Research › Search › Judgment

Karnataka High Court · body

2000 DIGILAW 534 (KAR)

RAMAKRISHNA UDUPA v. SUBHADRAMMA

2000-07-28

K.SREEDHAR RAO, T.S.THAKUR

body2000
THAKUR, J. ( 1 ) THIS Writ Appeal calls in question the correctness of an order passed by a single Judge of this Court, whereby Writ Petition no. 23176/1998, filed by Respondent Smt. Subhadramma, has been allowed and the order passed by the Land Tribunal, granting occupancy Rights in favour of the Appellant herein quashed. The appeal arises in the following circumstances:- land measuring 2 acres and 13 guntas in Sy. No. 206 and 2 acres 29 guntas situate in Sy. No. 207, of Adda Village in Koppa taluk, was originally owned by one Vishnumurthy Bhatta, under whom the appellant held the entire extent as a tenant in cultivating occupation. By a sale deed executed on the 29th of December 1966 the ownership of the extent indicated above was transferred by the landlord in favour of the appellant tenant. The appellant in turn transferred an area measuring 2 acres and 2 guntas out of Sy. No. 207 in favour of the Respondent Smt. Subhadramma, under a Registered sale Deed executed in her favour for valuable consideration. The recitals of the Deed specifically recorded the transfer of the extent sold to the Respondent-purchaser. Some time later, a dispute as to she total area actually in occupation of the Respondent appears to have arisen between the parties, which was looked into by the assistant Surveyor of Land Records (ASLR), who found that the respondent was in possession of 2 acres and 10 guntas as against 2 acres and 2 guntas purchased by her. The Appellant was therefore driven to file original suit No. 2/1968, for a Decree for possession of 8 guntas of land unauthorisedly occupied by the Respondent. An application for appointment of a Commissioner to measure the extent of the land occupied by the Respondent was made before the Civil court, who appointed a Commissioner, with the consent of the parties. The Commissioner's Report prepared after a sport inspection and measurement of the land in the occupation of the parties disclosed that the Respondent was in possession of four and half guntas of land in excess of what had been purchased by her under the sale Deed executed in her favour by the "appellant. The Commissioner's Report prepared after a sport inspection and measurement of the land in the occupation of the parties disclosed that the Respondent was in possession of four and half guntas of land in excess of what had been purchased by her under the sale Deed executed in her favour by the "appellant. The dispute was eventually compromised between the parties in terms of a compromise Petition filed by them before the trial Court, culminating in the passing of the Compromise Decree dated 7th of August, 1979, under which the Respondent was required to give up possession of 4 and half guntas of excess land in her possession in favour of the appellant and retain only 2 acres and 2 guntas actually purchased by her with the coming into force of the Karnataka Land Reforms Act, the Appellant filed a claim in Form No. 7 before the Land Tribunal, for grant of occupancy rights in respect of the area transferred to the Respondent in terms of the sale Deed referred to earlier. The tribunal rejected the said claim by its order dated 18th of August, 1978, the correctness whereof was called in question by the Appellant before this Court in Writ Petition No. 12159/1978. By an order dated 3rd of June, 1983, while allowing the asid petition this Court quashed the order of the Land Tribunal and remanded the matter back to it for a fresh order. A Writ Appeal filed against the said order" by the respondent having been dismissed, the Land Tribunal proceeded to pass a fresh order, by which it granted the occupancy rights in favour of the Appellant in regard to the disputed extent of 2 acres and 2 guntas of land in Sy. No. 207. The correctness of the said order was challenged by the Respondent in Writ Petition No. 23176/ 1998, which was allowed by the single Judge of this Court by order dated 14th of January, 2000. The Court held that the claim made by the Appellant for grant of occupancy Rights was totally untenable in law, having regard to the fact that the land in question had been purchased by the Appellant from the original owner and transferred in favour of Smt. Subhadramma, for valuable consideration. The Court held that the claim made by the Appellant for grant of occupancy Rights was totally untenable in law, having regard to the fact that the land in question had been purchased by the Appellant from the original owner and transferred in favour of Smt. Subhadramma, for valuable consideration. It was of the view that since the land in question was not tenanted as on 1st of March, 1974, i. e. , the date when the Land Reforms Act, came into force, the question of granting or recognising any occupancy rights over the same did not arise. The filing of a claim by the appellant was in the opinion of the Court an abuse of the process of law and the conferment of occupancy Rights on the basis of the same, a perversity, which the Court could not countenance. Aggrieved by the said findings, the Appellant has filed the present Appeal, as already noticed earlier. Appearing for the Appellant Mr. Subramanya Jofs, strenuously argued the learned single Judge was not justified in interfering with the order made by the Land Tribunal. He argued that the jurisdiction of a Writ Court under Article 226 of the Constitution was limited to examining the correctness of the decision making process and not the decision itself. He urged that the learned single judge had assumed the role of an Appellate Court and upset the finings recorded by the Land Tribunal, upon a fresh appraisal of the relevant material which was wholly unnecessary and in excess of the jurisdiction exercisable by him. Judicial Review of orders made by those exercising administrative or statutory power is broadly speaking limited to finding out whether the decision making authority has, (A) Exceeded its powers? (B) Committed an error of law (C) Arrived at a decision, which no reasonable person would have done. Apart from correcting orders in excess of the powers of the authority making the same judicial review remains confined to examining whether the order under challenge is vitiated by any illegality, irrationality or procedural irregularity. Stated differently the decision maker must correctly understand the law that regulates the decision making power and must give effect to it. Apart from correcting orders in excess of the powers of the authority making the same judicial review remains confined to examining whether the order under challenge is vitiated by any illegality, irrationality or procedural irregularity. Stated differently the decision maker must correctly understand the law that regulates the decision making power and must give effect to it. The decision that he arrives at must not suffer from an irrationality of the kind which no prudent person, reasonably instructed in law would countenance and the decision must not be contrary to the procedure prescribed and where no procedure is prescribed, the decision must be based on a procedure, which is just and fair. These are broadly speaking the parameters within which the Courts in this Country have since the decision of the Supreme Court in A. K. KRAIPAK AND OTHERS vs UNION OF INDIA AND OTHERS till the recent decision in TATA cellular vs UNION OF INDIA exercised the power of judicial review to ensure that repositories of power whatever be the nature of that power do not abuse the same. Lack of expertise with the courts to correct decisions involving complex questions requiring specialised knowledge of a given subject has been recognised as a limitation that very often defies solution at the hands of the Court within judicially manageable dimensions. The Courts therefore resist the temptation of sitting in appeal over decisions under challenge before them and leave matters like appreciation of evidence led by the parties to the authority or Tribunal competent to determine the questions of fact. The position would however be different if the decision under challenge is assailed on the ground of irrationality or perversity, which as seen earlier are now recognised as legitimate grounds for interference by Writ Courts. That is precisely the ground on which the learned Single Judge had in the instant case interfered with the order made by the Tribunal grating occupancy rights to the appellant. Having given our anxious consideration to the submissions made at the bar, We do not see any error in the view taken by the learned Single Judge. The reasons are not far to seek. The land in question, as noticed earlier, was purchased by the Appellant, from his landlord Shri Vishnumurthy Bhatta, in terms of a validly executed sale deed. Having given our anxious consideration to the submissions made at the bar, We do not see any error in the view taken by the learned Single Judge. The reasons are not far to seek. The land in question, as noticed earlier, was purchased by the Appellant, from his landlord Shri Vishnumurthy Bhatta, in terms of a validly executed sale deed. The transfer of title in favour of the appellant qua the said land would inevitably result in the extinction of the right of tenancy held by him on the doctrine of merger. Such extinction follows by operation of law and does not depend on the intention of the parties. That being so, the question of the land vesting in the State under the provisions of the Land Reforms Act, could not arise as the land ceased to be under the cultivating occupation of the tenant on the date the Act came into force. In LAXMINARAYANA venkataraman HEGDE vs STATE OF KARNATAKA3 While dealing with a similar situation, a Division Bench of this Court observed thus:-"however, the Tribunal could not deal with his application for occupancy rights because in view of the two sale deeds, the land was not under the cultivation of tenant on 1. 3. 1974 and therefore, the provision of the Land Reforms Act were not attracted to tne case - The Land Tribunal could not have directed that the land should vest in the Government for, in view of the first sale deed executed in favour of 3rd Respondent which is not in any way unlawful, the third respondent became the owner of the property and therefore, if the second sale had not been executed the third respondent would have become the owner and continued as such on the appointed date ie. , 1. 3. 1974 and therefore, the provisions of the Act would not be attracted as it had ceased to be a tenanted land. "having become the absolute owner of the property, the appellant was competent to transfer the same in favour of the Respondent as he actually did. That possession of the land had also been handed over to the Respondent/purchaser, is in our opinion beyond dispute. "having become the absolute owner of the property, the appellant was competent to transfer the same in favour of the Respondent as he actually did. That possession of the land had also been handed over to the Respondent/purchaser, is in our opinion beyond dispute. We say so because transfer of possession is evidenced not only by the recitals contained in the sale Deeds, but also the averments in o. S. No. 2/1968 filed by the appellant in which he had made an admission to that effect in unequivocal terms in the following words:-"4. In pursuance of the sale deed possession of only 2 acres 2 (juntas was given to the defendant and defendant has been in possession of this 2 acres 2 guntas only, the plaintiff being in possession of the remaining area of S. No. 207-28 guntas towards the West including one gunta of Kharab. "superadded to the above is the report of the Commissioner appointed by the Court, the correctness whereof was admitted by the Appellant. The report clearly established that the Respondent was in actual physical possession of 2 acres and 6 and half guntas as against 2 acres and 2 guntas purchased by her. The compromise decree passed on the basis of the settlement arrived at between the parties, also recognised in no uncertain terms the fact that the possession of 2 acres and 2 guntas of land purchased by the respondent would continue with her, whereas an area ad measuring 4 and half guntas found to be in excess would stand surrendered to the appellant. It is in the light of the above futile for the appellant to claim that he had even after the purchase of the property and its transfer to the Respondent, continued in occupation of the entire extent of 2 acres and 2 guntas as a tenant on payment of rent to the original landlord, not only because the tenancy between the landowner and the Appellant had by operation of law become extinct but also because the Appellant had transferred the title and physical possession of the land in question to the Respondent. An admission of a party is substantive evidence properio vigore and if made clearly and unequivocally is the best evidence against the maker. An admission of a party is substantive evidence properio vigore and if made clearly and unequivocally is the best evidence against the maker. The evidence may not be conclusive but it certainly shifts the onus to the person making the admission for what a party himself admits to be true can be presumed to be so until the presumption is rebutted. Mr. Jois took pains to argue that while an admission made by a party is a piece of evidence against htm, yet the appreciation of any such evidence ought to be left to the Land Tribunal instead of the court embarking upon any such exercise. He submitted that a remand to the land Tribunal would have been the right course for the learned single Judge to follow. There can be no quarrel with the proposition that an admission is at best a piece of evidence against the party making the same. Any such evidence would therefore have to be appreciated in the context of the other material that may be adduced before the authority concerned. In order however to justify a remand to the Land Tribunal, the least that was expected of the appellant was to withdraw the admission at the appropriated stage and explain the circumstances in which the same was made. No such withdrawal or explanation was made or tendered at any stage before the Land Tribunal or even before the learned single judge. The appellant was unabfe to advance any plausible explanation even before us for the admissions made by him or plead circumstances which could possibly justify exclusion of the same from consideration. Ail that was argued by Mr. Jois, was that the transfer of the land in question in favour of the appellant and that by the Appellant in favour of th Respondent were no more than sham transactions which were never intended to be acted upon. We find it difficult to accept that as an explanation sufficient to justify a remand to the Tribunal for reappraisal of the material and a fresh order on the subject. If the transactions had remained confined to the execution of the sale deeds only, the appellant may well have been well justified in contending that the arrangement was not meant to be acted upon, that is however not so in the present case. If the transactions had remained confined to the execution of the sale deeds only, the appellant may well have been well justified in contending that the arrangement was not meant to be acted upon, that is however not so in the present case. What followed the transactions in the form of a suit between the parties culminating in a compromise decree, in which the transfer of possession to the respondent purchaser has been unequivocally admitted, totally belies the version that the sale deeds were sham documents never meant to be acted upon. The fact that the plaintiff made a grievance against occupation of 4 and half guntas of excess land by the respondent/ purchaser as also the settlement by which the excess land was surrendered back to the Appellant, are in our opinion incompatible with the theory of the documents representing sham transactions. The land Tribunal ought to have considered the effect of the admissions made by the appellant instead of granting tenancy rights on the basis of a statement attributed to the Respondent, according to which the Appellant had continued paying rent to the original owner during his life time. We has been taken through the statement referred to by the Tribunal but find that the same does not lend any support to the conclusion drawn by it. The statement cannot in our view be taken to mean that the Appellant had continued paying rent to his earlier landlord Shri Vishnumurthy Bhatta, even after the execution of the sale deed by the latter and the transfer of two acres and two guntas in favour of the respondent. The Land Tribunal was in error in reading the statement out of context and drawing a conclusion from the same which we find is wholly untenable. It was lastly contended by Mr Jois, that the continued cultivation of the land in question by the Appellant was probablised by the fact that the Respondent had shifted from Addada Village to Sringeri, which were according to him, far removed from each other. There is no merit in that submission either. The statement made by the appellant before the Land Tribunal clearly admits that the Respondent had shifted to Sringeri from Addada Village only in the year 1983. There is no merit in that submission either. The statement made by the appellant before the Land Tribunal clearly admits that the Respondent had shifted to Sringeri from Addada Village only in the year 1983. If that were so, the Respondent was even according to the appellant's admission living in village Addada as on the relevant date i. e, the 1st of March 1974 when the Act came into force. tn the result, we do-not see any merit in this Appeal, which fails an is hereby dismissed with costs assessed at Rs. 2,000. --- *** --- .