Allowed

Smt Sundari W/O Late Krishnappa v. the State of Karnataka

Karnataka HC19 Sept 2024WP/26512/2005

Case brief

AI extract

What is this about?

Petitioners challenged the Land Tribunal's order granting occupancy rights to a son who filed Form No.7 against his father over ancestral land already divided by a registered partition deed. Holding no landlord-tenant relationship was established, the High Court quashed the Tribunal's order.

What did the court decide?

Impugned Land Tribunal order dated 4.8.2005 conferring occupancy rights on respondent No.3 quashed; writ petition allowed.

Smt Sundari W/O Late Krishnappa Vs the State of… — Landlord and Tenant | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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W.P. NO.26512 OF 2005 (LR)

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BETWEEN:

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1 . SMT. SUNDARI W/O LATE KRISHNAPPA AGED 65 YEARS

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2 . SHRI. A.K. KARUNAKARA S/O LATE KRISHNAPPA AGED 48 YEARS

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3 . SHRI. A.K. DAMODARA S/O LATE KRISHNAPPA AGED 50 YEARS

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4 . SMT. A. SHASHIKALA W/O H.R. JAYARAM D/O LATE KRISHNAPPA AGED 45 YEARS

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PETITIONERS NO. 1 TO 4 ARE R/O HALIYURU, VANAGUR POST SAKALESHAPURA TALUK HASSAN DISTRICT.

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5 . SHRI. A.K. VASANTH S/O LATE KRISHNAPPA AGED 43 YEARS R/O NO 33/1 6TH CROSS

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SRIRAMAPURAM BANGALORE-560 021.

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....PETITIONERS

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(BY SRI. B.M. IRISHAD AHMED, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY DEPARTMENT OF REVENUE M.S. BUILDING, AMBEDKAR ROAD BANGALORE-560 001.

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THE CHAIRMAN LAND TRIBUNAL REP. BY IT CHAIRMAN SULLIA, D.K. DISTRICT.

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SRI. MANJAPPA POOJARY S/O BHATYA POOJARY [DELETED V/O DATED 18.10.2016]

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LINGAPPA POOJARY S/O MANJAPPA POOJARY SHOWN AS TENANT IN FORM NO.7 SINCE DEAD BY HIS LRs BY HIS SON SHRI. JAYAPRAKASH S/O LINGAPPA POOJARI AND GENERAL POWER OF ATTORNEY HOLDER OF SHRI. LINGAPPA POOJARI AGED ABOUT 39 YEARS R/O MARULYA VILLAGE, SULLYA TALUK D.K. DISTRICT.

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3(A) SMT. BALAKKA W/O LATE LINGAPPA POOJARY AGED ABOUT 85 YEARS

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MADHAPU HOUSE, MARULLYA POST SULYA TALUK, D.K. DISTRICT.

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3(B) SMT. SHASHIKALA W/O LATE ISWARA POOJARY D/O LATE LINGAPPA POOJARY AGED ABOUT 50 YEARS NEKKARE HOUSE, GALITHA MAJALI KALLADAKA, BANTWALA TALUK D.K. DISTRICT.

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3(C) SHRI. JAYAPRAKASH .M S/O LATE LINGAPPA POOJARY AGED ABOUT 53 YEARS MADHAPU HOUSE, MARULLYA POST SULYA TALUK, D.K. DISTRICT.

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3(D) SMT. SULOCHANA W/O SHRI. JANARDHANA D/O LATE LINGAPPA POOJARY AGED ABOUT 40 YEARS ISWARAMANYALA VILLAGE AND POST PUTTUR TALUK, D.K. DISTRICT.

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3(E) SMT. SHASHI PRABHA W/O SHRI. JAGANNATH D/O LATE LINGAPPA POOJARY AGED ABOUT 40 YEARS MATHRADI HOUSE AND VILLAGE KONTARA POST, PUTTUR VILLAGE D.K. DISTRICT

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[CAUSE TITLE AMENDED V/O DATED 07.12.2022]

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….RESPONDENTS

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(BY SRI. K.P. YOGANNA, AGA FOR R1 AND R2; SRI. A. KESHAVA BHAT, ADVOCATE FOR R3(A); SRI. VISHWANATHA POOJARY .K, ADVOCATE FOR R3(C TO E);

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V/O DATED 17.11.2022 NOTICE IS HELD SUFFICIENT IN R/O R3(B))

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THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER BY R2 / LAND TRIBUNAL SULLYA DT. 04.08.2005 VIDE ANNEXURE-H AND ETC.

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THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 02.09.2024, THIS DAY ORDER WAS PRONOUNCED THEREIN, AS UNDER:

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CORAM: HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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C.A.V. ORDER

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The petitioners are assailing the impugned order

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dated 4.8.2005 passed by respondent No.2 vide Annexure-H thereby conferring occupancy rights on respondent No.3/Lingappa Poojary.

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The family tree of the parties is as under:

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BHATYA POOJARI

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|_ | | | HONNAMMA MANJAPPA POOJARI POVAPPA POOJARI _|__________________________ | | | | | | SUNDHARI NARAYANA RAMAIAH DEVAPPA | (P1) | | LINGAPPA (TENANT) (R3) |_____________________________________________________ | | | | KARUNAKAREA DAMODHARA SHASHIKALA VASANTHA (P2) (P3) (P4) (P5)

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First petitioner contends that she along with late Manjappa Poojary, Poovappa Poojary, Narayana Poojary, Ramaiah Poojary, Devappa Poojary constituted one family. Petitioner claims that petitioners belong to Billaya community and they are governed by Aliyasanthana. Petitioners assert that the petition lands are the ancestral properties and there was a partition in the family vide registered partition deed dated 30.4.1970. First petitioner was allotted half share in the said partition and accordingly, she is entitled for 5/10^th share.

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Petitioners assert that Manjappa Poojary,

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who is the father of respondent No.3, who is asserting tenancy rights in the ancestral properties, was cultivating the lands on behalf of the family. Petitioners contend that post registered partition deed there was oral partition and Manjappa Poojari had

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agreed to give the first petitioner and other parties 2 Mudi, 8 seru rice.

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Since, Manjappa Poojary stopped to give

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the agreed crop share under the oral partition, first petitioner along with her children was compelled to file a partition suit in O.S.No.164/1975. The said suit is decreed. Manjappa Poojary inspite of preliminary decree drawn by the Court declined to grant share and mischievously got Form No.7 filed by his son Lingappa Poojary and respondent No.2/Land Tribunal conferred occupancy rights on Lingappa Poojary. Petitioners challenged the said order and the matter was remitted

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to respondent No.2/Land Tribunal. After remand, respondent No.2/Land Tribunal without affording opportunity to the petitioners' herein again conferred occupancy rights vide order dated 13.11.1987. This Court again set aside the order in W.P.No.29353/1996 and the matter was remitted back. The Land Tribunal

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vide impugned order dated 4.8.2005 vide Annexure-H has again conferred occupancy rights, which is questioned by the petitioners in this writ petition.

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Learned counsel reiterating the grounds has vehemently argued and contended that respondent No.3/Lingappa Poojary could not have maintained Form No.7 against his father. He would contend that there was no landlord and tenant relationship between Manjappa Poojary and applicant Lingappa Poojary. Referring to registered partition deed dated 30.4.1970, it is contended that respondent No.3/applicant was very much aware of the registered partition deed and therefore, respondent No.3 could not have maintained Form No.7.

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Referring to the stand taken by the

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respondents in partition suit, he would contend that Manjappa Poojary suffered a decree in

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O.S.No.164/1975 and the same has attained finality. He would further contend that Lingappa Poojary being a member of the joint family cannot maintain Form No.7 against his own family members. Referring to the material on record, he would contend that Manjappa Poojary and Lingappa Poojary were residing under one roof and therefore, the present Form No.7 is not at all maintainable and respondent No.2/Land Tribunal has not at all examined these material documents and therefore, the order conferring occupancy rights is palpably erroneous and warrants interference. He has placed reliance on the judgment of this Court in the case of Smt. A. Jalajakshi D. Alwa .vs. Meenaxi Naik and others [W.P.No.1086/1980 DD. 11.3.1980] to contend that family members cannot set up a tenancy in respect of ancestral properties.

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Per contra, learned counsel appearing for respondent No.3 referring to the pleadings at Para 1 of the writ petition would contend that petitioners have admitted in unequivocal terms that Manjappa Poojary had agreed under oral partition to give 2 Mudi 8 seru rice and therefore, he would contend that tenancy is admitted by the petitioners in unequivocal terms and therefore, the order of the Land Tribunal does not warrant any interference.

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He has further contended that petitioner No.1 and her children are residing at Sakaleshpur and in view of severance in the family, respondent No.3 can maintain Form No.7 and seek occupancy rights. He would further contend that Lingappa Poojary was not a party to the partition deed and therefore, the contention of the learned counsel for the petitioners is factually incorrect. To buttress his arguments, he has placed reliance on the judgment rendered by the

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Hon'ble Apex Court in the case of Rukhamanbai .vs. Shivaram and others¹ . Citing the said judgment, it is submitted that person inducted as lessee by a limited owner there is a deemed tenancy within the meaning of Section 4.

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Heard the learned counsel for the respective parties and the learned AGA. Perused the records.

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The evidence of respondent No.3's son is crucial to decide the lis between the parties. The relevant portion is extracted which reads as under:

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"£À£Àß vÀAzÉ °AUÀ¥Àà ¥ÀÆeÁjAiÀÄªÀgÀ CAzÀgÉ £À£Àß vÁvÀ£À ºÉ¸ÀgÀÄ ªÀÄAd¥Àà ¥ÀÆeÁj. ªÀÄAd¥Àà ¥ÀÆeÁjAiÀÄªÀjUÉ MlÄÖ 9 d£À ªÀÄPÀÌ¼ÀÄ. £À£Àß vÁvÀ ªÀÄAd¥Àà ¥ÀÆeÁj, £ÁgÁAiÀÄt ¥ÀÆeÁj, gÁªÀÄAiÀÄå ¥ÀÆeÁj, zÉÃªÀ¥Àà ¥ÀÆeÁj, ªÀÄvÀÄÛ JzÀÄgÀÄªÁ¢ ¸ÀÄAzÀj EªÀgÉ®ègÀÆ PÀÆqÁ MAzÉÃ vÀªÀjUÉ ¸ÉÃjzÀªÀgÀÄ, ¢£ÁAPÀ 30-4-1970 gÀ°è ªÀÄAd¥Àà ¥ÀÆeÁj ªÀÄvÀÄÛ EvÀgÀgÀ ªÀÄzsÉå MlÄÖ PÀÄlÄA§zÀ°è £ÉÆÃAzÁ¬ÄvÀ «¨sÁUÀ¥ÀvÀæªÁVvÀÄÛ. D «¨sÁUÀ

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1 AIR 1981 SC 1881

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¥ÀvÀæzÀ°è zÁªÁ d«ÄÃ£ÀÄ ¸ÉÃjzÀªÀÅ. D «¨sÁUÀ ¥ÀvÀæzÀ°è ªÉÄÃ¯É ºÉ¸Àj¹zÀ ªÀÄAd¥Àà ¥ÀÆeÁj, £ÁgÁAiÀÄt ¥ÀÆeÁj, gÁªÀÄAiÀÄå ¥ÀÆeÁj, zÉÃªÀ¥Àà ¥ÀÆeÁj ªÀÄvÀÄÛ JzÀÄgÀÄªÁ¢ ¸ÀÄAzÀj JªÀgÉ®ègÀÆ ¥ÀPÀëUÁgÀgÁVzÀÝgÀÄ. F ªÉÄÃ¯É ºÉ¸Àj¹zÀªÀjUÉ MAzÉÃ PÀªÀ°£ÀªÀgÀÄ JA§ PÁgÀtPÉÌ zÁªÁd«Ä£ÀÄUÀ¼ÀÄ §A¢zÀÝgÉ JzÀÄgÀÄzÁjÛ ¸ÀÄAzÀjAiÀÄªÀgÀÄ F «¨sÁUÀ ¥ÀvÀæ DUÀÄªÀ ¸ÀªÀÄAiÀÄzÀ°è ¸ÀPÀ¯ÉÃ±À¥ÀÄgÀ vÁ®ÆèQ£À¯ÉèªÁ¸ÀªÁVzÀÝgÀÄ. ¥ÀÆªÀ¥Àà ¥ÀÆeÁj ªÀÄvÀÄÛ £ÁgÁAiÀÄt ¥ÀÆeÁjAiÀÄªÀgÀÄ PÀÆqÁ ¸ÀPÀ¯ÉÃ±À¥ÀÄgÀ vÁ®ÆèQ£À°è ªÁ¸ÀªÁVzÀÝgÀÄ. ¥ÀÆªÀ¥Àà ¥ÀÆeÁj ªÀÄvÀÄÛ £ÁgÁAiÀÄt ¥ÀÆeÁjAiÀÄªÀgÀÄ PÀÆqÁ ¸ÀPÀ¯ÉÃ±À¥ÀÄgÀ vÁ®ÆèQ£À°è ªÁ¸ÀªÁVzÀÝgÀÄ. gÁªÀÄAiÀÄå ¥ÀÆeÁj JqÀ ªÀÄAUÀ® UÁæªÀÄzÀ°è ªÁ¸ÀªÁVzÀÝgÀÄ. zÉÃªÀ¥Àà ¥ÀÆeÁgÀÄAiÀÄªÀgÀÄ JqÀªÀÄAUÀ® UÁæªÀÄzÀ PÉÆlÖgÉAiÀÄ°èzÀÝgÀÄ vÁvÁ ªÀÄAd¥Àà ¥ÀÆeÁgÀÄAiÀÄªÀgÀÄ zÁªÁ d«ÄÃ¤£À°è ªÁ¸ÀªÁVzÀÝgÀÄ."

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On reading the evidence of respondent No.3's son who is examined to establish the tenancy rights, what emerges is that respondent No.3, who has set up tenancy rights has admitted in unequivocal terms through his son that they are aware of the partition deed. Respondent No.3's contention that he was inducted as a tenant since April 1940 is factually

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incorrect and this statement runs contrary to the materials placed on record by the petitioners and respondents themselves.

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Learned counsel appearing for respondent No.3 has set up a oral partition which is post registered partition dated 30.4.1970.

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The respondents further relying on the averments made in the writ petition are banking heavily on the fact that Manjappa Poojary was cultivating the lands in question. If this factual matrix is admitted, then there cannot be any tenancy in favour of respondent No.3/Lingappa Poojary. Interestingly, Form No.7 is filed by son against his father Manjappa Poojary. Respondents admit that Manjappa Poojary was not the owner and there is no material to indicate that Manjappa Poojary inducted respondent No.3 as a tenant. As per the registered partition deed, Manjappa Poojary and other family members effected partition

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and first petitioner was allotted half share in the petition lands. Therefore, there is no material to substantiate that petitioners leased these petition lands to respondent No.3.

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The evidence given by the son of

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Respondent No.3, who was examined to establish tenancy rights, reveals that Respondent No.3 was aware of the registered partition deed dated 30.04.1970. The son’s testimony shows that Respondent No.3's claim of being inducted as a tenant in April 1940 is factually incorrect. This claim contradicts the material placed on record by both the petitioners and the respondents. Furthermore, the oral partition set up by Respondent No.3 is alleged to have occurred after the registered partition, which undermines its credibility.

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The respondents relied on the assertion that Manjappa Poojary was cultivating the land in question, but this argument fails to establish any tenancy rights in favour of Respondent No.3. Notably, Form No.7 was filed by the son of Manjappa Poojary against his father, further complicating the claim of tenancy. The respondents themselves admit that Manjappa Poojary was not the owner of the property, and there is no material evidence to suggest that he inducted Respondent No.3 as a tenant. The registered partition deed confirms that the petitioners, including Petitioner No.1, were allotted shares in the property, negating any claims of tenancy created by Manjappa Poojary.

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As per established law, unless there is concrete evidence showing that the land was leased by the landlord and the person claiming tenancy rights was lawfully inducted and cultivating the land on the

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appointed date, the land in question does not vest with the Government. In this case, Respondent No.3 has not presented any evidence to prove he was cultivating the land as a tenant. Moreover, if the cultivation was on behalf of the family under an oral partition, Respondent No.3 cannot be accepted as a tenant under his own father, Manjappa Poojary.

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17. Oral Evidence Before the Land

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Tribunal : The oral evidence provided by the son of Respondent No.3 before the Land Tribunal resolves the core dispute between the parties. Under the Aliysanthana Law, Manjappa Poojary could not have created a tenancy without the consent of Petitioner No.1. Moreover, Respondent No.3 has not claimed tenancy rights against Petitioner No.1, and Form No.7 was filed against his father, Manjappa. Given these facts, the Land Tribunal erred in granting occupancy rights.

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This case has undergone extensive litigation since 1975, with the present issue being the third round of legal contestation. The Land Tribunal's decision to grant occupancy rights to Respondent No.3 is fundamentally flawed and lacks a solid legal foundation. The Tribunal's order fails to provide adequate reasoning for its decision, which is essential for ensuring transparency and accountability in judicial decisions. Crucially, the Tribunal did not address whether Respondent No.3 was entitled to maintain Form No.7, which is a significant procedural requirement for establishing tenancy rights. This oversight indicates a procedural lapse and undermines the credibility of the Tribunal's decision.

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Moreover, the Tribunal ignored the fact that Petitioner No.1 was granted a half share in the property under both the registered partition deed and the preliminary decree passed in O.S.No.164/1975.

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This registered partition deed was a critical document that determined the division of the property and should have been considered to establish rightful ownership and tenancy claims. By not addressing this, the Tribunal's decision does not reflect a thorough examination of the relevant legal and factual issues.

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Remanding the matter for a fresh inquiry would not only be redundant but would also further exacerbate the parties' prolonged litigation. Given that the land in question has been consistently identified as non-tenanted, and no Form No.7 is pending against Petitioner No.1, further investigation would be futile. The respondents have admitted that Manjappa Poojary was cultivating the share of Petitioner No.1 based on an oral partition, further complicating the tenancy claim by Respondent No.3. This underscores the inherent flaws in the claim that Respondent No.3 is a tenant of the disputed land.

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The fundamental issue is that Form No.7 filed by Respondent No.3 is against his father, Manjappa Poojary, concerning ancestral property. This approach is legally and factually unsound because tenancy claims cannot be substantiated against a parent for property that is part of a registered partition and already allocated to others. Therefore, any attempt to remand the case would only prolong the legal dispute without addressing the core issues, ultimately aggravating the parties' difficulties. Given the procedural and substantive errors in the Land Tribunal’s decision, the appropriate course of action is to quash the erroneous order and resolve the matter based on the established legal facts.

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For the foregoing reasons, this Court

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proceeds to pass the following:

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ORDER

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(i) Writ petition is allowed.

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(ii) The impugned order dated 4.8.2005 passed by respondent No.2/Land Tribunal is hereby quashed.

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SD/(SACHIN SHANKAR MAGADUM) JUDGE

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*alb/-

Smt Sundari W/O Late Krishnappa v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Smt Sundari W/O Late Krishnappa v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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