Research › Browse › Judgment

Karnataka High Court · body

1996 DIGILAW 247 (KAR)

KALLAPPA BABU NAIK v. STATE OF KARNATAKA

1996-04-17

M.M.MIRDHE

body1996
M. M. MIRDHE, J. ( 1 ) THE W. P. No. 6069 of 1993 is preferred by the petitioners against the order of the land tribunal, chikodi, granting occupancy rights in favour of respondents 3, 4 and 5 in survey nos. 183 / 1, 234 / 1, 232 / 2, 226 / 1 and 209 / 1-a. The W. P. No. 6399 of 1993 is preferred by the petitioners praying to quash the order passed by the land tribunal, athani, granting occupancy rights to respondents 3, 4 and 5 in survey nos. 15/4 and 15/7. The two land tribunals have passed two separate orders in this regard as the lands are situated in the respective jurisdiction of two land tribunals. But the question of fact and law involved in both these petitions are common. ( 2 ) THE concerned parties filed form No. 7 in different land tribunals as the lands are situated within the jurisdiction of the two different land tribunals. Since the contentions of the parties in both these cases are common, I have heard these writ petitions together and I am passing a common order in them. ( 3 ) IT is not disputed in this case that one lagma had six sons and one daughter. Mahalinga, the father of respondents 3 to 5, was the sixth son of that lagma. The fifth son was one babu who was the grandfather of the petitioners. The son of babu was kallappa. ( 4 ) PARA 4 of writ petition in W. P. No. 6069 of 1993 is relevant to be considered at this stage. The averments are as follows : "smt. Gangawwa and her husband basappa had no issues and therefore, they together adopted mahalinga prior to 1945. However, after the death of basappa the name of mahalinga who was the father of respondents 3 to 5 came to be entered in the revenue records as cultivators". So from these averments, it is an admitted fact that mahalinga was the adopted son of his sister gangawwa and her husband basappa and from the averments in para 4 also, it can be safely inferred that prior to mahalinga, the name of basappa was appearing in the record of rights as cultivator. So from these averments, it is an admitted fact that mahalinga was the adopted son of his sister gangawwa and her husband basappa and from the averments in para 4 also, it can be safely inferred that prior to mahalinga, the name of basappa was appearing in the record of rights as cultivator. The tribunal after perusing the relevant records in this regard, has recorded a find- ing of fact that the name of basappa was entered as a protected tenant in the 'other rights column' and his name was also shown as a cultivator in the 'cultivators column'. It is also the finding of the tribunal that the name of mahalinga was entered in place of basappa's name as a protected tenant and as the cultivator. It is not disputed by the petitioners themselves that their names did not appear in the record of rights either as tenants or as cultivators at any time. But the records of rights, right from 1951, go to show that the name of mahalinga was appearing as a protected tenant and also as the person cultivating the land in the 'other rights column' and 'cultivators column' in the record of rights pertaining to these lands. The learned counsel for the petitioners submitted that though the entries were there in the name of mahalinga, those entries were not conclusive and they were rebuttable and the tribunal, if it were to find other material for rebutting those presumptions, was not debarred from raising an inference contrary to those presumptions arising from those entries. The law in this regard is under Section 133 of the Karnataka land revenue Act, a presumption arises on the basis of the entries in the record of rights, but those presumptions are not conclusive, but they are rebuttable presumptions which can be rebutted by a party by leading acceptable evidence to rebut those presumptions. The learned counsel also relied on some rulings of this court in this regard. But the question is whether the presumptions that arose from these entries have been rebutted by the petitioners by leading any cogent or acceptable evidence before the tribunal. The answer is in the negative because the petitioners have not been able to place any such material before the tribunal on the basis of which it can be held that the presumption arising from these entries stood rebutted. The answer is in the negative because the petitioners have not been able to place any such material before the tribunal on the basis of which it can be held that the presumption arising from these entries stood rebutted. ( 5 ) IT is significant to note that lagma had six sons but only the heirs of one of the sons, namely babu, have come forward claiming occupancy rights in these lands. They could not claim occupancy rights in the lands wherein basappa was the tenant of the land because, those tenancy rights of basappa did not form a joint family property of lagma and his sons. Perhaps being aware of this weakness in their case, they have made out a case that mahalinga and babu were jointly cultivating the lands in question as tenants. The averments in this regard in para 4 in w. P. No. 6069 of 1993 are as follows : "smt. Gangawwa and her husband basappa had no issues and therefore they together adopted mahalinga prior to 1945. However, after the death of basappa the name of mahalinga who was the father of respondents 3 to 5 came to be entered in the revenue records as cultivators. But nevertheless, mahalinga and babu naik who were the full brothers were jointly cultivating the lands in question as tenants". So the burden was on the petitioner to show that their grandfather babu was cultivating the lands jointly along with mahalinga as tenants. But there is no such evidence placed by the petitioners before the tribunal to prove their case of joint cultivation by babu and mahalinga as tenants. Mahalinga, the father of petitioners filed form No. 7 on 10-7-1974 whereas kallappa, the father of the petitioners filed form No. 7 on 31-1-1979. The matter came once to this court on the writ petition preferred by the petitioners and the order in favour of the respondents was set aside and the matter was remanded for fresh enquiry. Even after the matter was remanded for fresh enquiry, no such material is placed by the petitioners to show that their grandfather was cultivating this land along with mahalinga as tenants. Even after the matter was remanded for fresh enquiry, no such material is placed by the petitioners to show that their grandfather was cultivating this land along with mahalinga as tenants. The question of petitioners claimant tenancy rights of basappa is out of question because basappa was not the member of the joint family of lagma and his tenancy rights could not be the joint family property of lagma's family or the members of that family. The petitioners have failed miserably to prove that their grandfather was cultivating that land along with mahalinga. ( 6 ) ON the other hand, the respondents 3 to 4 have produced the records as follows, namely : (a) the r. t. c. records which go to show the name of mahalinga as the tenant in cultivation of these lands right from 1951 up to the date of enquiry; (b) the rent receipts issued by the landlord in favour of mahalinga; (c) the notice issued by the landlord under Section 31 (1) of the act and that notice is addressed to mahalinga. ( 7 ) IN view of these documents and the oral evidence led in the case, the tribunal was justified in coming to the conclusion that it was mahalinga who was the tenant of these lands and not babu, the grandfather of the petitioners. ( 8 ) THE learned counsel for the petitioners submitted that the petitioners had claimed 1/4 th share in the schedule lands in W. P. No. 6069 of 1993, but that does not seem to be a correct submission because the respondents 3 to 5 had claimed 1/4th share each in these lands. In fact, they should have claimed 1/3 rd share each as there are three sons of mahalinga. Mahalinga was the tenant of these lands and as the sons of mahalinga, they will be jointly entitled to the tenancy rights in these lands. ( 9 ) ANOTHER contention raised by the learned counsel for the petitioners is that the respondents 3 to 5 had claimed only half share in the lands mentioned in the schedule of w. p. No. 6399 of 1993 and no boundaries have been specified in the order of the land tribunal and therefore, the order of the tribunal is void. The non-mentioning of the boundaries of the lands granted to respondents 3 to 5 would have assumed importance if there were to be any dispute between the landlord and the tenant. But that is not the case in this writ petition. The other half portion of the land is granted to other tenants and the other tenants have no grievance against the order of the land tribunal for not specifying the boundaries between the portion of the land granted to them. Therefore, this contention of the learned counsel for the petitioner is also devoid of any merit. ( 10 ) REVIEWED the matter from any angle, I do not find any ground to interfere with the order of the land tribunal. Hence, I proceed to pass the following order : the writ petitions are dismissed. --- *** --- .