki C., 4th Respondent since deceased and represented by her legal heirs respondent Nos.4(a) to 4(c) in this proceedings. The records would reveal that, the original chalageni tenant of aforesaid land was one Smt.Chittu Hegsu, she had in all five children, by name, Smt. Poovamma, Smt.Kunhamma, Sri Narnappa, Smt.Devi Hengsu and Smt.Kaveri Hengsu. That she had died by the time the amended provisions of Land Reforms Act came into force on the appointed day. It is her legal heirs who filed 3 applications seeking occupancy in respect of the aforesaid land among other lands; one application was filed by two children of her first daughter Smt.Poovamma, viz., Sri J.Rama and Smt.Seeta, (The said Smt. Seeta is the mother of petitioners No.1 Vidyavathidas, No.2 Sri.Dharmashankar, No.8 Sri.Jayaraj BM, and No.9 Smt.Jeevan Prabha) which is in LRT/1484/77-78; another Application is filed by Smt.Kaveri Hengsu (youngest daughter of Smt.Chittu Hengsu) in LRT/1463/77-78; the third application is by another daughter of Smt.Chittu Hegsu, viz., Smt.Devi Hengsu in LRT/698/77- 78.
3. The Application filed by J.Rama and Smt.Seeta in LRT/1484/77-78 was rejected by the Land Tribunal, Mangalore by its order dated 16.01.1981. Another Application filed by Smt.Kaveri Hengsu seeking occupancy right in LRT/1463/77-
78 was also rejected by the Tribunal, by separate order on 16.01.1981. Admittedly, the order of rejection of tenancy claim in the aforesaid two applications were not challenged either by the applicants or their legal heirs, hence the tenancy claim by the applicants in the said applications reached finality. The third application which was filed by Smt.Devi Hengsu, seeking occupancy right in LRT.698/77-78 came to be allowed by the Land Tribunal, Mangalore, by its order dated: 23.01.1981.
4. The said order of the Land Tribunal (hereinafter referred to as ‘the Tribunal’), Mangalore, dated 23.01.1981 in LRT.698/77-78 was subject matter of challenge by the land owner in W.P. No.36820/1982 on the file of coordinate Bench of this Court where the order dated 23.01.1981 was set aside and the matter was remanded back to the Land Tribunal for fresh consideration by the order of coordinate bench of this Court dated: 13.06.1985. In this background it is clear that, among the three applications filed by children of original chalageni tenant Smt.Chittu Hengsu, the application filed by her daughter Smt. Poovamma’s children, namely, J.Rama and Smt.Seeta and another application filed by Smt. Kaveri Hengsu which were rejected at first instance reached finality, in the said applicants not challenging the order of rejection. Though the application of Smt.Devi Hengsu was allowed by the Tribunal, by virtue of order passed in a writ petition filed by the land owner, it came back to Tribunal for fresh consideration.
5. In the remanded matter there was difference of opinion between the members and chairman of the Land Tribunal with reference to the extent of land required to be considered for issue of occupancy right to the applicant, in land bearing Sy.No.70/3 in the result the application was allowed by order dated:04.04.1989, where the opinion of majority members was in granting occupancy right to an extent of 1 Acre 75 Cents only to the applicant was challenged by the legal heirs of applicant Smt.Devi Hengsu, who had died by then. It is necessary to mention at this juncture, that Smt.Devi Hengsu was alive when her application was allowed for first time. She was also alive in the second round of litigation before the Tribunal when the application was remanded for fresh consideration by the Tribunal, pursuant to order of co-ordinate bench of this court in W.P.No.36820/1982. She was also alive when the remanded application was decided by order dated:04.04.1989. It is thereafter she died and the order of land Tribunal dated:04.04.1989 was challenged by her legal heirs in W.P.5167/95. At the same time, the land owner challenged the very same order of Tribunal in considering the application for grant of occupancy right to an extent of 1 acre 75 cents to the applicant by filing a petition in W.P.29668/1997. The said writ petitions were clubbed together and they came to be disposed off by common order dated:12.11.1998 in allowing both writ petitions and consequently remanding the application of Smt.Devi Hengsu, to the land Tribunal, Mangalore, for fresh consideration.
6. The remanded matter was again taken up for consideration by the land Tribunal for the third time in the presence of the legal heirs of late.Devi Hegsu. It is necessary to note that, none of the petitioners herein were parties to the writ petition in W.P.No.5167/1995 filed by the legal heirs of Late.Devi Hengsu, challenging the divergent finding of the Tribunal dated:04.04.1989. Similarly, in the writ petition filed by one of the legal heir of the land owner viz., Kausalya D Shetty, in W.P.No.29668/1997, the respondents were the legal heirs of Late.Devi Hengsu alone. It is seen that, the legal heir of land owner did not consider the petitioners herein as the legal heirs of deceased Devi Hengsu. That, when the aforesaid two writ petitions were clubbed together and disposed of by order dated:12.11.1998, the petitioners herein were nowhere in the said litigation. Thereafter, when the remanded application of Late.Devi Hengsu was taken up for fresh consideration by the Land Tribunal for the third time, it was only in the presence of legal heirs of late Devi Hengsu and petitioners herein were not parties in the said proceedings.
7. It is also seen that, there is reference to a suit in O.S.762/1997 on the file of Civil Judge, Junior Division, Mangalore, for the relief of partition. The said suit was filed by the legal heirs of Late.Kaveri Hengsu, who is the youngest daughter of Smt.Chittu Hengsu contending that, land bearing Sy.No.70/3 measuring 2 Acre 53 Cents and Sy.No.70/4 measuring 14 guntas of Kadri Village, Mangalore, was jointly allotted to the share of Kaveri Hengsu and Devi Hengsu in family partition. It is contended that, the Plaintiff are together entitled to undivided ½ share in the said lands along with legal heirs of Devi Hengsu. The same is said to be disposed off as stated by the learned senior counsel for contesting respondent Nos.3(a) and 4(b).
8. In the meanwhile, in the remanded proceedings, pending consideration before the land Tribunal, Mangalore in LRT/698/77-78, an application was filed by the legal heirs of Late.Devi Hengsu on 08.09.2006, where they conceded that the land bearing Sy. No.70/3 measuring 02 Acres 53 cents is not situated in agricultural zone and it is part of the land which is situate in urban limits of Kadri and as such, application which is filed by them seeking occupancy right may be rejected. The said application dated 08.09.2006 filed by the legal heirs of the applicant Smt.Devi Hengasu was taken up for consideration and on the same day, an order was passed by the Land Tribunal, Mangaluru Taluk, in rejecting the application of Smt. Devi Hengsu filed in Form No.7 on 28.12.1974. With this, the application filed seeking occupancy right by three children of Smt.Chittu Hengsu has reached finality.
9. The records would disclose that, after rejection of tenancy claim by Devi Hengsu at the instance of her legal heirs, an attempt was made to challenge the order of the Land Tribunal, Mangalore dated:8.9.2006, by one Devadatha, S/o Raghava.K.P, (he is 20th Respondent in these petitions) by filing W.P.16042/2008. The said writ petition subsequently came to be dismissed as withdrawn on the basis of a memo filed by him seeking withdrawal of the said writ petition. Thereafter, writ petition in W.P. No.38939/2012 (LR) was filed by the present writ petitioner Nos.1 to 10 challenging the dismissal of tenancy claim of Late.Devi Hengsu, in respect of the land bearing Sy. No.70/3 of Kadri village in LRT/698/77-
78 on the file of the Land Tribunal, Mangalore, by its order dated: 8.9.2006. The contesting respondents, in the said petition, who appeared before the Court brought to its notice that subsequent to the order dated 08.09.2006 vide at Annexure ‘A’ to the said writ petition, the legal heirs of the original owner have sold the said land in favour of respondent Nos.21 and 22 in these writ petitions, who in turn are said to have taken up joint development of the said property with the assistance of respondent No.23 in this proceedings, who in turn has created third party interest in favour of several persons. The co-ordinate bench of this Court was also apprised in the said W.P. No.38939/2012, that the persons in whose favour interest was already created in the property in question were not on record in the said petition. In this back ground, the co-ordinate bench of this Court dismissed the said writ petition, reserving liberty to the petitioners in the said writ petition to ascertain particulars of persons having secured interest in the said property and thereafter to file fresh writ petition, impleading them as parties to the writ petition. While doing so, liberty was also reserved to the respondents in the said writ petition to oppose the fresh petition to be filed with such defences permitted in law and the issue of delay and laches was kept open.
10. It is in this background, these writ petitions are filed by the legal heirs of Late.Seeta, the Grand daughter of Late.Chittu Hengsu, the original Chalageni tenant of land bearing Sy.No.70/3 of Kadri Village, through her daughter Late.Poovamma. The petitioners herein are trying to assert that, they have subsisting tenancy right in land bearing Sy.No.70/3 of Kadri Village, Mangalore. Hence, they are seeking to secure the original records in LRT/698/77-78 on the file of land Tribunal Mangalore and thereafter to quash the order dated: 8.9.2006 passed therein.
11. Heard the learned counsel Sri.M. Ramakrishna, appearing for the Petitioners, learned High Court Government Pleader, Sri.B.S. Budihal for the State, learned Senior Counsel, Sri.B.V.Acharya, for contesting Respondent Nos.3(a) and 4(b) and other counsels viz., Sriyuths Nagaraj Ijari, K.Ananda Rama, M.Sudhakar Pai, appearing for the other contesting respondents. When the material available on record is looked into, it is clearly seen that in the first place, petitioners have no manner of right to pursue these writ petitions. Admittedly, the petitioners herein are the legal heirs of Late.Seeta, who represents the branch of Late.Poovamma, the first daughter of late.Chittu Hengsu, the original chalageni tenant. Admittedly, Late.Seeta while she was alive, filed application in Form No.7 along with her brother J.Rama, in LRT.1484/77-78 which was rejected on merits by the order of land Tribunal dated 16.01.1981. The said order of rejection was accepted by the applicants. Therefore now, it is not open to the petitioners to challenge the same.
12. Incidentally, what is under challenge by the petitioners herein, is the rejection of tenancy claim of Late.Devi Hengsu by the Land Tribunal. Admittedly, the petitioners herein are not the legal heirs of late.Devi Hengsu, they do not have any right, title or interest in the claim pursued by late.Devi Hengsu as her legal heirs. In fact, there is absolute dishonesty on the part of the Petitioners herein, in deliberately not referring to the order of Land Tribunal, Mangalore, dated 16.01.1981 in LRT/1484/77-78, which was with reference to Form No.7 filed by Late.Seeta and her brother J.Rama. Though there is reference to one more application filed by Late.Kaveri Hengsu, in the writ petition, full particulars of that is also not furnished. In fact, the same is brought to the notice of this Court by respondent Nos.24 to 46 by filing a memo along with documents, where document No.1 is mahazar drawn with No.189/79-80 in LRT.1484/1977- 78 on the file of the Land Tribunal, Mangalore, where survey conducted would indicate that the mother of petitioner Nos.1, 2, 8 and 9, Smt. Seeta and her brother, Sri J. Ramanna, were not in possession and enjoyment of the said land and on the contrary, it was held that the said land was in possession and cultivation of Smt. Seeta’s maternal aunt, Smt. Devi Hengsu, who is another daughter of Smt. Seeta’s grandmother, Chithu Hengsu. Based on this, application of Smt.Seeta and J.Rama in LRT.1484/77-78 was rejected which was accepted by the applicants. The said fact is conveniently suppressed by the petitioners before this Court. However, the said order sheet in LRT.1484/77-78 is also placed before this Court vide Annexure ‘R3’, by Respondent Nos.24 to 26.
13. When the documents produced by the Respondents are seen, it is clear that the petitioners have no manner of right, title or interest to continue this litigation. The rejection of tenancy claim of Late.Devi Hengsu, by order of the Land Tribunal dated 08.09.2006 in closing the proceedings initiated in LRT.698/77-78 at the instance of the legal heirs of the applicant – Smt. Devi Hengsu has reached finality. Therefore, these petitions are required to be dismissed on that ground alone. Even otherwise, when the conduct of the petitioners in filing these petitions suppressing the facts is seen, it is neither in protecting their alleged right nor in pursuing legal cause. It is clearly seen that, this is an attempt for extortion through arm twisting method.
14. The records would disclose that, subsequent to the order of land Tribunal dated 08.09.2006 in rejecting the tenancy claim of Late.Devi Hengsu, the legal heirs of original landlord have sold the said land in favour of respondent Nos.21 and 22 in this proceedings. They in turn have undertaken joint development of said land along with respondent No.23. It is this joint development activity, which has prompted the petitioners to initiate this proceedings more in the nature of extortion than ascertaining their legal right to property. Assuming for a moment, the intention of the petitioner Nos.1, 2, 8 and 9 is to seek occupancy right, nothing prevented them from pursuing the order of rejection of occupancy right in favour of their mother, Smt. Seeta and their uncle J. Rama in proceedings in LRT.1484/77-78. Having accepted the order dated 16.01.1981 they could not have filed the earlier writ petition in 2012 subsequent to the order dated 08.09.2006. Pausing for a moment, at this juncture, this Court would notice assuming for a moment that, the petitioners herein also had right to pursue the tenancy claim of Late.Devi Hengsu, as her legal heirs, nothing prevented them to join other legal heirs of Late.Devi Hengsu, when W.P.5167/1995 was filed challenging the order of Land Tribunal dated:4.4.1989, which was pursued by the original legal heirs of late.Devi Hengsu. Even assuming for a while that, the petitioners herein had right to challenge the order of Land Tribunal dated 08.09.2006 passed in LRT.No.698/1977- 78, nothing prevented the petitioners to approach this Court immediately. There was no need for them to wait till 2012 when the property bearing No.70/3 was substantially developed and third party interest of several people had been created.
15. The grounds urged by the petitioners in these writ petitions, the suppression of earlier round of tenancy claim by mother and maternal uncle of Petitioners 1, 2, 8 and 9, in proceedings No.LRT/1484/77-78, which was dismissed by the Land Tribunal by order dated:16.01.1981 would clearly indicate that, the present writ petitions are more in the nature of extortion than petitions which are filed to assert their legal right to seek occupancy right in respect of the land in question.
16. Further, this court would notice, that, the prayer of the petitioners is also incomplete. What is sought by them in these writ petitions is to summon the original records in LRT/698/77-78 on the file of Land Tribunal, Mangalore, and to quash the order dated: 08.09.2006. Assuming for a while, if the said prayer of the petitioners is allowed, what would be the consequence? the said application will have to be sent back to the Land Tribunal for fresh consideration. In the instant case, the petitioners herein are not the legal heirs of late.Devi Hengsu, they have no right to pursue the aforesaid proceedings initiated on the basis of Form No.7 filed by late.Devi Hengsu. At the same time, the legal heirs of late.Devi Hengsu who were pursuing the said proceedings have got it rejected at their instance. Therefore, even if this Court were to think that, the order dated:08.09.2006 requires to be set aside in extreme circumstance, even then no benefit will accrue to the petitioners herein.
17. Therefore, this Court is of the considered opinion that the present writ petitions do not merit consideration either on facts or in law. In fact, as observed supra, this is a clear case of suppression of facts, manipulation in an attempt for extortion. Accordingly, these Writ Petitions are dismissed.
18. Learned High Court Government Pleader for the respondent - State, to file memo of appearance within two weeks from this day.
Sd/- JUDGE sma