U. T. VENKATA RAO v. PAKEERA PATALI — 1996 DIGILAW 640 (KAR)

CHIDANANDA ULLAL, J. ( 1 ) THE petitioner had originally filed an appeal before the Land reforms Appellate Authority, Puttur in No. L. R. A. A. 144 of 1989. The same was transferred to this Court upon a civil petition filed in No. 515 of 1991 subsequent to the abolition of the above said Appellate Authority and therefore the said appeal is now in the form of writ petition before this Court. The impleading application was also filed by the wife and daughter of respondent 1 before this Court while an application to amend form No. 7 was filed by respondent 1 while the appeal was pending on the file of the Land Reforms Appellate Authority. ( 2 ) I heard the learned Counsel, Sri G. B. Shastry, appearing for the petitioner, the learned Counsel, Sri B. L. Acharya, appearing for respondent 1, the learned High Court Government pleader, Sri S. S. Guttal, appearing for respondents-2 and 3 and the learned Counsel, Smt. Vasudha for Sri G. S. Visweshwara for impleading applicants. I have also perused the records. ( 3 ) THE brief facts of the case are as follows: That respondent 1 had filed Form No. 7 in two instalments, firstly on 21-5-1976 claiming occupancy right in respect of 50 cents (portion) in S. No. 25/1-B and 20 cents (portion) in S. No. 25/2 of Ubradka Mithoor village and further in respect of what is called Bane land in the northern side of the said survey number (under his enjoyment) and again on 24-7-1976 claiming occupancy right in respect of 2 acres 35 cents in S. No. 26/3 in ubradka Mithoor village of Sullya Taluk. At the first instance by order dated 29-7-1981, respondent 2, land Tribunal, had granted occupancy right to respondent 1 in respect of 1 acre 30 cents in S. No. 26/3-A, 39 cents in S. No. 25/1-B, 4 cents in S. No. 25/2-B and 8 cents in S. No. 287/2, But the same was challenged by the petitioner herein in earlier writ petition in Writ Petition No. 17384 of 1981 and this Court while allowing the said writ petition on 21-2-1983 quashed the impugned order and further directed the Land Tribunal to hold fresh enquiry and pass considered order thereon in consonance with law. Thereafter the Tribunal held the second round of tenancy proceedings after issuing notices to the parties and passed the impugned order dated 11-11-1988, whereby the Tribunal had granted 39 cents in S. No. 25/1-B, 4 cents in S. No. 25/2-B, 8 cents in S. No. 287/2 and 2 acres 35 cents in S. No. 26/3 and the said order is now under challenge before this Court. When the appeal of the petitioner was pending before the appellate Authority, respondent 1 filed an application in I. A. II to amend Form No. 7 to include 8 cents of land in S. No. 287/2. Upon the transfer of the appeal to this Court with the abolition of the Appellate Authority, the wife, Smt. Doomalu and the daughter, K. S. Saraswathi of respondent 1 had also resorted to an I. A. I in the writ petition before this Court to implead themselves as respondents in the instant writ petition on the ground that they are the necessary parties to the writ petition. ( 4 ) THE learned Counsel for the petitioner had addressed his argument at the first instance on the amendment application filed by respondent 1 to amend his Form No. 7. In that regard he had argued that if the prayer of respondent 1 in the amendment application were to be allowed by this Court, the same would tantamount to expand the claim of respondent 1 and as such he submitted that the same is impermissible in law and that the said I. A. is therefore liable to be rejected. In support of his argument he had also cited the following decisions: (i) R. Krishnaswamy Rao v Lakshmaiah Setty and others; (ii) W. P. No. 2940 of 1977, DD: 25-11-1982 (unreported decision); (iii) W. P. No. 4449 of 1977, DD: 12-11-1982 (unreported decision ). ( 5 ) ON merits of the case, the learned Counsel for the petitioner had argued that the petitioner had not opposed for grant of occupancy right in respect of 39 cents in S. No. 25/1-B and 4 cents in S. No. 25/2-B by the Tribunal and therefore he did not challenge the grant of occupancy right by the Tribunal in respect of the said two survey numbers but his challenge is limited to grant of occupancy right in respect of 8 cents in S. No. 287/2 and 2 acres 35 guntas in S. No. 26/3. His objection is that there was no claim in Form No. 7 filed by respondent 1 for grant of occupancy right in respect of 8 cents of land in S. No. 287/2. As such he submitted that there was no foundation for the claim by respondent 1 in respect of that survey number before the tribunal. That being the position, according to him, the question of grant of occupancy right by the Tribunal thereto did not arise at all. Therefore, he submitted that it was totally wrong to grant of occupancy right by the Tribunal. Further he pointed out that the Tribunal did not get jurisdiction to grant that item of survey number. In support of his argument, he had cited before me the following two decisions of this Court; (i) Basappa v Land Tribunal, Bagalkot and Others and (ii) Bakilana Chinnappa v Land Tribunal, Mercara taluk and Others. ( 6 ) WITH regard to the grant of occupancy right in respect of S. No. 26/3 by the Tribunal, the learned Counsel for the petitioner argued that respondent 1 was never leased with the said land by the petitioner at any point of time, that i. e. , the respondent was never in possession and enjoyment of the same, that the respondent 1 had not produced proof thereof that he was cultivating the said piece of land. ( 7 ) THEREFORE, he submitted that the grant of occupancy right to respondent 1 by the Tribunal in respect of 8 cents in S. No. 287/2 and 2 acres 35 guntas in S. No. 26/3 was not justified and therefore he prayed that the impugned order be quashed in respect of the said two items of land. ( 8 ) THE learned Counsel for respondent 1 while supporting the grant of occupancy right by the Tribunal in respect of four items of land more fully setout in the impugned order, argued that the same was based on the survey report prepared by the surveyor of the Land Tribunal and the survey was done in pursuance of form No. 7 filed by respondent 1 on two occasions. He submitted that the name of respondent 1 was found along with the name of one Mundappa as chalageni tenants in respect of 2 acres 35 guntas in S. No. 26/3 and that the name of respondent 1 was also entered in the cultivation register thereto as observed by the tribunal in the impugned order and as such, he further argued that it cannot be said that the grant of occupancy right by the tribunal in respect of the above two items of land for which the petitioner objected to was not without any basis. He therefore prayed that the impugned order be confirmed by dismissing the writ petition, ( 9 ) BEFORE dealing with the merit of the case, I feel it appropriate to deal with LA. II filed by respondent 1 before the appellate Authority for amendment of Form No. 7 and further i. A. I filed in the writ petition before this Court by the impleading applicants, the wife and the daughter of respondent 1. ( 10 ) THE respondent 1 herein had filed two Forms No. 7, one on 21-5-1976 and another on 24-7-1976. In the first Form No. 7 filed on 21-5-1976, respondent 1 claimed occupancy right in respect of 50 cents in S. No. 25/1-B and 20 cents in S. No. 25/2 of ubradka Mithoor village. In first Form No. 7 without giving any survey number, respondent 1 had also added therein that in addition to the above he had also claimed adjacent bane land that was situated on the eastern side and that the same was in his possession. He had set out the claim in the said Form No. 7 as follows: ( 11 ) IN addition to the above in page No. 2 of the said Form No. 7, he had also remarked that he was not sure of the extent and survey numbers and he therefore further requested the Tribunal to look into the same. It has to be added here that the respondent 1 appears to be stark illiterate person and not wordly-wise and further that he was not knowing either to read or write. In the records, I have seen him affixing his L. T. M. , all through. It has to be added here that the respondent 1 appears to be stark illiterate person and not wordly-wise and further that he was not knowing either to read or write. In the records, I have seen him affixing his L. T. M. , all through. In page 2 of the said Form No. 7 filed on 21-5-1976, he had added by way of remarks as follows: ( 12 ) ON perusal of the records of the Tribunal, I observed that it had conducted the survey by deputing its Surveyor in the month of May, 1979 and they found the respondent 1 in possession of the following lands: survey Numbers ( 13 ) THE learned Counsel for the petitioner argued that there was no basis for the grant of occupancy right in respect of 8 cents in S. No. 287/2; but on perusal of the records, it does not appear to me to be so, for the respondent 1 in his Form No. 7 filed on 21-5-1976 had not restricted the claim only for 50 cents in S. No. 25/1-B and 20 cents in S. No. 25/2, because as culled out and quoted as above in para 10 supra he had stated therein in page 1 of Form No. 7 that in addition to S. No. 50 cents in S. No. 25/1-B and 20 cents in S. No. 25/2 he had also claimed adjacent bane land in the eastern side. This clearly appears to be a third item that respondent 1 claimed but without mentioning the survey number thereto, the reason probably that he was not aware of the particulars of the extent and the survey number. The respondent 1 had claimed the said extent of land too stating in para 2 of Form No. 7 that he was not sure about the particulars furnished by him and therefore he prayed that the Tribunal to look into the same. The respondent 1 had claimed the said extent of land too stating in para 2 of Form No. 7 that he was not sure about the particulars furnished by him and therefore he prayed that the Tribunal to look into the same. ( 14 ) ON careful perusal of the records of the Tribunal, it does not appear to me that the petitioner herein was not aware of the claim by the respondent 1 in respect of 8 cents of land in S. No. 287/2, for the petitioner as well as the respondent 1 had entered into the trial before the Tribunal (after writ petition had remanded in the year 1983) with full knowledge that 8 cents in s. No. 287/2 was also part of claim by the respondent 1. As a matter of fact, I find the inclusion of the said survey number in the notice dated 6-4-1984 issued by the Land Tribunal and served on the petitioner on 18-4-1984 and also on the other side on 17-4-1984 before commencing the second round of the proceedings. The said notices were issued to the parties for the second round of proceedings fixed to be held on 21-4-1984. In the said notice served on the petitioner on 18-4-1984 the above extent of 8 cents of land in S. No. 287/2 was also included along with other items setout therein. ( 15 ) APART from the above, in the prayer of the objection statement dated 23-8-1988 filed by the petitioner before the tribunal, he had prayed that the declaration filed by the applicants (respondent 1) in respect of S. No. 36/3 (22 cents), s. No. 26/3 (2 acres 35 cents) and S. No. 287/2 (8 cents) be rejected. The prayer in the objection statement dated 23-8-1988 filed by the petitioner before the Tribunal reads as follows: ( 16 ) FURTHER more, respondent 1 had not only put forth his claim in respect of the said extent of 8 cents in S. No. 287/2 besides the other survey numbers, the petitioner had also admitted in his evidence the possession of the said extent of land wherein the house, cow-shed and hay-shed (to put in the words of the petitioner "mane", "hatti" and "kottige") were situated. ( 17 ) FROM all the above, it appears to me that the parties entered in to trial before the Tribunal in the matter of the claim of respondent 1 was with the clear understanding that the claim was in respect of the land in S. Nos. 25/1-B, 25/2-A, 26/3 and 287/2. That being the position, in my view it is not open for the petitioner to contend now before this Court that there was neither claim nor the basis for the grant of occupancy right in respect of the said extent of land of 8 cents in S. No. 287/2 and that LA. II for amendment filed by respondent 1 before the tribunal tantamounts to expand his original claim and therefore the same is liable to be rejected by this Court. ( 18 ) IN view of my above observation that there was the claim of respondent 1 in respect of 8 cents in S. No. 287/2 LA. I for amendment filed by respondent 1 before the Appellate Authority and now for consideration before this Court is ordered to be filed as the same is redundant and unnecessary. ( 19 ) NOW I turn to the application filed by the impleading applicants i. e. , the wife, Doomalu, and the daughter, Sri K. S. Saraswathi. The said LA. I is filed by them on the ground that respondent 1 is loosing the interest in the family and that they are cultivating the subject lands. That the interest in the property cannot be safeguarded by respondent 1 himself and further that they have got right in the subject lands. By a simple reading of the impleading application, I am convinced to hold that there is no substance in the said application and that the same does not deserve for any consideration by this Court, for the lis in the matter of grant of occupancy is between the petitioner on the one side and respondent 1 on the other. That being the position, I have got no hesitation to reject the said impleading application and accordingly the same is hereby rejected. ( 20 ) I now proposed to deal with the merit of the case, particularly with regard to the objected items. That being the position, I have got no hesitation to reject the said impleading application and accordingly the same is hereby rejected. ( 20 ) I now proposed to deal with the merit of the case, particularly with regard to the objected items. The first grievance of the petitioner is with regard to the grant of occupancy right by the Tribunal in respect of 8 cents in S. No. 287/2, and secondly, with regard to the grant of occupancy right in respect of 2 acres 35 cents in S. No. 26/3. ( 21 ) WITH regard to the claim of respondent 1 in respect of 8 cents of land in S. No. 287/2 is concerned, the learned Counsel for the petitioner had argued that there was no claim put forth by respondent 1 before the Tribunal and that wihtout there being any claim, it was illegal and without jurisdiction on the part of the Tribunal to grant of occupancy right in the said extent of land. He had also cited before me two decisions of this Court in support of his argument. But while dealing with the amendment application filed respondent 1 before the Tribunal, I have observed that the grant of occupancy right was based on the claim made by respondent 1 in Form No. 7 filed at the first instance on 21-5-1976. Here I wish to refer to the evidence of respondent 1 and the petitioner recorded by the Tribunal with regard to the said item of 8 cents of land. It is clear that respondent 1 had asserted in his evidence that he has got his house, cow-shed and hay-shed in the said part of 8 cents of land in S. No. 287/2 and that the same was in his occupation. The petitioner had also admitted in his evidence before the Tribunal that respondent 1 was in possession of the said piece of land wherein he was having his house, cow-shed and hay-shed. That being the admission by the petitioner thereto, I do not find any error on part of the Tribunal for grant of occupancy right in respect of the said extent of 8 cents of land in S. No. 287/2 and I am therefore to confirm the grant of occupancy right by the tribunal in passing the impugned order. That being the admission by the petitioner thereto, I do not find any error on part of the Tribunal for grant of occupancy right in respect of the said extent of 8 cents of land in S. No. 287/2 and I am therefore to confirm the grant of occupancy right by the tribunal in passing the impugned order. ( 22 ) HOWEVER, with regard to grant of occupancy right in respect of 2 acres 35 guntas in S. No. 26/3, my considered view is that there is no justification on the part of the Tribunal for grant of occupancy right in respect of the entire extent of 2 acres 35 guntas in S. No. 26/3, for the survey report of the Tribunal had shown that respondent 1 was in possession of an extent of 1 acre 30 cents in said survey number. Further more the Land Tribunal in the impugned order, it had also observed that in respect of the said extent of land the chalageni tenants were the respondent 1 and another by name Mundappa and that in the cultivator's column the name of respondent 1 had also been shown. Hence, my considered view is that the grant of occupancy right to an extent of 1 acre 5 cents (2 acres 35 guntas minus 1 acre 30 cents shown to be in possession of respondent 1 as per the survey report) in the said survey number in the name and favour of respondent 1 by the Tribunal in passing the impugned order is not justified, and therefore, the impugned order is liable to be quashed to that extent. ( 23 ) IN the result, the impugned order dated 11-11-1988 in lry. 404/577/75-76 passed by the respondent 2, Land Tribunal, sullia, D. K. District, in so far as the same related to the grant of occupancy right in respect of 1 acre 5 cents in S. No. 26/3, is quashed, the matter is remanded to the said Land Tribunal with a direction to pass an appropriate order restricting the grant of respondent 1 to an extent of 1 acre 30 cents only in S. No. 26/3 of ubradka Mittoor village, if necessary by demarking the same by its bifurcated survey number as per the survey report borne on its record. ( 24 ) LET the Tribunal pass such an order after issuing notices to the parties. ( 24 ) LET the Tribunal pass such an order after issuing notices to the parties. The writ petition is accordingly allowed in part. Rule made thereto absolute. In view of the above order, office is directed to return the original records of the Tribunal now on the case file of this Court to the Land Tribunal, Sullia, D. K District at the earliest together with copy of this order. --- *** --- .