Dismissed

The Lakshmi Narasimha Devaru v. D Poovappa Poojary

Karnataka HC26 Jul 2022WP/15220/2012

Case brief

AI extract

What is this about?

The Karnataka High Court dismissed a writ petition challenging the conferment of occupancy rights to tenants over agricultural lands. The court rejected the petitioner's plea of condoning a seven-year delay and upheld the lower tribunal's finding that the land was agricultural and tenanted based on rent receipts and revenue records.

What did the court decide?

The writ petition was dismissed on the grounds of inordinate delay and lack of merit.

The Lakshmi Narasimha Devaru Vs D Poovappa Poojary — Landlord and Tenant | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 26^th DAY OF JULY, 2022

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BEFORE

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THE HON’BLE MR.JUSTICE N.S.SANJAY GOWDA

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WRIT PETITION No.15220 OF 2012 (LR)

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BETWEEN:

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THE LAKSHMI NARASIMHA DEVARU REPRESENTED BY ITS SOLE MANAGING TRUSTEE SRI.VENKATARAMANA ACHARYA S/O LATE M.ANAND ACHARYA AGED ABOUT 49 YEARS SRI LAKSHMI NARASIMHA MUTT, GANAPATHI TEMPLE ROAD, MANGALORE-575 001

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… PETITIONER

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(BY SRI ANANDARAMA PRASHANTH, ADVOCATE)

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AND:

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1 . D.POOVAPPA POOJARY SINCE DECEASED BY HIS LR’S

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2 . SMT. KUSUMA ADULT,

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W/O LATE D. POOVAPPA POOJARY, SINCE DECEASED BY HER LRS.

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2 (a) SMT. GEETHA, D/O LATE D. POOVAPPA POOJARY, MAJOR,

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2 (b) SRI . AMARNATH

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S/O LATE D. POOVAPPA POOJARY, MAJOR,

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2 (c) SMT. SAVITHA D/O LATE D. POOVAPPA POOJARY, MAJOR

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2 (d) SMT. MAMATHA D/O LATE D. POOVAPPA POOJARY, MAJOR, RESPONDENTS NO. 2 (a) TO 2(d) ARE R/AT KOTHATTU HOUSE, JEPPINAMOGARU, MANGALORE - 575 007.

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SMT. JANAMMA ADULT, D/O LATE MONAPPA POOJARY, SINCE DECEASED BY HER LRS.

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3(a) SRI NARENDRA, S/O JANAMMA, MAJOR

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3(b) SRI SANATH ALIAS SANJEEVA S/O JANAMMA, MAJOR

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3(c) SMT. INDIRA D/O JANAMMA, MAJOR

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3(d) SMT. VEENA D/O JANAMMA, MAJOR

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RESPONDENTS 3(a) to 3(d) ARE R/AT "TACHILA HOUSE", DASARAKODI, KONAJE, MANGALORE TALUK,

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MANGALORE.

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4 . SMT. DEVAKI ADULT D/O MONAPPA POOJARY

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SMT. SAVITHRI ADULT D/O MONAPPA POOJARY

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SRI SEENA ADULT S/O MONAPPA POOJARY SINCE DECEASED BY HIS LRS.

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6(a) SMT.USHA W/O.LATE SEENA ADULT

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6(b) MR.PRASHANTHA SUVARNA S/O. LATE SEENA ADULT

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6(c) MR.PRADEEP SUVARNA S/O.LATE SEENA ADULT

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6(d) MR.PRATAP SUVARNA S/O LATE SEENA ADULT

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6(a) TO 6(d) ARE R/AT DOOR NO.1-172/1, GORIGUDDA, KANKANADY YEKKUR MANGALURU-575 007

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7 . THE MANGALORE LAND REFORMS TRIBUNAL MANGALORE TALUK

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MANGALORE REREPRESENTED BY ITS CHAIRMAN

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THE STATE OF KARNATAKA REVENUE DEPARTMENT VIDHANA SOUDHA BANGALORE-575 001 REPRESENTED BY ITS SECRETARY

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THE LAND ACQUISITION OFFICER AND ASSISTANT COMMISSIONER MANGALORE, D.K.

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… RESPONDENTS

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(BY SRI P.UDAY SHANKAR RAI, ADV. FOR R2 [A TO D] SRI.G.RAVISHANKAR SHASTRY, ADV. FOR R3 [A TO D] & R4 TO R6 SRI.D.S.SHIVANANDA, AGA FOR R7 TO R9 R2 TO R6 ARE LR’S OF DECEASED R1 R6 (A) TO R6 (D) ARE SERVED)

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THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS ON THE FILE OF MANGALORE LAND REFORMS TRIBUNAL, MANGALORE TALUK AND QUASHING THE ORDER DATED 08.07.2005 PASSED BY THE MANGALORE LAND REFORMS TRIBUNAL, MANGALORE TALUK IN L.R.T NO.505 80-81 (ANNEXURE-C) GRANTING OCCUPANCY RIGHTS TO THE LEGAL REPRESENTATIVES OF POOVAPPA POOJARY TO AN EXTENT OF 0.25 ACRES AND 0.46 ACRES IN SY.NO.12/4A AND SY.NO.97/1A1A2B RESPECTIVELY OF JEPPINAMOGARU VILLAGE, MANGALORE TALUK AND ETC.

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THIS PETITION, HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 10.06.2022, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This writ petition is filed by the Lakshmi Narasimha Devaru represented by its sole Managing Trustee Sri. Venkataramana Acharya son of Late M.Anand Acharya (“Landlord” for short) challenging the conferment of occupancy rights in respect of land bearing Sy.No.12/4A, measuring 24 cents and Sy.No.97/1A1A2B, measuring 46 cents in favour of the tenants.

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The Land Tribunal conferred occupancy rights on 08.07.2005. However, this writ petition is filed on 08.05.2012 i.e., after a period of seven years.

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In the writ petition, it is stated that even though a date had been given for pronouncement of order, on that day, the order was not ready and the subsequent date was not communicated to the petitioner, as provided under the provisions of the Karnataka Land Reforms Act, 1961.

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It is also stated that the petitioner’s father— M.Anand Acharya passed away on 05.09.2005 and the petitioner was required to attend various matters and also to make some family arrangements and hence, could not attend the pending legal matters. It is stated that the Land Tribunal though is statutorily obligated to communicate a copy of the order, did not communicate the order to the petitioner and after considerable length of time, the petitioner enquired with the Land Tribunal and was informed that the matter was pending. It is also stated that after repeated requests, the Land Tribunal informed the petitioner that the matter was disposed off on 08.07.2005 and immediately, he applied for the certified copy of the order and other documents in the first week of April 2012 and received it on 07.04.2012 and thereafter, he filed the present writ petition.

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The original records which are furnished by the learned Additional Government Advocate indicate that the case was posted on 07.05.2005, on which date, the

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advocate for the applicant filed his written arguments. The order-sheet records that the respondent was present and the matter was adjourned to 28.05.2005, for arguments of the respondent. On 28.05.2005, the order-sheet records that the arguments were advanced by the respondent’s counsel and the matter was posted for pronouncement of orders on 18.06.2005. On 18.06.2005, the order-sheet indicates that none were present and the matter was adjourned for passing of orders to 08.07.2005 and on that day, the order was pronounced.

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In the light of the fact that the order-sheet indicates that the arguments of the respondent-landlord were advanced and a date was fixed for pronouncement of order to 18.06.2005 and thereafter, was adjourned to 08.07.2005, the averments made in the petition that no date was fixed for pronouncement of the order and the petitioner was thus unaware of the date on which the order was pronounced cannot be accepted.

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This fact also belies of the contention raised in the

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writ petition to the effect that a subsequent date for pronouncement was not communicated. As it is admitted that a date had been given for pronouncement of order and on that day the order was not pronounced, then, it was incumbent upon the petitioner to approach the Land Tribunal and verify the subsequent date given for pronouncement of the order. As stated above, since the order was not ready on 18.06.2005, the Land Tribunal adjourned the matter 08.07.2005 and thus a fresh date had been fixed for the pronouncement of the order. In the light of this clear recording of the subsequent date in the order-sheet, the argument of the petitioner in this regard cannot be accepted.

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The other ground given in the writ petition that due to the sudden death of the petitioner’s father, the petitioner had to make certain family arrangements and to attend various matters of the family and hence, could

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not attend to the pending legal matters, cannot also be accepted.

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It has to be stated here that the petitioner, in fact, represented his father before the Land Tribunal on the basis of a General Power of Attorney executed in his favour on 10.12.2003. The said Power of Attorney, which is available in the original records of the Land Tribunal, indicates that the father of the petitioner was executing the Power of Attorney as he was aged about 76 years and due to his old-age, he was finding it extremely difficult to attend the lawyer’s office and other offices. This averment clearly indicates that it was the petitioner who was taking care of the proceedings before the Land Tribunal.

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In fact, it is the petitioner who had filed an affidavit on 17.09.2004 opposing the claim of the tenant and it was the petitioner, who was cross-examined on 15.01.2005. In the light of these facts, the averment that due to the death of the petitioner’s father, the

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petitioner could not attend the pending legal matters, cannot be accepted.

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It may also be pertinent to state here that in the writ petition, an averment is made that a portion of the land bearing Sy.No.97/1A1A2B was being acquired by the National Highways Authority and in the ground raised for seeking of an interim prayer, it is alleged that the tenants were trying to take possession though they were not entitled to do so. It, therefore, follows that it is only when a portion of the land bearing Sy.No.97/1A1A2B was sought to be acquired, the writ petition is filed only to deny the tenants from collecting the compensation.

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It is also to be stated here that in the writ petition at paragraph No.25, it is stated that a portion of the land bearing Sy.No.97/1A1A2B was being acquired by the National Highway Authorities and this averment indicates the reasons for which the petition was filed in the year 2012, which is obviously one for claiming compensation. It is also pertinent to state here that admittedly, certain

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portions of land had already been acquired by the Railways.

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It is, therefore, clear that the petitioner who claims to be a Family Trust was aware of the legal procedures and the manner in which legal proceedings take place.

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14. I am therefore of the view that in this writ petition,

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no cause, much less, sufficient cause is made out for condoning the huge delay of seven years in filing this writ petition.

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However, having regard to the length of this litigation and in order to ensure a finality to the matter, the merits of the claim are also being considered.

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The Land Tribunal has recorded a finding that the name of the tenant was found in the RTC for the year 1968-69 itself and tenant had also produced rent receipts and these documents indicated that he was a tenant of the agricultural lands, which were the subject matter of his Form No.7.

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The Land Tribunal has also noticed that the land bearing Sy.No.12/4A measuring 24 cents was a Bhagayat land as per the revenue records and in the said land there were twenty coconut trees and twenty areca nut trees and this fact was also admitted by the Landlord. The Land Tribunal has, therefore, concluded that Sy.No.12/4A was an agricultural land. This reasoning of the Land Tribunal being rational and proper deserves to be affirmed.

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In respect of Sy.No.97/1A1A2B measuring 91 cents, the Land Tribunal has noticed that as per the revenue records, the said land was a Khushki (dry) land and the Land Tribunal has also recorded a finding that both the lands were agricultural lands and till the year 1959, the rent was being paid as per the Rent Agreement and therefore, the lands in question were required to be considered as tenanted lands.

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The learned counsel for the petitioner, however,

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sought to contend that there is absolutely no material to

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indicate that the land bearing Sy.No.97/1A1A2B was an agricultural land. He stated that as a matter of fact, the said land was a Punja land and there was no evidence to establish that the said lands were capable of being used for agricultural purposes and were in fact being cultivated. He, therefore, contended that the order of the Land Tribunal could not be sustained.

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The original records which are produced by the State inter alia contain three rent receipts dated 15.04.1969, 14.01.1974 and 16.06.1974. The contents

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of the said receipts read are as follows:

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ªÀÄAUÀÆègÀÄ vÁ¯ÉÆÃPÀÄ d¦à£À ªÉÆUÀÄæ UÁæªÀÄzÀ PÉÆvÀÛlÄÖ PÀA¥ÉÆAqÀÄ£À°ègÀÄ ªÉÆÃ£À¥Àà ¥ÀÆeÁjAiÀÄ ªÀÄUÀ£ÁzÀ ¥ÀÆª À ¥Àà ¥ÀÆeÁjAiÀÄªÀjUÉ ªÀÄAUÀÆègÀÄ ±ÀºÀgÀÄ ®Që£ÀgÀ¹AºÀ zÉÃªÀ¸ÁÜ£ÀzÀ ªÀÄÄPÉÛÃ±ÀégÀgÁzÀ D£ÀAzÀZÁAiÀÄðgÀÄ PÉÆlÖ gÀ²Ã¢ K£ÉAzÉæ ºÀvÀÄÛ ¸ÀªÀÄ¸ÀÛjUÉ £ÁåAiÀÄ wÃgÀªÀiÁ¤¹ ¨ÁQ G½zÀ gÀÆ¥ÉÊ 200/- F ¢ªÀ¸À PÉÆnÖzÀÄÝ eÁqÁ DV §AvÀÄ.

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m.a.acharya ªÀÄAUÀÆègÀÄ vÁ: 15/4/69

ªÀÄAUÀ¼ÀÆgÀÄ

vÁ: 14/1/74

ªÀÄAUÀ¼ÀÆgÀÄ vÁ®ÆPÀÄ d¦à£À ªÉÆUÀÄæ UÁæªÀÄzÀ PÉÆvÀÛlÄÖ PÀA¥ËAr£À°ègÀÄªÀ ªÉÆ£À¥Àà ¥ÀÆeÁjAiÀÄªÀgÀ ªÀÄUÀ ¥ÀÆª À ¥Àà ¥ÀÆeÁjAiÀÄªÀjUÉ.

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ªÀÄAUÀ¼ÀÆgÀÄ ²æÃ ®Që£ÀgÀ¹AºÀ zÉÃªÀ¸ÁÜ£ÀzÀ ªÀÄÄPÉÛÃ±ÀégÀgÁzÀ M. D£ÀAzÀ DZÁjAiÀÄgÀÄ UÉÃtÂ ¥ÁªÀw §gÀPÉÆlÖ gÀ²Ã¢ü:-

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K£ÉAzÀgÉ ¤¤ßAzÀ £À£ÀUÉ ¸À®è vÀPÀÌ UÉÃtÂ ¨Á§ÄÛ 1972 ªÀiÁZÀð¬ÄAzÀ 1973 ªÀiÁað ªÀgÉV£À UÉÃtÂ ¨Á§ÄÛ §gÀvÀPÀÌ gÀÆ¥Á¬Ä £ÀÆgÀ ªÀÄÆªÀvÀÄÛ R.130/- eÁqÉAiÀiÁV FªÀvÀÄÛ ªÀ¸ÀÆ° §AvÀÄÛ

m.a.acharya

F.§UÉå.¸ÁQë

J. Narayana

ªÀÄAUÀ¼ÀÆgÀÄ

vÁ: 16/6/74

ªÀÄAUÀ¼ÀÆgÀÄ vÁ®ÆPÀÄ d¦à£À ªÉÆUÀÄæ UÁæªÀÄzÀ PÉÆvÀÛlÄÖ PÀA¥ËAr£À°ègÀÄªÀ ªÉÆ£À¥Àà ¥ÀÆeÁjAiÀÄªÀgÀ ªÀÄUÀ ¥ÀÆª À ¥Àà ¥ÀÆeÁjAiÀÄªÀjUÉ

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ªÀÄAUÀ¼ÀÆgÀÄ ²æÃ ®Që£ÀgÀ¹AºÀ zÉÃªÀ¸ÁÜ£ÀzÀ ªÀÄÄPÉÛÃ±ÀégÀgÁzÀ M..D£ÀAzÀ DZÁjAiÀÄgÀÄ UÉÃtÂ ¥ÁªÀw §gÀPÉÆlÖ gÀ²Ã¢ü.

m.a.acharya

F.§UÉå.¸ÁQë

J. Narayana -------------------------------------------------

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The petitioner, who deposed before the Land Tribunal and was also cross-examined, admitted that the

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rent receipt dated 15.04.1969 was issued by his father.

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The said admission reads as follows:

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The petitioner, however, denied the execution of

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the rent receipt dated 16.06.1974. The rent receipt dated 16.06.1974 was, however, not commented upon by the petitioner. The relevant portion is as under:

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vÉÆÃj¹gÀÄvÁÛgÉ JAzÀgÉ ¸Àj. . . . £ÀªÀÄä CdÓ£À PÁ®¢AzÀ®Æ PÀÆqÁ CfðzÁgÀgÀÄ D ¨sÀÆ«ÄAiÀÄ°è EzÁÝgÉ JAzÀgÉ ¸Àj. . ”

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These statements leave no room for doubt that the

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land was a tenanted land and was in possession of the tenant. The contention that the lease was only in respect of the house and not the land cannot be accepted in the light of the fact that the petitioner

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admits the issuance of the rent receipt and also the mentioning of the chalageni in the RTC of the year 196869 and further, the fact that the petitioner made a clear statement during his cross-examination that the tenant being in possession right from the time of his grandfather.

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The petitioner has, in fact, produced a legal notice dated 03.02.1958, which is marked as Ex.R-2. The said legal notice reads as under:

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From M A N G A L O R E-3

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A. Ranganath Rao, M.A., B.L., 3^rd February 1958 Advocate, C.H.S. Road, Mangalore-3 (S.K) To (1)Somu Hengeu, widow of )Residing at Kothatta in Monappa Poojary )Jeppinamogaru Village (2)PoovappaPoojary, son )Post KANKANADY. of No.(1). ) (S. Kanara) I have been instructed by my client Sri. M. Narayana Acharya, son of M. Venkatramana Acharya, Trustee, Sri Laxminarasimha Matt, presiding in Ganapathi Temple Road, Mangalore Town, to send you this notice on his behalf.

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In respect of the property issued to you under the Bhadige-chit dated 14-4-1956 executed by you

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in my client’s favour on a monthly rent of Rs.4-8-0, after deducting the payments of Rs.10/-, Rs.25/-, Rs.20/- and Rs.3/- made by you on 6-10-1956, 8- 12-1956, 26-1-1957 and 19-2-57 respectively, a sum of Rs.36-8-0 is due from you are arrears of rent in respect of the period 1-5-1957 till 31-1-1958. You have willfully defaulted in paying the rent. You have also failed to execute a Bhadige-chit in my client’s favour after the expiry of the period fixed in the Bhadige-chit dated 14-4-1956. You have thus rendered yourselves liable to be evicted.

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Please take notice that unless you pay within 7 days of the receipt of this notice the aforesaid arrears of rent with interest thereon and the costs of this notice Rs.3.75 and obtain a voucher for the payment from my client, and unless you surrender possession of the property to my client on 28-21958 after paying the rent for February 1958 and obtain vouchers for the surrender and payment, legal proceedings will be instituted against you for the necessary reliefs at your risk as to costs. This notice is sent to No (1) among you with a request to communicate its contents to No (2).

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Yours faithfully, sd/o/c A Ranganath Rao Advocate.”

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25. As could be seen from the said legal notice, there is

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no mention of only a house being leased out to the

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tenant. The legal notice only states that in respect of the property leased to the tenant, under a Baadige Chit (¨ÁrUÉ aÃn) dated 14.04.1956; there were arrears of rent due. If it was really the case of the landlord that only the house had been leased out, the legal notice would have clearly depicted that fact.

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In my view, the admission of the petitioner regarding the issuance of the Baadige Chit (¨ÁrUÉ aÃn), rent receipt on 15.04.1969 and the fact that the signatures on the other two rent receipts match with the signature of the petitioner’s father in the admitted rent receipt, clearly establishes that the lands in question were tenanted lands.

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The tenant has also produced a copy of the award of the year 1971 in respect of the portion of the land which was acquired in Sy.No.12/4B. In the said award, it is stated that Poovappa Poojari i.e., the father of respondent Nos.1 to 6 was the Chalageni tenant.

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It is admitted by the landlord that a portion of the

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land was, in fact, acquired. Having regard to the fact that in the award, there is a specific mention of Poovappa Poojari being a Chalageni tenant in respect of Sy.No.12/4B, it cannot be denied that the lands in question were tenanted lands.

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The learned counsel for the petitioner further contended that Sy.No.97/1A1A2B being a Punja land , it could not have been the subject matter of the proceedings before the Land Tribunal.

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He relied upon the judgments of the Hon’ble Apex Court in the case of Subhakar and others vs. Harideesh Kumar and others, reported in (2007) 9 SCC 561 and a decision of this Court in the case of Narayana Devadiga (deceased) by L.Rs. vs. Smt.Sharada and others , reported in (2002) Vol.1 Kant.L.J. 581, stating that the Punja land could not be considered as land under Section 2A(18) of the Karnataka Land Reforms Act, 1961.

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In Subhakar ’s case, the Hon’ble Apex Court was considering the situation where both the Land Tribunal and this Court had categorically noted the fact that the land being the Punja land was not being cultivable and only grass was being grown naturally and in the context of that factual situation, the Hon’ble Apex Court came to the conclusion that the grant of such a Punja land could not be sustained.

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It has to be stated here that there is absolutely no evidence indicating that the land was not cultivable. The son of the tenant, who deposed before the Land Tribunal, has specifically denied the suggestion that there were no agricultural activities being carried out in Sy.No.97. The son of the tenant has also stated that a portion of the land is measuring 97 cents. The son of the petitioner has also deposed as follows:

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“ . . . 97 ¸ÉAlì eÁUÀ ªÉÆzÀ°UÉ UÀÄqÀØ EzÀÄÝ FUÀ ¸ÀªÀÄvÀlÄÖ

¶140

¥Àr¸À¯ÁVzÉ JAzÀgÉ ¸ÀjAiÀÄ®è. EzÀÄ ±ÉÃrªÀÄtÄß eÁUÀ C®è PÀA¥ÀÄªÀÄtÄß. ...”

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The 97 cents the tenant’s son referred to is, in fact, the 97 cents that was sought in Sy.No.97/1A1A2B. This assertion of the tenant’s son is not disproved by production of credible evidence. It would, therefore, have to be held that the Land Tribunal was justified in coming to the conclusion that the land bearing above mentioned survey number was also cultivable land and the registration of the tenant as an occupant in respect of 46 cents of the above mentioned land cannot be found fault with.

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It has to be borne in mind that the Land Tribunal has, after assessing the evidence, recorded a finding that the lands were agricultural lands and contained coconut

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and areca-nut trees and this finding of fact cannot be doubted and reviewed by this Court in exercise of extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India.

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For the reasons stated above, I am of the view that there is no merit in the writ petition and the same is accordingly dismissed both on the grounds of delay as well as being devoid of merit.

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SD/JUDGE

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RK CT:AN*

The Lakshmi Narasimha Devaru v. D Poovappa Poojary

Case brief

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The Lakshmi Narasimha Devaru v. D Poovappa Poojary

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