Dismissed

Sri Gundappa v. State of Karnataka

Karnataka HC22 Nov 2024WA/4185/2013

Case brief

AI extract

What is this about?

Appellants challenged a Land Tribunal order granting occupancy rights to a tenant on land subject to a usufructuary mortgage. The court held the mortgagee deemed landowner's induction created tenancy as on 01.03.1974, and redemption rights stood barred by prior decree; appeal dismissed.

What did the court decide?

Appeal dismissed with no costs; Tahasildar directed to grant Form 10 certificate and effect mutation in favour of respondent 4 within sixty days.

Sri Gundappa Vs State of Karnataka — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:47687-DB WA No. 4185 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22^ND DAY OF NOVEMBER, 2024

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PRESENT

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THE HON'BLE MR JUSTICE KRISHNA S DIXIT

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AND

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THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR WRIT APPEAL NO. 4185 OF 2013 (L-RES)

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BETWEEN:

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SRI. GUNDAPPA, AGED ABOUT 60 YEARS, S/O SURAPPA GOWDA, RESIDING AT UBBURU VILLAGE, NANDAGADDE HOBLI, THIRTHAHALLI TALUK, SHIMOGA DISTRICT- 577 432.

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(SENIOR CITIZEN BENEFIT NOT CLAIMED)

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Digitally signed by SHARADA VANI B Location: HIGH COURT OF KARNATAKA

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SMT. VISHALAKSHI , AGED ABOUT 57 YEARS, D/O SURAPPA GOWDA, RESIDING AT UBBURU VILLAGE, NANDAGADDE HOBLI, THIRTHAHALLI TALUK, SHIMOGA DISTRICT - 577 432.

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…APPELLANTS

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(BY SRI. SHANKARANARAYANA BHAT N .,ADVOCATE)

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AND:

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STATE OF KARNATAKA, REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, M S BUILDING, DR AMBEDKAR VEEDHI, BANGALORE - 560 001.

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THE LAND TRIBUNAL , THIRTHAHALLI TALUK, THIRTHAHALLI, SHIMOGA DISTRICT - 577 432. BY ITS SECRETARY

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2 - NC: 2024:KHC:47687-DB WA No. 4185 of 2013

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SRI. JNANENDRA , AGED ABOUT 61 YEARS S/O U T SHAME GOWDA SINCE DEAD BY LRs

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3(A) SMT. PUSHPA W/O JNANENDRA, AGED ABOUT 65 YEARS,

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3(B) SRI. NIPUNA S/O JNANENDRA, AGED ABOUT 40 YEARS,

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3(A) & (B) ARE R/AT UBBURU VILLAGE, NANDAGADDE HOBLI, GUTTI YEDAHALLI POST, THIRTHAHALLI TALUK, SHIVAMOGGA DISTRICT – 577 226.

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SRI. THIMMAPPA, AGED ABOUT 58 YEARS, S/O SUBBAIAH GOWDA, RESIDING AT UBBURU VILLAGE, GUTTI YEDEHALLI POST, MANDAGADDE HOBLI, THIRTHAHALLI TALUK, SHIMOGA DISTRICT-577 432.

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…RESPONDENTS

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(BY SRI. M RAJKUMAR., AGA FOR R1 & R2; SRI. B S PRASAD., ADVOCATE FOR R4; NOTICE TO R3(A) & (B) IS H/S V.C.O DATED 08.04.2015)

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THIS WRIT APPEAL FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION NO.38971/11 DATED 13/2/2013.

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THIS WRIT APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE KRISHNA S DIXIT and

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HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR

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NC: 2024:KHC:47687-DB WA No. 4185 of 2013

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ORAL JUDGEMENT

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(PER: HON'BLE MR JUSTICE KRISHNA S DIXIT)

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The appellant Nos.1 & 2 being the son and daughter

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of late one Sri.Surappa Gowda, are grieving in appeal against a learned Single Judge’s order dated 13.02.2013 whereby, their W.P.No.38971/11 (LR) has been negatived.

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In the said petition, they had called in question Land Tribunal’s order dated 26.05.2011 whereby, occupancy has been registered under section 48A of the Karnataka Land Reforms Act, 1961, in favour of the 4^th respondent herein in respect of petition land.

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Learned counsel appearing for the appellants vehemently argues that the Tribunal committed a grave error of law in granting occupancy in the absence of cogent evidentiary material to establish tenancy as on 1.3.1974 in respect of land admeasuring 1 acre in Sy.No.22 of Ubburu Village, Nandagadde Hobli, Thirthahalli taluk, Shivamogga District; his clients father & grandfather were the mortgagors and father of 3^rd respondent herein

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4 - NC: 2024:KHC:47687-DB WA No. 4185 of 2013

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was the mortgagee by virtue of registered Mortgage Deed

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of 1960s; if he has inducted someone into the land, that would not create tenancy between his clients and the inductee. All these aspects having not been properly appreciated both by the Tribunal and later by the learned Single Judge, the interference of this court is warranted for setting the injustice at naught. He takes us to the provisions of 1961 Act and the provisions of Transfer of Property Act, 1882, in support of his submission.

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The respondent-State and Tribunal are represented by the learned AGA; the 3^rd respondentmortgagee having died, his L.Rs are brought on record and they too remain unrepresented. Be that as it may. The 4^th respondent-tenant is represented by his private advocate who opposes the petition making submission in justification of the impugned order of the learned Single Judge and the Land Tribunal order, as well. He notifies to the court the suit for redemption of mortgage filed by the father of appellants wherein, his client got impleaded as a

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5 - NC: 2024:KHC:47687-DB WA No. 4185 of 2013

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respondent and thereby, saved the petition land from being redeemed. He adds that even the appeal against the decree having failed, the 4^th respondent has become the title holder to the land, regardless of the Land Tribunal order.

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Having heard the learned counsel for the parties and having perused the Appeal Papers, we decline indulgence in the matter broadly agreeing with the submission of learned counsel for 4^th respondent. Admittedly, father & grandfather of the appellants had given the subject land by way of usufructuary mortgage in favour of the father of 3^rd respondent herein; the mortgagee being examined as the witness before the Tribunal has admitted that he had inducted 4^th respondent in the subject land and he has been cultivating the same since decades. Under the Dictionary Clause of 1961 Act, a usufructuary mortgagee is deemed to be the land owner and therefore, the arrangement between himself and the 4^th respondent assumes the character of tenancy as on

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6 - NC: 2024:KHC:47687-DB WA No. 4185 of 2013

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1.3.1974, the admitted registered mortgage being of 1960s. A contra contention as to the absence of vinculum juris of tenancy in respect of the land between the mortgagee and the 4^th respondent cannot be countenanced.

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Admittedly, father of the appellants have filed redemption suit in O.S.No.44/1985 wherein, the 4^th respondent got impleaded as the additional defendant and resisted the suit. The said suit came to be decreed and mortgage was ordered to be released only to the extent of 2 acres of land, leaving the petition land apart in favour of this respondent. The challenge to this decree in R.A.No.69/2003 came to be negatived on 28.02.2006. There being no further challenge, the appellants have lost their right of redemption because of this decree. Now, they cannot maintain another suit for redeeming the mortgage of this land because of res judicata.

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NC: 2024:KHC:47687-DB WA No. 4185 of 2013

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In the above circumstances, this appeal being devoid of merits, is liable to be & accordingly dismissed, costs having been made easy.

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The jurisdictional Tahasildar shall grant the certificate in Form 10 and effect mutation of entries in favour of 4^th respondent on the production of a copy of this judgment, (if already that has not been done) and report compliance to the Registrar General of this Court within sixty days.

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Sd/(KRISHNA S DIXIT) JUDGE

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Sd/(RAMACHANDRA D. HUDDAR) JUDGE

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cbc

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List No.: 1 Sl No.: 4

Sri Gundappa v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri Gundappa v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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