KRISHNAPPA POOJARY v. N. V. RANGAPPAIAH — 1998 DIGILAW 684 (KAR)

CHIDANANDA ULLAL, J. ( 1 ) THIS is a tenant's revision petition filed as against the order dated 31-3-1990 passed in l. r. a. a. No. 125 of 1988 by the additional land reforms appellate authority, puttur, in passing whereof, the appellate authority while setting aside the order dated 27-5-1988 passed by the land tribunal, sullia, granting occupancy right to the petitioner, conferred the occupancy right in the name of the respondent 1. ( 2 ) I heard the learned counsel for the petitioner, Sri g. Balakrishna shastry, the learned counsel, Smt. S. n. sudha, appearing along with Sri g. s. vishweshwara for the respondent 1 and the learned additional government advocate, Sri s. Mahesh, appearing for the respondent 3, land tribunal, sullia. I have perused the case records together with the records of the land tribunal secured by the registry. ( 3 ) THE facts of the case relevant for our purpose have to be narrated i a brief, the same are as hereunder. that the respondent 1 had filed form No. 7 setting out 22 extents in different survey numbers. In the said form No. 7, in the remarks column, he had stated that items No. 1 to 12 were in his possession, whereas items No. 13 to 22 were under the occupation of the tenants. he had further stated therein that even at the time of taking the property on lease from the original landlord, Sri gopalakrishna bhat about 50 years ago, items No. 13 to 22 were under the occupation of the 'other tenants'. That application of the respondent 1 was filed on 26-8-1974. In the second page of form No. 7, it was also stated that the commissioner report was also accompanied the form No. 7. that, the petitioner herein had filed form No. 7 on 4-5-1977 setting out his claim in respect of two items of the land they are 50 cents in s. No. 217/1c and 80 cents in s. No. 217/2b of aivarnadu village, sullia taluk. that, the respondent 3, the land tribunal, commonly considered the claims of the petitioner on the one side and the respondent 1 on the other and granted occupancy right restricting the same to 76 cents in s. No. 217/2a. Having been aggrieved thereto, the respondent 1 had resorted to a writ petition before this court. that, the respondent 3, the land tribunal, commonly considered the claims of the petitioner on the one side and the respondent 1 on the other and granted occupancy right restricting the same to 76 cents in s. No. 217/2a. Having been aggrieved thereto, the respondent 1 had resorted to a writ petition before this court. That, this court while allow- ing the writ petition, remitted the matter to the land tribunal for fresh disposal with a direction that both the claims be clubbed together and the matter be disposed of by the land tribunal. That, this court in so remitting the matter had also given liberty to the land tribunal to depute a surveyor to survey the subject land, in dispute in the presence of the parties. that the land tribunal did depute a surveyor with due notice to the parties. When the petitioner had participated in the proceedings, the respondent 1 did not do so for the reason best known to him. I find the sketch with remarks of the surveyor dated 20-4-1998 at page 118 of the records of the land tribunal. I also find 'that with the report of the surveyor, the land tribunal held the proceedings on three different dates, they are 22-4-1988, 6-5-1988 and 20-5-1988. Finally, the land tribunal had granted the occupancy right to the petitioner herein in passing the impugned order. being aggrieved thereby, the respondent 1 had resorted to an appeal in l. r. a. a. No. 125 of 1988 before the additional land reforms appellate authority, puttur, to challenge. the grant of occupancy right to the petitioner. After hearing the parties, the appellate authority finally allowed the appeal of the respondent 1 in passing the considered order thereon on 31-3-1990. In "passing the same, the appellate authority while reversing the order of the grant of occupancy right to the petitioner, it had conferred the occupancy right in respect of the subject land to the respondent 1. The petitioner, tenant, being aggrieved thereto is before this court in filing the instant revision petition. ( 4 ) THE learned counsel for the revision petitioner, Sri shastry vehemently argued that the appellate authority had not appreciated the material evidence both oral and documentary and conferred the occupancy right in the name of the respondent 1. The petitioner, tenant, being aggrieved thereto is before this court in filing the instant revision petition. ( 4 ) THE learned counsel for the revision petitioner, Sri shastry vehemently argued that the appellate authority had not appreciated the material evidence both oral and documentary and conferred the occupancy right in the name of the respondent 1. While taking the impugned order under challenge in the revision petition, Sri shastry had also argued that the approach of the appellate authority was too technical and it is in fact that approach of the land tribunal had resulted in passing the wrong order. While referring the claim of the respondent 1 in form No. 7, Sri shastry had pointed out that in filing the said form No. 7, the respondent 1 had clearly stated that items No. 13 to 22 were under the occupation of the other tenants as on the date of the said application and further that even when the properties at si. Nos. 1 to 22 were taken on lease from one Sri gopalakrishna bhat, the said tenants were in occupation of the said items of land at si. Nos. 13 to 22. Therefore, according to Sri shastry, the respondent \ had rendered himself as non-suitor before the land tribunal insofar as the items of the lands at si. Nos. 13 to 22. It was also pointed out by him that the land tribunal had totally failed to observe that the entries in the levy register as well as in the pahani register right from the year 1968, the name of the petitioner was shown as a cultivator all through. According to Sri shastry, those documents were the clinching documents in favour of the petitioner and despite that the appellate authority had reversed the order of the land tribunal granting occupancy right to the petitioner. ( 5 ) AS i see yet another reason for rejection of the claim of the petitioner by the appellate authority was that there was no mention of the correct survey number in form No. 7 filed by the petitioner. With refer ence to the said reasoning of the appellate authority, Sri shastry submitted that it was the substance of the claim that mattered before the land tribunal and as such the non-mentioning of the survey number was of no consequence insofar as the claim of the petitioner before the land tribunal is concerned. With refer ence to the said reasoning of the appellate authority, Sri shastry submitted that it was the substance of the claim that mattered before the land tribunal and as such the non-mentioning of the survey number was of no consequence insofar as the claim of the petitioner before the land tribunal is concerned. To sustain that argument, Sri shastry has relied upon unreported decision of this court by a division bench in W. P. No. 20080 of 1991 (dd: 15-7-1993), w. a. No. 3232 of 1997 (dd: 28-7-1998) and further a reported decision in the case of chikkanna and others v hanumanthiah and others. ( 6 ) IN the first unreported decision relied upon by Sri shastry, it was held by the division bench that it was the duty of the land tribunal to find out the correct survey number in the matter of grant of occupancy light vis-a-vis the claim. In the second decision, it was observed by the di vision bench in para (5) thereof that it is well-known that in villages, particularly rural areas, illiterate people will only know the name of the land and measurements in local language and that the same can be compared to the oral evidence and other records and that it cannot be said that non-mentioning of the survey numbers and measurement in acreage is a fatal to the case put up in form No. 7. ( 7 ) IN the last decision reported in the case of chikkanna, supra, the division bench held as hereunder. " (A) Karnataka Land Reforms Act, 1961 (karnataka act No. 10 of 1962), Section 48-a (l) not in form 7 but in substance fulfilling requirements to be regarded as one in form No. 7. (a) though each of those documents, exhibits b, c and d might not have been strictly in form No. 7 prescribed under the Karnataka land reforms rules, 1974, they contained all the material particulars prescribed in form No. 7 and the necessary prayer. There is no reason why they should not be regarded as being, in substance, applications under sub-section (1) of section 48-a". ( 8 ) TO sum up his argument, Sri shastry prayed that the impugned order passed by the appellate authority be set aside in allowing the revision petition and further in restoring the order passed by the land tribunal passed earlier granting occupancy right to the petitioner. ( 8 ) TO sum up his argument, Sri shastry prayed that the impugned order passed by the appellate authority be set aside in allowing the revision petition and further in restoring the order passed by the land tribunal passed earlier granting occupancy right to the petitioner. ( 9 ) THE learned counsel for the contesting respondent 1, Smt. S. n. sudha argued that when the petitioner did not mention the survey number in form No. 7 filed by him, it had to be construed in law, that there was no claim at all and that in the absence of such a claim, the land tribunal did not get jurisdiction to grant the occupancy right to pass the impugned order that was challenged by the respondent 1 before the appellate authority. ( 10 ) TO counter the argument of Sri shastry that the respondent 1 had in fact not put forth the claim of grant of occupancy right in respect of si. nos. 13 to 22, Smt. Sudha argued that, if that was the case of the respondent 1 before the land tribunal, he would not have resorted to the filing of form No. 7 before the respondent 3, land tribunal, setting out the survey number at si. Nos. 13 to 22. While referring to the remarks column in the second page of form No. 7 filed by the respondent 1, Smt. Sudha also argued that in filing form No. 7, the respondent 1 had also filed the report of the commissioner setting out the land under his occupation as well as under the occupation of the tenants. To sustain that argument of her, she had also placed reliance on survey sketch that was found in page nos. 73, 74 and 75 in the record of the land tribunal. She had also demonstrated before me that the name of the petitioner herein was not at all mentioned in the said commissioner report (together with sketch), for as we see, the names occurred in the report were of Smt. Poovamma and Smt. Korapalu. When this court had expressed a genuine doubt as to whether this document has in any way to do with the proceedings in question, Smt. Sudha had pointed out that, the tenancy proceedings number is also very well set out on the right side top of the report. When this court had expressed a genuine doubt as to whether this document has in any way to do with the proceedings in question, Smt. Sudha had pointed out that, the tenancy proceedings number is also very well set out on the right side top of the report. ( 11 ) WHILE supporting the impugned order passed by the appellate authority in setting aside the order of grant of occupancy right to the petitioner and further conferring the occupancy right in the name of the respondent 1, Smt. Sudha argued that the same was based on the evidence on record of the land tribunal. Therefore, according to her, no interference of the impugned order is called for in the hands of this court. Incidentally, she also pointed out that the revisional jurisdiction exercisable by this court under Section 121-a of the Karnataka land reforms act is limited in scope and as such in the facts and circumstances of the case, according to her, it is not just and proper for this court to interfere with the impugned order passed by the appellate authority. Before concluding, she had submitted that, even if this court were to come to the conclusion that the subject land was tenanted land, in the given situation in the case in hand, the land had to vest in state and that at any stretch of imagination, the subject land could be conferred in the name and favour of the petitioner by way of grant of ocrupancy right. ( 12 ) I should not miss yet another point Smt. Sudha canvassed before me that non-examination of the surveyor who had surveyed the land, by the petitioner was fatal to his case. She said that in citing the decision of this court in the case of jermone r. Picardo v state of karnataka. The said decision was cited before me for the reason that before the land tribunal, the surveyor was not examined to entertain the report filed by him. She said that in citing the decision of this court in the case of jermone r. Picardo v state of karnataka. The said decision was cited before me for the reason that before the land tribunal, the surveyor was not examined to entertain the report filed by him. As i see, in the said reported case, it was held by this court that the land tribunal to reach a conclusion in the matter of grant of occupancy right, the report of the surveyor and the sketch demarcating the laud was to the limited extent of assistance to the land tribunal to fix up the identity of the land and further that the surveyor's report cannot be used as substantive piece of evidence to base a decision of the tribunal without he being examined before the land tribunal. ( 13 ) AT this stage, Smt. Sudha had also placed before me an unreported decision of this court in W. P. No. 2940 of 1977 (dd: 25-11-1982 ). in the said decision, the learned single judge of this court held that it was a duty of the surveyor to report as to who was in actual possession and cultivation and that it was the duty of the tribunal to record a finding in that behalf. In citing the same, it was also argued by her that, in the instant case in hand it is exactly that what the surveyor did and therefore according to her, the impugned order has to be upheld. ( 14 ) I have carefully considered the argument and counter argument advanced before me and so also the citations relied upon by the respective side. ( 15 ) ACCORDING to me, the case of the respondent 1 had failed in his own hand in filing form No. 7 before the land tribunal at the threshold if one carefully analyses form No. 7 filed by the respondent 1, it is clear therefrom that while setting out 22 survey numbers and the extents, the respondent 1 had clearly stated therein that though he was a term leaseholder in respect of the lands at si. Nos. 1 to 22, he was only in possession of the land at si. Nos. 1 to 12 and that the rest of the lands at si. Nos. 13 to 22 were in possession of the different tenants. Nos. 1 to 22, he was only in possession of the land at si. Nos. 1 to 12 and that the rest of the lands at si. Nos. 13 to 22 were in possession of the different tenants. The respondent 1 had further qualified the said portion by stating that the items No. 13 to 22 were also in occupation of different tenants even at the point of time when he had taken all the extents i. e. , items No. 1 to 22 on term lease from the original owner one Sri gopalakrishna bhat. It is therefore clear from form No. 7 filed by the respondent 1 that he was not in possession and was cultivating the land at si. Nos. 13 to 22 at any point of time. If the case of the respondent 1 in filing form No. 7 was to the effect that he was not cultivating the subject land even as on 1-3- 1974, the question of conferring the occupancy right to the respondent 1 did not arise at all. It is in that sense, i express my view that the case of the respondent 1 had failed at the very stage when he had filed form No. 7. To me it appears that in filing form No. 7 what the respondent 1 wanted the land tribunal to do was to grant occupancy right in respect of land in si. Nos. 1 to 12 and nothing beyond. ( 16 ) NOW i turn to the evidence on record of the land tribunal led in by the parties. As i see, the petitioner no doubt filed form No. 7 without setting out the survey number, but nevertheless, he had set out in substance his claim in form No. 7. In filing the same, he had set out two items of lands they are 50 cents in s. No. 217/1c and 80 cents in s. No. 217/2b. There is no dispute with regard to the cultivation of the subject land referable to the second item. In citing the said survey numbers, the petitioner had also stated that he was cultivating the said lands since 50 years as a tenant. By writing out certain remarks in the very form no. 7, he had also stated therein that he was cultivating 11/2 mura of bailu gadde' and 1 mura of majalu gadde. In citing the said survey numbers, the petitioner had also stated that he was cultivating the said lands since 50 years as a tenant. By writing out certain remarks in the very form no. 7, he had also stated therein that he was cultivating 11/2 mura of bailu gadde' and 1 mura of majalu gadde. It appears that the remark No. 1 is referable to the first item of land, whereas the second is referable to the second item of land he had claimed. According to Sri shastry, the claim of the petitioner in pith and substance was very well put forth in setting out the survey number as he had taken the same to be that survey number and that such a course was adopted by the petitioner as he happened to be not wordlywise, may be for social circumstance. I find there is sufficient force in the argument of Sri shastry in this regard. I see that by the manner in which the petitioner had affixed his signature in his form No. 7. By seeing the same it is not difficult for me to say that the petitioner might be a semi-illiterate or may be knowing only to affix his signature in a way he had affixed. Even otherwise, in my considered view, in filing form No. 7 setting out the survey numbers at 31. No. 2 and further the remarks as above, it was sufficient for him to put forth his claim. This court had consistently held that in the matter of claim of occupancy right, it is not necessary for a tenant to set out the survey number and it is the duty of the land tribunal to do that exercise. Sri shastry in this regard had also relied upon the unreported decision of the division bench of this court in w. a. No. 3231 of 1997 (dd: 23-6-1998 ). I have gone through the relevant para ir the said judgment. It appears to me that the facts of the case in hand and the facts of the case in the said unreported decision go in one direction and therefore it appears to me that the said decision equally binding me, is clear on the point. I have gone through the relevant para ir the said judgment. It appears to me that the facts of the case in hand and the facts of the case in the said unreported decision go in one direction and therefore it appears to me that the said decision equally binding me, is clear on the point. I have, therefore, got no hesitation to follow the same; even otherwise I was also having the similar view in the matter of claim by the illiterate and uneducated tenant particularly from the rural side. therefore, it appears to me that the petitioner in filing form No. 7 in the above way did put forth his claim in the matter of grant of occupancy right in respect of the subject land and that therefore it could be argued that there was no claim made by the petitioner and that the land tribunal did not get jurisdiction to pass the order to grant occupancy right to him as it was done by Smt. Sudha. ( 17 ) THE learned counsel for the respondent 1 had relied upon a decision of this court in jermone r. Picardo's case, supra, on the point that when the surveyor was appointed for identification of the land, he should be examined by giving an opportunity to the party, challenging his report. Though the principle laid down in the said decision cannot be questioned, it appears to me that the ratio in the said decision has got no application to the instant case in hand, the reason being that in the instant case in hand, the surveyor was appointed by the land tribunal on a direction by this court to identify the subject land, if necessary by deputing a surveyor by the land tribunal. It is interesting to note here that though the respondent 1 was served with notice with regard to conducting of the survey by the surveyor appointed by the land tribunal, he had not only not participated in the proceedings, besides the respondent 1 had not chosen to challenge the said report before the land tribunal in filing either object statement before the land tribunal or for that matter by raising oral objection before the land tribunal. that is what i observed while i perused the order sheet maintained by the land tribunal in the second round of the proceedings on remand of the matter in allowing W. P. No. 19292 of 1983 connected with W. P. no. 19844 of 1983 (dd: 4-2-1985 ). ( 18 ) AT this stage, Smt. Sudha also recalled that she had also argued yet another point that the application filed by the petitioner on 11-8- 1980 to amend form No. 7 also came to be rejected wherein he had described survey number as s. No. 217/1a measuring 93 cents and s. No. 217/1b measuring 1 acre. I think that is taken care of by the decision of the division bench of this court in the reported case referred to by me wherein it had clearly held that non-mentioning of the survey number vis-a-vis claim put forth by the applicant is of no consequence. ( 19 ) THAT being the situation, it appears to me that the appellate authority had erroneously interfered with the order dated 27-5-1988 in case No. Lry. 19 of 1977-78 passed by the respondent 3, land tribunal granting occupancy right to the petitioner, as i see the petitioner had adduced both oral as well as the documentary evidence to show that the subject land was in his cultivation since the year 1969; besides in his oral evidence, he had deposed that he was cultivating the subject land over 50 years. There should be truth in such a say of the petitioner, for even in filing form No. 7 by the respondent 1, had stated in the remarks column that the land measuring 1 acre 6 cents in s. No. 217/2a was under cultivation by other tenants. ( 20 ) IN totality of the facts and circumstances of the case, therefore, it appears to me that the impugned order passed by the appellate authority is illegal and the same is called for to be interfered with by this court in the instant revision petition. ( 20 ) IN totality of the facts and circumstances of the case, therefore, it appears to me that the impugned order passed by the appellate authority is illegal and the same is called for to be interfered with by this court in the instant revision petition. I do understand that this court should be slow while exercising the revisional jurisdiction under Section 121-a of the Land Reforms Act, but when it is crystal-clear that the appellate authority had reversed the order of the land tribunal in total negation of the material evidence both oral and documentary on the record of the land tribunal, this court has to interfere with the impugned order by allowing the revision petition. ( 21 ) IN the result, the impugned order dated 31-3-1990 in l. r. a. a. no. 125 of 1988 passed by the additional land reforms appellate authority, puttur, in granting occupancy right in respect of 70 cents of land in s. No. 217/2a to the respondent 1 is liable to be set aside and accordingly hereby set aside; in the process, the original order granting occupancy right by the respondent 3, land tribunal stands restored. Let the respondent 3, land tribunal cause for issuance of form No. 10 to the petitioner by the proper authority. the revision petition stands allowed. No cost. --- *** --- .