Research › Search › Judgment

Karnataka High Court · body

2003 DIGILAW 289 (KAR)

BABU SHANTHAPPA SHEIT v. GURU GANGAPPA SHIET

2003-03-21

body2003
( 1 ) THE petitioner who is the applicant before the land tribunal is aggrieved of the order dated 12. 12. 1988 passed by the erstwhile Land Reforms Appellate Authority, Sirsi, in case No. KSDAAA AP 53/87 in granting occupancy rights in favour of rival claimants who are respondents 1 to 4, who are also claiming that they are legal heirs who have succeeded to the deceased Venkataramana Ganapathy Shiet who is the original applicant in respect of the land bearing sy. no. 3,4,21 and 162 of Heggarani and Hosthota village in Siddapura Taluk, U. K. District, and also rejecting the application of the petitioner and he has further sought for setting aside the order of the appellate authority and to direct the land tribunal to grant occupancy rights in his favour in respect of the aforesaid lands by allowing the Form No. 7 application filed under Section 48a (1) of the KLRF Act) urging various facts and legal contentions. ( 2 ) THE brief foots are stated as hereunder for the purpose of considering the rival legal submissions made at the bar on behalf of the parties. The petitioner/applicant and deceased Venkataramana Ganapathy Sheit the original tenant and also respondents 1 to 4 who are rival claimants filed form no. 7 applications independently before the land tribunal Siddapur in respect of the lands in question requesting it to register them as occupants under section 45 of the Karnataka Land Reforms Act (in short KLRF Act) claiming that they are the tenants and they have been in lawful possession and cultivation of the lands immediately prior to 1. 3. 1974. The petitioner, deceased Venkataramana Ganapathy Sheit and the respondents 1 to 4 who are also the rival claimants claimed their right of tenancy in respect of the lands in question through the deceased Venkataramana Ganapathy Sheit under section 24 of the KLRF Act. The land tribunal after conducting an enquiry under section 48a (2) read with Rule 19 KLRF Rules and section 34 of the KLR Act, passed an order dated 24. 8. 1987 granting occupancy rights in favour of the original applicant deceased Venkataramana Ganapathy Sheit in respect of the lands in question and rejected the application filed by the petitioner and the rival claimants by recording its findings with reasons holding that they are not tenants in respect of the lands in question. 8. 1987 granting occupancy rights in favour of the original applicant deceased Venkataramana Ganapathy Sheit in respect of the lands in question and rejected the application filed by the petitioner and the rival claimants by recording its findings with reasons holding that they are not tenants in respect of the lands in question. The petitioner was aggrieved of the order of the land tribunal filed appeal under section 118a of the KLRF Act before the erstwhile appellate authority questioning the legality of the order passed by the tribunal in rejecting the application of the petitioner. In so far as the rival claimants are concerned they have not challenged the order of rejection of their application, but however they are the respondents in the appeal filed by the petitioner before the appellate authority. ( 3 ) THE Case of the petitioner/applicant is that he has been in lawful possession and cultivation of the lands in question, immediately prior to 1. 3. 1974 which fact is admitted by the landlord and further in respect of his claim, he has placed strong reliance upon the Will said to have been executed by his adoptive father deceased Venkataramana Ganapathy Sheit in whose favour occupancy rights were granted by the land tribunal in respect of the lands in question. It is also further contended on behalf of the rival claimants that under section 21 of the KLRF Act as held by the Supreme Court in the case of SRI SANGAPPA KALYANAPPA BANGI (DEAD) THROUGH LRS. VS. LAND TRIBUNAL, JAMKHANDI AND OTHERS reported in JT 1998 (6) SC 363 assignee under the Will is not entitled for grant of occupancy rights in respect of tenanted lands. It is urged on behalf of the petitioner that the land tribunal and the appellate authority should have considered the recitals in the Will dated 14. 3. 1972 for collateral purpose namely to show that he has been in lawful possession and cultivation of the land as tenant in terms of section 2 (34) of the KLRF Act prior to 01. 3. 3. 1972 for collateral purpose namely to show that he has been in lawful possession and cultivation of the land as tenant in terms of section 2 (34) of the KLRF Act prior to 01. 3. 1974 and further, learned Counsel Sri Gopal in support of the aforesaid submission placed reliance upon the judgment of this Court reported in 1982 (2) KLJ 593 and also stated that the original tenant deceased Venkataramana Ganapathy Sheit has lawfully sublet the land in question in his favour which is permissible under the provisions of section 45, 49 of the KLRF Act. Further, it is stated that the fact of sublease of the tenanted land in favour of the petitioner is recognised by the landlord in the instant case, as he has accepted the petitioner has been in lawful possession and cultivation as tenant, which important piece of legal evidence has not been considered by both the land tribunal as well as the appellate authority at the time of passing the impugned orders. In support of this contention, he has also placed reliance upon the judgment of this Court reported in 1978 (1) KLJ 382. ( 4 ) THE land tribunal without considering the relevant facts, evidence on record and legal position on the point at issue the claim of the applicant was rejected erroneously, against which order he filed an appeal before the appellate authority urging various legal contentions. The appellate authority has confirmed the findings of the land tribunal in rejecting the application of the applicant by recording its findings and reasons on the contentions points framed by it at paras of 1 to 5 the impugned order. The appellate authority has confirmed the findings of the land tribunal in rejecting the application of the applicant by recording its findings and reasons on the contentions points framed by it at paras of 1 to 5 the impugned order. In the said appeal though the rival claimants are not entitled for the relief of setting aside the order of rejection of their applications passed by the land tribunal, the appellate authority has dismissed the appeal of the applicant but granted the relief to them which is opposed to law laid down by the Supreme Court and this Court namely the Cases reported in AIR 1963 SC 1091, ILR 1988 KAR 2067, wherein the Apex Court and this Court have held that the appellate Court while examining the correctness of the finding of the trial Court in exercise of its power Under Order 41 Rule 33 CPC it cannot grant relief in favour of the respondents in the appeal who are rival claimants unless the main relief sought for by the applicant is granted by the Appellate Court in his favour in the appeal filed by him. In the instant case the appellate authority while dismissing the appeal of the applicant, it has, granted the relief of allowing Form No. 7 applications filed by the rival claimants though they did not file either separate appeals or cross objections before the Appellate Authority challenging the order of rejection of their applications by the tribunal. Therefore, it is contended by the learned Counsel Mr. S. Gopal on behalf of the applicant that the impugned order is wholly illegal and the same is liable to be set aside on this ground alone. ( 5 ) FURTHER, it is contended by the learned Counsel that both the land tribunal as well as appellate authority have not considered the legal evidence on record produced by the applicant which disclose the fact that the original tenant deceased Venkataramana Ganapathy Sheit has sublet the lands in the year 1972 in favour of the applicant by executing the document of will, recitals of which would amount to sub-lease of the properties which fact was admitted by the landlord. He has lawfully permitted the applicant to cultivate the lands and pay rent to him towards the wara for having cultivated the lands, by him as a sub-tenant. He has lawfully permitted the applicant to cultivate the lands and pay rent to him towards the wara for having cultivated the lands, by him as a sub-tenant. The above said undisputed facts between the applicant and landlord would amount to sub-lease of the properties as both the original lessee and the landlord treated him as a sub-tenant and therefore, he has acquired statutory right of tenancy under the provisions of the KLRF Act. The interpretation of the relevant provisions of section 4 and 45 of KLRF Act made by this Court has laid down the law regarding sub-lease in the case reported in 1978 (1)KLJ 382 at para 13. Notwithstanding the above said undisputed factual contention of the applicant, it is also further contended by his Counsel that the Will executed by his adoptive father, original lessee, in which it is clearly recited that original applicant has been in possession and cultivation of the lands as he was unwell and suffering from Asthama and other ailments. Therefore, he would submits that the said document should have been considered by both the land tribunal and appellate authority holding that and the applicant has established the fact that the lands in question were being lawfully cultivated by him immediately prior to 1. 3. 1974 as a sub-tenant, therefore, he is entitled to be registered as an occupant under section 45 of the KLRF Act as he has been personally cultivating the land as per the definition of Section 2 (34) of the KLRF Act, which provision defines tenant and Clause (iia) which is inserted to the above said provision by way of amendment by Act No. 1 of 1979 which came into force w. e. f 1. 3. 1974, states a person who cultivates personally any land on lease under a lease created contrary to the provisions of Section 5 and before the date of commencement of the amendment Act, 1/1974, such person is entitled to be registered as an occupant in respect of such land. Neither the Land Tribunal nor the appellate authority have examined and determined the rights of the applicant in this proper perspective way keeping in view the relevant provisions namely Sections 2 (34), 44, 45 of the KLRF Act. Therefore, he would submits that the findings and reasons recorded by both the authorities in rejecting the application of the applicant is erroneous in law. Therefore, he would submits that the findings and reasons recorded by both the authorities in rejecting the application of the applicant is erroneous in law. Further, it is contended that the dismissal of the appeal by the appellate authority and grant of occupancy rights in favour of rival claimants in respect of the lands in question is contrary to law, after setting aside the order of grant made in favour of deceased Venkataramana Ganapathy Sheit, without there being independent appeals filed by them, which is contrary to the law laid down by the Apex Court and this Court in the cases reported in AIR 1963 SC 1901 and ILR 1988 KAR 2067. The learned Counsel for the applicant placed strong reliance on the Division Bench Judgment of this Court reported in ILR 1988 KAR 2067 at paragraph 30, the law has been laid down in support of the above said proposition of law. The relevant portion at paragraph 30 in the said case is extracted as hereunder: in such situation, it is most appropriate to exercise the power under Rule 33 of Order 41 of the C. P. Code and pass a decree which ought to have been passed by the trial Court. From what is stated above, it is also clear that exercise of power under Rule 33 of Order 41 of the Code is necessary in order to grant relief to the appellant. In RAMESW AR PRASAD v. SHAMBEHARI LAL JAGANNATH while considering the scope of Rule 33 of Order 4l of the C. P. Code, it is observed thus; this rule is under the sub-heading Judgment in Appeal. Rule 31 provides that the Judgment of the Appellate Court shall be in writing and shall state inter alia the relief to which the appellant is entitled in case the decree appealed from is reversed or varied. Rule 32 provides to what the Judgment may direct and states that the Judgment may be for confirming. varying or reversing the decree from which the appeal is preferred or, if the parties to the appeal agree as to the form which the decree in appeal shall take, or as to the order to be made in appeal, the Appellate Court may pass a decree or make an order accordingly. The reversal of variation in the decree would therefore, be in accordance with what the appellant had been found to be entitled. The reversal of variation in the decree would therefore, be in accordance with what the appellant had been found to be entitled. The decree, therefore, is not to be reversed or varied with respect to such rights to which the appellant is not found entitled. Rule 33 really provides as to what the appellate Court can find the appellant entitled to. It empowers the Appellate Court to pass any decree and make any order which ought to have been passed or made in the proceedings before it and thus could have reference only to the nature of the decree or order in so far as it affects the rights of the appellant. Following the aforesaid decision of the Supreme Court, this Court in HANMANTHRAO v. SARUPCHAND has held that the power under rule 33 of Order 41 of the C. P. Code can be exercised by the Appellate Court in favour of a respondent only as a necessary consequence of the relief to be granted to the appellant and not independently of it. We have already pointed out that the exercise of power under Rule 33 of Order 41 of the C. P. Code has become necessary to grant the relief to the appellant also. For the aforesaid reasons and in view of the law Laid down by this Court in the above the case learned Counsel for the applicant has strongly contended that the order of the tribunal and appellate authority are illegal, as they are vitiated on account of irregular procedure adopted by them. Therefore, this Court has to exercise its revisional jurisdiction under section 121a of KLRF Act and grant the relief as prayed in this petition. ( 6 ) LEARNED Counsel for the petitioner has placed strong reliance upon the statutory right alleged to have been acquired by him on the basis of the Will referred to supra and placed reliance upon the judgment of this Court reported in ILR 1998 KAR 2381, ILR 2001 KAR 312. in which cases, the earlier decisions of the Apex Court are referred to and followed and laid down the law stating that the assignment of the right under the Will in favour of an assignee is recognised in law. in which cases, the earlier decisions of the Apex Court are referred to and followed and laid down the law stating that the assignment of the right under the Will in favour of an assignee is recognised in law. The learned Counsel for the applicant has alternatively submitted that this Court is not empowered to consider and answer the same in exercise of its jurisdiction in view of the decision of the Apex Court referred to supra viz. , Sangappa Kalyanappa Bangi upon which the rival claimants Counsel has relied upon that case in support of their case and therefore, the above said legal contention is kept open to be urged before the tribunal and the same shall be considered by it in accordance with law and answer the same. ( 7 ) THE learned Counsel appearing on behalf of the respondents 1 to 4 have sought to justify the impugned order passed by the appellate authority contending that the original tenant had no issues and the above said persons who are the rival claimants have claimed that they are the legal heirs of tenant under section 8 of Hindu Succession Act of 1956 and have acquired statutory right under the KLRF Act, who have succeeded to his estate of the tenanted lands and under section 24 of the KLRF Act; hence they have also filed applications in form no. 7 before the land tribunal seeking for grant of occupancy rights in respect of the lands in question and the tribunal rejected their claim which order was not challenged before the Appellate Authority however it is urged before it that the order is contrary to section 24 of the Act. Therefore, it is contended by the learned Counsel for the rival claimants that the order of the Land Tribunal is vitiated on account of error in law. They did not challenge the order of rejection of their applications before the appellate authority by filing Appeals, however, they were made as contesting respondents in the appeal of the applicant, in which proceedings findings recorded by the land tribunal in its order sought to be set aside in so far as rejection of their claims. They did not challenge the order of rejection of their applications before the appellate authority by filing Appeals, however, they were made as contesting respondents in the appeal of the applicant, in which proceedings findings recorded by the land tribunal in its order sought to be set aside in so far as rejection of their claims. It is further urged that the appellate authority having come to the conclusion that their claim has not been properly considered and determined by it, and also placed reliance upon the provisions of section 8 of the Hindu Succession Act read with section 24 of the KLRF Act, and therefore it is urged by the learned Counsel on their behalf that the appellate authority has rightly set aside the findings of the order of the land tribunal and granted occupancy rights in their favour in respect of the lands in question. While setting aside the order of rejection of the application of the original claimants, passed by the land Tribunal, no relief was granted in favour of the applicant in his appeal, but it has granted reliefs to the rival claimants by allowing their applications. which cannot be found fault with by this Court as the appellate authority has done substantial justice to the rival claimants. Therefore, it is urged that this Court need not interfere with the said findings recorded in the impugned order in exercise of its revisional jurisdiction in the revision petition. ( 8 ) LEARNED Counsel for the rival claimants has also sought to justify the findings and reasons recorded by the appellate authority in the impugned order on the ground that the applicant was not a tenant in respect of the lands in question and his claim is based on the recitals of the Will, which does not confer any statutory right of tenancy upon him or the same would amounts to sub-lease which is prohibited under section 21 of the KLRF Act. Therefore, it is submitted that petition is as able to be rejected the applicant has no right in law for claiming occupancy rights. Therefore, it is submitted that petition is as able to be rejected the applicant has no right in law for claiming occupancy rights. In support of his submission, he placed reliance upon the decisions of the Apex Court reported in AIR 1968 SC 261 , AIR 1975 SC 1223 and this Court reported in AIR 1976 KAR 33 for the reason that Will is a void document as a original tenant should not have sub-leased the properties in favour of the applicant in view of the provisions of sections 5 and 21 of the KLRF Act. Therefore it is contended that bequeathing the tenancy rights in respect of the lands in question in favour of the applicant by the deceased original tenant is opposed to the public policy and law laid down by the Apex Court in the case referred to supra. Hence, it is urged that the Will document upon which much reliance placed by the applicant is void ab initio in law and therefore, it is urged by the learned Counsel that the same could not have been relied upon by the authorities below for collateral purpose to establish the lawful possessional cultivation of the lands by the applicant as a sub-tenant and hence he is not entitled for grant of occupancy rights in respect of the lands in question, which contention is wholly untenable in law and therefore it is prayed for dismissal of the petition. ( 9 ) WITH reference to the above said legal contentions urged by the learned Counsel on behalf of the parties, this Court is required to examine the following points that would arise for consideration and answer the same. (1) Whether the order of the Appellate authority in setting aside the findings and reasons recorded by the land tribunal in its order and rejection of the application of the applicant and granting occupancy rights to the rival claimants in respect of the lands in question are legal and valid? (2) Whether the impugned order of the Appellate Authority warrants interference by this court ? (3) What order? ( 10 ) THIS Court for the reasons recorded in this order sets aside the orders of the land tribunal and appellate authority and remand the matter for its reconsideration of the claims of the parties. (2) Whether the impugned order of the Appellate Authority warrants interference by this court ? (3) What order? ( 10 ) THIS Court for the reasons recorded in this order sets aside the orders of the land tribunal and appellate authority and remand the matter for its reconsideration of the claims of the parties. ( 11 ) THIS Court has kept open the issue regarding the legal contentions urged on behalf of the applicant and rival claimants with reference to the Will upon which reliance is placed by the applicant in view of the judgment of the Supreme Court in case of Kalyanappa Bangi (dead) referred to supra which is reported in ILR 1999 KAR 863 and also the judgments of the Supreme Court referred to in the cases of this Court reported in ILR 1998 KAR 2381 and ILR 2001 KAR 312. ( 12 ) IT is the case of the applicant that the deceased Venkatarama Ganapathy Sheit is undisputedly a tenant under the landlord in respect of the lands in question has executed a Will in his favour pertaining to the same properties. The legality of the said Will is seriously opposed by the rival claimants placing reliance upon section 21 of the KLRF Act and also the judgment of the Apex Court in case of Sangappa Kalyanappa Bangi referred to supra. As could be seen from the original land tribunal record, evidence is adduced by the applicant stating that he has been cultivating the lands in question from the year 1972 as the original tenant had permitted him to lawfully cultivate the land as he was suffering from Asthama and other ailments and continued to do so from 1970, which fact is recited in the said document. The said undisputed fact is recognised by the landlord. Whether the recital in the Will can be placed reliance by him of his claim that he has been in lawful possession and cultivation as a tenant in respect of the lands in question immediately prior to 1. 3. 1974 is a question required to be examined by the land tribunal as this aspect of the matter has not been considered by both the land tribunal as well as the appellate authority while passing the impugned orders. 3. 1974 is a question required to be examined by the land tribunal as this aspect of the matter has not been considered by both the land tribunal as well as the appellate authority while passing the impugned orders. It is also an undisputed fact that landlord recognised the fact of lawful possession and cultivation of the lands by the applicant and received rents from him, which fact is spoken to by his witness Abdul Sattar who was examined before the tribunal. Therefore, the applicants Counsel legal contention is that by a careful reading of the recitals in the Will it would constitute sub-lease of the lands by the original tenant to the applicant which is permissible in law as law laid down by this Court in the case reported in 1978 (1) KLJ 382. This aspect of the matter is contested by the rival claimants Counsel contending that the Will is a void document and opposed to public policy, hence the said document cannot be taken on record evidence and record the finding in favour of the claimant. In support of this proposition of law, the learned Counsel on behalf of the rival claimants relied on the judgments reported in AIR 1968 SC 261 , AIR 1975 SC 1223 and also on AIR 1976 SC 33, wherein it is stated that any document which is unjust and opposed to the public policy is void ab initio in law. Since the land tribunal and appellate authority have not examined the claim of the applicant with reference to the recitals of the document of the Will, the findings recorded by both the authorities while rejecting the application filed by him is not only erroneous in law but also for the reason that recitals of the document may be termed either a Will or the document of sub-lease wherein, the original tenant has undisputedly executed the document in his favour which recital would clearly disclose the fact that he has been in possession and cultivating the land two years prior to the date of execution of the said document in his favour by the original tenant by paying wara to the landlord which is a mixed question of fact and law required to be examined by the land tribunal with reference to the said document after permitting him to place the above said document on record. Further, the rival claimants have not cross-examined the statement of evidence of the applicant deposed before the land tribunal on 29. 12. 1. 981. In the absence of his cross-examination of the applicant by the rival claimants the tribunal was required to examine his claim and grant the relief as prayed in his application form No. 7. The authorities should have considered such evidence and recorded a finding of fact on the relevant point at issue before them. The appellate authority has not even referred to the said submission made on behalf of the applicant in its order. The reason recorded in support of its finding in its order for the rejection of the application of the applicant is bad in law as the said finding is erroneous for non-consideration of the documentary evidence and law on the question. Further, both the authorities have not considered whether the recitals in the Will upon which strong reliance is placed by the applicant is required to be examined by them keeping in view the law laid down in 1982 (2) KLJ 593 as to whether the said document can be relied upon for collateral purpose and the said document can be received in evidence on record in justification of his claim. In support of the same proposition rightly learned Counsel for the applicant has placed reliance upon another judgment of this Court reported in 1975 (2) KLJ short note item no 11. Further, he has also placed reliance upon the judgment of the Supreme Court in AIR 1966 SC 735 and AIR 1977 SC 1158 in support of the proposition of law that the form and substance of the document is relevant for the determination of the rights of the parties, but not the nomenclature of the document even though the document is styled as a Will and that amounts to assignment according to the submission of the learned Counsel for rival claimants which is prohibited under section 21 of the KLRF Act which contention on their behalf in wholly untenable in law in view of the Judgments of the Apex Court and this Court referred to supra. The recitals in the document which would constitute sub-lease according to the applicants Counsel is terms of the definition of tenant under section 2 (34) read with section 45 of the KLRF Act, which important legal aspect of the case is not considered by both the authorities and therefore the same requires to be considered by them. For the reasons stated supra, in my considered view the impugned orders passed by both the authorities in rejection of the application of the applicant, and granting occupancy rights in favour of the rival claimants is not only erroneous but also suffers from error in law as laid down by the Apex Court and this Court referred to supra under order 41 Rule 33 C. P. C. for more than one reason which need not be adverted to in this order for the reason that this Court has already come to the conclusion that the findings and reasons recorded in the impugned orders passed by the land tribunal and appellate authority are liable to be set aside and matter requires to be remanded to the land tribunal for its reconsideration and determine the rights of the parties in accordance with law. For the reasons stated supra. the impugned orders are liable to be set aside. Accordingly, I pass the following order: lrrp is allowed. The impugned orders are set aside and the matter is remitted back to the Land Tribunal 11th respondent with a direction to re-examine the claim and counter claim of the applicant and rival claimants in the light of the observations made in this order and also consider the legal submissions made in the case before it and dispose of the claim within six months from the date of receipt of this order. The parties are at liberty to adduce additional evidence and rebuttal evidence in support of their respective claim and counter claim. --- *** --- .