Dismissed

Sri Neelakantappa v. the Land Tribunal

Karnataka HC3 Aug 2022WA/2071/2010

Case brief

AI extract

What is this about?

In a writ appeal challenging a Single Judge's order confirming Land Tribunal's grant of occupancy rights, the High Court of Karnataka verified original records. Finding evidence of Form No.7 submission, the Court held the Tribunal's finding was justified and dismissed the appeal, confirming the Single Judge's order.

What did the court decide?

The intra-court appeal is dismissed as devoid of merit, and the order dated 28/10/2009 is confirmed.

Sri Neelakantappa Vs the Land Tribunal — Property and Title | Karnataka HC (2022)

¶1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶2

DATED THIS THE 03^RD DAY OF AUGUST, 2022

¶3

PRESENT

¶4

THE HON’BLE MR. JUSTICE B. VEERAPPA

¶5

AND

¶6

THE HON’BLE Mrs. JUSTICE K.S. HEMALEKHA

¶7

WRIT APPEAL No.2071/2010 (LR)

¶8

BETWEEN:

¶9

SRI NEELAKANTAPPA S/O. LAXMINARAYANAPPA, AGED ABOUT 68 YEARS, OCC: AGRICULTURE, R/O. NELAMANGALA TALUK, DISTRICT BANGALORE – 562 123. ... APPELLANT

¶10

(BY SRI B.C. RAJEEVA, ADVOCATE)

¶11

AND:

¶12

THE LAND TRIBUNAL, NELAMANGALA BY ITS CHAIRMAN, NELAMANGALA TALUK, DISTRICT BANGALORE – 562 123.

¶13

THE STATE OF KARNATAKA, BY ITS SECRETARY, REVENUE DEPT., M.S. BUILDING, BANGALORE – 01.

¶14

GANGABYRAIAH S/O. BYRANNA,

¶15

¶16

AGED ABOUT 51 YEARS, R/O. THYAMAGOUNDLU VILLAGE, NELAMANGALA TALUK, DISTRICT BANGALORE – 562 123.

¶17

B.T. CHANDRASHEKAR SHETTY, SINCE DECEASED BY LR’s,

¶18

4(a) SRI B.C. JAYTHIRMALESHAPPA, AGED ABOUT 69 YEARS, OCC: AGRICULTURE,

¶19

4(b) SRI B.C. SOMSHEKAR S/O. B.T. CHANDRASHEKAR SHETTY, AGED ABOUT 64 YEARS, OCC: AGRICULTURE,

¶20

BOTH ARE R/O. NELAMANGALA TALUK, DISTRICT: BANGALORE – 562 123.

¶21

... RESPONDENTS

¶22

(BY SRI KIRAN KUMAR, HCGP FOR R-1 AND R-2; SRI R. VIJAYA KUMAR, ADVOCATE FOR R-3; SMT. SREEVIDYA G.K., ADVOCATE FOR SRI T.N. VISWANATHA, ADVOCATE FOR R-4(A) AND R-4(B))

¶23

THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION NO.9733/2004 DATED 28/10/2009.

¶24

THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:-

¶25

¶26

J U D G M E N T

¶27

This intra-court appeal is the fourth round of litigation filed against the order dated 28/10/2009, passed in W.P.No.9733/2004 by the learned single Judge, who rejected the writ petition confirming the order of the Land Tribunal dated 17/02/2004 passed in No.LRF(TAK) 40/1982-82 granting occupancy rights

¶28

in favour of respondent No.3.

¶29

It is the case of the appellant that he is the

¶30

landlord in respect of Sy.No.112 measuring 3 acres 14 guntas and Sy.No.113 measuring 1 acre 3 guntas of Thyamagondlu Village, Nelamangala Taluk. According to the appellant, respondent No.3 never cultivated the land nor filed any Form No.7 before the Land Tribunal for grant of occupancy rights. It is the case of respondent No.3 that he was the tenant of the said lands and that he has filed Form No.7 in respect of the said lands. The Land Tribunal, considering the oral

¶31

¶32

and documentary evidence, granted occupancy rights on 30/09/1982 and that was the subject matter of W.P.No.41653/1982 filed by the appellant herein. This Court, after hearing both the parties vide order dated 27/03/1984 allowed the writ petition and remanded the matter to the Land Tribunal for fresh consideration.

¶33

It is the further case of the appellant that the Land Tribunal, after hearing both the parties, vide order dated 04/08/1987 rejected the claim of respondent No.3 for grant of occupancy rights in respect of the said lands holding that respondent No.3 has not filed Form No.7. Aggrieved by the said order, respondent No.3 filed W.P. No.23564/1991 before this Court. Learned single Judge, after hearing both the parties, vide order dated 25/07/2002 allowed the writ petition and remanded the matter to the Land Tribunal for fresh consideration in accordance with law. The

¶34

¶35

Land Tribunal, after hearing both the parties and by considering the oral and documentary evidence, vide order dated 17/07/2004 granted occupancy rights in favour of respondent No.3. Hence, the present appellant filed W.P.No.9733/2004 before the learned single Judge. Learned single Judge after hearing both the parties vide order dated 28/10/2009 dismissed the writ petition. Hence, the present intra-court appeal is filed.

¶36

We have heard learned counsel for the

¶37

parties.

¶38

Sri B.C.Rajeeva, learned counsel for the

¶39

appellant/landlord contended with vehemence that the impugned order passed by the learned single Judge confirming the order of the Land Tribunal is erroneous and cannot be sustained and is liable to be set aside. He further contended that respondent No.3 has not at

¶40

¶41

all filed Form No.7 and thus the question of granting of occupancy would not arise and the same has not been considered by the learned single Judge while dismissing the writ petition. He would further contend that as per Annexure – P dated 26/11/2002, the case worker who has been examined after remand has categorically stated that he has not issued any acknowledgement for receiving Form No.7 from respondent No.3/Gangabyraiah and the said case worker though was cross-examined, nothing has been elicited to prove that respondent No.3filed Form No.7 before the Land Tribunal. The said aspect having not been considered by the learned single Judge the dismissal of writ petition has lead to miscarriage of justice.

¶42

He further contended that while remanding

¶43

the matter on 25/07/2002 in W.P. No.No.23564/1991, learned single Judge issued certain directions and the

¶44

¶45

same were not followed by the Land Tribunal. Hence, erroneously granted occupancy rights in favour of respondent No.3 and the same has confirmed by the learned single Judge without there being any material on record. He would further contend that the Tribunal has not recorded any finding to prove that as on 01/03/1974, respondent No.3 was a tenant and the lands are tenanted lands vested with the State Government in view of the provisions of Section 44 of the Karnataka Land Reforms Act, 1961 (hereinafter referred to as “the KLR Act” for short). In the absence of the same, granting of occupancy rights is erroneous and cannot be sustained.

¶46

He would further contend that in view of the provisions of Section 48A(8) of the Karnataka Land Reforms Act, 1961 stipulates that where no application is made within the time allowed under subsection (1), the right of any person to be registered as

¶47

¶48

an occupant shall have no effect. Since respondent No.3 has not at all filed Form No.7, registration of a case under Section 48A of the KLR Actwould not arise. Thereby, the Tribunal committed an error in granting occupancy rights and the same is erroneously confirmed by the learned single judge cannot be sustained.

¶49

In support of his contention, learned counsel for the appellant relied upon paragraph No.4 of the dictum of the Co-ordinate Bench of this Court in the case of Basappa vs. The Land Tribunal, BagaalkoteTaluk& others [AIR 1978 Karnataka

¶50

44] and thereby sought to allow the writ appeal.

¶51

Per contra , Sri R. Vijayakumar, learned counsel for respondent No.3-tenant would justify the order of learned single Judge, which according to learned counsel is in view of the finding recorded by

¶52

¶53

the Tribunal that respondent No.3 has filed Form No.7 within the time stipulated and considering the oral and documentary evidence on record, the Tribunal recorded a finding that respondent No.3 has filed Form No.7 and his name is found in the cultivator’s column for the year 1968-69 and thereby the Tribunal is justified in granting occupancy rights in favour of respondent No.3. Learned single Judge after reconsidering the entire material on record has recorded a finding that the Land Tribunal has also considered the entries in the RTC wherein the name of Byraiah, the father of the applicant was entered. The Tahsildar by order dated 02/10/2981 directed deletion of names of Ramaiah and Nagalingappa which were entered in column No.12(2) of the RTC. The said order of the Tahsildar was upheld by the Assistant Commissioner, Doddaballapur, thereby, on the elaborate discussion and material on record, the Land

¶54

¶55

Tribunal reached a definite conclusion and conferred occupancy rights in favour of respondent No.3. The present intra-court appeal is filed and the scope of appal is very limited and this Court while exercising power under Section 4 of the Karnataka High Court Act, 1961. He also invited our attention to the statement of objections filed by respondent No.3 before the learned single Judge. In paragraph No.4 it is specifically stated that after the Act came into force, respondent No.3 has filed an application claiming occupancy rights over the lands in question before the Land Tribunal. The certified copy of the said application dated 30/06/1979 is produced at Annexure – R1. The respondent also produced copy of the receipt issued by the concerned clerk in the office of the Land Tribunal, Nelamangala, for having received the application on 30/06/1979 and the same is produced at Annexure - R2. It is further contended

¶56

¶57

that the Land Tribunal, considering the oral and documentary evidence after repeated remand by the High Court has come to a conclusion that respondent No.3 was the tenant as on 01/03/1974. Therefore, the Land Tribunal granted occupancy rights. Thus, he sought to dismiss the appeal.

¶58

Smt. Srividya G.K., learned counsel

¶59

appearing for Sri T.N.Viswanatha, learned counsel for respondent No.4(a) and 4(b), while supporting the arguments advanced by learned counsel for the appellant, sought to set aside the order passed by the learned single Judge. She would contend that respondent No.3 has not at all cultivated the lands nor filed any Form No.7 within the time stipulated under the provisions of the Land Reforms Act and sought to allow the appeal.

¶60

¶61

In view of the rival contentions urged by

¶62

learned counsel for the parties, the only point that arises for our consideration in the present intra appeal is:

¶63

“Whether the Land Tribunal is justified in granting occupancy rights in favour of respondent No.3 on 17/02/2004 and whether the learned single Judge is justified in dismissing the writ petition filed by the present appellant in the peculiar facts and circumstances of the case?”

¶64

We have given our thoughtful consideration

¶65

to the arguments advanced by the parties and

¶66

perused the material on record including original records carefully.

¶67

There is no dispute that all the three survey numbers i.e., Sy.Nos.112, 113 and 114 measuring 3 acres 14 guntas, 1 acre 3 guntas and 7 guntas respectively, situated at Thyamagondlu

¶68

¶69

Amanikere Village, Nelamangala Taluk belong to the appellant herein. It is the specific case of the appellant that respondent No.3 never cultivated the lands of the appellant nor filed Form No.7 before the Land Tribunal. It is the specific case of respondent No.3 that he has filed Form No.7 as per Annexure – R1 on 30/06/1979 and acknowledgement as per Annexure – R2.

¶70

In order to verify the statements made by learned counsel for the parties, this Court summoned the original records and this Court verified the original records on 15/06/2022 and on a careful perusal of the original records, this Court recorded a finding that the certified copy of Form No.7 filed by respondent No.3 is available at page No.124 of the original records. So also, acknowledgement issued by the concerned clerk for having received Form No.7 is available at page No.123 of the original records. It is also stated that it

¶71

¶72

is not in dispute that respondent No.3 filed Form No.7 as long back as on 30/06/1979 whose application has been considered and occupancy rights have been granted by the Land Tribunal on 17/02/2004 which was the subject matter of W.P.No.9733/2004 wherein

¶73

the learned single Judge dismissed the writ petition confirming the order passed by the Land Tribunal.

¶74

We have perused the original order passed

¶75

by the Land Tribunal and the order passed by the learned single Judge as well as the original records including RTC.

¶76

The statement of Gangabyraiah was recorded before the Tribunal, who stated that Sy.Nos.112, 113 and 114 belonged to Lakshmanappa/ Lakshminarayanappa and Chandrappa and they were ancestral lands. Chandrappa is residing in Bengaluru and Lakshmanappa/ Lakshminarayanappa was

¶77

¶78

residing in Thyamagondlu. Lakshmanappa/ Lakshminarayanappa died and his children are residing at Thyamagondlu and they had leased out the properties on regular basis, however no documents to show that they leased the lands. It is further stated that on behalf of the applicant Gangabyraiah, Govindappa son of Siddappa, Mohan Raj, Shivanna and Rangamma wife of Kenpamma have filed affidavits and stated that the applicant Gangabyraiah himself is cultivating the lands and the landlords neither Neelakantappa or Chandrashekara Shetty have never cultivated the lands and they are the adjacent land owners. The landlord Neelakantappa has made a statement before the Land Tribunal that the alleged lands are the ancestral properties and his father was cultivating the same. Thereafter, after the death of his grand-father, his father and Chandrashekara Shetty and the other brothers were

¶79

¶80

cultivating the lands and after their death they have not given saguvali to anybody and thereafter, he continued to cultivate the lands. Pahani is in the name of Ramaiah who was assisting his father in agricultural operation and Nagalingappa his brother’s name is continued in the pahani. They have been cultivating the lands by themselves personally and they have never given to anybody in cultivation and Gangabyraiah never cultivated the said lands and he has not filed any application within the time. Accordingly, endorsement came to be issued by the concerned authorities that they have not filed the saguvali chit. Considering the material on record and considering both oral and documentary evidence on behalf of the landlord and the tenant as contemplated under Rule 17 of the Karnataka Land Reforms Rules, 1974, the Land Tribunal has come to a conclusion that as per the direction issued by the High Court on

¶81

¶82

25/07/2002 Anwar Pasha’s submission is also recorded by the Land Tribunal and he has stated that the application Form No.7 is filed by respondent No.3 and accordingly, has issued the receipt for the same and the last date for receipt of Form No.7 was fixed on 30/06/1979 and further recorded a finding considering both oral and documentary evidence on record clearly indicates that Gangabyraiah has filed Form No.7 and his name was shown for the year 1968-69 and though along with Ramaiah and Nagalingappa were shown, they have not filed any application and in column No.12/(2), the names have been rounded by order dated 07/10/1982 and the applicant’s name is shown as Gangabyraiah and thereafter, the Land Tribunal came to a conclusion that Gangabyraiah has cultivated the land as on 01/03/1974 and granted occupancy rights.

¶83

¶84

Though contention was raised by learned

¶85

counsel for the appellant that Form No.7 has not at all been filed by respondent No.3 and that the reason the Tribunal has remanded the matter for the fourth time. The original records produced by the Tahsildar depicts Form No.7 exist and the revenue entries reflects the name of the appellant including the acknowledgement at page Nos.124 and 123. Hence, statement of the appellant that respondent No.3 has not filed of Form No.7 cannot be accepted.

¶86

On re-consideration of the material on record, learned single Judge in W.P.No.9733/204 dated 28/10/2009 has recorded a finding in paragraph Nos.4 and 5 as under:

¶87

“4. In view of the said statement on behalf of the person who has issued the acknowledgement for having accepted Form No.7 application from the third respondent, which acknowledgement is produced by the

¶88

¶89

third respondent as per Annexure–R2 and the application as Annexure-R1, it cannot be said that the third respondent did not file Form No.7 as sought to be contended by the petitioner. The Land Tribunal in Page 9 of the order has clearly discussed about the statement made by the applicant and the concerned case worker by name Sri Anwar Basha who has stated that without receiving the application no receipt would be issued. The Land Tribunal has also considered the statement of other witnesses and has cme to conclusion that the applicant had submitted application on 20.6.1976. Relying upon the decision of this Court in ILR 1989 KAR 1308 considered the matter in proper perspective and has reached to correct conclusions. The Land Tribunal has also considered the entries in the RTC wherein name of Byraiah, father of the applicant was entered. The Tahsildar by the order dated 2.10.1982 directed deletion of names of Ramaiah and Nagalingappa which were entered in column No.12(2) of the RTC. The said order of the Tahsildar ws upheld by the Assistant Commissioner, Doddaballapur.

¶90

¶91

In view of the above elaborate discussion on the materials and the Land Tribunal having reached a definite conclusion and conferred occupancy rights n favour of the third respondent. In the said circumstances, the order passed by the Land Tribunal is a well considered order and such an order cannot be lightly interfered by this Court under Article 226 of the Constitution of India Accordingly, I do not find any infirmity in the impugned order, writ petition is liable to be rejected and it is accordingly rejected.”

¶92

In view of the concurrent findings of fact

¶93

recorded by the Land Tribunal and confirmed by the learned single Judge and the appellant has not made out any ground to interfere with the impugned order passed by the learned single Judge. Accordingly, we answer the point raised in the present appeal in the negative holding that the appellant has not made out any ground to interfere with the impugned order passed by the learned single Judge confirming the

¶94

¶95

order passed by the Land Tribunal granting occupancy rights in favour of respondent No.3.

¶96