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1988 DIGILAW 19 (KAR)

CHIKKABOREGOWDA v. NANJE GOWDA

1988-01-18

M.P.CHANDRAKANTARAJ

body1988
M. P. CHANDRAKANTHARAJ URS, J. ( 1 ) THIS Revision Petition under Section 121-A of the Karnataka Land Reforms Act is directed against the order dated 9-10-1987 of the Appellate Authority, Mandya, constituted under the Karnataka Land reforms Act (hereinafter referred to as the Act ). ( 2 ) RESPONDENT Nanjegowda was the appellant before the Appellate Authority. Originally, he was the applicant under section 48 of the Act seeking occupancy rights in respect of the garden land bearing S. No. 382, in Kirangur village, mandya District. Before the Land Tribunal, he claimed that he had been cultivating the land for more than 15 years prior to the application and was a tenant under one Puttaswamy gowda (since deceased) and that he was living on the land and there were about 29 coconut trees and he planted 11 more trees after he had become the tenant. He also stated before the Land Tribunal that he was paying 600 coconuts as rent, and that he was obtaining proper receipts for payment of rent in the form of coconuts from late Puttaswamy gowda and that his hut accidentally caught fire and was burnt out. Therefore, he was not able to produce the receipts in support of his cultivation of the land. ( 3 ) THE landlord Puttaswamygowda, who was then alive placed reliance upon the entries in the record of rights, crop and tenancy register which showed that he was in occupation and cultivation of the land in question for the years 1960- 1961, 1967-68 and 1968-69 to 1975-76. He also gave a statement before the Tribunal that he was personally cultivating the land and that at no time was the applicant-first respondent inducted into the land as a tenant. ( 4 ) THE Tribunal relying upon the presumptive value of the entries of the r. T. C. extract rejected the application for occupancy rights made by the first respondent-tenant. Aggrieved by the same, the respondent-tenant preferred in this court Writ Petition No. 7297/1982. The petition was transferred to the Appellate authority, consequent upon the amendment 10 the Land Reforms Act in 1986. In the result, the Appellate Authority was seized of the matter and came to pass the order now challenged by the petitioners in this Revision Petition. ( 5 ) THE bare facts narrated by themselves are not in dispute. The petition was transferred to the Appellate authority, consequent upon the amendment 10 the Land Reforms Act in 1986. In the result, the Appellate Authority was seized of the matter and came to pass the order now challenged by the petitioners in this Revision Petition. ( 5 ) THE bare facts narrated by themselves are not in dispute. In this Court, what has been urged is that the Appellate authority has committed a serious mistake in relying upon the oral evidence adduced by the respondent-appellant before the Tribunal as well as the Appellate authority and hold that the RTC extracts for the relevant years did not reflect tiue state of affairs. ( 6 ) MR. M. S. Gopal, learned Counsel for the petitioners who are none other than the L. Rs. of late Puttaswamy gowda, strenuously contended that this court exercising its revisional jurisdiction under Section 121-A may re-assess the evidence and come to a different conclusion if it serves the ends of justice. He has placed reliance on an earlier decision of this Court and Supreme Court to which i will make a reference in the course of this order. ( 7 ) IT is not a question of appreciating or re-appreciating the evidence on record on the point in issue. The question is the ambit of power this Court has while exercising the revisional jurisdiction. There cannot be any doubt that there is no strict limitation on this Court in exercise of its power to interfere with the orders of the subordinate authority or its power to interfere with the subordinate authority. ( 8 ) IN more than one case it has been held that the distinction between the Appellate power and Revisional power must at all times be maintained. While appellate power includes Revisional power, it cannot be said that Revisional power includes Appellate power. ( 9 ) BEFORE dealing with the cases cited it is necessary to summarise the evidence on which the Appellate Authority has come to its conclusion. The discussion is to be found in paragraphs 24 to 32 of the Appellate Authority's order. One Vaikuntegowda, gave evidence in support to the case of respondent-tenant. He stated that there were about 20 coconut trees in the land in question, which was about 28 guntas or 3/4ths of an acre approximately in extent. The discussion is to be found in paragraphs 24 to 32 of the Appellate Authority's order. One Vaikuntegowda, gave evidence in support to the case of respondent-tenant. He stated that there were about 20 coconut trees in the land in question, which was about 28 guntas or 3/4ths of an acre approximately in extent. He also stated that 5 or 6 coconut trees were planted by the appellant-tenant. He stated that the hut in which the appellant was living was burnt down in 1975. He also stated that on account of the problems created by the monkeys, the landlord gave away the garden on lease to the appellant-tenant. The appellant- tenant was giving 600 coconuts to the landlord and the landlord was giving receipts for the same on plain paper. Because the appellant filed his application under the Act he was taken to the Police station at the instance of the landlord. He also stated in his cross-examination that he and the appellant-tenant had financial transactions. But he asserted on oath that the appellant-tenant was the tenant on the land in question. This evidence of Vaikuntegowda was supported by the oral evidence of two other witnesses namely ; one Narasimhaiah and chikkamoganna As against that evidence for the tenant, the petitioner adduced oral as well as documentary evidence. The documentary evidence was the RTC extracts for the years already indicated. The oral evidence was that of one Sidde gowda and another Subbegowda. These witnesses for the petitioner stated that the appellant-tenant was an agricultural labourer for about 10 or 12 years in the village and that he had constructed a house on the land belonging to the village Panchayat and living in the village and that he had constructed a house on the land belonging to the Village Panchayat and living in the village. That the land, the subject matter of the dispute was actually cultivated by the landlord only and that the landlord was raising jowar crop. They also said that to the west of the land, they had their own land. They asserted that the complaint of the tenant was false. They also said that they were growing in their land sugarcane and paddy. They corroborated the evidence adduced by the tenant that on the land in question there were coconut trees numbering 30 to 40. They also said that to the west of the land, they had their own land. They asserted that the complaint of the tenant was false. They also said that they were growing in their land sugarcane and paddy. They corroborated the evidence adduced by the tenant that on the land in question there were coconut trees numbering 30 to 40. They however, asserted that no crop could be grown on the land if 40 coconut plants are planted even if it is less than an acre. ( 10 ) IN appreciating the evidence, the Appellate Authority, in paragraph 31, probablised the veracity of the versions put forward by the parties. They came to the conclusion that as per the records, it was evident that the tenant's hut did catch fire and was burnt out and therefore, it was probable that his rent receipts were burnt in such a fire as stated by him. They found, that there was evidence of his having obtained licence from the village Panchayat to construct the house after the fire and that he was given aid by the Assistant Commissioner by way of compensation for the loss of his hut in the accidental fire. In that circumstance, they accepted the evidence of the witnesses as it corroborated the version given by the appellant and discarded the evidence of the landlord on the ground that there was apparent contradiction inasmuch as the witnesses asserted that jowar crop was raised in the land in question while the RTC extracts did not show it in the relevant column provided in the relevant years as the extracts indicated only the existence of coconut trees. In that circumstance, they rejected the pahani extracts as not reflecting the true state of affairs and therefore, not worthy of credence as conslusive evidence. ( 11 ) LEARNED Counsel Sri M. S. Gopal's argument that presumptive value in favour of the entries in the record of rights cannot be so easily discarded on the oral testimony of the appellant-tenant who was interested in himself as well as his witnesses and therefore the oral testi' mony could not be held to be sufficient to overcome the presumptive value of the entries. ( 12 ) HE relied upon the decision of the Supreme Court in the case of Sri bhimeshwara Swami Varu Temple v. Pedapudi Krishna Murthi and Others (AIR 1973 SC page 1299 ). ( 12 ) HE relied upon the decision of the Supreme Court in the case of Sri bhimeshwara Swami Varu Temple v. Pedapudi Krishna Murthi and Others (AIR 1973 SC page 1299 ). To demonstrate the presumptive value, in the said case, where Sections 114 and 32 of the Evidence Act, came up for consideration, chandrachud, J. as he then was, ruled that the presumption arising from several entries in the revenue records of large number of years in respect of ownership and possession of land with certain person does not stand rebutted by mere stray entries in favour of others when the evidence is of uncertain character and is inadequate. To my mind, it does not lay down anywhere that courts or any other authority vested with judicial or quasi- judicial powers may not accept oral evidence as sufficient proof of rebuttal of a presumption. What has happened in this case is the Appellate Authority, for the reasons given by it, which are clear in paragraphs 31 and 32 of its order has come to the conclusion that the oral evidence of the tenant and his witnesses should be believed as against the presumptive value of the RTC extracts taking the totality of the circumstances pleaded by the parties in the dispute. Appellate authority has taken into account that on the relevant date, namely, 1-3-1974, the land in question was tenanted. That was the conclusion reached. By operation of law, tenanted land vested in the State as on 1-3-1974. The occupant therefore was entitled for registration. For that reason, they reversed the finding recorded by the Tribunal and conferred occupancy rights. The question is whether this court should once again re-assess such evidence and come to a different conclusion, while exercising powers under section 121-A of the Act. ( 13 ) SECTION 121-A of the Act reads as follows: "the High Court may at any time call for the records of any order or proceeding recorded by the Appellate Authority under the Act or any other law for the purpose of satisfying itself as to the legality of such order or as to the regularity of such proceeding and may pass such order with respect thereto as it thinks fit; provided that no such order shall be made except after giving the person affected a reasonable opportunity of being heard. " in order to appreciate the judicial authorities cited in this connection, it will be useful to extract the provision relating to the Appellate Powers conferred on the appellate Authority and other agencies mentioned under the Act. Section 121 deals with appeals and is as follows:" (1) The Appellate Authority or the karnataka Appellate Tribunal or the assistant Commissioner in appeal may confirm, modify or resc;nd the order in appeal or its execution or may pass such other order as may seem legal and just in accordance with the provisions of this Act. (2) The orders of the Appellate authority or of the Karnataka Appellate tribunal in appeal shall be executed in the same manner provided for the execution of orders under Section 116. " therefore, the power conferred on the Appellate Authority is very wide, it includes the power to modify rescind or confirer the order of the Land Tribunal, but does not include the power of remand. That exception to the appellate power generally exercised under the Code of Civil Procedure makes the legislative intent that the orders of the Appellate authority is meant to be final subject only to revision by High Court. ( 14 ) RELIANCE was placed by Sri m S. Gopal learned Counsel for the appellant, on the decision of this Court in the case of Dattaram v. K Gururaja Bhat (1971 (2) Mysore Law Journal Page 402 ). In that case. Section 50 of the Karnataka rent Control Act which confers Revisional jurisdiction on the High Court fell for consideration. It may beconceeded that the language employed in confering revisional jurisdiction on this Court both under the Karnataka Rent Control Act and the Act are almost identical. In Dattaram's case, when it was argued for the respondent that this Court in Revision should not act as a Court of Second Appeal and re-assess the evidence it was repelled by this Court, following the dictum of the supreme Court in two cases referred to in Dattaram. The relevant passage reads as follows : as the revisionary powers are posted in very wide terms it is not possible to accept the first contention. The relevant passage reads as follows : as the revisionary powers are posted in very wide terms it is not possible to accept the first contention. Referring to kamala Soni's case arising out of the rent Control Act, Justice Shah, as he then was, was quoted in the following terms :"whether on the facts proved, the requirement of the landlord is bona fide within the meaning of Section 14 (1) (e), is a finding on a mixed question of law and fact An inference that the requirement of the appellant in the present case was bona fide could not be regarded as conclusive. "therefore, this Court concluded that In view of those authoritative pronouncements it was abundantly clear that the revisional powers of the Court were not so much circumscribed or restricted as suggested, when the High Court in exercise of the revisional jurisdiction was of the opinion that the material evidence on record was ignored or a finding was such that, no Court could come to such conclusion or the decision was manifestly unjust this Court could interfere. I have supplied the emphasis to bring out the qualification or the restriction self evident in the revisional jurisdiction. ( 15 ) ANOTHER decision relied upon by sri M S. Gopal, deals with Section 121-A of the Act itself. A learned Judge of this conrt held that normally, the revisional court would be bound by the findings of lower Appellate Court but if the finding recorded by the trial Court or the first appellate Court was not supported by the evidence on record and if the evidence relied upon by the lower Appellate Court for arriving at such a conclusion was grossly misread and if there was no evidence to support the conclusion, this court in order to find out the legality of the order had still got the power to re- appreciate the evidence. (emphasis supplied) ( 16 ) IN fact, it is unnecessary to dispute the correctness of the law explained by the two learned Judges of this Court. But the question that has to be answered is whether the ruling has any application to the facts of the present case. (emphasis supplied) ( 16 ) IN fact, it is unnecessary to dispute the correctness of the law explained by the two learned Judges of this Court. But the question that has to be answered is whether the ruling has any application to the facts of the present case. ( 17 ) AN identical provision similar to the one under consideration and similar to one under the Karnataka Rent Control act fell for consideration-in the case of sri Raja Lakshmi Dyeing Works and others v. Rangaswamy Chettiar (1980 supreme Court Page 1253 ). Section 23 of the Tamil Nadu Buildings (Lease and rent Control) Act 18 of 1960, was the section considered by the Supreme Court. Before dealing with the Section, the supreme Court pointed out the distinction between appeal and revision. While laying down the propostion that the extent of revisional jurisdiction has to be considered in each case on the language employed the Court ruled as follows :-"section 23 of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960, enables any person aggrieved by an order passed by the Controller to prefer an appeal to the appellate authority having jurisdiction. Section 23 provides that the High Court may on the application of any person aggrieved by an order of the appellate authority, call for and examine the record of appellate Authority, to satisfy itself as to the regularity of such proceeding or the correctness, legality or propriety of any decision or order passed therein and if, in any case it appears to the high Court that any case it appears to the High Court that any such decision or order should be modified, anulled, reversed or remitted for reconsideration it may pass orders accordingly'. The language of Section 25 is indeed very wide. But we must attach some significance to the circumstance that both the expressions 'appeal' and 'revision' are employed in the statute. Quite obviously, the expression 'revision' is meant to convey the idea of a much narrower jurisdiction than that conveyed by the expression 'appeal'. In fact it has to be noticed that under section 25 the High Court calls for and examines the record of the appellate authority in order to satisfy itself. Quite obviously, the expression 'revision' is meant to convey the idea of a much narrower jurisdiction than that conveyed by the expression 'appeal'. In fact it has to be noticed that under section 25 the High Court calls for and examines the record of the appellate authority in order to satisfy itself. The dominant idea conveyed by the incorporation of the words to satisfy 'itself under Section 25 appears to be that the power conferred on the High Court under Section 25 is essentially a power of superintendence. Therefore, despite the wide language employed in Section 25 the High Court quite obviously should not interfere with the findings of tact merely because it does not agree with the finding of the subordinate authority. The power conferred on the high Court under Sec. 25 of the Tamil nadu Buildings (Lease and Rent Control) Act may not be as narrow as the revisional power of the High Court under Section 115 of the Code of Civil procedure but in the words of Untwalla, j. in Dattopant Gopalva Rao v. Vithal- rao Maruti Rao, ( 1975 (2) SCC 246 ) : ( AIR 1975 SC 1111 ) "it is not wide enough to make the High Court a second Court of first appeal". "therefore, the contention of Sri M. S. Gopal, that the language of Section 121 -A of the Act being different from the language used in Section 115 C P. C. , has no real relevance as long as some of the conditions are not satisfied, such as finding recorded ignoring, the material evidence or a decision which is manifestly unjust. The evidence on record if misread does amount to error of jurisdiction and therefore liable for revision. Errors of jurisdiction do not necessarily mean one of pecuniary jurisdiction or territorial jurisdiction. Failure to exercise the power to correct an error is also an error of jurisdiction just as ignoring the evidence on record or reaching manifestly unjust conclusion without any material on record does constitute error of jurisdiction. Denial of opportunity to be heard is also therefore an error of jurisdiction. ( 18 ) IN that view of the matter, it is not open at this late stage for any one to contend that there is no difference between the revisional jurisdiction or appellate jurisdiction. Denial of opportunity to be heard is also therefore an error of jurisdiction. ( 18 ) IN that view of the matter, it is not open at this late stage for any one to contend that there is no difference between the revisional jurisdiction or appellate jurisdiction. Considering the more recent decision of the Supreme Court and the ratio decidendi therein must be followed. ( 19 ) ON the facts of this case, nothing is made out to prove that the order is unjust. The object of the Land Reforms act is to confer occupancy rights on the cultivator of the land or on those who are lawfully cultivating it, and therefore, deemed to be tenants. The Appellate authority was constituted so that it may more extensively go into the matter in dispute on questions of law and facts than this Court exercising jurisdiction under Article 226 of the Constitution. It was with that in view the 1986 Amendment Act was brought about. Therefore, while considering the Appellate Powers exercised by the Appellate Authority, this court must only look for the jurisdictio- nal errors pointed out and not interfere with the order acting the second court of first Appeal. If this Court is satisfied that the Appellate Authority has discharged its function without any error of law or procedure, merely because on the same evidence it is possible to draw another inference is no ground to interfere with the order under Revision. ( 20 ) THEREFORE, this Revision Petition is rejected. Revision petition rejected. --- *** --- .