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2000 DIGILAW 720 (KAR)

Siddanaika v. State of Karnataka

2000-11-03

T.N.VALLINAYAGAM

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ORDER T.N. Vallinayagam, J.—Though the case has come up for preliminary hearing in 'B' group, by the consent of the learned Counsel, the matter is taken up for disposal. Government Advocate takes notice for Respondents-1 and 2. Respondent-3 to Respondent-5 though served remain un-represented. 2. This is a petition filed against the order of the Land Tribunal in case No. LRF/172/1979-80 dated 22.2.1993 which is produced and marked as Annexure-A to the Writ Petition. Petitioner submits that he is a tenant in lands bearing Sy. Nos. 130/1 measuring 30 guntas, 21 guntas, Sy. No. 131/2 measuring 22 guntas, Sy. No. 120 measuring 1 acre 23 guntas and Sy. No. 121 measuring 27 guntas of Hedathale village, Kavalande Hobli, Nanjangud Taluk, Mysore district. The respondents 3 to 5 are the owners of the said lands. The Petitioner is cultivating the land in question as a tenant since more than 25 years and paying gutta in the form of half crop share basis to the owners. Since the Petitioner is cultivating the land as on 1.3.1974 as a tenant, he filed Form No. 7 on 29.6.1979. The Petitioner while filing the application, though has given correct extent and boundaries of the lands in question, by oversight has not mentioned the survey numbers. The Tribunal took the said application for enquiry and examined the owners of the lands in question. In their deposition, the owners themselves have admitted that the survey numbers mentioned above refer only to the lands which the Petitioner has claimed occupancy rights. The witnesses examined on behalf of the Petitioner have also stated that the Petitioner is cultivating the lands in question on vara basis and paying half crop share to the owners. Further the owners are residing in some other village and not in the village where the lands in question are situated. The Tribunal without holding proper enquiry and ignoring the statement of the parties has rejected the application of the Petitioner for grant of occupancy rights as well as his application for permitting him to amend Form No. 7 by incorporating the survey numbers. 3. Mr. Kaleemulla Shariff, appearing for the Petitioner contended that the Tribunal ought to have permitted the Petitioner to amend the application for incorporating of survey numbers. In fact, this is not a new claim and it is only a clerical mistake committed by the Petitioner. 3. Mr. Kaleemulla Shariff, appearing for the Petitioner contended that the Tribunal ought to have permitted the Petitioner to amend the application for incorporating of survey numbers. In fact, this is not a new claim and it is only a clerical mistake committed by the Petitioner. Sub-section (3) of Section 48A of the Karnataka Land Reforms Act provides that "The Tribunal may for valid and sufficient reasons permit the tenant to amend the application". The order of the Tribunal is also not a speaking order. 4. Learned Counsel for the Petitioner also relied upon the decision of this Court in the case of Seethadevi Vs. Narayana Kamath, ILR (1987) KAR 1779 paras 5 and 6 which reads as follows: 5. There can be no doubt that, in view of Sub-section (3) of Section 48A, if any mistake has been committed in the application filed in Form No. 7 filed within time, the application for amendment can be made by the party concerned before the Tribunal and the Tribunal has the jurisdiction to allow the amendment application if it is satisfied that in not allowing the amendment, it would result in miscarriage of justice. 6 ...No person can make an application in Form No. 7 or an application in the nature of an amendment after the expiry of the period fixed under Section 48A(1) of the Act seeking occupancy right in respect of new item of land not included in the application filed within time. He also relied upon the decision of this Court in the case of R. Krishnaswamy Rao Vs. Lakshmaiah Setty, ILR 1990 Karnataka 369 in particular to para 6. Which reads as under: 6 ...No person can make an application in Form No. 7 or an application in the nature of an amendment after the expiry of the period fixed under Section 48A(1) of the Act seeking occupancy right in respect of new item of land not included in the application filed within time. Therefore, the ratio of the said decision is that no fresh claim can be made by way of an amendment after the expiry of the last date fixed under the statute. Consequently, the question that will arise for consideration is whether the amendment sought for by the first respondent amounts to a fresh claim. Therefore, the ratio of the said decision is that no fresh claim can be made by way of an amendment after the expiry of the last date fixed under the statute. Consequently, the question that will arise for consideration is whether the amendment sought for by the first respondent amounts to a fresh claim. 6 ...In Form No. 7 filed by the first respondent he specifically claimed occupancy right over an area of 17 guntas comprised in S. No. 49 of Beerasettihalli. Therefore, his claim was confined to only 17 guntas. It was open to him to make a fresh claim before the expiry of the last date fixed under the Act. However, no such attempt was made by the first respondent. The application seeking amendment came to be filed only after the Tribunal rejected the application filed by the first respondent in Form No. 7 and during the pendency of the appeal before the Land Reforms Appellate Authority. When the claim was confined to 17 guntas comprised in S. No. 49 any further claim in respect of the area other than 17 guntas comprised in the very same survey number would amount to making a fresh claim. The amendment sought for cannot at all be considered to be explanatory because it expands the claim of the applicant from 17 guntas to 2 acres. Such an application for amendment could not have been made and entertained as the amendment sought to expand the claim of the applicant in Form No. 7 and to make a fresh claim in respect of 1 acre 23 guntas comprised in S. No. 49 which was not made earlier. Therefore, it is not possible to hold that the amendment sought for is only explanatory and relates to the land claimed in Form No. 7... 5. Relying upon the above decisions, his contention was that non-mentioning of the survey numbers in Form No. 7 is a mistake and therefore, the Order of the Tribunal is liable to be set aside. 6. Learned High Court Government Pleader is directed to take notice on behalf of respondents 1 and 2. 7. I have considered the submissions of the respective Counsel. 8. The finding rendered by the Tribunal in elaborate order running to nearly 9 pages is said to be illegal. 6. Learned High Court Government Pleader is directed to take notice on behalf of respondents 1 and 2. 7. I have considered the submissions of the respective Counsel. 8. The finding rendered by the Tribunal in elaborate order running to nearly 9 pages is said to be illegal. But as the finding of fact, "it cannot be set aside", as held by this Court in Parameshwar Timmayya Hegde and Others Vs. Venkataraman Manjappa Hegde (Deceased) by L.Rs and Others, ILR (2000) KAR 3170, which reads as follows: This Court has consistently taken the view that there can be no reappraisal of evidence in a revision petition. It is clear that there has been no evidence established before the appellate authority to rebut the presumption in favour of the landlord. In these circumstances, no point arises for consideration. 9. In the present case also, since it is found that a concurrent finding has been recorded by the Land Tribunal as well as by the appellate authority that there is no document to prove that the Petitioner was in possession of the lands in Survey Nos. 84 and 85 on the appointed date i.e., 1.3.1974, this Court is not entitled to interfere with the said finding on reappraisal of the evidence in the present revision petition. 10. In another decision of this Court, reported in D.M. Ramachandra Rao Vs. State of Karnataka and Another, ILR (1997) KAR 1555 it was held that: Both the Land Tribunal and Appellate Authority, on evidence recorded respectively before them, have recorded a finding that Petitioner was not cultivating the lands on the relevant date having regard to the inconsistency in the oral evidence led by him. In such cases, the Court exercising revisional jurisdiction should not interfere unless the conclusions of the authorities below have been based on conjectures and not evidence. 11. In the instant case, the concurrent finding recorded by the above said authorities is based on evidence and not on conjectures. So, I find that this Court is not entitled to interfere with the above concurrent findings recorded by both the authorities. 12. It is admitted that Form No. 7 does not contain survey numbers at all. Clearly speaking, there is no Form No. 7 at all. Consequently, in the light of the decision rendered in the case of Basappa Vs. So, I find that this Court is not entitled to interfere with the above concurrent findings recorded by both the authorities. 12. It is admitted that Form No. 7 does not contain survey numbers at all. Clearly speaking, there is no Form No. 7 at all. Consequently, in the light of the decision rendered in the case of Basappa Vs. Land Tribunal, 1978 (1) KLJ 48 that when there is no proper Form No. 7, there can be no grant and the claim of the tenant is un-tenable. 13. The Division Bench decision relied upon by the learned Counsel has been consequently followed by the judgment in R. Krishnaswamy Rao Vs. Lakshmaiah Setty, ILR (1990) KAR 369 also. This view was also re-iterated by the Division Bench decision in the case of Pakeera Noolya vs. Mari Bhat, ILR 1994 (1) Kar 809 where para-9 reads thus: 9. It is no doubt true that tenants and landlords who reside in rural areas may not be fully aware of particulars of land entered in revenue records. The time for filing applications was extended by five years from 1.3.1974 to 30.6.1979 and by which time there was at least one round of litigation or another and enough time to find out particulars of lands thereof. The argument of ignorance of litigants therefore does not appeal to us because for a person of diligence five years is a very long period to set right all discrepancies of substantial nature. Although in an application several items of lands may be included claiming occupancy rights, the claim in respect of each one of the lands mentioned therein is a separate claim. Understood thus, a claim must be made in respect of a land that he is a tenant and seek for registration of occupancy rights in his favour. If any land is omitted in the original application and after the expiry of the period of limitation, it will not be permissible to amend such an application to include new item of land is very clear because that would amount to making a new claim in respect of a new item. If any claim had been made in respect of any land which is identifiable any discrepancy in the application is in regard to description of a property, amendment may be made so that the property can be easily recognised. If any claim had been made in respect of any land which is identifiable any discrepancy in the application is in regard to description of a property, amendment may be made so that the property can be easily recognised. Making new claim in respect of a new item of land is introducing new cause of action as is ordinarily understood. Indeed, the scope of amendment of pleadings in such cases has been succinctly explained by the Supreme Court in A.K. Gupta and Sons Limited vs. Damodar Valley Corporation, that the expression 'cause of action' in that context does not mean every fact which is material to be proved to entitle the plaintiff to succeed. The expression only means a new claim made on a new basis constituted by new facts. In the present case where claims have been made in respect of certain items of land which are not part of the original application at all must be treated new claims giving rise to new cause of action and such a course is not permissible at all particularly in the light of Section 48A(8) of the Act. With respect we agree with the view expressed in Seetha Devi's case and there is no reason to make a departure from that view expressed by this Court earlier. The consent of a party also cannot confer jurisdiction on the Tribunal. When the Tribunal could not adjudicate on the claim of tenant in respect of certain lands as not having formed part of original claim and amendment carried out after expiry of period of limitation to make claims, no grant could be made in that regard. The Tribunal exceeded its jurisdiction in granting amendment of Form No. 7 in regard to lands comprised in survey Nos. 13/3 and 13/2C measuring 5 cents and 2 cents. The order made by the Tribunal in regard to lands comprised in Survey Nos. 13/3, 13/2C, 33/2, 33/3, 13/2A shall stand quashed. In other respects the order of the Tribunal cannot be disturbed. 14. In the light of the Division Bench decision of this Court, the amendment now sought for is not maintainable. In the case on hand, both on the facts as well as on legal decision, the petition has to fail and consequently, the Writ Petition is dismissed.