VISWANATHAIAH v. STATE OF KARNATAKA — 1996 DIGILAW 328 (KAR)

M. P. CHINNAPPA, J. ( 1 ) BEING aggrieved by the order dated 1-1-1988 passed in l. R. A. A. R. A. No. 398 of 1986 on the file of the Land Reforms appellate Authority, Hassan District, dismissing the appeal and confirming the order passed by the Land Tribunal, channarayapatna, in Land Reforms Appeal No. 256 of 1979-80, dated 6-3-1986, the petitioner preferred this petition. ( 2 ) THE brief facts of the case are that the land bearing Survey No. 59 measuring 1. 06 guntas situated at Mallasetty Rally village has been in possession of his family right from his grand father's time. His grand father was a tenant in respect of the said land and the tenancy rights are inherited by the appellant. The said land was endowed to Basaveswara Devaru, the respondent 3 herein. His grand father was offering poojas as an archak and after his death the father of the petitioner became the archak. Subsequently, the petitioner has been the archak and he has been offering poojas on all auspicious days and in connection with the procession of the deity, etc. He has also been offering poojas to the chariot during the jatra time. The petitioner consequent upon the vesting of the inam lands in the state of Karnataka submitted an application to the Special deputy Commissioner for Inams' Abolition, Hassan District for registration of occupancy rights in respect of the said land as per the application dated 2-6-1981. Consequent upon the amalgamation of the Karnataka Land Reforms Act, the appellant presented an application for registration of occupancy rights in Form No. VII before the 2nd respondent as per application dated 28-6-1979. It is further the case of the petitioner that the respondents have nothing to do with the land in question. However, he also submitted an application for registration of occupancy rights. The Land Tribunal (2nd respondent) rejected the application of the-appellant and allowed the application of Ningappa the 4th respondent herein, as per the order dated 28-9-1981 passed by the 2nd respondent. That order was questioned by the petitioner in Writ Petition No. 2296 of 1982 on the file of this Court which came to be allowed remitting the matter back to the 2nd respondent to hold another enquiry as required under Rule 17 of the Karnataka Land reforms Rule and to dispose of the application according to law. That order was questioned by the petitioner in Writ Petition No. 2296 of 1982 on the file of this Court which came to be allowed remitting the matter back to the 2nd respondent to hold another enquiry as required under Rule 17 of the Karnataka Land reforms Rule and to dispose of the application according to law. ( 3 ) IT is contended that the 2nd respondent without following the direction of this Court, rejected the application of the petitioner and confirmed the order of the Special Deputy commissioner of Inams' Abolition granting occupancy rights in respect of the land in question in favour of the 4th respondent. The petitioner once again approached the High Court in Writ petition No. 8449 of 1986 (LR) and the said writ petition was allowed transferring the case to the 6th respondent for disposal according to law, in view of the constitution of the Appellate tribunal. The Appellate Tribunal dismissed the appeal on 1-1-1988. The said order is questioned in this revision petition. ( 4 ) HEARD the learned Counsel for the petitioner and the learned Advocates for the respondents. ( 5 ) THE learned Advocate for the petitioner has vehemently argued that the Appellate Authority has not considered all the evidence produced by the petitioner. Even if the petitioner was not entitled to be granted occupancy right under the Karnataka (Religious and Charitable) Inams' Abolition Act, he was entitled for occupancy rights under Section 48-A of the Karnataka Land reforms Act. He also submitted that the petitioner was a deemed tenant and he was in lawful possession of the property and he continued to be in possession as on this day. Therefore, the petitioner was entitled to be declared as a tenant. ( 6 ) PER contra, the learned 4th respondent submitted that both the petitioner and the respondent filed application under Form no. 1 of the Karnataka (Religious and Charitable) Inams' abolition Act. The authority after considering the application granted occupancy right in favour of the 4th respondent. Thus the property has been vested with the 4th respondent in view of the provision contained under the said Act. No property was available subsequent to 1-7-1970 to be given to the petitioner under the Karnataka Land Reforms Act. He also contended that when once the property is vested it cannot be devested. Thus the property has been vested with the 4th respondent in view of the provision contained under the said Act. No property was available subsequent to 1-7-1970 to be given to the petitioner under the Karnataka Land Reforms Act. He also contended that when once the property is vested it cannot be devested. Therefore, the petitioner was not entitled to be declared as a tenant under the Karnataka Land Reforms Act. In view of this argument, it is now necessary to find out as to whether the impugned order is liable to be set aside. ( 7 ) AFTER the Writ Petition No. 2296 of 1982 came to be allowed and the matter was remitted back, the 2nd respondent held another enquiry as required under Rule 17 of the Karnataka land Reforms Rules and disposed of the matter holding that channappa father of the 4th respondent is entitled to the land. Consequently, the application filed in Form No. 7 of the Land reforms Act by the petitioner came to be rejected. Even prior to that, the Special Deputy Commissioner of Inams' Abolition also held that the father of 4th respondent was entitled to the land. The Appellate Authority also after considering all the evidence let in by both the parties came to the conclusion that it is only the 4th respondent who is entitled for the same. From this it is clear that the Appellate Authority has considered all the contentions of the petitioner and held that he is not entitled to be granted occupancy rights under the Land Reforms Act. ( 8 ) THE witnesses of the petitioner have stated that the petitioner was cultivating the property for 10 or 15 years but the pahani registers clearly disclosed the name of the deceased channappa up to 1972-73. That entry falsifies the oral evidence let in by the petitioner. Besides that, all the witnesses of the 4th respondent have categorically stated that the father of the respondent was cultivating the property and after his death the 4th respondent was cultivating the same, being the archak of the temple. ( 9 ) THE learned Counsel for the petitioner submitted that under mahazar drawn by the villagers only Survey Nos. 28, 33 and 36 which are the temple properties were given to the respondent's father and Survey No. 59 was not included in that mahazar. ( 9 ) THE learned Counsel for the petitioner submitted that under mahazar drawn by the villagers only Survey Nos. 28, 33 and 36 which are the temple properties were given to the respondent's father and Survey No. 59 was not included in that mahazar. Therefore, it has to be inferred that Survey No. 59 has been in possession of the petitioner's father. This contention cannot be accepted in view of the fact that if the property was given to the petitioner's father, his name ought to have been entered in the pahani. But as stated earlier, all these entries up to the year 1973-74 were in the name of the respondent's father. Obviously it is clear that the petitioner has not produced any materials to show that the villagers had given this property to him. In addition to that, the contention of the petitioner that he was working as archak of the temple also was not established. However, the pahani entry clearly discloses only the name of the respondent till 1973. Under these circumstances, the contention of the petitioner that he was cultivating the property for more than 20 years cannot be accepted. ( 10 ) HOWEVER, the learned Counsel for the petitioner furtherargued that the pahani entry discloses that the petitioner continues to be in possession of the property from 1973. That possession is a lawful possession. Therefore, he is entitled to be declared as a tenant under the Karnataka Land Reforms Act. Admittedly, the petitioner has not filed any application in Form no. 1 prescribed under the Mysore (Religious and Charitable) inams' Abolition Act, 1955 and Rules framed therein. On the other hand, he filed the application belatedly under the karnataka Land Reforms Act. Therefore, she contended that the karnataka Land Reforms Act prescribed that those who are cultivating the property as on 1-3-1974 are entitled to be declared as tenants, and therefore, the petitioner is entitled to be declared and given occupancy rights. In support of that argument, she placed reliance on a decision in the case of muniyallappa v B. M. Krishnamurthy and Others, wherein their lordships have held:"it may be stated that the purpose and scope of the two acts are distinct. In support of that argument, she placed reliance on a decision in the case of muniyallappa v B. M. Krishnamurthy and Others, wherein their lordships have held:"it may be stated that the purpose and scope of the two acts are distinct. The Inams' Abolition Act was enacted for the purpose of abolition of Inam tenures and conversion of such tenures into ryotwari tenure and in that process grant of occupancy rights to the Inamdars and the three classes of tenants specified in that Act. The purpose of the land Reforms Act, however, is quite different. The main purpose was to abolish the relationship of landlord and tenant in respect of tenanted lands and to confer occupancy rights on tenants who are personally cultivating the lands. Therefore, the rejection of the claim of the appellant under the Inams' Abolition Act does not lead to the inference that he has no claim for occupancy right under the Land reforms Act. The appellant claims that he is a deemed tenant as provided under Section 4 of the Land Reforms act. The requirement of deemed tenant, as provided under section 4 of the Tenancy Act, must be determined by the land Tribunal. The High Court having come to the conclusion that the procedure adopted by the Land tribunal was not in accordance with the rules of natural justice ought to have remitted the matter to the Tribunal for fresh disposal". This decision does not in any way help the petitioner. There were two rival claimants as stated above. Both the Tribunal and also the Appellate Authority have categorically held that respondent's father was cultivating the property as archak and after his death, the respondent 4 was in possession of the same being the archak of the property. It is not a case where only one person is claiming occupancy rights over the property and if it is denied under the Inams' Abolition Act, it can be considered under the Karnataka Land Reforms Act. But as rightly submitted by the learned Counsel for the respondent, the land was vested with the Government as soon as the Inams' Abolition Act had come into force and as on 1-7-1970 whoever was in possession of the property was deemed to be entitled for occupation. The Tribunal as well as the Appellate Authority have held that as on that date only the respondent was in possession of the property. The Tribunal as well as the Appellate Authority have held that as on that date only the respondent was in possession of the property. Therefore, having recognised that possession and the right vested over the property, the authorities have conferred occupancy right over the property, in favour of the respondent. ( 11 ) THE learned Counsel for the petitioner further argued that the petitioner is a deemed tenant as he continued to be in possession of the property subsequent to 1973 and in support of it, the copy of the pahani extracts are produced. It is no doubt true that pahani extracts from 1973-74 onwards, are registered in the name of the petitioner. By that time, the dispute was pending before the Tribunal and thereafter, before the Appellate authority. It is ununderstandable as to how the pahani could be registered in the name of the petitioner. The local inspection conducted by the Village Accountant also discloses that only the respondent was in possession of the property. It is also signed by some of the villagers. That clearly shows that in actual fact, the respondent was in possession of the property even on subsequent dates. That mahazar was drawn on 19-8-1981 but the petitioner claims to be in possession from 1973-74. Even to claim the deemed tenancy, the possession must be lawful as per Section 4 of the Land Reforms Act which reads:"a person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such persons is not, (a) a member of the owner's family, or (b) a servant or a hired labourer on wages payable in cash or kind but not in crop share cultivating the land under the personal supervision of the owner or any member of owner's family, or (c) a mortgagee in possession: provided that if upon an application made by the owner within one year from the appointed day, (i) the Tribunal declares that such person is not a tenant and its decision is not reversed on appeal, or (ii) the Tribunal refuses to make such declaration but its decision is reversed on appeal. Such person shall not be deemed to be a tenant". As stated earlier, the dispute was pending before the Tribunal and also the Appellate Authority. Such person shall not be deemed to be a tenant". As stated earlier, the dispute was pending before the Tribunal and also the Appellate Authority. Even if the petitioner had taken possession of the property, it is an illegal possession. Therefore, he cannot be termed as being in lawful possession of the property. Besides that, the respondent has vaguely stated that for one year he cultivated the property, as the villagers asked him to cultivate the property. This will have to be locked into in the background of the vesting of the property under the inams' Abolition Act. Admittedly, this property belongs to basaveswara temple of Marishettyhalli and after coming into force of this Act, the property vested with the Government and only the person who is cultivating the property as on 1-7-1970 was to file declaration in Form No. 1 as provided under the Act and Rules. That form was filed only by the respondent and not by the petitioner. As on 1-7-1974 as per the evidence let in by the parties, it is very clear that the property was in possession of the respondent. When he was in possession of the property, his possession was protected by virtue of Section 3 of the Inams' Abolition Act. Under those circumstances, the villagers had no right whatsoever to dispossess the respondent and deliver possession to the petitioner even if it is accepted to be true. The entries found in the pahani for the year 1973-74 onwards cannot be relied upon, because when these entries were made, the matter was pending before the Tribunal and also the Appellate authority. Besides that, the mahazar drawn by the Village Accountant on 19-8-1981 also discloses that the property was in possession of the respondent. Therefore, the presumption available under Section 133 of the Karnataka Land Reforms Act is not available to the petitioner and it is fully rebutted by the evidence and circumstances appearing in the case. ( 12 ) IN this case right was vested in favour of the petitioner under the Inams' Abolition Act, being in possession of the property as the archak of the temple. That being the case, it is for the petitioner to establish that he is in lawful possession of the property to avail the benefits under the Karnataka Land reforms Act. That being the case, it is for the petitioner to establish that he is in lawful possession of the property to avail the benefits under the Karnataka Land reforms Act. No evidence is let in to establish this fact or the evidence led is insufficient to hold that the petitioner continued to be in possession of the property for the reasons stated above. Therefore, he cannot be termed as a deemed tenant. Under those circumstances, the principles in the decision in the case of ramachandra Shenoy and Another v Mrs, Hilda Brite and others , cannot be made applicable to the facts of this case. ( 13 ) THE learned Counsel for the petitioner further placed reliance on a decision in the case of Chikkaboregowda and others v Nanje Gowda and Another. According to this decision, this Court while discussing the ambit of power of the High Court while exercising its revisional jurisdiction under Section 121-A held that If finding recorded by Courts below not supported by evidence on record and if evidence relied upon by lower appellate Court for its conclusion is grossly misread and if there was no evidence to support such conclusion, the High Court in order to find out the legality of the order can reappreciate the evidence. Further, it is held, notwithstanding the language used under Sections 115, C. P. C. and 121-A of the Karnataka Land reforms Act being different, the error of jurisdiction does not necessarily mean one of pecuniary jurisdiction or territorial jurisdiction. The High Court can exercise its jurisdiction under section 121-A where there is failure to exercise of the power to correct an error also is 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. Even the evidence if misread and denial of opportunity to be heard is also an error of jurisdiction. The High court must only look for jurisdictional errors pointed out and not interfere with the order acting as a second Court of appeal. If the high Court is satisfied that the Appellate Authority has discharged its function without an 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. If the high Court is satisfied that the Appellate Authority has discharged its function without an 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. ( 14 ) FROM the above discussion, it is apparently clear that the petitioner has failed to make out that there is a jurisdictional error and that the Appellate Authority failed and ignored the evidence on record and reached a manifestly unjust conclusion. Even on reappraisal of evidence also, as pointed out above, the impugned order does not call for interference. ( 15 ) FOR the foregoing reasons, I hold that viewed from any angle, this revision petition has no merit and the same is liable to be dismissed. Accordingly, it is dismissed. --- *** --- .