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2001 DIGILAW 15 (KAR)

DHANANJAYA VISWESWARA HEGDE v. JATTIKUPPA NAIKA

2001-01-04

P.VISHWANATHA SHETTY

body2001
( 1 ) THIS revision petition filed under Section 121-A of the Karnataka land Reforms Act (hereinafter referred to as "the Act"), is directed against the order dated 28th of April, 1989 passed by the Additional land Reforms Appellate Authority at Sirsi (hereinafter referred to as "the Appellate Authority") in Appeal No. DAAA. AP. 47 of 1988 confirming the order dated 31st of August, 1985 made by the Land Tribunal, sirsi (hereinafter referred to as "the Tribunal") in Case No. LRM. SR. 66- 63, registering Jatti Kuppa Naika, the deceased first respondent herein, as owner in respect of land measuring about three arid half cents in Survey no. 382 of Mashigadde Village, as provided under Section 38 of the Act. ( 2 ) THE facts, which are not in serious dispute and which may be relevant for the disposal of this petition, may be stated as hereunder: (a) The petitioner herein is the owner of the land in question. Late jatti Kuppa Naika was admittedly a Mulgeni Tenant (permanent tenant) in respect of the land, referred to above. The petitioner- landlord had instituted suit, Original Suit No. 235 of 1952 against the said Jatti Kuppa Naika seeking certain relief and ultimately, the dispute was settled recognising the said Jatti Kuppa Naika as mulgeni Tenant and permitting him to continue to be in possession of the said land on his paying a monthly rent of Rs. 2/-; (b) On coming into force of the Act, the said late Jatti Kuppa naika filed Form 7 claiming occupancy right in respect of the said land. The said application came to be rejected by the Tribunal on the ground that he was not an agricultural tenant in respect of the said land, Thereafter, in view of the substitution of Section 38 made as per Act No. 1 of 1979 with effect from 1-1-1979, the said late Jatti Kuppa Naika filed Form 2-A claiming that he should be registered as the owner in respect of the land, referred to above. It was his case that he was an agricultural labourer residing in the house located in the land in question; (c) In the course of the proceedings before the Tribunal, the petitioner examined himself in support of his case. It was his case that he was an agricultural labourer residing in the house located in the land in question; (c) In the course of the proceedings before the Tribunal, the petitioner examined himself in support of his case. The said Jatti kuppa Naika also examined himself and examined one Rama mastya Naika in support of his case; (d) The Tribunal, on consideration of the materials available on record, passed order dated 31st August, 1985 registering Jatti kuppa Naika as the owner in respect of the land in question; (e) Aggrieved by the order of the Tribunal, the petitioner filed a writ petition before this Court, and consequent upon the formation of the appellate Authority, the said writ petition came to be transferred to the Appellate Authority. The Appellate Authority, on consideration of the materials on record, passed order dated 28th of April, 1989, which is under revision, confirming the order passed by the Tribunal. ( 3 ) ,during the pendency of this petition, since Jatti Kuppa Naika has expired, his legal representatives were brought on record. ( 4 ) SRI R. G. Hegde, learned Counsel appearing for the petitioner, challenging the correctness of the impugned order, made three submissions. Firstly, he submitted that since it was admitted by Jatti Kuppa Naika that he was running a Tea Shop in the portion of the house occupied by him, which is located on the land in question, the Tribunal as well as the appellate Authority has seriously erred in law in registering the said jatti Kuppa Naika as the owner in respect of the land in question. In other words, it is his submission that since late Jatti Kuppa Naika was not an agricultural labourer, the Tribunal had no jurisdiction to register him as the owner in respect of the land in question. Secondly, he submitted that since it is admitted by late Jatti Kuppa Naika that he has converted the land in question for non- agricultural purposes, the Tribunal had no jurisdiction to register him as owner in respect of the land in question. According to the learned Counsel, even if it is held that Jatti kuppa Naika was an agricultural labourer in respect of the agricultural land, the could not have been registered as owner. According to the learned Counsel, even if it is held that Jatti kuppa Naika was an agricultural labourer in respect of the agricultural land, the could not have been registered as owner. Thirdly, he submitted that since the petitioner had filed an application before the Appellate authority seeking permission to produce certain documents to show that jatti Kuppa Naika had left the place and was not residing in the house in question, in the absence of the order sheet maintained by the Appellate Authority to show whether the said application has been allowed or not, the order passed by the Appellate Authority is required to be quashed. It is his further submission that if the records produced by the petitioner is taken into consideration, it would show that late Jatti kuppa Naika was not residing in the house located in the land as on the date of substitution of Section 38 of the Act by means of Act No. 1 of 1979 i. e. , on 1-1-1979 and immediately prior to that date. Therefore, he submits that for all these reasons, the impugned orders are liable to be quashed. In support of his submission, Sri R. G. Hegde relied upon the decisions of this Court in the cases of Radhu Shedthi v Gopalakrishna kedlaya and Others1 and H. P. Abdul Khadar v Hammad Beary and others2. ( 5 ) HOWEVER, Sri S. G. Hegde, learned Counsel appearing for respondents 1 (a) to (d), the legal representatives of late Jatti Kuppa Naika, while strongly supporting the impugned orders, pointed out that since both the Tribunal and the Appellate Authority have concurrently found that late Jatti Kuppa Naika was an agricultural labourer residing in the dwelling-house located on the land in question, and the said finding being purely a question of fact, there is absolutely no justification for this Court to interfere with the said finding in exercise of its revisional; jurisdiction under Section 121-A of the Act. It is his submission that since it was not the case of the petitioner in his evidence before the tribunal that late Jatti Kuppa Naika was not an agricultural labourer and he was a businessman, it is not permissible for the petitioner to contend before this Court on the basis of the stray admission made by late Jatti Kuppa Naika that for some time, he was running a tea shop in a portion of the dwelling-house occupied by him. According to the learned Counsel, late Jatti Kuppa Naika was only an agricultural labourer, which is also clear from the evidence of late Jatti Kuppa Naika and his witnesses. It is his further submission that non-maintenance or iion-availability of the order sheet by the Appellate Authority cannot be a ground to nullify the order passed by either the Tribunal or the Appellate Authority. According to him, the said defect, if any, has not prejudiced the interest of the petitioner in any manner. He submitted that ultimately, this Court will have to consider the correctness of the impugned orders on merits. He strongly refuted the contention of the learned Counsel for the petitioner that late Jatti Kuppa Naika and his legal representatives had left the house in question and his legal representatives are not residing in the house in question. According to Sri hegde, since both the Authorities have also held that the land in question continued to be an agricultural land, the admission made by Jatti kuppa Naika, who was an illiterate labourer, stating that he made an application for conversion of the land in question, should not be held against him in the absence of any material on record to show that the land in question was converted for non-agricultural purposes. It is his further submission that even if an agricultural land has been converted for non-agricultural purposes, still the Tribunal would have power to register an agricultural labourer who is in occupation of such a dwelling- house, as the owner thereof. ( 6 ) SRI Shamanna, learned Additional Government Advocate, also strongly supporting the submission of Sri S. G. Hegde, pointed out that since both the Tribunal and the Appellate Authority have found that late Jatti Kuppa Naika was entitled to be registered as owner in respect of the land in question, there is no justification for this Court to interfere with the impugned orders. ( 7 ) IN the light of the rival contentions strongly urged by the learned counsels appearing for the parties, the only question that would arise for consideration in this petition is, whether the impugned orders are liable to be quashed? ( 8 ) I am of the view that the petitioner is not entitled for the relief sought for by him in this petition. ( 9 ) NOW, let me deal with each of the contentions advanced by the learned Counsel appearing for the petitioner. ( 10 ) INSOFAR as the contention of the learned Counsel for the petitioner that late Jatti Kuppa Naika is not an agricultural labourer is concerned, as rightly pointed out by the learned Counsel appearing for the legal representatives of the deceased first respondent and the learned Government Advocate, both the Tribunal and the Appellate Authority have concurrently found that late Jatti Kuppa Naika was an agricultural labourer. In the course of his evidence, he has stated that he is an agricultural labourer. As noticed by me earlier, both the Tribunal and the Appellate Authority have accepted the claim of late Jatti Kuppa naika that he was an agricultural labourer. Now, the question is that merely on the basis of the admission made by late Jatti Kuppa Naika in the course of his cross-examination that he was running a Tea Shop in a portion of the dwelling-house, can it be held that he was not an agricultural labourer and his main avocation was that of a hotelier? In my considered view, it is not possible to take such a view in the fact and circumstances of the case and in the light of the concurrent finding recorded by the Tribunal as well as the Appellate Authority. In a matter like this, what the authorities and the Court are required to take into consideration is as to what is the main avocation of the person who makes a claim to be registered as an owner under Section 38 of the Act. In a matter like this, what the authorities and the Court are required to take into consideration is as to what is the main avocation of the person who makes a claim to be registered as an owner under Section 38 of the Act. Merely because an agricultural labourer, to augment his income for the maintenance of himself and his family, for some time runs a Tea Shop in a portion of the dwelling-house, cannot be a ground to deprive him of the right given to an agricultural labourer to register him as an owner of a dwelling-house located in a village, as provided under Section 38 of the act. As noticed by me earlier, the question that is required to be addressed in a matter like this, is what is the main avocation of such a person? The petitioner has not stated in his evidence that late Jatti kuppa Naika was not an agricultural labourer. There is no specific question put in the cross-examination to late Jatti Kuppa Naika stating that he was not an agricultural labourer. Under these circumstances, if both the Tribunal and the Appellate Authority have concurrently held that late Jatti Kuppa Naika was an agricultural labourer and on that basis, proceeded to pass the impugned orders, in my view, it is not permissible for this Court in exercise of its revisional jurisdiction under section 121-A of the Act, to interfere with the impugned orders. In my view, the decision relied upon by Sri R. G. Hegde in the case of Radhu shedthi, supra, is of no assistance to him. In the said case, this Court has taken the view that an agricultural tenant cannot claim that he is an agricultural labourer. There cannot be any dispute with regard to this position of law laid down by this Court. That is not the position in the present case. Similarly, in the case of H. P. Abdul Khadar, supra, no doubt, this Court has taken the view that the burden is on the agricultural labourer to show that he is an agricultural labourer and he is residing in a dwelling-house on the relevant date. As noticed by me earlier, both the Authorities, on consideration of the evidence on record, have taken the view that late Jatti Kuppa Naika was ah agricultural labourer and he was residing in the dwelling-house in question. As noticed by me earlier, both the Authorities, on consideration of the evidence on record, have taken the view that late Jatti Kuppa Naika was ah agricultural labourer and he was residing in the dwelling-house in question. Under the circumstances, the decision relied upon by Sri R. G. Hegde, as noticed by me earlier, is of no assistance to him. It does not advance his case any further. ( 11 ) NOW, the other question is whether the impugned orders are liable to be quashed as the land in question has been converted for non-agricultural purposes? The Appellate Authority, on consideration of the evidence on record and also keeping in mind the admission made by late Jatti Kuppa Naika, has found that the land in question was not converted for a non-agricultural purpose. The Appellate Authority has taken the view that in the absence of any other evidence on record, the stray admission made by Jatti Kuppa Naika that the land in question was converted for non-agricultural purposes, cannot be made as a basis to come to the conclusion that the land in question was converted for non-agricultural purposes. Having gone through the conclusion reached by the Appellate Authority on this question, I do not find any justification to differ from the said finding in exercise of my revisional jurisdiction under section 121-A of the Act. It is necessary to point out that if the land in question, as a matter of fact, is converted for non-agricultural purposes, there would have been an order made by the authorities under Section 95 of the Karnataka Land Revenue Act permitting conversion of the land in question for non-agricultural purposes. There is no material placed either before the Tribunal or before the Appellate authority or for that matter, before me, to show that the land in question was converted for non-agricultural purposes. Even if the land was converted for non-agricultural purposes, an agricultural labourer, who is residing in a dwelling-house located in a village, will not lose his right to be registered as an owner in respect of the said land. It is necessary to point out that Section 38 of the Act confers power on the Tribunal to register an agricultural labourer, who ordinarily resides in a dwelling- house on a land not belonging to him situated in any village. It is necessary to point out that Section 38 of the Act confers power on the Tribunal to register an agricultural labourer, who ordinarily resides in a dwelling- house on a land not belonging to him situated in any village. The word 'land' referred to in Section 38 of the Act in the context and in the background of the purpose of Section 38 of the Act, should not be given a restricted meaning as an agricultural land as defined under Section 2 (A) (18) of the Act. Section 2 (A) (18) of the Act must be understood for the purpose of conferment of occupancy right. The object of Section 38 of the Act is to register an agricultural labourer as an owner thereof in respect of the house and the land appurtenant thereto. While the object of conferment of occupancy right on an agricultural tenant is to give occupancy right to a tiller of the land, the object of Section 38 of the Act is to register an agricultural labourer who is residing in a dwelling- house not belonging to him located in a village, as owner thereof. In that background, if Section 38 of the Act is understood, in my view, the nature of the land as to whether it is an agricultural land or a non- agricultural land, will not make any difference. The only requirement to register a person as an owner of a dwelling-house located in a village, is that he should be an agricultural labourer. In the instant case, as noticed by me earlier, both the Tribunal and the Appellate Authority have taken the view that late Jatti Kuppa Naika is an agricultural labourer. Therefore, if the matter is looked at in this point of view also, I do not find any justification to reject the claim of late Jatti Kuppa Naika to register him as the owner in respect of the land in question. ( 12 ) THE only other question that remains to be considered is the non-maintenance of the order sheet by the Appellate Authority indicating as to whether the application filed by the petitioner seeking to produce additional 3 documents in the course of the proceedings before the appellate Authority, vitiates the order passed by the Appellate Authority? ( 12 ) THE only other question that remains to be considered is the non-maintenance of the order sheet by the Appellate Authority indicating as to whether the application filed by the petitioner seeking to produce additional 3 documents in the course of the proceedings before the appellate Authority, vitiates the order passed by the Appellate Authority? Having regard to the facts and circumstances of the case, I am of the view that it is not possible to take such a view. In the course of the evidence, as noticed by me earlier, it is not the case of the petitioner that late Jatti Kuppa Naika was not residing in the dwelling-house in question. I have been taken through the evidence of the petitioner as well as that of the first respondent, by Sri R. G. Hegde. There is not even a whisper in the course of the evidence of the petitioner that late Jatti kuppa Naika was not residing in the dwelling-house. There is also no suggestion made to him that he had vacated the house and he was not residing in the house in question either on the date of the application or on the date of coming into force of the Act. Under these circumstances, the materials sought to be produced by the petitioner in the course of the proceedings before the Appellate Authority, in my view, cannot be made use of to reject the claim of late Jatti Kuppa Naika. I am unable to accede to the submission of Sri R. G. Hegde that the petitioner was prevented from placing material before the Tribunal. If the evidence of the petitioner and the cross-examination of the first respondent made on behalf of the petitioner is perused, it would be clear that absolutely there is no merit in the submission made by the learned Counsel for the petitioner and in my view, it is only a belated attempt made to get the impugned orders nullified by this Court. Ultimately, the substance of the matter is that late Jatti Kuppa Naika was a Mulgeni Tenant, i. e. , a permanent tenant. In the normal circumstances, he was entitled for the protection from eviction. However, Section 38 of the Act confers right on an agricultural labourer to get himself registered as owner. Ultimately, the substance of the matter is that late Jatti Kuppa Naika was a Mulgeni Tenant, i. e. , a permanent tenant. In the normal circumstances, he was entitled for the protection from eviction. However, Section 38 of the Act confers right on an agricultural labourer to get himself registered as owner. The certificate relied upon by the learned Counsel for the petitioner to the effect that late Jatti Kuppa Naika and others were Green Card holders in occupation of house along with the land appurtenant thereto, is of the year 1989. The Tribunal was required to consider the case of late Jatti kuppa Naika as on the date of the coming into force of Section 38 of the act. If both the authorities, on consideration of the evidence on record, have found that Jatti Kuppa Naika is an agricultural labourer residing in a dwelling- house located in a village, in my considered view, it is not appropriate for this Court in exercise of its revisional jurisdiction, to interfere with the conclusion reached by the Tribunal and the Appellate authority. Further, I am fully satisfied that the procedure followed by the Appellate Authority has not resulted in any illegality which has prejudiced the petitioner in any manner. ( 13 ) IN the light of the discussion made above, this revision petition is liable to be rejected and accordingly, it is rejected. ( 14 ) HOWEVER, no order is made as to costs. --- *** --- .